


                                                                       


             1           California Regional Water Control Board

             2                     North Coast Region

             3                          ---o0o---

             4  In the Matter of: 

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

             7  _________________________________/

             8  

             9  

            10  

            11                       Deposition Of:

            12  

            13                       DAVID F. LELAND

            14  

            15                 Tuesday, October 12th, 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 DAVID F. LELAND was taken 

             2  pursuant to subpeona duces tecum at the NORTH COAST 

             3  REGIONAL WATER QUALITY CONTROL BOARD, 5550 Skylane 

             4  Boulevard, Suite A, in the City of Santa Rosa, County of 

             5  Sonoma, State of California, on Tuesday, the 12th of 

             6  October, 2010, commencing at the hour of 9:14 a.m. 

             7  thereof, before Stephanie Anne Fox, CSR No. 4640, a 

             8  California Certified Shorthand Reporter.

             9  

            10  

            11                         APPEARANCES

            12  

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

            18  

            19  

            20  

            21  

            22  

            23  

            24  

            25  




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             1  

             2  

             3                            INDEX

             4  

             5  Witness:  DAVID F. LELAND                       Page No.

             6  -- Examination By:

             7       Mr. Hungerford                                4

             8       Ms. Zazzeron                                  93

             9  -- Further Examination By:

            10       Mr. Hungerford                                110

            11       Ms. Zazzerson                                 113

            12   

            13  

            14                           -  -  -

            15  

            16                           EXHIBIT

            17  

            18  1     Subpoena Duces Tecum to the Person Most      106
                      Knowledgeable for the Regional Water 
            19        Quality Control Board 
                
            20  

            21  

            22  

            23  

            24  

            25  




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             1                      DAVID F. LELAND,

             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           BY MR. HUNGERFORD:  

             8       Q.  Would you please state your name for the 

             9  record?

            10       A.  David F. Leland.

            11       Q.  That's L-e-l-a-n-d?

            12       A.  L-e-l-a-n-d.

            13       Q.  And have you had your deposition taken before, 

            14  Mr. Leland?

            15       A.  On this matter?  

            16       Q.  On any matter.  

            17       A.  No.

            18       Q.  Well, I'll just start with a couple of ground 

            19  rules.  As you can see, all of the words that I say and 

            20  you say are being taken down by a court reporter.  So 

            21  because of that, we just have to make sure that your 

            22  answers are audible.  Shakes of the head, nods of the 

            23  head don't translate so well onto the record.  So if you 

            24  could please speak clearly with yes, no answers, I would 

            25  appreciate that.  




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             1       A.  I will.

             2       Q.  What is your current position with the Regional 

             3  Water Quality Control Board?

             4       A.  I'm a supervising water resource control 

             5  engineer and the chief of the Watershed Protection 

             6  Division.

             7       Q.  And how long have you had that position?

             8       A.  Four years.

             9       Q.  And prior to that, did you have another 

            10  position with the Regional Board?

            11       A.  Yes.

            12       Q.  And what was that?

            13       A.  I was senior water resource control engineer in 

            14  charge of the TMDL Development Unit.

            15       Q.  And how long did you hold that position?

            16       A.  For six years.

            17       Q.  And prior to that, did you hold another 

            18  position at the Regional Board?

            19       A.  Yes.  I was water resource control engineer, 

            20  and I held that position at two different Regional 

            21  Boards, for one year here, and for two years prior to 

            22  that, at Regional Board Two in Oakland.  

            23       Q.  And prior to that, did you have another 

            24  position with the Regional Board?  

            25       A.  No.




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             1       Q.  Did you have a position with another company?

             2       A.  Yes.

             3       Q.  What was that?

             4       A.  Immediately prior was a position with Sierra 

             5  Environmental Services as an engineer.  That was for 

             6  about a year in 19, well, about a year.

             7       Q.  Any other companies before Sierra Environmental 

             8  Services?  

             9       A.  Yes.  Prior to that, I held a position for nine 

            10  years.  I had several different positions with Harding 

            11  Lawson Associates in Novato.

            12       Q.  And what type of business is that?

            13       A.  That's an environmental consulting business.

            14       Q.  Any other private companies before Harding 

            15  Lawson?  

            16       A.  Yes.  Prior to that, I held a position for six 

            17  years with Arthur D. Little, Incorporated, Cambridge, 

            18  Massachusetts.  That also I was involved with 

            19  environmental consulting work.

            20       Q.  What years approximately are we?

            21       A.  We're back in 1981.

            22       Q.  1981?

            23       A.  Yes, so '81 to '87.

            24       Q.  Let me turn to your education.  What 

            25  post-high-school education did you receive?




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             1       A.  I have a bachelor's degree from Middlebury 

             2  College in Vermont, and I have a master's in 

             3  environmental engineering degree from University of 

             4  Massachusetts.

             5       Q.  And the B.A. is in what discipline?

             6       A.  It was American literature.

             7       Q.  And the master's again?

             8       A.  Environmental engineering.

             9       Q.  Any other degrees or accreditations?

            10       A.  No.  Let me correct that.  Registered, I'm a 

            11  registered professional engineer in the State of 

            12  California.

            13       Q.  Thank you.  For how long?

            14       A.  Since '91.

            15           MR. HUNGERFORD:  I'm going to pause, and 

            16  counsel has been kind enough to bring a number of 

            17  binders and folders.  I'd like to just spend a moment 

            18  just describing what those are on the record.  

            19           MS. MACEDO:  Do you want to describe them, or 

            20  do you want me to?  

            21           MR. HUNGERFORD:  Well, if you could, that would 

            22  be great.  I'd be happy to do it, but I'd be asking you 

            23  questions.

            24           MS. MACEDO:  Okay, and since I am not sworn in 

            25  and not the witness, I'll just make a statement.  We 




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             1  brought our Confusion Hill files on this matter.  It's 

             2  my understanding that all the documents contained within 

             3  these files and approximately five binders have been 

             4  produced to counsel previously.  They include both the 

             5  application process that Caltrans went through prior to 

             6  the start of the project as well as communications 

             7  received this year, so it's contemporaneous.  

             8           Attorney work-product or attorney-client 

             9  privileged materials have been removed.  

            10           The binders are the daily logs that are kept by 

            11  the resident engineer on the project, and also one is 

            12  the Stormwater Pollution Prevention Plan, and one is the 

            13  response by Caltrans to a 13267 order, so five 

            14  altogether.  

            15           MR. HUNGERFORD:  And that describes everything 

            16  that's on the table?  

            17           MS. MACEDO:  The files, both the certification 

            18  and then just subsequent files as they fill up and then 

            19  five binders.  

            20           MR. HUNGERFORD:  Thank you, Julie.

            21           MS. MACEDO:  Sure.  

            22           BY MR. HUNGERFORD:  

            23       Q.  Mr. Leland, you've described for me the 

            24  positions you've held at the Regional Board and your 

            25  past employment.  Can you tell me currently, what are 




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             1  your job duties with the Regional Board in your current 

             2  position?

             3       A.  As I mentioned, I'm chief of the Watershed 

             4  Protection Division.  So in that role, I supervise four 

             5  seniors, and those seniors have responsibilites that 

             6  include NPDES permit issuance and renewal, supervision 

             7  of the NPDES permit programs and industrial stormwater, 

             8  construction stormwater issuance and renewal of waste 

             9  discharge requirement permits, the enforcement functions 

            10  in the office, the grant functions in the office, the 

            11  development of TMDLs, land disposal, and the management 

            12  of all the various permits that I've just mentioned 

            13  above.

            14       Q.  With the exception of any officers with the 

            15  Regional Board, are you more or less the highest 

            16  authority within this Regional Board for those 

            17  responsibilities?

            18       A.  With the exception of, when you say the 

            19  officers, I'm assuming you are referring to the 

            20  assistant executive officer?  

            21       Q.  Right.  

            22       A.  And the executive officer?  

            23       Q.  Correct.  

            24       A.  The answer would be yes.

            25       Q.  And just to close the loop on that last 




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             1  question, as I understand it, any enforcement action or 

             2  other orders taken by the Regional Board require the 

             3  execution of an executive officer of the Regional Board; 

             4  correct?

             5       A.  No, that's not correct.  Enforcement actions, 

             6  most of them require an action of the assistant 

             7  executive officer.

             8       Q.  Who is Mr. Rivera?

             9       A.  That's correct.

            10       Q.  Can you describe for me generally what 

            11  responsibilities you had for the administrative civil 

            12  liability complaint for the Confusion Hill project?

            13       A.  My responsibility was to review the complaint 

            14  prior to its being forwarded on to the assistant 

            15  executive officer for his review and signature.

            16       Q.  In this case, did you direct the preparation of 

            17  the complaint?

            18       A.  I was not primarily in charge of the direction 

            19  of the preparation of the complaint.  As I mentioned, I 

            20  supervise a team of seniors who are responsible for 

            21  day-to-day management of those kinds of things.  

            22           So the preparation of the complaint was done in 

            23  our enforcement unit and was under the supervision of 

            24  the senior in charge of the enforcement unit at the 

            25  time. 




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             1       Q.  Who was that senior?

             2       A.  Tom Dunbar for a portion of that.  I'd have 

             3  to -- There was a change in assignment somewhere in the 

             4  last four years.  I don't have the facts with me as to 

             5  when that change occurred.

             6       Q.  And is Tom Dunbar still with the Regional 

             7  Board?

             8       A.  No, he's retired.

             9       Q.  So it would be a correct characterization that 

            10  Tom Dunbar directed the preparation of the complaint, 

            11  but prior to Mr. Rivera signing it, you reviewed it?

            12       A.  Yes.  I was involved at various times in 

            13  discussions of particular issues that came up in the 

            14  preparation, in the preparation of complaint.

            15       Q.  Do you know if Mr. Dunbar took an active role 

            16  in drafting the complaint?  

            17       A.  The drafting of the complaint was primarily 

            18  done by Kason Grady.  

            19           MS. ZAZZERON:  Kason Grady?  

            20           THE WITNESS:  K-a-s-o-n, G-r-a-d-y.

            21           BY MR. HUNGERFORD:

            22       Q.  Do you know of any other people that assisted 

            23  Mr. Grady in drafting the complaint?

            24       A.  Yes.  The way that we are structured here, the 

            25  construction stormwater for activities for Caltrans is 




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             1  overseen by Mona Dougherty, and the 401 certification 

             2  for this project was drafted and overseen by Dean Prat.  

             3           The enforcement, our enforcement function is 

             4  separate from the permit oversight functions, and so 

             5  both Mona and Dean were also involved in the preparation 

             6  of the complaint.  

             7           Prat by the way is P-r-a-t.  

             8       Q.  A mistake I've made.  

             9           Can you tell me what it was that attacked this 

            10  project to the attention of the Regional Board as a 

            11  potential enforcement matter?

            12       A.  The observations by both our staff and reports 

            13  from other agency staff onsite that violations were 

            14  occurring.

            15       Q.  And which staff members from the Regional Board 

            16  made those observations?

            17       A.  Dean Prat I believe was the one who primarily 

            18  made the observations.

            19       Q.  Any others that you're aware of?

            20       A.  Possibly Mona.  I'm not completely clear about 

            21  that.

            22       Q.  Are Dean and Mona Board employees that tend to 

            23  perform site inspections?

            24       A.  Yes.

            25       Q.  You indicated that observations were made by 




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             1  other agencies.  

             2       A.  Yes.  

             3       Q.  Which agencies were those?

             4       A.  The Department of Fish and Game primarily.

             5       Q.  Other than Fish and Game, any others?

             6       A.  I don't know.

             7       Q.  Do you know of any individual staff members 

             8  with the Department of Fish and Game that made 

             9  observations concerning this project?

            10       A.  I do not.

            11       Q.  Do you have an understanding of the nature of 

            12  the observations made by the Department of Fish and 

            13  Game?

            14       A.  In general, there were observations of various 

            15  sorts of discharges of waste of turbidity plumes, of 

            16  leaking, fuel leaking into surface waters of 

            17  construction debris of various kinds being discharged 

            18  into surface waters.

            19       Q.  Let me back up.  Were any files or records 

            20  transferred from the Department of Fish and Game to the 

            21  Regional Board?  And I'll clarify.  When I say files or 

            22  records, I mean any letters, memoranda, reports, 

            23  photographs concerning this project.  

            24       A.  My understanding is yes.

            25       Q.  Do you know if the Regional Board has a file of 




                                                                     14




                                                                       


             1  files from the Department of Fish and Game in its 

             2  possession?

             3       A.  Whatever we have in those binders would 

             4  represent what we've received from Fish and Game is my 

             5  understanding.

             6           MR. HUNGERFORD:  And, counsel, I'll just ask, 

             7  your basic understanding, and I know you're not under 

             8  oath, is that any Fish and Game materials would be in 

             9  these records here on the table?  

            10           MS. MACEDO:  That's right.  

            11           MR. HUNGERFORD:  And also that they've been 

            12  previously produced?  

            13           MS. MACEDO:  That's right.  

            14           MR. HUNGERFORD:  Thank you.  

            15           BY MR. HUNGERFORD:

            16       Q.  Do you know, Mr. Leland, who made the decision 

            17  to begin the preparation of the complaint?

            18       A.  We would have discussed that internally amongst  

            19  several of us and would have made that decision with my 

            20  approval and Luis' approval, Mr. Rivera's approval?  

            21       Q.  Who would have been part of those internal 

            22  discussions?

            23       A.  All of the people that we have mentioned, so 

            24  that would have been Mr. Dunbar, Mr. Prat, Mona 

            25  Dougherty and Kason Grady.




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             1       Q.  And the decision would have been by yourself 

             2  and Mr. Rivera?

             3       A.  We typically come to agreement on these things, 

             4  yes.

             5       Q.  And is that what happened in this case?

             6       A.  Yes, to the best of my recollection.

             7       Q.  Thank you.  Do you know when that decision was 

             8  made?

             9       A.  I couldn't tell you.

            10       Q.  Do you have any records or memoranda that 

            11  you're aware of that record that decision?

            12       A.  It's possible, but I couldn't tell you for 

            13  sure.  There wouldn't be any memoranda or anything of 

            14  that sort.  There might be notes or something like that, 

            15  but --

            16       Q.  And when that decision was made, who then 

            17  directs the preparation of the complaint, yourself?

            18       A.  Well, again, as we touched on before, the 

            19  enforcement, the lead of the enforcement unit would be 

            20  directing his or her staff member in the preparation of 

            21  the complaint.

            22       Q.  Let's back up.  The decision was made by 

            23  yourself and Mr. Rivera.  Are you then responsible for 

            24  implementing that decision?

            25       A.  I'm responsible for making sure that progress 




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             1  is being made on the preparation of the complaint.

             2       Q.  So after the decision is made, do you then 

             3  instruct Mr. Dunbar that a complaint needs to be drawn 

             4  up?

             5       A.  Yes, that's a fair way to put it.

             6       Q.  Is that what happened in this case to the best 

             7  of your recollection?

             8       A.  I believe so.

             9       Q.  And then Mr. Dunbar will then give direction to 

            10  people in his enforcement staff, correct?

            11       A.  (Witness nods head.)

            12       Q.  Correct?

            13       A.  Yes.

            14       Q.  Let me back up.  Do you know how long it took 

            15  to prepare the complaint in this case?

            16       A.  I don't know exactly.  It was quite a long 

            17  time.

            18       Q.  Can you give me an estimate of what "quite a 

            19  long time" is?

            20       A.  I think it would be better to look back through 

            21  the records on that.

            22       Q.  And just as an overview here, you know, as 

            23  we're going through and I'm asking you questions, if -- 

            24  I don't want you to guess on anything, but if it is 

            25  something where you can provide me with an estimate, you 




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             1  know, six months, a month, a year, less than five years, 

             2  I do think I'm entitled to that.  So would "quite a long 

             3  time" be approximately --

             4       A.  I could say a year to two years.

             5       Q.  And that's uncharacteristically long as 

             6  compared to other ACL complaints?  

             7       A.  Yes.  

             8       Q.  Why did it take a longer time to prepare this 

             9  complaint?

            10       A.  I'd cite two reasons:  One was the number of 

            11  violations that were being addressed, and the second was 

            12  the need for information and records from Caltrans which 

            13  extended, also extended the duration of time it took to 

            14  prepare the complaint.

            15       Q.  Did the Regional Board make various requests 

            16  for information from Caltrans?

            17       A.  That's my understanding.  

            18       Q.  And who was the point person at the Regional 

            19  Board in those communications?

            20       A.  That would have been Kason Grady.  

            21       Q.  Did the complaint also rely on information 

            22  received from Department of Fish and Game?

            23       A.  Did the complaint rely on information from Fish 

            24  and Game?  

            25       Q.  Yes.  




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             1       A.  It's my understanding.  

             2       Q.  Would Kason have been the point person working 

             3  with Fish and Game as well?

             4       A.  I believe so.

             5       Q.  Do you know whether any interviews were made by 

             6  anyone?  I'm sorry; let me back up.  Do you know if any 

             7  interviews were taken by anyone at the Regional Board, 

             8  of any person as part of the preparation of this 

             9  complaint?

            10       A.  I don't know.

            11       Q.  Is it customary for the Regional Board to 

            12  interview people that might have information about an 

            13  enforcement matter prior to preparing a complaint?

            14       A.  That would depend on the situation.

            15       Q.  How many different revisions of the complaint 

            16  were made in this case prior to finalizing?

            17       A.  I don't have a recollection of that.

            18       Q.  Do you know if there was more than one revision 

            19  or the final version was prepared the first time?

            20       A.  The final version was not prepared the first 

            21  time.

            22       Q.  Would draft versions of the complaint have come 

            23  to you?

            24       A.  Typically there would be multiple drafts, some 

            25  of which would come to me.




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             1       Q.  You said typically.  In this case, do you 

             2  recall multiple drafts?

             3       A.  The reason I said I don't know is because I 

             4  often don't see the interim drafts as they're prepared.

             5       Q.  Okay.  

             6       A.  Those would be developed between the staff 

             7  member and his or her senior before coming to me.

             8       Q.  And in this case, that would have been Tom 

             9  Dunbar?

            10       A.  Again, it would have been the senior in charge 

            11  of the enforcement unit which was Tom Dunbar at the 

            12  beginning of this process and may have changed somewhere 

            13  in the course of this.

            14       Q.  Who would it have changed to?

            15       A.  I would have to -- There were several changes 

            16  in organization through that time, and so I would have 

            17  to -- I'd have to go back and reconstruct that history, 

            18  which I don't have.

            19       Q.  So you don't recall who it was that might have 

            20  replaced Tom Dunbar on this project, if anyone?

            21       A.  The lead for the enforcement function changed 

            22  from Tom Dunbar to Diana Henrioulle, but Kason moved 

            23  from enforcement into NPDES, into the permitting unit, 

            24  and so it's the dates of these that I'm not certain of 

            25  in terms of who was supervising Kason and exactly what 




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             1  time.

             2       Q.  And Diana Henrioulle?

             3       A.  H-e-n-r-i-o-u-l-l-e.

             4       Q.  Thank you.  Would the Regional Board have 

             5  retained any draft versions of the complaint?

             6       A.  To the best of my knowledge, no.

             7       Q.  Is it the Regional Board's practice to discard 

             8  or destroy draft versions of documents?

             9       A.  Yes, once the complaint is complete.  

            10       Q.  And to your knowledge, that's what happened in 

            11  this case?

            12       A.  To the best of my knowledge.

            13       Q.  How would you characterize the size of the 

            14  monetary penalties in this case in relation to other 

            15  administrative civil liability complaints issued by the 

            16  Regional Board?

            17       A.  It would be on the large end.

            18       Q.  What created such a large figure here?

            19       A.  The number of violations.

            20       Q.  Are there any other large construction projects 

            21  in this Regional Board's jurisdiction that you can 

            22  recall that have merited similar-size violations?

            23       A.  Not that I can recall.

            24       Q.  You're aware that there's a number of 

            25  adjustment factors under Section 13385 that Regional 




                                                                     21




                                                                       


             1  Boards tend to apply when determining the ultimate 

             2  amount of administrative civil liability to be assessed; 

             3  correct?  

             4       A.  Yes, I am.

             5       Q.  And you're familiar with ten factors? 

             6       A.  Yes.

             7       Q.  Who within the Regional Board made the 

             8  determination of how to apply those factors in this 

             9  case?

            10       A.  Again, that initially would have been done by 

            11  the staff member working on the complaint, in this case, 

            12  Mr. Grady, and then that proposal would have been 

            13  reviewed up the chain through the lead of the 

            14  enforcement unit and me and Mr. Rivera.

            15       Q.  When Mr. Grady or any other staff member in his 

            16  position is making this sort of determination as far as 

            17  the adjustment factors, what information does he rely 

            18  on?

            19       A.  Well, it depends on the factor.

            20       Q.  Are there any written policies followed by the 

            21  Regional Board to determine how much ACL penalties 

            22  should be adjusted?

            23       A.  At the time that this complaint was prepared, I 

            24  do not believe there was a written policy in place with 

            25  respect to that.




                                                                     22




                                                                       


             1       Q.  Are there any unwritten guidelines that you're 

             2  aware of that Mr. Grady would have had at his disposal 

             3  to review?

             4       A.  There's a noisy door there, so -- 

             5       Q.  I'll state it again.  Are there any unwritten 

             6  guidelines or policies that you're aware of that 

             7  Mr. Grady would have had at his disposal?

             8       A.  The lead of the enforcement unit in 

             9  consultation with his or her supervisors represents the 

            10  state of practice if you will in applying those factors 

            11  to discretionary penalties.

            12           MR. HUNGERFORD:  Do you mind reading that back?  

            13  I missed the first part.

            14           (Record read:  "The lead of the enforcement 

            15  unit in consultation with his or her supervisors 

            16  represents the state of practice if you will in applying 

            17  those factors to discretionary penalties.")

            18           BY MR. HUNGERFORD:

            19       Q.  And the leads of the enforcement, those are 

            20  people?

            21       A.  Yes.  Again, I'm just going back to my 

            22  uncertainty about the exact time frames of who was in 

            23  charge of reforcement throughout the course of this 

            24  process.

            25       Q.  And I'm just trying to determine what Mr. Grady 




                                                                     23




                                                                       


             1  would have had as far as guidance from the Regional 

             2  Board to make a determination of how much of a discount, 

             3  for example, to make off the relatively large ACL 

             4  penalty.  

             5       A.  He would have the experience of his supervisors 

             6  and others in the office who had prepared ACL complaints 

             7  in the past, and would have or would rely on that 

             8  experience and decisions made in similar instances.

             9       Q.  Are the adjustment factors typically applied to 

            10  a penalty as a whole, or are they applied to the 

            11  individual violations within the ACL complaint?

            12       A.  That depends on the situation.

            13       Q.  In this situation, do you know how they were 

            14  applied?

            15       A.  My understanding is that they were applied to 

            16  groups of violations.  

            17       Q.  Can you describe the process for how those 

            18  would have been applied to a group for this complaint?

            19       A.  The factors are general in nature.  So it would 

            20  have been perfectly feasible to apply them to a group of 

            21  violations.

            22       Q.  So let's say, for instance, you have twenty 

            23  violations relating to excessive turbidity.  For those 

            24  twenty violations for that group, would the Regional 

            25  Board apply the factors by taking a percentage of the 




                                                                     24




                                                                       


             1  total value of claims or by -- I'm trying to get the 

             2  process for how a group of factors are considered as far 

             3  as the application of the adjustment factors.  

             4       A.  Could you ask that again?  

             5       Q.  Yes.  That wasn't a very good question.  How 

             6  does the Regional Board apply the adjustment factors to 

             7  a group of violations?  Do they do it by, you know, 

             8  first determining whether or not these are serious or 

             9  not serious violations for instance?

            10       A.  In some cases, that would be true because some 

            11  of the factors have to do with the effect of the 

            12  violation on water quality.  So that would be one factor 

            13  that would be considered.

            14       Q.  Is there a, within this Regional Board, is 

            15  there any practice for applying a particular percentage 

            16  of reduction to penalties based on the seriousness of 

            17  the violations as a group?

            18       A.  The factors are considered both individually 

            19  and together.  So the seriousness of the violation is 

            20  one factor that's considered.

            21       Q.  And am I correct that Kason Grady is the person 

            22  that initially made the determination of what 

            23  adjustments to make?

            24       A.  That's my understanding.

            25       Q.  And then his decision or his proposal would 




                                                                     25




                                                                       


             1  have gone to whom?  

             2       A.  Well, I should add that he did that in 

             3  consultation with counsel.

             4       Q.  That's fine.  Outside of any communications 

             5  with counsel, do you know any other staff members at the 

             6  Regional Board he would have consulted with?

             7       A.  I would be speculating.

             8       Q.  Well, I don't want you to guess, but you can 

             9  make assumptions based on your knowledge of your 

            10  interior structure.  

            11       A.  He probably would have discussed that with his 

            12  immediate supervisor.

            13       Q.  Who at that time would have been Mr. Dunbar?

            14       A.  Again, my recollection of the dates of changes 

            15  in the leadership in the enforcement unit are uncertain.

            16       Q.  So the way that this complaint is structured, 

            17  is it possible to -- Well, let me back up.  For this 

            18  complaint, is it correct that the adjustment factors 

            19  weren't applied to any individual violation?

            20       A.  That's my understanding, except in some cases, 

            21  there are some individual violations that are called out 

            22  separately in the complaint, and factors may have been 

            23  applied to those individually.

            24       Q.  And did you personally review the adjustment, 

            25  the application of the adjustment factors, as part of 




                                                                     26




                                                                       


             1  your review of the complaint?

             2       A.  Yes.

             3       Q.  And did you feel that they were appropriate, or 

             4  did you send them back for revisions the first time you 

             5  saw them?

             6       A.  I don't recall.

             7       Q.  But at some point, you accepted that that was 

             8  an accurate description of the application of the 

             9  adjustment factors?  

            10       A.  I would describe them as an appropriate 

            11  application of the adjustment factors.

            12       Q.  Better said.  Are you aware of any water 

            13  quality measurements taken by the Regional Board or any 

            14  other person with respect to this complaint?

            15       A.  Not specifically.

            16       Q.  Who would be the person with that knowledge?

            17       A.  Either Kason Grady, Mona Dougherty or Dean 

            18  Prat.

            19       Q.  Are you aware of any actual adverse impacts to 

            20  water quality as a result of the activities described in 

            21  the complaint?

            22       A.  Could you describe what you mean by adverse 

            23  impacts to water quality?  

            24       Q.  Yes.  We'll approach it this way:  Are you 

            25  aware of any violations of Basin Plan standards 




                                                                     27




                                                                       


             1  resulting from the activities described in the 

             2  complaint?

             3       A.  I am aware of what appear to be violations of 

             4  Basin Plan standards.

             5       Q.  And what violations are those.  

             6       A.  That would specifically be -- Well, there's 

             7  several.  The turbity of water quality objective, and 

             8  the basin plan prohibitions on the discharge of 

             9  construction materials, a variety of different materials 

            10  during construction activities would be two violations.

            11       Q.  Any violations of the toxicity standards?

            12       A.  Not that I'm aware of.

            13       Q.  Are you aware of any adverse impacts to 

            14  wildlife, including fish, as a result of the activities 

            15  described in the complaint?

            16       A.  Not specifically.

            17       Q.  I know you're familiar with the ten adjustment 

            18  factors, and I'm just going to go throught them 

            19  categorically with you right now.  

            20           The first one looks at the nature or 

            21  circumstance, extent and gravity of the violations.  Can 

            22  you tell me what factors in your understanding were 

            23  considered by the Regional Board in applying that 

            24  factor? 

            25       A.  One of the primary factors in this particular 




                                                                     28




                                                                       


             1  case is the fact that the South Fork Eel River is listed 

             2  on the Clean Water Act Section 303 D list as impaired 

             3  for sediment, excess sediment discharges.

             4       Q.  Do you know what lead to its listing?  Were 

             5  there any particular activities or considerations that 

             6  created that 303 D listing?

             7       A.  There would be a number of different activities 

             8  that would have contributed to that listing, and they 

             9  would include construction, timber harvesting, 

            10  improperly maintained roads.  Those are some examples.

            11       Q.  Are you aware of any of those activities 

            12  upstream of this project on the South Fork Eel?

            13       A.  I'm sure that there are dirt roads and timber 

            14  harvesting activities that take place upstream of that 

            15  location.

            16       Q.  Do you know when the South Fork Eel was listed 

            17  for sediment?  

            18       A.  I don't know.  It would have been in the 1990s. 

            19       Q.  As far as the nature, circumstances and extent 

            20  factor, anything else that stands out to you apart from 

            21  the 303 D listing as a reason why this is a particularly 

            22  serious violation?

            23       A.  The listings themselves reflect potential for 

            24  impacts to beneficial uses.  In the case of the South 

            25  Fork Eel, it supports a variety of aquatic life, 




                                                                     29




                                                                       


             1  including some species that are listed under either the 

             2  Federal or the State Endangered Species Act, and that 

             3  creates a heightened sensitivity on our part.

             4       Q.  Are you aware of any Department of Fish and 

             5  Game enforcement action relating to this project?

             6       A.  Not specifically.

             7       Q.  The second factor under 13385 relates to 

             8  whether the discharge is susceptible to clean-up or 

             9  abatement; correct?

            10       A.  I'll take your word for it.

            11       Q.  Okay.  Has the Regional Board ordered any 

            12  clean-up or abatement concerning this project?

            13       A.  In the case of that particular factor, my 

            14  recollection of our understanding of that, that most of 

            15  these discharges occurred, of the violations that were 

            16  related to discharges that occurred directly to the 

            17  river were not susceptible to clean-up and abatement.  

            18  So again, in that instance, we didn't order any clean-up 

            19  and abatement.

            20       Q.  What made them not susceptible to clean-up or 

            21  abatement?  

            22       A.  They were directly to, in the cases, they were 

            23  directed to the river because they were directed to the 

            24  river.

            25       Q.  Well, being familiar with the complaint, you're 




                                                                     30




                                                                       


             1  aware that there were violations alleging a number of 

             2  types of discharges into the river, including wood, 

             3  metal, welding slag and other materials.  Why weren't 

             4  any of these susceptible to clean-up?

             5       A.  I guess I don't have an answer for that.  

             6       Q.  Has the Regional Board issued any investigative 

             7  orders under 13267 for this project?  

             8       A.  I don't recall.  

             9       Q.  Any notices of violation for this project?

            10       A.  Yes, I believe there were two.

            11       Q.  Can you describe them for me?

            12       A.  Not in a lot of detail.  There were two that 

            13  were issued, one sometime in the early stages.  Well, 

            14  they were both issued in the early stages of the 

            15  project, and had to do with the types of violations I 

            16  believe that we've been talking about.

            17       Q.  Do you recall the specifics of either 

            18  violation?

            19       A.  I don't recall the specifics.

            20       Q.  Did the existence of the two NLVs have any 

            21  impact on the amount of penalties claimed in this 

            22  complaint?

            23       A.  I'm not sure what you're asking exactly.

            24       Q.  Well, you mentioned that the ten adjustment 

            25  factors under 13385 as you observed are kind of general 




                                                                     31




                                                                       


             1  and categorical in nature, and they look at the nature 

             2  of the activities in addition to the conduct of the 

             3  discharger, and so I think it's a reasonable question 

             4  whether or not the notices of violation here early on in 

             5  this project played any role in the preparation of that 

             6  complaint.  

             7       A.  When we issue a notice of violation, it would 

             8  have been true in these cases, we intend those to act as 

             9  instruction if you will to the discharger to improve 

            10  operations to end those violations, end the practices 

            11  that are leading to the violations.  So the response to 

            12  the violation would certainly be a factor that we would 

            13  consider in the complaint.

            14       Q.  In this case, do you have any understanding of 

            15  the type of response given by the discharger?

            16       A.  We did not feel that the patterns of activities 

            17  that led to the initial violations that were documented 

            18  in the NLVs were adequately reflected in changes and 

            19  practice after the NLVs were issued.

            20       Q.  Is it fair to say, then, that that condition, 

            21  the response to the notice of violation that you just 

            22  described, you know, had an effect that made it more 

            23  likely at least that the Regional Board to issue the 

            24  complaint?

            25       A.  No, I don't think it made it more likely that 




                                                                     32




                                                                       


             1  we would have issued the complaint.

             2       Q.  Was that pattern of conduct in response to the 

             3  notices of violation something that was relied on by the 

             4  Regional Board in preparing this complaint?

             5       A.  It was one of the pieces of information that we 

             6  used in applying the factors that we're talking about.

             7       Q.  I'll represent another one of the 13385 

             8  adjustment factors is the ability of the violator to 

             9  pay.  To your knowledge, how was that factor applied in 

            10  this complaint?

            11       A.  It was applied by looking at the -- The primary 

            12  approach was by looking at the value of the project.

            13       Q.  Do you know what the value of the project was?

            14       A.  My recollection is it was somewhere in the 

            15  seventy-million to eighty-million-dollar range.

            16       Q.  And when you say look at the value of the 

            17  project, does that in this case just mean the total 

            18  price bid out to contractors?

            19       A.  I believe that that's what the number that I 

            20  just gave you reflects.

            21       Q.  Did you do any more detailed investigation in 

            22  this case on the ability of the discharger, in this case 

            23  Caltrans, to pay?

            24       A.  Not that I'm aware of.

            25       Q.  Did you look at any more detailed accounting of 




                                                                     33




                                                                       


             1  the project costs that would have allowed you to 

             2  determine what types of profits might have been made by 

             3  any of the contractors?

             4       A.  I did not.

             5       Q.  Do you know if anyone else did for the Regional 

             6  Board?

             7       A.  I don't know.

             8       Q.  Other than the total project value, was there 

             9  any other information that the Regional Board took into 

            10  consideration as far as the ability of the violator to 

            11  pay?

            12       A.  It's my recollection that that's the main 

            13  factor that we used.

            14       Q.  Does the Regional Board have an understanding 

            15  as far as any monies that are ultimately paid in 

            16  response to this complaint, what the source of that 

            17  money would be?

            18       A.  I'm not sure that I understand the question.

            19       Q.  Let's assume that we go through a hearing, and 

            20  there's a final order on this complaint which, you know, 

            21  orders every penny of the ACL penalties.  Where does the 

            22  Regional Board think that money is going to come from?

            23           MS. MACEDO:  I'll object as to relevance.  

            24           MR. HUNGERFORD:  You can still answer.

            25           MS. MACEDO:  Yes.




                                                                     34




                                                                       


             1           THE WITNESS:  Either from Caltrans contractors 

             2  or possibly subcontractors.  

             3           BY MR. HUNGERFORD:  

             4       Q.  Are you familiar with who the contractors are 

             5  on this project?

             6       A.  MCM is the prime contractor.

             7       Q.  Are you familiar with any of the other 

             8  contractors?

             9       A.  I've heard some of the names, and in the 

            10  meetings with other subcontractors, the only other one 

            11  that I can remember is Ladd.

            12       Q.  I'll represent that another one of the 

            13  adjustment factors under 13385 is the effect of the 

            14  violator's ability to stay in business.  How, if at all, 

            15  was that factor applied for this project?

            16       A.  I don't recall specifically.

            17       Q.  Do you recall whether anyone considered whether 

            18  this project would affect Caltrans' ability to stay in 

            19  business?

            20       A.  I don't think we had any concerns about that.

            21       Q.  Did anyone consider the contractor's ability to 

            22  stay in business?

            23       A.  I would say yes, that was considered in a 

            24  general way.  We talked about specific numbers for this 

            25  project, but MCM is generally known to be a large and 




                                                                     35




                                                                       


             1  successful construction firm in the state.

             2       Q.  Did anyone at the Regional Board perform any 

             3  type of analysis that would have provided the Regional 

             4  Board with information on how much of a profit MCM would 

             5  have made on this particular project?

             6       A.  Not that I'm aware of.

             7       Q.  Did anyone perform any investigation of MCM's 

             8  financial position?

             9       A.  Not that I'm aware.

            10       Q.  You just had a general understanding that MCM 

            11  is a large, successful contractor?

            12       A.  That's correct.

            13       Q.  Would it be fair to say that you had the same 

            14  level of analysis for any other contractors, you know, 

            15  such as Ladd?

            16       A.  I would say that during the preparation of the 

            17  complaint, I wasn't aware of the names of any of the 

            18  other subcontractors so that I was not aware that there 

            19  was any even general analysis done on the 

            20  subcontractors.

            21       Q.  The next adjustment factor under 13385 relates 

            22  to any voluntary clean-up efforts undertaken.  Do you 

            23  have any understanding as to how that factor might have 

            24  been applied in this case?

            25       A.  I don't specifically.




                                                                     36




                                                                       


             1       Q.  I'll make a representation to you that it's 

             2  MCM's position that it paid out of its own pocket for 

             3  various features on this project that made the project 

             4  more environmentally sensitive.  Is that something that 

             5  you're aware of?

             6       A.  I have heard MCM represent that to us in 

             7  meetings that we have had, but I wasn't aware of that at 

             8  the time.

             9       Q.  For example, the meeting that we had a few 

            10  months back, we did speak about that; correct?

            11       A.  I recall that we did.

            12       Q.  Prior to that meeting, had you heard that?

            13       A.  I couldn't say for sure.  It's possible that 

            14  that came up during the other Confusion Hill enforcement 

            15  action that we took that predated this complaint.

            16       Q.  Notwithstanding the violations that have been 

            17  alleged in the complaint, is the Regional Board aware of 

            18  any positive or good things that were done as part of 

            19  this construction project from its standpoint?

            20       A.  I couldn't cite any specifically.

            21       Q.  Do you have any general understandings that 

            22  there were any good features added to this project?

            23       A.  No.

            24       Q.  I'll represent one of the other 13385 factors 

            25  is whether there's a history of violations on the part 




                                                                     37




                                                                       


             1  of the discharger.  Is that a factor that was applied by 

             2  the Regional Board in this case?  

             3       A.  Yes, it was.

             4       Q.  How specifically?

             5       A.  We reviewed prior violations by Caltrans during 

             6  the construction of other projects.

             7       Q.  And which other projects were those?

             8       A.  They're cataloged in the complaint.  

             9       Q.  So I should just refer to the complaint?

            10       A.  For a complete list of the projects that we 

            11  considered.

            12       Q.  Any that stick out in your mind as I thumb 

            13  through the complaint?

            14           MS. MACEDO:  I'll object and say the document 

            15  speaks for itself.

            16           MR. HUNGERFORD:  You can still answer.  

            17           MS. MACEDO:  Would you like to review the 

            18  complaint before answering?  

            19           THE WITNESS:  I'd prefer to do it that way.  

            20           MR. HUNGERFORD:  Well, here's an easier way.  

            21  I'll just go through the complaint myself, and I'll ask 

            22  you them.  

            23           THE WITNESS:  Okay.

            24           BY MR. HUNGERFORD:

            25       Q.  So there are a number of other projects 




                                                                     38




                                                                       


             1  described in the complaint that, based on the 

             2  allegations, the Regional Board relied on to inform the 

             3  administrative penalties.  The first one is a Dry Creek 

             4  Bridge Replacement Project.  Are you familiar with that 

             5  project?

             6       A.  Not specifically.

             7       Q.  So you can't tell me what the nature of the 

             8  violations were there based on your -- 

             9       A.  I could not recite those to you.

            10       Q.  The next one would be a Van Duzan River Bridge 

            11  Project.  Are you familiar with that?

            12       A.  I'm somewhat familiar with that.

            13       Q.  What's your basic understanding of that 

            14  project?

            15       A.  A bridge replacement project during which there 

            16  were a number of violations that occurred during 

            17  construction of the project.

            18       Q.  Would you consider them serious violations?

            19       A.  I, I don't have the facts at hand.

            20       Q.  The next one listed in the complaint is an 

            21  investigative order under 13267 for disposal of 

            22  landslide material in the South Fork Eel River.  Are you 

            23  familiar with that event?

            24       A.  I'm not familiar with the specific event, but 

            25  I'm familiar with the general situation at the location 




                                                                     39




                                                                       


             1  of the slide that the Confusion Hill, that the project 

             2  that we're talking about replaced.  There was a pattern 

             3  of disposal of slide material into the South Fork Eel 

             4  River.

             5       Q.  And that's on this particular project, correct?

             6       A.  It's on the section of road that's replaced by 

             7  this project.  

             8       Q.  So again, prior to this project, Van Duzan 

             9  Bridge Project, there was a road that passed next to the 

            10  river?

            11       A.  Yes.

            12       Q.  And am I correct that before the bridge was 

            13  built, there was a patten of disposal of material into 

            14  the river by objectives?

            15       A.  That's my understanding.

            16       Q.  Do you know how this 13267 order was resolved, 

            17  or is it still outstanding?

            18       A.  I don't know how it resolved, how it was was 

            19  resolved.

            20       Q.  Do you have an understanding of how much or 

            21  what type of disposal was taking place?

            22       A.  I don't specifically in terms of amounts.

            23       Q.  The next event described in the complaint is 

            24  the Hard Scrabble Creek Bridge Replacement Project.  Are 

            25  you familiar with that project?  




                                                                     40




                                                                       


             1       A.  Yes, I am, somewhat.  

             2       Q.  Can you describe your understanding of that?

             3       A.  There were several concerns that we had about 

             4  that project.  The ones that were addressed in the 

             5  violation had to do with the discharge of contaminated 

             6  water into Hard Scrabble Creek as a result of inadequate 

             7  BMPs being replaced.  

             8       Q.  Where is Hard Scrabble Creek?

             9       A.  I believe it's in Del Norte County.

            10       Q.  And then the next event listed by the complaint 

            11  is another ACL complaint relating to the Confusion Hill 

            12  project; correct?

            13       A.  Yes.

            14       Q.  And are you familiar with that event?

            15       A.  You need to refresh my memory on the specifics 

            16  there.  

            17       Q.  I'll describe what the allegations say.  It 

            18  says that on March 6th, 2008, and I'll paraphrase, the 

            19  Regional Board adopted an ACL order with the total civil 

            20  liability of $20,000 for one day of discharge of one 

            21  hundred and seventy gallons of sediment slurry to the 

            22  river and four days of a failure to submit a written 

            23  report of a discharge.     

            24           Other than what I've just read to you, do you 

            25  have any independent understanding of what happened on 




                                                                     41




                                                                       


             1  that event? 

             2       A.  My recollection is not clear on that at this 

             3  point.

             4       Q.  All right.  The next event in the complaint 

             5  again relates to Hard Scrabble Creek, and that is -- I 

             6  won't ask you any more about that.  

             7           So we've listed off a number of, or I'm sorry; 

             8  the complaint has listed off a number of other past 

             9  violations involving objectives.  To your knowledge, was 

            10  MCM involved in any of those other events? 

            11       A.  To my knowledge, no.

            12       Q.  Now, in looking at the history of past 

            13  violations --

            14       A.  Could I correct that?  

            15       Q.  Sure.  

            16       A.  I believe that MCM actually was involved in the 

            17  Van Duzan Bridge Project.

            18       Q.  And to your knowledge, did the Regional Board 

            19  focus on MCM's actions or conduct as it relates to that 

            20  violation or series of violations?

            21       A.  I don't recall.

            22       Q.  As part of looking at this factor of history of 

            23  violations, did the Regional Board look at violations by 

            24  any of the contractors on the Confusion Hill Project?

            25       A.  You mean actions of contractors on other 




                                                                     42




                                                                       


             1  projects?  

             2       Q.  Exactly.  

             3       A.  We would certainly have considered the, if my 

             4  recollection is correct, MCM's involvement in the Van 

             5  Duzen Project.

             6       Q.  Other than Van Duzen, to your knowledge, were 

             7  there any other MCM projects other than Confusion Hill 

             8  that were considered as part of the preparation of this 

             9  complaint?

            10       A.  Not to my knowledge.

            11       Q.  On the Van Duzen Project, who do you believe 

            12  would be the most capable person within the Regional 

            13  Board to discuss that enforcement issue?

            14       A.  Dean Prat would probably be the best person to 

            15  talk to about that.

            16       Q.  And finally, well, not finally, the 13385 

            17  factors also look at the degree of culpability of the 

            18  violator.  As you sit there, can you explain whether 

            19  that factor was applied in any way here on this project?

            20       A.  My recollection is that it was considered.  

            21       Q.  In what way?

            22       A.  I'd have to look at the complaint to, again to 

            23  remember specifically.  

            24       Q.  'Cause I understand it's a very difficult 

            25  factor to apply beyond the specifics that we've been 




                                                                     43




                                                                       


             1  talking about.  

             2           Economic savings is another factor that is 

             3  supposed to be applied under 13385.  Do you know how 

             4  that factor was applied in this complaint?  

             5       A.  We would have looked at the potential for 

             6  economic savings as a result of not doing certain 

             7  actions that could have prevented or mitigated 

             8  particular violations.

             9       Q.  Is this written up in any document or report?

            10       A.  Not to my knowledge.

            11       Q.  Can you give me an example of any actions that 

            12  were not taken on this project that led to violations 

            13  being claimed or the application of adjustment factors?

            14       A.  Could you say that again?  

            15       Q.  Sure.  Are you aware of any examples of actions 

            16  on this project that the Regional Board felt should have 

            17  been taken that weren't?

            18       A.  I can give a couple of examples --

            19       Q.  Sure.  

            20       A.  -- that I believe respond to your question. 

            21       Q.  Go ahead.  

            22       A.  One had to do with refueling areas and managing 

            23  refueling areas according to the best management 

            24  practices.  That requires a certain amount of care and 

            25  attention and maintenance, and records that we have 




                                                                     44




                                                                       


             1  indicate that that care and attention was not taken.  

             2           Another example is the issue of loss of welding 

             3  slag and other materials from the construction of one or 

             4  perhaps both of the bridges which was performed without 

             5  any containment in place for a long time, and only after 

             6  a long time was some containment put in place to capture 

             7  those materials and prevent the discharge. 

             8       Q.  How did the Regional Board compute the economic 

             9  savings for not managing refueling areas as well as the 

            10  Regional Board would have liked?

            11       A.  I'm not sure that there was a computation on 

            12  that.

            13       Q.  To your knowledge, there was no computation?

            14       A.  I don't have any knowledge of it.

            15       Q.  What about for containment of welding slag?  

            16  Was there any computation of the savings that might have 

            17  been made by not doing things differently?

            18       A.  Not to my knowledge.

            19       Q.  Other than refueling and welding slag, are 

            20  there any other examples that you can recall?

            21       A.  The concrete wastewater discharge or disposal 

            22  would be another example.

            23       Q.  Can you describe what exactly took place there 

            24  at the concrete wastewater disposal?

            25       A.  I can describe my understanding, that the 




                                                                     45




                                                                       


             1  waste, the concrete washwater was disposed in an unlined 

             2  pit in violation of or in contradiction to the 

             3  application that we had, and therefore, was a violation 

             4  of the permit, and that resulted in the discharge of 

             5  material to the South Fork Eel River, and that 

             6  management of that in a way that would have been 

             7  compliant with the application and the permit would have 

             8  been, could have been costly 'cause it may have required 

             9  transfer of that water or lining of the pond, the 

            10  disposal pit that was created or other actions that 

            11  would have required effort and expense on the part of 

            12  Caltrans and the contractors.

            13       Q.  Was any study or analysis made of the savings 

            14  that was allegedly gained?

            15       A.  Not to my knowledge.  

            16       Q.  Do you know how many occasions concrete 

            17  wastewater was disposed of improperly?

            18       A.  I don't know.

            19       Q.  As far as management practices for concrete 

            20  wastewater, what would the Regional Board's expectation 

            21  have been?

            22       A.  Well, our base expectation would be that the 

            23  project be implemented in accordance with the proposal 

            24  in the application that we received from Caltrans which 

            25  is the basis for the 401 certification, and our further 




                                                                     46




                                                                       


             1  expectation is that if that proposal proves not to be 

             2  working, that Caltrans would make adjustments and direct 

             3  its contractor to make adjustments to improve the 

             4  practice so that there were no discharges occurring.

             5       Q.  In general terms, is that the way that 

             6  management practices are applied, that you apply them, 

             7  and then if there are any problems, then you adjustment 

             8  them until --

             9       A.  That's typical, yes.

            10       Q.  Other than refueling, welding slag and concrete 

            11  wastewater, any other examples you can recall of things 

            12  that could have been done differently that rendered some 

            13  form of economic savings for the project?

            14       A.  I'm sure there are, although I would have to 

            15  refer to the complaint to identify additional examples.

            16       Q.  Okay.  But it's accurate to state that the 

            17  Regional Board didn't conduct any actual economic 

            18  analysis of savings made by the project?

            19       A.  Again, to my knowledge, that's correct.

            20       Q.  Let me ask you, how then does the Regional 

            21  Board apply this adjustment factor in the context of 

            22  this complaint when there's no, when there's a 

            23  requirement of the 13385 you consider the economic 

            24  savings, but no analysis is made that would identify 

            25  that savings?  How is this factor applied?




                                                                     47




                                                                       


             1       A.  I don't see why it would be necessary to have 

             2  exact numbers on a specific situation to make that kind 

             3  of judgment.  We would rely on our experience with other 

             4  construction projects to make that sort of judgment.

             5           MR. HUNGERFORD:  Could we take a short break if 

             6  it's all right with you?  

             7           MS. MACEDO:  Yes.  

             8           (Recess held.)

             9           MS. MACEDO:  We're on?  

            10           MR. HUNGERFORD:  Back on.  

            11           BY MR. HUNGERFORD:  

            12       Q.  I'm going to spend just a little bit of time 

            13  going through some of the allegations in the complaint, 

            14  not in a great amount of detail but just at least go 

            15  through groups, and I have a few specific questions.  I 

            16  know that you might not be the best person to talk about 

            17  the nitty-gritty stuff, and so I'll probably save those 

            18  questions for later.  

            19           Let me start with, do you have a copy of the 

            20  complaint in front of you?  That might help. 

            21       A.  I do not.

            22           MR. HUNGERFORD:  Julie, do you have an extra 

            23  one?  I only have one copy.  

            24           MS. MACEDO:  Are we marking this as an exhibit?  

            25  If so, I'm happy to make a copy.  




                                                                     48




                                                                       


             1           MR. HUNGERFORD:  I don't think we need to mark 

             2  it as an exhibit.  

             3           MS. MACEDO:  Okay.  

             4           BY MR. HUNGERFORD:

             5       Q.  Why don't you start with page eight, paragraph 

             6  sixteen?  So paragraph sixteen describes provisions of 

             7  the Basin Plan, specifically an action plan for logging, 

             8  construction and associated activities; correct?

             9       A.  Yes.

            10       Q.  And then it goes on to have a number of 

            11  specific provisions from the Basin Plan; correct?

            12       A.  Yes.

            13       Q.  Are there any, to your knowledge, specific 

            14  violations relating to the action plan for logging, 

            15  construction and associated activities?

            16       A.  Yes.

            17       Q.  Which ones are those?

            18       A.  Well, there are a variety of these, the 

            19  construction, the discharge of soil, silt, bark, slash, 

            20  sawdust, or other organic and earthen material from any 

            21  logging, construction, or associated activity of 

            22  whatever nature into any stream or watercourse in the 

            23  basin.

            24       Q.  Well, let me approach the question this way:  

            25  As you're aware, the complaint has a number appendices 




                                                                     49




                                                                       


             1  of that are tables listing individual violations; right?  

             2       A.  Yes.

             3       Q.  And each one of those, those individual 

             4  violations listed, is given one or more conditions that 

             5  have been violated in the second-to-last column.  

             6       A.  Yes.

             7       Q.  Now, my read-through is that all of those 

             8  conditions that are listed in that column are conditions 

             9  of the certification.  Is that your understanding as 

            10  well?

            11       A.  Yes, the additional conditions do refer to the 

            12  certification.

            13       Q.  And so this action plan for logging, 

            14  construction and associated activities that's described 

            15  in paragraph sixteen, do these form the basis for 

            16  specific violations independent of the certification in 

            17  the complaint?

            18       A.  My recollection is that some of the additional 

            19  conditions in the certification are verbatim statements 

            20  of the action plan for logging.  

            21       Q.  And I think that that's right.  They're either 

            22  verbatim, or they've channeled them in some way, but are 

            23  there, to your knowledge, any specific violations that 

            24  are based exclusively on the action plan for logging and 

            25  not the certification conditions?




                                                                     50




                                                                       


             1       A.  Well, again, I'm not able to separate those, if 

             2  the action plan for logging is cited in the 

             3  certification and the certification also includes a 

             4  statement that any violations of the Basin Plan 

             5  constitute violations of the certification, so they're 

             6  tightly linked.  

             7       Q.  Is the action plan for logging cited in the 

             8  certification?  

             9       A.  I believe that the language on there, I think 

            10  it's condition nine as a matter of fact, but we should 

            11  check that.

            12       Q.  Well, I can certainly see that they share the 

            13  same language from the logging to the certification, but 

            14  I'm trying to determine how the, other than that, how 

            15  the logging action plan relates to the allegations.  For 

            16  example, in the complaint, can you identify in the 

            17  appendices, in the tables, any specific violations that 

            18  relate to the action plan for logging and not for the 

            19  certification?

            20       A.  I guess I'm confused by the question.  If the 

            21  language in the certification is the same as the 

            22  language in the action plan, I'm not sure how you're 

            23  making a distinction there.

            24       Q.  Well, let me ask you this:  Look at condition 

            25  one under paragraph sixteen, referring to discharge of 




                                                                     51




                                                                       


             1  soil, silt, bark, et cetera; correct?

             2       A.  Yes, uh-huh.

             3       Q.  That seems to overlap with, but is not 

             4  identical to, condition nine of the certification.  Do 

             5  you agree with that?

             6       A.  I don't have the language of the certification 

             7  in front of me.

             8       Q.  You can see the language in the certification 

             9  in the complaint two pages prior.  

            10       A.  Okay.  It's actually one page prior, but I'm 

            11  looking at that. 

            12           MS. MACEDO:  Is it paragraph nine? 

            13           THE WITNESS:  Number nine, yes.

            14           BY MR. HUNGERFORD:  

            15       Q.  Those are identical conditions, correct, 

            16  paragraph nine of the certification and paragraph four 

            17  on the action plan for logging?

            18       A.  Yes, that's correct.  I see that.

            19       Q.  So what's your understanding of the 

            20  relationship between the certification and the action 

            21  plan for logging?

            22       A.  The language in the certification is intended 

            23  to reflect the language in the action plan.

            24       Q.  So let me tell you just the way I think I 

            25  understand it, and I'd like your view on whether this is 




                                                                     52




                                                                       


             1  correct.  I believe that the certification was developed 

             2  in part on reliance on the action plan in the specific 

             3  provisions there, but they don't copy them verbatim.  Is 

             4  that basically correct?

             5       A.  That appears to be the case.

             6       Q.  It's also my understanding that the complaint 

             7  is based on specific conditions in the certification 

             8  which, although they are based on conditions in the 

             9  action plan for logging, don't specifically allege 

            10  violations of the action plan for logging.  Is that also 

            11  a correct characterization?

            12           Condition thirteen of the cert which states 

            13  project activities shall comply with provisions of the 

            14  North Coast Regional Water Control Plan, the Basin Plan, 

            15  would cover the action plan independently of paragraph 

            16  nine of additional condition nine.  

            17       Q.  Okay.  

            18       A.  And I'm looking on page seven of the complaint.

            19       Q.  Okay.  Now, that's additional condition 

            20  thirteen.  Additional condition thirteen relates to 

            21  fueling, lubrication and maintenance.  

            22       A.  Maybe we have an error, then.  Is it additional 

            23  condition seventeen, then?  Should it say seventeen in 

            24  the complaint and not thirteen?

            25       Q.  There was a change in the certification on 




                                                                     53




                                                                       


             1  April 18th, '06 which modified thirteen.  

             2       A.  Again, I don't have the full text of the 

             3  certification in front of me, but there is an additional 

             4  condition that refers to the, that states what I just 

             5  stated.  

             6       Q.  Okay.  

             7       A.  That's my recollection.  

             8           MR. HUNGERFORD:  Julie, looking at the 

             9  complaint, it does appear that there might be --

            10           MS. MACEDO:  A typo?

            11           MR. HUNGERFORD:  A typo.  Thirteen in the 

            12  certification that I have, it isn't carried through in 

            13  the complaint.  It's different.  

            14           MS. MACEDO:  On the complaint, page and 

            15  paragraph number?  

            16           MR. HUNGERFORD:  Page seven of the complaint, 

            17  paragraph additional condition thirteen.  

            18           THE WITNESS:  Paragraph fifteen actually.  

            19           MR. HUNGERFORD:  That's something we can sort 

            20  out later.  I just want to bring it to your attention.  

            21           BY MR. HUNGERFORD:  

            22       Q.  So then looking at the additional condition in 

            23  the certification, we have a number of categories, A 

            24  through H, that are listed by way of overview on page 

            25  ten of my version of the complaint.  Do you see that?




                                                                     54




                                                                       


             1       A.  Yes.

             2       Q.  And are you basically familiar with these 

             3  categories?

             4       A.  Yes.

             5       Q.  Construction dewatering violations, can you 

             6  describe for me -- First, this is the first category, 

             7  which is A.  Can you describe for me generally what 

             8  these relate to?

             9       A.  As it states, the discharge of turbid water 

            10  from unlined dewatering basins.

            11       Q.  Into unlined dewatering basins?

            12       A.  And then ultimately into the river.

            13       Q.  Is the lining of the basin a requirement of the 

            14  certification?

            15       A.  Compliance with the application is a 

            16  requirement of the certification.

            17       Q.  And the application in this case, did it 

            18  require lining of the basins?

            19       A.  It required that the basin be located a minimum 

            20  of one hundred feet away from the stream channel.

            21       Q.  We'll get into that requirement in a second, 

            22  but as far as lining goes, was lining part of the 

            23  application?

            24       A.  I don't know.

            25       Q.  You mentioned that the application said that 




                                                                     55




                                                                       


             1  basins would be a hundred feet away from the river; 

             2  correct?

             3       A.  Yes.

             4       Q.  Do you know how far -- Well, back up.  Is it 

             5  fair to say that there's one basin that underlies a 

             6  number of the allegations in the complaint called 

             7  Isolated Pool B?

             8       A.  That's my understanding.

             9       Q.  And to your knowledge, are there any other 

            10  basins used for this project that underlie this series 

            11  of dewatering violations?

            12       A.  My understanding is that there was a second 

            13  pool that was created that was even closer to the river, 

            14  and that's documented on page eleven of the complaint.

            15       Q.  Okay.  Does that have a name such as Isolated 

            16  Pool B?  

            17       A.  Not to my knowledge.

            18       Q.  So speaking of Isoloated Pool B, do you know 

            19  how far away from the river that was?

            20       A.  The information in the complaint states that it 

            21  was about seventy feet from the river.

            22       Q.  In each direction?

            23       A.  In the closest direction I presume is what that 

            24  means.

            25       Q.  So let's go through the conditions that relate 




                                                                     56




                                                                       


             1  in this group of violations.  Condition nine, my version 

             2  of condition nine starts, "No debris, soil, silt, sand," 

             3  et cetera.  Does that comport with what your version 

             4  says in the complaint?

             5       A.  I'm referring to language in the complaint, and 

             6  I see, "No debris, soil, silt, sand, dark, slash, 

             7  sawdust, rubbish, cement or concrete washings, oil or 

             8  petroleum products, or other organic or earthen material 

             9  ... shall be allowed to enter."

            10       Q.  That's good enough.  And so the use of Isolated 

            11  Pool B within a hundred feet of the river, how does that 

            12  violate condition nine?

            13       A.  The discharge of water to Isolated Pool B 

            14  resulted in a plume appearing in the river, and the 

            15  presence of the -- Regardless of whether that pool was 

            16  lined or unlined or its distance away from the stream, 

            17  the indication that there was a discharge of turbid 

            18  water occurring in relation to the activities to the 

            19  discharge of water into Isolated Pool B would indicate 

            20  that the best management practices proposed in the 

            21  application were inadequate to prevent a discharge.

            22       Q.  Now, you mention turbidity created as a result 

            23  of use of Pool B, and I believe you have another set of, 

            24  another group of allegations that relate to turbidity.  

            25  Specifically with respect to the use of Isolated Pool B, 




                                                                     57




                                                                       


             1  discharges into Isolated Pool B, how is condition nine 

             2  violated?  

             3       A.  Well, in fact the discharge of turbid water to 

             4  Isolated Pool B, which was not installed in accordance 

             5  with the application itself, would constitute a 

             6  violation action whether or not there was any turbid 

             7  water that reached the river.

             8       Q.  This group of violations also relies on 

             9  additional condition twelve, correct?  And I'm looking 

            10  at page ten of the complaint.  

            11       A.  Yes.

            12       Q.  And my version of page twelve, I'm sorry, my 

            13  version of condition twelve starts with, "If 

            14  construction dewatering is found to be necessary," which 

            15  is different than what the complaint says on page seven.  

            16           MR. HUNGERFORD:  Can we go off the record for a 

            17  second?  

            18           (Off-the-record discussion held.)

            19           MR. HUNGERFORD:  Back on.  

            20           BY MR. HUNGERFORD:  

            21       Q.  So, Mr. Leland, you have a copy of the 

            22  certification; correct?

            23       A.  Yes, dated February 16th, 2006.

            24       Q.  Now, I'll represent to you that there were 

            25  April 2006 modifications to paragraphs four and 




                                                                     58




                                                                       


             1  thirteen.  I don't know that they are going to be 

             2  pertinent to our discussion today.  They're relatively 

             3  minor changes, but I just wanted to alert you of that 

             4  since you don't have it in front of you.  

             5       A.  Thank you.

             6       Q.  So we're talking about series A, construction 

             7  dewatering violations, and we were talking about 

             8  condition twelve, additional condition twelve of the 

             9  certification, if you could take a look at that, please. 

            10       A.  Okay.

            11       Q.  A moment ago, we were talking about the use of 

            12  Isolated Pool B.  How did the use of Isolated Pool B 

            13  violate condition twelve from the certification?

            14       A.  I, I don't think I'm able to answer that 

            15  question.

            16       Q.  Well, in this grouop of violations, I'll 

            17  represent that looking at the tables that are 

            18  appendicized to the complaint, there are several 

            19  violations involving the use of Isolated Pool B that 

            20  allege violations of condition twelve.  So I would like 

            21  your understanding, to the extent that you could provide 

            22  it, for why the use of Isolated Pool B violates 

            23  condition twelve.  

            24       A.  I don't think I'm the best person to answer the 

            25  question.  I think it would be -- Probably Kason would 




                                                                     59




                                                                       


             1  be in a better position to answer that specifically.

             2       Q.  Just to review, you did say earlier that you 

             3  were responsible for reviewing and approving the 

             4  allegations of the complaint; correct?

             5       A.  Yes.

             6       Q.  But as you sit there, you cannot explain to me 

             7  why it is that condition twelve is violated by the use 

             8  of Isolated Pool B; is that correct?

             9       A.  That's correct.

            10       Q.  This group of violations also relates to 

            11  condition seventeen of the certification, if you could 

            12  take a look at that for a moment.  

            13       A.  Actually, if we go back to condition twelve, in 

            14  reviewing the complaint, it does state quite clearly 

            15  that Isolated Pool B lies within the definition of 

            16  surface waters, and so that's a violation of condition 

            17  twelve.

            18       Q.  Where is that definition of surface waters?

            19       A.  I don't know.

            20       Q.  And I'm just speaking just as a layman because 

            21  I mean clearly, there were not surface waters, albeit 

            22  within the hundred-year flood plain, but there were not 

            23  surface waters or discharges to surface waters.  So, you 

            24  know, where is that definition?

            25       A.  Yes, and I'm saying that I don't know, that 




                                                                     60




                                                                       


             1  there are several definitions that are used in 

             2  determining where surface waters are, and you mentioned 

             3  the hundred-year flood plain.  There are other 

             4  definitions, one of which is referred to here as the 

             5  Vanquill (phonetic) Channel.  There are also definitions 

             6  that relate to ordinary high water that come into the 

             7  401 certification arena.  So there are -- I probably 

             8  should nuance this and say that there are several 

             9  definitions of surface waters that could apply.

            10       Q.  Well, here's the important thing that I want to 

            11  know.  Where in the certification does it define what is 

            12  surface waters?

            13       A.  The certification references a number of other 

            14  documents.  It doesn't include, it doesn't include all 

            15  of the definitions.  It doesn't include all of the 

            16  provisions of the Basin Plan that might apply for 

            17  example.  So it's necessary to go back to other 

            18  documents and guidance to find all of the applicable 

            19  information that is included in the certification.

            20       Q.  I'm looking at additional condition twelve, and 

            21  it refers to disposal to surface waters, and then it 

            22  also refers to land disposal.  Now, certainly as applied 

            23  in this project, all the parties involved believed that 

            24  the disposal to Isolated Pool B was land disposal rather 

            25  than discharge to surface waters.  Do you believe that 




                                                                     61




                                                                       


             1  that was an unreasonable interpretation of condition 

             2  twelve?

             3       A.  Yes.

             4       Q.  Based on what?

             5       A.  Disposal was permitted in accordance with the 

             6  terms of the application.  Disposal was not done in 

             7  accordance with the terms of the application.

             8       Q.  Did the application define surface waters to 

             9  your knowledge?

            10       A.  I don't know that it did, but the 

            11  certification, the certification allows, allows -- It is 

            12  a permit to discharge, functional, and so in this case, 

            13  we, consistent with the application, we allowed certain 

            14  discharges to occur.  This discharge did not occur in 

            15  accordance with the terms of the application.

            16       Q.  Let's assume that the application doesn't 

            17  define surface waters.  How would Caltrans or any of the 

            18  contractors know that surface waters means something 

            19  other than, you know, simply water which has a surface, 

            20  which, if this case, would be the active stream itself?

            21       A.  I think the point here is that the contractor 

            22  and Caltrans should have known that they were 

            23  discharging in violation of the terms of the 

            24  application, outside of the application that they gave 

            25  us, and that they therefore had an obligation to come 




                                                                     62




                                                                       


             1  back to us and seek permission to violate or to deviate 

             2  from the application that forms the basis of the 

             3  certification.

             4       Q.  You're speaking now of the hundred-foot 

             5  requirement, correct?

             6       A.  That's correct.

             7       Q.  But we still haven't figured out how we define 

             8  surface waters and how Caltrans and their contractors 

             9  should have understood that term.  

            10       A.  And we have discussed this with Caltrans on 

            11  other occasions, although I couldn't tell you exactly 

            12  when or what the nature of those discussions were, and 

            13  we've also offered trainings to Caltrans to explain what 

            14  surface water means in our regulatory construct.

            15       Q.  Can you reference for me one of those training 

            16  sessions?

            17       A.  I can't specifically, but Mona would be able 

            18  to.  Mona Dougherty would be able to identify specific 

            19  dates.

            20       Q.  Looking at page eleven of the complaint, I want 

            21  to just point your attention to a couple of statements.  

            22  The first is in the first paragraph on page eleven, and 

            23  it states that, "On August 29, August 30 and September 

            24  7th 2006, sediment transport occurred from subsurface 

            25  flow through the gravel bar directly to the river due 




                                                                     63




                                                                       


             1  the hydrostatic head pressure from dewatering discharges 

             2  to Isolated Pool B."  Do you see that language?

             3       A.  Umm-umm.

             4       Q.  How did the Regional Board make the 

             5  determination that that was the physical mechanism that 

             6  created turbidity outside of Isolated Pool B in the 

             7  active river?

             8       A.  I don't understand that there would be any 

             9  other possibilities.

            10       Q.  Well, if we assume that the gravel bar has 

            11  subsurface water, you can't see below the gravel itself, 

            12  and if you exert pressure on one part of the gravel bar, 

            13  then the head pressure will affect the subsurface water, 

            14  another part of the gravel bar, which in this case, it 

            15  would seem reasonable to me at least, it would have 

            16  pushed out clean water from the gravel bar into the 

            17  river channel.  Do you follow me?  

            18       A.  So far.

            19           MS. MACEDO:  No.

            20           BY MR. HUNGERFORD:  

            21       Q.  So one explanation for the turbidity that was 

            22  recorded outside of the Isolated Pool B in the active 

            23  channel was not that turbid water from the discharge was 

            24  actually exiting but rather that the pressure of the 

            25  water being placed in Pool B in turn affected other 




                                                                     64




                                                                       


             1  subsurface water which pushed that out into the river 

             2  channel, thereby motion of the water creating turbidity.  

             3  Does that seem like a reasonable explanation of the 

             4  observations recorded in the complaint?               

             5           MS. MACEDO:  I'm going to object as an 

             6  incomplete hypothetical.  

             7           MR. HUNGERFORD:  You can answer.

             8           THE WITNESS:  I don't see why it makes any 

             9  difference.  

            10           BY MR. HUNGERFORD:

            11       Q.  Well, I think it makes a difference because in 

            12  the one scenario, it's clean water that's being moved 

            13  out of the gravel bar into the river by head pressure, 

            14  and in the other scenario, it's turbid water from the 

            15  dewatering discharge which is moving into the active 

            16  river, and I think there is a difference.  

            17       A.  My understanding of the language in the 

            18  complaint is that there was sediment transported out of 

            19  the gravel bar into the river, not clean water.

            20       Q.  If the clean water was pushed out of the site 

            21  of the gravel bar, at that point, the gravel bar was 

            22  adjacent to the river channel, it would have created, it 

            23  would have moved sediment there at that portion of the 

            24  river bed; wouldn't it?

            25       A.  As I said before, I don't see that there's 




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             1  functionally a difference if the action resulted in 

             2  conditions that led to a discharge of turbid water into 

             3  the river.  How that action actually resulted in that 

             4  discharge is immaterial.

             5       Q.  I tend to disagree with you because some of the 

             6  allegations in the complaint are based on the nature of 

             7  discharges in the Isolated Pool B, you know, what types 

             8  of materials were put in Isolated Pool B.  If the 

             9  Regional Board's allegation is that water quality in the 

            10  Isolated Pool B, you know, subsurface traveled into the 

            11  river, that's one thing.  I think it's a different thing 

            12  if the pressure created by putting water in Pool B 

            13  pushed out otherwise clean water from underneath the 

            14  gravel bar, and the movement of that water created 

            15  turbidity.  The turbidity issue doesn't change, but the 

            16  nature of the discharge in the river does.  Do you see 

            17  my distinction?

            18           MS. MACEDO:  There wasn't any question pending 

            19  until he asked about the distinction.  

            20           THE WITNESS:  I see a distinction, but I don't 

            21  see that the net outcome is any different.  An action 

            22  was taken that caused a violation of the water quality 

            23  objective.

            24           BY MR. HUNGERFORD:  

            25       Q.  My hypothetical, as an engineer, does it make 




                                                                     66




                                                                       


             1  sense to you, or does it seem not possible?

             2       A.  It's possible, it would be necessary actually, 

             3  that when water, if water is initially placed to a 

             4  create head difference, that some, that the water 

             5  between the place where the water is added and the 

             6  discharge point would have to be displaced before the 

             7  water in the, in this case Isolated Pool B could reach 

             8  the river.  I mean that's a physical requirement.  

             9           However, after some period of time, water 

            10  placed in Isolated Pool B would be discharging directly 

            11  to the river. 

            12       Q.  Let me direct your attention on page eleven to 

            13  the second full paragraph.  About halfway down, it 

            14  describes potentially serious water quality impacts.  Do 

            15  you see that?

            16       A.  You're in the second paragraph?  

            17       Q.  Yes, of page eleven, roughly halfway.  

            18       A.  Yes.  

            19       Q.  Are you aware of any serious water qualitiy 

            20  impacts caused by this project?

            21       A.  We would consider violation of Basin Plan water 

            22  quality objectives to be serious water quality impacts.

            23       Q.  And which objectives in the Basin Plan were 

            24  violated through the use of Isolated Pool B?

            25       A.  Well, my understanding is that there were 




                                                                     67




                                                                       


             1  turbid water discharges.

             2       Q.  The Basin Plan has a standard for turbidity, 

             3  correct?

             4       A.  Yes, it does.

             5       Q.  It has a numeric and a subjective standard?

             6       A.  I believe that's correct.

             7       Q.  And what is the numeric standard?

             8       A.  Twenty percent of background.

             9       Q.  And were there any determinations made that 

            10  that standard was breached by the use of Isolated Pool 

            11  B?

            12       A.  The obligation on the part of the, of Caltrans 

            13  contractors was to make the measurements, and that's the 

            14  subject of another suite of allegations in the 

            15  complaint, and those measurements were either not made 

            16  or made with improperly calibrated instruments.  So we 

            17  have no good information on that.

            18       Q.  And again, you're speaking out of a different 

            19  set of allegations which we'll get to.  

            20       A.  Yes, but which relates to this.

            21       Q.  Which do relate to this, but in the complaint, 

            22  you've structured this complaint in a way that separates 

            23  the two and that identifies violations for the use of 

            24  Isolated Pool B and separately addresses the measurement 

            25  issue.  So I'll get to that later, but we're discussing 




                                                                     68




                                                                       


             1  actual serious water quality impacts in the use of 

             2  Isolated Pool B.  You mentioned the numeric turbidity 

             3  standard.  What about impact to beneficial uses?  Are 

             4  you aware of any?

             5       A.  The Basin Plan in the Clean Water Act is 

             6  structured around identification of both beneficial uses 

             7  and water quality objectives that intended to protect 

             8  those beneficial uses.  

             9           We rely on compliance with the water quality 

            10  objectives to protect beneficial uses.  So our 

            11  presumption is that violation of the water quality 

            12  objectives has the potential to harm the beneficial 

            13  uses.  So independent confirmmation of that is not 

            14  necessary. 

            15       Q.  Well, let me back up then a moment.  The way I 

            16  interpreted your answer to the last question was that 

            17  you couldn't make a determination as to whether the 

            18  twenty percent turbidity standard had been breached in 

            19  this case through the use of Isolated Pool B.  Do I 

            20  understand that correctly, or did I misunderstand?

            21       A.  No, you understood that correctly.

            22       Q.  So standing there, you can't tell me whether 

            23  the twenty percent turbidity standard was violated 

            24  because there was no measurement; correct?

            25       A.  That's correct.




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             1       Q.  And so not knowing whether the numeric 

             2  turbidity standard is violated, how then can you make a 

             3  determination that the beneficial uses requirement was 

             4  violated?

             5       A.  I didn't say that it was.

             6       Q.  Well, then let me ask you, are you aware of any 

             7  turbidity violations from the use of Isolated Pool B 

             8  that violated your beneficial uses requirement in the 

             9  Basin Plan?

            10       A.  Again, as I stated previously, the violation of 

            11  water quality objective is presumed to have the 

            12  potential to affect beneficial uses adversely.

            13       Q.  I feel like we're going in circles because as I 

            14  understand it, you haven't been able to make a 

            15  determination as to whether the water quality objective 

            16  was violated from the use of Isolated Pool B, and not 

            17  being able to make that determination, how then can we 

            18  determine that beneficial uses were also adversely 

            19  affected?

            20       A.  The language in the second paragraph qualifies, 

            21  uses the qualifier potentially.  My understanding in 

            22  reading this, and this is why I brought up the other 

            23  violations related to measurement and the obligations to 

            24  measure, that we are not able to make precise 

            25  determination about violations because measurements that 




                                                                     70




                                                                       


             1  were required to have been taken in association with the 

             2  event were not taken.  

             3       Q.  You maybe recall from reading the files that 

             4  underlie the complaint, particularly from the biological 

             5  monitor, that there was some actually fairly precise 

             6  visual observations made of the turbidity created by the 

             7  use of Isolated Pool B, and that in most cases at least, 

             8  and possibly all of them, that turbidity was less than 

             9  the hundred-foot, twenty-percent standard specified in 

            10  the certification; do you recall that?

            11       A.  No, I don't.

            12       Q.  Well, I'll represent to you that on at least 

            13  one occasion, that a turbidity plume was allegedly 

            14  created from the use of Isolated Pool B.  It was less 

            15  than ten feet in length and lasted for a reasonablly 

            16  short period of time.  Based on that observation, can 

            17  you make a determination as to whether the numeric 

            18  turbidity in the Basin Plan was violated?

            19       A.  Making a determination about the numeric 

            20  objective specifically would require measurements with a 

            21  properly calibrated instrument.

            22       Q.  Well, I don't want to confuse the measurement 

            23  requirement with the certification.  This gets to a more 

            24  basic question that I have, which is:  Putting aside the 

            25  certification, how is the twenty percent standard 




                                                                     71




                                                                       


             1  applied?  Is it twenty percent, you know, two inches 

             2  from the source of turbidity, or is it a number of feet, 

             3  or is a reasonable zone of delusion permitted?

             4       A.  Well, we don't have any specific provisions in 

             5  our Basin Plan for zones of delusion, so it would be 

             6  typically an upstream measurement compared to 

             7  measurements within the plume.

             8       Q.  Hypothetically, if I were to walk out in South 

             9  Fork Eel River right now and set foot or walk across the 

            10  river, then I would most likely create a certain amount 

            11  of turbidity from my footsteps.  It's likely to be 

            12  small, but I would still create some turbidity.  How 

            13  would you make a determination as to whether that would 

            14  violate the turbidity standard of twenty percent in the 

            15  Basin Plan?

            16       A.  I'm not sure I understand your question.

            17       Q.  If I'm standing in the South Fork Eel River or 

            18  if I'm walking across the river, I'm likely to create 

            19  some turbidity; correct?

            20       A.  That's possible.

            21       Q.  How would the Regional Board determine whether 

            22  or not that turbidity violates the twenty percent 

            23  standard?

            24       A.  This is an issue that is often -- Well, it's a 

            25  challenging issue frankly as to is there a diminimous 




                                                                     72




                                                                       


             1  level, how do we manage under a circumstance like that, 

             2  and -- 

             3       Q.  I don't want to belabor this.  

             4       A.  Do we permit certain activities that have, you 

             5  know a diminimous impact?  

             6       Q.  Well, I'm not talking about diminimous impacts.  

             7  I'm talking about an issue that's equally difficult and 

             8  challenging from the standpoint of people that are 

             9  subject to the Basin Plan and to conditions that are 

            10  based on the Basin Plan.  

            11           In this case, you know, we have clear 

            12  observations of plumes that are less than ten feet in 

            13  length created potentially by the use of Isolated Pool 

            14  B, and so my question to you is: How can you determine 

            15  or how do you determine whether or not those violate the 

            16  Basin Plan, the Basin Plan's twenty percent standard to 

            17  be exact? 

            18       A.  I think the other relevant question is:  Did we 

            19  we have the opportunity to have that conversation?  I 

            20  don't know about the specific circumstances here, 

            21  whether these were reported to us, whether there was 

            22  discussion about whether or not the BMP or the 

            23  management practice that was put in place was adequate, 

            24  whether any adjustments should be made, but that is 

            25  certainly a part of the process, of our expectation of 




                                                                     73




                                                                       


             1  the process, is if a suite of management practices is 

             2  put in place that then results in, even if it's an 

             3  apparent violation of the Basin Plan, that that would 

             4  initiate discussion with the Regional Board to come to 

             5  some agreement as what was appropriate to do in that 

             6  particular circumstance.

             7       Q.  I don't want to get caught up in the -- That's 

             8  why my hypothetical is taking it out of this ACL 

             9  complaint 'cause I don't want to get caught up in the 

            10  traffic of the complaint, you know, to hinder us from 

            11  answering this basic question, which is how the twenty 

            12  percent turbidity standard in the Basin Plan is applied, 

            13  and so again, I go back to my question of where I'm 

            14  walking across the river, and I'm creating turbidity, 

            15  and let's say it's a twenty-foot plume downstream.  How 

            16  can you term whether or not that violates the Basin 

            17  Plan?

            18       A.  I would say that technically, it could be 

            19  considered a violation of the Basin Plan, and I say 

            20  "could" because it would require, you know, arguably 

            21  measurements that set the numeric standard.

            22       Q.  So let's assume that at some point, four feet 

            23  away from my feet, it exceeds twenty percent of -- The 

            24  twenty percent standard is reached.  Is that then a 

            25  violation?




                                                                     74




                                                                       


             1       A.  If it violates the twenty percent standard.  As 

             2  I said, we don't have a provision for measurements on 

             3  it.  It could be considered a violation, yes.

             4       Q.  Let me go down to page eleven to the next 

             5  paragraph.  Towards the bottom of the paragraph, there 

             6  is reference to, "a designated environmentally sensitive 

             7  area in the river," and a silty discharge into a 

             8  backwater pool.  Do you know what designated 

             9  environmentally sensitive area is being referenced 

            10  there?

            11       A.  No, I don't.

            12       Q.  Category B references leaky equipment 

            13  violations; correct?

            14       A.  Yes.

            15       Q.  And there are two conditions here that are 

            16  violated, that are alleged to have been violated from 

            17  these activities.  One is nine, and the other is 

            18  thirteen.  The first one is nine.  Just take a quick 

            19  moment to re-familiarize yourself with that.  

            20       A.  Okay.

            21       Q.  Now, many of the equipment violations, leaky 

            22  equipment violations that are alleged, or at least some 

            23  of them, relate to situations where equipment was 

            24  considered leaky, at least by the biological monitor.  

            25  However, there's no record of any uncontrolled dripping 




                                                                     75




                                                                       


             1  of equipment, you know.  For example, drips were 

             2  controlled by absorbent rags or plastic sheeting or the 

             3  trestle deck.  

             4           In those situations where no oil, grease, 

             5  fluids from machinery actually reaches the river or the 

             6  gravel bar, how is condition nine of the certification 

             7  violated? 

             8       A.  In some instances, discharge of materials to a 

             9  place where it may be washed by rainfall into waters of 

            10  the State constitutes a violation.

            11       Q.  Well, let's assume that we've completely 

            12  captured any leaks by the use of plastic sheeting which 

            13  is something, just by its nature, that we're going to 

            14  clean up on a daily or twice-daily basis.  Would that 

            15  then exclude that event from being a violation under 

            16  condition nine?

            17           MS. MACEDO:  Objection, incomplete 

            18  hypothetical, but you can answer.

            19           THE WITNESS:  My understanding is that it 

            20  would.  

            21           MS. ZAZZERON:  Would you read the question 

            22  back, please?

            23           Record read:  Question, "Well, let's assume 

            24  that we've completely captured any leaks by the use of 

            25  plastic sheeting which is something, just by its nature 




                                                                     76




                                                                       


             1  that we're going to clean up on a daily or twice-daily 

             2  basis.  Would that then exclude that event from being a 

             3  violation under condition nine?"  Answer, "My 

             4  understanding is that it would."

             5           BY MR. HUNGERFORD:  

             6       Q.  Condition thirteen relates to fueling and 

             7  lubrication, correct?

             8       A.  Yes.

             9       Q.  And you did mention earlier that you understood 

            10  there were some problems with fueling of the vehicles in 

            11  this project; is that right?

            12       A.  Yes.

            13       Q.  Just again, briefly describe for me what your 

            14  understanding was of the problems that occurred with 

            15  fueling and lubrication of this project.  

            16       A.  One as described in the complaint is inadequate 

            17  implimentation of BMPs.

            18       Q.  Well, let me be more specific.  Is the 

            19  allegation that equipment was refueled in the wrong 

            20  location?

            21       A.  I'd have to spend more time with the underlying 

            22  violations to be able to answer that.

            23       Q.  Do you have any basic understanding as to 

            24  whether or not equipment was refueled in the wrong 

            25  place?




                                                                     77




                                                                       


             1       A.  I understand that that happened on some 

             2  occasions.

             3       Q.  And where was equipment supposed to have been 

             4  fueled that's required by the certification and/or the 

             5  application?

             6       A.  I don't know specifically.

             7       Q.  Who would be the best person to talk to at the 

             8  Regional Board about this particular issue?

             9       A.  The BMPs that are cited refer back to the storm 

            10  water permit, so Mona Dougherty would probably be the 

            11  best person.  

            12       Q.  Category C relates to slag discharge 

            13  violations.  That's on page thirteen.  That begins on 

            14  page thirteen, and they rely exclusively on one 

            15  condition, number nine of the certification; correct?

            16       A.  Yes.

            17       Q.  Now, when we spoke a little earlier, you 

            18  mentioned that there were BMPs that were put in place at 

            19  some point in time with respect to containing slag; 

            20  correct?

            21       A.  Yes.

            22       Q.  Do you know what BMPs those were?

            23       A.  They're described in the complaint I believe.

            24       Q.  Do you recall what they are independently or 

            25  from your review of the complaint?




                                                                     78




                                                                       


             1       A.  There were several BMPs that were tried, one 

             2  that involved foam and another that involved some 

             3  additional sheeting or something like that as a 

             4  collection device.

             5       Q.  For slag?

             6       A.  I believe so, if I'm not mistaken.

             7       Q.  I think some buckets and blankets were 

             8  described, and I'm referring now to page thirteen, the 

             9  first paragraph under section C.  

            10       A.  Perhaps I'm misremembering.

            11       Q.  Well, take a moment just to read that first 

            12  paragraph under Slag Discharge Violations.  

            13       A.  Uh-huh, yes, I see the language you're 

            14  referring to.

            15       Q.  So my question is:  What containment, if any, 

            16  would the Regional Board have expected for the welding 

            17  slag?  

            18       A.  Something that prevented the discharge of 

            19  welding slag into the river.

            20       Q.  Do you know what the chemical composition of 

            21  welding slag is?  

            22       A.  I don't specifically.  

            23       Q.  Do you have any basic understanding as to 

            24  whether or not discharge of welding slag into the river 

            25  would have any adverse impacts on water quality?




                                                                     79




                                                                       


             1       A.  I don't specifically.  I can see that the BMPs 

             2  that I was applying to the slag actually had to do with 

             3  refueling on the upper deck.

             4       Q.  Do you have any basic understanding as to how 

             5  much slag was deposited or fell into the river or the 

             6  gravel bar over the course of the project?

             7       A.  I don't have a sense of the volume of the 

             8  material.

             9       Q.  To your knowledge, has anyone from the Regional 

            10  Board attempted that analysis?

            11       A.  I don't know; I don't know.  

            12       Q.  All right.  We have section D on page fourteen, 

            13  Turbid Discharge.  Are you there with me?

            14       A.  Uh-huh, Yes, I am.

            15           MR. HUNGERFORD:  Give me a moment here.  This 

            16  is out of order.  Do you want to go off the record for a 

            17  second?  

            18           MS. MACEDO:  Sure.

            19           (Recess held.)

            20           MR. HUNGERFORD:  We're back on.  

            21           BY MR. HUNGERFORD:  

            22       Q.  So when we left off, Mr. Leland, we were on 

            23  page fourteen of the complaint, and we just started to 

            24  talk about category D, violations described as turbid 

            25  discharge to the river.  Are you with me?




                                                                     80




                                                                       


             1       A.  Yes.

             2       Q.  I only have a couple of questions for you about 

             3  this.  One is in the first paragraph under section D.  

             4  It says, "drilling debris without containment."  Do you 

             5  know what the refers to?  

             6       A.  Not specifically.

             7       Q.  When I read it, I thought that maybe it was 

             8  slag without, discharges without containment, but I 

             9  wasn't totally sure, and you can't tell me one way or 

            10  another, huh?

            11       A.  I could guess that it might be drilling 

            12  associated with the bridge piers, but that would just be 

            13  a --

            14       Q.  Speculation on your part?

            15       A.  Somewhat speculative on my part.

            16       Q.  On concrete discharges, I'm assuming that's 

            17  semiticious material discharges, and that's again 

            18  subsection four in that first paragraph.  Are you aware 

            19  of any discharges of semiticious material directly into 

            20  the river?

            21       A.  Not specifically.

            22       Q.  Give me a moment.  Let me ask you about one 

            23  situation which was described in the complaint.  There 

            24  was an allegation about cleaning tools in one of the 

            25  CSPs in which concrete had already been poured.  Do you 




                                                                     81




                                                                       


             1  recall that?

             2       A.  What's a CSP?  

             3       Q.  Well, it's corrugated -- 

             4           MS. BRENKUS:  Steel.  

             5           BY MR. HUNGERFORD:  

             6       Q.  Corrugated steel pipe.  Are you familiar with 

             7  what the corrugated steel pipe was?

             8       A.  Why don't you explain to me what you mean?  

             9       Q.  I'll give you my best explanation of it, not 

            10  being one of the contractors.  When you would create a 

            11  footing for one of the structures that would go into the 

            12  river, either for the permanent structure or for the 

            13  temporary structure that was used for equipment access, 

            14  you would excavate out the bottom if it was within the 

            15  active river.  You would then place corrugated steel 

            16  pipes, and correct me if I'm wrong, into the river, 

            17  pushing them, cutting them as best you can to the bottom 

            18  of the river, and then you would shore up the inside 

            19  and/or outside of the sandbags.  

            20           You would then pour concrete into that to 

            21  establish your foundation.  What you'd be left with 

            22  after the pour is essentially, you know, a dammed up 

            23  area in the middle of the river inside these kind of a 

            24  corrugated steel piping unit, and inside of that, you'd 

            25  have concrete which would have been poured and is in the 




                                                                     82




                                                                       


             1  process of hardening, and then, of course, you have 

             2  water that would have been displaced through the pouring 

             3  of concrete still in the CSP.  So you'd have the water 

             4  which would remain above the concrete but separated from 

             5  active river by the CSP barrier.  Does that make sense?  

             6       A.  Uh-huh, I think so.

             7       Q.  There's one allegation where tools were cleaned 

             8  within a CSP after the concrete pour.  Does that ring a 

             9  bell?

            10       A.  No, it doesn't.

            11       Q.  Well, let me ask you this:  The allegation, as 

            12  I understand it, is that after the concrete was poured 

            13  and the water that was displaced by the concrete was 

            14  standing on the surface of the concrete yet separated 

            15  from the river by a barrier, that the contractor cleaned 

            16  off some of his tools in the turbid water that was 

            17  standing on top of the poured concrete.  Is that 

            18  something that sounds like a violation of the 

            19  certification to you?

            20       A.  I suppose that would hinge on the definition of 

            21  whether those waters are, you know, water of the U.S. or 

            22  not.  If they were, whether they are once they're inside 

            23  the pipe or not, how they were handled afterwards would 

            24  have a bearing on that.

            25       Q.  I'm just curious because my impression of that 




                                                                     83




                                                                       


             1  violation is that at that point, you have a water that's 

             2  already come into contact with wet concrete which is 

             3  completely contained and separated from the gravel bar 

             4  or the active river, and you're cleaning off tools 

             5  within that already compromised, if you will, water, and 

             6  it seemed like a difficult violation to allege, and so I 

             7  wanted your views on that.  

             8       A.  What happens to the water after that?  I mean 

             9  is it pumped out into the river?  

            10       Q.  No.  

            11       A.  Well, how is it handled 'cause that's germane 

            12  to the issue?  

            13       Q.  I believe the allegation is based solely on the 

            14  cleaning of tools within that contained area.  

            15       A.  As I said, I'm not familiar of that particular 

            16  of violation.  

            17       Q.  Okay.  

            18       A.  So it's hard for me to comment.

            19       Q.  Based on my description to you, it looks like 

            20  the certifications we're dealing with are numbers seven 

            21  and nine.  Let me see if I can find that particular 

            22  violation.  I thought I had it here.  I'll come back to 

            23  that one.  Oh, hold on.  We'll get to it.  It comes up 

            24  in a later table.  

            25           Moving along, category E relates to 




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             1  insufficient turbidity measurement violations, correct?

             2       A.  Yes.

             3       Q.  And this is on page fourteen of the complaint?  

             4       A.  Right.  

             5       Q.  And all of these violations, this entire set, 

             6  relate to additional condition number nineteen of the 

             7  certification.  I'm going to let you just turn to that.  

             8  Take a moment and tell me when you're re-familiar with 

             9  it.  

            10       A.  Okay.

            11       Q.  Let's focus on the first paragraph within 

            12  additional condition nineteen.  Towards the end it says, 

            13  "Field turbidity measurements shall be collected 

            14  whenever a project activity causes turbidity of the 

            15  South Fork Eel River to be increased above background 

            16  concentrations in order to demonstrate compliance 

            17  receiving water limitations."  Do you see that?

            18       A.  Yes.

            19       Q.  What are field turbidity measurements?  What 

            20  comprises field turbidity measurements?

            21       A.  It would be a measurement taken with a 

            22  measuring device that measures turbidity.

            23       Q.  It could be.  Are there any other types of 

            24  field turbidity measurements that can be taken?

            25       A.  I'm not sure what you're getting at.




                                                                     85




                                                                       


             1       Q.  For example, would visual turbidity 

             2  measurements quality as field turbidity measurements?

             3       A.  That would be -- I would call that a field 

             4  turbidity observation.

             5       Q.  Are you aware of any scales that are commonly 

             6  used to determine turbidity in water based on visual 

             7  observations?  

             8       A.  No, I'm not.

             9       Q.  Are you familiar with URS Corporation?

            10       A.  I've heard of them.

            11       Q.  Do you know what they did for this particular 

            12  project?

            13       A.  No, I do not.

            14       Q.  Well, I'll represent to you that they prepared 

            15  a report that described activities taking place on this 

            16  project and specifically discussed turbidity with 

            17  respect to a number of equipment crossings, and I'm just 

            18  going to hand this to you and ask you to take a look at 

            19  this focusing on the bottom part of the first page where 

            20  it says "Problems encountered and actions taken," if you 

            21  could read that for a moment.  

            22       A.  Okay.  I've skimmed the two pages that you've 

            23  given to me.

            24       Q.  Can I have it just for a moment?  I just have 

            25  one copy.  I'll hand it back.  You'll note on page two, 




                                                                     86




                                                                       


             1  it refers to visual measurements of turbidity on a 

             2  scale, on a numeric scale; correct?

             3       A.  Yes, it does.

             4       Q.  Does it appear to you, based on that 

             5  information, that for this project, at least at one 

             6  point in time, there was used a visual method for 

             7  measuring turbidity?

             8       A.  That appears to be the case.

             9       Q.  Would that appear to be a or would you agree 

            10  that that is a type of field turbidity measurement that 

            11  appears to have been used here?

            12       A.  I'd still call it an observation, but I suppose 

            13  you could call it a measurement.

            14       Q.  Referring back to section or additional 

            15  condition nineteen, what would prevent a visual 

            16  observation or measurement from being utilized as a 

            17  field turbidity measurement within the meaning of that 

            18  condition?

            19       A.  I don't see how the visual observation scale 

            20  that is alluded to here would allow comparison to a 

            21  numerical water quality objective with a twenty percent 

            22  above background.  Perhaps it could, but again, I'm not 

            23  familiar with the scale or with what the definitions of 

            24  the different numbers are.

            25       Q.  Is there anything about this additional 




                                                                     87




                                                                       


             1  condition nineteen that specifically requires actual 

             2  mechanical equipment in the form of an NTU meter as the 

             3  sole means for measuring turbidity in the field?

             4       A.  I am sure that if there were some alternative 

             5  means of establishing difference from background of 

             6  twenty percent besides a turbidity meter that had been 

             7  reviewed and approved by us, that that would be okay.

             8       Q.  Why would it need to be reviewed and approved 

             9  by you?

            10       A.  So that we would have confidence that it was 

            11  actually providing appropriate measurements.

            12       Q.  Is there any language in the certification that 

            13  requires the discharger to get concurrence from the 

            14  Regional Board that their method of measuring turbidity 

            15  in the field is the correct method?

            16       A.  I don't know that there's -- I would have to be 

            17  more familiar than I am with the applicant's project 

            18  description as to what types of instruments were being 

            19  used before I could provide you an answer on that.

            20       Q.  Let me ask you this:  Hypothetically, if visual 

            21  field turbidity measurements were taken that were 

            22  adequate to inform Caltrans and the Regional Board as to 

            23  whether the turbidity standard specified in the 

            24  application of the Basin Plan was being met, would that 

            25  satisfy the requirements of the certification?




                                                                     88




                                                                       


             1       A.  If we had an agreed-upon method of 

             2  characterizing turbidity that would allow us to make 

             3  that determination and we were in agreement on that, 

             4  then that would be okay I would think.  

             5           MS. MACEDO:  I'm going to interpose an 

             6  objection.  It calls for speculation.  

             7           BY MR. HUNGERFORD:  

             8       Q.  Again, you referenced a need for an agreement, 

             9  and I don't see any requirement in the certification 

            10  that Caltrans needed to get the Regional Board's okay on 

            11  whatever method it used to comply with this requirement.  

            12  Is that a requirement that exists somewhere in this 

            13  certification?

            14       A.  The certification presumes that the applicant 

            15  will implement the project in accordance with the 

            16  project description.  

            17           As I mentioned just a minute ago, I'm not 

            18  familiar enough with the application and all of the 

            19  other specifications associated with that as to whether 

            20  a particular type of monitoring device was specified or 

            21  not. 

            22       Q.  So we would need to look at the application for 

            23  that?

            24       A.  Yes.

            25       Q.  And what if the application didn't specify any 




                                                                     89




                                                                       


             1  particular type of device or method of monitoring?

             2       A.  That's speculative.

             3       Q.  Well, I'll represent to you that I don't 

             4  believe the application contained that information.  

             5       A.  All right.  

             6       Q.  In that event, is it possible that a visual 

             7  method for monitoring turbidity in the field would meet 

             8  the requirements of this condition, number nineteen?

             9       A.  Again, if it was presented to us and it was 

            10  approved by us, then it could.  

            11       Q.  Okay.  Thank you.  Skipping down to category G 

            12  on page fifteen toward the bottom, are you there?  Are 

            13  you with me?  

            14       A.  Uh-huh, yes, I am.

            15       Q.  So this set of violations or this group of 

            16  violations relates solely to condition number nine of 

            17  the certification which, in general terms, prevents the 

            18  discharge of debris, soil, sand, bark or other materials 

            19  other than authorized by the permit; correct?

            20       A.  Yes.

            21       Q.  And you may have seen this.  In the photographs 

            22  and the information that's been provided to us by the 

            23  Regional Board, there are various photographs of wood 

            24  floating in the river or metal on the river bed, 

            25  something like that, that nature of event.  My question 




                                                                     90




                                                                       


             1  is this:  If the contractor has in place BMPs to pick up 

             2  and clean rubbish from the site that may have 

             3  inadvertently fallen in the river or on the gravel bar, 

             4  is there a violation if a piece of wood falls in the 

             5  river and is subsequently cleaned up?

             6       A.  The language of condition nine is pretty clear.  

             7  It says, "No debris, soil, silt," et cetera, et cetera, 

             8  "shall be allowed to enter into or be placed where it 

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

            10       Q.  And then it goes on to say, "other than 

            11  authorized by this permit," correct?

            12       A.  Yes.

            13       Q.  Now, the application certainly states that BMPs 

            14  be put in place to prevent this type of material from 

            15  being introduced into the river and to require the 

            16  clean-up of any materials that inadvertently, you know, 

            17  find their way into the river, and I'll make that 

            18  representation.  If those BMPs are followed, is it still 

            19  a violation?

            20       A.  Certainly having BMPs in place would be a 

            21  mitigating factor that we would consider when deciding 

            22  whether or not a particular violation was worthy of a 

            23  penalty, a monetary penalty.

            24       Q.  So hypothetically, if, as a result of a strong 

            25  gust of wind, a piece of cardboard were to come loose 




                                                                     91




                                                                       


             1  and find its way into the river and then be cleaned up 

             2  within the space of a few minutes, that would be a 

             3  violation in your view, and the clean-up would simply be 

             4  a mitigating factor?

             5       A.  Technically.

             6       Q.  Let me skip down to paragraph twenty on page 

             7  seventeen, and the allegation here is that Caltrans 

             8  violated its storm water permit for a hundred and 

             9  forty-one days by not adopting or implementing 

            10  sufficient refueling BMPs or containment on the trestle 

            11  deck; correct?  

            12       A.  Yes.

            13       Q.  Are you familiar with the nature of the 

            14  refueling BMPs that were not allegedly followed?

            15       A.  Not specifically.

            16       Q.  Let turn back to the question I had earlier on 

            17  the cleaning out of materials.  I'm going to have you 

            18  take a look at, this is the page from table one of the 

            19  appendices to the violation, and see under August 29th, 

            20  and we've marked it there, it references the clean-out 

            21  of tools and other materials in the corrugated steel 

            22  pipe containment area.  Do you see that?  

            23       A.  Yes.  This is the one that's circled around the 

            24  X?  

            25           MS. BRENKUS:  Yes. 




                                                                     92




                                                                       


             1           MR. HUNGERFORD:  Yes.  

             2           THE WITNESS:  Okay.  

             3           BY MR. HUNGERFORD:  

             4       Q.  Do you have any recollection at all of the 

             5  circumstances surrounding that particular violation 

             6  other than what's stated there?

             7       A.  I don't.

             8       Q.  All right.  I'm not going to ask you anything 

             9  else on that, then.  

            10           MR. HUNGERFORD:  That's all that I have for 

            11  right now.  

            12           MS. MACEDO:  Do you need some time, Ardine, to 

            13  prepare?  

            14           MS. ZAZZERON:  No.

            15           MR. HUNGERFORD:  It's possible I might have a 

            16  couple of follow-up questions afterwards.

            17           MS. MACEDO:  That's fine.  

            18                         EXAMINATION:

            19           BY MS. ZAZZERON:  

            20       Q.  Mr. Leland, I want to follow up on a question 

            21  that Mr. Hungerford just asked you about a wood chunk, 

            22  if a wood chunk falls into the river and the BMPs are in 

            23  place and it is picked up after several minutes.  Do you 

            24  recall that question?

            25       A.  (Witness nods head.)




                                                                     93




                                                                       


             1       Q.  Yes?

             2       A.  Yes.

             3       Q.  In your experience in watershed protection and 

             4  as a reviewer of ACLs, would you say that such an 

             5  incident as Mr. Hungerford described would warrant 

             6  application of a maximum penalty?

             7       A.  I would say it's certainly a case where we 

             8  would use our discretion in deciding what the penalty 

             9  should be.  It probably would not warrant a maximum 

            10  penalty.

            11       Q.  With respect to Isolated Pool B, how was the 

            12  one hundred foot distance determined?

            13       A.  I don't know specifically.

            14       Q.  Is the hundred foot a number or some kind of a 

            15  guideline that crops up in or exists in water board 

            16  materials or manuals?

            17       A.  I, I don't know specifically.  It could have 

            18  come from Caltrans project descriptions as something 

            19  that was proposed as a BMP for that particular type of 

            20  activity, in which case, we would have evaluated that 

            21  and made a decision, and it may be from professional 

            22  judgment based on observation of similar situations on 

            23  construction sites, or it could have come from some 

            24  other source.  I don't know specifically.

            25       Q.  The use of Pool B, if it had been located 




                                                                     94




                                                                       


             1  within one hundred feet of the live stream channel, that 

             2  would have been okay; is that correct?  

             3           MS. MACEDO:  You said within one hundred feet? 

             4           THE WITNESS:  If it was located within.  

             5           BY MS. ZAZZERON:  

             6       Q.  If it was outside of the one hundred foot 

             7  distance to the stream channel, the use per se would not 

             8  have been a violation; is that correct?

             9       A.  If it had been located beyond one hundred feet 

            10  and there had been no evidence of any turbidity 

            11  discharge or other discharge, then it would have been 

            12  okay, but of course, the process here is if a BMP that 

            13  is proposed turns out to be inadequate, in this case, if 

            14  it met the one hundred feet but then didn't perform 

            15  according to expectation, then the process would be for 

            16  Caltrans to come back to us and say, "Look, we're having 

            17  a problem with this BMP.  We need to try something else.  

            18  Let's figure something out.  Here's our proposal," or 

            19  "Let's figure out something that would work better."  So 

            20  there's an obligation to be in compliance with the 

            21  certification, to be in compliance with the terms of the 

            22  application, the project description that was presented 

            23  to us, and to come back to us if that isn't working, and 

            24  that could be -- In this case, it could have been in two 

            25  different ways:  One was couldn't find a hundred feet to 




                                                                     95




                                                                       


             1  get away from the river, so it had to be within seventy, 

             2  but also we need to do it to make this work, or 

             3  alternatively, it's placed beyond a hundred feet, but it 

             4  still doesn't work for some reason.  

             5       Q.  Okay.  Now, the goal of the BMP, and correct me 

             6  if I'm misstating this, is to basically define measures 

             7  that are practicable and to minimize threats of harm to 

             8  the water?  Is that one way of describing what a BMP is?

             9       A.  Yes, to avoid violations of water quality 

            10  objectives in the Basin Plan.

            11       Q.  In your experience and your knowledge in 

            12  watershed protection, what would make one hundred feet 

            13  preferable to let's say seventy-five feet or fifty feet 

            14  with the placement of Pool B?

            15       A.  Well, I'm not the person with the on-the-ground 

            16  experience with that kind of thing, but I am -- I would 

            17  presume that experience of our people who do inspections 

            18  and make observations of this indicates that, in most 

            19  situations, a hundred feet is adequate.

            20       Q.  Who would be the most knowledgeable person of 

            21  that to tell me the answer to that question?

            22       A.  Dean or Mona.  Dean Prat or Mona Dougherty 

            23  would be.

            24       Q.  And Mr. Grady?

            25       A.  I think Dean or Mona would be the best people 




                                                                     96




                                                                       


             1  to talk to about it.

             2       Q.  Mr. Leland, did you ever visit the project site 

             3  while construction was active?

             4       A.  I drove by there a number of times, but I did 

             5  not stop.

             6       Q.  What is your understanding when construction 

             7  commenced, the date?

             8       A.  Sometime in 2006 I believe.

             9       Q.  And when was it complete?

            10       A.  I don't know.

            11       Q.  To your knowledge, is the project still 

            12  ongoing?

            13       A.  I believe it's completed now, but that's just 

            14  'cause I don't see any activity there when I drive by 

            15  there.

            16       Q.  You testified earlier that Kason Grady got 

            17  documents directly from Caltrans; is that correct? 

            18       A.  I don't think I said anything with respect to 

            19  that, but I understand that that is true, that I believe 

            20  he did get documents directly from Caltrans.

            21       Q.  Do you have personal knowledge that he obtained 

            22  documents directly from Caltrans, and that doesn't 

            23  include the department's response to the order?

            24       A.  What do you mean by personal knowledge?  

            25       Q.  Do you know for a fact, did Mr. Grady tell you 




                                                                     97




                                                                       


             1  he received documents directly from Caltrans?

             2       A.  I believe that that is the case, yes.

             3       Q.  Did you have any conversations or electronic 

             4  correspondence with anyone from Caltrans during the 

             5  course of the project about the project?

             6       A.  No, I did not.

             7       Q.  How about any representatives or employees of 

             8  the Department of Fish and Game?

             9       A.  No, I did not.

            10       Q.  Are you familiar with Karen Maurer?

            11       A.  I've heard her name.

            12       Q.  Have you ever spoken or corresponded with 

            13  Ms. Maurer directly?

            14       A.  I have not.

            15       Q.  With respect to the length of the project, it's 

            16  your understanding it commenced sometime in 2006, and it 

            17  is at this time complete; is that correct?

            18       A.  Yes.

            19       Q.  The violations set forth in the ACL, with 

            20  respect to those, is it accurate to say that there are 

            21  three that occurred in 2007?  

            22           MS. MACEDO:  I'll object and say that the 

            23  document speaks for itself.  Are you talking about just 

            24  the ACLC, the violations of the ACLC?  

            25           MS. ZAZZERON:  Yes.




                                                                     98




                                                                       


             1           THE WITNESS:  I have no account.  

             2           BY MS. ZAZZERON:  

             3       Q.  Other than the violations or the charges set 

             4  forth in the ACL from, dated I believe August 2009, is 

             5  the Board intending to pursue any other charges arising 

             6  out of the Confusion Hill Project against the department 

             7  or any of the contractors?

             8           MS. MACEDO:  I'll object.  It calls for 

             9  speculation or attorney work product.  You can answer if 

            10  you know.

            11           THE WITNESS:  I don't know.  

            12           BY MS. ZAZZERON:  

            13       Q.  Were there any NOVs issued after November 2006 

            14  with respect to this project?

            15       A.  My understanding is that there were just the 

            16  two NOVs that were issued.

            17       Q.  Is it accurate to say that the vast majority of 

            18  charges contained in the complaint arise from events 

            19  that allegedly occurred in 2006?

            20       A.  That appears to be the case.  

            21       Q.  Based on your knowledge of the project, would 

            22  you agree that the patterns and practice with respect to 

            23  compliance with water quality standards improved over 

            24  time at this project?  

            25       A.  That would appear to be the case, although it's 




                                                                     99




                                                                       


             1  a bit speculative on my part.

             2       Q.  Do you have knowledge of any violations that 

             3  occurred after March of 2007 at the project site?

             4       A.  Not specifically.

             5       Q.  How about generally?

             6       A.  I couldn't speak to that.

             7       Q.  Does that mean you have no knowledge as to 

             8  whether any violations occurred after March of 2007?

             9       A.  That means I came prepared to discuss the ACL 

            10  complaint and not any other aspects of the project.

            11       Q.  Has anyone informed you, other than your 

            12  attorney from the Board, that violations occurred after 

            13  March of 2007 on the project?

            14       A.  I don't have any specific knowledge of that.

            15       Q.  I asked did anyone tell you that any violations 

            16  occurred.  

            17       A.  I don't recall specifically.

            18       Q.  Do you have any written materials that reflect 

            19  that a violation, again other than anything your 

            20  attorneys may have given you, any written documentation 

            21  that reflects a violation that may have occurred after 

            22  March of 2007?

            23       A.  I'm not aware of anything specifically.

            24       Q.  With respect to the complaint, the prior 

            25  history section which is on page nineteen, how far back, 




                                                                    100




                                                                       


             1  in terms of let's say months or years, does the Board 

             2  reach with respect to applying or referencing incidents 

             3  for prior violations?

             4       A.  That would depend on the particular situation 

             5  and circumstances.

             6       Q.  Can you explain what you mean by that?

             7       A.  I think in general, we would be looking for if 

             8  there was a pattern of violation that was persistent and 

             9  long-term, it would be appropriate for us to go back as 

            10  far as what needed to demonstrate that.  I don't think 

            11  there's an outside limit on that.  It would depend on 

            12  the situation.

            13       Q.  Just to be clear, again under prior history of 

            14  violations, the first category refers to violations 

            15  identified on November 27th, 2006.  Those violations are 

            16  encompassed in the current complaint; is that correct?  

            17  We're not talking about a separate proceeding?

            18       A.  I believe that's correct, yes.

            19       Q.  Please give some examples of what you would 

            20  consider damage to beneficial uses of the waters.  You 

            21  can use real-life examples.  You don't have to name 

            22  names, but just give some example if you could. 

            23       A.  With respect to aquatic life, the smothering of 

            24  fish nests would be an example with sediment.  The 

            25  increased turbidity at a time when fish were present or 




                                                                    101




                                                                       


             1  any aquatic species that would disrupt their ability to 

             2  feed, that would be another example of that.  Stranding 

             3  of fish in pools would be an example; excursions of any 

             4  water-quality parameter, like low pH or high pH 

             5  conditions, when aquatic species are present.  Effects 

             6  on dissolved oxygen would affect aquatic species.

             7       Q.  Say that again.

             8       A.  Effects on dissolved oxygen.

             9       Q.  How does that happen?

            10       A.  That would be very typically associated with 

            11  something like a municipal wastewater plant discharge 

            12  would cause biological activity that would depress 

            13  dissolved oxygen.

            14       Q.  In terms of visual evidence for lack of a 

            15  better term, how would one know that fish nests have 

            16  been smothered?

            17       A.  You could, if you knew where a nest was, you 

            18  could make visual observations of that.

            19       Q.  Could you make a visual observation if you 

            20  didn't know where the nest was?  We're not talking about 

            21  something that you can walk through the river and just 

            22  go, "Ah-haa, a smothered fish nest"?

            23       A.  You should be able to do that, yes.

            24       Q.  And how about sediment disrupting ability of 

            25  fish to feed, how would you know that's taking place?




                                                                    102




                                                                       


             1       A.  Well, if there were fish present and you had a 

             2  turbidity situation, you would know that, fish or other 

             3  aquatic species.

             4       Q.  How would you know it had disrupted the ability 

             5  to feed?  Would they be dead?

             6       A.  Well, one has to reply to a certain extent on 

             7  scientific studies that have been done that indicate 

             8  that under certain turbidity conditions, that the 

             9  ability of different species to feed is compromised.  So 

            10  you're making a connection there between the observation 

            11  of an effect on water quality and the impact on a 

            12  beneficial use.  

            13       Q.  So for the records documenting the Confusion 

            14  Hill Project, did you ever see any reports or any 

            15  records of smothered fish nests?

            16       A.  I'm not the best person to speak to you about 

            17  the details of all the documentation that we received 

            18  about that, so I'm not personally familiar whether 

            19  there's any such documentation.  

            20       Q.  Well, without getting into specifics, to your 

            21  knowledge, did any reports of the project document 

            22  actual damage to wildlife?

            23       A.  As I said, I'm not personally familiar with the 

            24  records to be able to answer that.

            25       Q.  Who would be the most knowledgeable person 




                                                                    103




                                                                       


             1  regarding that topic?

             2       A.  Probably Kason.

             3       Q.  Turning to condition number nine of the 401 

             4  certification, with respect to the phrase "other than 

             5  that authorized by this permit," are you familiar with 

             6  what that means?

             7       A.  Well, just in the broadest sense, that the 

             8  proposal, the application becomes the project that is 

             9  proposed as conditioned by us represents what's 

            10  authorized by this permit.

            11       Q.  Did the permit authorize placement where it 

            12  could be washed by rainfall into the waters of the State 

            13  of debris?

            14       A.  I would hope not.

            15       Q.  What about soil?

            16       A.  I would hope that the project description along 

            17  with all of the best management practices and the 

            18  construction manuals and the stormwater pollution 

            19  prevention plan that constitutes Caltrans' project in 

            20  total would not result in those kinds of discharges.

            21       Q.  How about soil or silt?  

            22       A.  I'm not sure what you're asking.

            23       Q.  My question is:  The phrase "other than that 

            24  authorized by this permit," what is allowed by this 

            25  permit with respect to the items identified in number 




                                                                    104




                                                                       


             1  nine?

             2       A.  I'm not sure that -- There are only some 

             3  limited things that are authorized that would be 

             4  permitted.

             5       Q.  Can you identify what that phrase actually 

             6  refers to?

             7       A.  The other conditions in the certification and 

             8  the documents that provides it.

             9       Q.  I apologize if Mr. Hungerford might have asked 

            10  you this earlier, but did you have any role in preparing 

            11  the certification for the project?

            12       A.  No, I did not.

            13       Q.  Did you review it?

            14       A.  No, I did not.

            15       Q.  That was Mr. Dunbar?

            16       A.  No, Mr. Prat prepared the certification.

            17       Q.  Back to your prior history of violations, the 

            18  first subcategory there refers to reports and 

            19  photographs provided by Department of Fish and Game.  

            20  Did Fish and Game ever pursue any enforcements action 

            21  against the department or the contractor?

            22       A.  I don't know.

            23       Q.  With respect to equipment violations, that's at 

            24  the bottom of page twelve, the last paragraph references 

            25  a trestle.  The paragraph mentions that the trestle deck 




                                                                    105




                                                                       


             1  had, quote/unquote, large gaps between the timbers and 

             2  holes.  Mr. Leland, please quantify what is meant by 

             3  large gaps.  

             4       A.  I'm not able to quantify.

             5       Q.  How long was the trestle; do you know?

             6       A.  No, I don't know.

             7       Q.  So you don't know how deep it was?

             8       A.  No, I don't.

             9       Q.  All right.  Would that be Mr. Grady or Ms. 

            10  Dougherty?

            11       A.  Or Mr. Prat or Ms. Dougherty.

            12           MS. ZAZZERON:  I don't know if the subpoena 

            13  duces tecum was marked or not as an exhibit.

            14           MR. HUNGERFORD:  No.

            15           MS. MACEDO:  I don't think it was marked so 

            16  far. 

            17           MS. ZAZZERON:  Are you okay with having it 

            18  marked?

            19           MR. HUNGERFORD:  Yes, please, absolutely.  

            20           (Defendant's Exhibit A was marked for 

            21  identification.)

            22           BY MS. ZAZZERON: 

            23       Q.  Mr. Leland, have you ever seen this document 

            24  that's now been marked Exhibit A prior to my just 

            25  handing it to you?




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             1       A.  Yes.

             2       Q.  Thank you.  Under the category for the person 

             3  most knowledgeable, I think with respect to A -- Do you 

             4  have a copy?

             5       A.  I don't think.

             6           MS. MACEDO:  I do in my office.

             7           MS. ZAZZERON:  Sean, do you have a spare?  

             8           MR. HUNGERFORD:  Yes.  Give me a moment.  

             9           MS. MACEDO:  Do you want me to go get mine?  

            10           MR. HUNGERFORD:  Here, we have one.  There you 

            11  go.  Do you need another one?  

            12           MS. MACEDO:  No, I'm fine.  Why don't you 

            13  switch so he has the marked copy?  

            14           BY MS. ZAZZERON:

            15       Q.  So I am looking at page three there under 

            16  categories.  I think with respect to A, the preparation 

            17  drafting and any revisions to the certification, I 

            18  believe we just established through your testimony that 

            19  you are not the person most knowledgable; is that 

            20  correct?

            21       A.  That would be correct.

            22           MS. MACEDO:  I'm going to object to I suppose 

            23  this line of questioning in terms of it calls for a 

            24  legal conclusion in determining who the person most 

            25  knowledgeable is.  You can ask who may have knowledge 




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             1  about these subjects, but Mr. Leland was designated to 

             2  testify on behalf of the Regional Board.  As is evident 

             3  from his testimony, he gave names of people you're 

             4  already deposing, of percipient witnesses that I have no 

             5  problem with you deposing, but Mr. Leland has spoken on 

             6  a variety of subjects covered in the subpoena.

             7           MS. ZAZZERON:  Yes.  For the record, though, we 

             8  talked off the record and would like to make an accurate 

             9  record as to what categories Mr. Leland may actually be 

            10  the most knowledgeable about, which he's not.

            11           MS. MACEDO:  I concur, and that's fine.

            12           MS. ZAZZERON:  Okay.

            13           MS. MACEDO:  I'm happy to do it on the record 

            14  and with the witness here, but I'm not taking 

            15  Mr. Leland's representation that someone is going to be 

            16  designated the person most knowledgeable.  

            17           MS. ZAZZERON:  No, I wouldn't be asking that.

            18           MS. MACEDO:  Okay.  

            19           BY MS. ZAZZERON:  

            20       Q.  Number B, preparation, drafting and any 

            21  revisions to the ACL complaint, you reviewed the ACL 

            22  complaint; correct?

            23       A.  Yes.

            24       Q.  You did not prepare or draft any revisions; is 

            25  that correct?  Maybe you did.  I don't know.  




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             1       A.  I did not prepare or draft the complaint.

             2       Q.  That was Mr. Grady?

             3       A.  Yes.

             4       Q.  Would you say you're the most knowledgeable in 

             5  the Regional Board about Category C?  

             6           MS. MACEDO:  I'll just have a standing 

             7  objection regarding a legal conclusion.  

             8           THE WITNESS:  My understanding of person most 

             9  knowledgeable is with respect to the processes and 

            10  policies that were used in assessing violations and 

            11  preparing those and doing a complaint.  That's why I'm 

            12  here.  

            13           BY MS. ZAZZERON:  

            14       Q.  Okay.  Would you say you're the most 

            15  knowledgeable in the Region about specifically C, which 

            16  is all facts, documents and recorded observations 

            17  supporting the construction dewatering violations?

            18       A.  Probably not.

            19       Q.  And if you could review -- I don't want to get 

            20  too redundant here, but if you could review D through O 

            21  and tell me if any of those you are or for any of those 

            22  if you are the most knowledgeable person in the Regional 

            23  Board.  

            24       A.  Well, down through J, my answer would be the 

            25  same as I gave for C.




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             1       Q.  Okay.  

             2       A.  I would include K, storm water permit 

             3  violations, in that as well.  

             4           With respect to L, calculation of civil 

             5  liability, I could be the person most knowledgeable with 

             6  respect to that.  

             7           With respect to M, adverse impacts to water 

             8  quality caused by activities, and N, I could be, but 

             9  that also depends on observations, so that the same 

            10  comments that I made with respect to A through J would 

            11  apply to that.  

            12           With respect to O, I'm probably not because I 

            13  didn't make the inspection myself.  

            14       Q.  Are you acquainted with Bradford Norman?

            15       A.  I don't believe so.

            16       Q.  Ever heard the name?

            17       A.  I don't believe so.

            18           MS. ZAZZERON:  Sean, I'm going to review my 

            19  notes, but if you have any -- 

            20           MR. HUNGERFORD:  I have a couple of just very 

            21  brief follow-ups.  

            22                         FURTHER EXAMINATION:

            23           BY MR. HUNGERFORD:  

            24       Q.  On the windblown debris, something we talked 

            25  about a few minutes ago, are you aware of any other 




                                                                    110




                                                                       


             1  enforcement action taken by the Regional Board which 

             2  asserted penalties or violations based on windblown 

             3  debris?

             4           MS. MACEDO:  I'm sorry.  The windblown debris, 

             5  was that the hypothetical?  

             6           MR. HUNGERFORD:  No, no, that was a question.  

             7  It wasn't a hypothetical.  I'll start over.

             8           BY MR. HUNGERFORD:  

             9       Q.  Are you aware of any other notices of violation 

            10  or administrative civil liability penalties that the 

            11  Regional Board has issued based on windblown debris?

            12       A.  I can't think of any offhand.  That doesn't 

            13  mean that there aren't any.

            14       Q.  And just to be clear, to your personal 

            15  knowledge, you're not aware of any single fish that's 

            16  been harmed or killed as a result of this project; 

            17  correct?

            18       A.  That's correct, although I would refer to my 

            19  previous testimony that water quality objectives are 

            20  intended to protect beneficial uses, and demonstrating 

            21  specific harm to any beneficial use, whether it's fish 

            22  or any other beneficial use, and there are many, is not 

            23  required to determine that there's been a violation.

            24       Q.  Understood.  However, that fact would certainly 

            25  be relevant to the calculation of administrative civil 




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             1  liability penalties; wouldn't it?

             2       A.  I believe that's correct.  

             3       Q.  One last question, I want to make sure I 

             4  understand your statements with respect to the use of 

             5  Isolated Pool B.  When we spoke, I believe you said that 

             6  the problems with that sedimentation basin were that it 

             7  was within a hundred feet of the river and also that it 

             8  was within the hundred year floodplain which made that 

             9  part of the surface water.  Am I stating your testimony 

            10  correctly?

            11       A.  Yes, that it was within an area that we would 

            12  consider to be surface water, yes.

            13       Q.  So hypothetically, if Isolated Pool B were 

            14  situated in such a way that it were a hundred feet away 

            15  in all directions from the river, it still would be a 

            16  violation to have used that pool because it was within 

            17  the hundred year floodplain?

            18       A.  No, I don't think that that's correct.  If it 

            19  was proposed in the application and we permitted it 

            20  based on the application, then it could have been okay 

            21  if it worked, if there was no evidence of discharge.

            22       Q.  So if it was clear in the application that 

            23  there would be a sedimentation basin located within the 

            24  hundred year floodplain but greater than a hundred feet 

            25  away from the active river, then that would be 




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             1  acceptable from the Regional Board's standpoint?

             2       A.  As an initial best-management practice.  This 

             3  would be an example of except as authorized, other than 

             4  that authorized by this permit.

             5           MR. HUNGERFORD:  Thank you very much.  

             6           MS. ZAZZERON:  I think I just have one more.  

             7  One might have some progeny, but --

             8                         FURTHER EXAMINATION:           

             9           BY MS. ZAZZERON:  

            10       Q.  Now, on the top of page eleven of the 

            11  complaint, it's under paragraph nineteen, it states that 

            12  the use of Pool B, quote/unquote, substantially and 

            13  directly impacted water quality.  What was the 

            14  substantial and direct water quality impact, if you 

            15  could describe that?  

            16       A.  Well, I couldn't describe it to you 

            17  specifically, but it appears there was a sediment 

            18  transport that was initiated by that activity.  

            19           MS. ZAZZERON:  That's all I have.  

            20                           -  -  -

            21           (Whereupon, today's proceedings concluded at 

            22  1:58 p.m.)

            23                           -  -  -

            24  

            25  





                                                                    113




                                                                       


             1                   CERTIFICATE OF WITNESS

             2  

             3       I, DAVID F. LELAND, hereby declare that I have read 

             4  the foregoing testimony recorded on pages 1 through 113, 

             5  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                    DAVID F. LELAND

            17  

            18  

            19  Date: _________________________

            20  

            21  

            22  

            23  

            24  

            25  




                                                                    114




                                                                       


             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: DAVID F. LELAND, 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  18th day of October, 2010.

            20  

            21                        _____________________________

            22                         Stephanie Anne Fox, CSR #4640

            23  

            24  

            25  




                                                                    115

