# Joint Appendix — District of Columbia v. Tri County Industries, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1305

## Text

No. 99-1953

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IN THE SUPREME COURT OF THE UNITED STATES
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DISTRICT OF COLUMBIA, ET AL., aK
Petitioners,
v. °
Tri COUNTY INDUSTRIES, INC.,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

JOINT APPENDIX
ROBERT R. RIGSBY FRANK J. EMIG
-———-— — €orporgtion Counsel - Greenway Center East
s Suite 314
CHARLES L. REISCHEL 7525 Greenway Center Drive
Deputy Corporation Counsel Greenbelt, Maryland 20770-3525
Appellate Division . . Telephone: (301) 345-7002
Counsel of Record
DONNA M. MURASKY for Respondent
Senior Assistant
Corporation Counsel’
Counsel of Record for Petitioners
Office of the Corporation Counsel

Government of the District of Columbia
One Judiciary Square — 6th Floor South
441 Fourth Street, N.W.

Washington, D.C. 20001
Telephone: (202) 727-6252/724-5691

Petition for a Writ of Certiorari filed on June 2, 2000
Certiorari granted on September 26, 2000

TABLE OF CONTENTS
Page

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

Opinion of the United States Court of Appeals
for the District of Columbia Circuit in
Tri County Industries, Inc. v. District of
Columbia, No. 99-7028 (January 18, 2000) ....

Judgment on the Verdict in Tri County Industries, Inc.
; v. District of Columbia, Civil Action No.
| 94-2014(0R) (D.D.C. April 20, 1998)

Memorandum Order in Tri County Industries, Inc.
v. District of Columbia, Civil Action No.
94-2014(JR) (D.D.C. July 23, 1998)

Se ae On ae

Judgment on the Verdict in Tri County Industries, Inc.
v. District of Columbia, Civil Action No.
94-2014(00R) (D.D.C. February 4, 1999)

Order of the United States Court of Appeals
for the District of Columbia Circuit in
Tri County Industries, Inc. v. District of
Columbia, No. 99-7028 (March 8, 2000)
(denying petition for rehearing )

Order of the United States Court of Appeals
for the District of Columbia Circuit in
Tri County Industries, Inc. v. District of
Columbia, No. 99-7028 (March 8, 2000)
(denying petition for rehearing en banc )

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Ms. Donnells, I direct your attention to Plain-
tiff’s Exhibit 34. * * * And what is that exhib-
it?

. This is the T.A. Bennett trucking invoice for

hauling soil to Bryant Street.

Okay. And it is for hauling soil for what
period of time?

From -- well, from July of ‘93 to October of
‘93. x~* *

Okay. Let’s start with the first invoice. What
date was that for?

July 30, 1993. * * *

That was contaminated soi! on that day?

Yes.

Okay. And the next invoice?

August 13, ‘93. * * *

What is the next invoice? What is the date of
that?

August 27, ‘93. |

Okay. What was done on that day?

Hauling soil. From Hilton Hotel and Fairfax
schools.

Okay. How much soil was hauled on that day?
Eighteen loads on this invoice.

In layman’s language, what does 18 loads
mean?

You can average maybe, say, 20 tons per load.
Depends on where it comes from.

20 tons per truck?

Uh-huh.

Okay. And on September 13? You were
billed for transporting soil from where to
where?

Testimony of John Wegznek, certified public accountant

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38

From NIH * * * Bethesda. * * *

Bethesda. And how much soil was transported
on that day?

13 loads.

Okay. What is the date of your next invoice?
September 17. * * *

How much?

. Ten loads.

Ten 20-ton truckloads? Okay. What does your
next invoice say, ma’am?

September 24th. * * *

And how much soil was transported on that
day?

Ten loads.

Ten loads? And do you have additional invoic-
es?

I have one for October 8.

Okay. And how much soil was transported on
that day?

Eighteen loads.

Okay. And do you have any other invoices for
T.A. Bennett?

February and March of ‘94 invoices for hauling
soil away from Bryant Street.

[DE 113, pp. 113-14 -- Direct Examination]:

Q. Now, in this case, there was a soil cleaning --

piece of soil-cleaning equipment that Tri Coun-
ty intended to purchase which cost $600,000. *
* * Did Tri County and its principals have
sufficient cash resources to purchase this equip-
ment? * * *

A.

39

THE WITNESS: Yes, they did. * * *
And what would have been the personal prop-
erty taxes on this equipment if it had been
purchased? * * *

* * * With a projected cost of $600,000 the
first year’s personal property taxes would be *
* * $17,850, I believe.

Now the lease that’s been introdyced into evi-_
dence for the -- for where the facility was to
operate on Bryant Street indicated that Tri
County had an option to purchase that property
from the landlord for $1,400,000. Are you
familiar with that provision in the lease? -

. Yes, lam.

A
Q.

Did Tri County and its principals in 1993 have
sufficient cash resources to purchase that prop-
erty?

Yes, they did. * * *

Testimony of Glenn Selzer, President of

. Tri County Industries

[DE 113, pp. 117-19 -- Direct Examination]:

Q.
A.

Tell me what your company does.

The company does environmental services.
The majority of our work right now is centered
around the underground storage tank regula-
tions the EPA passed. We do a lot of under-
ground storage tank replacements * * *.
When you dig up an underground storage tank
that has leaked, what are you required to do
with the soil?

. The soils that -- around the tank in many cases,

the tanks have corroded. Oil has leaked into

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40

the soil. The petroleum product, the gasoline,
or in most cases diesel fuel or heating oil has
mixed with the soil, and the whole goal of the
EPA regs is to protect the ground water. * * *
And what do you have to do with this soil?

. Well, we remove the soil that has been impact-

ed by the oil until we get to clean soil that
hasn’t -- hasn’t mixed with any oil. Then we
take it to a treatment facility to be treated.

[DE 113, pp. 120-21, 123 -- Direct Examination]:

Q.

A.

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When did -- before Tri County actually started
this project on Bryant Street, did you have my
experience in soil cleaning?

Yes. We would have had the problem since
we got into this business. The problem we
have, though, is all the facilities that handle it.
Washington is a paper town; there is no real
industry here. So cities that have industry
obviously have more oil-impacted soil. They
have services there. We ended up having to
haul -- to this date, there is no place in the city
to take the stuff. We have to haul it to other
cities, Baltimore, Richmond, things like that.
In 1991, did you start a soil cleaning business?
Yes. * * * On New York Avenue, 1911 New
York Avenue. * * *

How long were you working at New York
Avenue?

We were there for probably several months. *
**

Was the equipment that was used there tested
by the District or in the presence of District of
Columbia officials?

> O>P

Q.
A.

41

Yes, it was.

And was a report issued regarding that?

Yes, it was. We hired a company at the city’s
requirement to come and do what is called a
being emitted from the stack, if there are any,
and also measures dust and particulate. * * *
Did those tests pass the District of Columbia’s
requirements?

Yes, they did.

[DE 113, p. 125 -- Direct Examination):

Q.
A.

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* * * (W)hat happened with the facility on New
York Avenue? Why did that not continue?
The site at 1911 New York Avenue was not
zoned for the industrial use that we -- that --
this plant was considered to be an industrial
there didn’t fit the use of this machine. We
had to find an industrial site.

Did you start looking for an industrial site?
We did.

And did you find one?

Yes. Sometime later we located a site at 2115
Bryant Street.

[DE 113, pp.127-33 -- Direct Examination]:

Q.
A.

Q.

What equipment were you going to buy for this
project?

The -- the same we used on New York Avenue
from Dustco, the Gencor thermal absorption
unit. 7s *

What was the price of that?

POP OP

42

$600,000. * * *

How many employees would you need to oper-
ate this plant?

Five people.

And what would their duties be?

A supervisor plant operator, an assistant that
would help him run things, a loader operator
that would run a loader, heavy piece of equip-
ment to load the dirt into the machine, then a
couple of laborers to go around and sweep up
and keep things moving and just general labor
work

Q. How much would the salaries cost you for

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these employees?

About $50,000 a year for the supervisor; the
assistant would probably be $30,000. Machine
operator would make about $30,000 a year, the
guy that runs the loader. The laborers, that’s
$7 an hour.

How long would the plant be in operation?
We'd run six days a week, a shift and a half,
run 12 hours a day. * * *

In 1994, what was the cost on hauling?

It would run a dollar a ton. I base that on the
dump truck rentals, about $40 an hour. They
could go most places in the city in about half
an hour.

And then would you have to do lab tests as part
of the operational costs of this?
Yes, we would.

Why?

We’d do it in the initial -- like I mentioned
before, just to assure what we was bringing
over was just oil, oil that had leaked out of the

>

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43

tanks in the soil. No hazardous wastes were
there.
We would also do checks at the plant every
day to make sure the soil that was in there was
‘actually what the plant was -- we had identified
originally, brought in there.

Did your permit allow you to treat any hazard-
ous wastes at this facility?

No, it didn’t. * * *

Did -- how much would lab tests have cost?
About $35 each. * * *

How often, how many tests do you feel that
you would have been doing per day?
Probably four.

Does your company own a loader that it could
have used to put the dirt with petroleum into
this machine?

Yes, we do. .

And what about a mechanic to do repair work?
We also have mechanics.

On staff full time?

Yes.

Tell me what you do with the dirt when it
comes out of the machine with the petroleum
removed.

Once the clean dirt comes out of the machine,
we're * * * constantly digging up other sites in
the city where there’s tanks. We take the clean
dirt and use it to fill in those holes. Currently
we have to buy dirt, backfill material to back-
fill those holes with.

Q. *** [T}n 1994 how much were you paying for

clean fill dirt?
I'd say a minimum of $2 a ton.

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44

Have you estimated how much clean dirt you
would be able to resell coming out of this
cleaner?

40-, 45,000 tons.

Have you -- you’re aware of the production
rate of this piece of equipment; is that correct?
Yes.

How many tons of soil could you have cleaned
in a year with this machine?

About 75,000 tons.

And did Tri County have the ability to keep
this machine going full time with its own busi-
ness?

Yes. -

* * * [T]s there a certain amount of material
that the machine does not clean?

Yes. When you dig these sites up, you always
have the pavement that is over the top, con-
crei , some under sidewalks, curbs. You get
about 10 percent of the material that comes in
is not soil * * *.

That would still be charged to the customer?
The trucks are weighed by the ton. They pay
for all the tonnage on the truck.

started this project in terms of profit?
Probably $2 million a year.

And your permit was suspended by Mr. Cross,
“the director of DCRA, in September, the 20th,
of 1993. Do you recall that date?

Yes, Ido. Very well.

How much longer before your plant would
have been operational?

30 to 60 days.

What remained to be done?

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45

. The gas line was pretty well down the street.

It was just about completed. We were moving
the equipment from the Midwest. * * *

What type of tests did you have to undergo for
the District before you could start receiving
soil?

. As part of the permit to construct the plant, the

environmental control division of DCRA, the
air quality section, Mr. Wamsgans’ office
asked us to perform an additional stack test like
we performed on New York Avenue.

. What do you mean by a stack test?

That is a test where we run the plant and run
soil through the plant, they hook up air-moni-
toring equipment all up and down the stack that
comes off the afterburner and meaSfire for any
contaminants or hydrocarbons, those carbons
that wouldn’t get remediated in the plant, and
also measures for dust, the amount of particu-
late you put into the air.

This was the same test, though, that had been
performed a year or two before on New York
Avenue on the equipment?

. He just wanted to make sure the machine was

operating as efficiently as there. * * *

[DE 113, pp. 135-39 -- Direct Examination]:

Q.

>O>

Before this suspension on September 20, when
he [, Hampton Cross,] suspended your plant
tom operation, had you received a ticket from

. We did. * * *

And what was that ticket for?
Operating without an occupancy permit * * *.

46 47

Q. Did you have a certificate of occupancy at that Q. Did you have the ability at any time to take
point? that dirt out of the facility or get a provisional
A. No, we didn’t. certificate of occupancy?
Q. Why not? A. Yes, we did.
A. In order to get the certificate of occupancy, we Q. Why didn’t you do those?
had to complete the requirements under the A. We thought the -- like I say, we were solving
permit to construct. the problem with Mr. Cross, that was the big
Q. When you were bringing the soil in, were you problem. We -- in other words, if we couldn’t
operating at that point? solve that problem, the other stuff didn’t make
A. No. That was * * * we brought the soil in to any difference. We could have paid the thing
burn for the stack test, which was part of the and still hadn’t done anything with the permit
permit to construct. We had to construct and suspended. * * *
test it before they would give us an occupancy . Why didn’t you appeal this decision?
it . Well, in consulting with Mr. Farmer [, Tri
Q. Did you pay the ticket? County’s counsel], he said the appeal * * *
A. No, we didn’t. would take at least a year and that * * * the
Q. How much was the ticket? appeal board was politically motivated, you
A. $500. * ** know, if there was public pressure, * * * that
Q. On September 22, after Mr. Cross had sus- it * * * wouldn’t matter whether it was legal or
pended your permit to do work on this project, whether our facility was what we said it was or
was the stop work order posted on your build- anything else.
ing? So basically we lose a year, and the -- at
A. Yes, it was. * * * that point, the project would fall apart. I
Q. At that point, why didn’t you pay the ticket and mean, the machine we had for * * * $600,000

have the stop work order removed?

A. Well, the -- if that was the only problem, it

would have been very simple. Just pay the
$500, whether we were wrong or right, and go
back to work. That wasn’t the real problem.

The real problem was Mr. Cross suspended
our construction permit, and we had no way of
knowing whether we were ever going to be --
you know, be able to continue with the project,
or if it was going to remain suspended.

would probably be sold to someone else by
then. We'd have to find a new one.

. Did you know where you could find a new

one?

A. No. We -- we knew manufacturers that made

them, but we hadn't -- we didn’t investigate
that at that point because of -- you know, the
Dustco machine was a used machine, so it was
probably less than half, or around half the cost
of a new one.

> ©

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48

If you had appealed, would you have had to
purchase the equipment?

Yes, we would have.

Why?

Like I said, Mr. Johnson at Dustco had other
people interested in it. * * *

Anyway, he had other sales for the
machine. He wouldn’t have sat around and
waited a year for us. He would have sold it to
somebody else.

What about the rent during the period of time?
Would you have had to continue paying rent
during an appeal time?

Yes. And the rent was substantial. Like I say,
it was $14,000 a month basically for this ware-
house and this property. * * *

It would have cost us a -- close to a million
dollars to appeal it in -- at the end of the ap-
peal, * * * if there was political motivation, we
would have lost that appeal and had to go to
the next step. Who knows how much more it
would have cost us?

What decision did you make then?

At that point, we decided that we couldn’t go
forward with that appeal. To -- in November,
we gave the property back to the owner.

[DE 113, pp. 145-46 -- Cross Examination]

Q. * ** And what is Plaintiff's Exhibit 34, sir?
A. This is bills from a trucking company, T.A.

Bennett Trucking Company, that did hauling
for us.

Q. Does that represent billings for soil trucked to

2115 Bryant Street?

POPO>

>

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49

Yes, it does.

What are the dates of those billings, sir?

The first one is on July 30.

What period, sir?

1993. I’m sorry. August 13, 1993, August 27
of 1993, 9/10/93, 9/17/93, 9/24/93, and
10/8/93.

Okay. During that period, sir, did you have a
permit to operate the facility?

At Bryant Street?

Yes, sir.

No, we didn’t.

And weren’t you cited as a result thereof for
storage of soil without a permit, certificate of
occupancy?

We were cited for operating without an occu-
pancy permit.

[DE 113, pp. 166-68 -- Cross Examination]

>

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And did you receive that letter, sir?

Yes, I did.

Okay. And who wrote that letter?

Ferial Bishop.

When is it dated?

15 October 1993. * * *

And are there a series of questions that she
asks?

Yes, there is.

Okay. And at number 2, does it indicate that
she wanted to know the amount of soil you
processed per day at the facility?

Yes, it does.

50

And number 3, did she want to know the num-
ber of trucks in and out of the facility each
day?

Yes.

Number 4, did she want to know the proposed
routes of the trucks * * * through the neighbor-
hood?

Uh-huh. * * *

Contingency plans for any odors, if any?
°°"?

Mr. Selzer, did you respond to the letter?
With a phone call. * * * .
Mr. Selzer, you're not answering my question,
sir. I asked if you responded to this letter from
Ferial Bishop.

Prior to her sending it. * * *

Okay. My question is, did you answer the
letter?

This letter?

Yes.

No. *_* *

And you ignored the letter?

No. I sent it before they sent the letter --
during the permit application. They had all
this information. We went through vector
control for the rodents, through site plans, an
engineer’s site plans, surveys of the property,
sizes, all this -- exact questions were part of
the permit application. They had all this infor-
mation months before they sent the letter.

51

[DE 113, pp. 181-82 -- Redirect Examination):

Q.

A.

Or

>

Did the District of Columbia have a review
process that you had to undergo to get this
permit?

Quite extensive. We spent almost a year, a
good nine months, meeting with different
DCRA agencies and the city officials, even
Council Member Thomas’ office, and made a
presentation as to what was -- what the project
would do and how it worked and all the
technical review and measurements and proper-
ty lines, site drawings. Just an extensive,
tremendous amount of work.

Before the District issued you this building
permit, had you supplied them with all of the
information regarding your project that they
requested?

Yes, we did.

When you received the October 15, 1993 letter
requesting more information, was any of those
requests seeking information that you had not
given to the District already?

mm ees
. Did the District of Columbia have any right to

request additional information from you after
your permit had been issued?

. Our counsel advised us, no, that we had al-

ready complied with all the letters of the law in
obtaining the permit.

[DE 113, pp. 183-84 -- Court Examination):

THE COURT: For stack testing, you need-
ed 75 tons of dirt?

52

THE WITNESS: Yeah. Actually, what
happens when you first set the plant up to
perform the stack test, it’s when you first start
processing soil and they burn it, the bag house,
the stuff that takes the particulate out, not the
part that takes the oil out, but the part that
controls the dust from the dry dirt is almost
similar to a swimming pool filter where it coats
the filter before it starts operation.

You have to coat the bag house with dust to
burn soil for probably about an eight-hour
period to get everything coated and set up.

THE COURT: You have to run it for eight
hours before you can do it for three hours?

THE WITNESS: Before you can start
running soil for a test, yes.

THE COURT: So at 11 hours -- so that’s
three hours of testing and eight hours of prep.
That’s 11 hours.

THE WITNESS: Probably so.

THE COURT: At 25 tons an hour?

THE WITNESS: Yes.

THE COURT: That’s 275 tons?

THE WITNESS: Sounds pretty accurate.

THE COURT: About 15 dump trucks full?
14? 20 tons a truck?

THE WITNESS: Yes. Probably about 15
truckloads, something like that.

53

Testimony of Jonathan L. Farmer, counsel for

Tri County Industries

[DE 113, pp. 191-93 -- Direct Examination]:

Q. When Tri County’s building permit was sus-

pended on September 20, 1993, do you recall
that incident?

A. Ta, ten 2 e*
Q.

Would you tell the ladies and gentlemen of the
jury what you did?

A. I called Mr. Cross to ask him the circumstanc-

POPOPO

es by which the permit had been suspended and
exact reasons why. Mr. Cross indicated to me
that he had attended an Advisory Neighborhood
Commission meeting, that it had been a very
raucous and somewhat unpleasant meeting. I
think what he exactly said to me was the nasti-
est meeting he ever had attended.

There were questions about the permit and
its effect on the immediate neighborhood,
certain politicians were asking questions as well
about the permit, and that he was going to
suspend it for further investigation.

Did you request that he lift the suspension?
Within that same conversation?

Or anytime after that conversation?

Yes.

And what was Mr. Cross’ position?

Mr. Cross’ position was that it could not be
lifted. One, he had been directed that it was not
to be lifted. Two, they had discovered that
there were residences within a certain distance
of the building.

> OF 0

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54

Who -- did Mr. Cross indicate who told him
that it could not be lifted?

I believe the city administrator at that time.
Did you tell that to the client, Tri County
Industries?

Yes.

Did -- what did you advise Tri County Indus-
tries at that point they should do?

Basically, as I said, they had -- I think they
said they had a right to an appeal, but I indicat-
ed to them that that appeal would take-some
time.

Do you recall where that appeal would have
been directed to?

Board of Appeals and Review.

And is that the only appeal remedy that they
would have had in this situation?

Depending on the nature of the suspension, no;
it could have also gone to the Board of Zoning
Adjustment.

How long did you tell them it would take to
appeal to the Board of Appeals and Review?
Eight months to a year.

Did you make any recommendations to them?
I believe I said that was really a business deci-
sion or their choice at that particular juncture,
asking for direction.

* * * (CJould Tri County have filed a lawsuit
to set aside this suspension in a court rather
than an administrative appeal?

A. I don’t think you could have gotten to court

without exhausting the administrative remedy.

. What do you mean by exhausting administra-

tive remedies? Explain that to the jury.

55

A. You have to appeal to the agency directly.

You have to give the agency an opportunity to
address this situation before going to court.

Q. What happens if you file a lawsuit without

following through on your administrative ap-
peals before?

A. I assume it is dismissed.

Testimony of Alfred Dishian, business consultant

[DE 113, pp. 198-204 -- Direct Examination]:

Q.

> QPPO> © PO>

What experience do you have with soil-cieaning
equipment, Mr. Dishian?

Well, I worked for Gencor Engineers. * * *
What was their product line?

Their product line was low-temperature soil
remediation equipment and plants.

ans what was your position with that compa-
ny?

Business development manager. * * *

Did Gencor sell a mode] 232?

Yes, they did.

And what was the name or the number of that
model changed at any time? * * *

* * * I introduced a new numbering system, a
625/825, which meant temperature of opera-
tion, size of plant was a different nomencla-
ture, but essentially the 625 plant was the same
as the 232 plant. * * * 4

Why don’t you explain to the jury how this
type of equipment operates. * * *

. *™** So the soil comes in, very much -- and

is tumbled around like in your drier at home. *
* * The flame and hot gases pass through the

56

soil, heat it up, and drive off the petroleum oil
that’s in the soil and the moisture that’s with it.

The hot gases are pulled from this rotary
drum into a bag house, very much like a vacu-
um cleaner. * * *

Now the dust falls to the bottom here, and
there’s a screw which carries it out to another
mixer here, and water is put in it. The soil --
the hot soil comes from here and goes up to the
bag house.

Now the reason for this is that the hot soil
that comes out of here is clean, but the dust
that comes out of this end that goes to the bag
house may not be as clean. So what they do is
they take * * * the hot soil, and this is around
600 or 700 degrees, very hot, and they put it in
the bottom of the bag house, and there’s a
screw which pulls it all through the bag house.

Now * * * there’s a compressor that pushes
on the bags, and it drops the dust down on the
hot soil, going through here. And that mixing
dries off what little petroleum is left in the dust
and is sent out to a furnace. Just like a regular
furnace might burn all these gases.

The hot soil then is mixed with -- with the
dust and water is put in it, and then it becomes
a clean pile of dirt.

Now, the gases here go to that furnace over
here, where there’s another burner. The gas is
put in and is raised to approximately 1600
degrees Fahrenheit, which guarantees for the
length of time that this is sized for that the
gases coming out of here will be 99 percent
free of petroleum. That’s the way the machine
is designed. * * *

©

> Or OF OFOD O

57

I'd like to show you what's been marked as
Exhibit 47. * * *

What is the second page?

Are those the specifications that were in effect
in 1993 for the Gencor 232 or 625 units?
Yes. Yes.

And are those specifications accurate in terms
of the capability of the equipment?

Yes. * **

What is the amount of soil that this piece of
equipment can treat?

Well, it has a nominal capacity of 25 tons an
hour. It varies depending upon the amount of
moisture that’s in the soil. * * *

How high can the capacity -- or the treatment
rate go?

A. Well, at 6 and 8 percent moisture, you can get

almost 40 tons an hour out of the machine. * *
*

* * * [C]an you tell us how many employees it
normally takes to operate this equipment?

A. * * * I would say there’s three people at a

minimum.

If you had a qualified mechanic, what would be
the repair parts and costs for that on an annual
basis for this type of machine?

. Well, the parts, I would say if you -- usually

you run through the bags. Like I said, there
are 232 bags in the bag house. And you usual-
ly run through one of those sets of bags in a
year’s time. They cost $12,000 to $14,000.
Other incidentals that -- belts for the pulleys
and bearings and so forth, electrical compo-
nents, I would raise that up to $18,000 to

\

58

_ $20,000 a year in parts alone * * * for a single

shift operation. If you operate the machine two
shifts, then, you know, you're gojng to get
more wear.

[DE 113, p. 214 -- Cross-Examination):

Q.

A.

Testimony of Donald G. Carter, consulting engineer

Would you agree that there is some -- there are
some health risks associated with the handling
and processing of contaminated soil involving
gasoline products? * * *

No more than filling up your ¢ car with gasoline.

[DE 113, pp. 223-27, 230 -- Direct Examination]:

PO?

MR. EMIG: Your honor, at this point, I
would move the Court to recognize Mr. Cross
[sic] as an expert in the field of mechanical
engineering, energy, and the cost of energy

MR. BOLDEN: I have no objection.

THE COURT: All mght.

BY MR. EMIG:

* * * [Djo you have an opinion as to the
annual utility costs that Tri County would have
incurred if it had operated a soil-cleaning facili-
ty at 2115 Bryant Street?

I do.

And what is that opinion?

It was expressed on my spreadsheet, without
memory of the numbers, it is my opinion of the

POO

>>

?>O FF OFLO

59

would apply to the equipment that was going to
be applied at that project.

Will you look at Plaintiff's Exhibit 52. * * *
Is that, in fact, your sheet?

Yes, sir. This is the sheet.

Okay. Now when you prepared that, what did
you rely upon?
Manufacturers’ data for the equipment in ques-
tion. * * *

Okay. What else did you rely upon?

* * * So I relied on the information given me
by the man with Washington Gas who does that
or did that, and he provided me with the exact
information I needed. * * *

Look at Exhibit 51, please. * * *
What is that?

. These are the gas rates for commercial, prima-

ry, and high voltage service, or for secondary
service. In this case, that sheet is the second-
ary service as one would pay.

You said gas rates.

I mean electricity. * * *

. *** The system could do 20 tons of soil per °

hour. *“* *

305 days in a particular year would have no
holidays and no Sundays, but it would be those
same six working days without holidays or
Sundays that were at stake. There would be 12
hours of work per day. We would add to that
a half an hour of warmup time at 10 percent of
the fuel consumed to bring the equipment up to
temperature before it began working.

-_*-o =

Testimony of Vincent DiRenzo, environmental consultant

60

[DE 113, pp. 238-39, 240-44 -- Direct Examination):

Q.
A.

> ©

0 > O> O>

Which treatment facilities in this area do you
normally deal with?

Presently there’s really only two that are
remaining. TPS out of Baltimore, and also
Bardon, which operates a facility in West
Virginia.

Do they have any in Virginia?

No. I don’t think there’s any thermal! treatment
units in Virginia anymore. * * *

MR. EMIG: I offer Mr. DiRenzo as an
expert in the field of remediation of soil with
petroleum content.

THE COURT: Any objection to that?

MR. BOLDEN: No objection

THE COURT: All right. * * *
Did you at my request do an analysis of the
costs in the Washington metropolitan area to
thermally treat soil with petroleum in it during
the period 1994 to the year 2000?
Yes, I did.
Did you prepare a report that reflects what
those costs were?
Yes, I did.
Look at Exhibit 54, please. * * *

BY MR EMIG:
When did you prepare that report?
The document is dated March 24, 1995. That
seems the timeframe is correct. * * *
Did you have an opinion as to whether in 1994
there was a need in the Washington area for a

POP

>O>

> OF

61

thermal treatment facility to clean petroleum
soil? *~**

That there was a definite need.

Why do you say that?

We had numerous projects going on at that
time. In addition to the market itself, any -- or
most of the construction projects within the
D.C. metro area generally require excavation
of the materials within the area that they are
building, ‘cause they’re putting parking garages
or that’s part of the design.

Because of that, in the Metro additions, a
lot of the construction projects were generating
a large volume of contaminated materials at
that time. * * *

And did you since that report, since there was
some time between when that was prepared and
when we came to trial, did you have occasion
to update your report?

Yes, I did.

. And tell us what you did for that.

Basically what we did was we went back and
resurveyed because there had been -- since we
had done the initial survey, there had elapsed
quite a bit of time, and there had been a lot of
change in the marketplace. So what we did
was reevaluated, spoke to the disposal facilities
that exist now, which are much less, and then
just basically redid and justified the pricing
again.

And do you have a copy of that report?

Yes, I do.

Is that attached at the end of Plaintiff's Exhibit
54?

Yes. That’s my letter dated March 30, 1998.

Q.

O>

>O>

62

And tell the jury what your opinion is in terms
of what the market rate would have been for
thermal treatment of soil with petroleum in it
during the period 1994 to the year 2000.

. Sure. Basically, for all of 1994, again, we

were looking at $40 a ton; in 1995, we were
seeing a decrease, basically about $2 a ton to
$38 a ton. Then in 1996, basically we differ-
entiated part -- two halves of the year because
there was quite some change. It dropped again
by $2 to $36.a ton. By the end of 1996, it was
down to about $34 a ton, averaging for the
year about $35 a ton for the year 1996.

Then our projection from 1997 through
2000, some of which we had information on
‘97 and also in discussing with -- updating the
thermal treatment facilities in that market --
that are within the D.C. market, we came up
with $32 a ton.

Do you know if these rates in¢luded transporta-
tion to tie facilities?

They did.

Do you have an opinion, Mr. DiRenzo, that if
Tri County Industries had opened a soil treat-
ment or soil-cleaning facility in 1994 if there
would have been sufficient petroleum soil so
that it could have treated 75,000 tons per year

from 1994 to the year 2000? “a
. I feel very confident it could have.

Why do you say that?

. Just because of the amount of projects. Again,

to the construction, the whole Metro line that
went through, as well as all of the additional
construction projects -- and most of these are
just federal based -- involving large amounts of

63

contaminated soil being so close within the
District of Columbia made it just very advanta-
geous. It would have for us, and we did dis-
pose of contaminated soil at that time.

MR. EMIG: Your Honor, I move for the
admission of Plaintiff's 54.

MR. BOLDEN: Your Honor, I would
object to the report.

THE COURT: I don’t think we need Ex-
hibit 54 because * * * you have his opinion on
the * * * dollar cost per ton per year. You
have his opinion that there is enough soil to
satisfy 75,000 tons per year. I think those are
the basic opinions you need. The report is
unnecessary, and I’ll sustain the objection.

[DE 113, p. 253 -- The Court]:

THE COURT: You said there is no reme-
diation facility or soil-burning facility in Vir-
ginia?

THE WITNESS: Well, there wasn’t. A lot
of it was landfilling or other types, bio-reme-
diation, but the actual thermal treatment pro-
cess, there was not. .

THE COURT: Never was?

THE WITNESS: There was one with
Enviro-Care for a short period of time.

THE COURT: What happened to it?

THE WITNESS: They eventually lost their
permit, and I think it was never -- once it
expired, I don’t think it was allowed to be
reactivated.

THE COURT: What was the facility re-
ferred to in your report that attempted to gain

tes
a larger portion of the market by reducing gate
prices below cost and had to be sold at a loss
as it could no longer make payment on an
incurred debt?

THE WITNESS: That was a facility in
Baltime ze. Again, they came into the market
when there was a lot of construction activities
and tried to really lower the price of their -- I
guess to try to get into the market. Basically
within a year, they were out of business.

Deposition Testimony of Larry Johnson

[DE 113, pp. 7-16]

Q.

©

>O> OF OF OF

And how long have you owned these Gencor
232s?

Since 1990.

Are you familiar with the operation of these
pieces of equipment?

Yeah. ~* *

Do you supervise the operation of these pieces
of equipment?

Yes.

Are [sic] they produce any excessive noise or
odor or smoke when they are operated?

No. “~“* *

And what about dust or smoke?

There is no dust and there is no smoke. The
only thing we have is steam comes off the hot
soil on the discharge end. * * *

And is there any odor produced by this pro-
cess?

No. x* *

A.

O> O> O> ©

65

Okay. Are you familiar with the soil treating
capacity of this particular Gencor 232 unit?
Yes.

How many tons of contaminated soil will it
treat per hour?

25-40.

How many people does it take to operate this
particular model?

A minimum of three per shift. * * *

What percent, based on your experience, of
soil that it brought into your facility does not
have to be treated because of its larger size?
10 to 25 percent.

Testimony of Joel M. Morse, professor of financial

economics

[DE 113, pp. 259-66 -- Direct Examination):

Q.

A.

oO,

Do you teach valuation of new businesses to
your students?

Yes. Essentially, a new business is part of the
curriculum in corporate finance as well as in
investment analysis.

A new business is really a prospective or
forthcoming set of cash flows. As such, I
routinely teach that to people who are out there
doing that stuff, and I have done it as a consul-
tant; and I both teach and learn from my stu-
dents who are practitioners of this art. * * *
Have you testified or prepared opinions on the
issue of lost profits of new businesses before?
Yes, I have.

And can you indicate when that would have
taken place?

A.

oO,

66

Well, I’ve done that from time to time on and
off in court since 1988. I would say it happens
at least once a year, probatly more often. * *
-

Is there anything that makes valuation of new
businesses too speculative for you to reach a
valuation figure?

. To value a new business is an established part

of discipline I teach in the graduate program at
the University of Baltimore. We wouldn’t
teach it if it were speculative. We believe it’s
a natural part of business decision-making
which is to go into new ideas, new ventures
and new areas.

MR. EMIG: Your Honor, I offer Dr.
Morse as an expert in the field of financial
economics.

MR. BOLDEN: No objection. * * *

THE COURT: No objection? All right.
Dr. Morse may give opinion testimony in this
field.

BY MR. EMIG:

Did you at my request do an analysis and
prepare a report regarding the lost profits that
Tri County Industries sustained when its build-
ing permit was suspended by the District of
Columbia?

Yes.

And for what period of time did your report
include?

. The year began in 1994 and continued through

the year 2000, so some of those lost profits are
past and some are future. * * *

. Yes. [Exhibit] 56 is my report in this matter

dated April 1995.

O>

oO,

67

And did you arrive at an opinion in terms of
how much Tri County Industries lost in terms
of profits during the period 1994 through the
year 2 “* *

That amount was $11,628,174. * * *

The information that you received regarding the
costs and the profit -- or the costs and the
revenues for this project, was that the type of
information an expert in your field reasonably
relies on?

Yes. *“_* *

Let me ask you one question. The revenue
figure on which you base your figures, were
they provided by Mr. DiRenzo of Apex Envi-
ronmental?

A. Yes.

[DE 113, pp. 272-73 -- Direct Examination]:

A.

* * * So I’m working here in a model of reve-
nues minus costs, which I feel is a traditional
model and a traditional way of looking at the
prospective or possible profitability of a new
venture. So, for example, in the year 1994, I
estimated that revenues would have been
$3,367,500. From that, I took away the cost
of doing business. * * *

I subtracted the cost line from the reve-
nue line. So, for example, this number here,
$2,031,592, is really easy to get at. All I did
was take $3,367,500 and take away from it or
subtract $1,335,908; and I got as a result, or as
an answer, $2,031,592.

68

[DE 113, pp. 276-77, 279-81 -- Cross-Examination]:

Q.

o> O>

oO,

Q>

As I understand your testimony, Dr. Morse *
* * you don’t have expertise in the soil remedi-
ation field; and in putting together your num-
bers, you relied upon reports and numbers put
together by other persons in the field; is that
correct?

Yes.

And your opinions then piggyback on the opin-
ions of other experts retained by Tri County in
this litigation?

Yes. x** *

* ** Did you independently look at the profit-
ability of the companies that had been surveyed
in Apex’s report?

No. x«* *

Then is it true that you made no assessment as
to whether the companies that are indicated in
this report prepared by Apex were start-up
companies?

. That’s correct. * * *

* * * Wouldn’t it seem reasonable that you
would compare your profitability statement
based upon a company similarly situated to Tri
County, one that was new to the field, one that
had no prior experience or training in the field,
and one that, for all intents and purposes, was
nonexistent?

. Well, that last sentence throws me for a loop.

If it’s -- I cannot compare anything with a
company that you said was nonexistent.

Hold on a minute. You can compare it, then,
to a new company in the field?

69

A. What I have done is common to my field,

which is to estimate the costs and the revenues
for a new venture using data that’s knowledge
-- data and knowledge in that industry. And I
relied on -- and I was asked to rely on -- the
report we are now discussing from Apex.

I was not asked to do the ideas that you are
now suggesting, and I did not independently
believe that to do so would be either possible

or appropriate.

[DE 113, pp. 284-85 -- Redirect Examination]:

Q. Dr. Morse, do you have any indication that any

of the information you relied upon in the prepa-
ration of your estimate of damages was either
wrong or incorrect?

. No. * * *

THE COURT: Dr. Morse, your projection
for the first year of operation of this business
shows roughly $2 million of profit -- is it fair
to call it profit?

THE WITNESS: Yes.

THE COURT: -- on $3 million of sales.
Do you have a measure of how profitable that
enterprise is?

THE WITNESS: That's a very profitable
enterprise, if that’s what Your Honor is getting
at. ** * This * * * would have been * * *a
very profitable business. Are you asking if
that’s an unusually high profit margin?

THE COURT: * * * How would you de-
scribe, how would you quantify that profitabili-
ty?

70 ‘

THE WITNESS: That would be a profit
margin well in excess of 50 percent.

THE COURT: And what woyld you say
the return on investment would be?

THE WITNESS: Well, I have not -- that’s
a good question, sir. I have not been provided
with the capital costs in their entirety. I’ve
been provided with estimates that I believe
were dignified [sic] of the revenue and the
costs.

To the extent that I looked at capital, I
annualized it or I annuitized it. That would be
the land value and the equipment value. * * *

So looking at the profit as a percentage of
capital, you still would see * * * an extremely
profitable business which has been discussed
today.

Deposition Testimony of Harry Thomas:
[DE 113, pp. 286-88]:

"Question: Mr. Thomas, you are a member
of the D.C. Council representing Ward 5; is
that correct?

"Answer: Yes, I am. * * *

"Question: You are ‘algo chairman of
certain committees; is that cosrect?

"Answer: Chairman of the Public Works:
and Environment. * * *

"Question: Did you or your office have any
contact with DCRA after this meeting, and I’m
talking after September 20, 1993, regarding
this project?

71

"Answer: Officially, I don’t think we had
any. * * *

"Question: What about unofficially?

“Answer: I might have seen Hampton
someplace and said to him that because of
opposition we had some problems there. * * *

"Question: But you did indicate to him that
you were opposed to this project going for-
ward?

"Answer: I made that loud and clear."

Deposition Testimony of Hampton Cross:
[D.E. 113, p. 290}:

"Question: You indicated earlier, Mr.
Cross, that you had a conversation with the
mayor’s Office following the September 20
meeting. Who was that with?

"Answer: That was with Mayor Kelly. It
was with Mayor Kelly. It was a meeting.

"Question: Who else attended that meet-
ing?

"Answer: Two or three, I don’t recall how
many, I don’t even know if you call them
representatives. Two or three members of the
community, who lived in the community
around the Tri County facility, and also Claude

Bailey, v= Sa ales tate
sel attended the. meeting.

72

Deposition Testimony of Francine Howard James, Execu-
tive Officer, D. C. Board of Appeals and Review:

[D.E. 113, pp. 294-95}:

“Question: What is the purpose and func-
tion of the board?

"Answer: The purpose of the board is to
hear appeals from aggrieved citizens who are
dissatisfied with final decisions and orders that
they receive from the Department of Consumer
and Regulatory Affairs * * * .

[DE 113, pp. 309-23 — Argument of Counsel]:

MR. EMIG: * * * [Wyhat concerns me is
evidence -- of him coming in with evidence that
their neighbor -- there are houses in the vicini-
ty. That's very prejudicial when he can’t tie
that in to any basis for having the permit sus-
pended, Your Honor. I think he’s just playing
on the prejudices and concerns that really got
this project sidetracked in the beginning. I
mean, I think he needs to establish there were
some grounds.

THE COURT: Well, where are we going
here, Mr. Bolden? What are you going to
prove? Or try to prove?

MR. BOLDEN: Well, our case in part is
that the project would have been suspended
anyway or that the project would not have gone
forward for various reasons. * * *

THE COURT: Like what reasons?

MR. BOLDEN: Well, one very obvious
reason is that there were health and safety

73

concerns that Hampton Cross had, as well as
the community had, which impacted on the
health and safety of that community. * * *
We -- again, in terms of Carey versus
Piphus, that’s our case, that the project would
not have gone forward for various reasons. * *

THE COURT: * * * You mean there is
going to be another whole layer of approvals?

MR. BOLDEN: We're not saying a whole
layer of approvals, but certainly any project
which presents a health risk or a danger doesn’t
have carte blanche to operate. There has to be
a process by which * * * adjustments are
made. -_* *

THE COURT: Given the Court of Appeals’
ruling -- and I think Mr. Emig is correct to this
extent, that the Court of Appeals has ruled that
the suspension order was unlawful -- by what
procedural means or mechanisms could or
would the District have acted to take that sec-
ond look once you -- understanding that it
already had issued am [sic] air quality permit
and a building permit?

What additional permits were necessary?

MR. BOLDEN: Well, first of all, Tn
County had no permit to do business there.

THE COURT: Right.

MR. BOLDEN: Hadn’t applied for it.
Hadn't been granted. So it still had to go
through the -- the panoply of inspections by
various entities of DCRA.

THE COURT: Can you be a little more
specific about this? I mean, this -- what did it

74

need? What permit, what precisely -- precisely
what permit did it need?

It had a building permit. It had an air
quality control green light. What permits did
it need?

MR. BOLDEN: It did not have a certificate
of occupancy.

THE COURT: All right.

MR. BOLDEN: Which permitted it to do
business.

THE COURT: Is there any discretion on
the -- in the board -- or whoever the issuing
agency is -- to issue a certificate of occupancy
if the building conforms to the building permit?

MR. BOLDEN: Well, there are inspections
by various entities, including the fire depart-
ment, zoning, electrical department, so there’s
still a range of inspections that had to * * *
undergo.

In addition, the equipment that Tri County
proposed to use had to * * * undergo a -- an
additional round of emissions tests, under the
air quality permit. They couldn't -- they could-
n’t do anything with that permit until they
brought the equipment here and tested it.

THE COURT: Okay.

MR. BOLDEN: The equipment had not
been physically at 2115 Bryant Street. It had
-- the initial approvals are based on a 1991
stack test on New York Avenue.

THE COURT: Okay. Fine. But electrical
tests, fire code tests, stack tests -- assume with
me -- and I think it’s fair to assume that Tri
County would pass all those tests * * *. I
mean, if they didn’t, that’s another round. But

75

you’re talking about new concerns about health
and safety issues.

Now, unless the District of Columbia were
to change the standards for stack gases and
particulates, which they had not done, then I
think we have to assume that the machinery
would pass the same air quality test on Bryant
Street that it had passed on New York Avenue.

Now, what different -- what areas of health
and safety does Siess say would now be raised,
and how except for a certificate of occupancy
would they be raised? What other permit did
they need?

MR. BOLDEN: Your Honor, there’s a
whole area of handling of this material, and it
had to be handled in such a way that it protect-
ed the community. There had to be plan{s] for
transporting it through the community. There
had to be plans for -- there had to be some way
of overseeing how this material was -- passed
through the community.

It turned out later on that there had been
misrepresentations in the initial application
concerning where the residential houses were.
I mean, all of that had to be dealt with, which
is why there was the issuance of this October
15 letter concerning information that was need-
ed.

THE COURT: Do you disagree with this
gentleman’s testimony that everything asked for
in that October 15 letter had already been
provided to the District? * * *

MR. BOLDEN: Yes. I disagree. I don’t
agree.

76

THE COURT: * * * I share some of Mr.
Emig’s concern about your wa[]ving a lot of
health and safety concerns in the community as
if health and safety concerns would ultimately
doom this project.

You haven’t given me an answer that I find
acceptable yet to the question of what legal
mechanism would have stopped this project.

The health and safety concern question,
obviously we'll have experts on both sides of
this. We have experts on both sides of any
question. But we already have one man who
says this is like working in a gas station.

You don’t believe that. * * *

I will say, however, Mr. Bolden, that it is
conceivable that after hearing the testimony of
a witness expressing generalized health and
safety concerns, it is conceivable that I will
hear the testimony and strike it.

I thought that your Carey and Piphus show-
ing would be a much more targeted showing to
the effect that it is established District of Co-
lumbia -- for example, it is established District
of Columbia law that a building permit and an
air quality control permit don’t cut it; that a
certificate of occupancy doesn’t cut it; that
there’s another permit required under estab-
lished D.C. regulations, and that permit is
called an operating permit. And that under
District of Columbia law, before Tri Cowuty
could obtain an operating permit, it had to
make a new showing on the basis of plans, et
cetera, et cetera, that there would not be any
deleterious effect on the health and safety of
the population. And these are the established

77

Standards and it is clear from the record that
Tri County could not have met these estab-
lished standards.

Now if you can make that kind of showing,
make it * * *,

[DE 112, pp. 337-41 — Ruling of Court on defendants’

motion for judgment as a matter of law]:

THE COURT: * * * Now, the future earn-
ings case, I think, is a much more difficult one.
It seems to me that what is missing from this
record -- but I’m going to consider it further --
seems to me what is missing from this record
is evidence that -- is evidence of the market for
processing all this soil.

Now, I know there’s an expert who said,
"Oh, yeah, there’s enough soil around here to
bring 75,000 tons a year." Sure, there’s plenty
of soil around; but you need more than soil,
you need some established position in the mar-
ketplace.

This -- there’s nothing in the calculations of
any of these experts that there’s any buildup.
This company is going 75,000 tons a year from
day one of these calculations, all the way
through, full capacity. No evidence about how
he gets there, how he markets it, how he’s
going to make this thing run. And the expert
-- the financial economist conceded that the
profitability figure for this company is extraor-
dinary.

It looks very speculative to me. Now, I’m
going to consider this further between now and
the time this case goes to the jury. I’m not

78

sure I’m going to sent the future earnings
question to the jury. If I do, however, it will
be with the same ruling that I’m making now,
which is to -- which is the conditional ruling
that Rule 50 requires.

I’m denying the defense motion for judg-
ment as a matter of law, conditional on its
being renewed at the close of all the evidence;
and, if I send these issues to the jury, condi-
tional on it being renewed again after the ver-
dict.

I think there is a hinge here somewhere
between the past -- between the money that Tri
County sank into this enterprise of $600,000
and future earnings. The hinge has something
to do with mitigation. It is one thing to say, as
Tri County does say, it would have cost us a
million dollars to save $600,000 because we
would have had to buy the equipment and wait
out an appeal.

That’s perfectly understandable and maybe
a complete defense to the mitigation claim with
respect to the monies that were spent and lost;
but for Tri County to make that decision, walk
away from this, and then go for all of the
future earnings without sinking the money into
the appeal and going the next step to mitigate
or to hang in there in a way that would permit
them to pursue future damages may -- I say
"may," because I’m not ruling at this time --
may as a matter of law mean that they’re not
entitled to future profits.

So my view of the future profits question at
this point is that the evidence -- although I have
to say, Mr. Emig, you did a very careful work-

79

manlike job of putting in all the elements of
that spreadsheet. Still what you have is a
spreadsheet; you have a pro forma, without, it
seems to me, very good proof either that the
company could actually start up and do it or
that there was a market for the numbers in the
spreadsheet. And secondly, as I say, I’ve got
this problem with mitigation. * * *

There’s a line in your expert’s report about
how the competition is driving down the price
per ton until it just covers operating costs.

MR. EMIG: Uh-huh.

THE COURT: And that that has driven one
of the competitors out of business because he
tried to take on too much. He didn’t cover his
operating costs.

Your numbers do a lot more than cover
operating costs. They cover operating costs
and return a profit of over 50 percent.

MR. EMIG: Right.

THE COURT: There’s a query whether

_ your own evidence establishes that you really

have a market-competitive product here. So I
hear you. Tri County digs the stuff up itself,
trucks it someplace.

MR. EMIG: That’s right.

THE COURT: Whether it can -- whether it
can sell its own services at that price and deliv-
er that profit is another question that I don’t
really think is what -- I think what I’m inclined
to do is to let the jury decide how speculative
that is and then go back and look at it with the
luxury of a little hindsight and determine -- and
if they -- if they think it is not too speculative,
then, of course you have a leg up, but then I

80

will have to decide how speculative it is as a
matter of law and whether they should have
had the case in the first place.

Testimony of DCRA Inspector Juan Berrayarza

[DE 112, pp. 342-47 -- Direct Examination]:

A.

Q.

I am employed by the District of Columbia as
a zoning inspector for 27 years. * * *

I direct your attention to what’s been marked as
Defendant’s Exhibit 1. * * * What is that
document, sir? * * *

. This is a citation that was written on the pre-

mises of 2115 Bryant Street, Northeast * * *
on the 7th of September, 1993. * * * I was
there because my supervisor at that time, he
sent me to make an inspection * * * based on
complaints from the neighborhood that --

MR. EMIG: Objection.

THE COURT: Sustained. * * *

So I gave a full account of my inspection.

All right. The building had been occupied
as an office on the front, and in the back was
a building that was a big room that was full of
soil, a big pile of soil. So I get in there and
I’m trying to take a picture of the soil, you
know, because my Polaroid camera and the
picture never came out because the room was
so dark.

So when I was there, I had some eye irrita-
tion because the fumes, the stink was coming
out from the soil.

THE COURT: Overruled.

81

BY MR. BOLDEN:
Okay. When you went to the premises, what,
if anything, did you do?

A. So I got -- because the door was opening and

I’m trying to see what was there. It was --
there was nobody in the building because the
office had been locked.

a Did you -- did you draft that citation,
sir?

A. Yes, sir. I wrote the citation when I went back

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to my office to check on all the records to see
if there was a certificate of occupancy for this
use, and I couldn’t find anything in the file.
So I proceeded to write a citation on the --
based on the regulation of the D.C. Code. * *
* That regulation was 3203.1, building occu-
pied, industrial soil remediation business with-
Out a certificate of occupancy. * * *

What is a certificate of occupancy?

There is such a certificate that the zoning regu-
lation required to have use of any property in
D.C., any other use, or single-family dwelling
is supposed to have a certificate of occupancy
in the city. That’s the regulation. * * * With-
Out certificate of occupancy, there was subject
to a fine. * * *

Q. Okay. And what does the citation require that

Tri County do?

A. Well, they must have it on file in order -- well,

they -- they -- right to operate the business
until all the inspection has been performed, you
know. They had to have a building inspection,
plumbing, electrical, zoning, fire. They were
in -- when they responded, has been approved,
they can obtain a certificate of occupancy after

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82

paying for the fee. They can operate the busi-
ness. xx *

Was there a fine associated with that citation,
sir?

There was a fine.

$500 fine?

Yes, sir.

112, pp. 348-50 -- Cross-examination):

Isn’t it correct that Tri County could have paid
that ticket for $500; is that true?

They should have been paying after all these
years.

They could have at any time paid that ticket; is
that correct?

Correct. .

Now the second question I have is this.
Uh-huh.

They could have either removed the soil --
That’s right.

-- or they could have gotten a certificate of
occupancy?

Correct. * * *

Either of those two things plus payment of the
ticket would have resolved this entire problem;
is that true?

Exactly.

Now, you get a certificate of occupancy * * *
when you complete your renovation on the
building?

That’s right. * * *

You go out and you look and you make sure
that all of the work that they say they’re going

A.

QO FP OP

83

to do in their building permit application has
been done correctly?

Exactly.

That’s all? Then you get your certificate of
occupancy; that true?

Correct, if they comply with the zoning regula-
tion.

Well, they wouldn’t have gotten the -- if they
weren't in compliance with the zoning, they
wouldn't have gotten the building permit in the
first place?

Right. That’s right.

Testimony of DCRA Inspector Phillip Thomas

[DE 112, pp. 351-55 -- Direct Examination]:

A.

Q.

A
Q.

>O>

I’m a construction inspector with the District of
Columbia. * * * The Department of Consumer
and Regulatory Affairs.

How long have you been employed with the
— of Consumer and Regulatory Af-

. 16 years, sir. * * *

Directing your attention to the month of Sep-
tember 22, 1993, did you limve an occasion to
visit 215 [sic] Bryant Street, Northeast?

. Ra eee

What did you see?
I saw someone was storing a lot of soil in the
building. * * * There was a gentleman |
spoke to. * * * I asked him who’s in charge.
He said his boss was not there.

BY MR. BOLDEN:
Did it appear he was working there?

POP OPFOP

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84

He was working there, sir.
What was he doing, sir?
He was by the weight station.
On that day, what, if anything, did you do at
2115 Bryant Street?
I was told to issue a stop work order.
Why was that, sir?
Because there was no CO for the job, what
they were doing on the site, sir.

THE COURT: Was no what, sir?

THE WITNESS: CO, certificate of occu-
pancy for the building.

BY MR. BOLDEN:
What is a certificate of occupancy, sir?
Sir, in the District of Columbia before you --
before you could use a building for any busi-
ness, you are supposed to have a certificate of
occupancy.
And did you notice or did you observe whether
the building was being used for business?

A. It was being used for business, sir. * * * Sir,

>O> ©

I saw that -- the dirt, I saw the weight station,
the guy was in the weight station there. * * *
I show you what has been marked as Defen-
dant’s Exhibit No. 5. * * *

It’s a stop work order for no CO.

Okay. And did you sign that document, sir?
Yes, sir. * * * I served a copy of the stop
work order to the gentleman. I gave it to him
and instructed him * * * he could appeal the
stop work order. I said, from now on you are
stopped from what you are doing here. I said,
you could appeal the stop work order by talk-
ing to Mr. Vincent Ford, my program manag-
er.

85
Did you post a copy of that?

. I did post a stop work order on the building.

*** It’s a big yellow copy, sir, bright or-
ange.

[DE 112, p. 361 -- Cross Examination]:

Q. So either they appeal it, they take the soil out,

or they get a certificate of occupancy? Any
one of those three things, assuming the appeal
is successful, and your stop work is gone?

A. Yes.

Testimony of DCRA Employee Lennox Simon

[DE 112, pp. 362-67 -- Direct Examination]:

A. I’m employed in the Office of Adjudication, the

Department of Consumer and Regulatory Af-
fairs. * * * The Office of Adjudication is the
adjudicative arm of the department. We con-
duct all of the administrative hearings under the
jurisdiction of the DCRA.

. I show you what's been marked as Defendant’s

Exhibits 2 and 3. * * *

A. The first exhibit is an official decision and

we)

order of the Office of Adjudication which was
issued by Attorney Examiner Rohmular Quan-
der. * * * It was issued on October 25, 1993.

. What was the nature of that proceeding, sir?

This was a matter that came before the office
on the operation of a business in the District of
Columbia without a valid certificate of occu-

~ @tt The hearing was on October 13,

> ©

> ©

86

And what occurred at that hearing, sir?
Looking at the official record of hearing, the
respondent failed to appear at that hearing.
The inspector who issued the citation appeared
and gave testimony under oath as to his obser-
vation of the location and what he saw on the
day of infraction, which was September 2,
1993.
Okay. And did the Court decide the case?
Yes, it did. Also looking at the other docu-
ment, which is entitled “Capsule,” it shows
there were several attempts made by the Office
of Adjudication to contact the respondent tele-
phonically. There were calls backward and
forward, and the respondent also wrote a letter
to the department indicating that -- well, basi-
cally denying that there were any business
activities being conducted at that location.
And based on that information, Attorney *
* * Quander proceeded with the hearing. He
found there was adequate notice of the violation
and proceeded with the hearing.

Q. What, if anything, did he determine?
A. Well, based on the information provided by the

inspector, the zoning inspector, he found the
respondent liable, upheld the original fine,
which was $500. He then assessed a penalty
for the respondent’s failure to appear at the
hearing of a thousand dollars, and he also
assessed $25 in court costs for a total of $1525.
xs *

The order was mailed out to the respondent
on November 3rd, 1993. I have a certificate of
service of that as well. * * *

87

Q. And does the capsule summary itemize the

A.

dates and times when attempts were made to
notify Tri County?

Yes, it did. It shows that on November 30,
1993, on December 7, 1993, December 13,
January 6 of 1994, and January 10 of 1994
OS

t.

Okay. I show you what’s been marked as
Defendant’s Exhibit 4. * * *

A. That is a letter from the office of the control-

ler, which is another branch within the Depart-
ment of Consumer and Regulatory Affairs, and
that office is charged with collecting all fines
and penalties for the department. * * * It is
dated January 12, 1994. * * * Basically it
informs the respondent that he had a final
decision, an order was issued on this matter,
assessing $1525 in fines. There has been no
appeal taken from that decision, which means
you have 15 days in which to appeal. It is now
final, and the respondent has to make payments
on that; otherwise, the matter will be referred
over to the Corporation Counsel for criminal
prosecution to enforce that judgment.

Aad % Gass aftitensl language in Gat desw-
ment!

. Yes. To cease and desist the operation of the

business until such time as a certificate of occu-
pancy is issued for that particular activity that
respondent was engaged in. * * * It also, as
the act -- the civil infractions act provides the
-- for the suspension of various licenses and
certificates unless the fine is paid, so it is an

enforcement tool used to -- by the department
to collect the fines assessed.

[DE 112, pp. 372-75 -- Cross Examination]:

THE COURT: * * *

This form that is Exhibit 2 says at the bot-
tom of the back of it "Respondent’s failure to
appeal this decision or to arrange for payments
of all fines, penalties, and costs within 15
calendar days of service of this decision shall
operate to suspend automatically the license or
permit until the assessment is paid.”

What does this mean "operate to suspend
automatically the license or permit"?

THE WITNESS: * * * [What that means,
Your Honor, is that on the 16th day the license
or permits or certificates will be suspended by
operation of law.

THE COURT: And does another piece of
paper have to issue to get that done?

THE WITNESS: No, Your Honor. * * *

_ BY MR. EMIG:
. But they don’t indicate in this letter that any
permit has been suspended, do they?

A. They don’t. They didn’t. But the decision and

order speaks for itself. It says it would be
automatically suspended, and that decision and
-- the decision and order was mailed to the
respondent.

. Okay. If -- how is that matter corrected and
that suspension lifted?

A. Once the respondent has paid the fine, penal-

ties, whatever that’s due, then that license
permit certificate would be reinstated.

POP

89

That’s all that’s required?

That’s all that’s required.

To pay it?

It’s just an enforcement mechanism to collect
the fines, penalties, et cetera.

Testimony of DCRA Director Hampton Cross

[DE 112, pp. 377, 394, 396-99 -- Direct Examination]:

A.

> OPO

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I was the acting director of Consumer and
Regulatory Affairs from, I believe, September
of ‘93 to, I think, January of ‘94. * * *
Okay. And the Director?

From January of ‘94 to August of ‘97. * * *
Why was that letter [letter dated October 15,
1993] sent to Tri County, sir?

My best recollection is that it was sent to -
well, to establish a process which would afford
-- which would resolve the issues that had
arisen, to establish a process and to get the
necessary information from Tri County.

Okay. And do you know if Tri County re-
sponded to that letter?

No, they did not. * * *

What do the initials CA, what is that common-
ly known as in the District of Columbia gov-
ernment, sir?

City administrator.

Who was the city administrator at that time?
Mr. Robert Maiiett.

What is Mr. Mallett’s responsibilities in the
District of Columbia government? * * *

As the city administrator, he was responsible at
that time for the overall operation of the Dis-

> OPO PO

90

trict of Columbia government. * * * I have no
recollection of any conversations with Mr.
Mallett regarding Tri County. * * *

In December of 1993, I recall being advised by
the staff that we had not received any response
to our letter * * * dated October 15, 1993.
And the question was, having received no
response, what should we do.

Okay. And what was done?

We issued them a letter revoking the building
permit. * * *

Okay. What is the date of that letter, sir?
December 6, 1993.

At paragraph 3, paragraph 4, sir -- * * * will
you read that, sir?

"Furthermore, the original environmental ap-
proval was based on information provided by
you on the environmental impact screening
form stating that your facility would be over
700 feet from the nearest residential house.
You failed to bring to our attention the fact that
there is a single-family residence directly
across the street from your facility less than a
hundred feet away. We are concerned that this
home, as well as the proposed DHCD housing
project, are much too close to your facility to
not be impacted by the emissions from the
treatment process and potential emissions from
contaminated soil stored at the facility or trans-
ported throughout the neighborhood.”

[DE 112, pp. 404-07, 412-13 -- Cross Examination]:

Q. You do not know when that October of ‘93

letter was sent to Tri County whether or not

©

QO POP

91

you had already received that particular infor-
mation that is listed in your letter?

. At the time the letter was sent, my best profes-

sional information at that time was that we did
not have the information that we were requiring
in this letter. * * *
Are you aware of any legal authority that
would permit you to ask for more information
from a permit holder after the permit has al-
ready been issued?
I don’t know any specific code citation, sir, but
as a professional, when matters come before
you that involve life safety --

MR. EMIG: Objection, Your Honor. I
move to strike that.

THE COURT: You asked the question.

THE WITNESS: When matters come
before you that involve life safety as a public
official, you have a responsibility to ask for
additional information. * * *
Is it true, Mr. Cross, that the Board of Appeals
and Review is merely the reviewing agency that
does the will of the mayor?
That’s net correct.
Did you ever testify to the contrary?
My previous statement is that I do not recall
testifying to the contrary.
Is it true that there are two ways of handling
the situation before the Board of Appeals and
Review; one, that you could ask the board to
take a different position or, two, that the mayor
or chief of staff, Robert Mallett, could tell the
Board of Appeals and Review to reverse its

position?

. Sorry. Could you repeat your question.

©

QO PO?

92

Is it true that the mayor or the chief of staff,
Robert Mallett, could tell the Board of Appeals
and Review to reverse its position?

That’s not true.

Did you ever testify to that?

My best recollection is that I did not testify to
that.

Let me show you a portion of your transcript
from your testimony in the Samaritan Inns
case. * * * Is it true that you, in fact, testified
differently before the -- this Court?

Based on that transcript, it is correct. Based
on that transcript, I did say that.

[DE 112, pp. 414-18 -- Redirect Examination]:

A.

O>e

The Board of Appeals and Review is not a -- is
an independent -- is an independent agency. *
* * It doesn’t do the bidding of anyone. It is
an independent agency, making independent
judgments.

. SO you were mistaken in that day?

I was absolutely mistaken. Absolutely. * * *
Concerning adverse environmental impacts, if
new information came to your attention which
you determined had impact, environmental
impact on a project such as the one Tri County
was involved in, what, if anything, would your
agency do, sir?

It depends, counsel, on where the project is. *
* * If the -- if the project is -- the proposed
construction is completed, then you would take
steps to delay or suspend issuance of any final
approvals or -- so that to make sure that the
project did not go -- did not go into effect until

93

we had assured ourselves that any -- that any --
that there would not be any adverse impact on
the surrounding area. * * *
Why did you send the October 15 letter to Tri
County? * * *

~THE WITNESS: As a follow-up to the
meeting where I -- where I moved to suspend
the permit to establish a process which -- a fair
process which would allow Tri County to
provide us with the information to resolve the
questions about whether or not there would be
any adverse impact on the community.

Testimony of DCRA Chief James Sweeney

[DE 112, pp. 419-29 -- Direct Examination]:

A.

I’m employed at the District of Columbia gov-
ernment, Department of Health, Environmental
Health Administration. * * * I’ve been with
the District government for a little over 25
years. * * * Right now, I am chief of the
hazardous waste management division within
the Environmental Health Administration. * *
_

I show you what’s marked as Defendant’s

Exhibit 7. Have you seen that document be-
fore? * * *

. This is a document called a supplemental envi-

ronmental questionnaire. * * * It is part of the
building permit application.

Okay. And did there come a time when that
document was presented to you?

A. Yes. * * * [T]he signature of the person who

filled out the form is Calvin Franklin. * * *

94

Mr. Franklin was a representative of Tri Coun-
ty Industries, who had applied for the permit to
do this project. * * *

. Okay. Now, I draw your attention to, I believe
it is page 2, the last question on page 2. * * *
What does that say, sir?

. The question is, “Will the proposed project
result in an increase in vehicular traffic in the
area surrounding the project?” And it is --
someone has written next to that question, "A
little employee." And the question is answered
"Yes.°

. Okay. And did it come to your attention sub-
sequently that there was somewhat more than a
little employee? * * *

. I can’t remember exactly when, but the more
than a little employee parking meant that there
would also be trucks coming into and out of the
neighborhood with contaminated soil in them.
. I show you what has been marked as Defen-
dant’s Exhibit 8. Do you recognize that docu-
ment, sir? ** *

. This document was written in response to a
meeting that was held on September 20, 1993,
where we received some information concern-
ing the area around 2115 Bryant Street, North-
east. This information had to do with the
proposed construction of a housing project by
the D.C. Department of Housing and Commu-
nity Development very close to the proposed
facility. * * * It is addressed to Mr. Glenn D.
Selzer, president, Tri County Industries.

. Okay. What sort of things were you asking for
in that letter, sir?

95

A. * * * There are 10 things we ask for. I will

Q.

paraphrase them so we don’t waste too much
time.

We are first asking for the total cost of the
proposed project, including the cost of the
remediation equipment to be installed, the cost
of construction materials, and the labor cost-
ings.

Number 2, the expected amount of soils in
tons to be processed per day at the facility.

Number 3, the number of truck trips into
and out of the facility per day.

Number 4, the proposed routes of the trucks
through the neighborhood into and out of the
facility.

Number 5, the proposed hours of operation.

Number 6, current conditions of the facility

property regarding pest infestation, dust, and
odor

Number 7, contingency plans, if any, for
the control of pests, dust, and odor.

Number 8, proposed means for washing the
facility and methods for disposing of wash
water.

Number 8, a typo I find four years later.
The second number 8, actually number 9, I
guess, is the distance of the facility from the
adjacent property proposed for development.
There’s some instruction here on how to mea-
sure that distance. * * * It finishes with,
"Thank you for your timely submittal of this
information."

Do you recall that Tri County responded to that
letter, sir?

A. They did not.

Q.

A.

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> 2 > ©

96

Okay. Directing your attention to the request
concerning truck traffic, * * * was there a
reason for asking that question, sir?

Well, originally, when we first looked at the
site in their original application, * * * we
weren’t concerned too much with truck traffic
because it was our understanding that there
were no residences nearby.

However, through this meeting on Septem-
ber 20, we found that there were going to be
the proposed housing project. We also went
out and actually looked at the site and found
that there were residences directly across the
street from it. So we were extremely con-
cerned about trucks going back and forth, both
from a health, or public health standpoint and
from a public safety standpoint. * * *

We were of the understanding that the clos-
est residence was 700 feet away, which would
put it down here or out here somewhere (indi-
cating).

What was the basis for that understanding?
The letter we received during our initial review
of Tri County’s environmental impact screening
form. They stated that the closest residence
was 700-feet away.

And, in fact, how far away is the closest resi-
dence?

Right here, probably 50 to 70 feet directly
across the street from the entrance.

And what other residences would you estimate
aré closer than 700 feet away?

I would say every residence * * * that’s in blue
here is within 700 feet. And possibly these

97

yellow residences too; I haven’t measured that,
so I don’t know. * * *

Q. Why were you concerned about trucks on

Bryant Street?

. Well, for health reasons and safety reasons.

You have homes, you have children that are
using the streets all the time.

There’s a park here. Kids would be cross-
ing the street to get to the park all the time.
We’re concerned about safety there.

As I stated before, we have the trucks going
by with contaminated soil in them. That con-
tamination tends to volatilize out of the soil,
and it would be into the atmosphere, what we
call the ambient atmosphere around the area,
and it could possibly impact the health of the
people in the area.

[DE 112, pp. 435-36, 439-40 -- Cross Examination]:

Q. You concluded, based upon your review and

your discussions with other DCRA officials,
that this project would not eminently and sub-
stantially affect the public health, safety, and
welfare; is that correct?

A. That’s correct. * * *
Q. Are you aware that the -- in their pleadings in

this case, the District of Columbia has admitted
that they did an extensive review of the plain-

- tiff’s application for this facility including visits

to the site? * * *

A. I suppose I am, yes. * * *
Q. In your opinion, would there be an escape of

the contaminants from the petroleum -- the soil

‘

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98

with petroleum in it into the atmosphere from
this facility?

. If the soil was kept inside the facility, in my

opinion, there would not be an adverse emis-
sion of contaminants from the soil.

So that the facility itself would not have -- the
operation of the facility would not have an
adverse effect on the homes that are surround-

ing the property?

. As far as keeping the soil inside the building?

That’s correct.

And the operation, the intended operation was
for the plant and the soil to be inside the build-
ing?

That’s what I understand, yes.

When this permit was suspended by Mr. Cross,
Mr. Cross directed you to write to Tri County
Industries and to get more information; is that
correct?

I don’t know if it was Mr. Cross or Mrs. Bish-
op that directed me to, but one of them did.
That was the reason that you prepared and sent
out your letter of October 15, 1993, -

That’s correct. * * *

Would items 1 through 9 in that letter, Mr.
Sweeney, normally have been looked into by
DCRA in connection with their application --
with the application for a building permit that
Tri County filed?

We expect someone to ask these questions, yes.
Someone from DCRA?

Yes.

Before you sent this letter out to Tri County
requesting further additional information, did
you ask anyone in DCRA regarding their inves-

A.

99

tigation to see if they already had this informa-
tion?
Not that I can recall, no. * * *

[DE 112, pp. 432-35, 441-42 -- Cross Examination]:

Q. Mr. Sweeney, isn’t it true that all of your

>

O> O> O>

O> CPO >

concerns about this project are matters that
should be considered when a building permit
application is filed?

Yes

You yourself do not review issuance of build-
ing permits; is that correct?

Only one very small portion of it.

You did not review the Tri County Industries
application for a building permit?

No, I did not.

What you did, essentially, I think you testified,
was to coordinate the review of the different
branches of the Department of Consumer and
Regulatory Affairs?

Different branches within the Environmental
Regulation Administration of the Department of
Consumer and Regulatory Affairs.

If you would take a look at Defendant’s Exhibit
No. 6, what is that, please?

That is an application for construction permit
on private property.

When was that application filed?

July 1, 1992.

That’s the Tri County application for this pro-
ject?

That’s correct.

Okay. And the form of this application is on
the last page, they have various departments

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100

that have to sign off indicating their approval;
is that correct?

That’s correct.

Does your signature appear anywhere?

Yes, it does.

Where?

Under number 6 for Environmental Regulation
Administration, where it’s checked “environ-
mental policy review.”

. When did you sign off on this?

November 6, 1992.

. So from an environmental policy review stand-

point, you approved on November 6 the issu-
ance of this building permit?

Based on the information we had at the time,
yes.

Okay. During this time, you also knew, did
you not, that dump trucks were going to be
carrying the soil into this facility?

Yes, I did.

And you knew from the application that the
plant intended to treat approximately 75,000
tons of soil on an annual basis; is that correct?
Where on the application does it say that?
Well, why don’t we look at Defendant’s Ex-
hibit 10. * * * Page 3. * * * What does that
indicate?

It indicates that there will be a quantity of
74,880 tons per year.

. Okay. So when you signed off on this applica-

tion, you knew, A, that they were going to use
dump trucks, and you knew, B, how much soil
they intended to process; is that correct?

>

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101

. No, that’s not correct. I had not seen this

permit for constructing and operating process
equipment at that time.

Okay. Well, why didn’t -- did you request to
see it?

. No, I did not.

Who had it?

Who had it at that time? Mr. Wamsgans from
the Air Resources Management Division.
And he was -- that’s part of DCRA also?
That’s part of DCRA. His Division was re-
viewing this permit application. * * *

Are there other means of access to the property
other than Bryant Street?

I didn’t search for any; but as far as I can tell,
there are few, if any.

What about Lawrence Avenue?

I suppose you could maybe come off of, I
guess, Montana Avenue or 18th Street and get
onto Lawrence, I’m not sure.

Why don’t you tell the members of the jury the
type of businesses that are on Lawrence Ave-
nue. Are they homes?

As far as I know, there are not homes there.
What are there?

Junk yards, trash facilities; I don’t know every
one down there.
Commercial and industrial businesses?

It’s commercial and industrial.

Do you know if the applicant planned on hav-
ing the dump trucks covered when they came
into the facility?

According to the information from the appli-
cant, yes, they would be covered with tarpau-
lin.

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102

Do you know where the soil equipment was to
be located within the building?

Exactly? No. * * *

Did you ever observe any trucks go into the
facility?

At the time I was there, no.

So you don’t know which route they actually
took, do you?

No, I don’t.

112, pp. 442-43, 446 -- Redirect Examination]:

. Mr. Sweeney, in your letter of October 15,

1993, * * * you requested information concern-
ing the proposed routes of trucks through the
neighborhood into and out of the facility. * *
* And why did you request that information,
sir?

“Cause we didn’t have it. * * *

And if Tri County planned to burn 25 tons per
hour roughly, how many trucks would come
through that neighborhood each day? * * *

. 20-ton truck? 25 tons per hour? A little over

a truck per hour. * * *

THE COURT: If the District had already
decided that there was no environmental impact
Statement requirement, why is it that you re-
ferred to a provision of this environmental
impact statement requirement statute to send
this letter out?

THE WITNESS: I think further on in the
law it talks about supplemental information;
and if we determined that there may be other
information or new information concerning the

Testimony of BAR’s Executive Officer Francine James

103

project, we can go back and request further
information from them, the applicant.

THE COURT: Did you have any authority
for asking the questions in that letter of Octo-
ber 15, 1993 except the authority vested in this
Title 6, Section 983?

THE WITNESS: None that I know of.

[DE 112, pp. 448-50 -- Direct Examination]:

Q.

A.
-Q.

* * * And vou’re executive officer of what
office?

The Board of Appeals and Review. ** *
Pursuant to the regulatory scheme of the Board
of Appeals and Review, it there a provision *
* * for emergency appeals?

A. There’s a provision for the emergency appeals

in the rules of procedure. * * *

What about stay orders, stay orders of orders
issued by agencies; is there provisions for that
as well there?

. There is a provision for the chairperson to hear

a Stay order only if it has been denied by the
agency. * * *

THE WITNESS: Motions for stays are not
set down for hearing. Motion for stays are
reviewed by the chairperson. He determines
whether he would grand [sic] the stay. If he
does not grant the stay within 30 days, then the
decision from the director of the department
becomes final.

104

[DE 112, pp. 451 -- Cross Examination]:

Q.

A.

Q
A

Isn’t it true that it would be speculation on
your part to give us an opinion as to how long
it would take an emergency appeal to be re-
solved by the board?

To be resolved?

Yes.

- Or to be heard?

Q. To be resolved.
A. Yes. That’s speculation.

Colloquy: Court and Counsel

[DE 112, pp. 452-54]:

THE COURT: This is Siess? * * * This is
the expert?

MR. BOLDEN: Yes, sir. * * * Well, it is
relevant to two things. First of all, the
plaintiffs have put on a person who explained
the process. He concluded his testimony with
that the process is a safe -- as safe as pumping
gasoline at a gas station.

THE COURT: He did say that.

MR. BOLDEN: I think that it -- fairness
would dictate the District have an opportunity
to put on its views as to * * * whether or not
it is as safe as pumping gas in a gas station. *
** Secondly, it is our view that certain kinds
of -- certain parts of this project would have
required that it be stopped anyway.

THE COURT: ’ Like what?

MR. BOLDEN: Well, the process, the
closeness of the proximity of the facility to the

105

residential facilities, residential homes, the
trucks going through the neighborhood.

THE COURT: Well, you’ve got a little
problem. You just had a witness on the wit-
ness stand who said he knew of no authority
for asking the questions in the October 15 letter
except under the D.C. Code section.

I don’t read the D.C. Code section the way
he reads it. The D.C. Code section relates to
environmental impact statements, period.
Environmental impact statements were waived,
were they not?

MR. BOLDEN: They were waived based
upon the information that DCRA had at the
time. The Court will recall there has been
evidence that some of the information was
incorrect, seme of the information was mislead-
ing, and thai there was -- there were new --
new information came to us which showed --
dictated that we proceed in a fashion which
protects the residents, that there was --

Proposed Testimony of Alfred A. Siess
(DE 112, pp. 455-62 -- Direct Examination):

A. I’m presently employed as an economic envi-

ronmental consultant, and my background is a
degree in civil engineering, and I have an MBA
and 40 years of experience.

. With respect to the process of cleaning contam-

inated soil, are you familiar with that, sir?

A. Yes, I am.
. Okay. And how familiar are you with that

process, sir?

> OF

106

. Well, I’ve been involved in a great many -- as

a consultant in a great many of these low-tem-
perature thermal treatment unit applications. I
have reviewed applications for probably two
dozen or more companies, including about six
or eight in Pennsylvania that use Gencor
Thermotech equipment.
And are you familiar with the process?
Yes, I am.
Would you just briefly * * * describe the pro-
cess for --
Well, the process basically is considered as a
viable alternative for doing on-site remediation
of certain very well-defined contaminated soils.
It is basically just a process where you drive
off the volatile compounds and then treat them
in some way, either by passing the gases
through a carbon filter or by burning them in
an afterburner, oxidizing the gases.

The process is not suited for many different
types of contaminated sites, including some
petroleum-contaminated sites.

. There’s been testimony here that the processing

of contaminated soil through this process is as
safe as pumping gasoline in a gas station. Do
you agree with that, sir?

Absolutely not. First of all, the -- pumping
gasoline at a service station is not necessarily a
very safe endeavor. * * *

The remediation, using any type of system
that requires excavating the soil, and particular-
ly systems that require adding heat to the soil
such as low-temperature thermal treatment, add
a host of other problems that make it much

107

more serious of a threat to public health and
the environment. * * *

Well, first of all, it is generally recognized
that the thermal treatment of petroleum-contam-
inated sites which came about in 1984 when
EPA established their underground storage tank
program, is generally considered that the treat-
ment should be on-site with mobile units.

The reason for that are, first of all, if there
were no dangerous materials in the products,
the gasoline and whatever, there would be no
need to remediate at all.

But the UST program established that left in
the ground, petroleum products are a grave
cause for concern. That happens several differ-
ent ways. One, the volatile organic compounds
will be emitted to the atmosphere even from
the type soils without any -- any action; but
mainly there’s a concern that the volatiles will
migrate down to the groundwater, and for that
reason, it is necessary to take action where you
have contaminated soils.

If you’re going to use a system such as low-
temperature thermal treatment, even on site, it
is more of a problem than come of what they
call in-situ measures, where you actually reme-
diate without excavating. It is much preferred
to use in-situ processes such as air sparging or
vacuum extraction in order to avoid excavation.

If you excavate these petroleum-contaminat-
ed soils, you immediately have what is called
airstripping, where the volatiles are released to
the environment anyway.

. Have you reviewed the application submitted

by Tri County in this case? * * *

>O

>

108

Q. Such as it was. It was not very complete, but

I did review it, yes sir.

. Why do you think it was not complete, sir?

Well, there are a number of such reasons.
They mention, for example, that they have
provided stack tests with their application. On
further review, it appears that the stack test
may be completely meaningless.

First of all, they were not conducted * * *
at the Bryant Street site because there was no
equipment there at all.

I also understand that they were sent to the
Bryant Street site and stored on site.

What was that, sir?

The contaminated soil sample that was going to
be used for the stack test. My understanding is
that they were sent to the site and remained on
the site for a long period of time. This would
be completely inappropriate for running any
kind of a meaningful stack test.

First of all, it may or may not be represen-
tative of the types of soils they would be deal-
ing with, but also, chances are it would be
airstripped to the point of not giving a mean-
ingful comparison of the problem. * * *

The airstripping of the contaminants in
transportation and in handling again at the site,
and in handling again when they are introduced
to the thermal processing unit, the Midwest
Institute has done studies where they have
deliberately taken soil at a central treatment
unit and spiked the soils with volatile organic
compounds.

They have found that from the time they
have spiked the soils until they finish loading

PFO FF 0

109

them into the feeder hoppers or conveyor belts
for the treatment units, they have lost as much
as 95 percent of the volatiles to the atmo-
sphere. * * *

When you refer to airstripping, what do you
mean by that, sir?

The volatile compounds * * * evaporite [sic]
from the soil.

What is the effect of that?

Well, you’re dealing with hazardous chemicals,
xylene. toluene, benzene, all products of gaso-
line.

There are a total -- the American Petroleum
Institute did studies on low-temperature thermal
treatment. They * * * identified 59 listed
hazardous constituents in petroleum refinery
products, in addition to finding that low-tem-
perature thermal treatment was completely inef-
fective in dealing with heavy metals.

These gasolines and other contaminants on
UST sites contained about 12 or 13 very toxic,
heavy metals, including lead, cadmium, and
other constituents.

Low-temperature thermal treatment only
aggravates the problem because the API found
that the lead was being concentrated in the
control equipment, in the bag houses.

The process that Gencor Thermotech uses *
* * sends most of the soil directly from the
drier to the cooler, where it becomes, quote,
"clean soil" and is what they call product.

But also the dust and the gases that are
driven off at the drier are routed to a bag
house, and the dust is collected in the bag
house, where it accumulates lead and other

>

110

heavy metals, and then it is returned to the so-
called clean soil.

So you’re actually accumulating products

and then returning them to the so-called clean
soil.
Is there any danger of spontaneous combustion?
There is. * * * What I was getting on this
was that my understanding was that at some
sites, the Gencor equipment uses Cedar Rapids
equipment for some of the things like the bag
houses. Cedar Rapids * * * have stated that it
is very dangerous if you allow the volatile
gases to approach 25 percent of the lower
explosion limit in these units; and there have,
in fact, been fires and explosions in low-tem-
perature thermal treatment plants. So that’s a
related worry. * * *

[DE 112, pp. 462-65 -- Cross-Examination]:

Q.

A.

Which DCRA officials that approved the permit
in this case have you spoken with?

I have not spoken with anybody, to my knowl-
edge. I said hello to Hampton Cross.

You’re aware that DCRA reviewed this project
in terms of the environmental effects that could
be expected; is that true?

That’s true, sir. What I have stated when I
submitted the expert testimony form was that I
believe that they were -- they were handicapped
by not having complete information in the
application and that, indeed, they were correct
in asking for more information. * * *

111

Q. Well, if they didn’t have the necessary infor-

A.

oO,

mation, * * * isn’t that their responsibility to
go out and get it before they issue a permit?

I think that’s a legal question. I do know that
in Pennsylvania, we have very stringent re-
quirements for obtaining permits for this type
of work.

Every one of the applications that use Gen-
cor equipment, and also several that use Tar-
mac equipment and Aztec equipment, every
one that I’m aware of that -- every one that I
worked on, which is more than a dozen in
Pennsylvania, was rejected because of not
meeting requirements for protecting the health,
safety, and welfare.

Uh-huh. In this particular case, you've indicat-
ed that the machine is not suitable for certain
types of heavy metals; is that correct?

That’s correct. sir.

And if a company tests the soil before it brings
it to this thermal desorption plant, it can evalu-
ate whether or not it has the presence of heavy
metals; is that correct?

. It is theoretically possible to conduct the proper

site analysis to determine the levels of total
metals and the levels of different metals, yes.
*“**

* ** If you have a proper sampling, a sam-
pling protocol being followed, you can be
pretty confident in terms of the results of those
samples; is that correct?

Usually the site investigations are determined
before you decide on the method that you're
going to use for remediation. * * * The reason
for that is that low-temperature thermal treat-

”
{ 112

ment is not the proper method to use even for
on-site remediation, depending on the soil
characteristics and the contaminants that are at
issue; but when you go to the central thermal
treatment of a great many different sites, the
problem then becomes how does the treater, the
remediator, ensure that the generators are not
sending hazardous wastes to them.

In my experience, the protocols for deter-
mining at the treatment site whether or not the
materials that are being received are, in fact,
nonhazardous have left a lot to be desired. * *
*

In Pennsylvania, we have questioned the
people who say they are the treatment people
and that they will ensure that no hazardous
materials enter the processor. We have asked
them simply, how do you do that. The proto-
cols that are in effect usually say that you have
to take a TCLP sample from six locations in a
500-ton pile of waste at a depth of six inches or
a foot.

It is simply impossible, in my opinion, to
have a proper testing at the site when you're
taking four ounces of soil from a 500-ton sam-
ple.

[DE 112, pp. 466-78 -- Colloquy: Court and Counsel]:

MR. EMIG. As to the safety comment by
Mr. Dishian, I think that was brought out
during cross-examination. But the real problem
I have with Mr. Siess’ testimony, Your Honor,

is Mr. Bolden’s client has admitted in this case
that it has done a full and complete review of

113

the effects of this project, and what we have
with Mr. Siess is an environmental point of
view saying, well, this could be a problem, this
could be a problem, these aren’t the best ma-
chines in the world.

Well, if there’s a violation of the permit, I
think that’s speculation. If they start bringing
any hazardous waste, they don’t sample
enough, that’s a technical violation of their
permit.

But I don’t see really where he -- his evi-
dence, testimony, goes on any of the issues in
this case. In terms of mitigation, damages, or
mootness, I don’t think it really is specific to
a

not spoken with the regulators to
know what they did. I’m just not sure there’s
relevance that would help the jury. It would
just prejudice them to the extent of bringing in
opposition to a project. * * *

THE COURT: * * * What is his testimony
going to do by way of assisting the jury to
understand the issues in the case? That’s what
expert witnesses are for.

MR. BOLDEN: Well, first of all, he’s
going to explain the process from our perspec-
tive. And he is going to show why a govern-
ment should be concerned about that process
and why additional information was necessary,
and, in his view, why additional proceedings
on this matter were necessitated.

Contrary to what counsel points out, Tri
County had not completed the testing protocol;
* * * they did not have the certificate of occu-
pancy. So there were still considerable steps to

114

go before this was an up and running and
operational business.

And we believe, we maintain that the Dis-
trict, given new evidence, given issues that
indicated there had been some misrepresenta-
tions in applications, should have second look
at this and either try to resolve them or go
through the process to halt the project. That’s
essentially what our position is.

THE COURT: Let me just rehearse where
we are here. On December 22, 1992, the
administrator of the Department of Consumer
and Regulatory Affairs Environmental Regula-
tory Administration advised Mr. Selzer that an
environmental impact statement for the project
would not be required pursuant to the condi-
tions of the District of Columbia Environmental
Policy Act of 1989.

The letter said that even though an environ-
mental impact statement is not required, the
project is still governed by all other applicable
District and federal laws and regulations and
will be subject to normal reviews during the
permitting and construction processes; and it
said that construction and operation of the
facility would be governed by the special con-
ditions included in approval number 3411
issued by the Air Resources Management Divi-
sion on December 11.

Those special conditions, which are Plain-
tiff's Exhibit 3, approve the construction and
operation of a 25-ton per hour portable soil
remediation unit, including a rotary kilh, a bag
house, and an afterburner, in accordance with

115

submitted plans and specs subject to 12 enu-
merated conditions.

Now the enumerated conditions include, by
the way, that the approved facility would not
be operated to treat hazardous waste materials,
including but not limited to organic solvents,
PCBs, PVCs, but would be permitted to pro-
cess only soil contaminated with gasoline,
diesel oil, fuel oil, or kerosene.

So all this business about heavy metals that
Mr. Siess had to talk about seemed to be off
the reservation.

Now, what I hear Mr. Siess saying, essen-
tially, is that they shouldn’t have issued this
permit. Enlightened places like Pennsylvania
and California don’t do this. But he’s not in
Pennsylvania or California, he’s in the District
of Columbia; and they did do that. They did
issue this.

Now, I’m sorry if my question to Mr.
Selzer [sic] about what legal authority he had
for asking his -- for writing his letter gave you
an answer you didn’t want to hear, but I
haven’t heard anybody say yet what authority
the District had for reopening in that October
15 letter the questions that form the basis for
the -- for your argument here really that when
push came to shove, the District was going to
jerk this -- this permit. That’s your Carey
versus Piphus thing.

But unless the District of Columbia acted
ultra vires, I haven’t yet been shown how they
could have reversed course on this process,
having granted the -- having granted a permit
on December 11, having waived the air quality

116

control on December 22, having issued a build-
ing permit.

Now I will grant you the possibility that a
full-scale legal proceeding, perhaps one even
brought by the community requiring some -- or
demanding some reevaluation of this process,
raising questions like the question Mr. Siess is
bringing here, ventilating the objections of the
community to dump trucks driving past child-
ren’s parks, raising the specter, as you tried to
do in your cross-examination, that who knows
whether the truckers would put those tarps on
the trucks when they really come through or
not -- I would grant you that the proceeding of
that kind might have had the effect of pulling
this permit.

After-acquired evidence, a proceeding for
fraud in saying it wasn’t going to have much
vehicular traffic, just a few employees; a pro-
ceeding for fraud; you told us there weren't
going to be any houses within 700 feet. Look
at all these houses; all that might have hap-
pened. But it didn’t happen. * * *

I am going to hold that Mr. Siess’ testimony
is -- let me just review it. He was going to say
that this process is not suited for some sites,
but that’s not the issue we’re dealing with here,
because we’re dealing with dirt that is already
going to be brought from other sites.

He’s going to say treatment should be on
site. Well, maybe it should, but this treatment
plan was approved for the District of Columbia
-- by the way, his testimony is not time limited,

so you don’t have any idea whether he’s talking
about 1993 or 1998, and that may make a

117

difference on whether in-situ treatment is more
de rigueur today than it was in 1993.

I notice one of your experts -- | think it was
DiRenzo -- had in his report something about
this new biological process for eating up the
little petroleum things. Well, I can remember
from my days in private practice, they were
just beginning to talk about using these
enzymatic ways of doing third-stage recovery
from oil wells and that sort of thing, and that’s
fairly new. I don’t know if they were doing it
in 1993.

He said the stack tests were meaningless
because they were not conducted at Bryant.
Well, the conditions of the grant, of the operat-
ing permit, were that there be stack tests con-
ducted at Bryant. So that doesn’t help us any.

Soil -- the soil samples would be airstripped
as they were taken out of the hole. Well, that
doesn’t affect the neighborhood -- or air-
stripped by transit -- that doesn’t affect the
neighborhood, except in the last couple of
blocks.

Airstripped by being handled inside the
building? Well, you have Sweeney saying
whatever is in the building is okay. He says
waste handling is a problem if you send it to
central treatment plants.

I guess that’s what I’ve been talking about.
He talks about heavy metals, xylene, toluene,
benzene. I guess those are all constituent
molecules of the basic gasoline that we’re
talking about, but they have covered -- as for
the spontaneous combustion, that’s a -- I don’t

118

mean to diminish Mr. Siess’ testimony, but
that’s an imaginary horrible.

I’m going to find that his testimony is whol-
ly irrelevant. * * *

I'll tell you where it goes from there, Mr.
Bolden. I think it segues into a ruling * * *
that I am not going to permit the jury to find
that the District of Columbia would * * *
ultimately have denied the permit for this build-
ing to go forward, because I don’t think there’s
any other basis for it.

Now, that does not take * * * out of the
case the citation, stop work order, failure to
pay the fine, failure to answer question, which
I think of as analytically separate from this --
the public health and safety question.

But I think there is no evidentiary basis on
which this jury can determine that -- that is,
there is no proper evidentiary basis -- and I’m
not going to let Siess -- Siess’ testimony would
not add to it -- no proper evidentiary basis on
which this jury could find that in a Carey
versus Piphus kind of finding that the District
would have ultimately refused permission to go
ahead with this project. * * *

MR. EMIG: I’m going to just put Mr.
Selzer on for five minutes, Your Honor.

THE COURT: What’s he going to say?
What's he going to rebut?

MR. EMIG: He’s going to rebut the access
on Bryant Street and also the issue of the cov-
ered trucks.

MR. BOLDEN: Sorry, what was that?

THE COURT: Covered trucks.

119

MR. EMIG: The dump trucks being cov-
ered. I think there was testimony by Mr.
Sweeney on that.

THE COURT: Well, if I’m ruling that
issue Out, what’s the point of any of that rebut-
tal?

MR. EMIG: That’s correct. Then in that
case ‘cause * * * the second question I would
have, then, would relate to the October 15
letter, and also the follow-up to the December
6 letter of 1993, because Mr. Cross in the
December 6, 1993 letter says, I’m going to
suspend or I’m going to revoke because, A,
you didn’t respond to the October 15 letter, and
secondly, because of likely significant environ-
mental impacts.

I’m not -- that’s really a prejudicial state-
ment. He has no basis for it, and I don’t think
counsel should be able to argue that as a basis
-- either of those as a basis for suspension.

THE COURT: I agree with that. What
do you want to do with the exhibits?

MR. EMIG: I'd have it stricken and submit
it to the jury. Page 2. * * *

THE COURT: * * * I’m going to grant
the motion to strike the October 15 and the
December 6 letters. I’m going to tell the jury
that -- I don’t know exactly -- basically. I’m
going to tell the jury that the health and safety
questions are out of this case and not to be
determined by them * * *.

I’m still undecided as to what my ultimate
decision is on the lost future profit question.
But at this moment, I’m disposed to let the jury
decide it in the first instance.

[DE 114, pp. 496-99 -

120

[DE 114, p. 493: Colloquy: Court and Counsel]:

MR. BOLDEN: * * * And bear in
mind that this case is not a traditional compen-
satory damage case. Mr. Emig filed that in
Superior Court. That was dismissed.

This is a civil rights case, and it is a proce-
dural due process case, so it is a horse of a
different color from cases in which someone is
injured and they go to damages.

motion for judgment as a matter of law):

MR. BOLDEN: * * * Your Honor, I
would like to renew the motions that the Dis-
trict made at the close of plaintiff's case con-
cerning mitigation of damages and the issue
going to future profits. I will not argue it
again, as the Court has appeared to have ruled.

I would like to raise one other area which I
believe necessitates the dismissal of aspects of
the plaintiff's damage claim.

As the facts have shown on September 20,
1993, there was an oral suspension, a verbal
suspension of the permit of Tri County to
build. Subsequently, on September 22, there
was issued a stop work order, a valid stop
work order which wasn’t challenged in any
way. It had all the force and effect of the laws
of the District of Columbia behind it.

On October 25 there was an order issued by
the Office of Adjudication of the District of
Columbia which suspended by operation of law

Defendants’ renewal of their

121

Tri County’s permit to build and had all the
force of laws of the District of Columbia.

Your Honor, none of these orders are dis-
turbed. They remain in place to this very day.
It is the District’s position that, as a matter of
law, Tri County is entitled to no more than
damages that flowed frdm the * * * September
20 suspension, which has been determined by
the Courts to be invalid to September 22,
which is the date of the stop work order. That
stop work order cleared the deck of any dam-
ages that Tri County is entitled to; but even if
the Court determines that the September 22
stop work order did not clear the deck, clearly,
the order issued by the Office of Adjudication
on September [sic] 25 cleared the deck of any
omg es that Tri County would be entitled to.

* *

THE COURT: Well, Mr. Bolden, I hear
that argument. It is -- I have to say -- a strong
argument. It may be an argument that will
persuade the jury that by some -- either on a
mitigation theory or on your version of the
mitigation theory, which is the Carey versus
Piphus theory, this thing would never have
been built anyway, that they should not award
more than nominal damages.

* * * [I]f the jury returns a verdict in favor
of plaintiff in a substantial amount of money,
I’m going to have to reconsider your argument
as I have, of course, the option to do under
Rule 50 and determine whether a reasonable
jury could have found what they found.

I’m going to abide that event and see what
the jury says.

122

[DE 114, pp. 500-01. Court directives to jury.]):

Now, before we begin the arguments of
counsel, I want to tell you about some of the
evidence you’ve heard which I have now strick-
en from the record and you are not to consider
it. It is a little hard to unring bells, as they
say, or unscramble eggs, but you are going to
be instructed not to consider several items that
* * * you have heard about.

They all involve what I will call the health
and safety aspects of this project.

I have stricken from the record Defendant’s
Exhibits 8 and 9.

(Defendant’s Exhibits Nos. 8
and 9 were stricken.)

THE COURT: Those are the two letters
from the District of Columbia government to
Tri County, October 15 and December 6,
1993, asking for follow-up information and
informing them that they would be suspended
if they didn’t give that information.

I have also stricken some of the testimony
you've heard. The testimony of Mr. Sweeney
that you heard yesterday about the fact that
there were houses 50 to 75 feet away; the
testimony of Mr. Sweeney about truck traffic
and the noise of truck traffic; the testimony of
Mr. Sweeney about his concern that if the
trucks came through without covers on them,
there would be volatized chemicals; and there
was also testimony in the plaintiff's case on
that general subject.

’ You remember Mr. Dishian who testified
that this soil contaminated with petroleum

: 123

products was no more dangerous than pumping
gas? I’m striking that testimony.

There was testimony from several witnesses,
Mr. Selzer -- Mr. Selzer right here -- Hampton
Cross, and Mr. Sweeney, all testified about
whether a transportation plan had been handed
to Mr. Cross. That testimony is stricken.

So, ladies and gentlemen, in effect, all * *
* of the testimony before you on the health and
safety aspects of this project have been stricken
from the record because I have determined
after hearing all the testimony, as a matter of
law, that the permitting process fully consid-
ered those issues and resolved them.

So you are not to consider the health and
safety issues that have been raised in this case.

JURY INSTRUCTIONS -- EXCERPTS
[DE 114, pp. 539-542]:

On the first question, the law requires that an injured
party take all the reasonable steps it can to avoid further
injury and reduce its loss. Tri County may not recover
damages for any portion of its injury which it could have
avoided through the exercise of reasonable care and prudence.

In determining whether plaintiff’s conduct was reason-
able, you may take into account the evidence concerning the
circumstances as they reasonably appeared to Tri County at
the time.

The District asserts that Tri County, by failing to pay
the $500 fine assessed against it and by failing to appeal the
stop work order, is not entitled to any damages.

The burden of proof on this question is on the District
of Columbia. If the District of Columbia has not proven by

124

a preponderance of the evidence that Tri County acted unrea-
sonably in failing to pay the fine or take the appeal, and that
the failure to take those specific steps resulted in greater losses
than would have been the case if Tri County had paid the fine
or taken the appeal, then the District of Columbia has not
sustained its burden of proof on this issue, and you must go
on to determine the amount of damages that will fairly com-
pensate Tri County for all of its damages to its business or
property that were proximately caused by the District of
Columbia’s conduct. * * *

The law provides that the plaintiff is to be fairly
compensated for all damages, if any, to its business or proper-
ty that were proximately caused by the defendant’s conduct.

In this case, the plaintiff has provided detailed evidence
of damage amounts, but it is not necessary that the precise
amount of plaintiff's damages be proven, particularly if the
defendant’s wrongdoings have caused any difficulty in deter-
mining the precise amount.

You are not bound to accept the figures presented to
you, but neither should you speculate in any way about what
the damages might have been.

Your evidence must be based on the evidence presented
to you and not on guesswork. Your award, if any, should be
one that fairly compensates the plaintiff for the damage
proximately caused by the District’s unlawful suspension of
the building permit.

That brings us to the third question you are to deter-
mine, which is whether you find that the plaintiff has proven
by a preponderance of the evidence that the plaintiff's damag-
es should include lost profits from the business that was
planned for the Bryant Street property. And if so, how much
those profits would have been.

If you find that because of defendant’s wrongful
conduct the plaintiff was unable to earn net profits which

125

would have accrued to it but for the violation, then you may
compensate the plaintiff for that loss.

Future profits means net profits. Future profits are
determined by subtracting the costs and expenses of a business
from its gross revenues. In determining whether or not to
award plaintiff damages that include future profits, you may
consider the uncertainty which makes the success of a new
business problematical, the experience or inexperience of the
plaintiff's management in the business it proposed to do, the
competition that plaintiff would have had in the relevant
geographical area, the success or failure of other like busi-
nesses, and any other evidence in the case that in your view
bears on the issue.

You may make an award for lost profits only if you
find that there is some reasonable basis in the evidence for
determining that the plaintiff has, in fact, suffered a loss of
profits. You are not to award the plaintiff speculative damag-
es; that is, compensation for future profits which although
possible are remote or guesswork.

On the other hand, it is not necessary that the plaintiff
shall have proven to an absolute certainty that it would earn
profits and how much they would be. It is sufficient if the
plaintiff shows by a preponderance of the evidence and to
your satisfaction the amount of its lost profits.

126

[Plaintiff's Exhibit 3):

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS
ENVIRONMENTAL REGULATION ADMINISTRATION
2100 MARTIN LUTHER KING, JR. AVENUE, S.E.
WASHINGTON, D.C. 20020-5732

December 11, 1992

Glenn D. Selzer, President
Tri-County Industries, Inc.
P.O. Box 1467 ;

Beltsville, Maryland 20705

Approval No. 3411

Pursuant to the requirements of Title 20 of the District of
Columbia Municipal Regulations (20 DCMR), Subtitle 1,
Section 200, approval is hereby granted for the construction
and operation of a 25 tons per hour portable soil remediation
unit, Model 625/825, including a rotary kiln, a cyclone, a
baghouse and an afterburner at 2115 Bryant Street, N.E. in
accordance with submitted plans and specifications.

This approval is issued subject to the following condi-
tions:

1. This approval is not valid unless attached to
Form BLRA-33, Application for Permits to
Construct on Private Property, for the purpose
of obtaining a construction permit and until this
office receives a copy of the permit issued on
the basis of this approval.

127

The approved facility shall be operated solely
for testing until the test results demonstrate
compliance with applicable requirements of 20
DCMR and thereafter, it shall be operated in
accordance with applicable requirements of 20
DCMR and the following permit conditions.

There shall not be scheduled any stack emis-
sions testing until this office receives and ap-
proves a test protocol.

A test report that includes gas flow rates
(SCFM), effluent gas particulate loading
(gr/dscf), effluent temperature (°F), and sup-
ported with laboratory analysis of the effluent
gas that shows concentration of volatile organic
compounds in milligrams per cubic meter shall
be submitted to this office within 48 hours after
the test is completed.

Representatives of the Environmental Regula-
tion Administration, at any reasonable time,
may inspect the facility during and after con-
struction is completed.

There shall be no fugitive dust emission

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0379%3A05. Public record. Not legal advice.