Joint Appendix — Dow Chemical Co. v. United States
Supreme Court brief1986
Ask Donna
What actually matters in this document.
Text
Office-Supreme Court, U.S.
FILED
WL 25 1985
No. 84-1259
IS TEV AR,
CLERK
IN THE
Supreme Court of the United States
——
October Term, 1984
—— -
THE DOW CHEMICAL COMPANY,
Petitioner,
versus
UNITED STATES OF AMERICA,
BY AND THROUGH ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
SEE
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
ae
JOINT APPENDIX
a
JANE M. GOOTEE, Esq. CHARLES A. FRIED, Esq.
Counsel of Record Acting Solicitor General
THE DOW CHEMICAL OFFICE OF
COMPANY THE SO ‘TOR GENERAL
1111 Washington Street Washington, W.C. 20530
Midland, Michigan 48674 (202) 633-2217
(517) 636-2663
PETITION FOR CERTIORARI FILED FEBRUARY 7, 1985
CERTIORARI GRANTED JUNE 10, 1985
~ BEST AVAILABLE COPY
TABLE OF CONTENTS OF JOINT APPENDIX
PAGE
Relevant Docket Entries: United States District Court
for the Eastern District »f Michigan, Docket No.
Ee ea ee a ce eee A-1
Relevant Docket Entries: United States Court of
Appeals for the Sixth Circuit, Docket No. 82-1811 A-11
Memo Dated 12/20/60 Regarding Dow Aerial Photo
Policy, Attached to Dow’s Supplemental Answers
to Interrogatories Filed 9/25/80, and an Exhibit to
Michael Kelyman (Dow) Deposition of 3/25/81 -
oe Se UR eee eee ee A-13
Letter Dated 11/27/73 Regarding Aerial Security,
Attached as an Exhibit to Michael Kelyman (Dow)
Deposition of 3/25/81 — Dist. Ct. Dkt. 131 ..... A-13
Letter Dated 3/25/74 Regarding Dupont v. Christo-
pher, Attached as an Exhibit to Michael Kelyman
(Dow) Deposition of 3/25/81 — Dist. Ct. Dkt. 131 A-15
Letter Dated 10/13/76 Regarding Dow Plant Sec-
urity, Attached to Dow’s Answers to Interroga-
tories Filed 5/2/80 - Dist. Ct. Dkt.56 ........ A-16
Letter Dated 10/22/76 Regarding Dow Plant/Photo
Security, Attached to Dow’s Supplemental
Answers to Interrogatories Filed 9/25/80, and an
Exhibit to Michael Kelyman (Dow) Deposition of
3/25/81 — Dist. Ct. Dkt. 80 a..d 131 .......... A-1°
Letter Dated 7/7/77 Regarding Dow Plant Security,
Attached to Dow’s Answers to Interrogatories
Filed 5/2/80, and an Exhibit to Michael Kelyman
(Dow) Deposition of 3/35/81 - Dist. Ct. Dkt. 56
gg PR ee Se Soe ee ee ere ee A-20
Letter Dated 4/18/78 Regarding Suspicious Aircraft
Over the Plant, Attached as an Exhibit to Michael
Kelyman (Dow) Deposition of 3/25/81 - Dist. Ct.
EER aS ee OR ae ran ne eS A-21
il
PAGE
Deposition Excerpt of Jack Brown (Dow) - 5/9/78
(pp. 9-13) - Dist. Co. GRR 26 ck ieee A-22
Deposition Excerpt of William E. Beyer (EPA) - 1/9/79
(pp. 19, 23-25, 34-35) — Dist. Ct. Dkt.30 ...... A-25
Deposition Excerpt of Michael Smith (EPA) — 11/2/78
(pp. 23-24, 34, 41-43, 70, 87-88) — Dist. Ct. Dkt. 29 A-28
EPA Letter of 2/3/78 Requesting Aerial Photography
of Dow, Attached as Exhibit 1 to James O. Mc-
Donald (EPA) Deposition of 11/2/78 — Dist. Ct.
) MePeeeeerer re A-32
EPA’s Answers to Interrogatories Filed 6/29/78 (#s 2,
4, 6, 7, 8, 20, 39, 47) - Dist. Ct. Dkt. 22 ...... A-33
Affidavit of Clayton E. Lake (EPA) Dated 6/10/81, in
Support of U.S.’s Response to Dow’s Opposition
to U.S.’s Motion For Summary Judgment Filed
10/31/81 - Dist. Ct. Dkt. 187 .............. A-36
Deposition Excerpt of Clayton E. Lake (EPA) — 2/7/79
(pp. 29-32, 66-67, Exhs. 2D, 2E, 2G) - Dist. Ct.
' Sf BSerereerery ers A-39
Affidavit of Thomas M. Schafer (Abrams Aerial,
Inc.), Attached to Complaint Filed March 15, 1978
- Dist. Ce. 08n. 3... .'.4 6 RS A-45
Deposition Excerpt of Clayton E. Lake (EPA) — 7/14/81
(pp. 49-50, 80-82, 84-86) — Dist. Ct. Dkt. 253 ... A-47
Affidavit of William E. Beyer (EPA) Dated 6/15/81,
in Support of U.S.’s Response to Dow’s Opposi-
tion to U.S.’s Motion For Summary Judgment
Filed 10/13/81 — Dist. Ct. Dkt. 187 .......... A-51
——— eee. eer
a
ili
PAGE
Affidavit of Stephen H. Rothblatt (EPA) Dated 6/
15/81, in Support of U.S.’s Response to Dow’s
Opposition to U.S.’s Motion For Summary Judg-
ment Filed 10/13/81 — Dist. Ct. Dkt. 187 ...... A-52
Photographs — Exhibits 2 and 3 (under Seal) and
Exhibit 7 in Support of Dow’s Reply to U.S.’s
Opposition to Dow’s Motion For Summary Judg-
ment — Dist. Ct. Dkt. 168 and 170 ...... see Sealed
Joint Appendix
Photographs — Exhibits 4 and 5 (under Seal) Excerpts”
in Support of Dow’s Reply to U.S.’s Opposition
to Dow’s Motion For Summary Judgment — Dist.
Ct. Dkt. 168 and 171 ..... see Sealed Joint Appendix
Affidavit of H. V. (Jack) Wait, Jr. (Dow) Dated 7/30/81
in Support of Dow’s Reply to U.S.’s Opposition
to Dow’s Motion For Summary Judgment Filed
8/17/81 — Dist. Ct. Dkt. 168 .........-.-5-: A-53
Affidavit of Sherman Hollander (Mich. DNR) Dated
8/4/81, in Support of Dow’s Reply to U.S.’s
Opposition to Dow’s Motion For Summary Judg-
ment Filed 8/17/81 — Dist. Ct. Dkt. 168 ....... A-54
Affidavit of Michael Kelyman (Dow), Attached to
Complaint Filed March 15, 1978 — Dist. Ct. Dkt. 2. A-55
Affidavit of Leroy L. Mastic, Jr. (Dow), Attached to
Complaint Filed March 15, 1978 — Dist. Ct. Dkt.4 9 A-57
Affidavit of Robert R. Bumb (Dow), Attached to
Complaint Filed March 15, 1978 - Dist. Ct. Dkt.5 A-63
* The original exhibits available to the Court as part of the
record. Due to the size of te egal exhibits, it is impossible to
include them in the Joint Appendix. The excerpts are “cropped” por-
tions of the original exhibits.
iv
PAGE
Deposition Excerpt of Leroy L. Mastic, Jr. (Dow) -
9/9/78 (pp. 11-16) — Dist. Ct. Dkt.17......... A-69
Deposition Excerpt of H. V. (Jack) Wait, Jr. (Dow) -
5/10/78 (pp. 11-14, 20) — Dist. Ct. Dkt.19 ..... A-72
Deposition Excerpt of Leroy L. Mastic, Jr. (Dow) -
3/24/81 (pp. 51-53, 88-89) — Dist. Ct. Dkt. 130 . . . . A-76
Deposition Excerpt of Michael Kelyman (Dow) -
3/25/81 (pp. 78-79, 121-123, 181) — Dist. Ct. Dkt.
Bs ih ach ttc 6h leh ie int ee ead hn ca A-79
Deposition Excerpt of H. V. (Jack) Wait, Jr. (Dow) -
4/8/81 (pp. 40, 43-46, 50-51) — Dist. Ct. Dkt. 152... A-82
Letter Dated 6/21/79 from Union Carbide Corpora-
tion to EPA Regarding Aerial Surveillance per
EPA’s Supplemental Answers to Interrogatories
Filed 4/17/81 — Dist. Ct. Dkt. 134 ........... A-86
Letter Dated 6/22/79 from FMC Corporation to EPA
Regarding Aerial Surveillance per EPA’s Supple-
mental Answers to Interrogatories Filed 4/17/81 -
et, Ss RR oS awit we ONL es A-89
Wire Dated 1/11/80 from EPA to Monsanto Regarding
Aerial Photography, Attached to Dow’s Motion
to Compel Discovery Filed 3/26/81 — Dist. Ct. Dkt.
Se pes eu ke? bee ke NA bee eee ois eek A-91
Wire Dated 1/14/80 from Monsanto to EPA Regarding
Aerial Photography, Attached to Dow’s Motion
to Compel Discovery Filed 3/26/81 — Dist. Ct. Dkt.
BOW . 9.0. $:6:aiine tee eo oe eh Ait een nae A-92
Wire Dated 1/17/80 from EPA to Monsanto Regarding
Aerial Photography, Attached to Dow’s Motion
to Compel Discovery Filed 3/26/81 — Dist Ct. Dkt.
Sy out wise sees ees nia ge bid 6b 5 SOLON A-93
Ne A AIR et SR pn etm
PAGE
Transcript Excerpt of 11/12/81 Oral Argument on
Cross Motions for Summary Judgment (p. 44) -
ke S & Sa ere eee eee A-94
Order Allowing Certiorari - Supreme Court of the
United States, June 10, 1985 .............-. A-94
Non-Fully Owned Subsidiaries And Affiliates of
The Dow Chemical Company as of June 30, 1985 A-95
The following opinions and references have been omitted in
printing this Joint Appendix because they appear in the
Appendix to the Petition for Certiorari.
PETITION
APPENDIX
Opinion of the U.S. District Court of Appeals
for the Sixth Circuit, Filed November 9,
ES chek wake Ome ee Ooo eee ee A
Opinion of the U.S. District Court for the
Eastern District of Michigan, Filed April 19,
SE Fa ciPER eR Gea eats wes eens B
Excerpts from Restatement of Torts § 757 (1939) Cc
Uniform Trade Secrets Act ...........-: D
Relevant Michigan Compiled Laws:
Mich. Comp. Laws § 750.539a andd .... E
Mich. Comp. Laws § 752.771 ......--- E
Mich. Comp. Laws § 751.772 .......-- E
+ Pa}
. , , 7 . a +¥ ae oe Me os
a : ‘<_< : a Te be alld “~ ree ©. sy a TPreeh ors >
EE? we ee Serre ltt
#
.
| BHAS P BMY Stan, |
= Be Rie ORCS e Miallaa | ea aed
4 . AOE > GUS EGR Sy wtih edad tas
OT aoe hy
*
7 . Soe PODER See i ; 7 ie ety i a, \t soe wmtetiy ota oo! oH eed
Ep Pteriad Sashimi i ed we ee, Suess
a) 36 Hex tdi ese mtyy
ee er ee ee et
No. 84-1259
IN THE
Supreme Court of the United States
re
October Term, 1984
ee
THE DOW CHEMICAL COMPANY,
Petitioner,
versus
UNITED STATES OF AMERICA,
BY AND THROUGH ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
—
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
—
JOINT APPENDIX
——
RELEVANT DOCKET ENTRIES
(United States District Court —
Eastern District of Michigan — No. 78-10044)
DATE N.R. PROCEEDINGS
1978
3/15 1. Filed complaint w/attached exhibit.
Summons issued.
3/15 2. Affidavit of Michael (NMI) Kelyman.
3/15 3. Affidavit of Thomas M. Schafer.
A-2
DATE N.R. PROCEEDINGS
3/15 4. Affidavit of Leroy L. Mastic, Jr.
3/15 5. Affidavit of Robert R. Bumb.
3/15 6. Motion for preliminary injunction.
3/158. Motion for temporary restraining order w/
certification of counsel.
3/17 11. Temporary Restraining Order (3/16/78)
(C. Joiner)
IT IS ORDERED that defendant Douglas M.
Costle, Administrator, Environmental Pro-
tection Agency, his agents, employees,
contractors and any other parties acting in
concert with them be and they hereby are
temporarily restrained from in any way
disseminating, releasing, copying, or dupli-
cating the photographs which it had taken
of Dow’s plant in Midland, Michigan, or
from disseminating or releasing any infor-
mation obtained in any way from said
photographs pending a hearing and deter-
mination of plaintiff's Motion for Prelimi-
nary Injunction, conditioned further that
plaintiff, Dow, not be required to post any
bond for the payment of such costs and
damages as may be incurred or suffered by
any party who is found to have been wrong-
fully enjoined or restrained, excepting that
the photographs may be used by those
EPA employees who are currently involved
in the preparation of an enforcement action
against Dow under the Clean Air Act, and
by Thomas M. Woods and Ronald W. Mel-
lish of the United States Attorney’s office
A-3
DATE N.R.
PROCEEDINGS
3/17 cont.
in the preparation of said enforcement
action. IT IS FURTHER ORDERED that the
term of this order shall be until April 7,
1978, at 5 p.m. unless extended by further
order of the Court.
STIP & ORDER FOR PRELIMINARY INJUNC-
TION _ J. Harvey
1. That the defendant Douglas M. Costle
Administrator, Environmental Protection
Agency, his agents, members, contractors
and any other parties acting in concert
with them be and they hereby are enjoined
from in any way disseminating, releasing,
copying or duplicating the photographs
which it had taken of Dow’s plant in Mid-
land, Michigan, or from disseminating or
releasing any information obtained in any
way from said photographs while this
order remains in effect.
2. That all the negatives, prints, enlarge-
ments and mosaics which are the subject
matter of this action and any written ab-
stracts therefrom, shall be sealed and placed
in the custody of the Court and shall thus
be maintained until further order of the
Court.
3. Such photographs, negatives, prints,
enlargements and mosaics shall be avail-
able to those Environmental Protection
Agency employees who are currently in-
volved in the preparation of an enforce-
ment action against Dow under the Clean
Air Act, and by Thomas M. Woods and
A-4
PROCEEDINGS
DATE N.R.
4/7 cont.
Wane WW.
18.
19.
6/29 = 22.
8/14 923.
12/6 27.
12/15 29.
Ronald Mellish of the United States Attor-
ney’s office and Charlotte Uram of the Jus-
tice Department in the preparation of said
enforcement action; provided, however,
that notice shall be given to counsel for the
plaintiff prior to any such use and counsel
for the plaintiff, or his designee, may be
present at such inspection.
4. Nothing contained in this Preliminary
Injunction shall in any way be construed
as affecting or determining any of the
rights of the parties or any of the issues
involved in the case, nor shall any of the
contents herein be construed as an admis-
sion by any party.
5. Either party may move for dissolution
or modification of this Order and within
five (5) days thereafter a hearing shall be
held and at such hearing consideration of
the continuance of this Preliminary Injunc-
tion or the issuance of any other Order
shall be determined de novo.
transcript of dep of Leroy L. Mastic, Jr.
.. Jack Brown
.. Jack Wait
Def’s Answers to Plf’s First Interrogatories
Def’s Answer to Complaint w/proof
transcript of James McDonald
transcript of Michael Smith
A-5
DATE N.R. PROCEEDINGS
1979
29 30. transcript of Dep of Wm. Beyer
4/20 41. Deposition of C Lake.
1980
5/2 56. Pltf’s Objection and Answers to Deft’s Inter-
rogatories to Pitf and Request to Produce
Documents.
5/2 57. Pitf’s Motion for Protective Order w/Memo
in Support of.
6/9 59. ORDER J. Harvey s/6-5-80 w/proof.
IT IS HEREBY ORDERED that pltf be per-
mitted to file its amended complaint. Fur-
ther, since pltf has already filed a copy of its
proposed amended complaint, PItf need not
refile another copy with the Court. The date
of this Order Shall be deemed the date of fil-
ing of the amended complaint for purposes
of deft’s answer thereto. FR Civ P 15(a).
6/26 61. Pitf's Amended Complaint.
7/22 67. MEMORANDUM OPINION AND ORDER
J. Harvey w/proof.
Pitf's Motion for protective order is here-
by GRANTED. See Order for further
information.
9/9 76. Deft Douglas M. Costle ANSWER TO PLTF’S
AMENDED COMPLAINT.
9/25 79. Pitf's Notice of Motion for Discovery Con-
ference w/Motion for Discovery Conf and
Memorandum in Support of.
A-6
PROCEEDINGS
DATE N.R.
9/25 80.
11/3 = 92.
1981
3/26 =117.
3/26 =120.
4/7 = 124.
4/13 130.
4/13 131.
4/17 134.
5/29 152.
5/29 = 153.
5/29 = 154.
Pitf's Supplemental Answers to Deft’s
Interrogatories to Pitf and Request to Pro-
duce Documents w/exhibits.
Pitf's Supplemental Memorandum In Sup-
port of Motion for Discovery Conference
w/proof.
Pitf's Motion for An Order Compelling
Discovery w/brief and proof.
Pitf’s Notice of Motion for Partial Summary
Judgment w/Motion for Partial Summary
Judgment, Brief and proof.
Deft’s Opposition to Pltf’s Motion for Par-
tial Summary Judgment and Motion for
Continuance, w/memorandum, affidavit
and cert of service; w/Proposed Order
Deposition of Leroy Mastic.
Deposition of Michael Kelyman.
Deft’s Costel’s Supplemental Answer to
Pitf’'s Second Interrogatories and Request
for Production of Documents w/cert of ser-
vice and attachment.
Deposition of (UNDER SEAL)XXXxX
Volume I.
Deposition of (UNDER SEAL)XXXXX con-
tinued. Volume II.
Deposition of (UNDER SEAL)XXXX con-
tinued, Volume III.
a
ote ae ee at
a eee ee eee
A-7
DATE
N.R.
PROCEEDINGS
7/9
7/9
8/17
8/17
8/17
8/17
9/11
9/14
9/24
10/13
10/19
162.
165.
168.
170.
171.
172.
178.
181.
184.
187.
196.
Federal Deft’s MOTION FOR PARTIAL SUM-
MARY JUDGMENT and Request for Oral
argument w/proof.
Federal Defts’ MEMORANDUM IN OPPOSI-
TION to pltfs mot. for partial summary
judgment and in support of federal defts’
mot. for partial summary judgment.
Pitf’s Reply to Federal Defts’ Memorandum
in Opposition to Dow’s Motion for Partial
Summary Judgment, w/exhibits.
Exhibits 2 & 3 to Pleading #169 [168].
UNDER SEAL.
Exhibits 4-5 to Pleading #169 [168]. UNDER
SEAL.
Exhibit 7A to Pleading #169 [168].
Pitf’s Pretrial Motion for Protective Order
w/brief and proof.
Deft’s Motion for Partial Summary Judg-
ment or in the Alternative to Dismiss w/
Memorandum in Support of.
Pitf’s Response to Federal Deft’s Motion for
Partial Summary Judgment or in the Alter-
native to Dismiss w/attachments and proof.
Federal Deft’s Response to Dow’s Opposi-
tion to Motion for Summary Judgment or
in the Alternative to Dismiss w/cert of ser-
vice, and affidavits.
Not. of Oral Hearing on Cross Motions
for Summary Judgment set for 11-12-81
@ 1:30 p.m.
A-8
DATE N.R.
PROCEEDINGS
10/27 198.
11/5 = 202.
11/12 --
1982
4/19 213.
5/3 214.
5/12 215.
Stip and Order of Dismissal as to Dept of
Defense, Dept of Air Force, Dept of Navy,
Central Intelligence Agency, ‘rident En-
gineering Associates, Inc., Lookheed Elec-
tronics, Inc and Northrup Corp. J. Harvey
MEMORANDUM OPINION AND ORDER
J. Harvey.
Pitf’s pretrial motion is hereby GRANTED.
Court issues a Protective order, see order
for details.
Oral Hearing on Cross Motions for SJ held.
MEMORANDUM OPINION AND ORDER
J. Harvey w/proof
The Court hereby GRANTS Dow’s motion
for partial summary judgment and DENIES
EPA’s cross-motion for suminary judgment.
On this basis; IT Is HEREBY ORDERED AND
ADJUDGED that EPA is _ permanently
enjoined and restrained from conduction
[sic] future aerial surveillance and photo-
graphy of the Dow Chemical manufacturing
facility in Midland, Michigan, without first
seeking judicial oversight which, at a mini-
mum, will require EPA to secure an ex
parte search warrant.
Deft’s Motion for Reconsideration w/
Memorandum and cert of service.
Pitf’s Response to Deft’s Motion for Recon-
sideration w/proof.
ee, Ota
PIED Unwin Se ea
A-9
DATE
N.R.
PROCEEDINGS
5/13
7/13
7/26
7/28
7/29
8/3
8/4
9/23
9/27
216.
217.
218.
219.
220.
227.
MEMORANDUM OPINION AND ORDER
J. Harvey w/proof.
IT IS HEREBY ORDERED AND ADJUDGED
that EPA is permanently enjoined and
restrained from conduction [sic] future
aerial surveillance and photography of
Dow Chemical Manufacturing facility in
Midland, MI.
NOTICE OF APPEAL by deft w/cert of service.
MOTION by deft for Reconsideration or, in
the Alternative, For Entry of Final Judgment.
STIPULATION AND ENTRY J. Harvey.
MOTION by Pitf for Protective Order w/
brief and proof and proposed order.
MEMORANDUM OPINION AND ORDER
J. Harvey
Pitf’s motion for protective order is hereby
GRANTED.
MEMORANDUM OPINION AND ORDER
J. Harvey w/proof.
EPA’s second motion for reconsideration is
hereby DENIED. IT IS SO ORDERED.
EX PARTE MOTION by deft’s for Extension
of Time to File Notice of Appeal w/Memo-
randum and cert of service.
MEMORANDUM OPINION AND ORDER
J. Harvey w/proof
Deft’s motion for extension of time to file
a notice of appeal is hereby GRANTED.
Deft’s are DIRECTED to file their notice of
appeal on or before 10-27-82.
A-10
DATE
PROCEEDINGS
10/26
11/10
12/10
1985
6/17
6/25
7/1
7/1
251.
253.
255.
NOTICE OF APPEAL by defts w/cert of
service.
TRANSCRIPT of Proceedings held on
11-12-81.
ACKNOWLEDGMENT from CCA their case
#82-1811.
MOTION by deft [pltf] for Release of Items
& Exhibits Under Seal.
ORDER J. Churchill.
Accordingly, Dow Motion is hereby
GRANTED. IT IS THEREFORE ORDERED that
the items and Exhibits currently held
under seal by the Court be released into
the care, custody, and control of the Dow
attorneys for use during the appeal of this
case after an inventory & Receipt of Items
and Exhibits is made and filed.
DEPOSITION of CLAYTON LAKE (EPA)
taken July 14, 1981.
DEPOSITION under seal by pltf.
A-11
RELEVANT DOCKET ENTRIES
— GENERAL DOCKET —
(United States Court of Appeals
for the Sixth Circuit — Case No. 82-1811)
APPEAL FROM: Eastern District of Michigan, N.D. at
Bay City
NO. BELOW: 78-10044
JUDGE BELOW: Harvey
DATE OF JUDGMENT: July 28, and August 7, 1982
NOTICE OF APPEAL FILED: October 26, 1982
DATE FILINGS - PROCEEDINGS
1982
10/29 1) Copy of notice of appeal filed; and cause
docketed
11/15 2) Motion: appellee for protective order (m-
11/11/82)
12/2 8) Pre-argument statement filed
1983
1/13 11) Order directing that the seal directed by
the district court as to certain portions of
the district court proceedings shall con-
tinue on appeal; counsel is to assure this
Court is properly advised as to those mate-
rials under seal; briefs and appendix that
contain information under seal should be
filed in separate volumes; counsel may file
a motion as to protective steps they recom-
mend if the Court determines oral argu-
ment to be necessary (Peck, J.)
A-12
DATE FILINGS - PROCEEDINGS
3/7 Brief (10) of appellant (m-3/4/83)
4/7 Brief (10) of appellee (m-4/5/83)
4/11 Brief (10) of amicus curiz, Mountain States
Legal Foundation (consent of both parties
included in back of brief) (m-4/6/83)
5/5 Reply brief (10) of appellant (m-5/2/83)
9/26 Joint Appendix (5) with one sealed volume
(m-9/22/83)
1984
7/6 28) Motion: appellee for protective steps for
trade secret information at oral argument
(m-7/5/84)
7/12 Cause argued by Anne S. Almy for appel-
lant, by Jane Gootee for appellee and case
submitted to the Court (Before: Lively,
Merritt and Horton, JJ.)
11/9 31) Judgment of the district court reversed
(Lively, Merritt and Horton, JJ.) FP
1985
2/19. 33) SUPREME COURT NOTICE: petition for
cert. filed 2/7/85 (Sup. Ct. No. 84-1259)
ee ae het ab ee fe
A-13
MEMO DATED 12/20/60,
REGARDING DOW AERIAL PHOTO POLICY, ATTACHED TO
DOW’S SUPPLEMENTAL ANSWERS TO INTERROGATORIES
FILED 9/25/80, AND AN EXHIBIT TO MICHAEL KELYMAN
(DOW) DEPOSITION OF 3/25/81
DIST. CT. DKT. 80 & 131
THE DOW CHEMICAL COMPANY
To: Chas. Sercu, 574 Bldg. Charge:
From: Ned Brandt, Pub. Rel. Problem or Auth.: ——_—
Subject: Attached Photos Date: 12/20/60 _——Bidg.: 690
No objection to any of these except the aerial shot of
the plant, No. 75033. This one is so old I'd forgotten it
existed, and it must have been made before the rule
went into effect that we don’t release aerial photos of
the plant, which went into effect during wartime and
per F.C. Peterson is still in effect. No. 4283B58 is a little
borderline on this basis but OK, I think, on basis our
usual practice. Therefore these all OK except 75033; if used
in textbook, we would appreciate a credit line — “Photo
Courtesy The Dow Chemical Co.” or something similar.
MEMO /s/ Ned Brandt
LETTER DATED 11/27/73,
REGARDING AERIAL SECURITY, ATTACHED AS AN EXHIBIT
TO MICHAEL KELYMAN (DOW) DEPOSITION OF 3/25/81
DIST. CT. DKT. 131
November 27, 1973 PLANES OVER THE PLANT
Captains; Dispatchers - c; Scouts - c; Clockrooms: 2, 3,
4, 6, 11, 16, 19; Gates: West, 23, 25, 49; Inspectors;
Patrolmen; File
A-14
REPORTING PLANES OVER THE PLANT
1,
If you have field glasses, make an effort to get the
plane number and description (color, size, number
of engines, etc.).
If you have no field glasses, get the best description,
direction of flight, etc., and call the nearest Plant
Protection location (see below) that have field
glasses so they can attempt to get this information.
Make a verbal report of same to this office at once
or after hours contact the Captain on duty and also
make a written report on same. Management is very
much concerned when other than commercial pass-
enger flights pass over the plant property.
Locations that have field glasses are:
West Gate #23 Gate
No. 6 Clockroom #25 Gate
No. 11 Clockroom Dispatcher 417 Bldg.
Dispatcher & Captains: When notified of an uniden-
tified plane over the plant, assign an officer to spot
the numbers with the glasses located in the radio
room.
NOTE: The State Police Post in Bay City 684-2234 will
check airplane registrations and help us on flights
over the plant.
/s/ S.J. Humbyrd, Asst. Manager
Security & Plant Protection
417 Building
SJH/kh
NOTE: This cancels order on same dated 12-1-72
A-15
LETTER DATED 3/25/74, RE DUPONT v. CHRISTOPHER,
ATTACHED AS AN EXHIBIT TO MICHAEL KELYMAN
(DOW) DEPOSITION OF 3/25/81
DIST. CT. DKT. 131
Mr. Michael Stinton March 25, 1974
Dow Chemical
Midland, Michigan 48640
Dear Mike:
Pursuant to your request, I am forwarding a copy of
the court decision, involving airplane photography of
Du Pont’s plant at Beaumont, Texas.
The only apparent follow up to the court’s decision,
aside from the Supreme Court's declining to review the
decision, was Christopher’s disclosure, by deposition,
that he had been employed to take the photographs by
Eber Peters, a management consultant from Beaumont.
Peters testified, by deposition, that he was acting only
for himself and that he planned to become a consultant
on methanol marketing.
I trust that this was the case you had in mind. Hope
the trip to Brussels was an enjoyable one.
Best regards,
Very truly yours,
Thomas J. Murphy, Jr.
Security Advisor
A-16
LETTER DATED 10/13/76, RE DOW PLANT SECURITY,
ATTACHED TO DOW’S ANSWERS TO INTERROGATORIES
FILED 5/2/80
DIST. CT. DKT. 56
DOW CHEMICAL U.S.A.
MICHIGAN DIVISION MIDLAND, MICHIGAN 48640
October 13, 1976
[Addresses Deleted]
I recently received the attached write-up concerning
“Security of Process Know-how and Technology” from
Irv Snyder.
The basic responsibility for protecting our process sec-
urity has been assigned to the Division General Mana-
gers and I think you know that:means I expect all of you
to do a thorough job and keep me in good shape. The
attached is a good review for all of us. It does an excel-
lent job of covering the precautions that need to be
followed.
Technology is the life blood of any company, especially
ours, and the importance of protecting this technology
cannot be overemphasized. Please see that the attached is
given appropriate publicity in each of your departments.
Thanks.
/s/ J.G. Temple, Jr.
Attachment
SECTION 6 No. 1
SECURITY OF PROCESS KNOW-HOW AND TECHNOLOGY
The overall responsibility for protecting our process sec-
urity has been assigned to the Division General Managers,
Area Manufacturing Managers, and the Technology Cen-
ter Managers. .
A-17
The Manufacturing Representative plays a key role in
protecting our process security when he is directing the
design and construction of a new facility. He is respon-
sible for seeing that the following are carried out during
the course of a project.
1)
2)
3)
4)
5)
Material balance flow sheets and detail process de-
sign manuals are extremely confidential and are
restricted for the use of the Manufacturing Repre-
sentative only. These items are not to be placed in
the hands of an engineering contractor, vendor,
etc. These items should be placed under lock and
key at all times.
Every Dow drawing should include a statement,
“This drawing is the property of The Dow Chemi-
cal Company, and the information contained here-
in must be treated as CONFIDENTIAL and not
revealed to third parties nor may the drawings be
reproduced in whole or part except by expressed
permission of the Company.
If the project or equipment is of a secret nature,
the contractor or supplier must sign a formal
secrecy agreement. Serialized drawings must be
returned to Dow.
Where we would prefer that the contractors or
vendors do not know the material being handled,
our equipment specification sheets, purchase or-
ders, etc. should give the physical properties
which are necessary for the equipment design
without identifying the material by name or
composition.
All information going to contractors or vendors
should identify equipment by numbers, not by
where it is located in the plant or by the process
function it performs.
A-18
6) Vendors are forbidden to photograph the equip-
ment at any stage of fabrication or reproduce the
drawings pertaining to a purchase order to make
them available to any source other than to The
Dow Chemical Company without the written per-
mission of Dow.
7) Photographs of the project or any part thereof
shall not be taken. Contractors shall assist the
owner in preventing photographs being taken.
Cameras will not be allowed on the owners
property
The line organization in each Area is responsible for
seeing that the experience and background of prospec-
tive new employees are screened to try to determine if
this person might later compromise our process know-
how and technology.
Visits to our process units by outsiders are discouraged.
In no case should tours by professional societies be per-
mitted. Outsiders should not be exposed to our process
technology. If people must allow visitors in a process
unit, the tour guide must determine the name and com-
pany affiliation of each visitor. If a visitor will be
exposed to process technology, he must sign a secrecy
agreement. By definition, all of our control rooms con-
tain Dow “Trade Secret” information.
/s/ Irving G. Snyder, Jr., Director
Technology Center Administration
2020 Dow Center
gw
9/16/76
A-19
LETTER DATED 10/22/76, RE DOW PLANT/PHOTO SECURITY,
ATTACHED TO DOW’S SUPPLEMENTAL ANSWERS TO INTER-
ROGATORIES FILED 9/25/80, AND AN EXHIBIT TO
MICHAEL KELYMAN (DOW) DEPOSITION OF 3/25/81
DIST. CT. DKT. 80 & 131
DOW CHEMICAL U.S.A.
MICHIGAN DIVISION MIDLAND, MICHIGAN 48640
October 22, 1976
[Addresses Deleted]
PHOTOGRAPHY/SECURITY IN THE MICHIGAN DIVISION
ON PROCESS KNOW-HOW AND TECHNOLOGY
Please pay special attention to points (6) and (7)
regarding photography, and the final paragraph regard-
ing plant visits.
If you have any questions, let’s discuss.
/s/ Tom Sinclair
Government/Community Relations
47 Building
z
attach.
SECTION 6 No. 1
SECURITY OF PROCESS KNOW-HOW AND TECHNOLOGY
** *
6) Vendors are forbidden to photograph the equip-
ment at any stage of fabrication or reproduce the
drawings pertaining to a purchase order to make
them available to any source other than to The Dow
Chemical Company without the written permission
of Dow.
A-20
7) Photographs of the project or any part thereof
shall not be taken. Contractors shall assist the
owner in preventing photographs being taken.
Cameras will not be allowed on the owners
property.
LETTER DATED 7/7/77, RE DOW PLANT SECURITY,
ATTACHED TO DOW’S ANSWERS TO INTERROGATORIES FILED
5/2/80, AND AN EXHIBIT TO MICHAEL KELYMAN
(DOW) DEPOSITION OF 3/25/81
DIST. CT. DKT. 56 & 131
DOW CHEMICAL U.S.A.
MICHIGAN DIVISION
July 7, 1977
[Addresses Deleted]
Just a reminder of the standing policy — No Michigan
Division Plant or equipment photos may be released ex-
ternally without approval of Tom Sinclair, Michigan
Division Public Relations Manager, or Hunter Henry,
Michigan Division General Manager.
/s/ Dave Sommers
Government/Community Relations
47 Building
636-6775
Zz
A-21
LETTER DATED 4/18/78,
REGARDING SUSPICIOUS AIRCRAFT OVER THE PLANT,
ATTACHED AS AN EXHIBIT TO MICHAEL KELYMAN
(DOW) DEPOSITION OF 3/25/81
DIST. CT. DKT. 131
April 18, 1978
Captains; Dispatchers
OBTAINING FOLLOW UP INFORMATION
ON SUSPICIOUS AIRCRAFT FLYING OVER THE PLANT
1.
Determine if the actions of the pilot in flying over
the plant are truly suspicious.
a. Such as the plane circles around and over the
plant 360° or more /
b. If the aircraft makes 3 or more passes over the
plant either parallel or cross-secting the produc-
tion facility.
Attempt to get the registration number.
a. All U.S. registration No’s begin with a N, they
may range from N1 to N99999. There may be let-
ters at the end of the number.
b. We must have the complete number to request a
registration check.
c. Call a Mr. Don Arnold of Flight Service (FAA)
located at Tri City Airport on 695-2361 (24 hour
number)
d. Call using 636-4400 and identify yourself as Dow
Security and if Mr. Arnold is not available some-
one else should be able to he!p you.
If we are unable to get the registration number and
it appears the aircraft in question can be deemed
suspicious we should call Mr. Hank Anderson, the
tower chief (F.A.A.) at Tri City Airport on 695-9143.
A-22
a. Call immediately and give the direction in which
the aircraft in question is traveling.
b. Call from 636-4400, advising who answers that
Dow Security is calling and we have a suspicious
plane over the plant.
c. If the call is prompt and the direction given, the
tower should be able to pick up the aircraft on
RADAR
d. Depending on the volume of air traffic they will
watch the aircraft to see if it lands at an airport
on their screen. They will be able to pin point an
aircraft within a 40 mile radius of their tower.
e. The tower will call 636-4400 and advise us what
airport if any the airplane lands.
f. We should call the airport in question to deter-
mine who landed at that time. This call should be
made promptly.
AIRPORTS
Alma, 3999 W. Seaman Rd. 463-1338 Gladwin, 735 S. State 426-4201
Bay City, 614S. River Rd. 895-8991 Mt. Pleasant 772-3500
Caro 673-4301 Owasso, 1510 E. Main 723-4168
Flint, W. Bristol Rd. 767-4232 Saginaw 754-2459
e @ ®
JACK BROWN (DOW)
DEPOSITION EXCERPT 5/9/78
DIST. CT. DKT. 18
* * *
[9] * * * Q. Has the EPA had the opportunity to in-
spect the power plants in Midland?
A. Yes sir.
Q. And have they taken advantage of that opportu-
nity?
A. Yes sir
Q. Have they had the opportunity let me strike that.
A-23
Have they had complete tours through both of your
powerhouses in Midland?
A. Yes sir.
Q. Have you participated in these tours with the per-
sonnel from EPA?
A. I did.
Q. You were there personally?
A. Yes sir.
Q. Okay. Do you recall when that inspection or
when those inspections occurred?
A. It was in early September.
* + ©
{10} Q. Do you recall how long those inspections
lasted?
A. About two, two and a half hours.
Q. Were both powerhouses toured?
A. Yes sir.
Q. Did the inspectors from the EPA ask questions
about the operation of the powerhouses?
A. They did.
Q. And did you provide answers to those questions?
A. We did.
Q. Now, subsequent to the visit as you’ve described
it did the EPA request additional information about the
powerhouses?
They did.
And was that information provided?
It was.
Do you know what was requested?
Yes, I do.
And could you identify that for us, please?
Yes. They wanted some drawings or some infor-
mation relative to the physical layout around each of the
powerhouses and boilers and turbines themselves within
the powerhouses.
PO>O>O>
A-24
Q. Did you assist in the preparation of that addi-
tional information?
A. I did.
Q. And you again recall the date of that inspection?
A. It was the first week in September, first or second
week of [11] September.
Q. Was this in 1977?
A. Yes sir.
Q. Were there any subsequent attempts by the EPA
to inspect the plant, the powerhouses?
A. Yes, there was.
Q. Do you recall when that occurred?
A. That was in December, about the first week in
December.
Q. Can you describe the circumstances surrounding
that attempt to inspect the plant, please?
A. Yes. There was an EPA engineer presented him-
self at one of our gates and had been observing the
effluent from our stacks.
Q. Did he produce his credentials?
A. He did not to me at that time. When I met him
he was already in the plant with one of our environ-
mental engineers.
Q. Do you know whether or not he did present cre-
dentials at that time?
A. Ido not, at that time.
Q. Are you aware of any other attempts by the EPA
to inspect the power plants at the Midland facility?
A. Yes sir.
Q. And would you describe those attempts, please?
A. Subsequent to that a contractor for EPA was here
on at least two occasions that I know of.
Q. Do you recall the dates?
[12] A. It was sometime in late December he made
— at that time he made no attempts to come in. I was
informed later he had been here.
A-25
However, in early February, which I believe was the
first or second of February, this contractor for EPA did
present himself at the gate.
Q. Was he admitted?
A. He was not.
* *+ *
[13] * * * Q. Does that report indicate the nature of
the subsequent requests for information made by the
agency?
A. It does.
Q. Does it indicate whether or not information —
whether or not you provided them with any photo-
graphic information with respect to the power plants?
A. It does.
Q. Do you recall what you did provide them with?
A. Yes. We provided them with slides of — or
photostats of slides showing the physical age of each of
the powerhouses and the fuel capabilities.
Q. Did you subsequently and at the request of the
EPA provide them with drawings of the power plants?
A. We did.
WILLIAM E. BEYER (EPA)
DEPOSITION EXCERPT 1/9/79
DIST. CT. DKT. 30
* * *
[19]}* * *Q. And, that visit took place on September
9th, 1977, is that right?
A. Iam sure it was September. If you say the 9th.
Q. Well, I am not testifying, you are. If you are not
certain as to the date, you —
A-26
A. Iam sure it was September.
Q. How long did that visit to the Midland Facility
last?
A. As I remember, it was about three hours.
Q. And, was the visit motivated by an impending
enforcement action, or a contemplated enforcement
action by Region 5?
A. Yes.
Q. So, you were there, were you not, to make a
determination, or to make an inspection to satisfy your-
self as to whether or not there was, in fact, a violation
of the Clean Air Act, is that correct?
A. Yes, that’s correct.
** *
[23] * * * Q. When you visited the Dow Facility in
September of 1977, did you receive co-operation from
the company in allowing you access to those areas you
wanted to inspect?
A. Yes.
Q. And, what were the areas that you desired [24]
to inspect?
A. The only areas that we had asked to inspect were
the boiler plants.
Q. And, there are two of those, is that right?
A. Yes.
Q. And, you were allowed the opportunity to inspect
them, is that right?
A. Yes.
Q. And, you spent approximately three hours in
doing so?
A. As I remember, the whole visit took about three
hours. Part of the time was used for some discussion.
Q. How much time — as you can recall now, how
much of that three-hour period was spent in actually
inspecting the facilities?
QE a
A-27
A. I would estimate two hours.
Q. Were you satisfied with the inspection that you
made?
A. At the time, as I recall, yes.
Q. Did you secure the information from Dow that
you went there to gather?
A. Again, as I recall, I have to say yes. I can’t recall
anything that I felt was missing.
[25] Q. And, again, the purpose of your visit was
to determine the compliance of Dow’s two power
facilities with the Clean Air Act, is that right?
A. Yes.
Q. And, you secured enough information, did you,
to make that determination when you visited the power
facilities in September of 1977?
A. I felt before the visit that I had enough informa-
tion to support, or to confirm that there was a violation,
but the visit I felt was made to substantiate that.
Q. And, were you able to substantiate that in your
mind?
A. I felt that I did, yes.
Q. And, again, you had the full co-operation of the
Dow people when you were there?
A. Yes.
Q. And, they withheld nothing from you that you
asked to inspect or see, is that right?
A. That's right.
* + *
[34] ** * Q. Okay. Now, in December of 1977 a
second request was made to visit the Dow Facility, was
it not?
A. ILheard of it.
Q. Did you make that request?
A. I did not make it.
A-28
©. In December of 1977, did you, as the engineer
half of the attorney-engineer team, concerned with
Dow’s Midland Facility, did you feel that there was a
need for any more data, from your standpoint, with
respect to the power plants?
A. I can’t recall any feeling that there was, that I
needed any more.
Q. Your recollection today is that you had obtained,
either prior to September 9th, or as a result of your Sep-
tember 9th visit, sufficient technical information from
Dow, or from your [35] inspection to satisfy your par-
ticular requirements as to Dow’s compliance or lack of
compliance?
A. Yes.
* + *
e @ e
MICHAEL SMITH (EPA)
DEPOSITION EXCERPT 11/2/78
DIST. CT. DKT. 29
* * *
[23] * * * Q. What requests were made subsequent
to the September visit?
A. There was a request to enter the plant at a later
date.
Q. Who made that request?
A. I did.
Q. And who did you make it of?
A. I believe I called Lou Pribila.
[24] Q. And do you recall the date?
A. In December.
Q. And do you recall the response you got then?
A. I got no response. The day of — Lou Pribila
replied that he would check with management on the
A-29
day that I made the request. The day after | made the
request, he called back and said that that — the request
would have to be denied.
Q. All right. Did you advise him as to the reason
that you wanted entry?
A. Yes.
Q. And what reason did you give him?
A. I told him that we wished to inspect the boiler
facilities and the incinerator facilities.
Q. Did either your request in September or Dec-
ember of 1977 include a request to bring photographic
equipment on to the premises?
A. In the December request, I mentioned that our
engineers would be bringing a camera.
Q. And what was the reason for that?
A. To take pictures of the facilities and the lay out.
* * *
[34] *** Q. Okay. Now, December 2nd, 1977,
Pribila notified that Dow would not admit EPA per-
sonnel to the Midland facility, is that correct?
A. He notified us that we would not be allowed to
enter on December 5th, that is correct.
Q. Well, that notice to you was on December 2nd,
correct?
A. That's correct.
Q. Did there come a time after that telephone con-
versation between yourself and Mr. Pribila that a deci-
sion was made to take aerial photographs of the Dow
Midland Facilities?
A. The decision to take aerial photographs came
after that date, yes.
* + *
[41] * * * Q. Do you recall what the purpose of the
aerial photography was, as represented to you at the
time the flight was authorized?
A-30
A. Yes. The purpose was to support litigation in the
case.
Q. That is under enforcement action under the [42]
Clean Air Act?
A. That's correct.
Q. What particular information were you seeking by
means of that aerial photography mission?
A. Well, a great deal of very general and specific
information. We wanted to visualize any emissions that
would have been coming out of the stacks, and to see
the West Side Power Plant, and the South Side Power
Plant, and the incinerator, and the layouts of those
facilities, and the relationship of the other facilities
within the plant to the town of Midland, surrounding
the plant. We would also like to look at any effects on
surrounding vegetation or notice of any emissions
coming out of the facilities.
Q. Were those photographs intended to supply any-
thing that had not previously been supplied to you by
Dow?
A. Yes.
Q. And, what specifically?
A. I listed several. In addition — I have just listed
several. In addition, the use of the [43] photographs
would be to verify the information that had been sub-
mitted by Dow, and I have already said to actually vis-
ualize emissions.
Q. That could have been done, could it not, without
recourse to an aerial photograph?
A. I don’t know that it could or not.
** *
[70] ** * * A. Much of the information I have listed as
being purposes for taking the photographs could probably
have been obtained by exhaustive. site inspections, walk-
ing around various parts of the plant by EPA personnel.
A-31
Q. And, that could have been conducted without
any risk to Dow’s proprietary technology and trade sec-
rets, correct?
A. I don’t know.
* + *
[87] * * * MR. GLEESON: We are back on the record.
Mr. Smith, you were going to obtain for us the date that
the Complaint was drafted. Have you secured that date
for us?
THE WITNESS: A. Okay. The draft Complaint within
this Agency is put together in the normal procedure. In
an enforcement action, it is to put together a draft, and
submit it with our litigation package. It is referred to the
[88] Department of Justice. It would have been drafted
sometime during the month of December, 1977.
Q. And, it would have been forwarded to Justice
when?
A. It was formally referred to Justice on February
3rd, 78.
Q. And, let me ask you, prior to that referral to Jus-
tice in February of 1978, was it your intention to use any
aerial photographs of the Midland Facility as direct evi-
dence in an enforcement action against Dow?
A. Yes.
Q. Has your mind changed since that time about the
value of these photographs as evidentiary value of these
photographs in an enforcement action?
A. The value of the photographs that had been taken,
or have been taken, the photographs don’t meet some
of the purposes to which aerial photography would. We
didn’t get pictures of plumbs, that sort of thing. We did
get a good view of the relationship of the facilities to
each other and their surroundings, and the surrounding
scene.
A-32
JAMES O. McDONALD (EPA)
DEPOSITION EXHIBIT 1, 11/2/78
DIST. CT. DKT. 27
REGION V
FEB 3 1978
Aerial Photographs of Two Dow Chemical Corporation
Boiler Plants and One Incinerator Plant at Midland,
Michigan
James O. McDonald, Director
Enforcement Division
Dr. Dave McNelis, Director
Remote Sensing Division
Environmental Monitoring and Support Laboratory
This is to request aerial reconnaissance photographs of
the facilities identified as (1) West Power, (2) South
Power, (3) Incinerator, on the attached portion of the
United States Department of Interior Geological Survey
Map, Midland South, Michigan.
The Agency’s objective is to use these photographs to
support pending litigation. The purpose of these photo-
graphs is to visualize the emissions and to obtain per-
spectives of the facilities and their surroundings which
cannot be obtained by other means.
We cannot predict when there will be excessive visible
emissions from these sources. We feel that early morning
or late afternoon are the opportune times for seeing
emissions from coal burning.
In any event, we feel the photographs will provide valu-
able support for our enforcement efforts. Time is a sig-
nificant factor, and we feel that we should have them by
February 13, 1978, if it is at all possible. Please notify us
no less than 48 hours in advance of your planned sur-
A-33
veillance, so that we, in turn, can notify the Company
and the State air authorities, as we are required by the
Clean Air Act. If you have any questions, please call Mr.
William E. Beyer of the staff at (312)-353-2086.
ORIGINAL SIGNED BY
/s/ James O. McDonald
Attachment
DEFENDANT'S (EPA’s) ANSWERS TO
PLAINTIFF’S (DOW’s) FIRST INTERROGATORIES
DIST. CT. DKT. 22 — FILED 6/29/78
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
[Caption Not Printed]
+ + *
Interrogatory No. 2
Please state whether the defendant or anyone acting
upon his behalf has taken or has caused to be taken any
photographs, aerial or otherwise, of any of plaintiff's
manufacturing facilities.
Answer No. 2
Yes. The only photographs taken of Dow’s Midland
facilities at the request of EPA were taken by Abrams
Aerial Survey in February, 1978. For further information,
see Answer to Interrogatory No. 4.
** *
Interrogatory No. 4
At any time, did the defendant or anyone acting in con-
cert with the defendant contract or hire or otherwise
A-34
direct Abrams Aerial Survey Corporation or any other
person to photograph Dow’s Midland, Michigan produc-
tion facilities?
Answer No. 4
Yes.
Interrogatory No. 6
Was the film used by the defendant, or at the defendant's
direction in the taking of photographs of any of plain-
tiff’s manufacturing facilities at Midland Michigan, pro-
cessed or developed?
Answer No. 6
Yes. -
Interrogatory No. 7
If the answer to No. 6 is in the affirmative, were any
prints made from the negatives?
Answer No. 7
Yes.
Interrogatory No. 8
If your answer [sic] to No. 6 and 7 are in the affirmative,
please identify by whom such processing, development
and printing was undertaken, the date, and the place of
such processing, developing and printing. Please describe
how many copies of each and every photograph so
taken and processed were made, and identify the pre-
sent whereabouts of each and every photograph.
Answer No. 8
a) Jimmy Hampton of the EPA Environmental Monitoring
and Support Laboratory-Las Vegas processed the film
on February 8, 1978 and printed 3 sets of color contact
prints. On February 9, 1978, Bill Fowler produced test
prints and five sets of color enlargements from 10 nega-
tives in Las Vegas. All contact prints, and enlargements
A-35
and test prints are now in the possession of the Clerk
of the United States District Court, Eastern District of
Michigan, Northern Division. (b) Photographs and por-
tions of photographs given to Dow Corning by agree-
ment of the parties to this action are presumably still in
Dow Corning’s possession.
*+* + *
Interrogatory No. 20
Was the Michigan State Air Pollution Control Commis-
sion, its staff, the Michigan Department of Natural
Resources, the Attorney General of the State of Michigan
or any other agency of the State of Michigan, notified or
in any other way involved with the photographing of
the plaintiff's production facilities at Midland, Michigan?
Answer No. 20
No.
Interrogatory No. 39
If the aerial photographing of the plaintiff's Midland,
Michigan production facilities was pursuant to an en-
forcement action under the Clean Air Act, (42 U.S.C.
1857c-9), please identify which portion of the plaintiff's
production facility at Midland, Michigan, was the sub-
ject of such inquiry.
Answer No. 39
The aerial photography was taken in connection with an
enforcement action against the Dow Chemical Company,
which action would be brought under 42 U.S.C. § 7413
(formerly 42 U.S.C. § 1857c-8); the incinerator and the
West side and South side power plants were the subject
of such inquiry.
A-36
Interrogatory No. 47
Has anyone with experience in photographic analysis,
photographic enhancement, or photographic reconnais-
sance examined or viewed any of the photographs
described in your answer to any of the preceding inter-
rogatories?
Answer No. 47
Yes.
AFFIDAVIT OF CLAYTON E. LAKE (EPA) DATED 6/10/81,
IN SUPPORT OF U.S.’s RESPONSE TO DOW’s OPPOSITION TO
U.S.’s MOTION FOR SUMMARY JUDGMENT FILED 10/13/81
DIST. CT. DKT. 187
Clayton E. Lake, being duly sworn, deposes and says:
THAT I am employed by the U.S. Environmental Pro-
tection Agency, Environmental Monitoring Systems Lab-
oratory-Las Vegas, Nevada (hereafter EMSL-LV) in the
capacity as Project Manager in the Advanced Monitoring
Systems Branch (AMS) (formerly, Remote Sensing Oper-
ations Branch, RSO.)
THAT a copy of the letter requesting EMSLLV for
photographic support of facilities in Midland, Michigan
was received by me from Mr. James O. McDonald,
Director, Enforcement Division, EPA Region V, via tele-
fax on Friday, February 3, 1978. :
THAT on Monday, February 6, 1978 I received bids via
telephone for cost of data collection. Abrams Aerial Sur-
vey (hereafter Abrams) located in Lansing, Michigan
was awarded the contract on this date.
alt
A-37
THAT I requested Abrams verbally to return flight
maps, flight cards and exposed film via air baggage to
EMSL-LV (AMS) for processing. This is a normal procedure
that EMSL-LV (AMS) requests of all its contractors.
THAT on Tuesday, February 7, 1978, Abrams reported
to me via telephone that the photogaphic mission was
conducted that day from 1415 to 1452 (EST) with film
and flight information being shipped via United Airlines
small package express, scheduled to arrive in Las Vegas
on flight 711 February 8, 1978 at 1135 a.m. (PST).
THAT on Tuesday, February 7, 1978, | completed Form
RDS-10 which designated the material as restricted infor-
mation along with photo lab requirements to be con-
ducted by authorized personnel.
THAT on Wednesday, February 8, 1978 mission film
was picked up at the airport by Mr. Jimmy Hampton.
He processed and produced color contact prints giving
film, prints, flight card and map to me as a normal pro-
cedure, on that date.
THAT on Thursday, February 9, 1978, Bill Fowler pro-
duced five sets of color enlargements from ten nega-
tives. It is a normal procedure to send the requesting
Region three sets of enlargements. EMSL-LV (AMS) main-
tains any extra sets in its locked files.
THAT on Friday, February 10, 1978 data information
blocks giving time, scale, sites and north arrows were
mounted on enlargements and I sent the package to EPA
Region V via TWA “Next Flight Out”, flight 780, for Mr.
William Beyer to pick up at the airport.
THAT mission film and extra prints were placed in a
locked secure metal cabinet by me and I maintained the
only key, thus restricting access to data. No one re-
ceived the key from me, to enter the cabinet, during the
time this data was at EMSL-LV.
A-38
THAT on Monday, April 10, 1978, I sent mission film
and enlargements via Certified Restricted Mail to Mr.
Thomas Woods, Assistant U.S. Attorney in Detroit,
Michigan, in response to the request of Mr. Mike Smith
of EPA, Region V.
THAT on Thursday, April 13, 1978 I sent all originals
and copies of the original maps and flight information
provided by Abrams via Certified Restricted Mail to Mr.
Thomas Woods, Assistant U.S. Attorney, Detroit, Michi-
gan, purging EMSL-LV files of said materials and infor-
mation. This action was in response to the request of
Mr. Mike Smith of EPA Region V.
THAT on July 13, 1978, I discovered a roll of contact
prints in a drawer of the locked secure metal cabinet,
that I had inadvertently overlooked during my April 10,
1978 search for pertinent materials. That, further, I imme-
diately notified Dorothy Attermeyer, Office of Regional
Counsel, EPA Region V regarding my oversight and sent
the material via Certified Restricted Mail directly to Mr.
Thomas Woods, Assistant U.S. Attorney, Detroit, Michi-
gan, finally purging EMSL-LV files of all related materials
and information. During this period, I remained the sole
possessor of the key to the cabinet and no one received
the key from me to gain access.
Further Affiant says naught.
/s/ Clayton E. Lake
[Jurat Not Printed]
——,-
——
A-39
CLAYTON E. LAKE (EPA)
DEPOSITION EXCERPTS 2/7/79
DIST. CT. DKT. 41
* + *
[29] * * * Q. And after you had made a determina-
tion that Abrams would be able to conduct the over-
flight, what directions did you give them for under-
taking that work for you?
A. I first gave them about three different altitudes to
fly over.
Q. And, what were those altitudes?
A. 1,200 above ground, 3,000 and 12,000.
Q. And, did you give them any directions as to the
type of camera or film that they should use?
A. Right. We wanted color film.
Q. Did you make any specification as to the type of
camera that they would use?
A. We requested either Zeiss, Wild, or a camera equal
to their specs.
Q. Why would you want to utilize that [30] par-
ticular type of camera?
A. Some of those small companies have old antique
cameras, which does not give you good color rendition,
so we request this type of camera, which does give you
fairly good color.
Q. Was there a reason that you were particularly in-
terested in color?
A. We always seem to determine more from a color
photograph. It is just easier to study.
Q. Did you make any — did you specify to Abrams
what type of film they should use?
A. I believe I did. I think that is on our — it would
be on our purchase order, color film.
Q. This form right here (indicating)?
A-40
A. Yes, right there, color film. All they had in stock
was 2445. I told them they could use that.
Q. This is, for the record, Lake Deposition Exhibit
No. 2N. On that exhibit you indicate, and maybe you
can refer to your copy of it, and correct me if I am
wrong, you indicate there a description of the job. “Col-
lect aerial photographic data only, of three industrial
sites in Midland, [31] Michigan for support in pending
litigation. Approximately 53 exposures of vertical and
obliques will be required at two different altitudes using
Zeiss, Wild or 6 inch FL aerial mapping camera with
equal resolution and aerial color film. Film to be re-
turned to Las Vegas via airline ticket counter to ticket
counter for processes.” Is there a distinction between a
Zeiss and a Wild camera?
A. They are both very similar. There is differences,
but not much difference.
Q. Are you familiar with those cameras?
A. Yes, sir, I am.
Q. Are they capable of high resolution photography?
A. The manufacturers say that they have between 40
and 45 lines.
Q. What does that translate out to you, as far as the
definition of photographs?
A. Also, you have a lot of variance. You have atmos-
pheric conditions, you have a large variance. The num-
bers they give you is run off a test bench, which they
give you these lines, which is average resolution.
[32] Q. What does that resolution figure mean to
you as a photographer, if you see that number? What
does it mean to you, as far as the capability of the
camera to take high resolution film?
A. That would be a good aerial mapping camera.
Q. Do you, in fact, know what type of camera Abrams
used to secure the photographs of the Dow Plant?
A. They told me they had an RC-10.
A-41
Q. What is an RC-10?
A. RC-10 is the same as RC-8, except you can change
the lens.
* * *
Q. What is an RC-10 used for?
A. Aerial mapping, mainly, topographic.
* + *
[66]* **Q. And, after you received the film here —
it was received in Las Vegas?
A. Yes, sir.
Q. By what manner?
A. It came by — it seems like it was United. It came
baggage to baggage.
Q. Air Freight?
A. Not really Air Freight. It is handled like baggage.
** *
[67] * * * Q. Did you participate in the processing of
the film?
A. No, sir.
Q. And, after the film was processed, did you then
view the film?
A. Yes, sir.
Q. And certain enlargements of that film were pre-
pared, were they not?
A. Yes, sir.
A-42
LAKE DEPOSITION EXHIBIT 2D
2 x Enlargements of the following
Enlargement
Frame scale Time Sites
9471 1” = 1000’ 2:16p.m. Dow Chemical Facilities
9478 1” = 250’ 2:26 West Power Plant
9481 1” = 250’ 2:30 South Power Plant |
9500 oblique 2:31 Dow Chemical Facilities
9507 1” = 100' 2:45 West Power Plant
9518 1” =100' 2:47 Incinerator
9527 1" = 100' 2:50 South Power Plant
9535 oblique 2:51 Incinerator
9537 oblique 2:52 West Power Plant
9541 oblique 2:53 South Power Plant
Total 50
A-43
LAKE DEPOSITION EXHIBIT 2E
6” FL lens (50397, 48, or 2445)
60% forward overlap RSD 7816
Flight Line Length comermpe G@WAGL scale frames
Vert. 1 3miles 4,500’ 3,000 1”"=500' 9
Vert. 2 3miles 4,500’ 3,000 1”"=500' 9
overall (oblique) roll aircraft approx. 3,000 2
Vert. Facility #1 1mile 1350’ 1200’ 1”=200' 9
Vert. Facility #2 Imile 1350’ 1200’ 1”"=200' 9
Vert. Facility #3 Imile 1350’ 1200’ 1”"=200' 9
(fly aircraft slow as possible for image motion)
Oblique Facility #1 approx 1200’ AGL 2
Oblique Facility #2 approx 1200’ AGL 2
Oblique Facility #3 approx 1200’ AGL 2
53
frames
(1) 5 Ft unexposed film on each end for
control strip
(2) Record emulsion number of film, photographers and pilots name,
flight log & map.
2449
A-44
LAKE DEPOSITION EXHIBIT 2G
TECHNICAL SERVICES REPORT
(Read instructions on reverse before completing form)
LABORATORY PERFORMING PROJECT: EMSL-LV
PROJECT NO.: RSD 7818
LOCATION OF Activity: Midland, MI V
TYPE OF Activity: Remote Sensing
REQUESTER: James McDonald
Director, Enforcement Division
6. OBJECTIVES:
Collect aerial photographic data of three industrial sites
in Dow Chemical facilities located in Midland, Michi-
gan (West Power, South Power and Incinerator).
The data is to visualize the emissions and to obtain
perspectives of the facilities and their surroundings.
Mission data to be used as support
in pending litigation.
7. DELIVERABLES:
1. Flight Report.
2. Color oblique and vertical photographic coverage.
3. Assistance in photo interprtation [sic]
fm yy
(Limited due to snow coverage).
4. Final delivery shipped Feb. 10, 1978.
8. Staff-Hours: 15
9. COSTS:
MATERIAL: $254.00 TRAVEL:
Contract: $2,078.44
10. Date Request: 2/3/78 11. Date delivered: 2/10/78
12. PE. No.: 1HD622 13. Major Equipment Utilized
14. REMARKS: Project Completion Report
with Actual Cost.
15. PREPARED BY: /s/ Clayton E. Lake
16. DATE: 3/7/78 ;
EPA Form 5340-1 (77) Revised
A-45
AFFIDAVIT OF THOMAS M. SCHAFER (ABRAMS AERIAL, INC.),
ATTACHED TO COMPLAINT FILED 3/15/78
DIST. CT. DKT. 3
THOMAS M. SCHAFER, being duly sworn, deposes
and says:
THAT he is employed by Abrams Aerial Survey Cor-
poration, Lansing, Michigan, in the capacity of Vice
President of contracting;
THAT Abrams Aerial Survey Corporation (hereafter
Abrams) is engaged primarily in the business of aerial
mapping and aerial photography;
THAT Affiant is familiar with the technology, methods
and business practices of Abrams in said aerial mapping
and photography;
THAT on February 6, 1978, Abrams received an order
for services by telephone from Clayton Lake, an
employee of the United States Environmental Protection
Agency (hereafter EPA), Las Vegas, Nevada office, for
EPA purchase order CB-8-0189-A;
THAT said purchase order placed with Abrams by EPA
directed Abrams to take aerial photographs of the
Michigan Division, Midland plant of The Dow Chemical
Company located at Midland, Michigan as soon as busi-
ness schedules and weather conditions would permit;
THAT said EPA purchase order directed that said aerial
photographs be taken from an oblique perspective at
altitudes of 3,000 and 1,200 feet from the west side
looking to the east of said Midland plant and from the
northwest side looking to the southeast of said Midland
plant;
THAT said EPA purchase order also directed that ver-
tical flight lines at altitudes of 12,000, 3,000 and 1,200
feet be flown over said Midland plant;
A-46
THAT it is impossible for Affiant to specify the par-
ticular flight lines due to the fact that the EPA purchase
order directed Abrams to furnish all original aerial nega-
tives, the flight data card for the job executing said pur-
chase order and the flight map of same which items
would, in the ordinary course of business, have all been
retained by Abrams; 7
THAT Affiant is informed that on February 7, 1978, at
approximately 3:00 p.m., one Michael Mills, an employee
of Abrams, in a twin engine Beechcraft airplane, flew
over the area of said Midland plant located at Midland,
Michigan, and with a Wild RC-10 certified mapping
camera with 6-inch lens, having a focal length of approxi-
mately 150 millimeters, piloted said plane while one
Richard Miller took approximately 100 exposures on
Kodak aerocolor negative film #2445 in accordance with
the instructions given by said Clayton Lake;
THAT upon landing in accordance with the instruc-
tions of said purchase order, employees of Abrams
placed the exposed film in a closed container and trans-
mitted same together with the aforesaid flight data card
and flight map to the United States Environmental Pro-
tection Agency, Las Vegas, Nevada at P.O. Box 15027 on
a United Airlines flight;
THAT based on Affiant’s knowledge of aerial photo-
graphs, techniques, methods and processes, aerial nega-
tives taken from a vertical perspective at approximately
1,200 feet with the aforesaid equipment and film is cap-
able in the hands of a competent photographic techni-
cian, of enlargement to a scale of approximately 1 inch
equals 20 feet without significant loss of resolution;
THAT based on Affiant’s knowledge of aerial photo-
graphs, techniques, methods and processes, aerial nega-
tives taken from a vertical perspective at approximately
A-47
3,000 feet with the aforesaid equipment and film is cap-
able in the hands of a competent photographic techni-
cian, of enlargment to a scale of approximately 1 inch
equals 50 feet without significant loss of resolution;
THAT based upon Affiant’s knowledge of aerial photo-
graphs, techniques, methods and processes, aerial nega-
tives taken from a vertical perspective at approximately
12,000 feet with the aforesaid equipment and film is cap-
able in the hands of a competent photographic techni-
cian, of enlargement to a scale of approximately 1 inch
equals 400 feet without significant loss of resolution.
Further Affiant says naught.
/s) THOMAS M. SCHAFER
[Jurat Not Printed]
CLAYTON LAKE (EPA)
DEPOSITION EXCERPT 7/14/81
DIST. CT. DKT. 253
* * *
[49]* * *Q. Mr. Lake, back to your document here,
the publication that we have been referencing in the
deposition, the Lake Deposition Exhibit No. 1, would
you look at Page 10, please, where we talked about
aerial cameras. In the second full paragraph you refer-
ence RC-8, RC-10 Zeiss, or equivalent cameras. And
over on Page 11 you say about the third line down:
“Mapping cameras are particularly desirable
because geographic distortion is minimal.”
What do you mean by that? Can you say, do you
know what that means?
A-48
A. Like these are using mapping cameras and you
have very small distortion. Unlike some cameras where
on the edge of the frame it is going to be really
stretched out of proportion, maybe oblong or something
of that nature, and your mapping [50] cameras are not
stretching out of proportion, it’s pretty much distortion-
free and helps with your interpretation.
Q. If I take my camera, my hand held Brownie or
Polaroid camera, would that distortion element be intro-
duced there as a factor —
A. I don’t know which camera you would be using.
Q. Would the ability of a mapping camera to take
photographs with minimal geometric distortion be
superior to a camera that the average person might use?
A. May not have as good a resolution of some of
your other cameras.
MR. ALLEN: What kind of cameras are we talking
about here? We have run the gamut from an Instamatic
to a Hasselblad.
* * *
Q. (BY MR. GLEESON) If you were using or you
were going to take an aerial photograph for your pur-
poses, would you prefer a mapping camera to the type
of camera Mr. Allen was discussing?
A. Some of your smaller cameras have better resolu-
tion or may be sharper.
Q. How about that geometric distortion?
A. Your mapping camera is better for that, what they
use for making maps, a better camera for measurement.
** *
[80] * * * Q. Now, you talked about the problem of
distortion, the ability of an aerial mapping camera for
distortion. What type of distortion were you talking
about?
A-49
A. You have optical distortion with every lens you
have, a certain optical distortion, and your mapping
cameras are pretty well calibrated and ground to have
less distortion than your regular cameras.
* + *
[81] ** * Q. You said something about hand held
cameras offering better resolution or comparable resolu-
tion to an aeria! camera. What did you mean by that?
A. Some of your cameras will actually be able to re-
solve more information that is on the ground than what
your aerial mapping camera would. The disadvantage
would be as far as doing measurements. You could do
measurements with it but would be a little more difficult
than your regular mapping camera.
Q. What kind of cameras are you talking about here?
35 millimeter?
A. Can either use 35 millimeter or 70 millimeter.
Q. With what kind of lens? With the 70 a standard lens?
A. Some would be commercial right off the shelf.
Q. And using any special kind of film?
A. We are just using any commercial film ourselves,
and anyone can purchase it, the commercial film.
Q. If all you are interested in is picking up precise
[82] detail of an object on the ground using aerial photo-
graphy and your objective is getting as much detail and
resolution that you are able to pick up, what would be
the better sort of camera to use for that?
A. I would probably use either a Nikon, Hasselblad
and a telephoto lens in a helicopter.
Q. As opposed to an aerial mapping camera?
A. If you're going for detail.
Q. But for topographical measurements and relation-
ships?
A. I would use a mapping camera.
** *
A-50
[84] ** * Q. So is it your testimony, Mr. Lake, just
jumping back to the question of aerial photography, that
you can obtain comparable results as far as detail is con-
cerned using a hand held 35 millimeter or 70 millimeter
camera as with an aerial camera such as the RC-10?
A. Correct, and in some cases you would have better
resolutions with a hand held camera because at least
with a helicopter you can fly at lower altitudes and still
be under FAA regulations where in fixed wing aircraft
you have to fly at higher altitude.
MR. ALLEN: Okay. I have no further questions.
FURTHER EXAMINATION
BY MS. GOOTEE:
Q. Mr. Lake, if the purpose of the aerial photo-
graphy mission was to obtain the best data so that you
could make measurements and plct what was on the
ground, would you use a mapping camera or one of
your hand held cameras?
A. Like I mentioned before, we are mainly set up —
[85] now, I feel we are getting nit-picky on detail. We
are mainly set up — we are not trying to pick a little
two inch object on the ground. We are trying to mainly
photograph an area and see if it does comply with cer-
tain regulations that does [sic] exist on the books.
So we are set up mainly for aerial mapping. All of our
equipment is designed for aerial type film and with the
hand held cameras we have on stock, have a much
shorter focal length, and when we contract work I
would doubt very seriously if Abrams would have a
hand held camera either, so — when you contract a
mapping company for that you give them coordinates
and you hav» them fly the coordinates for you.
Q. Did I hear you say you are not really interested
in detail?
A-51
A. We are interested in detail, but I thought we were
getting too nit-picky when talking about very small
items. Flying at 1,200 feet above ground you are using a
6-inch lens. We never are required to have any more
detail than that. In most cases we are very happy with
one square inch or 500 feet to the inch, in most cases.
Q. And if that is good enough and the hand held 35
or 70 millimeter cameras give you good resolution, why
don’t you use the cheaper camera then?
A. Because we are set up — it is easier for us since
[86] we are set up for vertical aerial mapping like our
printers — we have aerial printers and our cameras are
aerial cameras. * * *
... plus we find it takes less film, less exposure, less
time in doing our type of work, doing the aerial map-
ping, because if you are using 70 or 35 millimeter film,
you are going to have millions of frames to look through
and trying to look through those little frames under the
stereo table, what we have, wouldn’t be feasible and
really for us is more cost effective using the nine inch
mapping camera.
AFFIDAVIT OF WILLIAM E. BEYER (EPA) DATED 6/15/81,
IN SUPPORT OF U.S.’s RESPONSE TO DOW’s OPPOSITION TO
U.S.’s MOTION FOR SUMMARY JUDGMENT FILED 10/13/81
DIST. CT. DKT. 187
1. My name is WILLIAM E. BEYER. I am an environ-
mental engineer for the United States Environmental
Protection Agency, Enforcement Division in Region V. In
1977, I was assigned to investigate the compliance status
of the Dow Chemical Company facilities in Midland,
Michigan with the Michigan implementation plan
approved under the Clean Air Act.
A-52
2. I picked up the photographs of the Dow facilities
that had been ordered by Region V from the Environ-
mental Monitoring Laboratory in Las Vegas at the
freight terminal at O’Hare airport on February 10, 1978.
I brought them to my office where I kept them either on
the floor or on the heating duct near my desk. I gave
the enlargements to Steve Rothblatt within a week after
receiving them and retained the rolls for a longer time,
perhaps four weeks altogether. I turned the rolls over to
the docket clerk on or about March 13, 1978.
3. During the time that the photos were in my office
they were viewed by several EPA enforcement person-
nel. They were not examined by anyone outside the
Agency in my presence and, to my knowledge, were not
examined by anyone outside the Agency in my absence.
Further affiant sayeth not.
DATE: June 15, 1981 /s/ William E. Beyer
[Jurat Not Printed]
e@ e e
AFFIDAVIT OF STEPHEN H. ROTHBLATT (EPA) DATED 6/15/81,
IN SUPPORT OF U.S.’s RESPONSE TO DOW’s OPPOSITION TO
U.S.’s MOTION FOR SUMMARY JUDGMENT FILED 10/13/81
DIST. CT. DKT. 187
1. My name is STEPHEN H. ROTHBLATT. I am a man-
ager for the United States Environmental Protection
Agency in Region V. I was chief of the Engineering Sec-
tion of the Air Enforcement Branch in the Enforcement
Division during the time that EPA had - photographs
taken of the Dow Chemical Company facilities in Mid-
land, Michigan.
A-53
2. On or about February 13, 1978, William Beyer
transferred some enlargements of the Dow photos to
me. There were two very large photographs of the boiler
plants taken from both an overhead and an oblique view-
point which I hung on the wall of my office. The
remaining enlargements I kept on my desk or on a table
in my office. On or about March 13, 1978, I transferred
the enlargements to the docket clerk.
3. During the time that the photos were in my office
they were viewed by several EPA enforcement person-
nel. They were not examined by anyone outside the
Agency in my presence, and, to my knowledge, were
not examined by anyone outside the Agency in my
absence.
Further affiant sayeth not.
DATE: June 15, 1981 /s/ Stephen H. Rothblatt
[Jurat Not Printed]
AFFIDAVIT OF H. V. (JACK) WAIT, Jr. (DOW) DATED 7/30/81,
IN SUPPORT OF DOW’s REPLY Re SUMMARY JUDGMENT
FILED 8/17/81
DIST. CT. DKT. 168
H. V. (Jack) Wait, Jr., being duly sworn, deposes and says:
THAT I am the Section Manager, Chlor-Alkali/Brine
Chemicals, of the Michigan Division of The Dow Chem-
ical Company.
THAT I have examined the EPA photographs of Dow’s
Midland facility, which photographs are the subject mat-
ter of Dow v. EPA, et al, Case No. 78-10044, under
magnification.
A-54
THAT during such examination I have discerned items
or equipment as small as 2 inch in diameter in the EPA
photographs
Further Affiant says naught.
/s/ H. V. (Jack) Wait, Jr.
[Jurat Not Printed]
AFFIDAVIT OF SHERMAN HOLLANDER (MICH. DNR) DATED 8/4/81,
IN SUPPORT OF DOW’s REPLY TO U.S.’s OPPOSITION TO DOW’s
MOTION FOR SUMMARY JUDGMENT FILED 8/17/81
DIST. CT. DKT. 168
SHERMAN HOLLANDER, being duly sworn, deposes and
says:
THAT I am employed by the Michigan Department of
Natural Resources (DNR) Division of Land Resource
Programs.
THAT I have access to and control over DNR aerial
photographs.
THAT I sent a 10 x 10 inch color infrared transparency
of frames 81-66-172 and 80-65-35 to Clayton E. Lake of
Las Vegas, Nevada, in May of 1981.
THAT frames 81-66-172 and 80-65-35 were taken at an
attitude [sic] of 12,000 feet, at a vertical angle and at a
contact scale of 1:24,000 (equivalent to 1 in. = 2000 ft.).
Further Affiant says naught.
/s/ Sherman Hollander
[Jurat Not Printed]
A-55
AFFIDAVIT OF MICHAEL KELYMAN (DOW)
ATTACHED TO COMPLAINT FILED 3/15/78
DIST. CT. DKT. 2
MICHAEL (NMI) KELYMAN, being auly sworn, deposes
and states:
THAT he received a Bachelor of Science Degree in
Metallurgical Engineering in 1956 and a Master of Sci-
ence Degree in Industrial Management in 1957, both
from Purdue University;
THAT he was employed by The Dow Chemical Com-
pany (DOW) on May 5, 1958 and has been a full-time
employee since that cate;
THAT he has had experience in various capacities
including Manager of Safety for the Michigan Division
and, most recently, was appointed Manager of Security
and Plant Protection for the Michigan Division of Dow
Chemical U.S. A., an operating unit of DOW;
THAT he is directly responsible for the security of the
Midland production facility of the Michigan Division;
THAT about one hundred employees are directly
involved in maintaining the security of the Midland pro-
duction facility;
THAT he is especially responsible for the security and
protection against . authorized disclosure of DOW’s
proprietary process technologies which are being
employed in the Midiand production facility;
THAT in securing the Midland production facility to
guard against losing any proprietary process technology,
the following several precautions are being taken:
1. A chain-link fence at least 8 feet high has been in-
stalled completely around the production facility;
10.
11.
A-56
gates for ingress and egress at various intervals in
the fence have an attendant (guard) on duty when
any given gate is in operation to admit or allow
people to leave the facility;
closed-circuit television surveillance for continu-
ously monitoring the various entrance and exit
gates and to monitor the area along the fence sur-
rounding the facility;
alarm systems which will indicate unauthorized
entry at various locations;
motion detectors at strategic locations to indicate
movement of personnel in certain restricted areas
within the facility;
roving patrols which travel throughout the facility
and around the perimeter to augment the other
security systems;
liaison with local public law enforcement officials
including radio communication to assist in the
apprehension of persons engaged in unlawful
activities relating to the production facility;
employees entering the facility must exhibit an
identification badge in every instance of entry;
non-employees who wish to visit the facility must
be approved and must obtain a visitors pass in-
cluding a badge which must be exhibited at all
times while in the facility;
non-employees who have been approved to visit
are still greatly restricted in their movements and
some areas of the facility remain off-limits to all
non-employees;
cameras by anyone other than an authorized rep-
resentative of DOW are prohibited at all times and
in all places in the facility; and
A-57
12. persons visiting for technical reasons must obtain
a technical pass which provides among other
things that the visitor will not disclose any tech-
nical information learned as an incidence to his
visit;
THAT security personnel are on duty twenty-four
hours a day and seven days a week with at least twenty-
five such people on duty at all times and with about
fifty people on duty during normal duty hours;
THAT DOW spent at least about 3.25 million dollars in
each of the last ten years on the security of the Midland
production facility; and
THAT in the event the engineering drawings and/or
blueprints of a specific production plant were to be dis-
posed of, for example, at the conclusion of construction,
the drawings and/or blueprints would be packaged and
incinerated under the direction of security personnel
who would also witness the incineration.
FURTHER Affiant sayeth naught.
/s/ Michael (NMI) Kelyman
[Jurat Not Printed]
e © @
AFFIDAVIT OF LEROY L. MASTIC, Jr. (DOW)
ATTACHED TO COMPLAINT FILED 3/15/78
DIST. CT. DKT. 4
LEROY L. MASTIC, Jr., being duly sworn, deposes and
states:
THAT he received Bachelor of Science degrees in
Mathematics and Chemical Engineering in 1954 and a
Master of Science degree in Chemical Engineering in
A-58
1955 from the University of Michigan, is a Professional
Engineer licensed by the State of Michigan and a
member of the American Institute of Chemical
Engineers;
THAT from 1955 to 1957 he served in the United States
Army in a medical research facility doing work involving
the irradiation of biological systems;
THAT he has since 1957 been employed by The Dow
Chemical Company in various manufacturing capacities
relating to the production of hydrocarbons and mono-
mers and of polyvinylic resins;
THAT since 1973 he has been employed by The Dow
Chemical Company as the Manager of the Organic
Chemicals Production Department, Michigan Division,
Midland, Michigan;
THAT in said capacity he has supervisory authority
over the operation of a number of organic chemical pro-
duction facilities located in said Michigan Division Mid-
land plant, one of which is a production facility for the
production of chlorinated benzenes;
THAT in said capacity he is intimately familiar with the
process, equipment, design and technology incorporated
in said chlorinated benzenes (CB) production facility and
with other processes, equipment and technology em-
ployed commercially and taught in published literature
pertaining to the production of CB;
THAT the aforesaid CB production facility includes a
new production segment which just became operational
in late 1977 and which new segment incorporates a
newly developed process and technology for which pro-
cess research and development costs incurred by The
Dow Chemical Company over the last ten (10) years, are
in excess of one and a half million dollars ($1,500,000);
A-59
THAT said newly developed process and technology
permit The Dow Chemical Company to selectively pro-
duce the chlorinated benzenes;
THAT with respect to said newly developed process
and technology, Affiant knows of no disclosure of same
in the published literature nor of disclosure of same by
The Dow Chemical Company to other than its employees,
and believes that same is unique to The Dow Chemical
Company Midland plant;
THAT Affiant is informed that on or about February 7,
1978, aerial photographs of said Michigan Division Mid-
land plant, including the aforesaid CB production facil-
ity, were taken without authorization of The Dow
Chemical Company by employees of Abrams Aerial Sur-
vey Corporation and which photographs are capable of
enlargement and printing to show the area photo-
graphed on a scale of one (1) inch to twenty (20) feet;
THAT to the best of Affiant’s knowledge, other than
said February 7, 1978, episode of aerial photography the
only other instances in which the Michigan Division
Midland plant or portions thereof have been photo-
graphed from the air have been instances where The
Dow Chemical Company has authorized such photo-
graphy for its own use or benefit and on that basis
Affiant, prior to February 7, 1978, had no reason to
believe that unauthorized aerial photographs of said
Midland plant or said CB production facility would be
taken;
THAT based on the belief that no unauthorized aerial
photographs would be taken of the aforesaid new seg-
ment it has, primarily for reasons of safety due to the
explosive and toxic nature of the process reactants, been
constructed in a manner which reveals various reactor
equipment, loading and storage facilities, transfer lines,
A-60
motors and like equipment to view from an aerial per-
spective since same have not been enclosed within
building structures;
THAT because of the location of said CB production
facility well behind an eight (8) foot chain link fence sur-
rounding the perimeter of the Michigan Division Mid-
land plant, among and behind various other production
facilities and buildings, the details of said new produc-
tion segment which would be visible from an aerial per-
spective are not visible from outside said perimeter
fence;
THAT Affiant is informed that at least twenty (20)
other production facilities within the Midland plant are
similarly constructed so that details of such procuction
facilities would be visible from an aerial perspective
which are not visible from outside said perimeter fence;
THAT at the Michigan Division Midland plant, The
Dow Chemical Company exercises numerous general
security measures such as restricting physical access
thereto to authorized personnel only;
THAT with respect to said CB production facility under
Affiant’s supervision, supervisory salaried employees
having access to same are required, upon hiring, to exe-
cute an agreement to maintain in confidence all trade
secret or confidential technical or business of The Dow
Chemical Company to which they have access and upon
termination of employment are “debriefed” and reminded
of their obligation with respect to specific technology to
which they have had access;
THAT access to internal written report, engineering
plans, blueprints, diagrams and operating manuals per-
taining to said CB production facility is tightly limited
and is restricted to those employees of The Dow Chemi-
A-61
cal Company having need for such items in the perfor-
mance of their duties;
THAT technical visitors other than employees or con-
tractors of The Dow Chemical Company are not routinely
permitted access to said CB production facility and in in-
stances when such access is granted, it is upon Affiant’s
authorization and issuance of a visitor pass to such an
individual who is then accompanied by an employee of
The Dow Chemical Company;
THAT such a technical visitor is not exposed to any
equipment or technology contained in said CB produc-
tion facility unless Affiant first determines that such ex-
posure is required for business purposes of The Dow
Chemical Company and that the visitor agrees to main-
tain in confidence any information pertaining to the
facility which he may obtain by virtue of his visit;
THAT no photographs of said CB production facility
are permitted from within the Midland plant without
Affiant’s authorization and then only for the use or
benefit of The Dow Chemical Company;
THAT on information and belief and Affiant’s experi-
ence as a chemical engineer, aerial photographs enlarged
to the scale of one (1) inch to about one hundred (100)
feet would reveal the unique feature of said CB produc-
tion facility to a competent chemical engineer could de-
duce the purpose of and results obtained from such a
feature and the attendent necessary modifications in a
CB production process;
THAT aerial photographs enlarged to the scale of one
(1) inch to fifty (50) feet or less of said CB production
facility, in the hands of a competent chemical engineer,
would be capable of use as an engineering diagram or
blueprint for construction of a major portion of said CB
production facility which would obviate the necessity to
A-62
incur most research and developmerit and engineering
costs for a like facility;
THAT without such aerial photographs Affiant believes
that the process and technology incorporated in said CB
production facility could not be reproduced by com-
petitors technically skilled in the CB process art without
considerable expense and effort, at least as great as that
expended by The Dow Chemical Company to develop
same;
THAT because of controlled selectivity of various mem-
bers of the CB family which inures to The Dow Chemical
Company from use of the unique process and _ tech-
nology incorporated in the Midland plant CB production
facility, The Dow Chemical Company now enjoys the
ability to adjust its CB product to the demands of the CB
market to a much greater extent and in a more economic
fashion than competitors who do not possess knowledge
of said unique process and technology;
THAT a competitor of The Dow Chemical Company
possessing aerial photographs of said CB production
facility on the scale of one (1) inch to about one hundred
(100) feet would likely and on the scale of one (1) inch
to fifty (50) feet or less would certainly, in Affiant’s
opinion, be capable of employing the same unique pro-
cess and technology incorporated in said CB production
facility and thereby more economically compete with
The Dow Chemical Company in the manufacture and
sale of chlorinated benzenes, to the inestimable and
irreparable damage to the business of The Dow Chemical
Company.
Further Affiant says naught.
/s/ LEROY L. MASTIC, Jr.
[Jurat Not Printed]
A-63
AFFIDAVIT OF ROBERT R. BUMB (DOW)
ATTACHED TO COMPLAINT FILED 3/15/78
DIST. CT. DKT. 5
ROBERT R. BUMB, being duly sworn, deposes and
states:
THAT he received a Bachelor of Science degree in
Chemistry from Texas Agricultural & Industry Univer-
sity, a Doctor of Philosophy degree in Physical Chemis-
try from Arizona State University in 1967 and is a
member of the American Institute of Physics, the Amer-
ican Chemical Society and the American Crystallography
Association;
THAT he has since 1967 been employed by The Dow
Chemical Company in various areas involving technol-
ogy of polymers, including the position of Technical
Director for Designed Polymer Research;
THAT he is presently employed by The Dow Chemical
Company as Production Manager of the Styrene Plastics
Department, Michigan Division, Midland, Michigan, and
is responsible for The Dow Chemical Company’s man-
ufacturing technology for more than thirty (30) sites
world-wide which produce styrene plastics;
THAT he is familiar with The Dow Chemical Com-
pany’s Michigan Division Midland plant complex located
at Midland, Michigan, particularly with production
facilities for styrene-acrylonitrile (SAN) resin and acrylo-
nitrile-butadiene-styrene (ABS) resin and with a develop-
mental production facility for styrene based heat resistant
plastic (HRP), all located at said Midland plant complex,
and the technology and processes incorporated in said
facilities;
THAT The Dow Chemical Company became the first
commercial producer of styrene resins in the United
States forty (40) years ago and has continued to develop
A-64
and improve technology for the production of styrene
resins ever since;
THAT the aforesaid SAN and ABS resin facilities incor-
porate styrene resin processing technology developed, at
great expense to The Dow Chemical Company, over the
past twenty-five (25) years and that expenditures over
the past ten (10) years for research and development of
styrene resin product and processing technology, some
of which recent vintage technology is incorporated in
the aforesaid three (3) production facilities, are in excess
of fifty million dollars ($50,000,000);
THAT Affiant is informed that on or about February 7,
1978, aerial photographs of said Michigan Division Mid-
land plant, including the aforesaid three (3) production
facilities, were taken without authorization of The Dow
Chemical Company by employees of Abrams Aerial Sur-
vey Corporation and which photographs are capable of
enlargement and printing to show the area photo-
graphed on a scale of one (1) inch to twenty (20) feet;
THAT to the best of Affiant’s knowledge, other than
said February 7, 1978, episode of aerial photography the
only other instances in which the Michigan Division
Midland plant or portions thereof have been photo-
graphed from the air have been instances where The
Dow Chemical Company has authorized such photo-
graphy for its own use or benefit and on that basis
Affiant, prior to February 7, 1978, had no reason to be-
lieve that unauthorized aerial photographs of said Mid-
land plant or the three (3) aforesaid production facilities
would be taken;
THAT based on the belief that no unauthorized aerial
photographs would be taken of the aforesaid three (3)
production facilities, said three (3) production facilities
have, primarily for reasons of safety, been constructed
A-65
in a manner which reveals various reactor equipment,
loading and storage facilities, transfer lines, motors and
like equipment to view from an aerial perspective since
same have not been enclosed within building structures;
THAT because of the location of said three (3) produc-
tion facilities well behind an eight (8) foot chain link
fence surrounding the perimeter of the Michigan Divi-
sion Midland plant, among and behind various other
production facilities and buildings, the details of said
three (3) production facilities which would be visible
from an aerial perspective are not visible from outside
said perimeter fence;
THAT at the Michigan Division plant, The Dow Chem-
ical Company exercises numerous general security
measures such as restricting physical access thereto to
authorized personnel only;
THAT the processes and technology employed in said
three (3) production facilities has not been offered for
sale or licensing to any business enterprise outside of
corporations which are members of The Dow Chemical
Company’s corporate family and in which The Dow
Chemical Company is at least an equal partner;
THAT within The Dow Chemical Company, all internal
written reports, engineering plans, blueprints, diagrams
and operating manuals pertaining to the technology and
processes incorporated in said three (3) production
facilities are tightly controlled and restricted to employees
of The Dow Chemical Company who have need of access
to same in the performance of their employment;
THAT with respect to said three (3) production
facilities which are under Affiant’s supervision, em-
ployees having access to same are required, upon hiring,
to execute an agreement to maintain in confidence all
trade secret or confidential technical or business infor-
A-66
mation of The Dow Chemical Company to which they
have access and upon termination of employment are
“debriefed” and reminded of their obligation with respect
to specific technology to which they have had access;
THAT technical visitors other than employees or con-
tractors of The Dow Chemical Company are not routinely
permitted access to said three (3) production facilities
and in instances when such access is granted, it is upon
Affiant’s authorization and issuance of a visitor pass to
such an individual who is then accompanied by an em-
ployee of The Dow Chemical Company;
THAT such a technical visitor is not exposed to any
equipment or technology contained in said three (3) pro-
duction facilities unless Affiant first determines tha‘ such
exposure is required for business purposes of T’:e Dow
Chemical Company and that the visitor agrees to main-
tain in confidence any information pertaining to the
facility which he may obtain by virtue of his visit;
THAT no photographs of said three (3) production
facilities are permitted from within the Midland plant
without Affiant’s authorization and then only for the use
or benefit of The Dow Chemical Company;
THAT based on Affiant’s familiarity with engineering
diagrams, plans and blueprints which are ordinarily
drawn to scale, aerial photographs enlarged to the scale
of one (1) inch to about one hundred (100) feet would
reveal the configuration of equipment, height and width
of storage tanks and reaction vessels, approximate dia-
meter of pipes, sequence of reactor connections (if any),
points of feed, control instrument locations and capacity
of loading and storage facilities;
THAT from aerial photographs enlarged to the scale of
one (1) inch to about fifty (50) feet or less the size of
motors and drives, types of control instrument employed,
A-67
position and type of agitation used in reactors, and like
detailed information concerning process equipment
would be revealed;
THAT given such information revealed by a one (1)
inch to fifty (50) feet scale aerial photograph, a compe-
tent chemical engineer, using basic engineering calcula-
tions, could determine with reasonable accuracy the type
of styrene resin process being employed, the solids
levels and viscosity levels of the materials being handled,
the overall through-put rate and manufacturing costs
which information would be particularly valuable to a
competitor of The Dow Chemical Company, relative to
its own position and would enable such a competitor to
obtain a competitive advantage with respect to pricing of
competing products in such a competitor’s product line;
THAT to the best of Affiant’s knowledge, no accurate
publication of information regarding said three (3) pro-
duction facilities in the precision and detail revealed by
aerial photographs of the scale one (1) inch to about one
hundred (100) feet or less has occurred to date;
THAT Affiant believes that the processes and technol-
ogy incorporated in said three (3) production facilities
could not be reproduced by competitors technically skilled
in the styrene resin art without such aerial photographs
and without considerable expense and effort, at least as
great as that expended by The Dow Chemical Company
to develop same;
THAT because of possession by The Dow Chemical
Company of information regarding the processes and
technology incorporated in said three (3) production
facilities, styrene resins produced thereby enjoy a cost
advantage, superior product consistency and superior
processability over styrene resins of like nature pro-
duced by its competitors;
A-68
THAT possession of aerial photographs of said three
(3) production facilities by a competitor of, The Dow
Chemical Company, on the scale of one (1) inch to about
one hundred (100) feet would likely cause The Dow
Chemical Company to lose substantial business of ines-
timable amount due to a pricing advantage which would
be gained by such a competitor;
THAT possession of aerial photographs of said three
(3) production facilities by a competitor of The Dow
Chemical Company, on the scale of one (1) inch to fifty
(50) feet or less would certainly cause The Dow Chemi-
cal Company to lose substantial business of inestimable
amount due to a pricing advantage which would be
gained by such a competitor and would likely cause
such a competitor to avoid incurrence of substantial
research and engineering costs in the construction of
production facilities of like nature since such photo-
graphs could essentially serve as an engineering diagram
for construction of a large portion of production facilities
of like nature and thereby confer a cost advantage on
such a competitor over a party such as The Dow Chemi-
cal Company, inestimable in value, which has incurred
such research and engineering costs, all to the irreparable
harm of The Dow Chemical Company.
Further Affiant says naught.
/s/ ROBERT B. BUMB
[Jurat Not Printed]
A-69
LEROY L. MASTIC, Jr. (DOW)
DEPOSITION EXCERPT 5/9/78
DIST. CT. DKT. 17
* * *
[11] ** * Q. Now, the technology that you've de-
scribed to us with respect to the configuration of the
processing, placement and construction of the heat
transfer elements, the location of instrumentation, sir, is
this technology particular to Dow or is it common know-
ledge in the Chlorobenzene industry?
A. The technology and design and construction of
this plant is proprietary to Dow. It’s unique with us.
Q. Mr. Mastic, are you aware as to whether or not
Dow took any security measures during the design and
construction of the plant?
A. Yes, we did.
Q. And can you tell me, please, what security mea-
sures, if any, Dow undertook during the design of the
chlorobenzene plant?
A. Well, the research, design and engineering was
all handled by Dow people.
Q. Do I understand by that, sir, that there were no
outside contractors called in on the design stages?
A. During the construction phase we had outside
contractors at various times in construction.
Q. Let me go on to that. What security measures, if
any, did Dow undertake during the construction of the
plant as opposed [12] to the design phases?
A. We did several things. There is the normal sec-
recy agreements with the contractors. In addition, all
contractors, except the general mechanical contractor,
only worked and was located in his specific area of the
plant. The drawings they worked from were construc-
tion type drawings, they were not process drawings. In
A-70
other words, they did not contain the raw materials
being used or the process conditions, temperatures,
the pressures. They were primarily just construction
drawings.
Q. And what would a construction drawing show to
a contractor as opposed to the process drawings?
A. It would show him the elevation, installation of
equipment, location of pipelines, foundation details,
things that are specifically required for construction.
Q. Would such drawings enable him to duplicate the
technology in connection with the plant; in other words,
absent the process information?
A. Not directly.
Q. Now, you are if I understand right presently in
charge of the overall operation of the chlorobenzene
plant and can you gell me what security measures, if
any, are currently maintained during the operation of
the chlorobenzene plant?
A. Yes. The plant today is located well within the
boundary of the Michigan Division. Of course that
boundary is fenced and under normal security measures.
This plant is not visible from [13] the fence at any point.
In addition, this plant is a restricted area. We have signs
posted about the perimeter of this plant saying this is a
restricted area. Any visitors or anyone coming into this
area must report to the office, check in with supervision
in the area.
Q. Do you undertake any security measures in the
chlorobenzene plant to prevent photography?
A. Yes, there are no cameras allowed. The only
photographs of this plant were taken by Dow photo-
graphers and they are Dow photographs and used inter-
nally for our own purposes.
Q. Do your security measures apply to visitors as
well as to Dow?
A-71
A. Yes. Visitors must check in at the area and if they
are in the plant area they are escorted by members of
the plant staff.
* + *
[14] * * * Q. Now, you've indicated the prohibition
against cameras in the plant, I believe. What, based on
your awareness of the various security measures that
were in force during the design, construction of the
plant and currently are in force during its operation,
what security measures can you provide that would pro-
tect the technology from photography from overhead?
A. Well, of course we have our current security mea-
sures which I feel are appropriate. To completely protect
this plant you’d have to go to some different type of
construction. This is an outdoor plant. It was designed
that way for a number of reasons. [15] The only way to
completely protect this plant from surveillance, say over-
head surveillance, would be to put a roof over the plant.
Q. In your opinion, sir, would it be feasible to do
that?
A. Not at all.
Q. Could you tell me why not?
A. Well, there would be several reasons. One, the
cost. This is a very large plant. The cost of a roof over
a structure like this would be enormous and just not
practical.
There are other reasons you wouldn’t want to do this.
There are safety reasons with respect to the safety of the
personnel and the equipment. Say for instance you had
an inadvertent exposure of raw material. Now, in this
plant we use — the basic raw material is chlorine and
benzene and if there were say an inadvertent release of
these materials for some reason, if this plant were
roofed you could have an accumulation or a concentra-
tion of the vapors or fumes of these materials presenting
A-72
an explosive or hazardous situation to the people and
the equipment which would be intolerable. If a plant
were roofed you could have this condition so for this
reason we have left the plant open.
Q. Mr. Mastic, did you have occasion to view certain
overhead photographs of Dow’s chlorobenzene plant?
A. Yes.
Q. Do you recall approximately when you had
opportunity to look [16] at those pictures?
A. This was several weeks ago.
Q. Now, do you have an opinion as to the benefit
to a competitor of Dow’s in the chlorobenzene business
of access to or possession of such photographs?
A. Yes, I have an opinion.
Q. And would you state that opinion?
A. That opinion, it would be of immeasurable value
to one of our competitors.
Q. Based on some of the instances that you have al-
ready stated, sir?
A. Yes. As I mentioned before our process is pro-
prietary, it’s constructed outdoors. The configuration,
the location of the equipment, the process would be of
great benefit to competitors. That’s one reason.
H. V. (JACK) WAIT, Jr. (DOW)
DEPOSITION EXCERPTS 5/10/78
DIST. CT. DKT. 19
** *
[11] * * * Q. Let me ask you first, sir, if you are
familiar with the security measures that are taken by
Dow in the design stages of chloralkali plants?
A-73
A. lam.
Q. And can you tell us, please, from your own
knowledge what those security measures are?
A. Well, the list is extremely long but sorne of the
more significant measures are that we design a plant
using a thing that we [12] call a process flow sheet that’s
designed in a code that someone not familiar with the
code would be unable to interpret what the drawing was
telling him.
Q. Who has access to the code breakdown?
A. Only the people with an absolute need to know.
Primarily the designers and the people who will later be
involved in the plant layout.
Q. How about after design of the construction
stages, can you tell us, please, what steps are taken by
Dow for security during the construction of a chloralkali
plant?
A. Well, primarily any contractors involved have to
sign a secrecy agreement and they have to be in good
standing, in other words, they have to be a contractor
that we have not had some previous problem with. Fur-
ther than that, the construction site is always fenced,
there’s always a 24-hour-a-day patrol maintained with
the security system and this is to prevent anyone from
just perusing the site.
Q. Are cameras allowed on the sites?
A. Absolutely not.
Q. How about after the start-up of the plant, can
you tell us what if any security measures are maintained
by Dow when the plant is running?
A. All visitors have to sign secrecy agreements. We
do not allow cameras into any operating plant. Out-
siders are not allowed to interview plant personnel.
These would name a few [13] but the list is extremely
extensive.
A-74
For example, our technical people are required to sign
secrecy agreements. Knowledge is disseminated on a
need-to-know basis. In other words, we do not make it
a point to have each employee completely educated in
the whole process. He becomes familiar with those areas
that he has a need to know.
Q. Now, are you aware, sir, of any measures that
could be taken to prevent aerial photography of the
chioralkali plant in Midland? |
A. As it stands today I’m not aware.
Q. Can you envisage anything that could be done to
prevent aerial photography of the facilities?
A. I suppose it would be possible to build a roof
over such a plant.
Q. How large is the plant?
A. It covers 30 acres.
Q. From your standpoint as an engineer would that
be a practical alternative?
A. Absolutely not practical.
Q. Have you any idea what the cost would be to
roof the chloralkali plant in Midland?
A. It would be extremely difficult to estimate the cost
but I would think that you could not do it for less than
$15,000,000.
Q. Would there be anything required other than a —
other than the [14] erection of a roof over the facilities?
A. Well, the roof alone would introduce a lot of
problems. There would be a lot of side effects from such
a thing. But the roof alone would probably tend to hide
the biggest part of the operation.
Q. To maintain the operation of the chloralkali facil-
ity would you have to expend any sums of money for
items other than the roof itself?
A. Yes, the maintenance would become far more dif-
ficult. For example, today we use giant mobile cranes
to move equipment from one ‘place to another during
A-75
routine maintenance. These cranes, some of them are as
high as 100 or 125 feet. Obviously a roof would not be
practical that high so large bridge cranes would have to
be installed permanently within the roof which would
be extremely expensive. The capacities of some of these
things would run into the range of a hundred thousand
pounds lift capability so it would be an extremely dif-
ficult arrangement.
* * *
[20] * * * Q. From a position off the Dow property
here in Midland is the chioralkali facility able to be seen
from anyplace in the vicinity?
A. Yes, it is.
Q. Can any information be obtained from someone
looking in from the outside?
A. Yes, I'd say it could.
Q. Would any of this information be what you
would consider to be of a propretary [sic] nature or trade
secrei nature?
A. Probably not any really significant information
but certainly some information.
Q. Is there any further measures taken to prevent
people from seeing the chloralkali facility from off the
premises?
A. Yes. The plant layout is designed in such a way
that the more sensitive areas are not visible.
Q. Specifically what is done to prevent people from
seeing?
A. Well, normally we will locate large tanks or other
vessels that are nondescript in configuration, we’ll locate
them between the sensitive area and the public access.
Q. Are there any fences or berms or anything here
that would prevent a person from seeing in from the
outside?
A-76
A. We have a fence line completely around the
periphery of the plant and also a berm.
Q. Where is the berm located?
A. It’s located inside the fence line.
LEROY L. MASTIC, Jr. (DOW)
DEPOSITION EXCERPT 3/24/81
DIST. CT. DKT. 130
*+* + *
[51]* * *Q. Do airplanes fly over the chlorobenzene
plant with any degree of frequency?
A. I have used commercial flights many times and
out of Midland, I am assuming this is the type of thing
you are talking about, yes, commercial flights pass over
this location. ,
Q. How about private flights?
A. Oh, I would imagine private planes fly over it.
Q. At the time that you were building or involved in
the construction of the chlorobenzene plant, did it enter
into your consideration that someone would be able to
fly over and photograph matters that you consider to be
proprietary technology and that the plant would be vul-
nerable to this because of a lack of a roof?
A. That type of thing, of course, is possible. Again,
the fact that that thing actually — that type of flight
actually occurred and those type of photographs were
taken I consider that very unusual and rather unique,
you don’t expect this.
Q. You don’t expect photographs of the plant to be
taken from the air?
A. Not of the type that are of concern here today.
A-77
Q. When you say of the type of concern, what do
you have [52] reference to, the circumstances under
which it occurred or the level of detail?
A. The fact that it was an unauthorized flight and
that circumstance generated some photographs of such
detail that I’m very concerned about them.
Q. So it was the fact that the flights were unauthor-
ized — I’m just trying to understand. Is it the fact that
the overflight was unauthorized that was the factor that
surprised you?
A. Planes can fly over here every day and they do,
and if they don’t take phc »eraphs, I’m not concerned
with those flights. What I am concerned about is a flight
that comes over here at a low altitude and takes specific
photographs such as we are concerned about here
today.
Q. But did the possibility ever enter into your co.1-
siderations and I have reference to an incident similar to
the one that is the subject matter of this lawsuit; did that
possibility ever enter into your consideration at the time
that the chlorobenzene plant was under construction?
A. Matters such as this I think are always under con-
sideration when you are talking about security of your
location. And for instance, the way this particular flight
occurred, I believe our plant protection people who are
skilled in security matters detected the flight. To what
concern this type of thing was during our construction,
we know [53] when we build an outdoor plant this type
of thing can always occur, it’s not impossible, but it’s
quite improbable. This is why we were surprised that it
occurred.
Q. You are surprised by the fact that it was un-
authorized?
A. Yes.
Q. But you are not surprised by the fact that aerial
photographs — that it is possible to take aerial photo-
graphs, authorized or unauthorized, of the plant?
A-78
A. That's a fact, they can be taken.
Q. And that possibility didn’t enter into your consid-
eration in the way you designed the plant?
A. Whenever you construct a plant that’s of a nature
that it can be photographed, of course you realize this,
you know this. But there are usually other overriding
reasons that you construct a plant in such a manner as
we constructed this one. |
Q. Do you take measures to maintain the possible
exposure of proprietary technology when you construct
the plant in the manner that you did to protect against
the possibility of an unauthorized aerial photograph?
A. Toa degree.
Q. Okay.
A. I think we do to the degree that it’s prudent and
reasonable and consistent with good construction prac-
tices and construction of safe facilities.
* * *
[88] * * * Q. Do you suggest that prior to that par-
ticular incident there was no clear policy concerning
photographs taken by Dow employees from other
divisions?
A. There has always been a clear policy concerning
the photographs, films and tapes and cameras and how
they are used. Policy procedures can always be updated
and changed.
[89] Q. Do you know how old that policy concern-
ing the use of films and tapes and video tapes and the
like is, cameras?
A. It would go back many, many years. It was in
force when I came here over 25 years ago.
Q. Are you aware of any other incidents in which
there was some deviation from procedures regarding
security?
A. Yes, the issue at hand today.
A-79
Q. But that, of course, isn’t covered by anything that
Dow has any control over.
A. It very clearly says that the Major Manager is to
approve those kinds of photographs that are taken of his
process and technology and approve their release.
Q. So it is your —
A. I feel very strongly about this.
Q. So it is your position that any photographs taken
by anyone of the Dow plant has to have your approval?
A. Yes.
Q. I’m sorry. Of the Dow chlorobenzene plant.
A. Absolutely.
MICHAEL KELYMAN (DOW)
DEPOSITION EXCERPT 3/25/81
DIST. CT. DKT. 131
* * *
[78] * * *Q. Do you know whether your office, your
present office, whether the plant security office for the
Michigan Division or any other office has ever consi-
dered making a recommendation that steps be taken to
protect a project of the Dow Chemical Company from
loss of trade secrets or proprietary information by means
of aerial photography?
MR. GLEESON: Now, just as a query to clarify your
question, are you going so far as to say recommend-
ations to institute litigation, is that included in your
questioning?
MR. BERRY: Certainly.
MR. GLEESON: Okay.
A. Well, with that the litigation is obviously a mea-
sure, and that was instituted.
A-80
[79] Q.. Any other steps, or excuse me, any other
times where that has occurred?
A. Again I'll refer to the practices that we have with
reporting of employees and going to the extent of inves-
tigating why we had a flyover and even going so far as
to inspect the pictures that were taken and replace film
for the individuals and so forth, so on.
* + *
[121] * * * Q. Does your staff, and when I refer to
your staff, I’m referring to your present staff, and the
staff which was [122] under you when you were man-
ager of plant security for the Michigan Division attempt
to identify the owner of each aircraft which is con-
sidered to be suspicious and flying over the Midland
facility?
A. We will if they’ve been considered suspicious, we
will attempt to.
Q. How do you determine the identity of those
individuals?
A. We go back through the flight control towers. If
there’s two or three or four possibilities, you go through
the flight control tower and the Barstow Airport to see
whether or not they can — they are aware of who that
aircraft might belong to and who was flying it. If we are
unsuccessful in that particular vein, if we have the num-
bers we have a certain list of local aircraft that we have
we retain numbers on, and then beyond that we will go
either to Grand Rapids or to Oklahoma City through the
FAA to run down numbers on aircraft. And we have
even on one occasion gone to aircraft manufacturers to
determine who, in fact, they sold the aircraft to when
it’s changed hands a couple of times.
It depends on how much interest we’ve got and what
we are trying to find out.
A-81
. Q. How do you identify the purpose of the aircrafts
passing over the Dow facility?
A. About all we can do is try — that’s the purpose
in trying [123] to run the individual down, to get a state-
ment from him as to why he was doing so forth, so on.
And preferably, if you will note in the procedures there
we Say it's important to make phone calls as rapidly as
possible so that if an aircraft does land at one of the
local airports that we can get a handle on him very
quickly and get somebody over there before they’ve got
a chance to get rid of their passengers or equipment or
something like that. We will make every attempt that we
can — reasonable attempt to get that kind of information.
_Q. And if you are told by the person you contact that
they did not photograph the plant, what do you do?
A. If we generally — well, there’s a couple of things
you can do. Either you take them at face value or you,
as you make your inspection, visiting with that particu-
lar individual, you would take note of how that plane
might be equipped, whether or not you as an individual
noticed any particular photographic equipment. You
might converse with the pilot who took them up to sub-
stantiate that individual's claim as to whether he did or
didn’t take photographs.
Q. And if there’s no special equipment and the pilot
tells you no photographs were taken?
A. Probably we'd not pursue it any further than that.
* +
[181] * * * [A.] . . . If the photographs were available
and the negatives were available, he would have taken
those and we would have developed them in a Dow lab-
oratory, we would have screened the pictures and we
would have reimbursed the individual for the film that
we destroyed. That is our policy.
** *
A-82
H. V. ACK) WAIT, Jr. (DOW)
DEPOSITION EXCERPT 4/8/81
DIST. CT. DKT. 152
oo 2 =
‘40]* * *[Q.]. . . Can you tell me how long you exam-
ined the photographs back in 1978 which were identified
to you as the photographs that the EPA had taken?
A. No.
Q. Do you recall whether it was for more than an
hour?
A. Yes.
Q. Was it for more than an hour?
A. Yes.
Q. Do you recall how much more than an hour it was?
A. No.
Q. Did you spend the time of your examination
attempting to pick out details to which you referred here
today concerning the plant layout?
A. Yes.
Q. And do you recall approximately how long it took
you to do that?
A. No.
Q. Well, was it more than an hour?
A. I picked out some details instantly.
Q. Was that based upon the fact that you're familiar
with the plant?
A. Some of it, yes.
* * *
[43] * * * Q. Let's talk about a person who has ex-
perience in a plant similar to the Dow plant which
produces similar products, let’s say a man of your ex-
perience, comparable to yours but doesn’t have the pre-
cise knowledge of the Dow plant that you have, but has
knowledge of a similar plant.
A-83
A. Ido not believe he could gain useful proprietary
information.
Q. From a view from the outside?
A. That's correct.
Q. And when you say useful proprietary informa-
tion, what do you mean?
A. Information that he would understand what it
was when he [44] looked.
Q. And why would he not be able to gain that
information?
A. He would not know what he saw.
Q. Would that also be true if he viewed the same
piece of equipment or technology from the air?
A. It would not be true in the same sense.
Q. Well, can you give me the distinction or the
benefit of the distinction that you’re drawing?
A. The view that he would have from the ground
outside the fence is the view that we have chosen to
show him.
The view from the air is almost equivalent of a process
drawing that would show the relationship of. other
equipment, from which he could decide and figure out
what he wished to know.
Q. What if he flew over in an airplane, would he be
able to make that same determination?
A. Not the same as from a photograph.
Q. But would he be able to pick up some of the in-
formation to which you referred to?
A. Possibly.
Q. Would he be able to increase his knowledge with
more flights over the plant?
A. I would say yes.
Q. Do you believe that he could ever come to the
point where he could gain as much knowledge of Dow’s
proprietary [45] technology from repeated flights over
A-84
the plant as he would gain from a view of the photo-
graphs here?
A. No.
Q. Would he gain information that you would con-
sider to be of substantial benefit to him, nonetheless?
A. How many flights?
Q. Well, why don’t we turn that question around
and ask you how many flights over the plant do you
think it would take for this hypothetical person that
we're referring to to gain what you might consider infor-
mation of substantial benefit to competitors?
MR. GLEESON: If you’re allowing yourself to consider
other factors and judge the frequency of flights, you
should include that in your answer such as to altitude.
A. I guess from my standpoint, I don’t exactly un-
derstand what he means by how many flights.
Q. (Mr. Allen, continuing): You indicated that you
wanted to know how many flights the person would
take.
A. That would be my first question.
Q. I’m asking you how many flights do you believe,
that is, how many aerial passes in an aircraft of one sort
or another would it take for a person, the hypothetical
person to which we referred to here today, to gain infor-
mation concerning the chloralkali facility which [46] you
would deem to be of significant benefit?
A. At what altitude?
Q. Well, you can identify that altitude for me as
well.
A. At a low level flight some information could be
gained on the first flight.
Q. When you say low level, what level are you refer-
ring to?
A. 500 to 1000 feet.
Q. 500 to a thousand feet. What about at a level of
5000 feet?
A-85
With an unaided eye?
With an unaided eye.
No useful information.
No useful information.
hat about an overall flight at 3000 feet?
Unaided eye?
Unaided eye.
No useful information.
How about a flight at 2000 feet?
Possibly some useful information.
Some useful information?
Possibly.
>O>POPO>SO>O>
* + *
[50} ** * Q. Can you tell me at what altitude it
would take a person with the experience which we have
hypothesized today to gain what you would consider
significant information of the chloralkali facility with an
unaided eye?
A. I think there would be many altitudes that this
can be done.
Q. Can you specify those altitudes?
A. The lower, the better.
Q. The lower, the better?
A. The higher, the less information you would gain,
but there is no cutoff.
Q. Well, could you give me an indication of the al-
titude at which the height is sufficient that you would
no longer gain significant information?
[51] ** * A. My general opinion is at somewhere
around a half a mile altitude I would no longer be con-
cerned with what someone could see with an unaided
eye. Less than that, I would become increasingly con-
cerned more than I would become disinterested.
** *
A-86
LETTER DATED 6/21/79
FROM UNION CARBIDE CORPORATION TO EPA,
REGARDING AERIAL SURVEILLANCE Per EPA's SUPPLE-
MENTAL ANSWERS TO INTERROGATORIES FILED 4/17/81
DIST. CT. DKT. 134
UNION CARBIDE CORPORATION
270 PARK AVENUE NEW YORK, NEW YORK 10017 (212) 551-2491
ROBERT L. DOAN ASSISTANT GENERAL COUNSEL
George A. Shanahan, Esq. June 21, 1979
Attorney, Water Enforcement Branch
Enforcement Division, Region II
United States Environmental Protection Agency
26 Federal Plaza
New York, New York 10007
Re: Proposed EPA Overflights of Erie and Niagara
Counties, New York, June 25-29, 1979
Dear Mr. Shanahan:
This is in response to your letter of June 14 to Mrs.
Mary G. Manetti of our Law Department, in which you
advised us that EPA proposed to conduct photographic
flights over Erie and Niagara Counties, New York, dur-
ing the week of June 25 and asked us to contact you if
we had any objection to these overflights. To the extent
that you contemplate photographing any Union Carbide
Corporation facility, we vigorously protest and object to
this aerial intrusion. The statutes that you cite do not
contemplate this type of access to our facilities. The
overflights, if conducted without a search warrant, will
violate the rights of Union Carbide against unlawful
search and seizure under the Fourth Amendment to the
U.S. Constitution and, with or without a search war-
rant, may constitute an unlawful taking of Union Car-
bide proprietary information in violation of the Fifth
Amendment to the U.S. Constitution.
A-87
Your letter does not indicate what types of surveil-
lance techniques are contemplated, but we do have to
assume that the overflights may be using the full range
of aerial photography, multi-spectral scanning and laser
scanning techniques that have been developed to date
by the EPA’s Environmental Monitoring & Support Lab-
oratory as well as the other governmental agencies
known to be [pg. 2] involved in aerial surveillance.
Therefore, we must assume that there is substantial risk
of loss of proprietary information unless and until we
have had an opportunity to review a set of all photo-
graphs taken of any Union Carbide facility during next
week’s overflights and by this letter I request that a full
set of prints of all such photographs be mailed to my at-
tention as soon as prints are available, so that we may
determine what additional steps must be taken in order
to protect our proprietary interests. We also reserve the
right to request access to the negatives in order to make
our own prints in the event we experience difficulty in
enlarging the prints you provide to us.
I am familiar with the April 11, 1979 letter sent to all
EPA Regional Administrators by Marvin B. Durning, the
Assistant Administrator for Enforcement, establishing
new procedural guidelines to be followed by EPA in the
light of the Supreme Court’s decision in Marshall v.
Barlow, Inc., 46 LW 4483 (1978). Nowhere is the subject
of overflights discussed. We seriously question whether
the EPA is desirous of setting forth all the detail of the
surveillance techniques now being used by EPA in any
warrant application to the extent contemplated by Mr.
Durning’s letter or whether, once such details are set
forth, any Federal Judge or Magistrate would sign any
warrant authorizing the utilization of those techniques.
We are aware that the EPA has previously made aerial
photographs of Union Carbide facilities as part of a
A-88
broad surveillance of the Kanawha Valley, West Vir-
ginia. On March 5, R. L. Foster of our South Charleston,
West Virginia office, requested a set of those photo-
graphs under the Freedom of Information Act. We have
been advised that the photographs were finally mailed
on June 20 by the EPA’s National Enforcement Investi-
gations Center in Denver. When we have had an oppor-
tunity to analyze these photographs, we contemplate
requesting under FOIA a full and complete list of all
Union Carbide facilities which have been subjected to
aerial surveillance by (or at the direction of) EPA, seek-
ing access to those photographs and demanding the re-
turn of all photographs (negatives as well as prints) that
contained proprietary Union Carbide information and
for the retention of which EPA could not establish any
continuing need based on ongoing investigations. Those
photographs (if any) that fell into the latter category, we
would seek to subject to appropriate protective orders.
[pg. 3] It is disturbing to find that the EPA’s file of
proprietary information taken from Union Carbide with-
out our consent is continuing to grow even as we try to
get a fix on its present contents and the extent of our
loss to date. I strongly urge that EPA call an immediate
halt to all overflights of commercial facilities throughout
the United States (and not just the overflights con-
templated for next week in Erie and Niagara Counties)
until reasonable ground rules can be developed for limit-
ing the amount of proprietary information collected by
EPA to the absolute minimum and providing adequate
protection for that irreducible minimum. I believe that
this is a matter in which EPA’s General Counsel needs
to be involved and would appreciate your bringing this
letter to her attention through your Region Office as
promptly as possible.
Very truly yours,
RLD:jw /s/ Robert L. Doan
A-89
LETTER DATED 6/22/79 FROM FMC CORPORATION TO EPA,
REGARDING AERIAL SURVEILLANCE per EPA’s SUPPLEMENTAL
ANSWERS TO INTERROGATORIES FILED 4/17/81
DIST. CT. DKT. 134
FMC CORPORATION
2000 MARKET STREET PHILADELPHIA, PENNSYLVANIA 19103 (215) 299-6000
CERTIFIED MAIL RETURN RECEIPT REQUESTED
George A. Shanahan, Esq. June 22, 1979
Attorney, Water Enforcement Branch, Enforcement Division
United States Environmental Protection Agency, Region II
26 Federal Plaza
New York, New York 10007
Re: Proposed Aerial Surveillance and Photographing
by EPA Region II along the Niagara River —
Week of June 25-29, 1979
Dear Mr. Shanahan:
Your letter dated June 14, 1979, advising me of the above-
referenced surveillance and photographing, was received
by me on June 18, 1979. To the extent that such surveil-
lance and photographing involves FMC facilities and sites,
we do object and expressly do not waive any rights in
this regard.
In my opinion, the standard inspection/right of entry pro-
visions from the various water, air, hazardous waste, and
toxic substances statutes cited in your letter do not author-
ize the proposed surveillance and photographing. As you
are aware, the United States Supreme Court recently ad-
dressed a similar issue in Marshall v. Barlow's Inc., 436 U.S.
307 (1978), and determined that the inspection provision
(similar to those in the water, air, hazardous waste, and
toxic substances statutes) in the Occupational Safety and
Health Act does not override constitutional requirements
and is unconstitutional to the extent it is construed to
authorize a warrantless search or inspection. Also, as you
A-90
may be aware, in a situation even more proximate to that
which EPA Region II proposes, in that it also involved
aerial surveillance and photographing, the Dow Chemical
[pg. 2] Company has brought suit (Dow Chemical Co. v.
Costle, Civil Action No. 78-10044, U.S. D.Ct., E.D. Mich.)
against EPA over such aerial surveillance and photograph-
ing, alleging inter alia violation of constitutional rights
guaranteed by the Fourth and Fifth Amendments. Dow
has obtained a temporary restraining order and prelimi-
nary injunction in this proceeding.
In any event, assuming the aerial surveillance and photo-
graphing occur, as stated in your June 14, 1979 letter, in
possible contravention of FMC’s constitutional and other
rights, the photographs taken as a result may well contain
business confidential information which, if published, or
released to a competitor, could be detrimental to FMC’s
interest and position in the market. If such photographs
are taken, we request that to the extent that they pertain
to FMC facilities and sites they be maintained as business
confidential information under the provisions of 40 C.F.R.
Part 2, and that FMC be immediately furnished with
copies of such photographs. We further request that any
report or other document which includes such photo-
graphs or otherwise records the results of or observations
made during the proposed aerial surveillance relative to
FMC facilities and sites be maintained as business confi-
dential information, and that copies of such reports or
other documents be immediately furnished to FMC.
Yours very truly,
/s/ David C. Landgraf, Counsel
ce: Eckhardt C. Beck, Regional Administrator, EPA Region II; Director
of Enforcement, EPA Region Ii; Peter Devine, Esquire, Regional
Counsel, EPA Region II; Joan Bernstein, Esquire, General Coun-
sel, EPA Washington; Marvin Durning, Esquire, Assistant
Administrator for Enforcement, EPA Washington. —
A-91
WIRE DATED 1/11/80 FROM EPA TO MONSANTO,
REGARDING AERIAL PHOTOGRAPHY ATTACHED TO DOW’'s
MOTION TO COMPEL DISCOVERY FILED 3/26/81
DIST. CT. DKT. 117
— WESTERN UNION MAILGRAM —
US ENVIRONMENTAL PROTECTION AGENCY
324 EAST 11 ST
KANSAS CITY, MO 64106
4-061476S011003 01/11/80 ICS IPMBNGZ CSP STLB
2 8163746534 MGM TDBN KANSAS CITY MO 01-11 0510P EST
p MONSANTO QUEENY WORKS
ATTN PLANT MANAGER OR RESPONSIBLE PARTY
1700 SOUTH SECOND ST
ST LOUIS MO 63177
THIS IS A CONFIRMATION COPY OF A PREVIOUSLY PHONE-DELIVERED TELEGRAM
EPA REGION 7 WILL BE CONDUCTING AN AERIAL SURVEY
OF THE METROPOLITAN ST LOUIS AREA THE WEEK
OF JANUARY 14. AERIAL PHOTOS OF YOUR FACILITY
WILL BE TAKEN AS PART OF THIS SURVEY. PLEASE
DIRECT QUESTIONS TO KENNETH SCOTT RITCHEY AT
816-374-6534.
ROBERT MORBY 324 EAST 11 ST KANSAS CITY MO 64106
17:11 EST
MGMCOMP MGM
A-92
WIRE DATED 1/14/80 FROM MONSANTO TO EPA,
REGARDING AERIAL PHOTOGRAPHY ATTACHED TO DOW's
MOTION TO COMPEL DISCOVERY FILED 3/26/81
DIST. CT. DKT. 117
— MONSANTO OUTGOING MESSAGE —
Tele-Communications System
INDICATE DESIRED SERVICE: [%] DOMESTIC - FULL RATE
ALL MESSAGES MUST BE TYPED OR PRINTED IN BLOCK LETTERS
DATE: 1/14/80 TIME: 4:10 p.m.
SENDER’S ACCOUNT NO.: 1-00-741.04
TWX/TELEX NO.: 816-374-2605
MR. ROBERT MORLEY
ENVIRONMENTAL PROTECTION AGENCY R-U-S-H
REGION VII
324 E. 11th STRELT BOOK MESSAGE
KANSAS CITY, MISSOURI 64106
WE HAVE DEEN INFORMED THAT THE EPA IS TENTATIVELY
PLANNING TO TAKE AERIAL PHOTOGRAPHS OF THE MET-
ROPOLITAN ST. LOUIS AREA DURING THE LATTER PART
OF THE WEEK OF JANUARY 14, 1980. MONSANTO HEREBY
OBJECTS TO SUCH AERIAL PHOTOGRAPH OF MONSANTO
FACILITIES. PRIMARY REASON FOR OBJECTION IS TO PRO-
TECT VALUABLE PROPRIETARY INFORMATION, WHICH
WOULD BE DISCLOSED BY SUCH AERIAL PHOTOGRAPHY.
IN ADDITION, SUCH AERIAL PHOTOGRAPHY WOULD
VIOLATE THE PROHIBITION AGAINST UNREASONABLE
SEARCHES AND SEIZURES IN THE FOURTH AMENDMENT
TO THE U.S. CONSTITUTION.
PHOCION S. PARK
ENVIRONMENTAL COUNSEL
MONSANTO COMPANY
CC: KENNETH SCOTT RITCHEY, EPA, REGION VII,
324 E. 11th Street, KANSAS CITY, MISSOURI 64106
for BETTER service - Forward to transmitting operator IMMEDIATELY after preparation.
IN-IR Rev. 1/74
A-93
WIRE DATED 1/17/80 FROM EPA TO MONSANTO,
REGARDING AERIAL PHOTOGRAPHY ATTACHED TO DOW’'s
MOTION TO COMPEL DISCOVERY FILED 3/26/81
DIST. CT. DKT. 117
— WESTERN UNION MAILGRAM —
USEPA REGION 7
324 EAST 11
KANSAS CITY, MO 64106
4-043194S017 01/17/80 ICS IPMBNGZ CSP STLB
8163746534 MGM TDBN KANSAS CITY MO 63 01-17 0333P EST
JAN 18 1980
p> PHOEION [si] S. PARK, ENVIRONMENTAL COUNCIL, [s]
MONSANTO CO
800 NORTH LINDBERG BLVD
ST LOUIS MO 63166
THE US EPA REGION 7 HAS RECEIVED YOUR PHONE
MESSAGE OF 1-15-80 AND WILL NOT OVERFLY YOUR
FACILITIES THE WEEK OF JANUARY 14, 1980. YOU WILL
BE NOTIFIED OF ANY DEVIATION FROM THIS DECISION.
PLEASE DIRECT QUESTIONS TO MYSELF AT 8163746534.
ROBERT MORLEY
324 EAST 11
KANSAS CITY MO 64106
15:34 EST
MGMCOMP MGM
A-94
TRANSCRIPT EXCERPT OF 11/12/80 ORAL ARGUMENT
ON CROSS MOTIONS FOR SUMMARY JUDGMENT (P. 44)
DIST. CT. DKT. 232
* + *
(Tr. 44] * * * All the Fourth Amendment cases involve
a search for evidence. Of course, that’s what the govern-
ment was doing, we don’t deny that. * * *
* * *
« e e
ORDER ALLOWING CERTIORARI
Supreme Court of the Gnited States
(Filed June 10, 1985)
Dow Chemical Company, Petitioner, v. United States, etc.
No. 84-1259
The petition herein for a writ of certiorari to the United
States Court of Appeals for the Sixth Circuit is granted.
The case is set for oral argument in tandem with No.
84-1513, California v. Ciraolo.
A-95
NON-FULLY OWNED SUBSIDIARIES AND AFFILIATES
OF THE DOW CHEMICAL COMPANY
AS OF JUNE 30, 1985
Subsidiaries and affiliates owned both directly and in-
directly have been included. The company italicized is the
direct owner of the companies listed below it. “Dow’s”
percent ownership is indicated by each company.
SUBSIDIARIES
The Dow Chemical Company
Alamo Land Company Inc. (56%)
Gruppo Lepetit S.p.A. (99%)
L.I.F.E. (Laboratorios Industriales Farmaceuticos
Ecuatorianos) (59%)
Laboratorios L.I.F.E. del Salvador S.A. (59%)
Negocios e Industrias S.A. “Neisa” (59%)
Pacific Chemical Berhad (51%)
Pacific Cable Products Sendirian Berhad (51%)
Ivon Watkins-Dow Ltd (51%)
Société Industrielle de Plastic et de L’acier SA (99%)
The Cynara Company (90%)
Dow Chemical A.G.
(A.G. owned 100% by The Dow Chemical Company)
Petroquimica-Dow S.A. (70%)
AFFILIATES
The Dow Chemical Company
Dow Corning Corporation (50%)
Dowell Schlumberger Corporation (50% )
Dowell Schlumberger Incorporated (50% )
A-96
Compagnie des Services Dowell Schlumberger (50% )
El Dorado Terminals Company (50%)
Agro-Quimica Maringa (20%)
Bank Mendes Gans (29%)
Chemi-Trol Chemical Company (23%)
DOKI (49%)
Estireno Del Zulia C.A. (25%)
Ibachem Ltd (40%)
Oasis Pipeline Company (30%)
Package Machinery Company (29%)
Piramides Brazil (30%)
Total Raffinaderij Nederland N.V. (20%)
Zoo Agro de Venezuela C.A. (49%)
Al Miyah Chemicals (Ltd.) (49%)
Baratek (80%)
Boersele Hydrocracker B.V. (45%)
Insul/Crete Company, Inc. (50%)
Joliet Marine Terminal (50% )
Long Beach Marine Terminal (50%)
Metal Mark Inc. (50%)
Oronzio De Nora Impianti Elettrochimici SA (50%)
Sinor Corradini Navarra S.A. (90%)
Technovest Corp. (20%)
Dow Chemical A.G. (A.G. is
owned 100% by The Dow Chemical Company)
Polychem Ltd (25%)
Coral Navigation (Coral is
owned 100% by The Dow Chemical Company)
Chief Shipping Company (50%)
Dow Chemical Company Ltd
(Ltd is 100% owned by Dow Chemical A.G.)
Cromarty Petroleum Company Ltd (50%)
A-97
Dow Chemical of Canada Ltd (Canada Ltd is
100% owned by The Dow Chemical Company)
Schlumberger Canada Inc. (50% )
Fort Saskatchewan Ethylene Storage Limited (50%)
Lawrason’s Chemical, Ltd (20%)
Wabiskaw Explorations Limited (50% )
Maligne Resources Limited (Maligne is
100% owned by Dow Chemical of Canada Ltd)
MT Partnership (50%)
Dow Chemical Africa (Pty) Limited (Africa is
100% owned by Dow Chemical A.G.)
on Chemicals (50% )
Dow Chemical International Energy Company (Energy is
100% owned by The Dow Chemical Company)
Scotdril Offshore Co. (50%)
Dow Chemical S.p.A. (S.p.A. is
100% owned by Dow Chemical A.G.)
Corradini Poliuretani S.p.A. (50%)
Dow Chemical Iberica S.A. (Iberica is
100% owned by Dow Chemical A.G.)
Transformadora De Etileno (50%)
Dow Quimica S.A. (Quimica is
100% owned by The Dow Chemical Company)
Estireno del Zulia C.A. (25%)
Expansao Correctora De Seguros Ltda (33%)
A-98
Dofinco, Inc. (Dofinco is
100% owned by The Dow Chemical Company)
DCS Capital Partnership (50%)
DCS Capital Corporation (100%)
Dow Financial Services Corporation (Financial Services is
owned 100% by The Dow Chemical Company)
Dow Banking Corporation (78%)
Dow Scandia Holdings Limited (52%)
Dow MBF Limited (54%)
MBF Factors SDN. BHD. (26%)
MBF Leasing BHD. SDN. (29%)
MBF Leasing (S) Pte. Ltd. (49%)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.