Document emRw47LZnQLRNEnXLLkYk4DQe

IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRENCES E. KEMNER, et. *1, 4 Plaintiffs, 5 VS. NO. 80-L-970 6 MONSANTO COMPANY, 7 Defendant. 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON. RICHARD P. GOLDENHERSH 12 JURY TRIAL 13 April 12, 1985 14 15 16 APPEARANCS: 17 Mr. Rex Crr & Mr. Jerome Seigfreid On Rialf of the Plaintiffs; 18 Mr. John . Musgrave 19 Mr. Josep Nassif On Bialf of the Defendant. 20 21 22 23 Agnes C. Hackmann, CSR, RPR 24 Official Court Reporter I INDEX 2 WITNESS 3 PHOCION PARK Examination (Cont'd.) by Mr* Carr 4 5 6 7 EXHIBITS '' . * ` . 8 Plaintiff's Exhibit No* 1292 Plaintiff's Exhibit No. 1293 9 Plaintiffvs Exhibit No. 1294 1 Plaintiff's Exhibit No. 1295 10 Plaintiff's Exhibit N o . .1296 ... Plaintiff's Exhibit ito. 1297 11 IDENTIFIED 29 65 106 121 143 149 12 13 14 15 16 17 18 19 20 21 22 23 24 PAGE 2 ADMITTED 30 66 107 122 144 150 2 1 BE XT REMEMBERED AND CERTIFIED THAT heretobefore, 2 on to wit': Friday; April 12, 1985, being one of the regular 3 judicial days of thisCourt,the matter as hereinbefore set 4 forth came "onsfor hearing before the HONORABLE RICHARD P. 5 GOLDENHERSH, Circuit fudge`in and for the Twentieth Judicial 6 Circuit, St. Clair County, Illinois, and the following was 7* had of record, to wit: 8 ` PHOCION PARK, 9 resumed the stand, having previously been duly sworn, and 10 testified:. 11 EXAMINATION (Cont'd.) 12 BY MR. CARR: 13 Q Mr. Park, we were at the close of the day discussing 14 the meeting that you had on May 11, May 22 in which you were IS determining whether or not the EPA should be notified as to [1 16 any possible toxic substances .that might be in your 2 , 4 17 dichlorophenol and with regard to that, if you.would refer to 18 Plaintiff's Exhibit -- do you have those Plaintiff's Exhibits 19 up there? 20 A. No, X don't. X have none here.now. 21 Q I need to dig them out then. There is 1288 which we 22 will be working with and 1275, 1290. X think that is possibly 23 all. And we were discussing the Exhibit 1290, which for the 24 jury they are not,numbered. It has got the four dames and the 3 1 initials of Jim Wilson in the upper righthand corner* In about 2 the middle of the page there is a statement, is there not, "2,3,7 trichlorodibenso dioxin nearly as bad as 2,3,7, 8 tetra?" 3 i Do you see that, sir? 41 ^ . A I see that handwritten, yes. . 5 i6> Q And you understand.2,3,7 trichlorodibenso dioxin to 7 be that dioxin which has three chlorine molecules attached to 8 the dioxin* Do you not, sir? ? A I d o believe X understand that, yes* 10 Q And the statement is comparing the toxicity of the 111! tridioxin to the 2,3,7,8 tetradioxin. Is he not, sir? - v i. ;r -_.v -' " i .=v. 12 A He appears to be. I.guess. ^ 13 Q .And whoever writing this, Dr. Wilson or whoever^is 14 doing this writing is certainly writing something down that IS would.be, important for you .all .to know, if you determine or 16 making.a determination, as to ^whether or. not the 2 ,4 dichloro- 1i7' phenol might be safe* Isn't that correct, sir? 1i 8> A That is, a conclusion^ that was in the mind of the 19 author, Mr* Carr, This is.not my notes* - r.-.v.: it*j...i/r; '^rrA'vr. :*:m :. . 'J 2V<'0- .. Q_, Could you answer my question, please, sir? 2i 1\ A I .don't .know. ...,.-1.,, . ...... 22 Q Do you not.conslder that if your product contains 2!3 trichlorophenol, that is what would be in this column described 24 as GL3, if your product contains that, that wouldbe along with . ;- . i. - 1 i. ,, . `V , \ - 1 4 1 tetra 2 ,3 ,7 9 8 that is something that would be of concern, 2 wouldn't it, sir? i ( ra k *; 3 A That would be up to a toxicologist. 4 Q Excuse .me. You are serving on that committee and you 5 are considering those and we went through this. You wrote the 6 memos. You considered toxicity, did you not, at that time, 7 sir? 8 A X serve on the committee for the purpose of interpre 9 ting the law to which we are subject. X am not a toxicologist 10 and never pretend to be. We have toxicologists that do serve n with that committee or support the committee. 12 Q Mr. Park, when you sit on that committee do you con 13 sider whether or not these products are substantial risks to 14 those people that use them, are exposed to them? 15 A We certainly consider the question of whether a given 16 product would present a substantial risk of injury to health 17 or environment. 18 Q And is it Important to you to know what toxic sub 19 stances, when you are serving on that committee, are in that 20 product? 21 A That would certainly be -- the toxicity of the product? 22 Q Xs that important to you to know what the toxic sub 23 stances are in your product, Mr. Park? 24 A The important thing is the toxicity of the product we 5 1 are dealing with, 2 Q Could you answer that question that 1 asked you? 3 MR. MUSGRAVE: Object. He has Your Honor. He askec 4 him whether toxicity was important and he explained that 5 toxicity was important. 6 THE COURT; Overruled. Visit a second Mr. Park. 7 1 don't believe he has answered th question. Objection is 8' overruled. "- 9 A (By: the Witness) What is important is the toxicity , * i * * ,, 1. 1_. 1 ^\ ., 10 of the product. , v; ^ K.. H Q (ByMrVCarr) Could you answer the question that 1 12 posed to you? The Court has. instructed you to answer. i ,i ? O k } ::K'3 - 13 A I thought 1 had answered the. question*. 14 Q I know you thought that Mr. Park, but you haven't. .15 The Court has ordered you to answer that question. Your 16 counsel objected saying that you had answered. The Court over 17 ruled the objection. I know you understand that to mean that 18 your counsel is wrong in the judgment of the Court and that you 19 oust answer the question as X gave it to you. Would you please 20 do so? 21 A I will do ray best, to answer your question Mr. Carr. 22 What is important to the committee Is the toxicity of the pro* , " 1` r 23 duct in question. MR. CARR: Your Honor would you direct the witness 6 1 . to answer the question, 2 THE COURT: Okay. Hr. Park, that is the answer that 3 I said was not responsive to the question. Now, 1 will allow 4 the Court Reporter to read the question back once and answer 5 that question, please. 6 (Question read.) 7 A (By the Witness) 1 am having difficulty because of 8 the constraints you have placed on ^ answer. You won't allow 9 me to give the answer X feel is appropriate X guess I would f* \ r t ,* ?- 10 bave to answer that that, is less important than the toxicity 11 of the entire product' under concern including whatever con- '* * t 12 stltuents it may contain. 13 Q (By Mr. Carr) ; Is it important that you know what toxic 14 substances are in your product when you attempt to make a IS determination as to whether or not your product is in fact 16 toxic and whether or not it imposes a substantial risk to the 17 public and whether or not you should notify the EPA that your 18 product contains toxic substances? 19 A When our product contains toxic substances at a suffi 20 ciently high concentration that they impact the toxicity of the 21 product itself, then it is important to know that. 22 Q And then it is important to know whether or not what 23 levels of the tridioxin is in the product, is it not, sir? 24 A You are asking me to speak now to toxicity -- 7 1 Q Yea, I am, Mr. Park. 2 A -- of a substance that I am not familiar with. 3 Q Please answer that question. 4 A X don't know. 5 Q You don't know whether it is important? 6 A Xtdepends on the toxicity of the trl. 7 Q That is correct. X certainly agree with you one 8 hundred per cent. Xt does depend on the toxicity of the tri9 chlorophenol dioxin, doesn't it, air? JO A Yes. * . <! {, . -;r . \ 11 Q And In exercising your judgment In deciding whether 12 or not you should notify the EFA, is it important to you to , 13 know whether or not these dioxins listed here from the mono 14 to the octa are toxic and the extent of their toxicity. Isn't 15 that correct, sir? 16 A And the concentration. 17 Q And the concentration to be sure* Those things are 18 important, aren't they, air? 19 A If they are toxic, yes. 20 Q Yea. That is what X said. X posed It is Important 21 to know whether or not these things are toxic. Isn't that 22 correct, sir?. That is what X have been asking you.for the 23 last five minutes. 24 A X thought you were asking me if the tri was toxic or -I !8 t I not and I just have to say -- 1 Q Now Mr, Park, you know good and well X didn't ask you 2 il that. What X asked you was whether or not it is important 3 that you should know whether or not trichlorodibenzo-p-dioxin 4 * ,r is toxic, That is all I asked* X didn't ask you whether or 5 i V6 not it was toxic, did I,A sir? X just asked you whether or not it is important that[you in functioning on this committee 7 8 should know whether or not the substances that go into your 9 product and go out in the public, whether or not they are toxic, v i- 10 That is what X have asked you, 11 A X have got .to respond that it is important that X know p T' 'J ^ 'iH 12 what our toxicologists tell me is important, 13 Q 'Andwhat he 'tells you is important is the toxicity of 14 the substances that; go into yr product. Isn't that correct? L ' V Lr , ' I 15 A If he considers that to be sufficiently toxic and of 16 a sufficiently high concentration that it affects the toxicity 17 of the product in a significant degree, then he may consider 18 that so important that he should make it known. I!I 19 Q And on your committee you understand that to be his 20 function, don't you, sir? Isn't that correct, sir? 21 A The function of the medical department representative T 22 is to bring toxicity information to us, [ 23 Q Surely, You cannot function without that being done, r. > . 24 If you are sitting on that committee in determining whether or L I ; ]i i9 'j not to notify the EPA, you have to know whether or not the 1 2 substances that go into your product are toxic. Don't you, 3 sir? ! 4 A What is considered important to the toxicologist -- 5 X think you are asking me to state what is considered important 6 to our toxicologist and t am just not in a position to do that. 7 Q That is not what I am asking you Mr. Park. You are i 8 serving -- Your Honor is it necessary that X reestablish 9 everything that I established yesterday with this witness? 10 Mr. Park, assume, if you!would, that yesterday you responded I . 11 to similar questions that it is ir^portant in the functioning 12 of your duty as a member of this committee that you know and 13 be advised as to the toxicity of the substances that go into 14 your product and that we discussed,that at some length includin; * -i i>"k M ' 15 the toxicity of 23,78 and including the effect of 2,3,7, 8 16 upon the systems of man and you responded as to what you knew i 17 about it. Assume that we did all these things and let's not 18 spar anymore on whether or not you need to know the toxicity 19 of the substances in exercising your functions. Would you 20 direct the witness, Your Honor, to assume that we established 21 those yesterday? t i 22 THE COURT: You are to assume that, Mr. Park. You 23 may continue, Mr. Carr. t 24 Q (By Mr. Carr) Now, Mr. Park, when you sat at the t 1 10 ;' meeting on May 11 and May 22 did your toxicologist discuss 1 with you the fact as it Is written on this piece of paper that 2 2.3.7 trichlorodiben2o-p-dioxin is nearly as bad as 2 3,7, 8 3 tetra? 4 A cannot remember that at all* S' 1 Q All right. Did he discuss with you whether or not the 6 octa dioxin is toxic? | 7| 8 A Mr. Carr, this meeting was five years ago* X cannot r 9 remember the specific discussion. T 10 Q I understand that and if you can't remember simply L 11 say you don't remember* ! .. 12 A That is why we rcord it in the minutes so we will I- ; 13 hove a record., , , * * ,r , ' 'p i ' 1 14 Q Vli didn't record in your minutes though anything as 1 15 to -- and these, of course: are notes of individual members. s. I 1 16 They are not your minutes. They are not recorded there any- 17 thing except the toxicity of 2,3,78 and the toxicity of [ 18 2.3.7 dioxin. Isn't that correct, sir? I 'm sorry. There is 19 another notation that ' 2,i7,r dichiaro, that would be the one with 20 the two chlorine atoms, is much less toxic, but still and that i 21 is blank and monochloro is practically non-toxic. 22 MR. MUSGRAVE: Are you reading from the notes or the 23 minutes, Mr. Carr? 24 MR. CARR; From the notes, 1290. i 11 i - V MR. OTSGRAVEr, fast so.you get It clear* 1 Q . (By'/Mr. Carr) he is discussing^ this-note, 1290, 2. 3 is discussing,"when he sa^s mono he says CLl. You understand 4 '' that, don*t .you/sir? Let me give you 1135 so you'don't need 5:V to strain your eyes. Now, you can look at that and this1 is 6 just illustrative of tabi.e 3 that is on here now. He is dis ` V, cussing, when this 'hote refers to rabnochloro he is talking . 8 - about that which is in the first column, CLl Is he hot, sir? ' 9 ' A (By the Witness); 1 really; don * know. X don -1 know " QJ who authored these notes. v I don't know what he is referring ' ' He to.\ .V '. ; , '? > ' ^ i'2 . Q,; Mr; Park/IVdidh? t/ask you that. These notes are 13/ obviously Jita Wilson's notes1* I don't care whether you know 14; the author.;/1'is/sufficient Vthat it is n of the five people 15 rl61 ' that attended that meeting and you said it is not yours and .r ^ ( 'if ' 'V - - ` ' 1 - , v- ' '' the:ho te refers tov--Vit1 tells1 abou t wha t Calli s would recommend 17 .. that you disclose the 2,4,6 content ,to Fallek-Lancro. 1'Corey BA YO N N E, N .J, 18/ agreed. Park generally.agreed, but,said it'should be low-key." 19 / Coreyrrecommended something else. So, there are four people / 20 identified by:the author of;this document. Four of,the five . 2 1 . people is discussed. The only person hot discussed is Jim 22 . Wilson whb 1 am. representing to you is the author of this ^ 23; d o c u m e n t / B u t i t is not material. What is important, is. the: -24.V ' person that wrote this talking about tqonochloro, you understand 12 1 monochlpro to be the one that, has the one chlorine molecule, .2 attached to the dioxin particle*, Don't you, sir? 3 A. You are asking me to add to the notes of some author 4 less piece of paper. I wjLll not add ,to it. 5 Q I am not asking.you to add. .. , '` " '** " ' i . . , ' '' ''1. 6 MR. MUSGRAVE: You are* .Mr..Carr. 1 object. . He is '7 . asking him to assume what the .author of this document meant by 8 that. That is exactly what you are asking. X object. \ ^ 1^ t 1i ' - . *_ 9 THE COURT: Objection is overruled. Mr. Park, you JO have to answer the question as it is put to you. 11 A (By the Witness) All right.; I don't know what ^- it' 12 could have been monochlorobenzene. ,1 am not a chemist. ; It is ,:, ^ , iT.J i > ", y'i ` ` <|l i ^ 1 J.- V -'* . - .- .13 my understanding.therevare1 other^products. There are some 14 products that have 1the"prefix, i f y o u will, monochloro. i . H v . tic \ - ,15 Q (By Mr. Carr) Would there be any reason for you to be 16 . discussing {benzene, when-you are at a meeting determining - ' . `- j 17'. whether or not you should notify the EPA about a chlorinated, 18 phenol such as 2,4 dichlorophenol?/ .. i J ", *" 1 ,, - \ ' r i . t. 1- ,r A /A,meeting five yejars ago?v Perhaps there could be. I 20 don't know what the author'intended when he said monochloro. 21 Q I am not asking you that. 1 am asking you whether or 22 not you know.that monochloro is referred to when you. are dis- 23 cussing dioxin referring: t:o/that.which has the one dioxin 24 particle -- molecule? B AVONME, N .J, 13. 1 -2 ' 3. 4 5 6 7 8 9' 10 'll , A I. don't knowwhatthisauthorreferred to. Q X am.not asking you thatf sir.' Mr. Park, you under stand what I am asking you? I am asking you whether or not you understand' monochlorj)? y Hot what this author says, but ' .v " i. - * ' whether or not-you know that monochloro is referring to that dioxin -- does refer to dioxins that have the one chlorine molecule attached thereti>? - - - f:" - 11 ' .\ A In this context, I will say I do not. If you wish to ; ' ' 'T \ ^ i ' v? ask me do 1 understand tl^at monochlorodibenzo paradioxin Q Mr. Park, please, if you don't know say you don't know That is all X:am asking you, .Mr. Park. Xf you don't know say 12 it and we will pass onto the next one.. 13 A" I did-8 ay..that a moment ago, Mr. Carr. : ^V o . 14 Q And do you know whether or not 2,7 dichlorophenol - f. ;- ;U]..` ^ ?`V: ' - -i.*. , 15 represents^,or. is commonly: referred to as to that dioxin that 16 *' 17 has two chlorine molecules? ^ p . r . .. A. I think you named two diffrent substances. v. 18 . MR. MSGRAVE : [2,7 dichiorophenol 19 MR. CARR: 2,7 jdichiorodibenz-p-dioxin and it is 20 abbreviated here, 2,7 dichioro. ,^ 21 . 22' 23. " 24 A (By the Witness) I don't ..know what the author meant when he wrote that. Q (By Mr..Carr) Well, do you see just faintly the quotation or ditto marks [right behind the dichloro? PEN GAD C O ., ,B A Y O N K E ,i N .J. .0 7 0 0 2 14 A 1 see the. little mark o n t h e sheet* _ '. 2' Q Two little marks don *t you, sir? Barely legible on 3 th copy that you have given us 4 A. Perhaps ,5 :. * ,6 'Ty <1 And could you.interpret that just barely, possibly r i" Z since you are discussing dioxin'in your context that that Just might possibly refer to 2,7 dichlprodibenzo-p-dioxin? ; 8 A I don't know. j - ' ^ 1 ^ . 9 Q All right. And what about ,the 2,3,7 dichlorodibenzo- IP, p-dioxin? Is there anycoubt in your mind as to what Is repre 11 r sented there, Mr. Park7 -12 A ^here is doubt simply because X am not a chemist. I 11 am not a toxicologist and I am uncomfortable talking on this * ji r'j j j'1*\f5 s //- 'J! ''- 14 s u b j e c t ^ .['s* 15 i6 ; 17 Q .X didn1 1\ask, ybu thatg Mr. -Park. ' t**';.i?Vi"\\*.'' ^ _V-vv$ \ A However, I guess I wish the column heading on this otheir' ^ .r ' -.j \ / v**' ,-w*** '^ ' * * i- \_ * "r * exhibi t that you hhve ;up iere had the word spelled out. But I, 18l guess I would" say that CL 3 could meantrichlorodibenzodioxin. 19 .Q Now, to help you refresh your memory, would you turnvtd 'J _ `- / J ' r >' v IV ^ ,* S ' ,, -L * .y , r% r 1 ^ - 4 I -( 20 . the memo that you wrote on May 14, 19797 The one that you gave 21 . us yesterday afternoon about 1:30 i The last paragraph oh that 22 page and did hot you write at; that time and sigh at that time, 23 Mr. Park, "It was mentioned that the product (93% 2,4-dichloro- ,24: phenol) may contain mono, di, tri.and tetrachlorodibenzo dioxins PEN G A D C O - B A O N N . N .J . 0 7 0 0 ,FO M IL 24 B J L^ ff 15 1 2 .3 4 5 6 -.7 ' 8,, 9- In trace amounts"^ Did you write that* sir? J fr A Yes. \ ' > *, . " , *^ Q Now# ds,that refresh your recollection? The. fact that you did indeed discuss and. when you used the phrase mono, at that time, what did you mean by ..that, Mr* Park? A That would have meant the mono or mono would replace the letters^tetrain that subsequentword- 1 Q And you understand and when you, of course, .use words, t r' J . n /' i ' * , ' J - ,- V . : 1 , you don't use.words that'you don't understand the meaning of, 10 do you, sir?' Y o u .are an^educated .man and you know that you do 11 not use words that you don't know the meaning of. Don't you, .12 sir'? V .. ; |. ' '' ' 13 A In these minutes which express the conclusion of the. 14 committee- - 1 * t "4'1 *{ ' -V*j ' ^ / r.5 1 *; * 1 * t .r i l .A 15 Q : Would you answer that .question? '; /*.',V> .-\ -lt>\VV- w '' -' 1 .. 16 A I will sometimes use words, given to me by-toxicologists 17 which I do not fully understand the meaning. v - r ;V: : ^ ?*-Ei0 1 -V V - ' - /' ' - . " 18' Q I didn't ask you if you fully understood it. I asked 19 you if you know the meaning of monochlorodibenzo dioxin. "1 r" W * _- . ",, r 20 - .'''MR; MDSGRAVE:. .That wasn't you question, Mr....Carr. J 't*1 **- >', /,,"r * ' 21 You asked him1if he ever used Words tie didn't understand and he 22 answered your question. i:: '23 THE COURT: Overruled. . --! ' 24 Q (By Mr. Carr) Mr. Park, what do- you understand mono-* FO RM I L 24 B SAVONNE, N .J, 0 0 0 1 o 16 chlorodibenrodioxln to mean?*': O A*,i (By, the Witne-sjisr)'* Txo, &mjelainrzy-l-r^ibetaor wi3t. h~-mie,j ubnetcaCuGse.GIo.vdo am a lavyyer trying to speak ^in^chemistry terms Q Mr Park. you have said that fifty.times already. That does no-tcei.xefm,prt Tyou,,fr;:oum tu^soicng kcnxioawloeo.d.greivGt;haatccGod gi,,avyexi you and .you learned in the twenty years you worked at Monsanto* ' - -+'O. i.;;; ki. C'.vj cu.O'.:t k o l * LiycDO'J c.'U:ccfc'ty It. is.no .defense, Mr. Park /---'`a l-ti-* A I a m :.tryinganswer^you^now, .Hr,, Carr. _. 9 8 i .-.;r X :^,ro 10 r. c m ^ tic o o f tau rAscwl & 11 I .';o c M tn z o u :-* by *^ G 12 II -: ce tt^o o c -, cin^o M&. 13 -it, tto im c m lO be SB **? ?? o i c , ;.:ii ,.,0 1 14 i ,;MR.^MUSGRAVE: ,I_obiect,;Your Honor to counsel \ 15 saying it ,is^no-defense.,..This.gentleman, is jtrying to answer J4 P E N G A D '* C O ., 1,B A T O N N E ? S N .J .`~'.. 0 7 0 0 * f lF O R N I L 1 4 B 16 the questions.within his. knowledge^ and. Mr* Carr is badgering < i, 17 i> him andjbelittling him and it is totally improper here* The 18 i1 man is simply trying, to,,,answer the questions., _ . T, * y *-* * i V ' i - i / . - U . r i,v :;- v GG1 O 'O t O C >1, ;'. V I . ? . G j 19 i'i *' ....- .y^'.?-^s-MR*...CARRta,,Th.ev .m-v*a.nVtGi;s Xdtojzi&n"g.jth*ii-s-_t,bce'tsi't.Gnyo,tv to, answTe.rG O 2I0*> ,the.questions.dioitiO0j ?0Ui o l r 7 21 ;\ f MR^ MUSGRAVE:, ,I.object tofthat, Mr* Carr. 22 , , ; f fTjBS ;C0URT: .I amafraid, Mr. Carr, you are right. 23 Your objection ' s .overruled. ,,Now, ..please answer, responsively G 24 ^to the question,-Mr. (Park., , ocn'ti&ir-'.'V . :oi tri-GS n c ; :' < 17 A (By the Witness) 1 am trying to* X am Just explaining 1 I may make an error or two here* 2 THE COURT: Well, everyone is subject to errors, 3 Mr* Park. Just go ahead and answer the question as best you 4 can responsive directly to the question that is posed directly 5 to you, sir. 6 A (By the Witness) Okay. Recalling some instruction or 7 8 information that X have been given on this, 1 believe a dioxin consists of two chemical rings* They are six sided things that: 9 10 are joined together by some other atoms. And around the out 11 side of these two rings there can.be or X guess In a chloro12 dioxin there would be chemical atoms coming off* And as I 13 recall, the mono would mean one chlorine atom on the entire 14 ring* Deux or do or di would mean two chlorine atoms* The 15 tri would mean three chlorine atoms. The tetra would mean 16 four and so on* r 17 Q (By Mr* Carr). And you understood then at that meeting, 18 Indeed your recollection is now refreshed, that you did discuss *: _1 19 those various dioxins, didn't you, sir? 20 A I don't recall discussing all the various dioxins off 21 the top of my head, Mr. Carr* 22 Q Well, when you read this memo, did it refresh your 23 recollection that you discussed whether or not the 2 , 4 dichloro 24 phenol contained these things in trace amounts? * V ' ic-* ' 181 ,, f z 1 A We wouldhavediscussedthese four here, , ^ V - ** w * *<1* ^* V '.^ 4b , _ j ' * / tH *' 1, t. i. T ? ' ' * , 2 Q And my. queatlon that led up to this, on this board the ,3 JCLI s tends for mono You understand that, don't you, sir? j 4 You have seen^exhibits like this. v ^' t. f 5 ! ^6 .7 y y A^Yes^y y < * J/,.-/y f; '*v . v 51^* - -f \ ^ J * > 1 . ^ J ,1 / Q You have seen a number of things which break down V these various dioxins into theeight; sectors, haven1 1 you, ,8 sir, over these past twenty, years?y; y , ; ., \ 4 w>..r:.y.; . ' c. / ^ .-v... :; * ` y y v; , yy y y y 9 . y A- ,1 am sure I have, seen some; y '^ ;>'y *v ;' IP \ ,L* ^ ^ "-tj^ ^ ' v" . \ ^ "- . " ^ . Q And CLl stands,for mono then, doesn*t it, sir?:' 11 - 12 f * Ac--Yes;;t i'//" < i -- - 4'3 ` l l>^' , ^" ' Q And CL2 stands for di? 1 *>',r -1 ' v ' *.. y y ^ lW'*^* ** ^ 7> (_ By A I would;think^sdV v `^ \ '44; Q And (3 stands for tri? 4 v y 15 .. A j.;Y86#'h < \ 4 5i **, y ];y.-y . y v y y ^ y y y y y 7 yy^y-/;- 16 y Q And CL4 stands for tetra? " \ ;; ' . r.17 ' : 18 : - -'A !I'wduld,-.'thirik7;b.;'P'`4c.-ir% ` - -. ... ;?, < r* * ' i 'o* ( '' x vy ; y - ^ ^ ^ . . -; 7 w7 s y - ?' Q ^Wow, at that.meeting did you discuss as'near as you ! y y " r. - , y ^ i' y^rityy"y**yV-y- c- y s 'Y?m y.-i 19 can remember trie"various'"oxicities of these various dioxin ' ^ "r ,-i .,,r ' # "j* ' , - ^ /* t ` -T . ^ . 20 r y 1 > - l y con^onents? y v 1 i ^ y ^ rL ; ' _ j v . .j ;T'`//.''-*>* ^ ^ v;- u .^y ' * L y v ' . ''ir A 1 suspect that we did, but, I 'm sorry, I just cannot '`22 ' recall that discussion; *' v " ' /- ,y - ( . > y y > / - i:.yt\y\-'-^l- ,y -- v - ^ 23' Q Well, it would have been .important for you members of .'24 that committee to know at what, leveIs, your products contained PENGAO C O .. BAYO N N E,. N .J, i ^2 3` 4 5 6 ,t7 .8 9V 1\ 19 * i '^i' - - these various substances,that are toxic relatively so speaking, Isn't that correct, sir? ; ' . A Well not if they were not considered toxic. Q Well, you have to certainly consider them to know whether or hot they.are or are not toxic, don't you, sir? A I'm sorry. I misunderstood you. I thought, you said we considered their toxicity. . Q Yes> Toxicity can go all the way from very, little toxicity tovyery great toxicity like 2 ,3,7,8 , can'tit, sir? A .1 recall that 2,3,7,8 -- : Q My question is, sir, toxicity can go all .the way from 11 12 v very,little to a great deal so that the utmost caution should 13 be used at all times when you can possibly expose to 2 ,3,7,8 14 . TCDD."That is my question. 15 A Certainly toxicity -- are you speaking of dioxin? v . f, * :,r ,'r V 16 Q ;' Yes , I am. > ^ x fv3--`i ;,`v 7 *-.i; % *' .p 17 ' A It is my understanding that the toxicity of these rv ... \\ ^ / 18 various types <of -dioxin can vary-from extremely low to what - 19 is consideredjthe' most toxic.and that Is 2 ,3,7 ,8 ; PENGAD C O ,. BA YO N N E. N .J.' 07001 .20 - Q And it is important, that you in functioning on this 21 consnittee know, that your group as a whole know, first of all, 22 what dioxins.are i n >the product and, secondly, the various 23 '* toxicities of those dioxins. Isn't that important, sir? /* _ . ' 1-. .r,' * k * * h* 24 / A From my perspective, I would say that since exposure + * /' . ^rf' 2 0 1 - * - * . t .... ^ ? - v- ^ T y ,,` ` j` _ 1 to anyone or the environment will be /to the product as a ; . . ' ' , - '' ^ ^ .. ^ I / ' :v ///,._ ` /- --. whole including all its constituents the most critical thing 2l is the toxicity o the product including its constituents. , 3 1 Q Again, that is hot'responsive to my question . The 4 1" ^ . r *' t " , t, '11 , " - \ ^ - * r *' *- *" ~v ' ' ^_t 5 '/witness insists V*. .. V- // ^ 'J * -,/ "V *- 6' A '/.I.rra;-sorryyMr; Carr. v I am trying to be responsive. V. ' /' ^ ^ ^ \ ' ` - " *' / Q The witness insists on adding His view to ny question 7- ' ", O . V.; ' - ^ ' V - -/ : - "'V v , ,/ i rather than the answer that is:appropriate. V 7 - ; io ' ; . A Youdidn't let ma finish. ^ v : v i t *' \ r ^ * J `;- r , " Q Would you direct ;the^ witness to answer the question. U THE COURT;/ You are. so directed1, Mr. Park. Answer , V/2 v the question that was posed/to you*. 1 /- ' \ *i3. A - (By/the Witness) It Is hot1 important to know the , . 1 " "+ii 1u , , ^. at * jw , 14 ' presence of chemicals of such a low. toxicity that they have r r v//. i * r ^is ;; no bearing oh the.toxicity of the entire produc t; L. '* -v;-V ^ / 7 -V'-'-V J` -///_; 16 , - 17 / ' 18 ' / Q/ (By/Mr. Carr) .A n d i s that then true for tetrachloro- "` * f l" . " j,-. . je'" f,- >'iS-f A"`I 1- 'v -j 7 1 V " ' . dibenztin what.you cll/tr'ce!amounts? ' - '--'it ' r" v v' >> '' - - - .7;- ," A It could be, depending upon the produc t use. . , , ' ^ ""i'". ' ^ <'7'.r t *.j* '; ''CV`' t * 4 A t* ^ ' y b Vi '*% ta J -,rS I ; J ^ . r 19t - Q Well, assumetthat therel is exposure to your product. ; .20 - /Would you please assume that and, let's g e t that out of this ' >' O f">,Ti-.J *\T'\f-i1*rrr -j ^ ' '`* . ' - J L21 question, let's get that factor aside. Assume there is ?V L'. , -- : ; r-- / : 2.L2 ,- : expoBure. Give ho weight at all to the question or give very h ' ' y ^ 23V little weight to the question of exposure. Just assume that / PCfJGAO .C O . ' 24. - the mere act that it goes out vof th plant, goes intb; commerce 21 1i c o n s titu te s * e x p o s u r e .v. W ill-y o u assume th a tv p le a s e , s i r ? f 2L S i r , w i l l ypu~do th a t ? 1 - r -.t a 3 v 'i;ArcI w i l l >68siime i - t . v 1 ; v- 1 <:; . :.:; 4 . Q. And-put: exposure out, of-it, Now, is it important that v 5 you knowthese facts about the. levels oftetra,.for instance, 6n in your ,produc t? -- > ,, .-, 7. A If the-,.level^pf;;tetras-were -sufficiently:low, I don *t / 8j think- it ,would'be important r * 9 Q Well, it isiraportant that you5know what the .level is 1i0t' before you ?can even begin to determine whether or not'it is.; 11 sufficiently>low.. Isn't-;.that;correct, sir? c 12 A//I don't thinks that .would always be :the case. ; f 13 ' ? -THE;COURT :: I'm sorry. ,I .didn't hear-your answer. ;> 14 . A;, (By the Witness) ;I don' t ,think-;that would .always be 15 the case.: ?. y\:" [v-/- 16 .Q' XBy-`Wry Carr) :You^mean:to say you^don't need to know I n -- we don:Vt'tneed''to go ;through ithis ;halfva tank car;.of cyanide i i 18 again, do-we, Mr. Park?- You.mean to say^it is.not important-- , l t> \9< that you know at what., level 2%3,7,8 .TCDD is.in.your.product 20 when you;'are. func tioning on .thls .commit tee ?. ; * *i>--.. 21 A ;I:merely -responded that I,don't know that it is always 22 the case?that it must be known. 23 i > Q In what circumstance could you possibly.imagine.that 24 it would.not be'-important that you know how much of a toxic RENGAD; CO..r. BATON NE.k N.J, 22 substance like 2,3,7,8 is in your product when it is given that: i everybody is going, to be exposed to It? On what possible basic 2 could you say that it would not be important to know how such 3 of that poison is in your product? , 4 5 A If the^concentrations were so low it. could have no 6 toxicity In the product as a w h o l e ; ' Q You have to know the concentration to know that it is 7 8 . that low, don't you, Mr. Park? * A But if it is that low, you don't need to know it. 9 10 Q . You have to know it,.don't you, Mr. Park, before you 11 can decide whether or not it is so.low that It^won't hurt 12 'anybody? Don't you have to know the concentration, sir? I3k A Mr 8 Garr, I just said -- you asked my opinion. My 14 opinion was.you don't need to know if it is sufficiently low# 15 Q You are automatically saying that you do know that It 16 is sufficiently low. In order for you to make a judgment as 17 . to the toxicity of your chemical,'you have to know how much; : ' ' '; p 18 In theramount;oftoxic substarices in that chemical. Don't you, 19 sir? Whether it is one millionth, one billionth,,or one per 20 cent or 90 iperocent, -you got 5-to;know, of one trillionth, you ,,s 21 got to know the level that it exists in your product, don't . *^'Vi *; *i*\'*1 ^ * , fs\J rv\- 'Yf-1V7?v; 22 you, sir? ^. L ' 23 MR1. MDSGRAVE: to. Carr, are you ^talking about Mr. 24 Park having to know or Monsanto -- v - '* ; \ J-'v Y'Y * - ; - 23 - / ; MR. CARR: I am talking about this committee when 1 it makes its determination as to whether or not to notify the 2 EPA 3 MR. MUSGRAVE: That may be the problem that Mr. Park 4 is having, that he thinks you are talking about him, sir, as 5. 6 a lawyer as opposed to the toxicologist or a doctor. A (By the Witness) 1 think another reason, another 7 '8 basis on which one might not need to know that is when the ? given product itself is toxic. 10 MR. CARR: Your Honor, would you direct the witness 11 A (By th Witness) I 'm -- 12 THE COURT: T don't believe that was responsive. I 13 am directing you to answer th question as posed to you. 14 A (By the Witness) 1 did answer. I will answer again. 15 I don't feel that it is an absolute necessity that that be 16 known and I.was explaining why. 17 Q (By Mr. Carr) Mr. Park, a toxic substance that is 18 toxic by Itself has its toxicity added to it when it has eon* 19 taminates that are more toxic than it. Isn't that correct, 20 sir? ' t t 1^ t 3t, ` ^ i* . 4 i T ,, , 21 A 1 don't know what the.chemical reaction would be, Mr. -- *';,* ; * v.v * // y 22 Carr. 'J / * r'- ' 23 Q Oh, .can't you add? /if a substance is toxic by itself 1 r^ ^# L' 24 and if you put a toxic substance in it that is more toxic than 24 1 that, hundreds of thousands of times more toxic than that, ` 2 doesn't that add to the toxicity of your product? 3 A Now, you are asking me a hypothetical question. 4 Q I am asking you that you said it is not important to 5 know it when the substance itself is toxic. You gave that as 6 an example where you don't heed to know the level of the toxic 7 ,substances that contaminate your product and 1 am suggesting 8 to you that example is no good. It won't wash. Isn't that 9 correct, Mr. Park? 10 A No. 11 Q All-right. Then let's go. a step at a time* Doesn't 12 adding poison, a greater, a more intense, hundreds of thousands 13 of times more intense poison to a poison add to the toxicity 14 of that poison to which it is added? , 15 A If it is added in a sufficient amount. 16 Q And you have to know that amount, sir, to make that 17- determination, whether or not it is sufficient, don't you, eiri 18 A You don't if the product to which it is added is alreac 19 considered to be so toxic or caustic or;whatever that it is 20 *handledin a very, very careful manner. 21 Q Well now you are talking about exposure again, aren't 22 you? I, gaye you the predicate,: Mr. Park, that you got to assun 23 that everybody is exposed, to it. It is going to be out in the 24 public and people are going to be exposed to it. Don't give me '- t 25 ,*> this business about handling. 1 MR. MUSGRAVE: Object: to that. Your Honor. He talkec 2 about an assumption about six questions ago. 3 THE COURT: Overruled. X think it went to the line 4 of questioning as an assumption* 5 .MR. MUSGRAVE: Well, how is the witness supposed to 6 read his mind, Your Honor? 1 THE COURT: X don't think it took mind reading. X 8 think it was perfectly clear in the context of the assumption - 9 10 as given to this witness; and the subsequent line of questions ir and we are still on the same line of questions. Overruled. Q (By Mr. Carr) Would you answer that question, Mr. 12 13^ Park? . 14 A (By the Witness) Would you repeat the question? 15 Q: No, X won't repeat the question, Mr. Park. 16 A Okay. Then I guess X have to say X don't know. 17 Q And have you always exercised -- has this committee 18 always exercised its function without knowing the level of 19 additional toxic substances that are being added to your pro 20 duct? So far as you know and you last exercised your function 21 as far as X;know1on January^25,!1985. 22 A It Is unusual in a,,way to.be considering the ingredient of the product. : Q Your H o n o r t h e witnessis not answering my question. 26 A I am trying to answer the question Your Honor. Would 1 you allow me to finish please Mr. Carr? 2 Q No 1 won't. I would like for this case to be finishec 3 someday and it won't If you decide that.you want to answer the 4 questions that you want to answer and don't answer the ques 5 tions that I want to ask you. It will never end. 6 A X am answering just exactly what you asked me Mr. 7 Carr. 8 MR. MUSGRAVE: Just a minute. X object to counsel 9 10 not permitting the witness to answer the question with what 11 he believes is the appropriate explanation to the question as 12 phrased. 13 THE COURT: Overruled. I don't think it was respon 14 sive. IS MR. MUSGRAVE: 1 think he is entitled to do that. 16 THE COURT: Not if the answer is not responsive and 17 in my determination it was not responsive to the question. 18 Objection is overruled. Mr. Park will you please answer the i 19 question'as posed.* .* r 20 A (By the Witness) ..Most of our 8E considerations deal 21 with new health effects resulting from toxicity studies as to 22 whether is this.new information. . If it is is the information r` ' ' 1* 23 sufficiently significant that it could represent a substantial 24 risk of injury to health and the environment. Only a very few 27 have dealt with Ingredients of chemicals. So I wanted to 1 explain why 1 would answer that it is unusual to consider 2 ingredients* 3 Q (By Mr* Carr) Mr. Park, I didn't ask you for an 4 explanation* 5 6 A Okay* It is unusual to consider ingredients in the product* 7 Q That isn't responsive to my question* My question is, 8 does your committee function this way that you pay no attention 9 to the concentration of these toxic substances that may go 10 into your chemical when you determine whether or not you should 11 notify the EPA? 12 A Mo* That is incorrect. When it is appropriate, we 13 would consider that* 14 Q When is it appropriate, sir7 15 A Whenever the toxicologists feel it is appropriate. 16 Q And did he feel it was appropriate in 19797 17 MR* MUSGRAVE: With regard to what, Mr* Carr7 That 18 19 is vague and indefinite. - 20 Q (By Mr. Carr) Whatever he is talking about. X am - -, ' i r J 21 going with the witness-now. .Whatever he is talking about. If 22 he is vague, then I am vague. Did you consider the level of 23 the toxic substances that was in 2,4 dichlorophenol when you 24 decided in June of 1979 not to notify the EPA? 28 1 A (By the Witness) It Isn't clear -- it isn't really 2 clear the specifics of what was considered in the minutes of 3 the meeting* The toxicity of the whole product I think was 4 considered. I see that a reference was made to the long 5 experience in.manufacturing and use of the product with no 6 known adverse effects* 7 Q Bo you also see the paragraph where you considered 8 the possible level of dioxin in the product, Mr. Park? 9 A Yes* 10 Q Mr* Park, you did consider the level of concentration 11 of dioxin in the product, didn't you, sir? 12 A Considered the' presence in the product. 13 Q And you considered the levels also, did you not, sir? 14 A I would say so, yes* 15 Q And, Mr. Park, as a matter of fact you knew at the 16 time you had this meeting that your product, 2,4 dlchlorophenol 17 contained dioxins at the level of 5 parts .per million* Didn't ^ ^ *p 18 you, sir? , 1 19 A I would have to refresh myself. Is that in the notes 20 here somewhere? 21 Q Do you remember that it had 5 parts per million? 22 A Not off the top of my head, Mr* Carr. 23 Q Now, let me hand you your notes then. Would you mark 24 this exhibit, please? 29 1 (Plaintiff*s Exhibit No. 1292 2 was marked for identification.) 3 Q Handing you now what has been marked Plaintiff*s 4 Exhibit 1292 which is your memo of May 14, 1979* but this time 5 it was delivered to us yesterday afternoon and it has your 6 notes attached to it. Look at your notes, please. I will off 7 that exhibit into evidence if it please the Court* You recog* 8 nize the attachment as your notes, don't you, sir? 9 A Give me just a moment here. 10 Q Do you recognize the attachment as your notes, sir, 11 because it was represented to us that it was your notes? 12 A May I ask you a question first? 13 Q No. You will answer that question, please, Mr. Park. 14 Are those your notes? 15 A I can hear you, Mr. Carr. 16 Q Well, I 'm sorry, Mr. Park., * -* * "* ( 17 A Right. I would say these are my notes. 18 MR. CARR: Offer that exhibit into evidence if it 19 please the Court'. 20 MR. MUSGRAVE: Same objection as previously. It 21 deals with chlorophenol, with 2,4 dichlorophenol 22 THE COURT: Okay. Your objection is noted. 23 MR. MUSGRAVE: And the other objections that have 24 been -- 30 1 THE COURT: 1*111 sorry. I didn't hear you. MR. MUSGRAVE: And the other objections that have 2 been made to these documents previously. 3 THE COURT: Fine. It is admitted over objection. 4 Q (By Mr. Carr) Do you have in your handwritten notes, 5 Mr. Park, the statement that prior to process change this 6 product contained up to 5 parts per million of dioxin? The 7 first page of your notes. Bottom of the page of the document 8 that has been numbered by Monsanto as C03522. 9 A (By the Witness) Okay. X do see this, Mr. Carr. 10 Q And that Is your handwritten note, isn't it, sir, that 11 12' this product contains $ parts per million of dioxin on the 13 one to the four trichloro? 14 MR. MUSGRAVE: Well, I object to that, Your Honor. 15 'MR. CARR: Does It say that -- 16 MR. MUSGRAVE: Why don't you read what it says, Mr. 17 Carr?. ' < ' . T~ * f ` , . 18 Q (By Mr. Carr) Does it say it contains up to 5 parts 19 per million dioxin? .* / / 20 A (By the Witness) What it says here -- 21 THE *COURT: I don 't have a copy of the note here. 22 MR. CARR: I only have two, Your Honor. 23 THE COURT: If you bring it up then 1 could rule on 24 the objection because 1 don't have a copy of the exhibit* ' ' ' 3 1 ;; ; ^ / 1 Objection is overruled. Thank you. A (By the Witness) The'statement says, "Prior to this - 3 ``time " .\ ^ ` '- 4 Q .(By:Mr*-Carr) My.question is, does it say that, Mr* '5 r Park? - /-- ` ~\r ' 'v -6 ' A No, it does not; Mr, Carr Q What does it say then, Mr* Park? .a" A l t says, "Prior to this time product contained up to : 9 1-4 per cent trichloro, SFPMdioxin." i 1_ 1 * 10 Q What does 5PPM dioxin mean, Mr* Park? ii . A It means that the product contained amounts up to or r-- 12 13 less than 5PPM dioxin* Q What does 5PPM dioxin mean, Mr* Park? 14 A 5 parts, per million of, I guess, of the total dioxin 15 'spectrum*.;1;" * OIx*. .1 <* i6 ^; Q Nowj '-MTi Park,, you let this product go out and you did BAYONNE.- N.j . 07 002 3OKo'_1 17 not notify the EPA, did you,-tsir,^that It contained 5 parts , ; * *- y\ 'j ' / - .V- ,J' ' "`l ^ u -^ : -i. '<? ^ ;A '1*, <1 . i; .. 18 per million of dioxin?.!: V- ^-"V . r Z" 1e * . * 19 MR. MUSGRAVEs Objecti: Your Honor* That is a mis- o'. _ :o ZLI 20 characterization of the prior testimony; No testimony that <. L j. f t < 1 ' : 21 ; .this product contained i5PPM of 'dioxins. 22 THE;COURT: .^Overruled* ; " ^ jri ' 23 ' A (By the Witness).- You are going beyond my knowledge. ,--'1 '2 4 ' am familiar -- you.are going beyond.the 8E thing here. The 1 * ' "\* '* ^A ..... < L J 1 ' , v - '' - * J * " ** ,,1 .L <'* 1' 32 1 conclusion of the group that considered -- 2 Q (By Mr. Carr) Mr. Park, ray question is your product 3 that is not what you made, but Monsanto shipped out product 4 in commerce that contained up to 5 parts per million of dioxin 5 and you did not notify the.EPA of that fact. Isn't that 6 correct, Mr. Park? 7' A The BE deliberation does not consider -- 8 Q Your Honor, would you direct the witness to answer 9 that question? 10 THE COURT: Mr. Park, you have to answer the question 11 as posed to you. Answer the question. 12 A (By the Witness) We did not notify the EPA about the 13 dioxin content at this time. 14 Q (By Mr. Carr) Mr. Park,, have you ever notified the 15 EPA of the dioxin content? 16 A I don't know. *: 17 Q Thenwhy did you add "at this" time" because if you ever 18 notified them I haven't seen:the document and your company is 19 under orders to produce all those documents tome, Now, Mr. " ? `j, i". ;t'-\i' 20 , Park, if they had been notified you were serving on the 21 committee that had the responsibility of making the determina-1 . * `* \-V U' ''` 7* ' * J t ' ` * ' ir 1 . ... 22 tion to notify them. Isn't that correct, sir? 23 A That is correct. 24 Q And you have no knowledge that the EPA has ever been 33 1 notified*. Isn't that correct, sir? 2 A I would have knowledge of 8E notifications 3 Q And ,that is what I am talking, about* A Our company has personnel that have a great deal of 4 5 contact with EPA. , v -, " 4 < \ 'i "1 h^ , 6 Q The question is, do you have any knowledge, Mr. Park, 7 that the.EPAwas 'ever, notified of the 5 parts per million, 1 l' V> - . r . t r Jr 1 v' 1 1, " 8 up to 5 parts per million contamination the 2,4 dichlorophenol * --- ?: - 9 had? - 1 i 10 A I can't recall, off the top of my head. 11 Q Mr* Park, do you consider that 5 parts per million of 12 dioxins is a trace amount? 13 A I think so. 14 Q And, therefore, your judgment trace amounts need not 15 be reported to the EPA* Is that correct, sir? 16 A When they.do not represent a substantial risk of injury 17 Q Would you answer that question, please, sir? 18 A That Is correct. 19 Q And does the rest of your cosanittee so far as you know 20 share this view? 21 A The committee varies from meeting to meeting, but those 22 present at this meeting did share that view* 23 Q Well, at any of the meetings that have been had talking 24 about 2,4 dichlorophenol or Santophen or orthochlorophenol crud 34 1 or parachlorophenol, did any commietea at anytime that you 2 served on it ever determine that the EPA should be notified 3 when the product contains in many instances over 5 parts per 4 million? Were they ever notified, sir? 5 MR* MUSGRAVE: What product are you talking about, 6 Mr, Carr? 7 ' MR. CARR: 1 enumerated those, counsel. 8 MR, MUSGRAVE: Not in that question you didn't. 9 THE COURT: X believe ha did. Overruled, 10 A (By the Witness) We have notified the EPA in two 11 instances, but they did not relate to product ingredients. 12 They related to health effects determined in toxicity studies. 13 Q (By Mr. Carr) My question is, did you ever notify 14 -- did the committee on which you served ever notify the EPA 15 that these products, parachlorophenol, 2,4 dichlorophenol, 16 orthochlorophenol, Santophen, contained levels of dioxin up 17 to 5 parts per million? 18 MR. MUSGRAVE: Object to that. There is no evidence 19 to that effect, Your Honor, 20 THE COURT: Overruled. 21 A (By the Witness) I do not recall. I would have to 22 review the minutes of those meetings, 23 Q (By Mr. Carr) Mr. Park, were you not contacted, there 24 has been a lot of motions for discovery been going on for these 35 last three months and we Jiave been' getting documents in dribbles day after day. Now, have you not been a part of , j,. , * '*' kt ' t t < ^ 1. * ( L ^ searching for documents that would be responsive to my request * , 1 i for production in this area?, f S , A No,, I haven*t. >; i , r r H " " ' ,Q Har'vte\ yTvou/ nHot erxam*-ined yourLfi,l`es for such documents? , .**'i. i |,!r / - - r;'< i'<- ; ; -Sir? r v -1* vrv'.'s/;V-,,-- i ' v ' v , A These last few months? vJ r ;v vv o ; - ./ * ~ Q 'Y e s O ' ; ; : -V A NoV;v:T^-f;- L: MR. CARR: Your;Honory may we approach the bench? THE COURT,: \ Yes, you may. ; Q (By Mr. Carr) Have your files been examined by any body? / . .l MR. MUSGRAVEr Right question,^Mr. Carr. A (By the Withese) I am not sure. MR. CARR: May we approach the bench, Your Honor? , THE COURT: Yesf,you may. ' > '' ` ' (The following proceedings were --, : - had at the bench outside the " *' r L . , r '' MR. CARR: fk , . . hearing1of the jury.) , L, 4 1 would like to have an in-camera examina tion-of this^man relative to his files and the contents and rwhat discovery has taken place. 5> * / /, 36 - '' 1 THE COURT: I am not quite sure what you mean. Do 2 you mean to bring, him back or h i s ;files back or both?. ' 3 MR. CARR: 1 would like to esamine him about hie files and what has been discovered from his files* what was 4/ 5 gone through in'his files1* who did it and when they did it to 6 determine whether or not discovery of his files have been .7 complete before\I .continue on with the cross-examination of 8 him, 1 would'think it w p u l d b e m o r e appropriate that it be. V'.v* ,,,,is' 9. done outside the presence-of the 'Jury. . O ` il , THE COURT: : What?is^your position? ' . V>I u\\ * ' MR. MUSGRAVE: My- position is that as. directed by 12,: the Court'-r this would be something for Mr.. Nassif. Mr. Carr .13 is moving for. an in-camera examination of Mr. Park to determine 14 whether his files have been reviewed in connection with deter 15 mining if everything has been producd out of his files end 16- believe you have been through his files yourself. : 17 'MR# NASSIF: I have. They were pulled, 18. MR. CARR:; Your Honor* I have never gotten an 19 affidavit of 'compliance from Mr. Heirieman. He has been under 20 a court order to give it and T have never got such an affidavit 21.. , 22 ' 23 Honor. 24 MR. NASSIF: You want'me to .respond to that* Your vJ ' ' v. THE COURT: If you want; MR. CARR: I want your reprsentation that we have- . BAYONNE . N, J . r OYOOZ F ORM IL I A B i 37 .1 all the possible files that could r elate to TSCA notification 2 MR NASSIF; Yes.' 'V /;; / * - 3 . MR; CARR: Then I won11 need anything further 4 THE COURT:. Okay. 5 '(The following.proceedings were 6 had in,`the presence and hearing :? of^the/Jury.) /. J, , . ** {*-. j ^ * "* * * ' / * , y . t - . L ,l> v ?r- ^ T \ `` 8 Q (ByMr.Carr); Now Mr. Park, one of your attorneys 9 . has represented ;to u s ;that he hasgone through your'files and i ,-j. t ';ri' } . JO. given us'everything, that would relate to this subject. Now, ; 11 have we got eyerytHing; then: to your knowledge, sir? 12 A (By the Witness) 1 don't know from iny personal,know* 13 ledge,, sir. 1 14 Q Well, would you accept your attorney's representation? 15 _ A .Yes;';, ;; - 0 ;; -; ; * 16 Q Did you go through, arid'pull out. these notes yourself ? 17 Your handwritten notes. Did you furnish those to Mr. Nassif 18 and Mr. Musgrave, Mr. Heineman, Mr. Cornfeld, Mr. Tice and 1? Mr. Ryder?. The handwritten notes. 20 ^ A Yes, I understand. 1 am trying to think back here; -21 , I t h i n k l .furnished the files to them. 22' Q Did you go back after you furnished the files and go 23 through your notes and, pull out these handwritten notes that 24' we got yesterday? - FORM LL724B 38 1 A X don't recall*doing that, , ...... * 2 Q Mr,. Park, then if what your attorney said -- 3 THE COURT.: Gentlemen, could you approach the bench 4 for a minuteplease? ... 5 .... .. ^ (The following proceedings were 6 . , r , had at the bench .outside the 7 hearing of the-jury,) 7 8 THE COURT: If I remember correctly, either you or 9 Massif told, me when these were submitted that he pulled those - ' 1* - . r j- 10 out of his. file in preparation for his testimony today and ;y 11 furnished.them, 12 MR. MUSGRAVE: Let's ask Joe. 13 THE.COURT: Yeah. . As I, said, I don't remember. I 14 have been allowing both of you. to participate in those motions, 15 X don't remember who said what. 16 MR, MUSGRAVE: X haven't participated in the discover ;^ 17 motions. 18 THE COURT:. Right, - If I remember correctly,,you - 19 told me when, those notes were given to me for in-camera inspec 20 tion that he pulled them out of his file and gave them to you 21 in preparation-for his testimony, 22 MR. NASSIF: That's right, Your Honor, -I will tell 23 you he gave them to me. Did I give them to you yesterday? . ! 24 gave them to you the same day I got them from him. 39 1 THE COURT: You gave me two sets of notes* 2 NR. CARR: What good is it? , MR. MASSIF: He handed me a file. I went through a 3 1. ' r f file. .1 pulled the stuff out. I showed him I was taking them 4 out of his file. He was right there. 5 6 THE COURT: In answer to your question, you gave me 7 two sets of notes and I don't remember which ones. 8 MR. NASSIF: They were in the ones that you just 9 ruled on yesterday. 10 THE COURT: You gave them to me yesterday morning 11 and 1 don't remember. 12 MR. NASSIF: Yes. I got them at the same time. He 13 told me -- I said open it up. I went through it with him. 14 MR. CARR: Then all you have done is go through the 15 files that he has given you. 16 MR. NASSIF: No. I had his secretary pull the files* 17 He was in Arizona. When he was in Arizona I had his 8E files 18 pulled and we gave him copies and we produced them to the Judge 19 in-camera about a week ago. 20 THE COURT: Something like that. 21 MR. NASSIF: Okay. Then when he came back I was 22 given the Impression, I was given the understanding from his 23 secretary in his absence that we had his files. When he came 24 back, I said, I raised the issue I told you about the other day 40 X said, "We don't have handwritten notes of your 8E meetings. 1 Did you keep those?" And he said, "Yes. They are in another 2 file." He brought that file in with him and that is why 1 3 produced them yesterday. X had reviewed previously what were 4 5 supposed to be all of his 8E files. F> MR. CARR: All X have got if X remember are these 6 notes. 7 8 THE COURT: There were two sets of notes. 9 MR. NAsSXF: There are four sets. The first note 10 that you got was a handwritten note, but not on an 8E meeting* 11 It was a handwritten note following the Sturgeon spill of that 12 February 9, 1979. Remember? That was the first one, Rex. 13 And then X gave to you yesterday, I think it was yesterday 14 morning, four sets of the minutes with four sets of the notes 15 attached. 16 THE COURT: Now, wasn't there a submission of notes \ / 17 before that, too? 18 MR. NASSIF: They weren't notes of Phocion Park, 19 except for that one handwritten note which was not an 8E note. 20 THE COURT: Well, perhaps it was these other notes. 21 MR. NASSIF: Yes. I gave Jerry one handwritten note 22 of Mr. Park that related to the tetrathal meeting that we 23 didn't ask for a ruling. So, Rex, you have his minutes from 24 the five meetings on dioxin and all his handwritten notes to 41 ] the extent that there are any handwritten notes and 1 certify 2 that I did myself personally in his presence. 3 MR, CARR: I will accept that. The man's memory 4 isn't that good. , ' / 5 THE COURT:- Okay. Fine. 61 (The following proceedings were 7 . had in the hearing and presence 8 of the jury.) 9 Q (By Mr. Carr) Mr. Park, I take it then that if it is 10 not in your files it doesn't exist. 11 A (By the Witness) X don't understand the context of 12 your question. 13 Q Notification or memos relating that you are notifying 14 the EPA about the presence of dioxin in Monsanto products. 15 If they are not in your file, they do not exist. Is that 16 correct? 17 A If it was pursuant to an 8E meeting, it would be in my 18 files. 19 Q And is the answer to my question that they don't exist 20 then? 21 A What does not exist? 22 Q Notification of the EPA under Section 8E that toxic 23 substances such as dioxin were present in your chlorinated 24 phenols. ; L . ( ,< -, ,42... ^ * ' J L * s J ; , 1 MR* MUSGRAVE : You sa toxic substancs such as 2'' dioxin, are you talking about dioxins or are you talking about 3 everything? /Have they ever notified EPA under 8E if there la s . 4 . some problem with some chemical? -Because that is what your r . ^i-" .* \! (/ \ .fi 1. j;' 5 questionencompasseSj/Mr.Carr. 6 , M R C A R R : Could you answer that question, please, i'l' >'V' ,,s-s ;r:V-. :r.\ .y. --- v/v ' , 7 sir? 8 - .MR.V MUSGRAVEWell,/I;object to the question as 9 being overly.broad and including chemicals that have nothing, 10 to do with this lawsuit* v. M MR*;CARR: Imprecisely said chlorinated phenols. 12 MR. 'MUSGRAVE: You did not, Mr. Carr. 13 THE COURT:- Overruled. . 14 A (By the Witness). My files on,the, what is it, the 15 four meetings I guess concerning chlorinated phenols would 16 contain any record of notification to the EPA with respect to "c 1 1 . - 17 the 8E meeting and, therefore, with respect to the 8E meeting BAYONNE. N. J. . 0 7 0 0 18 ' there;would be nothing that;existed outside of those files. : 19 Q (By MUr. Carr)4 Anrd if it ,,i^s not there, then it does 20 not exist. Isn*t that correct, Mr.1 Park? -. 21 ' A .1 can*t say that it doesn*t exist,.Mr. Carr. 22 Q i thought you Just got through saying in.other lan 23 guage, but I wanted it a little more precise that if it is not 24 in those files, that .lt would be in those files and not outside \ .. " ; v ` v / / 4 3 . - . ' .' 1 \2 , 3, J' 5 6 7 8,' 9 ** % those files. * ( 4m ' - -i , T f # ,* A Any record of EPA contact pursuant to the 8E meeting would be in my,files. , Q And if they are not in those files, then they do not exist/ Ian-1-that correct?' - ('*/ -- .,**.'. i ?-^;:, i,1! m s .. r-* o , A 1 I can't say that. ,1 can say to the best of ray, know- }K \Ka'p** m - * f ^ ;r* < > ^ \i ledge that:no EPA .contact, was;-made Q Do you understand the contradiction between the two * .->-> t i'-?M (V ' * .i i } :T V V ' f' - - ' ' " *. things that'you have just .said, Mr., Park? 10 A Would you, explain that? 11 Q Do you realize.that you are 'saying two contrary, con 12 tradictory things? 13 A I don't believe I am, Mir. Carr. You asked me if some 14 thing exists./ ^ ~ . 15 Q Is it true that if there were any notification to. the 16 EPA of an 8E. finding that there was dioxin in your chlorinated BAYONNE, N.J. 0 7 0 0 * 17 .phenols, is it true that a copy or: a record of such notifica 18 tion would be in your files? ^ . 19 A It certainly should be. 20 Q Shouldbe. Where else would they be? 21 A 1 Itshould be irimy files. * < 22 - Q And if they are, not in your files, then ,is it true . 23. that so far as you know they do not exist? 24 A A record of notification to the EPA pursuant to 8E? 44 1 Q That is correct, 2 A Then to the best of my knowledge, it would not exist, 3 Q All right, Mr, Park, then the EPA has never been 4 notified to the best of your knowledge of the fact that dioxin 5 is in your product of chlorinated'phenols. Is that correct, 6 sir? * -j 7 A I cannot go that far; 8 Q Sir? 9 A I,saidno.\ I cannot answer affirmatively to that 10 question because you did not limit it to SE, 11 Q Under 8E. 12 A Under 8E, the answer would be yes, 13 Q Now, Mr, Park, you have suggested that perhaps one 14 reason for not notifying the EPA was because of the fact that 15 you believe the product when It is put to use, there wouldn't 16 be any exposure. Is that correct, sir? 17 MR. MUSGRAVE: Your Honor, we have been down this 18 repeatedly. I object to the repetitive nature of the cross- 19 examination of this witness about this topic. You know, we 20 have now been on it for probably the better part of three 21 quarters of the day and it is the same questions phrased in 22 different fashions. It is just all repeat testimony. Object 23 to it. 24 THE COURT: Objection is overruled. 1 45 1 A (By the Witness) What Is considered important at any 2 8E meeting is whether there is evidence of a substantial risk 3 of injury to the health or environment 4 MR. CARR: Your Honor, would you direct the witness 5 to answer my question? 6 THE COURT: Mr* Park,- that is not responsive. Pleas^ \' 7 answer/ the question that has been posed to you. 8 A (By the Witness) '1 am trying to see if I remember 9 correctly, Mr Carr. Your question was, did we consider the 10 toxicity of the ingredients? "* 11 Q (By Mr. Carr) Your Honor -- Agnes, could you read the 12 question to him one time? 13 (Question read.) 14 A That could be considered, yes* 15 Q Now, you do agree that -- 1 want you to assume, if 16 you would, that there has been testimony that dioxins can cause 17 serious health effects upon human beings, cancer and the long 18 list of things that we have read to you before. You do agree 19 that those are serious health effects, don'tjou, sir? I in 20 fact it is true. 21 A X don't understand the medical terms there, Mr. Carr. 22 Q You don't understand the word "liver damage"? 23 A I do understand that. 24 Q Is that a serious health effect? 46 A 2 would consider it a serious health effect. 1 Q Do you understand what porphyria is? 2 A I'm sorry. I don't. 3 Q Do you know whether it is or is not a serious health 4 effect? 5 6 A No, I don't. Q Do you know what'"cardio-vascular disorders" means? 7 8 A I think I do, yes. 9 Q Is that a serious health effect? 10 A Yes, sir. 11 Q Do you know what cancer means? 12 A Yes, X do. 13 Q Is that a serious health effect? 14 A Yes, it is. 15 Q Do you know what polyneuropathy means? 16 A I am not sure. 17 Q You are not sure and you have been sitting on this 18 committee and you have been discussing what dioxin does to 19 people and considering the health effects of dioxin and you 20 don't know what neuropathy means. You know what poly means. 21 A Yes, sir. 22 Q And you know what neuro means, don't you, Mr. Park? 23 A It would relate to the nerves. 24 Q That's right, Mr. Park. And you know what pathy means. 47 It means disease* You know that, too don't you, sir? Patho 1 2 logical, P-A-T-H, disease. So, polyneuropathy means many nerve diseases, doesn't it, sir? Now, is that a serious health 3 4 effect? 5 A That would be a serious health effect* 6 Q Then you also understand that if dioxin can cause 7 serioui.s'health" effes*ctsv*th'ait-you may not consider exposure. 8 You know that, too, don't you, sir? " 9 ! J * <2* * \ iPr- . r" A I d o n t k n o w that X.do* ; 10 Q I hand you now what has been marked Plaintiff's : ` ; :iV y;iij ' / " 11 Exhibit, I'm sorry, Monsanto's Exhibit 881 and ask you, do you 12 recognize that? And ask leave to pass copies to the jury* 13 THE COURT: Any objection? 14 MR. MUSGRAVE: The same objection I made previously 15 about cross-examining this man with regard to the law. The 16 law is the province of the Court and also object to the rele 17 vancy of the application of this law to the entire issue, 18 Your Honor* 19 THE COURT: Objection is overruled on both points* 20 Those being the only objections,, you may pass them to the jury.* 21 A (By the Witness) This appears to be an excerpt from 22 a -- 23 Q (By Mr. Carr) I haven't asked you a question. 24 A I'm sorry. I thought you did. 48 Q X will give the entire exhibit, Monsanto Exhibit 881 1 You may read it, if you like. Do you recognize that as part 2 of the EPA comment published in the Federal Register on March 3 16, 1978, that is to be used in conjunction with the Act 4 itself Do you not, sir? 5 A Yes 6 Q And the column that we have in front of us is what 7 8 constitutes substantial risks* You recognize that, don't you, sir? You see it headed that way, sir? You see what consti 9 10 tutes substantial risks? ' 11 A Yes When you said -- = . 12 Q You see that, sir? 13 A 1 see that, but that is not part of the statute Nor 14 is it a regulation. IS Q Mr. Park, did I say that it was part of the statute? 16 I said it is the comment, it is the interpretation of the EPA 17 that was published in the Federal Register that goes with the 18 Act and that you use in determining what you do under the Act. 19 Isn't that correct, sir? 20 A That's right, although our primary reference is to the 21 Act itself. 22 Q X understand that Do you understand what X said is 23 to take away from that? Isn't this something that you probably 24 had a part to preparing part of making up Monsanto Exhibit 881 49 that you understand goes along with the Act; that you are 1 obligated to use that in making determinations under that 2 Toxic Substances Control Act. You know that, don't you, 3 Mr. Park? 4 A Obviously, I do, Mr. Carr. But X am drawing a dis 5 tinction though. It does not go along with the Act. We make , 6 use of it. 7 8 Q I understand that, Mr. Park. It is what you are 9 supposed to do. You are supposed to make use of it in order 10 to interpret the law in order to help you decide what you 11 should or should not notify the SPA about. Isn't that correct, 12 sir? ;; ` 13 A We do make use of it. It is, as you know, it is not 14 a regulation. It is not enforceable. 15 Q Your Honor, would you direct the witness to answer 16 that question? 17 THE COURT: Answer the question, Mr. Park. 18 A (By the Witness) Yes. We make such use of it as Is 19 deemed appropriate. 20 Q (By Mr. Carr) Could you answer my question, please, 21 Mr. Park? 22 A 1 thought I just did. 23 THE COURT: Overruled. I don't think so. Answer the 24 question, Mr. Park. 50 A (By the Witness) We do make use of it* 1 Q (By Hr. Carr) Yes, but you said -- you added something 2 What you deem appropriate* I don't accept that, Mr. Park* 3 Would you read the question back to him that 1 asked him? 4 MR. MUSGRAVE: Well, I object to counsel's not 5 6 accepting it, Your Honor. It is a properly legitimate answer. THE COURT: Well, no, It is not in view of the 7 8 question that was asked. Your objection is overruled. Please 9 read the question back once. 10 (Question read.) 11 A (By the Witness) If you'are compelling me to say 12 either this has. the same weight' as the statute or not, I have 13 to say It does not. 14 Q (By Mr. Carr) Mr. Park, will you listen to that 15 question again? 16 A Yes, sir* 17 Q Do you understand that I asked you whether or not it 18 had the same weight as the statute? What do you believe that 19 I asked you? 20 A I would be glad to explain what I -- 21 Q Mr* Park, I want you tp answer that question. Then 22 if you want to make an explanation, you can explain all day 23 long once you answer the question. I am not barring you from 24 making explanation. You can give any explanation you want, but 51 1 first answer the question. 2 A Thank you, Mr. Carr. Yes, we do make use of this in 3 interpreting the statute. Now, let me explain. When this 4 interpretive statement by the EPA was adopted, the EPA recog 5 nized that the statute itself was brief and the EPA inten 6 tionally adopted what they called an interpretive statement, 7 if you will, a policy and not a rule ormgulation because the 8 EPA went a little bit beyond what they felt the statute would 9 require andthey did not want to go through hearings on this l '1 j' v r* ,* : -r *^ 3^ 10 question, ,did. hot want to go through a possible challenge of 11 EPA exceeding itsTauthority.^ So, this interpretive statement 12 or statement of policy or whatever does not have the force of 13 law. It is an aid which we use, but many companies have taken 14 issue with different parts of it. There Is a portion here, 15 for example that deals with.what is called bio-accumulation 16 in fish. This is in the environment when a substance might 17 tend to accumulate in different organisms. The formula used 18 by the EPA it was felt was Incorrect. They may have subse 19 quently changed that. 1 am not sure, but a number of people 20 commented to'EPA that this swas in error .and that people did 21 not intend to follow it. 1 just point out that this policy 22 statement does not have the force and effect of the statute 23 which Is the primary thing with which we are concerned. 24 THE COURT: Mr. Carr, is this a good point for a 52 short break? I 2 MR. CARR: I would like to ask one question. This does contain the statement, does It not, sir, "The human health 3 effects listed in sub-part A below, for example, are so serloun 4 5 that relatively little weight is given to exposure. The mere 6 fact the Implicated chemical is In commerce constitutes 7 sufficient effldence of exposure." That is in the law, is it 8 not, sir? 9 A (By the Witness) No, it is not. 10 Q (By Mr. Carr) That is in the statement. I'm sorry. II It is not in the law, but it is in their interpretation of 12 what constitutes substantial risk. 13 A It is in the EPA policy statement. 14 Q And they are telling you, are they not, that once you 15 ship it out of the plant that is exposure by Itself? Suffi16 clent evidence of exposure. 17 A It says, "Relatively little weight should be given to 18 exposure." 19 Q What else does it say? 20 A It goes on to say that, "The fact that the implicated 21 chemical is in commerce constitutes sufficient evidence of 22 exposure." 23 Q And that means that you don't need to consider any 24 other fact about exposure other than the fact that it leaves 53 the plant. Isn't that correct, sir? 1 A 1 don't interpret it that way. No, sir. 2 Q Well, we will have a recess and then we will get back 3 to your interpretation. . 4 \ THE COURT; Ladies and gentlemen, we are going to 5 take a short recess at,this time.' I would remind you and this 6 goes for any other breaks that we take during the day, you are 7 8 not to discuss this matter among yourselves, with anyone out 9 side the jury panel, or as yet form any opinions or conclusions 10 about the matters in trial. Court will be in short recess. 11 (Short recess taken.) 12 MR. MUSGRAVE: Can we approach the bench, Your Honor? 13 THE COURT: While you are standing, why not? 14 (The following proceedings were 15 had at the bench outside the 16 hearing of the Jury.) 17 MR. MUSGRAVE: I would anticipate that Mr. Carr in 18 tends now to conduct an examination of this witness as to the 19 application of the statute, Section 8E that has been mentioned 20 here and the evidence or the policy that supports it and get 21 into what it.means. An attempt to apply this witness's inter 22 pretations of the situations as to whether or not Monsanto fol 23 lowed it or didn't follow it, was it in violation of the Statuti 24 or not in violation of the Statute. would like to make an 54 1 objection at this time as to getting Into that and pending the 2 Court's ruling would request it be a continuing objection so 3 1 don't have to continually object on the ground that this is 4 not a lawsuit that involves whether or not Monsanto has violate 5 Section 8E of TSCA. The interpretation of the Statute is not 6 a topic, a proper subject of examination of the witness. It 7 is a question for the Court and it is totally improper, and has 8 no probative value in this lawsuit or .weight against prejudi 9 cial effects that it may have and as I have indicated this is JO not an issue in this lawsuit whether Monsanto has violated or 11 not violated the.Statute; 12 MR. CARR: Your Honor, we are in the punitive part ~i * . * * . 13 of the case and their/action with regard to this Statute has 14 a lot of probative value as to the notices that they have 15 given the plaintiffs in this case, the cover-up that they have 16 undergone. This is part of a broad plan of cover-up. As a 17 matter of fact, the exhibits brought in in question were brougi 18 in by Mr. Musgrave. I didn't get into really any attempt to 19 Interpret the law until such time as Mr. Musgrave started 20 asking his witness whether or not the rules and regulations 21 and what they meant and Monsanto's attitude toward what was 22 toxic substances and what is not. It has a great deal of 23 importance in this case as to their attitude toward OOP and 24 what the clean-up should have been. It's all -- it would be V_ ... \' - v '55 " ;V-^ " ^ : r impossible to separate their action .with regard to considering 2 2,4 dichlorophenol as a tonic substance because of its dioxin - 3 content or lack of content and their attitude and knowledge 4 . about the OCP. And it's all -- one beers on the other. It is 5 intermingled so much it would be Impossible to keep it out. 6 MR* MSGRAVE: Just one quick statement. The record 7 will reflect that he opened up this topic and marked the 8 ; .Statute and cross-examined a witness about whether Monsanto - 9 had complied teith it or not, which would be Dr. Mieure on his 10 cross-examination* Number two, I would also add that the M L ' topics, developed ..here are restte, so. remote in time from the n . occurrence^ whether th\state'of mind of Monsanto is the real 13 . issue that they are.of no , probative value weighed against the 14 other effects that they have. ,, 15 'THE'COURT: ^IvtHihk it is properly part of the * 16 DC Oti. 3 17 - o h> O 18 u- ! , 1*9 - m1 0 1 20 < o z \ 21 ' 22 ' ' ' '23 24 ' punitive aspect of the case. X think this person, whoever brought it up and it Is not really material as to who opened it up. It Is.properly a matter that can b considered in this aspect of the case. I think it is intricately Interwoven with these other aspects that are properly part of the punitive case. And X think that this person as a member of the committee that takes;actions or decides.not to take action under TCSA and is the attorney on that is the person who can and should. be examined on these points on all these bases. X will overrule 56 1 your objection, I will make it a continuing objection going 2 to this entire line o questioning so that it does not have to 3 be renewed* 4 (The following proceedings were 5 had In the hearing and presence 6 of the jury.) 7 Q (By Mr. Carr) Mr. Park, to get the record straight 8 as to what this is that we are about to discuss, this is part 9 of the Environmental Protection Agency statement of interpre 10 tation and enforcement policy. Is it not, sir? 11 A (By the Witness) Yes. This is Defendant's Exhibit 12 880. tlB that what we are talking about? 13 Q Yes. 14 A ?e8.`' _ .A IS Q And it was published in the Federal Register, was it ,,r'* ' i 1, ** f A 1 -l k* 16 not, sir? 17 A Yes. 18 Q And those who wish to take issue with it or to argue 19 with it or to say that,it should not be enforced, all had an 20 opportunity, to reply to that publication, did they not, sir? 21 A Mo. It is not enforceable, Mr. Carr. 22 Q Excuse me. Could you please answer that question, sir? 23 A 1 am. 24 MR. MUSGRAVE: You asked him about enforcement and he I answered the question* 2 Q (By Mr. Carr) I asked whether r not everyone had an 3 opportunity to comment on it prior to'its enforcement. 4 A (By the Witness) A, it is not enforceable. B, an t. ' ,,; ` , ,' k 5 earlier draft as I recall was published. Comments were request 6' A number of parties did comment on it. The policy statement wa 7 revised and was republished-without any further allowance for 8 comments or; for challenge or anything else. 9 Q Did anyone challenge that part,of the policy of the 10 PA dealing with th criteria for exposure? 11 A I frankly cannot rcall offhand. 12 Q Well, you have the exhibit that has the comments there 13 and you have had anopportunityto review it before you came* 14 You surely reviewed this matter before you came in here today, 15 did you not? v ' .-- ; : [ - t^ 16 A I. did .not review all these comments that are shown ::: , ( v ; / -. 17 here. 18 Q Well, do you have any knowledge that anybody at all 1? has ever challenged the definition of exposure; that matter 20 dealing with exposure? 21 A This'policy statement was not the subject of hearing. 22 Q Can you answer that question? 23 A No. There has been no judicial Interprtation of the 24 law. 58 ~ 1 Q And no one has ever challenged that, have they, sir? 2 A There is no weight you could challenge. 3 Q Excuse me, sir Could you answer that question, please 4 A 1 am not aware of It 5 Q All right. Now, what this is, this is published and 6 it does control and is the policy of the EPA and they tell you 7 this is the way they are .going to administer this law Isn't 8 that correct, sir7 9 A No, it is not correct, Mr Carr. This does not control 10 the law 11 Q Does it tell you the way they intend to enforce the 12 law? 13 A It is a statement of EPA: policy. 14 Qi And what other word goes before policy? You didn't 15 read that. It is .statement of interpretation and enforcement 16 policy, is it not, sir? 17 A That is in' here,:yes.18 Q And this is the way the EPA tells you they intend to 19 enforce and the way they intend to enforce it. Isn't that 20 correct, sir? 21 A Well, they say that the action is -- statement of 22 policy. Over here in the middle column -- 23 Q Could you please answer that question, Mr. Park? 24 A They refer to it as a policy statement. 59 1 Q Would you please direct the witness to answer that 2 question, Your Honor? 3 THE COURT: Mr. Park, you have to answer.that ques 4 tion. 5 A (By the Witness) 1 have to answer no. They refer to 1 6 as a policy statement. 1 am reading in the middle column, 7 Mr* Carr. I guess the second full paragraph. It says, "Pursue 8 to some question over th definition and nature of guidance, 9 this document is now described more accurately as a policy 10 statement." 11 Q (By Mr. Carr) And what does it say when they enacted 12 it, the very second paragraph at the top, sir* What does it 13 say under action? .14 A "Action: Statement o f 1interpretation and enforcement 15 policy." . 16 Q Thank you, sir. Andthis policy they told you is in 17 effect as, of ,thefdate of .the publication. Didn't they, sir? 18 A I don't see it, Mr. Carr. 19 Q First column, fourth paragraph of Exhibt 880, 20 A Yes. That is correct. . 21 Q Arid the date of publication was March 16, 1978, wasn't 22 it, sir? 23 A That is correct. Q And this policy, therefore, was in effect at.the time 60 1 o the Sturgeon spill* Wasn't it, sir? 2 A I believe that is correct* 3 Q And it was in effect at the time that you met in May . 4 of 1979. Wasn't it, sir? 5 A That is correct* 6 Q And until challenged in court by somebody this does 7 control those who come under the jurisdiction of the Act. 8 Doesn't it, sir? 9 A No, it does not. 10 Q It does not? 11 A No. 12 Q Do you mean to say that you at Monsanto believe that 13 you can refuse to follow this policy? 14 A This policy is not enforceable. 15 Q Could you answer that.question, please, sir? 16 A Anyone could decide to follow the law which might be 17 different from the policy. 18 Q Your Honor, would you direct the witness to answer 19 that question* 20 THE COURT: Mr. Park, you have to answer the question 21 as it is posed to you. 22 A (By the Witness) Yes, it is possible. 23 Q (By Mr. Carr) And if you do, you would subject your* 24 self to action on the part of the EPA if they wanted to take 1 -, r - / \ " *''* '* ' ,, action* Couldn't they.,;'sir? /; /':':;;.>*-' ,t j,, A I would think not. / ; / / ; / ; / ^* - MR. MUSGRAVE': lobject'tpthat, Your Honor, as being vague and indefinite. It depends upon what action was taken in what content. Xhere is ho way that question can be answers It is pure speculation without facts as to what action might be taken and not' tb be i n .accordance with the policy and whether the EPA would decide their policy Was or wasn't a proper interpretation'of, the law and would decide to challenge or not. That is 'totally speculative and conjecture and an improper / question. j ', .* ^ \ ; ,THE COURT: Overruled, I think it is directed to the capacity of EPA to take action, not.whether they would or not* Overruled. Hr. Park, please/answer the'question* . A :(By the Witness) ,Your Hohbrs I 'm sorry, but I'can't ?.S /i3 5^ recall/ i t . * / / 'Z 1 ^ ' -V.' 1 ; ' '- / -/.THE GOURT; v i .ddn't^ear your last words. 7 vy fc : ^ i --. ' i . -~ y_ '* ' - t i? A (By the Witness} X can't recall what the question was* v/vVCr`:.i"Wi - '/ i M T /'"*a ^ ' ' ' s THE COURT ; /Would you read it back* once, please? ^1 /. . '... : (Question read.),/ A : (By-the Witness) I would think the EPA would not take .k-' - "/ ''//. .^ - ' ; action so long as we. were in compliance with the law.. /HR. CARR; YoUr Honor, would you direct the witness . to answer the question? ; V / ./ J *i*.f 1 THE COURT: M r , P a r k , y o u h a v e had the question 2 3 4, '5 read to,you You have to answer ,it as it is posed to-you, VA - (By the Witness) No, . : V / J - '* * \ \ # 1 ^r -i - Q (By Mr. Carr) The EPA you don*t believe has the .. j *> . , capacity to bring Action against you if you refuse; to,follow 1 L6 their policy and the law as they"have .interpreted it .for your J '7 guidance^ `V y '/`V t t ^ ; 8 A This would be a discretionary-decision by the-EPA, 9- ' Q ;Well then,-they do have the power to prosecute you if y* ^' ^ t- r v , . ^ '* * ,( ' 11 ' 10 you fail to" follow th policy they have set down* . Isn* t that 11 V 12 correctf sir?" '' 7 . , .r ' ' -- T- -v^. * ' , _ j _ ' 1 ' _ '\" . , ' : - , >L 1J A Conceivably.they;could attempt to do so. ?* 13 Q ;Then,they could prosecute -you ;for it, couldn11 they V, 14 :sir? _ . ~ 7 : y ;- L' .v , `y 15 16 ' A It is conceivable a complaint could be filed. *.u ,,*****. -, y >v,.t*. r-i *>,i,;. v ^`4/- `j-- -r - . Q .And they'could prosecute >ypu, couldn11 they, if you '17, 18- failed ^to follow the policy as cthey set it down, the law as $ V tfi>*-t, _T.- =j t ^ f *j s "* - j * * i -' j * they say it ;ls','the w a y .they have interpreted it? Isnft that $ J2 correct,, sitt^r\ui --" rv&i :nr ' ' . ,-- A I'm sorry. Maybe X have a semantic difficulty here,' ,21 ' But I don't believe/they could as long as we were in compliancy '22 : with the'law, ,,1;: > ^ / ' \r-' ^ y ' 23 - J 'i / 'SJ 1 ** ` H % r. . . 4 if ^ N .i ,h ' 1 - ' 1 3 < * iL " T T- T -J Q What you' are saying is that'you rmay have'" decided that 24' their statement was wrong and that you might win; the case is F ORM I 2 4 G, - what you are saying, aren't you^ air? A If they for some^ reason decide, to file a complaint ; Q My question was, they could prosecute you if you failed to follow .the lawas they have interpreted it and follow the policy as they set it down." 'H -i v \f ' *A ' 1 j sir? * TT ' " Isn't that correct, r ' / " . : L ', L ` r ' - A -I guess, that is., conceivable " > i. ; Q Now, have you ever notified the EPA that y o u d o not intend to follow, the policy as they hkveJinterpreted it? ;a -.n <?`.;; j \ * l4V ; \V/ Q Io the best of your knowledge, has Monsanto always; .followed the policy .as they have set it down in this document? 1 # , ,,.* * ,- "r Lf A 1^donVt know that I can answer that because o u r 1 ' ' primary concern is. full cori^liance with the law. Q ..And are: you .attestting- to con^ly with it as it has' SL -4 it ^ ` Ly ,-' l- *L* ,, ** J ' ,K>V, ,' ' r' ' ^^ ' .been interpreted, and set- down by the. EPA? 1- ' A We give our concern and our attention to the law. Q Would you direct, the^witness ;to answer,that question. Your. Hcm^ir^ljVU " ^ - THE COURT: Mr.:"Pafk, you have to answer the question * fo'.v-'i* /Ju '-`i.?J " / *' k' - as it is posed to you. Please do so;- ,/ ' . A (By.;the 'witness)' 'In every 8E/situation we do not: refer to the policy because it is'hot appropriate to every situation. MR* CATO: Your Honor; would, you direct the witness , 1 to answer the question? 2 THE COURT: Mr*. Park, that'is not the question that 3 was asked o you. Please answer the question, as it was posed. 4 ` 5 . " v'% ' ` A (By the Witness) Okay*. The question was as I recall, 6 do we follow this EPA policy in every instance? tlR. CARR: Would you read the question to him again, 7 8 please? / -, .\ ' 9 (Question read.) 10 A (By the Witness) " I cannot recall an instance in which 11 we acted contrary to this. ; \ 12 Q (By Mr. Carr) Would you answer the question, please, 13 Mr. Park? '' 14 A Yes, where it applies. - 15 Q Now, part of this policy that you have been attempting 16 to comply with is the. section that we have been -- we have 17 started to discuss. Isn't that correct,, sir? 18 A Yes. \ 19 Q And that section that you have been attempting to 20 comply with ;.ls'the;statement that',as far as the human health eff {A, \ 21 that are listed below, they are so serious that, relatively 22 little weight; is given exposure. itie mura last. 23 cated chemical in commerce constitutes sufficient evidence of -,, i >*;'~ 1 \'`i.1* h^jit'u*Vr **v".*-/1* * " 1 24 exposure/ Isn't that correct? , A That is part of the policy statement. 1 Q That isn't what I asked you though. 2* A Ifm sorry, .: .. 3 ^ Q Would you read the: question that I asked him? 4 \ " (Question read.) * 5 A To the extent' this would be applicable to a'given 8E 6'. meeting or situation we would -- wewould follow it. 7 8 Q...And,this - it is a poor blow-up, but nevertheless-it 9/. `does set out.that p a r t o f the law or this policy"statement 10 'that we are now discussing. \ Isn't that correct, sir? 11 . 12. , t A Yes, that'is a sentence from the statement. _ 1, . , - -.0 r Q Could we mark this Plaintiff's Exhibit, whatever the 13 number might be? 14 * -(Plaintiff's Exhibit No. 1293 .15 was marked for identification.) 0 7 0 0 2 FORM _IL '24B 16 MR. CARR: Your Honor, I will offer into evidence 17 ' Plaintiff's .Exhibit 1293. 18 , ^ MR. MUSGRAVE: Same objections as previously made PENGAD CO., BAYONNE, 19 20 . at the>bench,i Your ^Honor* and- also would objectto counsel -- '\ i' ,\t `si '- \ - . ,v i v - . 1 - ' l. * j ,, > . ^ '; you want to 'wait until' it isintroducedbefore it is shown to 21 the jury?*, jThank you. ', ;.V. t! v' -. ,'Vi *-V''. -- 7 --- . 22 ` , MR. CARR: Your welcome. I - V*. "''' i>/'j! i* ,, . f " k -*1 A t S -- v V * 1 ^ * 1 _, ,, 23 -MR] MUSGRAVE: I'object to counsel taking out of ,24 context one sentence from a policy of many pages for purposes 66 1 of emphasis because It is misleading and not representative, 2 out of contest of what was intended by the one sentence or two 3 sentences that he has taken out 4 THE COURT: Your objection is overruled on both 5 points. It is admitted over objection. 6 Q (By Mr. Carr). Now, ,Mr. Park, this statement that you -" f 1 ' ` . - - i 7 have attempted to comply with provides that the -- and we have 8 no quarrel with that meaning. That meaning is clear, isn't it, 9 sir? 10 A (By the Witness) I don't feel it is clear, Mr. Carr. 11 Q Well, do we have a problem with the -- 12 A It is inconsistent in its wording. 13 Q Do you understand what the words "mere fact" mean, sir? 14 A Of course, I do, Mr. Carr. 15 Q And "the implicated chemical". That Is the chemical 16 that we are talking about that is contaminated with dioxins. 17 There is no quarrel about the meaning of that word,is there,six 18 A I think that is unclear in the context of the policy. 19 Q Well, it is unclear as to what the words "Implicated 20 chemical" mean. Is that what you are saying, Mr. Park? 21 A That is what I said, Mr. Carr. 22 Q Mr. Park, and have you always, you being the one to 23 interpret this law for this committee for Monsanto since 1977, 24 since 1978 when it was published, have you always believed that 67 it is unclear as to what the,words "implicated chemical" mean? 1 A I think there is- a feeling among environmental lawyers 2 in general that this is an unclear policy. 3 - -1 w V. ''" f;vs , Q Have you. always believed that it is unclear as to 4 vwhat "implicated chemical". means?> ', \ 'V 1 .5 6. A *Except ^ f r v , '- -- - " it applies to toxicity studies of a given.chemical./ - //>) 0 r.^ ' `7 * . : \ Y i ' U ^ , / $ V ^ - 'L , ' Q Youithink this, only applies to studies as to whether 8 ., . r or not a chemical fis toxic?n]i. 9 ' , \ -- ' V * . .. . ^ - ... . _ - A I feel -- ; - 10/ ' Q Is that what, you are sayingj Mr. Park? r ;, -11 A I feel that this' policy statement was directed -- 12 "l S W* > *< ' , / A ,,J r, ^ J- s ^ ' ' ' ' l. 1 " ^ ** - N / " J .. ' J ^ " *. t ^' ,. "13 - (Whereupon M r . Carr and Mr. Musgrave ; v spoke at the same time ,which caused }4 their remarks to be unintelligible 15 ] V J ^ and hot reported in this record.) 16 ' *7. saying. 18 MR*] CARR: . I asked if what 1 said is what he is Is that what you are saying,Mr. Park? A (By the Witness) I think it is primarily directed . 19 .20 toward toxicity s t u d i e s , i 21 Q (By Mr/ Carr) Well now, you said primarily, but ' 22 lidn *t say primarily. Are you saying that this policy state-, 23 sent that we are discussing^and the implicated chemical only 1^ f 'i ` ^ .y -24 s talking about toxicity studies of the chemical itself and . rp E N G A D C O . ; BA Y ON N E. - N . J . i  68 ; - w not the manufacture of the chemical and sending it out into 1 '.commerce* 2] A I think this wording here is directed toward toxicity 3 studies of given/chemical or a chemical that ..is implicated 4 by epidemiological studies* 5> Q And the chemical to be implicated then in Monsanto's 6; judgment has:to be one that, has been studied through an 7 8 epidemiological study* Is that what you.are saying? 9 A That is right. .ALchemical that has been -- 10 Q Where in the EPA policy does.it say that the implicated c.' L 'M _ ,, . - 11 chemical has to be one that has been sent out in the public 12. and a large ,enough group of people that it can cause damage 13 or not damage to and then, only then.the industry has to pay. 14. ',attention to the TCSAlaw? Where does the EPA statement say 15. that? Where does the law say that? 16 A I donit;think it says that exactly* ' 1 *s * ,, 'j 17 Q Did, you ever read a'court decision that says this 18 applies only in the. case where the chemical has been studied 9 -with an epdfidological study? > f i -- .. .\ .. * 20 A .There are implications in the policy -- -' 21 . 22 P 24 Q ,Is;Athat what ,you;-are saying, sir? I L * - > \ " r/f v*- /* ^t r , * -, J t_ .V ' ,, - ' * A There are implications in the policy itself. A 'N Q Is that what ybu .are, `saying, sir? I**" *. -T '] '' `St l J * F' i- * , _ 'v A Ves. There are implications in the policy. tj t i.' f.: 1` * .. RE NG AD , CO., BATON WE, N.J. ; 69 'v-: , . ,' j - \ . L r 1, < X 1 Q And, Mr. Park, what y o u 'are saying then, has there ever 2+ ' been ah epidemiological study undertaken with 2,4 dichlorophenpl 3 that contains 5 parta ker million of dioxin to your knowledge? 4 ' A I am not aware of one* 5 Q Then a chemical' in your judgment that contains 5 parts 6 - per million of .dioxin, is not subject, to this law* Is that 7"; correct, sir? '. A X would not say that. .8 . 9 - Q You would not say that. Then It is subject to the law, 10. isn't it, sir?.' 11 A All chemical substances are subject to the Toxic 12 Substances Control. Act. ` <:. ` ' * * 1. ^ 'J ` . -s' 13 Q Indeed it is. And when the implicated chemical is one 14 that contains toxic substances it is covered by the law. is3 Isn't it, Wfr.^Park? . :. '.f:* ' - ' ` ./ ^. \ 16 . 1J ' ' ,iT "- *L A The. word implicated is a funny word. It is not in 17 the law. ^ '1 ^ 18 . Q It is not very funny; Implicated simply means the 19 chemical that is involved in or implicated with these terrible 20 health effects. That is what it means. 21 A And that is why we get back, to studies, Mr. Carr. 22 The studies "that;, implicate\>T/iU M 23 Q Is ^there any question but what the words "implicated ,, ^ , f V" ^ ^ , \l *\ , _ ` / * j\r ^ "i - 24 ' > .' 2` \ i' (-1 - - 1. ,, chemical" means and refers to that chemical substance that can J,>',-v '*=* *f- .p*i \;lr" / ' i ii* '* ' ' . `-i '. BAYONNE. N.J.- 0 7 0 0 2 . :.. ' 7 \ 1 cause these injurious health effects? Any question about that, 2 , 'sir? j ' * : ` 3 ' A ^ Well, the policy, of course -- . . 4 Q Now, Mr. .Park, is there any. question about that in ;. 5," your mind, but that that is whet that Word means, those two 6 . -words mean? ,- 7 A The two words !,in5>licatedcheadcaln -- 8 ^ Q Means a chemical that contains in its substances, part 9> t .of its chemical make-up are contaminates that can cause the IQ serious humera health effects. . . lV A In the polity the. "implicated,chemical11 X feel is one 12 that has been Implicated as causing, new previously unknown 13 health effects t h r o u g h I think Section 6 of the policy gets 1.4 that prettyclearly. 15 Q Mr. Park, is what you are saying then that since the 16'; health effects of dioxin is pretty well known end they are not 17 new, they have been known since at least 1949 when the Monsanto 18 workers.were-exposed to it in an accident that took place at 19 Nitro, West Virginia, and prior to that time for. that matter, . 'F K.- ' j 20 ` since those health effects hove been known since then they ere 21 - not new and, therefore, the fact that the health effect of .TCDD 22 ` s known; and therefore, it is in your chemicals, that you do 23 ^ i- v ;"V. v `.'-/-'-V . 'r i t not have to tell th EPA that the toxic substance is in the 24 chemical.Is that what you are saying, sir? ; V, 'V :W;1-.V-. 1 -1--1 V` . ^ " -f ' 71 No. 1 Q 1 didn't think you were saying that because you don't 2 mean that do you, sir? And we established yesterday, did we 3 not, sir, that If this chemical has In it a contaminate that 4 you didn't know about and the EPA didn't know about and that 5 that chemical is one that can cause the serious health effects, 6 it is covered by the Act, isn't it, sir? 7 A I 'm sorry, but, of course, there are exclusions in the 8 Act* It might or might not be 9 Q Oh, Mr. Park, didn't we establish it yesterday when we 10 went through the business of cyanide in the tank? Don't you 11 12 recall that, Hr* Park? A I don't recall establishing that the Act would cover 13 the type of situation you have described* 14 Q Then Monsanto's position is that it need not report 15 anything to the EPA that any of its chemicals contain dioxin* 16 17 Is that correct, sir? No matter what the level, 18 A I would not say that that is Monsanto's position, 19 Q Well, is it Monsanto's position that they are obligated 20 to report to the EPA that it contains dioxin? Which is it? 21 It has got to be one or .the other, 22 A It would depend upon the circumstances, Mr, Carr, 23 Q It depends upon whether or not the implicated chemical 24 is in commerce, doesn't it, sir? 72 1 A And here you get hack -- 2 Q Isn't that correct, sir? A Well, there are other factors. 3 Q What other factor is there Involved in it, sir? Would 4 5 you tell me that? 6 A Yes, I am trying to answer you, Mr. Carr. There are 7 three criteria that toust be met. The first is that the che 8 mical mist be produced by the party considering notification. 9 Q We met that. 10 A And be produced for commercial purposes. 11 Q Sure. We got that. Monsanto produces it. 12 A The second is that there must be evidence that the 13 chemical presents a substantial risk of injury to health or 14 the environment. 15 Q We have got that, don't we, sir? 16 A No. 17 Q Well, here is where we -- 18 A Let me finish, Mr. Carr. And third, the EPA mist not 19 already be aware of the information. There are three criteria 20 that must be met. If the three criteria are met, then there 21 is a reporting obligation to the EPA. 22 Q All right. Now, Monsanto produces the chemical. 23 Correct?, , , . , 24 A Are we talking specifically now about a -- 73 1 Q 2,4 dichlorophenol, orthochlerophenol crude, Santophen. 2 A Yes* 3 Q All right. And you are aware of the fact that there 4 is testimony in this case because X asked you to assume it 5 yesterday that there was testimony that these things result 6 from exposure to this chemical and you agreed yesterday that 7 those are serious health effects. So that is covered, isn't 8, it, sir? 9 A What is covered, Mr. Carr? 10 Q that dioxin can cause serious health effects in human 11 beings and we went through it just this morning that these are 12 serious health effects. 13 MR. MUSGRAVB: Object, Your Honor. It is incorrect, 14 Mr. Carr. You are misleading the witness because the witness 15 is talking about the chemical and you are talking about dioxin. 16 He is talking about the substance, the product, and you are 17 talking about dioxin. You are misleading him and you know It. 18 I object. 19 . THE COURT: Overruled. 20 A (By the Witness) Okay. My answer frankly very clearly 21 is that the chlorophenol does not present a substantial risk 22 of injury to health or the environment. 23 Q (By Mr* Carr) Well, the chlorophenol by itself. J ' ' * 1, ' ^ , . . - V ) 24 " *\ 7* A With .its constituents. With its contaminates. r\ ,i* 74 1 Q No matter how much dioxin 1b in it, it doesn't pose a 2 health risk. Is that what you are saying? 3 A No. I am saying -- 4 ' Q Is that what you are saying, sir? 5 A 1 did not say that, Mr, Carr. 6 Q All right. Then it does depend upon its contaminate, 7 doesn't it, sir? The level of its contaminate. 8 A X am not saying that. 1 am saying that the chlorophenol 9 that was produced in 1979 did not present a substantial risk 10 of injury to health or the environment. 11 Q All of the chlorophenol produced didn't, sir? 12 A In terms of the 8E. a 13 Q In terms of 8E. Do you know whether or not all the 14 chlorophenol had dioxin in it or not, sir? Do you know that, 15 sir? 16 A Whether all of1it had dioxin In it or not. 17 Q That's right. 18 A I believe there were trace amounts. 19 Q And those trace amounts varied from batch to batch, 20 didn't they, sir, from up to 5.parts per million by your own 21 handwritten note. Isn't that correct, sir? 22 A They apparently did vary from batch to batch. I'm 23 sorry. Let toe pull out the other note* 24 MR. CARR: Your.Honor, it's past noon and I can wait 75 1 until 1:30 for the answer to that question. 2 A (By the Witness) 5ppm dioxin, yes. 3 THE COURT: Thank you. Ladies and gentlemen, we 4 will break for lunch at this time. The admonishments that I 5 have given you earlier will apply during this lunch break and 6 we will resume again at 1:30. Court is in recess. 7 (Luncheon recess taken.) 8 Q (By Mr. Carr) Mr. Park, I believe we were discussing 9 the section of the EPA policy dealing with the implicated 10 chemical and I would like to ask you now whether or not any 11 dispute or any vagueness In your mind about what the word 12 "constitutes" or rather what the phrase "in commerce" means? 13 A (By the Witness) Ho. That is defined in the statute. 14 Q And it means that when it leaves the plant on its way 15 to a customer it is in coxmaerce, isn't it, sir? 16 A Certainly. 17 Q Yes. Now, that doesn't mean to the ultimate user of 18 the product. That is if it is something that is going to be 19 taken by another chemical company or by a drug company and 20 made into another product or further refined. It is not refer- 21 ing just to that. It means any product that leaves your 22 company's premises and sold to somebody else la In commerce, 23 isn't it, sir? 24 A Yes^ The statute says that, I think, for com&ercisl i - .r tV 1 purposes means any product that is produced and put into 2 commerce. 3 THE COURT: I didn't hear the last phrase. 4 A (By the Witness) lfm sorry. Any product that is 5 produced and goes into commerce. 6 THE COURT: Thank you. 7 Q (By Mr. Carr) And, of course, what we are defining 8 "in commerce" is that which leaves your plant on its way to 9 , somebody else. When it leaves the control of your plant and 10 it's on its way to an ultimate customer, the customer that you 11 sold it to, it is in commerce, isn't it, sir? 12 A (By the Witness) X would say that would be in commerce 13 Q And if you assume that the tank car in question in 14 this case contained orthochlorophenol crude that was manufac 15 tured by Monsanto and sold to a chemical company in the westers 16 part of the country, when it left your plant in that tank car 17 on the way to that chemical company it was in commerce, wasn't 18 it, sir? 19 A Certainly. 20 Q And the same thing holds true for 2,4 dichlorophenol 21 that is sold to those people that use it whether they use it 22 for oil well additives or for lawn weeds is in commerce as the 23 time it leaves the plant. Isn't that correct, sir? 24 A Yes. 77 1 Q Even though it Is not yet made into Weed-B-Gon or 2 2,4 D. And the same thing holds true for Santophen even though 3 it's not yet made into Lysol. It is in commerce, isn't it, 4 sir? When it leaves the plant. 5 A Enroute to a customer? 6 Q Yes. 7 A Yes. 8 Q All right. So there is no dispute about that. The 9 nest phrase, "constitutes"; you know what constitutes -- there 10 is no quarrel about what that means, is there? Consists of; 11 is* No quarrel with that meaning, is there, sir? 12 A 1 don't think so. 13 Q And "sufficient evidence". That means enough proof, 14 doesn't it, sir? 15 A Yes. 16 Q And "of exposure" means that people are going to be 17 exposed to it in the state that it is in at that time and in 18 the state -- well, that's far enough. Just in the state that 19 it is in at the time that it leaves the plant, isn't that 20 correct, sir? 21 A I don't know about that, Mr. Carr. 22 Q Well, Mr. Park, isn't that what it says? When it is 23 placed in commerce, that is when it leaves the plant, that is 24 adequate proof of exposure. Isn't that what it says? * 78 - ..................................... 1 A Mr* Carr, X feel that pulling one sentence out of -- 2 Q Excuse me* Your Honor, would you direct the witness 3 so that we might not spend forever on this subject, direct 4 the witness to answer the question. 5 THE COURT: Please answer the question as it is 6 directly posed to you, Mr* Park. 7 A (By the Witness) Will you repeat the question, please? 8 Q (By Mr. Carr) No, Mr. Park, I won't repeat the ques 9 tion. You know what I said. You know exactly what I said. 10 A I don't remember what you said, Mr. Carr, or I would 11 not have asked you to repeat it. X am concerned that we are 12 getting off on a wrong track* 13 Q Mr. Park, we may be off the track that you want us on. 14 A No. No. IS Q But you are not asking the questions. I am asking the 16 questions and X am going on a particular point. X want to r\ 1 '11'j t 17 establish a particular point. The point X want to establish 18 and X am asking you, sir, when it leaves the plant it is in 19 commerce, isn't it, sir? 20 A We have covered that, yes. 21 MR. MCJSGRAVE; That's been covered now about four 22 times. 23 THE COURT: No. Xt has been asked and answered onceJ 24 Q (By Mr. Carr) And the leaving of the plant is adequate 79 1 evidence. Is adequate proof that someone Is going to be exposed 2 to it. Isn't that what that says? 3 A (By the Witness) I can agree with you that that sen 4 tence is in the policy I think you are misconstruing it, Hr 5 Carr 6 Q I know the sentence is in the policy, Hr Park What 7 I am asking you, whether or not what this means is, when it 8 leaves the plant, when it leaves your gates that that is all 9 the proof you need to show that someone is going to be exposed 10 to it 11 A . I think you are misinterpreting the policy by taking 12 one sentence out of context. 13 Q I am asking you, sir, whether or not this phrase means 14 as I stated it to you. 15 A I don't think it relates to a single tank car 16 Q Hr Park, the chemical goes in a tank car Doesn't it, 17 sir? 18 A It can -- a chemical can be placed in a tank car. 19 Q And if you only make one tank car every five hundred 20 years that contains 2,4 dlchlorophenol or orthochlorophenol and 21 that tank car contains a toxic substance that can imperil or l* " #| i 22 represents a substantial hazard to someone's health, it Is 23 relevant aud it is the chemical.we. are talking about. Isn't It, 24 sir? 80 A I don't know. We are talking about Section 8E of TSCA. 1 Q Now, Mr. Park, you told me it is not sufficient for 2 one tank car and I, am asking you, It doesn't make any difference 3 how much it Is. It could be a bottle, couldn't It, sir? 4 5 , A I am not talking quantity. I'm saying I think the -- 6 Q Now, Mr. Park, since we are not talking quantity, we 7 are talking about, the chemical manufactured by Monsanto. 8 Aren't we, sir? ,* 1r 9 A We could be. ^ 1 Q In this case* 7` * i * ji * i i* 11 A .All right. Yes. ^ 12 Q And it is in commerce, Isn't It, sir? 13 A Yes*. . ; 14 Q It is shipped from the.plant, isn't it, sir? And If IS it is shipped from the plant, this statement says the mere 1^6 fact that it Is shipped from the plant is all the proof you 17 need to show that someone is going to be exposed to it. Isn't 18 that what that says, sir? ,, 1i9 MR. MUSGRAVE: Object. Mischaracterization of what 20 it says. Clear.mischaracterization of what it says. It says 21 implicated chemical. 22 THE COURT: Overruled. Answer the question, please, 4C \' ' '' i \w 23 Mr. Park. 24 A (By the Witness) No, it doesn't. \. ' .4* \ v-. 81 ; \ /V ; s;.-\ " 1 Q ,(By Mr. Carr) And the way you have been Interpreting 2 this law then, you do not agree ,that this law says and Monsanto^ .1 * 4 -. ' *A L' 3 is not following, if I stated the way this, law reads and what it means, is it a fair statement to'say that Monsanto has not 4 , 5 been;following that particular Interpretation that 1 have *^ i 6 placed on it? - <t r '7.'. A Mo.. That's incorrect.-, 8' / 9t Q Then you have been following it. I- - ' i I ^4 * '. A We follow T . .10 Q Have you been following it with the interpretation _ 1t r ,1 11 that I placed on it .that.'the moment it leaves the plant, that's 12 all the.proof you need: that somebody is going to be exposed 13 to it? Has. Monsanto1been following that interpretation? . 14 ; A Would you allow me to describe, to you what we -- 15 Q I;will not, Mr. Park. I.want you to answer that ques 16 tion.; \-- * 1 17 ,, MR. MUSGRAVE: .Object to the question as being . , >18' vague as with regard to what leaves the plant. 19 , 20 ^THE COURT: ,,Overruled. It is not at all vague. A (By. the Witness) X don't understand your question 21 'J22" 23 24 then. -' -f ^ MR. CARR: 'VAi- i v , :>,;<> , : L.;".' V ' 'A Read the question ,,A; A A \:ry " ,> uAA\,Ar l*: - to him. (Question'read.) A (By the .Witness) ir:If I am required to answer either f * *' ' < ' ; , 1-*1. ' r 1 * r > 1 * " ,* ' , , ,,> - , >, * ; A ' iK\ V A - A v V;; >A * V . '' ; - r \ 4"'A " t(>L ?tA^JV-f'J ! - BAYONNE, N .J . 0 7 0 0 2 ' FORM IL 2 4 B ;i 82 1 ; '2 3 "4 5' yes or no, I will have to answer, no i Q (By Mr, Carr) Your answer is no. A I would like to explain. / >1 J ' l1 L * Q Now* Mr,. Park, Monsanto has placed on this particular phrase its judgment that consideration o the use to. which , 6 this product is going to be put,, whether or not it is going to 7 be diluted by further customers or' by further use; Monsanto . 8 has been considering that, haven't they, sir, in interpreting 9 whether or not a notification is required by Section 8E? 10 Isn't that correct* sir? U A 1 have a little difficulty. Your question now was, 12 do we consider dilution of. the product by the customer -- 13 MR, CARR: Would you read the question to him, .14 please? i, O tV." -s ..j",\ 15 (Question read.) , 16 MR. MUSGRAVE: Object, -it's vague; this phrase.. `17. THE COURT: , Overruled. It's-not at all vague. Mr,. 18 Park, please answer the question. 19 A (By the Witness) This phrase applies to health studies , 20 ' .f - Q (ByMr. Carr) Your Honor, would you direct the wit- * in , 21 ness to answer the. question? 22 Tip COURT: Mr. Park, answer the^question. 23 A, (By Lthe Witness).^ No./ ifbi If I have to answer, no' i1 i t-v< , 1 i >-X i,v, " r 24 Yes, sir. -- y-*' *' i ' h-'\ > f \ .*<?. \X, u BAYONNE, N.J. ' '` ' - / . '' ,; :'83 ` ' I . Q (By Mr. Carr) /Then you. don't consider the use to . * ?. / ; which the product is going to be pint. Is that correct sir? 3 You do follow this rule that t h e momentit leaves the plant 4 someone la exposed to.it. Is that correct sir?. 5' A You have asked me two questions. Would you read them 6 back ma'am, in order.please? ,7 THE COURT: Wait a. second. Can you rephrase that?. 8 1 think you have asked two questions. : 9. MR. CARR: All right/:Your Honor. Then you follow -- 10 " 11 ` the interpretation that :when it leaves the plant, someone is ' L*" -1 i- , S' L4 L exposed. l that correct, sir? - 12 MR. MUSGRAVE:- Object, it's been asked and answered. : 13. . THE .WITNESS: \ I believe it.has been answered. 14 ` THE COURT: No, I don't, think so. Overruled. . " A (By the Witness) Tf you will not allow me to explain^ J I'fr how we interpret -- t\ ; H- - Q (By Mr. Carr) Mr. Musgrave will give you that oppor- , ' is /tunity, Mr. Park, "// ^. 19- ' A Okay. /. /*. ^ ^ 20 Q Right how I would like to have my question answered. / 21 A If you require me to just go es or no, I have to say 22 no*. ' ' *- `V . . r 23 ' 24 Q OThen you, consider what ^may. happen 11 't ' --J _- \ 1 * . f 'J,' * i>, - i y -* ;: ?* .c . / * i 1 ^- - . 1* ' *. 9 v v. ' 1- 1 the plant/ boh^^you, :sir?: ' to it after it leaves r; ' v t ;/ */L / ? :/ - . * ' Kt { ' i t - *" - 1 > L c*;v'1 *- v> f;ti t j 84 1 -A Yep. ; / '' v. "- * ? 2' Q Now, is there anything in this phrase or in the law 3 as you see'it or as you read it, or in the interpretation, the 4 EPA puts ph it, that permitsyou to consider the use to which 5- it is going to be put in determining, whether or not there is 6 going to be an exposure? s, '> .L . * ,- 7 A Certainly.' .. " ` 1 , ' *' ^ ', .t 8 Q And will you point that out, please, sir? Point out . 9 the section where that appears. JO 11' Q ,Point that out,.please. " L .. ., 12 A Let me read it here. 13 MR. MUSGRAVEi bo you need a copy of the statute, 14 ` Mr. Park? \ -\ _ v/ '* X' 15 A (By the Witness) . Yes. That*s what I'm -- i_ " 1 < -" l ^ .* ' ^A L - * 16; Q (By Mr. Carr) If you have the Monsanto Exhibit 881, 17 you have a copy of it there. It is attached to it. 18 . MR. MUSGRAVE: No, that's not the statute. - ` '''V ... -- _ i . v " 19," MR. CARR: There is attached to Monsanto Exhibit 881 20 the section .of the statute. .V 21 :- -THE, tilTNESS:- ( I kdo ,have it. k u L 22 MR. MUSGRAVE: Is that all that you need, Mr. Park? 23., THE WITNESS: I think so. X, ' 24 - v . M i MUSGRAVE:^ ! ^thinklso. i - 'r U/'UX'V ^ v.r. f l ` ' 'k - ^ . i . .1 V ;; X . , . ft . . ?' .v:--v ` .1 4 f a1 * - - *" PENGAO C O.. BAYONNE. N .J . OYOOl FORM IL 24 B 85 A (By the Witness) The statute reads, "Any person who manufactures, processes or distributes in commerce a chemical '' ' J 'V{ substance or mixture and who obtains information which reason ably supports the conclusion that such a substance or mixture presents a substantial risk of injury to health or the environ ment shall immediately inform the administrator of such infor mation unless such person has actual knowledge that the administrator has been adequately informed of such information. Q (By Mr. Carr) Now, is there a statement in there, ' 1* -* i. l ^ Mr. Park -- MR. MUSGRAVE : Are you going to let him finish his question -- his answer? MR. CARR; 1 asked him to point out the section of the law that he says allows him to ignore what this says. THE WITNESS: It*s not -- MR. CARR: Is there any other section of the law that you rely upon to tell you that you need not pay any atten tion to the policy as published in the Federal Register of the UDA that when it leaves the plant trhat i*s suffici1ent evidence of exposure? MR. MUSGRAVE: Object. Counsel -- MR. CARR: Or any other section of the law MR. MUSGRAVE: Object Counsel assumes in his ques tion that that is not following the policy of the EPA because i ! 1 of his interpretation. Object. That's an improper question., 2 THE COURT: Overruled. r Proper cross-examination. 3 A (By the Witness) The law requires that we consider 4 every factor-- 5 Q (By Mr. Carr) Excuse me. Is there any other section, 6 Mr. Park, is wht I am asking you. You hove pointed out one v.7*` . section. Is there any other provision in the law that you -* 8 believe exempts you from considering the chemical as being . r, .9 exposed to people once it is placed ,in commerce? jo ; MR. MUSGRAVE:, That wasn't your question, Mr. Crr. ; 11 12 J 13 You asked him if there was .a'section'that he relied, upon that . said he could look at exposure. That wasn't you question, Mr. Carr. Mow you are turning it all around again. Object' "i4: to the, question. is \ THE COURT: Overruled. ! : 16 . A (By th Witness) I have pointed to the law as a - 17- requirement that we consider every factor. BAYONNE, N.J, 1 18. Q (By Mr. Carr) And the EPA in interpreting the factors 19 that you are to consider has said, has .it not, if. it is going 20 -to have substantial injurious effects to the health of people,, '21 then you must decide, you.must determine that there is exposure - -, i i- ,, *f J 1 - ' * ^ -L k'' 22 the moment it leaves the plant? . Isn't that correct, sir? 23 Isn't that what the EP has said here? 24 A No. ; `- , ':* 'J ^ ' 1 > . "i , V * ,, '- '" 1 ' - " \ - v " 87 .* . * i ^ '* ns -*> ' * V6> ; r V ? <i ^ " , i|T 'j* i 1 i ' ,, i i j i V ; t V i . 5 - 1 1 ^ ^ - Q What did the EPA say here then? - *. ' * ' - -L ^ What does this phrase t^ . 1 " VK. -* ' mean, sir, i f .it doesn^t mean that? - A What it means, Mr. Carr, is that either as a result of toxicity studies or the study pf population, epidemiological, studies. If it becomes evident that A given chemical or a mixture or a small number of chemicals, are causing human healtty Affects so serious, and some are listed here, and this is new knowledge, it was not known before, that that information should be reported. Those health effects, as it is stated there, those health effects should; b reported. Q Mr. Park, you are talking about toxicity;and health effects which we discussed at, length this morning. I am talk-* ing about if those things are present, assume what you say has already been shown, that it is a new health effect, that you didn't know before it was in the chemical, that it is in there and all these.epidemiological studies have been done and the scientists said yes, it can be a health effect. What is there in the law that exempts you from concluding that you must report to the :EPA the moment it leaves your plant that it is going to be exposed?; What is there in the law that permits you to ignore this policy of the EPA? \ A Prsence of acontaminate in trace amounts Is not a human health effect. ` , - -v ' ' - - ^ ^J ; .A _L * Q And what you are saying then, if I understand you t. i ^,i ;v ; " 88 ; . ; correctly, that there has to be a health effect and if there 2 is a health effect, then this applies. Is that what you are nj 3 saying? , .r 4 A I am saying this, applies-to .human health effects; new 5 - human health effects. * * - 1 jJ . 6 Q Right. So, if there are human health effects, then 7 you have to consider that the moment it leaves the plant some- 8 body is going to be exposed to.that. Is that correct, sir? 9 . A .This sentence applies-- ^ " 10 Q Would you answer that question, please, air? 11 A You are rephrasing that sentence, Mr. Carr. 12 Q . I am asking you A e t h e r or not this sentence applies 13 to ,the moment you find out that there, is going to be health v ' " * 1 - i w 14 effects from .exposure to that chemical. 15 A You know, X could maybe even broaden, what you are 16 saying. I '\'V ^' 17 Q I am hot asking you that, Mr. Park* 18 ; V -A Okay..-/. . - \ T 191 Q I am asking you simply to say, yes, this sentence does 10]. apply if there.is, going to be human health effects or ,,you can 21 . say, no, -it/is ^not going to apply if there is going to be human 22'; health effects. ; J. / 23 ' r-i*'.Uv $ \l<^\ Nv ^ '*i^| .1j,r'.-l.''. -' ' A 'It dqeh `no.tvapply, if i.they'are going to be. It applies `24 - when you have knowledge. . Vr >[ .T f ' ? W : ** ^ c 'L 1 FORM IL 2 * S 89 1 Q All right. i A New knowledge of new human health effects. 3 i < . Q All.right then. Once you have knowledge that there i" -r 4 .are going to be serious health effects as pointed out in the 5 .statute, then, there doesn't have to be any evidence of expo 6 sure other than the fact that it leaves the plant. Isn't 7 that correct, Mr. Park? 8 A Well, I guess to read the sentence completely, it /* 9 says,-'Relatively little weight to be given to exposure." IP But this, is not directed toward a single -- 11 Q Your Honor, would you direct the witness to answer 12 the question. ' a 13 THE COURTS Mr. Park, please answer the question 14 as posed. X don't believe that.was responsive. j -'Vv * '" r/ *'!v5. -j . v ;- \^ <14c* ,- < 15 A, (By the Withess) I'm'sorry. I have forgotten the 16 sense of.thequestion.\ Could-yourepeat it, please? .V ' '*: `J-^;O " 17 THE COURT: Agnes, could you read it back just once, 18 pleased' ;'>\0T 19 (> (Question read.) 20 v A (By the Witness) The statute doesn't mention human 21 health effects. The policy is directed toward new human 22 effects, health effects, that haye just become known to the 23 notifier and not yet known- to the EPA. The question sickly 24 doesn't make sense to me, Your Honor. ( 90 1 THE COURT:' Mr.\ Carr. ,2 Q (By Mr. Carr) Mr. Park, if the EPA does not know 3 that your .chemical contains in it substances that can cause 4. serious harm to people exposed to it, then they don't know .5 it. Do they, sir? If you haven't told them that your chem 6 ical contained a toxic like 2,3,7,8 TCDD, they don't know 7 that. Do they, sir? Unless you tell them. 8 - A (By the Witness) No. They may well know it. The 9 EPA, of course, has very capable research laboratories and 10 they know a great deal. 1 : 1?, Q Do you know that they' know that Monsanto is producing 12 2,4 dichlorophenol that contains 2,3,7,8 TCDD and other harm 13; ful dioxins? - "' 14 1.5 16 17; - A I would suspect that they are very well aware that K iyf ^ J\.vr chloroVp ben' o*l. :' 3s.i ;* contain dioxin. i- " .* "- v ^ t i % e. r ' " ,j, -Yes. * Q You^believe and you knowthat, sir? -1*. *-** *',i O i '` - \v i ; \ V / . v v *, A Wellicertainlyatthe time of the Sturgeon spill the 18r EPA was aware .then-if not;before and I suspect they were before 19 that chlorophenolic products might contain small amounts of 20 .21, 22 , 23 24 dioxin. 'V- Q Does the fact; that and you are aware, of course, that at that time Monsanto took the position that this was a freak occurrence because they claim that the pipes froze up in that very bad winter they had and a worker went out and rapped on f o r m 1L. 1 4 B ; "... : i 91 . , ... - iA 1 the pipes and that is the reason that the dioxin got into the 2 orthochlorophenoi crude. You are aware of the fact that that 3 is the position Mr. Heineman has taken in this Court Room in 4 front of this, jury and has taken elsewhere that that is how 5 the dioxin got in that one tank car.'' 6 M . MUSGRAVE: Object. . , 7 MR. CARR: You are aware of that,, aren't you, sir? 8 MR. MUSGRAVE: Object. That Is a mischaracteriza- 9 ' tion and \^ .J ' -J ' ::\ ' J - 10 ' ; THE'WITNESS: I am not aware of that, no. 11 ' \tHE COURT: Overruled. It.is a proper characteriza 12 tion. , V ' ... 13 Q (By Mr. Carr) That is not the equivalent to saying, 14 that the EPA'knows that, your chlorinated phenols, the 2,4. 15 dichlorophenol, and^the Santophen contains dioxin In harmful. , .{ .a -`` . !:r v. ^ S^'.: r - \ .'v ,. 16 levels, is it*, sir;'if It was a freak, accident? 17 A i (Byvthe Witness) rX would suspect that the EPA is aware 1V; ' ~r '* *?.*"' . - ' 1- 18 that pentachlorinated phenol, that many products contain. 19 dioxin. .j \ . > ,, 20 Q That isn't what I asked'you, sir. I asked you a 21 specific question. Whether or not that freak accident Is 22 equivalent to saying the EPA knows that all of your chlorinated 23 phenols contain dioxin routinely in harmful levels? 24 A X am not aware of what .Is going on in this Court Room P E N G AD C O . . B A V O N N E , N. J . 92 1 or elsewhere. 2 MR. CARR: .Your Honor, .1 ask you to direct the 3 Witness to answer. , n 4 - THE COURT: Mr. Park, please answer the question. ;5 (By.th Witness) ;Yes. 1 guess the two are different 6 things. I would feel -- , .; . 7 Q (By .Mr. Carr) They are not equivalent. Are they,.. 8 sir? And that is all I am asking you.to say; whether it is 9' or is not equivalent. Is that correct, sir? 10 A That th EPA knowledge of dioxin concentrations in 11 chlorinated phenolic compounds is not the same a s w h a t you 12 say, freezing of pipes at the Monsanto facility. I agree 13 that they are not the same. 14 Q And you do understand that Dow produces and has pro* 15 duced for many years products that are free of detectable 16 dioxins ;f:You:are* aware of "that,iaren *t you, sir? -' ,^',1'!J\'^ v'V 1 , 17 - MR. MUSGRAVE: Object to that, Your Honor. That is V t--- .> i 1 ;.. '* " t "j '!' .V } " Tf :S . J 18, a generalized,, vague^statement':.'"Many products" and'there is 19 20 21 1? 22 23 24 ' no evidence to support that generalized, vague statement. \ * ; \iX It's totally improper. Request that the jury be Instructed to disregard it. It is also irrelevant and Immaterial. . . THE COURT: Overruled. A (By the Witness). I am not aware of that. Q (By Mr. Carr) Are you aware that your management FORM 11. 2 4 B F*EN GAO C O . . S A V O N N E . N . J . 0 7 0 0 2 a . ,/ 93 ^ \ ; _ ' '' -/ 1 `2' when they learned of the report of dioxin in the OOP professed surprise that dioxin in these leyels were in -- in detectable 3 Llevels were-win.the1products.' 1^Are ryou aware of that, sir? 4 ' 5 I don't remember that. ' ^ - hJ, * " J. ' L`r ' - - *>, Q You don't remember that. Are you aware of the fact : '*6 /that because.they said'they were surprised that your manage* -.` '7*'' ment ordered:an.investigation and analysis to take place oh 8 all the chlorinated phenol produced by Monsanto and that this 9 exhibit which 1 have shown you before, 1135B, was published, 10 put out by Monsanto for your confidential- in-house knowledge . Jf as to thelevel of dioxins In the products? Did you know that, .12 ; sir? ,; ` ^ " ;-;v ./ rr .` : 13 A M r . C a r r , ! may have. I r e a d many things and I can -14 recall very few specifics after a year1or two. * . !.5 ' Q Well now, Mr./Park, if Monsanto didn't know that the mfH lIO, 16 dioxin was in their product, jiow do you expect the EP would 1 *f;;f*.t -%_* A.J'?--.k .- V,f-.' 4.-La"'/.;'-->A i r(Jr,-s' ' * _ - '_ .a -~ S0 vr171 know that Monsanto; is producing products that contain dioxin. BAYONNE. N.J. 07002 1 u2 . .1 , -.levels i,fln)pva.-r'.-tJs-. p*e'r' :m>:iV.:lv<liV-o,n\?v/.iJ ' ^ '-: - - - ' ' *' - !a 1J? MR. MUSGRAVE: Object to the use of the vague term, : 142U/ ' L, 1- %20 ./fMonsanto^didn't'/l^ow^dijc^hl'iV'i Zt is contrary to the test!- 1 J 21 mony and the evidence that has been here in the Court Room, 22 l Your Honor. Surprise wih regard to ttras. Mr. Carr knows 23 that very well with regard to CP crude. 24 THE COURT: Overruled. ^ 1J t * ~ - ;; t- ' ' / - 94 ; ,i' ^ \> ,L s .1 -i . A (By the Witness) It's my understanding that part of s this is from a little contact with EP people and I guess 3 , reading EPA documents from time to time, but that the EPA 4 'chemistsr people in their laboratories, do have pretty good 5 ' familiarity,with different chemical,processes. .6 , Q (By Mr. Carr) They have to, Mr. Park, in order to ' ^. * * 1 ^' ^ i7 ' 4> .interpret the .things that you send them* ' ^ 8. -9 m A And,they r- v ! f ` ; ; - -- * , . J' z *. ' _ f - >-v r .* M R /MUS GRAVE: Mr. Carr,-could the witness finish - ' id his answer, please? ^ > " '_ ^ ^ ' A" ; ii r j;* / 12 A (By the Witness) nd they have determined that cer tain processes, I c a n 't list them all right here, can generate '1 13 dioxin and that/some products, therefore, can contain trace ' : , 1 V I4l' amounts of dioxin. - 1- RENGAD ;C0.". BAYONNE, N . J . OTOOl FORM IL A B F*I *1 `0Iofe J - ,li_ 3 5- is' Q (By Mr. Carr)-. It: is a chemically known fact that if A ,1"v6' c - you have a dirty manufacturing process you can contaminate the ,> -- 1jJ \ \ .>' i^ 'y',>/'>\ - ', *- - ` J 17 "i / product with dioxins;. Now,^ that/is a known fact. That's in . 18 r the chemistry books'. ,: , '*t \ { ,. j l \ \ \ - !1/ /v . -r , ' ^ ; ^ 1a ,19 .<zoU/" n ` : 20 ' ^ ' --.21 ,r ' C ' ` MR.-CARR:.rIt is/ known fact from 1976 that your y :\ Vi/ \ . -, product, because yu se caustic in producing it, did Indeed ' ., / `` 22 -, create dioxin at harmful levels. That is also known. Now, 23 ; Mr. Park, what makes you think that EPA knew that Monsanto . I,, was thusly producing dioxin if Monsanto has nevar notified ! :95 them? U-'--* :? ul.y MR. MUSGRAVE: Object to counsel's speech In making ."% li:;* , vv.'i ;Sor:, a statement with regard to production o dioxins at harmful levels Request that It be stricken and the jury be Instructed to disregard it. V; 7 1A , THE COURT; Overruled. It's not a speech. It's a h '-^y '.cr.'t i u- ;U:.: x k c y c : iv- \ proper question. i. ^ y:c. ppvi'y - 1 yao lS/\ Y c-.VL .f\ f.iyX rA (By the Witness) There were not harmful levels of dioxin in the.product to the best of my knowledge, i 4 * '-:, y L x ' . j , ! t J,' , Q (By.Mr. Carr) And you have been relying on that, haven't you, Mr. Park, in every TSCA meeting you have ever had? . Haven't you, sir? Without ever knowing the levels. v 'is,- 1'."vl'1' j \i r";XCP*' 1- y.'.-^y / A Thatjs false, Mr. Carr. Q All right, Mr. Park. Back to my question. Did you at Monsanto in functioning in your committee ever notify the EFA Cs K`AO * 4-VVit*. K*JI.1.-t. that, dioxins at whatever the levels were were contained in V y. y v I your,product? , u* .~v;- v y *. JMR. MUSGRAVE: Object. . . t- -- - - ` y. v . ' * v. . .... . . . p`iy . L r o ;- , "VV '}'1f "'IT)" ' . - ' - ` .4- -- `- X . , . MR. CARR: ; 2,4 dichlqrophenol, Santophen or, ortho- chlorophenol crude.or parachlorophenol. MR. MUSGRAVE: Object. It's been asked and answered. y. .r. :.,,: ". ,:yr yyr pv :ux ycy* THE CO^UR'-%Tr:1 It has been asked and answered. V 2*' Vj-* y ^ ' ^ i--* L ^V Q (By,Mr. Carr) Well then, your answer is that you -'" *V J.. * ^- .never notified .them. if. X understand you correctly.. J*- . * 4- ).* . ^ - 1 - ' .i . . ' V , ' . A j 11 b \ l P . 1 . , 1 V. _t ! T. t I i ` * - . y 96 ,fc . tv t \ ; " 1 MR. MS6RAVE:. Object; That's been asked and 2 answered, M r C a r r . . The Court sustained-my objection. 3 MR. CARR: Your Honor, I want to establish that as .4 a predicatet:o my next question. 5 THE COURT:. Go ahead^ Mr. Carr. " Q *(By. Mr. Carr). I am coihrect in the statement that; 7 Monsanto has >never notified the EPA. We established that this 8 morning. r r 9 .MUSGRAVE:>. Under 8E,,Mr. Carr* -; ^ 10 ' il\ , ^ 12 . Q (By Mr. Carr). Under .8E., ;j 'MR. MUSGRAVE: To this witness's knowledge. /. -r , `1 J. * > % ^ rf * \ J Q (By, Mr. Carr) ' Isn't that correct, Mr. Park? 13 1 A (By the Witness) -About dioxin content? 14 q Yes; , ;; - 15` A Yes, to 1the best of. my knowledge. FORM JL 24 B 16 - Q Now, ybu do Jdiow that the EPA dpends upon r- let me BAYONNE. N J . 07002 17 back up minute. EPA is a governmental agency that has . :;?r " / '* - 18 certain;ampunt of funds ;to d o i t s job. It Is responsible for .. L-> , 1- 19 -, the entire,breadth^of' the environment in the entire United sr'.-:'CL .> 4 - , 2 States, .ish'Vf; It, sir? "X , , 21 A Itrhasfbrbad ^responsibility. . / . ... 22 Q ,And. It is impossible for. it to go into every. Chemical 23 plant and evry drug plant and every.steel plant and every plan 24 that may produce things, that could harm humans and the environment. L;.V '.I- 1 It*s literally impossible forthe EP to police each plant, 2 .isn't it? ^ 3, A No, it's not;. They do a finejob* ", Q And,what they do, :Mr- Park, they rely upon your :4' 5 reporting to them, don't they, s i r ? ; . ; 'MR. MUSGRAVE: Object, Your Honor, to calling upon' 7' this witness now to state conclusions as to'what EFA does and ' -T. I , , J, h . C ,, _' ^ 8 relies upon. V j - <y t . "J ` --v 9 :T ^ C ^ ;r , 'v jo ; A .A (By the Witness) The EPA personnel come :into many of u our plants; as well as others1and take samples and.analyze, those 2 samples* They blanket /thecountry* V ' 13 ,Q (By Mr , Carr) Hve they coiner to the Krummrich Plant 14 and taken samples from the Krummrich Plant, Mr. Park? In A 15 Sauget, Illinois? \ ; ',= ;^ ! .: '. ! . 16 A I would have, to check the files on that. I am sure 17 EPA personnel have been at the plant* But I can't off the ^^ . ' >- 7 - -, ` -K1 , J . l . " .` ;18 top of trw head, recall T -V . ' *' *'-s" . '' *k y " ,'i/j i - - 1 i i -i ' * , ,1 {. - i . - V . - v , - y V . ' - y ' y . , , ` 19 Q Andwhen has fche.EPA* personnel been at .your plant. 20 Mr . P a r k ? i ^ - A r v .. . 21 A l 'd h a v toA think* j A`, J / 'A v ^-vf y r;4ir r - ' - i A '-A *- / 22 ' r ' , i '} ^V ` J I ^ Q Weir, whyvdon't you think? .; [ '-" J 2*3,, L THE COURT; I*m.sorry * I can't .hear, you. '24. A (By th Witness) I 'm sorry* 1 I 'd have to think a PEN TAD C O.. ^BAY O NNE' N.'J. 07 02 ' FORM. IL 24 B 98 I minute abput that as.to exactly when.....I'm. sorry. I 1d.have to i 2 look .that up, . . ,, . ,, ... ^ '-t,- vv,,:-,io\ ` / * ' *, . i > j . <, < v - - v.' .- - y * * -- *<* -- k "* * - " 1 ^ 2 3 .% Q _ Do you. have any knowledge that they have^ ever, been to 3 4 .the Krunnnrich Plant at Sauget,. Illinois? 4 v.r,T , 5K ( A I. would certainly, think, they..have?been., r .. vc^r 6 ____ Q I know you^would think, that,to,..Park.^ *ButrI -am.askin^ ' * ^ - -,y ' '* ^.p* ** ' v^* ' 11 * 7 you.whether or not you have any knowledge and I,will ,remind you 8 that, you_are-,under,.oath, sir. _,.. S ^? 9 A I_*m.sorry I. just-cannotrrecal 1 specifics r* 10 Q You do^ know .OSHA came .to the plant and took a sample i0 11 and perhaps that is.what you were thinking about, Mr, Park? !; 12 A No,. I was.trying?to,.recall*EPA., 4, , n 13 .,QrvHave you ever had any knowledge that EPA ever at any 14 U time took,a sample other than the sample that you sent them of 15 the OCP reserve sample,when-it spilled in Sturgeon? Other-that 16 i6 that, do you .have any knowledge ,of any ..time that they have evei 17 n taken .any. of,your-chlorinated phenols and tested them? 18 18 A N0., ,;r _ 19 19 Q And, ;Mr,. Park, you know that it is a physical impossl- 20 20 bility for the EPA to. do .that otherwise we wouldn* t need the 21 law, would we,:.,sir? . .TM*..-- 22 y,, A The.law is directed toward prompt,notification -concern 23. 4. ** ing new.health effects and many of us .feel that it serves a vet 24 4 good,purpose :c;- . r - 99 1 Q Mr.' Park,..I know you like 6 say that litany, but 2 that isn't what the law says. .The law says that chemicals that can be injurious to the health or to the environment and 3 I am not asking you that question. X am asking you, sir, you 4 5 , know the law puts the burden not on the EPA to come into, your 6 company and,;be; a Gestapo, and go through your books and check -7 . your samples, the law puts the burden On the company to 8' notify the EPA. I s n 't that correct, sir? 9 :A >Section 8E.does. That's correct. < , 10-. Q ,Tsxi*-t\that correct," sir?. -i 11 A That 's right.J 12 Q Xt is not the EPA's obligation to ferret it, out, is 13 it, 'sir? * . `14 a Nov .7 \ *l 15 Q And It, therefore, has to depend upon the law; that 16 you will obey, the law. Isn't that correct, sir?, ; 17 A Section 8E? ' ,. - . 18 Q -That's correct. , ; \^ 19 A .That's right.7 7 -V i i ci 20' Q ,(And"if, you do not interpret the law -- strike that. 21 DoesnftFthe :EPA,have the right to assume that you are going ' iV': S V VVv-'i 'l) \ 1 * :' v ' 22* to interpret the law the way they set it out to you. unless you 23 notify them;in some former another that you are not going to 24 follow their interpretation? . ; v ^ PENGAO' CO. .BAYONNE, N.J, 100 1 MR. MUSGRAVE: /Objection to that question. Your '2"" Honor. Thatiis totally"improper as to what the EPA has a . right to assume, vague people having rights to assume. Vague -3 4 statements like that, that is. totally, improper* 1 object to >> - ;> tv-` . r^ ' 5 'it* ' V. ^ `` : .A 6 - - THE COURT: Overruled. It1s a proper question; ' 7 A (By th Witness) I think'I'd answer no. 8 Q (By Mr* Carr). They don't have the right to assume that 9 you are going to interpret the. .law as. they tell you it should 10, be interpreted. Is, that, what.you are saying, Mr* Park? 11 A That is correct. Their interpretation is not broad 12- enough for one thing. Doesn't cover every situation. , ,13 Q It. covers every situation where the product leaves 14 the plant, doesn't it, sir?, 15 V A . It's broader than that*. . , 16 Q Does it; except any product leaving the plants from its ir jurisdiction where that chemical^has injurious health effects 18 or can have injurious health e ffects?Does it except, make an 19 exception for any .single chemical that.meets those qualificar 20 tiensi??; O. \ v J' a. ^ . t,;;!-i la ,-1.?1 v* '' A L ' ' 21 A There is an exception when any of.the three criteria f\\. 22 are not .met. 2 K 1-*. L .i! -- > .r *' p *J 23 Q My question; Mr. Park, as you know, is directed to the >,.fj . :;! t t iV *. a L ." 24- chemical and I am asking you whether or not there is any PENCAO CO., SAVONNE, N.J, 07 0 0 2 v .v ' ^ loi ; v-. . , \ V exception in the law for the products that are made by. Mpnsantc 2. if they leaye Monsanto's possession?-- ' 3 A Those would be products in commerce and would be 4 covered by -- ,.. 5- Q Is there any exceptions? \ 6. A -- the statute. 7 Q I'm sorry. ' , ' ;/ 8' Those products `that leave the plant in commerce would 9 ba,products in commerce covered by the toxic Substances Con 10 C trol Act.^ ` - 11 ,, Q And'doesn't th EPA have the right to assume that you 12 / are going to consider that you don't need to worry about 13 exposure if the chemical leaves the plant. Don't they have . 14 the right to assume that you are going to follow that law? -J^ "4 ** i. - 4 ^r * * * ^,, - v , . . '* 15 MR. MUSGRAVE:' Same objection. 16 MR .-.CARR: .Their interpretation of the law. 17 : THE COURT: Same ruling.. 18 ' A (By the Witness) That's misinterpretation of the . --19 policy.., \ " r v_ 20 ' Q (By Mr. Carr) Is there ^ny other interpretation you 21 can placeon this.andi i havevasked you for it, Mr; Park, and 22 you didn^t; giye it> to ;me. ^ Now X, am asking you again. Does . y. 23 ,v '- J the EPA 7 - there is no quarrel about,what these words convey. 24 The meaningftheyv convey .to you.\ They say .that if the chemical o o io V N 1 '3iJNqAB 102 1 is one-that; is going to cause serious health effects you shall 2 consider,! that the moment it leaves the plant ''' so-m-1ebody might L be 3 exposed; to it; Isn't that exactly what.it says?.. 4 A No, it's not, Mr. Carr. - . . 5 MR,-MUSGRAVE:, Just a second. ..I object to that, 6 Your Honor. He started off by saying, "I ask you what inter 7, pretation you put on this and you wouldn't give me one," .Then 8 he went on toanother speech. I object to this continual 9 speech making by Mr. Carr of five or six statements that are 1 not questions, ended then by a question.that.is not even 11 related to the first part of it. . It's totally improper. I 12 object to it. X request that the. Court instruct, the jury to 13 disregard it. - - , . 14 THE COURT: Overruled. 15 Q (By Mr. Carr) Would you answer that? . , 16 A (By the Witness) And I said no, it was not. I have 17 attempted several times and X have completed a couple of times 18 telling you,how you are misinterpreting the policy. The human 19 health effects that, are mentioned there on that placard in . 20 your hand are new human health effects discovered as a result 21 of toxicity, studies, or other similar studies, epidemiological 22 studies that indicate a new adverse human health effect of a 23 substantial nature on products that are in commerce.. 24 Q And .if I understand you correctly then, whatever the '' 7 V . . 1 0 3 ` 7- ' level of dioxin that you may discover In your product just as - 1 2 the level!jo'fr c*yanide yesterday, .* w'hr*atever nthe level 'i s since i 3 the health effects' of dioxin; is well known and not new, you do 4. not have to tell the. EPA that you are, shipping out products _c 5 6, that are going to be exposed to people the moment it leaves the plant / V; ; i, ' 7. A I am saying this wording-does not apply to that. Itj 8 -was not intended to apply to product composition. 9 .Q My question I'm sorry. What? io A It was not intended to apply to product composition. ?- H It applies to, new human health effects. .. -12 Q It was not intended to! apply to the things that, go 13 into the product? The composition of" the product? Is that ,14 what you are saying, sir? \ ' V * -- 1 5 A Will you read back what I said? I thought I, said it lDatCk '. - -- 16 * >sp0o> ' 17 2 uz 1<d . ' 18 19 clearly, Mr, Carr. 7, Q ,Is what-you are saying.that it doesn't apply to pro ducts, the composition of the products? A Perhaps it would, be useful to:look at other parts of "^tQOZbl' vlX 20 this policy . . ;'. / \ , : 21 Q- Would* you, answer .that{question, Mr. Park?\ ,7 vt,? f 'j.7'7: 7'-, - -- 22 A This is"directed toward;new human health effects. . J ' ,23 - '-\ *** , Cl JJ if t' 4 Q Your Honor;- would* you; direct the witness to answer , '>'; ~ '\ ^ , -* '**'. *y* St . -i ^ 24 that question?. 1 ,, J* '' i ; f >, -,!*'w " 1' ^ >/ ,-rv - '- ^ '- ' s. . -- - 1 ; - . . ' - A . A;-; .1* ; ;; r A , , ,*. ' 1 THE COURT: Mr. Park, please answer the last ques 2 tion as it was posed to you. >A 3 THE WITNESS: Did, T not answer that? 4 THE COURT:. I don't believe you did, sir.,, Please 5, answer. JA * A A V - ' , 6 A (By. the Witness) I am having, difficulty following 7 lir. Carr's" questions, Your Honor. Would you repeat It, please? 8 Q (By Mr. Carr) ..Would you read the question to him?. 9 AAA ^ *a >' A- (Question" read.) 10 Yes. It was intended to apply to new human health v M effects. They are listed further on down.. 12. Q And the composition of the product if It. is made up 13 of all kinds of poisons; it doesn't apply; Is that correct? 14 A This portion of the policy was not intended to apply 15 to that In .my opinion. r , 16 Q ! Aiid you can ship any product out that you want and 17 contain whatever composition of poisons it might contain and 18 you believe that you need not notify the EPA of that. A ` 1? A I am not saying that at all. " A /, t 1 - ,,j h 4 20 Q Well, that is what I a asking you, sir. , 21 A You did not,ask. me that. A 22 r . jj? * ^ ^ i."-* ^ Q!t:`'Mr;,..::PPaarrk,s \tthhiiss;/. mriorrnniinhgg,,iIf I understood you correctly, 23 ' -- J ir,'.v"N"4*>>.1 /,},_-i.- - v_-_s'*<t /' ...If>';'`X.,I you said the test for the reporting under the TSCA Section 8E 24 U -' i i tU is that, it, mist be produced by.,.a;iparty considering notification - -\ ?4':' 1:j J\ < * . 1` ' i ' O i-tjv ( -'i' ` a1 ; ' * V ' ' ' `, i- 1 * ' .iJ '>''v * ' j '-105' j v - -? :1 for. a commercial purpose. Did you not, ..Sir? J ,2 . `1 3- a w'e-VltTl'--.! i,, ,- ' _ , `C'.'" K' 3 -L:,, L * ' S.p--t*.< Q Didn't you say that this morning; sir? /. ,`c -*' 4 4, A X don't recall using those exact words* It's roughly ''.y-'rtt*,* L"v.J.,r '- `* f^f,V ' T,,i t 4 ,J*''* '5 -- Itthink o have them out of order* :X would be glad to 6 ; ^repeat itl \ '' .-.//V r^ ,;- 4' .7 - Q Noy> I really donrtneed.it repeated* T 1 s: ` * A < Okay y / r .../: 4 ' " -//./<'. 4 9 Q Do you not recall saying' that it is, a chemical that ` i..- " \ "* V . JO. -must be produced by a party1for -a>commercial purpose Il 5 y 'l A -That's r i g h t Y e s ; '/ ; /.?; 1 * .;v '" 12 L T Q Andthese chemicals meet that requirement, doesn'ti t , 13 sir? /lU ; , \ /v" 14 ;V 'A Yes.' \ .V A ' ' -v ] J *` ' ` ;;v ; 15 1 Q And there m s t .be evidence the chemical presents a r.1 16 ,substantial "injury to halth. You said that as well, did you ';7 "not, sir?/ - ''"'7/ ^ 7 ;j-` 1 ^'_ : :18'1' : . A Right, * ' 19 Q And. you said that the EPA must not already be aware 20 - of the substatitlal,injnvy to .health ffeet, didn*t you,: sir? ; 21 A Or the information that, is being considered for 22 reportings , \^ y..- 23; . 0 ; nd-rtfioe' are /etie. three' ttilnes that you -said Is th- - - '-`f'-iii-f -< l >/i si ; : ': 24. test* Is that correct, sir? ^J u. *L- * 'i-t i' - n '", <: "T,'*-'-h '' , 1 . , , ,jJ;-/sv j'f-/' &:'* i' *' -.' , `- , ;J 4 'i/ ir/ i 1 v;*? \ ^ L "44 *. . '/ ' t " s 1 ^ h `fr * ' ^^ i j /r-t ^t ... 1 ,i-J J A *V . '- u J4 " l. B A Y O N N E , N,J_: 0 7 0 0 2 _ , - V t ) . ; .PA *'* A; A - A i ` hOV 5 106 1 A Thethree criteria,_ yes. ,1 v ` -2- Q And If I understand you correctly, it is your Judgment 3 'that the 2,4 dichlorophenol that was,the subject of the May 4 meeting does not meet that requirement -- does not meet that 5 test. If I understandsyou correctly. .6 . f- ' ^ 7 ' A That is correcti THE COURT: Did you say that Is correct?, A A 8 ' A (By the Witness) Yes., I'm sorry. That is correct. , - 9. Q (By Mr. Carr) We took the liberty at the lunch hour 10 of asking Mrs. Hackmann to check her notes to make sure that :.11 we would.be correct and we put on this board the criteria that A 12 - you mentioned. Must be produced by a party considering noti ' 13 fication for commercial.purpose. Must be evidence chemical 14 *>r presents a substantial risk of injury to health. EPA oust not 15 J 16 already.be aware of it. Now, those are the three things*. Is .that correct, .sir? ; 17 A That's correct^ . .. 18 Q Can I mark this as an exhibit, please? 19 20,, *- 21 (Plaintiff's Exhibit No. 1294 : ; was marked for identification.) A Mr. Carr, could I.-- "- * -\*A ' 22 J 23 24 Q We offer into evidence Plaintiff's Exhibit 1294 if it please the Court. * > A r, - *' ' V - '>;.< t r* . .v:` A ;,A sslight- refinement -there1 ,- ft -r.:i' i : . \A */'Ai> ;xA-^ ,,j < r,: f- , 107 ACv Q Mr. Park, there is no question pending. Your attorney l . 1 i ,, v, *. *>. '-vv, 7y'c? '-'** : will have the chance to refine what he wants refined. .1 .1 J J' A A Okay. u THE COURT: Mr. Musgrave, do you have any objection? A*K MR. MUSGRAVE: 1 have no objection. 7r":Trey '* `Vvae, ccn & -- eix ;l :?? \.:?xx:- THE COURT: Admitted without objection. v:: ' e?. y-J ; ^-s :/ .vyy, aripw Q (By Mr. Carr) How, the 2,4 dichlorophenol that con- tains the dioxin is produced by Monsanto. Correct, sir? '\;v ?\v r\cr-\, Can?- %h> toi-ji. rd A (By the Witness) That's correct. 10 Q And 1 am asking you to assume that this chemical, the '10 j-v. . c'.v.: f.y v": v ":'U'A -o v-vy \>rx %.? 11 dioxin that is found in this chemical is at levels that pre- ;1 ' ! -x. - V v X i n dv'i)*;.o'ci y>:or'o es".?'? "` 12 sent substantial risk of injury to health. Will you assume Q il v .- g v . i ' . 'i'tv V.u e x ? : 1 ..r.o w cv,i 13 that, please? n y ::.j y ylyv.?'p not -uM?' to tioot yov Vo;. y- y a d tv i::y 14 A Well, it -- but that's not true, Mr. Carr. 'v; t :-v<\xr So $>'* y v to (ENCAD- CO.. , BAYONNE. N .J . - - 0 7 0 0 1 - F O R M IL 24 B 15 Q Will you direct the witness to assume that is a fact? 6 o i j 7'; i ay- vo on 16 MR. MUSGRAVE: Object, Your Honor. He is talking H'- T?' '-v v ye. ? > ,:ortv.. y,,o., 17 about a hypothetical and there is no evidence with regard to 17 <?? tciv. i " ` y " r :-. X a : i n v r . : , r f. ^v- i ^ o ` 18 this hypothetical under TSCA reporting. 8 / , -W'"; rx: CG, ..v 'eyit tbJ'Vv. I? CX'C C. U?7??:e?? 19 MR. CARR: There is weeks, months, years of evidence i* j " ''' :> r_A , i ~2, T_irif' ft1 ?'\ * -'r i'-' :` 2 0 Mr. Musgrave. ;>j> r"*~/veee 'j4ti:t 21 _ MR. MUSGRAVE:. Mr. Carr, you are talking about 2 1 s> K.*y s v. ` 'j - -ici'-in;: xx t? ;:?xxr- :??:: 2>2> specific chemicals, specific mixtures. .. V..-' i'G .-GGG D3? 'K? 1 : X f . : - 23 -- -t Q 2V4i MR. CARR: I am talking about,,dioxin. to o\?c\x.x :??x ^*. MR. MUSGRAVE: You are talking about 8E, Mr. Carr. .. .<*',!.ov*-"!r/*<"i' /f;J"*>': ,rVi Oi--*-`r '^ / T - . ' -^ ,; . . r -L`* ., - \ /; ' ^ 108-' v^ \ ^ ... * ^ s; X object, t o ,it, YourHonor. It*a an Improper hypothetical * v 1 -- : 2 3 given, the framework of the question. - * i* J ' ^' '1 THE COURT:; Objection is overruled. Mr* Park, you - 4 have to assume it. You are ordered to assume it* ; 5. , THE WITNESS: ' Your Honor, can I -- am I to under- ' 6- stand that l am being put in the position to say, okay, assume ' 7 .. that your client is guilty.-- , ., *8 THE .COURT: No. Mr. Park, that is a total mis- . .; 9 characterization of what you have been asked to assume. You 10 were told to assume', requested to assume what was argued to 1 * me and which .X have decided it is proper for you to assume is 11 ,12 'what was stated'to you by Mr. Carr. T No more and,no less and m ' 13 it is absolutely not analogous to what you just stated to me. " / _ i,j , j " t j ' , .'14 . Now, assume what he told you to assume, sir. *r ' Is ' ' THE WITNESS: You are telling me to assume -- *GC Ou. 16 ^ 1, THE COURT: No. X am ordering you to assume,' sir. s6K0 1' * - i,r A (By,the Witness) No. X am asking Mr. Carr now.. You 2 ' 18 < are asking me. to assume, that there is evidence that a Monsanto U Z ' _' 1 S . 19 1. J' product presents a substantial risk of Injury to health or 1 . , ?0J the environment. j Z ii Q (By Mr. Carr) X/.am asking you to assume that dioxin J ` 22 in the 2,4 dichlorophenol produced by Monsanto is at. such' 23 '^ 24 levels as it can cause serious health effects. J 'r ' * r I am asking you to,assume. s\ '* ' > ij c "V' j / / '* That is what ,.** ? T*i 5 I?.?, <o- . ..-t... -v,vMR. MQSGRAVE: Well, Your Honor, I hate to keep !' interrupting, but if he is goingvto^ ask .him.to .assu^ facts_. . with regard to an interpretation.of 8E,t^than he must ask him to assume facts that track the language of the .statute, Your Honor, or it's 'totally -improper randt.that, is exactly...where Mr. Can: is-trying cto;go .- And now Jie.ds rwatering down .and..chang ing rthe language -that, he is using^here and it's totally.im- proper.*r rC;-;r4 >sr_ . pc-?rc?: I - ^ .>3 - T H E - C O U R T W o u l d you read.back the original,request 10 that he was asked *to,.assume?..And .that ,,is.what you are ordered kw 11 to assume.- * ^ t V ^ ,, 12 J JN o 13 i t'Wi. .(Quest'iJ`o'n'>r'ead.) 1i; A :;(By ,the?Witness) I don't.believe that to .be. the case. 14 ,r =i;t: THE' COURT: Mr* Park, yqu.ihave.been ordered to assume 15 it. Mr.-Carr,cyou may move on. 16 * -J Q (By`Mr."Carr) And assuming that to be so, the second 17 requirement has been met, hasn't^.it^sir?. - P E N G A D : C 0 . * i B A Y O N N E , * H*J, 18 A (By the Witness) 1 don't:1know*,whether it has or not. 1? I don't know. *r- ]T7 \ 20 MR; CARR:, Your Honors ,the-witness .is obviously, not 21 assuming! that-.which the Court ordered,him to: assume, and.I am 22 at a. loss ;how, to-proceed other than to> ;ask the Court to have, 23 some"sanction against the witness, but I am reluctant to do so. o 24 THE COURT: Gentlemen,, caa ypu .approach the bench for 110 1 a minute? * 4 1.- v ^ '2 f 3 ^^ , (The following proceedings were ^ .had at the bench outside the . 4 ,. ; hearing of the jury.) 5 THECOURT: There is no excuse for a licensed 6 attorney not to follow an order of this Court. I am willing `T to take a five minute!recess and you had better tell your 8 :- witness| remind him of the contempt powers of this Court if 19'' he does not follow the orders of this .Court. I!think unforr 10 , tunately Mr. Carr's characterization happens to be-right and 11, I don't want to hold anyone, especially a fellow attorney, 12 in contempt. But I don't want to be put in a situation where 13 I have no choice. You are experienced competent counsel* I 14, think you better tell him where.he is headed. We'll take ra `15 .five minute recess. ' > - . 16 , -MR.' MUSGRAVE; Thank, you. I? (The following proceedings were 18 had in the hearing and presence, r1 v r-, - ''' ' . ' 19 *; w =' vv ? , of the Jury.) - -20 THE COURT : ,Ladles^aful gentlemen, we are going to ` i,'..j /V, if`je ^ ' 1*l 4`ri' . .r 21 take a short recess at this time. The admonishments I have 22 given you earlier, will *apply ;during this recess* Court-is in 23 short recess. . - -24 (Short recess taken.) RENGAD CO.., BAYONNE, N.J, 111 THE COURT: Mr. Carr, you may proceed. 1 Q (By Mr. Carr) . Yes, Your Honor. Now, Mr. Park, will 2 you nov7 assume as 1 have asked you to assume earlier that there 3 is evidence that this chemical presents a substantial Injury 4 to health? Will you do that, sir? 5 A (By the Witness) A substantial risk of injury to 6 health and the environment? 7 Q Yes. 8 A Okay. On the assumption that this product presents a 9 substantial risk of Injury to health and the environment, then 10 criteria number two would have been met. 11 Q Would you read the exact question back to him? Did 12 you assume that which 1 asked you to assume, Mr. Park, because 13 you modified the language somewhat? 14 A I was trying to track -- IS Q 1 know. But X want you to answer the question as X 16 gave it to you, sir. Would you read that question back to him 17 again? 18 (Question read.) 19 MR. MUSGRAVEr I'm sorry. I couldn't hear you. This 20 21 Is a different question that he just asked. 22 Q (By Mr. Carr) Doctor, let me ask it again in this fashion. If you assume that dioxin has been found in this 23 24 chemical at such levels that it presents a risk to the health 112 o human beings, is the second criteria o your three criteria 1 f ' * r' ! I1 < - J 1 -r , L i*"- , W T " ''* J . for tests met? 2 A In my opinion, not yet. Without consideration of how 3 l health or the environment would be subject to substantial risk* 4 ^i Q Well now, 1 asked you to assume, and that is the res- 5 *3 iV-H1.' 'lr"VTC'l^"L. O f1 > '*v*J son I am'going back tothis. I haveaaked you to assume and 6 J* -41 ' , J. I I , / * ^ -Id i* \t j t ^^ ^* \ 1 H/, j 1 ^| j *n 'i the Court has ordered you to assume it does. 7 7 hj. * HR' MUSGRAVEC" You just asked him' if in his opinion, 8 9 Hr. Carr Cf v";/^'V .j f- y --- .j- r .1 ... - 10 Q (By Mr. Carr) I am asking you A e t h e r dr hot this V) C. tv/vA ^v.. ;v ..... .. rt ,^.v. * ** 11 has been met when the dioxin level' in that: chemical presents' 12 a substantial r i s & o f injuryto thehealth o f t h e people. 12 -v"-.'<< r, 13 A (By the Witness) You did^ Mr. Carr. "X am wrestling i.5 14 with this the best I can* You are' not following' what I feel }-y ^*y ^ i' 1 ^ ^ pi ./ h * ^ '* i ' ^ /* - ^ - mi%m ,, 15 is the entire scope of the second criteria.1 I think there is i'-i p -'* \wi''j i; f*i* i 1.**c:%-1co ':"jjs2vy J * h - ,*? 16 more to it and so my answer 'is,hot X'think a little more !<< 17 ^ u l d have to be c o n s i d e r e d 1 ,,y !? .2f ii. lie 7 18 Q How, you are assuming that the dioxin in this chemical 1'S 19 is going to injure people. It^is' a Bubstahtialriek^td tdie-^: 19 2 *!',`3, % '2`1,?. < 1 ^--1 20 health. You are^assuming that. Aren't you, sir? 20 21 A Perhaps' am having difficulty understanding yourW H 1 21 22 hypothetical. Xhere must be some method of bringing the v .l/-, .. i ' ii (V* i'' l - . ' - . . I - j k t T< 23 toxicity tbt&e people. :m > j' ^y'j i, . - '4*v i-jt,*fi- '-'iv.v . _ __ _ 24 Q Now, Hr. Park, we have gone through that already;^"That: 24 "rt% f ' * ' ` - V . W j %.r dh i >_*' ' . ji- ':u;v Oi.' ?J:* pcypZ.'. 1 is exposure. You are talking about exposure now 2 A Yes i'k + " ,, fl 1 j ' 'L 3 Q And the EPA says the mere fact that it is in commerce 4 is sufficient evidence of exposure Doesn't it, sir? 5 A Not as applicable to this type of situation, Mr. Carr. 6 1 tried to explain that awhile ago* 7 Q If the people, if the tank car breaks down oh the way 8 to wherever it is going, is there going to be exposure, sir? 9 A There should not be if it is properly handled JO Q Will there be exposure, sir? If properly handled. Is 11 there anything in EPA that says properly handled? Doesn't it 12 say -- isn't the meaning of it to protect the public against 13 the hazards that are existent in that chemical, sir? Isn't 14 that what it ia all about? The entire intent of the Act is to IS protect us if there is an accidental escape or if it does get 16 involved in products that people are going to be exposed to* 17 Isn't that what it is all about, Mr* Park? IS A Mr. Carr, you have asked me about three questions right 19 then. I think the first one was -20 Q Assume if you will that there will be exposure. Will 21 you assume that, please, sir? Assuming that there is exposure 22 is this prerequisite then met when I ask you to assume that 23 dioxin is in the chemical and that that will cause -- presents 24 a substantial risk of injury to the health of the people to whom it will be exposed who will be exposed to that. 1 ' * 11 ' ' p. , ' < ; 'l 1 t, ;j } * ' ' ,- 2 A I .am to xasauste exposure 3 Q Y:es'.y *;? i; '.;,1iy,}-r> * ,--- . 4 A -- to humans. 5 Q Yes. 6 A And you are saying that this product now is of such 7 a toxicity that it presents a substantial risk of injury. 8 Q That the dioxin in the chemical presents a substantial 9 risk of injury to the people. 10 A If the dioxin content .were to be so high? 11- Q That it presents a substantial risk of injury to the 12 people yes. 13 A And there is exposure of people? 14 Q Yes. 15 A X guess so and with those assumptions, X would have 16 to answer yes., . 17 Q And we have already established that the EPA is not 18 aware of the fact that the 24 dlchlorophenol contains such 19 levels of dioxin. Haven't we sir? 20 A Perhaps with someone else Mr. Carr. .21 Q Will you direct.the witness to agree that he just 22 testified before the break that he hasn't notified the EPA and 23 that nobody else has to his knowledge and EPA has never tested 24 any samples? 115 1 X' ,7 . >h- .*1 V1 J\ - \ \l THE COURT:*- C6uld~you phrase an assumption? , ;(r'\ c,.-" , - . thing you wouldVlike jhini>to, assume. - Some.- 3. 4 5 6 Q (By Mr. Carr). Yes. .Will you 'assume, please, ,that y. J , ; V ' ' cW*1' } *i>*'*' ' ./'*' ' 1 .> / , Monsanto has never advised the EPA that,the 2,4 dichlorophenol f %- > ^ Pi - f contains these high levels of dioxin, that the level is at _ ( h^ _ ' * -. " > *r such levels that it may be injurious to,the health? Will.you *7 .. assume that, sir?. 8L MR. MUSGRAVE: I object to that, Your Honor. Number 9 ' one, it is not his'prior testimony. He has previously testi 10 fied to his knowledgey There has been no notification under 11 1 8E with regard to dioxin and 2,4 di;and Mr. .Carr Is now asking 12 him to assume a Monsanto product that has high levels that 13 are injurious to health and that.is not in evidence. Those 14 are ultimate conclusions of fact in this case for the jury in 15 any event. It invades the province of the jury. It is an 16 ; improper hypothetical. It assumes facts not in evidence.' BAYONNE. N.J. .17 THE COURT: Overruled. It does not invade the pro 18 vince of the Jury. It is a proper, hypothetical with the 19 inclusion of the notice .under 8E and your objection is over :20 ruled.. 21 r Q (By Mr. Carr) Then if that is true, Mr. Park, these 22 criteria have been met, haven1t they, sir? 23 A (By the Witness) The EPA could have been made aware 24 of it, sir, through some other^source. , ' .=> . 116 - ' ' 1 23 4' '5 6 "7. 8 ' fS y ) f ' jV-v-- ; . l - - i v;MR.:CARR:: Your-Honor,*'would you direct the witness ' o -- - --'V ' ,L to answer the question? ,. * , 1- - - 1 1* . , , J ' , ,t " , Li ,! . " . : it,. > `.-THE COURT: Youhave to answer the question as it Is posed- to-you. y;*I ruled? with* the inclusion of 8E notice that i,tL' i >-a'-s *- `f*" ":-k * - ,k v L` . the assumption that is posed to you is correct and It has to, therefore, be accepted.by you. So, answer the question on that basis with thatinmind, Mr [ Park. A (By the Witness). May X ilust point out that the.EPA -- -9. THE COURTi No, sir, you may not. I am directing ', j lO- you to answer the question as.it is posed to you. 11 A (By the.Witness) Okay. All th criteria may not yet ? * . i*. 12 have been met. ; . ?3 Q (By Mr. Carr) And did we meet number one? 14 `A Yes .we met number one. 15 sj 1.6 17 Q Did we meet number two? - ( v* A Oh.the basis of the assumptions, yes. Q Did we meet number three 5 18 A That Is the one that I; sqld may not have been met. 19 .MR. CARR: Your Honor, would you direct the witness 20, MR. MUSGRAVEi He assumed your fact, Mr. Carr. Now 21 you asked him whether it's been met and he said no. 22- MR. CARR: Now tie Is quarreling with it. He is now 23 saying that it may have been met. 24 MR.. MUS6RAVE: You are quarreling with him, Mr. Carr. BAYONNE. N .J . 0 7 0 0 2 . *% ; in - . . 1 You are arguing with the, witness;^ ]% 7, .THE:COURT":> Well , I am ;not really clear. Co^ld the >- <> ' r '\ . ' _ '. ` 3: two of you"approach the bench for a minute, please? ti 4 (The following proceedings were 5 tj Had at the bench outside the 6 hearing and presence of the ` ?- .V - - jury.)' 8. ` THE COURT: I may have lost him partway in one of . ' 9 his answers. He said that one and two were met, but;not threef 10 ,, MR, MUSGRAVE: .Yes Mr. Carr asked him to assume a 11 fact. assumed it and then tie said is three met and he said 12 nO. - 'V L' J 13 THE "COURT;* Okay. I know what went up to that. 1 14 just .wanted the last. He drops his voice so such I had , 15'- trouble understanding the. last thing that he said. Okay. Why .16 don't you proceed then? 7* 17 (The following proceedings were 18 had.in the hearing and presence 19 .of the. jury.) 20 Q (By Mr. Carr) To .your knowledge, Mr. Park, has any* .21 body informed the EPA that your 2,4 dichlorophenol contains, 2 2 : these levels of dioxin? ' '* 'k 23 MR. MUSGRAVE: Under 8E, Mr C.rr? 1 n. 24 Q. (By Mr. Carr) " Under 8E. ' P E N G A D .CO B A Y O NN E ' N*J< 118 1 A (By the Witness) No. 2 Q Then these criteria have been met to your knowledge. 3 Isn't that correctsir? 4 A Mr. Carr, I was just saying EPA might gain the knowledge 5 through soma other source. ' ' 6 Q You have any knowledge of that, Mr. Park? 7 A No. 8 Q Then to your knowledge these criteria have been met, 9 haven't they, sir? 10 A X have no knowledge that Monsanto notified them. The 11 EPA does -12 Q Do you have any knowledge that anybody else has noti 13 fied them that 2,4 dichlorophenol manufactured by Monsanto had 14 these levels of dioxin in it? Do you have any knowledge that IS anybody else told them that? 16 A I don't. 17 Q Then these criteria have been met, haven't they, sir? 18 A On the basis of that assumption, X would say yes. 19 Q Now, have you at Monsanto relied upon some outside 20 person telling the EPA that your 2,4 dichlorophenol contains 21 hazardous levels of dioxin? 22 MR. MUSGRAVE: Same objection; assumes facts not in 23 evidence. 24 THE COURT: Same ruling. It is overruled. 119 A (By the Witness) For what? 1 t Q (By Mr* Carr) For an 8E notification. 2 A Oh* No, we haven't* 3 j --'r -- ' * v- r 'j.`'-i ,l0 ^'i-v ' - . -'i *4""i2*otxC. Q Or to give them knowledge that your product contains 4 these high levels of dioxin? 5c r"T.' `'.T.Vi A We have not relied upon someone else to notify the EPA. 6 6 , oj -, UvjSl "Uo ZTA ?o Q And you haven't notified them? 7 7 ; IjC 1* t h o y c b ) r ' r i r t o 8 A No* The EPA may have generated this Information them8 r'- {V-y -V* C-^rrr} i. 8:2 r-Mt g g Ags Ac-:; y-r selves. 9a f:' , bcrl:, ccn 3-? 'fov.'-- r en yenr X ga 10 Q Now you are speculating again, aren't you, Mr. Park? 0 *.-Ct. -- *- - . V n A X have been speculating the whole time. n 2. of vctoS:. 12 Q And you have no knowledge of that which you are specu- [2 AOUAZs i>. a &n Ci/rectJ ^ you to tocovz 13 lacing about* Isn't that correct, sir? 13 *: 14 A That is wrong* X do have some knowledge of the EPA 14 T:t?\ j /A A /. n o t zsi&ro tbr<: Lc:ct c j c n o t v v o l 15 research capabilities* 15 VJS, CvSrVT; r,'e you ci!A rooto 16 Q EPA does know that 2,4 dichlorophenol produced by )6 t-CL V^SobJ^bil? \-o yovi fcov to o y i m u Z t c o i n 17 Monsanto contains hazardous levels of dioxin* Do you have that 17 * : t'h . L* 18 knowledge? Where is it? 18 SUE roa X eo on* I sa Z cm z z y l v $ 19 A X have knowledge that the EPA researchers know a great 19 i'o c , n?.co r 0 '2 it e 2200 deal about the different processes in use in the country today* T uS COAAX ; (V r. you tood l i . hauU c.\:.tap p lc iv s n y 21 Q Mr .Park, will you tell me wherein they know this batch 21 v-~~g cic1oa r.cc.1**} 22 of 2,4 dichlorophenol contained these high levels of hazardous I7 4* > A i% - rV* Vjitaooa) J. cm* r ite m `c o o t l\ s EAA \wn 2U3 tetrachlorodibenzo dioxin? - Js "\ \ 1 .`1 rVri ' ..<-yr-'-i;* ,~r. ^',''1' ^ >-G 'i---f-.-'H 2244 A Which batch? Q; (rj*? Oarr' At n cotCor o X-jr* iu 120 1 Q Any batch, sir.. 2 MR. MUSGRAVE: Object to counsel's inference that 3 any batch contains high levels. It is vague and indefinite 4 and it is counsel's. testimony. - T' x f r\ % '1 , 5 THE COURT: Overruled. 6 A (By.the Witness) It is my assumption that the EPA is 7 aware they chlorinate - 8 Q (By Mr. Carr) X am not asking for your assumption. 9 Mr. Park, we can go forever on your speculation. I am asking 10 your knowledge, sir. 11 A Knowledge of what, Mr. Carr? 12 THE COURT: Mr. Park, I am directing you to answer 13 the question. 14 THE WITNESS: Did I not answer that last question? 15 THE COURT: No,, sir, you did not. 16 MR. MUSGRAVE: Do you have the question in mind, 17 Mr. Park? 18 THE WITNESS: No, I do not. X*m sorry. X am trying 19 to reconstruct it. 20 THE COURT: Can you read it back once, please? 21 (Question read.) 22 A (By the Witness) X don't know that the EPA would have 23 been informed about the erect contents of each batch. 24 Q (By Mr. Carr) As a matter of fact, Mr. Park, isn't it N 121 a fair state^nt that, you and others at Monsanto believed that 1 If you liquid inform the government agencies that there were 2 levels, .part sfper trillion ybi: quadrillion or whatever, what* 3 - i; <:^* +<-`V*j -4\ s- : ever level that you were afraid that If. you Informed the .. 4 government,that: some hb\?;;or another this would get out to the 5L 6 7 ' .public end the press would learn about it and print it up? ,. ,. >" r * i` \ . ' ' ^ i i J : - > i.* i i \J i ^ A `Absolutely1not. A - * 1"` ' - 8 .'(Plaintiff's Exhibit Mo. 1295 \ 9 was marked for identification.) 10 Q Handing you what has. been marked Plaintiff* s Exhibit 11 1295 `and ask you if you recognize that as a memo prepared by 12... 13 : you at'the same time you were.considering notification to the * *' ^ < i. 'C . . EPA as we'have just discussed on June 11, 1979? 14 .. MR,MUSGRAVE: C a n I take this down so I can see the .15 witness? :;: ' 16 MR.' CARR: Surely*. Does it bear your signature, 17 Mr. Park?- .. .r . 18 A. (By the Witness) . Yes. This is a copy of my memorandusL. 19 -It was later than this other event. \ lfr % _ V- J ^^ 20 MR. ?CARR: Offer this exhibit Into evidence if it 21 ^please the Court. 22 1 MR. MUS6RAVE:.,What' is :the number on it,, please? 23.- :THE COURT: ',1295. *; " V 24 MR. MUSGRAVE: No objection, Your Honor. BAYONNE. ,N.j, 122 1 THE COURT: Admitted without objection.. 2 Q (By Hr. Carr) Now, Mr. Park, this memo that you pre 3 pared on June 11, 579, did you not say relating to the news 4 media infatuation with dioxin that, "It is a contaminate in 5 some products and in some instances is highly toxic, but this 6 does not mean that an all-out effort should be made to detect 7 extremely lowlevels of dioxin in a product after it has been 8 determined that any dioxin present is less than the highest 9 non-hazardous level.M 10 A (By the Witness) Yes. 11 Q And did you not conclude on that page with saying, 12 "I am afraid that disclosure to governmental agencies or the 13 public that a contaminate has been detected in a product at 14 parts per trillion or parts per quadrillion levels far below 15 the non-hazardous level will merely add fuel to the media fires 16 which already burn furiously.11 Didn't you say that, sir? 17 A Yea, X did. 18' Q Now, Hr. Park, has not that been the policy of Monsanto 19 with relation to reporting the existence of TCDD or any other 20 dioxin in your chlorinated phenols from that time to the pre 21 sent time? f 22 A Under 8E? 23 Q Under any policy, sir? 24 A It has not. This merely expresses my view. 123 I Q Do you know o any single instance when the EPA has 2 been notified from June 11, 1979, to the present time that 3 dioxin is present in its chlorinated phenols at any level? 4 A Offthe top of ^my head, 1 am not aware of any. 5 Q How far up the corporate ladder did your recocsnendatioti 6 as contained in 1295 l a( bout pub, li\c disclosure go? Who is 7 Callis? 8 A This has nothing 4to do with -- 9 Q Who is Callis? 10 A This has nothing to do with reporting whatsoever, Mr* 11 Carr. 12 Q Who is Callis? 13 MR. MUSGRAVE: Well, I would request, Your Honor, 14 that Mr. Carr's statement then before the question, who is 15 Callis, which is a statement and an improper statement be 16 stricken and the jury Instructed to disregard it. 17 THE COURT: Overruled. 18 A (By the Witness) Callis at this time X believe was a 19 director of Environmental Operations. 20 Q (By Mr. Carr) And who is W. p. Carpenter? 21 A X believe he was also a director of Environmental 22 Operations. 23 Q Who is 6. L. Jessie? 24 A X believe that at the time of the memo he was -- X may rj\ 1 be incorrect about some of these* I am trying to think back ,five years, but I believe he was on the Environmental Policy 2 staff with responsibilities for hazardous waste disposal. 3 ,Q We know who J . P . Mieure is. Who is W. B . Papageorge? A' ' j. ,p' J J\ K^ ^} ` k ,1 f: V's rl ' ' k 1 -L. S A`- I believe [he was also, a director of Environmental i.'v/ i.V'i' v <' iw';i v.- . .r >' 6 Operations. .... .^ - ;u;? JSy / " 7 /-- 0 * 4\` -/ ., - -' ' 7 Q -And we know who' Or. Roush is and we know who Dr. -J D. 8 \Wi[lson 'isif.;*j-tDo!;'(yi*oJ'u;.knohwj:(\wtho else^ besid'es those a-nd Dr. Pag'et ? is mentioned as. well. Who else besides those people got a ^ 10 copy of -this memo? ;; 11 A r have ho idea. You have read the names of those 12 listed on it; 13 Q Do you know of any public disclosure, not just to the 14 governmental agencies, of any public disclosure from that day IS to the present time in which Monsanto said publicly we have 16 dioxins in our products; in our chlorinated phenols? 17- A l ean certainly recall times, when we have provided 18 information to the public about dioxin* 19 Q I understand that*, I am asking you specifically have , 20 you ever told a governmental agency -- I have asked you that 21 before. Have you e v e r t o l d t h e public that the products, the 22 chlorinated phenol8 produced by Slonsanto from June 11, 1979, 23 to the present time contain dioxins! 24 A I believe we did Inform customers of some products. 125 1 Q What customers did you Inform? A I can't recall right now 2 Q Is there a single letter that you know of that you sent 3 to a customer? Did you notify the people that made Lysol? 4 5 A. 1 wouldn't be aware of that* Mr. Carr 6 Q Then if yeti are not aware of it, Mr. Park -- 7 A I would hot be involved in the actual letters. 8 Q Because I am telling you we have never had produced to 9 us such a letter* ' '' 10 A I was trying to answer your question. 11 Q My question is, to your knowledge. Do you have any 12 knowledge at. any time with one exception, Diamond Shamrock 13 when they wanted to go to Ganada and Canada has got a require 14 ment of either 10 parts per billion or 1 part per billion. 15 Diamond Shamrock then asked you the dioxin content and you 16 informed them at that time. But other than that one exception 17 when they came to you and gave you a direct question from 18 June 11, 1979, to the present time, have you informed any 19 customers? 20 A That really is not in my area of responsibility and I 21 am not aware. 22 Q Then you have no such knowledge? 23 A That is right. 24 Q Do you have any knowledge from June 11, 1979, to the 126 1 present time that any customer, any governmental agency or 2 the public has been Informed that your chlorinated phenols 3 contain dioxin? 4 A 1 have no personal knowledge 5 Q Did anybody write a memo back saying we Are not going 6 to follow this policy, that we are going to disclose to the 7 governmental agency, we are going to disclose to the public, 8 we are going to disclose to the customer? 9 A This memorandum does not recommend against disclosure 10 at all, Hr Carr. 11 Q Could you answer that question, please? 12 A But you are implying something -- 13 MR MUSGRAVEs Object to counsel's characterization 14 of this as a policy. This is not a policy. It has not been 15 identified as a policy 16 A (By the Witness) It is an analytical policy is all. 17 THE COURT t Overruled. 18 A (By the Witness) There is no recommendation against 19 disclosure here, Mr. Carr. 20 Q (By Mr Carr) I fim sorry. 21 A There was no recommendation against disclosure here, 22 Mr. Carr. 23 Q That is not what 1 asked you, sir. Mr. Park, you know 24 what 1 have asked you. L >, ; 127 ; ; 1 A .1 am so sorry. Would you mind repeating the question please, sir?> \2 J* Q X will; Mr. Park. Did anybody write a memo suggesting 3 that what you recommended or stating that what you recommended 4 -- t " r % ,,i in this memo should not be followed? 5; A -I am riot aware :of a meinb/ but I am aware that my, 6 l' recommendation^ was not followed' by the company and what X 8 1 objected'-toV/r^ '*- ' .9 , Q, Mr. Park V/ > f: r * ;* fn''M ' .'7. * ' 10 A Ys; : 'V ' ' . ... ; - \ . r. *' * 11 ^ Q .You. are recommending against disclosure to the govern*- 12 mental agencies and to the public and you just stated a moment 13 ago thatyou don't know that,the governmental agencies were 14 ever advised,. You don't know of any customer that was ever ,15 advised and you don't know of any public disclosure. And you 16 don't know of any memos that came In reconmending against it; 17 recommending against that what you said. Isn't that correct. 18V sir? Hve I properly stated what you said? \ 19 MR. MUSGRAVE: Object to the-question. It has got * , *s ' u 20 about five .questions1In it and also misstates the witness's RENGAD l C 21 r prior testimony.- - ;. 22 v TH COURT: Overruled on both points. 23 ' A (By.the,Witness) I don't think 1 said quite that. '4 This has no relationship.to chlorophenols or dioxin. r - . . . \ '1 128 -V, ; . ^ ' 1*' *' i , `-'N i` ' 1 Q (By Mr* Carr) Mr. Park, 1 am not asking you that. 2 A Mr. Carr, let me Just answer your question. While 1 ' -r \t - 3 ' am not aware of any memoranda objecting to what I said,, none - ' , 1 V. , ' _A 4 were necessary. What I suggested was not followed by the . 5 conq>any.\ \ / 6 ,Q t,1-am not. even;asking idiether or not you believe one j. . ''' '* ";.1jL '* "* ' ' ' ', l- - - * v-: .*, -<^ C\ . - v - , 7 Was necessary. v All 1 am asking for Is a simple fact, so that 8 ' we can deduce from- that fact what' Indeed took place. You said ij,'1 -i - ;` - ,_ 9 that the company did not follow this policy is what you said. 10 A pld> not follow my recommendation. 11 ; Q Did not follow your recomnendafcion. But X have asked 12 if you have any knowledge of any public disclosure of the .. 13 dioxins either to the customers, to governmental agencies or 14 to the public and you said you have no such knowledge. So, 15 it would appear that what you said should be done was in fact N Z 1* 1 , * , 16 ; followed,,doesn't it, sir?! s, J \ 1 ' 17 . A No, it doesn't, Mr. Carr. ,, - 18 Q You know that dioxin is present. You have seen the 19 memo. You know the dioxin is present in the product. You knov| 20 that, donft you, sir? '\ 21 A. Apparently so. -... 22 Q And this information to your knowledge until we dis 23 closed, it in this Court Room, to your knowledge was never made 24' public, was it, sir? ' PENGAO CO.. BAYONNE, N . J . . 0 7 0 0 1 FORM 'L L 24 8 129 i, r1 2 A I don't know,. Mr. Carr.'v \ ; . , j . * - Q As, a matter of fact, you know that when OSHA came in and discovered It in a product that, was spilled on the track 3 that Monsanto took great pains to .deny that it was there, even 4 though they knew that ;it was there. ,Don't you know that, sir? 5 . - MR, MUSGRAVE: 'Object to that, Your Honor. That is 6 counsel's testimony, characterization improperly done. 7, i ObJect: and;request ;that,.it be1 stricken and the. jury instructed 8 9 to disregardsit \i"_*-KVt r\, j j * 'i .1 . . ; , . f r Yo " 'THE COURTi Overruled. n 12 . A (By;the'Witness)$iI han't recall the wording of any Monsanto statements about that right now. 13 Q .(By Mr. Carr) And you do know.that your counsel filed 14 . documents under oath i n t h e fall of 1983 denying that dioxin, 15 was present in the tank car, the 2,3,7,8 TCDD was present in 16 the tank car that spilled in Sturgeon. You know that. That ; 70RM tL= 14 B 17 was four years, nearly five .years after the spill. You know BAYONNE, N.J. 07001 18 that, sir, don*t you?. Denied tinder oath that it was in the 1 1* - , , ` y "_ * 19 tank car when they knew it Had been sent to Rappe and Rappe ' 20 had said there was 45 parts per billion 2,3,7,8.: They filed 21. documents in this Court swearing under oath that it wasn't . 22 true. The :l*awyers did that. You are aware of that, aren't 23 you, sir?; ;r , 24.' A Mr. Carr, I am not. This,i s ,far and away my .closest ., y i 130 1 involvement in this matter. l am not aware of. other things 1 2 that went on In connection with the lawsuit* 3 Q And what I am. telling you now that your attorneys 4 swore under oath that 2*3*7,8""wasn'tin that tank car, that 5. the first time they admitted it was .there it had been found t ' '' -* 4' * 6 by Dr. Rappe, was in this Court Room and they said before this 7 - jury, well, for the purposes of this case they, will say .8 they sdil admit that it was in?there. Is this the first you 9 ib . 11 12 have learned of that? ft * 1 iT*ii A ;I don't recall having.:heard that. t^ 1 . -Q,-Mcv:Park rp ^ _r,.v ... -t.-v "* -, , !,; ' v * 1 1 ' v - . ' "i. ^, MR. MUSGRAVE: I object to this as irrelevant and 13 immaterial to the cross-examination of this witness, Your Honoif. -14 This, is going nowhere. We are just wasting time with this. . 15 ,THE COURT: Overruled* It is proper cross-examination 16 in this part of the case;* . 17 Q (By Mr. Carr) Do you know how far up this apparent 18 policy of no disclosure -r do you know how far up it goes? . * \ ^ ' l' 19 Does it go to the President of Monsanto? V' - 20 . I4R.MUSGRAVE: Object to counsel's characterization 21 of something as apparent policy. ; 22 THE.COURT: Overruled. 23 Q (By Mr* Carr) What I have explained to you, you 24 haven't, said it to the public. ,You haven't said it to the BAYONNE, N .J . 0 7 0 0 2 FORM IL J A B 131 I customers. You haven11 said.It t o .the governmental agencies 2 You haven't seld .lt in this Court Room. You denied It every where. How far up'does It extend? 3 4 A (By the Witness) There is certainly no; policy of 5 over-up that I am aware of, Mr. Carr. 6 Q Well, if it is not a cover-up, is It a policy of dis 7 closure? ' 8 A 1 don't know what, policy you are. speaking of. u:-'r, .`.-V' -f, ,';lF , r,;.., ; ' '* / \ ` 9 Q Would you say documents filed in this Court Room where 10 they refused to adit th^ truth of the factthat 2,3,7,8 TCDD 11 was in that tank car would you say that is a coverrup or is . 12 V ; t' r *V J i ^ that a disclosure?' n t' vJ.S v. m 'K : '' ' -TJ 13 MR. HUSGRAVE: 1 object to that as an improper ques 14 tion, Your Honor, phrased only for inflammatory purposes and IS 1 object to it and request that the Jury be instructed to die- 16 regard it. 17 THE COURT: Overruled; 18 A (By the Witness) I have no knowledge of, Mr. Carr, of 19 what has gone, on in the trial of this matter. 20 Q (By Mr. Carr) At the time you. met in May of *79 to 21 consider the 2,4 dlchlorbphenol product, were you Informed or . -i * 1 . '_ _ , 'i 22 did you know that your chemists had stated that the 2,4 dlchlbr^ 23 phenol may contain hazardous dioxins and furans? Did you know -i -24 that, sir? *F *" ,, ' 132 A I 'would have to rely bn the minutes of that meeting. 1 Q Did the minutes of that meeting reveal to your TSGA 2 Consulttee that Dr. James D. Wilson knew that the DCF may con 3 tain hazardous dioxin and dibenzo furans? 4 A At what concentrations? 5 Q Don't care. Hazardous. At whatever level meets the 6 definition of hazardous. 7 MR. MUSGRAVEi To whom, Mr. Carr? Asking this man 8 9 to set that level? r- - Q (By Mr. Carr) Did Dr. Wilson inform the committee 10 , * . * * ? \\ 1 ` (t*`; ` J : 11 that the 2,4' dichlorophenol contained, may contain hazardous 12 chlorodlbenzodioxin? .w ,w , - , :J ,j 1 * \ 7 \ -, r'f i . * 13 A (By the Witness) 1 can't recall the specifics. 14 Q Does it appear anywhere in your minutes that he infor IS you? 16 A Now, which particular meeting? 17 Q The meeting dealing -- that we have been discussing 18 L on May 11, May 22 and June. 19 A May 11 and May 22. 20 Q And your June memo. 21 A Which June memo? 22 Q Any June memo that you may have. 23 A 1 have no June memo relating to the dioxin. 24 Q Well then, please answer in accordance to the memos 133 that you do have* You have got a June 6, 1979, memo. J Plaintiff's Exhibit 1275. 2 A Yes* 3 Q That is in June, isn't it, sir? 4 A That relates to the May 11 and Hay 22 meetings, 5 6 Q Yes, indeed it does. Did Dr. Wilson mention to you as 1 have stated that the 2,4 DCP may contain hazardous 7 $ chlorodibenzodioxins ? 9 MR, ;MUSGRAVE: Some I think it says, if you are 10 quoting what Dr. Wilson said, Mr. Carr. 11 MR. CARR: Hr. `Musgrave, 1 would appreciate it if 12 you would let me ask my questions and you may ask yours. 13 MR. MUSGRAVE: Well, if you are quoting what Dr. 14 Wilson said, you are misquoting him. 15 MR. CARR; If you are telling the witness now that 16 I have a document in my hand -17 THE COURT: Gentlemen, that is enough. ]'8 MR. MUSGRAVE: I am objecting then, Your Honor, to 19 counsel's misquoting a document. 20 MR, CARR: Your Honor, I am not even attempting to 21 quote. I am asking whether or not Dr. Wilson told him. 22 THE COURT: Objection is overruled. 23 A (By the Witness) I cannot remember the specific con 24 versations that took place at these meetings. 134 1 Q (By Mr. Carr) 1 understand that. You don't have, any 2 memory of it other than what is in your memos. Is it men 3 tioned in your memos? 4 A I don't see that mentioned. -1 don't see that men 5 tioned in these memos. 6 Q 1 will hand you now Plaintiff's Exhibit 1243 dated 7 April 10, 1979, a good month before your initial meeting on f ^,, > .; 8 May 11. . Did Dri Wilson tell you that one lot of 93 per cent 9 DCP may contain .some hazardous; chlorodibenzo dioxins and 10 dibenzo furans? 11 A Well now, our minutes do. indicate that it contains 12 1 to 4 per cent 2,4,6 trichlorophenol. 13 Q That is not dioxin, is it? 14 A No ' is Q Could you answer my question then? 16 A I 'm sorry. Let me read this memorandum then. Can you 17 point me to a specific reference in here, Mr. Carr. 18 Q There isn't any reference in there. I am asking you 19 for your analysis if there is any statement at that TSCA meet 20 ing, any of the memos relating to the TSCA meeting that he 21 informed you that one lot of DCP may contain some hazardous 22 chlorodibenzo dioxins and dibenzo furans? 23 A I don't see a statement in.here. But that doesn't mean 24 that he would not have mentioned it during discussion. 135 Q You have no recollection of him telling that 10 to 200 1 2 parts per million were present in the para-rich cut and DCP samples. Do you, sir? 3 4 A X cannot remember that during discussion* 5 Q 200 parts per million is very high, isn't it, or is 6 it in your judgment, Dr* Park? 7 A It would depend upon the substance, its use* Could 8 be -- 9 Q I am not asking you that* 200 parts per million. 10 Have you heard of a product of chlorinated phenol that contains 11 200 parts per, million? 12 MR*1MUSGRAVEs Object, Your Honor* Para-rich is 13 not a product. Mr. Carr knows that* 14 MR. CARR: Would you read the entire sentence, 15 counsel? Xt says, "Para-rich cut and DCF sauries, levels of 16 10 to 200 parts per million were present in the para-rich cut 17 and DCP samples." 18 A (By the Witness) Can you point out where it is in the 19 memorandum, please? Am X to read it? 20 THE COURT: Go ahead* 21 A (By the Witness) "Higher," this is a memorandum -- 22 THE COURT: No* No* X thought you meant read it to 23 yourself* 24 A (By the Witness) Oh, I'm sorry. Yes. 136 THE COURT: Take a minute and read it to yourself. 1 1 mlsunderstood what you were asking. 2 A (By the Witness) Okay. 3 Q (By Mr. Carr) Now, Mr. Park, you know at this period 4 of time that Monsanto was testing the chlorinated phenols, all 5 6 of the chlorinated phenols because of what It claimed to be 7 was its surprise. You know that, don't you, sir? 8 A I don't know that I am fully aware of that, no. 9 THE COURT: I didn't hear the last thing. 10 THE WITNESS: I am not aware of the testing that 11 Monsanto was doing at that time. 12 THE COURT: Please try to keep your voice up. 13 Q (By Mr. Carr) Don't you think it would be Important 14 to your committee, to you as one of the persons responsible 15 for making the decision of whether or not the EPA should be 16 notified that you should be told that your DCP contains these 17 hasardous levels perhaps up to 200 parts per million of dioxin? 18 MR. MUSGRAVE: Object to counsel's assumption or use 19 of the word hazardous levels. It Is counsel's testimony. 20 MR. CARR: I am using the words Dr. Wilson used, 21 Your Honor. 22 THE COURT: Overruled. 23 A (By the Witness) I think our committee should be made 24 aware of all Information of Importance. 137 Q (By Mr. Carr) And la that fact that the DCP has got 1 dioxin at 200 parte per million at that time, it was being 2 manufactured in early 979, is that important? 3 - - -* % *1 A Mr. Carr, not being the author, in fact this is the 4 '1i first time I can recall having seen the memorandum. 5 Q My question is, is that important. 6 .* . > f_ t( A It may or may not be. 7 Q I understand it Is the first time you saw this docu 8 ment. 9 10 A Yes. It may or may not be. In fact, this sentence 11 could be read to say that the 200 parts per million were pre- 12 sent in the para-rich cut. Whatever that means. 13 Q How can you read that to say it was present in that 14 cut? Is there an "and" in there or not? IS A Yes. 16 Q And does the word "and" mean that it relates to that i 17 which precedes it? 18 A The "and", it means that these two different things 19 contain a number of different levels. 20 Q When I say that I give my children or my child, Glenn 21 and Rex, Glenn and Rex their allowance, do you understand that 22 I would be telling you that I gave an allowance to both of soy 23 children or all five of my kids, If I said all their names? 24 A No. But if you said I gave Glenn and Rich a baseball 138 bat and baseball glove, 1 would assume you gave one the bat' anc 1 one the glove. 2 Q Yes, but Dr. Wilson didn't say that, did he? 3 (Both counsel and the witness spoke 4 at the same time making their remark 5 unintelligible and not reported in 6 this record.) 7 Q He said 10 to 200 parts per million in the para-rich 8 cut and the DCF samples, didn't he, sir? 9 MR. MUSGRAVE: May I -- just a moment. I would like IO 11 to object to counsel continuing to have this witness inter 12 pret a document and1what somebody meant by a document that 13 this witness is not the author of beyond what the words say. 14 The words: speak for. themselves., If he is not the author, he IS is not qualified to go into the mind of the author to say any * '' 'M t ", X '' t ^- 16 more than what the document says. The document speaks for 17 itself and I object. 18 THE COURT: Overruled. 19 Q (By Mr. Carr) It does use the word "and", doesn't it, 20 sir? 21 A (By the Witness) Yes. 22 MR. MUSGRAVE: May this be a continuing objection, 23 Your Honor? 24 THE COURT: Sure - 139 1 Q (By Mr. Carr) Do you believe, that itwould be impor 2 tant to you as a member of that committee when you are dis 3 cussing whether or not to notify the EPA that It contained -- 4 was it ..important that you knew it contained levels of dioxin 5 _ up to 200 parts per million? .6- .A (By .the Witness) 1 note that these are the mono, di <i L " 1 j. L,"' 7 and tri hot the tetra. I guess as member of the committee 8 I would like to have ail available important information. 9 Q 'And when you concluded that you should hot notify the 10 EPA, you didn't have a single bit of information, did you, sir, il that the 2,4 dichlorophnol contained any levels of-dioxin? 12r Isn't thatcorrectj sir?? / t ^ .1 > * *; . '(-V-, '; !r Av *;1 - - ., t .v ` \ ' ^ -t 13 1'MR; 'MUSGRVE': You mean him or the committee, sir? % s - V r\ : ;V>. ` , ' 14 J ^ CARR; , He and the'committee as reflected from ; .Vii -V \ -*t 't ''.1 t -' ' .' -' - -, .15 your minutes and your notes. .16 . im . i'^MDSCRAVV" W . U , Mr.; Crr, .the Exhibit 1243 was 17 shown as going to Mr. Callls or pr Caille who was present at 18 the meeting/ He would have received it in April of l79. Cer 19 tainly had it before the May meeting. 20 .MR.v CARR: He sure should have had it. 21 MR* MCSGRAV;. He sure should have* 22: Q (By Mr. Carr) Mr., Park, do you believe that the .23-, committee decided at that time not to notify the EPA knowing '24 that the DCP: contained 200 parts per million? BAYONNE. -N.J, \ ` . r_ ' Jk ' ,V' '* 140 '; 1 A (By the Witness) 1 really cannot recall all of the ' ,2 Information that was discussed at .this meeting .. 3 Q Now, yesterday when 1 asked you what levels you would .4, consider significant and hazardous and that needs to be reported, 5 something above trace, you went up to parts per million,.didn't 6 you, sir? I or 2 parts per million Didn't you, sir?" 7 ' A That was not reported* We were talking about what .8 would X consider trace amounts. 9 Q I asked you and if you waht to know specifically X < 10 -asked you what you;would consider of. significance and you said 11 that is of significance which is above, the level of trace* .1? . And Iasked you wiiatNis..trace and you went up to 30 parts per ` \1. - a - , `>;-=<"* ''i f * V *- ' i? '- 1 -* 13 million* 'Didn't you, sir? \ . r 14 A I, think If said; 30 coUldi be, yes* '-'Vs-: i.'t' t,- -w*-. - v - ,. IS- Q Now, this document mentions 200 parts per million 16 which is\ai lot inore tftan30 parts per million* .Isn't it, sir? -17 A 200 .1s more than 30. -18 19 20 21 22 23 24 ,Q A lot more than 30, sir. Isn't It, sir? A Pardon? .1 Q It is-a lot more,t:han.30', isn't It, sir? A' Yes* ,. ' - ;3'L' v - -- /'. Q Arid It is significant then.' Isn't it, sir? A It might or might not be In a given situation. Q It meets yur definition of significance* But you did not BAYONNE, N.J. 0 7 0 0 2 FORM AL 24 B * 141 ] report that to the EPA, did you, sir? 2 MR. MUSGRAVE: Objection, Your Honor. Mr. Garr hasn't established 200 parts per million in any particular 3 4 product. This document 1 believe refers to still bottoms, 5 para-rich cuts, things that are not product. If he wants to 6 show us where it is 200 parts per million. 7 TEsC0URT: Overruled. 8 MR, MUSGRAVE: It is misleading the jury. Well -- . 9 A (By the Witness) There is apparently no basis for IP reporting that information to the EPA.. 11 Q (By Mr. Carr) You say apparently. Did you discuss 12 this at your meeting? * 13 !_ rn A I /do hot remember whether we did or not. 14 Q Is it mentioned in your notes that you discussed it? 15 A ;I don't see, a reference;to that specific information 16 In the notes. 17 Q Doctor, insofar -- I'm sorry. Mr. Park, Insofar as 18 this meeting was concerned, were you apprised of and were you 19 aware of the fact that 250 parts per billion, not million, 20 parts per billion of dioxin Is sufficiently toxic that the EPA 21 should be notified? 22 MR. MUSGRAVE: Which meeting are we talking about, 23 please? 24 MR. CARR: The meeting in May of 179. .* - ' U2 . r' i ^ A (By th Witness) X don'trecall that. Q (By Mr. Carr) / When did you first learn that 250 parts 2' per billion is considered by a company toxicologist to b 3 level that should be reported to the.EPA? Total dioxins, not 4 > just tetra.' 5 - A I am not sure I understand your question, Mr. Carr. 6 Q Isn't.it a fact that your toxicologist advised you 7 that polychlorinated dibenzodiokln.contamination of 250 parts 8' ?' per billion in a product should be reported to. the EPA? 10 A When did that occur? H / Q My question is, isn't It a fact that he advised you n of that? - ;, ' 13 A 1 cannot recall an Instance directly on point.' I guess - , n -'I;,j> \ r '- ': i 14 X canc-- rii'-^. *t- , .v `1. "*; - ..v v *.''** '' * is' Q ,I will .help.;you in a; moment. All right. Mark this, 16 please, - an exhibit. . V ' 17 THE COURT: Befr^w get into that exhibit, is this 18 a good point to take a break? ... . BAYONNE. N.J. 0 7 0 0 l : 19 ' MR. CARR: 1Yes, Your'Honor . 20 L THE COURT:. Ladies-.and/gentlemen, we will take about 21 a ten minute break and then resume questioning. ' The admonish 22 ments that.,I-have given you earlier will apply during this j 23 .break-also*. . V 24 >* ^ i^ , I` V * -f - (Plaintiff's Exhibit No. 1296 j -, " ; ` i 'O' - ^t; L 1 .Li -L t *` ' ' ',mU` / v ,, '- '' -r . t" i. \ * t * />' ;* . rt" V'L'' - lw " ',,'*,,*'',,X[iyr"/'''/L,'A*;"'t`-.'v>T^V^,,'"'iVf,rij`l-1&J i'y\'<.y-.Ls,X, ;`,"%r.1k^ . - ' ' -, ,,> , t.'* ` s -- J' i .;1 ./ r 7'7'- '2;' I-, ' 7 was marked for identification.). \.r,;^ v vy -r v 'Vr^ '7 iC !v'7'I " .J 7 *,-s /"V ' i (Short recess taken.) ,3 , Q (By Mr. Carr) Doctor, X hand;you -- doctor. Mr. Park, v r m' b -k H >^ ,1 ' ^ur '^' ,, 1 ,-, r * t - kt . : 4 ' there have been so many doctors around I have fallen in the 5 . habit. Mr.; ^ark, I will hand you what has been marked *t - T ,^ ' 61 Plaintiff'Exhibit '. * 1 ", 1296,1"and ask~ you if you recognize" Mr. Nair , n7 . there? Dr. Nair is a product toxicology specialist for ' ;1 . .., . 8s.- *M"onsanto.i. V" ^ f^ *"**^ /, -v/- " i ^r -' . L *,.'L--1 ' \ 9, A (By the Witness) X d o . A c t u a l l y it is Ms. , .. 10 Q Alivright. Offer 1296 into evidence, if it please the v 11 Court. * 'v '7' ' ; / ? - 12 MR. MUSGRAVE May I see^it, please? This is docu- . \ / 13 aent that deals with not evehLa chlorinated phenol and X would 14 object to it as.having no materiality or relevancy and, ahy >;* * ' 1*5* other information in it given the; date of January, 1985, is so ,,A- `j 4.iUO^CE.', - '^ 16/ - +TL` 'remote in time from the date of th spill it has no -probative ; s0f0s- -\._- 17 \ .value of any/issue ih;th^ lawsultV ^ f* * ` r '** ** > ^r r *, \;!V-'y :j J " * BAYKNEl. N.J, ,1. - - -,8 : uZ , % r\ > " MR; *" V CARR: ^ r '* ^ Your ^ . , i Honor, '\ * it ' Jdea'ls with chlorinated i' /. L<fiv ' 19 1 dioxins which is the subject of:,this lawsuit. It deals with O, *O 20 the levels that a toxicologist at Monsanto believes is toxic ZUJ * * ; 21 : for total, dioxins. It is absolutely relevant and material. `.' / -22: '-J, L ;r ^ v 4 "\ it"> ^ \nJr P'*%ss"_^" ^ " >s\c 1 "* - *'jlr, ' - What is toxic in January of *85 was toxic in 1979; / t1 : `23 1[ '' ` 24 /' ' THE COURT: Let nae finish reading it. MR. MUSGRAVE: ! would disagree with counsel's f. * ' v, \ .V -ii'v- i-'* , i :.r- , ' . \;f/ /, ! ... "'ir .L 1'. k , ; J; ;; c " ^ '-7'77,., v V`J/v-;> 1 r\ ' 7/" ' ^ '/ 5? 1\v l-C ,*.. ** r ' 1 **f t w t -- V . ' - J ) ^ '< ! i ) * I 1l i t ^r / l * i v \i` V ' k,<L "* .` '* 144 ir''t'* .T'`rXT\'.\w^ ri*--1X.-."',f s->*-'.\Vi li Interpretation,of what the document says.' Th document speaks 1, 2 ' for.itself. - ." ' " - ' nTHE .COURT: Just a second. Objection is overruled. 3 ' j i, " ,t.,1 It is admitted over objection. 4, 1' * t ' 7 ' i - ^. 1MR..CARR: - Ask leave to pass Exhibit to the. jury$ `5 if it please the Court. 1 6 ;: 7. rTHE COURT: Yes,:you*'aay.` ` - ' i" '8 Q (By Mr;; Carr) Now, Mr. Park,-this memo went to you 9 and othrs who constitute this TSCA.Section.8E Committee, 10 didn?t it,,sir? ' -, j 11 A (By the Witness).. I certainly received a copy of it, u `; "y * - ru * 12 :'yes. - ` . .. ; *v" - ' '/ - . 13 . Q And Ms. -- Dr. Nair is. a toxicologist for Monsanto, 14 is she not?, '^ 15 ' A Yes, she i. > - . 16 Q And she stated on the second page that the average 17 amount'of this particular product --the average amount of 18 dioxin contamination therein was 250 parts per billion. 19 A Average amount, of polychlorinated -- 20 MR.MUSGRAVE; That ;is an ,improper characterization. 21* That is an assumption she; makes giving a. calculation she is .2? making. She does not make that statement in the document. 23 y MR. CARR: She says, "The average amount of polyr 24 chlorinated dibenzo dioxin contamination is 250 parts per billlojn." PEN GAO COr . BAYONNE. NiJ. .. _ . i r*' /* .*v' y.V \ i 't]{j!. tV _i ;i.*' V'1*4"^ J, i.'s>'',V", , V..s ''.' , if_./'>* r:v vs\ L- ; . . - \ .- - - i - :,!{;J,* Vi, V ; S>V ; rf-f. : ^-s -- '*/* - - sv V 145 '/ V.*;.-\*1L 1: , ]Ji\'V"IY^ ,ii* `-^ it' - . , MR, MUSGRAVE: Yes, Mr, Carr, that Is number five. 1 The paragraph starts,. "I have taken the conservative approach ? to determine if .the low levels of dioxins found pose a health 3 hazard* I. have calculated the potential body burden of dioxin 4' . among workers exposed to tetrathal using the following assump -5 tions :M, ,/ 6" , 7" MR* CARR: In the third paragraph on the first page, 'o . f L 9 does It count rip the number of dioxins in sample number five? MR.MUSGRAVE: What are.you asking now? V MR*/CARR: l am asking: whether she referring to th .10 ranges in the second paragraph and the. third paragraph, whether 11 . .or not she refers tb the various ranges of these dioxins.in' 12 \ ' 13 this tetrathal .'product* V Three of the twelve samples that were tested contained.pentachlorodibenzo dioxins and gave the 14 various levels -2 ,\15 tQOi*C. J V i 16 SOr0*' - if i 1 f, is: .V MR. MQSGRAVE: You want to read the levels, Mr ; Carri MR. CARR: Rangie 5*1to 53,0 parts per-billio^n and she gave th.average as 250 parts per billion,did she not, ^ BAYONNE. N.J. T. a 'r 19 Mr.'Park? . 1< , _ L i 4-'. ` jw'a ^ Q 4o2Uf . 20 .21 THE WITNESS :.. She assumed an average of 250., THE COURT: Your objection is overruled* 22 ~: Q (By Mr . Carr) And based upon the average contamina ^ ?3 tion of 250 parts per billion, she concluded, "Since the poten 24 tial calculated dally intake exceeds the virtually safe dose by * ' S.' 1I I\\.j<fl*\J\.1`!4 '.'-,L'1,:fii,;^ ,.. ..ii.v-, - i ,, 4 * "'v.- ' | V'/"> ^ f: : irV4* ^ " / V " " ` . ` ' ` -1 1 i *' ;v"t .3'/ >V">/>' r, -.v>-'-A - ~>-P ' 1,1 'r J "' " '"S." - J ' - ' - * ' ^ /; / v . ;" ^ > 1 Va factor 1,000, I,<feel this .inforination should be submitted " ,, , ' rr' -; - v .* , 1 ./ '-2 to EPA under Section 8E'.of-/TSCA/,r>"/*/ .' " A (By the Witness) ^She did say that, yes, .'3 4 r Q She:0 saying that based upon her calculations as a ' y toxicologist based upon total'dioxin content averaging 250 6' parts per billion* Does she notv sir? -. ; , .7 V ^ "A Well, she saysthat in her memo apparently based upon 8' - the assumptions she has/in her/iaeinov ; 9. Q Doesn't she say,that, sir?. / / , " vv ;' 10 - ' t *. y\ A She .said just what you read there, Mr. Carr. ^. 1 ji r_ ^^ J^ j ^* - 1 ^ ,, J . 'V , . '^ ^ `T " - r ' - fc. * ',..p t *r Q 1 Wad.the EPA - y o u told us earlier yesterday that if, 12 a toxicologistrtold you that 250:parts per billion, because I 1- ' < 1 ' U " m, ' * *" * * 1 i. ` /i . A 13 askedQyou. ' This. was delivered to me: yesterday at 1:30 and 1 -/ 14 leaked you/if that were' true, 250 parts per billion, and you 15 said,"Yes, 1 would accept the word-of the toxicologist." 16 /Did you not, -sir? ' /'/ ' ^ L- , "Vv.^ 17 ` a i d i d . . - '/". - .' . ' / .* 18 - ' Q. Now thie is the, toxicologist that told you and your. ' r ^ o`kT '- ' "* 1 ", -' `T J9`,, conmdttee that 250 parts per billion should be reported to | ' > 20 the EPA, did she not, sir? 21 / A She did.;. "fr% 1 \ V. -r 22 / Q And did you ,report it to the EPA? ^ 23 A We did not. She did exactly what. she should do as a '24 toxicologist. May T /explain a little bit here? BAYONNE, N.J , 0 7 0 0 2 . FORM A r. p N G i ' D ' !C 0 . . -JBAY O N N E V N . J . 0 T 0 0 FORM | L I * B ki 'X'. ` . r; : i ' * k' ' > -f r ;'l * . ***.J--*\ 'v \ "jV .. ' ` , I Jt ` -* p* * r* * t i*- . L il , -* * -,r" - . *. ' / .>- > ' *^*- 'v'^ - r, ;; :-W- : 1* -- / *- j ' 1- ,1 *. ....7...,,",, Q Mr* Park -- I will, askthe Jury be instructed to , 1 ; \ 'v r J ' '7 1 4 ' i H' P i , , ;V ./;> V* ^'` J disregard the latter part of his-answer*. It is notrespqnsive 2 3 to my question* L ..'*'! . . / / I - / .: I'*'-1' ,.7: v -- f' . /' - v / ; . ' : / -, ' ;4 ' % 1 THE COURT::. l agree with you. It is not responsive* *- '?-*'% ' 'i "r 1- % ` / *' , i. ^ 5 ' The jury. is.ordered to disregard it; s 6 Q (By Mr, Carr) Now, Mr. Park, the 250 parts per i. 7 /billion that she considers .should be reported to the EPA is . J 8' .many times less than the amount of dioxin contained. In the r 1- * 'V'- ' 'w'i . rJ . ^ ' 1-** * r ^1 .y 2,4 dichlorophenol or for that matter; in the orthochlorophenol 10. crude*. isn*t/that correct, sir?. V, 7 1 A v ^ B y 1the Witness)^/True. 250>parts per billion would 12 be less than a part permillion. 13 Q The tank car that spilled in Sturgeon contained a v.'v-- l ` j ''v -l ' ' .- 14 total dioxin strike that. The tetradioxin as described in, 15 this particular product as what level and it w a s i n t h e d u s t . 16 Not even.in the product. LWhat: vas the amount of tetre describe >h by Dr. Nair as in the'dust, the-residue of th product? 18 A I think they detected none ;in the product. 19 Q; ,That'^is correct* 7 1 * 5 ^ /; - f..,'- 2 L-A -1.5 parts per billion*^ 7'--7. ^ ; -s'- 21 Q How does that costare vith 45 parts per billion that - -22 w a s ;in the tank car that spilled at Sturgeon? 7 ;, 23 .A' Well, it is ls.; -. r;.`? ^ V, ^ L ^ ^^ ^ F_ lj> . `` . L> J-* .^ \~ L l ', ' 24 Q Significantiy less. 30 .times less, isnrt it, sir? a CO < r, '/ '..r^r 'V *. /. i r' i 2 .3 `4 ` A Yes.- V 1;;; '^ L\--` ^ \L . Q ,30/times more of tetra was ^in ,the tank car that spillec in Sturgeon. - She didn't even take Into consideration the tetra content,>did she, sir, and she, dldn11 even describe it . as being 2,3,7,8. Did,she, sir? 5 ,6 `- ir A Well, it wasn't in the product. ,? ,,"'? *' ` ^ fc*"\ ff j-;0 J/ ' "- J- ' "^ ( i1 Ti' 1 ,- ''V \ ,/ .CJ.-t She'.didn!.t'describe it; as being 2,3,7,8* Did she, sir j '8 '> 0 7 A No,, .she did noi.;, . ;V ' { . *, * . **: . y.~ , .'$<-- ii j . ' `i4>.'> ''- C " ` Bur without the tetra being in the product and only ` 10 ' the lesser toxic; ;diosins being in the product.at the level of . ir 250 parts per billion, she said the EPA should be notified. 12 Didn't she,.Vsir? / .. . , ,. 13 A Yes. She says she feels like this information should 14 1 be submitted. ' L` " ,, 15 ' *- *auo, -16- < oO ' O r ' 17 _( PENGAO CO.i BAVONNE. H .l. uac J ,, T CD Q <: ,, uz * 18 # i9 20 ' 21 Q Because she considers that it meets the criteria that it * *, J the EPA sets put. Doesn't she, sir? * A ,Nov she doesn't,say that at all. Q What other reasbn could she have to report it to the , EPA unless it meets jthe EPA's, criteria? A I `-don't know. ,' '; * 4' r. *" r ** ,, 1 - .-* . * ti Q Who is the person on that cotmnittee other than Dr. Nair 22 charged witlv giving an opinion on the toxicity of that product? 23 1 11 24 A What other person? .What"other toxicologist'on that \ committee? -, j ,, * " * ' -. `^ ,/ - , " nr J L * ' ^ > *L ,^ ^ ;fV . , w ^ V '7:> >yi ',-v/:1 7 V , -.*>/r 1 fst that Dr. Hair is oh the 2 committee, Mr; Carr. X don't think that has been .established A- V'- *;T> 1 `.J"% p S*f 7 'p_^ l' v, 7 " . '.,,l. 3 and I- object to that. 7 ' ',, 7 ^ 7 -7'- : " 4 THE COURT: Objection is sustained. :5% Q (By Mr Carr) Was there a toxicologist on the committee? 6 A 1 .(By the Witness) As X recall you probably have, a copy -7'_.. of the minutes there Mr. Carr. I don't have that in front of Is7 me, but as I recall X Relieve Dr. Roush represented toxicology. 9 Q * DrV Roush is not a toxicologist, is he, sir? He is 10 an M.D.? - '* * V '"V \ 7, 7 /v 1 7- w ;5':; > n ,1 2; 13 A Yeah; Am I correct in that?7 1 am trying to go on my t - i l' 1 t f' - ' - , - 'r ^ ' " * ' "l ' ^ fi ^ <1 - ^ -- - L' F ^ recollection. V- * *f *' . -' r H> _^ ', ri ^ 4 " ' L. ^ ** - r - 1" I ^ ' 4 r* fc - ~ ' Q I can help, you/ l ean give you a copy. I will have 14 ^ is : 16 ' it marked.. _ *- * / 7 7 7 * * A Thank you.. .7 y ,, 7L /. \\ ^ ^ i _ *,, L i> ^ , i 1 <l ` \ L " , l. " - ' ;. - (Plaintiff's Exhibit No. 1297 17 was .marked for identification.) PENGAD CO., B&VONNE, N.J. !8 Q\ Handing you what has,been marked Plaintiff's Exhibit , 19 1 1297 and ask you if you recognize that as a memo to the file; 2 not to the EPA, of this TSCA Committee ? , V 21 k ' A '/Yea/^V; 22 ; ,MR. CARR: Offering 1297. - , ^ 23 , . 1 ' ' 24 MR.. MUSGRAVE: Same objection as before; Your Honor. 'THE COURT: I 'm sorry I didn't hear. . c 14r* -,~ * J .150 'e - i f '' ''^ "4"^ 'iJ".1 1 ME. i> MUSGRAYE;'kV;n^r."'^)'S"r1Lmer.o-;Tbjection as before with regard 2 to Plaintiff''1296. 3 v THE-COURT':* You~ mean 1297? 4 .MR. MUSGRAVE: The same as 1296. 5 THE COURT: Okay. It is admitted over objection and 6 Z will incorporate those objections in the arguments of both 7 counsel. 1 * 8- MR. CARR: Ask leave to pass, this exhibit to .the ,9 jury Your Honor. . r* ^ io . -THE COURT: Yes.;. * * ** 1 \ /ii. .12 ' Q (By; Mr. Carr) : Mow, Mr.. Park, the members of that ' ' f ^ V ' , ' ! . ,r ' - 4' . " U'J \ r ` committee including yourself were C. P. Farley, F. E. Kearney, 13 W. J. McCarville, W. B. Papageorge, Dr. Roush. Were any of 14 those persons toxicologists7 . 15 . ' A (By the Witness) Dr. Roush represented toxicology at -. ^1 1. .16 ` - the meeting. _" - : '17 Q My question.is specific. Are any of those persons s a v o n n e : n .j . 18 . toxicologists? - 19 ' A Dr. Roush I guess was -- filled the toxicologist 20 - function. '' * ' - . 21 Q That isn't rtiat I asked you, sir. I asked you whether 22 or not any of these persons are toxicologists? .23 A Mr. Carr, I am trying to answer. I know the qualifica 24 . ' tions of the other four are notv X guess I am not that deeply 't 151. /' s ; ji.f, ,";t`,'V*'('''v -'V,; >V !iif aV;)'!' -\i*'4o.'.-, , / \f*1 * - `t ; ' L; 1 , familiar with DrV Roush's "qualifications except that he is ver+ 1 >t iiJY? -well quaH,fie<l^^> 2 ,T '"V, W**-e' . ^ . 'r ' Q 1 am well qualified in certain areas but not in ..others* 3 rr"'! vl'Vir L 0 ... You are well'qualified in some areas but not in others. Is 4` a toxicologist?., . : 5 A ; A toxicologist reports to him. 6 MR. CARR: L Your Honor would/you direct the witness *7" to answer this question? . 8 ? A (By the Witness) I don1t know whether he Is a toxicolc 10 . gist or not, Mr. Carr.^ 11 Q (By Mr. Carr) Why don't you, say that, Mr. Park? 12 A I am sorry. .1 thought that' was clear. I don't know 13 the extent of his training in toxicology. 14 . Q What you do know is that Dr. Park is a toxicologist, 15- don't you, sir? 16 A No, he isn't. ' " ' . . 17 _ . MR. MUSGRAVE: She is. \ 18 `A- (By the Witness) He's been trying to train me. ... 19 Q (By Mr. Carr) I'm sorry. . 20 A You said Dr. Park. > 21 ,Q Did I? . I'm sorry. Dr. Nair. 22 A You have been trying to, train me, Mr. Carr, and I am 23 not there yet; ^ 24 Q 1 am doing my, level best, to train yquV After 20 years 0 7 0 0 1 FORM I t 24 B PENGAP CO., BATQNNE* 152 1 though I am going to give"up., i ` ' 2 A Very well. :*i* . v ./ . - 3 Q' Dr.-Hair is a toxicologist, is she not? 4 A Yes. ,1 ; 5 Q And she reported to you that this level o 250 parts 6 per billion not even including TCDD is a toxic substance^ that 7 should be reported to the EPA. Didn't she, sir? 8 A She did not -- 9 MR. MUSGRAVE: Object to counsel's characterization 10 of the^ document. The document speaks for itself as to what 11 Dr. Nair said. . 12 THE COURT: Overruled. 13 Q (By Mr. Carr) Did she say, "I feel this information 14 should be submitted to the EPA under Section 8E of TSCA," Did 15 she say that? 16 A (By the Witness) She said that to the person she 17 reports to. The top toxicologist. 18 Q Did you get a copy of her report? 19 A I received it later. 20 Q And you considered her report on the 24th of January, 21 23rd of January, didn't you, sir? 22 A Yes. 23 Q And you had that report in front of you, didn't you, 24 sir? 153 1 A ,Xes; j-<,:/ ; 0 V'.;-' ,?-& y'.'. V : . . L-v* ' - 2 Q Did you have a report from any other toxicologist`in y , V . s c; ;1 3 front of'you)."iat ifhatr,^_m_e-eJ*t.Ji_n_gO?* V - 4 A We also had. r~ C`lv V ;/V\pL ` ` ,. 5 Q Can you answer that question, please, sir? 6 J .> - A Yes. :y- y - ^ t' 7 ' ,Q What report from what toxicologist did you have? . 8 A ' from her supervisor. 9 - Q What toxicologist's report did you have? What other *' N. t l " C~ ^ " 10 toxicologist reported at-that meeting? . _ il A I am trying to say . There was report from her super* 12. -visor. , \ y- - " . ' 13 Q I asked you what, toxicologist. Is her supervisor a 14 toxicologist? 15 `-.-A Yes.r ` .. - ' 16 4 >J ' t ^ Q Who is that? 1 ; -i .'y . - y''r`` ' * > J - L^ - v 17' A. Dr. Levinskas. , 18 Q Is he a toxicologist? . : . 19 A .Yes.' 1. 'y - 1 -- y , - .. 20 Q And what memo did he tell you that countered the memo 21 ' of Dr. Nair? r 22 A He felt that she had exaggerated the risk in this 23 situation. 24. Q He said that'she had exaggerated the risk^ Did he, sir|7 PENGADj CO,. BAYONNE, N.J,  ' - ' - 'i54 v ' l A Yes. As r e c a l l I don't have his memorandum ih front 1 of'me., .r."! V ' " .' 2 - _ ,j jf . "'v'-V ' ; . .. Q' I:do have. It was .given to me this morning at 9:15 3 jt'JLi T ; k f* -, ^ 4> V ' 1 1 " ' ^t * " a.m. I' have it, siro/V'Nw/ you tell me where he says she `4 exaggrates/th risk. . . 5 ' ,, ,, '6 A \ He says^ "Since TCDD was found only in waste dust at , 1.5 PPB the/calculations regarding potential pCDD exposure r ' -7 !from tetrathal represents an extreme situation which greatly -O 5 -- - r, " " , * H, exaggerates the risk.". 9J \J / 10 Q Because th TCDD is not in there? . \ li ^ `12 ; "MR. MSGRAVE F, sir. ; l Q (By Mr. Carr) Because th TCDD is hot there, sir? A (By the Witness) I just read you what he said, Mr. 13 Carr. - 14 .' BAYONNE. N . J l 0 7 0 0 1 FOAM, IL 2 4 B ; 15 10t ' M, So `' a ' (J ! o .16 -' 17 18 L *_ 19 : * ,,o Z "' u1 20 ' 21 Q I understand that, Mr. Park. Did he talk about the TCDD contamination of the work place? . Did he, sir? t ^ A Are you going t allow me - Q That: is the only copy I have. . A I don't have any here, sir; Q Did he talk about.the possible^ TCDD contamination of th work place? '" v - 22 i , ,L .r "` r, I) V 23. - 24 A. It says, 'This does raise ..question, however, of 4 ,* ." 'u r " 'T V* possible TCDD contamination of the work place." Q Did he tell you that a mixture of hexachloro dioxins -, ; ' / / V ; 1 5 5 ,':: . V - ' . l , ; were found, to be carcinogenic in a NXP bioassay? ,2 3" A ;He;dqes/8ay that. P/V ' ^V*(/*);^`.i y ;*?1,,'./f.< ^-i ^ r `, ' r r Q 'tDoes he 'say that the acute toxicity in guinea pigs of 4 pentachlorq^dioxin compares to 2,3 97,8 tetrachloro dioxin; 5 :two*thirds the toxicity of it? Did he say that, sir? j i >j *~*l.* j t^v^ ^1ji^. ^ 1 .6 A He-vsays If has'ah oral'Lp 50 of 3.1 micrograms. :7 / '8 ^ Q Compared to 2 , r / -; i. . ^ _ ? 1( ' * .tK " -'" * ^ ^ " "- - a A Let's see. Compared to 2 micrograms per kilogram for 9 J2,3,7,8 tetrachloro dioxin. io; Q Bid he say in any place that it should not be reported . ii to the> EPA? - -- ^1 -/ / , 12. , A No. , ' " i * . \ --. 13 Q As a matter of fact, what he said and he also discussed, 14 did he not, that there is a mixture of hexachloro dioxin that ' i ta "* H '\l "L ' , '15 is fetal toxic and produces fetal abnormalities and subcutaneous .16 ' edema in the -pups in dosages higher than the 2,3,7,8 TCDD, 17 Did he .say that, sir? BAYONNE. N.J, '18 A' Yes. '\ \ - P- . ' . 19 Q Did your committee .believe fromthat that Dr. Levinskas 20 was overruling Dr. Hair and telling you not to report it? [21 A Whenrour-committee met,-- * . " . . " '22 Q Excuse me. Could you answer that question? .Do you 23 believe that he.was overruling Dr. Hair? He was pointing out. 24 ' more problems with it, was he not, sir, adding to what she j^ r ^ - >t ' * `l^ ^1 ' - - j; r L, i ** " , t' - 1F'-.* -.'s'i^ ^ J ., `* , < ` ^ F hTL F ^ V> --, 4s ; ' .// i56 ;;. t -fr ,- **fm^ i ,, % ,,' ',j ,' ` ., t '"v ; V ' 1'.V;/ ' v4 tk''U '*"* "U.. , ^4 i *- 2 ,3, said. Wasn't he, sir? ` ^* A No Ourconmittee consideredthis and th other ' / 'ts,-'-%.K>/*r\ ."ft- U"'Ju , ; '"`t. \ ( V , v-, ' ,., mmorandum. <,*_,'- . .-/> --'- -\ ' "t . 4 Q My question is, did he no.t add to what sh said? -`(^ ^\"V Yt\ it^" 'SWrl"tVilXi-U'- ^.n'-\t .L' '` . _' .i ^,t'a1 ' 'v ' u . s , Did he not' give1you additional informtion as, to the toxicity "6 of what you, are- talking^ about? // ^ -- . '-.i'J \.u ut;- t iv`,vr- ' ' U - ' 7 'V A He greatly" reduced the possible risk that had been , 1 8 raised in Dr. Nair*8 memorandumand then he pointed out some 9 ;J' other things that had not been'raised in hers. * i*- ^ 10 .J ,Q Did he tell you in'any fashion whatsoever1that you `- 1 11 ^should riot report this to the EPA? 12 ; A; He does not specifically so, state in the memo. / l- 13, Q And you have a specific, statement from your toxiolo- U gist that studied it, that worked`ori it that says it should be ; ` 5\ reported t,the EPA. Isri,t that correct, sir? ' a .bo* > 16 A That .was in the memorandum that led to our 8E meeting. ` o r* o , 17.t- * .^ ; Q And you didn't follow th toxicologist's recommenda BAYONNE, K.J, V 18 ' tions, did you, sir? :^ | m "1 .19 A We 'id, follow -or toxicologist's recommendations* We O : 4 20^ ^had consensus* . ^ \S .K ,, ,LJ * * . . ( `- ' L 21- ( Q What toxicologist told you ript to report i t ,to the EPA? P- : 23 E\ 24 L ;Therconsensus Q , What toxicologist told you hot to report it to the,EPA? A The toxicologistdescribed the toxicity--" \^ ,r S. ^. -d j' u ^ * ( `> _' ' N 'J j *. ' ' ' ' u ," J ' ' 157 1 2 -3` `4 5 .6 .7 8" 9 10 11 12 13 14 15 * 16 v 17 18 19 20 21 22 23 ) 24 Q What toxicologist told you not to report it to. the EPA? A ^The^cbnn^.tteeV:feit^ilt was not a reportable situation. if.-.'I -;i p v .1 v : 0 rv{ . - Q' What toxicologist told, you not to report it' to the EPA? . ...., ..- - ,`.'i i. - - i. x i' .. '1 -V ... 1 .-l 4 ' vy'iA.f-. %>,-\:J V ^$ *,`' - , * *. A I don't know that any specific one did. Q 'Wnat? toxicologist told you to report it to the,EPA? A Dr. Nair Q Did you report it to the EPA? A *-- said she felt this information should be submitted to EPA. s 'a.;-",--, - Q Was It submitted it to the EPA? A , It was not submitted to. the EPA under Section 8E. Q Was it submitted.to the EPA in any form? A X don't believe it was submitted to the EPA; , THE COURT; Mr* Carr, is\this a good point to break? . MR. CARR: Yes* sir. . ;v THE COURT: Ladies and gentlemen, we are going to break a little bit early' today and I would remind you as I do on any overnight break that you,are not to read, listen to or watch anything about this case in particular, or subject matter in general of any o f t h e media along with the other admonish* ments that X have given you. ; I want to .thank you for your \ lu ^ J~*>Lt- t attention and consideration and patience with any delays that PENGAO CO.. BAVONNE. N.J. 158 1 W have had during the week. We will resume again Monday 2 morning at 9:30. Have a good weekend. 3 (Court adjourned.) 4 ji' 5 '.V% 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS 2 3 4 5 6 7 8 9 10 H 12 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS > ) 2 TWENTIETH JUDICIAL CIRCUIT ) > 3 COUNTY OF ST. CLAIR ) SS 4 FORASMUCH THEREFORE, as the matters and things 5 hereinbefore do not otherwise appear of record herein, the 6 Court having examined the said Report of Proceedings had in 7 this cause, and being satisfied with the correctness thereof, 8' % i l. and that the same is all of the evidence offered or received 9 at said hearing No. 80-L-970, Frances E. Kenner, et. al., 10 . 1 ' i- : Plaintiffs, versus Monsanto Company, Defendant, doth hereunto 11 set his hand and seal..:-.. ! ' 12 Mbit13 14 CIRCUIT JUDGE 15 DATED this___ _day of April, 1985. 6 17 18 19 20 21 22 23 24