# Joint Appendix — Shell Oil Co. v. United States (Nos. 07-1607, 07-1601) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0098%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2009 ## Text ri: reo got 4, or () NOV 17 2008 eso a | fe 0 1 & 07-1601 ee In the \ “oupreme Court of the Gnited 2otates 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 i 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 ii 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 iv 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 aa 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 ae vi 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: ts 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 04/21/2005 07/11/2005 08/04/2005 09/07/2005 09/12/2005 03/16/2007 05/07/2007 05/07/2007 45 71 75 77 87 101 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 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 7 ‘ 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 05/07/2007 36 54 59 61 71 78 79 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 07/30/2007 09/04/2007 03/25/2008 04/03/2008 87 97 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 05/07/2007 52 57 59 69 76 77 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 07/30/2007 09/04/2007 03/25/2008 04/03/2008 85 92 95 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 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 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 09/01/1998 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 09/15/1998 09/15/1998 09/16/1998 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 09/21/1998 11/05/1998 11/05/1998 11/05/1998 12/04/1998 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 a = 12/08/1998 12/08/1998 12/08/1998 12/08/1998 12/23/1998 12/23/1998 1090 1092 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 12/23/1998 12/23/1998 12/28/1998 12/29/1998 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 01/06/1999 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 03/19/1999 03/19/1999 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 04/30/1999 05/18/1999 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 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 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 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 05/18/1999 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 05/18/1999 05/19/1999 07/14/1999 07/19/1999 07/19/1999 07/19/1999 07/19/1999 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 08/17/1999 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 09/12/2002 10/25/2002 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 10/28/2002 11/27/2002 11/27/2002 12/02/2002 12/02/2002 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 12/09/2002 12/09/2002 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 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 — = bs 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 a a *» ‘. 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 or 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? A. 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 i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0098%3A11. Public record. Not legal advice.