Document bKMZEMOyOge0rB8xzBZRpjZZ

STATE OF ALABAMA IN THE CIRCUIT COURT OF CALHOUN COUNTY SABRINA ABERNATHY, et al., Plaintiffs, VS. MONSANTO COMPANY, et al.. Defendants. CIVIL ACTION NO. CV-96-269 DEPOSITION OF DR. ROBERT G. KALEY, II Taken on behalf of the Plaintiffs January 7, 1999 KRIEGSHAUSER REPORTING & VIDEO REGISTERED PROFESSIONAL REPORTER 319 NORTH FOURTH. SUITE 322 ST. LOUIS, MISSOURI 63102 (314) 621-4408 FAX (314) 621-4533 1 APPEARANCES 2 3 The Plaintiffs were represented by Mr. John W. Barrett of the law firm of Barrett 4 Law Office, P.A., P. O. Box 987, Lexington, Mississippi 39095, and Charles L. Cunningham, 5 Jr., Suite 200 The Lanchiark Building, 304 West Liberty Street, Louisville, Kentucky 6 40202. 7 The Defendant was represented by 8 Mr, Harlan I. Prater IV of the law firm of Liqhtfoot, Franklin White, L.L.C., The Clark 9 Building, 400 20th Street North, Birmingham, Alabama 35203-2300, and Mr. Michael E. Kelly 10 of the law firm of Smith, Helms, Mulliss Moore, P. O. Box 21927, Greensboro, North 11 Carolina 27420. 12 13 14 15 INDEX OF EXAMINATION 16 EXAMINATION 17 Examination by Mr. Barrett 18 PAGE 5 19 INDEX OF EXHIBITS 20 PLAINTIFFS' PAGE 21 One (Retained by Plaintiffs' attorney.) 22 48 23 3 KRIEGSHAUSER REPORTING & VIDEO 1 STATE OF ALABAMA IN THE CIRCUIT COURT OF CALHOUN COUNTY 2 3 SABRINA ABERNATHY, et al., 4 Plaintiffs, 5 VS. 6 MONSANTO COMPANY, et al., 7 Defendants. 8 CIVIL ACTION NO. CV-96-269 9 10 11 12 Deposition of DR. ROBERT G. KALEY, II 13 produced sworn, and examined on behalf of the Plaintiffs on January 7, 1999, between the 14 hours of nine o'clock in the forenoon and five o'clock in the afternoon of that day, at the 15 Ritz-Carlton Hotel. 100 Carondelet Plaza, St. Louis, MO 63105, before Sheila L. Ford, a 16 Registered Professional Reporter and Notary Public within and for the State of Missouri. 17 18 19 20 21 22 23 KRIEGSHAUSER REPORTING & VIDEO 1 o-O-o IT IS STIPULATED AND AGREED by the 3 parties, through their respective counsel, 4 that the deposition of DR. ROBERT G. KALEY, 5 II, may be taken before Sheila L. Ford, CSR, 6 RPR, as Coimiissioner and Notary Ptblic in the 7 State of Missouri, on January 7, 1999, at 9:30 8 a.m. 9 10 11 IT IS STIPULATED AND AGREED that it shall 12 not be necessary for any objections to be made 13 by counsel to any questions except as to form 14 or leading questions and that counsel may make 15 objections and assign grounds at the time of 16 trial or at the time said deposition if 17 offered in evidence or prior thereto. 18 19 20 IT IS STIPULATED AND AGREED that notice 21 of filing by the cormiissioner is waived. 22 23 4 KRIEGSHAUSER REPORTING VIDEO HARTOLDMONO014776 1 o-O-o 1 3 DR. ROBERT G. KALEY, II, 4 of lawful age, produced, sworn, and examined 5 on behalf of the Plaintiffs, deposes and says: 6 7 EXAMINATION BY MR. BARRETT: e Q. Would you state your name to the Court, 9 please? 10 A. Robert George Kaley, II. 11 Q. You hold a doctorate, do you not? 12 A. Yes. That's correct. 13 Q. Dr. Kaley, my name is Don Barrett. I 14 represent the plaintiffs in this case, 15 and I'll be asking you the questions 16 this morning. 17 A. Fine. 18 o. Where do you live? 19 A. Chesterfield, Missouri. 20 0. And Chesterfield is a suburb of St. 21 Louis? 22 A. That's correct. 23 Q. And yet* work for Solutia? 5 KRIEGSHAUSER REPORTING VIDEO 1 2 3 4 A. 5 Q. 6 7 8 9 10 11 12 13 A. 14 0. 15 16 17 18 A. 19 Q. 20 A. 21 Q. 22 | A. 23 | Q. correct copy of that affidavit. We have got a few notes on it, but the printed material is what I'm talking about. It appears to be, yes. So you'll understand there I'm going the next few questions, I wanted to find out for myself how much of the information contained in this affidavit is based on your personal knowledge and how much of it you gained through looking at the record or talking to other people. That's the purpose of my questions. All right. First of all, are the facts and matters set out in this affidavit -- which i'll have marked as Exhibit One -- are they all true and correct? I believe so, yes. And you -I signed the affidavit, yes. -- signed it, and you swore to it? Yes. That it was all true? 7 KRIEGSHAUSER REPORTING & VIDEO 1 A. 2 Q. 3 4 A, 5 Q. 6 7 A. 8 Q. 9 10 11 A. 12 Q. 13 14 15 A. 16 Q. 17 18 19 20 21 A. 22 Q. 23 Yes. I work for Solutia, Incorporated. Prior to that, intil they split off from Monsanto, you worked for Monsanto? That's correct. I understand that you have worked for Monsanto since 1973? That's correct. Did you hold any other job after you corrpleted your education before you went to work for Monsanto? No, I did not. So your whole professional career has been spent working either for Monsanto and then the spin-off company, Solutia? Yes. You gave an affidavit in a case called John and Barbara Swift, et al. v. Monsanto Company in the Federal Court in Alabama back in Noverrtier. Do you remember that? Yes. I'm going to hand this to you and see if this is a copy of that, a true and 6 KRIEGSHAUSER REPORTING VIDEO 1 A. 2 Q. 3 A. 4 5 Q. 6 7 A. 8 9 Q. 10 n A. 12 Q. 13 A. 14 15 Q. 16 17 A. 18 19 20 21 22 23 0. Yes. What was your first job with Monsanto? I was an analytical chemist in the industrial chemical division. How long did you hold that position, what years? 1973 until approximately, I guess, 1976, as I recall. Did you have anything to do with the PCBs in that position? Yes. What did you do? 1 analyzed a variety of samples that came to our laboratory for PCBs. Okay. And that was what you did, was -You sampled what sort of materials? Really, just about anything you can imagine. We did water sanples; we did soil sanrples; we did tissue samples; we did samples generated in our laboratory to test biodegradation or other properties of PCBs. During that period of time, did you know 8 KRIEGSHAUSER REPORTING VIDEO HARTOLDMONO014777 1 2 3 A. 4 s 6 Q. 7 8 A. 9 10 11 12 13 Q. 14 A. 15 16 17 Q. 18 19 20 21 22 A. 23 anything about the particulars of the operation of the facility in Anniston? Just in the most general terms. 1 really didn't know very much about the specifics of the operation. In other words, you knew that Monsanto had a plant there? Right. By the time 1 had reached Monsanto, that plant had been -- PCB production department at that plant had been shut down and dismantled. So l was not -That was all you knew? Not operating. I mean -- Yes. I knew they had manufactured them there and that that plant had been shut down, yes. Ard we're at this period of time up until, say, 1976; did you know anything about any problems they had in Anniston with the release or discharge of PCBs from the premises? As my career began to develop, I understood that samples had been 9 KRIEGSHAUSER REPORTING VIDEO 1 2 3 4 A. 5 6 7 Q, 8 A. 9 10 Q. 11 A. 12 Q. 13 14 15 A. 16 Q. 17 18 19 A. 20 21 22 23 occasion to work with any PCB sampling or sanples from the Anniston facility or its environment? 1 don't recall that I specifically worked with any samples from Anniston, no. Okay. Then what happened in 1979? In 1979 1 went to a corporate analytical group. All this was in St. Louis? Yes. And you have lived in St. Louis since you went to work for Monsanto and still live in St. Louis? That's correct. And how long did you work in this corporate position that you just described? Well, basically until about 1985. I'm beginning to think my timing before that may be a little screwed up by a year or two, but basically 1 was a laboratory analytical chemist until about 1985. 11 KRIEGSHAUSER REPORTING VIDEO 1 2 3 4 5 6 7 Q, 8 9 A. 10 11 Q, 12 A. 13 14 15 16 17 18 19 20 21 o. 22 A. 23 0. analyzed from Anniston. 1 knew that there were -- you know, that materials had been analyzed from Anniston, at some point or another that materials had been detected in various media but nothing in very detail. Did you know that sane of the media were off-site, off-premises? At that time I'm not sure that I knew that particularly. I don't know. And then in 1976 what did you do? Uell, basically E got promotion to be a group leader. And the division I was in split into kind of a pure chemistry division and an environmental division. And ! became a group leader in the environmental division. Responsibilities were -- other than I had a few people reporting to me -- were not greatly different. How long did you hold that position? I think until about 1979. During that particular time did you have 10 KRIEGSHAUSER REPORTING VIDEO 1 o. 2 3 4 A. 5 6 7 8 Q. 9 10 11 A. 12 0. 13 A. 14 15 16 17 18 0. 19 A. 20 21 22 23 Q. And in this period that you have just described in your new position, what did you do? Basically ran an instrument called a gas chromatograph mass spectrometer, analyzing a variety of samples generated in the research department of Monsanto. And none of that had anything to do with any particularity with Anniston, Alabama? No. Uhat happened in 1985? In 1985 l accepted a position in the EHS, Environmental Health and Safety Department, basically assisting someone who had responsibility for corporate stewardship for PCBs. And what were your job responsibilities? Basically -- A variety of things, but basically to be a resource to Monsanto and outside persons on PCB issues. That was the primary focus. So your job was to deal with Monsanto's 12 KRIEGSHAUSER REPORTING VIDEO HARTOLDMONO014778 1 2 3 A. 4 5 6 7 B 9 Q. 10 11 A. 12 13 14 15 16 17 0. IB 19 20 A. 21 22 23 PCB problem as they arose in various places in the country? I don't know if they would necessarily limit it to PCB problems. I was a resource person charged to be knowledgeable about PCBs and responding to both internal and external requests for information about PCBs, yes. I see. Okay. And how long did you hold that position? With some variations that's basically the position I still have. The other person retired, and I basically assumed those responsibilities. That's an oversimplification, but that's really described *So since 1985 you were at first working under somebody who retired later. When did that person retire, incidentally? I can't remenber exactly. That was about probably 19 -- I'll say 1991 or '92. At that point I had seme additional responsibilities, and there 13 KRIEGSHAUSER REPORTING & VIDEO 1 2 0. 3 4 5 6 A. 7 0. 8 9 10 11 12 13 14 A. 15 16 17 18 0, 19 20 21 A. 22 23 the facility and in Snow Creek. And when you became involved in it, did you learn at the time that Monsanto had actually known about this for at least fifteen years? Did you know that? About what? That there were PCBs being discharged from the Monsanto facility in Anniston, that in other words it wasn't discovered for the first time by the Attorney General of Alabama, that it had been discovered at least fifteen years earlier by Monsanto -1 understood that there had been studies detecting PCBs in various of those ditches and portions of Snow Creek part of that time. Well, what was the -- What happened as a result of this attorney general's investigation? We proposed to do a remediation of certain of those ditches leading from the plant and submit that proposal to 15 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 4 O. 5 A. 6 7 8 o. 9 10 11 A. 12 13 Q. 14 A. 15 16 17 18 Q. 19 20 21 A. 22 23 was another person doing the specific PCB stuff reporting to me, and he's since retired also. Yeah. So, I mean, the fact is that's been among my responsibilities since 1985. Now it's - Wien were you first assigned responsibilities for PCB problems in Anniston? The first involvement I had in Anniston was about the 1985 time frame. And what was that involvement? There was an investigation of -- I think by the attorney general's office in Alabama -- of PCB contamination, in and around the Anniston area. I see. And what did you learn as a result of those matters coming to your attention? Primarily we and others did sampling, understood that there were various levels of PCBs in ditches leading from 14 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 4 5 6 7 Q, 8 9 A, 10 Q. 11 12 13 A. 14 15 16 Q. 17 18 19 20 21 A. 22 23 the Alabama Department of Environmental Management. Sometime subsequent to that we received oral comnunication from ADEM that it would be all right to undertake that remediation, and that remediation was undertaken. You did it just by word of mouth without getting anything in writing from them? That's my understanding, yes. At that time did you indertake to find out what the extent of the PCB contamination off-site was? We had done some sampling that guided us in the extent of the remediation that we undertook. So to that extent, yes. But did you subsequently find out that the remediation as far as -- I mean that the PCB contamination is far more widespread than what you remediated in 19 -- in the mid '80s? Well, our 1985 to 1989 focus was on the ditches leading from the plant and the upper reaches of Snow Creek. 16 KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014779 1 Q. 2 3 4 5 A. 6 u. 7 A. 8 9 10 11 12 13 14 Q. 15 A. 16 Q. 17 A. 18 19 Q. 20 21 A, 22 Q. 23 And you said that was the focus. Was there anything else done? Did you go into the neighbors' yards and do any sampling to determine -Ho. Why not? We had no reason to believe, 1 think at that time, that the materials were in the people's yards. And the focus was on the waterways and the streams carrying -- that originally had carried the plant discharge from the plant into Snow Creek. Had you done any air sampling? Not that 1 know of. Did you check to see? Did i check to see if we had done any air sampling? Not that i recall. You have done air sampling since. haven't you? There has been air sampling done. And the air sampling that has been done has shown that -- 17 KRIEGSHAUSER REPORTING & VIDEO 1 0. 2 3 4 A. 5 6 O. 7 8 9 10 11 12 13 14 Q. 15 16 17 18 19 20 A. 21 22 23 And if you had done air sampling back in the '80s, you probably would have found the same thing? 1 can't speculate on that. I don't know. Can you think of any -- HR. BARRETT: Off the record. [Discussion held off the record.] [At this point Hr. Harlan Prater joined the deposition proceedings.] HR. BARRETT: Back on the record. (By Hr. Do) Barrett you know of any reason why that the air samples -- any reason that would make you think that the air samples would not have been similar, or at least as much in 1985 as it was when you took -I haven't thought about that issue. As I sit here, nothing springs to mind, but l really haven't thought about that issue. 19 KRIEGSHAUSER REPORTING & VIDEO 1 2 3! 4 Q, 5 6 7 A. 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 21 22 A. 23 HR. BARRETT: Off the record. [Discussion held off the record.] [By Hr. Barrett) What were the results of air sampling that's been done in recent times? I don't know in great detail. I know the sampling that has been done suggests that some level, most of the samples in fact, are within background levels for what you would expect in urban areas throughout the United States. There are some exceptions to that. There are some levels that do appear to be higher than what you would see in a normal urban background. So you have -- Your air sampling has found levels -- at least some of your air sampling has found levels in excess of what you would expect to find in an urban background? 1 think that's a fair characterization, yes. 18 KRIEGSHAUSER REPORTING & VIDEO 1 0. 2 3 4 5 6 7 8 9 A. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Well, think about it now and tell me if *' You're the PCB man for Monsanto. Tell me if there's anything that you know of that would lead an objective person to believe that the PCB levels would be lower in air sampling done in 1985 than they were when you did it recently. Well, one answer is that analytical techniques have improved greatly in the fifteen years between 1985 and now. So the levels that are being detected at this point, without going back and checking literature specifically, my guess would be may very weil have been below the detection limits for the analytical methods in 1985. So there may have welt been a lot of non-detects. That doesn't mean that the Levels we're detecting now weren't there, but they probably may not have been there -- My guess would be that they may not have been detectable in 1985. To the heart 20 KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014780 1 2 3 4 5 Q. 6 7 A. 8 Q. 9 A. 10 11 12 Q. 13 14 15 16 17 A. 18 0. 19 20 A. 21 Q. 22 A. 23 of your question, as ! said, as I sit here, nothing springs to mind as to any reason why the levels would be higher now than in 1985. Wiat were the detection limits in analytical methods used in the mid '80s? 1 don't know specifically. You're speculating? Yeah. I said that. That was my introduction. It may -- very well could have been. Okay. So anyway, in 1985 the Attorney General of Alabama raised a ruckus, and Monsanto in response to that -- to those expressions of concern did some remedial work in the ditches? That's correct. And what happened to the Attorney General's coqplaints? 1 frankly don't know. They just went away? To the best of my knowledge, for some reason. 21 KRIEGSHAUSER REPORTING & VIDEO 1 2 Q. 3 4 5 6 7 8 A. 9 Q. 10 11 A. 12 13 14 Q. 15 A. 16 17 Q. 18 19 20 A. 21 22 23 0. property. Was that the first time that you did a search of the records to determine what might be buried and what PCBs may be - may have been released into the environment there at the Anniston facility? Are you speaking of me personally? I'm talking about you personally, the guy responsible for PCB - 1 understood that there were PCBs landfilled in various areas on our property in Anniston prior to that time. Okay. When did you learn that? I really don't know. Sometime well before 1993. You must have learned that in - sometime after the troubles with the Attorney General in - Certainly at that time or before. I may have known it before, but certainly at that time or before. Did you undertake an investigation to KRIEGSHAUSER REPORTING & VIDEO 1 Q. 2 A. 3 Q. 4 5 6 7 A. 8 9 10 11 12 Q. 13 14 A. 15 16 17 18 19 20 21 22 23 When was that remediation completed? 1 believe in 1989. When was the next time that you had anything to do -- that any activity occurred in Anniston with reference to PCBs? My recollection is that sometime in 1993 the Alabama Power Company notified us that they had detected PCBs on some property that we had exchanged with them at some time before that. And what has happened since then? Wiat did you do in response to that? Basically we undertook a confirming investigation in conjunction with Alabama Power Company and the Alabama Department of Environmental Management confirming the detection of PCBs on that property, undertook a re-exchange of that property. We re-acquired that property from APCO and undertook remediation of that property to re-secure the cover or the cap on that 22 KRIEGSHAUSER REPORTING & VIDEO 1 2 A. 3 Q. 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 0. 10 11 12 13 A. 14 Q. 15 A. 16 17 18 Q. 19 20 A. 21 22 23 determine how much was buried out there? Did I personally? No. Did Monsanto? I don't know. How much is buried out there? I don't know. Does Monsanto know? 1 don't know. The fact is that there are several millions of pounds of PCBs that are buried on the Monsanto property in Anniston. Is that not true? I don't know the answer to that. Have you never seen any estimate of it? Not specifically -- not specifically as I sit here this morning, I can't recall an estimate. How do you know how to remediate if you don't know what's there? We understand the condition under those landfills, and we understand the best approach to containing and assuring that those materials -- to the extent there 24 KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014781 1 2 3 0. 4 5 A. 6 7 B 9 Q. 10 A. 11 Q, 12 A. 13 14 15 Q. 16 17 18 19 A. 20 Q. 21 22 23 was any release, those releases have been forestalled. What are other ways of remediating PCB contaminated property? There are a number of ways it can be removed to another landfill, i mean. that's primarily it, some, either containment in place, or removal. What about incineration? That would be subsequent to removal. Removal and incineration? I mean, that's possible. It's really not a very efficient way to do rsnediations of soils. In fact, Monsanto was telling its customers back in the 1970s, early 1970s, was recomnending incineration of PCBs, was it not? For used liquid product, yes. And subsequent to that time that it recommended -- Strike that. When was the material, the PCB -Over what period of time were PCBs 25 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 Q. 4 A. 5 6 7 O. 8 9 A. 10 11 12 13 14 15 16 0. 17 18 A. 19 20 21 22 23 -- associated with sedimentary materials in that storm water, yes. But have you tested the sediment itself? I don't understand your question. There is no sediment in the landfills that I know of. Is there no sediment that's come off the landfill? There may be soils that have come off the landfill. I wouldn't say there's sediment that has come off the landfill. Maybe we're quibbling over definitions. But, I mean, the soil that comes off the landfill may at some time become sediment. Right. Okay. Has that soil that has come off the landfill been tested? We have undertaken an extensive investigation of sedimentary material and soil materials in the ditches leading from the landfills and leading from the plant over the past five or six years. 27 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 4 5 A. 6 7 8 9 10 Q. 11 12 13 14 A. 15 16 Q. 17 18 19 A. 20 21 22 0. 23 A. buried, spills or discharge on to the property, or into the property, of Monsanto at Anniston? MR. PRATER: Object to the form. That landfill was used -- Sections of the landfill that were used for PCB waste disposal were used up until and through the disassembly of that facility in 1979. It's your testimony that you don't know -- And you don't know Or do you know anybody at Monsanto that knows how much of that material is out there? I don't know specifically. I don't know whether those records are there or not. Has Monsanto ever tested the sediment that has come off that landfill, comes off the landfills that have been capped? Subsequent to 1993 we have undertaken several measurements of PCBs in storm water. ! know. Assuming that the PCBs -- and they are 26 KRIEGSHAUSER REPORTING & VIDEO 1 0. 2 3 U 5 6 7 8 9 10 11 12 A. 13 Q. 14 15 16 17 Q. 18 19 20 21 A. 22 23 Referring to your affidavit under the heading, "Monsanto's Manufacture of PCBs," you state that -- on the third page -- I'll quote this correctly. "Prior to 1971 when Monsanto ceased manufacture of PCBs at the Anniston plant, there were no Federal or state statutes or regulations concerning the manufacture, sale, distribution, disposal, or clean-ip of PCBs." You did say that? Yes. You're not saying that -- MR. BARRETT: Off the record. IDiscussicn held off the record.] (By Mr. Barrett) You aren't saying that there were no Federal or state laws governing the discharge of pollution in 1971, are you? There were no federal or state laws governing the manufacture, discharge, or release of PCBs in '71. 28 KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014782 1 Q. 2 3 4 5 6 A. 7 0. 8 A. 9 0. 10 11 12 13 14 A. 15 0. 16 17 A. 18 0. 19 20 A. 21 22 23 0, Not PCBs specifically. But didn't, for example, the National Refuse Act -didn't you have to have a permit to discharge deleterious substances into the waters of the United States? 1 don't know that specifically. You don't? No. Are you aware that since 1947 you had to have a permit to discharge any deleterious substance, anything that pollutes the waters of the State of Alabama into Alabama waters? 1 don't have specific knowledge of that. You don't have any knowledge of it, do you? No. You don't have any knowledge about the National Refuse Act? I know that it exists. I don't know what the requirements or how they apply to the Anniston plant. So you don't know whether these acts 29 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 0. 4 5 6 7 8 9 10 11 A. 12 13 14 15 16 17 18 19 20 Q. 21 22 A. 23 knowledge and best practices of the time, yes. And you're saying that, and you have no idea what the law of Alabama is. You have no idea vrtiat the National Refuse Act is as it applies to PCBs, and nothing of what the 1947 Alabama act is? And yet you say -- how can you say that Monsanto is doing everything within the law? I said it was doing everything within the best manufacturing and best practices of that time. As l said, I don't understand necessarily what laws specifically did apply or not apply to that plant. 1 can't address that question. But I believe that the company was operating under appropriate manufacturing practices at that time. What do you base that on; you didn't work for them in 1947? Just my tnderstanding of what the situation was with regard to the 31 KRIEGSHAUSER REPORTING VIDEO 1 2 A. 3 Q. 4 5 6 7 8 9 10 A. 11 12 0. 13 14 A. 15 Q. 16 17 18 19 20 21 Q, 22 A. 23 would apply to discharging PCBs or not? No. You're not saying that the cannon taw of Alabama did not apply to the discharge of PCBs, are you? MR. PRATER: Object to the form to the extent it calls for a legal conclusion of this witness I don't know what the cannon law of Alabama says to -Is? You don't know what the law of Alabama is on this subject, do you? That's correct. You're certainly not saying, for exarrple, that Monsanto had a right, a legal right, to dunp PCBs into streams that would go off its property and on to other people's property, are you? MR. PRATER: Object to the form. (By Mr, Barrett) Sir? I think Monsanto was operating its facility in accordance with the best 30 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 4 Q. 5 A. 6 7 Q. 8 9 10 11 12 13 A. 14 15 16 17 18 19 20 21 22 Q. 23 knowledge about PCBs at that time and the actions that we undertook when that knowledge changed. And that's your opinion, right? I scppose it could be characterized as that way. Why was no -- Strike that. Why were the regulatory actions or remedial actions that Monsanto took since 1993, why were they not taken sooner? MR. PRATER: Object to the form. I don't think we -- I don't think -- We did not have an understanding of the situation at the west end landfill and didn't understand -- Plus, we were undertaking a rigorous investigation of the plant which led to sane of those sampling events, and didn't have knowledge sufficient to justify or require the need for that remediation. Was there anything that would have prevented Monsanto in 1970, when the 32 KRIEGSHAUSER REPORTING VIDEO HARTOLDMONO014783 1 2 3 4 5 6 7 8 A. 9 10 11 12 13 0. 14 15 A. 16 17 18 19 20 21 22 23 records show that it knew that there were discharges off-site, from doing the testing necessary to detennine the extent of the contamination? Was there anything to prevent you from doing that in 1970 as opposed to beginning it in 1993? We did do extensive investigation in the 1970 time frame, Looking at k^iat was being discharged from the plant and undertook a variety of activities to minimize or eliminate that discharge. Yes, sir. But you didn't do in 1970 what you did in 1993? Well, it was a different issue, and there were different capabilities and different procedures known to be effective in capping those materials between that time frame. A Lot of knowledge has been gained in those twenty-five years or so on how to manage and contain a variety of industrial wastes, not just PCBs. 33 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 0. 4 5 6 7 B 9 A. 10 11 12 13 14 15 16 0. 17 A. 18 19 20 21 22 23 are experts in the field that hold that same opinion also. Yes. Do Monsanto workers -- I understand they are now Solutia workers -- but do they get medical monitoring. those that have possible exposure to hazardous sciastances manufactured by Monsanto, Solutia? I'm not sure exactly what you mean by the term "medical monitoring." At various times there have been various policies with regard to giving people yearly or bi-yearly physicals at some given interval, if that's what you nean by medical monitoring. lAiat's the purpose of that? Primarily to see -- to understand, nuaber one, their health status in general, and to provide base-line data to see if exposure to particular materials is having an effect on -- you know, exposure to materials in a manufacturing situation is having an 35 KRIEGSHAUSER REPORTING VIDEO 1 0. 2 3 4 5 A. 6 7 Q. 8 A. 9 Q. 10 11 A. 12 13 14 15 16 17 18 0. 19 A. 20 Q. 21 22 23 A. But we're talking about PCBs in this case. And you understand that PCBs pose a hazard to the hunan health and the environment, don't you? I would not necessarily agree with that statement the way it's phrased. Wouldn't? No. What would you disagree with about that statement? I think based on my understanding of the literature on hunans exposed to PCBs, I don't believe that PCBs particularly pose a hunan health risk to hunans. I guess that was redundant. I do not believe that PCBs pose a health risk to hunans. That's your opinion? Yes. And you understand that there are experts in the field who hold different opi ni ms? I understand that. I understand there 34 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 Q, 4 5 6 7 A. 8 9 10 11 12 13 14 15 16 17 Q. 18 19 A. 20 21 22 23 effect on the health of the workers exposed to those materials. Have there ever been any studies done for workers -- long-term studies for workers exposed to PCBs at any of the Monsanto facilities? No, not specifically targeted at PCBs, There were studies at the plants which necessarily involve the PCB workers. But the studies weren't focused on PCBs particularly. Well, that's not quite true. There was -- In the 1970s or early 1980s there was an epidemiology -small epidemiology study undertaken at the Krunmrich plant to look at those workers. But the workers in Anniston didn't get such a study, did they? It wouldn't have been appropriate. The nunbers just weren't sufficient to do that kind of a study at the Anniston plant. They really weren't at the Krunmrich plant either. 36 KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014784 1 Q. z 3 4 5 6 7 A. 8 9 10 11 12 13 14 15 16 17 Q. 18 19 A. 20 Q. 21 A. 22 23 What are you trying to accomplish, or what have you tried to accomplish in your remediation plans -- remediation that you have done since 1993? What's the overall -- what are you looking to do? 1 guess you would say we are looking to maintain and contain, manage and contain, the materials, PCBs primarily. specifically, that are on property owned or that are now by Monsanto Company and continuing that investigation under our requirements under ADEM's adninistration of the RCRA laws to investigate and propose solutions for materials that are off site as well. How many NPL sites, Super Find Sites, in the United States is Monsanto involved? I don't know. Approximately how many? Some. I really don't know the answer to that question. It would be a rank guess on my part. 37 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 A. 4 5 6 7 8 9 10 11 Q. 12 13 14 15 16 17 18 A. 19 20 21 22 23 on to its neighbors? MR. PRATER: Object to the form. Ue're undertaking the final phase of the RCRA investigation of the site. That would involve additional sampling and proposal of additional remedial measures if appropriate. And then as i think 1 mentioned earlier, we are involved in an extensive investigation of off-site PCBs. I'm not talking about the off site. I'm talking about apparently -- apparently it's still going -- PCBs are still leaving the plant site and going onto the neighbors' properties. Do you agree or disagree with that? MR. PRATER: Object to the form. I would disagree with that. There have been some detections of PCBs yet in storm water occasionally. We are continuing that sampling and trying to understand what the meaning of those is. But I don't know whether it's going to 39 KRIEGSHAUSER REPORTING VIDEO 1 Q. 2 A. 3 4 5 6 a. 7 8 9 A. 10 0, 11 A. 12 Q. 13 14 15 A. 16 Q, 17 A. 18 Q. 19 20 A. 21 Q. 22 23 What's your best guess? My best guess -- and it's strictly a guess -- is maybe a dozen, could be more, could be less. S really don't know. How many of them that you know of does Monsanto have an ownership interest in the property being remediated -1 don't have a clue. You don't have anything to do with that? In general, no. Who's in charge of those sites, the overall charge -- in charge of remediation? I guess Mike Forestnan, 1 guess. But not you? No. And you're not in charge of remediation at the Amiston plant, or are you? Certainly not. What else does Monsanto, Solutia, have planned to reach its goat there at Anniston to stop the discharge of PCBs 38 KRIEGSHAUSER REPORTING VIDEO 1 2 0. 3 4 5 A. 6 Q. 7 A. 8 9 Q. 10 11 A. 12 Q. 13 A. 14 15 16 17 18 19 20 Q. 21 22 23 the properties or not. (By Mr. Barrett) So you know it's in the storm water; you just testified to that, occasionally. Occasionally at very low levels. You know it's in the air because you -Occasionally there have been some detections. So it's in the air, and it's in the water. 1 don't -So it ain't working, is it? I don't know that the material in the air is -- what the source of that material is. I just don't know. And to the storm water, whether that storm water is getting on plaintiffs' property, 1 don't know the answer to that. Would you tell the jury that you don't believe that Monsanto is the source of those PCBs? MR. PRATER: Object to the form. 40 KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014785 1 A. 2 Q. 3 4 A. 5 6 7 8 0. 9 10 11 12 A. 13 14 15 Q. 16 A. 17 18 Q. 19 20 21 22 A. 23 In the air? (By Mr. Barrett) In the air or in the storm water. In the air I don't know what the source is. I think we need to do additionaI sampling to understand what the source of that is. Dr. Kaley, you don't know what the source is, but your opinion is, you believe, that it is likely that Monsanto Is the source for those PCBs? I think the facility is a potential source of those PCBs. 1 think we need to - It's the probable source, isn't it? 1 said it is a potential source of those materials. I know you said it's a potential source. But it is the probable source, is it not? MR. PRATER: Object to form. I don't agree with that characterization. 41 KRIEGSHAUSER REPORTING & VIDEO 1 2 A. 3 4 5 6 7 8 9 10 Q. 11 12 13 14 15 A. 16 17 Q. 18 A. 19 20 21 0. 22 23 A. find out? I don't know the answer to that. I don't know whether other people have that knowledge or not. MR. BARRETT: Take about a ten-minute break. We may be about to wind this up. [A break was taken.] MR. BARRETT: Back on the record. (By Mr. Barrett) You testified earlier that -- or did you testify that you hove accelerated now your remedial investigation for off-site contamination? I believe it says that In the affidavit that you're referring to, yes. And why have you accelerated it? Well, we want to be as responsible as we can and get these matters appropriately handled. Off-site contamination ought to be remediated as soon as possible? I think we need to understand as soon as KRIEGSHAUSER REPORTING VIDEO 1 o. 2 3 4 5 6 7 A. 8 9 Q. 10 11 A. 12 13 14 0. 15 16 17 A. 18 Q. 19 A. 20 Q. 21 22 A. 23 D. (By Mr. Barrett) You have just testified that you don't have any idea how much PCBs are buried out there on your property. Do you know where they are buried? MR. PRATER: Object to form. I know there the PCB landfill cell is, yes. Where do you think that the PCBs are buried on the property? In a cell on the south landfill. And there are obviously some buried in the west end landfill. So there are PCBs -- What percentage of the PCBs that are out there are buried in the west end landfill? I don't know. You have no idea? No. And how neny PCBs poundage or tonnage of PCBs are buried in the south landfill? I don't know. And nobody at Monsanto has ever tried to 42 KRIEGSHAU5ER REPORTING S VIDEO 1 2 3 4 Q, 5 6 7 8 9 10 A. 11 12 13 14 Q. 15 16 17 Q, 18 A. 19 20 Q. 21 22 A. 23 o. possible what the situation is off site so that we can propose appropriate remedial activity, if any. It wouldn't be responsible for a company to know about off-site contamination and conceal that knowledge and do nothing? That would be irresponsible, wouldn't it? MR. PRATER: Object to form. I believe that a conpany as it develops knowledge to deal with situation needs to understand that situation and deal with it appropriately, yes. (By Mr. Barrett) So your answer to my question would be yes? MR. PRATER: Same objection. (By Mr, Barrett) Sir? My answer to your question is the answer 1 gave. Who's the person you were working under who retired that you testified since -His name was John Craddock. And have you ever worked with KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014786 1 2 A. 3 4 Q. 5 6 7 8 9 10 11 12 13 14 A. 15 16 Q. 17 18 19 20 21 22 A. 23 Q. Dr. Papageorge? Not with him. ! know Bill, but ! have not worked with him. Let me go back to -- We had a discussion about whether or not you tested sediment. And we -- I don't think we ever quite got an answer because we couldn't agree on what sediment was. But let me ask the question -- approach the issue this way: Haven't you -Monsanto -- Has not Monsanto built a settlement basin there on its property right over beyond the Mars Hill Church? There's a retention basis there, yes. for storm water control, yes. And the purpose of that basin is so that if there are PCB laden soils in the storm water, that they will settle out there in this basin as opposed to ruining off in the storm water. Is that not the purpose of that? No. It's not? 45 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 4 Q. 5 6 7 8 9 10 A. 11 Q. 12 13 14 A. 15 Q. 16 A. 17 Q. 18 19 20 A. 21 22 23 Q. down the volute of flow into the drainage basin, then that's what it accomplishes. So what would happen in the event of a large rain or in the event of a storm, the storm water would rush in there, be detained, and let out at a rate to prevent or hopefully to minimize flooding downstream? Basically, yes. So the water then temporarily backs out and backs over the area of this settlement basin? Detention basin, yes. Detention basin? Yes. And the rest of the time there would be areas of that detention basin that are -- that's not under water? Most of the time. My understanding is that most of the time that detention basin is dry. That's my understanding. And has the soil in that area of the 47 KRIEGSHAUSER REPORTING & VIDEO 1 A. 2 0, 3 4 A. 5 6 7 8 9 10 11 a. 12 13 A. 14 15 16 17 18 0. 19 A. 20 21 22 23 No. that's the purpose of the settlement basis? The purpose -- It is not a settlement basin. It's a retention basin, or detention basin. The purpose of that basin is to collect storm water so that the discharge of that storm water can be managed to cut down flows into the ditches and into Snow Creek. ! got you. So what happens to the water when it goes into that retention basin? It sits there until it's discharged at a more manageable rate that the system can handle. Snow Creek drainage system can handle, to the extent it collects there at all. I don't understand what you meant. Well, the water that's flowing into there, unless there's a huge storm, it's basically going to flow through that basin. If there's a huge storm where that water needs to be detained to cut 46 KRIEGSHAUSER REPORTING & VIDEO 1 2 3 A. 4 5 6 7 Q. 8 9 10 11 A. 12 13 14 15 0. 16 A. 17 0. 18 19 20 A. 21 22 23 detention basin been tested to see PCBs are in it? I don't know whether it has or not. At some point I'm sure it will be. If we ever need to dispose of materials in it, it would clearly be tested. When that soil dries out and the wind blows, it's being disposed of every day, isn't it, by the wind blowing it off as dust? That basin to my knowledge is grassed. 1 don't know whether there's dust discharge off that or not. I don't know. You don't know? No. And if there's -- That's all. And you have never thought -- Who would make the decision as to whether it ought to be tested or not, not you? Presumably Mr, Faust. MR. BARRETT: That's all the questions I have. Thank you. (Plaintiffs' Exhibit Number 48 KRIEGSHAUSER REPORTING VIDEO HARTOLDMONO014787 49 1 One was marked.] 2 3 (AND FURTHER DEPONENT SAITH NOT.) 4 5 6 7 8 9 IQ 11 12 13 14 15 16 17 IB 19| 20 21 22 23 KRIEGSHAUSER REPORTING & VIDEO SIGNATURE PAGE 51 RUBERi G. KALtY, 11 Subscribed and sworn before me on this __ day of, 1998 My conmission expires: INU1ARY PUBLIC] KRIEGSHAUSER REPORTING & VIDEO 50 January 21, 1999 Dr. Robert G. Kaley, II C/O Harlan 1, Prater IV, Esq. Lightfoot, Franklin & White The Clark BuiIding 505 North 20th Street Birmingham, Alabama 35203 Dear Dr. Kaley: This page is incorporated as page 49 of your deposition. Your deposition transcript has been corrpleted, and as per requested, is ready for you to read over. Please do not write on the transcript but make any changes you wish on the errata sheet provided. If there are no corrections, write across page "no corrections." Please sign tne signature page before a notary, and then return errata and signature page. Under the Rules of Civil Procedure you have thirty days to read and sign your d%>osition transcript. If you have any questions, please feel free to call me at (314) 729-0575 and I'll be glad to help in any way ] can. Sincerely, Sheila L. Ford, RPR, CSR KRIEGSHAUSER REPORTING & VIDEO cc: John Barrett, Esq. KRIEGSHAUSER REPORTING & VIDEO NOTARIAL CERTIFICATE I, SHEILA L. FORD, a Registered Professional Reporter and duly commissioned Notary Public within ard for the State of Missouri, do hereby certify that there came before me the Ritz-Carlton Hotel, 100 Carondelet Plaza, St. Louis, MO 63105, ROBERT G, KALEY, II, who was by me first duty sworn to testify to the truth and nothing but the truth of all knowledge touching and concerning the matters in controversy in this cause; that the witness was thereupon carefully examined under oath and said examination was reduced to writing by me; and that the signature of the witness was not waived by agreement of witness and all parties, and that this deposition is a true and correct record of the testimony given by the witness. I further certify that I am neither attorney nor counsel for nor related nor employed by any of the parties to the action in which this deposition is taken; further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto or financially interested in this action. IN WITNESS WHEREOF 1 have hereunto set myharri and seal this the 21st day of January, My commission expires: March 13, 2002 52 Sheila L. Ford Notary Public KRIEGSHAUSER REPORTING & VIDEO HARTOLDMONO014788