Document V3VmBaRogqM4JVDz3GVo5jKQZ

STATE OF ALABAMA IN THE CIRCUIT COURT OF CALHOUN COUNTY SABRINA ABERNATHY, et al. , versus Plaintiffs, MONSANTO COMPANY, et al., CIVIL ACTION NUMBER CV-96-269 (Consolidated) De f endant s . / DEPOSITION OF BRUCE W. ELEY The deposition of BRUCE W. ELEY was taken before Deborah Salers Garrett, Certified Shorthand Reporter, Registered Professional Reporter, as Commissioner, commencing at 1:00 p.m. on January 6, 1999, 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 HARTOLDMONO014107 2 1 APPEARANCES 2 For the Plaintiffs: 3 DON BARRETT, Esq. RICHARD BARRETT, Esq. 4 KATHERINE BARRETT, Esq. BARRETT LAW OFFICE, P.A. 5 P. 0. Box 987 Lexington, Mississippi 39095 6 7 For the Defendants: 8 HARLAN PRATER, IV, Esq. WARREN LIGHTFOOT, III, Esq. 9 LIGHTFOOT, FRANKLIN & WHITE The Clark Building 1 0 400 North 20th Street Birmingham, Alabama 35203 11 12 INDEX 13 1 4 Stipulations 1 5 Reporter's Certificate 16 1 7 EXAMINATIONS 1 8 Witness: BRUCE W. ELEY 1 9 By Mr. Don Barrett 20 2 1 No exhibits were marked for offered or attached as exhibit s hereto 22 23 Page 3 74 Page 4 f REGIONAL REPORTING SERVICE, INC. ....""hARTOLDMONOO 14108 3 1 STIPULATIONS 2 3 IT IS STIPULATED AND AGREED by the 4 parties, through their respective counsel, 5 that the deposition of BRUCE W. ELEY may be 6 taken before Deborah Salers Garrett, CSR, RPR, 7 as Commissioner and Notary Public, Alabama at 8 Large, at Birmingham, Alabama, on January 6, 9 1999, at 1:00 p.m. 10 1 1 IT IS STIPULATED AND AGREED that it 1 2 shall not be necessary for any objections to 1 3 be made by counsel to any questions except as 1 4 to form or leading questions and that counsel 1 5 may make objections and assign grounds at the 1 6 time of trial or at the time said deposition 1 7 is offered in evidence or prior thereto. 18 1 9 IT IS STIPULATED AND AGREED that notice 2 0 of filing by the Commissioner is waived. 21 22 23 REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014109 4 1 STATE OF ALABAMA, BIRMINGHAM. JANUARY 6, 1999 2 3 BRUCE W. ELEY. 4 after having been first duly sworn, was 5 examined and testified as follows: 6 7 EXAMINATION 8 BY MR. DON BARRETT 9 Q. Would you state your name for the 1 0 record, please, sir? 1 1 A. Bruise W. Eley, E-l-e-y. 1 2 Q. Mr. Eley, my name is Don Barrett. I 1 3 represent the plaintiffs in this case. 14 Nice to meet you. 1 5 A. Thank you . 1 6 Q. Where do you live? 1 7 A. In St. Louis, Missouri. 1 8 Q. Okay. 1 9 A. The address, 1729 Carman Valley Drive, 2 0 C-a-r-m-a-n. 2 1 Q. With a St. Louis address or a suburb? 2 2 A. It is actually a suburb, Ballwin, 2 3 Missouri, B-a-l-l-w-i-n. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014110 5 1 Q. 2 A. 3 Q. 4 5 A. 6 Q. 7 8 9 A. 10 1 1 Q. 12 13 14 15 16 17 1 8 A. 1 9 Q. 20 21 22 23 And who is your employer? Solutia, Inc., S-o-1-u-t-i-a. And before the spinoff did you work for Monsanto? Yes. How long have you worked -- How long have you continuously worked for Monsanto or Solutia? I believe it will be thirty years next June, this coming June. Mr. Eley, you were -- your name was given to the plaintiffs as a fact witness in the case and not an expert witness. So we're here today to find out what facts that you know that are relevant to the case and what your testimony would be. Yes, sir. And my questions are directed in that way . What is your position with Solutia? And go back -- Take us back, if you will, since the time you were REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014111 6 1 2 3 4 A. 5 Q. 6 A. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 Q. hired by Monsanto, and just tell us kind of what you have done and what you do now and how long you have done it. Starting with present and going back? Either way. Okay. My memory is probably a little bit better starting with initially when I came on board with Monsanto in 1969. I was hired in June 1969 as an environmental research engineer, working with the inorganics division of Monsanto. I was in that job for approximately a year, year and a half, at which time I moved over from the inorganics division to central research department, again doing research in the environmental area. In September of 1971 I joined the medical department of Monsanto -- then I believe it was called the department of medicine and environmental health -- as an industrial hygienist. Let me stop you. What is your REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014112 7 1 2 3 A. 4 5 6 7 8 9 10 1 1 Q. 12 13 14 15 A. 1 6 Q. 1 7 A. 18 1 9 Q. 20 2 1 A. 22 23 educational background? What sort of degrees do you hold? Educational background, both my degrees are from the University of Arkansas, a BS in civil engineering and an MS in civil engineering, and the discipline actually was environmental engineering or what was called at that time sanitary engineering. And that was a part of the civil engineering department. Okay. Back -- Up until this time frame that you are talking about, 1971, 'll, up until that time had you done any research on PCBs? No, sir. Okay. Go on and take us forward. As I said, in 1971 I joined the medical department as an industrial hygienist. All this time you were working in St. Louis? Correct, correct. In fact, as you will see, all through the thirty years I have continued to work out of St. Louis. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014113 8 1 Q. 2 A. 3 4 5 6 7 8 9 1 0 Q. 1 1 A. 12 13 14 15 16 17 18 Q 19 20 21 A. 2 2 Q. 2 3 A. All right. Between 1971 and 1978 I progressed in the field of industrial hygiene. And by progress, I mean I started out as industrial hygienist and then a senior industrial hygienist and a specialist. We had a progression in the area of industrial hygiene within our department. What does an industrial hygienist do? Industrial hygienist, I guess the simplest definition is a person by training or experience who is involved in the anticipation, recognition, and control of workplace stresses. And by stresses, I mean stresses due to either chemical or physical agents. Okay. That's -- You dealt with the health and safety of workers on the plant site? Correct. All right. Take us beyond 1979. In or around 1978 I became manager of REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014114 1 2 3 4Q 5 6 7A 8 9 10 Q 11 12 13 14 15 16 17 18 19 20 21 22 23 corporate industrial hygiene, again in the department of medicine and environmental health. During any of this time, up until this point, had you done any research with PCBs or any sort of work with PCBs? No research. I had involvement with PCBs only by nature of their being manufactured at Monsanto facilities. And why would you -- Why would you have involvement with them particularly? Well, any involvement I would have with a PCB manufacturing facility would be the same involvement I would have from the standpoint of a corporate oversight role in the industrial hygiene programs in the plants. That is, I would periodically go into plants, tour various processes -- and that would include all processes in that plant -- determine what type of monitoring the plant was involved in, what kind of assistance or support they needed from REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014115 10 1 2 Q. 3 4 A. 5 Q. 6 7 8 A. 9 10 11 12 1 3 Q. 14 15 16 17 18 19 2 0 A. 2 1 Q. 2 2 A. 23 St. Louis. Did you do that in Anniston during this time period? Yes. And on your trips to Anniston, it was your job, as I understand it, to keep the workplace safe and clean? It was more of an advisory and support role to the on-site people. Each one of our plants had industrial hygiene contact people or industrial hygienists and safety people. I understand. But working with those on-site people, that was your ultimate job, was to keep the plant -- to keep -- in Anniston, to keep PCBs and other chemicals or substances from being -- from coming into contact with the worker s ? That's correct. Okay. Even though, I might add, that as I recall probably one of the first trips I REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014116 11 1 2 3 4 5 6 7 Q. 8 9 10 11 12 A. 1 3 Q. 14 15 A . 1 6 Q. 1 7 A. 18 19 20 21 22 23 would have made to Anniston would have been in 1973 or after 1973, I believe. And at that time I believe that the PCB or Aroclor manufacturing unit was shut down, or it may have been leveled and not even in existence. Okay. Were you aware of the history of the Anniston plant when you went down there as to the problems they had had with PCBs, when you went down there during the 1970s? No, sir. And nobody advised you that they had any problems ? No . All right. So we are now at 1979? 1970 -- Well, between 1978 -- Andagain, it would be the 1978, '79 time frame until 1981. In, again, September -- Why September, I don't know. But September of 1981 is when I left the corporate department of environmental -- or the department of medicine and environmental REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014117 12 1 2 3 4 Q. 5 A. 6 Q 7 8 A. 9 10 Q 11 A. 12 Q 13 14 A. 15 16 Q 17 18 19 20 21 A. 22 Q 23 health, and I went into one of the operating units of the agricultural company. Okay . Of Monsanto. Which manufactured agricultural chemicals? Agricultural chemicals, herbicides, Not PCBs? No . And how long did you stay in that division? I was in the agricultural division until about 1991. Okay. And during this period of time you had no reason or it was not part of your job description or responsibility to have anything to do with PCBs one way ortheother? None whatsoever. All right. We are at 1991 now. Then what happened? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014118 13 1 A. 2 3 4 5 6 7 Q8 A. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 In 1991 I came back into corporate group. The corporate group at this time was called environmental safety and health, a corporate staff group. And I came into a small group called environmental affairs. Primarily a role in environmental technical support. And that is I still dealt with occupational safety and health issues. I dealt with hazard communication from the standpoint of material safety data sheets. I was involved in industrial hygieneauditing of plants. I have been involved in supporting other groups, whether it be industrial hygiene or safety. And from time to time I would also provide some technical support to our legal staff if there were questions regarding questions on various processes at Monsanto or that currently existed or the various products that were REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014119 14 1 2 Q. 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 Q. 16 17 18 19 20 2 1 A. 22 23 manufactured. I see. And this was from 1991 forward to the present time? 1991 until the present time. And up until the split -- Actually between 1980 -- Between 1991 and when we split in -- I believe it was 1997, when we had the split from Monsanto to Solutia. At that time my title was manager of environmental and technical support. And currently my title is manager of environmental affairs, I think only because I'm still in kind of our environmental affairs group. But you do the same thing. They just changed -- They changed the letterhead on the stationery, and they changed the sign out in front of the building. But the fact is you continued to do the same thing? From one day to the next day there was really not any difference other than who was signing the paycheck. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014120 15 1 2 3 4 5 6 7 8Q 9 10 11 12 A 13 Q 14 15 16 17 18 A 19 Q 20 A 21 22 23 When was the first time that you had any contact or business dealings with the PCB problem in Anniston? The first time that I was involved -- and it was only a very limited one-day trip or maybe a two-day trip -- was in November of 1995. Okay. Before November of 1995 had you ever dealt with PCB discharges or spills or problems for either Monsanto or Solutia anywhere? No . And had you done any study of PCBs, the ics of them or the health or the environmental implications or anything like that prior to November of '95? No . So - And I guess to -- Again, to straighten the record from what I just said, other than, as I mentioned earlier between -- or in the 1970s and -- probably up until REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014121 16 1 2 3 4 5 6 Q. 7 8 9 1 0 A. 1 1 Q. 12 1 3 A. 14 15 16 17 18 19 20 21 22 2 3 Q. -- well, 1971 until 1978 when I was involved as a field industrial hygienist I would from time to time go out to the various plants. So I have been through a PCB manufacturing facility. Right. But as far as any problems or anything like that at the Anniston plant, you didn't even know they existed? Absolutely, correct. All right. So we come to November 1995. Why did Monsanto send you to Anniston? I think -- It is my understanding the reason was -- is that they may need -- They felt they might need some additional support in the overall remediation project. They really didn't know. But they did know that I had had a long experience with Monsanto facilities and just asked me to come to the Anniston plant and meet some of the people. Okay. At that time were you informed REGIONAL REPORTING SERVICE, INC. H^p^LD^,QN0014122 17 1 2 3 4 5 6 7 8 9 10 A. 1 1 Q. 12 13 14 1 5 A. 16 17 18 19 20 21 2 2 Q. 23 that Monsanto -- that Monsanto's -- Let me restate that. Mr. Eley, when you went to Anniston in November of '95 or when you were preparing to go, did anybody at Monsanto tell you that Monsanto had had a history of PCB discharges into the environment surrounding the plant for at least twenty-five years? No . Did they tell you -- What was your impression as to why there was a remediation? What did they tell you about it ? Well, at that point in time, I believe, it is my understanding there was a very active sampling program I believe underway on the east side of the plant. And I believe that they were also doing some remediation work at a west end or west side landfill. Why did they do that? Did they tell you what -- why they were doing this REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014123 1 2 A. 3 Q. 4 5 6 7 8 A. 9 10 11 12 13 1 4 Q. 15 16 17 A. 1 8 Q. 19 20 21 22 2 3 A. remediation? I don't believe so. Okay. All you knew was that there was apparently some PCB waste or residues in the property, on the ground there within the plant site? Is that all they told you? I think the only thing that I became aware of is that there were landfills, a south landfill that included I guess a number of different cells, and there was a landfill on the west side of the pi ant. Okay. And nobody at that time told you that the PCBs -- that Monsanto knew that the PCBs were off the property? No . Okay. When did you learn that PCBs had escaped from the plant site and were in the surrounding environment? When did you first hear that? MR. PRATER: Object to form. I may have -- Well, now that I think REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014124 19 1 2 3 4 5 6 7 8 Q. 9 A. 10 11 12 13 14 15 16 17 18 19 20 21 2 2 Q. 23 about it, when you say on-site, off-site, as I recall, in November of 1995 when I came to the plant, again, for two days I believe it was, I was aware that there was sampling that was occurring on the east side of Monsanto property. On property owned by -- And I'm not sure whether this was property that was owned by Monsanto, even though when you look at the property east of Monsanto and north of Highway 202 there -- I don't know how many acres there are in that particular area, but there are sections or parcels of that that is owned by Monsanto. Whether that monitoring had been done just on Monsanto parcels or in other areas along that ditch system. I'm not quite sure at that particular point in time. So that wasn't brought to your attention one way or the other at the time. You REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014125 20 1 2 3 4 5 A. 6 Q. 7 8 9 10 11 12 13 A. 14 15 16 Q. 17 18 19 A. 2 0 Q2 1 A. 22 23 knew there was some sampling going on over there, but it was not -- You don't recall whether anybody told you whether it was on-site or off-site at the time? No, no. When is the first time, then -- which I think was my original question -- that you learned thatthere indeed had been PCB escaping from the plant site property, from Monsanto's property, into the environment? MR. PRATER: Objection. I believe I became much more aware of those Darticul a. r issues in and around Marc h of 1996. Okay . Between November of '95 and March of '96 did you have anything else to do with the Anniston plant? No . So in March of '96 what happened? In March of 1996 -- Well, Monsanto at the time -- And I may actually go back and forth between Monsanto and Solutia REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014126 21 1 2 3 4 5 6 7 8 9 10 1 1 Q. 12 13 1 4 A. 1 5 Q. 16 17 18 1 9 A. 2 0 Q. 21 22 2 3 A. on some of these dates, but at that time it would have been Monsanto. Monsanto had entered into a consent order with the State of Alabama, the Alabama Department of Environmental Management. And as a part of that consent order there was requested for Monsanto to conduct very expansive soil -- PCB and soil monitoring program in various off-site areas. Okay. And that occurred sometime between November of *95 and March of '96 to your recollection? That's correct. And you had nothing to do with the negotiation with the Department of Environmental Management to arrive at this consent order, didyou? None whatsoever. The first thing you knew, there was a consent order, and you were requested to help implement it? Correct. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014127 22 1 Q. 2 3 A. 4 Q. 5 A. 6 7 8 9 10 11 1 2 Q. 13 14 15 16 17 18 19 2 0 A. 21 22 23 So in March of '96 you went back to Anniston? Went back to Anniston. And what was your job? My job specifically was a fairly narrow role. That is to implement, coordinate the off-site soil sampling that was required under that consent order in, I believe, four specific areas. And I think those areas were like area A, B, C, and D. Okay. Did you have anything to do with -- Did you make any sort of qualitative judgments as to where the soil sampling ought to take place, or was this just set out for you by others, that you are to sample here, get so many samples in such a way and take them in areas A, B, C, and D? I think generally the procedures were laid out. Most of those types of decisions on actually physically how to take the samples and all of that was REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014128 23 1 2 3 Q. 4 5 6 7 A. 8 Q. 9 10 11 A. 12 Q 13 A. 1 4 Q. 15 1 6 A. 17 18 19 20 21 2 2 Q. 23 done by consultants that Monsanto used for -- in that endeavor. Okay. What specifically did you -- The consent order I suppose set out -- gave a road map of things that had to be done; is that correct? That's correct. Then you had consultants, independent people, environmental people who actually did the sampling -- That ' s correct. -- did the work? That ' s correct . So tell me precisely, then, what was your role? I was the Monsanto representative that would go out and gain access for Monsanto people like myself or contractors to go on-site and actually take the samples at the various properties within these areas. Okay. And how long did that happen -- take place ? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014129 24 1 A. 2 3 4 Q. 5 6 A. 7 Q. 8 9 10 11 1 2 A. 1 3 Q. 14 15 16 1 7 A. 1 8 Q. 19 2 0 A. 21 22 23 The off-site samplings, it seems like it went on for months and months. I'm not quite sure. Were you able to get the samples that were required by the plan? I believe so, yes. Let me back up just a little bit. The notice of deposition requested that you bring certain documents to this deposition today. Are you aware of that? Yes. Do you -- We have already discussed this with your lawyer, and I think I know what your answer is. Do you have any of those documents with you? No, I do not . Why did you not bring any of these docume nt s ? I think, as we discussed, any of the documents that would be relevant there are Solutia documents or Monsanto documents that have been submitted REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014130 25 1 2 3 Q. 4 5 6 7 A. 8 Q. 9 10 1 1 A. 12 13 14 15 1 6 Q. 1 7 A. 1 8 Q. 19 2 0 A. 21 22 2 3 Q. either to the state or in this particular litigation. Do you know of any documents or notes or memoranda that were made regarding discussions with or interviews of any of the named plaintiffs in this case? No . Do you know whether or not you had any discussions with any of the plaintiffs in this case? I'm not sure of all the plaintiffs in this case. But there are a couple of individuals that I believe are plaintiffs that I had met and had brief discussions with. What are their names? One lady was Louise Kirkland. Okay. And what is the other person's name? His name is Mr. McFarland, who had a -- His residence was own Bancroft. And I cannot remember his first name. But Mr. McFarland, anyway? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014131 26 1 A. 2 Q. 3 A. 4 5 6 Q. 7 8 9 10 11 12 13 14 15 16 1 7 Q. 18 1 9 A. 20 21 22 2 3 Q. McFarland. Anybody else that you can recall? I believe that there is a Mr. Hobbs, and I think his name is James or Jim Hobbs. I had met Mr. Hobbs. Okay . MR. PRATER: Don, I think any such contacts were inadvertent, and I think Donald Stewart has worked with them or worked those issues out at the time. MR. BARRETT: That's not a problem. I'm not going there. MR. PRATER: Okay. Who else besides Mr. Hobbs that you can recall? There was a lady that I met, just had a brief conversation with, and that was -- I think her name was Cathy Shears, S-h-e-a-r-s . Okay. We have Ms. Kirkland, REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014132 27 1 2 3 A. 4 5 6 Q. 7 8 A. 9 1 0 Q. 11 12 13 1 4 A. 15 16 17 18 19 20 21 22 23 Mr. McFarland, Mr. Hobbs, and Ms. Shears. Who else? I have talked over the phone with Ms. McCord. Ms. McCord owns the McCord Grocery Store on Clydesdale. Okay. And who else have you -- Anybody else on the telephone? I think that's the extent. I think that's the extent of it. Okay. Let's go back then. First, I want to know what Ms. Kirkland, Louise Kirkland, told you. Tell us about your conversation with her. Okay. Ms. Kirkland lives on Pine Grove Road or Pine Grove Avenue. And that is in the area where we were to identify the residents and occupants and gain permission to sample in theiryard. I had at that particular point in time contacted everyone on Pine Grove except the -- Ms. Kirkland, where she lived. It seemed like no one was ever home. Late one afternoon I happened to REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014133 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 9 Q. 20 21 A. 22 2 3 Q. see a car there, so I stopped and went in and met Louise Kirkland and did not ask her, as I should have, whether she was represented in the case, and briefly discussed with her the soil sampling that Monsanto was doing in the area at the request of the Alabama Department of Environmental Management and asked her permission to take soil samples. These were surface samples in her yard. And she said fine and gave me written permission to take those samples. We did then take those samples and have those analyzed. And it was only after I had that discussion with her did I learn that in fact she was a plaintiff in this case. Was that the sole extent of your conversation? That was the sole extent of the conversation. By the way, do you remember what those REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014134 29 1 2 A. 3 4 5 6 7 Q. 8 A. 9 Q. 10 11 1 2 A. 13 14 15 16 17 18 19 20 21 22 23 results were? The results in both cases, one sample in the front yard and one sample in the back yard, were less than five as per the immunoassay screening techniquethat our consultants were using. Less than five what? Less than five PPM. Excuse me. You mean you had a sampling technique that the detection limit was five parts per mi11ion ? On the screening, on the immunoassay screening -- And I don't know all the technicalities of this particular procedure. But we used a procedure, and this was a similar procedure that I believe had been used by both the Alabama Department of Public Health and ADEM in their sampling. This was a screening at five PPM. Now, if the result comes back and it says less than the screening level of five, it has been our experience that that does not mean REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014135 30 1 2 3 4 Q. 5 A. 6 7 8 9 10 11 12 1 3 Q. 14 A. 1 5 Q. 1 6 A. 17 18 19 20 21 22 23 that it is perhaps four point nine. We just can't tell. We just know it is less than five PPM. Could be four point nine? Could be. But our experience would indicate it is a fairly conservative method. And generally when we screen at less than five, it has been our experience -- again, not in every case, but it has been our experience that we were generally less than three or something of that sort. Okay. And that's it with Ms. Kirkland? Correct. What about Mr. McFarland on Bancroft? Mr. McFarland lived in one of the areas in which we were doing soil sampling. So I approached Mr. McFarland along with his -- also I think at the time he lived next door to his grandfather, and then his brother lived in an adjacent property. And I discussed our soil sampling program and gained his REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014136 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 Q. 1 6 A. 1 7 Q. 1 8 A. 19 20 2 1 Q. 2 2 A. 23 permission to conduct sampling on his property. So that was a fairly brief conversation. I saw Mr. McFarland some months later when -- at that time the residential purchase property program had been expanded to include not only the east side area but also a north side area, encompassing his property. And I went over there and met with Mr. McFarland with a lady from -- who was coordinating that purchase property program from Prudential Relocation S e rvic e s . Who was working for y'all? Working as a consultant for Monsanto. Okay. And I accompanied her over there to make the offer on -- to Mr. McFarland on his property. And how did that conversation go? I guess the conversation -- Well, I don't know. What do you mean, how did REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014137 32 1 2 3 Q. 4 5 A. 6 7 8 9 10 11 12 13 14 15 1 6 Q. 1 7 A. 18 19 20 21 22 2 3 Q. it go? I mean, the conversation went well. I'm sorry. What did he say, and what did you say? Oh, I don't think I was really a part of that conversation. I accompanied the consultant over there only because I was familiar with the area and knew the people. The offer went forth in writing to Mr. McFarland. And as I recall, he looked at the offer and looked at the information there and seemed like he was quite pleased with that offer and felt that was certainly a reasonable offer for his property. Did he take the offer? I guess it was sometime subsequent to that meeting did we find out that Mr. McFarland had joined as a plaintiff in the litigation, and so I think all contact, to the best of my knowledge, was broken off at that time. So in fact he did not ever accept the REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014138 33 1 2 A. 3 4 Q. 5 6 A. 7 Q. 8 A. 9 Q. 10 11 12 A. 13 14 15 16 17 18 1 9 Q. 2 0 A. 21 22 23 offer and consummate the purchase? That's correct. That's my understanding. Okay. What was the offer for his property ? I'm af raid I don't know. Okay . Do you have any idea? I have n o idea. Okay . What was the range of offers for residential properties that Monsanto was making? Under those residential purchase property programs, I have seen numbers, but it would be speculation to even give you a range. I just was not that actively involved in the appraisal process or drafting those offers or anything of that sort. Okay. Who was in charge of that? The lady from Prudential Services at that particular point in time that was working directly with the property owners was Sherry Wartell. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014139 34 1 Q. 2 A. 3 Q 4 5 6 A. 7 8 9 Q. 10 A. 11 12 13 14 15 Q16 17 18 A. 1 9 Q. 20 21 22 A. 23 Where did Ms. Wartell live? Ms. Wartell lives in Houston, Texas. And who was she working for specifically in Anniston? Under whose supervision and operation was she working, yours? Well, they were consultants to Solutia. No. They certainly weren't working under my supervision at all. Whose supervision was she working under? I'm not -- I think it would have been at that particular point in time under the supervision of Alan Faust, who was our -- and continues to be our remediation project manager. Did you ever have any other conversation with Mr. McFarland of overhear any other conversation? No . The first one just being he granted you permission in some words, short words, said okay, fine? Yeah. It was written permission in all cases . REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014140 35 1Q 2 A. 3Q 4A 5 6 7 8 9 10 11 12 13 14 15 16 Q 17 A 18 19 20 21 22 23 But nothing beyond that? That's correct. Okay. What about Jim Hobbs? Mr. Hobbs is a property owner at the intersection -- This is commercial plot owner at the intersection of West Tenth Street and Duncan Avenue. Mr. Hobbs had contacted -- I don't know whether it was the plant manager. I think it may have been Alan Faust, inquiring on the PCB in soil monitoring that Monsanto had been doing and whether we would perform some sampling on his residential property. (Mr. Warran Lightfoot entered Okay . the deposition proceedings.) At that point in time that particular property served as his office, and also he leased that property to a gas cylinder supply company. As a result of that, I went over and talked with Mr. Hobbs, told him about the monitoring program that we had underway in the REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014141 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 Q. 17 18 1 9 A. 20 21 2 2 Q. 23 north side area. And when I say the north side area. I'm talking about the area really bounded by Duncan, West Tenth Street, and Clydesdale. And I talked about the PCB issue from the standpoint of the two drainage ditches and indicated to him that given where his property was located, that he was certainly out of the flooding of those particular drainage ditches but that we hadn't really taken, as I recall, samples right next to his property across the street and that we would do some sampling on his property, which we subsequently did. Okay. And was that --Did you ever have any further conversations with Mr. Hobbs about that ? After we conducted the soil sampling, I'm pretty sure that I had written him a letter indicating the sample results. Okay. And do you know what those -- Can you remember what those sample results REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014142 37 1 2 A. 3 4 5 6 7 8 Q. 9 10 1 1 A. 12 13 14 15 16 17 18 19 20 2 1 Q. 22 23 were? I think there were five or six samples taken. Again, those were screened at a level of five PPM, and all of those were less than the screening level used by, again, the air sampling -- the soil sampling consultants that we used. Do you know why you chose or why your consultants chose such a high detection 1imit ? I don't believe it was the consultants that chose those. It is my understanding that that was a part of that procedure and, again, a part of that consent order and the sampling procedure. And I think it originated back to the particular technique or methodology being used by the Alabama Department of Environmental Management and the Public Health Department. Did you ever have any further discussion with Mr. Hobbs? That is, did he ever say anything to you in any way? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014143 38 1 A. 2 Q. 3 4 A. 5 Q. 6 7 A. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 No, other than just thank you. Okay. Tell us about your conversation on the telephone with Cathy Shears. Well, Cathy Shears is the one -- You had a brief conversation and spoke to her, that's correct. Correct. I spoke with her. As a part of the off-site monitoring program, we were sampling properties immediately south and immediately north of -- or adjacent to West Tenth Street between Duncan and at that time Parkwin. And Ms. Shears, I believe, owned two properties, either one or two properties that were right along West Tenth Street. And so I went and talked with Ms. Shears about -- I'm not so sure that I even got into the discussion of sampling because I did ask her whether she was represented by counsel or involved in any litigations. At that point in time she said yes and I said, "Well, that being the case, then, we REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014144 39 1 2 3 4 5Q 6 7 8A 9 10 11 12 13 14 15 Q 16 17 A 18 Q 19 20 21 A 22 23 really can't discuss things any further." And so at that point in time the conversation was severed, and I left. So she didn't really -- She never said anything to you that had anything to do with this lawsuit specifically? No. The only thing that she happened to mention -- either she mentioned or someone there at that particular property mentioned was the odor evolving from the Monsanto facility back some years ago. They made some comment to that effect. Okay. I see. And no other conversation? No . Now, you had a telephone conversation with a Ms. McCord who owns a grocery store over on Clydesdale? Correct. It is my understanding that Ms. McCord had discussed with one of the other property owners along West Tenth REGIONAL REPORTING SERVICE, INC. HARTOLDMONO014145 40 1 2 3 4 5 6 7 8 9 10 11 Q. 1 2 A. 13 14 15 16 17 18 19 20 21 22 23 Street on what Monsanto's intent was in terms of purchasing additional properties north of West Tenth Street. And the person that she talked with evidently had -- I had met sometime or she had my name. And so Ms. McCord called me over at the plant. I was not at the plant at that time. My office was in St. Louis. But they contacted me, and I called Ms. McCord. Okay. And I told her at that point in time to the best of my knowledge, no, we had no plans of purchasing property in that particular area. And as I gather from that telephone conversation -- and I believe this was the individual that brought up the point that she was looking at doing some modernization or improvements on that particular structure and that she just had a general inquiry and wanted to know what our intention was before she made REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014146 41 1 2 Q. 3 A. 4 5 6 7 8 9 1 0 Q. 11 12 1 3 A. 14 Q. 1 5 A. 16 17 18 19 20 21 22 23 further improvements in the property. And what did you tell her? I told her at that particular point in time to the best of my knowledge we do not have any plans of purchasing any properties in that particular area and that it was my idea that, if she cared, to proceed with what improvements she had pianned. Okay. How long did your soil sampling in areas A through D last there? How long were you in Anniston? Well, I'm still in Anniston -- Okay. -- working on other types of projects. I can't recall. The only way I could answer that is to know when the final report was submitted to the Alabama Department of Environmental Management that summarized all of the off-site sampling done in areas A, B, C, and D and expanded into another area that we called E. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014147 42 1 Q. 2 A. 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 Q. 17 18 19 2 0 A. 21 22 23 Where wa s E ? E was an area that covered the west -- the area along West Tenth Street and extending over to Parkwin. The original area -- And I don't know if it was area D or which particular area it was. But theway it was drawn or demarcated by the Alabama Department of Public Health -- because I think they are the people that actually drew the maps. That is my understanding -- that area only went east to a point directly behind what was the Lambert Recycling center, about midway between Parkwin Avenue and Clydesdale. Okay. Let me ask you. Did you find, in your sampling, samples in area A that exceeded the five parts per million detection limit of PCBs? I would have to -- And you may have a little bit better idea at this junction of what area A was. At one time, yes, you know, the A, B, C, and D, but it REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014148 43 1 2 3 4 5 6 7 8 9 10 11 12 Q. 13 14 15 16 17 18 A. 1 9 Q. 20 2 1 A. 22 23 really got to the point where we had the four areas: one area being on or along Zinn Parkway; another area being west of our facility, along First Avenue; another area, the north side area over there along West Tenth and West Ninth Street; and the other area over there by the First Missionary Baptist Church and Pine Grove area. So that is the way -- And if you ask me right now which was A, B, C, and D, I can't tell you. That is difficult for you. Let me ask you. Did you find -- Were there samples taken in areas A, B, C, or D that had -- where PCBs were found above the detection limit set of five parts per million? Yes. Were they found -- how many of those samples did you find? What we would normally do, just to clear this up a little bit, is we would take the soil samples, not myself, but the REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014149 44 1 2 3 4 5 6 7 8 9 Q. 1 0 A. 11 12 1 3 Q. 14 A. 15 16 17 18 19 20 21 22 23 consultants would take the soil samples. They would screen those samples, and then any samples that resulted in a screening level greater than five, using their technique, would then be sent to an outside laboratory for analysis, that analysis being more sophisticated, using GC and electronic capture detection. Right. And then we would then get back analytical results on those particular samp1e s . Right . It is very difficult and I'm not so sure that I can give you a fair representation of -- If you looked at the total number of samples that were taken in all of these areas, I'm not so sure I could really do justice in telling you what percent or how many of those were above the screening level of five. There were -- and it depended upon what particular area. In some REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014150 45 1 2 3 4 5 6 7 8 Q. 9 1 0 A. 11 1 2 Q. 13 14 15 16 17 1 8 A. 19 20 21 22 Q. 23 areas, very few. In another area, particularly I guess over there between -- in or around the Lambert Recycling and right behind there, where you have the drainage ditch, there were I believe a high percentage of those that were above the screening level of five. What is the highest level that you remember ? In that particular area around that drainage ditch? Anywhere in areas A, B, C, or D. MR . LIGHTFOOT: Six. THE WITNESS: Excuse me MR . LIGHTFOOT: Trying to harass Mr. Barrett down there. Go ahead. In A, B, C, or D, as I recall, the highest that I can recall in A, B, C, or D was on the order of three hundred and fifty parts per million. Okay. MR. PRATER: Don, you are making a REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014151 46 1 2 3 4 5 6 Q. 7 8 9 10 1 1 A. 12 13 14 15 16 1 7 Q. 18 19 2 0 A. 21 22 2 3 Q. lot of progress and moving fine. But can we take a short break? MR. BARRETT: Sure. (A break was taken.) Mr. Eley, after you got through testing these areas you testified about, have you done anything further for Monsanto in connection with their PCB problem in Anniston? I've had a number of projects after that. The ones that come to mind is a part of the residential purchase property program on the east and north side after we acquired a number of those structures. Why did you buy those structures? Why did Monsanto want to acquire those houses? I really wasn't involved in the implementation or design of that purchase property program. But somebody is bound to have told you. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014152 47 1 2 A. 3 4 5 6 7 8 9 10 11 12 Q. 1 3 A. 14 15 16 17 18 19 20 21 2 2 Q. 23 You had to know. I don't think anyone ever sat me down and said this is why we are doing this. I mean, I did know that there is a large acreage on the east side and the north side that were adjacent to the two ditches, that we needed to acquire those properties just to put in an engineering remediation, which we have essentially done. But I was not involved in those type of discussions. I see . In order to prepare those areas such that we could perform the construction necessary for the remediation, we demolished approximately fifty structures at one time and then came back some months later and demolished six or seven structures. And I coordinated the demolition of those particular structures. Okay. And this was -- The acquisitions were made because of the PCB problem in REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014153 48 1 2 3 A. 4 5 6 7 8 9 Q. 10 11 1 2 A. 13 14 15 1 6 Q. 17 1 8 A. 19 20 21 2 2 Q. 23 the area; is that a fair statement? MR. PRATER: Object to the form. 'Well, it is my understanding that the acquisitions of both those purchase property programs certainly originated with the issue of PCBs associated with those two drainage systems on the east and west side of the plant. Okay. All right. How long did the purchase of these properties take? How many months was involved in that? I think that that purchase property program was well over a year, but, again, I'm not sure exactly at what time it started and when it stopped. Okay. And you bought some sixty-five properties? I'm not sure all total how many properties. A number of these properties were only empty lots, so I'm not sure what the final count was. And what was the price range for these purchases? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014154 49 1 A. 2 3 4 Q. 5 6 7 A. 8 9 10 11 1 2 Q. 1 3 A. 14 15 16 1 7 Q. 18 19 2 0 A. 2 1 Q22 23 I have no idea on the price range. From time to time I would hear a price, but I just don't recall that information. You don't have any idea? You were the coordinator, and you don't have any idea? No. I didn't have any -- From the standpoint of the actual residential purchase property program, I didn't coordinate that. That had begun before I even came on-site. What did you do? I wasn't involved in that aspect of the program. What I was talking about was demolishing the houses after they had been purchased by Monsanto. Okay. During the course of that program did you have any conversations with any of the plaintiffs in this case? I don't believe so. All right. Did you learn anything about this case that's relevant to this lawsuit that you know anything about? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014155 50 1 2 A. 3 Q. 4 5 A. 6 7 8 9 10 11 12 13 1 4 Q. 15 1 6 A. 17 18 19 20 21 22 23 MR. PRATER: Object to form. No . What about after that? What have you done ? I think prior to the demolition project I was also involved in a program of temporary relocation and housec1eaning for occupants in the east side area that had not moved or were selling properties and yet it would take sometime for them to close on other properties. And we had a program which we offered that involved cleaning their house. Why on earth would Monsanto clean somebody's house? Again, I think this was -- I don't think this was a part of the consent order, but I think -- I don't know whether it was an addendum to that consent order. But that was something that was reviewed, commented on, and approved between Solutia and the Alabama Department of Public Health and ADEM. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014156 51 1 Q 2 A. 3 Q. 4 5 6 A. 7 Q. 8 9 10 11 1 2 A. 13 14 15 16 17 1 8 Q. 19 20 2 1 A. 22 23 Do you know why? No . You never heard it was because there were PCBs in the dust that was settling in these people' s home s ? No . Did you have an opinion at the time that these homes were being cleaned because of some problem with PCBs in the dust or not? MR. PRATER: Object to the form. I think I had an opinion at the time that the housec1eaning was being offered to people because of a concern that those individuals may have regarding possible contamination with dust containing PCBs. But you yourself were never told of any actual findings of PCBs in the dust that was made by anybody; is that correct? As I recall, I think I had seen some information, and I think this was information that derived from the REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014157 52 1 2 3 4 Q. 5 A. 6 Q. 7 8 9 A. 1 0 Q. 1 1 A. 12 13 14 15 16 1 7 Q. 18 1 9 A. 20 21 22 23 Alabama Department of Public Health or ADEM on some levels of PCB in dust in samples they collected. So the answer is yes? Yes. When you were sampling areas A, B, C, and D, doing soil sampling, did you do any dust sampling? No . Why not? Again, we had aparticular procedure that was approved as part of that off-site sampling, and that procedure as I understand dealt solely with the issue of taking soil samples in off-site areas. Okay. What else have you done on behalf of Monsanto or Solutia in Anniston? For severalmonths I wasinvolved in working with a committee set up at the Bethel Missionary Baptist Church, I think -- I call it the relocation committee -- on acquiring new REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014158 53 1 2 3 4 5 6 7 8 Q. 9 A. 10 11 12 1 3 Q. 14 15 16 1 7 A. 18 19 20 21 22 23 furnishings and equipment for the church that was subsequently built at their new location. And I don't recall exactly what the address was. But for a period of several months I worked directly with the church committee in acquiring what furnishings and equipment they needed. Did you buy them a van? I wasn't involved in the purchase of the van. MR. BARRETT: Off the record. (Discussion held off record.) During those months did you have any other job at Monsanto or Solutia other than the work with this committee at the church to buy them -- Well, that was one of the particular projects, and I'm not sure exactly when that time was. But in addition to that there were times that I was actively involved in purchasing some commercial properties that the remediation project management felt they needed in order to REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014159 54 1 2 3 Q. 4 5 A. 6 7 Q. 8 9 A. 10 11 12 13 14 15 16 17 18 19 2 0 Q. 21 22 23 perform the engineering work and construction work. I see. In connection with the cleanup of the PCBs? Correct. The remediation on, again, the east side and north side areas. All right. And what else have you done there in Anniston? At one time we were using a borrow pit on Monsanto property south of Highway 202. And prior to going in there and using that soil, part of that borrow pit, I was asked to go meet with the local residents on Monsanto Drive near there just to make them aware of what kind of activities we were going to be starting such that when they heard heavy equipment and bulldozers or whatever, they knew what we were doing. Okay. In the course of doing that did you have any discussions with any of the named plaintiffs in this case to your knowledge ? REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014160 55 1 A. 2 Q. 3 4 5 6 A. 7 Q. 8 9 A. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I don't believe so, no. Have you ever had, other than these discussions you have already testified to, any discussions with any of the named plaintiffs in this case? I don't believe I have, no. All right. And what else have you done for Monsanto? Sometime in 19 -- 1998, toward the latter part of the year, Solutia was requested by the Alabama Department of Environmental Management to do surveys along Snow Creek where there were possible dredging piles located, dredging materials that had been dredged by the city or whomever over the last number of years. In order for us to do those surveys, we needed to gain permission from property owners. So again, I determined who property owners were along Snow Creek in certain areas where we thought there may be debris piles -- not debris piles, but dredging REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014161 56 1 2 3 4 Q. 5 6 7 A. 8 Q. 9 A. 1 0 Q. 1 1 A. 12 13 14 15 16 17 18 19 20 2 1 Q22 23 piles, and contacted those property owners for one of our consultants, a hydrologist, to do an on-site survey. And were those surveys accomplished with the way Monsanto or Solutia wanted them to be accomplished? To the best of my knowledge, yes. Did they take soilsamples? No . What did they do? It was a visual on-site survey where there were certain parameters, certain criteria that were noted by the hydrologist from the standpoint of existence of possible debris material, where the debris material was situated, what was the extent of vegetation, what was the slope angles, what was the length, width, this type of preliminary data. While you were there, why didn't you take a PCB sample? Isn't that what you were looking for, whether or not there REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014162 57 1 2 3 A. 4 5 6 7 8 9 10 11 12 13 1 4 Q. 15 16 17 1 8 A. 19 20 2 1 Q. 2 2 A. 2 3 Q. is PCB along Snow Creek? MR. PRATER: Object to form. Again, I'm not sure exactly how those surveys were initiated. The only thing I was asked to do is getpermission from the property owners for an individual to go on-site, if they could go on-site, because some of those areaswere fairly difficult to get to, and collect this kind of data. Again, the request came from ADEM. So other than that, I was not aware of what would be happening with that data. Okay. So to your knowledge, do you know of any sampling, PCB sampling, that has been done of sediments or dredged materials either in or along Snow Creek? It is my understanding that in the past there may have been some soil samples of sediment taken, but I don't recall -- Anything about it? -- seeing that. And did you accompany the hydrologist REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014163 58 1 2 3 A. 4 Q. 5 6 A. 7 8 9 10 11 12 13 14 15 16 1 7 Q. 18 19 20 2 1 A. 22 23 consultant who went down and took these measurements along Snow Creek? No . Did you read his report, or did you talk to him about what he found? I read a section of his report only to see what kind of data and in what form was submitted to ADEM, principally because there was one of the property owners that requested that any data that was sent to ADEM be sent to him. And so I had to determine, well, when do we send data and what data was sent that pertained to this property owner's property such that I could then send him the information, which I did. Did -- do you know whether or not the hydrologist discovered that there were dredge materials along the bank of Snow Creek? It is my understanding there were materials that looked like they came from dredging in the past. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014164 59 1 Q. 2 3 4 A. 5 6 7 Q. 8 A. 9 10 Q. 1 1 A. 12 13 14 15 16 17 18 19 2 0 Q. 21 2 2 A. 23 I see. What other jobs have you performed for Monsanto or Solutia in Annist on ? I've been involved in what we call spot remediations on some of the off-site areas. Tell us what that is. That would be where we sampled, for example, a property on Zinn Parkway. Okay. And the results of that soil sampling indicated that levels were higher than the screening level, and that had been confirmed by analytical result. In that case we would look at where those - - look at that property and look at where those -- the extent of that impacted area and then go in and essentially remove that soil. Okay. And how would you know what the impacted area was or is? Through additional soil sampling taken in a grid-like pattern around that area. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014165 60 1 Q. 2 3 4 5 6 7 8 9 10 1 1 A. 12 13 14 15 16 17 18 19 2 0 Q. 2 1 A. 22 23 I see. So you would find -- you occasionally found hot spots of PCBs in your sampling? MR. PRATER: Object to form. Yeah. We would find levels that would be in excess of five PPM . Okay . And you felt it necessary t o carry that material away ? What did you do with it ? MR. PRATER: Object to the form. Well, when we originally went out, I think it was really a commitment we made with the property owners that if we found levels in excess, that we would determine how best to remove that or remediate that. In most cases it would be either using a combination of back-hoe or track-hoe. Generally that would be the two we would use. Take it out of there and get rid of it? We would take it out of there, and then we had a procedure that had been written up and reviewed, commented on and REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014166 61 1 2 3 4 5 6 Q. 7 8 9 10 11 12 A. 13 14 1 5 Q16 17 18 19 A. 2 0 Q. 21 22 23 A. approved by, I believe it was, the ADEM people. And the procedure called for the movement of that material over to a fenced restricted area on Monsanto pr operty. What sort of relationship -- Youtalked several times about the various agreements that have been made with ADEM. What sort of working relationship has Monsanto or Solutia had with ADEM from your observation? Well, I guess I would characterize the relationship as being a good one, a professional relationship. They have managed to -- I mean, have you gotten -- So far on every issue have you worked out an agreement with ADEM as to what needs to be done? I don't know. But you haven't, as I understand it, been privy to any of thosenegotiations yourself anyway? No, I have not . REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014167 62 1 Q. 2 3 4 Q. 5 A. 6 7 Q. 8 A. 9 10 11 12 13 14 15 16 17 1 8 Q. 19 20 21 2 2 A. 23 And what other activities have you undertaken for Monsanto or Solutia? MR. PRATER: Again in Anniston? In Anniston. I think I've covered just about all the ones I can think of. What are you doing now? Now I'm still involved in doing some of the spot remediations that I spoke about. I'm still involved in those. There are also several properties that Solutia is acquiring, so I'm just seeing where we are in terms of our -- those real estate transactions, of when they are going to close, whether the conditions have been met for closing of those transactions. How far away from the plant has Monsanto either bought property or negotiated to buy it, attempted to buy property in connection with this PCB problem? All the property I'm aware of has been restricted to the -- either adjacent to REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014168 63 1 2 3 4 5 6 7 8 9 10 1 1 Q. 12 13 14 1 5 A. 1 6 Q. 17 18 1 9 A. 20 21 22 23 or right in the area of the east side property and the north side property extending to West Tenth Street. The only other area that I'm aware of that we have purchased property more than, let's say, a couple of miles from the plant, was a parcel that has been used for many years, the borrow pit. And we have used it as a source of clay material. You said the only other place that we have bought property more than a couple of miles from the plant has been at this borrow pit. Right. Have you in fact bought property in connection with this PCB problem two miles from the plant? No, no. And perhaps it was terminology. I think all the property we have acquired has been adjacent to the plant or between an area bounded by Montrose Avenue, West Eleventh Street or the REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014169 64 1 2 3 4 5 Q. 6 7 8 9 A. 1 0 Q. 11 12 13 14 15 16 17 1 8 A. 19 Q. 20 A. 2 1 Q. 22 23 railroad tracks that adjoin West Eleventh Street, and Bancroft Avenue south of West Ninth Street. I just don't know what the distances there are. Okay. How long have you known that you were listed as a potential fact witness on behalf of Monsanto for this trial that we are here about today? Last Wednesday. Okay. And have you had any discussions with the attorneys representing Monsanto prior to last Wednesday? MR. PRATER: Object to the form. I trust you are not going to get into privileged issues. MR. BARRETT: I don't know. We will see. You mean concerning this case? Yes. No . So last Wednesday, then, would have been the first conversation you had with the attorneys concerning this case, or did REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014170 65 1 2 A. 3 4 Q. 5 A. 6 Q. 7 8 9 1 0 A. 1 1 Q. 12 1 3 A. 14 1 5 Q. 16 17 18 19 20 2 1 Q. 22 23 you have a conversation last Wednesday? I had a conversation last Wednesday saying to come to Birmingham -- Okay. -- this week. Okay. When was the first time that you have talked to Mr. Prater or Mr. Lightfoot or to any other attorneys representing Monsanto about this case? Yesterday. Okay. And how long a conversation was that ? I think it was on the order of forty-five minutes. Okay. And what did -- Tell us about that conversation. What did they ask y ou ? MR. LIGHTFOOT: Objection. Don't answer that. That is privileged. What did you tell them about this case? MR. PRATER: Same objection. MR. LIGHTFOOT: Don't answer. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014171 66 1 2 3 4 Q. 5 6 7 8 9 Q. 1 0 A. 1 1 Q. 12 13 14 15 16 17 1 8 A. 19 20 2 1 A. 22 23 That is privileged. He is testing to see if we are awake. We are awake. Did you -- Have you talked with your attorneys about any other areas than we have discussed today? MR. LIGHTFOOT: Objection. Don't answer. That is privileged. Are you going to declineto answer that? Yes. I will decline to answer that. Other than the forty-five minutes you talked to the lawyers, have you had any other conversation with them since then before this deposition began? You said last Wednesday you talked forty-five minutes with them. Have you had any other conversations since then? Well, I guess -- MR. PRATER: He and I met for a little while today. We met prior to us having lunch brought in for maybe at most twenty minutes, fifteen minutes or so. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014172 67 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 Q. 15 16 17 1 8 A. 1 9 Q. 20 21 22 23 MR. LIGHTFOOT: Bruce, you may not be able to follow when we let you answer and when we don't. He is entitled to ask you have you talked to us, where were you, how long was it, what day it was. But he is not allowed to get into the content of the discussion. That is where we draw the line. MR. PRATER: Off the record. (Discussion held off record.) Were you given any documents to review by your lawyers? MR. PRATER: Objection. answer. Don't I decline to answer. Have you reviewed any documents in connection with the preparation of your testimony? MR. LIGHTFOOT: Hang on one sec ond. REGIONAL REPORTING SERVICE, INC. H ARTOLDMONO014173 68 1 2 A. 3 Q. 4 5 6 A. 7 Q. 8 9 10 11 1 2 A. 13 14 1 5 Q. 1 6 A. 1 7 Q. 18 19 20 21 22 2 3 A. You can answer. Okay. Would you repeat that question? Have you reviewed any documents in connection with your preparation to take this deposition? In preparation, no. Have you reviewed any documents concerning this litigation at any time within the last -- since learning that you have been selected as a witness or named as a potential witness? No documents other than documents that I've looked at in conjunction with specific work requested by counsel. Within the last week? Correct. What documents have you looked at within the last week? MR. PRATER: Don't answer that if it was done at the request and direction of counsel. That is privileged. I decline to answer the question. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014174 69 1 Q. 2 3 4 A. 5 Q. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Haveyou reviewed any depositions in connection with your preparation for this deposition? No . Regardless of what source they came from -- I don't want to know who gave them to you or why or anything else -- tell me what documents you have reviewed in the last week concerning this case. MR. PRATER: I will allow him to answer that with respect to documents other than those that may have been provided to him by counsel that he reviewed at the request and direction of counsel, if there are any such documents. MR. BARRETT: I think y'all are on thin ice right now. I think you're wrong on that. MR . LIGHTFOOT: We are close. i--1 rH MR . BARRETT: I ask you to reconsider that. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014175 70 1 MR. LIGHTFOOT: Let's take a short 2 break on that. 3 (A break was taken.) 4 MR. LIGHTFOOT: I'll tell you the 5 way we come down on that, 6 Don. I think you are 7 entitled to know about -- the 8 identity of any documents 9 that we furnished to the 1 0 witness to prepare him to 11 testify. Whether it 1 2 refreshes his memory or not, 1 3 if it is to prepare for the 1 4 deposition, you are entitled 15 to know about it. We are 1 6 going to let him answer any 1 7 questions about those kinds 1 8 of documents. 1 9 What you are not 2 0 entitled to know about is a 2 1 separate project that 2 2 involves trial preparation. 2 3 It is not this witness's REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014176 71 1 2 3 4 5 6 7 8 9 10 11 12 1 3 Q. 14 15 A . 1 6 Q. 1 7 A. 18 19 20 21 2 2 Q. 2 3 A. testimony. It is help he is giving counsel on our work product. And we are going to shield that. We may be right or wrong, but -- You know, we don't ask you to agree with it. MR. PRATER: We didn't know how to articulate that in the objections we were making earlier. MR. BARRETT: That's fine. So you understand what you are going to be allowed to tell me? Yes. Tell me. What documents? It is my understanding I should speak to any documents which I have looked at and reviewed in preparation for my deposition today that deal with this particular case. That's correct. And the only document that I can recall REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014177 72 1 2 3 4 5 6 Q. 7 8 9 10 11 12 13 14 15 16 1 7 A. 18 19 20 2 1 Q. 2 2 A. 2 3 Q. looking at is a document that was authored by me that was an example of a communication to a property owner discussing the results of the soil sampling done on his premises. Okay. Is there any knowledge that you have about this case that we have not talked about so far today in this deposition? MR. LIGHTFOOT: Bruce, don't answer as it relates to any work product project you may have for the lawyers. That is a very broad question he is asking you now, is there anything that you know about. I guess I'm thinkingin terms of any specific projects or work that I have been involved in at Anniston on the whole issue of PCB remediation -- Right. -- that has notsurfaced today. Right. REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014178 73 1 A. 2 3 Q. 4 5 6 7 8 9 10 11 A. 12 13 14 15 16 17 18 19 20 21 22 23 And I cannot think I can't think of any, no. There is not any fact -- Or is there any fact that you know that concerns this Is there anything about this case that I have neglected to ask you or that you know about that you are prepared to testify about in this case? MR. PRATER: Object to form. No, I don't believe so. MR. BARRETT: Mr. Eley, I enjoyed visiting with you. THE WITNESS: I did too. (The deposition concluded at 3:00 p.m.) REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014179 74 1 I do hereby 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 1 0 and accurate transcript of the whole of the 1 1 testimony given by said witness, as aforesaid. 1 2 I do further certify that I am not 1 3 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 1 6 in the matter of controversy. 1 7 IN WITNESS WHEREOF, I have hereunto set 1 8 my hand and affixed my notarial seal at 1 9 Gadsden, Alabama, County of Etowah, this 18th 2 0 day of January 1999. 21 Deborah Salers Garrett 2 2 Certified Shorthand Reporter Registered Professional Reporter 23 Notary Public, Alabama-at-Large My Commission expires: 3-7-2001 REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014180 75 1 WITNESS' CERTIFICATE 2 I, the undersigned, BRUCE W. ELEY, do hereby certify that I have read the foregoing 3 deposition transcript and that to the best of my knowledge said deposition is true and 4 with the exception of the following listed below: 5 Page Line Reason for Change or Correction 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 (DATE) (SIGNATURE) REGIONAL REPORTING SERVICE, INC. HARTOLDMON0014181 %egionaC %ep orting S ervice, IncS$,\%ArfLi "V, ---- |Jr wj 755 Walnut Street Post Office Box 755 Gadsden, Alabama 35901-0755 January 18, 2000 Don Barrett, Esq., Esq. Richard Barrett, Esq. Katherine Barrett, Esq. Barrett Law Office, P. A. P. O. Box 987 Lexington, Mississippi 39095 In Re: Sabrina Abernathy, et al.. Vs. Monsanto Company, et al.. Dear Mr. Barrett: Enclosed is the original transcript and affidavit for the deposition of Bruce W. Eley, taken in the above-mentioned case. If you have any questions or if I can be of any further assistance, please do not hesitate to call on me. Thanks again so very much. Deborah Salers Garrett Court Reporter Enc. cc. Harlan Prater, IV, Esq. Telephone(205)543-9328 1-800-237-8432 Fax (205) 543-9332 HARTOLDMON0014182 %egionaC %eporting Service, Inc. 755 Walnut Street Post Office Box 755 Gadsden, Alabama 35901-0755 STATE OF ALABAMA IN THE CIRCUIT COURT OF CALHOUN COUNTY Sabrina Abernathy, et al.. Plaintiff, Monsanto Company, et al., Defendants, CIVIL ACTION CV-96-269 (Consolidated) AFFIDAVIT The undersigned affiant, being duly sworn, on oath says that the transcript of the foregoing deposition was made available for reading and signing by the deponent herein, said notification of availability having made via United States Mail and attorney's office on January 18, 1999. To this date the deponent has failed or refused to execute the foregoing__ deposition transcript, and the deposition of BRUCE W. ELEY taken in the above-styled cause was mailed via United States Mail to the attorney who took said deposition this the 18th day of January, 2000. Further Affiant Saith Not Subscribed and sworn to before me this My commission expires:______ M~G>I ~ Telephone(205)543-9328 nma 1-800-237-8432 Fax (205) 543-9332 HARTOLDMON0014183