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)

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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 Page 186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, Page 187 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. Page 199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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) Golkow Technologies, Inc. - 1.877.370.DEPS Marcel G. Moreau Page 202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 205 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? 52 (Pages 202 to 205) Golkow Technologies, Inc. - 1.877.370.DEPS Marcel G. Moreau Page 765 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. Page 767 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 766 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 768 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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) Golkow Technologies, Inc. - 1.877.370.DEPS Marcel G. Moreau Page 773 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, Page 775 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 774 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 776 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 19 (Pages 773 to 776) Golkow Technologies, Inc. - 1.877.370.DEPS Marcel G. Moreau Page 777 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 -- Page 779 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 778 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 780 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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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