Document mBpvR2dr87e0Eyg11ZXJJ0gw4

1 IN THE CIRCUIT COURT OF JACKSON COUNTY, SIXTEENTH JUDICIAL CIRCUIT, DIVISION 16 2 Honorable Marco Roldan, Judge 3 Leonard Ryan, et al., ) ) 4 Plaintiffs, ) ) 5 vs. ) Case No. 04CV-223271 ) 6 BP Corporation, et al., ) ) 7 Defendants. ) 8 TRANSCRIPT 9 EXAMINATION OF JOHN SPENCER 10 SEPTEMBER 9, 2005 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Kathy J. Foley, Certified Court Reporter #446 25 Official Court Reporter, Division 16 Sixteenth Judicial Circuit at Independence 1 1 September 9, 2005 2 JOHN SPENCER 3 called as a witness herein, having been first duly 4 sworn by the Court, was examined and testified as 5 follows upon, 6 DIRECT EXAMINATION 7 By MR. McELDOWNEY: 8 A. Excuse me while I catch my breath. 9 Q. Thought you decided you weren't going to wait 10 any longer. Would you please introduce 11 yourself to the Court and to the jury? 12 A. My name is John Spencer. I'm out of Baltimore, 13 Maryland. 14 Q. And could you spell your last name for the 15 court reporter? 16 A. S-P-E-N-C-E-R. 17 Q. Mr. Spencer, what do you do for a living? 18 A. I'm what is called an industrial hygienist. I 19 evaluate exposures to people. I evaluate 20 exposures in the environment to determine the 21 significance of those exposures and whether 22 it's likely to harm human health or the health 23 of our environment. 24 Q. And what is industrial hygiene, briefly? 25 A. It's a profession that is dedicated to 2 1 recognizing, evaluating, and then developing 2 controlled strategies or management strategies 3 for managing occupational exposures to 4 chemicals, to physical agents like noise or 5 radiation or to biological agents like bacteria 6 and mold, funguses. Those things they're 7 facing in New Orleans right now. 8 Q. Why is industrial hygiene important? 9 A. It's important because it is a science. It's a 10 profession that deals with evaluating 11 exposures. We're all exposed to some level of 12 a chemical or the physical agents in our 13 environment or to biological agents. But my 14 profession, what I do is determine the 15 significance of that exposure, what the level 16 of that exposure is, and whether or not based 17 on other medical, toxicological data whether 18 it's likely to cause harm. And, if it is, to 19 develop strategies to manage those exposures. 20 Q. As an industrial hygienist do you look at 21 exposures to workers in the work place? 22 A. Sure. I mean, that's what I have done for 23 about 28 years with various private and 24 government agencies. 25 Q. Have you also had an opportunity to look at 3 1 exposures, not only to workers, but other types 2 of people? 3 A. Sure. I mean, communities. I've been involved 4 in a number of projects where I've evaluated 5 community exposures to kids in school and 6 everything from asbestos to solvent exposures 7 that somehow wound up in a school setting. 8 Hospitals. I have actually been in courtrooms. 9 I have been in -- evaluating exposures there. 10 And in towers at airports, looking at exposures 11 to air traffic controllers. 12 Q. Mr. Spencer, are you a certified industrial 13 hygienist? 14 A. Yes. I have been certified since 1987. 15 Q. And how did you become board certified in 16 industrial hygiene? 17 A. It is a -- the certification process for 18 industrial hygiene is similar to that of a 19 professional engineer. Requires so many years 20 of experience, minimum of five years experience 21 working in the area of industrial hygiene. I 22 then have to be accepted by other certified 23 industrial hygienists, qualified by them in a 24 letter. Then I have to pass, at that time, it 25 was a two day examination. 4 1 Q. Have you prepared, Mr. Spencer, a resume of 2 your educational background and work 3 background? 4 A. Yes, I have. 5 Q. I'm going to hand you what we have marked as 6 Exhibit 691 and ask you to identify that 7 document. 8 A. Yes. That's my C.V. It's an older one, but 9 it's mine. 10 MS. McELDOWNEY: We would offer 11 Exhibit No. 691. 12 MR. WALTERS: No objection. 13 THE COURT: Exhibit 691 is admitted. 14 Q. (By Ms. McEldowney) Mr. Spencer, where do you 15 currently work? 16 A. All over the country. My office is in 17 Baltimore, Maryland though. 18 Q. Do you have your own company? 19 A. Yes. 20 Q. What is that company called? 21 A. It is Environmental Profiles. 22 Q. What does Environmental Profiles do? What 23 types of services do they provide? 24 A. Again, we do health hazard assessments. We 25 write product warnings. We do environmental 5 1 investigations in the properties. We do 2 various government work, doing abatement 3 planning for removal of asbestos or lead in 4 buildings, government buildings, schools. I am 5 involved in the litigation. And in terms of 6 testifying, I'm the only one in my firm that 7 does that aspect out of 17 people in the 8 company. We have been involved in everything 9 from helping sink ships for artificial reefing 10 projects by identifying potential health 11 hazards prior to sinking those ships, to 12 evaluating hospitals for their health and 13 safety programs. 14 Q. And you mentioned earlier that you provide 15 expert consulting services? 16 A. Yes. 17 Q. And you have obviously provided expert 18 consulting services before this case; right? 19 A. Yes. 20 Q. What kinds of cases have you provided that 21 expert consulting work on? 22 A. I mean, I have been involved in a number of 23 many different cases over the last ten years or 24 so that I have been doing this litigation 25 related work. A lot of asbestos work, there 6 1 are hundreds of thousands of asbestos claims 2 out there for a variety of asbestos containing 3 products. I have been involved in a number of 4 asbestos related cases only for encapsulated 5 products like gaskets and packing and other 6 material where the asbestos is locked up in a 7 rubber matrix or plastic matrix. I don't do 8 the dusty stuff exposures because usually 9 people don't want to hear what I have to say 10 about that. 11 I have been involved in other solvent 12 exposure cases including benzene exposure 13 cases. Most of the time that I work in that 14 area it has been on behalf of the defendant. 15 That is who I have been called by and I can 16 support through science their side of the case. 17 Although I have worked on plaintiff cases as 18 well in solvent exposure cases and I'm 19 currently doing so. 20 Q. I see also from your resume that you have 21 worked for NIOSH. Could you tell me what NIOSH 22 is? 23 A. That stands for the National Institute for 24 Occupational Safety and Health. It was 25 Established basically the same time that OSHA, 7 1 the Occupational, Safety and Health 2 Administration was established. It's basically 3 the research arm of OSHA for health and safety 4 professionals. They conduct the research for 5 them. It's part of the Centers for Disease 6 Control Public Health Service. 7 Q. What did you do while you were working at 8 NIOSH? 9 A. I was part of what was called the National 10 Occupational Exposure survey. We went around 11 the country. I was one of the team leaders 12 that went around the country and we went into 13 different types of businesses around the 14 country and evaluated exposures within those 15 different facilities. Looked at the safety and 16 health programs. Looked at the product 17 warnings. And looked at the programs and 18 policies and procedures that were in place to 19 protect those workers. In fact, I was here in 20 Kansas City for an entire month. So I got to 21 know Kansas City at that time. That was in the 22 early 1980s. 23 Q. I see too that you've also done work for the 24 United States Coast Guard? 25 A. Yes, I was an industrial hygienist for the U.S. 8 1 Coast Guard from about 1982 to 1987 and I 2 managed -- first I started in the Coast Guard 3 ship yard outside of Baltimore and then I 4 managed it out of Virginia, the Fifth District 5 of the Coast Guard, which was most of the east 6 coast. We had aircraft repair and supply 7 centers. We had many ships and we had the ship 8 yards and various other repair facilities and I 9 was responsible there for the industrial 10 hygiene program and the medical monitoring 11 program for about 4400 people. 12 Q. Can you tell us a little bit about what you did 13 at the Coast Guard in terms of industrial 14 hygiene and medical monitoring? 15 A. Sure. I guess one of the relevant things is we 16 had what we call marine inspectors. They would 17 board barges or ships that contained -- carried 18 various cargos, including benzene cargos or 19 benzene containing cargos. I followed them 20 along and I monitored what they were exposed 21 to. 22 I put equipment on them to sample the air 23 as they were doing their work to determine what 24 their level of exposure was for purposes of 25 determining whether we put them into an 9 1 on-going medical monitoring program or not. If 2 it was low levels of exposure, no. If it was 3 higher levels, exceeded health standards then 4 we put them on a program and we would evaluate 5 their blood on a routine basis. And I did that 6 for many other products including asbestos, 7 including noise and paints and various other 8 solvents. 9 Q. Can you explain, very briefly, how it is that 10 somebody goes about measuring benzene on an 11 individual? 12 A. Sure. The current way that we do it today 13 is -- it's called a personal sample and the 14 OSHA regulations require that if you're going 15 to evaluate an exposure that it be done by a 16 personal sample. There's a little portable 17 pump with a plastic tubing. It goes up to a 18 little charcoal tube and you clip it on their 19 collar so it's in what's called the breathing 20 zone of the individual. You pump a known 21 volume of air across that charcoal tube and 22 then that tube is taken off and sent to a 23 laboratory and they use -- they do what's 24 called desorbing the many solvents that are in 25 the air, including benzene, off of there. 10 1 And they run it through a gas 2 chromatograph or a mass spectrometer or any 3 number of instruments that will quantify how 4 many milligrams of benzene is on that tube and 5 then, based on the amount of air that you have 6 sampled, you can get milligrams per cubic liter 7 of air, convert that to parts per million so 8 you can compare your results to occupational 9 health standards. 10 Q. I see, Mr. Spencer, too that you are a member 11 of many different professional societies; one 12 of them being the American Industrial Hygiene 13 Association; is that correct? 14 A. Yes. In fact, I just got my certificate for 15 being 25 years longer with the AIHA, yes. 16 Q. What other professional societies are you a 17 member of? 18 A. It's many. The American Conference of 19 Governmental Industrial Hygienists, the Society 20 for Chemical Hazard Communication, the New York 21 Academy of Sciences, the Academy for 22 Advancement of Sciences. Many others. 23 Q. In fact, you were part of -- at least for your 24 section -- of the American Industrial Hygiene 25 Association; is that correct? 11 1 A. Yes, I was. 2 Q. You were also a member of the Emergency 3 Response Planning Committee; is that right? 4 A. Yes. 5 Q. Would you explain a little bit about what you 6 did and what that committee does? 7 A. Yes. That was a -- it's part of the American 8 Industrial Hygiene Association. It's 9 actually -- that's a world-wide organization 10 for industrial hygienists and they have various 11 committees. The one I sat on for many years 12 was Emergency Response Planning. We developed 13 guidelines, numbers, for things like benzene, 14 toluene, xylene, many other chemicals. 15 If there was a spill or if there is a 16 release of a chemical from a tank or a tank car 17 we -- you want to know, should I be concerned, 18 number one. Number two, based on the level, 19 the modeled level of exposure should we keep 20 the people in place, keep them in their homes 21 and protected from this vapor cloud or do we 22 need to evacuate the community? Because there 23 is hazard, there is danger in evacuating a 24 large number of people just as there are 25 exposing them to a chemical. 12 1 We developed those guidelines and I was on 2 the committee that would finalize these and 3 then ultimately they're produced and they're 4 used by the Emergency Response Planning 5 personnel around the country. So your state or 6 local fire departments and other personnel, 7 emergency personnel, use these guidelines to 8 determine when to evacuate a community and plan 9 for that in the event of a tank failure, an 10 accident on a rail system or something like 11 that. 12 Q. Could you describe a little bit more about what 13 these guidelines are in the event of an 14 emergency or a release? 15 A. Again, they're designed to -- you take the data 16 about the size of the tank that you have and 17 what is in it and then you plug in 18 meteorological information, wind direction, 19 speed, distance to various receptors, receptors 20 are people, either where they work or where 21 they live and you plug this into generally 22 what's called -- it's an EPA model, a 23 standardized model called a Gaussian plume 24 model. There's several versions of it. The 25 more popular one is a Screen Three Model that 13 1 is used now. 2 And so you plan by running several 3 different scenarios of what could happen and 4 then you determine, based on if this is the 5 source here, you've got a community here, what 6 is the likely level of exposure going to be in 7 a worse case scenario and will it reach these 8 emergency response planning guidelines? So it 9 allows you to plan ahead in the event of a 10 catastrophic event and to know immediately 11 whether you need to get the community out or 12 tell them to kind of hunker down in place. 13 Q. This model, in fact, is an EPA model? 14 A. The model that is used to do that analysis, 15 yes, it is one that is sanctioned by the EPA 16 and, in fact, it is in the EPA regulations. 17 Q. Mr. Spencer, how does one become a member of 18 the emergency response planning committee? 19 A. This particular committee is -- there are many 20 people who try to get to this committee and you 21 have to go through a review process within the 22 committee members. It's also one of the few 23 committees in the AIHA that allows you to stay 24 on more than two years. I was on it for many 25 more years than that. It's because it's a 14 1 special expertise that it is necessary to be 2 able to develop these guidelines and understand 3 the significance of these guidelines. 4 Q. So it's a committee that you have to be 5 actually selected and reviewed. It's not a 6 committee that you can simply join? 7 A. Correct. 8 Q. And to this day, they are still asking you to 9 come back and participate in that committee? 10 A. They have. They were a good group of people 11 that I enjoyed working with, yes. 12 Q. Would you briefly give us a bit of your 13 educational background? 14 A. My background is general. My undergraduate is 15 in biological sciences. That was my major 16 through college. It was primarily focused on 17 environmental sciences. Frankly, I didn't know 18 about industrial hygiene in 1972. Following 19 college, I ended up working with an 20 organization that had industrial hygienists and 21 toxicologists. I took graduate courses in 22 industrial hygiene. I did not finish my 23 masters thesis or degree. But I took many 24 courses. In fact, participated in the OSHA 25 Training Institute in Chicago for several weeks 15 1 as part of my training program with NIOSH. 2 Q. In not only your education and your training 3 but throughout your work career have you had an 4 opportunity to work with exposures to gasoline 5 and to benzene? 6 A. Sure, many times. 7 Q. And can you just give us generally some 8 examples of those instances where you had to 9 deal with gasoline and benzene exposures? 10 A. Well, it's a very common substance. When I was 11 with NIOSH, part of the surveys I did, I went 12 through various refineries. I audited various 13 refineries and looked at the exposures that 14 occurred in the refineries, looked at their 15 health and safety programs, looked at the air 16 monitoring data. 17 With the Coast Guard, as I mentioned 18 before, I was involved in evaluating marine 19 inspectors exposures to benzene and benzene 20 containing solvents as they boarded ships or in 21 the proximity of loading or off-loading cargo. 22 I have been involved, over the years, in a 23 number of assessments that have involved 24 underground storage tanks where there were 25 significant leaks. 16 1 I have been involved in projects on Long 2 Island where there's very rocky substrait up 3 there and gasoline, hundreds of thousands of 4 gallons of gasoline, had leaked from 5 underground storage tanks over an extended 6 period of time and started showing up in 7 resident's basements and I was asked to 8 evaluate those exposures. I have been involved 9 in a number of projects where there were 10 leaking underground storage tanks. But -- it 11 was more doing some community work, but more 12 looking at the workers who were doing the 13 clean-up activities. 14 Q. I think you said that you have actually been 15 involved in some refinery sites and looking at 16 exposures at refineries; is that right? 17 A. Sure. 18 Q. So are you very familiar then with how 19 refineries operate and the types of exposures 20 that would occur at refineries? 21 A. Yes. I have been through a number of different 22 refineries, small and large, around the 23 country, both when I worked for the government 24 and as a private consultant. So I'm fairly 25 familiar with refineries. 17 1 Q. Mr. Spencer, could you tell us what you were 2 asked to do in this case? 3 A. Yes. One, I was asked to evaluate the 4 plaintiff's industrial hygiene expert's process 5 and method for evaluating Mrs. Ryan's potential 6 exposures to benzene at her two different 7 residences. I was asked to evaluate whether or 8 not I could specifically evaluate her specific 9 exposures using different methodologies or, I 10 should say more accepted methodologies. And 11 then finally to do some analysis of using 12 standard and accepted EPA methodologies for 13 determining what the community exposures would 14 be under varying circumstances of releases of 15 gasoline from the Sugar Creek site to 16 Mrs. Ryan's residence at Evans Street and 17 Huttig Street. 18 Q. So what the -- really the primary focus of what 19 you have been asked to do is to really look at 20 the calculations that Mr. Petty has made with 21 respect to potential exposures to benzene from 22 gasoline from the refinery; is that right? 23 A. Yes. 24 Q. And then we also asked you whether you, in 25 fact, could just do an independent exposure 18 1 assessment using well-accepted EPA sanctioned 2 models in order to come up with your own 3 calculation? 4 A. Well, I looked at it also using more standard 5 and accepted industrial hygiene techniques for 6 evaluating exposures. I looked at that and the 7 EPA method, which the EPA is really more for 8 community or environmental types of levels of 9 exposures versus a distinct individual. So 10 I'll separate out those two. 11 Q. And just to give the jury a little bit of a 12 perspective, you've been obviously involved in 13 occupational exposures at refineries? 14 A. Yes. 15 Q. And at some of these refineries were there 16 neighboring communities surrounding them? 17 A. Sure. I mean, that's fairly typical. 18 Q. Could you tell us, what are the general, say, 19 benzene exposures that occur at different 20 refineries that you have had experience with 21 inside the fence line? 22 A. Well, that's a good description, fence line. 23 That's a typical thing that is measured, again, 24 more for environmental and community purposes. 25 They're called fence line concentrations. 19 1 There's personal industrial hygiene data, 2 personal monitoring that is going on in the 3 workers inside the plant, look at the 4 individual exposures. 5 And there is literature by a number of 6 people that generally inside a plant -- it 7 depends on the point in history, I mean, 8 historically, levels of exposure were higher 9 inside the plant than they are today. We have, 10 in general, a couple of parts per million. It 11 varies based on the activities and the time of 12 day and what they're doing and what kind of 13 process they're doing it on. But the general 14 background levels that I have seen in the 15 literature are generally less than parts per 16 million. They're in the parts per billion 17 range. 18 And that's also true for what are the 19 properties -- boundary concentrations where 20 there's continuous monitoring going on. Again, 21 they're in the parts per billion range. 22 They're background levels. 23 Q. And a part per billion is what, 1/1,000th of a 24 part per million; is that right? 25 A. Yes. 20 1 Q. And I think we have mentioned to the jury 2 during opening statement it's comparable to a 3 teaspoon of water in two Olympic size swimming 4 pools? 5 A. A part per billion sounds about right. It's 6 one penny in a billion dollars. It's not much. 7 Q. So you were asked to evaluate what Mr. Petty 8 did. And we also asked you whether you could, 9 in fact, do your own independent exposure 10 assessment calculation. Were you, in fact, 11 able to do that based on the data that was 12 available? 13 A. No. Using conventional and standard and 14 accepted industrial hygiene techniques there 15 wasn't enough information for me to be 16 comfortable with any level that I would derive. 17 I would have to use modeling. There was no 18 data specifically stating what a resident's 19 exposure or Mrs. Ryan's exposure at the Evans 20 property or the Huttig property was. So there 21 was no specific data for me that allowed me to 22 do a calculation specifically for Mrs. Ryan. 23 Q. And is that because it's important to know 24 various point sources of where the emissions 25 may be coming from, whatever chemical or 21 1 substance that you're looking at in order to 2 then try to calculate back in time as to what 3 the total exposure would have been? 4 A. Sure. Absolutely. You need some understanding 5 of how much material there is being released 6 into the environment, over what period of time 7 it's being released so that you can calculate 8 or determine what that exposure was with some 9 reasonable degree of accuracy. 10 Q. So what we did then is to try to give you 11 certain assumptions and then from those 12 assumptions you did do an independent 13 calculation; is that right? 14 A. Well, I did a calculation but, again, not using 15 what I call conventional industrial hygiene 16 techniques. I used more of an environmental 17 assessment technique using the EPA 18 methodologies that are used in evaluating 19 community exposure and evaluating community 20 risk to chemicals in the environment. 21 Q. And we're going to talk about that a little bit 22 more later. But could you tell us the types of 23 documents you have reviewed and what things you 24 have done in connection with your work in this 25 case? 22 1 A. Sure. I have reviewed the testimony of 2 Mr. Ryan. I reviewed the testimony of 3 Mrs. Ryan's daughter to understand their 4 perspective on it and where they were and when 5 and what conditions were like at that time. I 6 have reviewed many documents from the facility 7 at Sugar Creek to understand what activities 8 were going on there, reviewing the storage 9 tanks, what kind of tanks were in place, what 10 kind of venting was occurring, what kind of 11 losses were occurring. And then I reviewed 12 additional data, outside data in understanding 13 the environment historically, such as from the 14 National Weather Service, wind directions and 15 speeds and that sort of thing since the early 16 1960s. 17 Q. You have also reviewed the RCRA file reports 18 too, various documents within those RCRA 19 reports have been prepared and submitted to the 20 EPA? 21 A. I have many of those reports and also the 22 Agency for Toxic Substances and Disease 23 Registry, I have reviewed their reports. The 24 Missouri Public Health related reports on 25 discussing risk and the evaluation of the site. 23 1 Yes, I reviewed those as well. 2 Q. And you've actually been to the site; haven't 3 you? 4 A. Yes, I have. 5 Q. And you actually got a little bit more out of 6 that site visit than you wanted? 7 A. I did. I had my first case of chiggers since I 8 was a kid. These guys didn't warn me about 9 Missouri chiggers and ticks and I found them. 10 Q. Could you tell me a little bit about your site 11 visit, what you looked at, where you went on 12 the site, what you observed while you were 13 there? 14 A. Well, we drove through most of the site, 15 fortunately. I did walk through the areas 16 where many of the storage tanks were, where 17 they were closest to Mrs. Ryan's residence on 18 Evans Street. I also went into the 19 neighborhood and actually introduced myself to 20 the current owner of the Evans property and he 21 let me look around the property, look 22 underneath the house and around the house. 23 Then went down to the Huttig property as well. 24 And just got a sense of distance and topography 25 and relationship to the site, to the tanks, and 24 1 to the homes. 2 Q. Did you find anything significant about when 3 you went to the Evans Street home and you 4 looked to where the tanks were on Willow? I 5 mean was there something about the topography 6 there that struck you when you actually went 7 and walked the site? 8 A. Sure. There was a rise. Topographically there 9 was a rise separating the property on Evans 10 Street from the tanks themselves. They 11 actually sat down in a heavily bermed area. So 12 they were, from what I could see there, they 13 were topographically separated from the 14 properties, from the community. 15 Q. So, in other words, the tanks would be here. 16 You would have to go over a hill in order to 17 see the Evans home? 18 A. Correct. 19 THE COURT: Ms. McEldowney, if you're 20 at a good breaking point. 21 MS. McELDOWNEY: That would be fine. 22 THE COURT: Ladies and gentlemen of 23 the jury, we're at a good breaking point, 24 right on schedule for our afternoon break. 25 We'll take our normal break time, come 25 1 back and finish out the day. 2 (The Court reads the instruction.) 3 (Recess.) 4 (Proceedings return to open court.) 5 THE COURT: Ladies and gentlemen of 6 the jury, this Court is once again in 7 session. Please make sure that all 8 cellular phones and digital pagers are 9 turned off. Ladies and gentlemen of the 10 jury, at this time we'll continue with the 11 direct examination of Mr. Spencer. 12 Ms. McEldowney, you may proceed. 13 MS. McELDOWNEY: Thank you, Your 14 Honor. 15 Q. Mr. Spencer, would you briefly explain to us 16 what an exposure assessment is? 17 A. Yes. In industrial hygiene terms there's a 18 standardized process that one follows and there 19 is a couple of standard textbooks that describe 20 this. But it is, first, you start with 21 understanding the product itself. In this case 22 we're talking about, say gasoline, what is it 23 made out of, what is vapor pressure, how does 24 it move within the environment, how does 25 someone become exposed either through the air 26 1 or through the ground or through water. 2 Then we look at the environment itself. 3 Are we talking about indoors? Are we talking 4 about outdoors? What is going on in the 5 environment? What is wind direction? Wind 6 speed? What factors effect the environment in 7 which the exposure is occurring? 8 We look at the activities. We look at the 9 tasks, the frequency and duration of the 10 activities. If there's a release, when did it 11 occur, how often does it occur? If someone 12 is -- for that person being exposed, you want 13 to understand how often they're in proximity to 14 being exposed. 15 There's more to it but those three 16 elements generally go into doing an exposure 17 assessment. We follow up by either doing air 18 monitoring or personal sampling pumps and other 19 devices, direct reading instruments, or we can 20 model the data as well if we have sufficient 21 data to input into the model. 22 Q. When you model, when you model it when you 23 don't have actual personal measurements of 24 exposure, is that typically what you would do 25 then to obtain data is look at point sources of 27 1 emissions? 2 A. Yes. Sure. That's where we start is if we're 3 going to model something, we want to 4 understand, well, how much material are we 5 starting with? How much is released to the air 6 versus the ground or the water? And then how 7 does someone become exposed to that and how 8 does it get to that person? 9 Q. What are the ways that people can be exposed to 10 a given substance? 11 A. Well, that's basically through a -- what's 12 called a route of exposure. And that's either 13 airborne, that is through the skin, through 14 dermal uptake or through ingestion, eating it 15 or drinking it. 16 Q. What is your understanding of what the exposure 17 route was in this case for Mrs. Ryan? 18 A. From what I saw, what I have learned, it was -19 if there was an exposure pathway, it was an 20 airborne pathway. They were not using -- they 21 did not have groundwater wells for drinking 22 water, drinking water even the ATSDR and the 23 Missouri Public Health documents address that 24 fact as well, that that was not considered a 25 route of exposure. So if product was released 28 1 in the air in substantial quantities, then that 2 was something that I would look at as a route 3 of exposure. 4 Q. And, Mr. Spencer, have you prepared a slide 5 presentation that will assist us in 6 understanding how you went about analyzing what 7 Mr. Petty did and then ultimately the 8 calculations that you made? 9 A. Yes. 10 Q. I'm going to hand you what we have marked as 11 Exhibit 799. Is this the presentation that you 12 have prepared? 13 A. It appears to be. 14 MS. McELDOWNEY: We have provided 15 this to Mr. Walters. Your Honor, we offer 16 Exhibit 799 at this time. 17 MR. WALTERS: No objection. 18 THE COURT: Exhibit 799 is admitted. 19 Q. (By Ms. McEldowney) Brian, would you? What 20 are we looking at right here? 21 A. This is an aerial photograph of the Sugar Creek 22 refinery. The date I'm not entirely certain 23 of. I have looked at several aerial 24 photographs. This appears to be perhaps in the 25 1950s, 1960s, based on my review of other 29 1 aerials. 2 Q. And can you just generally explain what 3 Mr. Petty did in order to calculate what 4 Mrs. Ryan's potential exposure to gasoline and 5 specifically benzene in the gasoline was? 6 A. Well, he used a unique process, one that I have 7 never seen done before in 28 years of 8 practicing as an industrial hygienist either 9 for the government or in private practice. I 10 mean, I have met Mr. Petty and have been 11 involved in other projects with him. He's a 12 very nice fellow. But I don't mean to degrade 13 him but I have never seen this technique ever 14 used before. That is where he used primarily 15 odor as a means of quantifying an exposure to 16 an individual. It was a unique process. 17 Q. In your entire training and career as a 18 certified industrial hygienist, have you ever 19 known anyone to do that that has been endorsed 20 by either a recognized association or a 21 governmental agency that has used odor as a 22 basis upon which to then build an exposure 23 assessment? 24 A. Never. I will say, as an industrial hygienist, 25 for certain chemicals and if you're trained and 30 1 you understand the odor thresholds of a 2 particular chemical constituent, you can use 3 odor kind of as a screening tool to determine 4 whether it was present or not but you cannot 5 quantify what that exposure is. 6 Q. In fact, as an industrial hygienist when you go 7 on site for a particular area do you use odor 8 in any way when you start to begin to identify 9 whether there may or may not, in fact, be a 10 health concern? 11 A. Sure. In fact, gasoline is a very good example 12 because the odor threshold for gasoline is so 13 low, that is it's below a level, the odor 14 threshold the point at which you can smell it 15 is at a level that is so low that it's below 16 the occupational health standard for gasoline. 17 So it's still safe when you smell it. It has 18 what's called good warning properties. Many 19 chemicals, not all, have that what are called 20 good warning properties, but gasoline does. 21 Q. Could you tell us, briefly, what are the flawed 22 assumptions that you have determined Mr. Petty 23 has made with respect to the -- with the 24 calculations he had made? 25 A. And, again, I want to be clear on this, I'm not 31 1 agreeing with this process that he created 2 himself. But if you're going to do it, at 3 least choose the right data in making your 4 assumptions. And he starts off right from the 5 get-go in choosing the wrong set of data when 6 it comes to odor and defining odor as it 7 relates to gasoline. 8 Q. And then that is covered under factor number 9 one; is that right? 10 A. Correct. 11 Q. So not only did he start with the basis that, 12 yes, I'm going to perform this exposure 13 assessment, using odor what people smell, but 14 then he also is using on your slide the wrong 15 odor threshold, meaning the wrong threshold at 16 which you can begin to start smelling gasoline? 17 A. Absolutely. 18 Q. And then factor number two? 19 A. Well, he didn't account for wind. And there's 20 data from the National Weather Service, from 21 Kansas City at the International Airport, has 22 data that we were able to get from 1961 through 23 1988. EPA says if you have five years of data 24 that is generally a statistical reliable data 25 set. We had '61 through '88, so that is even 32 1 more reliable and the data was extraordinarily 2 consistent over that period of time. We'll 3 talk more about that. But wind direction is 4 important. If it's blowing away from you then 5 you're not going to be exposed to vapors being 6 released into the environment. 7 Q. And factor number three? 8 A. There's a -- he used and I think later 9 corrected for this in a second supplemental 10 report. He's changed his report I think after 11 he recognized an error that he had made in this 12 item number three. Gasoline -- benzene is 13 present in gasoline. It is varied and changed 14 over time. But, yes, there's benzene present. 15 There's what's called a liquid phase. There's 16 gasoline in the liquid and then there's a vapor 17 phase what evaporates off there. The vapor 18 phase, what is in the air, is different than 19 the concentrations that are in the liquid. In 20 fact, the benzene content in the air in the 21 vapor phase is what is less than in the liquid 22 phase and he didn't recognize that when he did 23 his second report. 24 Q. But his first calculation? 25 A. His first calculation. And then later he -- 33 1 recently, he modified that and he did recognize 2 that there is a difference in that. 3 Q. And what you mean by that, just so I'm clear, 4 is in there -- is the benzene content in liquid 5 gasoline would be different than the benzene 6 content in vapor gasoline? 7 A. Yes. If you have one percent benzene in liquid 8 phase you don't have -- the benzene is not 9 one percent of the vapor phase, it's about 100 10 to 300 times less than in the airborne phase of 11 the material. 12 Q. And then the last factor? 13 A. He, in his report, used data from Canada, from 14 other -- I think he had some material safety 15 data sheets from Amoco and from Shell. And 16 used those materials, safety data sheets, as if 17 they were technical speck sheets on the 18 gasoline product. And I presume he just wasn't 19 aware of a particular document from the 20 mid-1960s from Sugar Creek that identified the 21 actual benzene content of gasoline. So he used 22 data that was far above what was actually 23 present at the Sugar Creek gasoline and benzene 24 concentration. 25 Q. All right. Let's talk about the first 34 1 assumption that he made. 2 MS. McELDOWNEY: And, Your Honor, may 3 I approach the witness? 4 THE COURT: You may. 5 Q. He started with odor, what people smell, as a 6 basis upon which to build his exposure 7 assessment; is that right? 8 A. Well, sort of. He used a study from Drinker, 9 who was the author, 1943. It was really a 10 study to evaluate toxicological effects, what 11 would happen if you exposed people to vapor in 12 the air, gasoline vapor. It really wasn't an 13 odor threshold study. It's what happens when 14 you expose people to varying levels of gasoline 15 in the air. 16 Q. And what did Mr. Petty use for purposes of 17 determining what people were smelling? You 18 understand he never had an opportunity 19 obviously to interview Mrs. Ryan about what she 20 in fact smelled. Do you have an understanding 21 as to what other sources of information then he 22 assumed for purposes of his calculation? 23 A. In my review of Mr. Petty's deposition 24 testimony, he relied on accounts from Mr. Ryan, 25 and from Mrs. Ryan's daughter, I guess, who was 35 1 born in 1955 and I like I said lived at the 2 Evans property from 1955 to 1960. I'm not sure 3 her accounts of the Evans property apply. But 4 he relied on those two individuals for 5 description of odor. 6 Q. And do you have an understanding of what 7 Mr. Ryan and his daughter, Nancy Jane Eberle, 8 told him about what they smelled during the 9 time period they lived on Evans and on Huttig? 10 A. I don't know what they told him. Again, it's 11 from testimony of Mr. Ryan, from his daughter, 12 where they indicated that at the Evans property 13 that, yes, occasionally there were some parts 14 of the testimony there was occasional smells on 15 one or two occasions, Mrs. Ryan had smelled it 16 to the extent where it made her nauseous. But 17 it varied. 18 And, in my view, he also described the 19 odors not only of gasoline on occasion but 20 sulfur based compounds which are common with 21 petroleum products. You have sulfur in 22 petroleum products so you can smell those in 23 the part per billion levels. Like driving into 24 a town that has a paper mill, that's what you 25 smell, the same sort of thing. Doesn't cause a 36 1 health hazard, but it's not a very pleasant 2 smell. 3 Q. So, as far as you understand, at least for 4 purposes of his initial calculation that he 5 made, he relied at least upon, in part, his 6 interviews with Mr. Ryan and his daughter; is 7 that correct? 8 A. Yes. 9 Q. Did he come then to the conclusion that they 10 were smelling strong orders of gasoline for 11 that 24 year time period? 12 A. Yes. Based on his calculation and his tables, 13 he listed it as strong odors every day, all 14 day, seven days a week, except for a two week 15 vacation period. 16 Q. You're not aware of this, but we have heard 17 testimony in this trial of neighbors and former 18 refinery workers about what they, in fact, 19 would smell in the residential community, 20 outside of the refinery. And I believe we have 21 heard from four neighbors. And, generally 22 speaking, they said, yeah, it was strong some 23 days. It wasn't as strong at other times. The 24 wind may or may not have effected what they 25 were smelling. Sometimes it was stronger in 37 1 the winter. Some other witnesses said it might 2 be stronger in the summertime. And others said 3 they didn't really smell it all, only once in a 4 while. 5 Could you tell me where in Mr. Petty's 6 report he accounted for what other neighbors 7 were smelling during this 24 year time period? 8 A. Well, he did not. In fact, you have the same 9 problem in the exact study that he is relying 10 on, the Drinker study. If you read that study 11 carefully they exposed laboratory technicians, 12 they exposed I think there was a series of -- I 13 think they were women from 17 to 30 plus years 14 of age. And within each of those groups, even 15 the experienced laboratory people, some smelled 16 it at high levels and some smelled it at low 17 levels. There was incredible variation among 18 the different groups. That's a big reason why 19 odor is not used. It is not a reliable source 20 of evaluating exposures. It cannot be used. 21 Q. We have also heard during this trial from 22 refinery workers, guys that worked at the 23 refinery, went there every day, worked there 24 eight hours a day, five days a week, and they 25 have said that they don't recall smelling 38 1 gasoline in the Sugar Creek community. So can 2 you tell me where in Mr. Petty's calculations 3 he accounted for their recollection of what the 4 odors were during that 24 year time period? 5 A. He did not. 6 Q. Let's talk a little bit -- you mentioned the 7 Drinker paper. Is this the paper upon which 8 Mr. Petty then determined what the odor 9 threshold of gasoline would be? 10 A. That was his basis of saying that based on the 11 descriptions by family members, the two family 12 members, that the odors, that the concentration 13 in the air 24 hours a day, seven days a week, 14 fell within this range of values, a 150 to 600 15 parts per million, day in and day out, hour 16 after hour, based on this 1943 paper. A paper 17 which the analytical techniques of the time 18 didn't even really allow them to accurately 19 measure those types of levels. 20 Q. And we have heard about this Drinker study 21 before. Is this where he would put women and 22 men in enclosed chambers and expose them to 23 liquid vaporized gasoline? 24 A. That's right. 25 Q. And then what was the purpose of that study? 39 1 A. It was to evaluate the toxicological properties 2 of gasoline. Basically at what point will 3 someone's eyes begin to tear or when will they 4 start getting a scratchy throat or narcotic 5 effects, you know, feeling dizzy or out of 6 sorts. And he was evaluating this among 7 various men and women in a test chamber. 8 Q. And what, in fact, did Mr. Petty decide was the 9 odor threshold of gasoline based upon this 10 paper? 11 A. I don't know if he ever really defined odor 12 threshold. He used this to determine exposure 13 and he said it was a 150 to 600 parts per 14 million, again day in and day out. It varied. 15 His numbers varied depending on the household 16 they were living. 17 For example, Evans he reported 375 parts 18 per million, 24 hour a day, seven days a week, 19 based on using that paper and the Ryans' 20 testimony about smelling, what he believed 21 their testimony to be. 22 At the Huttig property it was 225 to 150 23 parts per million. Pretty incredible numbers 24 given the distance away. I mean incredible to 25 believe. 40 1 Q. So based upon what Mr. Petty did, he's 2 assigning a value of 150 ppm, that's the level 3 at which somebody would begin to smell 4 gasoline; right? 5 A. That's what he was stating, yes. 6 Q. And what, in fact, is the accepted odor 7 threshold for gasoline from various 8 governmental agencies? 9 A. Well, there are various reports and other 10 studies that have been done. The most recent 11 one I know is 1994. And those values range 12 from about 0.08 parts per million to 1 parts 13 per million as the level at which one can smell 14 gasoline. That's called the odor threshold 15 level. That's the concentration, this 16 threshold level, at which now that -- more than 17 50 percent of the subjects who are exposed to 18 it can smell it. That's kind of the criteria, 19 more than 50 percent of the subjects. 20 There's a variety of studies that have 21 demonstrated this. ATSDR, the American 22 Conference of Governmental Industrial Hygienist 23 and the Coast Guard all use a data point of 24 0.25 parts per million. There's others that 25 have done work, Amore in 1983, 0.08. Actually 41 1 there were some numbers even lower than that. 2 And then the API document in 1994 of 0.5 to 1 3 part per million. 4 Of course this is done in a more current 5 time where we had analytical methods that can 6 accurately measure the levels of gasoline in 7 the air. Vastly different than from 57 years 8 ago that this work was done where they were 9 using color metric methods to determine what 10 concentrations were. So it's we're using GCs 11 and mass specs today, slightly more sensitive 12 than what we were using in 1943. 13 Q. So is it fair to say then that Mr. Petty 14 assumed for odor threshold 150 ppm and can you 15 agree with me that it's generally accepted in 16 the industry that 0.25 ppm is the level at 17 which somebody can begin to detect the odor of 18 gasoline? 19 A. Yes. The Coast Guard is a good example. 20 They're the -- when I was with the Coast Guard 21 part of my role was with the emergency response 22 personnel. We were the first ones on the 23 scene. So if a tank car overturned, we were 24 there measuring and evaluating the exposures. 25 That's in their emergency response documents, 42 1 that 0.25 parts per million. It's widely used 2 and widely accepted by people who are in the 3 field every day dealing with products like 4 gasoline. It's a very common commodity in our 5 living and working environment. 6 Q. And is this one factor alone, in other words, 7 the fact that he assumed people don't begin to 8 smell gasoline until it's 150 ppm 9 concentration, is that one factor alone if you 10 adjust that to use what is generally accepted 11 by the federal and governmental agencies as 12 0.25 ppm, that will ultimately change his final 13 calculation by orders of magnitude? 14 A. Yes, 100, 200 times, absolutely. 15 Q. And has the federal government, and 16 specifically the Agency for Toxic Substances 17 and Disease Registry, commented on the 18 limitations of this Drinker study? 19 A. They have. And the most recent version of the 20 toxicological profile for gasoline they did 21 comment on that. And basically what they 22 said -- it's not a reliable document for 23 evaluating human exposure to gasoline. The 24 reason is because it wasn't gasoline vapor that 25 was used in the study. They sprayed heated 43 1 gasoline into ventilation ducts and then spread 2 that out into a room where the people were. 3 So as I mentioned before, that the liquid 4 phase of gasoline is different from the vapor 5 phase, you can let a bucket of gasoline 6 evaporate because the vapor -- the chemical 7 composition is going to be different in that 8 vapor phase than it is from the liquid phase. 9 They basically atomized liquid and heated it 10 up. They applied steam with it at the same 11 time because they didn't want it to be 12 explosive at the nozzle when they were spraying 13 it into the duct work so they added water 14 vapor, heated, steam, along with that and 15 sprayed that into this room. 16 So that's why ATSDR says this is not a 17 reliable document for evaluating effects on 18 humans and, in particular, odor thresholds. 19 Q. And that statement is actually found in the 20 ATSDR toxicological profile for gasoline that 21 we have received into evidence as Exhibit 582? 22 A. That's correct. 23 Q. So for purposes at least for his starting point 24 in calculating what her exposures would be, 25 what is your opinion as to whether or not, 44 1 using odor and then odor thresholds based upon 2 the Drinker study was a really good starting 3 place to calculate what her exposures might be? 4 A. Well, as I said, you don't use -- industrial 5 hygienists don't use odor to model or otherwise 6 evaluate quantitatively exposure. There's not 7 a single article in the peer reviewed 8 literature. I have never seen anybody use it 9 in 28-plus years of doing exposure assessments 10 and I have done many and have worked with many 11 doing assessments. It's not done. 12 If you're going to try to make up a new 13 approach or a new method, at least use reliable 14 data. Don't use data from 1943 that's not even 15 accepted by federal agencies. There's other 16 data that is out there. Use that data. 17 Q. Let's talk about his remaining three 18 assumptions. What happens if you adjust 19 Mr. Petty's calculations putting in actually 20 accurate assumption data? So the first one is 21 wind. Would you explain to the jury what he 22 assumed and then what you did to correct that 23 assumption? 24 A. Mr. Petty assumed that the odor was present 25 90 percent of the time. So 90 percent of the 45 1 time that she was there at the house, I believe 2 16 hours a day, when she was not working for 3 five days a week and then perhaps 24 hours a 4 day for the weekend. Fairly consistent ongoing 5 exposure. And at the Evans property he was 6 saying she was exposed to 375 parts per 7 million. 8 Now, the health standards for gasoline are 9 300 parts per million. So if somebody is 10 exposed, even for a short time to 300 parts per 11 million or 375 parts per million, you're going 12 to start having severe eye irritation, upper 13 respiratory tract irritation let alone 16 hours 14 a day. Personally, I do not believe that would 15 be bearable. And we corrected that assumption 16 by going to the National Weather Service, 17 getting data from the closest point, which was 18 the Kansas City International Airport, and data 19 from 1961 through 1988. 20 Q. And what did that data show? 21 A. That 44 percent of the time that the wind, it 22 was blowing away from the Evans property. So 23 for that -- nearly half time the wind was 24 blowing away. Not 90 percent of the time 25 blowing towards her. It was 44 percent of the 46 1 time blowing away. From the Huttig property, 2 which was much further away it's 78 percent, 3 almost 80 percent of the time it would be 4 blowing away from her residence. So it would 5 not have had an exposure from anything coming 6 from the refinery. 7 Q. So as I understand the wind data and the data 8 that you have used to correct Mr. Petty's 9 assumption, is this the type of data that 10 industrial hygienists would use in order to 11 determine what the predominant wind direction 12 would be? 13 A. Sure. I have used this before. Environmental 14 scientists use it in doing community exposure 15 assessments. It's a critical component of 16 their approach. 17 Q. So what I can understand then, what you did is 18 at the Evans Street property then if she 19 smelled anything she only had the possibility 20 of smelling gasoline 56 percent of the time 21 that she was there? 22 A. Right, not 90 percent. 23 Q. And then at the Huttig property she would have 24 had the potential to smell gasoline only 25 22 percent of the time? 47 1 A. Correct. 2 Q. The next factor that you considered was his 3 gasoline concentration and if you could briefly 4 explain what you did here? 5 A. In Mr. Petty's -- both of his two follow-up 6 reports where he made corrections the third 7 time, he used this 100 to 600 parts per million 8 and he got that number from this 1943 Drinker 9 article where they exposed all these people in 10 the chamber to atomized gasoline. He used an 11 average depending on the property and depending 12 on how close it was to the -- the Evans 13 property he used a higher number. He used an 14 average. He used 375. 15 For the Huttig property he used 225 and 16 then later on in time because there was 17 something -- he adjusted for some environmental 18 controls that may have gone in place he dropped 19 it down to 150 parts per million. So he varied 20 that number between 100 and 600 and he used 375 21 to 150 parts per million as the day in and day 22 out exposure level to Mrs. Ryan. 23 Q. And how did you correct that assumption? 24 A. I used -- we saw the odor thresholds range from 25 0.08 to 1 part per million based on acceptable 48 1 odor threshold data. I used 10 parts per 2 million based on my own experience in 3 monitoring for gasoline, doing underground 4 storage tank removals, and what was taken from 5 other data. And 10 parts per million is about 6 40 times or more than this number of 10 parts 7 per million. I used a higher number to kind of 8 account for a strong odor. If there were 10 9 parts per million in your house, it would smell 10 pretty strong. Even a few parts per million 11 would smell pretty strong in your house. 12 Q. And even at 10 ppm of gasoline would you start 13 to exhibit maybe even any physical effects from 14 being around that for a long period of time? 15 A. That's possible. I have not seen data where 16 humans were exposed for 16 hours a day. I 17 can't honestly answer that. But it's quite 18 possible because the longer you're in there, 19 the greater the potential for an adverse 20 effect. Honestly I have not seen any data that 21 looked at exposures for that long. 22 Q. Let's look at the last factor that you 23 corrected. That was the benzene content of the 24 Sugar Creek gasoline. If you could explain 25 what Mr. Petty assumed and how you corrected 49 1 it. 2 A. He's saying the benzene content of the gasoline 3 at Sugar Creek contained 2.75 percent. All the 4 records for the relevant time period in which 5 Mrs. Ryan -- there is a claimed exposure to 6 benzene from the Sugar Creek gasoline actually 7 show it was in the mid-1960s, a document that 8 shows 0.7 percent for both premium and regular 9 gasoline. So gasoline benzene content can vary 10 depending on where you are in the country or 11 what part of the world you're in. The benzene 12 in crude is different. It depends on where it 13 comes up out of the ground. So it's different. 14 It's also different based on your point in 15 time and your point in history. But during 16 this time, it was generally less than 17 one percent and there's a lot of literature 18 explaining that as well. 19 Q. I know you don't agree with his initial premise 20 that you can use what people smell to do an 21 initial exposure assessment but just assume 22 that to be true and a reliable way to do it. 23 Then adjusting for the three factors that we 24 just went over, you in fact did that 25 calculation; is that right? 50 1 A. Yes. I mean, I followed Mr. Petty's process 2 and just inserted what I believe were more 3 accurate, reliable, and believable numbers. 4 Q. And when you inputted the correct assumptions 5 and, again, not saying that you endorsed how he 6 created this model or exposure assessment in 7 the first place, what did you in fact calculate 8 was her exposure or potential exposure to 9 benzene from gasoline during the 24 year period 10 that she lived on Evans and on Huttig? 11 A. I came up with 0.6 parts per million. That's 12 in contrast to 400 parts per million years in 13 Mr. Petty's second report and 163 parts per 14 million years in his third report. 15 Q. And if I could just -16 MS. McELDOWNEY: Is Exhibit 752, Your 17 Honor, received in evidence? 18 Q. (By Ms. McEldowney) Is this in fact the table 19 from Mr. Petty's first calculation of how much 20 he attempted to determine what the potential 21 exposure to benzene from gasoline would be? 22 A. Yes. 23 Q. And what was his ultimate finding as to her 24 potential exposure? 25 A. I believe that's 412 ppm years. 51 1 Q. And your calculation, adjusting and correcting 2 his assumptions came to? 3 A. 0.6. 4 Q. And then he performed yet another calculation 5 in July and what did he calculate her potential 6 exposure to be? 7 A. That's 164.7, again, versus 0.6. 8 Q. What caused the 60 percent reduction in his own 9 calculations from 412 to 164? 10 A. I think not long after my deposition in this 11 matter he had recognized an error that was made 12 in one of his assumptions and that was this 13 ratio of benzene in the liquid phase versus the 14 vapor phase or the air phase. So he realized 15 that based on using one of his own papers he 16 made a mistake, he made the adjustment from 412 17 to 165. 18 Q. So what happens then if you actually believed 19 Mr. Petty's calculations, have you done some 20 calculations to determine that if everything he 21 did was accurate and reliable what would happen 22 in concentrations of gasoline around her home 23 on Evans if you took that back to actually the 24 source of the gasoline to the refinery fence 25 what, in fact, did your calculation show? 52 1 A. Well, this was using 600 parts per million. 2 You can use 375 parts per million and reduce 3 that number but what actually happened -4 common sense applies in industrial hygiene just 5 like it does in any other part of life. So if 6 you're assuming that there's 600 parts per 7 million in somebody's house on some occasion 8 and it's coming from a source that is some 9 distance away, then logically the source has a 10 higher concentration than it does at the place 11 where you're measuring that exposure. 12 So I actually ran an EPA model to 13 determine what the concentration would be at 14 the source. And found out that it was deadly 15 to people, acutely dangerous if any of us 16 walked through that plume of material we would 17 be dead if we didn't blow up first. 18 Q. So, in other words, if the gasoline 19 concentrations at Mrs. Ryan's home on Evans 20 Street were even between 375 to 600 if you go 21 back to the source of the odors there, to the 22 refinery fence, to, say, the nearest gasoline 23 tank it would have been at explosive limits? 24 A. That's right. For example, if this was a 25 container of benzene and I have a reading 53 1 instrument and I come over and I measure right 2 here, I'm going to get the needle to peg on 3 that instrument. If I move it right here, I'll 4 probably get no detectable levels. If I get 5 closer, I might get a little bit. If I get 6 closer, I'm going to get more. If I get here, 7 I'll get a lot. And that's what this is 8 telling us. It's common sense. As you get to 9 the source it's got to be a higher level of 10 exposure. In this case, it's a catastrophic 11 level, if you believe the assumptions that were 12 made by Mr. Petty in this case. 13 Q. Now, we talked a little bit earlier, you said 14 you tried or you attempted to do your own 15 exposure assessment but there just wasn't 16 enough data available to do that and I know 17 that you have reviewed Mr. Petty's reports and 18 all of the documents that Mr. Petty apparently 19 relies on evidencing leaks and spills at this 20 refinery; is that right? 21 A. Yes. 22 Q. Can you tell us a little bit about -- from all 23 of the documents that Mr. Petty reviewed 24 showing all the leaks and spills at this 25 refinery, out of all of those documents which 54 1 one would provide you at least some data upon 2 which to do an exposure assessment? 3 A. There was one in particular where there was a 4 report of somebody calculating a loss of 5 gasoline vapors from tanks. And they reported 6 7664 barrels of gasoline vapor, I think the 7 light end, escaping from tanks. These are more 8 the domed type tanks. So I used that data 9 since that had some objective information there 10 about the amounts of material and plugged that 11 in with other data into this EPA Screen Three 12 model. 13 Q. And why did you choose that particular document 14 as opposed to any of the other leak and spill 15 documents that Mr. Petty reviewed? 16 A. It was the only document that had some 17 objective data in it, had actual information in 18 it about amounts of material that I could use 19 to plug into this model, it was necessary to 20 plug in this model. 21 Q. And did that, in fact, provide a point source 22 of potential emissions into the atmosphere? 23 A. Correct. 24 Q. And the other documents that Mr. Petty reviewed 25 talked about leak and spills into the ground; 55 1 right? 2 A. Into the ground or perhaps there were also some 3 instances into the creek or on railroad tracks 4 or, you know, other areas but, you know, more 5 confined areas that generally wouldn't lead to 6 an exposure at any distance immediately away 7 from those confined locations. 8 Q. So because her only exposure route was her 9 breathing in potential gasoline odors, you 10 found it not important or relevant to look at 11 documents evidencing leaks and spills under the 12 ground? 13 A. I wouldn't say it wasn't important or relevant. 14 I mean I looked at all the documents and tried 15 to consider everything. I used this one 16 document in particular because, again, there 17 was some form of objective data there. At 18 least it gave me a beginning point to make this 19 assessment. The others did not. 20 Q. This it last page of what we have marked as 21 Exhibit 30. Is this the document upon which 22 you tried to determine what her potential 23 exposures would have been from an actual point 24 source? 25 A. Yes. It looks like the page. I'm trying to 56 1 see where it said 7000. 2 Q. I think it's the last paragraph. 3 A. Yes. Okay. Thanks for the highlight. 4 Q. Actually, we have heard from testimony from 5 witnesses that, in fact, this document, the 6 loss of 7664 barrels, if you assume that that 7 calculation was accurate was happening 8 somewhere in the Norguard Tank Area, I believe 9 somewhere up here. But we have asked you to 10 assume -- this is a better picture -- which is 11 this area here. 12 But we asked you to assume for purposes of 13 this calculation that the point source 14 emissions was coming from the closest gasoline 15 tanks to her home on Evans and on Huttig; is 16 that right? 17 A. Yes. In fact, those tanks had what are called 18 floating roofs. You wouldn't have 19 volatilization of vapors from those tanks. But 20 I, for purposes of this exercise, I wanted to 21 get -- try to look at the what the highest 22 number could be at Mrs. Ryan's home. I assumed 23 that these tanks were the domed type tanks and, 24 in fact, that the 7600 barrels of material came 25 from a tank located there. It couldn't have 57 1 been those tanks because they were floating 2 roofs, meaning there is no vapor -- there's no 3 space in there for vapor to expand. The roof 4 sits right down on the liquid itself so there's 5 no vapor phase in there. 6 Q. So if you could take us through quickly how you 7 performed this calculation and what model you 8 in fact used to do so? 9 A. Again, it was an EPA Screen Three model. 10 That's the name of it. It's identified in the 11 federal code of -- Code of Federal Regulations 12 40 CFR. And it's a standard model used by 13 environmental people, by risk assessment 14 people, EPA, ATSDR, use this same model to 15 evaluate community exposures. The model 16 overstates exposure. It has uncertainty built 17 into the model and it overstates exposure. 18 Q. Tell us what calculations you made in order -19 that you inputted into this EPA model. 20 A. Basically it was distance, the height of the 21 tanks themselves, and the amount of material, 22 the number of grams of gasoline and ultimately 23 benzene that were coming out of those tanks on 24 a daily basis for a month long period. 25 Q. So you were assuming that from the nearest tank 58 1 to each of those residences, each of those 2 tanks even though we know that they were 3 floating roofs and would not be emitting any 4 gasoline into the air, but you assumed the 5 highest possible reading could be 7664 barrel 6 losses of gasoline? 7 A. That was based on the memo, the calculation 8 done by someone within Amoco. 9 Q. You did the same then for the Huttig Street 10 residence, you took that and assumed that loss 11 from the nearest gasoline tank? 12 A. That's correct. 13 Q. When you inputted that data what were your 14 ultimate findings? 15 A. Well, based on the amount of benzene and the 16 gasoline and the proximity of these tanks and 17 the amount of material coming out of these 18 tanks and this hypothetical situation that at 19 the closest residence it was just over 11 parts 20 per billion -- parts per billion not million -21 of benzene that would have been at her house, 22 not inside her house, but just outside of her 23 house. At the Huttig property it was 2.6 -24 well, 2.65 parts per billion based on the 25 standardized approach. 59 1 Q. And can you give us some context as to what 2 that means? What does 2 to 11 parts per 3 billion of benzene in the air mean? 4 A. It's general background. It's basically 5 ambient. I could probably go into most of your 6 homes -- and I'm not saying there's anything 7 wrong that's in any of your homes. I could go 8 in my house and I can measure those kinds of 9 levels and higher in homes. EPA has done 10 studies over the years. Wallace et al. has 11 done a study measuring inside homes around the 12 country and found levels similar to this and 13 even slightly higher. 14 Q. And, in fact, has the EPA issued a report that 15 talks about background levels of benzene in the 16 air that we breathe? 17 A. Yes, they did. It's called the total exposure 18 assessment methodology study. It's like they 19 came up with an acronym and they had to come up 20 with the words for it, the team study. And in 21 that study is where they went into homes around 22 the country and measured inside and outside 23 homes and looked for benzene and toluene and 24 other hydrocarbons. 25 Q. I'm going to hand you a document that we have 60 1 marked as Exhibit 639 and ask you if this is 2 the team study that you're referring to? 3 A. Yes. 4 MS. McELDOWNEY: Your Honor, I would 5 offer Exhibit 639. 6 MR. WALTERS: No objection. 7 THE COURT: Exhibit 639 is admitted. 8 Q. (By Ms. McEldowney) What did the team study 9 show in terms of background benzene levels in 10 the air that we all breathe? 11 A. That it's part of our environment. Benzene 12 comes from many sources, from various products. 13 It comes from smoke, whether you're burning 14 wood in the fireplace or whether you're smoking 15 cigarettes. It's there. It's present. It's 16 in our body. We have benzene in our body that 17 makes up D.N.A. It's part of the world around 18 us. This shows that there's a background level 19 in the modeling that we did, even at this 20 scenario that we created to get the levels as 21 high as we could get them, still shows only at 22 the closest residence of 11 1/2 parts per 23 billion. And that's outside the house. It's 24 less inside. 25 Q. And did you reach certain conclusions then 61 1 after you did all these calculations and 2 analyzed what Mr. Petty did with respect to 3 whether or not his exposure assessment is 4 reliable? 5 A. Sure. 6 Q. And what were your conclusions? 7 A. Well, I have said it a couple of times now. 8 I'll say it again. The use of odor is totally 9 unacceptable. It's not done by any other 10 industrial hygienist or environmental scientist 11 to evaluate exposure. There's too many 12 variables. Each of us here would have a 13 different sense of what a particular odor means 14 and it doesn't quantify what the level of 15 exposure is. The sense of odor comes and goes 16 depending on the level of exposure. So it is 17 not used. It is not a scientific reliable 18 method to evaluate exposures to individuals. 19 Q. And, in fact, what I have been writing here on 20 this easel, I mean, doesn't this sort of say it 21 all? If you use odor or what people are 22 smelling to determine what past exposures would 23 have been, you get numbers like Mr. Petty 24 calculated of 412 ppm years, and with one 25 adjustment it went down 60 percent to 164 ppm 62 1 years? 2 A. That's right. If he had kept adjusting and 3 corrected the other values in the study he 4 would have gotten down to the 0.6 number that I 5 did. But, again, the numbers don't mean much 6 of anything because it's not a tested method. 7 It's not reliable. There's no way to evaluate 8 it or compare it against anything out there to 9 tell you whether it's true or not. 10 Q. And, in fact, what the EPA endorses or 11 sanctions when you're trying to do this kind of 12 assessment is at least what you attempted to 13 do, one model was an EPA model using a point 14 source; right? 15 A. It's called a point source and a volume source 16 and we used both. And I ran both. The volume 17 source is even less than the numbers that we 18 just looked at there. But that is how you 19 evaluate community exposures. It's a tested 20 model. It's published. It's in the federal 21 regulations. It's in the published literature. 22 And it's an accepted technique for evaluating 23 exposure. It overstates the exposure. But 24 it's an accepted technique for evaluating 25 exposures. Odor is not. 63 1 Q. In fact, the EPA model calculation that you 2 performed was showing background levels of 3 benzene and that was assuming sort of the 4 highest concentrations of gasoline that could 5 have been or that Mrs. Ryan could have been 6 exposed to? 7 A. Right. We took that document where there was a 8 calculated release of almost 8,000 barrels of 9 gasoline. I don't know why Mr. Petty didn't 10 use it because it was objective data, not odor 11 data that's not objective. We used that data 12 to try to create the highest possible level 13 that we could and that's what we came up with. 14 Q. So as a certified industrial hygienist, if you 15 had two alternatives to do an exposure 16 assessment, would you use smell or would you 17 use an EPA well-accepted model? 18 A. I mean, obviously, clearly I would use the EPA 19 model. The odor method doesn't pass the smell 20 test. 21 Q. And, Mr. Spencer, have all your opinions today 22 been to a reasonable degree of scientific 23 certainty? 24 A. Yes, they have. 25 MS. McELDOWNEY: Thank you. 64 1 THE COURT: You may cross-examine. 2 CROSS-EXAMINATION 3 BY MR. WALTERS: 4 Q. Mr. Spencer, we met in Baltimore for your 5 deposition; right? 6 A. Yes, we did. 7 Q. Now, I want to see if I understand this, are 8 you telling this jury that someone who lives 9 within 500 feet of a gasoline storage tank that 10 holds over 3 million gallons of gasoline, that 11 if that gasoline tank is leaking 8,000 barrels 12 and someone lives within 500 feet of that, that 13 that is going to be no different that what you 14 can find at my house in Smithville? 15 A. No, that's not what I'm saying. That data was 16 based on a monthly loss. I computed that over 17 the course of a month. If that happened all at 18 once, yes, that's a sudden and a catastrophic 19 release of material. That clearly didn't 20 happen. There would have been explosions and 21 fires and death as a result of that. This was 22 over a month-long period and based on that 23 month-long period those are the levels that you 24 get. 25 Q. Now, I want to talk with you a little bit and 65 1 pull up -- first off, let me ask you about 2 something. You know Mr. Petty did not use odor 3 threshold; right? 4 A. I'm not quite sure what he used. He used data 5 from the Drinker study that was really based on 6 toxicological responses. 7 Q. Right. It's based on odor recognition, would 8 that be a better term? 9 A. No. 10 Q. Odor from the Drinker study is different than 11 odor threshold; right? 12 A. No. 13 Q. All right. 14 A. In odor threshold there is odor detection and 15 there is odor recognition. But that study that 16 he relied on was determining how severely 17 someone's eyes would tear or whether their 18 throat would constrict or whether they would 19 get nauseous. 20 Q. Let me ask you something about the ATSDR odor 21 threshold. That's based, as I think you 22 testified, on current data; right? 23 A. Yes. 24 Q. And it's true, is it not, that over time 25 substances have been added to gasoline to raise 66 1 the octane? Is that true? 2 A. Yes, in the late 1970s and early 1980s, they 3 started taking the lead out of gasoline so they 4 increased the aromatic content of gasoline. 5 Q. And there's a chemical called MTBE that has 6 been added to gasoline? 7 A. Yes, which has an even lower odor threshold. 8 Q. And those would change the odor threshold 9 though; wouldn't it? 10 A. It would. I'm not sure -- MTBE wasn't added 11 until later. I'm not aware that it was in this 12 particular product at the Sugar Creek facility. 13 Q. Now, I want to ask you about -- and I'm going 14 to put up here on the board -- I'm looking for 15 exhibits, Exhibit 322. Let's look at 16 Mr. Petty's calculations here. And let me 17 point out something, you're an industrial 18 hygienist and he's an industrial hygienist; 19 right? 20 A. Correct. 21 Q. And he's something that you're not and that is 22 a chemical engineer? 23 A. Yes, he is. 24 Q. He has a chemical engineering degree that you 25 don't hold? 67 1 A. That's correct. 2 Q. He has more education and training dealing with 3 chemicals, that's what chemical engineering is; 4 right? 5 A. Well, he's a chemical engineer, I'll give him 6 that. I have been -- I don't know that he's 7 been in a single refinery, at least what I 8 recall from his deposition testimony. I have 9 been in many refineries. I worked with the 10 federal government investigating refineries. 11 So I also -- I know chemicals pretty well 12 having worked at the National Institutes of 13 Health in the laboratory in chemistry while I 14 was in college. 15 Q. Let me start first with you talked about 600 16 parts per million years or 600 parts per 17 million concentration of gasoline; right? 18 A. I talked about and 375, 225 these were the 19 average values he used. This was the range 20 that he used from the Drinker study. 21 Q. He never in making his calculations of her 22 ultimate exposure used a range of 600, did he? 23 A. That's not a range. That was the end of the 24 range. He used 375. 25 Q. And 375 was the most he ever used? 68 1 A. That's correct. 2 Q. If we go to our chart here from the Drinker 3 study -4 A. -- I'm sorry. I need to back up on that. If 5 you look at his report, he gives a range of ppm 6 years based on 150 to 600 ppm. So in his 7 report he did use 600 ppm to compute a range of 8 ppm years. It doesn't show on this chart but 9 it's in his report. 10 Q. Sure. The ultimate calculation, the ultimate 11 number here, never used 600; did it? 12 A. He's not showing it in here. In his report, it 13 did. 14 Q. Now, I want to ask you some questions about the 15 Drinker study. You're not suggesting to this 16 jury that those folks were sprayed with liquid 17 gasoline; are you? 18 A. Well, maybe that's a way to put it. They 19 were -- through duct work was sprayed -- you 20 can see it on the schematic in the paper. 21 There are heated lines, steam jacketed lines 22 that come out into duct work that are spraying 23 aersoloized gasoline that was from under 24 pressure from nitrogen coming out of these 25 nozzles. And with that was also steam so it 69 1 wouldn't explode inside these duct works and 2 then that material was being sprayed into the 3 room. 4 Q. You know from reading that study that they -5 that the gasoline was completely vaporized; 6 right? 7 A. That is what they did. They heated it up in 8 order to get the material from the liquid phase 9 aersolized and spread out into the room. 10 Q. The Drinker study is the only study of its time 11 and even to this day that looked at levels on 12 real human beings? 13 A. Incorrect. The Amore study that did and the 14 API study did that. 15 Q. And you didn't look at those studies; did you? 16 A. Oh, sure, I did. In fact, they were up on the 17 slides there. 18 Q. Well, didn't you testify in your deposition 19 that you didn't know whether or not the odor 20 thresholds used by ATSDR were done on 21 individuals? 22 A. I did not. At that time I hadn't reviewed for 23 that. But after the deposition, I certainly 24 went and looked. I looked at the basis for 25 some of that data and they were done on human 70 1 test subjects, both the Amore data and then 2 later the API data. 3 Q. In your deposition, in fact, you didn't even 4 look to see if they were done on individuals? 5 A. For the ATSDR data? 6 Q. Correct. 7 A. I did not at that time, no. It was standard 8 threshold used by emergency response personnel 9 and I felt it was reliable. 10 Q. Now, I want to follow a little bit with your 11 thought, even though Mr. Petty in his 12 calculation didn't use 600, you as we just saw 13 on the slide did a calculation and determined 14 that it would be explosive back at the tanks; 15 right? 16 A. Yes. 17 Q. All right. I want to show you what's been 18 marked as Exhibit 10 and ask you if you have 19 ever seen this document before? Have you seen 20 this memorandum from 1964? 21 A. I don't specifically recall this document, no. 22 MR. WALTERS: Your Honor, I'll offer 23 Exhibit 10. 24 MS. McELDOWNEY: No objection, Your 25 Honor. 71 1 THE COURT: Exhibit 10 is admitted. 2 Q. (By Mr. Walters) Now, you're aware, aren't 3 you, that the tanks along Willow were about 4 500 feet from the Evans house? 5 A. It was 500, 600 feet. Yes, I believe that's 6 correct. 7 Q. You're aware from your review of the documents 8 that over time those tanks were found to be 9 leaking? 10 A. Yes, through the some of the bottoms of the 11 tanks. Yes, that's true. 12 Q. You would agree that if in fact there were 13 complaints of odors of gasoline on Evans Street 14 those leaking tanks would certainly be one 15 possible source? 16 A. If it was going into the ground and then 17 perhaps coming out somewhere else, yes. If it 18 was going to the ground and it had not come the 19 surface again then, no, there may have been 20 other sources for gasoline odors. Certainly 21 would refute that. 22 Q. Did I ask you -- I'm looking at page 57, 23 beginning on line 9. Did I ask you this 24 question and did you give this answer? Just 25 take a look at it and then we'll take a look at 72 1 it together on the board. Page 57, beginning 2 on line 9. 3 A. Okay. 4 Q. And you were under oath when you gave your 5 deposition; right? 6 A. Yes. 7 Q. Raised your hand just like you did in here and 8 swore to tell the truth? 9 A. Yes, same way, same hand. 10 Q. You told the truth that day? 11 A. Yes. 12 Q. Let's see what you said that day. Right here. 13 "QUESTION: And if in fact there 14 were complaints of odors of 15 gasoline in the area of Evans 16 Street, those leaking tanks 17 would certainly be one 18 explanation as to the source 19 of those odors?" 20 And your answer was; 21 "ANSWER: It could be a source, 22 yes." 23 Did I read that correctly? 24 A. Sure. 25 Q. And you gave that answer? 73 1 A. I did. And I believe I gave a similar answer 2 when I said in terms of it could be, depends on 3 if it went into the ground or if it was on the 4 surface. On the surface then, yes, you might 5 smell a spill of gasoline. If it goes in the 6 ground, no. 7 Q. Let's look at Exhibit 10. Is Exhibit 10 that I 8 just showed you -- this is an internal Amoco 9 memo from 1964; right? 10 A. I'm really not familiar with that document. 11 Q. From the manufacturing department it says. 12 A. Okay. 13 Q. And if we flip back over to the last page they 14 talk, do they not, about leaks; Tanks 176, 177. 15 Those are the tanks along Willow; right? 16 A. Yes. 17 Q. And when they went out to check those leaks, 18 they found vapors in the fire wall holes were 19 found to be explosive; isn't that what they 20 found on that occasion? 21 A. I'm sorry. What holes are they talking about 22 there? 23 Q. Well, they're talking about the fire wall holes 24 that they drilled into these tank areas and 25 they found vapors in those holes that were 74 1 explosive. 2 A. Absolutely. If you're in a confined area and 3 there's even a small amount of gasoline that 4 could be explosive. I mean, that is clearly 5 possible. But that's in an enclosed or 6 confined area. 7 Q. Now, I want to talk to you a little bit about 8 the wind. You used wind data from Kansas City 9 International Airport; right? 10 A. Correct. 11 Q. And you're aware that's 20 to 30 miles away 12 from Sugar Creek? 13 A. That was my estimate. Is that correct? Is 14 that about right? 15 Q. That was your estimate? 16 A. Yes. 17 Q. And you would agree that wind direction at a 18 given location is going to depend on 19 topography; right? 20 A. No. Not wind direction, no. 21 Q. The wind direction will remain the same but 22 whether or not a given location because of 23 topography experiences a breeze, topography 24 would effect it; would it not? 25 A. Certainly it can. If it's something that is 75 1 protected from the wind it certainly doesn't 2 experience the immediate effect of that wind 3 but whatever -- if there's vapors being 4 released it certainly can't come up and go 5 against that wind. 6 Q. But topography, in other words, hills, can 7 effect -- you could have a swirling effect, for 8 example? 9 A. Well, you don't necessarily have a swirling 10 effect. You have what's called a vortices, 11 it's like buildings. It's something that is 12 studied in ventilation systems. It's why you 13 put your stack up a little higher on the 14 building to get away from the effect of the 15 building because it creates a swirling effect. 16 Whatever is coming out will remain right there, 17 it won't move from that spot. 18 Q. Didn't you testify in your deposition that you 19 would have to look at a particular topography 20 to make any determination of what effect wind 21 would have? 22 A. Which is what I did, yes. 23 Q. You didn't look at the topography to determine 24 what wind direction would effect? 25 A. No, no, no. Not wind direction but the effect 76 1 of wind. 2 Q. Now, I think you answered this earlier but you 3 didn't put together a model yourself that you 4 believe to be more reliable; correct? 5 A. Well, no, not entirely correct. I did put 6 together the model that we used, the EPA 7 environmental model, the Screen Three model. 8 Q. I'm talking about to determine Mrs. Ryan's 9 exposure. You didn't put together a model 10 yourself that you believe would be more 11 reliable? 12 A. Not that would address her specific exposure. 13 The EPA screen model that I use I believe 14 overstated what her exposure would have been. 15 Q. Now, I want to talk to you about Mr. Petty's 16 report here. Now, he used a benzene 17 concentration in gasoline of 2.75; correct? 18 A. Yes. 19 Q. And you relied upon one document from one month 20 in 1963 of 0.7 correct? 21 A. Well, there was a specific Amoco document, yes. 22 Although I believe there was one other that -23 there was another document, I can't recall the 24 date on it, but it said less than 1 percent to 25 1.5 percent. I also relied on literature from 77 1 Runyan, from McDermott et. al, from Wittsom and 2 there are others in the literature that 3 described the benzene content in United States 4 gasoline during this period. 5 Q. But you made the assumption that during the 6 entire operation of the refinery the benzene 7 concentrations in gasoline was 1 percent; 8 right? 9 A. I used 1 percent, I used the best data that was 10 available; not data from Canada, not data from 11 Europe or not from a material safety data 12 sheet. 13 Q. All right. And you had never heard -- when I 14 took your deposition you had never heard of 15 gasoline with a 5 to 15 percent benzene 16 concentration; right? 17 A. Not gasoline. I mean, Europe approached, 18 historically approached, 5 percent. They had 19 higher benzene content in their crude and their 20 manufacturing process was different than here 21 in the United States. 22 Q. But didn't you tell me that you'd never heard 23 of gasoline with 5 to 15 percent? 24 A. Yeah. That's what I just said, yes. 25 Q. And the information that you reviewed in 78 1 formulating your opinions in this case, you got 2 those from defendant's attorneys; right? 3 A. Well, actually I found the Sugar Creek document 4 from the mid-1960s. I had it in my file from, 5 I don't know, something else. The other 6 literature that I had on benzene content comes 7 from the IARC, the International Research 8 Agency on carcinogens and it comes from other 9 literature that I already had in my possession. 10 Q. But you relied on information provided you from 11 the defendants? 12 A. I really didn't on the issue of the benzene 13 content. 14 Q. Well, one thing that you didn't receive was 15 Exhibit 75; correct? 16 A. Correct. 17 Q. I'll show you that and then we'll put it up on 18 the board. 19 A. Yes, I did see that. 20 THE COURT: It's already admitted. 21 A. I'm sorry, Mr. Walters, what was the date on 22 that, again? 23 Q. (By Mr. Walters) August 12, 1981. 24 A. Okay. Thank you. 25 Q. And you hadn't ever heard of gasoline with 79 1 benzene at 5 percent. But as it turns out on a 2 sampling occasion in August of 1981 results as 3 high as 5.4 volume percent benzene as 4 determined by the Whitting Laboratory for Sugar 5 Creek Amoco regular sample July was found; 6 right? 7 A. That's what it says. But you need to 8 understand, one data point does not make an 9 average level. Also, importantly here this is 10 in 1981. They were taking lead -- the EPA was 11 requiring lead be taken out of gasoline. In 12 order to get the octane boost that lead was 13 providing, they added aromatics, including 14 benzene. So actually the benzene content went 15 up in this period of time than what it was 16 historically. 17 Q. But you never heard, at the time I took your 18 deposition, of gasoline with five percent or 19 more benzene; right? 20 Now, what they did, isn't it true, that 21 they took multiple samples because they weren't 22 supposed to have any more than -- wasn't 23 supposed to exceed five percent? 24 A. That's what that memo appears to say. I don't 25 know everything behind or how many samples were 80 1 collected. 2 Q. And doesn't this memo talk about that they 3 could sample different I'm looking for -- here 4 it is. They had sampled the top, middle, and 5 bottom of the storage tank strata. 6 A. Yes. 7 Q. And, so, depending on where you sample it, that 8 can change the percent of benzene; right? 9 Because when they resampled it at another -10 the same product sample later analyzed yielded 11 a result of 3.2 to 3.3 percent benzene? 12 A. That may have been error within the analytical 13 method as well. It's difficult to measure 14 benzene in a mixed hydrocarbon solution. Even 15 in 1981 the technique was -- had variability in 16 the analytical results. But again this is 17 1980s where they were adding more aromatics at 18 this time because they had taken the lead out, 19 not the types of aromatic levels that were 20 present in the '50s, '60s, and even the '70s. 21 Q. But you assumed the same value for the entire 22 time period that they operated the refinery; 23 didn't you? 24 A. Yes, it was -- and the evidence actually shows 25 that it was lower. 81 1 Q. Now, I want to talk to you again about some of 2 the things that Mr. Petty accounted for. He 3 did not assume that Mrs. Ryan was exposed 24 4 hours, seven days a week, he reduced that? 5 A. I think I mentioned that. He was saying 16 6 hours a day because she had worked. So she was 7 at work for eight hours a day. And then I 8 think he made some accounting, maybe saying 9 only 90 percent of that time. We talked about 10 that. 11 Q. Now, ultimately in this column here, we have 12 his -- based on his calculations, his estimate 13 of, in ppm, the amount of benzene that 14 Mrs. Ryan was exposed to. Is that how you 15 understand this column? 16 A. Yes, that's his calculated number, yes. 17 Q. And one of the things if you have the data, if 18 someone had gone out and taken actual 19 measurements at her house those could be 20 plugged into this part of chart; correct? 21 A. If someone had gone to her house and taken 22 measurements? You wouldn't even need this 23 chart. 24 Q. That's what I'm saying. The whole reason that 25 Mr. Petty created an estimate is because at no 82 1 point in time did anyone -- during the time 2 period that Mrs. Ryan lived on Evans Street or 3 on Huttig -- do any air monitoring at her 4 house? 5 A. Sure. And that's true probably almost anywhere 6 in this country. And that's why if you're 7 going to do a retrospective assessment you 8 choose the right methodology to do that 9 assessment that has some reliability and 10 meaningfulness to it. He's got benzene 11 concentration of 4.3 parts per million up 12 there. If you look at -- with that comes the 13 total hydrocarbons from gasoline. He's got 14 them exposed to over 860 parts per million of 15 total hydrocarbons. People would be 16 unconscious in that house after a few hours. 17 Q. Well, isn't it true, Mr. Spencer, that you have 18 reviewed some industrial hygiene reports from 19 actually on the refinery; right? 20 A. I did look at them, yes. It wasn't part of my 21 task here but, yes, I looked at them. 22 Q. Were you aware that on-site they found benzene 23 at 73.4 parts per million? 24 A. Sure. That's what the data says. What was the 25 length of time that sample occurred? What was 83 1 the time weighted average? And it was one data 2 point that was high among many. 3 Q. And that's far less than what Mr. Petty 4 calculated at Mrs. Ryan's house; right? 5 A. But if it's 73 at the facility -6 Q. -- Mr. Spencer, was that less than what 7 Mr. Petty calculated? 8 A. Yes, it was. 9 Q. And, listen, I don't want to be rude but you'll 10 have plenty of time to explain your position to 11 Ms. McEldowney. I just would like you to 12 answer my question. 13 A. Of course 73 is higher than 4. Yes. They're 14 just not relevant comparisons. 15 Q. Now, by the way, this isn't the first case that 16 you have consulted with this defense team; is 17 it? 18 A. Well, that I have worked for most of these 19 people; yes, it is. 20 Q. You, in fact -- this isn't it only case that 21 you're working on where BP is involved? 22 A. It is the only one I'm aware of. 23 Q. Didn't you tell me about Hazleton, 24 Pennsylvania? 25 A. I wasn't sure whether that was BP, to tell you 84 1 the truth. My mother's hometown, yes. 2 Q. And in Hazleton, Pennsylvania you're working 3 with these same people, same defendant; BP? 4 A. Yes, it was a gas station that had leaking 5 underground storage tanks, yes. 6 Q. And there's a gasoline plume like in Sugar 7 Creek? 8 A. I don't know that it's -- no, I don't know that 9 it's the same. It's a different environment up 10 there, different issues. 11 Q. People with leukemia, just like Sugar Creek? 12 A. I'm not aware of any leukemia cases. I mean, 13 leukemia is in our environment. A friend of 14 mine's son has leukemia. 15 Q. Do you know why there is a case then in 16 Hazleton? 17 A. There are several, because products have been 18 released into the environment and sometimes 19 people sue over that. I can't give you the 20 basis for it. 21 Q. And you're working with Ms. McEldowney's firm 22 on that case; right? 23 A. I am, yes. 24 Q. And they're back east where you are, in 25 Delaware? 85 1 A. I'm in Baltimore, yes. 2 Q. Now, I know you weren't tasked to look at this, 3 but there are some other actual measurements of 4 benzene taken at the refinery; were you aware 5 of that? 6 A. Yes. 7 Q. There's some measurements of benzene that they 8 found on site of 24.5, 14.5, 10.2, and 10.6. 9 And my question to you is; Mr. Petty didn't 10 include benzene in those ranges, did he? 11 A. And why? 12 Q. It's an actual measurement. 13 A. It is in the refinery. You couldn't even 14 detect it at Mrs. Ryan's residence using those 15 numbers and that's why he didn't use it. 16 Q. Not only, Mr. Spencer, have you worked for BP 17 in benzene cases but you have also consulted 18 with Shell Oil Company; haven't you? 19 A. Yes, I have. 20 Q. And you have consulted with Chevron? 21 A. Yes. 22 Q. And you have been on the side of Texaco in 23 cases? 24 A. I believe so. I just can't recall whether it 25 was benzene or an asbestos issue. But, yes, I 86 1 believe so. 2 Q. And you have been with Phillips/Conoco, you 3 have consulted with them on cases? 4 A. Yes. 5 Q. Virtually every oil company, all the major oil 6 companies you've consulted? 7 A. I'll also provided training to Unical another 8 oil company on how to audit their health and 9 safety programs, yes. 10 Q. You testified earlier that obviously this isn't 11 the first time you've been in the courtroom; 12 correct? 13 A. Correct. 14 Q. And the truth of the matter is, Mr. Spencer, 15 that in at least one case a judge excluded your 16 opinions because they weren't reliable? 17 A. That's incorrect. He did not let me talk about 18 cumulative dose. I was able to testify in the 19 case on industrial hygiene and exposure issues 20 but not on cumulative dose. 21 Q. Your opinions were excluded? 22 A. On that specific issues. I was not excluded 23 from the case. 24 Q. Now, Mr. Spencer, are you aware that there are 25 other individuals who have testified in this 87 1 case that there were odors of gasoline in the 2 Sugar Creek area? 3 A. I'm only aware of Mr. Ryan and his daughter 4 testifying to that. I don't even believe his 5 son testified to there being any extensive 6 odors there. Those are the only two that I'm 7 aware of. 8 Q. Now, you talked about a point source and you 9 understand that out at the Sugar Creek refinery 10 there's a plume of benzene; right? 11 A. Underground plume, yes. 12 Q. And you understand from reviewing the documents 13 that there were multiple tanks that were 14 leaking? 15 A. Yes. 16 Q. And you understand from the documents that 17 there were lines all through the refinery that 18 were leaking? 19 A. Yes. 20 Q. So when we talk about a point source there are 21 multiple point sources at this site; correct? 22 A. Well, I'm talking about a point source that 23 would lead to an airborne release of material 24 and exposure to the community. If it's 25 underground pipes or tanks leaking into the 88 1 ground then, no, that's not what I'm talking 2 about. 3 Q. All right. Because you're not a soil gas vapor 4 expert; right? 5 A. I have done quite a bit of it but I have not 6 testified in court regarding it. I have done a 7 lot of soil vapor analysis. 8 Q. Now, have you testified -- you mentioned that 9 you have testified for plaintiff before; right? 10 A. Yes. 11 Q. Did you testify in a fingernail polish case? 12 A. Gosh, I don't remember that one. I did a study 13 of people using, mostly women, using fingernail 14 polish and the toluene exposure that results 15 from that. But I don't think I testified. 16 That was just a study we did. 17 Q. Did you determine that -- was your opinion in 18 that study that there needed to be a warning 19 not to drink fingernail polish? 20 A. I have a vague recollection. I can't imagine I 21 made that -- that I would make that suggestion. 22 MR. WALTERS: I think that's all I 23 have. Thanks. 24 THE COURT: May I see Counsel? 25 (Out of the hearing of the jury.) 89 1 THE COURT: It's 5:00. 2 MS. McELDOWNEY: I'll finish in five 3 minutes. I'd like to get him out. 4 MR. TAFF: Otherwise he has to go 5 home for the weekend, Judge. 6 MS. McELDOWNEY: He's unavailable 7 next week to testify. Can I just have 8 five minutes, Judge? 9 THE COURT: Keep it to about three or 10 four minutes. 11 MS. McELDOWNEY: Okay. 12 (In the hearing of the jury.) 13 REDIRECT EXAMINATION 14 BY MS. McELDOWNEY: 15 Q. Mr. Spencer, the Drinker study is what 16 Mr. Petty relied on solely, correct, for 17 purposes of -18 A. -- to develop the concentration level that he 19 believed that Mrs. Ryan was exposed to. 20 Q. So he must have believed the Drinker study was 21 a reliable source of that information? 22 A. Yes. 23 Q. Now, what if he used Drinker to establish what 24 strong odors would have been in the range of 25 900 to 2600 ppm; if he in fact used those range 90 1 of numbers that Drinker identified as strong 2 odors of gasoline, what would that do to his 3 ultimate calculation from Mrs. Ryan's exposure? 4 A. Well, it would drive it up many fold times to 5 an incredibly high number. 6 Q. Mr. Walters asked you about different point 7 sources and leaks and spills at this refinery 8 and why you didn't consider those for purposes 9 of your calculations. Can you tell us why you 10 considered it but rejected it for purposes of 11 doing your model? 12 A. I did look at that data. As we talked about 13 before, I looked for pathways that someone can 14 be exposed, how they get exposed to vapors. 15 And it's through airborne losses, the venting 16 losses, the 7644 barrels that was attributed 17 through venting losses. If it goes into the 18 ground -- I have done a lot of monitoring -19 right over the top of leaking underground 20 storage tanks, leaking pipes you don't get 21 detectible levels. 22 Q. The last point I have for you, Mr. Spencer, 23 Mr. Walters showed you benzene monitoring 24 results from the Sugar Creek refinery and some 25 of the samples showed numbers 73, 24, 14, 10 91 1 ppm; correct? 2 A. Yes. 3 Q. Why do we have monitoring at refineries? What 4 is the purpose of it? 5 A. It is to evaluate the exposures because those 6 chemicals are used there and it's the right 7 thing to do to ultimately protect the health 8 and safety of those workers. Those samples are 9 also only for several minutes, some of them 10 10 minutes, some 15 minutes. They weren't 11 weighted samples, meaning time weighted to 12 compare to occupational health standards. They 13 could have been in locations where workers were 14 wearing respiratory protection. It didn't say 15 there. I didn't see that. And it's 16 certainly -- it doesn't show that there was 17 13,000 parts per million or 35,000 parts per 18 million at that location, which would be 19 necessary to have any kind of exposure at the 20 Ryan home. 21 Q. More importantly, when they're monitoring 22 employees, what happens when they get an 23 exceedence of benzene exposure, for instance, 24 in this case? What do they do with the 25 employee? 92 1 A. They take corrective actions to ensure that 2 he's properly protected and they would also 3 enroll him in a medical monitoring program. 4 But, most importantly, they would take 5 measures, corrective measures, to eliminate or 6 reduce those exposures either through 7 engineering controls or through respiratory 8 protection. 9 Q. So they take these workers out of the potential 10 exposure to benzene; correct? 11 A. They want to limit that exposure. And the 12 problem with benzene and gasoline is not only 13 the toxicity issue we're dealing with here, but 14 there's fire and explosion hazards. So it 15 generally has been a fairly well controlled 16 exposure in the work place because of safety 17 reasons. 18 Q. So when you got a hit or exceedence of benzene 19 with respect to a worker, that worker is 20 removed from that environment and then further 21 investigation is done to eliminate those 22 exposures; correct? 23 A. They may not ultimately remove them as in the 24 exact sense of the word. They may provide 25 protective measures so in that sense they have 93 1 removed the worker from any harmful exposure. 2 Q. So those exceedences of, say, 74 ppm, that 3 would not mean that they would continue to keep 4 the worker exposed to 74 ppm of benzene for 24 5 years, for example? 6 A. No. And that may have been a one time incident 7 that they may go back and resample and not find 8 anything close to that again. 9 MS. McELDOWNEY: Thank you, 10 Mr. Spencer. 11 THE COURT: Any recross? 12 MR. WALTERS: Nothing. 13 THE COURT: All right. Mr. Spencer, 14 thank you very much. You may step down, 15 sir. Ladies and gentlemen, we're going to 16 finish up just a little bit past the hour. 17 I did want to tell you that I was happy to 18 see most of you in your Chief's outfits. 19 And I want to tell you, Ms. Foley, said, 20 Judge, don't wear your red robe. 21 Ladies and gentlemen, I told you 22 that I would touch bases with you on how 23 we're doing, we're doing very well. Okay? 24 I feel very comfortable that we can finish 25 the case at the end of next week, which 94 1 would be the fifth week and that puts us 2 on schedule with what we said. So that's 3 what I'm approximating with the attorneys, 4 looking towards the end of next week to 5 finish up the case. 6 We will follow our same schedule 7 Monday morning. Ladies and gentlemen, I'd 8 ask you to please be here at 8:45 in the 9 morning and we'll get started at 9:00. 10 (The Court reads the instruction.) 11 (Court adjourned.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 95