Case 2:10-cv JFW-MAN Document 135 Filed 03/28/11 Page 1 of 2 Page ID #:5103

Transcription

1 Case 2:10-cv JFW-MAN Document 135 Filed 03/28/11 Page 1 of 2 Page ID #:5103

2 Case 2:10-cv JFW-MAN Document 135 Filed 03/28/11 Page 2 of 2 Page ID #:5104

3 Case 2:10-cv JFW-MAN Document #:5105 Filed 03/28/11 Page 1 of 9 Page ID EXHIBIT 1

4 Case 2:10-cv JFW-MAN Document #:5106 Filed 03/28/11 Page 2 of 9 Page ID Page 2 Exhibit 1

5 Case 2:10-cv JFW-MAN Document #:5107 Filed 03/28/11 Page 3 of 9 Page ID Page 3 Exhibit 1

6 Case 2:10-cv JFW-MAN Document #:5108 Filed 03/28/11 Page 4 of 9 Page ID Page 4 Exhibit 1

7 Case 2:10-cv JFW-MAN Document #:5109 Filed 03/28/11 Page 5 of 9 Page ID Page 5 Exhibit 1

8 Case 2:10-cv JFW-MAN Document #:5110 Filed 03/28/11 Page 6 of 9 Page ID Page 6 Exhibit 1

9 Case 2:10-cv JFW-MAN Document #:5111 Filed 03/28/11 Page 7 of 9 Page ID Page 7 Exhibit 1

10 Case 2:10-cv JFW-MAN Document #:5112 Filed 03/28/11 Page 8 of 9 Page ID Page 8 Exhibit 1

11 Case 2:10-cv JFW-MAN Document #:5113 Filed 03/28/11 Page 9 of 9 Page ID Page 9 Exhibit 1

12 Case 2:10-cv JFW-MAN Document #:5114 Filed 03/28/11 Page 1 of 5 Page ID EXHIBIT 2

13 Case 2:10-cv JFW-MAN Document #:5115 Filed 03/28/11 Page 2 of 5 Page ID Page 10 Exhibit 2

14 Case 2:10-cv JFW-MAN Document #:5116 Filed 03/28/11 Page 3 of 5 Page ID Page 11 Exhibit 2

15 Case 2:10-cv JFW-MAN Document #:5117 Filed 03/28/11 Page 4 of 5 Page ID Page 12 Exhibit 2

16 Case 2:10-cv JFW-MAN Document #:5118 Filed 03/28/11 Page 5 of 5 Page ID Page 13 Exhibit 2

17 Case 2:10-cv JFW-MAN Document #:5119 Filed 03/28/11 Page 1 of 18 Page ID EXHIBIT 3

18 Case 2:10-cv JFW-MAN Document #:5120 UNITED STATES DISTRICT COURT Filed 03/28/11 Page 2 of 18 Page ID Page 215 CENTRAL DISTRICT OF CALIFORNIA THE BOEING COMPANY, ) ) Plaintiff, ) ) vs. ) Case No. ) CV JFW(MANX) MAZIAR MOVASSAGHI, in his ) official capacity as the ) Volume II Acting Director of the ) California Department of ) Toxic Substances Control, ) ) Defendant. ) ) DEPOSITION OF RICHARD E. BRAUSCH Los Angeles, California Thursday, December 16, 2010 Reported by: Judith Schlussel CSR No NDS Job No.: afe3c-38e0-48e1-a13c-50e51d9546cc Page 14 Exhibit 3

19 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA 3 4 Page THE BOEING COMPANY, ) ) 6 Plaintiff, ) ) 7 vs. ) Case No. ) CV JFW(MANX) 8 MAZIAR MOVASSAGHI, in his ) official capacity as the ) Volume II 9 Acting Director of the ) California Department of ) 10 Toxic Substances Control, ) ) 11 Defendant. ) ) DEPOSITION OF RICHARD E. BRAUSCH, 16 taken at 350 South Grand Avenue, Suite 2100, 17 Los Angeles, California 90071, commencing at 18 9:37 a.m., on Thursday, December 16, 2010, 19 before Judith Schlussel, CSR No Case 2:10-cv JFW-MAN Document #:5121 Filed 03/28/11 Page 3 of 18 Page ID 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 15 Exhibit 3

20 Case 2:10-cv JFW-MAN Document #: APPEARANCES OF COUNSEL: Filed 03/28/11 Page 4 of 18 Page ID Page FOR THE PLAINTIFF: 4 5 WILMER CUTLER PICKERING HALE & DORR, LLP 6 BY: RANDOLPH D. MOSS, ESQ. 7 ANNIE L. OWENS, ESQ Pennsylvania Avenue, NW 9 Washington, DC (202) FOR THE DEFENDANT MAZIAR MOVASSAGHI: STATE OF CALIFORNIA 15 OFFICE OF THE ATTORNEY GENERAL 16 BY: BRIAN HEMBACHER, ESQ South Spring Street 18 Suite Los Angeles, California (213) afe3c-38e0-48e1-a13c-50e51d9546cc Page 16 Exhibit 3

21 1 APPEARANCES OF COUNSEL (CONTINUED): 2 3 FOR THE DEFENDANT DEPARTMENT OF TOXIC 4 SUBSTANCES CONTROL: 5 6 DEPARTMENT OF TOXIC SUBSTANCES CONTROL 7 BY: NANCY J. LONG, ESQ. 8 (NOT PRESENT) I Street 10 Sacramento, California (916) ALSO PRESENT: 14 ART LENOX Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 5 of 18 Page ID #:5123 Page afe3c-38e0-48e1-a13c-50e51d9546cc Page 17 Exhibit 3

22 Case 2:10-cv JFW-MAN Document #: NASA? Filed 03/28/11 Page 6 of 18 Page ID Page MR. HEMBACHER: Yes. 3 MR. MOSS: And we obviously reserve on this 4 issue as we do on the others. 5 MR. HEMBACHER: I understand. 6 MR. MOSS: I'd like to mark as Exhibits 28 and 7 29 respectively the DOE AOC and the NASA AOC. 8 (Deposition Exhibit Nos. 28 and 29 were marked 9 for identification.) 10 Q. BY MR. MOSS: I'd like to see if we can maybe 11 save a little bit of time by not going through both 12 separately. Am I correct that in general the terms of 13 the NASA AOC and the DOE AOC are the same? 14 A. In general, yes. 15 Q. Let me go through and ask you questions about 16 the DOE AOC. But if there is anything different with 17 respect to the NASA AOC, can you flag that for me? 18 A. Sure. 19 Q. That way we can avoid doing it twice. 20 A. Okay. 21 Q. Referring to Exhibit 28, let me first ask you 22 to look at Paragraph 2.1. In Paragraph 2.1, it provides 23 for a cleanup to background; is that correct? 24 A. Correct. 25 Q. What does that mean, a cleanup to background? 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 18 Exhibit 3

23 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 7 of 18 Page ID #:5125 Page A. As explained in this paragraph and also in the 2 agreement in principle, a cleanup to background is to 3 remove the contaminants of concern to levels that 4 preceded any release of hazardous substances and to 5 reduce or eliminate the concentrations of other 6 contaminants that are not naturally found in background 7 to levels of detection. 8 Q. If contaminants are present in the soil, how do 9 you determine what the background would have been for 10 that soil in the absence of the contaminants? 11 A. There are techniques by which background 12 studies are conducted to determine based on similar 13 geology and similar site history for nearby pieces of 14 property that are then used to measure what is termed 15 background concentrations. Again, there is a number of 16 assumptions and design parameters that go into the 17 design of a background study all intended to determine 18 conditions which are roughly analogous to or nearly is nearly identical to as possible the site that is 20 being studied. 21 Q. And do the AOCs include exceptions to the 22 requirement to clean up the background? 23 A. They do. 24 Q. What are those exceptions? 25 A. The exceptions are found specifically in the 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 19 Exhibit 3

24 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 8 of 18 Page ID #:5126 Page agreement in principle which is Attachment B to the 2 order and refers to circumstances where the detection 3 limits are above the background levels, circumstances 4 where Native American artifacts are found, which are 5 desired to be preserved. The endangered species are 6 present such that, and in the case where the Federal 7 Fish and Wildlife Services indicated that the 8 destruction of their habitat would be unwarranted or 9 unacceptable, and then unforeseen circumstances, which 10 would be by petition or request by DOE for circumstances 11 that are not described, yet are kind of conceptually 12 made provision for. 13 Q. With respect to the exceptions, would the 14 cleanup be compliant with SB 990? 15 MR. HEMBACHER: Calls for a legal conclusion. 16 THE WITNESS: With respect to the cleanup 17 that's contemplated by the, each of the AOCs, we believe 18 that a cleanup to those standards would be compliant 19 with SB Q. BY MR. MOSS: If there were some area of the 21 site that you could not clean up to background because 22 of Native American artifacts or endangered species for 23 example, would that portion of the site still be cleaned 24 up to whatever the land use assumption is required under 25 SB 990? 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 20 Exhibit 3

25 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 9 of 18 Page ID #:5127 Page MR. HEMBACHER: Calls for a legal conclusion. 2 THE WITNESS: Procedurally, we would have to 3 assess what the circumstances were that calls for the 4 exercise of the exception to determine what the 5 appropriate method would be to prevent, limit or 6 eliminate exposure. 7 Q. BY MR. MOSS: Let me put it a little bit 8 differently. There are some circumstances in which, for 9 example, the federal endangered species act would trump 10 what otherwise SB 990 might require? 11 MR. HEMBACHER: Calls for a legal conclusion. 12 THE WITNESS: I don't know offhand if there 13 are. But if there were, this exception is envisioned to 14 allow for that. 15 Q. BY MR. MOSS: How is it that the summing of the 16 risks at SSFL works with respect to the exceptions that 17 might be made under the AOCs? Do those then go in the risk that exists as a result of the exceptions, does 19 that then go into the overall summing of the risks for 20 the site? 21 A. Essentially, as the exceptions would play out 22 with respect to the cleaning up to other, for other 23 contaminants of concern, essentially the exercise of the 24 exceptions as it stands and even as we've contemplated, 25 cleaning up to background and cleaning up to detection 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 21 Exhibit 3

26 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 10 of 18 Page ID #:5128 Page limits will likely exceed a strict SB 990 land use 2 assumption standard and would likely exceed per the 3 preliminary remediation goals and risk space screening 4 levels for contaminants at the site, with the 5 understanding that cleaning up to background and 6 detection limits is in essence the most stringent that 7 we can practically accomplish at any site. 8 Q. Does the AOC apply to groundwater? 9 A. Neither of the AOCs applies to groundwater. 10 Q. Why is that? 11 A. The concept of cleanup to background, we felt 12 was not an appropriate standard given our level of 13 understanding of groundwater and the potential for, and 14 the need for determining additional methods by which we 15 might need to clean up groundwater. 16 Q. Are there questions regarding the feasibility 17 of cleaning up the groundwater to background? 18 A. There are questions related to the ability to 19 clean up and the type and mechanism and methods by which 20 cleanup could occur, yes, there are all sorts of 21 technical questions that remain to be answered through 22 the study of the groundwater. 23 Q. That's just not complete; is that right? 24 A. Correct, it's not complete. 25 Q. Does SB 990 apply to groundwater? 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 22 Exhibit 3

27 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 11 of 18 Page ID #:5129 Page MR. HEMBACHER: Objection; calls for a legal 2 conclusion. 3 THE WITNESS: Yes. SB 990 applies to 4 groundwater in that it's found in Chapter 6.8 in its 5 totality, all media are considered as part of the 6 cleanup. 7 Q. BY MR. MOSS: Does SB 990 apply to soil vapor? 8 I'm sorry. Strike that. Does the AOC apply to soil 9 vapor? 10 A. The AOC applies to soil vapor only to the 11 extent that the soil vapor is emanating from volatile 12 organic compounds that are found and are emanating from 13 the soil. To the extent that the soil vapor is 14 emanating from groundwater, the AOC does not apply to 15 that soil vapor and those soil vapors are intended to be 16 addressed through groundwater remedies. 17 Q. Does the soil vapor though in some sense 18 re-contaminate the soil as it emanates from the 19 groundwater? 20 A. That is one of the primary concerns and one of 21 the reasons for which that was separated. 22 Q. Does SB 990 apply to contamination resulting 23 from soil vapor? 24 A. Yes, it does. 25 Q. I take it that the plan is not to remove the 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 23 Exhibit 3

28 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 12 of 18 Page ID #:5130 Page soil, contaminated soil at the site, remediate the site 2 and then to go back and remove it a second time at some 3 time in the future if there is further contamination 4 from soil vapor? 5 MR. HEMBACHER: Objection; vague and ambiguous. 6 THE WITNESS: Conceptually, the idea was, and 7 the purpose of the AOCs was to create a practical 8 application so that the outcome that you described, 9 where you clean it up and it becomes re-contaminated 10 which then would necessitate removal again and again and 11 again; becomes an impractical and unreasonable outcome. 12 Q. BY MR. MOSS: So how is that addressed? 13 A. It is addressed by, in the provisions of the 14 AOC, eliminating the need to address via the cleanup of 15 soil contaminants that are VOCs that are emanating from 16 the groundwater so that those VOC contaminants are 17 intended to be addressed through the remedy of the 18 groundwater matrix. 19 Q. And in your view, will that process lead to an 20 SB 990-compliant result? 21 A. The process will lead to an SB 990-compliant 22 result. 23 Q. What about vapors coming from bedrock where 24 there is no groundwater, is that covered by the AOC? 25 A. Potentially. This circumstance is potentially 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 24 Exhibit 3

29 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 13 of 18 Page ID #:5131 Page contemplated in the technical impracticability or 2 infeasibility provision of the exceptions, recognizing 3 that removal of bedrock is not a practical, or may not 4 be a practical solution. 5 Q. Are there some areas in which bedrock will be 6 removed pursuant to the AOC? 7 A. The AOC covers soils and soils only. 8 Q. And in your view, even though bedrock would not 9 be removed, the AOC would still lead to an SB compliant result; is that right? 11 MR. HEMBACHER: Objection; calls for a legal 12 conclusion. 13 THE WITNESS: Our interpretation and our 14 belief, again, understanding that the process needs to 15 play out and these are hypothetical circumstances that 16 are being described, we believe that the exercise and 17 the completion of work under the AOC will yield an SB compliant outcome. 19 Q. BY MR. MOSS: Does the AOC apply to 20 contamination in soil or bedrock that is below the 21 groundwater? 22 A. No. 23 Q. Why not? 24 A. But I guess only to the extent that the soil is 25 not a source. If soil, if a release occurred where 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 25 Exhibit 3

30 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 14 of 18 Page ID #:5132 Page contamination exists below the groundwater surface and 2 that is a source, then that soil would be subject to -- 3 again, the idea here was that VOCs and other 4 contaminants that are coming from groundwater and 5 contaminating the soil were made exception for and 6 provisioned for that. To the extent that the soil is 7 contaminating groundwater, that soil would be included 8 and would need to be addressed through the AOC. 9 Q. When DOE and NASA have fulfilled their 10 obligations under the AOCs, will the relevant areas of 11 the site meet or exceed SB 990 standards? 12 MR. HEMBACHER: Objection; vague and ambiguous. 13 Calls for legal conclusion. 14 THE WITNESS: I don't know that we've ever 15 represented that it would exceed SB 990 standards. We 16 believe it would fulfill and comply with SB standards. 18 Q. BY MR. MOSS: That would apply then to all of 19 Area IV; is that right? 20 A. Correct. 21 Q. As well as A. And the northern buffer. 23 Q. And the northern buffer? 24 A. Yes. As is specified in each of the AOCs. 25 Each of the AOCs refers specifically to the geographical 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 26 Exhibit 3

31 Case 2:10-cv JFW-MAN Document #: areas to which they apply. Filed 03/28/11 Page 15 of 18 Page ID Page Q. All of Area II? 3 A. All of Area II. 4 Q. The portion of Area I owned by the federal 5 government as well? 6 A. Correct. 7 MR. HEMBACHER: To the extent that each of 8 those was asking whether or not they would then be 9 compliant with SB 990, then I'm going to interject the 10 objection that it calls for a legal conclusion. 11 Q. BY MR. MOSS: In your view, once DOE and NASA 12 have fulfilled their obligations under the AOCs, will 13 there be anything left to do with respect to remediating 14 Area IV, the northern buffer zone, Area II or the 15 portion of Area I owned by the federal government? 16 A. Groundwater. 17 Q. Anything other than groundwater? 18 A. No. In essence, groundwater would be the sole 19 remaining element that would need to be addressed and 20 we're envisioning and contemplating long term, long, 21 long-term activities associated with that. 22 Q. For SB 990 purposes, would there be anything 23 for Boeing to do with respect to those areas other than 24 with respect to the groundwater? 25 MR. HEMBACHER: Calls for a legal conclusion. 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 27 Exhibit 3

32 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 16 of 18 Page ID #:5134 Page MR. HEMBACHER: Understood. Also, in addition 2 to raising the settlement privilege, I'll also raise the 3 attorney-client privilege as well. 4 Q. BY MR. MOSS: Turn your attention to Paragraph I ask that you explain this provision of the AOC 6 to us. 7 A. Generally speaking, the -- 8 MR. HEMBACHER: Again, I'm going to object that 9 it calls for a legal conclusion. And I'm assuming 10 you're not asking him to describe the background of 11 this, but just literally what MR. MOSS: I think my question was simply to 13 explain the provision. 14 MR. HEMBACHER: Okay. 15 THE WITNESS: In essence, DOE is bound and 16 obligated by a court order issued by Judge Conti as it 17 pertains to their activities in Area IV. DOE and DTSC 18 recognize that the provisions of that order and the 19 operation of the provisions of that order on DOE require 20 it to do certain activities, including the preparation 21 of an EIR -- I can't get those two straight -- under 22 NEPA. 23 Q. BY MR. MOSS: Environmental impact statement? 24 A. Correct, under NEPA. For them to proceed with 25 the activities under this order requires that they be 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 28 Exhibit 3

33 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 17 of 18 Page ID #:5135 Page able to, in an immediate sense requires that they not 2 have to fulfill or go through the obligations of 3 preparing the EIS, but turn their attention to 4 activities under the agreement. What this says is that 5 in essence, they've got to get some sort of relief from 6 Judge Conti in Judge Conti's court in order to make that 7 switch. If they're able to, then everything is under 8 the agreement, operates as stated. If not, then the 9 agreement needs to be adjusted per that remaining 10 obligation to Judge Conti. 11 Q. Is it your understanding that the Department of 12 Energy or NASA will at some point in time conduct an 13 environmental impact statement or prepare an 14 environmental impact statement with respect to the 15 cleanup at SSFL? 16 MR. HEMBACHER: Calls for speculation. 17 THE WITNESS: I cannot speak for the federal 18 agencies and what they may or may not do. I know that 19 there has been discussion of NEPA responsibilities as it 20 pertains to them. All I can speak to is DTSC's 21 obligation and responsibilities under CEQA and whether 22 or not under CEQA the remedial action implementation 23 plan that is being contemplated for consideration and 24 approval will be subject to an environmental analysis. 25 I can tell you that that is the case, that that will 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 29 Exhibit 3

34 Case 2:10-cv JFW-MAN Document #: occur. Filed 03/28/11 Page 18 of 18 Page ID Page Whether or not it is an EIR or whether it is 3 some other form of CEQA documentation and 4 implementation, I can't tell you. That will play out as 5 we move further down this process. And when we see the 6 remedial action implementation plan, we will have a 7 better sense for the type, level and extent of 8 environmental analysis that will be required. 9 Q. BY MR. MOSS: Just for the record, am I correct 10 that CEQA is the California Environmental Quality Act? 11 A. That's the term I'm using. 12 Q. What does EIR stand for? 13 A. Environmental Impact Report. 14 Q. And when do you contemplate the DTSC would 15 prepare an EIR? 16 MR. HEMBACHER: Objection; misstates his 17 testimony. 18 Q. BY MR. MOSS: Or similar documentation? 19 A. DTSC will be conducting an environmental 20 assessment at about the same time as the remedial action 21 implementation plan is being prepared and shared with 22 the public. 23 Q. And do you know one way or the other as to 24 whether any of the federal entities will prepare an 25 environmental impact statement under NEPA? 352afe3c-38e0-48e1-a13c-50e51d9546cc Page 30 Exhibit 3

35 Case 2:10-cv JFW-MAN Document #:5137 Filed 03/28/11 Page 1 of 18 Page ID EXHIBIT 4

36 Case 2:10-cv JFW-MAN Document #:5138 UNITED STATES DISTRICT COURT Filed 03/28/11 Page 2 of 18 Page ID Page 1 CENTRAL DISTRICT OF CALIFORNIA THE BOEING COMPANY, ) ) Plaintiff, ) ) vs. MAZIAR MOVASSAGHI, in his ) official capacity as the ) Acting Director of the ) California Department of ) Toxic Substances Control, ) ) Defendant. ) ) ) Case No. ) CV JFW(MANX) DEPOSITION OF MARK J. MALINOWSKI Los Angeles, California Tuesday, January 11, 2011 Reported by: Judith Schlussel CSR No NDS Job No.: b6751d6c a9-8e1f d90732 Page 31 Exhibit 4

37 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA 3 4 Page 2 5 THE BOEING COMPANY, ) ) 6 Plaintiff, ) ) 7 vs. ) Case No. ) CV JFW(MANX) 8 MAZIAR MOVASSAGHI, in his ) official capacity as the ) 9 Acting Director of the ) California Department of ) 10 Toxic Substances Control, ) ) 11 Defendant. ) ) DEPOSITION OF MARK J. MALINOWSKI, 16 taken at 350 South Grand Avenue, Suite 2100, 17 Los Angeles, California 90071, commencing at 18 9:37 a.m., on Tuesday, January 11, 2011, 19 before Judith Schlussel, CSR No Case 2:10-cv JFW-MAN Document #:5139 Filed 03/28/11 Page 3 of 18 Page ID b6751d6c a9-8e1f d90732 Page 32 Exhibit 4

38 Case 2:10-cv JFW-MAN Document #: APPEARANCES OF COUNSEL: Filed 03/28/11 Page 4 of 18 Page ID Page FOR THE PLAINTIFF: 4 5 WILMER CUTLER PICKERING HALE & DORR, LLP 6 BY: RANDOLPH D. MOSS, ESQ. 7 ANNIE L. OWENS, ESQ Pennsylvania Avenue, NW 9 Washington, DC (202) FOR THE DEFENDANT MAZIAR MOVASSAGHI: STATE OF CALIFORNIA 15 OFFICE OF THE ATTORNEY GENERAL 16 BY: BRIAN HEMBACHER, ESQ South Spring Street 18 Suite Los Angeles, California (213) b6751d6c a9-8e1f d90732 Page 33 Exhibit 4

39 1 APPEARANCES OF COUNSEL (CONTINUED): 2 3 FOR THE DEFENDANT DEPARTMENT OF TOXIC 4 SUBSTANCES CONTROL: 5 6 DEPARTMENT OF TOXIC SUBSTANCES CONTROL 7 BY: NANCY J. LONG, ESQ I Street 9 Sacramento, California (916) ALSO PRESENT: ART LENOX 15 STEVEN RUSAK 16 KAVITA P. LESSER Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 5 of 18 Page ID #:5141 Page 4 b6751d6c a9-8e1f d90732 Page 34 Exhibit 4

40 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 6 of 18 Page ID #:5142 Page 14 1 I would be called on these topics and just what the 2 general aspects of the lawsuit were. 3 Q. Can you describe your educational background? 4 A. Yes. I have a Bachelor's Degree in geology 5 from Colorado State University. I completed that in And I have a Bachelor's Degree in environmental 7 studies from California State University Sacramento. 8 That was completed, I believe, in '86-'87 time frame. 9 Q. Any other higher studies? 10 A. No. 11 Q. Have you taken any courses or studied 12 radiological contamination or radiological cleanup in 13 any way? 14 A. I have not taken any formal classes in 15 radiological training. 16 Q. Do you have a background at all in chemistry or 17 chemical contamination or chemical cleanup? 18 A. My experience, my 21 years of experience is 19 really my background for the chemical cleanup. 20 Q. That's what I was just getting to. Can you 21 walk me through your professional history? 22 A. Yeah. I've been with the Department of Toxic 23 Substances Control for approximately 22 years. Prior to 24 that I worked in the oil services, oil field services. 25 But in relationship to the environmental cleanup with b6751d6c a9-8e1f d90732 Page 35 Exhibit 4

41 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 7 of 18 Page ID #:5143 Page 15 1 the Department of Toxic Substances Control, I've been a 2 project manager for approximately 15 of those 22 years, 3 worked on federal facilities predominantly. McClellan 4 Air Force Base, Hunter's Point Naval Shipyard, Treasure 5 Island; have provided technical support and project 6 management on those projects. So reviewed technical 7 documents; I've also managed those projects, the staff 8 associated with it, the technical staff and worked that 9 aspect. 10 And then I've supervised the Schools Program 11 out of the Sacramento office, so those are school 12 projects. We do site evaluations and cleanups as 13 required under site program and then for the last nine, 14 ten months have been manager of the Santa Susana project 15 for DTSC. 16 Q. Have you published any studies or any of your 17 work in any way? 18 A. Formally published, no. I have generated 19 reports. Part of what I did on McClellan was to 20 generate reports and evaluate data, but nothing formally 21 published in any publications. 22 Q. Your prior work over the 22-year period of time 23 with the DTSC, has any of that involved radiological 24 remediation or has it all been limited to chemical? 25 A. The investigations were for radiological. We b6751d6c a9-8e1f d90732 Page 36 Exhibit 4

42 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 8 of 18 Page ID #:5144 Page 16 1 had -- the only radiological cleanup we had done was on 2 McClellan. There was an instant where there was an 3 excavation that was occurring at a landfill portion of 4 McClellan called CS 10. There was -- they had 5 radiological lab equipment that was in drums. As they 6 uncovered these drums, they did find some glassware that 7 had some liquid in it and on the label of the bottle was 8 plutonium, PU for plutonium, so that was an emergency 9 removal that was taken. But the investigations 10 generally we're looking for things like Radium dials, 11 Radium related isotopes. There were some other isotopes 12 that were evaluated when we were doing our 13 investigations at McClellan just because of the 14 operations that were ongoing there at McClellan. They 15 had aircraft wash down, so aircraft had flown through 16 nuclear fallout from above-ground testing, and so 17 aircraft would fly through those, they would wash down 18 the aircraft, they would change out the filters, things 19 like that, and then the waste that were generated were 20 disposed of in landfills at the time. So that was part 21 of our characterization efforts. 22 Q. The only actual radiological cleanup that 23 you've been involved in prior to SSFL was at McClellan; 24 is that right? 25 A. That's correct, for cleanup. b6751d6c a9-8e1f d90732 Page 37 Exhibit 4

43 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 9 of 18 Page ID #:5145 Page 24 1 A. My role under this, or the way that it's been 2 envisioned is basically my job is to manage the staff 3 that are involved with the -- that do the specific 4 day-to-day, review the reports, etcetera. So there are 5 approximately 12 to 15 staff that work at various 6 capacities on the Santa Susana project. Nine of those 7 are technical, that is engineering or geology related, 8 toxicology related, and so my job is to manage those and 9 make sure that we are applying, we're doing proper 10 document reviews, meeting schedules and timelines and 11 things like that. 12 Q. Is that a large number, in your experience, of 13 DTSC staff to be assigned to a particular project? 14 A. I would say that it's probably appropriate for 15 the size of the site. But I was working on McClellan at 16 one point, I think I had 15, 16 different people that 17 were working with me associated on McClellan. McClellan 18 is about a 3,000 acre site with 354 different sites, so 19 similar scope and perspective, I think. 20 Q. Were you the performance manager at McClellan 21 as well? Did you have the same position? 22 A. I was a project manager on McClellan Air Force 23 Base. So I actually did technical reviews specifically 24 at McClellan as well as managed other people. 25 Q. In your capacity as the performance manager at b6751d6c a9-8e1f d90732 Page 38 Exhibit 4

44 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 10 of 18 Page ID #:5146 Page 55 1 handed this document, what answer would you give to that 2 question? 3 A. I guess if I was told that it was zoned for 4 agricultural use, I would say okay, I mean -- 5 Q. Let me try it one more time. I'm sorry. I 6 know you're not trying to be difficult here and I'm not 7 trying to be difficult. 8 MR. ROBINSON: Actually, the question I think 9 is a lot easier than you're making it. 10 Q. BY MR. MOSS: I just want to make sure that I 11 understand what this document reflects. Am I correct 12 that the document itself reflects that DTSC made a 13 determination to apply a commercial industrial purpose 14 land use assumption at the Pointe at West Hills site 15 even though the land was zoned for agricultural 16 purposes? 17 A. That's what it would appear, yes. I would 18 agree. Sorry. 19 MR. MOSS: Thank you. We can take a break now. 20 (Recess taken.) 21 Q. BY MR. MOSS: Back on the record. 22 Mr. Malinowski, are you aware of the two 23 administrative orders on consent that have been entered 24 between the DTSC and DOE and NASA with respect to the 25 Santa Susana Field Laboratory? b6751d6c a9-8e1f d90732 Page 39 Exhibit 4

45 Case 2:10-cv JFW-MAN Document #: A. Yes, I am. Filed 03/28/11 Page 11 of 18 Page ID Page 56 2 Q. And do those, can we call them for short AOCs? 3 A. That's fine. 4 Q. Do they address groundwater contamination at 5 SSFL? 6 A. No, they do not. They are specifically for 7 surficial soils. 8 Q. Why is it that they don't address groundwater? 9 MR. ROBINSON: Objection; lack of foundation. 10 Calls for speculation. 11 THE WITNESS: And I was not involved with 12 those, with the development of those AOCs, but I believe 13 that they were done because groundwater -- because 14 groundwater aspects could not necessarily be broken into 15 specific, this is only DOE or NASA. That was the 16 impression I had. 17 Q. BY MR. MOSS: Are you aware of any particular 18 challenges that exist at SSFL with respect to cleaning 19 the groundwater? 20 A. Yes. That goes -- the issues related to the 21 complex geology and characterization aspects, being able 22 to define that and how quickly it will be able to be 23 cleaned up, the time duration, things like that, yes. 24 Q. What is your understanding of the likely time 25 needed to clean up the groundwater at SSFL? b6751d6c a9-8e1f d90732 Page 40 Exhibit 4

46 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 12 of 18 Page ID #:5148 Page Q. Found in a lot of places throughout the State? 2 A. That's correct. 3 Q. Let me go back for a minute and talk about your 4 experience at the McClellan Air Force Base. When was it 5 that you first became involved in McClellan? 6 A. Oh, probably in 1986-'87 time frame when I 7 worked at McClellan Air Force Base for the Air Force 8 under a University of Tennessee Knoxville contract. 9 Then I worked for McClellan Air Force Base for 10 approximately a year and a half before coming onto the 11 State. Then about a year and a half with the State, 12 came back and became the project manager overseeing the 13 cleanup and investigation at McClellan Air Force Base. 14 Q. When was that that you became the project 15 manager? 16 A. I think it was -- it would have been '89, 17 possibly ' Q. Were you -- were you enlisted in the Air Force 19 or were you a civilian? 20 A. I was a civilian. 21 Q. That was a job that you held before you worked 22 for DTSC? 23 A. That is correct. 24 Q. As a civilian employee of the Air Force? 25 A. That is correct. b6751d6c a9-8e1f d90732 Page 41 Exhibit 4

47 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 13 of 18 Page ID #:5149 Page Q. How long did you work for the Air Force? 2 A. Actually, as a federal employee, probably less 3 than six months. As a student under the University of 4 Tennessee Knoxville, UTK contract, probably another year 5 maybe. Probably about a total of a year and a half 6 maybe for working at McClellan Air Force Base. 7 Q. Did you start when you were still earning your 8 Bachelor's degree as a student? 9 A. My second Bachelor's Degree, yes. 10 Q. Did you work at any other facility other than 11 McClellan when you were working for the Air Force? 12 A. No. 13 Q. And then how long did you serve as project 14 manager at McClellan? 15 A. Approximately 10 years with a two-year stint 16 not as project manager, but providing technical support. 17 Q. What were you doing during those two years? 18 A. I was a senior engineering geologist technical 19 support, providing technical support to the then current 20 project manager on McClellan for DTSC. 21 Q. Why was that that you went from the project 22 manager to A. It was a promotion. So I was promoted from a 24 project manager to a senior engineering geologist and 25 then provided the technical support and then -- b6751d6c a9-8e1f d90732 Page 42 Exhibit 4

48 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 14 of 18 Page ID #:5150 Page Q. When you were promoted, I take it at that point 2 in time your responsibilities extended beyond McClellan 3 and so you just then devoted a portion of your time to 4 McClellan? 5 A. That is correct. But I would say probably 80 6 percent of my time was spent on McClellan as technical 7 support at that point. 8 Q. But while you were project manager, was it percent of your time? 10 A. Yes. 11 Q. How close is McClellan to Sacramento? About 12 ten miles? 13 A. To the city boundary, it's -- from downtown 14 Sacramento, yeah, probably less than five miles. 15 Q. Okay. 16 A. As the crow flies. 17 MR. MOSS: Mark as Exhibit 58 the EnviroStor 18 report for McClellan Air Force Base. 19 (Deposition Exhibit No. 58 was marked for 20 identification.) 21 Q. BY MR. MOSS: Can you tell us what Exhibit is. 23 A. Yes. Exhibit 58 looks to be a summary page of 24 the EnviroStor, DTSC EnviroStor report for McClellan Air 25 Force Base. b6751d6c a9-8e1f d90732 Page 43 Exhibit 4

49 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 15 of 18 Page ID #:5151 Page the site have any valid basis, do you? 2 A. I don't have any question about how the study 3 was conducted. I would have questioned actually the 4 proximate locations of where the background study was 5 done originally just because of its proximity to Santa 6 Susana itself. I think we're better off with the new 7 approach that puts the background sampling locations 8 further away. 9 Q. Why is that significant? 10 A. The reason is, is the potential for migration 11 of contaminants off of Santa Susana to areas that you're 12 going to use for a background study area. You try to 13 minimize that for a background study evaluation. 14 Q. Assuming that as a result of the change from 15 pre-sb 990 to post-sb 990 it's necessary to truck 16 additional soil away from the site, do you have a view 17 as to whether the risk to public health is increased or 18 reduced by SB 990 given the risk of traffic, mortality, 19 diesel particulates, things like that? 20 MR. ROBINSON: Objection; incomplete 21 hypothetical. Calls for speculation. Lack of 22 foundation. 23 THE WITNESS: And I don't know that the 24 trucking is the only option for that effort. So I don't 25 know that that's the only thing. But I don't have any b6751d6c a9-8e1f d90732 Page 44 Exhibit 4

50 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 16 of 18 Page ID #:5152 Page firm estimate of what the additional risk would be if it 2 was all trucked or exactly how that would be managed. 3 But that is one of the things that would have to be 4 evaluated. 5 Q. BY MR. MOSS: In a pre-sb 990 world, that's one 6 of the types of things that you would evaluate in 7 determining the cleanup standard; is that right? 8 A. In the pre-sb 990, yes. That's correct. But 9 even in the post-sb 990, there still would have to be there still is going to have to be an assessment of 11 those, whether it's in a CEQA document or wherever it 12 is. 13 Q. Will that occur with respect to the AOCs? 14 A. Yes. 15 Q. And is there a need to -- strike that. If in 16 conducting the CEQA analysis, DTSC were to determine 17 that the risks of a cleanup to background to public 18 health were actually greater as a result of increased 19 trucking and other activity than not cleanup to 20 background, would the DTSC in fact relieve DOE and NASA 21 of the requirement of a cleanup to background? 22 MR. ROBINSON: Objection; calls for 23 speculation. 24 THE WITNESS: I don't know what our 25 determination would be at that point. b6751d6c a9-8e1f d90732 Page 45 Exhibit 4

51 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 17 of 18 Page ID #:5153 Page Q. BY MR. MOSS: But I assume that for purposes of 2 doing the CEQA analysis, you would have to at least be 3 open, would you not, to potentially changing your mind 4 and deciding that a cleanup to background actually is 5 not in the interest of the public; is that right? 6 MR. ROBINSON: Objection; argumentative. 7 THE WITNESS: Again, I think we'd have to put 8 that into the CEQA document, put the CEQA document out 9 for public comment and view what kind of comments we get 10 in general, yes. 11 Q. BY MR. MOSS: Yes, you would have to be open to 12 reconsider; is that right? 13 A. We would evaluate that, yes. 14 Q. And is the same true with respect to the 15 conducting of an EIS under NEPA? 16 A. To the best of my understanding, yes. 17 Q. So if the result of the EIS was that public 18 health was not served by a cleanup to background, then 19 there would be a need to revisit the AOCs at that time? 20 MR. ROBINSON: Objection; calls for 21 speculation. 22 THE WITNESS: I think the EIS is going to be 23 tied to the EIR, so I think it's all going to fit 24 together. It's all got to come together. 25 Q. BY MR. MOSS: I guess my point is just that in b6751d6c a9-8e1f d90732 Page 46 Exhibit 4

52 Case 2:10-cv JFW-MAN Document Filed 03/28/11 Page 18 of 18 Page ID #:5154 Page order to conduct those processes in good faith, the DTSC 2 would have to actually be open to actually changing its 3 mind, because otherwise there would be no reason to go 4 through the process, right? 5 A. I would think that that's correct. 6 MR. MOSS: Okay. I think that's all I have. 7 Thank you. Appreciate it. I think I finished up close 8 to when I said I would. Just before we go off the 9 record, Don, should we apply the same stipulations that 10 we've applied with respect to the other depositions in 11 this case? 12 MR. ROBINSON: Sure. We have been, haven't we? 13 Yes. 14 (TIME NOTED: 5:17 P.M.) 15 (The following stipulation is incorporated from 16 the deposition of Philip Rutherford: 17 "MR. ROBINSON: Back on the record. We've 18 stipulated, Mr. Moss and I have stipulated that 19 the original transcript shall be sent to his 20 office in Washington, D.C. 21 MR. MOSS: Correct. 22 MR. ROBINSON: And that the witness will review 23 and correct, if necessary, and sign the 24 original transcript and then you will inform us 25 of any changes that are made in the transcript, b6751d6c a9-8e1f d90732 Page 47 Exhibit 4