


                                                                       


             1           California Regional Water Control Board

             2                     North Coast Region

             3                          ---o0o---

             4  In the Matter of: 

             5  ADMINISTRATIVE CIVIL LIABILITY
                COMPLAINT NO. R1-2009-0095.  
             6  

             7  _________________________________/

             8  

             9  

            10  

            11                       Deposition Of:

            12  

            13                      KASON VERNE GRADY

            14       

            15                Thursday, October 21st, 2010

            16  

            17  

            18  
                
            19  Reported by:  Stephanie Anne Fox, CSR #4640
                
            20  
                
            21  
                
            22  
                
            23  
                               COASTAL REPORTING SERVICES
            24                131-A STONY CIRCLE, SUITE 500
                              SANTA ROSA, CALIFORNIA 95401
            25                       (707) 573-9766




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             1           The deposition of KASON VERNE GRADY was taken 

             2  pursuant to agreement at the NORTH COAST REGIONAL WATER 

             3  QUALITY CONTROL BOARD, 5550 Skylane Boulevard, Suite A, 

             4  in the City of Santa Rosa, County of Sonoma, State of 

             5  California, on Thursday, the 21st of October, 2010, 

             6  commencing at the hour of 9:17 a.m. thereof, before 

             7  Stephanie Anne Fox, CSR No. 4640, a California Certified 

             8  Shorthand Reporter.

             9  

            10                         APPEARANCES

            11  

            12  For the California Regional Water Quality Control Board, 
                North Coast Region:
            13  
                
            14                 State Water Resources Control Board
                               1001 I Street, 16th Floor 
            15                 Sacramento, California 95814
                               (916) 341-6847
            16  
                                By:  Julie E. Macedo
            17                       Attorney at Law
                
            18  For MCM Construction, Inc.:  
                
            19  
                               Diepenbrock Harrison
            20                 Attorneys at Law
                               A Professional Corporation
            21                 400 Capitol Mall, Suite 1800
                               Sacramento, California 95814
            22                 (916) 492-5050
                
            23                 By:  Sean K. Hungerford
                                    Attorney at Law
            24  
                
            25  
                



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             1  For MCM Construction, Inc.:  
                
             2                 MCM Construction, Inc.
                               General Engineering Contractors 
             3                 Post Office Box 620
                               North Highlands, California 95660
             4                 (916) 334-1221
                     
             5                 By:  Edmundo A. Puchi
                                    Assistant General Counsel
             6  
                For the State of California, Department of 
             7  Transportation:
                
             8                 State of California
                                 Department of Transporation
             9                 Legal Division
                               595 Market Street, Suite 1700
            10                 San Francisco, California 94105
                               (415) 904-5700
            11  
                               By:  Ardine Zazzeron
            12                      Deputy Attorney
                                         and
            13                      Douglas C. Jensen
                                    Attorney at Law
            14                     
                                    
            15  
                
            16  
                
            17  
                
            18  
                
            19  

            20  

            21  

            22  

            23  

            24  

            25  




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             1  

             2  

             3                            INDEX

             4  

             5  Witness:  KASON VERNE GRADY                    Page No.

             6  -- Examination By:

             7       Mr. Hungerford                                5

             8  

             9  

            10  

            11  

            12   

            13  

            14                           -  -  -

            15  

            16                    No Exhibits Submitted

            17  

            18                           -  -  -
                
            19  

            20  

            21  

            22  

            23  

            24  

            25  




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             1                     KASON VERNE GRADY,

             2  being first duly sworn by said certified shorthand 

             3  reporter in all respects as required by law, in answer 

             4  to oral interrogatories propounded by Sean K. 

             5  Hungerford, Attorney at Law, made answer and proceedings 

             6  were had as hereinafter set forth:

             7                         EXAMINATION

             8           BY MR. HUNGERFORD:  

             9       Q.  Would you please state your name for the 

            10  record?

            11       A.  Kason Verne Grady.

            12       Q.  Spell that, please.  

            13       A.  K-a-s-o-n, V-e-r-n-e, G-r-a-d-y.

            14       Q.  And, Kason, have you had your deposition taken 

            15  before?

            16       A.  No.

            17       Q.  Well, let me give you kind of a quick tutorial 

            18  on the ground rules.  

            19           Everything that we say is being taken down by a 

            20  court reporter.  So the important thing for you to 

            21  remember is just to be clear in your answers.  Nods of 

            22  the head, back and forth, up and down, don't translate 

            23  so well to the record, and so please make sure that your 

            24  answers are audible, and we'll try as best we can not to 

            25  talk over each other.  Does that sound good? 




                                                                      5




                                                                       


             1       A.  Yes.

             2       Q.  From time to time, your attorney may interpose 

             3  objections.  Generally, that means you still need to 

             4  answer the question unless she instructs you otherwise.  

             5  Do you understand that?  

             6       A.  Yes.

             7       Q.  Let me begin with just a couple of personal 

             8  questions.  Where did you go to high school?

             9       A.  Vintage High School.

            10       Q.  Where's that located?

            11       A.  Napa.

            12       Q.  And what year did you graduate?

            13       A.  2000.

            14       Q.  And after high school, what education have you 

            15  had?

            16       A.  I have a bachelor's science in chemical 

            17  engineering from the University of California, Los 

            18  Angeles.

            19       Q.  And what year did you graduate with that 

            20  degree?

            21       A.  2005.

            22       Q.  And after your B.A. in science from UCLA, 

            23  anything else in terms of formal schooling?

            24       A.  No.

            25       Q.  Any accreditations or certifications you've 




                                                                      6




                                                                       


             1  received?

             2       A.  No.

             3       Q.  When did you begin working for the North Coast 

             4  Regional Board?

             5       A.  In January of 2007.

             6       Q.  Between graduating in 2005 and January of 2007, 

             7  were you employed?  

             8       A.  Yes.

             9       Q.  Doing what?

            10       A.  I was a water consultant engineer for Nalco.

            11       Q.  Can you spell that, please?

            12       A.  N-a-l-c-o.

            13       Q.  Are you an engineer?

            14       A.  Yes.

            15       Q.  Is there a particular type of engineering 

            16  certification or license that you have?

            17       A.  No.

            18       Q.  Are you a licensed engineer?  

            19       A.  No.  

            20       Q.  What did you do for Nalco?

            21       A.  I was a process water consultant.  I worked at 

            22  Shell Oil Refinery in Martinez, California.

            23       Q.  What generally were your responsibilities?

            24       A.  We oversaw the process water treatment for the 

            25  boiler operations at the oil refinery.




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             1       Q.  And then you began working for the Regional 

             2  Board in January of 2007?  

             3       A.  Yes.  

             4       Q.  And what was your first position with the 

             5  Regional Board?

             6       A.  Water resources control engineer in the 

             7  Enforcement Unit.

             8       Q.  Has your position changed since then?

             9       A.  Yes.

            10       Q.  What was the next title you held at the 

            11  Regional Board after that?  

            12       A.  The title has remained the same, although I've 

            13  changed units.

            14       Q.  So previously you were with the Enforcement 

            15  Unit, and which unit are you with now?

            16       A.  Core Regulatory.

            17       Q.  Co-regulatory?

            18       A.  Core.  

            19       Q.  Core Regulatory?

            20       A.  Yes.

            21       Q.  When did you make that change?  It can be 

            22  approximate.  

            23       A.  It was approximately the summer of 2008.

            24       Q.  What were your duties with the Enforcement 

            25  Unit?




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             1       A.  Duties, I would review self-monitoring reports 

             2  submitted by various municipalities, mostly cities, 

             3  municipal dischargers, wastewater treatment plants, as 

             4  well as, in this case, storm water permits and 401 

             5  permits.

             6       Q.  And you would review those in an enforcement 

             7  context?

             8       A.  Yes.

             9       Q.  And then with the Core Regulatory Unit, did 

            10  your responsibilities change?

            11       A.  Yes, they became more broad beyond enforcement.  

            12  Although I still do some enforcement, it's in a 

            13  different context.  Now I write and manage permits for 

            14  various facilities and industries.

            15       Q.  What type of permits?

            16       A.  NPDES as well as WDR.  That stands for National 

            17  Pollutant Discharge Elimination System Permits.  It's a 

            18  Federal permit, as well as WDR.  That's Waste Discharge 

            19  Requirement Permits that are State permits for 

            20  discharges of wastewater to surface waters and to land.

            21       Q.  Any 401 certifications?  

            22       A.  No.

            23       Q.  And you are currently with the Core Regulatory 

            24  Unit?

            25       A.  Yes.




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             1       Q.  Who else is in the Core Regulatory Unit with 

             2  you?

             3       A.  Charles Reed, Cathy Goodwin, Lisa Bernard.

             4       Q.  Let me stop you.  How many people roughly?

             5       A.  Seven.

             6       Q.  Okay.  

             7       A.  That's a rough estimate.  That's not -- Five to 

             8  ten.

             9       Q.  That's fine.  Feel free to give me your 

            10  estimates.  I don't want you to guess at anything as we 

            11  go on today.  

            12       A.  Sure.  

            13       Q.  But if you can make an estimate, that's fine. 

            14       A.  Sure.

            15       Q.  Last week we had a deposition of Mr. Leland.  

            16  He indicated that you were the main drafter of the 

            17  Confusion Hill complaint.  Is that correct?

            18       A.  Yes.

            19       Q.  At the time that you drafted the complaint, 

            20  were you with the Core Unit?  

            21       A.  No.

            22       Q.  You were with the Enforcement Unit?

            23       A.  (Witness nods head.)

            24       Q.  Yes?

            25       A.  Yes.  Sorry.  




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             1       Q.  Who was our supervisor in the Enforcement Unit 

             2  at the time you drafted the complaint?

             3       A.  Tom Dunbar.

             4       Q.  Did that change at all at any point in time?

             5       A.  While I was in the Enforcement Unit?  

             6       Q.  Yes.  

             7       A.  No.

             8       Q.  Do you remember roughly the date that you went 

             9  from the Enforcement Unit to the Core Unit?

            10       A.  I believe it was in August of 2008.

            11       Q.  And who was your supervisor when you 

            12  transferred to the Core?

            13       A.  John Short.

            14       Q.  John Short?

            15       A.  Yes.

            16       Q.  Just how it sounds?

            17       A.  Yes.

            18       Q.  Has he remained your supervisor?

            19       A.  Yes.

            20       Q.  In the Enforcement Unit, are there any other 

            21  supervisors, or were there any other supervisors 'cause, 

            22  as I understand it, Mr. Dunbar has now left?

            23       A.  Well, when you're saying supervisors, perhaps I 

            24  can clarify that we call them seniors, and David Leland 

            25  is the supervisor.  He has always been the supervisor, 




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             1  and he supervises both the Enforcement Unit and the Core 

             2  Regulatory Unit as well as I believe the Nonpoint Source 

             3  Unit, but maybe not.  We've done some restructuring 

             4  internally, so I'm not quite sure all the units that 

             5  David Leland supervises and has supervised over time.  

             6  That's changed.  So I can't speak to that, but he has at 

             7  least supervised the Enforcement Unit and the Core 

             8  Regulatory Unit for the entire time I've been here.

             9       Q.  Thank you.  

            10       A.  And the seniors, there was only one senior 

            11  while I was in the Enforcement Unit, which was Tom 

            12  Dunbar.  It has changed, and that changed about the same 

            13  time I moved out of that unit.  The new Enforcement 

            14  senior is Diana Henrioulle.  

            15       Q.  And that was because Tom Dunbar retired, 

            16  correct?

            17       A.  Yes.

            18       Q.  Are there any other seniors other than John 

            19  Short and Mr. Leland for the Core Unit?

            20       A.  Well, again, Mr. Leland is not a senior.  He's 

            21  a supervisor.

            22       Q.  Seniors or supervisors.  

            23       A.  For the Core Regulatory Unit?  

            24       Q.  Yes.  

            25       A.  No.




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             1       Q.  When did you first hear of the Confusion Hill 

             2  Project?

             3       A.  I don't recall exactly.  It was probably in the 

             4  summer of 2007.

             5       Q.  What was the reason that you first heard of the 

             6  project?

             7       A.  Mona Dougherty had written a notice of 

             8  violation.  Dean Prat had also written a notice of 

             9  violation, and there were just a lot of documents that 

            10  needed to be reviewed to determine whether or not we 

            11  were going to write an administrative civil liability 

            12  complaint.  

            13       Q.  And you participated in reviewing those 

            14  documents?

            15       A.  Yes.

            16       Q.  Who directed you to do this work?

            17       A.  Tom Dunbar.

            18       Q.  And did you have a general understanding of why 

            19  Mr. Dunbar believed an ACL complaint might be 

            20  appropriate?

            21       A.  Yes.

            22       Q.  What was that?

            23       A.  We were aware at the time that there were many 

            24  discharges of, and a lot of evidence, photographs and 

            25  just what we see here before us today for the most part; 




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             1  I believe we had that at that time, that there were 

             2  violations of the 401 certification and the stormwater 

             3  permit.

             4       Q.  Did you perform any investigation to collect 

             5  documents or interview people in connection with 

             6  preparing the complaint?

             7       A.  Beyond what we see here?  

             8       Q.  Yes, and just to clarify for the record, what 

             9  we see here is a stack of papers on the table.  

            10       A.  Which is what we refer to as the file, the 

            11  Regional Water Board record.

            12       Q.  Well, let me ask it this way:  This stack of 

            13  papers that we have on the table, do you have a basic 

            14  understanding for where they all came from?

            15       A.  Yes.

            16       Q.  And without going through each one of these 

            17  documents, were these materials that were obtained from 

            18  Caltrans?

            19       A.  Some of them.

            20       Q.  Who obtained them from Caltrans?

            21       A.  I believe Mona did.

            22       Q.  So it's your understandings Mona made a request 

            23  to Caltrans?

            24       A.  Yes.  In her notice of violation, there was a 

            25  13267 order that requested submittal of a technical 




                                                                     14




                                                                       


             1  report that would include specific documents.

             2       Q.  And so this stack on the table, at least in 

             3  part, came from the documents produced in response to 

             4  that order?

             5       A.  In part, yes.  

             6       Q.  Other than Caltrans, did these materials come 

             7  from any other agency?

             8       A.  Yes.

             9       Q.  What agencies?

            10       A.  The Department of Fish and Game.

            11       Q.  And how did the Regional Board obtain those 

            12  documents from Fish and Game?

            13       A.  I believe, as I recall, I believe it is Mona 

            14  that mentioned they were hand delivered here, as I 

            15  recall.

            16       Q.  So Mona took the laboring oar to initially 

            17  obtain documents from Fish and Game?

            18       A.  I believe so.  I got them from Mona.

            19       Q.  Do you know of any particular individuals with 

            20  the Department of Fish and Game that the Regional Board 

            21  communicated with as part of obtaining these documents?

            22       A.  I do not know who was contacted.

            23       Q.  Do you know of any individual Department of 

            24  Fish or Game employees or representatives that you 

            25  worked with as part of preparing or investigating this 




                                                                     15




                                                                       


             1  complaint?

             2       A.  Yes.  I believe I spoke to Karen Maurer on at 

             3  least one occasion, and we exchanged a couple of 

             4  e-mails.

             5       Q.  And what, to your knowledge, was Ms. Maurer's 

             6  capacity at that time with Fish and Game?

             7       A.  She was a warden.

             8       Q.  What was the substance of your communications 

             9  with her?

            10       A.  She had prepared an arrest investigation 

            11  report, and I asked her for that and associated 

            12  documents.

            13       Q.  And she provided it?

            14       A.  Yes.

            15       Q.  And so at least to a certain extent, the 

            16  documents that the Regional Board has were from your 

            17  interactions with the Department of Fish and Game; is 

            18  that correct?

            19       A.  Yes.

            20       Q.  Is it possible for you to identify -- I don't 

            21  want you to get up right now -- which documents in this 

            22  rather large pile are from the Department of Fish and 

            23  Game?

            24       A.  Yes.  

            25       Q.  Are the documents collected by yourself and by 




                                                                     16




                                                                       


             1  Mona from Fish and Game together in one sub file?

             2       A.  No.

             3       Q.  Is it possible to determine what you collected 

             4  and what Mona collected from Fish and Game?

             5       A.  Yes.

             6       Q.  Any other agencies other than Department of 

             7  Fish and Game that you had contact with as part of 

             8  preparing the complaint?

             9       A.  Not as I recall.

            10       Q.  Other than public agencies, were there any 

            11  other individuals or organizations that you had contact 

            12  with as part of preparing the complaint?

            13       A.  Individuals or agencies?  

            14       Q.  Individuals not associated with any public 

            15  agency.  

            16       A.  Yes.

            17       Q.  Who?

            18       A.  Carl Page.

            19       Q.  And who is Mr. Page?

            20       A.  He is, was the biological monitor on this 

            21  project.

            22       Q.  Is he self-employed to your knowledge?

            23       A.  To my knowledge, yes.

            24       Q.  Meaning he's not with an environmental outfit 

            25  of any kind?  




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             1       A.  Well, I believe he owns his own environmental 

             2  outfit called Aquatic Resources Specialists.  

             3       Q.  Other than Mr. Page, any other individuals not 

             4  associated with any public agency?

             5       A.  I don't believe so.

             6       Q.  Did you contact Mr. Page?

             7       A.  Yes.

             8       Q.  And what was the purpose of contacting him?

             9       A.  To determine if we had all of the information 

            10  that he had provided to Caltrans.

            11       Q.  Do you remember when this communication 

            12  occurred?

            13       A.  Not really.  

            14       Q.  Was his answer that he had or that he hadn't?

            15       A.  Can you expand the question?  

            16       Q.  Did he say that he had provided all of his 

            17  information to Caltrans?  

            18       A.  Yes.  

            19       Q.  So did you obtain anything additional from 

            20  Mr. Page?

            21       A.  Yes.  He, he was being open and cooperative and 

            22  offered his field notes.  He sent them here.  I took a 

            23  brief look at them but sent them back.

            24       Q.  Sent them back to Mr. Page?  

            25       A.  Yes.




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             1       Q.  Are his fields notes in the stack of documents 

             2  on the table?  

             3       A.  No.

             4       Q.  Is there any particular reason why you sent 

             5  them back and didn't keep a copy?

             6       A.  I didn't feel that they were necessary.

             7       Q.  And to your knowledge, are his field notes in 

             8  the Regional Board's materials having been provided by 

             9  Caltrans?

            10       A.  To my knowledge, his field notes for the most 

            11  part are not, but the substance were included in his 

            12  reports that he developed for Caltrans and were 

            13  submitted to the Regional Water Board in the response to 

            14  the 13267 order.

            15       Q.  So other than Caltrans, Department of Fish and 

            16  Game and Mr. Page, did you speak with or have contact 

            17  with any other organizations or persons not employed by 

            18  any public agency?

            19       A.  In the development of the complaint?  

            20       Q.  In either your investigation of the 

            21  circumstances underlying the complaint or the 

            22  development of the complaint.  

            23       A.  I don't believe so.

            24       Q.  Did you have primary responsibility for 

            25  drafting the complaint?




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             1       A.  Yes.

             2       Q.  So it's fair to say that most of the complaint 

             3  is your work product?

             4       A.  Yes.

             5       Q.  Did anyone else participate?

             6       A.  Yes.

             7       Q.  Can you identify who?

             8       A.  Yes.

             9       Q.  Who?

            10       A.  We worked on it as a team as we do on all of 

            11  our projects.  It starts with the line staff, and we 

            12  work as a team with management.  So it's Tom Dunbar, 

            13  Mona Dougherty, Dean Prat, David Leland, and our 

            14  attorneys.

            15       Q.  Anyone else other than those four people and 

            16  your attorneys?

            17       A.  Luis Rivera is the assistant executive officer, 

            18  and he's involved in reviewing the complaint.

            19       Q.  Did Tom take any active role in writing the 

            20  complaint?

            21       A.  No.

            22       Q.  How about Mona?

            23       A.  No.

            24       Q.  Dean?  

            25       A.  No.




                                                                     20




                                                                       


             1       Q.  Same answer for Mr. Leland and Mr. Rivera?

             2       A.  Correct.  In terms of writing, they would 

             3  comment, but writing it, no.

             4       Q.  How many drafts of the complaint would you 

             5  estimate you went through before reaching a final 

             6  version?

             7       A.  I guess I find that hard to answer because I 

             8  don't know what you mean by draft.

             9       Q.  Was there a process?  Well, I'm making an 

            10  assumption that the first time you wrote the complaint, 

            11  that wasn't the final version and that certain revisions 

            12  were made.  Is that a fair statement?

            13       A.  Yes.

            14       Q.  That there was a process of writing a revision 

            15  that occurred until the final version that we have now?

            16       A.  Yes.

            17       Q.  Was there one person who was primarily 

            18  responsible for reviewing and commenting on drafts of 

            19  the complaint?

            20       A.  One person?  

            21       Q.  Sure.  

            22           MS. MACEDO:  Was there?  

            23           MR. HUNGERFORD:  Yes.

            24           THE WITNESS:  No.  

            25           BY MR. HUNGERFORD:  




                                                                     21




                                                                       


             1       Q.  Mr. Dunbar, did he review and comment on the 

             2  complaint?

             3       A.  I don't remember the timing, whether he was 

             4  around at that time or not.  I don't believe he was, he 

             5  was here.  I think he had retired by the time that the 

             6  complaint was drafted.

             7       Q.  How long did it take to draft the complaint 

             8  from the time you started with it until the time that it 

             9  was issued?

            10       A.  I don't recall when I started.

            11       Q.  Can you give me an estimate, roughly a year?

            12       A.  I can't give you an estimate.  I don't remember 

            13  when I officially started.  I could have started pieces 

            14  of it from the very beginning and then --

            15       Q.  Well, you mentioned -- Sorry.  

            16       A.  Go ahead.  

            17       Q.  You mentioned in the summer of 2009 is when it 

            18  first came to the Regional Board's attention that -- 

            19           MS. MACEDO:  Strike that.  '8.

            20           THE WITNESS:  Yes.  

            21           MR. HUNGERFORD:  I'm sorry; you're correct.  

            22           BY MR. HUNGERFORD:  

            23       Q.  Reaching back, it was the summer of 2008 that 

            24  it first came to the Regional Board's attention that 

            25  there was potential administrative civil liability here; 




                                                                     22




                                                                       


             1  correct?

             2       A.  No, I believe it was summer of 2007.

             3       Q.  Summer of 2007, Okay.  And this complaint was 

             4  issued in 2009, correct?

             5       A.  Correct.

             6       Q.  And so in the intervening year plus, were there 

             7  drafts of the complaint that were prepared and then 

             8  revised?

             9       A.  They were -- I wouldn't officially call them 

            10  drafts.  I guess I'm not understanding what you mean by 

            11  drafts.  In the final version, you develop it, and then 

            12  there's some comments, and then you have your final 

            13  version.  So anything that would be a draft would be 

            14  that, so there would be one draft.

            15       Q.  Well, maybe I'm asking it awkwardly.  What I 

            16  want to know is how it is that other people participated 

            17  in the preparation of the complaint other than yourself.  

            18  Now, I understand that you took the lion's share of the 

            19  drafting that others participated in, but what I would 

            20  like to get is an understanding of how other people 

            21  participated in the preparation of the complaint.  

            22       A.  Sure.

            23       Q.  And so as I understand what you've told me, Tom 

            24  Dunbar didn't take a significant role in participating 

            25  in preparing this complaint; is that correct?




                                                                     23




                                                                       


             1       A.  Yes.

             2       Q.  What about Mona, did she take any noteworthy 

             3  role in preparing the complaint?

             4       A.  In preparing the complaint, no.

             5       Q.  Offering feedback on drafts of the complaint?

             6       A.  Yes.

             7       Q.  Or allegations?

             8       A.  Yes.

             9       Q.  And did she have any particular field of 

            10  expertise that she lended in preparing the complaint?

            11       A.  Yes.  I would refer to Mona on violations and 

            12  issues related to the stormwater permit.

            13       Q.  What about Dean?

            14       A.  And I would refer to him equally when it came 

            15  to the 401 certification.

            16       Q.  And can you describe Mr. Leland's role in 

            17  preparing or revising the complaint?

            18       A.  He's involved in general structure.  He also is 

            19  involved in the analysis of the factors.

            20       Q.  When you say the factors, you're talking about 

            21  the adjustment factors on the 13385; correct?

            22       A.  Yes.

            23       Q.  Mr. Rivera?

            24       A.  Same.

            25       Q.  Who was responsible for approving the final 




                                                                     24




                                                                       


             1  version of the complaint?

             2       A.  Approving, I believe both David Leland and Luis 

             3  Rivera.

             4       Q.  Is there any formal process that the North 

             5  Coast Board follows for preparing administrative civil 

             6  liability complaints that's contained in guidelines or 

             7  policies?

             8       A.  Well, there's an enforcement policy.

             9       Q.  That's a state enforcement policy, correct?

            10       A.  Yes.

            11       Q.  Any other enforcement policies on the Regional 

            12  Board level?

            13       A.  No.

            14       Q.  How many administrative civil liability 

            15  complaints have you prepared other than this one?

            16       A.  I can give you an estimate but -- 

            17       Q.  Fire away.  

            18       A.  Five to ten.

            19       Q.  Five to ten?

            20       A.  (Witness nods head.)

            21       Q.  Yes?  

            22       A.  Yes.  

            23       Q.  Were any of those construction projects?

            24       A.  I don't believe so.

            25       Q.  Were they self-monitoring violations?




                                                                     25




                                                                       


             1       A.  Yes.

             2       Q.  All of them other than this?

             3       A.  Yes.  Let me perhaps retract that.  I'm not 

             4  necessarily thinking of a specific case right now, but I 

             5  have been involved in enforcement actions that don't 

             6  involve self-monitoring reports, but I don't believe 

             7  I've done any complaints.

             8       Q.  When you say enforcement actions, you're 

             9  referring to enforcement actions other than ACL 

            10  complaints?

            11       A.  Yes.

            12       Q.  Correct?  

            13       A.  Correct.  

            14       Q.  Like clean-up and abatement orders?

            15       A.  Correct.

            16       Q.  So this is the only complaint that you've 

            17  helped prepare for a construction project, correct?

            18       A.  Yes.

            19       Q.  In terms of dollar value of the other 

            20  complaints that you've prepared, generally speaking, 

            21  were they comparable to the dollar value of the 

            22  complaint for Confusion Hill?

            23       A.  They were, they were less than this dollar 

            24  amount.

            25       Q.  What was the range of the other complaints, if 




                                                                     26




                                                                       


             1  you can provide one, in terms of dollar value?

             2       A.  It's difficult to provide an accurate one 

             3  without reviewing all of them, but anywhere from -- It 

             4  really, really could have been anywhere from a few 

             5  thousand to a couple hundred thousand, a few hundred 

             6  thousand.

             7       Q.  Are you aware of any other administrative civil 

             8  liability complaints issued by the North Coast Board 

             9  prepared by anyone other than yourself that relates to a 

            10  construction project?

            11       A.  Yes.

            12       Q.  Which one?

            13       A.  Well, Mona has also issued a complaint on this 

            14  project.

            15       Q.  Any others?

            16       A.  There was a complaint issued, I believe it was 

            17  by Dean on the Van Duzen Construction Project, and there 

            18  has been a complaint on the Hard Scrabble Creek Project.

            19       Q.  And briefly, what was that project about?

            20       A.  It was, I believe it was a bridge construction 

            21  similar to this, generally similar.  Understand they all 

            22  are unique.

            23       Q.  Sure.  So other than the Van Duzen and Hard 

            24  Scrabble and Confusion Hill, are you aware of any other 

            25  construction-related administrative civil liability 




                                                                     27




                                                                       


             1  complaints?

             2       A.  Not really.

             3       Q.  Do you have a copy of the complaint handy?

             4       A.  Yes, I do.

             5           MR. HUNGERFORD:  Can we go off the record a 

             6  second?           

             7           (Off-the-record discussion held.)

             8           BY MR. HUNGERFORD:  

             9       Q.  I'm going to take this time now to go through 

            10  individual violations, and I'm going to try to do it as 

            11  efficiently as I can, but there are a lot, and there's a 

            12  lot of material probably to cover in the next few hours.  

            13  So I'll try to move quickly, but let's just get into it.  

            14       A.  Okay.

            15       Q.  I'm going to start with it this way:  As part 

            16  of the complaint, the Regional Board prepared a number 

            17  of tables or appendices, and I take it, Kason, that you 

            18  had a role in drafting the appendices; correct?

            19       A.  Correct.

            20       Q.  And so you're familiar I assume with the way 

            21  the appendices are structured?

            22       A.  Right.

            23       Q.  So there's one set of master appendix of 

            24  violations, and there's a number of tables that follow, 

            25  you know, appendix A dash A, A dash B and so on; 




                                                                     28




                                                                       


             1  correct?

             2       A.  Yes.

             3       Q.  I'm going to go through not the master appendix 

             4  but the ones that follow beginning with A dash A and 

             5  take the violations categorically according to the way 

             6  that they were prepared in the complaint.  

             7       A.  Okay.

             8       Q.  So the first on table or on Appendix A-A is an 

             9  August 21st, 2006 violation for construction dewater.  

            10  Do you see that there?

            11       A.  Yes.  

            12       Q.  Why don't you begin by just briefly describing 

            13  for me the nature of this violation?  

            14       A.  There's a photo identifying what appears to be 

            15  construction dewatering to an isolated pool on the 

            16  gravel bar adjacent to the Eel River.

            17       Q.  Do you have a copy of that photo handy to refer 

            18  to?

            19       A.  Yes.

            20       Q.  Oh, great.  That will make it much easier.  So 

            21  the allegation is that this condition violates 

            22  additional conditions nine, twelve and seventeen of the 

            23  certification; is that correct?

            24       A.  Yes.

            25       Q.  With respect to condition nine, can you explain 




                                                                     29




                                                                       


             1  to me how this condition constitutes a violation of -- 

             2  Let me rephrase that.  I'm using "conditions" too many 

             3  times.  

             4           With respect to condition nine of the 

             5  certification, can you explain to me how this event or 

             6  this condition on the ground violates that condition of 

             7  the certification? 

             8       A.  Well, construction dewatering includes, is a 

             9  process by which you get rid of water on a construction 

            10  project that has certain pollutants in it, and those 

            11  pollutants are covered under additional condition number 

            12  nine which states, "No debris, soil, silt, sand, bark, 

            13  slash, sawdust, rubbish, cement, concrete washing, oil 

            14  or petroleum products or other organic or earthen 

            15  material from any construction or associated activity of 

            16  whatever nature other than that authorized by this 

            17  permit shall be allowed to enter into or be placed where 

            18  it may be washed by rainfall into waters of the State."  

            19           Well, this construction dewatering is visually 

            20  turbid, and it was, it's being discharged to Isolated 

            21  Pool B apparently which, according to all information 

            22  that I have found, is less than a hundred feet away from 

            23  the active stream channel, which was what was proposed 

            24  in the application and further required in special 

            25  provisions by Caltrans.




                                                                     30




                                                                       


             1       Q.  Let me ask you this:  Other than the location 

             2  of this sedimentation basin, is there anything else 

             3  about the use of this basin on this date that violates 

             4  condition nine?

             5       A.  I don't believe so.

             6       Q.  Now, you have, as part of the complaint, 

             7  identified a couple of items of evidence in support of 

             8  this violation.  One is the photograph -- 

             9       A.  Uh-huh.  

            10       Q.  -- which is identified in the complaint?  

            11       A.  Right.

            12       Q.  And the other is a quote which, according to my 

            13  documents, comes from an August 28th, 2006 e-mail to 

            14  Walt Dragaloski from Terry Davis.  No, I'm sorry; I take 

            15  that back.  The e-mail is to Ron Denheyer, and I'm 

            16  frankly not sure who it is from; it's not very clear.  

            17           Why don't you answer this 'cause there's not 

            18  really a question there:  The quote that's associated 

            19  with this August 21st violation, where did it come 

            20  from? 

            21       A.  It came from the response to the notice of 

            22  violation received on December 14th, 2006 in the binder, 

            23  and/or the final biological monitoring report and 

            24  associated photographic record.  Those were lumped 

            25  together in the footnote that referenced that quote.  So 




                                                                     31




                                                                       


             1  I would have to -- The process of finding where that 

             2  came from is I would check the footnote, see where it 

             3  came from, and then go find it.

             4       Q.  So you have a document somewhere in your 

             5  records which has that quote, right?

             6       A.  Yes.  

             7       Q.  And then you have a photograph?

             8       A.  Yes.

             9       Q.  Other than those two things, is there anything 

            10  else that this violation is based on?

            11       A.  Yes.  So other evidence not referenced in 

            12  appendix A that's also used includes the rest of the 

            13  photographic record.  So other photos that are not shown 

            14  here provide context to each violation, help -- In most 

            15  cases, these photos were taken by the biological 

            16  monitor, and they took many photos, and you can go 

            17  through and see the chronology, the timing.  That 

            18  provides context to each event.

            19       Q.  And I'm aware that there's a large number of 

            20  photographs associated with the complaint.  Are you 

            21  aware of any specific photographs that support this 

            22  particular violation?

            23       A.  There, there are probably other photographs, 

            24  just based on my memory of going through all of them or 

            25  most of them, that photographs in and around this event 




                                                                     32




                                                                       


             1  would indeed provide context to what is occurring in 

             2  this situation.

             3       Q.  As you sit there right now, can you point any 

             4  out to me, or you're just saying that as a general 

             5  matter, other photographs provide context?

             6       A.  Yes.  There are no specific ones.  If I wanted 

             7  to point out the specific photos that may help, I would 

             8  have to get the CD on a laptop and go through them.  

             9  This was the most relevant one that I chose.

            10       Q.  Thank you.  Let me turn your attention to 

            11  condition twelve.  How does the use of Isolated Pool B 

            12  violate condition twelve?

            13       A.  Well, discharges to the gravel bar are 

            14  discharges to waters of the State and the U.S., and so 

            15  this condition says that, "If construction dewatering is 

            16  found to be necessary, the applicant will use a method 

            17  of water disposal other than disposal of surface 

            18  waters," and this is considered disposal of surface 

            19  waters.

            20       Q.  Anything else that violates condition twelve 

            21  with respect to this violation?

            22       A.  To answer that, I would probably consult with 

            23  Dean because he wrote the 401, and I'd also consult with 

            24  my legal counsel to determine how we would assess 

            25  compliance because it goes on to say, "...or the 




                                                                     33




                                                                       


             1  applicant shall apply for coverage under the general 

             2  construction dewatering permit and receive notification 

             3  of coverage to discharge to surface waters." 

             4           So I guess that just reiterates the threshold 

             5  and the fact that the violation is such because you're 

             6  discharging to surface waters.  When I say "you're," I'm 

             7  not -- I don't mean that. 

             8       Q.  I understand.  

             9       A.  So I guess the short answer is that, yes, 

            10  discharge to surface waters is the only problem here.  

            11  The whole issue with the general construction dewatering 

            12  permit speaks to the process that needs to be in place 

            13  or that is in place.  

            14           If you were to discharge in such a location, a 

            15  certain process needs to be followed that was not 

            16  adhered to in this situation.  

            17       Q.  Where in the certification is surface waters 

            18  defined?  

            19       A.  I've not reviewed it so thoroughly to look for 

            20  a definition.

            21       Q.  To your knowledge, is surface waters defined 

            22  anywhere in the certification?

            23       A.  Not to my knowledge.

            24       Q.  I'll provide you a layman's understanding of 

            25  surface waters, which is actually waters that have a 




                                                                     34




                                                                       


             1  surface, that there's actual water there.  If you're 

             2  discharging to a gravel bar outside of the active river, 

             3  to me at least, that doesn't seem like you're 

             4  discharging to surface waters.  It seems like you're 

             5  discharging, you know, outside of surface waters.  So 

             6  what definition of surface waters are you relying on 

             7  that includes areas outside of the active river?  

             8       A.  To speak to that definition, I received counsel 

             9  from my legal counsel.

            10       Q.  And you don't have to tell me that, but 

            11  anything outside of what your attorneys have told you, 

            12  do you have independent understanding or definitions 

            13  that you can point me to of surface waters that include 

            14  areas outside of an active river?

            15       A.  It is my understanding that in general, at the 

            16  Water Board, we construe -- There are a few different 

            17  terms, top of bank, ordinary high water mark, that 

            18  define what surface waters are.

            19       Q.  Is there anything to your knowledge that would 

            20  have provided notice to Caltrans or any contractor 

            21  working on this project that surface waters included the 

            22  gravel bar?

            23       A.  I do not know specifically.  

            24       Q.  Are you familiar with the application for the 

            25  certification?




                                                                     35




                                                                       


             1       A.  Vaguely.  I've read it at one point or a few 

             2  points in the past.

             3       Q.  I'll represent to you that the application 

             4  indicates that there were plans to construct a 

             5  sedimentation basin on the gravel bar.  Do you recall 

             6  that?

             7       A.  As I recall, there were, there was quite a bit 

             8  of discussion between Dean and Caltrans staff about that 

             9  issue.

            10       Q.  Is that recorded or memorialized anywhere that 

            11  you're aware of, that discussion?

            12       A.  I believe so.  I believe there are some e-mails 

            13  in the record that may be more focused on cementitious 

            14  discharges, but I believe it also addresses the issue of 

            15  discharging or dewatering on the gravel bar.

            16       Q.  I am familiar with those communications, and my 

            17  understanding is that they relate to cement discharges 

            18  rather than the definition of surface waters.  

            19       A.  Uh-huh.  

            20       Q.  Other than those communications that took place 

            21  between Caltrans staff and Dean, are you aware of any 

            22  other guidance offered by the Regional Board that would 

            23  have advised Caltrans contractors as to the meaning of 

            24  surface waters?

            25       A.  I'm not aware of any.




                                                                     36




                                                                       


             1       Q.  Turn your attention to seventeen, condition 

             2  seventeen.  

             3       A.  Yes.

             4       Q.  So if you can explain to me how the use of 

             5  Isolated Pool B violates condition seventeen of the 

             6  certification.  

             7       A.  It was considered that use of an unlined basin 

             8  within a hundred feet of the active stream channel was 

             9  not a BMP and was not described in the application.

            10       Q.  How far away was this particular basin from the 

            11  active river?  

            12       A.  I can give you an estimate that I've read 

            13  through the documents.

            14       Q.  Sure.  

            15       A.  I never went out and measured it myself, but I 

            16  believe it's something like seventy feet.  

            17       Q.  Is that in all directions?

            18       A.  It would not be in all directions.

            19       Q.  I'll represent to you that the distance from 

            20  the bottom of the basin downgradient to the active river 

            21  was greater than a hundred feet.  Do you have any 

            22  information that contradicts that?

            23       A.  I do not.

            24       Q.  Do you know what the source of -- Well, let me 

            25  back up.  The hundred foot requirement, is that a 




                                                                     37




                                                                       


             1  requirement that came from the Regional Board, or is 

             2  that something that was proposed by Caltrans in the 

             3  application materials?

             4       A.  It was something proposed by Caltrans in the 

             5  application materials.

             6       Q.  Have you seen in your work with the Regional 

             7  Board similar sedimentation basins in proximity to 

             8  surface waters where a hundred foot buffer was used?  

             9       A.  No, I've not.

            10       Q.  Have you ever heard of less than a hundred foot 

            11  buffer?

            12       A.  No.

            13       Q.  Do you know of any studies or science that 

            14  Caltrans might have based their hundred foot requirement 

            15  on?  

            16       A.  No.

            17       Q.  Is there anything special about a hundred feet 

            18  that, in your understanding, makes that an appropriate 

            19  minimum distance?

            20       A.  Can you repeat the question?  

            21       Q.  Is there anything special about the distance of 

            22  a hundred feet that makes that an appropriate buffer 

            23  from an active river for a sedimentation basin?

            24       A.  Not that I'm aware of.

            25       Q.  Can you tell me how much of the administrative 




                                                                     38




                                                                       


             1  civil liability penalty was allocated to this particular 

             2  violation?

             3       A.  I believe $30,000.

             4       Q.  And we'll get into this a little bit later, but 

             5  certain adjustment factors were applied; correct?

             6       A.  Yes.

             7       Q.  Were they applied on a per violation basis or 

             8  on a per category basis?

             9       A.  Per category.

            10       Q.  So does the Regional Board have any chart or 

            11  spread sheet or anything else that applies the 

            12  adjustment factors to individual violations?  

            13       A.  No.

            14       Q.  Let's go to the August 29th, 2006 violation. 

            15       A.  Okay.  

            16       Q.  The complaint says, "After eight hours of 

            17  pumping from coffer dams set in bar to Isolated Pool B," 

            18  correct?

            19       A.  Yes.

            20       Q.  So there's no photographs that are associated 

            21  with this violation, right?

            22       A.  Apparently not.

            23       Q.  Is it fair to say that there was no particular 

            24  violation, excuse me, no particular photograph on this 

            25  date that you felt appropriate to use to support this 




                                                                     39




                                                                       


             1  violation?

             2       A.  I believe that would be a fair assessment.  Had 

             3  I found one, I probably would have put it there.

             4       Q.  And you've also indicated that conditions nine, 

             5  twelve and seventeen were violated by the use of 

             6  Isolated Pool B on this date; correct?

             7       A.  Yes.

             8       Q.  Would that be for the same basic reasons that 

             9  you described for the August 21st violation?

            10       A.  Yes.

            11       Q.  Other than this quote that's included in the 

            12  complaint, is there any other specific evidence that 

            13  you're aware of that supports this violation?

            14       A.  I would just again refer to the contextual 

            15  evidence we have with the photographic record and the 

            16  engineering diaries and the record in its entirety.

            17       Q.  Sure, and I understand that you're saying that 

            18  contextually, it's all supportive; right?

            19       A.  And there may be more evidence in the file in 

            20  developing this.  This was my best attempt of picking 

            21  the best evidence to express what happened.

            22       Q.  So at least at the time that you drafted the 

            23  complaint, there was no other piece of evidence other 

            24  than this quote that you were specifically aware of --

            25       A.  Yes.




                                                                     40




                                                                       


             1       Q.  -- that supported this violation?

             2       A.  Yes.

             3       Q.  Turn to the August 30th, 2006 violation, again, 

             4  this is virtually the same statement for the August 29th 

             5  violation; correct?

             6       A.  Correct.

             7       Q.  And with the same conditions violated, correct?

             8       A.  Yes.

             9       Q.  I take it for the same basic reasons?

            10       A.  Correct.

            11       Q.  And you're not aware of any other specific 

            12  evidence for this date other than the quote?

            13       A.  Correct.

            14       Q.  Turning to the August 31st, 2006 violation, you 

            15  have two different violations.  One of them has a 

            16  statement virtually identical to the August 29th and 

            17  August 30th violations; right?

            18       A.  Yes.

            19       Q.  And you also have a photograph, correct?

            20       A.  Correct.  It references a photograph that 

            21  should be here, correct.

            22       Q.  Do you have that photograph?

            23       A.  Yes.

            24       Q.  I take it that the same violations were alleged 

            25  for this date, for this event as the other past three 




                                                                     41




                                                                       


             1  violations; correct?

             2       A.  Yes.

             3       Q.  For the same basic reasons?

             4       A.  Uh-huh, yes.

             5       Q.  Now the photograph, take a look at that.  What 

             6  is it about the photograph that provides support for 

             7  this violation?

             8       A.  There is water flowing into Isolated Pool B.  

             9  There's a pipe apparently coming from the river.  It 

            10  appears to be construction dewatering.

            11       Q.  My understanding of this violation is it's 

            12  based on the use of Isolated Pool B; you know, it's less 

            13  than a hundred feet from the active river?

            14       A.  Correct.

            15       Q.  Which would be consistent with the past 

            16  violations we've discussed.  For this violation that 

            17  we're talking about, is there anything else about that 

            18  photograph, other than the location of the basin, that 

            19  supports the violation?

            20       A.  No.  That's the general process we went 

            21  through.

            22       Q.  If you turn to the next violation -- 

            23           MR. JENSEN:  Well, I have a belated objection 

            24  on that one because for that particular date, we're 

            25  talking about 8/31?  




                                                                     42




                                                                       


             1           MR. HUNGERFORD:  Yes.  

             2           MR. JENSEN:  There was construction dewatering 

             3  to Isolated Pool B and construction dewatering directly 

             4  to the gravel bar.  So we're not just talking about the 

             5  location of Isolated Pool B.  

             6           MR. HUNGERFORD:  Well, that's a separate 

             7  violation.  

             8           MR. JENSEN:  Oh, okay.  

             9           MR. HUNGERFORD:  I was going to get into that.

            10           MR. JENSEN:  Oh, I'm sorry.  I misunderstood 

            11  that.  

            12           MR. HUNGERFORD:  That's okay.  

            13           BY MR. HUNGERFORD: 

            14       Q.  So we have a second violation noted for August 

            15  31st, correct?

            16       A.  Correct.

            17       Q.  And the basis for this appears to be a 

            18  statement, a quote that begins with, "After this event, 

            19  the water was not pumped into the isolated pool," and I 

            20  won't finish the rest of the quote.  What is it about 

            21  this statement that violated condition nine?  

            22       A.  It would be the same as before as the rational 

            23  used for the other construction dewatering discharges 

            24  that we've just discussed, but in this instance, it was 

            25  fifteen feet from the river instead of approximately 




                                                                     43




                                                                       


             1  seventy.  It was less than the required hundred feet.

             2       Q.  So is it fair to say that the basis for the 

             3  violation on this date is because water was discharged 

             4  in a location that wasn't specifically approved by 

             5  certification?

             6       A.  Well, and to further clarify, additional 

             7  condition number nine goes further to state that -- 

             8  Well, it goes further to state that, "shall be allowed 

             9  to enter into or placed where it may be washed by 

            10  rainfall into waters of the State."  

            11           However, we considered that this was 

            12  unauthorized by the permit, and therefore, it violates 

            13  condition nine. 

            14       Q.  Does, to your knowledge, does the Regional 

            15  Board have any understanding of how much water was 

            16  pumped to, you know, that fifteen foot away from the 

            17  river location?

            18       A.  No.

            19       Q.  Do you know actually the date that that water 

            20  was pumped?

            21       A.  Other than this quote, to me implies it 

            22  occurred on the same date.

            23       Q.  It says, the quote begins with, "After this 

            24  event."  So it doesn't specify a particular date, 

            25  correct?




                                                                     44




                                                                       


             1       A.  Correct.

             2       Q.  And do you have any idea how long dewatering to 

             3  this fifteen foot away from the river location took 

             4  place?

             5       A.  No.

             6       Q.  If you turn to the September 5th, 2006 date.  

             7       A.  Okay.  September 5th, 2006?  

             8       Q.  Yes.  

             9       A.  Correct.

            10       Q.  And so in support of this violation, the 

            11  complaint notes a quote, and it begins with, "ASR note," 

            12  and I won't finish the quote.  There's no photographs or 

            13  any other documents provided in support of this 

            14  violation.  Other than this quote, are you aware of any 

            15  evidence that specifically supports the violation?

            16       A.  The rest of that engineering diary would 

            17  provide context to that event.

            18       Q.  Does the quote that you have included refer to 

            19  an event observed by the author, or does it refer to a 

            20  conversation?

            21       A.  It refers to a conversation.

            22       Q.  Does it refer to a specific date of discharge?

            23       A.  It also refers to some of I believe the 

            24  author's observations.  It appears -- Well, no, never 

            25  mind.  I'd have to reread the entire engineering diary 




                                                                     45




                                                                       


             1  to determine if it's all his referencing another 

             2  person's observations or his own.

             3       Q.  But it's fair to say that the quote at least 

             4  describes a second-hand conversation?

             5       A.  Yes.

             6       Q.  And it doesn't include any date for when the 

             7  particular observations were made?

             8       A.  Other than the date on the engineering diary 

             9  and maybe other associated date within that.  This quote 

            10  does not reference a date itself.

            11       Q.  A moment ago, we talked about an August 31st 

            12  event where the quote indicated that water was pumped to 

            13  a gravel bar about fifteen feet away from the river.  Do 

            14  you remember that?

            15       A.  Yes.

            16       Q.  Is it possible that this recorded conversation 

            17  refers to that event?

            18       A.  I wouldn't exclude it from possibility unless I 

            19  saw evidence otherwise.

            20       Q.  So as I understand your answer, it is possible 

            21  that this September 5th quote and violation is 

            22  duplicative of the August 31st event that was recorded?

            23       A.  Sure.  

            24       Q.  If you turn to the September 7th, 2006 event, 

            25  and again, we have a conversation that has been recorded 




                                                                     46




                                                                       


             1  in the quote; right?

             2       A.  Yes.

             3       Q.  Are you aware of any other specific evidence in 

             4  the form of photographs or other statements that 

             5  establish this violation on this date?

             6       A.  Other than this engineering diary, no.

             7       Q.  I take it you've just read the quote, correct?

             8       A.  Yes.

             9       Q.  Let me back up.  It refers to a conversation 

            10  between Gene Leo and Walt Dragaloski about reports from 

            11  a biologist, Brad Norman; correct?

            12       A.  Yes.

            13       Q.  And then it goes on to describe the reports 

            14  authored by Mr. Bradford Norman; correct?

            15       A.  There's a few dot, dot, dots in there, so I'm 

            16  not quite sure that it goes on to talk about the reports 

            17  from Bradford Norman.  

            18       Q.  So it's a little unclear what the quote exactly 

            19  means without more documents at your disposal?

            20       A.  Well, I attempted to include the beginning of 

            21  the quote to provide context of which engineering diary 

            22  this came from and to provide context that there was a 

            23  conversation going on, but to some degree, you're 

            24  correct, that the entire engineering diary would be 

            25  helpful for reviewing this -- 




                                                                     47




                                                                       


             1       Q.  Is it fair to say that -- 

             2       A.  -- violation.

             3       Q.  I'm sorry; I cut you off.  Is it fair to say 

             4  that this refers to second- and probably third-hand 

             5  conversations?

             6       A.  It's possible.  I'd have to review the evidence 

             7  to see if that's true or not.

             8       Q.  This violation refers to September 7th, but the 

             9  quote, based on my reading, could refer to events from 

            10  other days.  Do you have any reason to think that this 

            11  quote refers to events that took place on September 7th?

            12       A.  There is a possibility that it occurred on a 

            13  day a couple days prior, although in my review of the 

            14  engineering diaries, for the most part, the engineers 

            15  were discussing things that happened that day, or at 

            16  least it appeared as so, although you're correct it's 

            17  possible.  I'd have to review the engineering diaries to 

            18  determine that.

            19       Q.  So to be clear, it's possible that this quote 

            20  discusses or describes events from a different day?

            21       A.  It's possible.

            22       Q.  Turn to the September 11th event, and again we 

            23  have a quote, and no other photographs or documents 

            24  referenced.  Are you aware of any other specific 

            25  photographs or documents that support this violation on 




                                                                     48




                                                                       


             1  this day?

             2       A.  No.

             3       Q.  Does the quote indicate where pumping was made 

             4  to?  Evidently, there was some pumping done.  Where was 

             5  that pumped to?

             6       A.  It does not state, but the general practice 

             7  that I'm aware of was to Isolated Pool B.

             8       Q.  But at least based on the quote, you don't have 

             9  any evidence of that?

            10       A.  No.

            11       Q.  Is it your understanding that the basis for 

            12  this violation is the use of Isolated Pool B similar to 

            13  other violations we've discussed?

            14       A.  Correct.

            15       Q.  But as you stated, at least based on the quote, 

            16  we don't actually know if Isolated Pool B was used on 

            17  this event?

            18       A.  That's correct.

            19       Q.  Who's Mitch Shands; do you know?

            20       A.  He's one of the employees onsite.  I don't 

            21  recall whether he works for MCM or Caltrans or one of 

            22  the other subcontractors.

            23       Q.  Let's turn to the October 3rd violation.  

            24  Again, we have a quote.  Other than the quote, are you 

            25  aware of any specific evidence in the form of 




                                                                     49




                                                                       


             1  photographs or other documents that support this 

             2  violation on this day?

             3       A.  No.

             4       Q.  After reading the quote, or have you had a 

             5  moment to read the quote?

             6       A.  Yes.

             7       Q.  Does the quote refer to events of any 

             8  particular day?

             9       A.  No, it does not.

            10       Q.  So is it possible that this quote refers to 

            11  events of a date other than October 3rd?

            12       A.  It is possible.  Would it be helpful to look -- 

            13  I mean I'm answering that based on the information in 

            14  front of me in the complaint.  Would it be helpful to 

            15  look at the originals?  I don't know.

            16       Q.  You might be the best person to answer that.  I 

            17  would certainly like to know, and this is just a general 

            18  comment on my end, and if there's anything else other 

            19  than the quotes or the photographs or other evidence 

            20  that's referenced in the complaint that you're 

            21  specifically aware that support a particular violation, 

            22  I'd like to know about it.  

            23       A.  I just feel like for every single one of these 

            24  quotes, the entire engineer diary would be relevant to 

            25  answer some of your questions, and whether or not it's 




                                                                     50




                                                                       


             1  possible it occurred on a different day, the language of 

             2  the engineer within that engineering diary would be 

             3  helpful in determining whether or not he's talking about 

             4  that day of the event or not.

             5       Q.  Well, I'm going to leave it to you to decide 

             6  and your counsel how you want to respond to the 

             7  questions.  For each of these, I'll tell you I'm going 

             8  to ask you if you're aware of any other specific 

             9  evidence that supports the violation.  

            10           MS. MACEDO:  I think that statement that he's 

            11  relying on the engineering diaries and not just the 

            12  isolated quote that was copied into an already long 

            13  complaint is his response.  Is it possible that the 

            14  information of a two- or three-line quote refers to 

            15  another day?  It's possible.  Is it likely?  He's 

            16  testified earlier that, no, the engineers usually did it 

            17  on the day, and the diaries are daily.  Correct?  

            18           THE WITNESS:  Yes.  

            19           MS ZAZZERON:  I object to that 

            20  characterization, and I think that mistates his 

            21  testimony. 

            22           THE WITNESS:  I could restate it.

            23           MR. HUNGERFORD:  I'm going to make a general 

            24  assumption here.  Maybe this will help get us through 

            25  this, that if you've quote an engineering diary or any 




                                                                     51




                                                                       


             1  other document, that the entirety of that entry for that 

             2  particular day is what you're referring to.  Does that 

             3  sound fair?

             4           MS. MACEDO:  Yes.  Let me say this:  I'm happy 

             5  to stipulate I mean in terms of not only eventually for 

             6  the hearing but also for the convenience of the witness 

             7  in today's deposition.  I do think in terms of the 

             8  appendix, it's set up as a system, and so when we have a 

             9  footnote, it refers to the documents at the end of that 

            10  particular appendix, and I think he testified that 

            11  that's where the quote came from in terms of your source 

            12  information, and it sounds like you want to know where 

            13  that quote came from.  

            14           MR. HUNGERFORD:  I'll put it this way:  If this 

            15  is a quote from an engineering diary, then that diary 

            16  for that date, I'm comfortable just accepting that as 

            17  being his answer, that that's what I should look to.  

            18           However, if there's also some other far-flung 

            19  report from Fish and Game for instance that relates to 

            20  the same day that might also provide support, I'm not 

            21  going to assume that that's part of his answer.  Does 

            22  that make sense?  

            23           MS. MACDEO:  Yes, that's fine, and the only 

            24  thing I would say is that our file has been made 

            25  available.  We're not going to rely on evidence that's 




                                                                     52




                                                                       


             1  not in the file at the hearing, and then if there's 

             2  evidence that either MCM or Caltrans has that you want 

             3  to use to dispute some of the conclusions that we made 

             4  in the complaint, that's fine, and we reserve the right 

             5  to change our answer based on the evidence that is 

             6  provided to us, but our conclusions are drawn from the 

             7  file evidence, and yes, the footnotes are the main 

             8  evidence to support each particular violation.  

             9           MR. HUNGERFORD:  Sure.  

            10           BY MR. HUNGERFORD:  

            11       Q.  Let's go to the October 6th day, and this lists 

            12  you have both a quote and a photograph; correct?  

            13       A.  Correct.  

            14       Q.  Do you know what the quote's from?

            15       A.  It's from a Regional Water Board inspection.

            16       Q.  And I'll represent to you that I have an 

            17  October 30th, 2006 report from the Regional Board to 

            18  Caltrans which contains this quote.  Does that sound 

            19  like I attributed the quote correctly?  

            20       A.  Correct.  I believe it's from a notice of 

            21  violation that the Regional Water Board sent to 

            22  Caltrans.

            23       Q.  Are you aware of any field notes or documents 

            24  or reports that would have recorded this observation 

            25  apart from this written notice of violation?




                                                                     53




                                                                       


             1       A.  Other than the photo that's referenced in the 

             2  appendix.

             3       Q.  Would it have been Regional Board practice, if 

             4  they went out for an onsite inspection, that they would 

             5  have some written record of the observations that they 

             6  made?

             7       A.  Not -- Well, I would say that it would be 

             8  general practice that inspectors take some sort of 

             9  notes.  Whether or not they keep those notes or 

            10  formalize them in a notice of violation or an inspection 

            11  report is up to the individual inspector.  So -- 

            12       Q.  So if such notes or recorded observations 

            13  existed, would they be in the stack of paper on the 

            14  table?

            15       A.  I believe they would be.  

            16       Q.  And then you have a photograph.  Why don't you 

            17  take a look at that report?  Did you find it?  

            18       A.  No, it's not in here.  There it is.  I did find 

            19  it.

            20       Q.  Okay.  Let me see your version to make sure I'm 

            21  looking at the right one.  

            22       A.  It appears to be the same.

            23       Q.  What is it about that photograph that supports 

            24  the violation alleged?  

            25       A.  There appears to be a construction dewatering 




                                                                     54




                                                                       


             1  to what I know to be Isolated Pool B.

             2       Q.  Can you indicate where that is on the 

             3  photograph?

             4       A.  There's a round corrugated metal pipe in a 

             5  depression in the gravel bar near the bank.

             6       Q.  And so again, this violation, like the others 

             7  that we've discussed in the last few minutes, it relates 

             8  to the location of Isolated Pool B being within a 

             9  hundred feet of the river; correct?

            10       A.  Yes.

            11       Q.  Outside of the photograph and the quoted 

            12  document, are you aware of any other specific evidence 

            13  supporting this violation on this date?

            14       A.  Other than the quote and the photo and, as 

            15  we've discussed previously, the engineering diaries that 

            16  are associated with that, then no.

            17       Q.  Do you know what staff member from the Regional 

            18  Board made the observation that was recorded in the 

            19  notice of violation?

            20       A.  Dean Prat.

            21       Q.  Was Dean the only Regional Board staff member 

            22  that inspected this project during its construction?

            23       A.  On this day, I believe he was the only one out 

            24  there on that day, and I did attend a couple of 

            25  inspections with him onsite later on.  I do not recall 




                                                                     55




                                                                       


             1  the dates.

             2       Q.  Other than Dean, did anyone else inspect this 

             3  site from the Regional Board, other than Dean and 

             4  yourself?

             5       A.  Mona Dougherty I believe inspected once, but it 

             6  could have been more.

             7       Q.  Is it fair to say that Dean -- 

             8       A.  She did inspect.  Excuse me.

             9       Q.  Is it fair to say that Dean was primarily the 

            10  one making the inspections?

            11       A.  Yes.

            12       Q.  Turn to the October 7th.  

            13           MS. ZAZZERON:  Could we take just a brief 

            14  break?  

            15           MR. HUNGERFORD:  Sure, absolutely.  

            16           (Recess held.) 

            17           BY MR. HUNGERFORD:  

            18       Q.  We've gone through a number of photographs over 

            19  the last few minutes.  Do they all come from the same 

            20  source?

            21       A.  For the most part, I believe so.  

            22       Q.  What source is that?

            23       A.  We received a stack of I think seven CDs from 

            24  Caltrans which was referenced by the final biological 

            25  monitoring report that was submitted by Caltrans, and 




                                                                     56




                                                                       


             1  originally we didn't receive the photographic record.  

             2  It was just a reference.  So I asked, and Caltrans 

             3  provided it.

             4       Q.  So the photographs were on CDs provided by 

             5  Caltrans?  

             6       A.  Yes.

             7       Q.  Do you have any understanding of who took the 

             8  photographs?

             9       A.  I believe the biological monitors took the 

            10  photographs.

            11       Q.  Outside of the CDs received from Caltrans with 

            12  biological monitor photographs, are there any other 

            13  photographs in here or is there any difference source 

            14  for the photographs that you've used in the complaint?

            15       A.  There are some other photographs that I've 

            16  seen, but I don't believe I used any of them in the 

            17  complaint.

            18       Q.  Now, I notice that all the photographs in the 

            19  complaint have the same basic identifier in the way that 

            20  they're set up by date and by numerically within that 

            21  date the order of photographs.  Do you know what I'm 

            22  talking about?

            23       A.  I believe so.

            24       Q.  Who assigned those identifiers to the various 

            25  photographs?




                                                                     57




                                                                       


             1       A.  Well, so there's -- 

             2       Q.  For example, let's go back to August 31st.  I'm 

             3  sorry; we'll just go back to the first one, August 21st. 

             4       A.  Okay.  

             5       Q.  The very first photograph we looked at had an 

             6  ID number of 060821-01. 

             7       A.  Yes.  

             8       Q.  Who assigned that ID number?  

             9       A.  I did.

            10       Q.  You did?  

            11       A.  Yes.  

            12       Q.  And you did it for each one of these?  

            13       A.  I did it in a group.  There's a program that 

            14  you use that does it in a group.

            15       Q.  How did you know that a particular photograph 

            16  related to a particular day?

            17       A.  I'm not sure if Medidata is the right term, but 

            18  you go into the file properties of the file, and it says 

            19  the date taken, and in many instances, there's the date 

            20  stamp on the photo, and there's also a time associated 

            21  with it as well.

            22       Q.  So if I understand that correctly, there's an 

            23  electronic signature so to speak that you can review by 

            24  looking at the properties for each individual file?

            25       A.  Yes.  




                                                                     58




                                                                       


             1       Q.  And it will indicate to you when that 

             2  particular file was created?

             3       A.  Yes.

             4       Q.  And then you took that date and made an 

             5  assumption, probably a reasonable one, that that was 

             6  that date on which the photograph was taken?

             7       A.  Yes.  

             8       Q.  Other than that, did you have any other method 

             9  for identifiying what date was associated with what 

            10  photograph?

            11       A.  I don't believe.  I think that was my main 

            12  source, either the properties of each file and, you 

            13  know, sometimes these date stamps which usually 

            14  reference the properties, and I tried to double check 

            15  that when possible.

            16       Q.  To your knowledge, does the Medidata still 

            17  exist on the CDs?

            18       A.  Yes.

            19       Q.  Have you made any effort to corroborate the 

            20  dates that you got off using that Medidata method with 

            21  the person who took the photographs?

            22           Well, let me back up.  The biological monitor, 

            23  have you ever made a request that the biological monitor 

            24  organize photographs by date?  

            25       A.  No.




                                                                     59




                                                                       


             1       Q.  So as they came to you in a CD, other than the 

             2  Medidata, was there any grouping of photographs by date?

             3       A.  Yes, they were in folders.  

             4       Q.  Okay.  

             5       A.  Each folder had a month to it as I recall.  

             6  Maybe sometimes they were in days, but I think it was 

             7  mostly by month.

             8       Q.  Electronic photos?  

             9       A.  Yes.  

            10       Q.  So they would have a monthly folder but not 

            11  individual days?

            12       A.  I don't recall.  

            13       Q.  Let's backtrack a little bit.  If you go back 

            14  to the September 11th, 2006 entry -- 

            15       A.  Is this still the construction dewatering?  

            16       Q.  Yes.  

            17       A.  September 11, 2006.

            18       Q.  So you used here a quote relating to Mitch 

            19  Shands?

            20       A.  Correct.

            21       Q.  Right?

            22       A.  Yes.

            23       Q.  Why don't you take an opportunity to review -- 

            24  First of all, do you have the source document available 

            25  to you?




                                                                     60




                                                                       


             1       A.  Maybe.  Yes.

             2       Q.  Can you take a moment -- First of all, the 

             3  source document is an assistant resident engineer's 

             4  daily report; correct?

             5       A.  Correct.

             6       Q.  Assigned by John Railey it indicates on the 

             7  bottom?  

             8       A.  Yes.  

             9       Q.  Take a moment to review that and tell me if 

            10  there's anything other than the quote that you've 

            11  included in the complaint that supports the violation 

            12  the Regional Board has alleged?  

            13       A.  Can you repeat your question?  

            14       Q.  Having read that daily log, is there anything 

            15  else, other than the quote you've included in the 

            16  complaint, that supports the violation on this date?

            17       A.  I don't believe so.

            18       Q.  If you turn to the October 3rd violation -- 

            19       A.  Uh-huh.  

            20       Q.  Again we looked at a quote involving Mitch 

            21  Shands, and if you could, take a look at the source 

            22  document for that quote.  

            23       A.  Okay.  

            24       Q.  Do you have that in front of you?  

            25       A.  Yes.




                                                                     61




                                                                       


             1       Q.  And is it a Tuesday, October 3rd, 2006 e-mail, 

             2  I'm sorry, entry?

             3       A.  Entry, yes, into the assistant structure 

             4  representative daily report.

             5       Q.  Take a quick look at that if you could, and 

             6  tell me if there's anything else in there other than the 

             7  quoted passage that supports that violation.  

             8       A.  No, I don't believe there's any other language 

             9  that supports that violation in that report other than 

            10  just the information of the date and the person who 

            11  wrote it and just the information that verifies this 

            12  report, but in terms of the narrative, there's no other 

            13  language that I can see that further refers to the 

            14  violation that occurred.

            15       Q.  If you could move forward to the October 7th, 

            16  2006 violation, and you have a quote here.  Can you tell 

            17  me what that quote's from?

            18       A.  Well, the appendix states that it's from the 

            19  response to the notice of violation or the biological 

            20  monitoring report and associated photographic record.

            21       Q.  Do you have the source document that includes 

            22  that quote?

            23       A.  It should be here.

            24       Q.  Can you take a look at it?

            25       A.  Okay.  




                                                                     62




                                                                       


             1       Q.  What is the source document?

             2       A.  It's the biological monitoring report contained 

             3  within the response to the notice of violation received 

             4  by the Regional Water Board on December 14th, 2006.

             5       Q.  And can you take a look at that particular 

             6  entry in the biological monitoring report?

             7       A.  Okay.  

             8       Q.  You've got a quote that begins with, 

             9  "Dewatering of the footings on the gravel bar caused 

            10  some concern," and ends with, "seventy feet away from 

            11  the river."  Do you see that?

            12       A.  Yes.

            13       Q.  Other than that quote, is there anything in 

            14  this report that supports the violation on this date?  

            15       A.  I don't believe so unless maybe the next 

            16  sentence refers to it, which appears to be talking about 

            17  a different event but the main focus of the work during 

            18  the afternoon.  So --

            19       Q.  This is allegedly a violation of conditions 

            20  nine, twelve and seventeen.  What is it about this 

            21  quote, information in the quote, that establishes a 

            22  violation of those conditions?

            23       A.  Dewatering of the footings on the gravel bar.

            24       Q.  Where did the dewatering get put, the water 

            25  flow?




                                                                     63




                                                                       


             1       A.  The quote does not state explicity where the 

             2  water was put.  It states that it was not being 

             3  deposited in, it says the approved area seventy feet 

             4  away from the river, which I'm assuming is referring to 

             5  Isolated Pool B which we would say was not approved, but 

             6  we have no evidence that dewatering ever occurred in an 

             7  approved location.

             8       Q.  In fact, you don't know where the dewatering 

             9  occurred at all?

            10       A.  No, other than dewatering of the footings on 

            11  the gravel bar, and there's, there is -- I have seen 

            12  within the evidence here that statements by either 

            13  Caltrans or the contractor that there is no place 

            14  greater than a hundred feet away from the active rate of 

            15  travel to dispose of the water, which would imply that 

            16  although it was perhaps not in Isolated Pool B, it was 

            17  at least within the one hundred feet.

            18       Q.  As you read the quote, it says, "Dewatering of 

            19  the footings in the gravel bar."  The way I read that is 

            20  the footings on the gravel bar rather than dewatering on 

            21  the gravel bar.  Is that a reasonable interpretation do 

            22  you think of that language?

            23       A.  I guess you could interpret it differently.  I 

            24  had not done that because all other dewatering that I 

            25  had read about had occurred on the gravel bar.  




                                                                     64




                                                                       


             1       Q.  Other than this quote, are you aware of any 

             2  other photographs or specific documents that support 

             3  this violation on this date?

             4       A.  No.

             5       Q.  Can you turn to the November 13th date?  

             6       A.  Uh-huh.  

             7       Q.  And you have a series of quotes and one 

             8  photograph that you specify in the complaint as 

             9  supporting this violation; correct?

            10       A.  Correct.

            11       Q.  What is the source of the quote or quotes?

            12       A.  The engineering diaries.  

            13       Q.  Can you turn to those, please, for that day? 

            14       A.  Okay.  So in the documents that I brought here, 

            15  I was able to find the first quote and not the second 

            16  one right away.  

            17       Q.  Okay.  

            18       A.  Perhaps I could find if you want me to look 

            19  further.

            20       Q.  With the first quote, what is the source of 

            21  that?

            22       A.  It is an assistant resident engineer's daily 

            23  structures report from November 13th, 2006, signed by 

            24  John Railey.

            25       Q.  Have you taken the opportunity to read that?




                                                                     65




                                                                       


             1       A.  I just skimmed it to make sure it was the 

             2  correct one.

             3       Q.  And you see the quote in there?

             4       A.  Yes.

             5       Q.  Other than the quoted materials, is there 

             6  anything else in that report that supports this 

             7  violation on this date?

             8       A.  Well, yes, there's more to the quote than was 

             9  condensed into appendix A.  It goes on for the rest of 

            10  that paragraph.  

            11       Q.  Well, let me ask it this way:  Is there 

            12  anything else in that document that provides any 

            13  substantively different basis for this violation than 

            14  what you've quoted?

            15       A.  I don't believe so.

            16       Q.  In the second quote, you mentioned you don't 

            17  have a copy of that document, at least not that you can 

            18  initially locate; correct?

            19       A.  Yes.

            20       Q.  I'm going to hand you a copy of an assistant 

            21  resident engineer's daily report signed by, it looks 

            22  like Karen, and I can't read the -- 

            23       A.  Spliethof probably.

            24       Q.  That would be it.  If you could take a look at 

            25  that and the highlighted material, and let me know if 




                                                                     66




                                                                       


             1  there's anything else in that document, other than the 

             2  quote, that supports the violation on this date.  

             3           MS. MACEDO:  I know we're going through the 

             4  documents one by one.  We can continue to do that, but I 

             5  object in terms of the documents speak for themselves, 

             6  but keep going.  

             7           THE WITNESS:  So your question is -- 

             8           MR. HUNGERFORD:  Whether there's anything else, 

             9  other than the quoted section in this report, that 

            10  supports the violation on this date.  

            11           THE WITNESS:  Just the rest of the quote does 

            12  provide some context in that she's referring to John 

            13  Railey who wrote the other document.  Justin Webster of 

            14  MCM was onsite.  The issue was addressed to Garry Tolen 

            15  and Ron Denheyer.  So that's it.  

            16           BY MR. HUNGERFORD: 

            17       Q.  And you also have a photograph that you've 

            18  identified in support of this violation, correct?

            19       A.  Yes.

            20       Q.  Did that photograph come from the biological 

            21  monitor, or did it have a different source?

            22       A.  Oh, I did include that.  It had a different 

            23  source.  This was from the engineering diaries.

            24       Q.  The photograph was?

            25       A.  Yes.




                                                                     67




                                                                       


             1       Q.  So do you have an understanding who took the 

             2  photograph?

             3       A.  No.

             4       Q.  Where did you get it from?

             5       A.  I got it out of the stack of engineering 

             6  diaries that we received from Fish and Game.

             7       Q.  So you didn't receive an electronic version of 

             8  this?

             9       A.  No.

            10       Q.  This is a hard copy that you copied?

            11       A.  Yes.

            12       Q.  Do you know whose handwriting is on the 

            13  photograph?

            14       A.  I have no idea unless, of course, I went back 

            15  into the engineering diaries and looked for context, and 

            16  perhaps it indicates that.  Perhaps there's more 

            17  information in the diary.  I'd have to look.

            18       Q.  Are you speculating at this point, or do you 

            19  actually know?  

            20       A.  I do not know.  So my original answer was 

            21  correct, that I do not know whose handwriting it is, but 

            22  there is more information in the diaries.

            23       Q.  It could be revealed?  

            24       A.  Yes.  

            25       Q.  What about this photograph supports the 




                                                                     68




                                                                       


             1  violation?

             2       A.  There appears to be a hose coming out of what I 

             3  believe is a drill shaft, and then there's -- It appears 

             4  to be going somewhere on the gravel bar, and there's 

             5  handwriting on there that appears to say pumping H2O 

             6  directly onto, into; it's fuzzy, and then what also 

             7  appears to say gravel bar.

             8       Q.  What's your basic understanding of the facts 

             9  surrounding this violation?

            10       A.  There appears to be some construction 

            11  dewatering onto the gravel bar.

            12       Q.  Construction dewatering from where?

            13       A.  From a shaft that they are excavating to put a 

            14  support structure for the bridge, the north bridge.

            15       Q.  The first quote indicates that the dewatering 

            16  didn't occur directly to the bar but that it ran off of 

            17  an access road; correct?

            18       A.  Correct.

            19       Q.  Do you have any understanding of how much water 

            20  actually made it to the gravel bar, if any?

            21       A.  I have no idea.

            22       Q.  The quotes indicate that an issue regarding 

            23  this possible discharge was brought to Mitch Lipsky's 

            24  attention; right?

            25       A.  Correct.




                                                                     69




                                                                       


             1       Q.  Do you have any knowledge of whether or not 

             2  corrective measures were put in place after that was 

             3  brought to Mr. Lipsky's attention?

             4       A.  I have no knowledge of whether they were or 

             5  not, although the quote states that -- I guess it 

             6  implies that they were.  It says, "Corrective measures 

             7  were not implemented until," so that would lead me to 

             8  believe that they were implemented.  

             9       Q.  Turning to the November 17th date -- 

            10       A.  Okay.

            11       Q.  Here we have a quote again.  Can you tell me 

            12  what the source of this quote is?

            13       A.  Engineering diaries.

            14       Q.  Do you have a copy of that particular entry in 

            15  front of you?

            16       A.  I don't believe so.

            17       Q.  And do you have any other photographs or 

            18  specific evidence that you're aware of that support this 

            19  violation?

            20       A.  No.

            21       Q.  I'm going to hand you a copy of the document 

            22  with the quote, which is an assistant resident 

            23  engineer's daily log dated November 14th.  

            24       A.  Okay.

            25       Q.  Take a look at that, please.  




                                                                     70




                                                                       


             1           MS. ZAZZERON:  May I see that as well when the 

             2  witness is done?  

             3           MR. HUNGERFORD:  Sure.  

             4           THE WITNESS:  Okay.  

             5           BY MR. HUNGERFORD:  

             6       Q.  Is it fair to say that the quote refers to a 

             7  conversation that took place?

             8           MS. MACEDO:  Objection.  The document speaks 

             9  for itself.  You can answer.  

            10           THE WITNESS:  It refers to a conversation, yes.  

            11           BY MR. HUNGERFORD:  

            12       Q.  Is there anything in the quote to suggest that 

            13  the pumping below the hundred year floodplain that is 

            14  indicated in that conversation actually took place on 

            15  November 14th?

            16       A.  There's no reference to any dates within that 

            17  quote.

            18       Q.  Is it possible that that quote could refer to 

            19  the day prior, the November 13th recorded event that we 

            20  went over just a moment ago?

            21       A.  Yes, it is.

            22           MS. MACEDO:  Ardine wants to see it.

            23           MR. HUNGERFORD:  Yes, I know.  

            24           MS. ZAZZERON:  Thank you.  

            25           MR. HUNGERFORD:  Sure.  I was going to move on.  




                                                                     71




                                                                       


             1  Ardine, do you want me to hold for a moment?  

             2           MS. ZAZZERON:  No.  

             3           BY MR. HUNGERFORD:  

             4       Q.  If you could go to the March 7th, 2007 event, 

             5  please.  

             6       A.  Okay.

             7       Q.  And again we have some quoted material.  Can 

             8  you tell me what the source of that material is?

             9       A.  Engineering diaries.

            10       Q.  And do you have that particular diary of that 

            11  day handy?

            12       A.  Yes, I do.

            13       Q.  Let's review it for a quick moment.  

            14       A.  Okay.

            15       Q.  Other than this document that contains the 

            16  quote, are you aware of any other specific photographs 

            17  or documents supporting this violation?

            18       A.  No.

            19       Q.  The quote indicates that a small electric pump 

            20  was used to dewater a pier pit, correct?

            21       A.  Correct.

            22       Q.  Do you know how much water was bumped?

            23       A.  No.

            24       Q.  Do you know where it was pumped to?

            25       A.  The quote says that it was being released under 




                                                                     72




                                                                       


             1  the Oregon oak tree.  

             2       Q.  Do you have any idea how far away that is from 

             3  the active river channel?  

             4       A.  No, I don't.

             5       Q.  Do you know if it's within the hunred year 

             6  floodplain?  

             7       A.  No.

             8       Q.  The fact that it's an oak tree suggests at 

             9  least that it's an uplands rather than on the gravel 

            10  bar; correct?

            11       A.  Yes.

            12       Q.  This relates to the south bridge rather than 

            13  the north bridge; is that true?

            14       A.  From my understanding, yes, although there is a 

            15  bit of speculation, but I believe when I went out on one 

            16  of the inspections with Dean, I believe some Caltrans 

            17  employees referred to this instance.

            18       Q.  And what was the substance of that reference?

            19       A.  I believe it was the northern portion, the 

            20  northern bar of the river if my directions are correct.  

            21  There's a pier, and then there's a knoll just to the, I 

            22  guess according to my directions here would be to the 

            23  west of that.  There's a tree, and then there's a slope 

            24  down to a little pool down there.  So I recall the area 

            25  in general I guess.




                                                                     73




                                                                       


             1       Q.  You've alleged that this violates condition 

             2  seven and nine of the certification?  

             3       A.  Yes.

             4       Q.  Assuming that this is entirely within uplands 

             5  and outside the hundred year, how would this be a 

             6  violation of condition seven?

             7       A.  Well, seven appears to be straight forward.  

             8  The quote, which I've lost my place, but the quote 

             9  states that the brownish water is making its way to the 

            10  Eel River side channel discoloring the waters.  That 

            11  appears to me that insufficient BMPs, best management 

            12  practices, for sediment and turbidity control were in 

            13  place.  So seven requires adequate BMPs.  The fact that 

            14  discharge sediment to the side channel implies to me 

            15  that there are or that there were insufficient BMPs 

            16  during that activity to insure that no silt or sediment 

            17  enters surface waters.  That's seven.  

            18           Then I guess to finish, number nine, the 

            19  discharge to surface waters of turbid water with 

            20  apparently sediment in there would be in violation, 

            21  would not be authorized by this permit.  It contains 

            22  soil, silt, dot, dot, dot, the prohibited substances in 

            23  condition nine, and they were placed in a location in 

            24  which they were allowed to enter into waters of the 

            25  State. 




                                                                     74




                                                                       


             1       Q.  But we don't know if this entered waters of the 

             2  State; do we?

             3       A.  It entered the Eel River side channel which, 

             4  from my understanding, would be waters of the State.

             5       Q.  Just based on the fact that it said side 

             6  channel, correct?

             7       A.  And from my understanding of what they're 

             8  referring to onsite.

             9       Q.  What evidence do you have that this was turbid 

            10  water that was discharged?

            11       A.  The brownish water is I believe, or maybe I'm 

            12  misreading that, but b-r something.  It looks like 

            13  brownish.  It's cursive, so I can't quite read it, but 

            14  that would be -- That was what indicated to me that 

            15  there's a color to it, and it says discoloring the 

            16  waters.  So that would imply that there's some sort of 

            17  pollutant in there causing a discoloration.

            18           MR. HUNGERFORD:  Hold on a sec.  

            19           (Recess held.)

            20           BY MR. HUNGERFORD:  

            21       Q.  So now we've moved on to the second category of 

            22  violations, A dash B, dealing with leaky equipment.  

            23  We'll start with the August 22nd, 2006 violation.  

            24       A.  Okay.

            25       Q.  And there we have a quote.  What is the source 




                                                                     75




                                                                       


             1  of that quote?

             2       A.  The response to the notice of violation, the 

             3  binder.

             4       Q.  Can you tell me what the source document is?  

             5  Do you know where that quote appears?

             6       A.  I believe it's in an e-mail.  Let me find it.  

             7       Q.  Sure.  

             8       A.  So it looks like an e-mail from Walt Dragaloski 

             9  to Ron Denheyer and others.

            10       Q.  Why don't you take a quick moment to read the 

            11  e-mail and the quote just to familiarize yourself with 

            12  that again?  

            13       A.  Okay.  

            14       Q.  Other than the quote, is there anything in this 

            15  document that you believe supports this violation?

            16       A.  Anything else in this document?  

            17       Q.  Yes, anything else in the document, the e-mail 

            18  that you read from.  

            19       A.  So I guess other than just context, you know, 

            20  that equipment is being fueled on the river bar as well, 

            21  but that is addressed in other violations, so 

            22  specifically to this, no.

            23       Q.  Can you describe for me what the nature of this 

            24  violation is?

            25       A.  The backhoe leaked oil onto the river bar, or 




                                                                     76




                                                                       


             1  the way it's stated in the e-mail is a discharge of oil 

             2  occurred from the backhoe directly onto the river bar.

             3       Q.  How does that violate condition nine of the 

             4  certification?

             5       A.  Well, there was a discharge of oil from a 

             6  backhoe onto the river bar, waters of the State, and 

             7  condition nine prohibits that by stating, "No debris," 

             8  dot, dot, dot, "oil or petroleum products shall be 

             9  allowed to enter or be placed where they may be washed 

            10  into waters of the State."

            11       Q.  What about condition thirteen, how is there a 

            12  violation there?

            13       A.  So I do not have the revised version of 

            14  condition thirteen in front of me, but I would just have 

            15  to go -- unless you show me.  Okay.  So the condition 

            16  states that operation of vehicles and equipment shall 

            17  not result in a discharge.  There was a discharge.

            18       Q.  Let me take condition thirteen in two parts if 

            19  I may.  The first sentence says, "Fueling lubrication, 

            20  maintenance, storage and staging of vehicles and 

            21  equipment shall be outside the waters of the United 

            22  States, and operation of vehicles and equipment shall 

            23  not result in a discharge or threatened discharge to 

            24  waters of the United States," correct?

            25       A.  Correct.




                                                                     77




                                                                       


             1       Q.  And then, "At no time shall the applicant use 

             2  any vehicle or equipment that leaks any substance that 

             3  may impact water quality," right?

             4       A.  Correct.

             5       Q.  So to me, there are two separate requirements 

             6  there.  As to the second, the second sentence, is that 

             7  violated by this event?

             8       A.  Yes.

             9       Q.  Is it the Regional Board's position that any 

            10  time equipment leaks, that a violation has taken place?

            11       A.  If it may impact water quality.

            12       Q.  So if the leak is captured so to speak through 

            13  the use of BMPs, is that a condition that would violate 

            14  the certification?

            15       A.  If it is indeed a BMP, then -- You know, it's 

            16  difficult to answer a hypothetical not looking at a 

            17  specific situation, but in general, the purpose of BMPs 

            18  is to protect the water quality objectives, and if it is 

            19  functioning properly, then the water quality objectives 

            20  have been protected, and it would have prevented this, a 

            21  discharge.

            22       Q.  So if I can correctly describe your answer, is 

            23  it your testimony, then, that if equipment leaks but 

            24  that leak is completely captured through BMPs, then 

            25  there is no violation of the certification?




                                                                     78




                                                                       


             1       A.  Correct.

             2       Q.  What about if equipment leaks onto the ground 

             3  and that leak is promptly cleaned up such that there's 

             4  no further threat to water quality, would that be a 

             5  violation of the certification?

             6       A.  Yes.

             7       Q.  Why is that?

             8       A.  Because there was a discharge, and now, 

             9  depending on which condition we're talking about, 

            10  condition nine --

            11       Q.  Well, let's focus on condition thirteen.  

            12       A.  Okay.  Focusing on condition thirteen, in this 

            13  hypothetical, equipment would have been used which 

            14  leaked a substance that could impact water quality.  

            15  That portion would be violated.  

            16           Further, if it was being operated, then 

            17  operation of the equipment would have resulted in both a 

            18  discharge, depending on the location of the leak, either 

            19  a discharge directly to waters of the United States or a 

            20  threatened discharge to waters of the United States. 

            21       Q.  I'll represent to you that to my knowledge, 

            22  it's impossible to make construction equipment one 

            23  hundred percent leak free, and that as just purely an 

            24  operational matter, as good as you can maintain 

            25  equipment, it still will leak.  Do you have any reason 




                                                                     79




                                                                       


             1  to disbelieve that statement?

             2       A.  I have no reason to disbelieve that statement.  

             3  I could, I could speak as -- I would want to ask a 

             4  question as to why MCM and Caltrans did not petition 

             5  this permit if they believed that they couldn't achieve 

             6  the requirements of the permit.

             7       Q.  And I'm not going to answer that simply because 

             8  I'm not the person being deposed here.  

             9       A.  Sure.

            10       Q.  It's probably a reasonable question that can be 

            11  answered a number of different ways, but I think the 

            12  situation is this, that it's impossible to keep 

            13  equipment a hundred percent leak free, and in this case, 

            14  we had BMPs in the form of an onsite maintenance team 

            15  that kept this equipment in as good a working order as 

            16  necessary.  Notwithstanding that, equipment will leak, 

            17  and so what I want to know is:  If the project has 

            18  appropriate BMPs to prevent equipment from leaking and 

            19  equipment nonetheless leaks and those leaks are promptly 

            20  cleaned up, is there still a violation of the 

            21  certification?

            22       A.  If they are indeed BMPs that are approved by 

            23  the Regional Water Board, then it would not be a 

            24  violation, and if indeed they were promptly cleaned 

            25  up -- I might expand that in many of these cases, we do 




                                                                     80




                                                                       


             1  not have evidence that they were promptly cleaned up, 

             2  and in fact, we showed as much discretion as possible.  

             3  Perhaps discretion is not the word, but we were as 

             4  conservative as possible in going through the evidence 

             5  we had, that when we had evidence that a leak was 

             6  cleaned up, we didn't pursue enforcement for that.

             7       Q.  Really?

             8       A.  Yes, and I guess I'll add that indeed there may 

             9  be minor grammatical reference errors in this document.  

            10  There also might be some pieces of evidence that, that 

            11  if we were provided more information, we could proceed 

            12  differently with the order.  

            13       Q.  Well, I think that we'll get into this as we go 

            14  through some of these individual ones.  

            15       A.  Sure.

            16       Q.  First of all, for this August 22nd event, other 

            17  than this document, this e-mail that we've looked at, is 

            18  there any other specific documents or photographs that 

            19  you're aware of that support this violation?

            20       A.  No.

            21       Q.  If you could turn to the August 29th event.  

            22       A.  Uh-huh.

            23       Q.  The only item of evidence that is referenced in 

            24  the complaint is a single photograph.  Is that true?

            25       A.  Yes.




                                                                     81




                                                                       


             1       Q.  And my identifier is 060829-01, which is a 

             2  picture of two buckets full of rocks.  

             3       A.  Correct.

             4       Q.  Correct?

             5       A.  Yes.  

             6       Q.  How does this photograph establish a violation 

             7  of conditions nine and thirteen?

             8       A.  It demonstrates that there was a leak of 

             9  petroleum products onto the gravel bar.

            10       Q.  How do you know that there's petroleum product 

            11  on those rocks?

            12       A.  They are visually stained, and one of the 

            13  plastic bags appears pink which would lead me to believe 

            14  it could be red diesel.  It could be hydraulic fluid.  I 

            15  don't know exactly what it is, but I would add that 

            16  there are other pictures in the photographic record that 

            17  might add context to that photo.

            18       Q.  It could be a pink bag.  

            19       A.  It could be.

            20       Q.  But as I understand your answer, your 

            21  conclusion that this is petroleum stained rocks is based 

            22  solely on your examination of the photograph, not on 

            23  anything else?

            24       A.  The photographic record and, depending on the 

            25  source, it could have been described in the biological 




                                                                     82




                                                                       


             1  monitoring report as well since it is taken by the 

             2  biological monitor.

             3       Q.  Do you know where these rocks came from?

             4       A.  I do not off the too of my head, no.

             5       Q.  Do you know when they were collected?

             6       A.  No.

             7       Q.  Do you know where this picture was taken?

             8       A.  No, although I will repeat that looking in the 

             9  photographic record could provide context as to where 

            10  the photo was taken and the time that the photo was 

            11  taken.

            12       Q.  One of the things that struck me about this 

            13  photo was the type of rocks that are surrounding the 

            14  bucket, and my experience is that most river rocks tend 

            15  to be rounded in shape just from the years of water 

            16  coming through a riverbed, whereas these appear to be 

            17  much more jagged, not unlike crushed rock and aggregate.  

            18  Is it possible that this location was not in the 

            19  riverbed itself but in some upland location where 

            20  aggregate was stored?

            21       A.  It's possible.

            22       Q.  And do you have any information as to what type 

            23  of equipment, assuming that this is oil residue, was it 

            24  that created the residue?

            25       A.  I do not believe so.




                                                                     83




                                                                       


             1       Q.  Just a moment ago, we discussed an observation 

             2  of an oil discharge of August 22nd.  Do you remember 

             3  that?

             4       A.  August 22nd?  

             5       Q.  Yes, 2006.  

             6       A.  Yes.

             7       Q.  Is it possible that this photograph is of rocks 

             8  cleaned up from that particular discharge?

             9       A.  Yes, it's possible.

            10       Q.  If you could turn to the September 9th, 2006 

            11  violation, again we have a photograph supporting this 

            12  particular violation and nothing else referenced by the 

            13  complaint; correct?

            14       A.  Correct.

            15       Q.  The photograph is identified as 060909-03, and 

            16  based on your prior testimony, we believe this came from 

            17  the biological monitor; correct?

            18       A.  Correct.

            19       Q.  Do you know where this picture was taken?

            20       A.  Not exactly.  As I recall, I believe it's the 

            21  gravel bar, and that recollection is based on my memory 

            22  of the contextual pictures in the photographic record, 

            23  that the biological monitor would have been on the 

            24  gravel bar taking pictures of other things, and then he 

            25  took this up-close picture of oil stained rocks.




                                                                     84




                                                                       


             1       Q.  You're making an assumption, though?  You don't 

             2  actually know that, correct?

             3       A.  My assumption would be based on the series and 

             4  chronology of photos taken by time, but that's going off 

             5  my recollection of the photographic record.  I would 

             6  need to check the photographic record to corroborate 

             7  that.

             8       Q.  Do you know what type of fluid it is that's on 

             9  these rocks?

            10       A.  I do not.

            11       Q.  Do you know when whatever type of fluid it was 

            12  was discharged?

            13       A.  When?  

            14       Q.  When.  

            15       A.  Well, no.  I could only venture a guess.

            16       Q.  Do you know what type of vehicle, if any, 

            17  created the discharge?

            18       A.  I do not.

            19       Q.  Other than this photograph, do you have any 

            20  other evidence supporting this violation on this date?

            21       A.  No.

            22       Q.  Do you have any information as to whether or 

            23  not this residue-stained set of rocks was cleaned up?

            24       A.  No.

            25       Q.  If you turn to the September 26th event, again 




                                                                     85




                                                                       


             1  this allegation is based on a single photograph; 

             2  correct?

             3       A.  Yes.

             4       Q.  Other than this photograph, are you aware of 

             5  any other specific documents or materials supporting 

             6  this allegation on this date?  

             7       A.  No.

             8       Q.  Do you know where this photograph was taken 

             9  from?

            10       A.  From the photo itself, no.

            11       Q.  Does it appear to be a gravel bar?

            12       A.  No.

            13       Q.  Is it reasonable to assume that this is 

            14  somewhere outside of the gravel bar?

            15       A.  Yes.

            16       Q.  Do you know how far away from the gravel bar?

            17       A.  No.

            18       Q.  Do you know what type of fluid appears in the 

            19  photograph?

            20       A.  No.

            21       Q.  Do you know what type of equipment made or 

            22  created that fluid, if any?

            23       A.  No.

            24       Q.  Are you aware of any other facts, documents, 

            25  photographs or evidence supporting this violation?




                                                                     86




                                                                       


             1       A.  No.

             2       Q.  If you could turn to the September 27th entry, 

             3  in this one, we have a quote as well as a photograph; 

             4  correct?

             5       A.  Correct.

             6       Q.  And the quote says, "Oil leaks above river on 

             7  wooden trestle.  The large trestle crane had this 

             8  problem regularly," correct?

             9       A.  Yes.

            10       Q.  What is the source of that quote?

            11       A.  CD of biological monitoring reports that we 

            12  received from Caltrans.

            13       Q.  Do you know what specific document the quote 

            14  appears on?

            15       A.  It would have been the biological monitoring 

            16  report.  They are titled by date, so I wouldn't be able 

            17  to reference the exact name of the document.  The 

            18  biological monitor did reports weekly or biweekly.

            19       Q.  I'm going to hand to you a document that gives 

            20  the source of this quote, and I only have one page of 

            21  that document.  If you know where a full copy exists in 

            22  your records, please feel free to refer to it.  

            23       A.  This appears to me to be the final biological 

            24  monitoring report.

            25       Q.  What's the company that prepared that report?




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             1       A.  Aquatic Resource Specialists I believe.

             2       Q.  Is that a URS?  Isn't that a URS document?

             3       A.  I said Aquatic Resource Specialists.  I think 

             4  it's ARS.  Oh, URS down here (witness indicating)?  

             5       Q.  Yes.  

             6       A.  It says URS on it, so it could have been done 

             7  by another company.

             8       Q.  Are you familiar with URS in a general way at 

             9  least?

            10       A.  No.

            11       Q.  I'll represent to you they're a large company 

            12  that provides engineering services as well as a variety 

            13  of other environmental services.  Do you know why it was 

            14  that URS prepared a report describing conditions of the 

            15  project site?

            16       A.  No.

            17       Q.  To you knowledge, were the biological monitors 

            18  employed or affiliated with URS?

            19       A.  I don't know.  It was my understanding that 

            20  biological monitors worked for a company called IBIS, 

            21  and I don't know what that stands for.  They may have 

            22  been subcontractors.  

            23       Q.  We've talked about two biological monitors so 

            24  far, right?  One is Carl Page, and the other's Brad 

            25  Norman?




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             1       A.  Yes.  

             2       Q.  Are you aware of any others other than those 

             3  two?

             4       A.  No.  

             5       Q.  So you don't know why URS was involved in this 

             6  project?

             7       A.  No.

             8       Q.  Other than the quote, is there anything else in 

             9  that document, at least the excerpt that I provided you, 

            10  that you believe supports this particular violation?

            11       A.  I believe the whole page supports the 

            12  violation.

            13       Q.  Anything else specific on the page?

            14       A.  Specifically, I think it's all relevant to 

            15  provide context, the proactive measures section and the 

            16  problems encountered and measures taken.

            17       Q.  Okay.  And there's also a photograph that 

            18  supports this violation, correct?

            19       A.  Correct.

            20       Q.  Do you have that in front of you?

            21       A.  Can I confirm this is the correct one?  That's 

            22  the one we're referring to?  

            23       Q.  Yes.  

            24       A.  Yes, that's it.  

            25       Q.  According to go my records, the one you're 




                                                                     89




                                                                       


             1  indicating is the correct photograph, which is 

             2  identified as 060927-05. 

             3       A.  Okay.  

             4       Q.  And It's a photograph of what appears to me to 

             5  be the trestle deck.  Is that consistent with your 

             6  understanding?

             7       A.  Yes.

             8       Q.  And what does it show?

             9       A.  It shows oil stains on the planks of the 

            10  trestle deck.  It shows some rags soaked in oil and what 

            11  appear to be absorbent pads perhaps and also what 

            12  appears to be gaps and holes in the trestle deck.

            13       Q.  What's the basis for your belief that this is 

            14  oil that's on the trestle deck?

            15       A.  Having reviewed all of the -- Well, just 

            16  visually I would have to say that it appears that 

            17  there's oil-soaked rags on the deck, and having looked 

            18  at other pictures from this site, that's what it 

            19  appeared to me to be, and I believe it's also associated 

            20  in the same section in the document that you showed me 

            21  talking about oil.

            22       Q.  So outside of your view of this photograph and 

            23  the reference in the URS report, you're not aware of any 

            24  specific evidence that this is actually oil on the 

            25  trestle deck?




                                                                     90




                                                                       


             1       A.  Other than the photographic record and that 

             2  paper.

             3       Q.  Do you know, assuming this is oil, do you know 

             4  the date that this oil was deposited on the trestle 

             5  deck?

             6       A.  Do not.

             7       Q.  Do you have any reason to believe that fluid 

             8  shown on the trestle deck actually penetrated the 

             9  trestle deck to the ground or the riverbed beneath?  

            10       A.  Do I have any reason to believe?  

            11       Q.  Yes.  

            12       A.  The fact that the trestle deck was improperly 

            13  contained for the entire season and that there were 

            14  holes and gaps within the members would lead me to 

            15  believe that there's a high likelihood that if there's 

            16  an oil spill, that it would pass through the holes, and 

            17  that if there was a rain event, that it would get 

            18  transported to the river below because it was 

            19  insufficiently contained per the BMPs in Caltrans' BMP 

            20  manual which requires full containment of the trestle 

            21  deck.

            22       Q.  Do you know which BMP that is?

            23       A.  I believe it's NS13, but I'd have to check.  

            24  Yes, NS13, which states quite a few things which provide 

            25  watertight curbs or toeboards to contain spills and 




                                                                     91




                                                                       


             1  prevent materials, tools and debris from leaving the 

             2  bar's platform dock, et cetera.  I mean that's the most 

             3  specific one.

             4       Q.  Do you have any evidence that oil or equipment 

             5  fluids at any time actually penetrated the trestle deck 

             6  to the ground or riverbed beneath?

             7       A.  No.  We have evidence that there's oil spills 

             8  on the trestle deck and that there's holes in the 

             9  trestle deck that's uncontained.  We do not have any -- 

            10  It would be difficult to get an active photograph 

            11  showing the direct connection.  We rely on 

            12  self-monitoring by Caltrans and its contractors to 

            13  report to us when a discharge occurs.  

            14       Q.  Would you agree that the trestle deck provided 

            15  a measure of protection against spills on the riverbed 

            16  beneath?

            17       A.  A measure of protection?  

            18       Q.  Yes.  

            19       A.  Sure.

            20       Q.  Well, not just a measure of protection.  I 

            21  mean, in fact, we have no evidence that any spills 

            22  actually made it through the trestle deck to the 

            23  riverbed beneath; correct?

            24       A.  Correct.

            25       Q.  And as far as you know, it's entirely possible, 




                                                                     92




                                                                       


             1  isn't it, that every event in which a spill made it on 

             2  the trestle deck was prevented by the trestle deck from 

             3  reaching the riverbed below; correct?

             4       A.  Could be.  It's possible.

             5       Q.  And there's also evidence of other spill 

             6  prevention or clean-up measures in the photograph, 

             7  right?

             8       A.  They could be.

             9       Q.  Well, you notice there's absorbent pads and 

            10  rags in the photograph, right?

            11       A.  That's what it appears to me to be.

            12       Q.  And do you see that, for lack of a better word, 

            13  cat litter that's also in the image?

            14       A.  It could be cat litter.

            15       Q.  Well, I don't know that it's cat litter, but it 

            16  appears to me to be another method of soaking up and/or 

            17  collecting spilled fluids.  Does that seem like a 

            18  reasonable explanation of this material to you?

            19       A.  Yes.

            20       Q.  So would you agree from that that certainly 

            21  there was a program of spill prevention that was being 

            22  actively implemented on the trestle deck?  

            23       A.  There was a measure.  I would argue that it's 

            24  not a best management practice.

            25       Q.  Why would that not be a best management 




                                                                     93




                                                                       


             1  practice?  

             2       A.  Because there are no watertight curbs or 

             3  toeboards.

             4       Q.  What is a toeboard?

             5       A.  I believe it would be -- I don't exactly know.  

             6  I could only venture a guess what a toeboard is.

             7       Q.  Is there any specific requirement that the 

             8  trestle deck specifically be completely one hundred 

             9  percent watertight sealed?  

            10       A.  I'm sorry; your question is could it be a 

            11  hundred percent watertight?  

            12       Q.  No., I'm saying, my question is:  With respect 

            13  to this trestle deck, is there any requirement in the 

            14  certification that the trestle deck be a hundred percent 

            15  watertight sealed?

            16       A.  Well, let's see if I can do that.  The 

            17  connection that I believe we made was that condition 

            18  seventeen, "All activities, BMPs and associated 

            19  mitigation will be conducted as described in this permit 

            20  and the application submitted by the applicant for this 

            21  project," and Caltrans has a BMP that requires 

            22  watertight curbs and toeboards.

            23       Q.  And was that in the application submitted for 

            24  the project?

            25       A.  I do not know.




                                                                     94




                                                                       


             1       Q.  Turning to condition nine of the certification, 

             2  how does the photograph establish a violation of 

             3  condition nine?

             4       A.  Oil or petroleum products were allowed, well, 

             5  were discharged to a location where it may be washed by 

             6  rainfall the waters of the State.

             7       Q.  If a discharge on the trestle deck is cleaned 

             8  up through the use of absorbent rags or other methods to 

             9  the point where it no longer poses a danger that it 

            10  could be washed by rainfall into waters of the State, is 

            11  there still a violation of the certification?

            12       A.  Yes.

            13       Q.  Why is that if there's no possibility that it 

            14  would be washed into waters of the State?

            15       A.  Because it was discharged into a location that 

            16  it could be washed into waters of the United States.

            17       Q.  So then in your view, does it not matter what 

            18  form of clean-up might have been used to clean up fluids 

            19  spills, that the placement alone of or the existence of 

            20  a fluid spill, no matter what clean-up measures, 

            21  establishes a violation?

            22       A.  Yes.

            23       Q.  Hypothetically, let's say that fluid spills on 

            24  a dirt road near the project site, and immediately 

            25  thereafter, all of the dirt was then scouped up and 




                                                                     95




                                                                       


             1  taken away.  Has a violation occurred?

             2       A.  Yes.

             3       Q.  Turn to condition thirteen.  How does the 

             4  photograph establish a violation of condition thirteen?

             5       A.  Let me refer to the actual one.  "Operation of 

             6  equipment shall not result in a discharge or a 

             7  threatened discharge to waters of the United States."  

             8  That's what apparently has occurred.

             9       Q.  You'd agree that this isn't a discharge to 

            10  waters of the United States, right?

            11       A.  There is no evidence of that.

            12       Q.  Would you consider this is a threatened 

            13  discharge to waters of the United States?  

            14       A.  Yes.

            15       Q.  Even if appropriate measures are taken to clean 

            16  up, you know, it later being washed into waters?

            17       A.  It's a threatened discharge.  I do not have 

            18  evidence to show that it has been adequately cleaned up.

            19       Q.  If you could turn to the October 5th date, and 

            20  this is a violation that's based on a quote:  "Oil and 

            21  diesel stains on the gravel bar were ID for clean-up," 

            22  correct?

            23       A.  Correct.

            24       Q.  What's the source of that quote?

            25       A.  Engineering diaries.




                                                                     96




                                                                       


             1       Q.  Do you have a copy of the source document that 

             2  you can refer to?

             3       A.  It doesn't appear that I do right now in this.

             4       Q.  I'll let you take a look at my copy.  I just 

             5  have a one-page document that I'm handing you with some 

             6  highlighted language, if you could take a moment and 

             7  read that.  

             8       A.  Okay.

             9       Q.  Other than the quoted language, is there any 

            10  other information in that document that you believe 

            11  supports this violation on this day?

            12       A.  Well, there's a -- It continues to say, 

            13  "Hydraulic and oil leaks were noted from the problematic 

            14  backhoe moved back across the river and now working 

            15  along Highway 101."  So that adds some context.  It may 

            16  not be specifically relevant to what happened on the 

            17  gravel bar; I do not know, but it definitely relates to 

            18  leaky equipment.

            19       Q.  Other than the statements on that page, do you 

            20  have any other specific documents, photographs or 

            21  evidence supporting this violation on this date?

            22       A.  No.

            23       Q.  Does the report state when precisely the leak 

            24  occurred?

            25       A.  No.




                                                                     97




                                                                       


             1       Q.  Is it possible that the leak that was 

             2  identified in that entry occurred on a different date 

             3  than October 5th?

             4       A.  Yes.

             5       Q.  Is it possible that this statement refers to a 

             6  discharge that is covered by a different violation?

             7       A.  It is possible.

             8       Q.  Thank you.  Turn to the October 6th entry.  

             9       A.  Okay.  

            10       Q.  And for this, we have a quote and four 

            11  photographs; right?

            12       A.  Correct.

            13       Q.  Do you have the photographs in front of you?

            14       A.  I should, yes.  

            15       Q.  Let me start with the quote, then.  What is the 

            16  source of that quote?  

            17       A.  That was a notice of violation issued by Dean 

            18  Prat.

            19       Q.  And just to be clear, this is an October 30th, 

            20  2006 notice of violation issued by the Regional Board?

            21       A.  Correct.

            22       Q.  And so that quote is a statement in the notice 

            23  of violation, right?

            24       A.  Correct.

            25       Q.  Do you have or are you aware of any field 




                                                                     98




                                                                       


             1  notes, recorded observations, logs or similar 

             2  documentation collected by Dean Prat on that date of his 

             3  observations?  

             4       A.  No.  

             5       Q.  Would you take a look at the photographs?  The 

             6  first photograph, 061006-01, what does that show?

             7       A.  It is looking down from on top of the trestle 

             8  deck down to the South Fork Eel River, and it shows kind 

             9  of an overview of the construction site and the gravel 

            10  bar.

            11       Q.  This violation is based on the use of a backhoe 

            12  that was considered excessively leaky, correct?

            13       A.  Correct.

            14       Q.  What evidence in the photograph is there that 

            15  this is an excessively leaky backhoe?

            16       A.  None.  It just shows a backhoe in the gravel 

            17  bar.

            18       Q.  Turn to the second photograph, 061006-02.  Are 

            19  you there with me?

            20       A.  Yes.

            21       Q.  What is that photograph of?

            22       A.  A crane, a man kneeling down looking at the 

            23  plastic oil containment management practice underneath 

            24  the crane.

            25       Q.  Does that provide any evidence of an 




                                                                     99




                                                                       


             1  excessively leaky backhoe?

             2       A.  No.

             3       Q.  Turn to the third photograph.  What does this 

             4  show?  This is 061006-03.  

             5       A.  It shows, it's a close-up of the backhoe 

             6  depicted in 061006-01, the backhoe apparently, just 

             7  closer up on the gravel bar, apparently the one he's 

             8  describing.

             9       Q.  Is there anything in that photograph that 

            10  evidences an excessively leaky backhoe?

            11       A.  There is some plastic underneath.  It appears 

            12  to be some plastic underneath the backhoe that I could 

            13  guess as to what that's there for, but I do not know.  I 

            14  didn't take these photos.  I included them for support 

            15  to show what pictures from this inspection.

            16       Q.  Is it possible that the plastic sheeting you 

            17  see underneath the backhoe was simply a BMP and didn't 

            18  indicate any actual leaking?

            19       A.  It doesn't appear to be a BMP by the way that 

            20  it's placed underneath the backhoe, but it's possible 

            21  it's a BMP.

            22       Q.  Is there any evidence in that photograph of 

            23  actual leaks occurring?

            24       A.  I'd need the photo and to zoom in on it to see.

            25       Q.  Can you turn to the last photograph, 061006-04? 




                                                                    100




                                                                       


             1       A.  Okay.  

             2       Q.  What is that a photograph of?

             3       A.  A piece of equipment onsite.  I think it might 

             4  be a compressor, but I don't exactly know what it is.

             5       Q.  This photograph doesn't provide any evidence of 

             6  an excessively leaky backhoe; does it?  

             7       A.  No.

             8       Q.  Do you have any evidence that on this date, 

             9  leaks from this backhoe actually were discharged 

            10  anywhere onto a gravel bar, a road or anywhere else?

            11       A.  No.

            12       Q.  Let's assume that this was a leaky backhoe; 

            13  however, that any leaks were completely caught by 

            14  plastic sheeting and didn't penetrate through to the 

            15  gravel bar or anywhere else.  Would a violation have 

            16  occurred?

            17       A.  It depends if the plastic sheeting that was 

            18  containing the oil was a best management practice.  It 

            19  could have contained the oil and still not be a best 

            20  management practice.

            21       Q.  Well, let's assume that the use of the plastic 

            22  sheeting to prevent spills and discharges was the best 

            23  managment practice.  In that case, if the use of the 

            24  plastic sheeting captured and prevented any discharges 

            25  beneath, would a violation have occurred?




                                                                    101




                                                                       


             1       A.  Being idle the way it is in the photo, and the 

             2  reason I make that distinction is reading the permit 

             3  condition that states, "At no time shall the applicant 

             4  use any vehicle or equipment which leaks any substance 

             5  that may impact water quality."  So if it's leaking a 

             6  substance that may impact water quality, it could be a 

             7  violation.  We're talking hypotheticals, right?   

             8       Q.  We're talking hypotheticals.  

             9       A.  If it's a BMP in place that's contained and 

            10  there's no discharge, then we probably would not pursue 

            11  it as a violation.

            12       Q.  That wasn't exactly my question.  The question 

            13  was:  Would a violation have occurred if there was a 

            14  leak but that leak was completely captured by the use of 

            15  BMPs such as a plastic sheeting?  

            16       A.  It depends.  I imagine it wouldn't be leaking 

            17  if the equipment isn't being used, although it's a 

            18  hypothetical that could be a leak if it's not, but 

            19  according to condition thirteen, it looks pretty cut and 

            20  dry that if it's staged and it's being used and it's 

            21  leaking a substance that may impact water quality, it 

            22  could be a violation.  

            23           If the use of the BMP and containment of that 

            24  is argued that it could not possibly impact water 

            25  quality, then it could also be argued that it's not a 




                                                                    102




                                                                       


             1  violation.  

             2       Q.  Well, let me start just with condition nine.  

             3  Speaking just with respect to condition nine, if leaks 

             4  from a backhoe or other equipment were completely 

             5  contained by the use of BMPs such as plastic sheeting 

             6  but then plastic sheeting was thereafter cleaned, taken 

             7  away so that it didn't pose any later further threats to 

             8  water quality, would a violation of condition nine have 

             9  taken place?

            10       A.  No, I don't believe so.  Granted -- 

            11       Q.  You can stop there.  

            12       A.  Okay.  

            13       Q.  That's fine.  Turning to condition thirteen, if 

            14  you have a backhoe or other equipment and leaks are 

            15  completely caught by BMPs such as plastic sheeting and 

            16  that plastic sheeting is thereafter cleaned and taken 

            17  away and disposed of properly such that there's no 

            18  potential impact to water quality, has a violation of 

            19  condition thirteen taken place?

            20       A.  Probably not.  You're raising a hypothetical 

            21  that really is somewhat unrealistic in reviewing -- 

            22  Well, so perhaps, maybe not.  Maybe it's not 

            23  unrealistic, but in determining, in assessing compliance 

            24  with that, I would consult with Dean and Mona who have 

            25  more experience with assessing compliance of BMPs.  They 




                                                                    103




                                                                       


             1  wrote this language.  Dean wrote this language, and Mona 

             2  and them implement the permit.  So in terms of the 

             3  adequacy and the necessary use of a BMP and whether that 

             4  applies here -- The reason I'm mentioned just a second 

             5  ago that I thought it was a hypothetical that we 

             6  wouldn't normally address is because I didn't address it 

             7  here I guess is my point, that I made the assessment 

             8  based on staff observations and the photos just 

             9  supporting his observations from his inspection.

            10       Q.  I understand that there's other staff members 

            11  with the Board who might have different views on 

            12  violations.  

            13       A.  Sure.

            14       Q.  But I am asking you as the person who drafted 

            15  the complaint just what was the basis for some of these 

            16  violations.  

            17       A.  Sure.  

            18       Q.  And that's what I'm trying to ferret out.  

            19       A.  Sure.

            20       Q.  As I understand from your testimony, at least 

            21  in your view, that if equipment leaks are entirely 

            22  contained by BMPs such as plastic sheeting such that 

            23  there's no discharge, then condition thirteen would not 

            24  be violated?  

            25       A.  Correct.  




                                                                    104




                                                                       


             1       Q.  Is that a fair statement?

             2       A.  Yes.

             3       Q.  Thank you.  

             4       A.  I guess the key there is that it's fully 

             5  contained.  You could see a scenario where that if it's 

             6  raining, you know, and it may be fully contained, 

             7  there's a hypothetical that that containment could be 

             8  filled up with water and is still a threatened 

             9  discharge.  So the reason I hesitate in giving you that 

            10  black-and-white answer is just because I understand the 

            11  -- 

            12       Q.  You don't want to give me a black-and-white 

            13  answer?

            14       A.  Because of the complexity of the situation.

            15       Q.  It is a complicated situation, but by the same 

            16  token, I think that we certainly have situations here, 

            17  and I think we'll see a couple of them in a moment, 

            18  where we did have equipment that was, as it was 

            19  operating, entirely contained by a variety of different 

            20  BMPs such as there's no possibility of discharge to 

            21  anywhere outside of that containment measure, and I 

            22  think that my own view is that those efforts and those 

            23  BMPs implemented for the project deserve to be 

            24  recognized because I think the point of them was to 

            25  prevent discharges and also to recognize the fact that 




                                                                    105




                                                                       


             1  it doesn't matter how good you maintain equipment; 

             2  there's always a possibility of leaks.  Irrespective of 

             3  the language or the intent of the certification, that's 

             4  the practical reality.  I know there's no question 

             5  there.  

             6           MS. MACEDO:  Yes.  You said it wasn't your 

             7  deposition, so maybe you should stop testifying.  

             8           MR. HUNGERFORD:  I am providing context.

             9           MS. MACEDO:  Ask a question.  

            10           BY MR. HUNGERFORD:  

            11       Q.  If you could turn to the October 11th event, 

            12  here we have no photographs, but we have a quote; 

            13  correct?

            14       A.  Yes.

            15       Q.  What's the source of that quote?

            16       A.  Biological monitoring reports.

            17       Q.  Do you have a copy of the source document that 

            18  contains the quote in front of you?

            19       A.  I don't believe so.

            20       Q.  Do you need me to provide you with a copy, or 

            21  do you have one there?  

            22       A.  Please provide me with one.

            23       Q.  Sure.  Read that quickly.  

            24       A.  Okay.

            25       Q.  Other than that quote, do you have any evidence 




                                                                    106




                                                                       


             1  supporting this violation on this date?  

             2       A.  No.

             3       Q.  Is there any evidence of the date that -- Well, 

             4  let me back up.  The quote refers to a variety of 

             5  different types of equipment leaks; correct?

             6       A.  Correct.

             7       Q.  Does the document identify the date on which 

             8  any of those leaks occurred?

             9       A.  No.

            10       Q.  So is it possible that this is just kind of a 

            11  general perhaps atmospheric explanation that the 

            12  biological monitor decided to put into their records 

            13  rather than a description of events on a particular day?

            14           MS. MACEDO:  Objection, calls for speculation.  

            15           THE WITNESS:  Shall I still answer?  

            16           MR. HUNGERFORD:  Yes.  

            17           MS. MACEDO:  Yes.

            18           THE WITNESS:  It could be.  

            19           BY MR. HUNGERFORD:  

            20       Q.  There's a reference in there made to 

            21  excessively leaky equipment.  Do you see that?

            22       A.  Yes.

            23       Q.  This is the biological monitor's statement; is 

            24  that right?  

            25       A.  Yes.




                                                                    107




                                                                       


             1       Q.  Do you have any understanding of what 

             2  excessively leaky equipment might refer to?

             3       A.  It's a subjective comment.

             4       Q.  Do you have any information on the 

             5  qualifications of the biological monitor to consider 

             6  whether equipment is leaky, not leaky or excessively 

             7  leaky?

             8       A.  Other than his experience on the job site, no.

             9       Q.  Do you know which biological monitor it was 

            10  that made these statements?

            11       A.  No.  I'd have to look at the report.

            12       Q.  To your knowledge, were either Bradford Norman 

            13  or Carl Page qualified to make mechanical judgments 

            14  about construction equipment?

            15           MS. MACEDO:  Objection, calls for speculation.  

            16           MR. HUNGERFORD:  To your knowledge.  

            17           THE WITNESS:  I think that they are qualified 

            18  to make a statement of whether a piece of equipment 

            19  leaks excessively.

            20           BY MR. HUNGERFORD:  

            21       Q.  Did you as the drafter of this complaint place 

            22  any weight or reliance on the characterization of 

            23  equipment as leaky by the biological monitor?

            24       A.  Sure, I placed some weight.

            25       Q.  I'll ask it in another way.  The fact that the 




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             1  biological monitor described equipment as excessively 

             2  leaky, did that matter to you when you were preparing 

             3  the complaint?

             4       A.  What matters is that there's a leak.  

             5       Q.  So the fact that the biological monitor 

             6  describes certain equipment as excessively leaky, that 

             7  didn't play any role in your preparation of the 

             8  complaint?

             9           MS. MACEDO:  Objection, misstates his 

            10  testimony.  

            11           MR. HUNGERFORD:  Well, I'll rephrase the 

            12  question, then.  

            13           BY MR. HUNGERFORD:  

            14       Q.  Did the fact that the biological monitor 

            15  described the equipment as excessively leaky, did that 

            16  characterization play any role in your preparation of 

            17  the complaint?  

            18           MS. MACEDO:  That's been asked and answered, 

            19  but you can answer it again.  

            20           THE WITNESS:  I took this quote in its 

            21  entirety, and I believe that it does provide some weight 

            22  to the evidence.  It helps describe the situation.    

            23           BY MR. HUNGERFORD: 

            24       Q.  Does the characterization of equipment as 

            25  excessively leaky play any role in whether a violation 




                                                                    109




                                                                       


             1  occurred?

             2       A.  Whether or not a violation occurred, excessive 

             3  does not play a role in this context.  It's whether or 

             4  not a leak has occurred that had the potential to or 

             5  that was a threatened discharge and whether or not 

             6  equipment was being used that was leaky.

             7       Q.  Thank you.  Turn to the October 12th entry.  

             8  Actually, if I could take that document back.  

             9       A.  Sure.  

            10       Q.  Turn to the October 12th entry.  We have a 

            11  quote and three photographs, correct?

            12       A.  Correct.

            13       Q.  What is the source of the quote?

            14       A.  The biological monitoring reports.

            15       Q.  Do you have that in front of you?

            16       A.  Maybe.  Yes, I do.

            17       Q.  This is the biological monitor's report, 

            18  correct?

            19       A.  Yes.

            20       Q.  Do you know which monitor it was that made 

            21  these statements?

            22       A.  Carl Page.

            23       Q.  Turning to the photographs, we have what 

            24  appears to me to be photographs of different conditions 

            25  now.  The first photograph is 061012-01 and is a 




                                                                    110




                                                                       


             1  photograph of what appears to be the crane on the 

             2  trestle deck; correct?  

             3       A.  Yes.

             4       Q.  Now, referring back to the quote, the quote 

             5  refers to oil and diesel stains on the gravel bar.  So 

             6  based on that, does it appear to you that this 

             7  photograph is referring to the, I'm sorry, is related to 

             8  the statements made in the quote?  Let me back up.  I'll 

             9  ask it a different way.  

            10           The violation is based on alleged oil and 

            11  diesel stains on the gravel bar; correct? 

            12       A.  Correct.

            13       Q.  Does the first photograph of the crane on the 

            14  trestle deck provide any evidence supporting that 

            15  violation?

            16       A.  No.

            17       Q.  The second photograph which is 061012-02, that 

            18  shows a picture of what looks like a compressor; right?

            19       A.  Yes.

            20       Q.  And the compressor's on the gravel bar, 

            21  correct?

            22       A.  Yes.

            23       Q.  And there also appears to be plastic sheeting 

            24  under the compressor, correct?

            25       A.  Correct.




                                                                    111




                                                                       


             1       Q.  What evidence is there in this photograph of 

             2  oil and diesel stains in the gravel bar?

             3       A.  It is a related picture included in the 

             4  biological monitoring report adjacent to the quote 

             5  describing the gravel bar.  So it appeared to me that 

             6  that was relevant to the discharge.

             7       Q.  But the photograph doesn't actually show the 

             8  existence of any discharge in the gravel bar; does it?

             9       A.  It might.  If you were to zoom in, you can see 

            10  a dark spot on either wood or metal near the edge of the 

            11  plastic sheeting, and a man is looking in that 

            12  direction.

            13       Q.  Is that why you included this photograph as 

            14  evidence, that spot on the piece of metal?

            15       A.  That is one of the, that is -- The picture 

            16  provides context to the quote, and so I thought it was 

            17  relevant.

            18       Q.  Do you have any reason to think that the author 

            19  of the quote was relying on the operation of this 

            20  compressor as support for his quote?

            21       A.  I don't know.

            22       Q.  Turning to the third photograph, 061012-03, 

            23  that shows what looks like a track-mounted crane or 

            24  other piece of heavy equipment.  Would you agree with 

            25  that?




                                                                    112




                                                                       


             1       A.  Yes.

             2       Q.  Where was this photograph taken?

             3       A.  I don't know.

             4       Q.  Does it look like it's a place on the gravel 

             5  bar?

             6       A.  No, not necessarily.  I might want to clarify 

             7  that due to the quantity of leaky-equipment photographs 

             8  that we had, and I believe it describes this in the 

             9  complaint, that to show and to be as conservative as 

            10  possible so as not to ding on every single one, we 

            11  grouped for just leaky equipment.  We decided to 

            12  include, and this was our way of showing discretion, 

            13  many different photos of leaky equipment per day.  So I 

            14  believe in certain situations, we decided not to assess 

            15  penalties per photo but steady included all the leaky 

            16  equipment photos for that day in one violation.

            17       Q.  Okay.  That's fair.  By the same token, the 

            18  complaint alleges violations of ten thousand or more for 

            19  each one of these days; correct?

            20       A.  Well, that's the maximum potential.  It doesn't 

            21  necessarily allege or it doesn't -- I don't know the 

            22  term.  

            23       Q.  Sure, and I understand that you make 

            24  adjustments, but I just want to make sure that we 

            25  differentiate between, you know, kind of atmospheric 




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             1  photos of the type that I believe you're referring to 

             2  and also photos that directly support the existence of 

             3  violations on the days that you reference in the 

             4  complaint.

             5       A.  Well --

             6           MS. MACDEO:  There's no question.  

             7           MR. HUNGERFORD:  Right, there's no question.  

             8           BY MR. HUNGERFORD:  

             9       Q.  Do you understand what I'm saying?

            10       A.  I do.

            11       Q.  So photograph 061012-03, you don't have any 

            12  idea where this photograph was taken?  

            13       A.  Nope.

            14       Q.  Correct?  

            15       A.  Correct.

            16       Q.  But it does not appear to be on the gravel bar; 

            17  does it?

            18       A.  No.

            19       Q.  If you turn to the October 27th entry, here we 

            20  have another quote and three photographs; correct? 

            21       A.  Correct.

            22       Q.  Do you have the source of the quote of that 

            23  document in front of you?

            24       A.  Yes.

            25       Q.  If you would read that entry, please.  




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             1       A.  The entire entry?  

             2       Q.  For Friday, October 27th, since that's the date 

             3  that the violation's alleged.  

             4       A.  "Activities included..."

             5       Q.  I'm sorry; you don't have to read it.  I just 

             6  want you to familiarize yourself with it.  You don't 

             7  have to read out loud.  

             8       A.  Oh, I thought that's what you meant.

             9       Q.  No.  I'm sorry.  Okay?

            10       A.  Yes.

            11       Q.  Does the quote provide evidence of any specific 

            12  violation in a particular location on October 27th?

            13       A.  "Oil leaks continue to occur without adequate 

            14  clean-up or prevention."

            15       Q.  In any specific location?

            16       A.  No specific location.

            17       Q.  And then you see the sentence that follows 

            18  referring to overnight oil spots?

            19       A.  Yes.

            20       Q.  "Overnight oil spots are often not prevented 

            21  and typically just covered up with soil," do you see 

            22  that?

            23       A.  Yes.

            24       Q.  It would seem that this is a general statement 

            25  made by the biological monitor rather than a description 




                                                                    115




                                                                       


             1  of any specific discharge in a specific location on a 

             2  specific day.  Would you agree with that?

             3       A.  There are general statements.

             4       Q.  Do you see any reference to a specific 

             5  discharge in a particular location on this date?

             6       A.  No.

             7       Q.  Turning to the photographs, there are three of 

             8  them.  061027-01 is the first.  

             9       A.  Okay.

            10       Q.  What does that show?

            11       A.  It appears to show an oil leak behind a, behind 

            12  and on the track of a tractor.

            13       Q.  Do you have any evidence that that's oil, or is 

            14  that just an assumption on your part?

            15       A.  I said what appears to be, so yes.  I included 

            16  photos that could be supportive evidence of that quote.

            17       Q.  Do you know where this photograph was taken?

            18       A.  Not exactly, although you could see from 

            19  adjacent photos, I believe it's in uplands, and when I 

            20  say adjacent photos, I mean in the large context of the 

            21  photographic record, there's many, many, many photos by 

            22  the biological monitor.  All the contextual ones I 

            23  didn't include in here, but I believe it's an upland 

            24  location.

            25       Q.  What type of equipment is this; do you know?




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             1       A.  I don't recall.

             2       Q.  Do you know what upland location this is, how 

             3  far away from the river?

             4       A.  I don't recall.

             5       Q.  Turning to 061027-02, are you there?

             6       A.  Yes.

             7       Q.  This shows a picture of some form of 

             8  caterpillar equipment, correct?

             9       A.  Correct.

            10       Q.  Does this appear to you to be on the gravel bar 

            11  or taken from an upland location?

            12       A.  Upland location.

            13       Q.  And that's just based on the nature of the road 

            14  base; correct?

            15       A.  That and my recollection of the photographic 

            16  record.

            17       Q.  Do you know how far upland from the river?

            18       A.  No.

            19       Q.  Do you have any evidence as to the -- Let me 

            20  back up.  I'm assuming the reason this photograph is 

            21  included is because it shows a couple of small areas 

            22  underneath the caterpillar that show some form of fluid 

            23  on the rocks; correct?

            24       A.  Correct.

            25           MS. MACEDO:  Wait.  Correct that there's fluid 




                                                                    117




                                                                       


             1  on the rocks, or is that why you included the photo?  

             2  That's a compound question.

             3           THE WITNESS:  Well, that's what it appears to 

             4  show.  

             5           BY MR. HUNGERFORD:  

             6       Q.  Do you know that this is oil, or is it possible 

             7  it's some other type of fluid?

             8       A.  I don't know.

             9       Q.  Do you know whether this was cleaned up?

            10       A.  I do not.

            11       Q.  Do you know whether these stained areas were 

            12  created by this particular piece of equipment?

            13       A.  I do not.

            14       Q.  Turn to the next photograph, 061027-03.  What 

            15  does that show to you, the next photograph?

            16       A.  It shows some sort of fluid being, some of it 

            17  being contained by a plastic tarp.

            18       Q.  Do you see any fluid that's not contained by 

            19  the plastic tarp?

            20       A.  I do not.

            21       Q.  Do you know where this photograph was taken?  

            22       A.  Where?  

            23       Q.  Yes.  

            24       A.  No, although there may be other photos that 

            25  demonstrate that.




                                                                    118




                                                                       


             1       Q.  Do you know what piece of equipment this is?

             2       A.  I don't.  

             3       Q.  If you could turn to the October 28th entry.  

             4       A.  Okay.

             5       Q.  And this appears to be based on two 

             6  photographs, correct?

             7       A.  Correct.

             8       Q.  Are you aware of any log entries or other 

             9  documents that support violations on this date?

            10       A.  Not that I'm aware of.

            11       Q.  The first photograph is 061028-01, correct?

            12       A.  Correct.

            13       Q.  And that shows what appears to be a 

            14  stained-looking area on the ground; right?

            15       A.  Correct.

            16       Q.  Does this appear on the gravel bar or an upland 

            17  location to you?

            18       A.  Gravel bar.

            19       Q.  Do you know where on the gravel bar this is?

            20       A.  No.

            21       Q.  Do you know the type of equipment, if any, that 

            22  made this stain?  

            23       A.  No.

            24       Q.  Do you know what type of fluid it is that 

            25  created this?




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             1       A.  No.

             2       Q.  Do you know when this particular fluid was 

             3  discharged?

             4       A.  No.

             5       Q.  The next photograph, 061028-02, do you see 

             6  that?

             7       A.  Yes.

             8       Q.  Is that the same photograph that is dash 01 

             9  from the same day, just a blown-up version?

            10       A.  I don't believe that it's a blown-up version 

            11  because that means I would have zoomed in, had to 

            12  re-save it in a different document.  I'm pretty sure 

            13  they're distinct photos.  

            14       Q.  You didn't take the photographs, correct?

            15       A.  It could be the same photo that somebody else 

            16  did that to.  I didn't do that.  

            17       Q.  I'm sorry; I wasn't following you.  So this 

            18  could be the same stain, but it's certainly not the same 

            19  photograph?

            20       A.  Yes.

            21       Q.  If you could turn to the next entry which is 

            22  October 30th.  

            23       A.  Okay.

            24       Q.  And for this we have a longer series of 

            25  photographs, correct?




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             1       A.  Correct.

             2       Q.  And do we have any logs, reports, documents or 

             3  other evidence that you've identified in support of this 

             4  violation?

             5       A.  No.

             6       Q.  Take a moment and just spin through these 

             7  photographs if you could.  

             8       A.  Okay.

             9       Q.  To me, these photographs show a variety of 

            10  different conditions on the site.  Would you agree with 

            11  that?

            12       A.  Yes.

            13       Q.  What is the violation that's being alleged 

            14  here?

            15       A.  Conditions nine and thirteen of the 

            16  certification.

            17       Q.  Conditions nine and thirteen of the 

            18  certification on October 30th, 2006?

            19       A.  Yes.

            20       Q.  So what is the discharge here on that date that 

            21  violates the certification?

            22       A.  Well, on condition nine, no oil or petroleum 

            23  products shall be allowed to enter or be placed where 

            24  they may be washed into waters of the State, and that 

            25  appears to be the case in at least photos 02 and 03, 04,  




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             1  05.  

             2       Q.  Should I take it, then, that you're using a 

             3  variety of different conditions onsite to establish a 

             4  single violation for that day?

             5       A.  I believe I already described that that was our 

             6  method that we did uniquely for leaky equipment.

             7       Q.  Let me just go through the photographs.  

             8  061030-01, do you see that?

             9       A.  Yes.  

            10       Q.  It looks like a photograph of the crane on the 

            11  trestle deck.  Would you agree?

            12       A.  Yes.

            13       Q.  And there appear to be, you know, from a 

            14  distance, possible stains on the trestle deck.  Do you 

            15  see that?

            16       A.  Yes.

            17       Q.  Do you have any evidence that those stains were 

            18  created by this piece of equipment?

            19       A.  No.

            20       Q.  Do you see any active leaking from this piece 

            21  of equipment at this time?

            22       A.  Not from the picture I'm looking at.

            23       Q.  Do you have any information as to when those 

            24  stains were created?

            25       A.  No.




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             1       Q.  If you turn to the second photograph, it looks 

             2  like a picture of the trestle deck with a white piece of 

             3  equipment in the background.  Do you see that?

             4       A.  Yes.

             5       Q.  In the center of the photograph, it looks like 

             6  there was some form of discharge on the trestle deck; 

             7  correct?

             8       A.  Correct.

             9       Q.  Do you see some light kind of discoloration 

            10  around it suggesting to me at least that there was kitty 

            11  litter that had been placed there?

            12       A.  Yes.

            13       Q.  Do you have any information as to what type of 

            14  equipment, if any, created this discoloration?

            15       A.  No.

            16       Q.  Do you know when the discoloration was created?

            17       A.  No.

            18       Q.  There certainly is evidence, would you agree, 

            19  though, that whatever spilled on the trestle deck was 

            20  cleaned; correct?

            21       A.  Was attempted to be cleaned.  I cannot speak to 

            22  whether that was adequately cleaned up or not.

            23       Q.  Certainly some cleaning took place, correct?

            24       A.  Sure.

            25       Q.  Turning to the next photograph, 061030-03, it 




                                                                    123




                                                                       


             1  shows a track-mounted piece of equipment; correct?

             2       A.  Yes.

             3       Q.  And underneath we have one small wet area and 

             4  then a larger wet area to the right; correct?

             5       A.  Yes.

             6       Q.  Do you know where this picture was taken?

             7       A.  No.

             8       Q.  Does it appear to an upland location rather 

             9  than a gravel bar?

            10       A.  Upland.

            11       Q.  Do you know where in the uplands it was taken?

            12       A.  No.

            13       Q.  Do you know how far away from the river this 

            14  is?

            15       A.  No.

            16       Q.  Can you verify that this particular piece of 

            17  equipment made either or both of the stains that are 

            18  shown in the photograph?  

            19       A.  No.

            20       Q.  Do you know what the chemical composition is of 

            21  either of these stains?  

            22       A.  No.

            23       Q.  And do you know when this fluid was deposited 

            24  or placed on this ground surface?

            25       A.  No.




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             1       Q.  Turning to the next photograph, 061030-04 -- 

             2       A.  Yeah.

             3       Q.  And this appears to be a roadway, correct?

             4       A.  Yes.

             5       Q.  Is the reason this photograph is included 

             6  because of what looks to be staining in the center of 

             7  the roadway?

             8       A.  Yes.

             9       Q.  Do you know what that staining is?

            10       A.  No.

            11       Q.  Do you know when it was deposited there?  

            12       A.  No.

            13       Q.  Do you know how far away from the river this 

            14  location is?

            15       A.  I believe it's up by the resident engineer's 

            16  offices.  

            17       Q.  Which is how far away?

            18       A.  So in terms of distance, I don't really know.  

            19  I don't know the site enough to estimate a distance for 

            20  that.  You have to drive a circuitous road down.

            21       Q.  Is this a public road?

            22       A.  I don't know.  I think so.

            23       Q.  Do you know if it's project-related 

            24  construction equipment that created this discoloration 

            25  on the ground?




                                                                    125




                                                                       


             1       A.  I do not.

             2       Q.  It could have been a passenger vehicle; 

             3  couldn't it?

             4       A.  I don't believe passenger vehicles had access 

             5  to this site, well, other than project-related passenger 

             6  vehicles, but they could, absolutely.

             7       Q.  It's possible it could have been Dean Prat's 

             8  vehicle; true?

             9       A.  Is that a question?  Sure.  

            10       Q.  I'm not suggesting it is.  

            11       A.  I don't think he was down there on that day, 

            12  but -- 

            13       Q.  Well, good point.  We don't actually know when 

            14  this discoloration occurred?

            15       A.  No.

            16       Q.  Turning to the next photograph, 061030-05, do 

            17  you see that?

            18       A.  Yes.

            19       Q.  And so again, we have what appears to be the 

            20  trestle deck?

            21       A.  Yep.

            22       Q.  Is there any equipment insight?

            23       A.  No.

            24       Q.  We see some discoloration of the trestle deck, 

            25  correct?




                                                                    126




                                                                       


             1       A.  Correct.

             2       Q.  Is there anything that appears to be ponded 

             3  fluid in this location?

             4       A.  No.

             5       Q.  Just discolorations, right?

             6       A.  Yes.

             7       Q.  Do you know when those discolorations occurred?

             8       A.  No.

             9       Q.  We don't know what type of equipment, if any, 

            10  made them?  

            11       A.  No.  

            12       Q.  Right?  

            13       A.  Correct.

            14       Q.  Photograph 061030-06, this shows a picture of 

            15  water?

            16       A.  I don't think that was included in this 

            17  reference.  It goes from 05 and skips to 08.  

            18       Q.  Okay.  That would explain that.  So turning to 

            19  061030-08, and we see here what appears to be a close-up 

            20  of the trestle deck; correct?

            21       A.  Yes.  

            22       Q.  And I don't see any staining or discoloration; 

            23  do you?

            24       A.  No.

            25       Q.  I'm assuming the reason that you included this 




                                                                    127




                                                                       


             1  is because it shows a hole in the trestle deck; correct?

             2       A.  Yes.

             3       Q.  Do you have any evidence that any type of fluid 

             4  whatsoever penetrated that hole and made it below the 

             5  trestle deck?

             6       A.  No.

             7       Q.  Do you have any evidence to suggest that 

             8  vehicles passed over the location of, the precise 

             9  location of this hole?

            10       A.  No.

            11       Q.  Turning to the next photograph, 061030-09 -- 

            12       A.  Yes.

            13       Q.  It looks like another view of the trestle deck, 

            14  correct?

            15       A.  Yes.

            16       Q.  Is this the same hole that we saw in the last 

            17  photograph?

            18       A.  I don't know.

            19       Q.  It certainly appears to be, that or a similar 

            20  hole; correct?

            21       A.  Yes, it's very similar.

            22       Q.  Do you see any evidence of staining or 

            23  discoloration?  

            24       A.  No.

            25       Q.  Do you have any evidence that any fluid passed 




                                                                    128




                                                                       


             1  through this hole beneath?  

             2       A.  No.

             3       Q.  Do you see up to the top left of the photograph 

             4  where there is a large, it looks like a four-by-four or 

             5  six-by-six heavy piece of wood?

             6       A.  Yes.

             7       Q.  Are you familiar with the layout of the trestle 

             8  deck from this photograph?

             9       A.  It didn't look like this when I visited it.

            10       Q.  Did you ever walk on the trestle deck or see 

            11  it?

            12       A.  Yes.

            13       Q.  Did you notice that there was a worker walkway 

            14  on the edge of the trestle deck where there is an 

            15  equipment passage in the middle?

            16       A.  I don't quite recall.  It was covered with 

            17  filter fabric at the time, and I don't recall.

            18       Q.  I'll represent to you that this is a photograph 

            19  of the walkway where workers would traverse rather than 

            20  an area where equipment actively traveled.  Do you have 

            21  any reason to disagree with that?

            22       A.  Just there's some wheels.

            23       Q.  In the background?

            24       A.  In the background that appear to be encroaching 

            25  on that walkway area.  




                                                                    129




                                                                       


             1       Q.  Do you see the mesh on the right-hand side of 

             2  the photograph?

             3       A.  Yes.

             4       Q.  Do you know what that is?

             5       A.  Plastic mesh.

             6       Q.  Do you know what its function is?

             7       A.  The function that Caltrans employed it for?  

             8       Q.  Yes.  

             9       A.  No.

            10       Q.  Turning to the next photograph, 011030-10 -- 

            11       A.  Yes.

            12       Q.  This appears to be a photograph of the trestle 

            13  deck, correct?

            14       A.  Correct.

            15       Q.  What is the purpose for including this 

            16  photograph?

            17       A.  It provides context.

            18       Q.  Context for what?

            19       A.  The size of the gaps between the trestle beams.

            20       Q.  There's an image on a cell phone in the middle 

            21  of the photograph, correct?

            22       A.  Yes.

            23       Q.  And the cell phone has been placed there as 

            24  context for the size of the gap in the trestle beam I'm 

            25  assuming?  




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             1       A.  Yes.

             2       Q.  You didn't take this photograph, though; did 

             3  you?

             4       A.  I did not.

             5       Q.  This was taken by the biological monitor?

             6       A.  Yes.

             7       Q.  So presumably, that's his cell phone?

             8       A.  Yes, presumably.

             9       Q.  Is there any document or report by the 

            10  biological monitor that you can connect to this 

            11  photograph for this particular day?

            12       A.  10/30, there is one entry for October 30th.  

            13  Whether -- I'll leave it at that, leave my answer at 

            14  that.

            15       Q.  Okay.  Is there any evidence in there or 

            16  otherwise of any discharge that took place through this 

            17  space in the trestle deck?

            18       A.  No.

            19       Q.  Do you know what's below this space?

            20       A.  I do not know what's below this space, but I 

            21  just want to correct my last statement and just state 

            22  that the biological monitoring report for that date has 

            23  an intro paragraph.  It does refer to oil and hydraulic 

            24  leaks from the trestle deck.  It's referring to them in 

            25  general.  It's not necessarily stating a specific date 




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             1  and time, but it's referring to them.

             2       Q.  To your knowledge, is the location of this gap 

             3  in the trestle deck next to the cell phone an area where 

             4  vehicles traveled?

             5       A.  I don't know.

             6       Q.  You don't know?

             7       A.  I don't know.

             8       Q.  And turning to the last photograph in this 

             9  series for this date, 061030-11, and this looks to be a 

            10  portion of the trestle deck?

            11       A.  Correct.

            12       Q.  Does that seem right to you?

            13       A.  Yes.

            14       Q.  Why was this photograph included as an exhibit 

            15  to the complaint?

            16       A.  Context.

            17       Q.  What does it provide context of?

            18       A.  Timing of the project and the fact that the 

            19  trestle does not appear to be completed all the way to 

            20  the other side.

            21       Q.  Do you know for a fact that this is the trestle 

            22  deck?  

            23       A.  I'd have to refer to the sequence of photos in 

            24  the photographic record, but it is my recollection from 

            25  reviewing those that it is the trestle deck.  I did not 




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             1  take the photos, so I could not guarantee without -- I 

             2  just couldn't guarantee it.  I didn't take it.

             3       Q.  Does the photograph provide any evidence of 

             4  discharges on October 30th, 2006 of any type?

             5       A.  Not that I can see from here.

             6           MR. HUNGERFORD:  Let's take a short break.  

             7           (Recess held.) 

             8           BY MR. HUNGERFORD:

             9       Q.  We're at October 31st under the A dash B 

            10  matrix, and we have a photograph designated 061031-01; 

            11  is that correct?

            12       A.  This is October 31st?  

            13       Q.  Yes.  

            14       A.  Mine says 04.

            15       Q.  Can I see the photograph you've got because I 

            16  want to make sure we're looking at the right thing.  

            17       A.  (Witness indicating).

            18       Q.  Yes, same photo.  Other than the photograph, do 

            19  you have any other logs, reports, documents or other 

            20  evidence supporting this violation on this date?  

            21       A.  No.

            22       Q.  And the photograph is of the interior of a 

            23  wheel of a large piece of construction equipment.  Does 

            24  that appear to be --

            25       A.  Yes.




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             1       Q.  And there appears to be a leak of some form of 

             2  grease or other fluid from the inside of the wheel; 

             3  correct?

             4       A.  Uh-huh, yes.

             5       Q.  Do you know what type of fluid that is?

             6       A.  No.

             7       Q.  Do you know where this photograph was taken?

             8       A.  Where?  

             9       Q.  Yes.  

            10       A.  No.

            11       Q.  Does it appear to be in an upland location?

            12       A.  Yes.

            13       Q.  Do you know what upland location?

            14       A.  Not without reviewing the rest of the 

            15  photographic record.

            16       Q.  Let's go to the next date, November 3rd, 2006.  

            17  Here we have a quote that you've provided with no 

            18  photographs; correct?

            19       A.  Correct.

            20       Q.  Can you please turn to the source of the quote 

            21  if you have that?

            22       A.  It doesn't look like I have it.

            23       Q.  I can provide you with my copy.  Why don't you 

            24  take a moment to review that?

            25       A.  Okay.




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             1       Q.  Who's the author of the quotation?

             2       A.  I believe it's Walt Dragaloski.

             3       Q.  Can you describe what document it is that 

             4  you're reviewing?  

             5       A.  It's an e-mail from Walt to Ron Denheyer, cc to 

             6  various other Caltrans employees.

             7       Q.  And the quote that you've included as part of 

             8  the complaint indicates that the crane used on the 

             9  trestle deck is leaking; correct?

            10       A.  Yes.

            11       Q.  Does it state the date, a specific date that 

            12  that leak or any leak occurred?

            13       A.  Well, the beginning of the e-mail states that 

            14  he observed the leak on -- At the beginning of the 

            15  e-mail, he gives a date that leads me to believe that he 

            16  made this observation on that date.

            17       Q.  The first sentence in your quote says, "The 

            18  crane being used in the trestle deck has leaking 

            19  fluids," and then it goes on to say, "This has been 

            20  noted many times earlier."

            21       A.  Uh-huh.  

            22       Q.  So that's the basis for your conclusion that 

            23  this particular leak occurred on this date?

            24       A.  Yes.

            25       Q.  And the quote then goes on to say that the 




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             1  leaks have been captured by plastic which has been 

             2  placed underneath the crane; correct?

             3       A.  It states the plastic catches the oil and storm 

             4  water.

             5       Q.  Do you know if on this date there was an oil 

             6  leak that escaped the plastic containment and discharged 

             7  onto the trestle deck?

             8       A.  On this date?  

             9       Q.  Yes.  

            10       A.  No.  I just have this quote to go by.

            11       Q.  Are there any photographs or other documents 

            12  that support this violation on this day?

            13       A.  No.

            14       Q.  Okay.  Let me take that back.  Two pages?  

            15       A.  Two pages.  

            16       Q.  We're now moving into appendix A dash C, and 

            17  this describes a series of allegations relating to 

            18  welding slag and steel cuttings; correct?

            19       A.  Yes.

            20       Q.  The first date is September 15th, 2006, for 

            21  which a violation is alleged in this category; is that 

            22  right?

            23       A.  Yes.

            24       Q.  And you have a quote from a document.  What is 

            25  the source of that quote?




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             1       A.  Engineering diaries.

             2       Q.  Do you have a copy of that in front of you?

             3       A.  Yes.

             4       Q.  Why don't you take a moment to read that real 

             5  quick?  

             6       A.  Okay.

             7       Q.  Okay?  

             8       A.  Yes.  

             9       Q.  This is an assistant resident engineer's daily 

            10  report by John Railey; correct?

            11       A.  Yes.

            12       Q.  And this is dated September 15th, 2006; right?

            13       A.  Yes.

            14       Q.  And the quote says, "Noticed some minor slag 

            15  dropping into the channel," right?  

            16       A.  Yes.

            17       Q.  What is slag?

            18       A.  I believe it is when you're welding two pieces 

            19  of metal together.  It's either that or steel cutting.  

            20  I guess it could depend on the situation.  I'm not too 

            21  familiar.  I don't cut steel, and I don't weld things 

            22  together very often, ever really, but apparently it's 

            23  metal shavings, maybe hardened metal.  

            24       Q.  So your understanding is that it generally is 

            25  some form of metal or steel?




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             1       A.  Yes.

             2       Q.  A piece or cut or something?

             3       A.  Yes.

             4       Q.  When the description is of minor slag, do you 

             5  have any sense for what that describes?

             6       A.  No.

             7       Q.  Do you have any information as to what the 

             8  composition is of slag that was being observed in this 

             9  report?

            10       A.  No.

            11       Q.  Now, there are a number of other violations in 

            12  this category that relate to slag; correct?

            13       A.  (Witness nods head.) 

            14           MS. MACEDO:  Yes?

            15           THE WITNESS:  Yes. 

            16           BY MR. HUNGERFORD:  

            17       Q.  Other than on this particular day? 

            18       A.  Yes.  

            19       Q.  And we'll go through those in a minute.  Does 

            20  the Regional Board have any evidence as to the impacts 

            21  on water quality from slag dropped into the river 

            22  channel?

            23       A.  It would be considered a form of sediment at 

            24  that point I would imagine, unnatural sediment.  

            25       Q.  Is it something that would create turbidity, 




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             1  then?

             2       A.  Not that I am aware of, although I guess it's 

             3  possible.  I did see one photo in the photographic 

             4  record where near some welding activities, there 

             5  appeared to be some black water, and I could see that 

             6  that could be possible.

             7       Q.  Do you have any information that would suggest 

             8  introducing welding slag into a water body would create 

             9  an adverse impact on water quality in any way?

            10       A.  Well, at a minimum, it would be considered 

            11  sediment once it's there.

            12       Q.  Any toxic effects that you're aware of?

            13       A.  No.

            14       Q.  Any impacts to fish or wildlife that you're 

            15  aware of?

            16       A.  Other than the impacts that sediment would 

            17  have, no.

            18       Q.  Do you have any sense for the total volume of 

            19  welding slag that might have been introduced into the 

            20  riverbed as a result of this particular day's 

            21  activities?

            22       A.  No.

            23       Q.  What about collectively over the course of the 

            24  project?

            25       A.  I have no idea.




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             1       Q.  You've identified this as a violation of 

             2  condition nine, correct?

             3       A.  Yes.

             4       Q.  Briefly if you can, explain the basis for that.  

             5       A.  It would be considered debris from a 

             6  construction activity not authorized by the permit that 

             7  was allowed to enter into waters of the State.

             8       Q.  Are you aware of whether any BMPs were used or 

             9  implemented at any point to capture slag or minimize 

            10  discharge of slag?

            11       A.  There was one point where -- I have to read 

            12  through the complaint.  I believe it describes it in 

            13  there, that a BMP was developed.  That is my 

            14  understanding of it.  Up until that point, the original 

            15  BMP was angle of the welding equipment in an attempt to 

            16  minimize directional spray or slag entering the water, 

            17  entering the river, which wouldn't be considered by the 

            18  Regional Board as best management practice, and at some 

            19  point, it was brought up with the operators onsite, and 

            20  they changed their management practice to include a 

            21  five-gallon bucket below the welder.  

            22           Then at another point later on, I believe 

            23  Caltrans laid down a fire-retardant blanket on part of 

            24  the bank or bank of the river to catch some welding 

            25  slag, but I don't believe the Regional Board would 




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             1  consider any of those best management practice. 

             2       Q.  So it's fair to say that a concern was raised 

             3  about discharges of welding slag, and that thereafter, a 

             4  number of practices were implemented to minimize or 

             5  eliminate those discharges; correct?

             6       A.  Correct.

             7       Q.  Now, why is it that you wouldn't consider the 

             8  use of buckets or blankets as best management practices?

             9       A.  Because it was demonstrated that they were 

            10  insufficient to contain welding slag, and based on the 

            11  photos that I have seen, it doesn't appear that a 

            12  five-gallon bucket could ever adequately contain the 

            13  spray from welding, and that from that high up, the 

            14  spray gets disbursed over a large area when it falls, 

            15  and unless this fire-retardant blanket is covering an 

            16  entire area of where any welding is occurring, if 

            17  welding slag is reaching an area of waters of the State 

            18  or the U.S., then it is being insufficiently implemented 

            19  to be a best management practice.

            20       Q.  Does the Regional Board dictate what best 

            21  management practices have to use at Caltrans for this 

            22  project?

            23       A.  I guess I don't know what you mean by dictate 

            24  in that sense.

            25       Q.  Well, how much latitude does Caltrans have to 




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             1  develop their own best management practices to address 

             2  conditions occurring onsite?  

             3       A.  It is my understanding that that is the 

             4  process, that Caltrans proposes BMPs and then addresses 

             5  them over time to make them better with communication 

             6  with the Regional Water Board.

             7       Q.  Does the Regional Board need to approve or sign 

             8  off on each of those BMPs and any iterations?

             9       A.  I'm not too familiar with that.  I would refer 

            10  to one of my colleagues .

            11       Q.  To your knowledge -- 

            12       A.  I don't know.  

            13       Q.  -- is that a requirement of the certification 

            14  that the Regional Board actually approve BMPs or changes 

            15  to BMPs made by Caltrans?

            16       A.  I don't believe that the certification directly 

            17  requires it, although it does require implementation of 

            18  the BMPs, of adequate BMPs.

            19       Q.  You've just defined a BMP as something that 

            20  will completely eliminate a discharge; is that correct?

            21       A.  It will protect the water quality objectives in 

            22  the Basin Plan.

            23       Q.  Is a complete elimination of discharges 

            24  required to protect water quality objectives in the 

            25  Basin Plan?




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             1       A.  It is my understanding that this water body is 

             2  impaired for sediment, and I don't believe there was any 

             3  waste-load allocation for this site for sediment 

             4  discharges.

             5       Q.  Well, let me just take a moment and talk about 

             6  sediment since you brought that up.  Is it fair to state 

             7  that a certain amount of sedimentation wouldn't be a 

             8  violation of the certification if appropriate BMPs were 

             9  carried out?

            10       A.  I couldn't say that.

            11       Q.  Well -- 

            12       A.  The 401 cert. describes prohibitions.

            13       Q.  Well, let's go back to the welding slag.  You 

            14  said something that was interesting, and that is that 

            15  the blankets and buckets wouldn't be considered best 

            16  management practices by the Regional Board, and my 

            17  question is:  If this is a problem, the discharge of 

            18  welding slag, that wasn't identified before the project 

            19  began but thereafter during the project was identified 

            20  as an issue and the uses of blankets and buckets were 

            21  implemented to address that problem, why wouldn't that 

            22  qualify as best management practices?

            23       A.  Even after the implementation of the bucket 

            24  measures, bucket BMP, there's still photos showing 

            25  over-spray, that welding slag's not being contained by 




                                                                    143




                                                                       


             1  the buckets.  

             2           The fire-retardant blanket, I can't per se say 

             3  that.  I would just -- If you had, if you're over the 

             4  active channel, like it's not going to work unless it's 

             5  underneath where you're working and it's fully 

             6  containing the over-spray, and that would be considered 

             7  a BMP if it's implemented properly. 

             8       Q.  Does the Regional Board have any guidelines or 

             9  other recommended best management practices that it 

            10  offered to Caltrans to address the welding slag issue?

            11       A.  Not that I know of.

            12       Q.  Are you aware generally of any best management 

            13  practices or guidelines that the Regional Board 

            14  recommends to address that issue irrespective of this 

            15  project?

            16       A.  No.

            17       Q.  Turn to the 9/21, September 21st entry.  

            18       A.  Uh-huh.

            19       Q.  Here we have a quote and a photograph.  What is 

            20  the source of the quote?

            21       A.  It appears to be the response to the notice of 

            22  violation.  

            23       Q.  Specifically, do you have the document that's 

            24  the source of the quote?

            25       A.  I think I do.  I'd have to find it.




                                                                    144




                                                                       


             1       Q.  I'd be happy to give you my copy.  Can you 

             2  describe what that is?

             3       A.  This is an e-mail from Walt Dragaloski to Ron 

             4  Denheyer and others.

             5       Q.  And take a quick moment to just review that.  

             6  Okay?

             7       A.  Uh-huh.

             8       Q.  It says, and I'm paraphrasing, that when the 

             9  next weekly biological monitoring report comes out, it 

            10  will contain information regarding a discharge of 

            11  welding slag; correct?

            12       A.  Correct.

            13       Q.  Does it identify a particular date of when that 

            14  discharge occurred?  

            15       A.  No.

            16       Q.  Is it possible that it could be referring to 

            17  the discharge that we just reviewed for September 15th?

            18       A.  It is possible.

            19       Q.  And we also have a photogragh which is 

            20  060921-01; correct?

            21       A.  Correct.

            22       Q.  And that's a photograph which appears to show 

            23  sparks falling in or around the river; correct?

            24       A.  Correct.

            25       Q.  Is that welding slag, as you understand welding 




                                                                    145




                                                                       


             1  slag to be defined?

             2       A.  Either that or steel shavings, steel cutting.  

             3  I didn't bother to make the distinction between the two, 

             4  although they're referred to specifically throughout the 

             5  document.  I'm not familiar enough to worry about the 

             6  distinction as it appears to me the discharge is 

             7  similar.

             8       Q.  You note from the document you have in front of 

             9  you that it indicates that certain best management 

            10  practices were attempted to prevent the discharge of 

            11  welding sparks; correct?

            12       A.  It says there were no BMPs in place to help 

            13  prevent the discharge.

            14       Q.  Well, I'm looking at the part of the quote that 

            15  says that the contractor attempted to prevent discharge 

            16  by placing a five-gallon bucket underneath the welding 

            17  locations.  Do you see that?

            18       A.  It appears to me that that occurred after the 

            19  discharge, after there were no BMPs in place to help 

            20  prevent the discharge.  

            21       Q.  So first of all, the quote refers to events of 

            22  a date that we don't know because it's not stated; 

            23  correct?

            24       A.  Correct.

            25       Q.  And so then it goes on to say that the 




                                                                    146




                                                                       


             1  contractor made efforts to prevent discharges by using a 

             2  bucket underneath the welding locations; right?

             3       A.  Correct.  

             4       Q.  And it also says that buckets were of limited 

             5  effectiveness because of windy conditions; correct?

             6       A.  Correct.

             7       Q.  So it's fair to state that this passage at 

             8  least shows that there was efforts to introduce 

             9  management practices to minimize discharges; correct?

            10       A.  Correct.

            11       Q.  To your knowledge, were there any other methods 

            12  that could have been implemented to prevent discharges 

            13  during windy conditions of welding sparks?

            14       A.  Sure.

            15       Q.  What?

            16       A.  You could provide containment around the sides 

            17  where the welding is occurring.

            18       Q.  Did you ever visit the site?

            19       A.  Yes.  

            20       Q.  While the welding was taking place?

            21       A.  I don't recall welding occurring while I was 

            22  there.

            23       Q.  Do you have an understanding of where the 

            24  welding took place underneath the structure?

            25       A.  Yes.




                                                                    147




                                                                       


             1       Q.  Do you have any sense for the ease or 

             2  difficulty of installing containment completely around 

             3  the welding area?

             4       A.  I have a sense that it would be somewhat 

             5  difficult --

             6       Q.  Have you ever --

             7       A.  -- although I also have a sense that there are 

             8  relatively simple solutions that would be more 

             9  practicable and effective than what they did.  

            10       Q.  Is that your own just personal belief, or are 

            11  there Regional Board guidelines or recommendations?

            12       A.  There are no guidelines or recommendations that 

            13  I know of.

            14       Q.  You mentioned you've never done welding, 

            15  correct?

            16       A.  Correct.

            17       Q.  And I'll represent to you that some of these 

            18  welding locations were -- The welder was actually 

            19  strapped upside down to the bottom of the bridge in what 

            20  would be considered a rather dangerous location.  Do you 

            21  have any reason to disbelieve that?

            22       A.  I do not.

            23       Q.  Do you have any sense for what would be an 

            24  appropriate and safe best management practice to reduce 

            25  welding sparks in that sort of a situation where you 




                                                                    148




                                                                       


             1  have those sort of dangerous situations present?

             2           MS. MACEDO:  Other than what he stated?  

             3           MR. HUNGERFORD:  Sure.

             4           THE WITNESS:  I could hypothesize there were 

             5  situations where there was a cage where a man would 

             6  stand in, an extension on it, you know, reasonably so in 

             7  a dangerous location.  However, suspension of a 

             8  fire-retardant blanket beneath the location where the 

             9  welder is doing their work is a best guess on my part.  

            10  I guess I'm not allowed to make guesses, so that would 

            11  be my best professional opinion.

            12           MR. HUNGERFORD:  Sure.

            13           THE WITNESS:  However, I don't know the 

            14  economics of doing this, so I am letting you know that 

            15  that is -- 

            16           BY MR. HUNGERFORD:

            17       Q.  It's what you personally believe?

            18       A.  That I might suggest as a Water Board employee 

            19  if presented with a problem from Caltrans if they were 

            20  to have brought to my desk that, A, "We have a problem 

            21  here with welding slag," I might just throw something 

            22  out and suggest it, and then Caltrans and MCM 

            23  contractors could come back.  It's a process, and we 

            24  could have an open dialogue discussion about what is a 

            25  realistic BMP.  I don't believe that ever happened.  




                                                                    149




                                                                       


             1       Q.  Are you familiar with any welding slag 

             2  discharges at any other projects or that were reviewed 

             3  by the Regional Board in any other situation other than 

             4  at Confusion Hill?

             5       A.  I am not.

             6       Q.  Are you familiar with any other management 

             7  practices taken at any other projects relating to 

             8  welding slag outside of Confusion Hill?

             9       A.  No.

            10       Q.  Have you had any conversation with anyone 

            11  within the Regional Board as to what management 

            12  practices should have been in place apart from buckets 

            13  or blankets that were used for this project?

            14       A.  I've had conversations with both Dean and Mona.  

            15  I do not recall specifics, although specific suggestions 

            16  of what would be used as BMPs, other than what was done 

            17  was insufficient.

            18       Q.  I'll take that one back.  If I could turn your 

            19  attention to the October 6th entry, and here we have a 

            20  quote from a biological monitoring report.  I'm sorry; 

            21  we actually have two quotes, one from a bio monitoring 

            22  report.  

            23       A.  What date are we talking about?  

            24       Q.  This is October 6th, 2006.  

            25       A.  I don't see a quote from a biological 




                                                                    150




                                                                       


             1  monitoring report.

             2       Q.  Let's see here.  

             3       A.  Maybe I do.  Wait a second.  

             4       Q.  It looks like two quotes were used to support 

             5  this violation; is that right?

             6       A.  Well, I see two violations on October 6th.

             7       Q.  There are two.  I'm speaking of the first.  

             8       A.  Okay.  

             9       Q.  It's a quote that begins with -- There's two of 

            10  them.  The first begins with, "Staff observed welding on 

            11  the temporary testle," and the second quote begins with, 

            12  "Molten slag was observed dripping."

            13       A.  Correct.  

            14       Q.  Do you see that?  

            15       A.  Yes.

            16       Q.  The first quote, do you know the source of that 

            17  quote?

            18       A.  I believe that it's from the notice of 

            19  violation from October 30th, I believe, although the 

            20  reference, the footnote reference doesn't appear to go 

            21  to that.  It appears to reference a different document, 

            22  so I'd have to crosscheck for accuracy.

            23       Q.  Well, let's start just with the NOV.  So the 

            24  first quote is texted out as the October 30th notice of 

            25  violation, correct?




                                                                    151




                                                                       


             1       A.  I believe so.

             2       Q.  Are you aware of any logs, reports, recorded 

             3  observations, or other data in the Regional Board's 

             4  files making the observations that are in this letter?

             5       A.  The letter is the only document that I know of.

             6       Q.  Was this Dean Prat who made these observations?

             7       A.  Yes.

             8       Q.  And the second quote, what is that attributed 

             9  to?

            10       A.  What do you mean what is it attributed to?  

            11       Q.  What's the source of that quote?

            12       A.  I believe it's the engineer diaries.

            13       Q.  Do you have a copy of that?  I actually believe 

            14  that was a biological monitoring report.  I have a copy 

            15  if you don't.  

            16       A.  October 6th, right?  

            17       Q.  Yes.  

            18       A.  No, I have a copy.

            19       Q.  You do?

            20       A.  Yes.

            21       Q.  Just take a moment and read the October 6th 

            22  entry.  

            23       A.  Okay.

            24       Q.  Other than the quoted section, is there any 

            25  other information in that report that you believe 




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             1  supports this violation?

             2       A.  No.

             3       Q.  Do you have any sense from both of these 

             4  references, the notice of violation and the bio 

             5  monitoring report, whether they're referring to the same 

             6  event?

             7       A.  I do not.

             8       Q.  Do you have any sense from either of those 

             9  reports as to how much welding slag was discharged?

            10       A.  No.

            11       Q.  If you turn to the October 6th entry -- 

            12       A.  You mean the second?  

            13       Q.  Yes, the second October 6th entry.  We have a 

            14  quote and a photograph; correct?

            15       A.  Uh-huh.

            16       Q.  And the quote is again from the same notice of 

            17  violation on October 30th, correct?  

            18       A.  Correct.

            19       Q.  And again the same question, do we have any, in 

            20  the Regional Board's files, any logs, reports, field 

            21  notes of that particular visit?

            22       A.  No, not that I'm aware of.

            23       Q.  Not that you're aware of?

            24       A.  Correct.

            25       Q.  But if they did exist, they would have been 




                                                                    153




                                                                       


             1  produced in this set; correct?

             2       A.  Yes.

             3       Q.  In this set of documents here, I'm going to 

             4  make an assumption that e-mails occurred between staff 

             5  members relating to the Confusion Hill Project.  If 

             6  those e-mails existed, would they have been printed and 

             7  included in that set of documents?

             8       A.  Between staff members, I don't believe so 

             9  because we included our attorneys on those e-mails.

            10       Q.  So they would have been withheld from 

            11  production?

            12       A.  Yes.  

            13       Q.  Are you just saying that in a general sense, or 

            14  are you aware specifically that -- 

            15       A.  General sense.

            16       Q.  Are you aware of any e-mails or other documents 

            17  that were withheld from production based on privilege or 

            18  other reasons?

            19       A.  I'm sure there are some e-mails that are not in 

            20  there, so I guess my answer is yes.

            21       Q.  So you believe there were some materials 

            22  withheld?

            23       A.  Yes.

            24       Q.  If you would turn to the photograph.  

            25       A.  Okay.  




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             1       Q.  And this is number 061006-05, correct?

             2       A.  Yep.

             3       Q.  And that shows a picture of a number of -- It 

             4  looks like a picture of rebar on the gravel bar; 

             5  correct?

             6       A.  Yes.

             7       Q.  And why was this photograph included as an 

             8  exhibit?

             9       A.  Because it was a photo taken from a Regional 

            10  Board Water Board inspection that shows a picture of the 

            11  very thing that he's talking about in his quote.

            12       Q.  Do you have an understanding as to whether or 

            13  not -- Let me back up.  The photograph indicates that 

            14  there are certain areas where there's -- It looks like 

            15  it's been heated, and there's residue from cutting; 

            16  correct?

            17       A.  Correct.

            18       Q.  Do you have any understanding as to whether or 

            19  not those areas were clean?

            20       A.  I do not.

            21       Q.  If they were clean, would it make a difference 

            22  to you as far as whether a violation had occurred?  

            23       A.  No.

            24       Q.  If they were clean, would it make a difference 

            25  to you as to the amount of liability --




                                                                    155




                                                                       


             1       A.  Yes.  

             2       Q.  -- when applying the ACL adjustment factors?  

             3       A.  Yes.

             4       Q.  And that's something we'll get into on another 

             5  day it looks like.  

             6           Turn to October 17th, and here we have a quote 

             7  or possibly two quotes and a number of photographs.  

             8  Let's begin with the quotes.  It looks like two quotes.  

             9  One says, "Welding slag was discharged to the river and 

            10  cleaned up immediately."  Do you see that? 

            11       A.  Yes.

            12       Q.  What is that from?

            13       A.  I believe a biological monitoring report.

            14       Q.  Do you have a copy of that report anywhere 

            15  handy?

            16       A.  Let me check.  Not that I can find offhand.

            17       Q.  I'll represent that I've not been able to find 

            18  any support for that either.  

            19           Let's turn to the second quote.  It says, 

            20  "Found a welder attaching angles," and so on.  

            21       A.  Okay.

            22       Q.  Do you have the source document for that quote?

            23       A.  Let's see.  

            24       Q.  I'll tell you I have a copy of it.  It's an 

            25  assistant structure representative's daily report by 




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             1  Rich Thompson.  

             2       A.  Okay.  Yeah, I don't have it here in this 

             3  stack, although it would be in there.

             4       Q.  Why don't you take a look at my copy?  Just 

             5  take a quick moment to review it.  

             6       A.  Okay.

             7       Q.  Other than the quoted section, is there 

             8  anything else in that document that supports the 

             9  violation on this day?

            10       A.  Not that I can tell.

            11       Q.  And we have a number of photographs.  If you 

            12  would turn to the second of those, 061017-02, do you see 

            13  that?

            14       A.  Let me confirm that your picture's the same as 

            15  mine.  It looks like the number got cut off.

            16       Q.  Yes, it's the same.  

            17       A.  Okay.

            18       Q.  And so what does that appear to be to you a 

            19  picture of?

            20       A.  Metal debris from steel cutting and/or welding 

            21  that occurred on the gravel bar without sufficient 

            22  containment.

            23       Q.  What is it, what material is being deposited 

            24  here that establishes a violation in your view?

            25       A.  Welding and/or steel cutting debris.




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             1       Q.  Is it the actual pieces of metal, the large 

             2  pieces of metal that are there on the gravel bar, that 

             3  establishes the violation, or is it the kind of grayish 

             4  dust or residue that's in the center of the photo?

             5       A.  The grayish dust, residue.

             6       Q.  Why wouldn't the pieces of metal establish a 

             7  violation?

             8       A.  It could, although on its own, you know, I 

             9  personally would interpret that as part of the work 

            10  process and that there was no particular need to contain 

            11  those at that time.  

            12           However, it could also be interpreted as a 

            13  discharge.  It's just that in light of the other debris, 

            14  that demonstrates that sufficient containment was not in 

            15  place when doing the activity to prevent the more finer 

            16  material from reaching the gravel bar.  It is much less 

            17  susceptible to clean-up.  You could consider that a 

            18  discharge, an uncontained discharge, but that's not what 

            19  I used to support the violation. 

            20       Q.  Correct me if I'm wrong, but you might consider 

            21  that an uncontained discharge because it's some foreign 

            22  material that's been placed in or near waters of the 

            23  State; correct?

            24       A.  Correct.

            25       Q.  Now, you're aware that generally there was a 




                                                                    158




                                                                       


             1  lot of construction activity on the riverbank on the 

             2  gravel bar; correct?

             3       A.  Correct.

             4       Q.  And we've seen numerous photos that have all 

             5  sorts of types of materials on the gravel bar that were 

             6  integral to the construction process; correct?  

             7       A.  Correct.  

             8       Q.  What is it that distinguishes those things as 

             9  not being actionable as a violation as compared to other 

            10  things that are actionable because -- Well, go ahead and 

            11  answer the question.  

            12       A.  Well, I would argue that, that the function of 

            13  the best management practice in this case would be to 

            14  prevent these pollutants from reaching waters of the 

            15  U.S.  The evidence shown there that there is finer 

            16  material on the rocks in the bed shows that there was 

            17  not sufficient containment while the activity was going 

            18  on.  

            19           The placement of the larger material could have 

            20  been placed physically into that location as part of the 

            21  work process that would have been irrespective of the 

            22  BMPs being in place.  This is the way I would look at 

            23  it.

            24       Q.  So if it's integral to the work process, then 

            25  it might not be a violation?




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             1       A.  So there's the letter of the 401 certification, 

             2  and then there is how we interpret and apply it, and I'm 

             3  not going to say that just if it was integral to the 

             4  work process because that over-simplifies whether or not 

             5  it has a high potential of getting to surface waters, 

             6  whether it has a high toxicity, whether or not it is 

             7  susceptible to clean-up and all the other various 

             8  factors, whether or not BMPs should have been in place 

             9  for that process or not.

            10       Q.  Well, unquestionably, this is a significant 

            11  construction project; right?

            12       A.  Yes.

            13       Q.  And as part of that project, all manner of 

            14  materials were placed on or around the river and on the 

            15  gravel bar; right?  

            16       A.  Yes.

            17       Q.  Including tools, pieces of metal, hoses, rope, 

            18  and all of those things; right?

            19       A.  Correct.

            20       Q.  Is it fair to say that what distinguishes those 

            21  things from being -- Well, first of all, backing up, is 

            22  it fair to say that at the time that they're placed on 

            23  the gravel bar, technically any of that could be 

            24  considered a discharge that violates the terms of the 

            25  certification?




                                                                    160




                                                                       


             1       A.  Depending on the substance, where it's placed, 

             2  it could be.  It depends on what we're talking about.

             3       Q.  So is at least one factor that might guide 

             4  whether a particular item placed on the gravel bar in 

             5  waters of the State is a violation or not is whether or 

             6  not it's susceptible to clean-up?

             7       A.  Susceptibility to clean-up is a factor we use 

             8  in determining the degree of the penalty.  

             9       Q.  Well, for example, if you place like a hammer 

            10  or a piece of rope on the gravel bar or if it falls 

            11  there while you're in the process of working, that's 

            12  something that's going to be cleaned, but it's part of 

            13  the project; right?  

            14       A.  It's part of the project, and there's a fine 

            15  line.  So you're eating lunch down there at the gravel 

            16  bar, and your lunch trash falls into the river.  Is that 

            17  a discharge?  Officially, yes, that is a violation.  Is 

            18  it susceptible to clean-up?  Yes, you can go pick it up.  

            19  You pick it up, and you put it in the trash.  

            20           The same thing with a hammer:  A hammer falls 

            21  into the river.  Is that a discharge?  Well, it could 

            22  be.  Is it susceptible to clean-up?  Yes, you pick it 

            23  up, and you deal with it.  

            24           If a construction project never adheres to any 

            25  BMPs and fails to ever contain any of its process 




                                                                    161




                                                                       


             1  equipment and the process equipment falls into the 

             2  river, that's a violation.  A much larger piece of 

             3  process equipment is a tractor, and if that gets into 

             4  the river, you know -- See, we're talking about scales 

             5  here.  You know, it could be a piece of trash.  It could 

             6  be a hammer, a piece of work equipment.  It would all be 

             7  a violation, but the susceptibility to clean-up is a 

             8  factor we take into consideration when assessing a 

             9  penalty. 

            10       Q.  And imposing a penalty?

            11       A.  Correct.  Well, I guess I don't understand your 

            12  distinction there.

            13       Q.  Well, because you haven't imposed any for 

            14  hammers on the riverbank.  

            15       A.  Correct.  

            16       Q.  And there's certainly plenty of evidence here 

            17  that we had all sorts of materials placed on the gravel 

            18  bar; right?

            19       A.  Correct.

            20       Q.  And so my question to you, and this is really 

            21  an important question, is:  From the standpoint of 

            22  Caltrans and the contractors working on the project, how 

            23  are they to determine when a piece of 

            24  construction-related equipment or debris that's placed 

            25  in waters of the United States is a discharge that 




                                                                    162




                                                                       


             1  violates the certification or just something that's not 

             2  going to be actionable because it's part of the 

             3  construction process?

             4       A.  For me I've never had to address that 

             5  situation, and maybe you would argue that I have 

             6  addressed it by the way I've developed my document here, 

             7  but the way I feel I developed the document is I have 

             8  addressed more severe cases, whereas I've never gone 

             9  after a hammer or such because it was unnecessary.  I 

            10  had, in terms of staff priorities, et cetera, I never 

            11  got there, and to be honest, probably never would have 

            12  because of, you know, how many cases we have here at the 

            13  Water Board and how many projects we work on, but site 

            14  cleanliness and upkeep is a very important thing, and 

            15  keeping your hammers out of the river is also very 

            16  important.

            17       Q.  That's fair to say.  So is it more or less 

            18  accurate to say that you made a judgment call in 

            19  drafting the complaint as to what items when placed in 

            20  the waters of the State or U.S. constituted discharges 

            21  and what didn't?

            22       A.  What constituted priority discharges.

            23       Q.  Priority discharges, how do you define that?

            24       A.  By what was in here, that we felt we had 

            25  sufficient evidence to put into the complaint.  




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             1       Q.  Based on your judgment?

             2       A.  Correct.

             3       Q.  And the judgment of others and the staff 

             4  members?

             5       A.  Correct.

             6       Q.  Does it play a role with you to know that -- 

             7  Let me rephrase that.  Does it matter that the project 

             8  had a clean-up program where there was a person onsite 

             9  in charge of picking up loose materials and debris?  

            10       A.  Does that matter?  Sure, I believe that's an 

            11  important part of any large construction project.  

            12       Q.  Does the existence of a clean-up program -- 

            13  Well, I'll leave it at that.  

            14           MS. MACEDO:  Try to get to a good stopping 

            15  place.  It's after three thirty.

            16           MR. HUNGERFORD:  Three thirty-five.  Let's see 

            17  where we're at in terms of the set.  Well, we've got 

            18  several, another -- We're not going to finish this set 

            19  by four.  I'll go for a couple of others, and then why 

            20  don't we -- I don't know, Ardine, if you guys want to 

            21  squeak in a couple of questions, or do you just want to 

            22  hold off?  

            23           MS. ZAZZERON:  Yes, I don't have any meaningful 

            24  stream of questions. 

            25           MR. HUNGERFORD:  Then why don't we press on 




                                                                    164




                                                                       


             1  until four, and then we'll stop promptly then.  Does 

             2  that work?

             3           MS. ZAZZERON:  Sure.

             4           BY MR. HUNGERFORD:  

             5       Q.  Let's move to the October 18th discharge, and 

             6  here we have one photograph and a quote; correct?

             7       A.  Yes.

             8       Q.  What's the source of the quote?

             9       A.  Engineering diaries.

            10       Q.  Do you have that handy?

            11       A.  Let me check.  No, I have a different document.

            12       Q.  That's okay.  Let me hand you -- I'm handing 

            13  you an October 18th, 2006 assistant resident engineer's 

            14  daily report.  

            15       A.  Maybe this is the document, and maybe I just 

            16  didn't find it.  It looks close, but I don't think it's 

            17  the same.  

            18       Q.  No, that's not the same.  

            19       A.  Yeah.  Mine is report number 407.

            20       Q.  Why don't you look at mine?

            21       A.  407, page 2 of 2.  Yeah.  See, I have one of 

            22  two, and I think I forgot to copy page two.

            23       Q.  Sure.  Just take a quick moment to review that 

            24  if you would.  

            25       A.  Sure.  Okay.  




                                                                    165




                                                                       


             1       Q.  So the quote in the complaint says, "Garry came 

             2  to jobsite and pointed out that the welding slag 

             3  remaining on the riverbank needed to be cleaned."

             4       A.  Correct.

             5       Q.  Correct?

             6       A.  Yes.

             7       Q.  Other than that quote, do see anything else in 

             8  that document that you believe supports the violation on 

             9  this date?

            10       A.  Well, there's just some more language that I 

            11  think is relevant.

            12       Q.  Can you point that out to me?

            13       A.  "When James Ham came later, he promised to 

            14  arrange labor cleaning tomorrow," and then on page one 

            15  of two of the same document, there it just states, 

            16  "There was welding slag issue; need to be addressed 

            17  during last two days of operation, see page two."  So 

            18  this is the same document.  I would say -- Well, I'll 

            19  let you ask the question.

            20       Q.  Can you tell from these documents that you just 

            21  referenced when the welding slag was deposited on the 

            22  riverbed that was the subject of this quote?

            23       A.  No.

            24       Q.  Do you know where the welding slag was that's 

            25  the subject of that quote?




                                                                    166




                                                                       


             1       A.  No.

             2       Q.  Is it possible that it's welding slag that had 

             3  been deposited on a prior day that's covered by a 

             4  separate violation?

             5       A.  I don't know.

             6       Q.  Is it possible?

             7       A.  Sure.

             8       Q.  Can you turn to the photograph please, 

             9  061018-01?  

            10       A.  Okay.  

            11       Q.  This photograph shows a picture of the jobsite 

            12  from above, correct?

            13       A.  Correct.

            14       Q.  And it shows one person welding sort of in the 

            15  center of the photograph, correct?

            16       A.  Correct.

            17       Q.  I'm sorry; he's cutting rather than welding, 

            18  correct?

            19       A.  Okay.

            20       Q.  The sparks from the welding are going generally 

            21  to the inside of the tubular structure that's being cut.  

            22  Do you see that?  

            23       A.  I could not say that there's any adequate 

            24  containment to prevent them from going outside.

            25       Q.  Do you see any active deposition or discharge 




                                                                    167




                                                                       


             1  of the sparks on the riverbank itself?

             2       A.  I'd have to zoom in to see.

             3       Q.  Based on what you can see from the photograph 

             4  which you used to support the complaint, is there any 

             5  evidence of active deposition of sparks in the 

             6  riverbank?

             7       A.  I would argue that without adequate 

             8  containment, yes, that there's evidence that some sparks 

             9  made it to the riverbed without -- There's no 

            10  containment, and they go off in various directions.

            11       Q.  Well, the containment could have been within 

            12  the tubular structure itself?

            13       A.  I would argue that that's insufficient 

            14  containment. 

            15       Q.  We're talking about two different things.  I 

            16  think that you're saying that there's a possibility of 

            17  discharge onto the riverbed because of what you believe 

            18  is inadequate containment; correct?

            19       A.  Yes.

            20       Q.  Are you saying also that there is actual 

            21  deposition on the riverbank based on this photograph?

            22       A.  I'd have to look at the photograph more 

            23  thoroughly to see if there's any -- With an electronic 

            24  copy, you can zoom in a lot better and see if there's 

            25  any evidence of that.  I don't know.  I mean my photos 




                                                                    168




                                                                       


             1  are really small.

             2       Q.  Referring back to the quote that Jerry came to 

             3  the jobsite and pointed out welding slag on the 

             4  riverbed, did you see that?

             5       A.  Was it Jerry?  

             6       Q.  Garry, I'm sorry, Garry.  

             7       A.  Okay.  

             8       Q.  Is it fair to say that this photograph doesn't 

             9  appear to relate specifically to the quote in the 

            10  complaint for this day?

            11       A.  Is it safe to say what?  

            12       Q.  Is it fair to say that the photograph does not 

            13  appear to correlate specifically with the quoted 

            14  statements in the complaint?

            15       A.  Well, I wouldn't say that it doesn't correlate, 

            16  although it could be said that it might not correlate.

            17       Q.  Well, the quote describes welding slag on the 

            18  riverbed.  

            19       A.  Okay.  Oh, you're pointing out that this is 

            20  still cutting, so they're distinct, then.

            21       Q.  Do you see any evidence of welding slag on the 

            22  riverbed from this photograph?

            23       A.  Let me see.  No.  

            24       Q.  Other than this photograph and the quote in the 

            25  complaint, are you aware of any other specific 




                                                                    169




                                                                       


             1  photographs or documents that support the violation on 

             2  this date?  

             3       A.  No.

             4       Q.  Do you know who Garry is?

             5       A.  No, not exactly.

             6       Q.  If you could turn to the October 20th date, 

             7  this violation is based on the photograph 061020-01; 

             8  correct?

             9       A.  Correct.

            10       Q.  Are there any other documents or photographs, 

            11  reports that you're aware of supporting this violation 

            12  on this day?

            13       A.  No.

            14       Q.  The photograph shows what appears to be welding 

            15  slag on gravel, correct?

            16       A.  Yes.

            17       Q.  Do you know where this photograph was taken?

            18       A.  No.

            19       Q.  Do you know when the material was deposited on 

            20  the gravel that you see?

            21       A.  No.

            22       Q.  Is it possible that this is welding slag that 

            23  was referenced in a prior violation?

            24       A.  It's possible, although I would argue that if 

            25  it indeed discharged to waters of the State from a 




                                                                    170




                                                                       


             1  previous date and remained there until this date, the 

             2  potential liability could be charged on a per-day basis 

             3  of discharge, and we did not assess that, although it 

             4  could be done.

             5       Q.  Okay.  Do you have any information as to 

             6  whether this material was cleaned up?

             7       A.  No.

             8       Q.  Give me just a quick moment here.  Do your 

             9  records have the biological monitor's report for this 

            10  day handy?

            11       A.  October 18th?  

            12       Q.  No, October 20th.  

            13       A.  October 20th, yes, I believe so.  

            14       Q.  Can I take a look at those if you don't mind?

            15       A.  Yes.  Do you want just this specific date? 

            16       Q.  Yes.  

            17       A.  It begins right here with the 15th through the 

            18  21st.

            19       Q.  Okay.  Thank you.  That was much ado about 

            20  nothing.  I was just making sure that my notes are 

            21  accurate.  

            22           If you would turn, then, to the October 24th 

            23  entry.  

            24       A.  Okay.

            25       Q.  So we have a quote and a number of photographs.  




                                                                    171




                                                                       


             1  The quote is, "I observed a worker cutting plate steel 

             2  with a cutting torch on the riverbed," correct?

             3       A.  Correct.

             4       Q.  Do you know what the source of that quote is?

             5       A.  I believe it's the response to the notice of 

             6  violation.

             7       Q.  Do you have the specific source document handy?

             8       A.  Not that handy.

             9       Q.  Here, I'll hand it to you.

            10       A.  Do you have it more handy?  

            11       Q.  I have it more handy.

            12       A.  So it appears to be -- 

            13       Q.  Why don't you describe it for us?

            14       A.  It appears to be an engineering diary.  

            15       Q.  What is that document briefly?

            16       A.  It is an assistant resident engineer's daily 

            17  structures instruction report.

            18       Q.  Dated October 24th?  

            19       A.  Correct.

            20       Q.  Correct?

            21       A.  Yes.  

            22       Q.  And you see the quote that you've highlighted 

            23  in the complaint?

            24       A.  Oh, in my complaint, yes.

            25       Q.  I want to ask you a question:  The quote 




                                                                    172




                                                                       


             1  indicates there is some concern at least about 

             2  protecting the riverbed from cuttings; correct?

             3       A.  Correct.

             4       Q.  Are you aware of any instance in the documents 

             5  that you have reviewed where Caltrans or any of the 

             6  contractors thought that discharges of cuttings on the 

             7  riverbed might be a discharge as defined by the 

             8  certification?

             9       A.  Am I aware of -- Could you repeat it again, 

            10  please?  

            11       Q.  Yes.  Are you aware of any facts suggesting 

            12  that Caltrans or any of the contractors believed that 

            13  cuttings on the riverbank was a discharge as defined by 

            14  the certification?

            15       A.  Well, this right here -- 

            16           MS. MACEDO:  I'm going to object based on 

            17  relevance, but you can answer. 

            18           THE WITNESS:  This I believe implies that.

            19           BY MR. HUNGERFORD:  

            20       Q.  Implies because there was a concern raised?

            21       A.  Well, because it states he is aware the 

            22  riverbed should be protected; example given with a 

            23  plywood sheet, and said he would tell the worker to keep 

            24  slag off the riverbed, and there may be other documents.  

            25  There are quite a few I didn't collect.  There's a whole 




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             1  group of documents that indicated to me what Cantrans or 

             2  its contractors thought about such things.

             3       Q.  Sure.  Let me turn to the October 25th date, 

             4  and this violation is premised on a quote and does not 

             5  include any photographs; correct?

             6       A.  Correct.

             7       Q.  Do you have the source of that quote handy?  

             8  It's an assistant structures representative's daily 

             9  report.  

            10       A.  I believe so.  Let me check.  Yes.  

            11       Q.  Just take a quick review of that.  

            12       A.  Okay.  

            13       Q.  The quote indicates that there was -- Let me 

            14  back up.  Is there anything else in that document that 

            15  you believe supports your violation on this date?

            16       A.  Beyond the quote, yes, there are other quotes.

            17       Q.  Reference them, please.  

            18       A.  Well, oh nine hundred and thirty-five hours, 

            19  encountered superintendent James Ham, dot, dot, dot.  I 

            20  told him they were preparing to splice three-by-three 

            21  angles, dot, dot, dot, on the river bar, and they needed 

            22  to put down something to catch the weld splatter, then 

            23  vacuum it up before it goes onto the gravel bar.  He 

            24  said he told his crews to do that even yesterday and 

            25  will tell them again and then left, headed toward his 




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             1  office.

             2       Q.  Okay.  

             3       A.  I believe there's more, that at oh nine hundred 

             4  and fifty-five hours, I had returned to the gravel bar 

             5  and found Albert, dot, dot, dot.  I reminded Albert to 

             6  have his welders and those cutting steel to put 

             7  something under their work and vacuum or deposit their 

             8  debris in a container.  He said they all know, but he 

             9  can't watch them all the time.  He talked to both those 

            10  welding and cutting to have them put something under 

            11  their work and have a laborer pick up slag that was on 

            12  the gravel bar.  There could be more in this.  

            13       Q.  Okay.  

            14       A.  But I don't know.

            15       Q.  Okay.  Let's see.  There's a couple more.  

            16  10/26, if you could turn to that date, October 26th.  

            17       A.  Yes.

            18       Q.  And in this one, it indicates a quote and a 

            19  photograph?

            20       A.  Yes.

            21       Q.  And what is the source of the quote?

            22       A.  It appears to be engineering diaries.

            23       Q.  Do you have a copy of that diary in front of 

            24  you?

            25       A.  Yes.




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             1       Q.  It says, "Observed welder in the manlift 

             2  welding longitudinal force transfer clips onto the 

             3  trestle beams," correct?

             4       A.  Oh, okay.  Once again, there are two violations 

             5  on October 26th.  

             6       Q.  I'm looking at the first one.  

             7       A.  Initially my eyes jumped to the second, but 

             8  yes, I do have that same document.

             9       Q.  Do you have that photograph, 061026-01?

            10       A.  Yes, I have that photograph.

            11       Q.  Do you have any understanding as to whether the 

            12  debris falling to the gravel bar in the quote is slag or 

            13  sparks that are indicated in the photograph?

            14       A.  I do not other than the observation in the 

            15  quote describes a welder in a manlift which appears to 

            16  be the case in the photograph.  So in general, it 

            17  appears to be similar.

            18           MR. HUNGERFORD:  I think we're going to just 

            19  stop here.  

            20           THE WITNESS:  Okay. 

            21           MR. HUNGERFORD:  I was going to see if we could 

            22  get to the end of this section, but we're not going to 

            23  be able to.  We're going to end it right there, then.

            24           MS. MACEDO:  Let's go off the record.

            25           MR. HUNGERFORD:  Yes.  




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             1                           -  -  -

             2           (Whereupon, today's proceedings concluded at 

             3  4:00 p.m.)

             4                           -  -  -

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             1                   CERTIFICATE OF WITNESS

             2  

             3       I, KASON VERNE GRADY, hereby declare that I have 

             4  read the foregoing testimony recorded on pages 1 through 

             5  177, inclusive, and that the same is a true and correct 

             6  transcript of my testimony, except as I have corrected 

             7  any answer in ink, initialed such correction, and stated 

             8  on the margin my reason for making same.

             9  

            10  

            11  

            12  

            13  

            14  

            15                    ______________________________      

            16                    KASON VERNE GRADY

            17  

            18  

            19  

            20  Date: _________________________

            21  

            22  

            23  

            24  

            25  




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             1                   REPORTER'S CERTIFICATE

             2  

             3       I, Stephanie Anne Fox, a duly qualified certified 

             4  shorthand reporter for the State of California, do 

             5  hereby certify that the witness in the foregoing 

             6  deposition named, to wit: KASON VERNE GRADY, was by me 

             7  duly sworn to testify to the truth, the whole truth and 

             8  nothing but the truth in the within-entitled cause; that 

             9  said deposition was taken at the time and place therein 

            10  stated in my presence; that the testimony of said 

            11  witness was recorded by me stenographically, and was at 

            12  my direction thereafter transcribed into typewriting.

            13       I further certify that I am not a relative or 

            14  employee or attorney or counsel of any of the parties, 

            15  nor am I a relative or employee of such attorney or 

            16  counsel, nor am I financially interested in the within 

            17  action.

            18       In witness whereof, I have hereunto set my hand this 

            19  1st day of November, 2010.

            20  

            21                        _____________________________

            22                         Stephanie Anne Fox, CSR #4640

            23  

            24  

            25  




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