In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
Filing
3626
DECLARATION of Connelly in Support re: (157 in 1:04-cv-04973-SAS) MOTION for Summary Judgment for Lack of Evidence Pertaining to Causation.. Document filed by Coastal Eagle Point Company, Coastal Chem, Inc.. (Attachments: #1 Exhibit #01, #2 Exhibit #02, #3 Exhibit #03, #4 Exhibit #04, #5 Exhibit #05, #6 Exhibit #06, #7 Exhibit #07, #8 Exhibit #08, #9 Exhibit #09, #10 Exhibit #10, #11 Exhibit #11, #12 Exhibit #12, #13 Exhibit #13, #14 Exhibit #14)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04973-SAS(Allen, Brent)
51175523
Mar 16 2013
11:27AM
EXHIBIT 8
Marcel Moreau Deposition Excerpts
Pages 187-188, 200, 204, 767, 773-774, 780 from the deposition testimony of Marcel
Moreau, taken April 4, 2012 and April 11, 2012.
Marcel G. Moreau
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A.
I don't have any record specific to
a spill bucket, and I don't see any permit
applications. A permit would have been required
if the work was done. I don't know exactly when
that would have started. Sometime in the early
'90s, if not sooner. So the available evidence
indicates or doesn't indicate that a spill bucket
was added to this facility in the 1990 time frame
or any time in the 1990's.
Q.
So there is soil contamination in
the vicinity of the tank area, and the precise
cause of that contamination cannot be identified
because of the lack of documentation in the
records as they exist today?
MS. O'REILLY: Vague and ambiguous.
Go ahead.
A.
As far as the records that I have
reviewed, there are no records that point to
specific releases associated with what I would
call the tank area. There is contaminated soil,
so something happened in the area. The records
of what those events might be are not present in
the record.
Q.
With regard to the piping and
dispenser area releases, there is a reference to
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formed in this case, is it your opinion that a
leak into the environment occurred after 1998
from the containment sumps in the vicinity of the
dispenser area?
A. We don't have any post '98 soil
sampling results from underneath the dispensers.
So we have identified some instances when there
were releases from within the dispenser cabinet.
I'm not able to establish whether those releases
were successfully contained or whether they made
it into the environment.
Q. For the period prior to 1998, do
you have any maintenance records indicating that
maintenance was performed and leaks were observed
at the dispensers at the Red Triangle facility?
MS. O'REILLY: Asked and answered.
A. This was leaks in dispensers and
piping?
Q. It's for the period 19 -- prior to
1998, do you have any records indicating that
maintenance was performed and leaks were observed
at the dispensers at the Red Triangle facility?
A. Yes.
Q. And what records do you have?
A. If we look at the document listing,
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an inspection in August of 2000 where evidence of
fuel releases were found in the dispenser
containment sumps with an active leak in one
dispenser.
Are the dispenser containment sumps
referred to on Page 5 of 6 of your report for the
Red Triangle facility under pan -- pardon me -under dispenser pans which contain leaks from the
dispensers and prevent them from entering the
environment?
MS. O'REILLY: Assumes facts, lacks
foundation. Go ahead.
A.
The purpose of a dispenser pan is
to capture releases from the -- any of the
dispenser components above the dispenser pan.
It's not uncommon for dispenser pans to not be
liquid tight, even though that's what they're
suppose to do. In cases such as this, I would
look for testing records that would establish the
integrity of the dispenser pan. In this
particular case, we were not able to find or we
did not have any testing records for the
containment sump, so we don't know whether that
sump was liquid tight or not.
Q.
With regard to the opinions you've
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Page 11 of 22, the bottom entry.
Q.
I'm with you.
A.
There's an indication that there
was a leak in a union at a sump found as well as
the plug above the impact valve, the bottom
language.
Q.
And this is in August of 1998?
A.
I have it as June of '98.
Q.
Okay.
A.
Wait a minute. Wait a minute.
Yeah, the general entry is June of '98, but the
specific reference appears to be an August '98
event.
Q.
And the August '98 event that's
described is for a release of diesel product; am
I correct?
A.
That specific incident was for
diesel, that's correct.
Q.
Are there any records of
maintenance having occurred at the facility prior
to 19 -- in or prior to 1998 which indicated that
leaks were observed in the dispensers with
gasoline being the product released?
MS. O'REILLY: Asked and answered.
A.
For the period 1998 and before,
48 (Pages 186 to 189)
Golkow Technologies, Inc. - 1.877.370.DEPS
Marcel G. Moreau
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Q.
Is there any evidence to indicate
that the tanks at the Red Triangle facility prior
to 1998 failed a integrity test?
A.
All the test records that we
reviewed from the 1990's had a passing test
result.
Q.
With respect to the tanks installed
in '98, were there any tests indicating that the
post '98 tank field experience, or post '98 tanks
experienced any failures of integrity tests?
MS. O'REILLY: Vague and ambiguous.
A.
I believe the only test results we
have were the installation testing of the tanks,
and it appears the tanks passed the tests in
September of '98.
Q.
Prior to 1998, are there any
documents indicating that any of the product
lines or associated equipment failed an integrity
test?
A.
Prior to 1998, there's no
indication of a failed tightness test on the
lines. That test would not have included, most
likely would not have included the STPs or the
dispensers, however.
Q.
With regard to the period after
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evidence, I don't think I have -- I don't have an
opinion as to whether or not there were releases
from the post-'98 storage system.
Q.
Was there any evidence that you
reviewed in this case that prior to 1998 there
was documentation indicating there were repairs
or replacement of a leaking STP at the Red
Triangle station?
MS. O'REILLY: Same objections,
vague and ambiguous.
A.
There were few, if any, what I
would call maintenance or repair records present
in the file for the pre-1998 period, so I don't
have any specific repair records, but releases
from STPs are fairly common occurrences.
Q.
Did you see any URR reporting that
there had been a release from any STP prior to
1998 at the Red Triangle facility?
MS. O'REILLY: Assumes facts. Go
ahead.
A.
I believe I've already indicated
that we don't have any URRs for the Red Triangle
facility, at least not in the documents that we
reviewed. That doesn't mean that releases didn't
occur, just that they weren't reported.
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1998 and the new tanks were installed, were there
any tests indicating that the product lines
failed an integrity test after 1998?
A. It appears they may have had some
issues passing the original tightness test in
September of '98, but I don't believe we have any
tightness test results after that date.
Q. Based on your review of the records
in this case, is it your opinion that there was a
release from the new tank system with secondary
containment installed after 1998?
MS. O'REILLY: Vague and ambiguous,
overbroad.
A. I don't believe we have any soil
information, soil contaminant, or let me see. We
don't have any soil samples taken after 1998 from
relevant areas that would reveal whether there
were post-1998 releases, so I can't say whether
or not we have evidence of that.
Q. Is it your opinion, though, that
there were releases from the 1998 installed tank
system?
MS. O'REILLY: Asked and answered.
Go ahead.
A. I would say given the lack of
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Q. With regard to the STPs prior to
1998, when the tank system was replaced, was
there any documentation of the removal of
contaminated or saturated soils in the vicinity
of the STPs at this facility?
MS. O'REILLY: Vague and ambiguous.
A. We have a statement that some
petroleum hydrocarbon odors were noted from the
tank pit at the west end of the pit under the
gasoline tanks, and this is for the December 28th
UST removal report, so this is the tank that was
removed in December of '98. What I don't have
is, or at least I'm not recalling whether I have
a diagram that indicates which end of the tanks
the STPs for that particular tank field were
located. So we have indications of contamination
at one end of the tanks. I would need do some
research to determine whether that was the STP -whether that was the end of the tanks where the
STPs were located.
Q. And looking at your report, there
are some 1998 graphics for the Red Triangle
facility, and specifically we are referring to
RWQCB-FRESNO-009928 and 009936.
Are those the only graphics that
51 (Pages 198 to 201)
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Marcel G. Moreau
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you have from Parker Environmental or any other
consultant or agency illustrating the location of
the tanks at the Red Triangle facility that were
removed in December 1998?
MS. O'REILLY: Vague and ambiguous,
overbroad. Go ahead.
A. I would say those are probably not
the only graphics. Having gone through this
exercise in other cases, I determined that it
would be helpful to have some diagrams when we
were going through our deposition, and so as I
was reviewing documents, I would select out
graphics, primarily ones that showed soil sample
locations. So these are just not quite random,
but they're selections of the graphics that were
available.
If I were trying to identify the
location of an STP, I would first start with some
of the tank test records that we have, 'cause
those often times include a diagram of the site
and would indicate where the STPs might be
located.
Q. And do you have any of those in
your collection of documents that reflect the
location of the submerged turbine pumps on this
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first diagram.
Q.
Okay. I got it.
A.
You got it?
Q.
That would be RWQCB-FRESNO-010508?
A.
Correct. So my understanding of
this facility is that in the lower left corner of
that diagram there was essentially a retail fuel
facility that contained some storage tanks and
dispensers, and then sort of in the middle of
that diagram there's a dotted line that says
"Former UST Locations," and those would be the
ones that contained gasoline, diesel, and I think
weed oil in one of those tanks. I believe the
releases from the tanks that I was describing
earlier are the ones from the non-retail side of
the facility, the ones that would be in the
middle of that diagram. So in my mind, they were
distinguished as retail and non-retail.
Q.
And the non-retail were used for
fueling a fleet of vehicles?
A.
It was never clear to me what they
were used for. They didn't particularly appear
to be associated with dispensers. I couldn't
quite determine what exactly those tanks were
used for, whether this was a bulk plant of some
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particular tank field?
MS. O'REILLY: Asked and answered.
Go head.
A.
They may be present in my hard
drive, but I would need to go look them up.
Q.
And with respect to the reference
to this particular facility and tank field, are
you talking about the UST removal at 2808 South
Chestnut or are you referring to the removal at
the adjacent facility? 'Cause there were two,
correct?
MS. O'REILLY: Okay. There are
two, Bill, but I think they're at the same
address. Why don't you have him explain his
report.
Q.
More importantly, it's just when
you made reference to this notation, do you know
which tank field they were talking about, was it
the one just with the gasoline tanks or is it the
location where they had a combination of kerosene
and diesel and gasoline?
A.
If you look just a couple pages
ahead.
Q.
Okay.
A.
There's a diagram right -- the very
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kind or a repackaging facility of some kind or
what was going on.
Q. With regard to the Red Triangle
facility, did you have any information by which
you could estimate the volume of gasoline sold at
this facility prior to 1998 on an annual basis?
A. From the retail or non-retail or
either?
Q. Either.
A. Based on my recent review of the
document listing, it doesn't appear that -- oh,
wait a minute.
We had some inventory quarterly,
the quarterly inventory reconciliation documents
that were submitted in the early '90s for this
facility. I would go there first to see if they
had some through-put information, but I don't
have any on the top of my head.
Q. With respect to the work that you
did in this case, did you determine what the
allowable stock loss tolerance would be for the
tanks that were in use at the facility prior to
1998, either retail or non-retail?
A. What the inventory tolerance might
be?
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Marcel G. Moreau
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we have would point to submersible pumps and
deliveries. The record really is silent about what
was happening in the middle of the tanks. So we can
definitely identify submersibles and delivery
spills, and we don't really have enough information
to say whether tank top fittings may have been an
additional source of release or not.
BY MR. PÉREZ:
Q. On page 2 of 4 in the February 18th,
1999 entry, you mentioned product line trenches, and
indicate that no analytes were detected in the simple
sample collected -- in the single sample collected,
excuse me, at 3 feet bgs. Do you see that?
A. I see that, yes.
Q. Is it your opinion that the product
lines are not a potential source of releases at
Beacon 3519?
MS. O'REILLY: Misstates the document.
Vague and ambiguous.
THE WITNESS: No. It would be my opinion
that, based on a single soil sample, there was no
contamination associated with that particular
location of the piping. There were other locations
along the piping where samples might have been taken
but were not.
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this site?
A. The Facility Summary doesn't describe
any specific spill events that we discovered in
reviewing the documents associated with this site.
So we don't have a -- any documentation of a specific
spill event.
Q. If the customer spill section reads
as this one does for this site, as many of them do
for other sites, can we assume from this -- from
these two sentences, that you have used with respect
to many sites, that you found no documentation in
your document review that indicated the occurrence of
a specific customer spill or a spill during vehicle
fueling activities at the site?
MS. O'REILLY: Vague and ambiguous.
Misstates testimony.
Go ahead.
THE WITNESS: I believe that would generally
be correct. That if we found documentation of a
specific spill, it was certainly our intent to
include it in this section of the report.
And so if there is no -- there are no
references to specific spills, then I think it's a
fair -- it's fair to conclude that we did not find
any specific documentation relative to spills in the
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So the record we have doesn't point to
piping releases, but I wouldn't offer the opinion
that there were no piping releases from this site.
BY MR. PÉREZ:
Q. Would your answer to the question of
when the earliest release of MTBE -- or MTBE gasoline
occurred at the site be the same as it was when I
asked the same question regarding 5th Wheel?
MS. O'REILLY: Vague and ambiguous.
Go ahead.
THE WITNESS: Yes, it would. But the -that customer spillage is a routine event and
probably would have -- would have begun to occur very
shortly after the first load of MTBE gasoline was
delivered to the site.
BY MR. PÉREZ:
Q. And would you answer that question
the same way for the remaining sites that we're
discussing?
A. Unless we have reference to a
specific spill, I believe -- at some of these other
sites, then I believe the answer would be the same.
Q. With respect to the customer spills,
do you have any information indicating the occurrence
of a small spill during vehicle fueling activities at
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documents that we reviewed.
BY MR. PÉREZ:
Q. Did you evaluate for this site
whether any off-site source contributed to the
presence of MTBE at the site?
MS. O'REILLY: Assumes facts. Lacks
foundation.
THE WITNESS: For our purposes, we were just
trying to determine whether the facilities at this
site had had a release. There is ample evidence of
soil contamination immediately adjacent to the tank
and dispenser components at this site and well above
the water table. So we did not investigate whether
there might have been an off-site contribution to the
groundwater contamination at this site.
BY MR. PÉREZ:
Q. On page 3 of 4 in the March 15th,
2004 entry you mention a well, City of Fresno
Municipal Well 30A that's located about 600 feet west
of the site, correct?
A. That's the general content of that
sentence, yes.
Q. You don't have any opinions regarding
whether contamination from this site or any other
site impacted or threatens to impact any particular
17 (Pages 765 to 768)
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Marcel G. Moreau
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California gasoline.
So June of '98 would be the last time or the
last event where evidence of a release was
discovered -- of gasoline that contained MTBE.
BY MR. PÉREZ:
Q. And with respect to the January of
2009 and January 2010 releases that you just
mentioned, you state for both of those, quote, "This
release likely did not contribute to the MTBE
contamination at this facility," closed quote.
Correct?
A. Well, the first part of that sentence
is, "MTBE should not have been present in California
motor fuel in 2010." One of them should have said
209 (sic).
So this release likely did not contribute to
the MTBE contamination at this facility, that's
correct.
Q. And this is a case where in the
"Customer Spill" section you do mention a specific
customer release occurring in August of 2005,
correct?
A. That is correct.
Q. And that was also after the time that
MTBE was no longer in use in California gasoline,
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other to have been the source of the release?
MS. O'REILLY: Vague and ambiguous.
Overbroad.
THE WITNESS: In general, I would say that
the submersible pump and adjacent piping is likely -is more likely to be a significant source of release
or a more significant source than a delivery spill.
I need to go and look up the soil sample
results, if you wanted to get more specific than that
for this specific site.
MR. PÉREZ: Not necessary.
Q. For all -- for any of the releases
that you discussed in the "Identification of MTBE
Releases" section, were you able to calculate the
volume of the release?
A. At this site?
Q. Yes.
MS. O'REILLY: Vague and ambiguous.
THE WITNESS: Except for the customer spill
in August of 2005, the volume released was not able
to be determined for the other release incident or
for the evidence of releases that was discovered at
various times.
BY MR. PEREZ:
Q. Were you able to determine the
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right?
A. It should not have been present in
the gasoline, that's correct.
Q. For this site did you consider the
possibility that any off-site source could have
contributed to the presence of MTBE at the site?
A. Again, the thrust of our
investigation was to determine whether releases had
occurred at the storage systems at this particular
site.
In this particular case, there was ample
evidence of soil contamination immediately adjacent
to the storage systems, well above the water table.
So I did not feel the need to investigate whether
off-site sources of contamination may have
contributed to the contamination at this site.
Q. On page 4 of 5, with respect to the
June of 1998 release discussed in the last paragraph;
do you see that?
A. I do.
Q. You mention possible sources of that
release being delivery spills or leaks from the
submersible pump or adjacent piping. Do you have any
opinion with respect to which of those two possible
sources that you mention is more likely than the
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duration of any of the releases that you identified
for this site?
A. For the active release discovered in
June of '94, the statement in the report is that,
"When the leak began is not known." So we were not
able to establish a start point for that release.
And then for the other evidence of releases,
the statement is that the releases were likely
intermittent.
Q. On page 3 of 5, September -September 27th, 1998 entry you note that, "The Tank
Closure Report indicated that the tanks removed were
in good condition and there were no holes or pitting
observed in any of the USTs." Do you see that?
A. I see that, yes.
Q. Does that indicate to you that there
was never a release from the tanks themselves at this
site?
MS. O'REILLY: Vague and ambiguous.
Overbroad.
THE WITNESS: As I've discussed before, the
type of observations that are made during tank
removal are typically very cursory. So I take this
to be an indication that there was no obvious holes
in the tank from the outside.
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I would point out that internal corrosion
holes are very difficult to spot. So the indications
are that there were no holes observed when these
tanks were removed. I wouldn't go so far to say that
the tanks themselves never leaked.
BY MR. PÉREZ:
Q. Let's go on to the next site, please,
which is Fresno Valley Gas. If you could look at the
Site Specific Report you prepared for that site.
It's located at 2139 South Elm Street in Fresno.
A. I have that.
Q. Looking at the "Identification of
MTBE Releases" section, would you agree that among
the releases discussed here in both the "Tank Area
Releases" and the "Piping and Dispenser Area
Releases" section, for those releases prior to 1992,
none of those contributed to the presence of MTBE at
the site; is that correct?
MS. O'REILLY: Misstates the document.
Vague and ambiguous.
THE WITNESS: There's several actual release
incidents -- or active releases that were discovered
in the time period before 1992. And the statement
associated with those in the report is that MTBE was
not commonly present in California gasoline in --
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release incidents, I was not able to determine the
start of the release for any of those incidents that
were identified.
With regard to the evidence of a release
provided by soil contamination, the report states
that the releases were likely intermittent.
BY MR. PÉREZ:
Q. And were you able to identify the
source for any of the releases you identified in this
section for this site?
A. There were a number of sources
identified. Do you want to go through the list?
Q. Sure.
A. In August of '89, the unleaded
turbine pump was observed to be leaking. A fill
riser was found to be leaking in April of 1992. The
specific tank is not identified. Piping and
dispensers 4 and 6 were observed to be leaking in
August of '89.
A piping leak was identified in the Premium
dispenser in October of 1990. A piping leak in a
dispenser riser, the particular dispenser is not
identified, was observed in April of 1992. A leak in
the Unleaded piping was repaired in August of 1999.
A piping leak near the southern dispenser islands was
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insert the appropriate date -- but it would be before
the fall of 1992. So it's unlikely that this release
contributed to the MTBE contamination at this
facility.
So without having specific information about
a gasoline supplier, sort of the default opinion is
that a release of MTBE was unlikely prior to the fall
of '92.
BY MR. PÉREZ:
Q. For any of the releases discussed in
the "Identification of MTBE Releases" section for
this site, were you able to determine the volume of
the release?
MS. O'REILLY: Asked and answered. Vague
and ambiguous.
Go ahead.
THE WITNESS: A specific volume for any of
the releases or any of the evidence of releases that
was discovered could not be determined with the
documentation that was provided.
BY MR. PÉREZ:
Q. Were you able to determine the
duration of any of these releases?
MS. O'REILLY: Same objections.
THE WITNESS: With regard to the actual
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repaired in November of '99.
I think that's it for the actual releases
that were identified.
Q. Do you have any opinions regarding
the occurrence of a release at this site between the
fall of 1992 and August of 1999?
MS. O'REILLY: Vague. Ambiguous.
Overbroad.
BY MR. PÉREZ:
Q. If you look on page 4 of 5, just to
help you answer the question. Under the "Piping and
Dispenser Area Releases," the third paragraph talks
about a spill in April of 1992. And you have stated
earlier that MTBE was not commonly present in
California gasoline beginning in the fall of 1992,
correct?
And the next paragraph talks about a release
or a line leak repair in August of '89.
So in between those two incidents, do you
have any opinion regarding the occurrence of any
release in that time frame?
MS. O'REILLY: Vague. Ambiguous.
Overbroad. Asked and answered.
THE WITNESS: The documented release
incidents are -- or there's a gap in the documented
20 (Pages 777 to 780)
Golkow Technologies, Inc. - 1.877.370.DEPS
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