Document YGDR7y5gGM77Nk16Oen5ko5ME

ProTEXT Transcript Condensing for Windows ____ SHEET 1 PAGE 1 _____________________________________________ ,___ PAGE 3 j/ll/02. (fcojfy eel) 21 This consultant that y'all had, it was 7703 22 23 a gentleman named Costello. THE COURT: Let me ask a guestion 031802B 7704 1 before we get started. 1 (Anniston, Alabama, March 19, 2002) 2 3 Dr. Kaley, can you tell me the date that the plaintiffs' 2 4 properties were contaminated? 5 THE WITNESS: Well, I -- not 3 (1:25.) 6 specifically, no, sir. 7 THE COURT: Okay. 4 (Jury is not present.) 8 THE WITNESS: I mean, I think it a would vary among the plaintiffs 5 (All parties are present.) 10 depending on the circumstances of 11 when PCB impacted materials 6 12 reached their properties but... 13 THE COURT: Is there a way that you 7 THE COURT: Back on the record. 14 15 can determine when the properties were contaminated? 8 Mr. Stewart, have you got 16 17 THE WITNESS: Not really, no. THE COURT: Okay. All right. Thank 18 you. Well, a couple of more ___ PAGE 2 9 any further questions? 10 MR. STEWART: Yes, sir, I do. 11 12 EXAMINATION RESUMED 13 14 15 BY MR. STEWART: 16 Q. I want to go back and ask you some specific 17 questions about this risk assessment that 18 y'all are to do under the work plan. But 19 before I do that, I want to ask you a 20 number of questions if I can. . PAGE 4 19 on 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 questions. Tff J~l XX LUC Jane Smith's property showed that Jane Smith's personal residence -- the property on her personal 031802B 7705 residence had a PCB level of 16.564 parts per million, in your opinion, would that need to be cleaned up or remediated? THE WITNESS: Well, under the terms of the consent order or the consent order we're working, yes it would be, because it's greater than ten parts per million. THE COURT: Okay. So anything greater than ten parts per million you agree needs to be -- THE WITNESS: Under the current - well, under the current consent order it would need to be remediated, yes. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066971 ,___ SHEET 2 PAGE 5 ProTEXT Transcript Condensing for Windows , ,_________________________________ PAGE 7 17 IS 19 Q. 20 21 A. 22 23 1 2 Q. 3 4 5 6 7 A. 8 Q. 9 10 A. 11 12 13 14 THE COURT: Okay. I think that's all. (By Mr. Stewart) What if you didn't have a consent order? Then I think we would eventually reach a cleanup level based on risk assessment that would determine what properties 031802B 7706 needed to be cleaned up or not. So if you didn't have a consent order telling you that you should clean something up if it was above ten, you wouldn't clean it up until you reached some kind of agreement with somebody? That's probably correct, yes, sir. Even if the property owners wanted you to clean it up? Well, I think it depends on the circumstances. Certainly there have been some properties in the Anniston area where we have cleaned up at levels that were below ten because the property owner did 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 o 10 before EPA stepped in with their CERCLA phase of the investigation or the remediation, that is the approach we were taking. THE COURT: Okay. Well, let me ask you then under the consent order is Solutia going to still contest whether or not -- let's just take Ms. Veuia Etoy House. Her property shows 16.564 parts per million. Is Solutia going to 031802B 7708 contest whether or not the PCBs on her property came from Solutia's plant? THE WITNESS: Under the terms of the consent order? THE COURT: Well, I don't know. Is her property contained under the consent order? Would the consent order cover her property? THE WITNESS: I don't know where her PAGE 6 15 want us to clean it up. So I think it -- in general it would depend on the 17 individual property owner and some of 18 their desires. 19 So you would just clean that up based on 20 whatever property owner you were dealing 21 with and how y'all felt about that given 22 particular property owner? 23 Well, I think it would depend on whether 031802B 7707 1 we were comfortable with the fact that the 2 PCBs on that property were associated with 3 our former manufacturing processes and 4 that if the position of the property in 5 the drainage pathways and potential other 6 routes for PCBs to that property. I think 7 there are a number of considerations. 8 THE COURT: Okay. Well, let me - 9 THE WITNESS: That was before EPA 10 go ahead. I'm sorry. 11 THE COURT: No. You go ahead. 12 THE WITNESS: I was going to say PAGE 8 11 13 14 15 16 17 18 19 20 21 22 23 property is and whether it's one Vk * ^ V *> + f U 4 ** /* LUC plUpClLACO LUQL 0 UCXUy sampled under the terms of the consent order. THE COURT: Okay. So - THE WITNESS: Certainly if it is and it has that level of property then, no, we are not going to contest it. THE COURT: Okay. Well - THE WITNESS: If it's outside that range then I think it's really yet to be determined based on 031802B 7709 investigation. THE COURT: What is the range or scope of the testing under the consent order? THE WITNESS: There are - at this point there are six areas under which Solutia is required to do testing to establish whether the You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066972 ___ SHEET 3 PAGE 9 ProTEXT Transcript Condensing for Windows ___ PAGE 11 9 properties there contain ten or 5 documents and they cover two 10 more parts per million. Those 6 separate things. 11 are - 7 THE COURT: Well, I thank you for 12 THE COURT; What areas? 8 clearing that up. I thought the 13 THE WITNESS: What areas are they? 9 consent decree and the consent 14 THE COURT: Yes. Tell me where 10 order were two different -- I 15 those six areas are. 11 mean, two -- the same thing. 16 THE WITNESS: They're largely 12 THE WITNESS: No. No, sir. 17 northwest and east of the plant 13 THE COURT: I didn't realize they 18 and then some down Snow Creek. 14 were two different things. 19 THE COURT: I mean, how far do they 15 THE WITNESS: Yes, sir. 20 go? Let me tell you, Ms. House's 16 THE COURT: Do you have a consent 21 property is located at 608 North 17 order? 22 Marshall Street. Do you know 18 THE WITNESS: We have a consent 23 where that is? 19 ' order. We do not have a consent 031802B 20 decree. 7710 21 THE COURT: What's the difference ? 1 THE WITNESS: I do not. 22 THE WITNESS: Well, a consent order 2 THE COURT: Does anybody have a map? 23 is the order under which we are 3 ' MR. COX: I can help. 031802B 4 THE COURT: Do we have a map of the 7712 5 six areas? 1 sampling and remediating 6 MR. STEWART: Judge, we would just 2 properties now that was PAGF. in 7 0u 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 prefer that the witness answer. 1 uiSau/ I fCHGW thlS 13 aft informal proceeding but I would prefer that the witness answer the question if he knows. THE COURT: Well, I would prefer to get an answer from somebody. So I would like to have a map that has those six areas on it if one exists. THE WITNESS: Well, it certainly exists. I don't know whether it's present in the courtroom. THE COURT: Okay. MR. STEWART: You mean, Dr. Kaley, y'all have a map here of the area that's going to be covered by 031802B 7711 this consent order? MR. COX: Objection. He's mixing consent order with consent decree and there's two different PAGF 17 3 4 5 6 7 8 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 originally signed in October of auU wad icv-idcu xu of 2001. THE COURT: Okay. And MR. STEWART: That's the administrative order. THE WITNESS: Administrative order on consent. THE COURT: And the consent decree is what you have now entered into with EPA? THE WITNESS: Well, as far as I know, we have not entered into it. We have negotiated an agreement and hope to enter into it. THE COURT: Okay. So the proposed consent decree? THE WITNESS: Yes. THE COURT: Now, do you have a map showing the six areas? And, again, I think I phrased my 031802B 7713 You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066973 ProTEXT Transcript Condensing for Windows ___ SHEET 4 PAGE 13 ____________________________________________ ___ PAGE 15 1 questions using the term "consent 22 THE COURT: Okay. 2 order." So the sis areas you're 23 THE WITNESS: As would all of the 3 speaking of, are they under the 031802B 4 consent order or the proposed 7715 5 consent decree? 1 activities that we're required to 6 THE WITNESS: They are under the 2 perform under the consent or the 7 administrative order on consent, 3 order on consent. That would 8 the AOC. 4 also -- that will become part of 9 THE COURT: Okay. Then I'm concerned 5 the consent decree. 10 about -- 6 THE COURT: Okay. Can you look on 11 THE WITNESS: The signed document. 7 the map that contains those sis 12 THE COURT: I'm concerned about the 8 areas -- Does this map contain 13 proposed consent decree. 9 those sis areas? 14 THE WITNESS: Okay. 10 MR. COX: This map contains the 15 THE COURT: Is there an area in the 11 outline of the sis areas. IS proposed consent decree which 12 THE COURT: Okay. Can you look on 17 Solutia is required to test? 13 that map and determine whether or 18 THE WITNESS: I don't know that 14 not 608 North Marshall Street is 19 there's -- it -- there is a 15 in any of those areas? 20 general definition. But my 16 THE WITNESS: If someone -- I don't 21 understanding -- and I could be 17 know Anniston well enough to know 22 wrong. But my understanding is 18 where Marshall Street is located. 23 that we would be required to test 19 Given enough time and someone who par;F. id i 2 3 4 5 5 7 8 910 11 12 13 14 15 16 17 IB 19 20 21 031802B 7714 to the satisfaction of the EPA that we have identified all of the PCB impacted properties in the Anniston area. THE COURT: Okay. Does the consent decree change anything that's already contained in the -- its administrative order of the Court? THE WITNESS: No. One of the terms of the consent decree is to roll this AOC into the consent decree. That was the intent from word go THE COURT: Okay. THE WITNESS: -- two and a half or a year and a half ago. THE COURT: So this - these sis areas under the order would be contained in the consent decree? THE WITNESS: Yes, sir. Yes, sir. PARF 1 fi 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 could point me to where Marshall Street is I could do that. THE COURT: Mr. Stewart, do you know where North Marshall Street is? 031B02B 7716 MR. STEWART: I have a clue where North Marshall Street. THE COURT: Okay. Could you assist Dr. Kaley -- MR. COX: It's actually on the -it's on the map, Your Honor. THE COURT: Okay. Is it -MR. COX: I don't know where 608 falls out on this map. But North Marshall is designated on the map and I assume that's the right position. THE COURT: Okay. Is it within any of the si:*: areas? THE WITNESS: May I? THE COURT: Certainly. [Whereupon the witness leaves You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066974 __ SHEET 5 PAGE 17 ProTEXT Transcript Condensing for Windows ___ PAGE 19 18 . 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 the witness stand.) THE WITNESS: My guess -- it would -- it's very close to the borderline. My guess would be that it is in one of the areas, yes. But it could be right on 031802B 7717 the borderline. (Whereupon the witness returns to the witness stand.) THE COURT: But that's only a guess? THE WITNESS: Well, because I don't bow unfortunately the 1098 avenues don't go far enough west. THE COURT: Right. MR. PECK: On the map. THE WITNESS: On the map. THE COURT: What about Ms. Wilson, Rosa Bell Marshall Wilson? Her property has 13.374 parts per million. She's located at 1116 West Sixteenth Street. Do you 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 decree will extend the area and EPA will, under the -- the guidelines they have established, require us to remediate at this point every property which has greater than ten. If it's, you know, if either they, we, they or we have data which indicate that that is an appropriate analysis of soil on that property. 031802B 7719 THE COURT: "They or we" I know who you are referring to - THE WITNESS: EPA's samples or Solutia's sampling. THE COURT: Okay. But you're not going to accept any of the plaintiffs' samples? THE WITNESS: Well, I believe the EPA has the plaintiffs' data and would use that as an indicator whether additional sampling might pagf. i ft 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 q 10 11 12 13 ___ PAGE 20 know whether or not that's in any c/a lhooc oia aicao. MR. STEWART: It's not. Judge, I don't think that's in that area. THE WITNESS: That one would appear to be -- based on my guess, Sixteenth Street is near the northern boundary of the most 031802B 771B northern area. THE COURT: Well, let's go back to Ms. House. You said that your best guess is that it is but. Let's assume that Ms. House is not living within the six areas under the order, is Solutia then going to contest that it has no duty to test Mrs. House's property? THE WITNESS: I don't believe that would be the case, no. As I said, I believe the consent 12 nA j 14 15 16 17 Q. 18 19 20 21 22 23 1 2 A. 3 4 5 Q. 6 7 8 A. 9 be necessary or not. That was wuc 'ulaa+u'oS aa mJsiaK areas were drawn, as I understand it. THE COURT: Okay. Mr. Stewart? (By Mr. Stewart) Really as a practical matter, what you all would do in connection with those two properties is because it's the plaintiffs' data you would insist on, and EPA would do it, a retesting of those properties. Which is what you've done in other instances, isn't 031802B 7720 it? We would retest those properties, yes. We retested some of the properties that EPA did. And y'all's testing techniques are such that you can find it or not find it, can't you, Dr. Kaley? Well, if it's there we'll find it. If it's not there we won't find it. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066975 ,___ SHEET 6 PAGE 21 ProTEXT Transcript Condensing for Windows PAGE 23 l 1 10 Q. 11 12 13 14 15 16 17 A. 18 19 20 A. 21 22 23 1 2 3 4 Q. 5 6 7 That's sort of like what Mr. Cunningham said, We'll just let the fox in the hen house and you all are out there checking to see whether or not there is PCBs on the property and to determine whether or not you should actually clean it up, isn't that correct? I don't know. MR. COX: Objection. Argumentative THE COURT: Overruled. I don't know what Mr. Cunningham was referring to. But in any case our laboratory's as are EPA laboratory's required to maintain rigorous records of 031802B 7721 their quality assurance to assure the quality of the data. So we have confidence in the data we are generating. And so y'all have generated not only an upper level figure but you've already generated a lower level figure which is two parts per million, isn't it? Y'all 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1. 2 3o you clean that piece of property up you're cleaning it down to nondetect? THE WITNESS: Yeah. Basically -- we're not taking off a little bit of soil and testing and saying, Oh, that's seven; we're below ten, we can quit. We're basically in all cases taking off a foot of soil, testing to verify that it is well below two, which it always is, and then replacing that foot of soil. We're not trying to, you know, slice things real closely. THE COURT: Okay. THE WITNESS: If the property needs to be cleaned up we're going in 031802B 7723 and cleaning it up. THE COURT: Okay. (By Mr. Stewart) So you are cleaning it PAGE 22 10 A. 11 12 Q. 13 A. 14 15 16 17 Q. 18 A. 19 20 Q. 21 A. 22 23 have agreed to that, haven't you? Ten to wii fcKuCo ojniin rsi"i CiuCiyCUVj. There is a cutoff level at two. But that is - Right. There is a cutoff level for the purpose of verifying the analysis but that is not a cleanup level. That is just a verification level. So am I to understand -- We are cleaning up the properties that we are cleaning up to well below two. Well, Dr. Raley - And I don't remember exact terms. I'm not even sure if it's two in there. But I believe that's correct. 031802B 7722 THE COURT: You said you're cleaning it up to well below two? THE WITNESS: Yes, sir. THE COURT: So what you're saying is if it's 11 parts per million when PAGE 24 9 10 11 A. 12 13 14 15 16 17 18 19 20 Q. 21 22 A. 23 Q. down to nondetect basically? TKq 1 J m4 V 1UC UCbCvUUU AAUU.C. T A*** 1 b I UUU L the detection limit is, Mr. Stewart. It's well below two. But under this new consent order y'all are establishing new emergency levels, aren't you? No. This will establish final -- the consent order -- the consent order itself does not address a final cleanup level. The consent order addresses the investigations and requirements, the information necessary for what under CERCLA is called a record of decision which will establish a final cleanup level. So that's basically what this new deal is supposed to be? Well, that's one part of it, yes. Right. Okay. But you're not saying that 031802B 7724 under this emergency thing that you all You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066976 ___ SHEET 7 PAGE 25 ProTEXT Transcript Condensing for Windows ___ PAGE 27 2 3 A. 4 5 6 7 8 9 10 Q. 11 A. 12 13 14 15 16 17 18 19 20 21 22 Q. 23 cleaned down to nondetect, are you? We are cleaning an appropriate -- I don't know what the particular levels are and I don't know what the verification sampling is set. I don't know whether there are low levels of PCBs detected or not. But the detection limit depends on a number of things. So -Detection what? I said the detection limit depends on a number of things and that's why you can't basically pick nondetect as a cleanup level because tha't depends on the analytical method. You need to agree -- if you're going to do that you need to agree upon an analytical method and it's particular detection limit which essentially sets a cleanup level. There's always going to be a method which can get you to a lower detection limit. Well, who is it that sets that detection limit on your analytical data? You? 031802B 23 1 2 3 A. 4 5 6 7 8 Q. 9 10 11 12 13 A. 14 Q. 15 16 A. 17 Q. 18 A. 19 Q. 20 consent order as to how y'all are arriving 031802B 7726 at those kinds of detection limits and picking the lab and that type stuff? I don't understand the question. I mean, the laboratory is required as part of its ongoing daily operations to analyze samples among which are samples to establish the detection limit. Do you recall when you all took tests of 13 properties that were made available to you or access was made available to y'all prior to a settlement conference in this case? 1 I recall that, yes. And do you remember what you did with that data? I specifically did with it? Yeah? I don't know -- Didn't you write the EPA a letter about it, Dr. Kaley? PAGE 2 6 1X n74 . 2 3 4 5 Q. 6 A. 7 8 Q. 9 10 11 n74 . 12 Q. 13 14 A. 15 16 Q. 17 A. 18 Q. 19 A. 20 21 ft 22 7725 It's based on the method that the laboratory is using and their ability to carry out that method. It's an experimentally determined value. You pick the lab, don't you? Certainly we've chosen the lab to do our analyses, yes. And that lab is a lab that y'all have paid over time a fairly substantial amount of money? I presume so. I don't know specifically. And you're aware of their detection limit, are you not? I don't know what it is specifically on soils, no. Who would know that with your outfit? A -Mike Price? Mike may know. Craig may know. Craig Branch -- Mr. Branchfield might know. Okay. But that's just something y'all tell EPA once you select that under this ___ PAGE 28 21 A. oo n 23 1 2 3 4 5 6 A. 7 8 9 10 11 12 13 14 15 Q. 16 17 18 I don't recall that. You don't recall taking the data that y'all got from those tests and writing to 031802B 7727 the people at EPA and Region 4 and telling them that this shows that the contamination in Anniston is not as widespread as the plaintiffs have indicated? I recall some terms around not widespread. I don't recall exactly if that were that data or not. I know that all of the data that we've gathered on any analyses, whether on plaintiffs' properties or any property, have been reported to the EPA and to ADEM. You know, what specific letter and which specific language you're referring to, I don't know. What I'm talking about, Dr. Kaley, is there were 13 properties that were made available to Monsanto or Solutia for testing in connection with some settlement You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066977 ____ SHEET B PAGE 29 ProTEXT Transcript Condensing for Windows . ._________________________________ PAGE 31 1 19 20 A. 21 Q. 22 A. 23 Q. 1 2 3 4 5 6 7 8 A. 9 10 Q. 11 12 A. 13 14 15 Q. 16 conferences that we had. I do recall that. And y'all tested those? Yes, we did. And y'all sent the data, you did, over to 031802B 7728 EPA Region 4, and indicated to thei in a letter that accompanied that data that your analysis of the soil samples indicated that the contamination in the area here in Anniston was not as widespread as the plaintiffs had originally indicated that it was? I do not recall that letter or that language. Okay. You don't recall sending a letter to them? Not specifically on those 13 properties. I may have. I do not recall that letter specifically. Okay. Who is it that you did correspond with, if you recall, about anything about 15 16 17 A. 18 Q. 19 20 A. 21 22 23 A. 1 2 3 4 Q. 5 6 7 8 A. 9 10 11 12 agreement in connection with the past costs? I believe that is correct, yes. What is it y'all have agreed to pay EPA to get them to work out this deal with y'all? We are not paying them to work -- MR. COX: Objection. Argumentative. THE COURT: Overruled. We are not paying them to work out a deal. 031802B 7730 We are paying past costs under their legal ability to recover past costs from us from their investigations. I understand that. But what is it that you are paying them?How much money are y'all paying EPA to get them to enter into this agreement? I believe the number is five point -- we are not payingthem to enter into this agreement. We are paying them under the terms of their legal ability to recover those monies from us and that money is PAGE 30 17 those tests at that time? 18 Wall ^ ag T of thw dst2 thst W8 19 have collected have been communicated both 20 to ADEM and to EPA. So at some point that 21 data was communicated to both of those 22 agencies. What accompanying letter I may 23 have written, I don't recall. 031B02B 7729 1 Okay. All right. Tell me, Dr. Kaley, who 2 Mr. Costello is. What is his area of 3 expertise who attended this last meeting 4 with y'all? 5 He was hired as a consultant to look over 6 the request for past costs recovery that 7 the EPA had submitted to us. 8 What's his area of expertise? 9 Iwould assume he's an accountant, but 10 that is an assumption. I don't know 11 specifically. 12 And do you know where he's from? 13 Ido not. 14 Okay. Have y'all worked out your final PAGE 32 1 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 Q. 7 8 A. 9 Q. 10 approximately 5.7 million dollars. THE COURTi Hsil/ would thsy sntsr into this agreement if you didn't agree to pay it -- if you didn't pay it to them? THE WITNESS: We would have to pay it whether we entered into the agreement or not. THE COURT: Okay. THE WITNESS: They have a legal right to recover that money from us, 031802B 7731 agreement or no agreement. THE COURT: Okay. THE WITNESS: If they didn't do it under this agreement, they would do it under Superfund. (By Mr. Stewart) Hell, at some point in time it was a little above six, wasn't it? I believe that's correct. I mean, I've looked at this draft. So y'all have negotiated the deal down to 5.7 You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066978 __ SHEET 9 PAGE 33 . ProTEXT Transcript Condensing for Windows __ PAGE 35 11 12 A. 13 14 15 16 Q. 17 18 19 20 21 A. 22 23 1 2 3 4 5 6 Q. 7 A. 8 million; is that right? We didn't negotiate a deal. We challenged some of their additional costs and they agreed that there would be -- that those costs were not our responsibility. And I noticed in the agreement that this was not going to be listed as a National Priority List site. It wasn't going to make it on the NPL. Y'all negotiated that deal with them too, didn't you? No, sir. That is part of the process. The process is that if the agency is able to negotiate and work with the potentially 031802B 7732 responsible parties that there's no need to go through the listing process and put it on the NPL site. Although I'm not sure it says that in this agreement that that is the case. Oh, it don't? That's the way the process works whether it's this site or any other site in the 7 8 9 10 11 12 13 Q. 14 15 16 17 18 19 20 A. 21 Q. 22 A. 23 Q. 1 A. 2 3 4 Q. you have a copy of that Mr. -- MR. COX; I do. THE WITNESS: I have a copy of something which has something about human health risk assessment on page 17 so... He gave it to you. Right. Right. And this indicates on paragraph two y'all used data collected during the site characterization to refine actual and potentially exposure points and pathways. And it talks about aPhase I Conceptual Site Model Report? Yes. Who put all that together? Who put all what together? The Phase I Conceptual Site Model Report. 031802B 7734 It has not been put together yet. That is one of the first phases of this investigation. That's what y'all have to do? parit m 9 10 Q. 11 12 13 14 A. 15 Q. 16 A. 17 18 19 ~ 20 21 22 23 Q. 1 2 3 4 5 6 country. Now, "process" has gotten to be a fairly strange word. It covers up a lot of stuff here. But when you say "process," what are you talking about? I'm talking about the law. The law? That is my understanding of the CERCLA legislation, the CERCLA regulations; that if there is no potentially responsible party who is willing and able to step up and pay for the investigations and the corrective measures, then a listing process is applied. Okay. Now, on page 18 of the program of 031802B 7733 work y'all are setting out how y'all are going to -- on page 17. It begins, "The Human Health Risk Assessment." And that's a document that's entitled in this process, A Statement of Work Remedial Investigation and Feasibility Study. Do PAav Tfi 5 A. 6 7 Q. 8 9 10 A. 11 Q. 12 A. 13 14 15 16 17 18 Q. 19 20 A. 21 Q. 22 23 A. 1 2 Yes. One of the things we have to do, yes. Okay. So you'll use data that you have already collected or data that you will be collecting? Both. Both? I think. The most -- the preliminary I think this conceptual site model will rely primarily on data that has already been collected. But there may be some what are called "data gaps" which will need to be filled to do that. All right. And who makes the determination as tothe datagaps? It will be Solutia and theEPA. Okay. Now, y'allaregoing to take a look at fish, the levels of PCBs in fish? Not -- I don't believe that is included in 031802B 7735 this particular siteconceptual model. Because in the -- most of the area covered You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066979 ProTEXT Transcript Condensing for Windows ___ SHEET 10 PAGE 37 ______________________________________ ___ PAGE 39 3. 4 5 6 7 8 9 10 11 12 13 14 15 Q. 16 17 18 19 20 A. 21 22 23 by this fish is not an issue. I could be wrong. But I believe groundwater, surface water, air, et cetera here. I don't believe that fish are included in this but I could be wrong. I think part of it will be where the data lead us. If it turns out that fish is a pathway covered by this consent decree, then we will do fish. I mean, we are doing fish sampling continually anyway. So that data are available or those data are available if we need to do that. Let me see if I understand what youjust got through saying. In performing the human health risk assessment, you all will not include fish or the level of PCBs in fish? Yeah. As I think about it, I'm probably wrong on that. Because now I believe this does include Choccolocco Creek. So if that's the case, certainly fishwill be 031802B 7736 1 2 Q. 3 4 5 A. 6 7 8 Q. 9 10 A. 11 12 Q. 13 A. 14 15 16 Q. 17 18 19 20 21 031802B 7737 included where appropriate. Wouldn't you admit, Dr. Kaley, that -- what do you mean now by "where appropriate"? Well, where there is a pathway for fish to provide exposure to humans, then I believe that would be included. Would that be only for those people who perhaps lived on Choccolocco Creek? I think that's yet tobedetermined. I don't know. Who would determine that? The EPA and us. Depending on the, you know, how the risk assessment iscarried out. Well, based on the waythey negotiated what you owed them, can we really depend on them, Dr. Kaley? We're really probably left with y'all, aren't we? MR. COX: Objection, argumentative. Speculative. PAGE 38 1 A 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 included. I may have misspoke. Mg 1 1 mq ^ f if*1 * i 1 *m XX/ lie LiiUU^ilU XU IH'vlUwCW UIWw.W1Ui.wW Creek. I believe that may be correct at this point. Are you thinking it may not? I think it may -- I think you are correct at this point. Did y'all concede that back to the state overnight or is that something that y'all have left in your - As I said, I believe that the creek is now included in the area covered by the consent decree. Well, it says here, groundwater, surface water, air and so on and it doesn't mention that. But is that an exclusive or do you think as you sit there today that fish was included in that? Well, it says "et cetera." And I -- fish would be a normal -- the one thing I could think of that would be included under that et cetera. So I believe it probably is PAGE 40 22 THE COURT: Overruled. T Vim 1 4 ATTQ rySA <) At V* AM* <<] Vlt A PDA "1 tA VWy i uciicc yuu uqu ucpcuu vu Luc utn Quu ni . 031802B 7738 1 Aiken to do a very fine job in reviewing 2 this risk assessment, yes. 3 Yeah. We feel good about that. 4 MR. COX: Objection. Move to 5 strike. 6 THE COURT: Sustained. Strike Mr. 7 Stewart's last comment. 8 Let me ask you if you can tell us what -- I 9 asked you some questions about this just 10 the other day and you indicated that you 11 thought maybe that the exposure that a 12 child might be faced with at these sites 13 or through these media were probably used 14 as a test or a beginning point. I don't 15 know that much about this. You wouldn't 16 use an adult to determine what the 17 exposure level should be in soil or any of 18 this other media. But I looked through 19 this agreement and I didn't find that in You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066980 ProTEXT Transcript Condensing for Windows ___ SHEET 11 PAGE 41 ______________________________________ . PAGE 43 20 21 A. 22 23 1 2 3 4 5 Q. 6 A. 7 8 9 10 Q. 11 A. 12 13 14 15 16 Q. 17 A. here. Well, as I said yesterday, when that -- or the other day, whenever you elicited that testimony, that Mr. Aiken and the EPA have 031802B 7739 assured us that there will be several pathways to be considered in the risk assessment, and exposure to children will be one of those. Well, what are'the others? Well, adults. There will be dermal adult, dermal child, inhalation adult, inhalation child. All of those pathways are considered in the riskassessment. So you - I mean, that's standard risk assessment. And the EPA now has their federal guidelines requiring the EPA to include exposure routes for children among those risk assessments. Exposure routes to children? Yes. 16 Q. 17 18 19 A. 20 Q. 21 A. 22 Q. 23 1 A. 2 Q. 3 A. 4 Q. 5 6 7 8 9 10 11 . 12 A. 13 Q. Okay. And didn't the administration -- I mean, didn't the chemical industry fight that pretty hard? I don't re -- I don't know. Sir? I don't know whether they did or not. Didn't y'all make a concentrated effort to try to get set at adult levels? 031802B 7741 I don't know. Sir? I do not know. Isn't it a fact, Dr. Kaley, that y'all have attempted to get the people who were. doing health consultations in this case and at this site to use the exposure that an adult -- the PCBs that an adult would be exposed to as opposed to a child to interpret what the risk would be at this site? I don't believe that to be the case, no. Do you know an Andrew Wargo? _ PAGE 42 18 Q. 19 20 21 22 A. 23 10 11 12 13 14 15 But there's nothing in the statute or in ^luV<c I<U*J!.CO i**/i Wtiica icyuia..l...a...v...ur....o require them to consider that for adults, is there? Well, that's been the normal procedure. That was -- has -- was the -- what 031802B 7740 prompted the EPA and other federal agencies to add specific language adding children is because the complaint had been that all risk assessments only addressed adults and there was a need to be sure that children were addressed in those risk assessments. Okay. And that was legislation that was passed that required that? I don't know whether it was legislation. I believe it was an executive order. And who entered that executive order; do you remember? I believe President Clinton's administration. PAGE 44 14 A. 11JC A 16 A. 17 Q. 18 19 A. 20 Q. 21 22 A. 23 Q. 1 2 3 4 5 6 7 B 9 10 11 A. Yes. * /"I*.* U\J ^UU MiUW a OACIill ri.U3K.Ui: Yes. Didn't Mr. Ruskin work for Solutia in Washington? He still does. And do you know him to be a truthful person? As far as I know, yes. And if he said that y'all contacted the 031802B 7742 representatives of ATSDR and also the State Health Department and attempted to get them to accept an adult as opposed to a child in that situation, would you think that would be true or untrue? MR. COX: Objection to the extent he's asking Dr. Kaley to comment upon what somebody else outside the context of these proceedings. THE COURT: Overruled. If I understood your question, I do not You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066981 ProTEXT Transcript Condensmg for Windows ___ SHEET 12 PAGE 45 ______________________________________ . PAGE 47 12 13 14 15 16 17 Q. 18 19 20 21 A. 22 Q. 23 1 2 3 4 5 6 7 A. 8 9 Q. believe that Mr. Ruskin or any representative of Solutia made that request to ATSDR. And if Mr. Ruskin said that we did so, then I would think that he made a mistake. Made a mistake? Do you know the lady who was involved in the health consultations, Cheryl Browder, at the State Health Department? I know Ms. Browder, yes. And do you know whether or not you and Mr. Ruskin and others were involved in '031802B 7743 conversations with Ms.Browder and representatives from ATSDR in an attempt to get them to modify their health consultation based on the exposure that an adult would be facing? Do you remember those conversations that y1 all had with -- I don't -- certainly don't know that Mr. Ruskin has ever talked with Ms. Browder. I'm asking if you -- I'm asking if you 8 9 10 11 Q. 12 13 A. 14 Q. 15 A. 16 17 18 19 20 Q. 21 A. 22 23 1 2 3 4 0. 5 applying a child's level to the plant site areas. THE COURT: Overruled. I'm talking about applying it to the cleanup at a piece of property? Hell, a number -- If you use an adult. Well, in the first place, to answer the first -- the predicate to your question, we would not and as far as I know did not request them to not use exposure routes for children in their risk assessments. So you - Secondly, it may or may not, if children were used versus adults -- depending on the exposure scenario and the particular 031802B 7745 end point, it may or may not cause a higher level or a lower level of eventual cleanup to be determined. What about PCBs in soil at residential properties? What effect would using a ___ PAGE 46 10 11 A. 12 13 14 15 16 Q. 17 A. 18 19 20 21 22 Q. 23 1 2 3 4 5 6 7 remember that, Dr. Kaley. NO/ I do not. I do not bslisvs thst v/s have ever asked either agency to modify the approach they take to doing risk assessments, whether on children or adults. Okay. Now -- But certainly they're a regulatory requirement to include children's routes of exposure in risk assessments, and there was no reason we would ask them to not use that route of exposure. Well, one of the reasons that you would ask them to use that route of exposure or 031802B 7744 use an adult in that setting would be it would raise the level of cleanup number y'all could leave at the plant site, couldn't it? The level of PCBs either on property or in the air. MR. COX: Objection. Speculative to the extent he's talking about ___ PAGE 48 6 7 8 9 A. 10 11 12 13 14 Q. 15 16 A. 17 18 Q. 19 20 21 22 23 1 2 A. 3 child as opposed to an adult have on the cleanup level there, as you understand it, Dr. Kaley? Until the end point -- the appropriate end point is determined, that is not a question that could be answered in the abstract. It could be higher; it could be lower. So you have -- well, generally though with a child it would be lower, won't it? I don't know that that's generally true, no. It depends on the end point. In other words -- all right. I'll leave that. Now, when y'all talk about doing an ecological or ecological, however you want to pronounce it, study, what animals are y'all going to consider would be effected 031802B 7746 by PCBs in the drainage basins? I don't know specifically what's intended to be used. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066982 ___ SHEET 13 PAGE 49 ProTEXT Transcript Condensing for Windows ___ PAGE 51 4 Q. 5 6 A. 7 8 Q. 9 A. 10 11 12 13 14 Q. 15 16 A. 17 Q. 18 A. 19 Q. 20 A. 21 Q. 22 A. 23 Q. 1 Hell, have you ever considered or have y'all ever tested water foul? I don't believe we have tested water foul, no. Well, why not? I don't know. I -- I wasn't the one making the decisions on which species were to be tested. My assumption is that that was one that was considered and it was determined not tobeappropriate. Who determined that was not to be appropriate? Our risk assessment consultant, I assume. rail's? Yes. And who was that? Mr. Schell. Mr. who? John Schell, S-C-H-E-L-L. So he said that there were no water foul 031802B 7747 on the Choccolocco or around Lake Logan 1 2 3 A. 4 5 Q. 6 A. 7 8 9 10 11 12 Q. 13 14 A. 15 Q. 16 17 A. 18 19 Q. 20 A. 21 Q. 22 7748 tests should be or constitute, shouldn't you? What kind of tests you should take? I -- I don't know -- not that I know of. I mean, we have -- Well, who decided that you - At this point we have a work plan at ADEM which parts of have been approved that determine the investigation -- the terms in the investigation along Choccolocco Creek and we are carrying out that investigation. Well, does that includetesting fish at all? Fish, yes. We certainly are testing fish. Does that include all fish or all aquatic life or just certain fish? I believe we are testing -- I think a half a dozen species or so on a routine basis. Of fish? Yes. And who made the determination as to which fish you should test, John Schell? Did he ___ PAGE 50 2 3 4 5 A. 6 7 8 9 10 Q. 11 A. 12 13 14 15 16 Q. 17 18 19 A. 20 21 Q. 22 23 Martin that should be considered at danger, at risk because of their exposure to PCBs? No. I don't believe he said that at all. Number one, if we're talking about this particular document, the species that are going to be considered have not been determined. Sir? If we're talkingabout the consent decree and the risk assessment that is going to be done under the terms of this consent decree, the species that are going to be used have notbeendetermined. Well, y'all have been doing tests on Choccolocco Creek for a period of time, haven't you? We have done some testing along the creek, yes. And y'all have been required as a result of the request by EPA to provide them with some kind of definition of what those 031802B ___ PAGE 52 23 1 A. 2 3 4 5 Q. 6 A. 7 0. 8 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 015 16 A. 17 18 Q. 19 20 A. make that recommendation to y'all? UJiOQUA^ADn 7749 I'm sure -- I don't know. I think it was partly him and partly -- we are also using a consultant from Auburn University and he had some input into -- Who was that? David Bayne. Okay.David Bayne told you in addition to John Schell? Is that B-A-Y-N-E? Yes, it is.Thank you. Is that Dr.David Bayne? Yes. Okay. Now, isit Dr. JohnSchell? Yes, it is. Where does Dr. Schell come from? What's his background? He's a toxicologist. He works for BBL Sciences in Tallahassee,Florida. Is that that group that's doing y'all's study on the creek? They are doing some ofit, yes. You may have up to 3 and 3 Footer Lines WATER PCB-SD0000066983 ProTEXT Transcript Condensing for Windows ___ SHEET 14 PAGE 53 ___________________________ ___ PAGE 55 21 Q. 22 A. 23 Q. 1 2 3 4 5 5 A. 7 8 9 Q. 10 11 A. 12 13 14 15 Q. 16 17 18 na . Okay. Is that BBL? Yes. Okay. In addition to those half dozen 031B02B 7750 species of fish, what other aquatic animals are y'all testing to make a determination as to whether or not the exposure to PCBs cause them some problem? Anything else you're checking? We have not tested anything else -- any other animal species to this point that I know of. Is there any plan to check any other animals or species? We haven't -- as I said, we haven't designed the parameters of this risk assessment. So I don't know whether there is or not. For instance, have y'all determined or made a determination to test animals that perhaps live around the water? Well, certainly they will be considered in 17 18 19 Q. 20 21 A. 22 23 1 Q. 2 3 A. 4 Q. 5 A. 6 Q. 7 B A. 9 Q. 10 11 12 13 14 combine those two pieces of information to do the risk assessment. Are you familiar with the Hudson River study? Well, there have been a number of studies done along the Hudson River. I don't know specifically what you're referring to. 031802B 7752 The risk assessment, the ecological risk assessment that they did there? I know there is one. I've not read it. You've not read it? No, I haven't. Do you know who conducted that study? Didn't EPA conduct that study? I don't know specifically. If -- just say for the sake of this next question I'm going to ask you, if they did conduct that study up there in the Hudson, why is it that EPA, if they told you, Dr. Raley, chose to allow you all, the polluter, to do this risk assessment here? PAGE 54 19 Oft 21 22 23 1 2 3 45 Q. 6 7 8 9 10 A. 11 12 13 14 15 16 the risk assessment. I don't know that they will be tssted. Thsy will prchsbly -- my understanding would be that in most cases because the fish are the primary route of PCBs to those animals, that the 031802B 7751 fish data are used to do the risk assessment for those fish eating animals. But certainly that is yet to be determined finally. Well, how is it that you would determine whether or not those animals were affected adversely by PCBs if you didn't test some of them, make the determination as to how much? Well, much like you do with a human risk assessment, you -- you use actual environmental data such as fish levels, and then you use experimental data from laboratories on the variety of species that have tested, variety of animals, response to PCBs or other chemicals, and PAGE 56 15 A. 16 17 18 19 A 20 21 22 23 1 2 At 3 4 Q. 5 6 7 8 q Q. 10 11 12 It was part of the negotiations. We v<c* 1i4ic^i^c wc wunliuJ a J 4jq4l" 4- V ^ V lugl a*<u<u4 then during the negotiations they agreed that it -- that that would be appropriate. So on the Hudson the EPA decided that they would do it. And then when it got down here to Alabama and what they considered to be sort of a different kind of locality, they decided that they would let 031802B 7753 y'all do it; is that correct? I certainly cannot address what the EPA thought. Do y'all have a better relationship with the EPA than perhaps GE does? Is that the way y'all worked the situation out? MR. COX: Objection. Speculation. THE COURT: Sustained. What is it that y'all -- what is it that they indicated to you for the difference? Why did they tell you that they would make that difference, if you know, Dr. Raley? You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066984 ProTEXT Transcript Condensing for Windows ___ SHEET 15 PAGE 57 _____________________________ ___ PA GE 59 13 14 15 A. 16 17 Q. 18 A. 19 Q. 20 21 22 A. 23 1 2 Q. 3 A. 4 5 6 7 Q. 8 9 A. 10 Q. MR. COX: Objection. Speculation. THE COURT: Overruled. They certainly -- that issue never came up. It just never came up? That's correct. Well, now they had insisted on doing it to begin with in some of the early correspondence but they gave that up? Well, Mr. Stewart, I believe the word was "we would prefer." I don't believe that 031802B 7754 is insistence. Oh, we would prefer. And they said it was open for negotiation. And we negotiated -- we discussed that with them and they agreed that we could do the risk assessment. Weren't PCBs a contaminant that was of interest in the Hudson River thing? Yes, they are. Right. And wasn't it about a million 9 10 11 12 13 14 15 16 Q. 17 18 19 20 21 22 23 1 2 Q. 3 4 Q. 5 6 A. an opportunity to comment or suggest or change that risk assessment, which opportunity they certainly will have. And if they believe that it's appropriate to do whatever may have been done at the Hudson, and I don't know what that is, I'm sure they will tell us. Pardon me, Dr. Kaley, for not being concerned about what they give you or take away from you. What my questions were aimed at was what they give and what they take away from the people down here in Alabama. Now, back to this human health assessment -- 031802B 7756 MR. COX: Move to strike. -- didn't the folks at EPA -- THE COURT: Overruled. Denied. -- didn't the folks at EPA do the human health assessment on the Hudson? I don't know. PAGE 58 - 11 12 13 A. 14 15 16 r, 17 18 19 20 21 22 23 1 2 3 A. 4 5 6 7 8 pounds of PCBs that had gotten out up UUCJ.G 1ULU LiJC UUUJUU. I don't know. MR. COX: Objection, relevance. THE COURT: Overruled. And if they tested those animals that I mentioned earlier in the Hudson that you all don't choose to test those, is there some reason that y'all are given less than what they do up there as a standard to follow in performing your ecological risk assessment? MR. COX: Objection, Your Honor, 031B02B 7755 speculation. THE COURT: Overruled. I'm sorry. I don't remember what the question was. But basically they haven't -- they haven't given us or taken anything away from us at this point. We have not designed nor proposed the terms of the risk assessment. They have not had PAGE 60 7 Q. 0 V 9 10 11 12 13 n. 14 15 16 17 18 19 20 21 Q. 22 A. 23 0 1 2 3 4 A. Do you know what their view was, those pcupic up uucie uu Luc iluuouu miu uiu uiau particular study, was of the epidemiological study that apparently has been accepted by this jury in this case? Do you have an idea? No. MR. COX: Objection, speculation. He's already testified he doesn't even know who did the risk assessment. THE COURT: Well, overruled. If he doesn't have an idea he can simply say no. Sir? I believe I said no. Okay. You have indicated from the witness 031802B 7757 stand the other day that your feeling was that PCBs don't cause any adverse health effects in humans, didn't you? Aside from, as I think I've said other You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066985 ProTEXT Transcript Condensing for Windows ___ SHEET 16 PAGE 61 ___ __________ _ ___ PA GE 63 5 6 7 8' Q. 9 A. 10 Q. 11 12 7\ A. 13 Q. 14 15 A. 16 Q. 17 18 A. 19 20 21 Q. 22 23 1 2 places, dermatological effects and potentially elevations of some liver enzymes, that's correct. Elevations of what? Some liver enzymes. Some liver enzymes. And is that the position of your company? I believe it is, yes. Okay. And that's the position that you put forth in this trial, is it not? Yes, it is. ' And that's the position that you put forth in discussions with EPA, is it not? I don't know that we have specific discussions about what the health effects of PCBs may or may not be with the EPA. Is it your testimony here today that you and old Elmer haven't talked about the fact that PCBs don't cause anything but 031802B 7758 dermal effects and dermatological effects in humans and perhaps some elevated liver 1 2 Q. 3 4 5 6 7 8 q 10 Q. 11 12 A. 13 Q. 14 15 16 17 18 A. 19 20 21 22 23 Q. That's exactly correct. Well who's going to help y'all with this, good old Dr. Renate Kimbrough? Is she the one y'all are going to call on to come down here and wave that wand over this site and say that it doesn't cause any problems? MR. COX: Objection, argumentative. THE COURT: Overruled. Is Dr. Kimbrough going to come down here and -- Where? -- and help y'all perform this risk assessment? She came earlier for a day's period of time. Is Dr. Kimbrough going to be one of the experts y'all are going to use to assist you in performing this? No. Risk assessment is not one of Dr. Kimbrough's areas of expertise. She is not going to do the risk assessment. I believe I told you Mr. Schell is going to do the risk assessment. What company does he work for? . PAGE 62 . 3 4 ai 5 6 7 8 Q. 9 10 A. 11 12 n 13 14 15 & A. 16 Pki* 17 A. 18 Q. 19 20 21 22 A. 23 enzymes? Wll| hs iTi2y v*ry wll knicw thst th3t*s what our position is. But I certainly don't recall any discussions with him about that, no. Well, how could he know that that's what your position is? Well, I've made that comment and comments to ATSDR and other groups. Right. Well, isn't that what's going to drive a part of this engine on assessing what threats PCBs pose to human health? No. That view? No. Well, don't you consider the potential toxicity of PCBs and the possibility that those things can cause adverse health effects? Certainly. That's how you do a risk assessment. You consider that potential. 031802B 7759 PAGE 6d 1 A. 2 Q. 3 A. 4 Q. 5 6 7 8 9 10 11 Q. 12 13 14 15 16 17 18 19 20 21 031802B T1 71 Cn He works for BBL Sciences. . And he's a toxicologist? Yes. Well, will he not review a study that was done by Dr. Renate Kimbrough for GE on the Hudson? MR. COX: Objection. Speculation to what Dr. Kaley knows Dr. Schell's going to review. THE COURT: Sustained. Do you know whether or not he will review that? Are y'all going to ask him to take a look at that, Dr. Kaley? MR. COX: Same objection to the first part of the question. THE COURT: Okay. Sustained as to the first part. And since that was a two part question, you can answer the second part if you can remember what it was. THE WITNESS: Which I don't. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066986 ___ SHEET 17 PAGE 65 ProTEXT Transcript Condensing for Windows ___ PAGE 67 22 23 1 2 3 4 A. 5 6 7 8 9 Q. 10 11 12 13 A. 14 15 16 17 18 19 THE COURT: Okay. THE WITNESS: I'm sorry. What was 031802B 7761 the second part of the question? THE COURT: Are you going to ask him to take a look at that? I'm sure he's already taken a look at it but that will not impact the risk assessment. That is not -- those are not the guidelines that EPA uses to do the risk assessments. So, in other words, the toxicity and -- you won't look at epidemiological studies then, either Dr. Kimbrough's or anybody else? Well, we may very well. But those -- and they may be included. But those are not going to be the determining factors because that is not the kind of data the EPA rely on for their risk assessments. We wish they would, frankly. But they tend to rely on animal data and that's 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 Q. 11 12 13 14 A. 15 study. THE COURT: Well, it doesn't necessarily -- he doesn't necessarily need to be familiar with the study to know whether or not EPA considered it. But I 031802B 7763 don't know that he knows whether or not EPA considered it or would have the availability to even have that knowledge. And if he doesn't he can say. So I'm going to overrule. THE WITNESS: And I don't know whether they considered it specifically or not. Did they discount -- Do you know whether or not they just basically discounted that study and said that it shouldn't be considered because of its flaws? I don't know. MR. COX: Same objection. paa* .. 20 L71I 22 Q. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 18 17 what we rely on also to determine those 7ctlu65. Now, is it true that they just rely on animal data or in fact didn't they discuss 031802B 7762 Dr. Kimbrough's study in the risk assessment that was done in connection with the Hudson -- MR. COX: Objection. He's already said he's not familiar with the risk assessment they did on the Hudson. THE COURT: What was your question again? MR. STEWART: I just asked didn't they just look at Dr. Kimbrough's study on the Hudson. THE COURT: And you're talking about -- who is "they"? MR. STEWART: EPA MR. COX: Objection. He didn't -- he says he's not familiar with the PARE GR 16 1*7 A 18 19 20 21 22 23 1 2 3 A. 4 5 6 7 8 9 10 11 12 13 THE COURT: Sustained. vW/ Ull LUC UOLC LlilO LXJ.QX OLQX.LCU U1 maybe the day afterwards, January 7th of this year, didn't certain individuals in your company have a conference call at which time -- and that would be John Hunter and Mr. Clausen and Mr. Barnacle, at which time they discussed certain 031802B 7764 positions that your company was taking in connection with this case? Sometime in that -- sorry, Buddy. MR. COX: Wait for me. THE WITNESS: I'm sorry. I'm looking over here. MR. COX: I'm sorry. Objection, Your Honor. We would object to the question about these I guess transcripts or audio transcriptions of the conference calls that Solutia representatives had with the You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066987 ___ SHEET 18 PAGE 69 ProTEXT Transcript Condensing for Windows ___ PAGE VI 14 investors on the grounds of 10 this dispute, going to fight it to the 15 relevance. He would also object 11 bitter end? 16 under Section 6-11-23(b) of the 12 A. I don't recall that being said, no. 17 Alabama Code regarding discovery 13 Q. They made the statement that they were 18 of financial information because 14 going to fight this through the courts, 19 a lot of the information that's 15 did they not? 20 on those tapes has to do with 16 MR. COX: Objection to the extent 21 financial information and other 17 he's asking Dr. Kaley to comment 22 responses to investors. And IB on -- and foundation, and also 23 under that section of the Alabama 19 objection to him commenting on 031802B 20 statements without giving an 7765 21 opportunity here to read the 1 Code that material is irrelevant 22 statement. 2 until a punitive verdict is 23 THE COURT: Okay. Sustained. 3 returned and then it becomes 031802B 4 relevant to determine whether -- 7767 5 if then it can assess those. But 1n Do you know what position they took? Did 6 certainly the specific status 2 you listen to that conference? 7 says, "Such information talking 3 A. I listened to a conference. The one on or 8 about the financial viability of 4 about the 7th of January I listened to, 9 a company and other financial 5 yes. 10 information should not be subject 6 Q. Okay. Was there another conference that 11 to discovery unless otherwise 7 also took place between the same three PARR m 12 1T 14 15 16 17 18 19 20 21 22 23 1 2 Q. 3 4 5 6 A. 7 8 Q. 9 discoverable until after a verdict cf punitive hss been rendered." THE COURT: Did you obtain this through discovery or did you just obtain it off the Internet? MR. STEWART: No, sir, we did not. They made it public. They told the world. THE COURT: Overruled. MR. STEWART: We did not obtain it through discovery. 031802B 7766 THE COURT: Overruled. (By Mr. Stewart) Didn't they have those conversations with the analyst where they stated what the position of the company was? There was a conversation with the analyst, yes. And didn't they indicate at that time that they had no intentions of ever resolving PAGE 17 8 Q 10 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. 19 20 21 22 23 1 2 3 4 5 Q. parties and analysts on the 25th of February, after the jury verdict was rendered? I don't know that. You didn't remember that one? I don't know about it. Okay. Is Mr. Hunter a CEO of Solutia? Is he? Yes? Yes, he is. He's the gentleman that came down and didn't know a whole lot about this situation -- previously that came down and testified for a little short period of time, didn't know much about the situation? 031802B 7768 MR. COX: Objection to the extent he's asking Dr. Kaley what Mr. Hunter knows or testified about. THE COURT: Sustained. Came down here with Mr. Barnacle and Mr. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066988 ProTEXT Transcript Condensing for Windows ___ SHEET 19 PAGE 73 ______________________________ ___ PAGE 75 6 7 8 a. 9n 10 11 12 13 14 15 16 Q. 17 18 19 A. 20 21 22 Q. 23 1 2 A. 3 Clausen and some other people on a Tuesday a few weeks ago? That's my understanding, yes. Okay. THE COURT: It was only last week. MR. STEWART: Last week. THE COURT: It seems like a few weeks ago. MR. STEWART: Seems like a few weeks to me. You are familiar with those gentlemen's voices, are you not, and know who was who in that particular -- Generally, yes, except for Mr. Clausen. I really don't know Mr. Clausen hardly at all. Mr. Hunter and Mr. Barnacle I -- If he was identified as a CFO of your corporation, you know only one Mr. 031802B 7769 Clausen? Oh, I clearly know who he is. I just may not recognize his voice. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 stipulate to that then we don't need to do that. MR. STEWART: That's fine with me. MR. COX: I think we can if we can just confirm that the contents of the audio tape that they're going to offer is a complete copy. THE COURT: Okay. MR. COX: And we can -- I've certainly offered to do that on at least two occasions. THE COURT: Well, why don't I take a break and let y'all do that? MR. COX: Well, it's about -- the first one's 45 minutes to an hour long. The second one's I don't know how long but -- MR. STEWART: Judge, I would submit to the Court as an offer to the Court that if Mr. Cox is claiming that we manipulated or in some fashion changed this, all we've 031802B PAGE 74 _ 4 c J 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 MR. STEWART: Could we play the tape for hilil at thiS time? JudgS/ Wc would like to offer the tape to see if he can authenticate -- MR. COX: Your Honor, if they're going to offer the tape and we can confirm that it's a complete transcription of the presentation that was made on January 7th, we don't have any trouble with the authenticity if it would speed things along. I'm not sure if it's appropriate to have Dr. Kaley comment upon what somebody else says on that tape. MR. STEWART: I'm not asking him to comment, Judge. I just want to play the tape and ask him to authenticate that these are in fact -031802B 7770 THE COURT: Well, if y'all can PAGE 7fi 1 i. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 7771 uuuc io a iCwOIuj-ny vi uuc conference that took place. MR. COX: And, Your Honor, I'm not suggesting or even trying to imply -- MR. STEWART: I hope not. MR. COX: -- that that's something that would be done. I just want to make sure that if the Court's presented with a transcription that we have an opportunity to make sure that that transcription is complete. THE COURT: Okay. We can certainly have that opportunity. Now whether we need to just sit here and listen to it all now, I don't know. I think you can probably authenticate to it and then verify it later and if it's not unauthenticated -MR. COX: If I could just reserve my You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066989 ____ SHEET 20 PAGE 77 ProTEXT Transcript Condensing for Windows , ._________________________________ PAGE 7 9 23 right to either supplement what 19 like to ask the Court's indulgence and Dr. 031802B 20 Raley's indulgence. I was not here 7772 21 yesterday so I didn't hear all the 1 they provide or after having an 22 testimony. And I was going to go -- 2 opportunity to hear or listen to 23 THE COURT: We can play it back for 3 what they provide or reserve my 031802B 4 objections to it until such time 7774 5 as we can authenticate it, I 1 you if you want us to. 6 think that would move things 2 MR. LITTLE: That's okay. 7 along. 3 MR. COX: I object. 8 THE COURT: Okay. I think you're 4 THE COURT: But you do have my 9 right. And I will allow you to 5 indulgence. 10 reserve that right. 6 Q. What I was going to say, I have some 11 MR. COX: Thank you, Your Honor. 7 questions about the discussions and the 12 MR. STEWART: Judge, if we could, we 8 negotiations between EPA and Solutia and I 13 would like to play the tape at 9 -- if -- please, if it's something that 14 this time. 10 you've already been over before and you 15 THE COURT: Okay. So what time have 11 feel like there's enough information about 16 we saved? 12 it, please let me know and I'll be glad to 17 MR. COX: I don't know, Your Honor. 13 skip over things. I don't want to waste 18 THE COURT: I mean, I'll be glad to 14 anybody's time. 19 listen to it at some point. But 15 But, as I said, Dr. Raley, I'm very 20 do we need to listen to it with 16 interested in discussions between Solutia 21 Dr. Raley sitting here, or can we iTiO~6 on with questions snu tusn 23 listen to it later? 031802B 7773 1 MR. STEWART: No. I mean, I'm 2 through with Dr. Raley for all 3 intents and purposes, Judge. 4 THE COURT: Okay. Then I know you're 5 going to want to ask questions 6 but I'll allow ADEM. 7 MR. WRIGHT: No, sir. 8 THE COURT: The State? a MR. LITTLE: We have a few questions, 10 Your Honor. 11 THE COURT: Okay. Go ahead. 12 13 EXAMINATION 14 15 BY MR. LITTLE: 16 Q. Dr. Raley, my name's Bill Little. I'm from 17 the attorney general's office and I 18 represent the State of Alabama. I would . PAGE 80 17 18 19 20 21 22 23 1 2 3 4 5 6 7 A. 8 Q. 9 10 11 12 A. 13 14 and EPA over a period of time, particularly those that have resulted m these -- the two administrative orders that we are talking about, consent - administrative consent orders. And then the discussions that have resulted in -- so far in the negotiated agreement that 031802B 7775 was -- is part of this proposed consent decree. Let me first ask you about these consent orders. In those consent orders there was a definition of the site to which they apply; is that correct? I believe that's correct, yes. Let me first -- let me, for my own purposes, were you present at the negotiations -- all the negotiations that resulted in these consent orders? I was present at many of them. I don't know that I was present at all of them. But I was present at many of them. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066990 ProTEXT Transcript Condensing for Windows ___ SHEET 21 PAGE 81 ______________________________________ ___ PAGE 83 15 Q. 16 17 A. 18 Q. 19 20 21 22 23 1 A. 2 Q. 3 4 A. 5 Q. 6 7 8 9 10 A. 11 Q. 12 Okay. Do you feel like you have an understanding of the terms of those? I believe I do, yes. All right. As far as the site goes, the definition of the site wasn't in the consent orders, both the consent orders -- the administrative consent orders that are now in effect, wasn't - didn't they in effect exclude the RCRA areas? 031802B ' 7776 Generally, yes. Okay. Not explicitly, but when theywere written they excluded those areas? Yes. Correct. Okay. And is it not true that in the -- let's call it judicial consent decree, make the reference to that, in that the RCRA area is specifically included in the site area? In the most recentdraft that is correct. Okay. When did thatchange? At what point in the negotiations did that change? 11 12 13 A. 14 15 16 17 18 19 Q. 20 21 A. 22 23 1 2 Q. 3 4 5 6. 7 A. 8 Q. discussed that the definition of the site needed to change? Well, part of it was, again, based -- my understanding is it was based on discussions between EPA and ADEM about who had responsibility for what and EPA felt that they needed to extend some of their responsibilities to some extent. What were -- and they communicated to you the need to extend those responsibilities? No, not necessarily. It's just at various drafts of the consent order we would note that the areas had -- some definitions of 031802B 7778 site had changed. In other words, this would just be interjected into the negotiations? You would just simply see a different definition of the site appear in the documents? In some cases, yes. Was there -- did you question that? 13 A. 1A X'.i 15 16 17 Q. 18 19 20 21 A. 22 23 1 2 Q. 3 4 A. 5 6 7 Q. 9 A. 10 Q. PAGE 84 L Well, I think it's been an ongoing change recent change was within the period of the last several weeks. Okay. When did -- when did there -- was there -- when was the beginning of the discussion about changing the definition of the site? Well, I'm not sure because I think part of those discussions were between EPA and ADEM, and I don't know the substance of 031802B 7777 those discussions. So -- Well, I'm just talking about the discussions between Solutia and EPA? Well, primarily, I guess, in the last - as I said, in the last two or three months. Since the second administrative consent ordinary was entered? Yes. Primarily, yes. What were the reasons that it was 9 A. 10 Q. 11 12 13 A. 14 15 16 17 18 19 20 21 22 23 1 Q. 2 3 4 5 A. 6 Q. Yes. nirilC/-a."^. r.nvuiia4- i .w..a.o -- .w.ni.aii .w..c.i.c. 4i-utc. discussions about the reasons for that, for their position? Primarily was based on ongoing discussions. My understanding was that EPA and ADEM were attempting to reach what was called a memorandum of understanding about basically those issues, which agency and which regulatory authority had responsibility for which parts of the site and that those changes were based on those ongoing discussions. I don't know the substance of those and that was basically all that was discussed. 031802B 7779 Wasn't it your understanding that there was at least an informal understanding between these agencies as to dividing the site up? At some points in time, yes. All right. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066991 ProTEXT Transcript Condensing for Windows ___ SHEET 22 PAGE 85 ____________________________ _ ___ PAGE 87 __________________________________________________ 7 A. 8 9 10 11 Q. 12 13 A. 14 Q. 15 A. 16 17 18 19 20 21 22 23 1 Q. 2 3 4 A. I mean, certainly during the time that the administrative orders on consent were being negotiated and implemented we certainly had that understanding, yes. All right. What was Solutia's response to that change in the definition of the site? Well - That suggested change? I mean, I guess somewhat a little bit of confusion. And then basically I think our position has been all along, we, you know, we want to get the work done. Whatever the agencies agreement come to, to be sure that the work gets done and that we know to which agency we're reporting our progress and our work, then that's - that's suitable to us. 031802B 7780 So would it be correct to say you just pretty much went along with their suggestions in this area? Well, pretty much, yeah. I think -- I 3 4 Q. 5 6 7 A. 8 Q. 9 10 11 A. 12 13 14 15 16 17 Q. 18 A. 19 Q. 20 A. 21 22 Q. 23 that we saw any real particular reason to. With regard to this change, was there any discussion as to the effect that that change would have on this lawsuit? Not that I recall. Was there any discussion about this lawsuit at all with regard to that particular term? Well, I think, as I told Mr. Stewart, I mean, there was an understanding that this lawsuit was going on. But there was -- I don't recall any particular, you know, discussions which focused on how that might affect this consent decree. Well, I'm talking about that -- that term. The site definition? Yes. No. I don't believe -- I don't recall that. Doesn't the judicial -- theproposed judicial consent decree include an 031802B 7782 ___ PAGE 86 5 5 7 8 9 10 11 12 13 14 15 16 Q. 17 18 19 20 21 22 A. 23 1 2 A. think -- I mean, certainly at some point we I think we encouraged the EPA and ADEM to both be signatories to this draft consent decree, and my understanding is that ADEM preferred or decided not to do that. But other than that, I don't know that we have a lot of choice. I mean, we're subject to the regulatory authorities and really can't argue with however those agencies determine how to split up the site. Well, regardless of how the agencies agreed to split up the site, you were presented with a term and an agreement and you could have objected to that term or being in theagreement, could you not have? I suppose -- MR. COX: Objection, speculation. 031802B 7781 THE COURT: Overruled. I suppose we could have. I don't know ___ PAGE 88 __________________________________________________ 1 2 3 A. 4 5 Q. 6 7 A. B Q. 9 10 A. 11 Q. 12 13 14 15 16 A. 17 18 19 20 21 Q. 22 23 agreement on the remedial investigation feasibility study? That is one of the terms of the consent decree, yes. Okay. And that's not part of the administrative consent orders? No. That is correct. They just concern what's called removal; is that correct? Primarily, yes. And let me just for the purposes of my clarification, removal is just the immediate response -- the first response to contain the pollution, and it does not involve any kind of final cleanup? That's correct. It involves -- right. Exactly. It's an investigation phase and removal phase where appropriate for properties in these six areas that we've defined. Okay. And this -- well, I think it's called RI/FS that involves the investigation and exploration of various You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066992 ___ SHEET 23 PAGE 89 ProTEXT Transcript Condensing for Windows ___ PA GE 91 1 2 3 a. 4 Q. 5 6 7 8 9 A. 10 11 Q. 12 A. 13 14 15 16 17 18 19 Q. 20 21 031802B 7783 options for remediation to final cleanup; is that correct? That is correct. Okay. So, in other words, that being in the consent decree, the proposed judicial consent decree, incorporates something that clearly was not involved at all in these administrative orders? That's true. And that was the intent from the very beginning. Okay. The administrative orders were put in place to deal with what the EPA felt was a need to apply their emergency removal authority. And then it was understood from the very beginning that those would be rolled in eventually into a consent decree that would include the RI/FS. Okay. When was that -- when did the discussions begin on placing that RI/FS in the consent decree? 20 21 22 23 Q. 1 2 3 4 5 A. 6 7 Q. 8 g 10 A. 11 Q. 12 13 A. 14 Q. 15 16 A. 17 Q. the table through all our negotiations and interactions with the EPA once they entered in with their CERCLA authority. Have you been involved in any kind of 031802B 7785 other discussions with -- well, negotiations -- you're kind of the the environmental compliance officer for Solutia; is that correct? That's, I guess, a fair characterization with regard to PCBs, yes. Okay. Have you been involved in other negotiations with EPA regarding CERCLA cleanups? I have not. This is the only one you've been involved in? Yes. So it's the only one you have personal knowledge of? Yes, that's correct. Do you have knowledge from other sources park qn 22 A. LJ 1 2 3 4 5 6 7 8 9 10 11 Q. 12 13 14 15 16 17 A. 18 19 A year and a half, two years ago. I mean, Liiat wao an uuueidiaIiG.Lii3 ao a ogaut 031802B 7784 that was an understanding and the discussions about that were present from the very beginning of our discussions with the EPA on the administrative orders on consent. I mean, we all knew when we signed -- and we negotiated and signed those administrative orders of consent that we were eventually working towards a consent decree which would include those orders on consent and ertend to the RI/FS. Okay. Well, let me move into my nest question then. I guess this is -- when was then -- maybe you've already answered this, but when was the first discussion about a judicial consent decree, putting this in a court consent decree? As I said, sometime, I guess, prior to August of, I think, 2000. I mean, that has been our goal through all our -- on PAGE 92 18 13 ht 20 Q. 21 22 23 n n. 1 Q. 2 3 4 5 6 A. 7 8 9 10 11 Aw* 12 13 14 A. 15 Q. of other ones? nut uOi, cuijfuu.uy opc'wlixw/ uu Do you have any general knowledge at what point an agreement folded into a judicial consent decree in general with EPA? Not in general, no. 031802B 7786 I want you to remember as specifically as possible what discussions there were about -- in the course of these negotiations, about this proceeding that's going on right now in circuit court. My recollection is that just basically as we would meet with the EPA in the -- during the time that this trial has been going on just basically updates of where we were in that process. Now, you say -- I say "during the trial," you mean just since the trial started in January, it actually came to court? Has that been the discussions? Yes? You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066993 ProTEXT Transcript Condensing for Windows ___ SHEET 24 PAGE 93 ______________________________________ ___ PAGE 95 16 A. 17 18 19 20 21 22 23 1 Q. 2 3 4 5 6 7 8 9 A. 10 11 Q. 12 13 Primarily, yes. I believe all -- I believe that -- that we knew all along that there was an injunctive phase of this trial that could or would occur at some point. But there was nothing more specific other than the fact that that was one of the -- the items in the plaintiffs' complaint. 031802B 7787 Well, is it your testimony that it was ever -- never any discussions as to how -- the fact that this trial was going on, this legal proceeding, would eventually - this matter would come to trial, how that could be affected by the various terms that were negotiated between Solutia and EPA? Not that I recall. Not that I was involved in. The proposed judicial consent decree involves another party besides Solutia; is that correct? 12 Q. 13 14 A. 15 16 17 18 19 20 21 Q. 22 23 1 2 3 A. 4 5 6 7 8 9 Between Solutia and Pharmacia; is that correct? Well, at the time it was Solutia and Monsanto -- yes. Solutia and Monsanto. And then Solutia and Pharmacia merged whatever the proper characterization of that joint was -- or that activity was and then Pharmacia stood for Monsanto at that point. Well, what I'm saying though and my question is isn't that agreement simply between Pharmacia -- present Pharmacia and 031802B 7789 Solutia? Isn't that a negotiated deal, contract between Pharmacia and Solutia? I'm not sure I know the answer to your question. I don't know the -- all the - the legal and the financial interactions of that deal. I hate to answer something which I would be answering naively and mean something else to you as an attorney. But -- ___ PAGE 94 14 A. 15 Q. 16 A. 17 Q. 18 19 20 A. 21 22 23 ' 1 2 3 4 Q. 5 6 A. 7 8 9 10 11 I believe it does, yes. Pharmacia? I believe that's correct. Okay. Pharmacia was not a party in the administrative consent orders; is that correct? I don't recall specifically. I mean, I don't know. I just don't recall specifically. I believe -- I mean, I believe I recall discussions about that 031802B 7788 and I, you know, I mean, we basically are Pharmacia for the purposes of PCB issues so -- Explain what you mean by that, you are Pharmacia for -- Well, when -- my understanding of the terms of the spin off is that when Monsanto spun off Solutia as an independent company, issues revolving around PCBs were the responsibility of Solutia. ____ PAGE 96 1 10 Q. 1111 12 13 14 15 16 17 18 19 20 21 22 23 A. 1 Q. 2 3 4 5 6 7 Well, do you know whether or not if EPA wanted to look to Pharmacia directly to be responsible for these cleanup costs because Pharmacia used to be Monsanto and Monsanto was in charge of this site, owned this site, operated this site at the time of these releases, do you know whether or not that would be binding on EPA? MR. COX: Objection. Calls for possibly a legal conclusion, speculation, and he's asking what EPA's position is on something. THE COURT: All right. Overruled. I don't know. 031802B 7790 So you don't know whether under CERCLA EPA would be bound by your agreement? Or do you have an understanding of whether EPA would be bound under CERCLA by your agreement? MR. COX: Objection, calls for legal conclusion. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066994 SHEET 25 PAGE 97 ProTEXT Transcript Condensing for Windows PAGE 99 8. 9 A. 10 Q. 11 12 A. 13 Q. 14 15 A. 16 Q. 17 18 19 A. 20 Q. 21 22 23 A. 1 2 3 4 Q. 5 THE COURT: Overruled. I don't know. Was Pharmacia -- was a representative of Pharmacia present at these meetings? No. So there was nobody there representing the shareholders of Pharmacia? Not that I know of, no. But yet Pharmacia ended up or is in this proposed judicial consent decree; isn't that correct? I believe that's correct, yes. How did Pharmacia come to be named as a party if there was nobody there even to say one way or another? Well, my -- my understanding is that EPA 031802B 7791 wanted them to be a signatory and that Solutia representatives had the authority to negotiate on the behalf of Pharmacia. So it was your understanding that Solutia representatives had to -- had the response 4 5 Q. 6 7 A. 9 10 11 12 13 Q. 14 15 16 A. 17 Q. 18 19 20 A. 21 Q. 22 23 1 authority, yes. Well, you were a negotiator on behalf of Solutia, right? I was at the meetings. I wouldn't say I was a negotiator. I was at the meetings and participated in negotiations but as a technical representative, not as a person who understands the financial and legal ramifications. We had lawyers doing that. So you didn't have the authority to make decisions for Solutia in this -- with regard to agreeing to terms? I did on technical issues, yes. Can you remember when it first was discussed that Pharmacia should be a party in this judicial consent decree? No. I don't know when that one, no. Do you see any significance in the -- I mean, do you understand that it might be significant that Pharmacia is or is not a 0318Q2B 7793 party? _ PAGE 98 6 1 8 A. 9 10 11 12 13 14 15 Q. 16 A. 17 18 19 20 21 22 23 -- had the authority to essentially put -- negotiate an agreement for Pharmacia? I would say they had the authority to negotiate the agreement. I don't know that they had the authority to sign it. But I believe they had the authority to negotiate. But, again, you're stretching my ability to -- knowledge very, very thinly at this point. Well, your understanding -- I don't really understand all the -- as I said before, I don't understand or know all the legal and financial ins and outs of the agreement -- various agreements between Monsanto and Solutia, Monsanto and Pharmacia. My understanding, though, as I said, is that at the time the negotiations were going on Solutia had -- has the Q31802B 7792 responsibility for PCB issues for Solutia and subsequently for the -- for the former parent organisations and that we had that PAGE 100 2 -i J 4 5 A. 6 7 10 11 12 Q. 13 14 15 A. 16 Q. 17 18 A. 19 20 21 Q. 22 23 MR. COX: Objection, relevance and speculation. THE COURT: Overruled. I don't know what the significance is. It's my understanding that Solutia is the responsibility party for the negotiations and for carrying out the terms of the agreement. That's -- I don't understand necessarily what having Pharmacia on there means, no. Well, I'm referring to Plaintiff's Exhibit, I guess it's 1-21, which is the proposed judicial consent decree. I understand. Okay. Are you familiar with this in any way? I've read -- I haven't read this specific draft. I've read previous drafts of it, yes. And in your understanding -- well, let me just read from page five. It says, "Defendants shall mean Pharmacia 031802B You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066995 __ SHEET 26 PAGE 101 ProTEXT Transcript Condensing for Windows __ PAGE 103 1 2 3 4 5 6 7 8 A. 9 10 Q. 11 12 13 14 15 A. 16 Q. 17 18 A. 19 Q. 20 21 22 7794 Corporation, PKA, Monsanto Company and Solutia, Inc." In your understanding does this decree run equally between Pharmacia and Solutia as defendants? MR. COX: Objection, foundation; calls for legal conclusion THE COURT: Overruled. I don't know what the legal implications of that statement are. Do you, of your own knowledge, know whether or not an agreement like this has been signed by Pharmacia -- whether this agreement has been signed by Pharmacia? I know this exhibit has not been but -- This particular -- I don't know. Well, a final version of this has been signed by Pharmacia? I do not know. Do you know whether -- assuming Pharmacia signs this, it will be signed by an official of Pharmacia, whether that is contemplated? 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . 17 18 THE COURT: Do you expect them to sign this document? THE WITNESS: Well, I expect someone 031802B 7796 representing Pharmacia in some form or another to sign the document, if it's signed, yes. THE COURT: Okay. You stated earlier that you don't know the legal implications of this agreement. THE WITNESS: I don't know the legal implications of the statement that both Solutia and Pharmacia, are defendants. THE COURT: Okay. Well, do you have an understanding from Solutia's point of view as to the implications -- or the extent of responsibility financially on behalf of both Solutia and Pharmacia? ___ PAGE 102 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MR. COX: Objection, speculation. 031802B 7795 THE COURT: As -- what was your question again? MR. COX: He asked him if he knows -Dr. Kaley testified he doesn't know if the agreement's been signed. He asked him then if he knows whether the agreement's going to be signed by an official of Pharmacia. THE COURT: Dr. Kaley, again, you're a negotiator as to this agreement, aren't you? THE WITNESS: I was present at the negotiations and was involved in technical discussions, yes. So to that extent -- THE COURT: Well, has anyone from Pharmacia stated that they're going to sign this document? THE WITNESS: Not that I know of. PARF. lOd 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 THE WITNESS: My understanding is that Solutia is the responsibility party. THE COURT: And what if Solutia were to fail to comply with their 031802B 7797 responsibility? THE WITNESS: Well, I -- I -- because it's a legal document and assuming Pharmacia has signed that document I would, you know, not being a lawyer, but I would guess they have the responsibility to follow-up and be sure that that's done. THE COURT: Who from Solutia would be able to come into this court and testify as to Solutia's complete understanding of the legal ramifications as they apply to Solutia and Pharmacia in this document? You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066996 _____ SHEET 27 PAGE 105 ProTEXT Transcript Condensing for Windows ___ PA GE 107 17 THE WITNESS: I would assume that I 18 -- I -- my first name would be 19 Mr. Bistline. 20 THE COURT: Okay. Any further 21 questions, Mr. Little? 22 MR. LITTLE: I don't think I have any 23 more questions. Let me -- 031802B 7798 1 that's all I have. 2 THE COURT: Okay. Mr. Monk? 3 MR. MONK: Just a few, Judge. 4 EXAMINATION 5 5 BY MR. MONK: 7 Q. 8 Dr. Kaley, the previous drafts of what is now 1-21, you've seen those, I take it? 9 A. Yes. 10 Q. 11 And is it my understanding that sometime that the human health assessment formed a 12 part of previous drafts to what is now 13 1-21? 14 A. Well, there was -- there was language 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 Q. 5 6 A. 7 Q. 8 A. q 10 and doctor -- THE COURT: Dr. Monk? MR. MONK: That's all right. I am a doctor. MR. COX: And Dr. Monk is talking about the community health surveillance or health clinic that was put forth in one of the draft letters. MR. MONK: No, I'm really not. MR. COX: Okay. 031802B 7800 MR. MONK: I'm talking about human health assessment. MR. COX: Okay. That was a part of the previous draft that is now 1-21, correct? The human health risk assessment. Yes, sir. Has been a part of every draft. It was always -- I mean, there is a risk assessment -- a human health risk PAGE 106 15 15 17 r\ 18 19 20 21 22 23 * 1 Q. 2 A. 3 Q. 4 5 6 7 8 q 10 11 12 regarding the fact that it would be done, yes. All right, sir. And where I'm coming to is I want to find out about this community input. I keep hearing that community input caused some changes that, for instance, resulted in the trust fund being established? Yes. 031802B 7799 Is that correct? Yes. Well, at what stage did the human health assessment studies -- were the human health studies removed from any of the drafts? When in the process of the development of 1-21? MR. COX: Objection. I think they're talking about two different things. I think Dr. Kaley's talking about risk assessment now. And doctor -- PAGE 108 11 12 Q. 13 14 A. 15 16 0. 17 A. 18 19 20 21 22 23 1 2 3 4 Q. 5 A. 6 7 8 assess -- I'm talking about human health studies. I apologize. Okay. And that's the point Mr. Co* was trying to make. I'm sorry. And I think I said yesterday that that early on was, you know, basically the EPA presented us a list of, as I recall, 14 items that were to be considered as part of a consent decree, of a negotiated settlement between EPA and Solutia. And that was on that list. And very early on 031802B 7801 Solutia felt that it was not appropriate that monies be -- Solutia's monies be used for that. You folks had protested that, had you not? Well, I don't know -- you use the term "protest." We felt that that was not appropriate and suggested that there were other more useful things -- ways such You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066997 ___ spEET 28 mq ProTEXT Transcript Condensing for Windows ___ PA GE 111 9 10 Q. 11 12 n71 . 13 14 15 16 Q. 17 A. 18 19 20 21 22 23 1 2 3 4 5 6 monies could be used. Well, back to my question. When was it removed from any of the prior drafts? Well, it was never in any of the drafts as I recall. Because the EPA wish list was presented very early on in this process, as I recall. In letter form maybe? In a letter, yes. And at that point basically we said, Well, the first thing we need to do is get these orders on consent to get this removal practice -- this removal program in place. We're going to do that first. We're going to table all these other discussions. And 031802B 7802 then once that's in place then we'll move on to the consent decree discussions. And that health study was always intended to be part of the consent decree discussions. By the time we got the drafts of those consent decree discussions, the health 5 6 7 8 A. 9 10 Q. 11 12 13 14 A. 15 Q. 16 17 A. 18 19 20 21 22 23 1 2 Q. for some reason you guys aren't permitted to talk to the community about these issues; is that right? We're not permitted to talk to Mr. Stewart's clients; that's correct. Well, who is the "community"? I mean I keep hearing that the community wanted this and the community wanted that and the EPA apparently talks to the community. Yes. And I'm sort of unaware of those discussions. My understanding is that it is the two -- basically the two groups in west Anniston. The community -- Citizens Against Pollution, which is my understanding, largely Mr. Stewart's clients, and the Cobb Town Sweet Valley Environmental Justice group which was largely the 031802B 7804 plaintiffs in the other litigation. But the community -- PAGE 110 7 0u a 10 11 12 13 14 Q. 15 16 17 ie 19 20 A. 21 22 23 1 Q. 2 3 4 study was no longer one of the terms we had agreed that/ yes* we would contribute monies for community foundation or something but that would be focused on education. So it was never -- as I recall, never in any of the drafts of this consent decree. Okay. Well, you said it was very early on that these discussions occurred. It was as late as January of 2001 by Plaintiffs' Exhibit 1-3. Do you recognise that? That's the letter from the EPA wherein they suggest these human health studies? Okay. I was -- that may very well be. The -- initial letter from the EPA was August 31, 2000. That's what I was thinking of. But that's fine. 031802B 7803 As of just over a year ago this was still an issue the EPA was insistent upon. And I heard you say I thought yesterday or some day prior, whatever day it was, that PAGE 112 3 A. A n 5 6n 7 8 9 10 11 A. 12 13 Q. 14 15 16 17 A. 18 19 Q. 20 21 22 23 And those were the two groups that the EPA WaS foCUSSing its discussions With, S3 I understand it. Is it your understanding from discussions with EPA that either or both of those groups consented to the removal of comprehensive community environmental health program or health studies? I don't know whether they have consented to that or not. Well, did you -- the EPA -- anyone with EPA tell you that they had even been advised that that was going to come out of the eventual draft decree? I don't know -- I don't recall them telling us that specifically, no. Do you recall any discussion -- that there was discussion with those two groups that you've mentioned or any other aspect of the community about removal of the community health studies? 031802B 7805 You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066998 ___ SHEET 29 PAGE 113 ProTEXT Transcript Condensing for Windows ___ PAGE 115 1 A. 2 3 Q. 4 A. 5 6 7 8 A. 9 Q. 10 11 12 13 14 15 A. 16 17 18 19 20 21 22 23 I don't know what EPA has or has not discussed with either of those groups. So they may not have? I don't know. MR. COX: Objection, speculation. THE COURT: Overruled. THE WITNESS: I'm sorry. I don't know. So you're telling me that, for instance, when this foundation was to be established, that you think that was a result of the discussions with these two small groups that you've made reference to and that that constitutes the community? No. Well, I believe that EPA had been in communication with those two groups who they believe represent the community in west Anniston where most of the PCB impacts have been determined. I believe that they solicited from those groups this list of things that those groups would find desirable in any sort of an agreement with Solutia. And I believe that there 22 23 A. 1 Q. 2 3 4 5 6 A. 7 Q. 8 9 A. 10 11 12 13 Q. 14 15 16 A. 17 Q. 18 19 A. representatives of the community? I do not know. 031802B 7807 Well, in the November draft of what is now 1-21, an earlier draft, I noticed that this foundation was to serve two purposes, one to provide some educational benefits, which we've already discussed -- Yes. -- and to provide primary health care. Do you recall that in an earlier draft? That may have been in there. But we -- at the time we believed that that was a reversion back to things that had been discussed and that we would not agree to. Well, primary -- provision of primary health care is not a human health study, is it? Not necessarily, no. It's not a comprehensive community environmental health program, is it? That's correct. No. PAGE lid l 2 3 4 5 6n 7 8 o nT\ . 10 11 Q. 12 A. 13 n 14 A. 15 Q. 16 A. 17 Q. 18 A. 19 Q. 20 A. 21 Q. 031802B /oOo have been ongoing communications, although I can't specify that, about the potential terms of those agreements. With one group or the other I don't know; I don't know who EPA is talking to in those groups. And y'all fund those groups under your administrative order on consent? Y'all provide some funding to them? Well, no. Under the proposed -- on the order of consent? On the order of consent? Oh, no, sir. No, sir. How are they funded? I don't have any idea. But not by you folks? Certainly not. How are they selected? How are they selected? Is it an ad hoc committee? I don't know. Do you have any idea how they become PAGE 116 20 n 21 22 A. 23 1 2 3 4 5 6 7 8 Q. 9 A. 10 11 12 13 14 15 16 17 Is was just to provide funds for folks to go to the doctor? Well, there were -- there have been -- there were -- during the years there have 031802B 7808 been many things discussed. I think one of the things in the very early draft was construction of a community health center or something. And, again, like the health study, we believed that that was not something appropriate for Solutia to be providing monies for. So -- Why? Why? Well, primarily for the reasons we discussed yesterday. I don't believe that -- that, number one, that from our point of view that there are severe health risks associated with exposures to PCBs in the community. Number two, a health study or provision of health care by Solutia I don't believe would contain credibility. And I think we believe that an educational You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000066999 ProTEXT Transcript Condensing for Windows ___ SHEET 30 PAGE 117 ______________ ___ PAGE 119 18 19 20 21 22 Q. 23 1 2 A. 3 4 5 Q. 6 7 8 9 10 11 A. 12 13 14 Q. 15 fund or something would provide immediate benefits to the community rather than a health study which would be a long-term outcome unknown exercise. Well, do you know whether the health concerns were the concerns of the EPA or 0318028 7809 of these community groups? My understanding is it's primarily the community groups. It's EPA's desire to deal with those concerns. Is it your understanding that the community groups were advised that in the revision of what is now 1-21 that even the provision for the foundation to provide for primary health care for west Anniston residence was removed? I don't know -- as I said, I don't know what EPA has communicated to the local community groups. Well, y'all objected to it or y'all took issue with it as being part of the plan, 14 15 16 17 18 A. 19 20 21 22 23 1 2 3 4 5 Q. 6 7 8 9 10 11 discussing its interrelated nature to the Owens settlement that reference was made to. Why is it that there's no funding in years -- what is it, four and five? Well, I wasn't involved in those -- the specifics of those negotiated payments. But I believe Mr. Stewart's characterization was basically correct, that we have substantial obligations under the Owens settlement during those years. 031802B 7811 And, frankly, trying to spread out more -you know, equalize the payments to the two groups over the time period that they will both be funded. And do you know if these -- the community as you've referred to it as, is aware of the details of this foundation and how it would be funded over the 12 years? MR. COX: Objection, speculation. MR. MONK: I just asked him if he knew. PAGE 11S 16 1 *7 1 1 n. 18 Q. 19 20 21 71 n. 22 n 23 1 A. 2 Q. 3 4 5 6 7 71 n. 8 o 10 11 12 13 Q. correct? mV _ i. mat 1 a wUiICwL. And no one with EPA has told you one way or the other as to whether they communicated that to the community groups? Not that I recall, no. So you certainly don't know their reaction to it? 031802B 7810 That's correct. I didn't understand -- well, strike that. This foundation that you have made reference to, y'all sat that up? I mean, I know you fund it. But do y'all set up who sits on that foundation? I would have to go back and look at the specifics of that. I think we have some input on -- of that subject to the approval of the EPA. But I don't recall specifically. I would have to look at the terms of that. I didn't understand -- I think we were ___ PAGE 120 12 13 A. 14 15 16 17 Q. 18 19 A. 20 Q. 21 A. 22 Q. 23 1 2 3 4 A. 5 0. 6 A. 1 Q. 8 9 A. THE COURT: Overruled. i don l know specixicaiiy. i mean, i wouid assume that EPA has been communicating this back to the community as this moves along but I don't know that. Y'all don't ask them, Have y'all talked to the community about this? No. You don't even so much as ask that? Not that I recall. Something that's not been discussed recently in the last few days is the G31802B 7B12 conservation corridor. When y'all go about doing a risk assessment, which I understand is part of this process -- Yes. -- under 1-21; is that correct? Yes. Do y'all have plans to utilize a conservation corridor? I don't know that it goes so far as to You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067000 ProTEXT Transcript Condensing for Windows ___ SHEET 31 PAGE 121 ____________________________________ ____ PAGE 123 10 11 12 13 14 Q. 15 16 17 18 19 20 A. 21 Q. 22 23 1 2 3 A. 4 5 Q. 6 7 plans. But we -- that has certainly been among the discussions of things that we would like to consider as an appropriate response along Choccolocco Creek, yes. Hell, if you are to -- if you were to fund do you recall the fund that was -- there has been previous testimony that maybe Mr. Branchfield testified that there was some money that was to go to the Chattowah Land Trust? I know the general details of that, yes. If you were to fund that at any point that this risk assessment study was going on, it would change the nature of the use of a 031802B 7813 significant amount of property that's been impacted by PCBs,correct? My understanding is it could have that impact, yes. And if it does that, does that not start the whole risk assessment process over? What I'm trying to get to is if land use 6 7 A. B 9 Q. 10 11 A. 12 Q. 13 14 15 16 17 18 19 20 21 22 23 1. 2 Q. 3 conservation corridors, right? I don't know specifically whether it would or not. It may very well, yes. Well, I understood Mr. Branchfield -- you weren't here for his testimony, were you? I was not. I understood his testimony to be that that was one of the benefits that it -- it affects land use such that there is not as much contact between humans and the soil, the soil is not disturbed through the easement. There are restrictions placed upon the property within the easement which would decrease the risk. MR. COX: Objection to the extent he's asking Dr. Kaley to comment upon Mr. Branchfield's testimony. It's improper. 031802B 7815 THE COURT: Overruled. Is that your understanding of why you would take the conservation easement or purchase _ PAGE 122 8 9 10 11 12 13 A. 14 15 16 17 18 19 20 21 22 Q. 23 1 A. 2 Q. 3 4 A. 5 Q. is changed by virtue of actions that are within your control, does that not have the potential of slowing down all of these studies that we want to get through to get to the remedy phase? No. I don't believe it does. I believe it -- it will not change the risk assessment. It may change what are appropriate corrective measures. So it could have an effect on what Solutia and the agencies and the community would agree to are appropriate corrective measures for portions of the creek. But I don't believe it would slow anything down. Corrective measures are dependent upon the risk assessment? 031802B 7814 The proposals are, yes. And risk assessment's dependant upon land use? To some extent, yes. And land use would be changed by PAGE 124 5 A. 6 Q. 7 8 A. 9 10 11 12 13 Q. 14 15 A. 15 Q. 17 A. 18 Q. 19 20 A. 21 22 23 one? That is one aspect of it, yes. And as we are here today, you don't know whether that is a plan that Solutia has? I don't know. I mean, it's -- it is being discussed as a potential option. I don't think that there's necessarily a plan to go forward with that, no, as I sit here today. No money is budgeted in the neighborhood of four million dollars for that? I don't know. Have you heard that figure? No, I haven't. To be set aside for a conservation corridor? No. But I'm assuming he didn't make it up. So for Mr. Branchfield -- Mr. Branchfield has had the lead on that and he's the appropriate person to ask about 031802B 7816 that. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067001 ProTEXT Transcript Condensing for Windows ___ SHEET 32 PAGE 125 ____________________________________ ___ PAGE 127 2 Q. 3 4 A. 5 Q. 6 7 8 A. 9 10 Q. 11 A. 12 13 14 15 Q. 16 17 A. 18 19 Q. 20 21 22 23 A. Have you been in any discussions with any land trust members? I have not. Have you seen any communications between any representatives, Solutia and any land trust? I think I've seen some draft documents, but I don't recall any specifics. And what are those draft documents? I believe they were documents that the - one was the Chattowah Land Trust or something suggested might be used with with property owners along the creek. Do you know who the Chattowah Land Trust is? Other than I've heard Craig talk about it, no. I mean, who are thepeople associated? We've heard some people that aren't associated. I'm trying to figure who is associated withit. I don't know. 031802B 23 1 2 A. 3 4 5 6 7 8 Q. 9 10 A. 11 Q. 12 13 14 15 16 17 18 A. 19 20 of the property? I didn't know whether it 031802B 7818 was asked before. We got close. I guess I'm not sure what you mean. I mean, we sample a property and the result is what it is. If it is at a level that such that we are required to do removal action then there's further action. Other than that -- All right. That's an action level maybe. That's a removal action level. Yes. But my question is is that -- in the course of your investigation do you have sampling levels that if a piece of property once sampled falls below a certain level, no further investigation is done of that property or maybe the property immediately surrounding it? I -- well, I mean, once we've sampled a property we believe we've done everything appropriate to sample that property so we PAGE 126 7817 1 You've not seen anything? 2 No. 3 Given the extent of this pollution into a 4 significant portion of this municipality, 5 the City of Anniston, is there any reason 6 that elected officials aren't -- don't 7 form a part of the community that you 8 would report to or that would have any 9 input in the community issues related to 10 this pollution and this remediation? 11 No. I know of no reason why they wouldn't 12 be included. 13 Are they in other areas of the country? 14 I don't know. 15 Would that be something that would be 16 objectionable in your mind, to you, as a 17 representative of Solutia? 18 No. I think it would be preferable. 19 Just one last question. Do y'all have 20 sampling thresholds; that is, that if 21 property is sampled and it is at a level 22 or below you do no further investigation PAGE 128 21 don't continue to sample that property. 22 Now, whether further action of some kind 23 or another may be appropriate based on 031802B 7819 1 that number, that's a separate question 2 and that's partly what's being addressed 3 by the consent decree. But I guess I 4 really don't understand what your question 5 means. I mean, once we've done the 6 sampling we've done the sampling. 7 THE COURT: Well, let me try to ask 8 it a different way. If John 9 Doe's property had 2.11 parts per 10 million of PCBs in the soil, 11 would Solutia argue that no 12 further cleanup needed to be 13 considered? 14 THE WITNESS: I would - 15 THE COURT: Or that cleanup does need 16 to be considered? 17 THE WITNESS: I think that's partly 18 what's going to be -- I mean You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067002 ___ SHEET 33 PAGE 129 ProTEXT Transcript Condensing for Windows ___ PAGE 131 19 that's why we've entered into 15 20 that consent decree is to working 16 21 with the regulatory agencies and 17 22 community inputs into this, that 18 23 the level at which that decision 19 031802B 20 7820 21 1 will be made is the output of 22 2 this process. 23 3 THE COURT: Okay. But does Solutia 4 not have a predetermined level at 5 which -- or a target level at 1 6 which it wants to concentrate? 2 7 THE WITNESS: No, I don't believe we 3 8 do. I mean, we're in this 4 9 process to determine that level 5 10 with the appropriate science. 6 11 THE COURT: What science do you need 7 12 , in order to take a look at the 8 13 level? I mean -- 9 14 THE WITNESS: Well, it says - it's 10 15 the risk assessment process. 11 16 THE COURT: Okay. 12 exposure scenarios, don't you, as to the plaintiffs' property in this case? THE WITNESS: To some extent. I would -- not necessarily totally. But to some extent, yes. THE COURT: To a great extent, don't you? THE WITNESS: To a large extent. 031802B 7822 I'll go along with that, yes. THE COURT: Okay. And what else was it you said you needed? THE WITNESS: Those are primarily -- I'm not a risk assessor but I think those are primarily the components we need. THE COURT: Okay. Would you agree that the risk assessment could be done on the plaintiffs' properties in this case within a two month period? PARE 130 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 " THE WITNESS: It's looking at sampling level, exposure scenarios, land use, and those kinds of things to -- THE COURT: Don't we already know a great deal of that information already? 031802B 7821 THE WITNESS: On some properties we may very well. THE COURT: On all the properties involved or owned by the plaintiffs in this case we already know that data, don't we? THE WITNESS: We know data, yes. THE COURT: Okay. And you know the use of that property? THE WITNESS: Yes. THE COURT: What else was it you said you needed to know? THE WITNESS: Exposure scenarios. THE COURT: You already know the PARE 13? 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 THE WITNESS: No, I would not. THE COURT: So if Hr. Woodyard said that it could be you would disagree with him? THE WITNESS: Right. And the primary reason for that is because in the discussions with EPA, the EPA risk assessors have made it clear that they are going to require risk assessments of a much more sophisticated nature requiring 031802B 7823 kinds of analytical data that we don't have right now. THE COURT: Okay. THE WITNESS: Looking at the specific congeners of PCBs and things like that. And we don't have those kind of data to do that risk assessment. THE COURT: And when you use the term "congener" -- You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067003 ___ SHEET 34 PAGE 133 ProTEXT Transcript Condensing for Windows ___ PAGE 135 11 THE WITNESS: Yes. 7 it done very routinely is it's 12 THE COURT: -- what do you mean? 8 very expensive. Because instead 13 THE WITNESS: Okay. There are -- 9 of running say four Aroclor 14 PCBs are a large mixture of 10 standards, as you may have seen 15 compounds and there are two 11 the fingerprint that Mr. Bonner 16 hundred -- 12 put up, you would literally run 17 THE COURT: You're talking about the 13 depending on how many -- you 18 different Aroclors? 14 wouldn't run the whole 209 19 THE WITNESS: No. Talking about 15 classic but you run about 150. 20 there are 209 different specific 16 So it's a much more time 21 chemicals that are PCBs. 17 consuming and expensive process. 22 Aroclors are mixtures of 18 But there is a -- Professor 23 congeners. 19 Hermanson, all of his data is 031802B 20 congener specific, all of the air 7824 21 data is congener specific. 1 THE COURT: Right. 22 THE COURT: I thought someone's had 2 THE WITNESS: All right. And the 23 it. 3 current science is that to do an 031802B 4 appropriate risk assessment for 7826 5 PCBs you need to look at one or 1 THE WITNESS: Yeah. Dr. Hermanson 6 more of these specific 209 2 was talking about the need to do 7 chemicals to determine the 3 that congener specific analyses 8 appropriate end point and how to 4 and then subsequently there would ___ PAGE 134 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 do a risk assessment around that end point. And EFA has told us that that's one of the things they're going to focus on in this risk assessment and neither the agencies nor Solutia has those data. And it's going to take some time to collect those data. THE COURT: Do you know whether or not the plaintiffs have that data? THE WITNESS: I don't know whether they do or not. THE COURT: Do the plaintiffs have that data? 031802B 7825 MR. CUNNINGHAM: Both sides conducted, I believe, some congener specific data at Mars Hill. We went and bought the complete set of standards. That's the reason you don't see paav 11 fi 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 be presumably risk assessment on the air data also. So that's consistent with what he said. MR. COX: And I think other than the Mars Hill data, I don't believe any of the other plaintiffs' data was recorded on a congener by congener basis. THE COURT: Would you have to go back and retest or could you take the data or the -- I assume there are still some samples out there that could be analysed; could you take those samples that have already been taken? THE WITNESS: I'm afraid the answer's probably not. THE COURT: I was afraid the answer might be probably not too. 031802B 7827 THE WITNESS: If the samples have been -- of soil have been frozen You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067004 ___ SHEET 35 PAGE 137 ProTEXT Transcript Condensing for Windows ___ PAGE 139 3. 4 5 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 and cared for carefully, you might be able to do it. But these analyses require in the -in the what they call the cleanup stage of the analysis additional cleanup. So you couldn't just take the same data that we've already got and rerun the samples and get the kind of information we want. THE COURT: Okay. Is this a requirement within the proposed consent decree that has been added recently? THE WITNESS: It is not written into the consent decree. But it is -- we have been informed by Mr. Aiken of EPA or Dr. Aiken, I guess, of EPA that it will be a requirement as we move forward with the specific details of the 031802B 7828 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q. 19 20 21 031802B 7829 Alabama and stuff like that. So that's why you can't do it in two months. It takes a long time to generate numbers -THE COURT: I assume you are going to have somebody to testify to that rather than just -MR. CUNNINGHAM: Yes. MR. COX: I would move to strike Mr. Cunningham's testimony. MR. MONK: I didn't ask the question. THE COURT: I'm not going to strike it but I'm not going to consider it as testimony either. Mr. Monk, do you have any further questions? MR. MONK: Just one last one. (By Mr. Monk) This risk assessment really is at a snapshot point in time because it does take into consideration land use, correct? When you come out with your risk PACT. 13ft 1 2 3 4 5 6 7 8 q 10 11 12 13 14 15 16 17 18 19 20 21 22 23 risk assessment. This is mostly -- it's a -- it's a -- a scope of work kind of document rather than the details of how the work is going to be done. THE COURT: So that's not something that's going to be written into the document? THE WITNESS: Not the consent decree itself, no. THE COURT: Okay. Mr. Monk? MR. CUNNINGHAM: This is just -- Dr. Lee did a risk assessment up in Kentucky on the Mudd River. They're going to come out with a number around 250 parts per million as an acceptable number that you could have. So to do that you've got to find all kinds of funky things to do like this soil congener analysis and come out and assume that people wear long sleeves in the summer in PAGE 140 22 L3 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 0. 14 15 16 17 A. 18 19 Q. assessment it's based upon a snapshot of a -- at a point in time as to when the 031802B 7830 testing took place obviously based upon land usage and other variables you discussed? Well, not so much land usage as exposure scenarios. But to get -- I mean land usage is a part of the exposure scenario and I think the answer to your question is basically yes. But -- but you project forward on -- on how -- what the exposure scenarios may look like after that point in time and that's how you determine what action is appropriate. And in your answer it seems to hint to me that there will be different tolerable levels of PCBs based upon the risk assessment, based in part upon land usage? That's clearly true. The classic example of that is residential versus industrial. Well, if, for instance, the City has a You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067005 ___ SHEET 36 PAGE 141 ProTEXT Transcript Condensing for Windows ___ PAGE 143 ---------------------------------------------------------------------------------- 20 21 22 23 1 2 A. 3 Q. 4 5 6 7 8 3 10 11 12 A. 13 14 15 16 17 passive part, green space, for lack of a better word and it's -- that would have a different risk assessment than a school yard or a public housing authority piece 031802B 7831 of property? It very well might, yes. But then taking into account the risk assessment that's done in the year 2002, 2003, does that not lock in land usage, i.e., the City might not be able to use that property in the future for a public housing authority because of the tolerable levels that were permitted to remain as an a result of the 2002, 2003 risk assessment? Well, part of that depends on how finely you slice and dice. I think there's that possibility. I mean, that's basically the concept of what's called brown fields. Is that if an area is known to be an industrial area then maybe you can use 16 17 18 19 20 21 22 23 031802B 7833 1 (3:30 p.m.) 2 THE COURT: Back on the record. 3 Mr. Cox? 4 MR. COX: Yes. 5 6 EXAMINATION 7 BY MR. COX: 8 Q. g Dr. Kaley, the administrative order on consent included areas -- or included 10 requirements in areas that formerly were 11 . part of the RCRA permit, did they not? 12 A. That's correct. 13 Q. Those included the Eleventh Street ___ PAGE 142 18 13 20 21 22 23 Q. 1 A. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 that area for industrial applications rather than cleaning it up to a residential standard. That's the whole purpose of brown fields. So clearly you are correct. Brown fields are not passive parts. 031802B 7832 I understand. Areas where -- and I think Mr. Stewart brought out, where children are going to be potentially have exposure, I think there's enough conservatism built into the risk assessment process that it's not going to limit the City and its ability to use the land the way it wants to. MR. MONK: Thank you. THE COURT: Let's go ahead and take a short break. (Break at 3:07.) ___ PAGE 1 AA 14 15 A. 16 Q. 17 A. IB Q. 19 20 A. 21 Q. 22 23 1 2 A. 3 0. 4 5 6 7 8 9 10 A. 11 Q. ditch? Yes. The Oxford Park? Yes. And then the dirt that was removed from the mall property? That's correct. All those were formally under RCRA, but they ended up being put into this first or second administrative order on 031902B 7834 consent? Yes. Prior to receiving what has been marked as Plaintiffs' Exhibit 1-21, did you have an understanding, as to other areas that were formerly under the RCRA program, that you all were going to be managed by the EPA under CERCLA before you received that document? Yes. What were those areas? You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067006 ,___ SHEET 37 PAGE 145 ProTEXT Transcript Condensing for Windows __ PAGE 147 ____________________________________________ 12 A. 13 Q. 14 A. 15 16 Q. 17 18 A. 19 Q. 20 21 22 23 1 2 3 A. 4 Q. 5 A. 6 7 8 9 Snow Creek and Choccolocco Creek. Where did you gain that understanding? From an earlier draft of this document from the EPA. And that information came from EPA to you? Yes. That's correct. Prior to the administrative orders on consent and then the work that was developed in connection with the drafting of the consent decree, what was your understanding of the EPA role with 031902B 7835 respect to the presence of PCBs in residential areas. Before the area of concept discussions? Yes. Basically I don't know -- I mean, they had oversight over the whole project, but I don't believe they had any direct involvement in PCBs on those residential areas? 8 Q. 9 10 11 12 13 14 A. 15 16 17 Q. 18 19 20 A. 21 22 Q. 23 1 2 3 4 5 Now, there was some discussion the other day about the stipulated penalties. Is it Solutia's intention of ever incurring a stipulated penalty in connection with the work performed under the consent decree? No. It is our intention to perform the work in such a manner that those penalty clauses are never invoked. And the amounts of those penalties, were those amounts negotiated, or are those the ones that were specified by EPA? My recollection is they were negotiated. I don't recall specifically. There was also some discussion on another matter regarding medical 031902B 7837 surveillance of employees who worked with PCBs. What is your understanding of the program that was done in Anniston to perform medical tests of employees who worked in the Aroclor department? 10 Q. 11 IX 12 13 14 A. 15 16 Q. 17 18 19 20 21 A. 22 23 1 2 3 4 Q. 5 6 7 A. Had they not established the emergency action level prior to the entry of the first administrative order on consent in October 2000? . That is correct. Yes. I'm sorry. That is correct. In the first administrative order on consent, were there not sis properties, or the identification of sis properties for which the removal would already be applied once the agreement was signed? That's correct, based on the sampling that they had done. In their sampling and analysis program they had identified 031902B 7836 sis properties which they felt were appropriate for removal action. That's correct. .And those sis properties and the removal for those properties were specified in the first consent order? That's correct. PAGE 148 ____________________________________________ 6 A. 7 8 9 10 Q. 11 12 A. 13 Q. 14 15 16 A. 17 Q. 18 19 20 A. 21 Q. 22 23 A. 1 2 Q. 3 My understanding is that the employees who worked m the nioclor department at Anniston were given the same physicals as all the other workers at the plant. Were there any special tests given to non PCB workers? I don't know that specifically. Okay. But you do know that the PCB workers did not have any special medical tests? That is my understanding, yes. There has been some discussion in this case about the report that was prepared by the emergency response team by EPA. Yes. And did Solutia have an opportunity to provide comments on that report? Yes. We did prepare comments and submit 031902B 7838 comments on that report. Let me show you what I have marked as Defendants' Exhibit 1097. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067007 ProTEXT Transcript Condensing for Windows ___ SHEET 38 PAGE 149 ______________________________ __ PAGE 151 4 5 6 7 A. 8 9 10 11 Q. 12 13 A. 14 Q. 15 16 17 18 A. 19 Q. 20 21 22 23 A. 1 Let me ask you if you would to identify for the record Defendants' 1097. Yes. This is a cover letter, and then specific comments that Solutia's prepared and sent to the U.S. EPA on the ERT report. Now, were there items in the ERT report that Solutia believed were erroneous? Definitely, yes. Are those comments about the errors that Solutia believes were in the ERT report, are they set forth in Defendants' Exhibit 1097? Yes, they are, in detail. Can you give the Court some examples of some of the errors that Solutia pointed out in the ERT report when you submitted your comments? I think one of the ones that mostjumped 031902B 7839 to my mind, because Dr. Ellis reminded 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Q. 17 18 19 A. 20 Q. 21 22 7840 threshold. So that is the only sniff analyses that were ever done. That was never done by Solutia or its contractors for PCBs and never would be done. It is just silly to even think so. There were also errors on calculations of groundwater movement where the contractor for EPA estimated groundwater movement based on a hundred year movement of groundwater on a landfill that had only been used since 1960. They also had errors in their reporting of the air data. So there are a number of factual and conceptual errors in this report. And those things are pointed out in your response to the EPA regarding the report; is that correct? Clearly pointedout, yes. Isn't that how the process works, that one entity will do a report and will provide an opportunity for comment, and ___ PAGE 150 ____________________________________________ 2 me of it during his testimony, was the 3 fact the ERT report suggested that 4 Solutia had done analyses for PCBs by 5 smelling various samples. And that -- 6 At the time it was incredible that 7 scientists through the contract with EPA 8 had had that misconception; it was even 9 more incredible that Mr. Ellis would 10 have bought into that misconception, 11 because as he pointed out, PCBs 12 basically have no odor, and they would 13 not be detectable by sniffing samples. 14 That whole issue is a 15 misunderstanding, based on the fact that 16 when contractors and employees of 17 Solutia were drilling wells for the 18 groundwater capture system, they 19 actually would sniff those to test -- or 20 to see if they could smell 21 organophosphate herb -- pesticides, 22 because those have a very distinctive 23 odor, and they have a very low 031902B ___ PAGE 152 ____________________________________________ 23 1 2 3 A. 4 5 6 7 8 9 Q. 10 11 12 13 A. 14 Q. 15 A. 16 17 18 19 Q. 20 other entities can provide comments to 031902B 7841 it and make it a better product at the end of the day? Yes. That is the way the process works. It is my understanding that ADEM also made comments on this report so that there is an interaction among various of the stakeholders on these technical documents, yes. They also made a substantial error in terms of reporting the levels in air that hadbeen detected in Anniston; isn't that correct? That's correct. In fact, they missed it by -- Basically they missed it by a factor of a thousand, because they reported the units in micrograms per cubic meter instead nanograms per cubic meter. And that makes a significant difference in the terms of thelevel? You may have up to 3 and 3 Footer Lines WATER PCB-SD0000067008 SHEET 39 PAGE 153 ProTEXT Transcript Condensing for Windows ___ PAGE 155 ---------------------------------------------------------------------------------- 21 nTV . 22 23 Q. 1 2 3 A. 4 Q. 5 6 A. 7 8 9 10 11 12 13 14 r\ 15 16 17 18 Absolutely. It is a thousand times higher. The ERT report also, though, 031902B 7842 specifically recommended that the landfills not be dug up, did it not? That's correct. And does Solutia concur with that conclusion reached in the ERT report? Yes. We agree with that conclusion. MR. COX: Your Honor, we would offer Defendants' Exhibit 1097. THE COURT: It is a admitted. (Whereupon Defendants' Exhibit 1097 was offered and admitted into evidence.) In connection with the process where one group or entity will develop a report or draft a report and solicit public comments, Solutia has also had an opportunity to comment on various health 17 18 19 20 21 22 23 Q. 1 2 3 4 A. 5 6 7 8 9 Q. 10 11 12 13 14 wasn't marked, but I think I remember the number. So I'm going to just write it on there, if that is all right. THE COURT: That's fine. MR. COX: 701. Dr. Raley, let me show you what I have 031902B 7844 marked as Defendants' Exhibit 701 and ask if you can identify that for the record. Yes. This is a copy of the information we provided to ATSDR in response to their request for comments on the draft health consultation that you mentioned earlier. And just -- I understand this is a fairly lengthy document. And we won't go through it all. But in general what were some of the significant comments that Solutia had regarding the February 14th, 2000, health consultation? PAGE 154 19 consultations that have been performed, 20 either by ERA or AISDR, has it not? 21 A. Yes, we have. 22 * 23 And one of those health consults -- I think it has previously been admitted 031902B 7843 1 into evidence in this case -- was from 2 February 14th of 2000. It is the health 3 consult that was the evaluation of the 4 - blood, soil and air data? 5 A. Yes. I'm familiar with that. 6 Q. 7 You are familiar with that document, and it has previously been admitted before 8 the Court for purposes of this 9 proceeding. 10 Did Solutia provide comments in 11 connection with the draft of that report 12 that was issued by ATSDR? 13 A. Yes. We made extensive comments on that 14 report. 15 MR. COX: Your Honor, I think my 16 secretary gave me one that ___ PAGE 15 A. 15 17 18 19 20 21 22 23 1 2 3 4 5 6 7 Q. 8 9 10 11 12 A. There were a number of areas of particular concern. In the first place, we believe that some of their conclusions with regard to exposures to -- or potential exposures to children were based on errors in the data set that they were using to try to understand the potential levels of PCB body burdens in Anniston residents. We 031902B 7845 believe that there were some misconceptions and the discussions on dioxin and furans were inappropriate based on the levels that had been reported. Those are the ones I recall specifically. And specifically can you give some examples to the Court on errors that you found in the blood results they were using that led to their conclusion about the exposure to PCBs in children? Yes. They had reached a conclusion that You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067009 ___ SHEET 40 PAGE 157 ProTEXT Transcript Condensing for Windows PAGE 159 ---------------------------------------------------------------------------------- 13 . 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 Q. there was ongoing exposure in Anniston based on the fact that they believed that there were blood levels detected in four children in the Anniston area. And based on information that had been provided that we had, we were able to show the agency that in fact of those four children I believe two were actually adults, and that there were errors in the birth dates of those in the data set that ATSDR was using, that 031902B 7846 one of the children had spent his whole life in California. And I believe there was one child whose blood level was, as far as we could tell, reported correctly, but we felt it significant that that child's siblings had nondetect blood levels. So those were some specific errors we pointed out on that case. After ATSDR received your comments that 9 10 Q. 11 12 13 A. 14 15 16 17 18 Q. 19 20 21 A. 22 23 0* 1 2 3 4 5 n. 6 admitted into evidence.) Let me show you what I have marked as Defendants' Exhibit 789 and ask you if you can identify this document. Yes. This is the cover letter in the specific information that we provided to ATSDR with regard to the specifics of those four children, or four alleged children, I guess. The February 14th, 2000 health consult, to your knowledge, has it ever been put in final form? No. It has not been finalised, no. That is correct. Do you have any information to indicate 031902B 7848 that ATSDR believes that some of the information they relied upon for that February 2001 health consult is in fact erroneous? Yes. They do refer to it in their responses to comments on an exposure ___ PAGE 1 SR 11 12 13 14 15 A. 16 17 18 19 20 Q. 21 22 A. 23 Q. 1 2 3 4 5 6 7 8 are reflected in Defendants' Exhibit 701, did they request additional information from Solutia to back up your comments. Yes. Our initial comments were more general in nature. Then they requested that Solutia provide the specifics which I just discussed with regard to those four children. And did you provide that specific information in writing? Yes, I did. And let me show you what I have marked 031902B 7847 as Defendants' Exhibit -MR. COX: Your Honor, while we are at it, I will move for the admission of Defendants' Exhibit 701. THE COURT: It is admitted. (Whereupon Defendants' Exhibit 701 was offered and PAGE i fin 7 A 0 Q Q. 10 11 12 13 14 15 16 17 A, 18 Q. 19 A. 20 Q. 21 A. 22 23 1 2 3 4 evaluation, which was put out by the agency in October of 2001. Let me just show you for the record -This is already in; it is Defendants' Exhibit 1080 -- and ask you if that is the document you are referring to where ATSDR responded to comments in that study indicating that they believe there were some errors in the February 2000 study? Yes, it is. Can you specifically find the comment? Yes. Can you read that into the record? Yes. This is on page three of the response to comments, appendix A of the health consultation exposure 031902B 7849 investigation from October of 2001. And there was a question submitted or a comment submitted to ATSDR, were results compared to results from You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067010 ProTEXT Transcript Condensing for Windows ___ SHEET 41 PAGE 161 ______________________________ ___ PAGE 163 ____________________________________________ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 Q. 2 community data used with ATSDR PCB health consultation, parenthesis, February 2000, close parenthesis. And ATSDR's response was, This report, meaning the present report, evaluated only the data generated by ATSDR in its exposure investigation. The previous draft health consultation included an evaluation of data that was provided by an attorney who is representing residents of the area. Information provided to ATSDR during the public comment period for this health consultation suggests that some of the information in the attorneys' data base is incorrect. The final health consultation will be revised in accordance with the new information received. 031902B 7850 Just so the record is clear, I think the errors in the data were in -- There were 1 2 A. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 21 22 A. 23 Q. manufacture of PCBs? Yes. Chlorinated dibencofurans can be associated with the manufacture of PCBs in two ways. In one way low levels, about one two parts per million of chlorinated dibencofurans were present as unintended byproducts of the manufacturing process. So some PCBs did contain low levels of furans as they were manufactured and distributed. Also, I think it was Dr. Ellis mentioned the other day, low levels of furans can be produced by incomplete combustion of PCBs, but that occurs only in a very limited range of temperatures in the combustion process. And if furans are associated with the manufacture of PCBs, there has been testimony from Mr. Branchfield that we are not -- or that Solutia is not looking for it. That's correct. Why not? PAGE 162 some transposition errors in the data table that had been provided to ATSDR? I'm not sure we know exactly what the source of the errors were. The most specific errors were, for instance, errors in birth dates for some of the persons whose blood data were reported. 10 Dr. Kaley, are dioxins associated with 11 the manufacture of PCBs? 12 No, they are not. 13 Why not? 14 The chemistry is such that to form 15 dioxins from PCBs is basically a 16 physical impossibility. I think it 17 would require -- without going into too 18 much detail -- the breaking and 19 recombination of bonds in such a way 20 that it is extremely unlikely if not 21 impossible that it could happen at 22 measurable levels. 23 Are furans associated with the 031902B 7851 PAGE 164 1 A. 2 3 4 5 6 7 10 11 12 13 14 15 16 17 A. 18 19 Q. 20 21 A 031902B 10*i a 3r La Well, number one, if they were -- They were present at about a part per million in the PCBs as manufactured. So if PCBs were present in a soil sample at, say, a hundred parts per million, then the furans would be present at a hundred parts per trillion, which is an extremely low level. The second reason is that anything that is done to remediate the PCBs in the Anniston area will also remediate whatever trace levels of furans might be present. So we do not feel that there is an advantage to doing those analyses. Do those analyses for dioxins and furans cost more money than PCB analysis? Well, they are much more expensive, and they are very much more time consuming. That was my second question. Do they take more time? Yes. Both more expensive and more time You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067011 ProTEXT Transcript Condensing for Windows ___ SHEET 4 2 PAGE 165 ______________________________ 22 23 Q. 1 2 3 4 A. 5 6 Q. 7 8 A. 9 10 11 12 13 14 15 16 17 18 19 consuming. Now, are you familiar with the process 031902B 7853 under the RCRA facility investigation that identified constituents of potential concern? I have general information of that process, yes. Can you generally describe that process for the Court? Well, basically the process started by looking at a list of every chemical that had ever been manufactured, used, or generated at the Anniston plant during -- throughout the lifetime of the plant. And then that list was compared with available analytical data to determine whether throughout the lifetime of the plant any of those particular constituents had been detected in samples. And at that point a process was developed to basically 18 Q. 19 20 21 22 23 A. 1 Q. 2 3 4 5 6 A. 7 8 9 10 11 12 Q. 13 14 15 Will that same process be used to determine what areas in or around Anniston are covered by the consent decree, and downstream will be sampled for what constituents? Yes. That's correct. 031902B 7855 Are all of those decisions, as far as the extent of the investigation in terms of the types of chemicals and materials that you look for, is all thatsubject to review and approval by EPA? Yes. As a matter of fact, we had suggested that the entire investigation be focused on PCBs, and they were uncomfortable with that and requested that we expand it to include other potential constituents. There was some discussion between you and Mr. Stewart regarding laboratories. Can you tell the Court what a CLP laboratory is? ___ PAGE 166 ____________________________________________ 20 21 22 23 1 2 3 Q. 4 5 6 7 8 9 A. 10 11 12 13 Q. 14 15 16 17 A. compare those two lists and come up with a list of chemicals that we knew were associated with operations at the plant, but that there weren't enough data ' 031902B 7854 either to rule in or rule out. So that's how that list was generated. And that also -- that list is the list of chemicals that you used -- or that Solutia uses to do their analysis when they go out and take samples in different areas, whether they are on the plant site or off the plant site? When we are doing a general. If the investigation isn't focused specifically on PCBs, yes, that is the list of analyses we do. Is that concept of developing lists of constituents of potential concern, is that concept carried over or picked up in the consent decree? Yes, it is. ___ PAGE 168 _____________________________________________ 16 A. 17 18 19 20 21 22 23 Q. 1 2 3 4 5 6 7 8 A. 9 10 11 12 13 Yes. A CLP laboratory is a certified lab. CLP stands for the certified laboratory program. It is a program instituted by EPA and overseen by EPA, which requires laboratories that analyse samples that would be submitted to EPA to meet certain performance standards. Under the consent decree draft -- I 031902B 7856 think you have it, Plaintiffs' Exhibit 1-21. If you turn to page seven of the statement of work, which is the last document, if a laboratory is not a CLP lab, can you tell the Court what has to be done before EPA will agree to approve the work by that laboratory? Okay. There is a sentence in this draft that says if a laboratory -- I'm sorry. It's contract laboratory program, not certified. "If a laboratory not in the Contract Laboratory Program is selected, methods consistent with CLP methods that You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067012 SHEET 4 7 PARE 1fi<S ProTEXT Transcript Condensing for Windows PAGE 171 14 15 16 17 18 19 20 21 22 23 Q. 1 2 3 4 5 A. 6 Q. 7 8 9 10 11 A. would be used at this site for the purposes proposed and the QA/QC" -- which stands for quality assurance, quality control -- "procedures approved by EPA will be used." So if a laboratory is not already CLP certified, it will essentially have to go through the same process that it would have to go through to become CLP certified. And does that process -- Back Up. 031902B 7857 Are the laboratories that Solutia is using for this project and proposes to use for the work under the consent decree CLP laboratories? Yes, they are. And if the laboratories that were proposed for this project were not CLP laboratories, would that delay the activities called for in the consent decree? Yes. Because they would have to 10 11 12 A. 13 14 15 16 17 18 19 Q. 20 21 22 23 1 A. 2 Q. 3 4 A. 5 6 Q. 7 when the work could start under the consent decree? I believe it would, yes. My understanding is that it takes months to a year to generate that body of data. So obviously we couldn't submit real samples to that laboratory until they were able to demonstrate their performance. So any laboratory even after if was established, there would be some delay before you could submit samples that could be used under the consent decree that were analyzed by it? 031902B 7859 That would be my understanding. Do you have an estimate of how long that would take? I would think, as I said, sis months to a year, possibly. Dr. Ellis also testified regarding -and I criticized Solutia for the use of PAGE 170 12 13 14 15 16 17 r, 18 19 A. 20 Q. 21 22 23 A. 1 r, 2 3 4 5 A. 6 7 8 Q. 9 generate this entire body of quality assurance, quality control information to show to the agency and to Solutia that they were capable of performing analyses under certified methods. And you were in here for Dr. Hermanson's testimony, were you not? Yes, I was. You heard him suggest that it would be a good idea to establish a dedicated laboratory for purposes of this project? Yes, I did. 031902B 7858 Would that laboratory have to be accepted by EPA or become a CLP laboratory before the data could be used under the consent decree? To be used under the consent decree, it certainly would have to meet those criteria, yes. Would such a laboratory or the establishment of such laboratory delay PAGE 177 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. 23 A. 1 Q. 2 3 4 A. 5 what I will call a team approach to the various projects that have been undertaken in the Anniston area and suggested it would be better to have one company do everything. And I think the phrase is used "from soup to nuts." MR. STEWART: Judge, I would object to that as mischaracterizing Dr. Ellis' testimony. I don't believe he said that. But just to put the objection on the record. THE COURT: Overruled. Go ahead. I'm sorry, what was the question? 031902B 7860 Why hasn't Solutia taken -- Why hasn't Solutia taken a single entity to perform all the work in Anniston? We believe that in Anniston and other places that a better approach is to get You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067013 SHEET 44 PAGE 173 ProTEXT Transcript Condensing for Windows _ PAGE 175 _____________ 6 the best people available for every 7 specific discipline so that rather than 8 hiring company XYZ, which may have an 9 excellent hydrogeologist or an excellent 10 groundwater person and a so-so 11 remediation technology person, we can 12 take the best from all those consulting 13 firms, put them together as a team, put 14 them under a management group and get 15 the most data and the best data and the 16 most usable data in that manner. 17 I think the ERT report, where they 18 basically did buy an off-the-shelf kind 19 of contractor to do that report is an 20 example of what can happen when you 21 don't do that, when you don't have 22 strict oversight and all that expertise. 23 I think you need to be sure you have the 031902B 7861 best people available for the job. Has Solutia gone out and retained experts in the specific fields to 2 A couple of other issues, Dr. Kaley, 3 will the community have an opportunity 4 to be involved in the consent decree 5 process? 6 Yes. They certainly will. I think 7 there is -- There are two aspects to 8 that. Number one, there is a community 9 -- a comment period which will run after 10 this consent decree is entered, as I 11 understand it. But even more 12 importantly, the consent decree has 13 specific provisions for Solutia to fund, 14 number one, a technical advisory panel 15 -- or devise. Excuse me. To devise a 16 technical advisory program which will 17 allow the community to hire a technical 18 expert to advise them on the technical 19 aspects of the consent decree and the 20 work done under the consent decree, and 21 also, the program -- or the consent 22 decree has provisions for establishing a 23 community advisory group or a community 031902B PAGE 174 6 A. 1 Q. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 address the particular project in Anniston? Yes, we have. And is there someone providing overall oversight for Solutia of the activities that have been undertaken in Anniston? Yes. There are inside people. Mr. Branchfield is the inside point management person. Then he also has an additional contractor who provides overall project management and makes sure that the work is being done on time, makes sure that the requirements are being met, et cetera. Who is that person, the outside consultant? Well, there are actually two. Richard Williams provides that support. And then there is a man named -- A professor named John Loper, who also provides that 031902B 7862 overall management. PAGE 176 2 3 4 5 Q. 6 7 8 A. 9 Q. 10 11 A. 12 Q. 13 14 15 16 17 18 19 20 21 22 A 7863 advisory panel at the Solutia plant at the site, to have ongoing interactions with Solutia, the project people at Solutia and the regulatory agency. And there are two parts of that. There are what is called the TAP, or the technical assistance plan? Right. And then there is also what is referred to a CAG, the Community Advisory Group? That's correct. Look at page eight of Plaintiffs' Exhibit 1-21. I think that is where the information is provided regarding the TAP process. Okay. Which part? On page eight of the statement of work. Okay. Statement of work. Okay. And just explain for the Court -- and I think it is set forth in paragraph two -- how the TAP process works? Well, basically this is a process You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067014 ProTEXT Transcript Condensing for Windows ___ SHEET 45 PAGE 177 ______________________________ ___ PAGE 179 ___________ __________________________________ 23 . analogous to what is called the TAG 031902B 7864 1 program, for the Technical Assistance 2 Grant. If the site is an officially 3 listed Superfund site, the EPA can 4 provide up to fifty thousand dollars a 5 year to a qualified group for that group 6 to go out and hire an expert to advise 7 them on the technicalaspect of the work 8 plan and the work. 9 One of the requirements of this 10 consent decree, since it is not a 11 Superfund site officially, EPA can't 12 institute that TAG program. So one of 13 the constituents here is for Solutia to 14 fund for a technical assistance plan and 15 provide fifty thousand dollars a year to 16 a qualified communitygroup to hire such 17 an advisor. 18 Q. Let's step through that one piece at a 19 time. The first product that will be 20 created is this technical assistance 19 20 21 Q. 22 23 1 A. 2 Q. 3 4 5 6 A. 7 Q. 8 9 10 11 12 A. 13 14 Q. 15 16 fifty thousand dollars each year at the discretion of EPA. In fact, it say at EPA's sole discretion, to require the renewal of the TAP? 031902B 7866 That is the language, sole discretion. Then there are also criteria listed on page eight and nine of the statement of work for the qualifications of the recipient of the TAP money? Yes. And do you have an understanding of whether those are consistent or inconsistent with EPA's requirement for TAG grants if they were going to be the ones to pay the money? My understanding is they are essentially identical. Let's talk a little about the community advisory group and how that process works. __ PAGE 178 ____________________________________________ 21 22 A. 23 Q. 1 A. 2 Q. 3 A. 4 5 Q. 6 7 8 9 10 A. 11 12 13 Q. 14 15 A. 16 17 18 plan? That's correct. Which is a written document? 031902B 7865 Yes. Is that plan subject to EPA approval? It says subject to EPA approval. Yes, it is. And then is there a time limit from the time the consent decree is effective to the date when Solutia has toprovide this technical assistance plan to the EPA for its review? Yes. We have forty-five days after the effective date of the decree to submit that plan. Are there provisions for the renewal of the TAP? Yes. As I said, the TAP is for -- initially for fifty thousand dollars for the first year, and then that may be renewed subsequently for an additional ___ PAGE 180 _____________________________________________ 17 A. 18 Q. 19 20 A. 21 Q. 22 23 1 2 A. 3 4 Q. 5 6 A. 7 8 Q. 9 10 11 A. 12 13 14 Okay. And I believe that is reflected on page ten? That's correct. Okay. And does the document, the statement of work, require Solutia to submit a community advisory group plan 031902B ' 7867 to EPA for approval? Yes. That's the first step of that process. And is there a time limit for the submission of that plan? Yes. Again it is forty-five days from the effective date of the decree. What are the purposes, in your understanding, for the establishment of a community advisory group? Well, I think it is basically a way to perform -- or to establish a communication route for the company, the agencies, the other stakeholders in this You may have up to 3 and 3 Footer Lines WATER PCB-SD0000067015 ,___ SHEET 46 PAGE 181 ProTEXT Transcript Condensing for Windows __ PAGE 183 ____________________________________________ 15 16 17 18 19 20 21 22 23 1 2 Q,. 3 A,, 4 5 6 Q.. 7 8 9 A., 10 11 12 investigation and remediation process to have a dialogue or a discussion about things as they go along. It requires generally their monthly meetings. Solutia will be required to provide a meeting space. And it is basically a time for discussion, as it says, completely through the final acceptance of the 031902B ' 7868 record of decision on this site. And that is not specified, is it? No. That could go on however long it takes to do the investigations and get to that final record of decision. And during that entire time the community advisory group is going to have a role to play at this site? Yes. They will certainly be involved in discussions and have opportunity to make inputs into the ongoing work and the interpretation of that work. 11 12 13 14 15 16 17 18 Q. 19 20 21 A. 22 23 1 2 3 4 5 Q. 6 7 8 those members of the community that we couldn't talk to would be seen as a farce. But we couldn't include them because we weren't allowed to have direct communications with those people. So it just never seemed to be a feasible way to move forward. Okay. And will Solutia try to expedite the processes outlined in the consent decree? Well, we will certainly try to expedite those processes, but the time lines that are established in the decree itself are 031902B 7870 quite expedited as they exist now. We will certainly try to even beat some of those deadlines. But it is an expedited process. And while the conceptual site model plan is developed and while the RI/FS is scoped and the other documents that are called for, the technical assistance ,___ PAGE 182 13 0. 111* 15 16 17 18 A. 19 Q. 20 21 A. 22 23 1 2 3 4 5 6 7 8 9 10 There was some prior discussions about community advisory panels, which I think it is actually a term of art that Mr. Stewart referred to in connection with other Solutia sites. Yes. Why is there no community advisory panel at Anniston already? Well, we have been discussing that for a number of years. That has been a priority of our company, to have 031902B 7869 community advisory panels at all our sites. As those discussions turned to Anniston, we have made efforts a couple of times to get that going, but the problem we have, as I mentioned earlier, we are under restraints on who we can and can't communicate with in the neighborhood around our plant. And we have always felt that to have a group, a community action panel which excluded ___ PAGE 184 ____________________________________________ 9 10 11 12 13 14 15 A. 16 17 18 19 20 21 22 Q. 23 1 2 3 4 5 A. 6 plan, the community advisory group plan, while those are going on, will Solutia maintain its obligations to conduct removal actions in the area identified by EPA as qualifying for removal under the administrative order of consent? Well, we will certainly do that. But that is specifically -- as I mentioned earlier, those orders on consent will be rolled into the consent decree, and we will be required to perform those in accordance with the terms of the consent decree itself. And with respect to the West Anniston Community Foundation, is there a 031902B 7871 mechanism by which the money set aside in the consent decree itself could be provided to an existing entity as opposed to the creation of a new entity? Yes. I believe that is one of the possibilities, yes. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067016 ProTEXT Transcript Condensing for Windows ___ SHEET 47 PAGE 185 ______________________________ __ PAGE 187 7 Q. 8 9 10 11 12 A. 13 Q. 14 15 16 17 A. IB Q. 19 20 21 A. 22 23 1 2 3 4 And is any portion of the money that has been agreed to fund the West Anniston Community Foundation going to pay any attorneys' fees in the Owens/Adams or any other litigation? No, it is not. In connection with the Dyer settlement, there was some discussion about the twenty-one million dollar remediation fund. Yes. What is your understanding of how Solutia gets credit'for monies spent against the remediation fund? We have to make a report to an accountant or someone who has been designated by the Court to basically 031902B 7872 audit our submissions and determine whether those costs that we have submitted will be credited toward that fund. 3 FURTHER EXAMINATION 4 5 BY MR. STEWART: 6 Q. Let me just ask you, Dr. Kaley, if y'all 7 have ever analysed still bottoms for 8 furan contamination? 9 A. No, not that I know of. 10 Q. Why not? 11 A. We don't believe there is any need to do 12 that. 13 Q. Have you ever been required to do that 14 by EPA? 15 A. No, sir. 16 Q. If you found furans in the still 17 bottoms, that millions of poundsof that 18 stuff that y'all have created on your 19 plant site, would that in effect add the 20 risk? 21 A. No. Not if they are in secure 22 landfills, no, sir. 23 Q. You mean the dump y'all have over on 031902B 7874 ___ PAGE 186 ____________________________________________ 5 Q. 6 7 8 9 A. 10 Q. 11 A. 12 13 Q. 14 15 16 17 18 A. 19 20 21 22 23 1 2 And do you know -- We have provided - or do you know that Solutia has submitted one report on those costs to the Court under the Dyer settlement? Yes. I have seen that submission. Has the Court approved that submission? No. I don't believe they have approved it to date. If the Court doesn't approve any of those expenditures, then is it your understanding that those moniescannot be credited against the remediation fund created by that settlement? Correct. That is the whole purpose of that review process. MR. COX: That's all I have, Your Honor. THE COURT: Mr. Stewart, do you have any further questions? 031902B 7873 MR. STEWART: Yes, I do. ___ PAGE 188 ____________________________________________ 1 2 3 A. 4 Q. 5 6 7 8 9 10 A. 11 12 Q. 13 A. 14 15 16 Q. 17 18 19 A. 20 21 22 Q. 23 your plant site you say is a secure landfill? Secure landfills, no, it would not. What if they were found on the properties that are owned by the plaintiffs in this case or the people who live around your plant site? Wouldn't that add to the risk if you found furans? We do not believe so, not at the levels that would be associated with PCBs, no. What do you base that on? The fact that they are -- would be there at such very low levels based on the PCB levels. How do you know that they are there in such very low levels that they don't need even testing? Because we know the levels that were present in the PCBs that were manufactured at the site. So you are saying that there were furan contamination of PCBs that y'all You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067017 ProTEXT Transcript Condensing for Windows ___ SHEET 48 PAGE 189 ______________________________ __ PAGE 191 ____________________________________________ 1 2 A. 3 4 Q. 5 6 7 A. 8 9 10 11 12 Q. 13 14 15 A. 16 17 18 19 20 21 Q. 031902B 7B75 manufactured at this plant site? Yes. One to two parts per million. Yes. Well, that is just testing that y'all did at one specific brief time period, isn't it? Well, we were only able to do those analyses after about 1976. So the data were only available after that time period. Is that what you meant by your question? I'm just asking you if the testing that y'all did for furans in your product occurred on only one occasion. No. They have been tested by us on several occasions, or a number of occasions. They have also been tested by a number of other scientists and have been reported in the public literature. Y'all have never tested those still 20 21 Q. 22 23 1 2 3 4 5 A. 6 7 Q. 8 A. 9 Q. 10 A. 11 12 13 Q. 14 A. 15 16 Q. 17 effectively as possible. To work out this agreement, no difference in y'all's interest in that agreement and EPA's interest -- 031902B 7877 MR. COX: Objection. Asking him to speculate what EPA's interest may be - THE COURT: Overruled. I don't know what EPA's interests are specifically. Sir? I don't know - They are no different -- Their interests are to clean up the area in an appropriately designated program. And that is what ourinterests are. No different than y'all's? There may very well be differences. I don't know. No suit was no filed, obviously. And no fine was levied against youall by them? ___ PAGE 190 ____________________________________________ 22 t9. 3w 1 A. 2 3 4 5 6 7 Q. 8 A. 9 Q. 10 11 12 A. 13 Q. 14 15 16 17 A. 18 19 bottoms up there that are located on uJ wAu'tri nl anf wiuwf KHUivrov ujfvauh.3 031902B 7876 No, sir. The ones -- Those were buried in the landfills prior to the time that we were able to perform that analysis. It is a very complicated and difficult analysis and wasn't available and reported until the mid 1970s. And EPA never asked youall to do that? No, they have not. And didn't discuss this at all in conjunction with this consent decree that y'all have entered into? Not that I recall, no. Okay. Let me ask you if in factSolutia and EPA have basically the same interest in this consent decree that y'all have entered into? You do, don't you? I believe our interest is to address the PCB impacts in the areas surrounding our plant as expeditiously and as ___ PAGE 192 ____________________________________________ 18 A. 19 Q. 20 21 A. 22 Q. 23 1 2 3 A. 4 Q. 5 6 A. 7 8 9 10 Q. 11 12 13 14 15 No suit has been filed that I know of. No fine has been levied against you all by EPA? No. We have not been fined by EPA. In fact, you all were not even regulated on the plant site and other areas prior 031902B 7878 to the time this consent decree was entered by EPA? I don't understand thatquestion. ADEM regulated the activities there on that -- Yes. That's correct. RCRA was -- We were operating under our RCRA post-closure permit with regard to the PCBs, yes. Now, you indicated, have you not, that the first time that -- I mean, that there had been some ongoing discussions between EPA and ADEM about this consent decree when in fact the first time that they saw this consent decree -- and by You may have up to 3 and 3 Footer Lines WATER PCB-SD0000067018 ___ SHEET 49 PAGE 193 ProTEXT Transcript Condensing for Windows ___ PAGE 1 96 16 17 18 19 20 21 22 23 1 2 3 A. 4 5 6 7 8 Q. 9 10 11 12 13 they, I mean ADEM and the officials from ADEM -- that y'all had entered into with EPA, which there are previous drafts of it but just kind of wound up as Plaintiffs' 1-21, was after the Court case in Gadsden where the jury rendered a verdict, a liability verdict. That is the first time you showed those people 031902B 7879 at ADEM this particular agreement. Isn't it? My recollection and my testimony was that I said that ADEM and EPA were having discussions about their respective responsibilities with regard to the site. Carefully, if you would, Dr. Raley, listen to my question. The first time that EPA and Solutia showed ADEM this agreement, this consent decree or whatever y'all want to call it, 1-21 or the predecessor to it, 12 13 14 15 16 17 18 19 20 21 A. 22 23 1 2 3 4 5 6 7 Q. 8 9 A. Solutia was involved in was really basically trying to wrest jurisdiction of this particular matter from this Court. And that is what you wanted ADEM to participate with you. Isn't it correct? MR. COX: Objection to the extent of what EPA is doing. THE COURT: Overruled. My understanding was that it was our feeling, certainly, that EPA agreed that it would be better to be sure that all 031902B 7881 of the responsibilities for the investigation and remediation of the site were handled under one specific consent decree. And that was the purpose of suggesting that they participate in that process. Suggesting who participate in the process? All three groups, Solutia, EPA, and ____ PAGE 194 14 was after the liability verdict was 15 entered in this case that has been filed 16 by the plaintiffs here, the one we are 17 in right now. 18 A. I don't know specific -- 19 MR. COX: Objection as to what EPA 20 may have shared with ADEM. 21 THE COURT: Overruled. 22 Q. I'm talking about the decree. That is 23 the first time y'all showed this thing - 031902B 7880 1 to them and basically asked them to join 2 in. Isn't that correct? 3 A. I think that is the first -- I don't 4 know whether they had been shown drafts 5 of the decree before or not. I believe 6 that may be the first time that we 7 believed that it was appropriate for all 8 three parties to be parties to the q consent decree. 10 Q. So what y'all were doing at that time 11 and what EPA was involved in and what ,___ PAGE 196 _____________________________________________ 10 11 Q. 12 13 14 15 16 17 18 19 20 21 A. 22 23 1 2 3 4 Q. 5 6 7 ADEM. Hhat y'all were trying to do was to wrest jurisdiction of this particular issue -- that is what EPA was trying to do and that is what Solutia was trying to do -- from this Court, because all of this took place afterthe liability verdict in this case. Isn't that right? MR. COX: Objection to what EPA was trying to do. THE COURT: Overruled. My understanding, my feeling is that we were trying to reach an agreement to investigate and develop remediation 031902B 7882 plans for this site under the terms of the consent decree, discussions of which had been going on for a year and a half. Isn't it a fact that there were conversations had between you and Mr. Weinischke and other people who were involved, including Mr. Cox, about the You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067019 SHEET SO PRRF. iq7 ProTEXT Transcript Condensing for Windows PAGE l qq 8 9 10 11 12 13 A. 14 Q. 15 16 17 18 19 A. 20 Q. 21 22 23 A. 1 Q. 2 3 A. 4 5 fact that if you got this consent decree signed, you would take jurisdiction of this particular issue away from this Court? Isn't that what y1 all talked about? I'm not aware of such discussions. You are saying that Mr. Weinischke never made that statement in your presence or someone from your group never told you that Mr. Weinischke didn't make that statement? Not that I recall. So he didn't say that their effort, EPA's effort in this case, was to take jurisdiction from this Court? Not that I recall. 031902B 7883 Never did discuss the injunctive relief part of this case? Other than the fact that it was going -- Would be going on early in those discussions and then later in the 4 5 6 7 8 Q. 9 10 11 12 13 A. 14 15 16 17 Q. 18 A. 19 Q. 20 21 22 23 A. 1 Q. think he said EPA had those discussions with the community group and he didn't know what was said. Well, is it your understanding that they were notifying these community groups including the Community Against Pollution, or CAP, as y'all moved through this process? Is that your -Is was my understanding they were having communications with whatever group during this negotiation process, yes. That is my understanding. Was CAP one of those groups? I believe it was. Who is it from EPA that told y'all they were communicating with CAP, keeping that community group that they funded in part informed? Primarily Phyllis Harris. 031902B 7885 Phyllis Harris? Did old Dustin Minor PAGE 1 OR 6 discussions I believe was going on, no, n 1 I don't know of any other discussions. 8 Pi 9 Now, you have indicated that the community groups were notified by EPA 10 all along, didn't you? 11 A. That is my understanding, that they were 12 in communication with those groups, yes, 13 Q. 14 And that they agreed that y'all ought to do away with this health component of 15 . this deal? 16 n n. I didn't say that. 17 r\ Well, let me show you Plaintiffs' -- 18 h* I mean, the EPA in the negotiations did 19 not keep that -- Are you talking about 20 21 n the community agree or the EPA agree? The community. You indicated earlier 22 that -- 23 A. I don't know what the community says or 031902B 7884 1 hasn't said. 2 MR. COX: I don't think that is 3 Dr. Kaley's testimony. I PAGE ?nn 2 3 4A n* 5 6 Q. 7 8 A. 9 Q. 10 11 12 A, 13 Q. 14 15 16 17 18 A. 19 Q. 20 21 22 A. 23 Q. say anything about it? Did he say they were keeping them informed? I don't recall him specifically saying anything about it. Did Mr. Weinischke say that they felt like they needed to be informed? I don't recall him saying anything. Don't they have to under an executive order that was entered by Clinton that wasn't rescinded by Bush? I don't know anything about that. You don't know anything about the requirements that you keep people in a community surrounding the plant if there are minorities informed about what you are doing to their community? No. I don't know about that. Okay. So then is it your testimony that Mr. Harris told you that they were informing CAP? That is my recollection. And that they went along with it or 031902B You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067020 ___ SHEET 51 PAGE 201 ProTEXT Transcript Condensing for Windows ___ PAGE 203 _ 1 2 A. 3 4 Q. 5 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 A. 21 22 Q. 7886 what? I don't know that we were ever told what the community's reaction was. Let me show you Plaintiffs' Exhibit 1-24 and ask you if you would to read that into the record, please, sir. MR. COX: Your Honor, I object. It is not a document that he is familiar with or has ever even identified aas having seen before. And he is asking him to read it into the record. I think that is improper. THE COURT: Sustained. I sustain. MR. STEWART: Okay. Do you know David Baker to be the president of the Community Against Pollution? I know he is associated with it. I don't know what his title is. Do you know who Richard Shelby is? 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . 17 18 recall it. MR. STEWART: We will call him if we have to. 031902B 7888 THE COURT: Sustained. Dr. Kaley, I think your testimony was earlier that EPA has not administered any fines against Solutia. Is that correct? THE WITNESS: At the Anniston site for PCB-related issues, that's correct. THE COURT: Has ADEM administered any fines against Solutia? THE WITNESS: Not for PCB-related issues, no. THE COURT: For anything else? THE WITNESS: I believe they have, yes. I don't know specifically, but I believe they have, yes. . ___ PAGE 707 23 A. 1 Q. 2 3 A. 4 Q. 5 A. 6 Q. 7 A. 8 Q. 9 10 A. 11 Q. 12 13 A. 14 Q. 15 16 17 18 19 20 Yes, I do. nilnnon 7887 Is he a Senator from the State of Alabama? It is my understanding, yes. You know who Christie Todd Whitman is? Yes. Do you recognize Mr. Baker's signature? Not really. Take a look at that and see if that is in fact the signature of David Baker. I don't know. You don't have any idea as to whether or not that is Mr. Baker's signature? I don't. If he says in a letter that they didn't know y'all were entering into this agreement, you don't know anything about that? MR. COX: Your Honor, same objection to having Dr. Kaley read it. He said he didn't PARE 70A 19 THE COURT: How recently? AA LJ THE WITNESS: Well, there is one 21 on the table now that is 22 under discussion, but I don't 23 know what the outcome of that 031902B 7889 1 has been. ' 2 THE COURT: And what would that be 3 for? 4 THE WITNESS: We had some sort of 5 a discharge of what 6 apparently I think was 7 para-nitrophenol impacted 8 water from -- I believe it 9 was a ditch on our property. 10 I don't know a lot of the 11 specifics. 12 THE COURT: Do you know the amount 13 of the fine? 14 THE WITNESS: I've heard it. I 15 don't know that I recall it 16 specifically. I believe the You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067021 ProTEXT Transcript Condensing for Windows SHEET 52 PAGE 205 _________________________________________ PAGE 207 17 18 19 20 21 22 23 1 2 3 4 5 6 Q. 7 8 9 10 11 12 13 14 proposed fine was like a hundred and forty-five thousand dollars. I think that's the number I heard. THE COURT: So has EPA administered any fines against Solutia for this 031902B 7890 plant here in Anniston that does not involve PCBs? THE WITNESS: Not that I know of. THE COURT: All right. Mr. Stewart? (By Mr. Stewart) You indicated earlier that there was going be a TAP grant and a TAG grant or community thing. One of them was fifty thousand dollars for somebody who was going to serve as a technical advisor to a community group. I don't know which one of those it was. How does that compare to what y'all spend, Dr. Kaley, on experts to advise 13 A. 14 15 16 Q. 17 18 19 20 21 22 23 1 2 3 4 A. 5 Q. 6 7 8 9 A. 10 That is again consistent with the EPA's TAG grant program, so they set that figure. Would it be fair to say that a group that was supposed to be overseeing or at least giving some community input in connection with the technical aspects of this case would be somewhat limited in their capability, because of the numbers and amounts, to hire adequate technical advisors to raise questions about what 031902B 7892 you all are doing? MR. COX: Objection, speculation. THE COURT: Overruled. I don't know. You can't get a whole lot in the field we are talking about for fifty thousand dollars or even a hundred thousand, can you, Dr. Kaley? Yeah. I think you can get substantial technical input for that, yes. PAGE 15 16 17 18 19 ft n* 20 n 21 22 a n. 23 ft V* 1 2 A. 3 ft 4 5 A. 6 ft 7 8 A. 9 10 11 Q. 12 y'all or assist y'all in characterizing this site? What for instance would you estimate y'all have spent on consultants over the past year? . I don't know. It would certainly be well in excess of fifty thousand dollars, wouldn't it? I'm sure it would be, yes. Might be as much as a half million 0319Q2B 7891 dollars or maybe a million? I don't know. But it could be substantially larger than the fifty thousand dollars? I believe I said that. Who set the figure of fifty thousand dollars? That is consistent with the EPA's TAG grant program. They clearly set that figure. And the hundred and fifty thousand dollars, who set that figure? PAGE ?Ofi 11 Q. 1 VI LL A. 13 14 Q. 15 16 A. 17 Q. 18 A. 19 Q. 20 21 22 A. 23 1 2 Q. 3 4 5 6 A. 7 Q. 8 For fifty thousand? For what the purpose of the TAG grant is, yes. Is the purpose of the TAG grant just to sort of bless it and kiss it -- No. -- and send it on its way? No. Or do they actually technically raise issues and questions about what y'all are -The intent is to technically raise issues and questions and help the 031902B 7893 community address those issues. There was a forty-five day period within which you all had to give them some information about that technical assistance; is that correct? That's the date in the draft, yes. And that is from the date the consent order is entered until the time -- The You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067022 SHEET 53 PAGE 209 . ProTEXT Transcript Condensing for Windows ___ PAGE 211 ---------------------------------------------------------------------------------- 9 10 A. 11 12 Q. 13 14 A. 15 16 o. 17 18 19 20 A. 21 22 23 1 2 Q. 3 4 5 A. 6 forty-five days begins to run then? At the effective date of the decree, yes. If you can, tell me what the comment period is for the general public. I don't know. I believe it is thirty days, but I may be wrong. Let's say they disagree with who y'all put up, how in the world -- If you wait the forty-five days, how would they have any way to comment on who y'all pick? Well, the thirty day comment period is on the entrance of the consent decree, not on the plans that are going to be developed that they would be commenting 031902B 7894 on. Oh, so they don't comment on the plans; they just comment on the entering of the consent decree? During that thirty day period, that is my understanding, yes. 5 6 7 8 Q. 9 10 11 12 13 14 15 16 A. 17 Q. 18 A. 19 Q. 20 21 22 23 1 A. 2 documents, the actual work plans themselves and the data as it comes in, et cetera. I'm not talking about the TAP grant. I'm talking about the comment period for the general public. If the general public doesn't know what work plan y'all are going to be proposing under this consent decree, what in the world are they going to be commenting about, the -- I guess on the sufficiency --- secret meetings y'all -- -- of the consent decree. The secret meetings y'all had to put this thing together? MR. COX: Objection, argumentative. THE COURT: Overruled. 031902B 7896 There were no secret meetings. They were open meetings. And they have the PAGE ?i n 7 Q. 00 9 10 A. 11 12 13 Q. 14 15 16 17 18 19 A. 20 21 22 23 1 2 3 4 What time frame do y'all have, for instance, to provide EPA with a work plan? I'd have to look in here. I don't know exactly what the date is. But it is specified in there. If it is within thirty days and y'all do it on the thirtieth day, how in the world would a community group have an opportunity, Dr. Kaley, to comment about or raise questions about validity or invalidity of that work plan or -- Well, my understanding is the thirty day comment period is to comment on the three documents that are included in the consent decree, the consent decree itself, the RI/FS plan, and the 031902B 7895 statement of work. Those are not documents which contain specific move-forward kinds of activities. The TAP grant is to advise on the subsequent , ___ PAGE 71 7 3 4 5 6 7 8 Q. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 right to -- I don't know what specifically -- They can comment. They can comment on the sufficiency and the appropriateness of this consent decree as I understand. Do you know who is head of the Council on Environmental Quality -- THE COURT: Let me ask a question before you finish that one. Okay? They weren't secret meetings. Did you say they were open meetings? THE WITNESS: They weren't secret. THE COURT: All the open meetings you are having with -- I mean, all of the meetings you are having with the EPA are open meetings? THE WITNESS: Well, I wouldn't Yes. I don't think they were secret meetings. 031902B 7897 You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067023 ___ SHEET 54 PAGE 213 ProTEXT Transcript Condensing for Windows PAGE 215 1 THE COURT: So you don't mind 22 know. I assume I would if they had 2 letting me know of all the 23 occurred. I don't know. 3 future meetings y'all have 031902B 4 with EPA and allowing me to 7899 5 be there. 6 THE WITNESS: I guess not. I 1 Q. 2 Do you understand that discussions have been had with a judge? 7 don't know. 3 A. No, I do not understand that. 8 THE COURT: Okay. Then I'd -- 4 Q. In response to Mr. Little's questions 9 THE WITNESS: I guess that is up 5 earlier, you were talking about whether 10 to EPA. 6 or not -- He was asking you whether or 11 THE COURT: I guess if they are 7 not it had been signed. I understood 12 open, we can all be there, 8 you to say that Pharmacia hasn't signed 13 can't we? 9 this document yet or some signatory for 14 THE WITNESS: I guess. I don't 10 them hasn't signed it. Is that correct 15 know. 11 or incorrect? 16 THE COURT: Well, you please 12 A. It is correct to my knowledge. I do not 17 inform me of all the future 13 know that anyone has signed that 18 meetings so that I can be in 14 document. 19 attendance? 15 Q. Solutia hasn't? 20 THE WITNESS: Okay. I'll ask that 16 A. As far as I know. 21 that be done. 17 Q. Pharmacia hasn't? 22 THE COURT: Thank you. 18 A. As far as I know. 23 Mr. Stewart? 19 Q. EPA hasn't? ___ PAGE 214 ________________________________________ 031902B 7S99 1 Q. (By Mr. Stewart) I guess what I was 2 asking you is what they could comment 3 on, and you were telling me. And I 4 didn't understand all the things. Just 5 the consent decree itself? 6 A. That's my understanding, yes. Whatever 7 is in these three documents. 8 Q. And who do you understand they are 9 . making their comments to? 10 A. I guess the Court in which it isfiled. 11 Q. The court. And have y'all picked the 12 Court in which this is to be filed? 13 A. I don't understand -- It is afederal 14 court. I don't know. 15 Q. Have there been discussions with a 16 particular judge? 17 A. Not to my knowledge. 18 Q. Sir? 19 A. Not to my knowledge. 20 Q. Who would know that? 21 A. I don't know that there is anything to ___ PAGE 216 _________________________________________ 20 A. 21 Q. 22 A. 23 Q. 1 2 A. 3 Q. 4 A. 5 Q. 6 7 A. 8 9 Q. 10 A. 11 12 Q. 13 14 15 A. 16 Q. 17 As far as I know. Why not? Why haven't they signed it? Why have they not signed the agreement 031902B 7900 yet? I don't know. Still negotiating somefinal deal? I don't know where the process is. Who would know that, Dr. Kaley, where that process is? I would assume Mr. Topol knows. I don't know whether he knows or not. Mr. Topol knows? He has led our negotiations. I assume he would know. To your knowledge has Mr. Topoltalked to anybody from the Council on Environmental Quality? Not to my knowledge. Has anybody from Solutia or Pharmacia talked to anyone from the Council on You may have up to 3 Header and 3 Footer Lines T WATER PCB-SD0000067024 SHEET 55 PAGE 217 ; ProTEXT Transcript Condensing for Windows PAGE 219 18 19 20 A. 21 Q. 22 23 1 A. 2 Q. 3 4 5 6 A. 7 Q. 8 9 A. 10 Q. 11 12 13 A. 14 15 Environmental Quality, like the chairperson? Not that I know of. Who would have acquainted that person about the Anniston site out of Solutia if you know? 031902B 7901 I don't know? Would Glenn Ruskin have been the one that arranged the meeting for somebody from Pharmacia to explain that site, this -- I don't know. -- site here in Anniston, that particular individual? I don't know. Are you saying that those discussions didn't take place, or you don't know who it was that had those discussions? I don't know whether those discussions took place, and if they did, I don't know who would have had that discussion, 14 A. 15 Q. 16 17 18 19 20 A. 21 Q. 22 23 A n. 1 Q. 2 3 4 A. 5 6 Q. 7 8 9 7\ n. 10 11 Yes. In the last paragraph of that document he talks about the fact that the site has been fully characterized and pending approval of our RCRA facility investigation report by ADEM. That's correct. Now, that letter was written on October 8, 2001; is that right? Yes. 031902B 7903 And y'all were talking about the fact that the RCRA facility investigation report was going to be approved by ADEM? We were hoping it would be approved, yes. How is that different from what y'all are now proposing to do with EPA in this order on consent? Well, at the time the letter was written the site -- the plant site itself was under RCRA authority. I don't know the PAGE 218 _______________________________________________________ PAGE 770 16 17 o. 18 19 20 21 22 23 1 2 3 4 5 A, 6 Q. 7 Tl n. 8 Q. 9 10 11 12 13 either one? Since wo Isst met hevs you teiksd to anyone -- And I asked you last time about whether or not Linda Fisher. And the reason I asked you this question is I noticed in the newspaper -- you can't always believe everything you read there, but a lot of times you can -- 031902B 7902 said the highest levels of EPA were interested in this particular matter. Has anybody to your knowledge talked to Linda Fisher about this site -- Not to my knowledge. -- the former Monsanto employee? Not to my knowledge. Now, I notice in this document that was offered -- and I don't know which one it was, but is it the final summery report of technical review and evaluation of potential PCB releases by Solutia signed by Mr. Branchfield. 12 13 14 15 16 17 Q. 18 19 A. 20 21 22 Q. 23 1 2 n. 3 4 5 6 7 Q8 q full impact of what this particular draft consent decree means, but I would assume that this will still be an important part of whatever process is involved at the plant site itself. Well, isn't it a fact that what we are talking about is one and the same? No. The RCRA report is focused on the plant site itself. The consent decree covers a much broader area. Aren't you doing the same kind of testing, et cetera, and didn't you under 031902B 7904 that RCRA assessment, on the plant site? Well, most of that has been done. And that is what is reported in the report, is that characterization of the plant site itself. That is specifically what was included in that reference. Isn't it a sham to say to this Court that that consent -- this consent decree is something y'all are starting off new You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067025 __ SHEET Sfi PARF. ProTEXT Transcript Condensing for Windows ___ PAGE 10 11 12 13 14 15 16 Q. 17 18 19 A. 20 21 22 23 1 2 3 4 5 Q. 6 7 and afresh when in fact you had already done some of the same kind of things on your plant site and frankly on a good portion of the area around that plant site, hadn't you - MR. COX: Objection -- -- for ADEM as opposed to EPA? MR. COX: Argumentative. THE COURT: Overruled. I'm not sure I understand the whole issue. But I think -- No. It is not a sham, and we believe that our plant site has been fully characterized, and that is reflected in that report. Now, I 031902B 7905 know that based on this very ERT report that this was made in response to, EPA has some additional concerns, and those will need to be addressed. But isn't it a fact that y'all are just starting the game all over again with this program? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 withdraw our objection if they provide a complete copy of the twenty-seven pages off the Internet to the Court. MR. STEWART: Well, the part that we offered, Judge, I think is the pertinent part. But we can get the other pages. MR. COX: I just don't think it is complete, and it cuts off in midsentence. And we would just object on the ground it is incomplete. THE COURT: Okay. Both are admitted with -- What is that last number? MR. COX: 1-23, which is the excerpt from the Bloomington, 031902B 7907 Indiana site. THE COURT: 1-23 is admitted upon the entire document being ___ PAGE ??? B A. 0 10 n 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 No, sir. It will be built on things thst hoVs slrssdy been dene* We ere certainly not starting over. MR. STEWART: Judge, I believe that is all I have. I would like to move for the admission of Plaintiffs' Exhibit 1-22 and Plaintiffs' Exhibit 1-23, which were not formerly moved for admission earlier. MR. COX: This was during Mr. Woodyard's testimony. We don't really have an objection to 1-22 other than possible relevance. But on 031902B 7906 1-23, which is the excerpt from the Bloomington ATSDR study, we would just object on the grounds it is incomplete. We would ___ PAGE 4 admitted. Otherwise, the Cj OwjcCtiCu is sustained. 6 (Whereupon Plaintiffs' 7 Exhibit 1-22 was offered and 8 admitted into evidence.) 9 (Whereupon Plaintiffs' 10 Exhibit 1-23 was offered and 11 admitted into evidence 12 subject to the above 13 provisions of the Court.) 14 THE COURT: Mr. Wright? 15 MR. WRIGHT: A few questions. 16 17 EXAMINATION 18 BY MR. WRIGHT: 19 Q. Dr. Kaley, I'm James Wright with ADEM. 20 In Mr. Cox's direct examination, he was 21 asking you some questions about the 22 Eleventh Street ditch and the 23 administrative order on consent with 031902B 7908 1 EPA. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067026 SHEET .67 PARE 77 6 ProTEXT Transcript Condensing for Windows PAGE 777 2 A. 3 Q. 4 5 6 7 8 nTi . 9 Q. 10 11 A. 12 13 14 15 16 Q. n 18 19 20 21 A. 22 0. 23 Yes. I believe Mr. Cor said that that Eleventh Street ditch and the affiliated floodplains were formerly under the RCRA program, and you said yes. Is that correct? Yes. Isn't it true they are still under the RCRA program? Well, I don't know the answer. Yes, I think they are still under the RCRA program; although, we are currently submitting work plans to the EPA to address the remediation of that ditch. But at the moment they are still under the RCRA program, are they not? If you had a release out there, for example, your RCRA permit would obligate you to report to ADEM? Yes, sir, absolutely. So as of this moment they remain under the RCRA program? 031902B 23 1 2 A. 3 4 5 Q. 6 7 A. 8 Q. 9 10 11 12 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. 19 20 days to submit a couple of things, 031902B 7910 something like that. I believe that's correct. I mean, I know there are those submission deadlines, yes. One of those documents you have to submit is a work plan; is that correct? I believe that's correct, yes. Most of those documents you will be required to submit will be set out -- the submittal dates, the deadlines, will be set out in that work plan, will they not? Many of them will, I believe, yes. And you will generate the work plan? That's correct. Subject to EPA review? Yes. And in generating that work plan, you will submit most of the due dates for the submittal of major and minor PAGE 226 1 .71* * 2 Q. 3 4 5 n14 6 Q. 7 8 9 A. 10 n u* 11 12 13 A. 14 Q. 15 16 17 A. 18 19 Q. 20 21 22 Vox -i V. IZOf Ci-i.* 7909 So it is not entirely accurate to say they were formerly under the RCRA program? I would agree with that. Now, you said in discussing 1-21, which is the draft, I guess you would call it -- Yes, sir. -- or proposed agreement, that you had no intention to incur stipulated penalties. That's correct. And those stipulated penalties are due when you miss document submittal dates; is that correct? I believe that is correct for some of them, yes. And some of those document submittal dates are set out in here? In other words, when this is finally executed and entered, et cetera, you will have thirty PAGE 21 22 n14 . 23 Q. 1 2 A. 3 4 5 Q. 6 7 8 A. 9 Q. 10 11 12 13 A. 14 Q. 15 16 17 A. 18 Q. documents? I bslicVs ws will proposs them* yss. And those are the deadlines you will 031902B 7911 have to accrue stipulated penalties? I think that's a fair characterization, for the ones that are so designated, yes. Now, as you submit these documents to EPA, they have some period of time in which to review them, do they not? I believe that's correct, yes. And then they have -- After that they can make comment to you, and you have some period of time in which to revise them and resubmit them? That's correct. Okay. Now, EPA, under this agreement, their review of those documents is their cost, is it not? Yes, it is. You will reimburse them for reviewing You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067027 SHEET 58 PAGE 229 . ProTEXT Transcript Condensing for Windows PAGE 231 ---------------------------------------------------------------------------------- 19 20 A. 21 22 23 Q. 1 2 3 4 A. 5 6 Q. 7 8 A. 9 Q. 10 11 A. 12 Q. 13 A. 14 Q15 16 those documents as you generate them? I believe that is correct. I believe there is provision for future oversight costs, yes. And I believe you said that you had 031902B 7912 already agreed to reimburse them for five point eight million dollars in costs they have incurred to date? I believe the number is five point seven million, but that's correct. And they began to incur those costs in the year 2000, did they not? I believe that is correct. So that is about two point eight million a year, average? Yes. Since -- for the past couple of years? Yes'. Are you aware, Dr. Raley, that ADEM's entire RCRA budget for a year for that entire program is two and a half million 15 16 17 A. 18 19 20 Q. 21 22 23 1 2 3 A. 4 5 Q. 6 7 8 9 10 A. 11 12 Q. oversight of ADEM's RCRA program currently? That is my understanding, yes. 1 know everything we submit to ADEM gets submitted to EPA. The consent decree, the RI/FS agreement, and the statement of work set forth in Plaintiffs' Exhibit 1-21, is it your understanding that those are based upon 031902B 7914 model documents prepared by EPA and published on their website? That is my understanding. It is largely based on that, yes. And the process under which those agreements are submitted to federal court, that's all part of the standard process that happens at every site where a consent decree is reached? That's my understanding. That is how CERCLA works, yes. And just so this is clear, is it PAGE 230 17 dollars? 18 fit No. 19 MR. WRIGHT: No further questions. 20 THE COURT: Anything from the 21 state? 22 MR. LITTLE: No. 23 THE COURT: Anything from the 031902B 7913 1 city. 2 MR. MONK: No, sir. 3 THE COURT: Mr. Cox? 4 MR. COX: A few. 5 6 FURTHER EXAMINATION 7 BY MR. COX: 8 Q. 9 Dr. Kaley, has ADEM ever requested that Solutia test still bottoms for the 10 presence of furan? 11 A. No. 12 Q. 13 You indicated that the plant site was regulated by RCRA. Is it also your 14 understanding, though, that EPA has PAGE 13 14 15 16 17 18 A. 19 20 Q. 21 22 23 1 A. 2 Q. 3 4 5 A. 6 Q. 7 8 A. 9 10 Solutia's intention to use all of the uald vUXiCvkcu ai me one uuuci me RCRA program to help develop and assist the expedition of the work called for under Plaintiffs' Exhibit 1-21? Absolutely, yes. That data and the EPA data generated, yes. Now, the five point seven million dollars that EPA has requested reimbursement for, that included a lot of things, did it not? 031902B 7915 Yes, it did. It included their sampling of residential properties for the presence of PCBs? Yes, sir. Do you know how many residential properties they sampled in Anniston? I think I have heard the number of about seven hundred. Several hundred for sure at least. You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067028 SHEE ' 59 PAGE 233 ProTEXT Transcript Condensing for Windows ___ PAGE 235 11 Q. 12 13 14 15 A. 16 Q. 17 18 19 A. 20 f\ 21 22 23 1 A. 2 3 4 5 6 7 8 It included several million dollars to reimburse ATSDR for the costs they have incurred in developing the various consultations, did it not? That's correct. It also included the work ERT did in connection with their review of the plant site? Yes. And it also included EPA's oversight of all of Solutia's activities under the administrative order on consent, did it not? 031902B 7916 I believe that's correct, yes. MR. COX: That's all I have. THE COURT: The testimony was earlier that originally EPA has requested over sis million dollars in reimbursement. THE WITNESS: Yes. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 involved in those discussions. I know some of them had to do with costs for analyses for lead and things like that. THE COURT: Okay. Anything else? MR. STEWART: Judge, I would just like to make an offer of proof that a letter was -1-24, and we can get Mr. Baker in here to -- I would prefer not to if we don't have to, but we can get Mr. Baker in here to verify the letter. But he is the president of CAP, and he wrote Senator 031902B 7918 Richard Shelby on March 18th, 2002, and indicated that they were not aware of the fact that the U.S. Environmental PAGE 9 in 11 12 13 14 15 16 17 18 19 ^ 20 21 22 23 1 2 3 4 5 6 THE COURT: And after reviewing those costs, Solatia felt some of those costs weren't related to the efforts in this case, or what was your testimony? THE WITNESS: Well, I don't recall. But they weren't appropriate charges for Solutia to pay. THE COURT: While they may have been related to the case, they weren't appropriate for Solutia to pay? THE WITNESS: Or they may have 031902B 7917 been related to Anniston and not -- THE COURT: Do you know what those costs related or what type of costs they were? THE WITNESS: I wasn't deeply , PAW. 5 6 7 8 q 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 Protection Agency and Monsanto/Solutia had reached an agreement. They were concerned that the agreement might adversely impact recent court decision and asked Senator Shelby to raise that with Administrator Whitman when she testifies before the Veterans Affairs, Housing and Urban Development, and independent agencies this Wednesday, March 20th, 2002. And they were concerned about the effect that this agreement would have on this Court's ability to order cleanup in this area. They 031902B 7919 also were very much concerned about the fact that there You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067029 ___ SHEET 60 PARF. ProTEXT Transcript Condensing for Windows ___ PAGE 239 3 4' 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 wasn't funding provided for health studies and medical monitoring for the people of Anniston. So apparently they didn't get the message or weren't communicated with according to this particular letter, and we make an offer of proof of that. And at the appropriate time I'd like to authenticate the letter and make it a part of the record. THE COURT: You may need to get Mr. Baker here to do that. MR. COX: Your Honor, of course, we object certainly on relevance grounds to whatever this has. But in terms of requiring Mr. Baker to come testify solely for the 031902B 7920 .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 031902B 7921 THE COURT: I don't remember, but you do now, and they are admitted. MR. COX: Thank you, Your Honor. (Whereupon Defendants' Exhibits 701, 1097, and 789 were offered and admitted into evidence.) THE COURT: Okay. We will be in recess until sometime tomorrow. MR. COX: Well, are y'all going to rest now, or are y'all going to have anybody else that you are going to call first? MR. STEWART: Well, I don't know of anybody that we are going to call, but we had these tapes we want to make a part of the record. And I would certainly like to play them PAPJF. ?3R 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 .... purpose of authenticity, we don't object. THE COURT: Okay. Hell, then it is admitted as an offer of proof. MR. COX: As offer of proof? THE COURT: Right. MR. COX: Thank you, Your Honor. (Whereupon Plaintiffs' Exhibit 1-24 was offered and admitted into evidence.) THE COURT: Dr. Kaley, when is the next meeting between Solutia and EPA? THE WITNESS: I don't know if there is one. THE COURT: Okay. .Anything else? MR. COX: Not from Dr. Kaley. THE COURT: You can step down. (Witness excused.) MR. COX: Did I offer -- I think I did - offer 701, 1097 and 789? PAair ?<in ,, " 22 for the record. 23 THE COURT: Audio or video? 031902B 7922 1 MR. STEWART: Audio. I think they 2 are interesting, and I'd like 3 for the Court to hear them. 4 I think they pretty well 5 . state this company's 6 position, and I'm not kidding 7 or being facetious, Judge. 8 THE COURT: We will do that first 9 tomorrow then, before the 10 plaintiffs rest. 11 MR. COX: Is ADEM or the state or 12 the city going to call any 13 additional witnesses in the 14 plaintiffs' cases in chief? 15 I think I got all my words 16 right. 17 MR. HUBBARD: We don't anticipate 18 that. 19 MR. WRIGHT: We are going to call You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067030 ___ SHEET 61 PAGE 741 ProTEXT Transcript Condensing for Windows . ___ PAGE 20 ---------------------------------------------------------------------------------- 20 Mr. Cobb on rebuttal. 16 him from going out of town 21 THE COURT: Okay. 17 for spring break. I may keep 22 MR. PECK: That would be following 18 the attorneys from going out 23 our case. We just want to 19 of town. 031902B . 20 MR. PECK: I was getting curious 7923 21 about that, Your Honor. Do 1 make sure we have our 22 you have spring break plans? 2 witnesses lined up. 23 THE COURT: Yes, I do, right here 3 THE COURT: It looks like we are 031902B 4 going to probably have about 7925 5 an hour and a half worth of 1 in this courtroom. My 6 tape tomorrow and then y'all. 2 children and my wife already 7 And I hate to say one 3 know it. So they have 8 o'clock, because I could have 4 planned a trip without me and 9 started at ten thirty today. 5 have invited other people to 10 MR. STEWART: Judge, we may have 6 go along. So even if I'm not 11 some preliminary relief we 7 here, I'm not going with 12 are going ask for too when we 8 them. 13 get through with that. g Mr. Cos? 14 THE COURT: So let's just say -- 10 MR. COX: I was just going to say 15 MR. LITTLE: Judge, since we were 11 if there is a way we can 16 going to come from 12 ' accommodate having that tape 17 Montgomery, is there any kind 13 admitted so we don't have to PAGE 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 of indication you can give us -- you said cr*s o'clock and ten thirty. Is there -- I can just call Mr. Hubbard in the morning. THE COURT: I can just say one 031902B 7924 o'clock. It won't hurt me to have an etra hour and a half breather tomorrow. MR. PECK: And everybody else should be in Gadsden at nine? THE COURT: Nine. Mr. Wright? MR. WRIGHT: Mr. Cobb informs me he has to be out Thursday and that nest week is spring break and he is scheduled to be out of town for AEA. THE COURT: Well, we will work around any further testimony of his. We will work around that. I'm not going to keep ___ PAGE 14 sit here and listen to it, I 15 t.n 1 1 Ka wiavo 16 happy, as I have offered 17 before, to authenticate it 18 after it is in and just 19 reserve a right to come back 20 and add anything or 21 supplement as needed. But 22 having twelve of us sit 23 around here and listen to an 031902B 7926 1 audio tape I think is a waste 2 of our time. 3 THE COURT: Well, it won't be the 4 first time we have wasted in 5 this case. So y'all be here 6 at one o'clock and we will 7 start listening to those two 8 tapes. 9 (Court adjourned at 4:50 p.m.) 10 11 You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067031 SHEET 62 PAGE 245 ProTEXT Transcript Condensing for Windows 12 13 14 15 16 17 18 19 20 21 22 23 031902B You may have up to 3 Header and 3 Footer Lines WATER PCB-SD0000067032