Joint Appendix — Shell Oil Co. v. United States (Nos. 07-1607, 07-1601)

Supreme Court brief2009

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THE BURLINGTON NORTHERN AND SANTA FE RAILWAY

COMPANY AND UNION PACIFIC RAILROAD COMPANY,

PETITIONERS,

Vv.

UNITED STATES OF AMERICA, ET AL.,

RESPONDENTS.

SHELL OIL COMPANY,

PETITIONER,

Vv.

UNITED STATES OF AMERICA, ET AL.,

RESPONDENTS.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

JOINT APPENDIX

Kathleen M. Sullivan

Counsel of Record

Maureen E. Mahoney

Counsel of Record

Crystal Nix-Hines

William B. Adams

Jeffrey C. Berman

J. Scott Ballenger

Jeffrey A. Pojanowski

Derek D. Smith

Quinn Emanuel Urquhart Latham & Watkins LLP

Oliver & Hedges, LLP 555 11th Street, NW

51 Madison Avenue Suite 1000

22d Floor Washington, DC 20004

New York, NY 10010 (202) 637-2200

(212) 849-7000 maureen.mahoney@Iw.com

=" pga aaaamaa Counsel for Petitioners The

is Burlington Northern and

Counsel for Petitioner Shell Santa Fe Railway Co. and

Oil Co. Union Pacific Railroad Co.

Additional Counsel Listed on Inside Cover

PETITION FOR CERTIORARI FILED JUNE 23, 2008

CERTIORARI GRANTED OCTOBER 1, 2008

ord 005000004 b5b G4

Charles G. Cole

Bennett Evan Cooper

Steptoe & Johnson LLP

1330 Connecticut Ave., NW

Washington, DC 20036

(202) 429-3000

Roger Nober

Orest B. Dachniwsky

BNSF Railway Co.

2650 Lou Menk Drive

Fort Worth, TX 76131

(817) 352-6020

Counsel for Petitioner The

Burlington Northern and

Santa Fe Railway Co.

Cisselon Nichols Hurd

Shell Oil Company

One Shell Plaza

910 Louisiana Street

Houston, TX 77002

(713) 241-0979

Michael Johnson

Lewis Brisbois

Bisgaard & Smith, LLP

One Sanseme Street

14th Floor

San Francisco, CA 94104

(415) 362-2580

Counsel for Petitioner Shell

Oil Co.

J. Michael Hemmer

Robert C. Bylsma

David P. Young

Union Pacific Railroad

Company

1400 Douglas Street

Room 1580

Omaha, NE 68179

(402) 271-5000

Counsel for Petitioner

Union Pacific Railroad Co.

Gregory G. Garre

Counsel of Record

Solicitor General

Department of Justice

Washington, DC 20530-0001

(202) 514-2217

Counsel for Respondent

United States

Ann Ruston

Counsel of Record

Deputy Attorney General

Office of the Attorney

General

300 South Spring Street

Los Angeles, CA 90013

(213) 897-2608

Ann. Rushton@doj.ca.gov

Counsel for Respondent

Dept. Toxic Substances

Control, State of California

TABLE OF CONTENTS

Page

United States Court of Appeals for the Ninth

Circuit Relevant Docket Entries: United

States v. Burlington Northern & Santa Fe

Railway Co., No. 03-17125 ..........cscccesscesesesseeseees JA-1

United States Court of Appeals for the Ninth

Circuit Relevant Docket Entries: United

States v. Burlington Northern & Santa Fe

Railway Co., No. 038-1715 ..........ccccceseeseeeeeseeenees JA-4

United States Court of Appeals for the Ninth

Circuit Relevant Docket Entries: United

States v. Burlington Northern & Santa Fe

Railway Co., No. 03-17169 ...........scsccesscssesreseeees JA-7

United States District Court for the Eastern

District of California Relevant Docket

Entries: Atchison, Topeka & Santa Fe

Railway Co. v. Brown & Bryant, Inc., No.

1:92-cv-05068-O W W-DLLB ..............cccceceseceseeeeees JA-10

United States District Court for the Eastern

District of California Relevant Docket

Entries: Department of Toxic Substances

Control v. Atchison, Topeka & Santa Fe

Railway Co., No. 1:96-06226-OWW-DLB........ JA-32

United States District Court for the Eastern

District of California Relevant Docket

Entries: United States v. Atchison, Topeka

& Santa Fe Railway Co., No. 1:96-cv-06228-

I icicicdaicinsiictnsbaninnbilcsisnesancietiiiitiedatiniiaadiciiibiaatias JA-34

December 18, 1997 Transcript of Deposition,

Testimony of Patrick J. Reeves (excerpts)..... JA-35

March 12, 1998 Transcript of Deposition,

Testimony of George Mack (excerpts)............. JA-54

March 17, 1998 Transcript of Deposition,

Testimony of Robert W. Swain (excerpts) ..... JA-57

May 2, 1998 Transcript of Deposition,

Testimony of David Rea (excerpts).................. J A-65

May 26, 1998 Transcript of Deposition,

Testimony of William Perkins (excerpts) ....... J A-68

May 27, 1998 Transcript of Deposition,

Testimony of Richard Woolley (excerpts) ...... JA-73

October 26, 1998 Transcript of Proceedings re

USA’s Motion for Summary Judgment as to

ATSF; DOTS’s Motion for Partial Summary

Judgment as to ATSF. ...........cccccsccsssssssssesccesscees JA-75

March 30, 1999 Transcript of Proceedings, Court

Trial Day 1, Testimony of Lonnie

ITD iicitseirinahcnitcciiminishiisednnteitianineniindeiensececton JA-77

March 30, 1999 Transcript of Proceedings, Court

Trial Day 1, Testimony of John Walton,

I secretin nncctnniicntnsnintatiinsninsisiiansnansiermneceins JA-170

ill

March 31, 1999 Transcript of Proceedings, Court

Trial Day 2, Testimony of John Walton and

Robert Mandel (excerpts) ..........scsssersseeseees JA-188

April 1, 1999 Transcript of Proceedings, Court

Trial Day 3, Testimony of Robert Mandel

and Don Woody (excerpts) .........cscssesssseeeeees JA-193

April 6-7, 1999 Transcript of Proceedings, Court

Trial Days 5-6, Testimony of John Brown

(EXCEFPtS) .......-.nocerervrenesevensenessersscsersersncsenssecencese JA-199

April 13, 1999 Transcript of Proceedings, Court

Trial Day 9, Testimony of Gary Chirlin

et eich dienlititnniinrtcaricaininsittiteinicntetrienmeces J A-236

April 15, 1999 Transcript of Proceedings, Court

Trial Day 11, Testimony of Gary Leary

SI dicicicinecnccnpbintendetninnitbinntantantentamenmercceses J A-242

April 21, 1999 Transcript of Proceedings, Court

Day 14, Testimony of William H. Haverland

I atitnrcenitincsitincciineemciemneinenen J A-262

April 28-29, 1999 Transcript of Proceedings,

Court Trial Days 18-19, Testimony of John

TSE Oe J A-274

May 4, 1999 Transcript of Proceedings, Court

Trial Day 21, Testimony of Thomas

Kalinowski and Daniel Stephens

IE dibhdbcinabibeniptiidtniddiindititimnsinsdcciisccseuiestes J A-285

May 5-7, 1999 Transcript of Proceedings, Court

Trial Days 22-24, Testimony of Daniel

Stephens (eExcerpts).........cscccccscecresessrcesrccenseres JA-313

Trial Exhibits

Trial Exhibit G-4, Expert Report by

Thomas W. Kalinowski, July 13, 1998 (RR

ee iiecinestitstcnrtidicintcbiaiataiaiinatiinncinnevienene JA-343

Trial Exhibit G-6, Expert Opinions of

Daniel B. Stephens Report, July 8, 1998

(excerpts) (RR SER 265-96) .0........ccccsseeseees J A-365

Trial Exhibit G-6, Site Map (RR SER 297),

attached to Expert Opinions of

Trial Exhibit G-6, Map (RR SER 298),

attached to Expert Opinions of

SO Fe iicenintiiircaincrascikcttiteniietereiaeinciaininiieitdinaeiilaiaisaiitiniads JA-412

Fe iinet tisisitetaeananiinniinlidantintitetteaiauiias) J A-440

Trial Exhibit 1070, Shell Marketing

Agreement 1973 (Shell SER 161, 163-66) .....JA 141

Trial Exhibit 1071, Shell Marketing

Agreement 1980 (Shell SER 167-74) ............. JA-449

Page

Trial Exhibit 1072, Shell Marketing

Agreement 1983 (Shell SER 175-82) ............. JA-461

Trial Exhibit 1073, Shell Marketing

Trial Exhibit 1075, Shell Marketing

Agreement 1986 (excerpts) (US ER 933-38,

Trial Exhibit 1087, D-D® Fumigant

Inspection Summary — Brown & Bryant

(excerpts) (US ER 985-86) ............ccccccereeseeeees J A-505

Trial Exhibit 1088, Technical Audit of D-D®

Soil Fumigant Bulk Handling Facilities

(excerpts) (US ER 983-84) .........cccccssserseeeesees JA-508

Trial Exhibit 1119, D-D® Soil Fumigant

Handling and Safety Manual (excerpts)

(Shell SER 187, 189, 193, 195,

SET JA-511

Trial Exhibit 1122, D-D® Soil Fumigant

Safety Guide (excerpts)

| J A-557

Trial Exhibit 1123, Shell Chemical Outline

of General Guidelines for D-D® Soil

Fumigant Bulk Installations (excerpts)

Ee J A-569

Trial Exhibit 1127, D-D® Soil Fumigant

Inspection Summary — Brown & Bryant

(excerpts) (US ER 987, 989-91) .............ceseee JA-579

Trial Exhibit 1199, Photocopy of Purchase

Order No. 4197 (excerpts)

Ie EE dint titiictnctteiintncciinsictcicsvincrenes J A-583

Trial Exhibit 1414, Payment to Brown &

Bryant for DD Facilities Improvement

NE dit hicecisesiinianctsividoecnsiiaistalpbiiinittinennincnewes J A-584

Trial Exhibits 1464A and G-9, Remedial

Investigation / Feasibility Study Report,

Brown & Bryant Superfund Site (U.S. EPA

May 23, 1993) (combined excerpts) (Shell

SER 300-06A, RR SER 326-28, 336-37)........ J A-585

July 1999 Railroads’ Proposed Findings of Fact

I iciccitccriepscciittincigtittntsteiuinantinimineenns J A-606

January 27, 2003 Transcript of Proceedings re

me:

Motion to Amend Findings of Fact

SN cictcinictncintectintenscniabtitinntinininceinnemicntens JA-610

vii

ITEMS PREVIOUSLY REPRODUCED

In accordance with Supreme Court Rule 26.1, the

following items have been omitted in printing this

joint appendix because they appear on the

following pages of the Appendices to Petitions for

Writ of Certiorari filed on June 23, 2008 by

Petitioners in Case No. 07-1601 and Case No. 07-

1607.

United States v. Burlington Northern & Santa

Fe Railway Co.,

520 F.3d 918 (9th Cir.

Mar. 25, 2008)..............00 07-1601 at la; 07-1607 at la

United States v. Atchison, Topeka & Santa Fe

Railway Co.,

Nos. CV-F-92-5068 OWW, CV-F-96-6226

OWW, CV-F-96-6228 OWW,

2003 WL 25518047 (E.D. Cal.

July 15, 2008)............... 07-1601 at 82a; 07-1607 at 77a

United States v. Burlington Northern & Santa

Fe Railway Co.,

502 F.3d 781 (9th Cir.

ica cciitinsisenncmsenanestenctonssin 07-1601 at 263a

42 U.S.C. § 9601(1)—(20)(a) .....-eseceereeeernees 07-1601 at 3lla

42 U.S.C. § 9607(a) ........ 07-1601 at 317a; 07-1607 at 266a

JA-1

RELEVANT DOCKET ENTRIES

U.S. Court of Appeals for the Ninth Circuit

Date Filed #

02/17/2004 9

11/23/2004 24

11/23/2004 25

02/17/2005 31

02/17/2005 33

03/18/2005 42

Case No. 08-17125

Docket Text

* * *

Filed certificate of record on

appeal

** *

Filed USA’s first brief on cross-

appeal, and excerpts of records in

4 vols.

Filed DTSC, California’s first

brief on cross-appeal

* * *

Filed Burlington Northern and

Union Pacific Transp’s second

brief on cross-appeal and excerpts

of record in 2 vols

* * *

Filed Burlington Northern and

Union Pacific Transp motion to

take judicial notice of EPA order

* * *

Filed Shell Oil Company’s second

brief on cross-appeal and suppl

excerpts of record in 2 vols

** *

04/21/2005

07/11/2005

08/04/2005

09/07/2005

09/12/2005

03/16/2007

05/07/2007

101

JA-2

Filed USA’s third brief on cross-

appeal and suppl excerpts of

record in 1 vol

Filed DTSC, California’s third

brief on cross-appeal and copies of

record

* * *

Filed Shell Oil Company’s reply

brief

* * *

Filed certified record on appeal

* * *

Filed appellee Burlington

Northern and Union Pacific

Transp’s 38 pages brief

* * *

Argued and submitted to Betty

B. Fletcher, John R. Gibson,

Marsha S. Berzon

* *k *

Filed opinion: affirmed in part,

reversed in part. Filed and

entered judgment.

* * *

Filed Appellee Shell Oil Company

petition for panel rehearing and

petition for rehearing en banc

Filed Appellee Burlington

coy

07/30/2007

09/04/2007

03/25/2008

04/03/2008

109

111

113

125

128

JA-3

Northern, Appellee Union Pacific

Transp petition for panel

rehearing and . petition for

rehearing en banc

** *

Filed DTSC, California’s response

to petition opposing petitions for

en banc rehearing

Filed Appellant USA’s response

to petition opposing petitions for

en banc rehearing

Filed order and amended opinion

** *

Filed order and amended opinion.

Denying Petitions for rehearing

and en banc rehearing; (Judge

Bea dissents from order denying

petition for rehearing en banc)

** *

Filed order. The unopposed

motions to stay the mandate filed

by Shell and by the Railroads are

granted.

** *

eae ee

‘

JA-4

U.S. Court of Appeals for the Ninth Circuit

Date Filed #

02/17/2004 )

11/23/2004 19

11/23/2004 20

02/17/2005 24

02/17/2005 26

03/18/2005 33

04/21/2005 34

Case No. 08-17153

Docket Text

* * *

Filed certificate of record on

appeal

* * *

Filed USA’s first brief on cross-

appeal, and 5 excerpts of record in

4 vols.

Filed DTSC, California’s first

brief on cross-appeal

** *

Filed Burlington Northern and

Union Pacific Transp’s second

brief on cross-appeal and excerpts

of record in 2 vols

* * *

Filed Burlington Northern and

Union Pacific Transp motion to

take judicial notice of EPA order

* **

Filed Shell Oil Company’s second

brief on cross-appeal and suppl

excerpts of record in 2 vols

** *

Filed USA’s third brief on cross-

appeal and suppl excerpts of

04/21/2005

07/11/2005

09/07/2005

09/12/2005

03/16/2007

05/07/2007

JA-5

record in 1 vol

* * *

Filed DTSC; California third brief

on cross-appeal and copies of

record

* * *

Filed Shell Oil Company’s reply

brief

* * *

Filed appellee Burlington

Northern and Union Pacific

Transp’s brief

* * *

Argued and submitted to Betty

B. Fletcher, John R. Gibson,

Marsha S. Berzon

** *

Filed opinion: affirmed in part,

reversed in part. Filed and

entered judgment. [03-17125, 03-

17153, 03-17169]

* * *

Filed Appellee Shell Oil Company

petition for panel rehearing and

petition for rehearing en banc

Filed Appellee Burlington

Northern, Appellee Union Pacific

Transp’ petition for panel

07/30/2007

09/04/2007

03/25/2008

04/03/2008

JA-6

rehearing and _. petition for

rehearing en banc

* * *

Filed Appellant DTSC,

California’s response to petition

opposing petitions for en banc

rehearing

Filed Appellant USA’s response

to petition opposing petitions for

en banc rehearing

Filed order and amended opinion

* * *

Fiied order and amended opinion.

denying petitions for rehearing

and en banc rehearing

* * *

Filed order. The unopposed

motions to stay the mandate filed

by Shell and by the Railroads are

granted.

* * *

JA-7

U.S. Court of Appeals for the Ninth Circuit

Date Filed #

02/17/2004 7

11/23/2004 17

11/23/2004 18

02/17/2005 22

02/17/2005 24

03/18/2005 31

04/21/2005 32

Case No. 03-17169

Docket Text

* * *

Filed certificate of record on

appeal

* * *

Filed USA’s first brief on cross-

appeal and excerpts of record in 4

vols

Filed DTSC, California’s first

brief on cross-appeal

* * *

Filed Burlington Northern and

Union Pacific Transp’s second

brief on cross-appeal and excerpts

of record in 2 vols

** *

Filed Burlington Northern and

Union Pacific Transp motion to

take judicial notice of EPA order

* * *

Filed Shell Oil Company’s second

brief on cross-appeal and suppl

excerpts of record in 2 vols

* * *

Filed USA’s third brief on cross-

appeal and suppl excerpts of

04/21/2005

07/11/2005

09/07/2005

09/12/2005

03/16/2007

05/07/2007

JA-8

record in 1 vol

Filed DTSC, California’s third

brief on cross-appeal and copies of

record

* * *

Filed Shell Oil Company’s reply

brief

* * *

Filed appellee Burlington

Northern and Union Pacific

Transp’s brief

* *

Argued and submitted to Betty

B. Fletcher, John R. Gibson,

Marsha S. Berzon

* * *

Filed opinion: affirmed in part,

reversed in part; filed and

entered judgment.

* * *

Filed Appellee Shell Oil Company

petition for panel rehearing and

petition for rehearing en banc

Filed Appellee Burlington

Northern, Appellee Union Pacific

Transp’ petition for panel

rehearing and _ petition for

rehearing en banc

07/30/2007

09/04/2007

03/25/2008

04/03/2008

JA-9

* * *

Filed Appellant DTSC,

California’s response to petition

oppysing petitions for en banc

rehearing

Filed Appellant USA’s response

to petition opposing petitions for

en banc rehearing

Filed order and amended opinion

* * *

Filed order and amended opinion.

Denying Petitions for rehearing

and en banc rehearing (Judge Bea

Dissents from Order denying

Petition for rehearing en banc)

* * *

Filed order. The unopposed

motions to stay the mandate filed

by Shell and by the Railroads are

granted.

* * *

JA-10

RELEVANT DOCKET ENTRIES

U.S. District Court for the Eastern District of

California

Case No. 1:92-cv-05068-OW W-DLB

- Date Filed #

12/09/1992 20

03/05/1993 31

05/24/1995 513

05/24/1995 514

Docket Text

* * *

First amended complaint filed

* * *

Answer to lst amended complaint

and counterclaim by defendants

Fred R Bryant, Ed A Brown,

John H Brown, Brown & Bryant,

Brown & Bryant Inc, Vernon A

Wilson against plaintiffs Southern

Pacific, Atchison Topeka

* * *

Motion for partial summary

judgment on the issue of joint and

several liability at Arvin by

Plaintiffs Atchinson Topeka and

Southern Pacific

Memorandum of points and

authorities by plaintiff Atchison

Topeka and Southern Pacific in

support of motion for partial

summary judgment on the issue

of joint and several liability at the

Arvin Site

* * *

05/24/1995

07/17/1995

09/11/1995

11/15/1995

523

575

578

685

713

JA-11

Declaration of Thomas W

Kalinowski in support of motions

for partial summary judgment

* * &

Counter-motions for summary

adjudication of claims, and for

partial summary judgment re:

Railroad’s liability at Arvin by

deft, entdft, entclmt ete Brown &

Bryant, J Brown, E. Brown, V.

Wilson and M.J. Dupas

** *

Memorandum of points and

authorities by counter-defendant

Brown & Bryant Inc., et al in

support of counter-motion for

summary adjudication of claims

and for’ partial summary

judgment re: Railroad’s liability

at Arvin

* * *

Supplemental declaration of Dr

Thomas W. Kalinowski in reply to

Brown & _ Bryant’s joint

opposition to railroad’s motion for

partial summary judgment re:

non-liability and joint and several

liability at Arvin

* kK *

Memorandum opinion by Judge

Oliver W. Wanger granting in

01/09/1997

06/16/1998

07/06/1998

07/12/1998

846

933

934

969

JA-12

part and denying in part cross-

motions for summary judgment

on the issue of joint and several

liability at Arvin by Plaintiff's

Atchinson Topeka and Southern

Pacific

* * *

Order by Judge #Wanger

reassigning cases and relating

case(s) 1:92-cv-5068 with member

cases 1:96-cv-5879, 1:96-cv-6226,

1:96-ev-6228

* * *

Motion for summary judgment

filed by Pitf USA

Memorandum of points § and

authorities in support of motion

for summary judgment against

The Atchison Topeka and Santa

Fe Railway Co and the Southern

Pacific Transportation Co

** *

Memorandum by plaintiff in 1:92-

cv-05068 in opposition to motion

for summary judgment

x **

Memorandum of points § and

authorities by Dept Toxic

Substance in 1:92-cv-05068 in

support of motion for summary

judgment against the Atchison,

07/17/1998

08/12/1998

09/01/1998

970

985

993

JA-13

Topeka and Santa Fe Railway

Company and the Southern

Pacific Transportation Company

Amended notice of motion and

motion (terminating original

motion 933) for summary

judgment by Dept Toxic

Substance in 1:92-cv-05068

* * *

Motion for partial summary

judgment by Dept Toxic

Substance against the Atchison,

Topeka & Santa Fe Railway Co

and Southern Pacific

Transportation; memorandum of

points and authorities

* * *

Memorandum in opposition to

United States and Department of

Toxic Substance’s motions for

summary judgment by Union

Pacific Railrd in 1:92-cv-05068

* * *

Cross-motion for partial summary

judgment by Union Pacific Railrd

in 1:92-cv-05068; memorandum in

support

** *

Declaration of Daniel B Stephens

in support of Railroads’ cross-

09/01/1998

09/15/1998

09/16/1998

1000

JA-14

motion for summary adjudication

Declaration of Dr. Thomas W

Kalinowski in support. of

Railroads’ cross-motion for

summary adjudication

* * *

1007 Joint reply by pltfs USA and

1009

1010

1018

1026

Dept of Toxic Sub in support of

motions for summary judgment

against the railroads and in

opposition to cross-motion for

partial summary judgment by

Union Pacific Railrd in 1:92-cv-

05068

* * *

Declaration of John Walton in

support of USA’s motion for

summary judgment

Declaration of Gary Chirlin in

support of USA’s motion for

summary judgment

* * *

Deposition of George Mack taken

on the following date(s) 3/12/98

* * *

Deposition of John Howard

Brown taken on the following

date(s) 6/15/98

* * *

09/21/1998

11/05/1998

12/04/1998

1031

1035

1050

1051

1053

1085

1086

JA-15

Reply memorandum by Union

Pacific Railrd in 1:92-ev-05068 in

support of cross motion for partial

summary judgment

* * *

Declaration of Daniel B Stephens

* * *

Notice of motion and motion for

summary judgment by third-

party defendant Shell Oil

Company

Memorandum of points § and

authorities by third-party

defendant Shell Oil Company in

support of motion for summary

judgment

* * *

Declaration of John A Connor in

support of Shell Oil Company’s

mction for summary judgment

* * *

Response by plaintiffs Atchison

Topeka and Southern Pacific in

1:92-ev-05068 in opposition to

motion for summary judgment by

third-party defendant Shell Oil

Company

Response by plaintiffs Atchison

Topeka and Southern Pacific in

1:92-cv-05068 to Shell’s statement

12/08/1998

12/23/1998

1090

1092

1096

1100

1101

JA-16

of undisputed facts in support of

motion for summary judgment

* * *

Notice of motion and cross-motion

for partial summary judgment

against Shell Oil Company by

Dept of Toxic Sub in 1:92-cv-

05068

* * *

Memorandum of points § and

authorities by Dept of Toxic Sub

in 1:92-cv-05068 in support of

cross-motion for partial summary

judgment against Shell Oil Co

Memorandum by Dept of Toxic

Sub in 1:92-cv-05068 in opposition

to Shell Oil Company’s motion for

summary judgment

* * *

Notice of motion and motion for

summary judgment against Shell

Oil Company by Dept of Toxic

Sub in 1:92-cv-05068

* * *

Deposition of Patrick J Reeves

taken on the following date(s)

12/18/97 with exhibits

Deposition of Robert Swain taken

on the following date(s) 3/17/98

12/23/1998

12/28/1998

12/29/1998

1107

1108

1113

1123

1130

1133

JA-17

** *

Deposition of David Rea taken on

the following date(s) 5/2/98

Deposition of David Rea taken on

the following date(s) 7/11/98,

volume IT

** *

Deposition of Richard Woolley

taken on the following date(s)

5/27/98

* * *

Reply by Shell Oil Company to

the Railroads’ and Governments’

opposition to motion for summary

judgment by third-party

defendant Shell Oil Company

* * *

Reply by defendant Shell Oil

Company to response to motion

for summary judgment by third-

party defendant Shell Oil

Company

* * *

Response by Shell Oil Company

motion for summary judgment

against Shell Oil Company by

Dept of Toxic Sub in 1:92-ev-

05068

** *

12/29/1998

01/06/1999

01/29/1999

1138

1140

1141

1144

JA-18

Response by Shell Oii to the

governments and raiiroads cross

motions for summary judgment

and reply to the governments and

railroads oppositions to Shell Oil

Company Oil Company by Dept of

Toxic Sub in 1:92-cv-05068

* * *

Transcript of 10/26/98 hearing on

USA’s motion for summary

judgment as to ATSF; DOT’s

motion for partial summary

judgment as to ATSF

Reply in support of cross-motion

for summary judgment against

Shell Oil Company

* * *

Findings and recommendations

by Magistrate Judge Dennis L.

Beck recommending that

Railroads motions be granted;

that the Brown & Bryant

counterclaim be dismissed with

prejudice; that Brown & Bryant

parties Answer be stricken; that

default judgment be _ entered

against Brown & Bryant parties

as to all remaining claims of

Railroads against them in this

matter

* * *

02/19/1999

02/22/1999

03/02/1999

03/16/1999

03/19/1999

1146

1148

1151

1175

1183

1187

1188

1195

JA-19

Pretrial statement by USA

* * *

Supplement to purported pretrial

statement from cross-defendant

Shell Oil Company in 1:92-ev-

05068

* * *

Pre-trial order approved

** *

Trial brief submitted by counter-

defendant Southern Pacific in

1:92-cv-05068

* * *

Memorandum and Order: by

Judge Oliver W. Wanger re cross

motions for summary judgment

by third-party defendant Shell Oil

Company [1050-1] denied with

regard to the Arvin Site

**x*

Trial brief submitted by third-

party defendant Shell Oil

Company

Trial brief submitted by Dept

Toxic Substance

** *

Memorandum and Order: by

Judge Oliver W. Wanger motions

by the governments for summary

03/22/1999

03/25/1999

04/06/199

04/19/1999

1198

1200

1209

1223

JA-20

judgment as to liability of the

railroads for releases from the

Brown and Bryant parcel are

denied; the motions by the

governments for summary

judgment as to response costs

from the railroads for releases on

the Brown and Bryant property

are denied; the railroad’s motion

for summary judgment that they

are not liable for response costs

for releases from Brown and

Bryant property is denied

* * *

Trial brief submitted by Dept

Toxic Substance

* *k *

Supplemental trial brief

submitted by Dept Toxic

Substance re statement of claim

for past response costs

* * *

Stipluation and order by Judge

Wanger re Department of Toxic

Substances Control’s claim for

past response costs

* * *

Order by Judge Wanger re cross-

motions for summary judgment

against Shell Oil Company by

Dept of Toxic Sub, motion for

04/23/1999

04/30/1999

05/18/1999

1228

1236

1237

1257

1258

JA-21

summary judgment by third-

party defendant Shell Oil

Company and motion for

summary judgment filed by Pitf

USA all denied on issue of

arranger and operator liability

with regard to Arvin site

* * *

Motion for judgment on partial

findings by third-party dft Shell

Oil Company; and memo of points

and authorities

* * *

Joint response by USA and Dept

of Toxic Substances Control to

motion for judgment on partial

findings by third-party dft Shell

Oil Company |

Joinder by Shell Oil Co in the

railroads motion to strike the

opinion testimony of government

witness John Walton

* * *

Transcript of 3/30/99 hearing on

court trial, day 1

Transcript of 3/30/99 hearing on

court trial, day 1 testimony of

Lonnie Merryman

05/18/1999

1259

1260

1261

1262

1263

1264

1265

1266

1267

1268

1269

1270

JA-22

Transcript of 3/31/99 hearing on

court trial, day 2

Transcript of 5/18/99 hearing on

court trial, day 3

Transcript of 5/18/99 hearing on

court trial, day 4

Transcript of 5/18/99 hearing on

court trial, day 5

Transcript of 4/7/99 hearing on

court trial, day 6

Transcript of 5/18/99 hearing on

court trial, day 7

Transcript of 5/18/99 hearing on

court trial, day 8

Transcript of 4/13/99 hearing on

court trial, day 9

Transcript of 4/14/99 hearing on

court trial, day 10

Transcript of 4/15/99 hearing on

court trial, day 11

Transcript of 4/16/99 hearing on

court trial, day 12

Transcript of 4/20/99 hearing on

court trial, day 13

05/18/1999

1271

1272

1273

1274

1275

1276

1277

1278

1279

1280

1281

1282

JA-23

Transcript of 4/21/99 hearing on

court trial, day 14

Transcript of 5/18/99 hearing on

court trial, day 15

Transcript of 4/23/99 hearing on

court trial, day 16

Transcript of 4/27/99 hearing on

court trial, day 17

Transcript of 4/28/99 hearing on

court trial, day 18

Transcript of 5/18/99 hearing on

court trial, day 19

Transcript of 4/30/99 hearing on

court trial, day 20

Transcript of 5/4/99 hearing on

court trial, day 21

Transcript of 5/18/99 hearing on

court trial, day 22

Transcript of 5/6/99 hearing on

court trial, day 23

Transcript of 5/7/99 hearing on

court trial, day 24

Transcript of 5/12/99 hearing on

court trial, day 25

05/18/1999

05/19/1999

07/14/1999

07/19/1999

08/20/1999

1283

1284

1287

1311

1314

1315

1317

1318

1319

1320

JA-24

Transcript of 5/13/99 hearing on

court trial, day 26

Transcript of 5/14/99 hearing on

court trial, day 27

** *

Deposition of William Perkins

taken on the following date(s)

5/26/98

* * *

Proposed findings of fact Re:

Department of Toxie substances

control’s claim for response costs

by claimant Dept Toxic Substance

in 1:92-cv-05068

* * *

Railroads’ proposed Conclusions

of law

Railroads’ proposed findings of

fact

* * *

Proposed findings of fact by Shell

Oil Company

Proposed conclusions of law by

Sheil Oil Company

Govt’s proposed findings of fact

and conclusions of law

Response by opltfs Atchison

08/10/1999

08/17/1999

08/18/1999

08/18/199

08/18/1999

10/05/1999

1321

1323

1324

1325

1326

1327

1330

JA-25

Topeka Southern Pacific to Shell’s

Proposed findings of fact and

conclusions of law

Response by piltfs Atchison

Topeka Southern Pacific to Govt’s

proposed findings of fact and

conclusion of law

* * *

Response by claimant Dept Toxic

Substance plaintiff USA to Govt’s

Shell’s proposed findings of facts

and conclusions of law

Response by claimant Dept Toxic

Substance, plaintiff USA to

Railroad’s findings of fact and

conclusion of law

Response by third-party

defendant Shell Oil Company to

Govt’s proposed conclusions of

law

Response by third-party

defendant Shell Oil Company to

Govt’s proposed findings of facts

Response by third-party

defendant Shell Oil Company to

Railroads’ proposed findings of

fact

* * *

Transcript of 9/28/99 hearing on

05/24/2002

06/26/2002

07/09/2002

1354

JA-26

oral argument

* * *

Findings of fact and conclusions of

law by Judge Oliver W. Wanger;

judgment shall be entered in the

amount of $702,871.51 plus

interest against Atchison Topeka

& Santa Fe Railway and the

Southern Pacific Transportation

Company and in the amount of

$468,581.01 plus interest against

Shell Oil Company; Declaratory

judgment shall be entered in

favor of pitfs and against the

Railroads and Shell Oil for future

response costs at the Site in the

percentages of 9% and 6%

according to proof; the federal

government attorneys _ shall

propose a form of judgment and

lodge with the court within five

days of the service of these

findings

* * *

Lodged Judgment on decision by

the court by plaintiff

Lodged proposed order re pltfs

claims for interest, attorneys fees,

and costs of suit and re: DTSC’s

response costs by Railroads’

* * *

07/09/2002

07/10/2002

07/17/2002

08/22/2002

09/12/2002

10/25/2002

1375

1377

1381

1382

1388

1389

JA-27

Lodged judgment on decision by

the Court by Shell

** *

Lodged judgment on decision by

the court

** *

Master exhibit list

* * *

Order by Judge Oliver W.

Wanger ordering the modification

of the findings of fact and

conclusions of law to _ enter

judgment for DTSC

* * *

Motion to amend the court’s

findings of fact and conclusions of

law by Plaintiff Dept Toxic

Substance

Memorandum of points § and

authorities by Dept Toxic

Substance in support of motion to

amend the court’s findings of fact

and conclusions of law

* * *

Railroads’ notice of motion and

motion to amend the Court’s

findings of fact and conclusions of

law

Railroads’ memorandum of points

10/28/2002

11/27/2002

12/02/2002

1390

1391

1394

1395

1396

1397

1398

JA-28

and authorities in support of

motion to amend the Court’s

findings of fact and conclusions of

law

* * *

Notice of motion and motion to

add and amend findings of fact

and conclusions of law by third-

party defendant Shell

Memorandum of points § and

authorities by third-party

defendant Shell in support of

motion to add and amend findings

of fact and conclusions of law

* * *

Opposition of defendant and

cross-defendant Shell Oil

Company to the Govt’s motion to

amend the court’s findings of and

conclusions of law

Partial opposition of Shell to the

Railroads’ motion to amend

Railroads’ opposition to

Government’s motion to amend

Railroads’ memorandum in

opposition to Shell’s motion to add

- and amend findings of fact and

conclusions of law

Railroads’ memorandum of law in

12/09/2002

02/11/2003

02/19/2003

1399

1400

1401

1402

1410

1412

JA-29

opposition to Shell’s motion to add

and amend findings of fact and

conclusions of law

Shell’s reply to response to

motion to add and amend findings

of fact and conclusions of law

Response by plaintiff Southern

Pacific in 1:92-cv-05068 to partial

opposition of Shell Oil to

Railroad’s motion to add and

amend findings of fact and

conclusions of law

Railroad’s reply by plaintiff

Southern Pacific in 1:92-ev-05068

to the govt’s opposition to

Railroad’s motion to amend the

court’s findings of fact and

conclusion of law

Reply memorandum of law in

support of the govt’s motion to

amend the court’s findings of fact

and conclusions of law

*x** *

Supplemental brief of cross-dft

Shell Oil Company re motions to

amend findings and conclusions

** *

Reply by pltfs Atchison Tepeka

and Southern Pacific in 1:92-cv-

05/28/2003

06/13/2003

07/15/2003

09/10/2008

10/31/2008

11/06/2003

1413

1417

1419

1428

1435

1439

JA-30

05068 regarding Shell Oil Co’s

supplemental brief re motions to

amend findings and conclusions

Memorandum opinion and order

by Judge Oliver W. Wanger re

findings of fact, motion to add and

amend findings of fact and

conclusions of law by third-party

defendant Shell Oil Co, motion to

amend by dft Railroad granted,

motion to amend the court’s

findings of fact and conclusions of

law by Plaintiff Dept Toxic

Substance denied

* * *

Errata re order on dfts’ separate

motions to amend the court’s

findings of fact and conclusions of

law

* * *

Amended findings of fact and

conclusions of iaw by Judge

Oliver W. Wanger

* * *

Judgment on decision

x * *

Notice of appeal by claimant Dept

Toxic Substance

x * *

Notice of appeal by plaintiff USA

11/12/2003

02/12/2004

1441

1472

1473

JA-31

* * *

Notice of cross-appeal by

dft/cross-appellant Shell

* * &

Transcript of 1/27/03 hearing on

motion to amend findings of fact

Transcript of 2/3/03 hearing on

motion to amend findings of fact

* * *

JA-32

U.S. District Court for the Eastern District of

California

Case No. 1:96-cv-06226-O0 W W-DLB

Date Filed #

11/07/1996 l

11/14/1996 3

12/09/1996 4

03/20/1997 14

~ 03/20/1997 15

03/26/1997 16

03/26/1997 17

04/16/1997 21

Docket Text

* * *

Complaint

Notice by plaintiff Dept Toxic

Substance of related case(s) CV F

96 6228; CV F 96 5068

First amended complaint

***

Answer by defendant Southern

Pacific to first amended complaint

Crossclaim by defendant

Southern Pacific against

defendant Shell Oil Company

Answer by defendant Brown and

Brynt Inc to first amended

complaint

Amended answer to first

amended complaint by defendant

Brown and Brynt Inc

x * *

Notice by cross-claimant

Southern Pacific in 1:96-cv-06226

of related case(s) 1:96cv6228;

JA-33

1:92cev5068

* * *

07/31/1997 31 Answer by defendant Shell Oil

Company

07/31/1997 32 Answer to cross-complaint by

cross-defendant Shell Oil

Company

* * *

JA-34

U.S. District Court for the Eastern District of

California

Case No. 1:96-cv-06228-OW W-DLB

Date Filed #

11/07/1996 1

03/20/1997 7

03/20/1997 8

03/26/1997 10

04/16/1997 13

07/31/1997 24

07/31/1997 25

Docket Text

* * *

Complaint

* * *

Cross-claim by defendant

Southern Pacific against

defendant Shell Oil Company

Answer by defendant Southern

Pacific

* * *

Amended answer to complaint by

defendant Southern Pacific

* *

Notice by deft Southern Pacific in

1:96-cv-06228 of related case(s)

CV-F-96-6226-OWW-DLB, CV-

F-92-5068-OWW-DLB

* * *

Answer to complaint by

Defendant Shell Oil Company

Answer to cross-complaint by

cross-defendant Shell Oil

Company

*x* * *

JA-35

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

THE ATCHISON, TOPEKA )

& SANTA FE RAILWAY _)

COMPANY, et al.,

)

Plaintiffs,

vs.

BROWN &BRYANT, INC.,

et al.,

Defendants.

)

THE DEPARTMENT OF _ )

TOXIC SUBSTANCES )

CONTROL, )

)

Plaintiff, )

vs. )

THE ATCHISON, TOPEKA )

)

& SANTA FE RAILWAY

COMPANY, et al.,

Defend#»

NO. CV-F-92-5068

OWW/DLB

(CONSOLIDATED

ARVIN CASES)

NO. CV-F-96-5879

OWW

(CONSOLIDATED

SHAFTER CASES)

JA-36

UNITED STATES OF

AMERICA,

Plaintiff,

vs.

THE ATCHISON, TOPEKA

& SANTA FE RAILWAY

COMPANY, et al.,

Defendants.

ee ee a a a a ee a

DEPOSITION OF PATRICK J. REEVES, P.E.

THURSDAY, DECEMBER 18, 1997

9:10 A.M.

* * *

[16]

*x* * *

Q_ Well, let me ask you. Was there a typical

pattern to your doing this work for Shell at these

particular sites?

A Yes.

Q What was that typical pattern?

A Each of the people who supplied bulk, just the

bulk storage were given a three-ringed binder or a

manual.

And in that manual, it had all of the procedures and

more or less criteria for storing their chemical.

This document was prepared by Shell. And in most

“Ss

JA-37

cases, we were basically kind of a watchdog for Shell

that those people when we would go to these places,

this Brown & Bryant, for instance, we would want to

know where is that manual, first thing. We would ask

who has read it. If they were familiar with it, and if

they had any questions.

We would then go out to wherever their storage

tank or tanks were. And we would inspect them for

the type of material, in other words, whether it was

steel or aluminum or fiberglass, whatever kind of

material that they were using to store it.

We would be sure that it had the right kinds [17] of

valves. And if the storage had a containment facility

large enough so that if in a catastrophic event rupture

of the storage vessel, that it would be able to be

contained within this area.

And we would tell them that it had to be concreie.

It had to be impervious material. Asphalt was not

approved. Bvt it couldn’t be plastic, and it had to be

something that could weather.

And we would explain and give them ideas as to

what kind of materials could be used. I mean even

concrete block needed to be treated because it would

go through concrete biock.

So that is the kind of thing we did with them. We

also looked to see that they had the right kind of

breathing apparatus for safety, the right kind of

rubber, I don’t even remember if rubber gloves, but it

was a certain kind of material to protect themselves if

they are ever handling this material.

We would also share with them various things we

found from other plants where people didn’t take the

precautions and the kinds of damage that were done to

a number of individuals.

JA-38

So it was an awareness that we were trying to

instill with each of the places we went. We were

always, I don’t want to use the word chaperoned by the

local sales [18] representative, and in this case, his

name was David Rea, R-e-a, for this area.

And that way, the sales representative would also

be trained to know that he was supposed to have read

the manual, also, and that he could learn from me the

kinds of valving that they needed to have, the kinds of

safety equipment, the eyewash facilities, those kinds of

things.

And if we saw anything that didn’t comply with the

Shell manual, we would write them up in a report and

say these are the things that you need to do.

And then it was up to the local sales representative

to kind of check on them.

Q Now, did you do this same basic pattern, this

typical pattern with the two Brown & Bryant sites?

A. Yes.

Q_ And do you remember visiting those two sites?

A Yes.

Q Do you remember how many sites you went to

with David Rea?

A More than two.

Q More than Shafter and Arvin you are saying?

A Yes.

Q Do you remember going with him to any other

* * *

[52]

** *

JA-39

A. If there was a hose or a coupling that was

located in the yard that they then attached to a truck

that was going to come or go, yes, we looked at

everything that was associated with that facility.

Q. Did part of what you look at also include how

the D-D was cleaned out of tanks?

A. No.

Q. Did you look at what happened to D-D_ well,

let’s get to it when we go down the checklist.

What kind of body protection were the Brown &

Bryant workers supposed to use when they were

transferring D-D in and out of the bulk handling, the

bulk storage facility at Brown & Bryant?

A. They had their option in terms of whether they

wanted to wear a full slicker suit, an apron or special

resistant coveralls.

They all were supposed to have gloves and then

they were supposed to have something that would

cover their, you know, where a spill might occur.

Q So the front part of their body?

A Yeah.

Q_ And do you have any specific memory about

what [53] you were told was the Brown & Bryant?

A No.

Q Apparel?

Is that “no”?

A “No.” Excuse me.

Q Sothen turning the page to 071468, these were

questions about safety equipment that was available in

the case of some kind of spill; is that right?

A Yes.

Q Then turning the page to the next page, what

JA-40

information went into the tankage section right at the

top of the form?

A Well, if we would note if there was one or two

tanks. There was seldom more thin two tanks. The

diameter, the length or the height.

In some cases they were laying. Sometimes they

were standing straight up. It varies with the location.

The approximate number of gallons. So we would

calculate all of that by measurement as to how.

Sometimes they had stamps on them. Sometimes they

didn’t.

Q And was that just to have the description or

did you understand it to have some other purpose for

collecting that information?

A Well, no. There is a purpose because we [54]

would, further on we would talk about the containment.

So we had to calculate the volume for containment.

Q The next section is labeled “Construction.”

And what information was important there from

the perspective of this inspection?

A Well, we were looking to see if the tank was,

the suitable material according to their manual. If it

was a polyolefin, a PVC, a rubber tank, a steel tank,

whatever it was, we would note that.

And if we could determine what the thickness of it

or the rating of it, we would do that.

A lot of times we couldn’t, but we would make notes

that that might want to be clarified at a later time. But

it wasn’t part of our scope of work, because you can see

from our fees we were only given a very small

allocation.

Q Then the next entry is “Location,” and there is

a schematic there. How did you use that?

JA-41

A Well, this schematic is so small. We would use

it. We would, that is why we needed an additional

sheet to show the location, the property lines or walls

or things like that. We really didn’t use this to speak

of.

Q Then the next heading is “Foundation.” And

what information did you collect for that that had

relevance to this inspection? [55]

A Well, we just note if it was on a concrete

foundation or if it was on asphalt or if it was horizontal

tank and it had concrete piers, we would note the

dimensions and the sizes of those piers.

Q__ And how was it supposed to be? What was the

foundation supposed to be?

A Well, it was supposed to be an impervious

material so that if it leaked it wasn’t going to get into

the underground. I don’t remember what the, this

particular site was.

Q Would gravel or small rock bed have been an

appropriate foundation?

A No.

Q When you say “no” and that is because it

needed to be impervious?

A Correct.

Q And then there is a section called. “Access.”

What was the purpose of that? *

A Oh, just to note for the record if they had a—if

there were any components on the tank that you

couldn’t that needed to be maintained or serviced, if

there was a fixed stairway up to it or if they used a

ladder to put against it or if, some of the tanks were

very low to the ground and you could do everything

without having to climb onto the tank. [56]

—_—

JA-42

Others had a lot of important things that were

going in and out of the roof, for instance, that was way

up high. Then you needed the handrail ard stuff.

Again, this was more or less for safety purposes.

Q Then the next entry is “Spill Containment

Provisions.”

It has:

“Diking-Height, Dimensions, Tanks with Common

Dike.”

If they didn’t have a dike, you would put an “N” in

the brackets?

A Yes.

Q Orin the parentheticals.

Then next it says:

“Controlled run-off to:”

What was that about?

A If these tanks would actually flow into

something, we would indicate where they would flow.

@ So if there was no dike or containment,

secondary containment, then you would use this

“Controlled run-off to:” section to explain where

A Where it was going.

Q where it would ge?

A Yeah, where it would go.

Q And then the next entry or the next line says:

(57)

“Sewers, ditches and streams protected?”

What did that mean?

A If there was, for instance, a sewer manhole in

the yard im some of these cases where they didn’t have

containment, at that moment in time, if water, I mean

water, D-D could actually get to any of these facilities,

J A-43

then that is not protected.

Q The next entry is “Moisture Control” on Page

071470.

What was the importance of the information that

was collected there?

A ‘To be honest with you, I don’t recall. But I

know that the fumigant, I believe it broke down with

time if it didn’t have some kind of moisture control

device.

So if they didn’t have one, we would write them up

that they needed to get one. But there were two types.

One was, and most of them did have the inert gas

device where they weuld periodically recharge it much

like an air conditioning system with freon or something

along those lines.

Q_ And then the next entry is “Emergency relief.”

What was the information that was important there or

why was it important is really my question.

A I don’t recall.

Q The next entry says: [58]

“Pressure/vacuum relief (breathing.)”

What did that mean?

A ‘There are times in the day, especially when it

gets real hot, real cold and the material can expand and

shrink and consolidate.

So that if you had a major temperature change, the

moist it would in fact consolidate and you might have

a little bit of a vacuum or, vacuum occur in the tank so

as to keep the tanks from going out and in. They allow

this, an air device that would allow air to either come

into the tank or relieve the tank.

Q And then there is, the next entry is “Level

indication”. What was that about?

JA-44

A Well, they, we want to know how much fluid is

in the tank so they don’t overtep it when they are

filling it or let it go totally empty.

So there is, we indicate whet kind of a and we

don’t really want them to opem up a lid and do as m a

gas station where you run tig rod in there, because if

you pull it out, you are gomeg to get it on your hands

and it’s going to drip. S® we wanted them to have

internal measurement dewices to know what the level

of the fluid is in the tank.

Q Were there certain devices that were even of

the kind you are describing that were not approved

because [59] they would tend to leak, for instance?

A_ I don’t recall. We uswally had site gauges.

And if we saw that they were not protected, we would

mention that; in other words, a glass site gauge that

was out on the edge of the tank that anybody could

walk along and break it, we would bring that to their

attention.

But I don’t remember actually having that to be a

problem. We particularly liked the ones where you

actually, they are closed off. I can’t think of the brand

name, but you would open something up and it would

come and it would tell you what the level is. And then

you shut it off and the fluid drains back into the tank.

Q Then there is an entry called “Grounding.”

Was that to reduce static electricity and the chance

of a spark? |

A Yes.

Q And then “Markings,” what were the markings

supposed to be?

A All of the tanks were supposed to have the

product labeled so that anybody delivering or picking

JA-45

up would know exactly what it is.

And also if a fire chief was coming on to the site, he |

would knew what is in it. So we would be sure that 4

those placards were on the tank. .

The next page starts with: [60] |

“Tank filling/emptying Connections (Top or

Bottom.)” |

What information was important to be put in there

and why?

A We were looking, well, they wanted to know if

it was off the top or the bottom, again, for the

possibility of overtopping.

And also if the valves, if anybody could come along

and, you know, if it wasn’t a secured, I mean most of

these had, you know, big fences around them.

But in some cases where we went to, they were not

very well—they weren’t very secure. So we want to

make sure that they always have a lock so that only the

employees would be able to open and close these things

and get, have access to them.

Q Then the last entry on that page, weil, the next

entry says:

“Valves and Packing on Tanks.”

What was important to collect there and why?

A. Well, we wanted to be sure that—there are

many materials within these that would be corroded by

| D-D. I mean they are perfectly good for other

| agricultural chemicals, but D-D was very corrosive to

certain types of things. So we verified that that was

the right kind of packing material. [61]

And the other thing that we were worried about

that they didn’t have any kind of dripping or leaking.

So we would go exercise where we could see there to

wi» ie ee a — =

J A-46

see that there wasn’t any dripping going on. There had

to be-a positive seal.

Q You said you would go exercise. Is that what

yan said?

A Yeah, see if we could, if they looked to be in

operating order. If they weren’t hooked up to

amything, we couldm’t do it. But we always at least,

) wherever it was, if you had a quick connect er quick

. disconnect., take it apart and look at it to be sure that it

was the right matertal.

| Q Then themext page, 071472, says:

) “Transfer Equipment:”

And the first entry after that is:

“Piping, Materials, Joints, Serewed, Welded,

Flanged.”

What information were yow collecting there and

why was it important to your mspection?

A We just wanted a record of how the usually it

is talkimg about any pipe that leaves the tank and

comes to a little pump.

There is a few quick cases where the tanks were

elevated so they didn’t even have to have a pump. I

[62] mean they could just gravity flow into a truck.

But we were looking to find out, I mean you could

they were all legal to have either screwed, welded or

flanged, but we just had a record of I don’t know why

they wanted it, but I didn’t take it there was any

particular importance, other than they have a record of

how it was done.

Q@ When you were looking at the D-D tank at

these facilities where you were conducting these

inspections, were you inspecting the plumbing so to

speak that got the D-D into the tank as well as the

*»

‘.

JA-47

plumbing that got the D-D out of the tank?

A Correct, yes, we did.

Q The next entry is:

“Sealants/gasket materials:”

What did you need know there and why?

A Just to be sure that they didn’t have devices

that they were of the approved material, primarily

again for these quick connects. You can connect

something and as soon as water no D-D flows

through it, it’s going to be leaking. We wanted to make

sure that they knew. We were trying to make these as

leakfree as possible.

Q And then there are:

“Hoses, Materials, Used for:” [63]

What information was important for your

inspection?

A Well, we

Q And why?

A We just noted the kind of hose materials,

diameters and lengths, make sure they didn’t have all

kinds of excess links around.

Once the D-D flows through it, if you have all this

stuff, 100 feet of hose or something, that you know

there is actually material, it doesn’t drain out of there.

So that we were just making sure they didn’t have a

lot of that stuff laying around, because somebody would

pick it up later and, you know, how it will dribble out

on the ground.

Q And what was the procedure that was

recommended by Shell to be followed in that

circumstance?

MR. EARLE: Objection, assumes facts not in

JA-48

evidence.

THE WITNESS: I don’t know.

Q BY MR.LASATER: You can go ahead.

A I don’t know.

Q From your review of the manual and

communication with Shell personnel, what did you

understand was Shell’s position in that regard?

A Idon’t remember. [64]

Q Nowit says:

“Electrical bonds established.”

What is that about?

A I don’t remember.

Q And it says:

“Valves easily accessible.”

What was that about?

Is that just a physical thing that you could get to

them to shut them off?

A Yes.

Q The next line is:

“Valves & packings used in transfer system.”

Was this simply to record the information or was

there certain kinds of valves and packings that were

not suitable for use with D-D?

A Yes, there were certain ones that were not

suitable. And we would check to be sure that they

were okay.

Q_ Now, if they weren’t suitable in this example,

but it probably applies to some of the others, but in

some example you found something that wasn’t

suitable, there are spaces provided for what you found,

how would you note that it wasn’t suitable?

A Usually in the transmittal in the end, you

JA-49

know, when we delivered the final report. [65]

Q And “Packing materials,” what does that refer

to? Is that like valve packing?

A Yes.

Q@ Now, “Meters descriptions,” what were the

meters?

A Well, it was usually an in-line device that spun

as the fluid flowed through it so that you knew how

many gallons was being loaded.

Q And then there is a “Filters description”

entry. And what was that about?

A If they had a filter on the transfer equipment

or not, we would note what kind it was, same with the

strainer. They kind of go hand in hand.

Q Was there supposed to be a filter or a strainer?

A There didn’t have to be, but most of the places

as I did recall did have either one or the other.

Q In the next page starts with “Hose

connections,’ and then, quote, “Dry,” close quote,

disconnects description.”

And then the next one is “Quick connects

description.” What were you looking for here?

A Just to determine that they actually had them.

Q Would you describe the difference between a

dry disconnect andaquick [66]

A Connect.

Q —and a quick connect?

A I don’t recall, but I believe that the dry

disconnect is, you had, there would be no fluid in the

line. A valve was somewhere I don’t recall.

Q Do you remember that there were other kinds

of connects or disconnects that were in use but which

JA-50

were not what Shell wanted to be used?

MR. EARLE: The question is vague and

ambiguous and has no reference as to time or place.

Are we talking about in general or Shafter or Arvin

MR. LASATER: | am talking about in this period

of time that he was doing these inspections.

THE WITNESS: I don’t recall.

Q BY MR.LASATER: The next entry is:

“Pumps, Loading bulk storage, Unloading bulk

storage,” and so on.

What information was important to coliect for this

form and why?

A Well, we just noted all of the information about

the pump equipment that was being used for this

process.

I don’t think that we ever really found a problem

with the pump. I mean we just want to make sure that

it wasn’t corroding and it worked for the purpose. [67]

Q _ And then to the last page of this exhibit, it

says, “Truck/Tank Car Station,” and then “Hard-

stand.”

What did that mean?

A What they wanted, what they were looking for

is that a truck, where they were putting this material

or conveying it to a truck that it had an impervious

surface, that it wasn’t just being done like you say on

the gravel, that in fact they were supposed to be when

a truck was alongside the tank or as close to the tank as

it could get while it was being transferred, that there

actually was a hard stand material which to them

means like concrete.

Q Did it need to be impervious or was it some

JA-51

term that was less than impervious by saying “hard-

stand”?

A We interpreted it to be impervious.

Q_ And then the next entries or the last entries

say, “Barricades and warning signs.”

What was that about?

A I don’t recall the importance of that.

Q_ Then it says:

“Grounding/bonding cable and clamp.”

Was that to reduce static electricity?

A Yes.

Q And then the next is “Spill containment.”

That is something that is actually dealt with earlier,

isn’t it? [68]

A Yes, it is, but I think that this spill,

containment pertains to the truck area as opposed to

the bulk storage area.

So we wanted it—I mean sometimes the trucks

could drive into the area, you know, down into where

there was big bulk storage facility. And they would

come into a ramp and then be loaded and unloaded and

then drive back out. So the truck and the tank storage

was all protected.

But in other cases, this is probably one of them, but

I can’t remember. You know, the tank is sitting

throughout and probably not with any containment.

And the truck area might be somewhat over here or in

a case even if you did have a tank that had

containment, but just a paved area side by side that

was outside of that diked area, they would say, hey,

that needs to be protected also, because the truck can

spring aleak,too. |

MR. EARLE: Move to strike the witness’ answer

JA-52

after “but in other cases, this is probably one of them,

but I can’t remember” as_ speculative, lacking

foundation.

Q BY MR.LASATER: Are you doing any work

for Shell Oil Company or any of its affiliated companies

today?

A Not that I am aware of.

* * *

[103]

Q. Do you recall whether or not you reviewed the

entire manual.

A. Yeah, actually I did.

Q. That was your assignment?

A. That was my assignment, before I made a

budget up because I knew I was going to have to do it

over and over and over. And I didn’t want to lose a ton

of money.

Q. Was it your understanding that the tank that

you were inspecting was to be at the facility was used

for the Shell D-D?

In other words, was it your understanding one way

or another whether or not the tanks that you were

inspecting were used for Shelli D-D and other products

or was it just Shell D-D?

A. No, only Shell D-D. In other words, I would go

to a site and they may have a dozen tanks in the yard, I

don’t want to look at any other tank other than where

they keep D-D. That was my only assignment.

Q. But it was your understanding, though, that

the tanks you were inspecting were used to store Shell

D-D?

A. Exclusively, yes.

JA-53

Q. And Mr. Earle asked you about whether or not

the Shell manual had as its purpose safety; correct? Do

you remember that? [104]

A. Yes.

Q. You said yes. Did it also have a component of

environmental protection as far as you can recollect?

A. I believe it was, but only as the existing

environmental codes that were referenced in the back.

Q. But you didn’t prepare the manual?

A. No.

Q. And you didn’t have any discussions as far as

you can recollect with ine person who did prepare the

manual?

A. I did not.

Q. So you don’t really know what the purpose was

of the author of the manual?

A. No.

Q. You jut knew what the manual said and that

the company had to comply with it?

A. Right. They said we want you to fill out this

checklist and, you know, look for the checklist

compliance with our manual.

* * *

JA-54

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

THE ATCHISON, TOPEKA

& SANTA FE RAILWAY

COMPANY, et al., No. CV-F-92-5068

)

) OWW/DLB

Plaintiffs, ) (CONSOLIDATED

) ARVIN CASES)

-Vs- )

) No. CV-F-96-5879

) OWW

BROWN & BRYANT,INC., ) (Consolidated

et al., ) Shafter Cases)

Defendants. )

)

AND RELATED ACTIONS _)

)

THE DEPOSITION OF GEORGE MACK

before the undersigned Certified Shorthand Reporter,

taken on behalf of the Plaintiffs, at the Ramada Inn, Ft.

Smith, Arkansas, on MARCH 12, 1998, pursuant to

Notice and The Federal! Rules of Civil Procedure.

* * *

[56]

*x** *

Q. Now, just to be clear for the record, from the

west side by the west side I’m referring to the area

on Exhibit 687 which is to the west of grid H, vertical

grid line H, west of that to where the fence line is

indicated, is that what you understood me to mean by

JA-55

west side?

A. That’s right.

Q. Okay. Did you ever see any chemical spilled

over there on the west side while you worked there?

A. Not on the west side. I would say near the 32

[57] tank, the Beebee 32 tank, liquid fertilizer tank,

which is the biggest tank in the yard; the southwest, if

you want to call it.

* * *

[59]

* * *

Q. Now, back to the west side. You mentioned

the UN-32 tank, which is not on the west side, and a

leak from it. Were there any leaks, spills, chemical

releases over on the west side that you can remember?

A. If I remember right, some of that 32 had

veered off in behind the welding shop and had not quite

made it in behind the office there on the west side

Q. Is it fair to say that the west side was used for

the purposes that you’ve already testified to; and that

other than that, those uses, it wasn’t used in ways that

would produce spills or leaks?

A. No. No.

Q. That just is not what happened over there; is

that right? [60]

A. No. Huh-uh.

Q. And you’re saying no, meaning that that’s

correct?

_ A. That’s correct. As far as I know, the almost

four years that I was there, no, there wasn’t any tanks,

holding tanks of any kind, that I know of, that was over

JA-56

there in that area that had ruptured or lines had broke

or anything of that nature.

* * *

JA-57

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNI«

THE ATCHISON, : NO. CV-F-92-5068

TOPEKA &SANTAFE : OWW/DLB

RAILWAY COMPANY, : (CONSOLIDATED

et al., : ARVIN CASES)

ve. : NO. CV-F-96-5879 OWW

- (CONSOLIDATED

BROWN &BRYANT, : SHAFTER CASES)

INC., et al.,

DEPOSITION OF ROBERT W. SWAIN

March 17, 1998 Houston, Texas

* * *

[104]

series of inspections found that not one of the

customers visited had a totally satisfactory spill

containment system.” So by that, you’re saying that

the Brown & Bryant Arvin facility did not have a

totally satisfactory spill containment system for the

bulk D-D storage. Is that correct?

MR. HELDT: Objection to the form of that

question.

AI don’t think that’s what it says. It says they

didn’t have an adequate or totally satisfactory spill

containment system.

Q Okay. Would you then explain to me what that

meant?

A Every one of the agricultural chemicals,

products, fertilizers, insecticides, pesticides,

JA-58

everything that they were handling in a liquid form

could be inadvertently spilled or discharged onto the

ground and could be flushed into, you know off the

property, if not contained. In that respect, they were

not totally satisfactory. Not by my standards but by

the California standards; by the EPA standards. I’m

not sure that EPA was in existence then. Anyway, .

California certainly had some pretty stringent

** *

[118]

* * *

A I don’t really recall the situation at the time. I

do know that they were given the D-D safety manual.

My guess is that probably, without exception, most of

these people did not read and retain and practice all of

the suggestions that are in the D-D safety manual and

the other codes and regulations that were referred to

in the manual. People just don’t read all of that stuff.

They just go ahead and get the business done. It’s not

that it wasn’t available to them. It’s just that they

didn’t practice it.

Q Okay.

A Most of the people that we visited, it was a

pretty competitive business. Most of these people

were real entrepreneurs when they came to putting

together a facility to provide the products and services .

that they sold. They didn’t always follow the rules.

They did the best they could in the cheapest way

possible, and those conditions didn’t always meet the

standards [119] and regulations required. And that’s a

general statement. I’m not saying that this was true

with Brown & Bryant at Arvin, but this is generally

true with all the facilities I investigated.

JA-59

* * *

[128]

** *

Q Here on Page S003269, it says, in part, “When

D-D spillage has been collected as above, proceed to

decontaminate contaminated equipment and surfaces

as follows,” colon.

A Uh-huh.

Q “Wash down affected areas with a detergent

solution and rinse with water,” period. “Absorb waste

water as above or drain it to a sump for future

collection and disposal,” period, end of quote. Was that

your understanding, at least in part—And the

paragraph goes on. Did you have that understanding

as to that was the way contaminated equipment was to

be decontaminated?

A Yov’re referring to equipment?

Q Equipment and surfaces.

A Asa part of equipment, it’s probably the only

way you can really do that surfaces. There’s other

ways in which that can be handled, such as putting

containment facilities, a dike or whatever, around a

tank, if that’s the area in which they are concerned

about spillage, having loading the facilities or transfer

facilities, I should say, set on a pad with a sewer

system or a sump that will run it to a basin and then

get [129] pumped into their holding pond to keep it

from running off of the premises. A lot of these

facilities, as we noted in the inspection report, is—

again, reviewing it, I noticed that the tank was sitting

on gravel. A lot of the other facilities that were

inspected were sitting on gravel and all this would do is

if there was a spill, would allow the D-D to percolate

JA-60

into the ground. Washing it with detergent wouldn’t

have helped a bit. So I don’t think that in my review of

the facilities with Jack Brown, that we said anything

about cleaning or following any of these procedures

other than the fact that he should follow the D-D safety

manuals.

Q Was it your understanding that Brown &

Bryant had a sump where D-D rinseate could be

collected’

A Idon’t recall that, but my guess was that they

did not but it was something that they were planning

on providing as regard to that footnote on the

inspection report, the typed inspection report.

Q Was it your understanding at this time in 1979

that waste waters containing D-D were regularly

generated by distributors like Brown & Bryant as a

normal course of their operations? [130]

A Waste waters containing D-D Repeat the

question, please.

MR. LASATER: Actually, I don’t think I can. Will

you read it back?

If it doesn’t make sense, I’ll redo it.

(The record was read by the reporter.)

A I don’t recall that. But in the first place, one

wouldn’t mix water with D-D if there was a way of

avoiding it. It’s possible that there would be a D-D

spill and rain could come around or somebody was

washing down the facilities and there happened to be

some residual D-D from transferring product from the

storage tank into a transport vehicle where there

might have been some spillage. That water, with a

little D-D that might be in it at Brown & Bryant from,

again, reviewing the inspection report ‘cause I don’t

JA-61

remember the specifics, probably would have run off

the property at the time that I made the visit because I

don’t recall that they had a collection facility there at

the time. Again, I can only surmise that from our

discussion following my inspection and the review with

Jack Brown, that this is something that he was going to

have to put in as required by the Water [131] Quality

Board.

Q Now, you indicated that washing down with

water would not be—I don’t know that that’s what you

indicated. You indicated that you wouldn’t typically

put water with D-D if you could avoid it.

A If1I—tThat’s correct.

Q Okay.

A I would absorb it using kitty litter or calcium

chloride or—There’s a lot of things that you can use to

absorb hydrocarbons and then pick them up and then

you don’t have to worry about the contamination so

much or at least you’re going to grossly indilute it.

Just mixing it with water just makes it that much more

difficult to handle and dispose of.

Q We've had testimony in this case that Brown &

Bryant’s procedures were such that they had a two-

thousand or a twenty-five-hundred-galion-tank truck

that they would use to transport D-D to the fields to

put into a nurse tank. And that at times, they wanted

to handle or transport a different liquid in that truck,

and they would wash out that truck and put it into a

sump that they had on site so that they then could put

the [132] other fertilizer or chemical or whatever in

there.

A Yeah.

Q Were you ever aware that Brown & Bryant

had a procedure like that?

J A-62

A No.

Q Were you ever aware that that was a kind of

procedure that other agricultural chemical facilities

that you visited over your career utilized?

A There were all sorts of facilities out there in

order to collect spills and what-have-you. By and large,

most of the facilities that I visited had no adequate

protection with the handling of spills. Most of them

just let them percolate in the ground. And that was

one of our concerns in this business because most of

these were just bare-bones operations and they

allowed this to happen. Most of them were in rural

areas and after all, it’s D-D. What do you do with the

product, anyway? You inject it into the soil. That’s the

commercial use of it. It’s to kill nematodes, so why not

let it spill on the ground and kill the damn nematodes?

Q Would be very sure there were no nematodes

on [133] that site.

A Well, I’ve heard of people using D-D as a weed

killer. Well, let’s face it. It’s, basically, like diesel oil,

anyway, and people used to go along the road and

spray diesel oil on there and kill all the weeds. And

that was a good way of getting rid of their

contaminated D-D. It wasn’t recommended by Shell,

but then a lot of things that we recommended weren’t

followed.

Q You were talking about spills and how, in fact,

it was your experience that spills were handled. When

you were talking about spills, were you including in

there that concept that I referred to of washing out one

tank truck in order to put a different product in there?

A No. My concern in looking at that facility,

primarily, again, in referring back to the inspection

report which was_ I don’t know. Where'd it go?

JA-63

MR. HELDT: Over here, 1030.

THE WITNESS: Yeah, 1030.

A Most of it was to contain spills that occurred

either in the transfer of product or the major concern

with what happened to the product in the storage

container. Some of the things that they [134] were

doing with their storage container, as you will see by

reading the report, that. were very potentially

hazardous. They had nothing more than a hose going

up from the top to the bottom of the tank and if

anything happened to that hose, either because it

became old and brittle or it was accidentally pulled off

of the bottom connection, it would have evacuated the

whole tank. The problem there is that that spill—gross

spill of D-D, for instance, there was just no way to

contain it. It would run off the property and

contaminate everything on down.

Q_ Right.

A That certainly was a concern to us and a

concern to them. They needed to do something about

it. So we made reconimendations as to what they could

do and there were many options to that, to put in a

different type of level device so that they can

determine what the volume was. You certainly don’t

want them to overfill the tank. The other one was,

well, the what if they did, then what do you do about

it? Well, we suggested that they put a berm around

the tank to contain it so if there was a spill, it would

only affect the ground immediately around the tank

and wouldn’t

JA-64

Q Do you recollect what was done with respect to

catching spills, if any, that were part of the transfer

process both in and/or out?

A There’s usually very little spill that can occur,

but they always do happen. There’s a few drips that

are lost or whatever. One way of doing it is when the

transport vehicle it can be a railcar, it can be a tanker

truck or whatever. [187] comes in and he connects

his hose from his storage tank to a pump, which then

pumps it into the customer’s storage tank. Again,

liquid won’t flow uphill, so you need a pump in the

operations. In making this transfer, then, ‘cause,

usually, a valve on the end of his hose that connects to

the valve on your tank, you open up both of them, but

there’s still a little space in there where product can

get trapped. And when you break the connection so

that you can move the umbilical cord from the truck

and get him going on his way, there’s probably a little

drop in there. Frequently, it’s collected in a little

bucket or pan and disposed of, if it’s done properly.

Most often, though, back inthose days, just let it

dump on the ground.

JA-65

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

AT FRESNO

THE ATCHISON, TOPEKA & )

SANTA FE RAILWAY )

COMPANY, et al. )

Plaintiffs, )

vs. )

) Case No.

BROWN & BRYANT, INC., et ) CV F-92-5068

al., )

Defendants. )

)

AND RELATED ACTIONS

DEPOSITION OF

DAVID REA

GLENDALE, CALIFORNIA

SATURDAY, MAY 2, 1998

* * *

[208]

* * *

Q. Do you remember that part of the bulk

facilities improvement program was a requirement

that there be dry disconnect valves for transfer valves?

A. Ido.

Q. And what was your understanding as to what

those dry what was entailed in the dry disconnect

JA-66

valve? [209]

MR. EARLE: The question is ambiguous as

phrased.

MR. LASATER: Let me restate the question.

Q. What was your understanding about the

requirement for dry disconnect valves?

MR. EARLE: The question is overbroad, calls for a

narrative, and it’s ambiguous.

If you can tell.

THE WITNESS: He gets the narration version

then.

Dry disconnect valves were used to minimize spill

or release of product upon hoses being disconnected.

I can’t tell you how many grams of product that

meant that would be in tolerance. I can’t remember

that.

I just know I remember that, through the State of

California, the regulators were demanding dry

disconnect fittings for filling helicopters and fixed wing

aircraft to discharging all kinds of products.

BY MR. LASATER:

Q. Do you remember that the bulk [210] facilities

improvement programs requirement for dry disconnect

valves referred to the disconnect of the hose that went

from the tanker truck which delivered the D-D to the

customer site from the customers’ tank?

A. Ido.

Q. Do you remember that the dry disconnect

requirement also applied to disconnects when the

customer was taking or had taken D-D out of the bulk

tank and -- well, when they were disconnecting from

having taken out from the D-D tank?

JA-68

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

THE ATCHISON, TOPEKA &

SANTA FE RAILWAY

COMPANY, et al.,

Plaintiffs,

CV-F-92-5068

OWW/DLB

vs.

BROWN & BRYANT, INC., et

al.,

Defendants.

)

DEPOSITION OF WILLIAM PERKINS

BE IT REMEMBERED THAT the deposition of

WILLIAM PERKINS was taken on behalf of the

Plaintiffs before Jann Nichols, a Notary Public, on

Tuesday, May 26, 1998 beginning at the hour of 10:30

a.m. at the Jackson County Airport Authority Building,

3650 Biddle Road, Suite 13, Conference Room C,

Medford, Oregon, 97504.

* * *

[12]

* * *

Q. Now, what else was washed into this sump that

you've referred to? [13]

A. Well, everything that they ever drained out of

JA-69

any tank went into it. They didn’t spare anything.

Nemagun, DD, whatever, it all went in there.

Q. You mentioned Nemagun. What was your

involvement with Nemagun?

A. Well, I injected quite a bit of it in the fields for

cotton and things like that. It was mainly used on

cotton to kill nematode.

Q. And what was the container that the Nemagun

come in?

A. If I remember correctly it came in five-gallon

containers made out of metal and it was a clear liquid

and weighed about three or four times what water

would way. Extremely heavy.

Q. And did any of that get washed into the sump?

A. Well, I imagine it did when they washed out

the lines that carried it from the pumps to the injectors

when we put it in the ground. Now, the containers

when they were emptied before they had the landfill

out there near Arvin we took them out there and just

threw them out and burned them.

Q. Threw them out where?

A. At the dump grounds. Would be west of Arvin

about four miles on Way Patch Highway.

Q. And these lines, were these the lines on the

{14] tractors that you were driving?

A. Right, they came from the, you know they

dripped it into these little injector tubes. They had

things that went down into the ground, that it was

injected into the ground under pressure, a slight

amount of pressure, didn’t need much because the stuff

was so heavy. Then when we got back there was still

some in the lines, so we just flushed it out and it went

into the hole, the sump hole.

JA-70

Q. When you say got back, do you mean get back

to the Brown & Bryant Arvin yard?

A. Right, from the farm or wherever we was

using the stuff.

Q. When you were driving tractors while working

for Brown & Bryant, were those Brown & Bryant

tractors?

A. They were leased. Who they leased them

from, I don’t know. All of their trucks and everything

were leased. They had all Dodge trucks and they were

all leased. Now, we had Ford tractors, Ford 6000s that

we used, and we had some Ford 500s. I believe that

was a smaller tractor that we used for putting fertilizer

and pesticides and stuff like that out.

Q. So after the tractor was used at the farmer’s

field, you’d bring it back to the Arvin yard, the Brown

& Bryant yard? [15]

A. That’s correct.

Q. Do you ever remember DD being do you

remember any DD in the Brown & Bryant yard that

was in 55-gallon drums?

MR. EARLE: Can I have the reporter read that

back?

MR. LASATER: Let me restate it.

Q. (By Mr. Lasater): When you worked at Brown

& Bryant did you ever see DD on site in containers,

smaller than 55 gallons? Fifty-five gallons or smaller?

A. Well, I saw some stuff like that in 55-gallon

drums but I never—I don’t recall ever seeing anything

in any container any smaller than that. They had so

much stuff there that gosh, this has been years. I

just can’t remember all of the amount of junk they had

there.

JA-71

Q. Was some DD present at the Arvin site in 55-

gallon drums

A. Tmjust not

Q ordo you remember?

A. T’mjust not sure. I can’t really remember how

they brought that stuff in there. It’s just they had so

much in that warehouse that it was unbelievable. [16]

Now, I’ve never hauled any of it in drums, so I’m not

sure.

Q. Okay. How about a product called Telone. Did

you ever have anything to do with a product with that

name?

A. Well, if I knew what it was used for. Like I

say, my memory of those times is

Q. Okay.

A. I was p.o.’d most of the time that I worked

there anyway because I had to handle that crap.

Q. Oh, I see.

A. How do you spell that?

Q. Some people called it Telone, T-e-l-

A. - o-n-e?

Q. Yes, Telone.

A. Well, it sounds familiar. It was probably in 5-

gallon cans, wasn’t it?

Q. I don’t know, and it was a product that was

similar to DD is my understanding.

A. Well, that must be what—that’s what we used

on the tractors for injection on cotton and things like

that.

Q. Let me ask you, looking at this grid map again

which is Exhibit 687 and you see the area to the west of

the warehouse, to the west of the vertical line [17]

JA-72

“H”’

A. Itsays “covered storage”?

Q. Right. The area to the west of that, up and to

the rail lines there, do you see where I’m indicating?

A. Yes,Ido. That’s an H on the grid.

Q. Honthe grid. West of that H.

A. It would be H6.

Q. Right. Now, was any of that property out

there used? It was_ it’s also shown on this overhead

photo which is Exhibit 242.

A. That’s the area to the west?

Q. Right, it’s the area to the right of the large

building in that photo.

A. Yes.

Q. Did while you were there was Brown &

Bryant did it use that area at all?

A. No.

* * *

[19]

** *

Q. Was there equipment stored to the west? [20]

A. No, not when I worked there there wasn’t.

Q. So the west of the warehouse and this

maintenance building, that was not used?

A. Not when I was there, no.

** *

JA-73

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

THE ATCHISON, TOPEKA )

& SANTA FE RAILWAY )

COMPANY, )

)

Plaintiff, )

) No. CV-F-96-5879

-Vs- ) OWW/DLB

)

HERCULES, )

INCORPORATED, et al., )

Defendants. )

)

DEPOSITION OF RICHARD S. WOOLLEY

Glendale, California May 27, 1998

* * *

[135]

* * *

Q. Inthe typed-in portion in the lower half of this

form, where it says 5000 gallons, D-D, [136] and then

there is a letter, and then it says soil fumigant, do you

see that?

A. Yes.

Q. And right below it it says less evaporation

allowance. Do you see that?

A. Uh-huh.

Q. Do you remember what the evaporation

JA-74

allowance was?

A. Idon’t. There was one because it’s a volatile

material.

Q. And there was an evaporation allowance at the

time that you were district manager?

A. As far as I recollect.

Q.. What was your understanding of how that

allowance operated?

A. I can’t tell you the particulars. But being a

volatile product, it was it seemed to be a necessary

adjustment for the customers.

** *

-_-,-

JA-75

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

HON. OLIVER W. WANGER

THE ATCHISON, TOPEKA & ) NO. CV-F-92-

SANTA FE RAILWAY ) 5068 OWW

COMPANY, et al., )

) USA’s Motion

Plaintiffs, ) for Summary

) Judgment as to

) ATSF; DOT's

vs. ) Motion for

) Partial

BROWN & BRYANT, INC., et ) Judgment as to

al., ) ATSF

)

Defendants. )

)

AND RELATED CROSS- )

CLAIMS AND THIRD PARTY _ )

ACTIONS )

Fresno, California Monday, October 26, 1998

REPORTER’S TRANSCRIPT OF PROCEEDINGS

** *

[87]

* * *

THE COURT: Let’s look at divisibility cases that

were just cited.

MR. MacAYEAL: Okay.

THE COURT: And let us assume, because this is

JA-76

my assumption just by looking at the evidence in gross.

This less than 10 percent, probably less than 5 percent

of anything [88] that has been released on the leased

property compared to what has been released on

Brown & Bryant’s property, owned property, through

the years that would contribute to the groundwater

problem or the threatend groundwater problem, and

so if we are looking at the Restatement, you do not

assign at this stage as a matter of law 100 percent joint

liability to the railroad.

Mr. MacAYEAL: So we are assuming that only 10

percent came from the railroad parcel.

THE COURT: I think based on what Mr. Brown

testified to and knowing what their operations were

compared to, in other words, nobody has tried to give

us, like gross estimates of how many millions of gallons

were stored in containers or stacked in drums or what

was spilled and what wasn’t spilled, that kind of stuff,

but we know on the other property that you have got,

basically, a fabricating site where you are mixing, you

are crushing, you are basically taking the ingredients of

the agricultural commodities, I should say chemicals,

and are putting them into package and a form for

transportation, some are in bulk, and that obviously is

going to be unquantified, but there is a lot more there

on property for which Brown I should say for which

the railroads under CERCLA don’t have liability

compared to what is going on on their property that

they have contracted to permit Brown & Bryant to

conduct its activities.

x *k x

JA-77

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

HON. OLIVER W. WANGER

THE ATCHISON,

TOPEKA & SANTA FE

RAILWAY COMPANY, NO. CV-F-92-5068

et al., OWW

Plaintiffs, Court Trial, Day 1

vs. Testimony of

Lonnie Merryman

BROWN & BRYANT, INC.,

et al.,

Defendants.

AND RELATED CROSS-

CLAIMS AND THIRD

PARTY ACTIONS

eee eee

Fresno, California Tuesday, March 30, 1999

REPORTER’S PARTIAL TRANSCRIPT

OF PROCEEDINGS

* * *

(8)

MR. MacAYEAL: I will call the witness, your

Honor. Your Honor, the government calls Lonnie

JA-78

Merryman.

LONNIE MERRYMAN,

called as a witness on behalf of the Plaintiffs, having

been first duly sworn, testified as follows:

THE CLERK: Please state your name and spell

your last name for the record.

THE WITNESS: Lonnie Dean Merryman. My last.

name is M-E-R-R-Y-M-A-N.

THE CLERK: Thank you. You may take the

witness stand.

THE COURT: You may proceed.

DIRECT EXAMINATION

BY MR. MacAYEAL:

Q. Mr. Merryman, were you ever employed at

Brown & Bryant in Arvin?

A. Yes, sir.

Q. When did you start there, roughly?

A. It was either ‘72 or “73, and I worked until ‘81.

Q. Were you out there in the yard in Arvin?

A. I worked a little bit in the yard. Mostly I was

field service.

Q. Field service?

A. Yes.

Q. Tell us briefly what you do and what field

service [9] involved.

A. Field service was as a serviceman, we would

salesmen would go out and sell the material and then

we had a full service operation. We would go out and

mount the tractor, put the equipment on to apply, or

whatever, to apply whatever it was they were putting

on.

Q. Fumigant or whatever?

JA-79

A. Fumigants, insecticides, pesticides, whatever.

Q. Are you familiar with the term of a bobtail?

A. Yes.

Q. What is that?

Bobtail were the trucks we handled to handle

the fertilizer, the fumigant, to haul it from the plant to

the field.

Q. Was there a tanker called a nurse tank?

A. Yes, sir. That’s what the bobtail carried it in

when the salesmen or tanker drivers would take the

nurse tank to the field. They would fill the material in

it and then we would nurse out of it to either tractor

tanks on tractors or pull rigs.

Q. What was the capacity of the nurse tank

generally?

A. Field service, it would hold we had two sizes.

One was 2,000 gallons; one was 25 or 26 I’m sorry,

2,000 gallons and 25- or 2600 gallons.

Q. That tank would be stationed out at the

farmer’s field? [10]

A. Yes.

Q. Material from that would go into another tank?

A. Yes, sir.

Q. And then to get the material out to that nurse

tank, you would use the bobtail?

A. Yes, sir.

Q. What was typically the size of the bobtail in

terms of gallons?

A. I believe it would hold 1800 to 2,000. I’m not

sure.

THE COURT: There was a tank on the bobtail?

THE WITNESS: It was a 2,000 or 1300 gallon tank

JA-80

mounted on a two-ton truck.

BY MR. MacAYEAL:

Q. Was it a tank or truck?

A. Yes.

THE COURT: When you say the nurse tank was

stationed in the fields, did you move it into the field?

THE WITNESS: Either the serviceman would

move it or the tanker driver when he took out the

material. Sometimes the servicemen would spot him in

the field and call the order in.

THE COURT: Otherwise, where was it kept?

THE WITNESS: Inside the yard at Brown &

Bryant.

BY MR. MacAYEAL:

Q. Now, you personally were taking these tanks

out there, correct, you were a serviceman? [11]

A. Yes, sir.

Q. And later on, you became the manager?

A. I became the service manager the last year,

two years I was there.

Q. Okay. And when did you leave Brown &

Bryant?

A. Ti.

Q. Did you have occasion to go visit Brown &

Bryant after you left their employment?

A. Yes, sir. The company I went to work for,

Kisco Sales, K-I-S-C-O Sales, Incorporated, we sell

spray and fertilize equipment, and they were one of my

customers after I went to work for them.

Q. You would go back to Arvin plant and try and

sell the products that Kisco sold?

A. Yes, sir.

JA-81

Q. To Brown & Bryant?

A. Yes, sir.

Q. Now, could you tell the Court are you

familiar with the term “D-D rig”?

A. Yes, sir.

Q. Could you tell the Court what that is?

A. A D-D rig, I presume he’s talking about the

pull rigs?

Q. Yes, sir.

A. That was a unit that had two wheels on it with

a tongue. It had anywhere from 14 to 16 shanks on the

back and then it [12] had about a 500-gallon tank that

we put the material in. They would pull this apparatus

through the field behind the tractor and that would

inject the D-D into the ground for fumigation. They

call it solid fumigation.

Q. The D-D rig had tines that dug into the ground

like a fork?

A. Yes, tines, shanks.

Q. Those had hoses that allowed the fumigant to

be sprayed?

A. Yes, sir.

Q. Now, didthese D-Drigs you have familiarity,

correct?

A. Yes.

Q. You took them out in the field?

A. Yes.

Q. Did these D-D rigs have any filters on them?

A. Yes, sir.

Q. And what was the reason for the filters?

A. To keep any sediment or trash out of the

orifices, to keep them from being plugged up.

JA-82

Sometimes the D-D, or whatever material it was,

would have settlements of rust or pieces of hose that

came apart. The big filter would catch everything

coming out of the tank going to the pump. We had a

smaller three-quarter inch filter that came out of the

pump going back to a manifold. That manifold would

feed however many shanks we had on the back. Each

one of those tubes would have a small in-line orifice

body with an orifice and a small strainer in it. [13]

Q. Let me go through that again. Now, when the

D-D goes out in the field, would there be dust

generated when it was being dragged around?

A. Yes, sir.

Q. That was a concern as far as that material

getting inside the tank?

A. Right.

Q. When was there a filter on the bottom of the

D-D null rig?

A. Yes, sir.

- Q. What was that for, as far as you understood?

A. That was to keep the dust or sediments from

the big tank getting through the pumps and plugging

the orifice.

Q. That would keep the sediment from going out

of the D-D tank into whatever was transferring into

the D-D pull rig?

A. Yes, sir.

Q. And then you had another filter on top of the

D-D tank?

A. Not on top of the tank. The tank was open.

We would fill directly into it and then it would be

strained coming out of the D-D tank.

Q. Was there some type of filter before it got to

JA-83

the tines?

A. Yes, coming out of the pump there was a small

three-quarter filter there also.

Q. You had a pump on the D-D rig that got the

D-D into the tines? [14]

A. Yes, sir.

Q. There was a filter on that pump?

A. Yes, sir.

Q. Down at the bottom of the tines were there

filters as well?

A. Yes, sir, and every shank had its own filter.

Q. Okay. Now, before you took the D-D rig out to

the field, did you have to make sure it was clean?

A. Right.

Q. And, in other words, if the filter were all

clogged up, it would be would it be difficult to fill the

tank?

A. It would be difficult to take material out of the

tank. ar

THE COURT: Did each shank or tine disperse

material?

THE WITNESS: Yes, sir.

THE COURT: Thank you.

You may continue.

BY MR. MacAYEAL:

Q. Mr. Merryman, were the D-D rigs typically

washed out?

A. Not usually. If it got real bad, full of a lot of

sediment or something, we would wash them out.

Usually when we finished an application of the job

during our busy season, we would move it from one

location to another and we just credit what material

JA-84

was in the tank and charge to the other farmer.

Q. How would you know how much was in there?

A. They had plastic sight gauges or tubes on the

end of the tank, hoses, and they were marked and

calibrated in gallons and [15] you could check it that

way.

Q. If the tank were half full, the sight gauge

would read half full?

A. Yes, sir.

Q. And you applied D-D year-round, though,

correct?

A. Yes, sir.

Q. And if there was residual material in the D-D

rig out at the field that you were not transferring to

another job, what would happen with that rig at that

point?

A. If there was a small amount, like less than a

hundred gallons or so, the servicemen would hook on

for it, tow it back into the yard and park it in the lot.

Q. And that would be staged somewhere in the

plant?

A. Yes, sir.

Q. Where was that?

A. In the early years, it was on the north end of

the warehouse. In the later years, it was on the

northwest and the west end of the warehouse.

Q. This is to the west of the warehouse?

A. Yes, sir.

Q. And that was after the fence got taken down in

1975?

A. Whatever year it was, yes, sir.

Q. And so did you have occasion to check out the

J A-85

D-D rigs before you took it out on the job?

A. Yes, sir. It was easier to check them in the

field, to [16] clean the filters and do everything there,

but we did check them there.

Q. What happened from time to time when you

checked the filter on the bottom of the tank, if

anything?

A. Inregards to?

Q. Was there any spillage?

A. Yes, sir.

Q. Were there any special nurse tanks that were

devoted to D-D?

A. Yes, sir.

Q. How were they different from the other nurse

tanks?

A. They had a different type of hose on it to

handle the material, they were smaller hose. Other

than that, it was the same.

Q. And were these tanks—the D-D tanks were

not rinsed for the most part, the pull rigs, rather?

A. The pull rigs were not rinsed.

Q. How about the D-D nurse tanks, were they

rinsed from time to time?

A. Whenever they were brought into the yard, if

it was going right back out to another D-D job, they

would hook onto it and take it back. If it was going to

be in the yard for a while, they would clean it up and

park it in the lot.

Q. Was there ever occasions you were aware of

where not all of them got rinsed out for whatever

reason? [17]

A. Yes, sir.

JA-86

Q. Too many of them lined up?

A. Yes, sir.

Q. And were those staged over on the western

side of the plant, west of the warehouse?

_A. Usually when the servicemen brought it in,

they would park it on the west side. It was easier to

unhook.

Q. Was this a situation where you have to check

the filters? Do these have filters?

A. Yes, sir.

Q. Was it important to check these filters on the

tank as well?

A. If you were going to turn it right around and

take it into the field and you decided to use another

application, we would clean it there.

Q. There was a filter on the bottom of the tank

that you would open up?

A. Yes, sir.

Q. You did it yourself?

A. Ihave done it myself.

Q. Was there any type of spills you experienced?

A. Yes, sir.

THE COURT: Where was the—you say that each

time the rigs were brought in, the nurse tanks, they

were checked, the filters were checked. Was that at

the Brown & Bryant site [18] or in the field?

THE WITNESS: That was done inside the Brown

& Bryant site when we brought them back in.

THE COURT: Even though you wouldn’t rinse

them, the filters would be checked every time the tank

came in?

THE WITNESS: Right. Because you would have

J A-87

sediment in it. It was easier to do it there than out in

the field.

BY MR. MacAYEAL:

Q. If you had a clogged-up filter, would there be

problems from having a clogged-up filter?

A. Right. Sometimes you couldn’t get any

material out of the tank or it would plug up the rest of

the rig, so it was easier to take it apart, clean it there

where we had hose and different ways of cleaning it or

replacing it.

Q. Okay. Now, were any of the Bobtails—let me

ask you this.

Do you recall a tank, a big bulk tank that was

dedicated to the product D-D?

A. Yes, sir.

Q. All right. Now, do you recall a was there a

windstorm or some type of a storm

THE COURT: Can we do this? How big was the

tank for D-D only?

THE WITNESS: I’m not sure how many gallons it

held. It would hold like two loads or three truckloads,

which were [19] usually

THE COURT: A thousand gallons, estimate?

THE WITNESS: No. When they delivered the

D-D, I think it was probably I’m speculating, but I

think it was probably 4,000 gallons or so. So, in that

area.

THE COURT: In your tenure from 72-73 until ‘81,

was there always a D-D bulk tank?

THE WITNESS: No, sir.

THE COURT: So how long was there a D-D bulk

tank?

JA-88

THE WITNESS: Up until when we had the dust

storm, it was either “77 or “78, I’m not sure what year it

was, but that tank was destroyed.

THE COURT: And your earlier testimony that

concerned nurse tanks, pull rigs and Bobtails, we are

talking about that equipment being used only for D-D?

THE WITNESS: We had a special number of

trailers that we used for just D-D. The Bobtails would

be used for all materials.

THE COURT: Other materials as well. And how

many units were devoted to D-D only?

THE WITNESS: On the nurse trailers?

THE COURT: Yes.

THE WITNESS: I can’t remember the exact

number. There was probably ten or so.

THE COURT: And D-D was used, to your

understanding, [20] as a soil fumigant?

THE WITNESS: Yes, sir.

THE COURT: You may continue.

BY MR. MacAYEAL:

Q. Now, after that you recall that the D-D tank

was damaged in that windstorm?

A. Yes, sir.

Q. That was ‘77 or ‘78?

A. Whenever the dust storm was.

Q. Did the plant take, where’ was there a place

that you were aware of where they stored the D-D

since they didn’t have that tank? Where did they put

it?

A. We had some large truck and trailers, a set of

doubles, they call them. They were stainless steel

tanks. Each tank would hold anywhere from 2300 to

JA-89

2500 gallons. They were old converted milk trailers

and we would use those. We used it—after we lost the

big tank, we used it for temporary storage, and they

would put those and use it during our busy season.

Q. When you load up the bobtail, it would be

loaded up from that double tank, milk tank, is that

what you call it, a milk tank?

A. Yes, sir.

Q. It was a stainless steel milk?

A. They were all stainless steel milk trailers that

were converted. [21]

Q. There were two of them?

A. Wehad two sets, yes.

Q. And were those stored over on the western

side of the warehouse?

A. They would be all over the yard. They would

be on the west side, yes.

Q. Those would be used, then, to download into

the bobtail?

A. Yes, sir.

Q. And, also, as far as you know, any deliveries

coming in would be pumped into that tank?

A. As far as I remember, yes.

Q. Now, let’s go back to you were at the plant

before the parcel to the west of the warehouse was

used?

A. Yes, sir.

Q. And there was a fence running up along the ©

railroad track?

A. Yes, sir.

Q. To the west side of the warehouse?

A. Yes.

JA-90

Q. And do you recall whether or not that fence

was taken down at some point?

A. Yes, sir. \

Q. Do you remember the precise year?

A. Icouldn’t tell you the exact year, no.

Q. Now, after that fence was taken down, was

there anything done to that property out to the west of

the warehouse as far [22] as grading or anything like

that?

A. The first thing we did was remove the railroad

spur that was ran alongside the warehouse. After we

took the railroad spur out, then it was leveled. We had

a drag that we drug around, leveled it out.

Q. Did you oil it?

A. Yes, sir.

Q. Allright. Was it a common practice to oil that

A. Yes, sir.

Q. What type of oil was it?

A. It’s just regular road oil. They would have a

truck come out and they would spray it on the ground.

Q. Did it have any type of hard material on it, like

asphalt, or was it

A. No, it was just like road oil.

Q. Okay. And you recall seeing that surface,

correct?

A. That’s correct.

Q. Throughout the year, would there be vehicles

moved on that surface and other material stored out

there?

A. Yes, sir.

Q. Now, did you ever recall any types of flaws or

JA-91

cracks in that surface?

A. Yes, sir.

Q. What did that look like to you?

A. After they would oil it, we would let it sit for a

week or [23] two until it pretty well dried or soaked in

and then we would move equipment back over and

store it there. They would move it with a forklift or

one-ton truck and turning the wheels back and forth

would always break out new dirt.

Q. You recall seeing that?

A. Yes, sir.

Q. When you did the oiling, would you do one side

of the warehouse first and the other side of the

warehouse?

A. Yes, sir.

Q. When that happened, what would you do with

the material that was, say, on the side that you wanted

to oil, what would you do with the things that were

stored out there?

A. We would move everything to the other side.

Q. Now, do you recall whether or not that oiled

surface on the west side of the warehouse, did that run

all the way up let me back up.

Was there a concrete apron to the west of the

warehouse?

A. Yes.

Q. Now, do you recall whether or not the oiled

surface ran all the way up and touched that surface?

A. No, you couldn’t get the truck all the way up

there. They didn’t spray all the way to it.

Q. And do you recollect whether or not the site.

was graded in any particular way as far as rainwater

JA-92

runoff? [24]

A. Everything was sloped to run to the southeast

corner of the yard.

Q. There was a pond down there?

A. Yes, sir.

Q. And let mc

MR. MacAYEAL: Your Honor, may I hand the

witness a document?

THE COURT: Yes, you may.

BY MR. MacAYEAL:

Q. I hope this shows up, but could you mark the

letter “A” in the area that you had referred to as the

pond.

A. (Witness complies.)

MR. MacAYEAL: Your Honor, I have marked a

photograph as G-100, and may I show it to the witness

and have him identify it, please?

THE COURT: Yes, you may. You can show it to

him physically or put it on the Elmo.

BY MR. MacAYEAL:

Q. Ihave put G-100 on the Elmo so it’s visible on

the computer screens. Lonnie, can you see that?

A. Yes, sir.

Q. Now, I put an “A” down—first of all, what is

that photograph?

A. VTmsorry?

Q. What does this photograph depict? [25]

A. Itis the Arvin facility.

Q. Okay. Now, I put an “A” down on an area of

that photograph. Can you tell me what was located at

that particular location?

A. That was just a large sump area.

JA-93

Q. That was where the facility, the plant drained

down there?

A. Most all the cverything drained to that

corner, yeah.

Q. Did you ever see water puddied up down

there?

A. Yes, sir.

Q. Now, do you recall that there was a sump over

on the eastern side of the plant?

A. I’msorry, a sump on the eastern?

Q. Was there a big sump?

A. There was a large sump where that A area is.

Q. Some people called that a sump, but others

called it a pond?

A. Wecalled it a sump.

Q. Okay. Was there another sump that was

connected with a rinsing location?

A. Yes, sir.

Q. Okay. And let me get you to identify where

that is, please. I’m handing the witness Exhibit G-100.

Could you write the letter “B,” the general area where

the rinsate sump was?

A. (Witness complies.) [26]

Q. Just for the record, on Exhibit G-100, you put a

“B” down on the photograph, correct? Do you see that?

A. Yes, sir.

Q. What was in that location?

A. Originally, it was one large sump.

Q. Uh-huh.

A. And it had two wash racks, one to the north

and one to the west.

Q. Now, in later years, was there an additional

JA-94

sump placed to the south of that?

A. Yes, sir.

Q. And was that can you put a time period on

that? Was it in the 80’s?

A. No. It was actually in the 70’s. It’s when we

lined that sump in the back.

Q. Late 70’s?

A. Yes, sir.

Q. Allright. Now, prior to that time, was let me

back up.

Was there a time when the sump or the pond that is

marked Exhibit A, was there a time that that was

lined?

A. It was lined in the late 70’s. Before then it

wasn’t.

Q. Okay. Now, in connection with that lining and

the placement of the new of the smaller sump in let

me get you to mark where that smaller sump is placed.

A. Be like the letter “C” or something? [27]

Q. Yes,C.

A. Okay. (Witness complies.)

Q. Thank you. Let the record show that you have

put a letter “C” down on the photograph, correct?

A. Yes.

Q. That was where that smaller sump was put in?

A. Yes.

Q. Do you recall what that was for, that smaller

sump?

A. At the time when we lined sump number A, we

also on number B, we put two small concrete sumps

in there. That small concrete sump would drain to

underground. We had a pipe that would drain to C to

JA-95

catch all the sediment and then C would drain into A.

Q. C would capture the sediment?

A. Yes, sir.

Q. Did you install the pipes that connected B, C

and A?

A. Yes.

Q. Do you remember when that was? Was that

late 70’s, early 80’s?

A. It was in the late 70’s when we lined that

pump. I couldn’t tell you what year.

Q. Prior to that was there any connection

between sump B and the pond A?

A. Not that I’m aware of.

Q. Are you familiar with the product called

Nemagon? [28]

A. Yes, sir.

Q. And when you were out there at the plant, was

that something that was taken out to the growers’

fields?

A. Yes, sir.

Q. And how did that come into the Arvin plant?

A. They would bring it in in 30-gallon drums and

5-gallon drums.

Q. Now, the 30-gallon drums, was there anything

done to the 30-gallon drum before it went out to the

field?

A. Sometimes, yes.

Q. Was it mixed with water?

A. Yes, sir.

Q. And how would that happen?

A. We would get one of the Bobtails. We would

put water in it to an amount of mix that they needed,

JA-96

we would weigh it, and we would back up and we would

get a forklift, raise the drums up, open the lid and

dump the drum into the top of the bobtail and mix it.

Q. And then you would transport it to the field?

A. Yes, sir.

Q. And apply it?

A. Yes, sir.

Q. What happened with that? After you emptied

the drum, where would that drum be placed, if

anyplace?

A. Before we got the property to the west side of

the shop, it [29] was stored at the south end. I would

have to show you.

Q. Let me have you mark, please, with a “D”

where that area was that you just referenced.

THE COURT: Which of the drums were the ones

that were used to mix 30- or the 5-gallon?

THE WITNESS: They were mostly 30-gallon

drums.

THE COURT: Thank you.

BY MR. MacAYEAL:

Q. Now, on Exhibit G-100, you see on the screen

where you have put down a “D”?

A. Yes, sir.

Q. What was that area before you went out onto

the west of the warehouse, what was that?

A. That’s where we stored all the drums, the

5-gallon cans.

Q. Let me back up. The 5-gallon, did you

remember 5-gallon cans of Nemagon?

A. Yes, sir.

Q. How were those applied to the field?

JA-97

A. They were mostly done with what they called a

“dripolator.” It was a device that you would open on

the drums there were two sizes, on the 5-gallon there

would be like a two-inch and three-quarter inch. You

would take the three-quarter inch plug out, you would

screw this brass dripolator in. It would have anywhere

from two to four outlets, sometimes even more, and

then you would hang that upside down on the back of

the tractor [30] and it would drip out to the shanks.

Q. What happened with the can after it was

emptied, if anything?

A. We would bring it back in the yard and store

them where that “D” is.

Q. Okay. Now, wasthere from after you started

using the property to the west of the warehouse?

A. Yes, sir.

Q. Was there a did you have occasion to store

drums out on that western area?

A. Yes, sir.

Q. Then did you store the Nemagon, the 30-gallon

Nemagon drums?

A. Yes, sir.

Q. And these were the ones that had been

emptied?

A. I’msorry?

Q. These are the ones that had been emptied?

A. Yes, sir.

Q@. Was there ever an occasion that that area

where you marked as D got filled up with rainwater?

A. Yes, sir.

Q. And so what would happen? What would

happen to the drums, if anything, that was stored

JA-98

there?

A. Anything at that time would be stored over on

the west side. [31]

Q. Now, what about Weed Killer D, do you

remember that product?

A. Yes, sir.

Q. How would that product be applied out in the

fields?

A. They would usually put it on with a spray rig,

either the farmer’s spray rig or else through tractor

tanks, and then sprayed out with a hose.

Q. And was that a 30-gallon container?

A. I believe those were 55 gallons.

Q. Allright. And—and so those were emptied out

on the farmer’s field, correct?

A. Right, it was either that way or, in some cases,

it was brought out in bulk.

Q. But with respect to the 55-gallon drums, what

would happen to the drums, if anything, after they

were emptied?

A. We would bring them back in the yard.

Q. Where would you place them?

A. There again, in the early days, it would be

down where D is. Later, it was on the west side.

Q. After the fence got taken down and you

started using the west side?

A. Yes, sir.

Q. Now, do you recall you testified earlier about a

concrete apron to the west of the warehouse?

A. Yes, sir. [82]

Q. Allright. What was that used for?

A. Storage.

JA-99

Q. Of what?

A. We would store mostly Weed Killer D and

drums out there and 5-gallon cans out there.

Q. And did you also store that particular material

inside the warehouse?

A. No.

Q. And why on did you store some material in

the warehouse?

A. Yes, sir.

Q. Was there any distinction between the two

products to determine where one would be stored and

where the other one would be stored?

A. The Weed Killer D was—if we ever had a

problem with a leak or something, it was real messy. It

made a mess. It was easier to keep it outside.

Q. Did you ever have occasion to see any leakage

from any of those cans?

A. Yes, sir.

Q. What was done, if you recall, after the leak

occurred?

A. Depending on what type of leak it was, the can

would be picked up, redrummed into another container

and cleaned up.

Q. Did you have a hose out there?

A. Yes, sir.

Q. Did you wash off the pad? [33]

A. Yes, sir.

Q. All right. Now, what I was trying to get at,

was there some product that was stored in the

warehouse, correct?

A. Yes, sir.

Q. Why the distinction? Was there a price were

JA-100

you concerned about theft of some product?

A. Yes, sir.

Q. Could you explain that?

A. The Weed Killer D was a product that nobody

hardly ever would steal. It’s low cost. Where

Nemagon, Fumazone, Round-Up, all that was

expensive.

Q. You would store that and the other products

you just mentioned inside the warehouse?

A. Yes, sir.

Q. But the dinoseb was outside on the apron?

A. Yes, sir.

Q. Now, do you recall the did Brown & Bryant

have company barbeques from time to time?

A. Yes, sir.

Q. Did you ever have any inside the warehouse?

A. Yes, sir.

Q. Were any steps made to clean out that

warehouse before the barbeque?

A. Yes, sir.

Q. What was done? [34]

A. We would go in a week before the barbeque,

we would empty the warehouse out, take all the

material out. It would be swept and then hosed out.

Q. And would it be hosed out in the direction of

the west?

A. It would go out all three doors or four doors.

Q. There was a set of doors to the west

A. Yes, sir.

Q. of the warehouse building?

A. Yes, sir.

JA-101

Q. Now, you were out in the yard quite a bit,

weren’t you?

A. Yes, sir.

Q. All right. And a lot of what happened out

there is the transfer of ‘quid material; is that correct?

A. Yes.

MR. LASATER: Objection, vague, your Honor,

and leading.

THE COURT: All right. The objection is

sustained.

BY MR. MacAYEAL:

Q. Did you ever have occasion to see any transfer

of liquid material from one container to another?

A. Yes, sir.

Q. Can you tell us what that was?

A. It was all types. It was—it was trucks

unloading material into storage tanks, it was Bobtails

loading out of storage tanks, it was rebottling materials

into drums, a lot of [35] different materials.

Q. Now, did you ever have occasion to see any

leakage from that?

A. Yes, sir.

Q. Was that a rare event?

A. No, sir.

Q. Was it common?

A. Yes, sir.

Q. Was it common enough that you didn’t

particularly pay any attention to it?

A. Yes, sir.

Q. Now, did you ever have occasion to witness

any tanker trucks downloading material into the D-D

tank?

JA-102

A. I have seen some in there. I seen all kinds of

trucks unloading trucks.

Q. All right. Did you ever have occasion to see

any materials transferred from a tanker truck where a

bucket would be placed underneath the connection?

A. Yes, sir.

Q. All right. And did you ever have occasion to

sec do you remember whether or not that was done in

connection with the D-D tank?

A. That was all materials.

Q. And did you ever have occasion to see any

spills with that type of activity? [36]

A. That was a common practice, yes, sir.

THE COURT: When you talked about leakage

being common, on the transfer of materials from trucks

to storage, from tanks out of storage and bottles to

drums, where did the leakage go?

THE WITNESS: You mean like on the ground?

THE COURT: Yes, where did it go?

THE WITNESS: Yes, it would be on the ground.

THE COURT: All right. And when you talk about

spills from all materials, including the D-D tank, where

did the spills go?

THE WITNESS: When they were unloading, sir?

THE COURT: You were asked about buckets

being under the connection.

THE WITNESS: Yes. When they were pumping

off, we had a 5-gallon bucket we kept out there. When

they got through unloading and unhooked their hoses,

they would drain their hoses into that bucket and that

bucket would be dumped back into the tank they were

putting it in or into another storage tank.

JA-103

THE COURT: Thank you.

THE WITNESS: You are welcome.

THE COURT: And the spills that you referenced,

what were those?

THE WITNESS: Just about anything we had in

the yard. [87] I have seen spills of one type or another,

sir. It was quite a daily

THE COURT: And where were those spills? In

other words, what was the receiving point of the spill?

THE WITNESS: I’m sorry, I don’t understand.

THE COURT: The material, assumedly, is spilling

from a drum, a bottle, a tank, a bobtail and it spilled

somewhere. Where did the spill go?

THE WITNESS: It would go usually on the

ground. If the bobtail was loading something in the

yard anywhere or we were cleaning something out in

the yard, wherever that was, it would spill.

THE COURT: Thank you.

THE WITNESS: You are welcome.

BY MR. MacAYEAL:

Q. Now, after you left Brown & Bryant, you went

to work for Kisco?

A. Yes, sir.

Q. And do you recall, did you ever have occasion

to sell equipment to Brown & Bryant?

A. Yes, sir.

Q. Was there ever do you recall one way or

another whether you ever sold a pump to Brown &

Bryant in connection with the D-D tank?

A. Wesold them pumps and seals, yes. [38]

Q. And do you remember a particular pump that

was placed on that D-D tank around 1981 or ‘82?

JA-104

A. lremember them buying a pump from us for a

D-D tank. I couldn’t tell you what year it was.

Q. All right. Now, the area to the south, I’m

talking about in reference to the western side of the

warehouse, okay, to the south of that parcel.

A. Yes, sir.

Q. Did you ever see any flooding or ponding down

in that area?

A. I would have to show you on the map.

Q. Let me hand you Exhibit G-100. Why don’t

you draw, if you can, the general area where you would

see ponding in that southern part

A. That would cover the whole south end of the

map.

Q. Okay. Why don’t we do it this way. After a

rain, would it pond up down by the sump that you

marked as A?

A. Yes, sir.

Q. All right. And would that be a different

would the water extend to different areas depending

upon the rain event?

A. Yes, sir.

Q. Do you have in your mind, though, sort of a

typical area that it would cover?

MR. LASATER: Objection, vague.

THE COURT: Do you understand the question?

THE WITNESS: I’msorry? [39]

THE COURT: Do you understand the question?

THE WITNESS: Yes, sir.

THE COURT: Overruled.

THE WITNESS: It would. I’m trying to see how I

can explain it. Let me see. On this map there is a large

JA-105

tank just above

BY MR. MacAYEAL:

Q. Let me put it back on the screen. Could you

direct me, you are talking about this tank here?

A. Yes, sir.

Q. All right. Why don’t we mark that—is that

called the UN-32 tank?

A. That was a UN-32 tank.

Q. Why don’t you put an “E” right in the middle

of that.

A. (Witness complies.)

Q. Let the record show that I’ve handed the

witness Exhibit G-100. And you have put an “E” down

on that picture, correct?

A. Yes.

Q. What does that represent?

A. That was our UN-32 tank, and a flood would

come all the way up. If you look at the white line right

next to it, there is like a white line that runs all the way

down towards C.

Q. Uh-huh.

A. The water would extend all the way up, even

up to where just below B where the white anhydrous

ammonia tank was, just [40] south of it about 50 feet.

That would all be under water.

Q. Let me mark the anhydrous ammonia tank, if

you would, please, with an “F.”

A. (Witness complies.)

Q. Let the record show that I have handed the

witness Exhibit G-100. I have put an “F” down on that

photograph.

A. Yes.

JA-106

Q. What does that “F” represent?

A. That was the anhydrous ammonia tank.

Q. And you were talking about where you had

seen water ponding?

A. The water would run all the way up to just

about 50 feet from that tank just wide enough you

could drive a bobtail through without being in the

water.

Q. When you say “that tank,” which tank are you

referring to?

A. ITmsorry. The one that’s marked number F.

Q. Would the water be north of that or south of

that?

A. Be south of that.

Q. You say it was wide enough for what?

A. Wide enough where you c2n drive a bobtail

before it got into the water. Almost to the tank.

Q. Okay. You talking about the depth?

A. Yes.

Q. And how high was that bobtail tank from the

ground surface?

A. The bottom of the bobtail? I could only

speculate. I [41] couldn’t even guess.

Q. Allright. Was it higher than your knees?

A. Tothe bottom of the truck, I would say yes.

Q. Now, was there a railroad spur running up

along the warehouse?

A. Originally there was, yes.

Q. All right. During the time that that railroad

spur was there, was there any type of drainage device

from the west side to the east side underneath that?

A. No, there was nothing on the west side, just

JA-107

dirt.

Q. In other words, was water did water on the

west side of the warehouse, was that channeled down

to the pond?

A. Everything would go down to the pond, yes.

MR. MacAYEAL: All right. No further questions,

your Honor.

Excuse me, your Honor. I would like to move

Exhibit G-100 into evidence.

THE COURT: Any objection?

MR. LASATER: No, your Honor.

THE COURT: G-100 is received in evidence.

(Plaintiffs’ Exhibit G-100 was received.)

THE COURT: Mr. Lasater, you may proceed.

MR. LASATER: Thank you, your Honor.

Mr. Merryman, I still don’t think you can see that.

THE WITNESS: Not directly. [42]

MR. LASATER: Maybe we can work on this at the

break, your Honor. At this point, if I can just have the

witness be able to see it and your Honor.

MR. MacAYEAL: Your Honor, may I sit over

here?

THE COURT: You certainly may.

MR. LASATER: I think we can, at the break, work

out an easel system in the jury box.

THE COURT: All right.

CROSS-EXAMINATION

BY MR. LASATER:

Q. Mr.Merryman, how are you today? Ike

Lasater. I said hello to you again.

A. Fine.

Q. I have put up here on this easel an

JA-108

enlargement of what has been previously marked as

Exhibit 689, that was the deposition exhibit and also

the number that the railroad used to designate the

exhibit.

So, your Honor, you have that available to you in a

binder?

MS. BECKER: Excuse me, I believe it’s 687.

MR. LASATER: 687, excuse me, I misspoke. We

have a series of binders for the Court.

THE CLERK: They haven’t been opened yet.

MR. LASATER: We will get them for you.

THE COURT: Fine. I can work off the large

diagram [43] now.

MR. LASATER: So the government counsel will

also have that as 687 in the binder.

MR. MacAYEAL: We have a copy of it?

MR. LASATER: Yes.

BY MR. LASATER:

Q. So with all of those logistics

MR. MacAYEAL: Is this it? It doesn’t have

marking on it.

MR. LASATER: I’m not so sure on the Elmo with

all those lines if it don’t drive me to distraction.

BY MR. LASATER:

Q. Mr. Merryman, my question to you is whether

this exhibit, 687, appears to you to be a reasonable

drawing or aerial view map of what you have been

calling the Brown & Bryant property and the west

side?

A. Yes, sir.

Q. I’m going to use this grid map to identify some

of the things that you have testified about here and at

JA-109

deposition. First, if I might, the fence that you were

talking about was a fence that ran approximately on

the line, the fence that was removed, ran on a line, that

is the H grid line, is that approximately correct?

A. Yes, sir. :;

Q. And so that fence, it ran actually from the

northwest [44] corner of the warehouse on grid line H

between grid 4 and 5?

A. I can’t see the numbers from here, but

THE COURT: The numbers are on the vertical

axis and 1 is on the top going down to 31 at the bottom,

which I understand to be the south.

THE WITNESS: Where it’s marked right there

“fence,” that is where the line ran.

BY MR. LASATER:

Q. Okay. This drawing actually shows the fence

as being a little bit out to the west from the warehouse.

Is that actually the way you remember it?

A. Yes, sir.

Q. Okay. So that you could get let me ask it to

you this way. Was there a _ this is different from the

way I understood it, so let me rephrase it.

THE COURT: 12-G-4 and a half to 23-20, that’s the

fence?

BY MR. LASATER:

Q. Was it along the G grid line?

A. It was in that area, yes.

Q. Was there actually space to walk between the

fence and the warehouse?

A. There was a set of railroad tracks that ran

through there, so there was enough area to walk

between there.

JA-110

Q. And so the fence, as you remember it, was on

the west side [45] of those railroad tracks that were

that ran north and south alongside the warehouse?

A. The way I remember it was, yes.

Q. Okay. And then at some point in time, Brown

& Bryant leased this property to the west that you call

to the west?

A. Yes, sir.

Q. And when that—and how did you find out

about that?

A. When they told us to take the fence down and

they put the other fence up along the railroad tracks.

Q. That was your supervisor, Mr. Turley?

A. Yes, sir.

Q. And then you and a crew went in there and you

ran a drag over this property; is that right?

A. Yes, sir.

Q. And the property there is the western side of

the warehouse?

A. Yes, sir.

Q. And you understood that to be railroad

property?

A. Yes, sir.

Q. And would you describe the drag to the Court.

A. It was pulled behind a pickup or behind the

tractor. It was like a piece of pipe with some chain on

it, and there would be like a series of pipe and they

would pull this across the ground and it would smooth

it out and eliminate whatever weeds and rocks and

stuff were there. [46]

Q. Did you ever have a grader in there or actually

move soil to try to change the drainage at that time?

JA-111

A. We had one of the farmers to the east of us, we

borrowed his tractor with a scraper on the back and we

scraped it.

Q. When you scraped it, what did you do?

A. Mostly and then scraped where everything

would drain back towards the back of the yard.

Q. And were there actually railroad rails in place

next to the warehouse?

A. Yes, sir.

Q. And you took those out?

A. Yes, sir.

Q. Now, prior to these this shift, and I believe

you testified, but let me confirm, you are not certain

what year that was?

A. Icouldn’t be exact, no.

Q. Was it your understanding at the time from

your supervisors at Brown & Bryant that that took

place right after the leasing of that property from the

railroad?

A. Yes, sir.

Q. Now, before that lease took place and the

activities you’ve just described took place, the

activities of the Brown & Bryant Arvin operation took

place on what you’ve described as the Brown & Bryant

property; is that right?

A. Yes, sir. [47]

Q. And that property is shown on Exhibit 689

(sic) as the property that runs along grid line 1 starting

at about G or H and runs to the east a little bit past X;

is that right?

MR. MacAYEAL: Objection as to foundation, your

Honor. This witness doesn’t know the property lines.

We have other witnesses who will say what the

JA-112

property line is. I just asked him where west and east

are from the warehouse.

THE COURT: I will let the foundation be

established. I think you said “689” and my

understanding it is 687.

MR. LASATER: First of all, that is correct. It is

687, your Honor.

THE COURT: You can lay the foundation.

BY MR. LASATER:

Q. Let me ask it this way to you, Mr. Merryman.

You described the west side fence before Brown &

Bryant leased the property from the railroad. Was

there a fence in place along the north part of the

property that you understood was the Brown & Bryant

property?

A. Yes, sir.

Q. And did that run along grid line 1 from

approximately G or H all the way to a little past X?

A. Onthat map, yes, that’s where the fence ran.

Q. And then the east side fence ran where it’s

shown here almost along the X grid line a little bit to

the east of the X grid line? [48]

A. That’s where the fence was, yes.

Q. And then the fence before the lease, as shown

at about G or H and 20, is a curved line that runs from

there to the lower right-hand portion of this

Exhibit 687; is that right?

A. Yes, sir.

Q. Okay. That’s what you called the yard before

the lease of the railroad property on the west side of

the warehouse; is that right?

MR. MacAYEAL: Objection as to “that.” I don’t

know what he means by “that.”

JA-113

THE COURT: Sustained.

BY MR. LASATER:

Q. The portion that you’ve described as being

within those four fence lines, the southern, the eastern,

the northern and the western, before the lease of the

railroad property to the west of the warehouse, was

that the area that you called the yard?

A. Yes, sir.

Q. And was that the area where Brown & Bryant

conducted its activities before it leased property from

the railroads?

A. Yes, sir.

Q. And the activities that took place in that area

were the activities, among others, included rinsing out

of these bobtailed trucks when they came back in after

having delivered D-D to the fields? [49]

A. Yes, sir.

Q. And it included, upon occasion, rinsing out

nurse tanks that had been used to store D-D?

A. Yes, sir.

Q. And it also was used for the rinsing out of the

tanks in which the diluted Nemagon had been

transported to and stored at the farmer’s field?

A. Yes, sir.

Q. And the rinsing that you just referred to of

D-D and Nemagon, that rinsing took place into the

sump, which you've identified on the government’s

exhibit as, I believe, C. That’s Government’s

Exhibit G-100 at B? I’m now handing you G-100.

A. Right, where B is.

Q. And at B on Government’s G-100, there were

two wash pads, one oriented north and south on the

west side of that sump and one that was oriented east

JA-114

and west on the north side?

A. Yes, sir.

Q. And those were organized to where you could

drive a truck or a tank up onto a concrete pad; is that

right?

A. Yes, sir.

Q. And there was a drainage hole in the pad?

A. Yes, sir.

Q. And that drainage went into the sump; is that

right?

A. Yes, sir. [50]

Q. And that sump, up until 1979 or ‘80, was

unlined?

A. Yes, sir.

Q. Meaning it just had an earthen bottom?

A. Yes.

Q. And approximately how deep was it?

THE COURT: You talking about the sump at B?

MR. LASATER: Yes, your Honor.

THE COURT: And the rinse pads were on the

north and

MR. LASATER: The west.

THE COURT: The west sides of the sump.

THE WITNESS: That’s right, sir. As for the

depth, I have no idea. It was deep.

BY MR. LASATER:

Q. And can you recall ever a time while it was

unlined that there was not liquid in it?

A. No,sir.

Q. So it always had liquid?

A. Yes, sir.

JA-115

Q. Can you give us the dimensions of this unlined

sump that’s been referred to as B on Government’s

G-100?

A. Icouldn’t be exact, but it was probably it was

a pretty good-sized sump. It was probably 35 by 35

foot.

Q. You say it was deep. Can you give us a range?

It was deeper than a foot? [51]

A. It was deeper than 10 foot, I know.

Q. Prior to leasing the railroad property, was this

the only area where Brown & Bryant rinsed out its

equipment?

A. That’s where we tried to do all of it, yes.

THE COURT: May I ask, what is the estimated

time for the examination of Mr. Merryman?

MR. LASATER: Your Honor, I think given how

it’s going now, I have at least 45 more minutes.

THE COURT: Allright. Then will Shell have some

questions?

MR. EARLE: We have some questions, your

Honor, yes.

THE COURT: It appears to me that we couldn’t

reasonably keep going. And I don’t want to unduly

detain you, Mr. Merryman, but we are going to take

the noon recess now. We will resume at 1:30, and then

it sounds like about an hour or so more.

THE WITNESS: That’s fine.

THE COURT: We will stand in recess.

(The lunch recess was taken.)

AFTERNOON SESSION

1:30 p.m.

THE COURT: We are going back on the record in

JA-116

United States versus Atchison, Topeka.

Mr. Lasater, you may resume your cross-

examination.

MR. LASATER: Thank you, your Honor.

Initially, your Honor, I have here a binder that has

some of the exhibits. Making sure of who is on first.

I also have provided for the witness what your

Honor has just unfolded there, which is a smaller

version of the enlargement of Exhibit 687. And then

also underneath this, I will come to it in a minute, are

Exhibits 1023, 1024, 1025 and 1027.

THE COURT: You want this exhibit in evidence?

MR. LASATER: Your Honor.

THE COURT: 687, is there any objection?

MR. MacAYEAL: There is an objection to the

extent that there is some editorial comment on the

document and it depicts the site as it was long after the

witness had any dealings with it. I think he asked the

witness generally does it look like the plant, and I think

the witness said yes, but I just want to make it clear

that the witness cannot lay a foundation for all these

editorial comments about direct --

THE COURT: We will wait for the foundation.

BY MR. LASATER: [53]

Q. Mr. Merryman, looking at Exhibit 687, there in

the center is an area that’s entitled “dry sealed pumps

with inspection door,” and it points to a blackened area

that’s between grid lines 16 -- excuse me, between grid

lines 17 and 18 and O and P. Do you see that?”

A. Yes, sir.

Q. Okay. Now, that was -- is that what it looked

like when that area was an unlined sump?

A. That’s the same location, yes.

JA-117

Q. It’s the same location. The wash pad to the

west is shown here as being from grid 18 up to midway

between 17 and 18 and it is along grid line N; is that

correct?

A. Yes, sir.

Q. And that was the wash pad that was there the

whole time you worked for Brown & Bryant?

A. Yes, sir.

Q. And there is another wash pad that’s to the

north of that blackened area that I identified when you

first began in this afternoon session, and that is

between grid lines O and R and along grid line 16?

A. Yes, sir.

Q. And those were the two concrete wash pads

that you testified this morning were where the

equipment was pulled up to, they would be washed out,

whatever was drained would be drained onto those

pads, and from those pads there was a [54] connection

into the unlined sump; is that right?

A. Yes, sir.

Q. And then sometime about the time that the

pond in the southeast corner of the Brown & Bryant

property was lined, at about that time, this sump was --

the unlined earthen sump was replaced with two

concrete below-ground containers; is that right?

A. Yes, sir.

Q. And they were open at the top?

A. Yes, sir.

Q. And approximately what were their

dimensions?

A. I would be speculating, but I would say they

are probably 8 foot by 12 foot long and the depth was

probably 8 foot.

JA-118

Q. And were those -- there were two concrete

boxes set side by side in the same place where the

unlined earthen sump had been; is that right?

A. Yes, sir.

Q. And after those were put in up until the time

you left Brown & Bryant’s employment, did Brown &

Bryant continue to use that sump with those concrete

boxes as the washout area?

A. Yes, up till probably four months before I left,

and we stopped using them altogether.

Q. And where was washout done at that time?

A. They would still try to use that same area, but

we weren’t able to wash the trucks. We used to do our

cleanup on the [55] trucks and they weren’t able to

wash there, just the trailers.

Q. And by “the trailers,” you mean the tank

trailers?

A. Yes, sir.

Q. And by “trailers,” are you also including the

bobtail trucks that had the big tanks on them that were

used to carry product to the farmer’s field?

A. Right.

Q. So the operation of rinsing out the inside of the

tanks continued up until the time you left Brown &

Bryant’s employment?

A. Yes, sir.

Q. And it happened at this area where it was first

an unlined sump and then they put those two concrete

boxes in?

A. Yes, sir.

Q. snd the unlined earthen sump, you gave us the

dimensions of that before lunch, and you said that it

was at least 10 feet deep. I neglected to ask you then, I

JA-119

ask you now, how much liquid would be in that unlined

earthen sump typically?

A. It would be pretty full certain times of the

year. It would be up to the very top. Other times, it

would be down about 5 foot, 6 foot.

Q. Six foot from the surface?

A. Yes, sir.

THE COURT: And we are talking about the sump

in the area of grids line 16, O through R, not the double

-- what’s [56] referred to as the double lined pond in

the lower southeast corner of the property?

MR. LASATER: That’s what I’m referring to, your

Honor, but I will confirm it with the witness.

BY MR. LASATER:

Q. When I have been talking about the unlined

sump that was then replaced with the two concrete

boxes, were you referring to this darkened area on

Exhibit 687, which is between grid lines 17 and 18 and

between O and P?

A. Yes, sir.

Q. Now, we got off onto this about the sump when

I was asking you what took place on the Brown &

Bryant property before Brown & Bryant leased the

property to the west of the warehouse.

MR. MacAYEAL: Judge, I would make an

objection to the continued reference to the “Brown &

Bryant property,” because this witness does not

necessarily have a foundation to know where the

property line was.

THE COURT: Well, let’s do this.

MR. MacAYEAL: If they want to identify it by

fence, I have no objection, but there has been no

foundation --

JA-120

THE COURT: Let’s determine _ this. Mr.

Merryman, do you know of your own knowledge from

the time you were on the property and as of the time

you were on the property, if we take the area that is

contained within [57] the grids on Exhibit 687, starting

on the west with A and going to X on the east, and on

the north going from 1 to 31 on the south, recognizing

that there is that curve, do you know who owned that

property during the period of time you were there?

THE WITNESS: I don’t know who owned it, no. I

know Brown & Bryant used that facility.

THE COURT: All right. And so we have talked

about the fence coming down generally along on the

vertical axis grid G. Did you understand that Brown &

Bryant at some portion of time while you were there

was using all the property within this grid after the

fence came down?

THE WITNESS: Yes, sir.

THE COURT: All right. So let’s just refer to this

for now as the Arvin site, and that way nobody will

have to be concerned about ownership until we get that

into evidence.

BY MR. LASATER:

Q. Mr.Merryman, if I might develop a

terminology with you. You identified area within the

fence before the time Brown & Bryant leased to the

west of the warehouse, and that was where Brown &

Bryant conducted its operations; is that right?

A. Yes, sir.

Q. I’m going to refer to that as the Brown &

Bryant yard.

A. Yes, sir.

Q. Okay. And then when I’m referring to the

JA-121

property that was leased after you began to work for

Brown & Bryant, that was [58] leased to the west of

the warehouse, I will refer to that as the area west of

the warehouse. Are we on the same page?

A. Yes, sir.

MR. MacAYEAL: Judge, I just want to make an

objection for the record, because that’s going to be

extremely confusing when we actually do get a witness

to say what the property line is. But if Mr. Lasater

wants to define it in terms -- however he wants. I’m

using different -- I’m using those same terms to mean

different things, just so the record is clear.

THE COURT: I candidly would like it, if we could,

for us to all agree on terms to designate these various

areas of the property. Does anybody object to

referring to the property within the western fence as

the Brown & Bryant yard?

MR. MacAYEAL: I do, your Honor, because my

understanding is the property line runs along -- the

warehouse is on the property line, is what Jack Brown

will testify to.

So and, actually, that’s where the railroad line

was. Obviously, the railroad would own that, because

there was a railroad line on it. So to call that area

where there was a railroad line the “Brown & Bryant

property,” that is misleading. That area where that

railroad track was was railroad property, and we can

get a witness in who will lay the foundation for the

property line. But I just think it’s misleading when I

have been saying west of the warehouse, I [59] mean if

you can stand to the west of that warehouse, that’s

what I mean by that. So now Mr. Lasater is moving it

over a couple of feet and I think it’s confusing for the

record.

JA-122

THE COURT: All right. Well, then, let’s do this.

Let’s, if we can, refer to the property. Would you

agree to grid line H as the western boundary? ~

MR. MacAYEAL: That is the property line as we

have heard, as the testimony, I understand it.

THE COURT: Let’s refer to the property from

grid line H to the east as the Brown & Bryant I don’t

care if you call it “yard.” You can call it anything you

want. And for now, we will refer to the property to the

west of that, going over to grid A, either as leased

property or railroad property, whichever the parties

prefer.

MR. MacAYEAL: Thank you, your Honor.

MR. LASATER: Thank you, your Honor.

BY MR. LASATER:

Q. Okay. I got to remember where I was. I’m

trying to identify with some things that took place on

the Brown & Bryant property or the Brown & Bryant

yard before the property was leased from the railroad,

the leased property came into use. You’ve identified

activities that took place at the sump, which was first

unlined and then lined. Now, also prior to leasing the

property, there was a bulk D-D tank in the Brown &

Bryant [60] yard; is that correct?

A. Yes, sir.

Q. And is that shown on this grid map or is this a

later version of what was there?

A. That’s a later version.

Q. Okay. Would you give us the grid coordinates

of approximately where the bulk D-D tank was prior to

when it was crushed in the windstorm?

A. Between 11 and 12 and P and Q.

Q. And this --

JA-123

A. Imsorry, that’s between 12 and 13. I’m sorry.

Q. Between 12 and 13 and P and Q; is that

correct?

A. Yes, sir, just east of where that C is.

Q. So there is a tank that is shown right along

grid line P between 12 and 13 that has a C in it, which,

according to the legend, says “lime sulfur”?

A. I’msorry. I guess I’m talking about G, the one

right there.

Q. SoG on the legend, it says “mixer,” but what --

regardless -- I’m just identifying what is on the picture.

A. Yes.

Q. What I’m asking you is are you saying that the

A. Probably to be exact, it was halfway between

B and C on that same grid line, they were all in line.

Q. The bulk D-D tank, prior to the time it was

destroyed in [61] the windstorm, was between -- was

on grid line P between 12 and 11?

A. Yes, sir.

Q. Now, I’ve referred to a windstorm. Would you

describe what happened to the D-D tank in the

windstorm?

A. It was totally destroyed. It was buckled in

half.

Q. Approximately when was that?

A. I can’t remember. It was ‘77 or ‘78, one of

those two years.

Q. And do you remember there being any D-D

released from that tank as a result of the windstorm?

A. I don’t remember if there was any material in

the tank at that time.

JA-124

Q. Now, that tank held two or three tanker

truckloads of D-D; is that right?

A. Yes, sir.

Q. And D-D was delivered into this Brown &

Bryant yard at Arvin by these tractor-trailer rigs that

were tank trucks; is that right?

A. Yes, sir.

Q. And as far as you know, D-D was never

delivered by rail car; is that right?

A. Not tomy knowledge, it never was.

Q. Now, these tractor-trailer rigs pulling a tank of

D-D would pull into the yard and unload at the D-D

bulk tank before the [62] windstorm?

A. Yes, sir.

Q. And those would contain approximately 5,000

gallons, or do you have another number in mind?

A. I couldn’t tell you exactly. Somewhere

between four and five.

Q. And the D-D bulk tank, as it existed before the

windstorm, would hold at least more than 10,000

gallons?

A. Yes, sir.

Q. And it was during the delivery from these

tractor-trailer rigs pulling a tank of D-D, it was during

these deliveries that you personally saw D-D coming

out of the hose coupling; is that correct?

A. Yes, sir.

Q. And there was a 5-gallon bucket that was used

to try to collect those, but nonetheless, you saw D-D go

onto the ground; is that right?

A. Yes, sir.

Q. And you saw at instances when that would

JA-125

happen you would see at least two gallons on the

instances where you saw a fair amount come out?

MR. EARLE: Objection, your Honor. The witness

is being led.

THE COURT: Sustained.

BY MR. LASATER: [63]

Q. How much did you see come out did you ever

see material come out of the couplings of these tractor-

trailer rigs that were delivering the D-D to the bulk

tank?

A. Ihave seen material come out, yes.

Q. Can you give us an estimate of the quantity?

A. It would be hard to say exact. I have seen

sometimes just a few cupfuls, other times they would

fill a 5-gallon bucket, no problem.

Q. And that would go on the ground?

A. Sometimes it would, yes.

Q. Now, in addition to before the lease of the

railroad property let me go at it this way.

There was also on the Brown & Bryant yard, there

was an area where you stored—” you,” meaning Brown

& Bryant employees—stored empty cans of pesticides

and herbicides; is that right?

A. Yes, sir.

Q. And those empty cans included 5-gallon cans

that had formerly contained Nemagon,; is that right?

A. There were some, yes.

Q. And that storage area also contained empty

cans that formerly contained Brown & Bryant’s Weed

Killer D?

A. Yes, sir.

Q. Do you know that Weed Killer D contained a

JA-126

product called dinoseb? [64]

A. I didn’t know what the chemical name was, but

it was something like that, yes.

Q. And that can storage area, at some point did it

become was a concrete pad laid down for it?

A. Yes, sir.

Q. Is that shown on Exhibit 687?

A. Yes, sir.

Q. Is it the area in the south part of the yard near

the UN-32 tank that has an arrow to it with a legend

that says “concrete can enclosure”?

A. Yes, sir.

Q. Before that concrete pad was put down, had

the cans been stored in that same area?

A. Yes, sir.

Q. The empty cans?

A. Yes, sir.

Q. Now, when those empty cans were stored in

that area, were they periodically, meaning every

couple cvery two to three months, did a crew of

Brown & Bryant employees go out there and crush

those cans?

A. Yes, sir.

Q. And did they use a hydraulic ram, like a log

splitter, that would squeeze them down?

A. Yes, sir.

Q. And did you ever see any of the residual

contents of those [65] cans go onto the ground?

A. Yes, sir.

Q. And approximately what size area would be

affected, the ground area would be affected by the

residues from these cans?

JA-127

A. It would be larger than the area marked

“concrete can enclosure.” It would be about double

that size.

Q. And so after they—after the can enclosure was

created and the concrete pad that created it, did Brown

& Bryant continue to crush cans in that area?

A. No, sir.

Q. Approximately when was that can enclosure

created?

A. It had to be ‘79 or ‘80. I couldn’t tell you

exactly when.

Q. After Brown & Bryant leased the property

west of the warehouse and began using it, did the wash

rack and sump activities continue to go on in the Brown

& Bryant yard where you’ve testified to them?

A. Yes, sir.

Q. Now, after you left Brown & Bryant’s

employment and as a result of your coming back

because of your work with Kisco?

A. Kisco, yes.

Q. You learned that Brown & Bryant moved their

rinse operations to the northern part of the yard; is

that right?

A. Yes, sir.

Q. And is that area shown on here as the

contained rinse system on Exhibit 687? [66]

A. Yes, sir. |

Q. Did after the leasing of the property to the

west of the warehouse, did Brown & Bryant ever set

up any kind of wash rack or sump on that property?

A. No, sir.

Q. Now, the did Brown & Bryant ever set up a

JA-128

can crushing area on the property leased to the west of

the warehouse?

A. No, sir.

Q. Did Brown & Bryant ever move any of its

permanent bulk storage tanks onto the property that

had been leased to the west of the warehouse?

A. No permanent bulk storage tanks were used.

Q. Now, after the lease, Brown & Bryant did

what you’ve indicated of oiling and dragging or

dragging and oiling, and then as a result of having that

lease and taking down the fence, circulation could go all

the way around the warehouse, driving circulation

could go all the way around; is that correct?

A. Yes, sir.

Q. And there was storage of movable tanks along

the north and the west fence line; is that right?

A. Yes, sir.

Q. And there were some pallets stored out there

with—for a short period of time with some empty cans

on it; is that right?

A. At different times of the year, sir. [67]

Q. And that was mainly during the wet time of

the year, because it would get so wet down in the

southern part of the Brown & Bryant yard that you

would move those empty cans onte the west fence line;

is that right?

A. It would be drums that would be stored out

there, yes.

Q. Now, before going back to before the lease,

did you ever see any Brown & Bryant employees using

the leased, the railroad property’? Now, this is before

Brown & Bryant had a right to use it, did you ever see

Brown & Bryant employees running a spray rig out

JA-129

there?

A. Not to my knowledge, no.

Q. Did you ever see Brown & Bryant out in that

area running a spray rig or any piece of equipment,

draining it out as they were driving around in order to

clear out the tank or the spray rig?

A. No,sir.

Q. Now, Mr. Merryman, with regard to the area

that was leased by the Brown & Bryant from the

railroads, the area to the west of the warehouse, you’ve

said that that area was oiled. Was it also your view

that at some point it was blacktopped?

A. I never seen it blacktopped, no.

Q. Do you remember in your deposition in this

case I asked you some questions and you were also

asked some questions by Mr. MacAyeal?

A. Yes, sir. [68]

Q. And you were under oath at that time?

A. Yes, sir.

Q. And that deposition was in December of 1997;

is that right?

A. Yes, sir.

Q. And at that time you gave as accurate of

answers as you could at the time?

A. Yes, sir.

MR. LASATER: Your Honor, and counsel, I would

like to refer you to the December 17, 1997 deposition,

and I will get it for your Honor. It’s been lodged.

THE CLERK: I will have to get them.

MR LASATER: Is it outside of the room?

THE CLERK: Yes.

MR. LASATER: I will go to something else.

JA-130

BY MR. LASATER:

Q. Mr. Merryman, I want to go back to the sump,

what I have been calling the sump, but it’s the area

where it has the two wash pads and had an unlined

sump and then concrete boxes in there. Did you call

that the wash rack?

A. Yes, sir.

Q. So how often was that wash rack used during

the busy season for Brown & Bryant?

A. Probably every hour it was open. There was

always trailers lined up on it.

Q. So you have testified to something called

bobtail trucks [69] that had tanks on them?

A. Yes, sir.

Q. Those were the trucks that went up to the

Brown & Bryant bulk tank and unloaded the D-D into

the bobtail truck, to the tank on the bobtail truck, and

then those werc those trucks were driven out to the

farmer’s field by a Brown & Bryant employee; is that

right?

A. Yes, sir.

Q. And then at the farmer's field, those tank

trucks that you call bobtail trucks were offloaded into

the nurse tanks that were the four-wheeled mobile

tanks that Brown & Bryant would move from one

farmer's field to another; is that right?

A. Yes, sir.

Q. Now, when those bobtail trucks would come

back imto the yard after a delivery of D-D to a nurse

tank at a farmer’s field, what typically happened to

that bobtail truck?

A. If there was a truck, we had a lot of D-D or

that particular item would be hauled, he would

JA-131

probably come back in, he would pull on the scales, get

a light weight, pull around, load up again, pull back on

the scales and then go back out.

Q. And if that truck came in and was then needed

to transport a chemical other than D-D, what would

happen when that truck came back into the yard?

A. He would pull back on the scales, he would get

a light [70] weight and then go to the wash rack and

wash out and then—

Q. Would you describe to us washing out one of

those bobtail truck tanks into the wash rack sump?

A. They would pull into the rack. The driver

would open a valve inside the truck, it was usually a

three-inch or two-inch valve, he would climb up on top

of the truck with a hose and rinse the truck out.

Q. When he climbed up on top of the truck, was

there a hatch he could open up?

A. Yes, sir.

Q. And then there was a water line, a flexible

water line or hose that he would use to spray inside the

tank?

A. Yes, sir.

Q. And how big was that water hose?

A. There was two. There was a three-quarter

inch hose and an inch-and-a-half hose.

Q. And the valve at the bottom of the truck was

open at the time that the Brown & Bryant employee

was washing out the interior of the tank; is that right?

A. Yes, sir.

Q. And then that combination of D-D that was left

in the—well, let me ask you. Was there ever any D-D

left inside of these bobtail truck tanks when they came

back into the yard?

JA-182

A. You could never pump them completely dry.

They would probably have five to ten gallons,

sometimes 20 gallons left in [71] a truck.

Q. And so this operation that you have described

of washing out one of these bobtail tank trucks, that

resulted in that residual D-D coming out of the tank

with the water on to the wash pad?

A. Yes, sir.

Q. And then what would happen to it?

A. Ifthe driver was able to pull right out on top of

the wash rack, it would drain into the sump; if not, run

out onto the drainage off the other way into the yard.

Q. Onto the surface next to the concrete wash

pad?

A. Yes, sir.

Q. Approximately how often would one of these

bobtail trucks with a residual of D-D in them get

washed out?

A. It would depend on how many loads we had to

haul that day. If we had a lot of D-D going out, it

would continue reloading and going. If that particular

truck had to change over to a different fertilizer,

different chemical, it would rinse out.

They would probably run, during a busy day, those

trucks would probably haul 20 to 30 loads, so it depends

on how it fell in the schedule.

Q. Would you say it was a daily activity to rinse

out a bobtail truck tank that had contained D-D?

A. During the busy season, yes.

Q. And sometimes during the busy season, might

you wash out [72] one of those tanks as much as 20

times?

MR. EARLE: Question calls for speculation.

JA-133

MR. LASATER: I will rephrase, your Honor.

THE COURT: The objection is sustained.

BY MR. LASATER:

Q. During the busy season, did these bobtail

trucks with the tanks on them that were running the

D-D, did they get washed out with residual D-D—let

me phrase it another way.

How often, if you can give us a range, were these

bobtailed trucks with the tanks on them washed out

after they had had D-D in them?

A. We had three tanker trucks usually running at

a time. Each one would probably hold—haul probably

ten loads a day per truck. Sometimes more, sometimes

less. During the course of a day, I would say each

truck probably got washed out at least two or three

times.

Q. And that’s two or three times washing out

residual D-D?

A. That would be whatever they were hauling.

Q. Can you give us an estimate of how often

residual D-D would be washed out of these tanks?

A. At least once a day they would clean them at

the end of every day.

Q. Sois it fair to say at least once a day at the end

of the day and sometimes more often than that in a

day?

A. Yes,sir. [73]

Q. Now, the nurse tanks that you referred to, I

forget what size they were. Were they about 1600 to

2600 gallons?

A. They were 2,000, 2600.

Q. And when they were brought back into the

yard after having contained D-D, were they washed

JA-134

out?

A. Yes, sir.

Q. And was that the standard Brown & Bryant

policy?

A. Yes, sir.

Q. And they were washed out in this same rinse

rack or

A. Wash area.

Q. The wash area; is that right?.

A. Yes, sir, it is.

Q. And then sometimes those nurse tanks, after

having been washed out, would be parked on the leased

property after the leasing took place; is that right?

A. Yes, sir.

Q. And they were also parked on the yard, even

after the leased property had been leased?

A. Yes, sir.

Q. Now, there were no water fittings, no hose

fittings along the west, the very west fence line of the

leased property; is that right?

A. Yes, sir.

Q. And you don’t remember anything ever being

washed out along that westernmost fence line? [74]

A. Not against the fence line, no.

Q. Another piece of equipment that was stored on

the leased property were water run tanks; is that

correct?

A. Yes, sir.

Q. Would you describe to the Court what a water

run tank was?

A. It could be a combination of different tanks,

anywhere from 200 gallon horizontal tank made out of

JA-135

steel up to 500 gallon horizontal tanks made out of

steel. We had some 1,000 gallon poly upright tanks,

and we also had some 1600 gallon polypropylene

upright tanks. ,

Q. Now, on occasion, after Brown & Bryant leased

the property to the west of the warehouse, there were

30-gallon drums of Brown & Bryant’s BB Weed Killer

D that was stored over there, is that right?

A. I don’t remember if there were 30 gallons, I

think there were 55 gallons.

Q. And those were empty cans; is that right?

Empty drums?

A. Yes, sir.

Q. And you never saw any of the let me back up

and ask you.

Brown & Bryant’s Weed Killer D had a

characteristic color when it went out on the ground; is

that right?

A. Yes, sir.

Q. Would you describe that to us?

A. It wasa real dark yellow-orange color.

Q. And in the area that these empty drums of

Brown & Bryant’s [75] Weed Killer D that had

formerly contained Weed Killer D, you never saw that

characteristic color around those drums; is that right?

A. Inever saw it, you said?

Q. That’s my question.

A. No, I did see small leaks and so forth at

different times.

Q. Did you see that on the leased property?

A. Yes, sir.

Q. Okay. Where were these empty drums stored?

JA-136

Were they stored between C and D and 13 and 15?

A. For a while they were in that area, and then

further south, like 18 and 19 and E and F.

Q. Now, did you ever see any of the characteristic

color of dinoseb when these empty drums were stored

in the area C and D and 13 anda 15?

A. Ican’t remember positively, but they always

there was always small Jeaks. I believe one time we

did have one large spill out there in that area. I don’t

know if it was exactly in that coordinate, that

particular area.

MR. LASATER: Your Honor, I see that we have

not yet gotten the deposition transcript.

THE CLERK: You will need to provide the Court

with a copy. That’s only like a third of what we have in

the clerk’s office.

MR. LASATER: If you will indulge me for just a

[76] moment, your Honor, I think we have extra copies.

THE COURT: Yes, I will.

MR. LASATER: Your Honor, I will provide you

with this copy.

THE COURT: Thank you.

MR. LASATER: I would like to direct Court and

counsel to page 143, line 22, to page 144, line 8 of

Mr. Merryman’s December 17, 1997 deposition.

MR. MacAYEAL: Your Honor, this is a prior

consistent statement. What statement is it supposedly

inconsistent to? Is this on the blacktopping issue?

MR. LASATER: No. It’s with regard to dinoseb.

MR. MacAYEAL: You are offering a _ prior

inconsistent statement?

MR. LASATER: Yes.

JA-137

MR. MacAYEAL: Which—

MR. LASATER: 143, line 22 through 144, line 8.

MR. MacAYEAL: I object. This is_ not

inconsistent. The witness said that he did not

remember the particular coordinate, but he did

remember seeing it in general. This question relates to

the particular coordinate.

THE COURT: The deposition can be used to either

impeach or refresh recollection. This question, at line

22 asks him if he saw Weed Killer D in the area

between C and D and 138 and 15, and the witness

answered that he didn’t see the [77] color, he saw it

wet over there a few times when the railroad spurs

were being torn out.

Now, it does refer to a particular—a specific area of

the property. And is the objection that the witness has

not made specific where he saw Weed Killer D?

MR. MacAYEAL: | may have misheard his

testimony, but I thought he said, one, they were 55-

gallon drums, so that is inco

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