In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 3784

DECLARATION of M. Coy Connelly in Support re: #3781 MOTION for Settlement Notice of Motion and Motion for Good Faith Settlement Determination.. Document filed by Ultramar, Inc., Valero Marketing and Supply Company, Valero Refining Company-California. (Attachments: #1 Exhibit Part 1, #2 Exhibit Part 2, #3 Exhibit Part 3)(Connelly, Michael)

EXHIBIT 6

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D1BPMTBC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
IN RE: METHYL TERTIARY BUTYL
ETHER ("MTBE") PRODUCTS
LIABILITY LITIGATION

00 MDL 1358
Master File C.A.
No. 1:00-1898(SAS)
04CV4973 (SAS)

------------------------------x
January 11, 2013
12:43 p.m.
Before:
HON. SHIRA A. SCHEINDLIN,
District Judge
APPEARANCES
MILLER, AXLINE & SAWYER
Plaintiffs City of Fresno
BY: TRACEY O'REILLY
McDERMOTT, WILL & EMERY
Attorneys for Defendants Exxon Mobil Corp.
and defendants' liaison counsel
BY: JAMES PARDO
STEPHEN J. RICCARDULLI
SEDGWICK, LLP
Attorneys for Defendants Shell Oil Co.;
Texaco Refining and Marketing, Inc.;
Chevron U.S.A. Inc.; Motiva Enterprises;
Equilon Enterprises, LLC
BY: PETER C. CONDRON
BRACEWELL & GIULIANI
Attorneys for Defendants Ultramar, Inc.;
Valero Marketing and Supply Company [DOE 1]
BY: COY M. CONNELLY
SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP
Attorneys Defendant for Exxon Mobil Corp.
BY: JEFFREY J. PARKER
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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APPEARANCES CONTINUED
SIDLEY AUSTIN, LLP
Attorneys for Defendants Duke Energy Merchants, LLC;
Duke Energy Trading and marketing, LLC;
Northridge Petroleum Marketing U.S., Inc.;
Duke Energy Merchants California
BY: JIM WEDEKING
KING & SPALDING
Attorney for Defendants Chevron
BY: CHARLES C. CORRELL, JR.
oOo

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In open court)
(Case called)
THE COURT: Good afternoon, Miss O'Reilly.
MS. O'REILLY: Good afternoon, your Honor.
THE COURT: And Mr. Pardo.
MR. PARDO: Good afternoon, your Honor.
THE COURT: Mr. Riccardulli.
MR. RICCARDULLI: Good afternoon.
THE COURT: And Mr. Wedderling, is it?
MR. WEDEKING: Wedeking, your Honor.
THE COURT: Can you spell that?
MR. WEDEKING: W-e-d-e-k-i-n-g.
THE COURT: Wedeking. Mr. Parker.
MR. PARKER: Good afternoon, your Honor.
THE COURT: Mr. Correll.
MR. CORRELL: Good afternoon, Judge.
THE COURT: Mr. Condron.
MR. CONDRON: Good afternoon, your Honor.
THE COURT: Mr. Connolly.
MR. CONNELLY: Yes, your Honor.
THE COURT: All right. I think everything that we're
going to talk about today has to do with the City of Fresno
case, right?
MS. O'REILLY: That's correct.
THE COURT: It's a one-case conference. That said, I
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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prove that their product got to a particular station, like -- I
shouldn't use that, but -MS. O'REILLY: We -THE COURT: Well, no, I can't use that.
MS. O'REILLY: We said to Van Ness, if you look on
Page -THE COURT: Van Ness? I thought Van Ness was one of
the problem ones because Chevron had an exclusive supply
agreement, and so Duke's material couldn't have been there.
MS. O'REILLY: It says Duke -- on Page 3 of our
letter, it says: Duke Energy mixed several gas station sites,
received delivery, deliveries of MTBE gasoline from jobbers to
whom Duke Energy sold MTBE gasoline.
And what the evidence will show is that while there's
sometimes an exclusive agreement, also sometimes jobbers
supply, and they can do it when there's short supply or low
supply. It's a product tracing issue, and we feel that we have
sufficient evidence, and we're happy to let them test that.
THE COURT: It shouldn't be tested. If you've got the
evidence that can show it to them, like the last topic, provide
the evidence of product tracing because they already know my
ruling after that. If you can get it to the station, I at
least don't believe that they have to show it's their -- you to
show it's their molecule versus somebody else's molecule. If
it's mixed and blended right there in the station and the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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material is actually pumped and used and spilled, then that's
that.
So it really is a matter -- If she has evidence that
your product ended up at a particular station, there's no
summary judgment.
MR. WEDEKING: We agree, your Honor. We don't believe
they have any evidence showing that Duke's product actually
went to any of these particular stations. They can show that
Duke sold to a jobber, jobbers bought from many suppliers,
delivered to many gas stations, a gas station bought from
several jobbers.
They have a theoretical possibility that Duke's
gasoline reached one of these stations, but a theoretical
possibility is not enough to defeat a summary judgment motion.
It would be very easy for Fresno to track Duke's product. When
Duke sells gasoline at the rack, it creates a bill of lading
showing which jobber purchased Duke's gasoline.
THE COURT: Yes, and she's got it to the jobber. Then
the jobber goes to the station.
MR. WEDEKING: We have not seen any of this evidence
from the City of Fresno.
THE COURT: Then take it to the next step.
MR. WEDEKING: That's correct.
THE COURT: In other words, she has proof of what
jobber it was sold to, but then she doesn't have to deliver it.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. WEDEKING: That's correct, your Honor.
THE COURT: Do you have it or not? Can you trace it
to the station, Miss O'Reilly?
MS. O'REILLY: Your Honor, there are multiple methods,
and what he's describing is a very discrete, direct,
one-to-one-to-one paper trail.
THE COURT: No. He's just saying -- well, yes, on the
jobber's delivery, not of his material. He's saying you get it
to the jobber. That's interesting. Now, can you get that
jobber to make a delivery to any of these stations, without
worrying what's in that delivery, but did that jobber deliver?
MS. O'REILLY: I don't know -- The evidence of product
delivery is voluminous; so I can't tell you off the top of my
head what exactly paper trail we have. What we've done in
other cases, we don't always have every bill of lading for
every delivery to every station because sometimes those records
are destroyed, jobbers go out of business.
But we have evidence of testimony from gas station
owner. What we did in Merced, for example, if a gas station
owner/operator says I bought from X jobber on these years,
multiple times in a week. We have the jobber testifying, I
delivered to this station multiple times a week; I picked up my
gasoline at this terminal from this supplier.
THE COURT: That sounds good to me. It seems like,
Mr -SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. WEDEKING: Wedeking, your Honor.
THE COURT: -- Wedeking -- well, if you'd written it
in the first place, I'd be able to say it -- doesn't really
understand what your proof is until you lay it out to him. But
let's go to some of these, a couple of these specifics.
Two-layer Exxon Beacon No. 3519 and Beacon No. 615. They say
that you only allege that Duke sold MTBE to these sites after
they removed their tanks.
MS. O'REILLY: Your Honor, with respect to those
stations, we make the point -- and I think that claim of they
removed their tanks is disingenuous because in California many
stations removed their tanks and replaced them.
THE COURT: Yeah, but they're saying one -- I thought
they said -MS. O'REILLY: There's one station, Cary Oil, where we
agree that they didn't replace their tanks.
THE COURT: That's right. I thought there was others
about after the replacement, there's no proof of delivery.
MS. O'REILLY: If you look on Page 3 of our brief, we
ship to Exxon and several of the Beacons, that those
stations -- if you look right there, it says that the tanks
were removed and replaced. And it says Duke's claims for these
three sites are based on the unsupported assumption that
releases only occurred before the date of tank removal. Unlike
the Smith Tank Lines, Cary Oil sites, however, these three
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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sites had new tanks installed and then continued operating as
gas stations. That's on Page 3.
THE COURT: That's too much material. I'm not going
there. Anyway, I'm looking at my summary notes. One second.
MS. O'REILLY: Okay.
THE COURT: Okay. Here's one. In the reply letter of
Duke, they talk about a case where you say there might have
been MTB detection after the new tanks were installed. If
that's it, that's not good enough, that "there might have been
a detection after." There either was or there wasn't after the
new tanks were installed.
And they say, to be more specific, that your expert,
Mr. Norman, never identified a release at these particular
stations after the 1998 and 1999 tanks were removed.
MS. O'REILLY: Mr. Norman is not our release expert.
Mr. Marcel Moreau is our release expert.
THE COURT: Did he identify a release at those
stations after the tank removals of '98 and '99?
MR. WEDEKING: I will assert, your Honor, that he did
not.
THE COURT: Okay. If he did not, then it doesn't
matter what you have after the new tanks are installed because
you don't have a release. So whether they were or not is kind
of irrelevant. I am telling you that it may reach the point
where the years of patience runs out.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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If you make me look at motions which you can't win,
then I'm going to sanction somebody because the sanction is
basically saying enough is enough. My time is too valuable.
If you know you don't have a case of a particular site against
particular defendant, let the defendant out. So I've given
what guidance I can here on this Duke issue. This one
defendant. It's been very specific, and I think we've
discussed now, we've clarified the product tracing and the
commingling.
I've agreed with you, Miss O'Reilly, to some extent.
If you can get it to the station and there's a release, he
doesn't have to prove whose molecule caused that. Now, he
knows that, don't bother moving. I'm telling you that.
They're saying they can't get my stuff to the station, where
there's a release, and if you can prove that, you win the
summary judgment.
So I'm going to ask you again to be on this slow
motion schedule that we just worked out for the nuisance issue.
Do the same thing for this with respect to Duke. Figure out
what proof you have, meet and confer, and then you'll brief it.
All right?
MS. O'REILLY: Thank you, your Honor.
THE COURT: Now, I've put off until last the statute
of limitations because this is just a lot of work, too. And
again, I sense no flexibility here, but let's start with the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

EXHIBIT 7

Marcel G. Moreau
Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

************************************
In Re:

Methyl Tertiary Butyl

Ether ("MTBE")

MDL NO. 1358 (SAS)

Products Liability Litigation
************************************
This Document Relates To:
City of Fresno v. Chevron U.S.A., Inc., et al.,
Case No. 04 Civ 4973 (SAS)
************************************
VIDEOTAPED DEPOSITION OF MARCEL G. MOREAU
VOLUME I
April 4, 2012

Deposition of Marcel G. Moreau,
Volume I, Plaintiff City of Fresno's designated
Expert Witness, on April 4, 2012, held at the
Marriott at Sable Oaks, 200 Sable Oaks Drive,
South Portland, Maine, beginning at 9:06 a.m.,
before Maryellen Coughlin, RPR/CRR.

Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 2

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APPEARANCES:
FOR THE PLAINTIFF:
BY: TRACEY L. O'REILLY, ESQ.
MILLER, AXLINE & SAWYER, P.C.
1050 Fulton Avenue, Suite 100
Sacramento, California 95825-4272
[phone]
[e-mail]
FOR EXXON MOBIL CORPORATION:
BY: WILLIAM STACK, Esq.
EXXON MOBIL CORPORATION
P.O. Box 2180
Houston, Texas 77252
[phone]
[e-mail]
[e-mail]
[e-mail]

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FURTHER APPEARANCES:
FOR CITGO PETROLEUM COMPANY (Via Phone):
BY: JOAN RADOVICH, ESQ.
EIMER STAHL KLEVORN & SOLBERG, LLP
224 South Michigan Avenue, Suite 1100
Chicago, Illinois 60604-2516
[phone]
[e-mail]
FOR VALERO ENERGY CORPORATION AND TOTAL
PETROCHEMICALS USA (Via phone):
BY: EDUARDO PÉREZ, ESQ.
BRACEWELL & GIULIANI, LLP
711 Louisiana Street, Suite 2300
Pennzoil Place - South Tower
Houston, Texas 77002-2770
[phone]
[e-mail]

Page 3

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FURTHER APPEARANCES:

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FOR CHEVRON U.S.A.:
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BY: JEREMIAH J. ANDERSON, ESQ.
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KING & SPALDING
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1100 Louisiana, Suite 4000
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Houston, Texas 77002
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[phone]
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[e-mail]
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FOR LYONDELL CHEMICAL COMPANY: 11
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BY: JOHN J. DiCHELLO, JR., ESQ.
13
BLANK ROME, LLP
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One Logan Square
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130 N. 18th Street
Philadelphia, Pennsylvania 19103-6998 16
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[phone]
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[e-mail]
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Page 5

FURTHER APPEARANCES:
FOR KERN OIL (Via phone):
BY: BRIAN M. LEDGER, ESQ.
GORDON & REES, LLP
101 West Broadway, Suite 2000
San Diego, California 92101
[phone]
[e-mail]

2 (Pages 2 to 5)
Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 6

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INDEX
WITNESS:

MARCEL G. MOREAU

EXAMINATION:
BY MR. STACK

Page
8

EXHIBITS FOR IDENTIFICATION:
No.
Description
Page
1 Curriculum Vitae of
26
Marcel G. Moreau
(PEXP-FRESNO-MOREAU-000008 - 24)
2 Site plan for Chevron
30
Station 9-4374
3 Summary pages 18 and 19 of 43 for 32
Exxon, 4594 East Tulare, Fresno
4 Expert of Marcel Moreau City of
66
Fresno vs. Chevron U.S.A Inc.,
Et al
5 Expert Rebuttal Report of Marcel 66
Moreau City of Fresno vs. Chevron
U.S.A. Inc., et al
6 Expert Site Specific Report of
163
Marcel Moreau

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MR. PEREZ: Ed Perez with Bracewell
& Giuliani for the Valero defendants.
MS. RADOVICH: Joan Radovich with
Eimer Stahl, LLC for Citgo Petroleum Corporation.
THE VIDEOGRAPHER: Anyone else on
the phone?
The court reporter is Maryellen
Coughlin and will now swear in the witness.
MARCEL G. MOREAU,
having been first duly sworn, was examined
and testified as follows:
EXAMINATION
BY MR. STACK:
Q.
Please state your name for the
record?
A.
Marcel Gilbert Moreau.
Q.
And what is your business address
for purposes of this litigation?
A.
73 Bell Street in Portland, Maine
04103.
Q.
With regard to the work that you
performed in this case, did you perform it
through a business entity like a corporation or

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PROCEEDINGS

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THE VIDEOGRAPHER: We are now on
4
the record. My name is Wesley Hicks. I'm a
5
videographer for Golkow Technologies. Today's
6
date is April 4th, 2012, and the time is 9:06
7
a.m.
8
This video deposition is being held
9
in Portland, Maine in the matter -- in re: MTBE
10
Products Liability Litigation in the matter of
11
City of Fresno versus Chevron U.S.A., Inc.,
12
et al., Case No. 04 CIV 4973 (SAS) for the United
13
States District Court, Southern District of New
York. The deponent is Marcel G. Moreau. Counsel 14
15
please voice identify yourselves.
16
MS. O'REILLY: Tracey O'Reilly,
17
Miller Axline & Sawyer for plaintiff City of
18
Fresno and the witness.
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MR. ANDERSON: Jeremiah Anderson
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for the Chevron and Unocal defendants.
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MR. DiCHELLO: John DiChello of
22
Blank Rome for Lydonell Chemical Company.
23
MR. STACK: William Stack for Exxon
24
Mobil.
25
THE VIDEOGRAPHER: On the phone?

Page 9
other business form? Do you have a company?
A. Yes, I do.
Q. What is the company?
A. Marcel Moreau Associates.
Q. And with regard to that company,
how many employees do you currently have?
A. Counting myself, there's two of us.
Q. And with respect to the work that
you performed in this case, did you at any time
retain the services of a subcontractor to assist
you in performing your work?
A. I believe we did.
Q. And with regard to your
subcontractor, who was the subcontractor that you
retained?
A. Christina Ferland.
Q. And this individual worked for you
performing what tasks?
A. As best I can recall, she was
involved in some cases in the initial review of
documents that were produced, and in a number of
instances, she produced a draft of the -- I guess
the facilities summary is what we've called it
historically for the individual facilities in
this case.

3 (Pages 6 to 9)
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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,

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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?

52 (Pages 202 to 205)
Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 238

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INSTRUCTIONS TO WITNESS
Please read your deposition over
carefully and make any necessary corrections.
You should state the reason in the appropriate
space on the errata sheet for any corrections
that are made.
After doing so, please sign the errata
sheet and date it. It will be attached to your
deposition.
It is imperative that you return the
original errata sheet to the deposing attorney
within thirty (30) days of receipt of the
deposition transcript by you. If you fail to do
so, the deposition transcript may be deemed to
be accurate and may be used in court.

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ACKNOWLEDGMENT OF DEPONENT
I, __________________________, do
hereby certify that I have read the foregoing
pages, and that the same is a correct
transcription of the answers given by me to the
questions therein propounded, except for the
corrections or changes in form or substance, if
any, noted in the attached Errata Sheet.
_______________________________________
MARCEL G. MOREAU
DATE

Subscribed and sworn
To before me this
______ day of _________________, 20____.
My commission expires: ________________
_______________________________________
Notary Public

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-----ERRATA
-----PAGE LINE CHANGE
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REASON: __________________________________
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LAWYER'S NOTES
PAGE LINE
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61 (Pages 238 to 241)
Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 704
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE: METHYL TERTIARY BUTYL
ETHER ("MTBE")
Products Liability Litigation

MDL No. 1358
(SAS)

This Document Relates to:
CITY OF FRESNO V. CHEVRON, U.S.A.,
INC., et al.,
Case No. 04 Civ 4973 (SAS)
_________________________________________/

--

-- --

WEDNESDAY, APRIL 11, 2012
--

--

--

Videotaped Deposition of MARCEL G. MOREAU,
Expert Witness, Volume IV, held at the Law Offices of
Sheppard Mullin Richter & Hampton, Four Embarcadero,
17th Floor, San Francisco, California, beginning at
8:59 a.m., before Sandra Bunch VanderPol, FAPR, RMR,
CRR, CSR #3032
--

--

--

_____________________________________________________
GOLKOW TECHNOLOGIES, INC.
877.370.3377 ph|917.591.5672 fax
[e-mail]

Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 705
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APPEARANCES:

Page 707
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MILLER, AXLINE & SAWYER, P.C.
By: TRACEY O'REILLY, Esq.
1050 Fulton avenue, Suite 100
Sacramento, California 95825-4272
[phone]
[e-mail]
Counsel for Plaintiff CITY OF FRESNO

4
5

ARNOLD & PORTER, LLP
KELLY A. WELCHANS, Esq.
777 South Figueroa Street, 44th Floor
Los Angeles, California 90017-5844
[phone]
[e-mail]
Counsel for BP OIL COMPANY

6
7
8

BLANK ROME, LLP
JOHN J. DiCHELLO, Esq. (Telephonically)
One Logan Square, 130 N 18th Street
Philadelphia, California 19103
[phone]
[e-mail]
Counsel for Defendant LYONDELL CHEMICAL COMPANY
KING & SPALDING, LLP
CHARLES C. CORRELL, JR., Esq.
[e-mail]
101 Second Street, Suite 2300
San Francisco, California 94105
[phone]
Counsel for Defendants CHEVRON U.S.A. CORPORATION
BRACEWELL & GIULIANI, LLP
M. COY CONNELLY, Esq.
EDUARDO (ED) S. PÉREZ
711 Louisiana Street, Suite 2900
Houston, Texas 77002-2781
[phone]
[e-mail]
[e-mail]
Counsel for Defendants VALERO ENERGY CORPORATION
AND TOTAL PETROCHEMICALS USA

9
10
11

INDEX
Examination by:
Mr. Pérez
Ms. Welchans
Ms. Radovich
Ms. Motamed
Mr. Perez
Mr. Mroz

Page
710
804
808
909
941
941

--o0o-EXHIBITS
DEPOSITION OF MARCEL G. MOREAU
WEDNESDAY, APRIL 11, 2012
Exhibit #
Description
Page
No exhibits marked

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--o0o--

Page 706
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Page 708

APPEARANCES (Continued)
SEDGWICK, LLP
SCOTT D. MROZ, Esq.
333 Bush Street, 30th Floor
San Francisco, California
[phone]
[e-mail]
Counsel for Defendant SHELL OIL COMPANY

1

LeCLAIR RYAN
RACHEL WINTTERLE, Esq. (Telephonically)
44 Montgomery Street, 18th Floor
San Francisco, California 94104
[phone]
[e-mail]
For Defendant NELLA OIL PRODUCTS

6

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7
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GORDON & REES, LLP
By: BRIAN LEDGER, Esq. (Telephonically)
[e-mail]
101 W. Broadway, Suite 2000
San Diego, California 92101
[phone]
For Defendant KERN OIL & REFINING

11

BINGHAM McCUTCHEN, LLP
NARGUES MOTAMED, Esq.
Three Embarcadero Center
San Francisco, California 94111-4067
[phone]
[e-mail]
For Defendant TESORO

16

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EIMER STHAL, LLP
JOAN RADOVICH, Esq.
224 South Michigan Avenue, Suite 1100
Chicago, Illinois 60604
[phone]
[e-mail]
For Defendant CITGO PETROLEUM CORPORATION
VIDEOGRAPHER:
FRANK CLARE

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BE IT REMEMBERED that on Wednesday, the 11th day
of April, 2012, commencing at the hour of 8:59 a.m. in
the Law Offices of Sheppard Mullin Richter & Hampton,
Four Embarcadero, 17th Floor, San Francisco,
California, before me, Sandra Bunch VanderPol, a
Certified Shorthand Reporter in and for the State of
California, personally appeared
MARCEL G. MOREAU,
called as an expert witness herein, who, having been
duly sworn, was thereupon examined and interrogated as
hereinafter set forth.
--o0o-THE VIDEOGRAPHER: Today's date is
April 11th, 2012, and the time is 8:59 a.m. This
video deposition is being held in San Francisco,
California in regards to MTBE, City of Fresno versus
Chevron USA, Incorporated, et al., for the United
States District Court, Southern District of New York.
The deponent is Marcel Moreau, Volume IV.
Counsel, will you please identify
yourselves.
MR. PÉREZ: Ed Pérez, with Bracewell &
Giuliani, for the Valero defendants.
MR. CONNELLY: Coy Connolly, Bracewell &
Giuliani for the Valero defendants.

2 (Pages 705 to 708)
Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 773
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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.

19 (Pages 773 to 776)
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Marcel G. Moreau
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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

Marcel G. Moreau
Page 797
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MS. O'REILLY: Vague and ambiguous.
BY MR. PÉREZ:
Q. Also excluding the September 2003
fuel piping release that we discussed earlier.
MS. O'REILLY: Same objections.
THE WITNESS: Are we on the Gas 4 Less site?
MR. PÉREZ: Yes.
THE WITNESS: We talked about a September
2003 release already?
BY MR. PÉREZ:
Q. We talked about that release of one
gallon -A. Oh.
Q. -- that's in the last paragraph of
the piping and dispenser sentence?
A. Sorry. That is correct.
Q. Obviously you've already discussed
the source of that one.
A. Right.
Other than the September 2003 incident, the
evidence comes from -- what we have is evidence of a
release rather than description of actual release
events. So the sources of the release in the tank
area would have been delivery spills, leaks from tank
top fittings, and leaks from submersible pumps and

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were removed in 1999." Do you see that sentence?
A. I see that sentence, yes.
Q. Did I read it correctly?
A. You did.
Q. Do you have any opinion regarding
whether it's more likely that any releases during
that time frame occurred in the beginning of that
time period -- say between 1992 and 1995 -- as
opposed to the end of that time period between '96
and '99?
MS. O'REILLY: Vague and ambiguous.
Overbroad.
THE WITNESS: There was an investigation
conducted in, it looks to be October 1995. There was
no analysis done for MTBE at that time. There
appeared to have been some releases that occurred by
that time.
But without specific analysis for MTBE, I
couldn't have any opinion -- I can't offer any
opinion as to whether MTBE releases occurred more
likely that, you know, prior to '95 or after '95.
BY MR. PÉREZ:
Q. And I take it your answer would be
the same for the releases discussed in the first
paragraph of the piping and dispenser area releases,

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adjacent piping. And releases from the piping and
dispenser area would be from dispenser components
and/or adjacent piping.
But I don't have a -- I can't be more
specific with it.
Q. And for any of the releases described
in the "Identification of Releases" section, were you
able to determine the duration of the release?
MS. O'REILLY: Misstates the document.
Vague and ambiguous.
THE WITNESS: I was not able to determine a
specific duration of a release. The opinion stated
is that the releases were likely intermittent.
BY MR. PÉREZ:
Q. Let's briefly turn to the Exxon
Tulare site, and I just have a few brief questions on
that, following up on Mr. Stack's questioning.
In the "Identification of MTBE Releases"
section for the Exxon Tulare site, which is located
at 4594 East Tulare Avenue in Fresno, in the first
paragraph of that section, the second to the last
sentence reads, quote, "The timing of the releases is
not known, but the releases likely occurred between
the fall of 1992, when MTBE was required to be in
Fresno County gasoline, and the time when the tanks

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which you mentioned likely occurred during that same
time period?
A. With the information that I have
available and my expertise which is in storage
systems -- your hydrogeo people may have different
opinions, but from where I'm sitting, I can't offer
any opinions as to -- any more precise than what I've
offered right here as to the timing of those
releases.
Q. So it's equally likely that it
occurred earlier or later in the time period, in your
opinion?
A. The information I have, I can only
bracket the release between fall of '92 and when the
tanks were removed in '99. And I can't -- I can't
differentiate that period any more than that.
Q. Now that we have talked about all the
sites, I want to go back to one point that you made
early on.
You said that if you had considered supplier
information in connection with development of your
opinions for any of these sites, it would have been
noted in a footnote in your site summary, correct?
A. I believe that's correct.
Q. And I don't believe that any of the

25 (Pages 797 to 800)
Golkow Technologies, Inc. - 1.877.370.DEPS

Marcel G. Moreau
Page 953
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ACKNOWLEDGMENT OF DEPONENT
I, __________________________, do
hereby certify that I have read the foregoing
pages, and that the same is a correct
transcription of the answers given by me to the
questions therein propounded, except for the
corrections or changes in form or substance, if
any, noted in the attached Errata Sheet.
_________________________________
MARCEL G. MOREAU
DATE

Subscribed and sworn
To before me this
______ day of _________________, 20____.
My commission expires: ________________
_______________________________________
Notary Public

Page 955
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CERTIFICATE OF REPORTER
I, SANDRA BUNCH VANDER POL, a Certified
Shorthand Reporter, hereby certify that the witness
in the foregoing deposition was by me duly sworn to
tell the truth, the whole truth and nothing but the
truth in the within-entitled cause;
That said deposition was taken down in
shorthand by me, a disinterested person, at the time
and place therein stated, and that the testimony of
the said witness was thereafter reduced to
typewriting, by computer, under my direction and
supervision;
That before completion of the deposition,
review of the transcript was requested. If
requested, any changes made by the deponent (and
provided to the reporter) during the period allowed
are appended hereto.
I further certify that I am not of counsel or
attorney for either or any of the parties to the said
deposition, nor in any way interested in the event of
this cause, and that I am not related to any of the
parties thereto.
DATED:
________________________________
SANDRA BUNCH VANDER POL, CSR #3032

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-----ERRATA
-----PAGE LINE CHANGE
____ ____ _________________________________
REASON: __________________________________
___ ____ __________________________________
REASON: __________________________________
____ ____ _________________________________
REASON: __________________________________
____ ____ _________________________________
REASON: __________________________________
____ ____ _________________________________
REASON: __________________________________
____ ____ _________________________________
REASON: _________________________________
____ ____ _________________________________
REASON: _________________________________
____ ____ _________________________________
REASON: _________________________________
____ ____ _________________________________
REASON: _________________________________
____ ____ _________________________________
REASON: _________________________________
____ ____ _________________________________

64 (Pages 953 to 955)
Golkow Technologies, Inc. - 1.877.370.DEPS

EXHIBIT 8

Beacon 3519

Beacon #3519
4591 East Belmont Avenue, Fresno

MAJOR MILESTONES
1961

Three 12,000 gallon USTs were installed [10/22/1998].

Dec 10, 1998

Three single walled (SW) steel, 12,000 gallon USTs, piping, and
dispensers were removed.

Jan 19, 1999

A Permit to Operate was issued for two 15,000 gallon unleaded tanks
with pressure piping. The tanks were installed in the same excavation
as the former USTs.

Feb 13, 2001

MtBE was detected in groundwater samples. Quarterly groundwater
sampling commenced.

July 10, 2003

Consultant concluded after two series of soil vapor extraction tests
that SVE was not a feasible alternative for remediation of soil beneath
the site. On behalf of Ultramar, the consultant requested CRWQCB to
grant a low risk closure for the site.

March 15, 2004

CRWQCB confirmed the completion of a site investigation and
corrective action for the USTs formerly located at the facility.

SPILL/LEAK EVENT CHRONOLOGY
Dec 10, 1998

UST Abandonment Inspection Report. Three 12,000 gallon USTs were
removed. Soil samples were collected from the tank excavations and
from beneath eight dispensers on two islands (only four dispenser
samples were reported in the removal report). Odors were observed
in the samples from the east side of Tank 2 (T2): strong odor, gray soil
in S5 (15 ft bgs) and medium odor, grayish soil in S6 (17 ft bgs). All
three tanks were in good condition, rusted, with no holes visible.
[12/10/1998]

Dec 11, 1998

An Unauthorized Release Report (URR) was filed by Fresno County for
the release of an unknown quantity of gasoline, discovered during tank
removals. The source was checked as unknown.

Beacon 3519, Fresno

Page 1 of 4

SOIL/GROUNDWATER CONTAMINATION CHRONOLOGY
Feb 18, 1999

Tank Removal / Closure Report. On Dec 10 11, 1998, three SW steel,
12,000 gallon USTs, product piping, and two dispenser islands were
removed from the site. Soil samples were collected for analysis of
TPHg, MtBE, and BTEX. Additional sidewall samples were collected on
12/14/1998 from the Tank 3 excavation.
USTs: The highest concentrations of TPHg (13,000,000 ppb) and MtBE
(110,000 ppb) were in the samples collected from the east end
(submersible end) of Tank 3 (15 and 18 ft bgs). Lower concentrations
of TPHg were detected in samples from T2 (1,900 to 9,700 ppb) but
not T1. MtBE was detected at all three tank locations (15 ppb to
110,000 ppb).
Product Line Trenches – No analytes were detected in the single
sample collected (3 ft bgs).
Dispenser Samples: TPHg (at 1,100 ppb) and MtBE (at 120 ppb) were
detected in the sample near the south end of the eastern dispenser
island (6 ft bgs). No analytes were detected in the other three
dispenser samples. Note: the site diagram indicates samples were
taken from beneath the piping adjacent to the dispensers, not directly
beneath the dispensers.

Feb 7, 2000

Two soil borings (B 1 & B 2) were drilled to 75 ft bgs and soil samples
were collected. B 1 was on the east side of the UST excavation, and B
2 was on the south side. TPHg was found only in B 1 samples, at a
maximum concentration of 13,000 ppb (45 ft bgs). MtBE was detected
in samples from both borings, with a high of 38,000 ppb at B 1 (31 ft
bgs) and 1,600 ppb at B 2 (31 ft bgs). The borings were grouted to 30
and 41 ft bgs, and vapor extraction wells were installed (VW 1 & VW
2). The consultant concluded that no gasoline constituents were
present within 20 to 30 ft of the estimated groundwater level (90 ft
bgs). [6/15/2000]

Dec 27 29, 2000

Three monitoring wells were installed to a depth of 115 ft bgs. MW 1
was located east of the UST excavation area, and MW 2 and MW 3
were located on the southern property boundary. [4/6/2001]

Feb 13, 2001

Groundwater samples were collected and analyzed. Quarterly
groundwater sampling commenced. [4/6/2001]

Beacon 3519, Fresno

Page 2 of 4

April 6, 2001

Results of Soil and Groundwater Investigation. Groundwater was
measured in site wells at 99 ft bgs, and reportedly flowed to the west
southwest. No TPHg or BTEX compounds were detected in the Dec
2000 soil boring samples. MtBE was detected in soil samples collected
from 10 to 85 ft bgs at the MW 1 boring, with a maximum
concentration of 16,000 ppb (40 ft bgs). The 85 ft bgs sample from
MW 1 also contained 6.5 ppb MtBE. The only MtBE detection at MW
2 was 5.6 ppb at 100 ft bgs. No MtBE was present in soil samples from
the MW 3 boring. In groundwater, only MtBE was detected: 59 ppb in
MW 1 and 6.6 ppb in MW 2. Other groundwater analytes that were
ND were TPHg, BTEX, DIPE, ETBE, TAME, TBA, DCA, DBA.

July 10, 2003

Soil Vapor Extraction Test Report and Request for No Further Action.
Consultant concluded after two series of soil vapor extraction tests
that SVE was not a feasible alternative for remediation of soil beneath
the site. Also noted was that no TPHg or BTEX had ever been detected
in groundwater samples, and no MtBE concentrations above 1 ppb had
been reported in groundwater since Dec 2001. A request was made
for low risk closure and permission to abandon the vapor extraction
and monitoring wells.

March 15, 2004

Case Closure Summary. Fifteen water supply wells were identified
within a 2,500 foot radius of the site. The closest well was
approximately 600 ft west of the site and was identified as City of
Fresno municipal Well #30A.
Summary and conclusions: A former release of petroleum
hydrocarbons at the site resulted in the degradation of the underlying
soils and groundwater. The extent of the impacted soils has been
adequately evaluated. Remediating the impacted soils via SVE
technology was evaluated and determined to not be a viable cleanup
alternative. Further investigation of the site does not appear
warranted. The results of groundwater monitoring and sampling
events conducted between 2001 and 2003 revealed that the
contaminant plume had stabilized and decreased. Groundwater
impacts diminished to nearly non detectable levels as of March 2002.
The residual petroleum hydrocarbons in the underlying soils are likely
to naturally degrade and are not anticipated to pose a threat to the
beneficial use of groundwater in the area.
CRWQCB confirmed the completion of a site investigation and
corrective action for the USTs formerly located at the facility.
[RWQCB FRESNO 016244]

Beacon 3519, Fresno

Page 3 of 4

May 11, 2004

Well Abandonment Report. Three monitoring wells and two VE wells
were pressure grouted. [5/11/2004]

IDENTIFICATION OF MTBE RELEASES
Tank Area Releases
MtBE contaminated soil was discovered at the bottom of the tank excavation in December of
1998 when three storage tanks were removed. The highest levels of MtBE contamination
(110,000 ppb) were associated with the submersible pump end of Tank 3, but all samples
except the sample from the fill end of Tank 1 were contaminated with MtBE at levels ranging
from 15 to 21,000 ppb. Contamination detected at the fill ends of the tanks was likely the
results of delivery releases, while contamination detected at the submersible pump ends of the
tanks was likely the result of releases from the submersible pumps and adjacent piping. The
releases were likely intermittent. The volume released is not known.
Piping and Dispenser Area Releases
MtBE contaminated soil was discovered beneath piping adjacent to the dispensers in December
of 1998 when the piping and dispensers were removed. Because of the proximity of the sample
to the dispensers, the releases that produced the contamination could have originated from the
piping or from the dispensers. Dispensers and adjacent piping are frequent sources of releases
(see general report in this case). The releases were likely intermittent. The volume released is
not known.
Customer Spills
Small spills are common during vehicle fueling activities and no doubt occurred throughout the
time this facility was in operation. Fueling spills may have contributed to the MtBE
contamination present in the dispenser area.

Beacon 3519, Fresno

Page 4 of 4

EXHIBIT 9

Fresno Valley Gas

Fresno Valley Gas
2139 South Elm St., Fresno

Note: Station known as Beacon Station No. 528, Ultramar Station No. 538, and Arco/Ultramart.

MAJOR MILESTONES
1975

Three 10,000 gallon steel tanks and piping were installed, with no
overfill protection or spill containment [undated document].

Nov 18, 1985

A new convenience store building was reportedly completed, and one
dispenser island was removed.

April 17, 1991

Three soil borings were drilled to evaluate petroleum hydrocarbons in
soil and groundwater at the site as part of a real estate transaction.
Petroleum hydrocarbons were not found in soil samples; groundwater
was not encountered.

April 17, 1992

Several piping leaks were discovered via a helium test.

Dec 8, 1998

New construction permit application included removal of the surface
cover to the tanks, internal sandblasting and coating, installation of
cathodic protection, installation of a Veeder Root tank monitor and
line leak detection.

Oct 25, 1999

A line leak was discovered by helium testing.

Nov 29, 1999

A soil sample collected on the north side of the southern dispenser
island, where a hole in a pipe was discovered and repaired, was found
to contain 31,000,000 ppb TPHg and 920,000 ppb MtBE.

Mar 2004

Bravo boxes were added beneath the dispensers. Dispenser
containment not present previously [6 26 2003].

May 18, 2004

Shallow soil beneath the dispensers was reportedly “significantly
impacted by fuel hydrocarbons”, with a maximum MtBE concentration
of 164,000 ppb. Additional investigation was recommended.

Fresno Valley Gas, Fresno

Page 1 of 5

Jun 20, 2007

Official Inspection Report notes: “Facility still under piping
replacement and under red tag regulation. Business is still closed.”
No other references to red tag were reviewed.

Feb 28, 2008

A final construction inspection report documented the presence of:
Single wall steel USTs, with lining and cathodic protection.
Overspill and overfill prevention.
DW FRP piping, with continuous monitoring.

SPILL/LEAK EVENT CHRONOLOGY
Aug 14, 1989

A tightness testing report noted a leak at dispenser #4 in the vapor line
and a leak at dispenser #6. The unleaded turbine was also found to be
leaking.

Aug 21, 1989

An interoffice memo questioned the accuracy of some of the Aug 1989
test results. Further testing confirmed a leak in the premium NL line
and the NL turbine, and both were repaired. [8/25/1989]

Sept 8, 1989

A letter to Fresno County stated that the super line failed PetroTite line
testing on Aug 14, 1989. The line was uncovered and repaired and
passed a line test on 8/15/1989.

Oct 5, 1990

Tank test results indicated a loss of 0.403 on the premium unleaded.

Oct 25, 1990

Inspection Report documented that the super NL product line was
repaired; the overfill protection, fill pipe, and vent pipe were also
replaced.

April 17, 1992

Official Inspection Report: An assessment of the exposed piping
indicated that the metal piping was rusted and corroding; several leaks
in the piping were found via a helium test. One leak was reportedly
detected at the dispenser riser and another at the fill box.

July 30, 1999

Official Inspection Report: Inspector noted that gasoline was being
dispensed at the NL pumps, in violation of an order not to dispense
fuel until the dispenser had been repaired, tested, and approved.

Oct 25, 1999

A line leak, discovered by helium testing, was reported on the south
island in front of the canopy column.

Nov 5, 1999

UST Installation Inspection Record: Because of a leak (see Oct 25,
1999), the 87 NL piping was replaced between the southern dispenser

Fresno Valley Gas, Fresno

Page 2 of 5

island and the market. A soil sample was collected for TPHg, BTEX and
MtBE analysis, and strong odors were noted.

SOIL/GROUNDWATER CONTAMINATION CHRONOLOGY
April 17, 1991

Subsurface Environmental Investigation Report: Three soil borings (B1
to B3) were drilled to 35 to 50 ft bgs (max depth) to evaluate
petroleum hydrocarbons in soil and groundwater at the site as part of
a real estate transaction. Soil samples were analyzed for TPHg and
BTEX, and the results were ND for the most part (two toluene hits at
15 ft bgs). Groundwater was not encountered. [5/8/1991]

Nov 29, 1999

Soil sample S 1 was collected at 5 ft bgs on 11/5/1999 on the north
side of the southern dispenser island, where a hole in a pipe was
discovered and repaired. The sample was found to contain 31,000,000
ppb TPHg and 920,000 ppb MtBE.

May 18, 2004

Soil samples were collected from beneath the six dispensers at the site
on March 19 and 30, 2004, and tested for TPHg, BTEX, MtBE, and other
oxygenates. The soil beneath the dispensers was reportedly
“significantly impacted by fuel hydrocarbons.” Four of six samples had
TPHg levels greater than 1,000,000 ppb. The highest concentrations
were in samples taken at the southern dispenser island at 4 ft bgs; the
maximum TPHg concentration was 6,022,000 ppb and the maximum
MtBE concentration was 164,000 ppb. Another sample from the
southern dispenser island had 38,000 ppb MtBE. One sample from the
northern dispenser island had 5,000 ppb of MtBE. Additional
investigation was recommended.

April 9, 2007

Results of Soil Sampling Report: Soil samples were collected during the
removal of the dispenser system in Dec 2006, but the results were
never reported. Nine samples were collected with hand augers in
February of 2007. MtBE was detected in two samples from the
southern dispenser island, at 24 ppb and 27,000 ppb.

IDENTIFICATION OF MTBE RELEASES
Tank Area Releases
The unleaded turbine pump was observed to be leaking in August of 1989 and repaired shortly
thereafter. When this release began is not known. The volume released is not known. MtBE
was not commonly present in California gasoline in 1989, so it is unlikely that this release
Fresno Valley Gas, Fresno

Page 3 of 5

contributed to the MtBE contamination at this facility.
A leak in a fill riser was detected and repaired in April of 1992. When this release began is not
known. The volume released is not known. MtBE was not commonly present in California
gasoline in the spring of 1992, so it is unlikely that this release contributed to the MtBE
contamination at this facility.
Piping and Dispenser Area Releases
Releases were observed in the piping associated with dispensers #4 and #6 in August of 1989
and repaired shortly thereafter. Releases from dispensers are common (see general report in
this case). When these releases began is not known. The volume released is not known. MtBE
was not commonly present in California gasoline in 1989, so it is unlikely that these releases
contributed to the MtBE contamination at this facility.
A piping leak in a premium dispenser was detected and repaired in October of 1990. Releases
from dispensers are common (see general report in this case). When this release began is not
known. The volume released is not known. MtBE was not commonly present in California
gasoline in 1990, so it is unlikely that this release contributed to the MtBE contamination at this
facility.
A piping leak in a dispenser riser was detected and repaired in April of 1992. Releases from
dispensers and adjacent piping are common (see general report in this case). When this release
began is not known. The volume released is not known. MtBE was not commonly present in
California gasoline in the spring of 1992, so it is unlikely that this release contributed to the
MtBE contamination at this facility.
A leak in the unleaded line was repaired in August of 1999. Unleaded fuel was apparently being
dispensed despite the leak. The exact location of the leak is not known. When this release
began is not known. The volume released is not known. MtBE was commonly present in
California gasoline in 1999, so it is likely that this release contributed to the MtBE
contamination at this facility.
A piping leak near the southern dispenser islands was repaired in November of 1999, and MtBE
contaminated soil was detected. When the leak began is not known. The volume of the
release is not known.
MtBE was detected in three of six soil samples collected in March of 2004 from beneath the
dispensers at the site. When these releases occurred is not known, but they likely occurred
intermittently between the fall of 1992 when MtBE was first required to be present in Fresno
County gasoline,1 and 2003 when MtBE was removed from California gasoline. The exact
1

“Areas Participating in the Oxygenated Gasoline Program,” Energy Information Administration, Department of
Energy, http://www.eia.gov/steo/special/oxy2.html#Original, accessed on 9/15/2011.
Fresno Valley Gas, Fresno

Page 4 of 5

dispenser components that leaked are not known, but dispensers and adjacent piping are
frequent sources of releases (see general report in this case). The amount released is not
known.
MtBE was detected in two of nine soil samples collected in February of 2007 from beneath the
dispensers at the site. When these releases occurred is not known, but they likely occurred
intermittently between the fall of 1992 when MtBE was first required to be present in Fresno
County gasoline,2 and 2003 when MtBE was removed from California gasoline. The exact
components that leaked are not known, but dispensers and adjacent piping are frequent
sources of releases (see general report in this case). The amount released is not known.
Customer Spills
Small spills are common during vehicle fueling activities and no doubt occurred throughout the
time this facility was in operation. Fueling spills may have contributed to the MtBE
contamination detected in the dispenser area at this facility.

2

Ibid.

Fresno Valley Gas, Fresno

Page 5 of 5

EXHIBIT 10

Deposition of Shirley McMurphy Ahmad / February 16, 2011
Page 1
1
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CITY OF FRESNO,

)
5

)
Plaintiff,

)

6

)
vs.

Page 3

)

No. 04 CIV. 4973
) (SAS)MDL 1358
CHEVRON U.S.A. INC., et al.,
)
)
Defendants.
)
___________________________________)

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DEPOSITION OF
SHIRLEY McMURPHY AHMAD
FREMONT, CALIFORNIA
WEDNESDAY, FEBRUARY 16, 2011

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DEPOBOOK REPORTING SERVICES
Certified Shorthand Reporters
1600 G Street, Suite 101
Modesto, California 95354
800-830-8885
REPORTER:

DENISE WHEELER, CSR NO. 8254

A P P E A R A N C E S (Cont'd):
FOR THE DEFENDANT KERN OIL AND REFINING:
CYNTHIA TSAI, Attorney at Law
GORDON & REES, LLP
101 W. Broadway, Suite 2000
San Diego, California 92101
619.696.6700
619.696.7124 FAX
[e-mail]
FOR THE DEFENDANT VALERO:
BEN PATTON, Attorney at Law
BRACEWELL & GIULIANI, LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
713.221.1344
713.221.1212 FAX
[e-mail]

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A P P E A R A N C E S:
FOR THE PLAINTIFF:
EVAN EICKMEYER, Attorney at Law
MILLER, AXLINE, SAWYER
1050 Fulton Avenue, Suite 100
Sacramento, California 95825-4225
916.488.6688
916.488.4288 FAX
[e-mail]
FOR THE DEFENDANT TESORO:
NARGUES MOTAMED, Attorney at Law
BINGHAM MCCUTCHEN, LLP
355 South Grand Avenue, Suite 4400
Los Angeles, California 90071-3106
213.680.6868
213.830.8768 FAX
[e-mail]
FOR THE DEFENDANT CHEVRON U.S.A. INC.:
SAMUEL DAVIS, Attorney at Law
KING & SPALDING
1100 Louisiana Street, Suite 4000
Houston, Texas 77002-5213
713.276.7335
713.751.3290 FAX
[e-mail]
FOR THE DEFENDANT LYONDELL:
BENJAMIN WANGER, Attorney at Law
BLANK ROME, LLP
One Logan Square
130 North 18th Street
Philadelphia, Pennsylvania 19103-6998
215.569.5559
215.832.5559 FAX
[e-mail]

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INDEX
WITNESS: SHIRLEY McMURPHY AHMAD
EXAMINATION
PAGE
By MR. EICKMEYER
7
By MS. MOTOMED
35
By MR. PATTON
39
EXHIBITS
NUMBER
DESCRIPTION
PAGE
1
Plaintiff City of Fresno's Second Amended 11
Notice of Deposition of Shirley McMurphy
Ahmad With Videotaping
2
City of Fresno Environmental Health
17
Application Bates FCDEH-FRESNO-003657
3
Business Plan Registration Form
19
Bates RWQCB-FRESNO-001732
4
Department of Health Environmental Health 23
Application Bates FCDEH-FRESNO-003889
5
Certification of Financial Responsibility 24
for Underground Storage Tanks Containing
Petroleum Bates RWQCB-FRESNO-001520 to
001521
6
May 31, 1994, letter from Shirley
26
McMurphy to Fresno County Environmental
Health Bates RWQCB-FRESNO-001509

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E X H I B I T S (Cont'd)
NUMBER
DESCRIPTION
PAGE
7
Single Form of Agreement for Purchase
28
and Sale of Commericial Property
Bates RWQCB-FRESNO-001448 to 001449
8
Note Modification Agreement Bates
39
BD000878 to 000880
9
Purchase Agreement and Escrow
41
Instructions BB002759 to 002777
10
May 8, 1991, letter from Randall K.
45
Stephenson to Fresno County
Environmental Health Department
Bates RWQCB-FRESNO-001265 to 001313

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Lyondell.
MS. TSAI: This is Cynthia Tsai with Gordon & Rees
on behalf of Kern Oil.
MR. PATTON: This is Ben Patton with Bracewell &
Giuliani on behalf of the Valero defendants.
MR. DAVIS: Samuel Davis with King & Spalding on
behalf of the Chevron defendants.
THE VIDEOGRAPHER: Will the court reporter please
swear in the witness.
SHIRLEY MCMURPHY AHMAD,
having been duly sworn, was
examined and testified as follows:
EXAMINATION BY:
MR. EICKMEYER: Q. Good afternoon, Ms. Ahmad. My
name is Evan Eickmeyer, as I introduced myself.
I will start out the questioning this afternoon and
ask most of the questions, and then the people on the phone
and here in the room will have a chance to ask questions as
well.
I think we covered a lot of questions with your
husband already. You'll be happy to hear it will make
things faster for you.
If you ever can't hear me or I'm not speaking
clearly or loudly, please let me know, and I'll try and do
better.

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THE VIDEOGRAPHER: Good afternoon.
1
This begins videotape number 1, Volume I, in the
2
deposition of Shirley McMurphy Ahmad in the matter of the
3
City of Fresno versus Chevron USA, et al. in the United
4
States District Court for the Southern District of New York.
5
The master file number of which is 100-1898.
6
Today's date is February 16th, 2011, and the time
7
on the video monitor is 3:30 p.m.
8
The deposition is being taken at the Courtyard
9
Marriott in Fremont, California, and was made at the request
10
of the plaintiff.
11
The court reporter producing the official
12
transcript of today's testimony is Denise Wheeler of
13
Depobook Reporting Services, 1600 G Street, Suite 101,
14
Modesto, California, 95354. The videographer is Cutler
15
Andrus of Legal Advantage Video, 25 Stillman Street, Suite
16
106, San Francisco, California 94107.
17
Will counsel please identify yourselves and state
18
whom you represent?
19
MR. EICKMEYER: Good afternoon. Evan Eickmeyer of
20
Miller Axline & Sawyer for plaintiff City of Fresno.
21
MS. MOTAMED: Nargues Motamed of Bingham McCutchen 22
on behalf of the Tesoro defendants.
23
MR. EICKMEYER: On the phone?
24
MR. WANGER: This is Ben Wanger from Blank Rome for 25

Page 8
Have you ever had your deposition taken before?
A. Yes.
Q. Has it been in regard to any gasoline stations?
A. It had to do with the partners -Q. And that was -A. -- in this group.
Q. I'm sorry, were you done?
A. In this group of partners we had on the gas
station.
Q. It had to do with the Petro Group?
A. Yes.
Q. Did any of the topics of your deposition have
anything to do with any environmental contamination or
cleanup?
A. No.
Q. I'm going to go over for a minute some of the
ground rules of the deposition process just to make sure
they're fresh in your mind and make sure you don't have any
questions for us.
The oath that the reporter gave you is the same
oath to tell the truth as if we were in court today in front
of a judge, and you have the same obligation to be truthful
as if we were in court here today. Do you understand that?
A. Yes.
Q. Because the transcript is being typed up, it's

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wrong, please let us know. But I think what your husband
described there were two partnerships called Petro Group I
and Petro Group II?
A. That's correct.
Q. Is it correct that -- let's see if I have my notes
correct. I think it was Petro Group II acquired the station
on Elm?
A. Yes.
Q. During the time that the Petro Group operated the
station on Elm, do you know where the gasoline was supplied
from?
A. We -- we bought the location from Beacon, and we
would buy the gas from Beacon. And then I guess they became
Ultramar or something. And then -- so that's where we would
get the gas I think.
Q. Did you have an understanding as to who the refiner
of the gasoline was during the time you mentioned first that
it was branded Beacon or Ultramar?
MR. PATTON: This is Ben Patton. I'd like to
object to the extent that calls for speculation.
MR. DAVIS: This is Samuel Davis. I'll object that
it's been asked and answered.
THE COURT REPORTER: I'm sorry, you'll object that
it's what?
MR. EICKMEYER: He said asked and answered.

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Q. Was it your understanding that the station was
purchased from Beacon?
A. That's right.
Q. And then I think you said -- I'm sorry -- I'm
trying to remember between your testimony and your
husband's -- that there was a change in the brand after a
few years?
A. I think Beacon was taken over, or Ultramar bought
Beacon. It became Ultramar later.
Q. So the station changed at some point from the
Beacon brand to the Ultramar brand?
A. I think that's what happened.
Q. This is the one on Elm Street -- or, I'm sorry,
2139 South Elm?
A. If it happened to one, it would have happened to
all of them. So I think they all changed. You know, I
mean, I think Beacon -- didn't Ultramar buy out Beacon.
That's what I'm -- that's what I -- I mean, I just am trying
to remember, and I'm thinking that that's what happened.
Q. Well, let me back up a little bit because we're
just trying to find out what your knowledge is. So when you
first bought the station at 2139 South Elm -A. I know we bought them from Beacon.
Q. Okay.
A. Because all the Beacon people were there, and they

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Q. Go ahead.
A. I really don't know who the refinery was.
Q. Do you recall ever seeing tanker trucks delivering
gasoline to the station?
A. Oh, I'm sure they -- they came. See, I lived in
Fremont, and so I very seldom was at Fresno. And I paid all
the bills. I did all the bookkeeping. Every day they would
have, you know, the sales report. Then I would put it in
the computer. So I had the five gas stations to take care
of. Then we had our own business and our personal, and then
I had a little one at the time, and so I was pretty busy
just taking care of that part. So I really wasn't in Fresno
that often. And because of that particular location wasn't
the best area, I just didn't go there that often.
So I don't know if I remember seeing a tanker truck
at that location. I know I did at other locations. We were
at other locations more often than that one.
Q. When you mentioned -- I think you described
handling the paperwork for the station, did you ever see any
paperwork indicating what company or companies were
delivering gasoline to that station?
A. I really don't remember.
Q. You mentioned the station was initially branded
Beacon I think you said?
A. That's correct.

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were, you know, going through the whole thing and
inventories and all that. So I know we bought them from
Beacon.
Q. Do you remember who you dealt with at Beacon as
part of that purchase process?
A. I don't. I didn't really deal with them. My
husband did.
Q. Is it your understanding that the gasoline then was
initially supplied by Beacon, and then their name switched
to Ultramar at some point.
A. That's what I'm thinking, yes.
Q. At some point did the brand of the station change
to Valley Gasoline?
A. Yes, that happened later.
Q. Do you have a knowledge as to who supplied gasoline
during the time the station was called Valley Gasoline?
A. I'm not sure. My husband would know. I don't
know.
Q. Your husband mentioned some companies call Total
Energy and Sabek Oil?
A. Okay. Yes.
Q. Those are familiar?
A. Yes.
Q. Do you recall any other companies besides those two
that might have supplied gasoline to the station when it was

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A. Yes.
Q. Can you tell from the writing if you were the
person that completed this form?
A. No, I did not.
Q. As far as the information that's listed here, is
this information correct, to your knowledge, as of the date
shown here 12/31/93?
A. Yes.
Q. If you could turn to the second page Bates ending
in 1521, is that your signature at the bottom of the page?
A. Yes.
Q. And if you could take a look at this page -- and if
I didn't mention already, if there's any document you need a
moment to read, we'll be happy to take the time to do that.
I don't have too many documents to show you here.
If you could take a look at this page, and my
question is whether the information shown here was accurate
to the best of your knowledge as of the date indicated
12/31/93? So my question was just if the information shown
here on this page was accurate to the best of your knowledge
on the date indicated 12/31/93?
A. Yes.
Q. On the top line of this page it says, "I am the
chief financial officer for Petro Group II." Do you see
that?

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MR. EICKMEYER: Q. I'm handing you what I've
marked as Exhibit 6. This was not used for your husband's
deposition. This is -- has your name at the top Shirley
McMurphy, EA, dated May 31, 1994, Bates RWQCB hyphen Fresno
hyphen 001509. Do you recognize your signature at the
bottom of this page?
I'm sorry, I didn't hear you if you answered. I
asked you do you recognize your signature at the bottom of
this page.
A. Yes. Yes.
Q. And does this letter appear to be in your writing?
A. Yes.
Q. And would this indicate changing stations from
Beacon Service Stations to Valley Gas, indicate that the
change of names would have happened at approximately the
date of this letter, May 31st, 1994?
A. Yes.
Q. So from the -- I see the designation at the -- at
the top of this page shows EA, that you're enrolled to
represent taxpayers before the IRS?
A. That's correct.
Q. So is that also -- I think your husband described
you as a CPA. So you were also in the accounting business
before the gas stations were acquired?
A. That's right.

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A. Yes.
Q. Was that an official title that you had, or is that
just indicating that you were responsible for taking care of
the financial business?
A. I think just that we were responsible for taking
care of the financial.
Q. Within the partnership of Petro Group II, did
anyone have any particular titles or designations as to what
they were responsible for?
A. No.
Q. Were the partners in Petro Group II equal partners?
A. No.
Q. Can you describe?
A. It was depending on how much they had invested.
Q. Who was considered, if anyone, then to be the lead
partner, have the biggest share?
A. It would have been myself.
Q. I think you mentioned when you were talking about
the stations and having a child at home, you said you and
your husband I think also had another business. Was that
right?
A. Accounting business. Bookkeeping, accounting
business.
(Exhibit No. 6 was marked for
identification.)

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Q. Let me ask you -- if you want, we can look back at
Exhibit 1. Your husband had mentioned doing accounting work
for different gas stations. And I was just going to ask
looking at that list of stations in No. 1, did you ever do
any accounting work for any stations in Fresno shown
there -A. No.
Q. -- besides your own station?
A. No.
(Exhibit No. 7 was marked for
identification.)
MR. EICKMEYER: Q. I'm going to hand you what
I've marked as Exhibit 7. I believe this was Exhibit 9 to
your husband's deposition. This is titled Single Form of
Agreement for Purchase and Sale of Commercial Property,
Bates RWQCB hyphen Fresno hyphen 001448 through 1449. Do
you recognize -- at the bottom of the second page do you
recognize your signature there?
A. Yes.
Q. Do you know whose handwriting this document is in?
A. This is my husband's.
Q. Can you tell us what's indicated by this document,
what the purpose was?
A. He was selling the station to these other people.
Q. Was it the Petro Group II was selling their

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THE WITNESS: Is it in here?
MR. EICKMEYER: She'll give you a new one. We're
using different numbers than your husband's exhibits.
21, I've got it, thanks.
MS. MOTAMED: And I'm marking this as Exhibit 10.
(Exhibit No. 10 was marked for
identification.)
(Pause in proceedings.)
MR. PATTON: Q. I'm sorry, do you have the
document, Ms. Ahmad?
A. Oh, yes.
Q. Do you recognize this as one of the reports that
was referred to in Section 4.2 that we were just looking at?
A. Well, now I'm reading on this page here. This says
600 East Elm Avenue in Fresno. And we had a 600 in
Coalinga -- South Elm in Coalinga. That was the address of
Coalinga.
Q. I'm sorry, are we looking at different documents?
Are you looking at a document with Ultramar at the heading?
I may have got the wrong exhibit number, and that's my
fault.
MR. EICKMEYER: I think, counsel, she's pointing
out on Bates 1267 the address in the top paragraph is 600
East Elm Avenue, Fresno. That's what she was pointing to
here in the room.

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We are now going off the record. The number of videotapes
used is two. The time is 4:35.
(Deposition concluded at 4:35 p.m.)

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MR. PATTON: Okay. Thank you for clarifying that.
That does seem to be the wrong address.
Q. But on the front it has the correct address; is
that right; on the first page?
A. Right.
Q. Was it your understanding after these reports were
done that they came back with the conclusion that there was
no contamination at the 2139 Elm station?
MR. EICKMEYER: Object. Misstates the evidence.
THE WITNESS: As far as I know everything would
have been just right -- would have been okay.
MR. PATTON: Q. Okay. Thank you very much,
Ms. Ahmad.
I have no further questions.
MR. EICKMEYER: Anyone else on the phone?
UNKNOWN SPEAKER: No questions here.
THE COURT REPORTER: Who was that?
MR. WANGER: Mr. Wanger.
MR. EICKMEYER: Anyone else still with us? Last
chance.
Anything else?
MS. MOTAMED: No.
MR. EICKMEYER: All right. Thank you, Ms. Ahmad.
We conclude.
THE VIDEOGRAPHER: This concludes the deposition.

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REPORTER'S CERTIFICATION
I, DENISE WHEELER, CSR No. 8254, Certified Shorthand
Reporter, certify:
That the foregoing proceedings were taken before me at
the time and place therein set forth, at which time the
witness was put under oath by me;
That the testimony of the witness, the questions
propounded, and all objections and statements made at the
time of the examination were recorded stenographically by me
and were thereafter transcribed;
That the foregoing is a true and correct transcript of
my shorthand notes so taken.
I further certify that I am not a relative or employee
of any attorney of the parties, nor financially interested
in the action. I declare under penalty of perjury under
the laws of the California that the foregoing is true and
correct.
Dated this 28th day of February, 2011.

_________________________________
DENISE WHEELER, C.S.R. No. 8254

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DEPOBOOK REPORTING SERVICES [phone]

EXHIBIT 11

40995205

Nov 21 2011
2:29PM

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
– – – – – – – – – – – – – – – – – – – – – – – – – –
This Document Applies to:
City of Fresno (Plaintiff)

Case No. 04 CV-04973 (SAS)

v.
Chevron U.S.A. Inc., et al (Defendants)
– – – – – – – – – – – – – – – – – – – – – – – – – – –

AMENDED EXPERT REPORT OF JOHN B. O’BRIEN

Date: November 21, 2011

that implemented compromises reached as a result of the negotiations.65
64.

To clarify the terminology associated with the 1990 CAAA gasoline regulations,

and as used in this Report, gasoline made to meet the requirements of the OFP is referred to as
“oxygenated” gasoline, while gasoline made to meet the requirements of the RFG program is
referred to as “reformulated” gasoline, or simply RFG. Both of these grades of gasoline were
required to contain minimum levels of oxygen through the addition of oxygenates, as described
above.66 Gasoline sold in areas not covered by either the OFP or RFG programs was not required
to contain oxygenates and is referred to as “conventional” gasoline. However, conventional
gasoline may, and often does, contain oxygenates depending on logistics, octane requirements,
and processing economics. Also, so-called “anti-dumping” regulations preclude refiners from
simply blending (“dumping”) all of their most highly polluting components into conventional
gasoline. Following the January 1995 introduction of RFG, there was a period of regulatory
overlap between the OFP and RFG programs when RFG was required to contain 2.7 Wt.%
oxygen (instead of 2 Wt.%) during the winter months in OFP areas. This was done to avoid
having two conflicting fuel regulations in areas covered by both OFP and RFG.
CARB Reformulated Gasoline Regulations
65.

CARB was formed by the California legislature in 1968 to find solutions to

California’s air pollution problems. Since its establishment, CARB has often been in the
forefront of the development of automobile emission controls. In 1971, CARB adopted the
nation’s first automobile emissions standards for oxides of nitrogen. In 1975, exhaust catalytic

65

Michael Weisskopf, “Rare Pact Reached to Fight Smog; Environmentalists, Oil Firms Agree on Gasoline
Standards,” The Washington Post, August 16, 1991, p. 1.
66
The requirement that RFG contain a minimum oxygen content was lifted in May 2006, after Congress passed the
RFS mandating that the domestic gasoline supply contain certain minimum volumes of blendstocks made from
renewable sources.
Page 32

converters were required on all new cars sold in California under CARB’s Motor Vehicle
Emission Control program. In 1988, CARB adopted regulations requiring all new cars sold in
the state to have onboard computer-controlled emission monitoring systems.
66.

However, CARB’s most significant statewide gasoline regulations occurred when

Phase I of the California Reformulated Gasoline (CaRFG1) program became effective on
January 1, 1992. CaRFG1 totally eliminated the use of lead additives, mandated the use of
deposit control additives, and in some areas of the state, extended the new federal RVP limits for
longer time periods.
67.

For federal OFP-designated areas, California obtained an EPA waiver to use

gasoline containing between 1.8 and 2.2 Wt.% oxygen, instead of the standard federal level of
2.7 Wt.% for wintertime OFP gasolines.67 Also, when the federal OFP program commenced in
November 1992, CARB required the entire state to comply with the wintertime oxygenate
program because approximately 80% of the state’s gasolines were marketed in areas that were
non-attainment for CO according to federal regulations.68 This statewide wintertime oxygenate
requirement started in November 1992 and terminated in February 1998. However, CARB
required certain selected counties and areas of the state to continue their wintertime oxygenate
use even though they were CO-compliant. For example, the counties of Fresno, Madera, and the
Lake Tahoe Air Basin were required to continue wintertime oxygenate use through January
2000, even though they had achieved CO-compliance in June 1998.69 The CARB wintertime
oxygenate target of 2.0 Wt.% oxygen was equivalent to 11.0 Vol.% MTBE or 5.7 Vol.% ethanol.
67

The waiver was requested as part of California’s State Implementation Plan (SIP). Data showed that oxygen
levels above 2.2 Wt.% increased nitrogen oxide emissions and added to ozone and particulate matter pollution.
68
James D. Boyd, CARB, Letter to Daniel W. McGovern, EPA, October 30,1992, regarding revisions to
California’s SIP for compliance with the federal OFP program.
69
See 63 FR 15305 and year 2000 version of Title 13, California Code of Regulations, Section 2262.5 (13 CCR
2262.5).
Page 33

In his report in this matter, Plaintiff’s expert Mr. Reynolds incorrectly states that CARB’s
wintertime oxygenate requirements only applied to Greater Los Angeles and Imperial County.70
In fact, they applied throughout the state for several years.
68. CARB Phase II (CaRFG2) gasoline regulations were promulgated in October 1991
and became effective on March 1, 1996, 15 months after the federal RFG regulations were
implemented. The CaRFG2 regulations were more stringent than those for federal Phase I RFG
and substantially lowered the sulfur dioxide, nitrogen oxides, and VOC emissions compared to
Phase I RFG. The emissions behavior of CaRFG2 gasoline was estimated based on CARB’s
own “predictive model” and measured the emissions compliance of each gasoline blend based on
its RVP, aromatics, olefins, sulfur, benzene, oxygen, and distillation. CaRFG2 gasoline sulfur
content was limited to 30 parts per million (ppm) using the averaging method of compliance
versus an average level of 130 ppm for federal RFG. In order to meet the tougher emission
requirements, the average level of aromatics and olefins in CaRFG2 gasoline also had to be
lower than typical federal RFG.
69.

Because CaRFG2 was more restrictive than federal RFG, it was allowed to

supersede federal requirements. Most CaRFG2 gasoline was targeted to contain 2.0 Wt.%
oxygen year-round, with an allowable compliance range of between 1.8 and 2.2 Wt.%.71
Although CaRFG2 was required statewide, some areas of the state were subject to the
requirements of the federal OFP and RFG programs as well. Exhibit H shows the counties in
California that were subject to the federal OFP or RFG programs, or both, at any time during the
70
71

Reynolds Fresno Report, May 2, 2011, Section 4.2, p. 7.
If gasoline suppliers complied with the CARB emissions requirements under the predictive model, they were
permitted to produce gasoline without oxygenates if they so chose (except in RFG-designated areas.) The
oxygenate requirement only applied to suppliers complying under the so-called “flat limits” of 1.8 to 2.2 Wt.%.
See 13 CCR 2262. Although small amounts of non-oxygenated CaRFG2 were produced between 1996 to 2003,
high refining costs precluded any significant volumes. CaRFG2 also allowed 10 Vol.% ethanol blends with a
maximum of 3.7 Wt.% oxygen.

Page 34

period from 1995 to 2003. In December 2001, the counties in the San Joaquin Valley Air Basin72
were designated by the federal government as ozone non-attainment areas and, effective
December 2002, these counties were required to meet federal RFG requirements.73
70.

CaRFG2 specifications proved very difficult for refiners to meet and required

numerous modifications to refinery facilities. Difficulties in obtaining the necessary construction
permits in the highly regulated California environment added time and cost to the necessary
refinery modification projects. CARB-compliant gasoline became the most expensive in the
nation and its availability from sources outside the state was very limited.
71.

CARB Phase III (CaRFG3) gasoline regulations became effective December 31,

2003, the same time that the state’s MTBE phaseout was complete. Because CaRFG3 gasoline
used in federal RFG areas was still required to contain 2.0 Wt.% oxygen, completion of the
MTBE phaseout was effectively a mandate for the use of 5.7 Vol.% ethanol (the only CARBapproved source of oxygen) in those gasolines.74 CaRFG3 also lowered the levels of sulfur and
benzene permitted in gasoline and slightly adjusted distillation temperature limits.
72.

Despite recent federal mandates to increase the blending of ethanol into all

domestic gasoline supplies, the 5.7 Vol.% ethanol level was retained in all California gasolines
until January 1, 2010, when the state’s Low Carbon Fuel Standard (LCFS) was passed into law.75
Although the LCFS did not specifically mandate an increase in ethanol blending, increasing the
ethanol content from 5.7 to 10 Vol.% became, along with other adjustments in fuel quality, an

72

The San Joaquin Valley Air Basin comprises the counties of San Joaquin, Stanislaus, Merced, Madera, Fresno,
Kings, Tulane, and western Kern County.
73
See 66 FR 56476-484.
74
See 13 CCR 2262.6.
75
California’s LCFS is aimed at reducing greenhouse gases from all of the state’s energy sources.
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integral part of California refiners’ strategy to comply with the new law.
The Federal Renewable Fuel Standard (“RFS”)
73.

In August 2005, the federal government passed the Energy Policy Act of 2005,

which included the first RFS. Commencing in May 2006, the first RFS required certain
minimum volumes of ethanol to be used annually in the nation’s fuel supply, at the same time
eliminating any requirement for oxygenates in RFG. The intended purpose of the first RFS was
to reduce dependence on foreign oil through increased use of domestic renewable fuels, reduce
greenhouse gas emissions, and support new domestic economic activity in renewable fuels
production. In December 2007, the federal government passed the Energy Independence and
Security Act of 2007 (EISA), which substantially expanded the RFS requirements for the
nationwide blending of fuels from renewable sources.76 As of the time of this Report, minimum
oxygen requirements remain only in certain OFP regulated areas.77 However, all such oxygen is
currently provided through ethanol blending.

V.

GASOLINE SUPPLY CHAIN OVERVIEW
74.

The gasoline “supply chain” is the entire set of interdependent activities that are

carried out to bring gasoline to the end user. The supply chain is very complex, highly regulated,
intensely competitive, and involves a large number of business relationships. The business
relationships exist throughout the entire supply chain—from the refiner, blender, or importer to
the retail service station operator. Exhibit I is a diagram showing the complexity of the
76

EISA increased the annual volume of renewable fuels (including ethanol) required in the U.S. motor fuel supply
to 36 billion gallons by the year 2022, or approximately 2,350,000 barrels per day (B/D). Of that total, only a
maximum of 15 billion gallons per year (BGY), or approximately 978,500 B/D of corn-based ethanol can be used
to meet RFS requirements.
77
See 13 CCR 2262.5(a). The remaining OFP areas are the South Coast Area (Los Angeles and Orange Counties,
as well as parts of Riverside and San Bernardino Counties) and Imperial County.
Page 36

out” of the gasoline pool in California is to export them or burn them as refinery fuel—providing
a low economic value. The net result is a loss in total gasoline volume.
193. Third, and finally, the energy content of ethanol is less than that of either
hydrocarbon gasoline or MTBE. It is approximately one-third less than hydrocarbon gasoline
and about 20% less than MTBE. Since a fuel’s volumetric energy content is directly related to
the mileage that can be achieved in an internal combustion engine, substitution of hydrocarbon
gasoline or MTBE with ethanol requires that more fuel volume be burned for the same miles
driven. The net effect is the same as for the removal of light ends from gasoline—the
incremental gasoline volume must be made up by refiners processing more crude oil or through
gasoline imports.
194. If refiners must process more crude oil to produce the same volume of gasoline, the
cost of producing gasoline increases. Increased imports of gasoline not only increase the cost of
the gasoline supplies, but also raise important issues regarding long-term security of supply.
Although the impact of ethanol on gasoline supply may vary, both on a refiner to refiner and on a
temporal basis, it would have been clear to most refiners considering alternative oxygenate
materials in the early 1990s that ethanol would negatively impact their overall gasoline
production and make them less competitive from a pricing standpoint.
Summary of MTBE versus Ethanol Considerations
195. Each gasoline refiner was faced with the decision of how and where to source the
large volumes of oxygenates that were projected to be required in RFG and OFP designated
areas. As has been explained in this Report, there were many factors to be considered in making
this decision. Although there were a number of different types of ethers and alcohols that could
be used, the fundamental choice was between MTBE and ethanol. For many of the reasons
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discussed above, most refiners generally opted for MTBE. The following paragraphs summarize
the key issues that directed that decision.
196. Ethanol Availability – Most ethanol plants were small, inefficient, highly
leveraged, and concentrated in the Midwest corn producing states, far removed from the areas of
largest future RFG/OFP demand. There were few ethanol plants being planned or under
construction because the economics did not justify it. Ethanol imports were limited by a tariff
and by the “cap” on CBI nation volumes. In contrast, capacity for MTBE was growing rapidly,
both at refineries and through merchant plant construction. The latter relied on low-cost butanes,
the very materials that were rapidly being displaced from the gasoline pool due to restrictive
RVP regulations.
197. Ethanol Distribution and Blending – Ethanol’s water miscibility precluded it
from being blended at the refinery and transported by pipeline. Reliance on ethanol as the source
of oxygenate in major East Coast and West Coast RFG markets would have resulted in
substantial rail transportation costs, as well as major new investments in segregated rail offloading facilities, terminal storage tanks, and truck rack loading and blending systems. Ethanol’s
high blending RVP required refiners to produce a special low RVP RBOB (or CARBOB in
California), complicating the refining process, adding additional expense, and reducing gasoline
volume. The latter could only be made up by processing more crude oil or importing high-cost
gasoline from foreign sources. When the EPA denied requests to provide ethanol-blended RFG
gasoline with an RVP “waiver” (which it gave for conventional gasoline), any plans for new
ethanol capacity essentially came to an end.171 In denying the waiver, the EPA was concerned
that the expanded use of ethanol in RFG gasolines would increase emissions in those areas that

171

“Ethanol Producers Battle EPA Proposal on Clean Air,” The Wall Street Journal, May 1, 1992, p. 84.

Page 95

already had the “dirtiest” air. When asked about this fact at trial in the City of New York Case,
Mr. Reynolds confirmed, “I believe that’s why they [the EPA] said they would not grant it [the
waiver] for all their RFG areas, yes.”172 In comparison, both inside and outside of the refinery,
MTBE behaved like any other refinery gasoline blendstock and did not suffer from any excessive
RVP, blending, transportation, or distribution problems.
198. Ethanol Economics – Even with the help of generous federal subsidies, the cost of
producing ethanol in the early 1990s made it only marginally competitive with other oxygenate
sources, such as MTBE. Additional state subsidies or incentives were needed to encourage
expanded production. Ethanol’s fundamental economics, with a high dependency on corn prices,
raised uncertainty about the long-term viability of the ethanol industry. In 1994, the U.S.
General Accountability Office (GAO), the audit arm of the U.S. Congress, reported that despite a
federal law requiring large federal agencies to use renewable fuels, the agencies had substantially
failed to comply.173 The high price of ethanol was cited as a key reason. MTBE, in contrast, was
not only much cheaper to produce, but also offered economic synergies with other refinery
processes such as alkylation. Also, MTBE production costs were directly related to other energy
costs, not based on the price of a totally unrelated farm crop and agricultural by-products the way
ethanol was.
199. Supply Reliability and Quality Control – If a refiner chose ethanol as its
oxygenate source, it often had to enter into a contract with a relatively small supplier with an
unknown “track record.” A refiner did not want to be dependent on oxygenate sourced from
potentially unreliable suppliers operating in an economically challenged, subsidized industry.

172
173

Reynolds Trial Testimony, City of New York Case, p. 4715, lines 12-13.
Advanced Technology Program - Federal Agencies’ use of Gasohol Limited by High Prices and Other Factors,
U.S. GAO, Report to the Honorable Byron L. Dorgan, U.S. Senate, December 1994.

Page 96

The refiner was essentially taking on the risk of default in supply, the cost of which could be
substantial. However, refiners themselves had no interest in owning or operating ethanol plants,
which represented an entirely different line of business. The choice of ethanol also introduced
issues of product quality control. RFG regulations required that gasoline meet all specifications
at the point of retail delivery to the consumer. By choosing ethanol as the oxygenate source,
refiners were, in effect, transferring part of the gasoline manufacturing process—the need to
blend the correct volume of ethanol just prior to delivery—to entities over which they had little
or no control. Unlike ethanol, MTBE could be reliably manufactured and blended at the refinery
and the final blend certified at the time of production, in accordance with strict quality control
procedures. Absent some unusual pipeline or terminal operating problem, the refiner knew that
the product delivered to the retail station met the RFG regulations. The use of MTBE offered
more product quality assurance and less risk of violation of those regulations.
200. Consumer Acceptance – Because ethanol had been linked to various fuel quality
and vehicle performance issues when initially used, a perception had arisen that ethanol-blended
fuels were inferior and to be avoided. MTBE bore no such consumer acceptance problems.
Indeed, by 1990, MTBE had been proven to be an economic, easily used, high-octane, and
reliable gasoline blendstock that could be blended, transported, and delivered like any other
gasoline blendstock.

VII. COMPARISON OF ETHANOL CIRCUMSTANCES TODAY VS. THE 1990s
201. It has often been asserted that the fact that ethanol is in such widespread use in the
U.S. today is ample proof that all U.S. refiners and marketers could have, if they had chosen to,
met the oxygenate requirements of the 1990 CAAA using ethanol alone. I do not agree with this
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assertion. The technical and commercial circumstances 15-20 years ago were very much
different than they were in the early to mid-2000s when U.S. refiners started to transition from
MTBE to ethanol. Of course, no one can know for certain what could have been accomplished
15-20 years ago. However, given that ethanol producers and refiners would at that time have
had, at best, only three to four years to build a large number of new ethanol plants, as well as
substantially modify both refineries and distribution systems to accommodate ethanol on a
nationwide basis, I find it unreasonable to assume that such a rapid expansion of the ethanol
industry could have been achieved. Ethanol blending confronted gasoline suppliers with a
multiplicity of risks, uncertainties, and added costs in the early 1990s. To assume that suppliers
would have simply ignored such factors is, in my opinion, unrealistic.
202. Instead, I am of the opinion that individual refiners did exactly what can be
anticipated from any competitive business enterprise. They kept their options open until they
knew what the actual regulations would be and then made the most prudent investments and/or
operational changes needed to ensure that they remained competitive in their markets. Since
MTBE held so many technical and economic advantages over ethanol, and entailed much lower
supply risk, it is not surprising that it became the oxygenate of choice outside the Midwest
ethanol production areas. It is unreasonable to assume that refiners would have made large
investments to expand RBOB production, or potential ethanol suppliers would have invested in
large new production facilities, when neither knew the role that ethanol would eventually play in
meeting the 1990 CAAA. Gasoline marketing is highly competitive. Each refiner was faced
with an individual decision as to which federally approved oxygenate to use. As discussed in
more detail in this section, an individual refiner facing such a choice would also be aware that its
competitors were facing a similar choice. It would be reasonable for a refiner to assume that its
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Conclusion
229. In my opinion, it is totally improper to consider what has been achieved in the
ethanol and the refining industries over the last 15-20 years and conclude that the same could
have been achieved during the implementation of the 1990 CAAA. Conditions were simply too
different across many dimensions. The dynamics of the entire industry were vastly different
during the two periods, and there was simply too much uncertainty in the earlier periods to
encourage the level of change and investment needed. When individual refiners considered their
choice between ethanol and MTBE, it was typically made on the basis of competition, overall
economics, and security of oxygenate supply. Since MTBE was generally favored in all
categories, it is not surprising that most refiners chose it over ethanol. MTBE phaseouts and
ethanol mandates were key drivers in the transition from MTBE to ethanol in the mid-2000s. No
such issues were foreseen in the earlier time frames.

VIII. DIMINISHING PUBLIC AND POLITICAL SUPPORT FOR ETHANOL
230. Over the last few years, both public and political support for the expanded use of
corn to produce additional fuel ethanol has waned considerably. This has come about as a
greater proportion of the population has come to understand the additional costs and unintended
consequences of the large-scale use of ethanol in motor fuel. Even former Vice President Al
Gore, who was once one of the most ardent advocates of fuel ethanol, has come out against
expanded corn ethanol production. He now admits that the benefits of ethanol are “trivial.”210
Asked to explain his previous support for ethanol, the former Vice President said, “One of the
reasons I made that mistake [i.e., supporting corn ethanol] is that I paid particular attention to

210

“Al Gore’s Ethanol Epiphany,” The Wall Street Journal, November 27, 2010.

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December 31, 2011. Elimination of the VEETC would not reduce the quantity of ethanol
blended into gasoline since this is mandated by law. However, discontinuance of the VEETC
has the potential to significantly alter the economics of ethanol producers.

I reserve the right to amend these opinions if subsequent information becomes available
which would materially alter my findings.

_________________________
JOHN B. O’BRIEN
Date: November 21, 2011

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EXHIBIT 12

40970676

City of Fresno v Chevron U.S.A. Inc., et al.
Report of Christine T. Wood, Ph.D.

Christine T. Wood, Ph.D.

Exponent Failure Analysis Associates, Inc.
149 Commonwealth Drive
Menlo Park, CA 94025

November 18, 2011

© Exponent, Inc.

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Nov 18 2011
3:26PM

stations.55 It is this existence of laws and regulations, and the enforcement thereof, that
increases compliance with warnings that are disseminated about the safe handling of gasoline.

Summary and Conclusions
In summary, I offer the following opinions with a reasonable degree of scientific certainty:
The safety messages contained in warnings and other information about gasoline releases
provided by defendants available to their customers are reasonable, adequate and sufficient to
communicate the proper precautions for storing and handling gasoline, whether it contains
MTBE or not.
The inclusion of additional or alternative information, such as that proposed by plaintiff, would
not change the safety practices among service station operators.
The inclusion of additional warnings would dilute the message of a simple warning not to
permit spills or leaks of gasoline, reducing its effectiveness.

55

Deposition of Gary Beacom, 08/10/2011, pp. 22, 24, 72; Deposition of Garabed Bedirian, 04/04/2011, pp. 41-42;
-67;
Deposition of Jatinder Paul Dhillon, 08/11/2011, pp. 26-27, 59, 62-64; Deposition of Babak Lakestani, 08/09/2011,
p. 36; Deposition of Bryan Leonard Moe, 08/17/2011, p. 43; Deposition of Joe Rebella, 03/15/2011, p. 40 (fire
department); Deposition of Judy Rogers, 03/08/2011, pp. 35-37; Deposition of Jeetander Sethi, 07/13/2011, pp. 26,
47-48, 90-91
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