Document QgEMZnoyRJVvvzz5N54JpJ3R

A IN THB CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT 8T. CLAIR COUNTY, ILLINOIS FRANCES B. KBMNER, ) et al, ) ) P l a i n t i f f s ,) ) vs. ) MONSANTOCOMPANY, et al, ) ) Defendants.) ) No.80-L-970 Discovery Deposition of Dr. James P. Mleure taken on behalf of the Plaintiffs Taken on December 21, 1983 Reporters Karen J. Hays J a m e s M ay R e p o r t in g S ervice CERTIFIED SHORTHAND REPORTERS R R 2 - BOX 65 EDWARDSVILLE, ILLINOIS 62025  fi* i f i i 1 129 THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT 2 ST. CLAIR COUNTY, ILLINOIS 3 FRANCES S KENNER, et a l > ) 4) Plaintiffs,) 5) vs* ) 6) MONSANTO COMPANY, et al, ) 7> Defendants* > 8 No* 80-L-970 9 10 il APPEARANCES a 12 Messrs Coha, Carr, Koreln, Kunin, Schlichter k 13 Brennan by Rex Carr, Esq. On behalf of the Plaintiffs 14 Messrs Coburn, Croft A Putzel 15 by John R* Musgrave, Esq. On behalf of Monsanto Company i Messrs* Witze! A Baldwin by Michele Lowe On behalf of Western 17 Environmental Services (Third Party Defendant) 18 Messrs* Schoenheck, Tucker 19 & Schoenbeek by Stephen Schoenbeek, Esq. On behalf of Norfolk A Western 20 21 22 23 IT IS STIPULATED AND AGREED by and between 24 counsel for plaintiffs and counsel for defendants that 25 the deposition of Dr* James P* Mieure may be taken for JAMES MAY REPORTING SERVICE 1 1 discovery purposes by and on behalf of the Plaintiffs 2 pursuant to the provisions of the Illinois Civil Practice 3 Act as amended, and the provisions of the Supreme Court 4 Rules pertaining to depositions taken for discovery on 5 Decetsber 21 1983 at the law offices of Coburn Croft k Putzel One Mercantile Center Suite 2900 St, Louis 7 Missouri before KAREN J. RATS C.S.R. a Notary Public 8 within and for the County of Madison State of Illinois\ 9 and that the issuance of notice and dedimus is waived 10 and that this deposition may be taken with the same force 11 and effect as if all statutory requirements had been 12 complied with. 13 IT IS FURTHER STIPULATED AND AGREED that 14 any and all objections to all or any part of this deposition 15 are hereby reserved and may be raised on the trial of 16 this cause) and that the signature of the deponent is not 17 waivedi 18 ******* 19 20 21 DR. JAMBS P. MIBURB 22 produced sworn and examined on behalf of the Plaintiffs 23 deposes and says as followss 24 CROSS-EXAMINATION 25 BY MR* CARRi JAMES MAY REPORTING SERVICE 2 1 Q Would you state your name please. 2 A Janes Phillip Uleure. 3 Q And is it Doctor or Mister or - 4 A It's Doctor. 5 Q All right. Dr. Mleure, what's your present 6 position with Monsanto Chemical? 7 A Manager of Product Acceptability for Plasticize^ 8 and Rubber Chemicals. 9 Q And how long have you held that position? 10 A One y e a r . 11 Q Okay. Directing your attention to the years 12 '78, '79, *80 and *81, '82, could you tell us your positions 13 in that period of time? 14 A In *78 and *79 I was Manager of Environmental 15 Solences for Monsanto Industrial Chemicals Company. In 16 19-- , early 1980, 1 was made Manager of Product Acceptability 17 for the plastlolaers operations of Monsanto, and then early 1 18 this year X assumed the present responsibilities. 19 Q Now in 178 did you have any responsibility 20 with respect to testing chemicals produced at the Krummrioh 21 plant for various, well, for the makeup of those chemicals? 22 A I was in an administrative capacity at that 23 time, supervising the individuals In the laboratory who 24 did some of the testing of those products. 25 Q Okay, and X take it then you yourself did JAMES MAY REPORTING SERVICE 3 1 not personally conduct any teste on any of the products? 2 A That Is correct 3 Q But you would give orders to those under you 4 to do the testing? 5 A Tea. Q And a couple of those under you at that time * - 7 would be Orville Bloks and Robert Ealey? 8 * 9 A That Is correct. Q Was there any practice or policy so far as 10 you know In *77 and *78 to test the orthochlorophenol crude 11 produced at the Erummrlch plant for the presence of TCDD'a? 12 A To ray knowledge there had been some tests 13 run but it was not a routine analysis. 14 Q Do you know, again to your knowledge wbat 15 was the occasion for those teats that were run? 16 A I believe it was Just routine what we might 17 call routine screening. 18 Q 19 A 20 Q 21 diction? Did you supervlse tbose testa? Not directly. All right but 1t was done under your Juris 22 A 7es. 23 Q All right. In your departoent so to speak 24 you're over at Creve Coeur, aren't you? 25 A Yes. JAMES MAY REPORTING SERVICE 4 Q Or were at that time? A Yea, I was and still am. Q Still am, all right. The analysis that takes place in the plant lor the chemical constituency of the tank cars that are shipped out is not conducted under your Juris diction or supervision or in your department, isn't that correct, sir, and again I'm referring to a78 and '79 now? A That is correct. Q They have their own devices there that tell them the makeup of the chemicals produced, correct? A They have their own laboratory, yes. Q All right. They can't go down to the levels of detection of various Isomers for instance of chlorinated phenols that you were capable of going down to in '78 and *79, isn't that correct? A I 'm not aware of what their current capability is in that area. Q No, no, I meant at that time. A Oh, at that time? Q Yes. In '78 and '79. A To the best of my knowledge they didn't have that capability at that time. Q All right, but your laboratory had a greater capacity to detect these isomers or had some capacity to detect these Isomers versus no capacity at the plant, isn't JAMES MAY REPORTING SERVICE 5 * * % 1 that correct, at that time? 2 A I'm would you repeat the question, please? 3 Q Sure* Tour laboratory is more sophisticated 4 and refined than the laboratory that*a at the Krummrloh 5 plant, Is it not? 6 A Speaking for -- 7 Q At that tine, yes, in *78 and *79. 8 A Yes, at that tine, yes. 9 Q So If there is to be any checking or testing 10 of the chemicals done for TCDD's in the products produced 11 at that plant, it would have fallen upon you or that is 12 your laboratory to perform those tests rather than the 13 laboratory at the Krummrlch plant, isn't that correot? 14 A Not entirely* 15 q All right* Explain the difference to me 16 there, please. 17 A There was some capability in the plant at 18 that time to perform this type of analyses, and they were 19 doing some checking of their samples during that time* * 20 Q What could they check for in *78, how 21 sophisticated were they? 22 A It*s hard to relate that to a question In 23 lay terras* 24 Q Well, let's talk about TCDD's* You said they 25 had some capacity in that respect, Just tell me what they JAMES MAY REPORTING SERVICE 0 1 could find* 2 H R a MUSGRAVEi In a particular -- 3 UR* CARRi In *78. 4 UR. MUSGRAVBi In what though 5 TCDD's? 6 MR. CARRs In anything. Ho said 7 they did have some capacity there and I want to find out t 8 what the capacity was. 9 MR. MU8GRAVE i That may be the 10 problem. 11 A They made a number of products at the Erumarlch 12 plant Including some higher chlorinated phenolic materials 13 and the laboratory did have some capability with gas- chroma- 14 tograpby to monitor higher chlorinated dioxins in some of 15 those higher chlorinated phenolic products. 16 Q And these higher chlorinated phenolic products 17 would be what the 2,4-D in Santophln? * 18 A No The name of the product that I *m aware 19 of that had the most work done on it was pentachlorophenol. a 20 Q All right and they had the ability to detect 21 certain levels of TGDD in pentachlorophenol? 22 A Had there been high levels present. 23 Q In 78? 24 A Had there been high levels presentv I think 25 they would have had that capability. JAMES MAY REPORTING SERVICE 7  > ,,) # 1 Q That levels when you say high levels parts 2 per thousand parts per million? 3 A No. In the parts per million range but at 4 this time I would be unable to estimate just where in the 5 parts per million range. 6 Q Okay. They couldn't go down then to parts 7 per billion? 8 A I don't believe so. 9 Q In '78 did you have and by you 1 mean your 10 laboratory that you were working in or working over did 11 you have the capacity to detect TCDD at levels of parts 12 per billion? 13 A The levels that I supervised did have that 14 capability. 15 Q And what capability was that, at what level 16 could you go? 17 A Approximately ten parts per billion. 18 Q All right. You, of course have got the lab 19 books that are I think are produced here, and would all 20 I've asked for '78 so I hope they're here, would your lab 21 book reveal the testing that you did for TCDD's in the year 22 '78, if you did test any of those products from that plant 23 for TCDD's? 24 A When you say, when you use the word, you, were 25 you referring to me, me personally? JAMES MAY REPORTING SERVICE 8 1 Q You, yes, your laboratory 2 A 1 don't know that 1 had a lab booklet at that 3 time 4 Q No* 1 said your laboratory* I didn't say 5 your book 6 A Well -- 7 Q The books in your laboratory 8 A Well, our normal policy was for the scientists 9 who are Involved In a particular study at the bench, as we 10 call it, those scientists would make their notations* n Q In a book? 12 A In their laboratory notebooks. I don't know 13 what laboratory notebooks you have here* 14 Q Well, I don't know either, but my question 15 is if whatever testing was done for TGDD In the chemicals l at the Krummrioh plant that were produced at the Krummrieh 17 plant that were done by the laboratory under your .supervision 18 those results would be in these laboratory books kept by your 19 scientists, would they not, sir? 20 A That was our normal policy* 21 Q All right, well, do you know of any occasion 22 when you would not have followed the normal policy? A No, I don't. Q All right, so it was your regular and unveerlng policy to keep these tests and the record of these tests in JAMES MAY REPORTING SERVICE 1 these lab books, is that correct, sir? 2 A It was our policy for any project that caste 3 into us as a project, to keep the results of those analyses 4 in a laboratory notebook. 5 Q Well, would there be something that would come 6 to you other than ae a project? 7 A Conceivably some scientists may have been doing 8 some method development work at some time, which he may not 9 have logged into a notebook. What I'm trying to clarify for 10 you is I can't absolutely certify that every bit of work 11 that was done might have been logged Into someone's notebook, 12 I 'm also not aware of anything that wasn't, if that helps 13 you any. 14 Q All right. 15 A I'm not trying to deliberately be evasive. l Q What you're saying is they're supposed to keep 17 it in the lab book, it's the practice to put it in the lab 18 book and so far as you have any knowledge today, all testing 19 that was done on products produced at the Krummrlch plant, 20 and that were tested in '78, are contained In these lab 21 books, is that correct, sir? 22 A Would you restate that, please? 23 HR. CARRs No. I 'll resay it. 24 HR. MUSORAVE: She can reread it. 25 (Whereupon the question was read JAMES MAY REPORTING SERVICE 10 1 back by the Reporter) 2 A So far as I know. 3 Q Yes. Do you know whether or not any level of 4 TCDD was found In orthoohlorophenol crude In 1978? 5 A I don't, 1 don't -- 6 Q By your laboratory. 7 A I don't recall our laboratory finding any TCDD 8 in 1978. 9 Q All right. Was there any laboratory in '78 10 owned by Monsanto, wherever it might be, that had a greater 11 ability or a better or more refined, sophisticated ability 12 to detect TCDD's and the various Isomers of those TCDD's 13 in orthochlorophenol crude in 1978 other than the laboratory 14 over which you had supervision? 15 A As far as I know, we had the best capability 16 within Monsanto at that time. 17 Q All right, and that would include the Dayton 18 laboratory? 19 A That is correct. 20 Q All right. Now I've asked other witnesses of 21 this, and I'm not going to go into it at any detail unless 22 there's some variance. You and Orville Hicks and Haley and 23 P.R. Michael jointly participated in the publication of an 24 article called Determination of Trace Amounts of Chlorodlbenac 25 P-dioxins and Chlorodibenzofurans in Technical Grade Penta- JAMES MAY REPORTING SERVICE 11 1 ohlorophenol in *77. Do you recall that, sir? 2 A Yes, I d o 3 Q All right* Is there anything about that method 4 of detection or process that you vent through as published 5 in that document that would not be true or not be correct 6 to the best of your knowledge today? 7 A I'm sorry* Could you repeat that question 8 for me, please* 9 Q I *11 ask it a different way* Is there anything 10 In that article that is different from what you know the facti 11 to be today? 12 A No* That, that method was a good and valid 13 method at the time* 14 Q All right, and, of course, the article Just 15 deals with pentachlorophenol, or that's the subject of it, 1 but you knew then and know now that that method could be 17 used to detect levels in orthochlorophenol for instance as 18 well as pentachlorophenols, isn't that correct, sir? 19 MR HUSGRAVEi Levels of what? 20 MR* CAERs Of trace amounts of 21 chlorodlbenzo-P-dioxlns and chlorodibenzofurans* 22 A My -- 23 MR* MUSGRAVE: Sure* Go ahead* Do 24 you understand the question? A I believe I do, yes* At that time I don't JAMES MAY REPORTING SERVICE 1 believe tho method had been tested on orthochlorophenol 2 crude; but subsequent developments did indeed let us verify 3 that that same methodology could be used for other chloro4 phenols including orthochlorophenol crude with only very 5 minor modifications. 6 Q And in faot you used it for testing other 7 chlorinated phenols subsequent to '77 did you not sir? 8 A My laboratory did yes. 9 Q All right and if you had thought about it 10 or had been ashed to test orthochlorophenol crude or some n other product using this method in '77 you could have 12 modified it these minor modifications that you've mentioned 13 and others have mentioned before you you oould bave done 14 that at that time if you'd been called upon to do it? 15 A I believe we could have yes. 16 q The point that I'm making is that this method 17 you knew then could be adapted or modified to be used on 18 other products in addition to technical grade pentachlorophenol 19 did you not sir? 20 A tfo suspected that it could be yes. 21 Q And it would have been a simple matter to find 22 out if your belief or suspicion was true would it not sir 23 simply by doing it? 24 A By doing it, although I wouldn't agree that 25 it is a simple matter because we bave method grade procedures JAMES MAY REPORTIN G SERVICE 13 1 we go through that really aren't simple they're complicated* 2 Q Did you get a request by anybody before 1979 3 I mean anybody In Monsanto to test to use your method on 4 ortbochlorophenol crude for the presence of trace amounts of 5 chlorodibenzo-?-dloxlns and cblorodlbenzofurans? 6 A It's hard for me to pinpoint the exact time; 7 but If I could answer the question in this way prior to 8 the Sturgeon Incident we had measured we bad looked for 9 we had analyzed ortbochlorophenol crude for dibenzo-dloxln* 10 Q Using this method published in July of '77? n A Using that basic method. There may have been 12 some minor modifications but the basic method. 13 Q So anyway you had satisfied yourself before 14 1979 that the method could be used for ortbochlorophenol 15 crude then? 16 A Yes* 17 Q All r i ght and you had in fact tested ortho18 chlorophenol crude then before January the 10th of '79 for 19 these trace amounts had you not? 20 A Yes* 21 Q All rightbut only on a If 1understand you 22 correctly, on an isolated Instance or only for your own 23 information* Well let me ask it a different way* Under 24 what circumstances did you test ortbochlorophenol before '79? 25 A We weretested wewererequested to test a JAMES MAY REPORTING SERVICE &' ` e 1 few samples on a nonroutIns basis. 2 Q For what purpose and by whom? 3 A For the presence of chlorinated dibenzo4 dloxins by someone either in the business area or the 5 plant 1 don't recall at this time who the requestor was* 6 Q Do you recall whether or not the request was 7 subsequent to a request of a customer that it be done? 8 A As far as 1 know it was not at the request 9 of a customer but X would not always be certain of that. 10 Q All right. It wouldn't be important to you n to know whether or not it was at the request of a customer 12 or at the request of a higher up in the plant or for a plant 13 manager or if anything it's just important to you that the 14 request was made? 15 A That is correct. We were sometimes not aware 16 of the basic reason why we were performing a given test. 17 Q Did your laboratory in 1078 have the capacity 18 to determine the presence of 2,4,5-trlchlorophenol in the 19 products manufactured at or produced at the Kruumrich plant? 20 A We had no demonstrated capacity to do that. 21 Theoretically it might have been possible but we had no 22 established methodology for doing that to the best of my 23 recollection. 24 Q Could t h e method t h a t you used for the TCDD's 25 be used to establish the presence or absence of 245- JAMES MAY REPORTING SERVICE 1 triohlorophenol? / V2 A NO, 3 Q Did no one ever ask you to test or to find 4 a method to discover whether or not 2,4,S-trichlorophono1 5 was In any of your products? 6 A I don't -- to. 7 Q At the Krussarlchplant. 8 A 9 A X don't recall having been asked to do that, Q If you had been asked, do you believe that 10 your people had the capacity to do it? n A 1 believe we could have developed a method 12 to do it. As X mentioned previously, we did not have to the 13 best of my knowledge, we did not have an existing method to 14 do t h a t . 15 Q Could you explain to me this method that you 16 would have developed, what would you have had to do? 17 A Most likely one would want to use gas chroma 0 - 18 tography for that type of an analysis because gae chroma 19 tography with, with any of the various detectors la more 20 sensitive than other types of analytical techniques; but 21 before the ohlorophenol product per se could have been 22 routed through a gas chromatograph, it would have been, 23 had to have been deriv&tissed. It would have to have been 24 changed in form from the phenol to some sort of an ester 25 and so a process for forming a derivative would have had JAMES MAY REPORTING SERVICE 10 1 to have been developed 9 and then this process would have 2 had to have been validated by running a number of known 3 samples preferably spiked into the median of Interest and 4 determine the recovery demonstrated, adequate recovery of 5 that procedure again using the analytical measuring device 6 the gas chromatograph or gas chromatograph spectrometer I* 7 and then the laboratory would be ready to analyze some 8 samples. 4 9 Q All right. Did your laboratory and your 10 personnel have the capacity to do that which you just n described in 1978 or *777 12 A I believe we could have performed that 13 analysis. 14 Q All right. Is it a fair statement to say 15 that the method that you published in 1977 relating to 16 trace amounts of these chlorodibenzodifurans and dioxins 17 was a more sophisticated or complicated or involved method 18 than the method you've just described to detect the presence 19 of 24,5~-trichlorophenol? & 20 A I would describe the method as being of 21 roughly comparable complexity. 22 Q Why is that Dr. Uieure? I understand that 23 the isomers that is these TCDD* are isomers that are in / 24 the 2 , 4 5-trichlorophenol, that le it is an impurity if 25 you w l l l v in the 248-trlchlorophenol. It is -- JAMES MAY REPORTING SERVICE 1 UR. UUSGRAV2: Which isomers? 2 A What is an inpurity? 3 Q These TCDD's that we're talking about that i4 you oan detect the presence of, 2,4,5-trichlorophenol, my 5 understanding is a precursor to some of these dioxins. 6 A I think 2,4,5-trichlorophenol is a precursor .7 to some of the dioxins, but not all of them 18 4 Q All right, I accept that; but if it is a 9 precursor to some of the dioxins and you can detect by your 10 method these TCDD's that have come about that were first 11 2,4,5 or trichlorophenol rather, wouldn't it be simpler to 12 detect the precursor to the TCDD's than it would be to 13 detect the TCDD's themselves? 14 A As 1 mentioned earlier in terms of the analytics 1 15 complexity, it's about equal. 16 Q All right. Well, that's what I want you to 17 explain to me, if you can, I may not be capable of under- - 18 standing it, Why it's about the same, even though the 2,4,019 trichlorophenol Is the precursor to some of these TCDD's c. 20 that you had the capacity to detect? 21 A Well, as I mentioned earlier, when X described 22 what we would have to do in order to develop a method, the 23 first thing we would have to do in measuring 2,4,5-trichloro24 phenol is to put, is to convert that chemical into a form 25 in which it would go through a gas chromatograph; and that JAMES MAY REPORTING SERVICE IB 1 conversion is not a slnple step that conversion requires 2 one to quantitatively chemically convert the material into 3 an ester and to get that to get a trace level of a chloro4 phenol in a much larger amount of chlorophenol matrix to 5 convert into an ester requires some degree of sophistication* 6 Q Okay* but in the final analysis it's your 7 belief that your laboratory had the sophistication necessary 8 to do that which you've described? 9 A X believe 10 Q In '78? 11 A X believe we could have developed a method 12 to do that. 13 Q All right and no one ever asked you to develop 14 the method to do that? 15 A No one asked us to develop that method* 16 Q All right 17 A Presumably because there was no reason to 18 suspect the presence of 24,5-trichlorophanol,, 19 Q Well of oourse that's speculation on your 20 part and my question is singly put. 21 A I wouldn't call that speculation. I mean t h a t 'g 22 based on knowledge of chemistry. 23 Q Well you do know now don't you Dr. Mleure 24 that 45-trichlorophenol was found in the tank car that 25 was involved in this incident? JAMES MAY REPORTING SERVICE 19 <V V 1 2 A I know that by hearsay* Q And by hearsay you mean that you read a 3 document that states that? 4 A I don't believe X've read a document, but I've 5 heard other people make that remark* 6 Q And have you accepted that it's true what * 7 these other people have told you? 8 * A I have no basis either to accept it or reject 9 it. 10 Q All right* Who was it that told you? 11 A I don't recall. 12 Q How recent were you told that? /. t 13 14 A 1 don't recall. Q You don't recall that either? 15 A It's been years. 16 Q Okay. Then It's not been recently that you 17 were told that? 18 A X don't, it may have come up again recently. 19 I don't recall a specific Instance. 1* 20 Q Now did you have anything to do with analyzing 21 the reserve samples from the tank car that spilled at Sturgeoz 22 for the presence of TGDD's after the spill occurred? 23 A 24 analysis. 25 Q The laboratory that 1 supervised performed that All right, and was It under your supervision JAMES MAY REPORTING SERVICE 20 1 that the analysis was performed which discovered there were / 2 37 parts per billion of TGDD in that tank car? 3 A We discovered that there appeared to be 4 tetrachlorodlbenzo dioxins in that reserved sample. 5 Q And is your answer to ay question that you 6 did supervise that process? * 7 A 1 ay laboratory did it. I was not in the 8 laboratory directly supervising. 9 Q Did you have anything to do with attempting 10 to or to make changes in the manufacturing process at the 11 Krummrich plant to, not just for orthochlorophenol, but for 12 any chemical there to reduce or to eliminate the creation sf 13 of these TCDD's that were found in the products from the 14 plant in *79! *80 and *81? 15 A Well our role was an analytical support 16 group as opposed to a process chemistry group. 17 Q Well did you have a role to play in that, - - 18 Dr. Mieure? 19 A We monitored some of the-work that was going 20 on in the process. 21 Q And didn't you make suggestions as to how to 22 eliminate TCDD? 23 A I don't r e c a l l m a k in g any recommendations 24 on the elimination no. We supplied the data that others 25 might have used to make those decisions. JAMES MAY REPORTING SERVICE 21 1 Q Did you have the method worked out in 1979 2 to prove or disprove the presence of 2,4,5-trichlorophenol 3 in that tank car reserved sample? 4 A I believe we've covered that already, sir 5 and I believe my answer to that question was, no, we did 6 not have a developed method tor doing that s7 Q All right Is there any way then of making A 8 a statement that, or coming to a conclusion definitely that 9 that tank car did not contain 2,4,5-trichlorophenol? 10 A The normal -- 11 Q In February, '79 12 A The chemical processes that were involved in f 13 manufacturing the various chlorophenols in our department 14 at Kruranrich would not be expected to yield appreciable 15 quantities of the 2 4,d-trichlorophenol isomer 16 Q Well, I won't quarrel with that; but it's 17 not, it may not be expected to yield appreciable quantities . . 18 of that particular isomer, and I didn't ask you that, did I, 19 sir? O 20 A would have to have the question repeated 21 to know exactly what you are asking. 22 Q Let me ask you again specifically. Could you 23 say in February of 1979 definitely and with certainty that 24 there was no 2,4,5-triohlorophenol in that tank car? 25 A I couldn't comment one way or the other, no, JAMES MAY REPORTING SERVICE 22 1 not at that tiro I would not know 2 Q Then your answer to say question Is that you 3 oould not know it, did not know It and would not say that 4 there was definitely no 2,4,5-trlchlorophenol in that tank 5 oari Is that correctp Dr* Bfleure? 6 A 1 hellove that's correct. 7 Q All right9 and the reason you could not say 8 that Is because you had not the methodology worked out at 9 that time to test that tank car for the presence or absence 10 of 2,45-*trlehlorophenol> Is that correct9 sir? n A Our laboratory did not have that capability. 12 Q Did your laboratory s any laboratory at 13 Monsanto have that capability to your knowledge at that 14 time In February of 079? 15 A X don't know. 16 Q Are you saying you don't know now or you 17 didn't know then? 18 A X don't know eithertime. 19 Q Are you familiar with the capacities of these 20 various laboratories? 21 A The plant laboratory had some capacity for 22 measuring chlorophenol. 23 Q Well, did they have a capacity to detect whether 24 there was or was not 2 f4 f5->trlchlorophenol in that oar? 25 A X don't know. JAMES MAY REPORTING SERVICE 23 1 Q Why don't you know that Dr. Uieure? 2 A That*a not a subject matter that a person in 3 my responsibilities would delve into, as we defined earlier 4 in our discussion Monsanto had various laboratories at 5 various locations and 1 was responsible for one laboratory* 6 UR* CARR: Could you mark that 7 please for me* 8 (Whereupon Uieure Deposition Exhibit 9 No* 1 was marked for Identification 10 by the Reporter*) 11 Q And Dr* Uieure your initials are J*P are 12 they not? 13 A . That is correct 14 Q Could you look at what now has been marked 15 Plaintiffs' Exhibit. 16 A Okay. 17 Q Do you know whose handwriting that is? 18 A That appears to be my handwriting* 19 Q All right and your initials are also there 20 are they not J.P.U.? 21 A That's correct* 22 Q And did you arrive at the conclusion as stated 23 in that exhibit that it's definitely not 2,4t5-trlchloropheno].? 24 A This appears to be the record of a phone 25 conversation between myself and Bob Cleopfer of the EPA* JAMES MAY REPORTING SERVICE 24 1 Q Y#S. 2 A And this Appears to be a record of an analysis 3 performed by the Environmental Protection Agency* 4 Q And not your analysis? 5 A T h a t 's correct Q All right* Thank you and that's your best 7 memory of it at that time correct? 8 A That is correct* . 9 UR* MU3GRAVE: that's the exhibit 10 number please? 11 ICR* CAR&s That would be one* 12 Q How D r 0 Mieure you testified earlier that 13 the manufacturing process would not be expected to create 14 appreciable quantities of 2,4,5-trlohlorophenol. Do you 15 recall that sir? l A I believe that's the remark yes* 17 Q All right* then you sayappreciable quantities 18 of 2,4,3-trlchlorophenol, what do you mean by that could 19 you break that down for me? 20 A I suppose 1 meant detectable quantities that 21 which would be detectable by our analytical methodology* 22 Q And what level would that be then at that 23 time? 24 A Which material were we talking about when we 25 said appreciable? JAMES MAY REPORTIN G SERVICE Q 2,4,5-trloblorophenol A Veil at that time as I mentioned, I d l d n at methodology for that, so it would be difficult for mo to 4` stipulate just what that methodology would be capable of* 5 Q Well, would your knowledge of the chemistry 6 Involved allow you to come to the conclusion that there 7 could be some amounts of 2,4,5~triehlorophenol created in ! o 8 the manufacturing process? I 9-i A Tell, as 1 stated earlier, X would suspect 10 any such formation to be very minimal n Q But my question is then, It does follow that 12 you would expect some formation to bo there? 73 A Not necessarily 14 Q Well, would you expect some to be there, you 15 said you w o u l d n 't expect appreciable amounts, what is there 16 in the manufacturing process or involved in this situation 17 that would lead to the formation of any 2,4,5-trlchlorophenol 18 in your knowledge as an organic chemist? 19 A Well, I 'm an analyticalchemist asopposed 20 to an organic chemist 27 Q Okay 22 A According to my knowledge, therewould not 23 be any route that was expected to lead to the formation of 24 2,4,5-trichlorophenol. 25 Q Well then, why did you say you w o u l d n 't expect JAMES MAY REPORTING SERVICE aa \ e b * 1 appreciable amounts to be there, which indicates to me that 2 you would expect some amounts to he there? 3 A Analytical chemists tend to think in terms 4 of what they can detect; and if we can detect it, I guess 5 we define it as depreciable. I would not expect 2,4,56 trlcblorophenol to be present in that process. 7 Q And why not, you're chlorinating phenols, 8 aren1t you? 9 A But that chlorination tends to go very heavily 10 towards the ortho and para substitution positions. 11 Q Well, no quarrel with that, tends to, but 12 doesn't always, does it, sir? 13 A I can't comment on that. 14 Q You can't comment because you have, that's 15 outside your sphere of expertise? 16 A That's correet. 17 Q And is it fair to say that you don't know 18 whether or not the manufacturing process would or would 19 not create 2,4,5-trlchlorophenol, is that correct, sir? 20 A I don't know it with one hundred percent 21 certainty, but 1 have a strong scientific knowledge that 22 would tend to make me believe that it wouldn't be formed. 23 Q Okay, and why is that, sir? 24 A Wellj as 1 mentioned earlier because the 25 substitution goes to the ortho and para positions. JAMES MAY REPORTING SERVICE 27 1 Q But not always didn't you say that sir? 2 A 1 don't know if it always goes or not. 3 Q All right Now la there any different method 4 Involved in detecting the presence of 24,8~trlohlorophenol 5 as opposed to detecting 245-trlehlorophenol? 6 A 1 would imagine the basic methodology would *- 7 be the same. 8 Q All right so If you had a methodology worked 9 out for discovering the quantities of 246-trlchlorophenol 10 you could discover similar quantities of 24 ,5-trlchlorophonol 11 using the same analytical method? 12 A I would expect that with minor modification and 13 method validation that one could determine that. 14 Q All right. Did you Dr. llleure have anything 15 to do with testing any reserve samples from the tank oar 16 in question other than the testing that was done in early 17 pebruary, 1979? * 18 A 1 don't recall the exact dates that we did 19 our testing* but I only recall the one series that I believe 20 we covered in our earlier discussions. 21 Q All right and that would be the one, we've 22 bad it identified by another witness where you reported 23 37 parts per billion of TCDD, correct sir? 24 f i A We reported something in the 30 to 40 part 25 per billion range. JAMES MAY REPORTING SERVICE ' 2ft 1 Q Yes, right; and to the best of your knowledge 2 as you're sitting here now, you had nothing to do with any 3 other testing of the tank ear reserve samples subsequent 4 to that test? 5 A I don't recall any. 6 Q Is there any reason that you know of why you 7 wouldn't reoall it if you had something to do with such o 8 testing? 9 A No 10 Q Row as far as the test results Is concerned 11 and the reporting of those test results of this sample 12 that you all did In February, what was It, the eighth I 13 think it was or the ninth, whatever the date, let me get 14 a precise date for that 15 Yell, let's just have a broad 16 inclusive period from February the 7th, the testing and 17 analysis of this tank car reserved sample from the Sturgeon 18 incident from February the 7th, '79, through February the 19 15th, '79* Did you or would you have any right to change 20 any conclusion reached by those persons conducting that 21 analysis of that tank car sample? 22 A Would I have any? 23 Q Did you have the authority, did you or would / 24 you, did you and could you have the authority to change those 25 results? JAMES MAY REPORTING SERVICE 29 A As far as I know I didn't have the authority to change the results and I don't recall changing any results or conclusions* Q Veil, when you say you don't recall that bothers me. If you don't have the authority to change any results is there any circumstances under which you would have done it? A If somehow I knew a result to be wrong I suppose* Q I'm talking about this specific tank car sampling, did you change in any fashion or method whatsoever any conclusions reached by the persons conducting the analysis? 14 A Not that 1 recall. 15 Q Now when you say not that you recall that 15 disturbs m e 17 A You're asking me to remember something that 18 happened five years ago, 19 Q Well, something of great'consequence. It 20 would be of great consequence woul d n ' t it Or* Mleure 21 if you changed the results of an analysis made by people 22 working under you that you had nothing to do with the 23 testing yourself? 24 A As we indicated since if I knew something 25 to be incorrect I would change it. JAMES MAY REPORTIN G SERVICE 30 1 Q Well, did you know something to be incorrect? 2 A No. 3 Q, In thetesting? 4 A No 5 Q And a s far as you know did you or anybody 6 working with you or alongside of you under you or above 7 you change any of the test results or conolusions reached 4 8 from these results from the testing that took place from 9 February the 6th or the 7th, 1979 through February the 15th 10 1979? 11 A NO. 12 Q Did you Dr, Mleure, ever advise anybody and 13 by anybody I mean anybody In the organization of Monsanto 14 or outside that the isomer detected the 37 parts per 15 billion was not 2378-TGDD? 16 A I'd have to see the analytical reports. 17 Q To know whether or not you told anybody that? 18 A Sure. I can't remember what Itold people 19 five years ago. 20 Q Well, did you have anything to do with pre 21 paring the analytical reports? 22 A I'm sure I did. 23 Q Wouldn't you beaccredited withauthorship 24 if you had had something to do with those reports? 25 A Well, I was in a supervisor responsibility JAMES MAY REPORTING SERVICE 31 1 whereby I would have approval over various reports* 2 Q Well, If you had changed it -- 3 A I did not change any reports to the best of 4 my knowledge* 5 Q Would you have any knowledge as to whether or 6 not the Isomers In that tank car was 2,3,7,8-TCDD other 7 than what would be reported to you by the chemist doing 8 the analysis of the sample? 9 A I would not, 10 Q All right* Would anybody outside of, now as n X understand what's been told to me. Is that Hicks and Haley 12 were the ones that performed this particular test on this 13 reserved sample from the tank car In question? 14 A That1s correct 15 Q And that It was doneunder yoursupervision, 16 broad supervision, but not In the laboratory supervision? 17 A That's correct. 18 Q All right* Was there anybodyoutside of you 19 three to your knowledge that had anything to do with that * 20 test, that testing and the reporting of those testa or 21 testing of the reserve sample of that OATH car? 22 A In terms of the Monsanto reporting of it, no, 23 we, that was our responsibility. 24 Q All right Would It be fair to say that under 25 any circumstance where you felt compelled to change the JAMES MAY REPORTING SERVICE v * m, tr o v> 1 h O 1 results of an analysis or the conclusion reached on that 2 analysis that you would be obligated to identify the changes 3 made and that you made the changes by some initialing or 4 . something of the sort? 5 A I don't recall ever having to make any changes 6 to have developed a procedure whereby we would certify how 7 the changes were made 8 Q Well assume hypothetically that you found .an , 9 error in a report made by one of your laboratory chemists* 10 All right* You determined Dr. Mieure determined that this 11 was a faulty conclusion, and it needed to be changed for the 12 purpose of scientific accuracy. Assume that for a moment., 13 If you made such a change, would you not as a scientist 14 identify the change that you made and identify yourself as 15 the person making the change? 16 A That would depend upon the type of changes 17 that were made. If if a word was misspelled for example 18 I don11 think I would make a big deal out of it or if a 19 temperature were reported inoorrectly. 20 Q Well, I agree} and if there was, it would have 21 to be a change of magnitude of some importance; but if you 22 did make a change of some magnitude or Importanoe, as a 23 scientist you absolutely would be obligated to identify 24 the change you were making and the fact that you made the 25 change ? JAMES MAY REPORTING SERVICE 33 y STATE OF ILLINOIS ) ) SS 2 COUNTY 07 MADISON ) 3 4 I , KAREN J . HAYS, a N o tary P u b lic w ith in and 5 fo r th e County o f M adison, S ta te o f I l l i n o i s , do hereby c e rtify th a t pursuant to stip u la tio n th a t th e re appeared 7 b e fo re me on December 2 1 , 1 9 8 3 , a t th e law o f f i c e s o f 8 Coburn, C ro ft A Put seel, One M e rc a n tile C e n te r , S u ite 2 9 0 0 , 9 S t. L o u is, M is s o u ri, DR. JAMBS P . MIEURE, who was f i r s t 10 d u ly sworn to me to t e s t i f y to th e w hole t r u t h o f h is 11 knowledge to u c h in g th e m a tte r in c o n tro v e rs y a f o r e s a i d , 12 so f a r as he sh o u ld be i n t e r r o g a t e d c o n c e rn in g th e same; 13 t h a t he was exam ined, and h i s e x a m in a tio n was ta k e n down 14 in sh o rth a n d by me and a f te rw a r d s t r a n s c r i b e d upon th e 15 ty p e w r i t e r , and h i s d e p o s itio n i s h e re w ith r e t u r n e d . 16 17 IN WITNESS WHEREOF, I have h e re u n to s e t 18 my hand and a f f ix e d my n o t a r i a l s e a l on t h i s _____________ 19 day o f _______________________, 1 9 8 3 . 20 21 N otary P u b lic w ith in and 22 f o r th e County o f M adison, in the S tate of I llin o i s . 23 24 25 JAMES MAY REPORTING SERVICE