Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

 Volume 3 

 Pages 457 - 683 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

BEFORE THE HONORABLE VINCE CHHABRIA 

OAKLAND BULK & OVERSIZED TERMINAL, )

LLC, )

 ) 

 Plaintiff, )

 vs. ) No. C 16-7014 VC 

 )

CITY OF OAKLAND )

 ) San Francisco, California 

 Defendant. ) Friday 

 ) January 19, 2018 

___________________________________) 10:00 a.m. 

TRANSCRIPT OF PROCEEDINGS

APPEARANCES: 

For Plaintiff: QUINN, EMANUEL, URQUHART & OLIVER 

 555 Twin Dolphin Drive 

 5th Floor 

 Redwood Shores, California 94065 

 BY: ROBERT P. FELDMAN, ESQ. 

 DAVID EDWARD MYRE, ESQ. 

 NATHAN FELDMAN, ESQ.

 QUINN, EMANUEL, URQUHART, OLIVER 

 50 California Street 

 22nd Floor 

 San Francisco, California 94111

 BY: MEREDITH McCHESNEY SHAW, ESQ.

 

 QUINN, EMANUEL, URQUHART & OLIVER 

 500 West Madison Street 

 Suite 2450 

 Chicago, Illinois 60661 

 BY: STEPHEN A. SWEDLOW, ESQ.

Reported By: Debra L. Pas, CSR 11916 Reported By: Debra L. Pas, CSR 11916, CRR, RMR, RPR CRR, RMR, RPR

 Official Reporter - US District Court

 Computerized Transcription By Eclipse

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 1 of 228
 458

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

APPEARANCES: (CONTINUED)

For Defendant: BURKE WILLIAMS & SORENSEN, LLP 

 1901 Harrison Street 

 Suite 900 

 Oakland, California 94612 

 BY: KEVIN DRAKE SIEGEL, ESQ.

 GREGORY AKER, ESQ.

 TIMOTHY ALAN COLVIG, ESQ.

 CHRISTOPHER MICHAEL LONG, ESQ.

For Intervenor: EARTHJUSTICE 

 50 California Street 

 Suite 500 

 San Francisco, California 94111 

 BY: COLIN CASEY O'BRIEN, ESQ.

 ADRIENNE L. BLOCH, ESQ.

 

For Intervenor: SIERRA CLUB 

 2101 Webster Street 

 Suite 1300 

 Oakland, California 94612 

 BY: JESSICA YARNELL LOARIE, ESQ.

 

 

 ALTSHULER BERZON LLP 

 177 Post Street 

 Suite 300

 San Francisco, California 94108 

 BY: JAMES M. FINBERG, ESQ.

 

 _ _ _ 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 2 of 228
 459

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FRIDAY - JANUARY 19, 2018 10:02 A.M.

P R O C E E D I N G S

---000---

THE CLERK: Calling Civil Case No. 16-CV-7014,

Oakland Bulk & Oversized Terminal, LLC versus City of Oakland.

THE COURT: There is no need for appearances unless

there is anyone new who is here. 

MR. FELDMAN: Actually, there is one new person.

Counsel has agreed, and I may note for the record, the presence

of Nathan Feldman, who was admitted to the Bar on December 1st

of last year.

THE COURT: Welcome.

MR. SWEDLOW: No relation.

THE COURT: Oh, no relation? Okay. I was going to

make a joke about that, but I won't.

What's next?

MR. MYRE: Just a few preliminary evidentiary issues

if -- if I may, your Honor. The first is I have a thumb drive

that we have labeled Exhibit 1278. This contains copies of the

videos that we played for the Court on Tuesday. So we would

just like to admit that into evidence.

THE COURT: Great.

(Trial Exhibit 1278 received in evidence)

MR. MYRE: The second is that we filed roughly a week

ago a very few limited written discovery designations. So RFAs

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 3 of 228
 460

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

from the Sierra Club, those are at Docket Entry 213 and

Exhibit B to that. So 213-2 is our designations. The Sierra

Club has some counter designations. Those are at 213-3 in the

docket.

We would like to move those into evidence as well.

THE COURT: Okay. Admitted.

(Trial Exhibits 213-2 and 213-3 received in evidence.)

THE COURT: Kristen tells me that you-all are going

to kind of submit everything together.

MR. MYRE: So that's generally correct, although that

brings us to the third issue.

THE COURT: Okay.

MR. MYRE: So now, in the beginning of trial on

Wednesday, we put on the record our agreement that the parties

basically have that -- as I understood and as I articulated it,

was that when -- when exhibits were introduced at trial, they

would be admitted if not specifically objected to subject to a

few of the standing objections that the City has.

THE COURT: Sounds right.

MR. MYRE: For the record and for the written record,

we wanted to put in today a list of what those exhibits were

through trial on Wednesday, just because plaintiffs will be

resting their case soon. So we sent that list to defendants

yesterday. We asked if they would stipulate to it in writing.

They said that they would not.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 4 of 228
 461

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

And so with the Court's permission today, we would like to

read into the record the list of exhibits that is the exhibits

that were admitted on Tuesday and Wednesday -- I'm sorry --

that were shown to witnesses on Tuesday and Wednesday and that

we think are subject to the standing agreement that I

articulated on Wednesday morning.

THE COURT: Okay. But, I mean -- and part of this is

maybe my fault for not being as precise about this, partly

because it's a bench trial and, you know, in the end it doesn't

really matter what I hear and what I don't hear during the

trial. What matters is what I consider after the trial in

rendering my decision. But I'm -- if somebody wants to argue

that something that came in during trial should not be

considered, if they want to argue that in the post-trial

papers, they can do that, even if, you know, somebody didn't

make an objection to something, a specific objection to

something during the trial.

And, you know, because I preferred to proceed more

efficiently at trial without having to deal with all that stuff

at trial, figuring we can deal with it afterwards.

So I wanted to make that clear. I don't consider anybody

to have waived any objections. And what I think is the best

thing to do is to the extent anybody has, like, objections

about, you know -- arguments about admissibility of certain

things as opposed to arguments about the weight of particular

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 5 of 228
 462

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

things, they should just file -- you know, both sides should

file certain separate evidentiary objections in conjunction

with their post-trial papers afterwards.

MR. MYRE: That makes sense, your Honor. I think

maybe our concern is a little bit different. We just want to

make sure that somewhere in writing is memorialized the list of

documents that possibly fall into the categories that you might

consider or weigh at the end of the trial. That is, we wanted

to make sure that we have in writing the list of documents that

were introduced during plaintiff's case-in-chief.

THE COURT: Okay.

MR. MYRE: And so whether that's read into the record

now, do it some other way. But that's what's important to us,

I suppose, your Honor.

THE COURT: Okay. Go ahead.

MR. COLVIG: I would just say we -- we don't object

to their stating their position on what they believe. That's

fine.

THE COURT: Yeah. I don't know if it's necessary for

you to do this now, but if you really want to, go for it.

MR. MYRE: So Exhibits 4, 14, 19, 24, 25, 31, 32, 42,

46, 47, 48, 53, 57, 58, 62, 65, 96, 98, 103, 128, 131, 133,

135, 136, 138, 141, 145, 149, 166, 213, 214, 216, 217, 221,

281, 286, 371, 372, 388, 431 through 433, 435, 440, 448, 453,

454, 463, 466, 478, 515, 516, 522, 584, 593, 594, 596, 608,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 6 of 228
 463

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

612, 630, 635, 736, 738, 814, 815, 842, 844, 845. 

Last row now, 848, 900, 915, 930, 960, 961, 972, 976, 982,

1069, 1083 through 1085, 1207, 1225, 1229, 1238 through 1261,

and 1267.

Thank you, your Honor.

THE COURT: Well done.

MR. COLVIG: I agree. So on behalf of the City, you

know, we -- we obviously have had these continuing objections.

We probably have a couple dozen that -- at least of those

continuing objections that would apply to specific documents,

and we will, as your Honor suggested -- we'll provide a list of

those so you can at least know which specific documents we

think that applies to.

THE COURT: And so while we're -- while we're on the

topic, do we want to nail down what the post -- what post-trial

filings I'm going to get from you-all and when they should be

due and stuff like that?

MR. FELDMAN: Could we do that at some other point

today?

THE COURT: Sure. 

MR. FELDMAN: There is a good reason for it from my

perspective.

THE COURT: Sure.

MR. FELDMAN: Thank you.

THE COURT: Okay. Should we proceed then?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 7 of 228
 464

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MR. COLVIG: We have one other -- do you have

something?

MR. MYRE: Just one more brief one.

So defendants are planning to play designations from James

Wolff today, deposition designations. We had very limited

counters to that, a minute and 22 seconds. And they

specifically addressed designations that they intend to play,

so they would basically provide context to that.

Just like we played counter designations of defendants for

Douglas Cole and Sabrina Landreth, we could ask that our

minute 22 be played with their -- however long it takes so it

all makes sense and presented in the most efficient manner,

although they don't agree with that.

MS. LOARIE: Just to represent defendant intervenor's

deposition, you recall when they played their Wolff

designations on Wednesday, they actually refused to let us play

our counter designations. I'm actually not sure why. So the

position I think the parties took for Wolff in particular was

that each party was playing --

THE COURT: It's not that you took. I seem to

remember you-all were telling me that you were going to wait to

present your Wolff counter designations.

MS. LOARIE: Originally that was true, your Honor.

And I believe the proceedings got a lot faster, so --

THE COURT: You know what? Any counter

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 8 of 228
 465

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

designations -- whoever wants the deposition testimony to be

played, it comes out of their time.

MS. LOARIE: Yes, your Honor.

THE COURT: So what are we arguing about?

MS. LOARIE: They emailed at 10:00 p.m. last night

and changed our minds. So we were just confused. We thought

each party was playing their own for Wolff.

So apologies if there is any -- any confusion.

THE COURT: Okay. Anything else?

MR. COLVIG: Yes. There is one more.

Steve, do you want to discuss the Klein issue?

THE COURT: What issue?

MR. COLVIG: Heather Klein is the City planning

employee to -- initially submitted a declaration that was part

of our stipulation earlier in the week. And what we were left

with were several issues, but one of them was when particular

documents were received by the City. And so we then, with the

Court's authority, provided a declaration of her and we

uploaded that the other night and -- and -- with an opportunity

to cross-examine. And we have a stipulation that she need not

be cross-examined.

THE COURT: Okay.

MR. COLVIG: And a part of that stipulation is that

two exhibits will go into evidence as though they were

presented to her, and they do go into evidence and then there

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 9 of 228
 466

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

is -- which ones are those?

MR. SWEDLOW: It's not -- it's not that they were

presented to her and they would go into evidence. We're not

going to cross-examine her declaration or her in person, but we

are reserving all of the arguments we would make about based on

the substantial evidence and the legislative filer record.

THE COURT: Okay.

MR. SWEDLOW: There are actually three. Two we

agreed upon, and one we don't agree upon.

The third is the archive.org or Wayback Machine printout

that led to her declaration. She has an -- she has an

attachment to her declaration that says there are 26 files

that -- that weren't on the website as of a certain date. The

only reason we know that is because we told opposing counsel

that we looked on the Wayback Machine and saw there were 26

files missing.

So without that exhibit in our post-trial briefing, the

argument won't make any sense to you. So I wanted to include

as Exhibit 1277 that website printout of the archive.org, and

you can take it for whatever weight you want. It just -- it

won't make sense in post-trial briefing if we don't have, as an

exhibit, the reason why her declaration says what it says.

THE COURT: Well, and it will come in now. And if

the City wants to argue that it's somehow not admissible or

shouldn't be considered, they can do that in their post-trial

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 10 of 228
 467

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

briefs.

MR. SWEDLOW: So that would be -- the three exhibits

are 1272, 1273 and 1277.

MR. COLVIG: Okay. So as to Exhibit 1277, that is

the printout that counsel says was from the Wayback Machine.

And we object now and will be reasserting that it lacks

foundation.

The other two, which are Trial Exhibit 1272 and 1273, we

do stipulate into evidence.

THE COURT: Okay.

MR. COLVIG: Okay. Thank you, your Honor.

THE COURT: All right. So does the Plaintiff want to

call their next witness?

MR. FELDMAN: Claudia Cappio.

THE COURT: All right.

CLAUDIA CAPPIO, 

called as a witness for the Plaintiff herein, having been duly 

sworn, testified as follows: 

THE WITNESS: I do.

THE CLERK: Thank you. Please be seated.

And for the record, please state your first and last name

and spell both of them.

THE WITNESS: My name is Claudia Cappio,

C-L-A-U-D-I-A, C-A-P-P-I-O.

THE CLERK: Thank you.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 11 of 228
 468

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

DIRECT EXAMINATION

BY MR. FELDMAN 

Q. Good morning.

A. Good morning.

Q. Nice to see you.

You were the lead staff person on behalf of the City?

A. Yes.

Q. There is a standard practice for the City attorney to

review all Agenda Reports that go to the City Council?

A. Not all but most, yes.

Q. And all of the ones in this case were reviewed by the City

attorney, right?

A. That's correct.

Q. And, in fact, you recall that the description in the

September 2015 Agenda Report of Section 3.4.2 was written by

Mark Wald, correct?

A. We were -- that -- that was one of the sections of the

report that would have been drafted, initialed by him, yes.

Q. Thank you.

You had a conversation in or about August or September,

2015, with the Fire Marshal Miguel Trujillo about the NFPA

rating assigned to coal that is the rating of 1, correct?

A. Yes. We wanted to understand the relationship of those

NFP ratings to certain commodities.

Q. And he told you that was a low rating, right? As in a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 12 of 228
 469

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

good rating?

A. That was a low rating.

Q. Meaning low risk, right?

A. Low risk under certain circumstances.

Q. And he used those ratings to evaluate the materials that

would be stored in Oakland and in connection with responding to

emergencies, right?

A. It didn't go into that great detail. We were generally

trying to make sure that we, as staff, understood the NFPA

ratings and the relationship there would be to commodities that

would be handled and stored in the terminal.

Q. Did Mr. Trujillo tell you that they use it as a basis for

evaluating the materials that may be stored, managed or handled

on particular sites throughout the City of Oakland?

A. Yes, he did.

Q. And did he tell you that they use it when they are

responding to an emergency?

A. He said that it comes into play in an emergency because

that's why it's -- there's placards and other designations to

make sure that responders know what material they're dealing

with.

Q. Thank you.

And you brought the NFP rating to ESA's attention, did you

not?

A. Later -- 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 13 of 228
 470

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

Q. Yes. 

A. -- yes.

Q. And in March of 2016, you attended a meeting at which were

present my clients, and among other people, the fire marshal

and one other person from his office, did you not?

A. Yes. That was a preliminary meeting to discuss permit

processing requirements for the terminal.

Q. And, basically, the fire marshal was telling Phil and Mark

what they needed to give him when they were ready to apply,

right?

A. That's correct. Information analysis and other -- other

plan details to make sure that they had what they needed to

plan-check the plans for the terminal.

Q. But it was way too early to make any kind of an

application or for the fire department to make any kind of a

decision, right?

A. Yes, but the applicant at his request was meeting with

departments in order to understand those application

requirements.

Q. It was very kind of you to arrange that. Thank you.

At this meeting the fire department did not say: No way,

no how to a coal terminal, did they?

A. That didn't come up. It was way too premature. This was

about the information needed in order to make that

determination.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 14 of 228
 471

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

Q. Would you excuse me? They didn't say at this meeting:

We're not going to approve a coal terminal, did they?

A. No, they did not.

Q. And no one has ever told you that fires at coal terminals

were not common and not widespread, correct?

A. There is information in the record pertaining to fires at

coal terminals.

Q. But no one has ever told you that they were not common or

widespread, correct?

A. No.

Q. Am I correct?

A. That's correct.

Q. Thank you.

You recall a February City Council -- February 2016 City

Council meeting?

A. Yes.

Q. Did I say '16? Yes, I --

A. February of '16, yes.

Q. You have a very clear recollection of that meeting, do you

not?

A. I do.

Q. The Agenda Report for that meeting recites that -- oh, and

you wrote that Agenda Report? You and others, correct?

A. I -- I wrote it. There was a team formed for this issue,

and I had a hand in drafting it.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 15 of 228
 472

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

Q. And you signed it?

A. I did sign it.

Q. And you informed the City Council that a supplemental

analysis and review of the record must be undertaken, correct?

A. That was my recommendation.

Q. And that was in connection with retaining ESA, right?

A. That's correct -- 

Q. And that was -- 

A. -- and the scope of work for ESA was included in that

report.

Q. Thank you. I'm sorry to interrupt you.

That was because the City staff did not have sufficient

expertise to advise the City with respect to whether there was

substantial evidence, correct?

A. What I wanted -- what I wanted was assistance with

expertise and review in order to make sure that the existing

record before us was complete and accurate and organized in a

way that we could use to present our options to the City

Council.

Q. May I see Deposition 212 -- withdraw.

The staff didn't have expertise to do that, right?

A. I -- I needed to have supplemental assistance in order to

accomplish what I wanted to with a review and possible

supplementation of the record.

MR. FELDMAN: Could we see, please, Page 213, Lines 1

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 16 of 228
 473

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

through 3?

(Document displayed.)

THE WITNESS: Sorry. 

MR. FELDMAN: No problem.

BY MR. FELDMAN 

Q. Did you testify that that was because the staff didn't

have sufficient expertise to do that?

A. Yes.

Q. In a number of topical areas?

A. That's correct.

Q. The April 21st Agenda Report forwarded a revised scope of

work, did it not?

A. Yes.

MR. FELDMAN: May we see that, please? That's

Exhibit 593 at 0006.

(Document displayed.)

THE WITNESS: Is there a way to make this a little

larger?

MR. FELDMAN: Yes. You're going to get it in glowing

color in a moment.

THE COURT: It's also in the binder, if you prefer to

look in the binder.

THE WITNESS: Okay.

MR. FELDMAN: And could you highlight, please --

that's it.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 17 of 228
 474

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

And could you make that bigger for Ms. Cappio.

(Document highlighted and enlarged.)

BY MR. FELDMAN 

Q. Does that work?

A. Yes.

Q. At 0006 you wrote that the -- part of the scope of work:

"Will consider public comments as they may apply

to health and/or safety effects, regardless of whether

the mechanisms for these effects are fully understood

or documented in peer-reviewed scientific sources."

Right?

A. I believe that I did not write this. This was the scope

of work submitted by ESA.

Q. Thank you.

And you didn't like that because you thought that

substantial evidence required expert analysis that is based on

evidence and data so that the mechanisms are appropriately

documented and peer reviewed, correct?

A. That's my statement in my deposition.

Q. The retention of ESA was approved on May 3rd, correct?

A. That's right.

Q. And at the same time, Council member Kaplan simultaneously

requested a special City Council meeting on June 27th to

consider the ordinance and resolution?

A. It was either at that meeting or at the following City

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 18 of 228
 475

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

Council rules committee meeting.

Q. And on February 24th -- for a June 27th meeting,

February -- Friday, June 24th would be the last day on which

you could publish materials for that meeting, right?

A. That's correct. Because it was a special meeting.

Q. And this request was made and driven by Council member

Kaplan?

A. Who requested the June 27th meeting date.

Q. She was one of the two City Council members who told you

back in the summer of 2015 that they wanted to ban coal, right?

MR. SIEGEL: Objection. Relevance. It goes to the

issues in their Motion in Limine as to predetermination as to

whether the City Council has --

THE COURT: Sustained.

MR. FELDMAN: This explains why that meeting was

scheduled as it was.

THE COURT: The objection is sustained.

BY MR. FELDMAN 

Q. Do you remember that BAAQMD said they wanted to comment on

their report?

A. I'm sorry. Could you repeat that?

Q. Do you remember that BAAQMD said that they wanted to

comment on the ESA report?

A. They -- I remember them having conversations with us about

offering assistance in order to provide their expertise for the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 19 of 228
 476

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

scope of work and the work that we were going to do with ESA.

MR. FELDMAN: May we see Deposition 402/21 through

23?

(Document displayed.)

THE COURT: Did you say 421?

MR. FELDMAN: I said 402/21 through 23.

THE COURT: Thank you.

BY MR. FELDMAN 

Q. Do you remember being asked:

"QUESTION: Do you remember that BAAQMD has said they

wanted to comment on the report?

"ANSWER: Yes."

Was that your testimony?

A. That's correct.

Q. You did not release drafts of the ESA report to any

Council members before Friday -- on -- prior to the Friday

before the Monday of the meeting?

A. No, I did not.

Q. And you didn't release any of that material that was

provided on Friday morning to the public before Friday morning,

correct?

A. Right. It all goes out relatively simultaneously.

Q. And the ordinance and resolution were not released to

anyone before that Friday, correct?

A. No.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 20 of 228
 477

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

Q. Am I correct?

A. That's correct.

Q. You knew that BAAQMD has to issue a permit before

facilities such as the terminal can operate?

A. I don't know the specific permits, but I know permits are

required in order to operate and build a facility like that.

Q. Is it correct that you understood that BAAQMD issues

permits to operate?

A. Again, I'm not familiar with the specific permits, but I

know that permits are required.

Q. Would you look, please, at Deposition 177/21 through 23.

(Document displayed.)

Q. Did you testify:

"QUESTION: Is it correct you understood that BAAQMD

issues permits to operate?

"ANSWER: Yes."

A. Yes.

Q. Was that your testimony?

A. Yes.

Q. You knew that BAAQMD would regulate the levels of PM2.5

and PM10, correct?

A. Yes.

Q. And you never reached a determination that BAAQMD's rules

and regulations were inadequate to ensure adequate air quality

with respect to the OBOT terminal, did you?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 21 of 228
 478

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

A. I think I testified that there was no reason for me to

believe that they would not administer the permits, but whether

those permits or regulations were sufficient to protect health

and safety or avoid impact to health and safety was another

matter, particularly with PM2.5.

Q. Would -- may I direct your attention to your deposition at

180/16 through 23.

"QUESTION: Did you, Claudia, ever reach a

determination that BAAQMD's rules and regulations were

inadequate to ensure adequate air quality with respect

to the OBOT terminal?

"ANSWER: No."

And you had no reason to think that BAAQMD would enforce

EPA standards in a way that would permit a substantial danger

to the people in the City of Oakland, correct?

A. Correct.

Q. And you have no answer to why you didn't simply recommend

to the City Council that it adopt an ordinance with PM limits

in it, correct?

A. I do not have an answer.

Q. To the best of your knowledge, there were no meetings

between CCIG and ESA?

A. No.

Q. You made no effort to find out about the health impacts on

the communities in which other coal and coke terminals were

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 22 of 228
 479

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

present?

A. That was not part of the scope of work.

Q. You mean that the City Council didn't ask you to do that,

correct?

A. That's right.

Q. Do you remember that you asked a bunch of questions to my

clients at the end of September, and they wrote back written

answers?

A. At the end of September?

Q. September 2015. Sorry.

You asked them, for example, whether they would agree not

to ship by -- to ship anything other than bituminous coal.

Do you remember that?

A. I -- I don't recall that.

Q. Take a look, please, if we could see Exhibit 149.

(Document displayed.)

Q. Do you remember these answers to my clients?

A. I'm sorry. This letter -- I was getting my years mixed

up. Excuse me.

Q. It happens.

You remember this, right?

A. Yes, I do.

Q. And you remember that my clients agreed to be bound

contractually to implement Rule 1158 from the South Coast. 

Do you remember that?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 23 of 228
 480

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

A. I -- I remember the representations in the letter.

Q. And, in fact, they said that the -- the Rule 1158 could be

put into a building permit; remember?

A. I don't remember offhand without reviewing the letter now.

Q. Okay. You remember this letter, though, right?

A. Yes, I do.

Q. And after this letter, do you have any recollection of

ever discussing with anyone Rule 1158?

A. Internally with the -- the ESA team and the City review

team. We did discuss that as a -- as a method by which we

would need to determine whether those regulations were adequate

to protect health and safety.

MR. FELDMAN: May I see Deposition 194/21 through 24.

(Document displayed) 

Q. (As read)

"QUESTION: After the circulation of the September 28

list of questions, did you ever have any conversation

with anyone about Rule 1158?

"ANSWER: Not that I recall."

Was that your testimony?

A. That's my testimony.

Q. And is it correct, also, that you have no recollection of

ever discussing Rule 1158 with the City Council, either

specifically or generally?

A. That's correct.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 24 of 228
 481

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

Q. You never reached a determination that OSHA's rules and

regulations would be inadequate to ensure workers' safety at

the terminal, did you?

A. I myself did not.

Q. And the reason that there is a BAAQMD permit in the

exemption section of the ordinance was to make sure that public

health and safety were protected, correct?

A. That was to assure that there were -- there was an

acknowledgment of their regulatory authority.

Q. It was to make sure that public health and safety were

protected, correct?

MR. SIEGEL: Objection. Calls for a legal

conclusion.

THE COURT: Overruled.

A. I don't have that part of the ordinance in front of me,

so...

BY MR. FELDMAN 

Q. You remember the part of the ordinance that exempted

manufacturing facilities?

A. Yes, I do. 

Q. And it required, as a condition of being exempted, that

the manufacturing facility get a BAAQMD permit, right?

MR. SIEGEL: Objection. Calls for a legal conclusion

and misstates the ordinance.

THE COURT: I understand who is capable of making

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 25 of 228
 482

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

legal conclusions. And if they want to use their time on this,

they are perfectly free to do so.

MR. SIEGEL: Okay. Thank you, your Honor.

A. I do remember that they were required -- that those

exceptions were required to obtain BAAQMD permits.

BY MR. FELDMAN 

Q. And that was to ensure public health and safety, correct?

A. It was to follow the law.

Q. Would you look, please, at your deposition at Line --

Page 87, Line 19 through 25 -- 26.

(Document displayed.)

Q. (As read)

"QUESTION: And why does -- why did the on-site

manufacturing facilities have to comply with those

emission standards in order to meet the exemption?

"ANSWER: Because they are a standard by which air

quality and pollution are measured in an effort to

make sure that public health and safety are

protected."

Was that your testimony?

A. That's my testimony.

Q. Thank you.

With respect to the table in the June 14 -- the June 24th

Agenda Report that portrays emission levels, did you tell the

City Council which numbers it should use or not use in that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 26 of 228
 483

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - DIRECT EXAMINATION / FELDMAN

table in considering the ordinance?

A. No.

Q. You don't know if ESA did a dispersion analysis; that is,

seeing how far the PM gets transmitted, correct?

A. No.

Q. Am I correct?

A. That's correct.

Q. And would you look, please -- do you still have

Exhibit 149 in front of you?

A. I didn't. Yes. 

(Document displayed.)

Q. Would you look please at 0008, which will come up on the

screen in a moment.

(Document displayed.)

Q. Would you look at the bottom, where there is a list of

products that were handled by Ecofab.

Do you see that list? Starts in -- 

A. Under subparagraph (c)?

Q. Yes, ma'am. It starts with "copper concentrate."

A. Yes.

Q. And that's a list of products, that you recall anyway,

that Ecofab handled with its -- or covered with its covers on

rail cars, right?

A. Yes.

Q. Did you ask ESA to determine whether or not any of -- any

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 27 of 228
 484

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

of that was correct or true and whether it was similar to or

not similar to coal?

A. No, but we -- we did ask ESA to review the Ecofab product

and look at it in relationship to coal.

Q. But did you tell them to look at these products?

A. Not -- not that I recall.

Q. Nothing further.

MR. FELDMAN: Thank you, your Honor.

CROSS EXAMINATION

BY MR. SIEGEL 

Q. Good morning, Ms. Cappio.

A. Good morning.

Q. Do you know whether the Bay Area Air Quality Management

District has a rule comparable to Rule 1158 from the South

Coast Air Quality Management District?

A. My knowledge, they do not.

Q. And whether the Bay Area Air Quality Management District

has a rule for coal and coke terminals? Do you know that?

A. My knowledge, they do not.

Q. Can you tell us whether the City evaluated the efficacy of

health and safety measures to which OBOT offered in that

October correspondence that you were recently looking at,

October 2015, whether the City evaluated the efficacy of those

measures which OBOT offered to agree to?

A. Yes, we did. That was part of our work, and it was

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 28 of 228
 485

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

determined that those measures would be insufficient to

decrease or avoid danger to public health and safety. In

particular, given the interest in covering the coal cars, we

looked at that extensively and concluded that they were not in

use and were not likely to be used for coal.

Q. Can you tell us the -- the length of the agreements

between the City and OBOT, the Development Agreement in the

LDDA?

A. Yes. It's for 66 years each.

Q. And did that have any impact on the City's -- on your

analysis under Section 3.4.2 of the Development Agreement?

A. Yes. Quite frankly, that's a very long time, and I had to

take the long view in looking at impacts and the potential

disproportionate impacts on the West Oakland community given

the location of the terminal in Oakland -- in West Oakland.

Q. Can you tell us your understanding about whether the

National Fire Protection Association ratings govern the fire

safety of coal terminals?

A. It's my understanding that they do not.

Q. How often does the City Council face an extensive amount

of complex material to review in a short period of time before

a City Council meeting?

MR. FELDMAN: I object. Irrelevant, your Honor.

THE COURT: Overruled.

A. The City Council is quite often faced with having

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 29 of 228
 486

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

extensive testimony and other reports submitted either right

before or during a public hearing.

BY MR. SIEGEL 

Q. And those reports often contain extensive technical

information, is that true?

A. That's correct, or information rebutting the staff report

or other reports as part of the staff work.

Q. And if a -- can you tell us whether there are ever

requests for extension of time from a developer in such

circumstances when they have a development project before that,

the City Council?

A. Yes. The Council routinely grants these requests.

Q. In the months leading up to the June 27th, 2016 public

hearing, can you describe any efforts by the City to reach out

to OBOT to seek more information about their plans for storing

and handling coal at the terminal?

A. Yes. I recall an email early on in our work to both

Mr. McClure and Mr. Tagami in May of 2016.

Q. If you could take a look in your binder or at the screen

at what is Exhibit 264.

(Document displayed.)

A. Yes. This is the email.

Q. And what did you ask Mr. Tagami and Mr. McClure to

provide?

A. I was after two things. As we were looking at the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 30 of 228
 487

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

information needs for the report, for the June 27th meeting,

one was whether they had any additional information and other

detail on the actual Basis of Design or operation of the

terminal itself.

And the other one was some specific questions pertaining

to commodities that they had listed as part of their Basis of

Design.

Q. And how did -- did OBOT respond to this email?

A. OBOT did respond a week or so later in a letter.

Q. If I could turn your attention to Exhibit 265, please.

And I think you may need to look at Page 3 of this exhibit.

MR. SIEGEL: And, Mitch, if you could highlight the

question near the bottom of Page 3?

(Document displayed.)

BY MR. SIEGEL 

Q. Is this the letter to which you just referred?

A. Yes.

Q. And so did -- and if you could flip to the second page of

the letter, which is Exhibit 4 near the top. Did OBOT respond

to any of your inquiries regarding the first question?

A. No. We received no additional information.

Q. And what about your second question with respect to the

types of commodities. Did OBOT provide you any information

with respect to that? And that's shown in the bottom third of

the page.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 31 of 228
 488

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

A. Right. I did not receive any -- any other additional

information about the specific -- or answers about the

questions I had asked.

Q. Thank you.

When the City Council has a matter regarding a development

project before it, can you tell us how much time that Council

typically provides to the developer compared to how much it is

typically provided to members of the public?

A. Sure. A project proponent or developer will often get 10,

15 or 20 minutes to present their case along with the issues at

a Council meeting.

Q. And how about members of the public?

A. Members -- individual members of the public, are relegated

to one to two minutes each.

Q. And could you tell us whether you attended the City

Council meeting on June 27, 2016?

A. I did attend the Council meeting.

Q. Do you recall whether Mr. Tagami or Mr. McClure attended?

A. I recollect that neither Mr. Tagami or Mr. McClure

attended that meeting.

Q. I'd like to briefly turn your attention to some of the

comments submitted by the City with respect to the subject

terminal.

And I think the first is Exhibit 657. It should be in the

same binder.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 32 of 228
 489

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

(Document displayed.)

A. Yes.

Q. And if you flip through this, and particularly I'd like to

draw your attention to, as you're flipping through it, to

Page 21 of the exhibit. And then Page 22.

A. Yes.

Q. If you could tell the Court whether this document,

generally, the larger document looks familiar?

A. Yes. This -- all these documents look familiar because

they were part of the submitted testimony for the -- at one of

the various public hearings we had on the coal terminal.

Q. And do you recognize this one at Page 22 here?

A. I do. It's the comments of Dr. Bart Ostro, who is a

former Chief of Air Pollution Epidemiology at the California

EPA. And this particularly stood out as a number of others

because Mr. Ostro was a credentialed professional in this

field, and his testimony may -- had made our case stronger with

regard to substantial evidence.

Q. If I could turn your attention now. I think this is the

next binder, Binder Number 2. If you could take a look at

Exhibit 660 there.

(Document displayed.)

A. This is --

Q. Does this document look familiar? Can you tell us whether

you recognize it?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 33 of 228
 490

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - CROSS EXAMINATION / SIEGEL

A. I just looked at it. This document does look familiar

because, again, it was submitted as testimony at the

September 2015 public hearing. And, again, it was from a

recognized authority in health -- health impacts, and it was

from the Alameda County Health Care Services Agency, a

Dr. Davis, pertaining to the impacts of coal.

Q. All right. Just a couple more here. How about

Exhibit 661?

(Document displayed.)

Q. Can you identify this document for us?

A. I recognize this because it was specifically addressed to

me, and it is a memo from Lora Jo Foo pertaining to the covers

for rail transport of coal. And I remember reviewing this

particularly because we were determining the efficacy of coal

covers during that period.

Q. One just more exhibit here briefly, Exhibit 1069.

(Document displayed.)

Q. If you could look at that and let us know if you recognize

it?

A. Yes. Again, particularly since I communicated with this

panel -- members of this panel during the months of May and

June because they were -- they let me know they were preparing

a report on the coal -- on the public health impacts of coal.

And I communicated with them a couple of times in terms of the

timing of submittal of this report.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 34 of 228
 491

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CAPPIO - REDIRECT EXAMINATION / FELDMAN

So I do remember it being part of the public record for

the June 27th hearing.

Q. And does your -- does your memory of this record have

anything to do also with any of the -- the authorship of it?

A. It was, again, a panel of public health experts from

UC Berkeley.

MR. SIEGEL: All right. Thank you.

No further questions.

REDIRECT EXAMINATION

BY MR. FELDMAN 

Q. Ma'am, at the June 27th meeting, there was, in fact, a

representative from OBOT, was there not?

I remind you there was a transcript -- there is now a

transcript. There was a representative, wasn't there?

A. Again, it's my recollection -- there was a lot of people

in the Council chambers, and I did not see a representative

from OBOT.

Q. Do you remember the name Greg McConnell?

A. Yes.

Q. And what did he say?

A. I don't recall.

MR. FELDMAN: Nothing further.

THE COURT: All right. Thank you very much.

THE WITNESS: You're welcome.

(Witness excused.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 35 of 228
 492

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

THE COURT: All right. Anything else from

plaintiffs?

MS. SHAW: Your Honor, subject to the Court's final

determination on exhibits, which I understand is going to be

with post-trial briefing, Plaintiff rests.

THE COURT: All right.

Defendants?

MR. AKER: Your Honor, we would call to the witness

stand Dr. Ran Sahu.

MR. FELDMAN: Before the witness takes the stand, I

have an matter to raise with the Court about that.

THE COURT: Sure.

MR. FELDMAN: We were given quite a number of

documents for this witness last night for the first time. We

have had the documents. We were told that he would be using

them for the first time. And we, therefore, have an objection

both as to timeliness --

THE COURT: Doctor, you can go ahead and have a seat.

I need to have a discussion with Mr. Feldman about something

before you take the oath.

MR. FELDMAN: .. both with respect to the timeliness,

because I think your rules require 48 hours.

But perhaps more significantly with respect to the fact

that these materials were not in any way identified in either

of his expert reports.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 36 of 228
 493

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

I can describe to you what they are.

THE COURT: Sure.

MR. FELDMAN: And then there is -- related to that is

that I expect the witness will attempt to testify based on the

identification of these documents about threshold friction

velocity, which is nothing in either of his reports about. So

on that basis I would move to preclude any testimony about

threshold friction velocity and the following exhibits: 1085,

which is the Moleski article; and 982, which is the reference

for the uncrusted coal pile; and 1069, which is the public

health document that -- public health, whatever, panel that you

just saw in Ms. Cappio's testimony.

None of those documents were in any way addressed in

Dr. Sahu's testimony. So I would object to that.

THE COURT: So you're saying that neither in his

report did he disclose an opinion about the threshold friction

velocity, nor did he disclose the use of these documents in his

report.

MR. FELDMAN: That's correct.

THE COURT: And did he testify in his deposition on

that topic?

MR. FELDMAN: He did, and I'll explain it to you.

THE COURT: Okay. 

MR. FELDMAN: I'll tell you exactly what happened.

He submitted a report. The report has spreadsheets that mirror

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 37 of 228
 494

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

the ESA spreadsheets. And they have the exact same, in our

view, incorrect value for threshold friction velocity. There

is no description in either of his reports about why that is.

That is, he doesn't say: I chose this threshold friction

velocity for this, that or the other reason.

There are discussions of other values; that is, you know,

moisture and other things, which we're not even interested in

now.

But with respect to threshold friction velocity, there is

no statement about that at all in either of his reports.

THE COURT: When you say "either of his reports," did

he do an initial report and a rebuttal report?

MR. FELDMAN: Yes. Exactly.

THE COURT: Okay.

MR. FELDMAN: And actually, he did a supplemental

report which changed some numbers, but I don't think anyone

would suggest that that's material to this motion by me. So

I'm going to continue to refer to two and omit the supplemental

report, which came out two days or so after his opening report.

THE COURT: Okay.

MR. FELDMAN: So in the opening report and in the

rebuttal report, there is no discussion of threshold friction

velocity. The only reference to threshold friction velocity is

a spreadsheet very much like the one that you've seen that has

the same identical -- the same -- not the same identical -- the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 38 of 228
 495

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

identical value for threshold friction velocity that was used

to generate the -- what we say is the incorrect number in

Table 5-7.

So there is a -- the report contains verbal descriptions

of the rationale for various values, none of which is in either

report threshold friction velocity.

I may be wrong, but am I clear?

THE COURT: I understand what you're saying.

MR. FELDMAN: Okay. And then with respect to --

THE COURT: Are you -- before -- are you going to

turn away from threshold friction velocity and go to another

topic?

MR. FELDMAN: No, I was going to --

THE COURT: Okay. Go ahead.

MR. FELDMAN: With respect to threshold friction

velocity -- oh, I do owe you an answer to your question about

the deposition.

With respect to threshold friction velocity, Exhibit 982

is one of the references that is cited in AP-42, that table

that has uncrusted coal pile and fine coal powder. That's one

of the references. And 1085 is the Moleski reference, which

you've heard testimony we got from Mr. Moleski. Those two

articles relate to threshold friction velocity, neither was in

the witness's report.

Now, you asked me a question about his deposition. At his

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 39 of 228
 496

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

deposition I -- I did verify, if you will, that he has offered

no opinions about threshold friction velocity in his reports.

That said, Page 201, 7 through 10 of his deposition. And he --

which I'm happy to provide to your Honor.

And he took the occasion to then start talking about

threshold friction velocity, but I was attempting to determine

whether or not he had opinions -- excuse me -- whether he had

expressed opinions in his reports, which I think is the

touchstone for this process, not whether he can babble about it

in a deposition.

So with respect to the reports, there is no question that

the only reference is in a spreadsheet. There is a verbal

description of other values, not threshold friction velocity.

There is no reference to these two articles. And the

references in the deposition were my attempt by and large to

find out whether or not he had expressed an opinion in the

reports.

THE COURT: Okay.

MR. AKER: Well, perhaps Mr. Feldman's memory is

different than mine, but I do know, first of all, he obviously

had to use threshold friction velocity to determine -- to

review the ESA calculations and determine whether they were

correct, which was his opening report.

THE COURT: So, yeah. That's one of the things I was

going to ask, is what were the opinions that he offered in his

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 40 of 228
 497

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

opening report and in his rebuttal report.

MR. AKER: His opening report, essentially, looking

at the ESA report, the calculations and verifying were they

correct, were they not correct. In some cases he agreed; in

some cases he disagreed.

But one of the -- as your Honor probably already knows,

that threshold friction velocity is a key component of that,

and he used that to compute -- to verify the ESA calculations.

I'm 90 percent sure, if not more, that --

THE COURT: Well, why don't you show me -- why don't

you show me his reports and his deposition testimony.

Why don't you hand those things up to me?

MR. AKER: We have his reports. I'm not sure we have

his deposition testimony here, your Honor. And it would take

some time to actually go through and figure out where these

references were.

If I could just continue? He did address it in his

rebuttal --

THE COURT: Hold on. I want to see -- before you

talk more about his reports and his deposition testimony, I

want to have his reports and his deposition testimony in front

of me.

MR. FELDMAN: May I hand this to your Clerk?

(Whereupon binder was tendered to the Court.)

THE COURT: Thank you.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 41 of 228
 498

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. FELDMAN: This is a heavy binder.

(Whereupon binder was tendered to the Court.)

MR. FELDMAN: The opening report is at 499, your

Honor.

THE COURT: Okay. Hold on one second here.

(Brief pause.)

THE COURT: Okay. Mr. Feldman, which tab did you say

the expert report is --

MR. FELDMAN: The opening report is at 499.

THE COURT: Uh-huh.

MR. FELDMAN: And I can walk you through it, if you'd

like.

THE COURT: That's okay. At least for the moment.

Maybe I can hear from Mr. Aker, now that I have it.

MR. AKER: Sure. So I'm -- I'm reading from Page 9

of his rebuttal report.

THE COURT: Okay. Which tab is that again?

MR. AKER: And that is -- it's 501, Trial

Exhibit 501.

THE COURT: Okay.

MR. AKER: And I would direct your Honor's attention

to Page 9 at the bottom.

(Document displayed.)

MR. AKER: Where Mr. Sahu -- Dr. Sahu says on

Page 541 of his report: 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 42 of 228
 499

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

"Relating to the emissions of coal dust from rail

cars, Mr. Chinkin makes the following statements

without any technical support whatsoever."

And then he talks about the emission factor chosen by ESA

he thinks is wrong.

And if we go to the next page, he talks about erodable

materials.

Let's see.

(Brief pause.)

MR. AKER: Actually, your Honor, I'm not finding it

on a quick read-through of the opening report, but as the

witness will testify, that --

THE COURT: That begs the question.

MR. AKER: -- threshold friction velocity is an

important...

But I would also point out he was asked about it

extensively in his deposition. He talked about -- 

THE COURT: Why don't we start with the reports?

MR. AKER: Yeah.

THE COURT: Can you give me an argument for, again,

the basic rule, which is subject to exception sometimes. The

basic rule is that if an expert doesn't disclose an opinion in

a report, the expert cannot provide that opinion at trial.

So do you want to explain to me how his report includes or

encompasses or necessarily involves an opinion about the -- I

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 43 of 228
 500

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

always forget the term -- threshold friction velocity.

MR. AKER: Friction velocity, yeah.

Well, it was an integral part -- I mean, he has to apply a

threshold friction velocity in order to verify the ESA

calculations. That's part of his --

THE COURT: So tell me what was his -- what was the

opinion he was offering in his initial report?

MR. AKER: That the ESA calculations were correct.

THE COURT: Okay.

MR. AKER: And that included all elements of what he

needed to -- to get to the calculations.

THE COURT: Okay. So -- and -- so he -- so his -- so

his opinion -- here, let me just flip through his report.

MR. SIEGEL: Uh-huh.

THE COURT: Usually there is a summary in the front.

Okay.

(Brief pause.)

MR. AKER: So, your Honor, I would say it's --

THE COURT: Give me one second.

MR. AKER: Sure.

(Brief pause.)

MR. AKER: Your Honor, I can -- if the Court --

THE COURT: Just give me one second.

MR. AKER: Sure.

(Brief pause.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 44 of 228
 501

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

THE COURT: Okay. Sorry. Go ahead.

MR. AKER: Yeah. If the Court would go to the page

at the bottom that's TX-044. It's kind of toward the end of

the report.

MR. FELDMAN: Which report now, please? What

exhibit?

MR. AKER: This is his opening report, Exhibit 499.

MR. FELDMAN: Okay.

THE COURT: Okay.

MR. AKER: And so what these are -- and the witness

can explain later -- but these are sort of the details of his

calculation of the -- the emission amounts. And as you'll see,

it's very small writing. But right dead center in the middle

of the page it says: Friction velocity, meters per second,

threshold friction velocity, meters per second.

And you'll see just to the right of that 0.54, AP-42,

Chapter 13.2.5 for fine coal dust on concrete pad from an

Eastern power plant. And then he has got the roughness height

is next.

But so just that shows you that -- that elements of his

calculations was disclosed in his report, and he was asked

about it extensively in his deposition. So there were no

surprises.

The plaintiffs knew that this was an essential part of his

opinion, and it -- he was asked about it at length. And why

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 45 of 228
 502

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

did you choose this value? Why didn't you choose uncrusted

coal pile?

MR. FELDMAN: May I be heard now?

THE COURT: Yes.

MR. FELDMAN: I have no objection, although -- well,

I shouldn't say it that way. There is no doubt that the

witness used 0.54, exactly as ESA did. And the witness will

testify, if he is consistent with his deposition, that he took

their spreadsheets and used them and only made certain changes.

And he explains some of the changes, and he explained some

of the non-changes in his report and in his deposition.

But in his deposition, I asked him:

"QUESTION: And have you offered any opinion about

what the correct threshold friction velocity should

be?

"ANSWER: I could not, because I don't have details on

the coal."

And I did ask him a number of questions about threshold

friction velocity in an effort, A, to protect myself; and, B,

to find out what was actually happening in this report. But

there is no place in this opinion -- and I will walk you

through every line if you are so inclined -- where I could have

found out what his -- his position would be on the correct

threshold friction velocity.

And that's exactly why I'm making this motion.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 46 of 228
 503

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. AKER: Your Honor, the purpose of this rule

about -- that your Honor cited is so that the other side in

litigation is not surprised by something that they had no

reason to believe the expert was going to talk about. It's in

his report. And if -- if -- to the extent anyone felt that,

well, you know, it's -- it's a line item in the spreadsheet

here. They had ample opportunity, and actually did take the

opportunity to ask him questions about it in his deposition.

THE COURT: All right. I understand. I understand

the issue. And what -- I think it's a close question. But I

am going to -- but, you know, I think because he originally

offered an opinion about whether ESA's calculations were

correct or not, and part of ESA's calculations included this

assumption about threshold velocity, I think that there is at

least a reasonable argument that it's included in the report

and you combine that with the fact that Mr. Feldman

cross-examined him about it extensively -- asked him about it

extensively at his deposition justifies his testimony about it

here.

I will also say that given the answer that he gave on

Page 201, Lines 9 through 10, that -- I mean -- that, you

know -- he seems to have -- your expert seems to perhaps have a

credibility problem on that issue. But I think that probably

goes better to weight than admissibility.

So he can testify about that.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 47 of 228
 504

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. AKER: Sure. Thank you.

MR. FELDMAN: May I be heard?

THE COURT: No. Let's proceed.

MR. FELDMAN: No, no. I'm sorry. This is with

respect to the articles.

THE COURT: Oh.

MR. FELDMAN: They were not anywhere in his report or

his testimony. So the two articles that I've referred to

should not be permitted, even under your Honor's analysis.

THE COURT: And when is the first time that it was

disclosed to you that --

MR. FELDMAN: Last night at 7:30.

THE COURT: -- that he would use -- that his -- he

would use these articles?

MR. FELDMAN: Last night at 7:30. I may be off on

the time.

THE COURT: I think that's a fair point.

MR. AKER: Can I respond to that?

THE COURT: Yes.

MR. AKER: So these articles are part of 13.2.5.

And, in fact, one of them, Mr. Chinkin referred to yesterday.

And if you -- I'm looking at this AP-42, you know --

THE COURT: Is there any indication anywhere in his

testimony, deposition testimony or his reports, that he gave

consideration to these articles?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 48 of 228
 505

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. AKER: The --

THE COURT: Was he -- was he questioned about the --

did these articles come up in the deposition testimony?

MR. FELDMAN: They did not.

MR. AKER: I really -- I can't recall.

THE COURT: He is not -- he is not permitted to

testify about these articles.

MR. AKER: Well, if I could add, your Honor, that

these are the articles that Mr. Chinkin referred to in his

testimony yesterday. An expert is entitled to offer an

opinion -- who is in court is entitled to offer opinions about

facts he learns during the -- from witnesses who have testified

at trial.

He is -- I think we are entitled to rebut Mr. Chinkin's

testimony that these two articles apply. The Moleski article

is one he talked about.

THE COURT: Did Chinkin -- did Chinkin --

MR. FELDMAN: Yes. 

THE COURT: -- include these articles in his expert

report?

MR. FELDMAN: Yes.

MR. AKER: I don't recall that, but -- 

THE COURT: And did he testify about those articles?

MR. FELDMAN: He wasn't asked in his deposition.

He --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 49 of 228
 506

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. AKER: Oh.

MR. FELDMAN: Excuse me.

They were both in his report. The saga of us contacting

Moleski is in Mr. Chinkin's reports.

THE COURT: Can I see Chinkin's report? Can you show

that to me?

MR. FELDMAN: That, I don't have handy.

THE COURT: One of your team members, no doubt, has

that handy.

MR. FELDMAN: But I remember that.

THE COURT: Okay. But I would like to just take a

look that.

(Brief pause.)

MR. FELDMAN: While they are looking for it, there

was also no reference by the witness in his reports to the

Public Health Panel report that -- last night we found out that

he is proposing to testify about.

THE COURT: We will get to that in a second.

(Brief pause.)

MR. FELDMAN: May I hand this to your clerk?

THE COURT: Please.

MR. FELDMAN: This would be in 474.006 in the long

paragraph that begins "In my October 6 report."

(Whereupon document was tendered to the Court.)

THE COURT: Okay. So the expert can testify about

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 50 of 228
 507

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

why he used fine coal dust on a concrete pad. He cannot

testify about these articles or to rebut the expert's testimony

about these articles.

That's the ruling. Proceed.

MR. AKER: Thank you, your Honor.

MR. FELDMAN: With respect to the Public Health

Panel, there was nothing in his report about that -- either of

his reports about that either. And this -- last night at 7:30

is when we learned for the first time that there was proposed

testimony from him about that.

THE COURT: Okay.

MR. AKER: I'm not sure we're going to ask him about

that.

THE COURT: Okay.

MR. FELDMAN: Good.

MR. AKER: Other witnesses have testified about it

already.

THE COURT: Okay. Then it sounds like that won't be

a topic of his testimony.

MR. FELDMAN: Thank you.

THE COURT: You can proceed.

MR. SIEGEL: Thank you, your Honor.

RANAJIT SAHU, 

called as a witness for the Defendant herein, having been duly 

sworn, testified as follows: 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 51 of 228
 508

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

THE WITNESS: I do.

THE CLERK: Thank you. Please be seated.

And for the record, please state your first and last name

and spell both of them.

THE WITNESS: My first name is Ranajit, spelled

R-A-N-A-J-I-T. Last name is Sahu, S-A-H-U.

THE CLERK: Thank you.

DIRECT EXAMINATION

BY MR. AKER 

Q. Good morning, Dr. Sahu.

A. Good morning.

Q. Could you state for the Court your present occupation.

A. I'm an environmental consultant. I do engineering,

environmental and energy consulting for a variety of clients.

Q. Okay. And how long have you been doing that kind of work?

A. For the last 17 years on my own, and about 10 years prior

to that as part of other employers.

Q. So all together?

A. About 27 years.

Q. 27, -8 years.

And is your focus on any type of pollutants, air

pollution, water?

A. Substantially air pollution, but I also do work in water

as well as waste and related -- other media.

Q. Okay. I wonder if you could just describe your assignment

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 52 of 228
 509

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

in this particular case, this project.

A. Sure. When I was contacted by counsel, my understanding

was, and I was told to review the ESA report and the --

obviously, the project descriptions and discussions that were

part of their report. It was then later on to review other

expert reports from the plaintiff's side and then -- those are

the two main sort of assignments, and other sub-assignments

flow from that.

Q. Okay. And did you also review OBOT's expert reports and

respond to those?

A. Yes. That's what I meant by the -- the plaintiff's --

defendant's -- plaintiff's expert reports or the OBOT reports.

Q. I wonder if you could describe your education for me?

A. Very briefly, I have a mechanical engineering degree from

one of the Indian institutes of technology.

And then I came here to the U.S. in '83 and got my

master's and my Ph.D. dealing with coal combustion primarily

and air pollution, from the Cal Tech -- from California

Institute of Technology in Pasadena.

Q. Okay. And so you're an engineer, is that right?

A. Yes. My degrees are in mechanical engineering, basically.

Q. And what -- why is that important in this particular

matter?

A. Well, we're talking about a facility that obviously has to

be designed, engineered and built, and the air pollution

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 53 of 228
 510

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

calculations and ultimately the issues that -- that are

important here, which flow from those air pollution

calculations and how pollutants are generated and dispersed and

ultimately either pose or don't pose harm flow from the basic

engineering of what the facility is going to be.

THE COURT: Could I ask -- there was one part I

didn't hear. What did you say your Ph.D. was in?

THE WITNESS: My Ph.D., your Honor, was in the

combustion of coal chards, which is part of the coal that is

left when it's burning. That was the narrow issue.

But it was driven by air pollution from coal combustion,

so that was the -- 

(Court reporter clarification.)

THE WITNESS: ...from coal combustion.

THE COURT: Great. Thank you.

BY MR. AKER 

Q. Okay. I have here that your Ph.D. was in mechanical

engineering?

A. Yes.

Q. Okay.

A. And that was the subject matter of the dissertation.

Q. Your thesis or dissertation, okay.

A. Yes.

Q. And so if you could just elaborate a little bit on what

kind of things you did between 1990 and 2000 while you worked

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 54 of 228
 511

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

for private firms.

A. From 1990 to 2000, I was with a series of private firms.

I did design work. I did -- but primarily consulting work.

The firm had a large environmental consulting practice. I did

all aspects of air pollution consulting, which includes

developing emission inventories and a lot of permitting work.

My work was primarily in the South Coast AQMD. And I'm a

certified permitting professional in the South Coast, so I did

a lot of permitting work.

I also managed other environmental professionals and I did

a fair amount of dispersion modeling -- 

(Court reporter clarification.)

Q. Please slow down.

A. I did dispersion modeling and risk assessments as part of

my work in that first decade when I was with Parsons.

Q. Okay. And what about from 2000 to the present when you

had been sort of on your own?

A. The main change was that I was on my own. And I had a

different client base, but for the first five or six years, I

continued to do similar work. I also started to do work for

the Department of Justice and the EPA and some expert work

dealing with coal-fired power plants.

And along with that, towards the latter part of the

decade, I also began to do a fair amount of work in other

media, the water and waste, and the air quality work continued

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 55 of 228
 512

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

but then added to do work in other areas.

Q. Would you please talk a little bit more about your

permitting experience. You mentioned that.

A. Well, that began roughly when I joined Parsons in 1990,

and it essentially has continued through. Assisting clients to

get permits was a lot of that in the first decade with Parsons.

Reviewing permit applications and providing comments on public

permit applications and occasionally getting permit

applications, that continues through today.

I am, as I mentioned earlier, a -- the South Coast AQMD,

their staff are so busy that several years ago they began a

program where they -- it's a certification program for folks

that want to avail themselves of services of consultants if

they wanted to get permits.

And I was one of the certified consultants. I still am.

It simply means that when people come to the South Coast and

ask to get permits they say: Well, go talk to these people.

They can help you. That type of thing.

Q. Okay. And have you had experience in assisting people

applying for permits with the Bay Area Air Quality Management

District?

A. In -- when I was at Parsons in -- between 1990 and 2000,

we had an office actually here in Alameda, which I managed for

part of the time out of Pasadena. And we had many clients in

the Bay Area that we assisted in getting permits.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 56 of 228
 513

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

Q. Okay.

MR. FELDMAN: Your Honor, excuse me. I move to

strike. The question was whether he had experience, and I

don't think he answered that question.

THE COURT: That's true. There is no need to strike

anything. Can you --

MR. AKER: Sure.

BY MR. AKER 

Q. Can you elaborate on that response to Mr. Feldman's

objection?

A. I did assist myself personally in many of those permit

applications.

Q. Okay. So you met with BAAQMD staff and things like that?

A. Only on a couple of occasions. This was specifically

dealing with a cement plant. I remember meeting with BAAQMD

staff.

Other instances, it was preparing permit applications,

reviewing emission inventories, and modeling as part of permit

applications --

(Court reporter clarification.)

A. ...preparing emission inventories and the other aspects of

permit applications, like modeling, conducted by other folks

who worked under my supervision.

So meetings, I just recall one or two.

MR. FELDMAN: I apologize for interrupting. May I

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 57 of 228
 514

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

please have the deposition back?

THE COURT: Sure.

MR. FELDMAN: Never mind. I've got a copy.

THE COURT: Okay. 

MR. FELDMAN: Sorry to interrupt.

THE COURT: No problem.

BY MR. AKER 

Q. How many permit applications do you think you handled with

BAAQMD?

A. I would say between 10 and 20.

Q. Okay. And then you -- since then you have been doing a

lot of work with the South Coast Air Quality Management

District, is that correct?

A. South Coast AQMD, ever since I lived there, work is fairly

steady. But I was doing a lot more intense work at South Coast

Air Quality Management District when I was with Parsons. I

don't do as much with them now other than occasionally

assisting clients who are referred to me through that certified

permitting program that I mentioned earlier.

Q. Could you give the Court some idea of the types of clients

you've worked with over the years. And I'm thinking about

broad categories, like government or private industry,

environmental groups, that kind of thing.

A. It's -- over the years, it has involved the three broad

categories into which I look at my clients, which is private

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 58 of 228
 515

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

industrial clients, government entities, including EPA or

states or other -- other government entities, cities. And then

lastly would be non-governmental organizations, environmental

groups, public groups.

Q. I think you alluded to this, but some of your experience

has involved investigation or analysis of coal operations?

A. Yes. A substantial portion of my work, certainly when I

have been on my own in the last 17 years, has been dealing with

coal-fired power plants, coal terminals, coal storage at

coal-fired power plants, and, of course, combustion issues and

emissions and pollutants associated with handling and

combusting of coal.

Q. Okay. And have you had experience in your career with

coal dust or other particulate matter?

A. I have.

Q. Briefly describe it.

A. Yeah. Whether it's in a power plant or whether it's in a

terminal, and I've dealt with both, obviously you're not going

to burn coal in a coal-fired power plant without first bringing

it to the power plant and handling it there: Storing,

conveying, crushing, milling, grinding. And all of those

involve a fugitive emissions potentially and how they are

treated.

And at terminals like the one proposed here, obviously the

handling is the more important part as opposed to the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 59 of 228
 516

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

combustion.

Q. Okay. And you mentioned briefly air dispersion modeling.

Have you actually done that kind of work?

A. Yes, I did.

Q. Just briefly describe that.

A. I did air dispersion modeling work before there were --

before there were models.

It's interesting to me that people think of air dispersion

modeling as beginning with dispersion models. Dispersion of

air pollutants has been an issue, academically and otherwise,

and I've taught for about 20 years.

So I've not only done but also taught air dispersion

modeling, in the early days by hand, to develop estimates of

concentrations that would come from releases.

And later on using the kind of models that EPA has

essentially approved for doing air dispersion modeling. I

did -- most recent air dispersion model I did for a client was

just about a month ago on a different matter.

Q. Okay. I want to turn now to the calculation -- your

review of the ESA report and the calculations of the emissions

from the OBOT facility.

A. Sure.

Q. Can you describe for the Court generally what you did to

review the ESA calculations about PM2.5.

A. Well, I began with the ESA report, and I also looked at

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 60 of 228
 517

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

their scope of what they were asked to do. And I asked

counsel, and I got as much or a fair amount of the background

documents that ESA has reviewed to prepare their report. And

as -- as I went to the report, I wanted to develop an

understanding of the context of the report, the setting, if you

will. That's a very standard part of doing this type of review

work. Where is it located? What is the project about?

What -- what is its goals and what is the surrounding area?

What sort of monitoring data are available? What sort of

meteorological data are available? Those things go into what I

consider as air quality setting information, the context

information.

So that -- and there were many documents in the record

dealing with parts of that, including documents that ESA has

reviewed and mentioned.

So my job was to verify the ESA work. So I went through

what they had gone through.

I also has a couple of brief discussions with ESA staff as

I was going through the review. And then I -- I made

adjustments as I deemed appropriate to certain aspects of their

calculations, what they had done. I -- I did begin with their

calculations since they had organized the calculations based on

the activity that were proposed in a certain way. I didn't see

any reason to revise that.

And then I -- on activity by activity, I decided where I

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 61 of 228
 518

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

agreed with them. And those I did not discuss in my expert

report because they were what ESA has used. I had no reason to

go and elaborate on things where I agreed with them.

In areas where I disagreed with them, I substituted my

judgment for what they had done and made some changes, and

those I do discuss in my expert report.

Q. Okay.

A. That's what I broadly did.

Q. We'll go through those, the changes individually in just a

few minutes.

A. Okay.

Q. Did you -- you said you looked at the setting, and part of

that was -- was monitoring data? Can you explain that.

A. Well, when you're looking at any project, you look at

the -- look at what is available by way of monitoring data in

that area, meaning in the general vicinity. We call it the

"regional area," because air pollution, when it disperses, it

doesn't just affect things right next to a facility. It

disperses, and it can affect a region. And so I looked at

regional monitoring data based on the Bay Area Air Quality

Management District's website. And that data is reported on

their website, and some data is reported on the California Air

Resources Board website. So it's that type of ambient

monitoring data that I was -- looked at.

Q. Perfect. And did you familiarize yourself with the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 62 of 228
 519

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

location or the type of these monitors in and around the OBOT

facility?

A. Yes, I did.

Q. Can you tell us about that briefly.

A. Well, there are monitors that measure what we call the

"major or criteria air pollutants," things that have National

Ambient Air Quality Standards. And those monitors measure

various of those NAAQs pollutants, including the particulate

matter fractions that are of interest here.

But I did look at even ozone data that was being

monitored, nitrogen oxide data, sulfer dioxide data, and

particulate matter, PM10 and PM2.5 data. I recall looking at

all of the NAAQS pollutant data.

Q. Okay. And why is it important, if it is, that these are

ambient monitors and not some other kind of monitor?

A. Well, ambient monitoring data is used by air agencies, and

the Bay Area AQMD has the job of ensuring that the nine-country

region here either meets or maintains or attains those National

Ambient Air Quality Standards. So I wanted to see how close

those monitors were recording.

And besides, it was part of verification. The ESA report

did discuss monitoring data and attainment status data. And so

part of my task was to review the ESA report, and I was

essentially reviewing things that they had written to do my

independent checks on them.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 63 of 228
 520

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

Q. And so the monitors you looked at and the monitoring data,

did that include emissions just from the OBOT facility, where

that's going to be built or all around?

A. No. The monitors -- depending on the location, of course,

are only monitoring existing facilities and activities.

Q. Correct.

A. They cannot monitor what is not present.

But there were monitors in the sort of regional vicinity.

There wasn't one that was right exactly in the footprint of

where the OBOT facility would be built. And that's usually the

case. But there were several monitors in the general area.

That's what I recall.

Q. Okay. So those monitors, if I'm getting your testimony

correct, would measure emissions from any source in that area?

A. Right. They are not measuring the integrated contribution

of all existing sources and activities.

Q. Okay. And there is no way to separate emissions that are

recorded by that monitor from one source to another?

A. Not without doing a whole lot of other analysis.

That's -- culpability analysis or separation analysis is a

different exercise. I didn't attempt to do any of that.

Q. And when you said you looked at the setting -- and I think

you mentioned the sort of geographic, you know, neighborhood

where this facility was going to be located -- what did you

investigate there? 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 64 of 228
 521

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

A. Again, part of verification was just the general

demographics. I understood that that facility immediately

adjacent to where this would be located in West Oakland was a

particular type of facility denoted by Bay Area Quality

Management District as a CARE facility, requiring -- I think

they have designated certain areas within their jurisdiction as

CARE facilities. The ESA report had referenced that, and I had

seen that in the Bay Area Air Quality Management District

website, so I familiarized myself with that.

MR. AKER: Okay. Your Honor, I would like to put up

a demonstrative.

THE COURT: Sure.

MR. FELDMAN: May I stand, your Honor?

THE COURT: Of course.

(Demonstrative displayed)

BY MR. AKER 

Q. Okay. Do you see the exhibit in front of you?

A. Yes, I do.

Q. Is this the location of the proposed terminal?

A. Yes. The one that is marked in red or orange, yes.

Q. And this has a reference in the cross-hatching, to Cal EPA

disadvantaged community. 

Do you see that?

A. Yes. I see that cross-hatching.

Q. Are you familiar with that category of...

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 65 of 228
 522

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

A. I had seen that in some of any reviews, but I seem to

recall the CARE designations by BAAQMD --

Q. Okay.

A. -- more than this broader Cal EPA designation.

Q. And they said you -- oh, were you -- did you also look at

meteorological data?

A. Yes, I looked at meteorological because they entered into

the air pollution emission estimates that ESA had done. So I

went and reviewed not only the annual data that they had used,

but also a more longer 10-year length of data that I was

interested in, yes.

Q. Okay. We'll talk about that when we go through the ESA

report.

And then I assume you wrote your expert reports in this

case, correct?

A. I did.

Q. All right.

MR. AKER: Could we have Trial Exhibit 499 up,

please?

(Document displayed)

MR. FELDMAN: Your Honor, excuse me. I will return

to my seat.

I have an objection to the introduction of this report as

hearsay.

THE COURT: Sustained.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 66 of 228
 523

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

MR. AKER: I was just going to ask him to identify

it, your Honor.

MR. FELDMAN: I have no objection to it being

identified. I intend to use it to impeach the witness. So I

have no objection to it being identified.

THE COURT: Okay.

BY MR. AKER 

Q. Is this your report, Dr. Sahu?

A. It seems to be the first page of my report, yes.

Q. Yes. I wonder if you could just review for the Court some

of the science that's involved here. We have had some

testimony already about what PM2.5 is, but maybe you could just

briefly describe that.

A. Well, PM2.5 is currently regulated as its own pollutant

under the National Ambient Air Quality Standards. It's a very

fine fraction of particulate matter. It's two and a half

microns or smaller in what we call "air dynamic diameter,"

which means, for the most part, really, we cannot see it. Most

people cannot see PM2.5.

So that is -- and once you emit PM2.5, and many, many

activities emit PM2.5, it disperses with the air currents and

the winds and so on until it is washed out by rain or until it

adheres to another surface and therefore gets removed from the

air. It basically would stay suspended for a very, very long

time because it is such a light -- such a small particle that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 67 of 228
 524

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

it tends to stay suspended for extremely long periods of time.

Q. Okay. And as you said, you can't see it, correct?

A. No, people can't see PM2.5, unless -- I mean, I could -- I

mean, we have all been in dark rooms where there is a

flashlight or a ray of sunlight and you can see the particles,

because -- under those circumstances, you can essentially make

them visible. But ordinarily if there is other illumination,

you cannot see PM2.5.

Q. Okay. You mentioned your review of the -- sort of the

design, the preliminary design of this OBOT terminal. Can you

talk about that. What did you do there?

A. Among the documents that I reviewed were this -- what I

call "the Basis of Design documents" that were also reviewed by

ESA, but has the -- really the description and the detail of

what was going to be built. So I reviewed those OBOT

documents.

Q. Okay. And can you describe those documents for us. And

I'm particularly looking for the sort of level of completion.

A. The documents were preliminary. They were conceptual, if

I recall, and they were in some cases very preliminary, but I

was looking for specific information, like, the kinds of

materials that would be handled, and there was some discussion

of that, but it was somewhat preliminary again.

There was some discussion of throughputs, obviously, that

ESA has used and I wanted to verify. And there was some

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 68 of 228
 525

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

description of those in different documents as part of the

Basis of Design document.

Q. Okay. And I think there was some reference on the Basis

of Design to control mechanisms, if I'm using the right

terminology. Can you talk about that?

A. Yes. As part of the facility conceptual design, it

proposed certain types of controls. It means the facility

proper where the, you know, beginning where the rail cars would

dump the coal, unloading facility, and that would be covered,

was my understanding.

The conveyors that would then convey that coal to a

storage facility would also be covered.

And then the storage facility would also be covered. And

then from there the coal would be transported -- or transloaded

to ships, and it would have sort of these transfer shutes or

socks that would actually transfer them into the hold of the

ship.

So those were the type of design features anticipated in

the facility proper.

Q. What level of detail did you find with respect to these

control devices?

A. They were not engineering drawings. They were certainly

conceptual drawings. There was not a lot of detail, other

than -- so I called them "features" as opposed to engineered

controls at that point.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 69 of 228
 526

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

Q. Okay. Was there any information in the Basis of Design

about the manufacturers of these types of controls, things like

that?

A. No, there were not. Not that I recall.

Q. What -- in doing your review of the ESA calculations, what

assumptions did you make regarding the use of controls for each

sort of -- 

A. Sure. 

Q. -- part of the OBOT operation?

A. Again, focusing on the OBOT operation, which is these

transfer operations primarily, the coal transfer, unloading

first, all the way to the ship transloading, I -- I saw that in

their calculations they had tried to account for that,

essentially give them credit by reducing the ambient wind

values to lower wind values within these type of areas. And

that seemed to be a generally acceptable way of doing it, given

the level of design that was available.

In some cases I agreed with ESA as to the level of wind

and a couple of cases -- I think in one case particularly, I

did not agree with them. So I revised that in my calculations.

But that's -- that's how I incorporated those features into the

emission calculations. And both verifying ESA as well as doing

my own.

Q. How about the rail part of this operation? Did you make

any assumptions regarding the use of control devices, covers,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 70 of 228
 527

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

surfactants, that kind of thing?

A. And then that leads to that first part, how does the coal

get there. Obviously by rail car. And the two broad controls

that were discussed in the ESA report, which is either covering

them completely and then -- or using surfactants to -- to

reduce the dust potential. I looked at those very extensively,

at least as part of my review.

Q. Okay. And we'll talk about that later in more detail, but

I wanted to find out first what your assumptions were.

I want to talk now about the adjustments you made to the

ESA calculations that you've been discussing. And I count

seven of them here, but we'll just go through them.

What about rail transport distances that ESA has assumed?

A. I didn't make any changes to those. I just left the

distances the same.

Q. You agreed with those?

A. Right. I mean, they assumed certain paths through the --

and looking at Oakland or West Oakland, whatever they had made,

I had -- I did not make any adjustments to those.

Q. Okay. What about rail transport, coal loss emission

rates, if I've got that correct. And maybe you could just

explain what that is.

A. And I should note that because I did not make any

adjustments to the rail distance, I don't comment on that in my

report either. It's something I didn't change, so I didn't

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 71 of 228
 528

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

discuss it in my report.

Q. Sure.

A. As to the erosion potential or this idea that coal would

be -- or PM2.5 particles, not coal particles, would be

generated -- would be -- and then through wind action, what we

called aeolian forces. They would be removed from the vicinity

of the rail car, from the top of the rail car.

I disagreed, and I made a sight adjustment -- one

adjustment to their emission rate, if you will. It was

basically at that point expressed as how many pounds per mile

per rail car -- that number. I used my judgment, and I

adjusted that.

Q. Do you recall what the adjustment was? I think ESA used

one pound.

A. ESA used one pound per rail car per mile. I used 1.25

per -- per rail car per mile.

Q. And why did you make that change?

A. I made the change looking at the available studies. And

then they are referenced in many documents through -- that I

did review, and I had reviewed for other matters that I have

worked on and I am working on.

So based on that, based on my understanding of the nature

of the coal, which would be primarily Utah coals, but also

potentially coal from other regions, like the Powder River

Basin, I -- I decided that the value they had used, which was

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 72 of 228
 529

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

bituminous coal related value from a study in Virginia, was not

going to be entirely appropriate. And I increased that by

about 25 percent to reflect the mix of coal that would be

handled at the OBOT facility.

Q. Okay. So -- but that was based on the type of coal, is

that right?

A. Primarily the type of coal, yes.

Q. Okay. And then what about the impact of controls? I

think -- I've got here 25 percent annual and 10 percent daily.

Can you explain for the Court what you meant there.

A. For the rail calculations, I did these annual calculations

which are tons per year, which are -- have been discussed in

these proceedings. And then I also did some daily

calculations, which are a little different.

And part of -- when I look at emission calculations, my

practice has been permitting and looking at the type of

emission calculations that are done to support permitting. And

they usually require, frankly, you know, estimates of

worst-case emissions, so-called "maximum emissions" or even

potential to emit emissions. And that's what is done. If the

OBOT facility goes to apply to the Bay Area Air Quality

Management District, that's what they have to estimate, not

some average emission.

So with that sort of reference point in my mind, I thought

it was frankly appropriate to -- to increase that erosion

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 73 of 228
 530

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

emission factor for rail cars.

And because I had reviewed the covers and the surfactants

and to the extent that they might be available to be used and

effective, I -- my opinion is -- and I -- is that the covers,

rail car covers for coal are not going to be appropriate now or

in the foreseeable future, but surfactants certainly have been

attempted. I'm aware of surfactants being used, but their

efficacy is questionable at distance from where they are

applied. So I reduced surfactant-related emission factors or

controls from what ESA had used, and I used two different

values: One for the annual, and one for the daily maximum,

those 10 and 25 percent values.

Q. Okay. We'll talk about the covers and surfactants a

little bit later in more depth, but just moving through the

adjustments you've made.

You've already talked about meteorological data.

A. Yes.

Q. You used ten years rather than ESA's one year?

MR. FELDMAN: Excuse me. I object. Leading.

MR. AKER: Just trying to save time, your Honor.

MR. FELDMAN: That's why I'm objecting.

THE COURT: Sustained.

BY MR. AKER 

Q. Go ahead. Explain the change you made to the

meteorological data.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 74 of 228
 531

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

A. This was really a verification. They had used

meteorological data like wind speed in their calculations, and

I saw that they had looked at a one-year report of wind data, I

think from Oakland Airport. And I wanted to go back myself and

look at a longer run of historical data.

I did do that. I did not change the ESA assumption, which

was still appropriate, but I wanted to as -- as part of my

verification, I went and looked at that. That didn't result in

a change in the wind data that ultimately ESA had used.

Q. And just very briefly because I know it's not a key issue

here. But moisture content, you made some -- an adjustment

there?

A. Moisture content is not a key issue for the rail stuff,

but it is a key issue for some of the OBOT facility operations,

the transfer operations.

I did not change the ESA values, but I looked at later

on -- if you're talking about ESA report right now, I don't

believe I made changes. But later on Mr. Chinkin had used a

different value, and I certainly suggested that that was not

appropriate.

Q. Okay. And maybe you could explain that. Why is the

moisture content important for the OBOT facility?

A. The moisture content, as you can see -- as you can think

the more moist the material, the more sort of wet it is, the

lower the propensity for air emissions.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 75 of 228
 532

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

So assuming a moisture content that is high would result

in low values of air emissions and vice-versa.

Q. Okay. And you've already referenced briefly the interior

wind speeds for coal storage. Can you talk about that briefly.

A. Right. The idea, when you put these controls, these

conceptual controls, even though they were not engineered, they

were certainly designed to shield these operations from the

ambient wind.

So it is not appropriate in my view -- and ESA had, again,

recognized that. And they used a lower wind value when they

did these calculations for emissions within these covered

areas. And that's what I meant by these interior wind speeds.

Q. Okay. And does that also relate to the speed of the

conveyors?

A. Well, yeah, the relative air movement in a conveyor is --

it's not the air that is moving so much as the conveyor that is

moving, but it still creates the relative velocity between the

coal on the conveyor and the air surrounding it.

Q. Okay. Now, you made -- there has been a reference to your

supplemental report already discussed here. Can you describe

what -- what was the need for the supplemental report?

A. The only change there is when the coal comes in by rail

car, it then is staged first at some distance from OBOT, and

then, of course, it is taken to the terminal itself. When I

prepared my initial report, I had considered staging emissions,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 76 of 228
 533

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

much like ESA had done at this somewhat, what I call "remote

location" later on.

But I became aware after I did my report of work by

another expert, Mr. Sullivan, relating to the actual logistics

of train movement and how these would actually come to the

terminal. And based on that, I became aware that there would

need to be some additional staging, much closer to the

facility, and so I just estimated another line of staging

emissions in the emission calculations. That was really the --

the -- the added close-in staging emissions in my supplemental

report.

Q. Okay. And what effect did that have on your calculations?

Did it increase them, decrease them?

A. Well, it increased them by about another -- if memory

serves, around three tons or so per year of PM2.5.

Q. Okay. And I know in your report you discussed the number

of trains that were assumed. What assumption did you make on

the number of trains that would be coming through on a daily

basis?

A. Well, I -- I tried to be consistent with what -- what I

thought the Basis of Design was, and somewhere around one --

one train per day. In some cases perhaps I think it was

something like three trains every two days. But those types of

assumptions.

Q. Okay. And for a throughput of 5 million tons, could that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 77 of 228
 534

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

be done with one train per day in your opinion?

A. In my understanding, it is not. It's 5 million metric

tons, so it's a little more tons than we use in the U.S., by

10 percent more.

But my understanding is that they would need about three

trains every two days, if I read the Basis of Design documents.

It is further my understanding that their own analysis

done by one of their own consultants thought even with that, it

would be very tight. It could be -- the choreography between

the trains coming, all the operations at the terminal and the

ship emissions, all the ships coming and going, all that would

have to be very tightly choreographed. And -- but I seem to

recall something like three trains every two days.

Q. Okay. That would be 1.5 trains per day?

A. Right.

Q. But for purposes of your calculations, you assumed one

train per day?

A. I did assume one to be very conservative, because on some

days they may not get -- you know, because they were also doing

daily calculations. For some days they were -- you may not get

one and a half trains, as you put it.

Q. Okay.

THE COURT: Now is a good time to take a quick

morning break?

MR. AKER: That will be fine, your Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 78 of 228
 535

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

THE COURT: Why don't we take a five-minute break and

then we'll resume until -- and go until around 12:30 and then

have lunch.

MR. AKER: Thank you, your Honor.

(Whereupon there was a recess in the proceedings

 from 11:44 a.m. until 11:52 a.m.)

THE COURT: Okay. All set.

BY MR. AKER 

Q. Dr. Sahu, I want to ask you some questions on specific

issues that have come up in this case.

First one is threshold friction velocity. And if you tell

the Court which threshold friction velocity you chose for your

calculations.

A. Again, it was in the context of verifying what ESA had

done. They had used a value of .54 from a section of AP-42

called 13.2.5, which is a very widely used section of AP-42 for

estimating emissions -- fugitive emissions from storage piles,

I mean, in many jurisdictions.

I used -- I did not change that. I basically accepted

that, given the level of detail we had. So it's basically the

one corresponding to coal dust over a concrete surface. And

that's the assumption they had used, and I did not change that

for my calculations.

Q. Okay. And was there another choice for threshold friction

velocity that you did not pick?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 79 of 228
 536

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

A. There were at least two other choices in that same table,

actually. One was the much talked about 1.12 meters per second

value that Mr. Chinkin used relating to uncrusted coal.

And then there was another one which has not been

discussed, which is .55, I believe, for ground work. But that

whole table came from the two studies that were the subject of

discussion here, references, if you will, from AP-42. And they

get into the detail of what those numbers mean and when they

came from and how old they are and so on.

Q. Can you tell us a little bit about what AP-42 is.

A. AP-42 is a compilation that goes back to 1970 of available

emissions and stack testing data that EPA and other air quality

agencies have accumulated over the years. It is a compilation.

That's what it is.

It is not a -- it's nothing more than the agency saying:

These are the types of emission calculation methodologies or

emission factors or equations that might be appropriate for the

situations than we have seen. It is not usually the case

that -- except in very simple matters, where people don't have

to exercise their own judgment in interpreting and applying

AP-42 to their own circumstances.

Q. Are these precise numbers or just general guidelines?

A. These are general guidelines. In many cases in AP-42, the

agency has attempted to rank these emission factors with the

qualitative A, B, C, D or E type of ranking, denoting the level

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 80 of 228
 537

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

of confidence they have in these factors. So they are not by

any means definitive.

Q. Okay. And there was some testimony here yesterday when

you were here that the City used the wrong AP-42 section,

namely 13.2.5. Did you agree with that or disagree?

A. I disagreed with that strongly, because that was in -- as

I said earlier, AP- -- this section of AP-42 -- and there

really is no other section of AP-42 for estimating storage pile

emissions, is the one that is used by agencies, by permitting

authorities, by consultants that do permitting, and essentially

the air quality community that deals with storage pile

emissions.

And the -- so I don't see any problem with -- with using

AP-42 and that particular section to estimate storage pile

emissions.

Q. If I get your testimony correctly, there is no other

section that would be more applicable?

MR. FELDMAN: Excuse me, your Honor. I object.

Leading.

THE COURT: Sustained.

BY MR. AKER 

Q. Is there another section that would -- you could also

choose from?

A. I think I mentioned in the previous answer that there was

none that I -- that I know of.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 81 of 228
 538

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

Q. Okay. So you've discussed the two -- at least two of the

three factors that might apply here: The uncrusted coal pile

and the fine coal dust on a concrete pad.

Why did you not pick the uncrusted coal pile as -- as the

applicable factor?

A. I didn't do it for a very simple reason. It is because --

it is my opinion, and I think I've expressed that previously,

that even the .54 that ESA had used was very conservative,

meaning it would tend to underestimate emissions. And that in

reality, because we're talking about PM2.5, that the threshold

friction velocity would be much lower.

I'm well aware of AP-42 and the data that goes into a lot

of the sections I use, including that one. And all the studies

go back to the late '80s. And where they simply did not

measure the threshold friction velocity for PM2.5. All of

those numbers, whether it is the .54 or the 1.12, they both

come from measurements of threshold friction velocity for

larger particles, for the total suspended particles, which is

PM30 or for particles that are around PM15, because they're all

visual measurements. They use wind tunnel, portable wind

tunnels in the field, as Mr. Chinkin even alluded to, and

literally made of Plexiglas that was placed on the ground. And

you increase the wind and you visually saw when particles would

start to move and erode and identified threshold friction

velocities.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 82 of 228
 539

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

You can't see PM2.5. And -- and it's well known that

PM2.5 measurements of threshold friction velocity are simply

not part of those compilations. With that knowledge, with that

background, my -- my assumption was -- I was certainly not

going to go above .54. If anything, it would be lower. So

I -- I simply left it alone.

Logically it made no sense for me to go to the higher

values, when you're talking about PM2.5. And we all know that

the fine particles, the finer the size, the finer the particle,

the easier it is to entrain, if you will, into the atmosphere.

So because of all those reasons, I saw no reason to go to the

1.12 value.

Q. And what about the uncrusted coal pile? We're talking

here about the rail staging calculations, correct?

A. Yeah. The rail staging is where that really has been

applied.

Q. Okay.

A. I mean, because the rail, we use the -- this emission

factor of -- on a per car, per pound -- you know, per car, per

mile basis.

But for staging, we used -- both parties have used the

coal, this AP-42 13.2.5 -- 

(Court reporter clarification.)

A. Both parties have used the 13.2.5 section of AP-42, that's

correct.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 83 of 228
 540

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

Q. Well, these are coal pipes, right, within a train car,

correct?

A. Yes.

MR. FELDMAN: Excuse me. Object.

BY MR. AKER 

Q. Why did you --

MR. FELDMAN: I object. Leading. Move to strike.

THE COURT: Overruled.

BY MR. AKER 

Q. Why did you not use the uncrusted coal pile? It sounds

like that would be the most applicable.

A. Okay. So the first thing was the size of the particle and

the threshold friction velocity, as we talked about.

The second is the AP-42 section does not deal with moving

piles, does not deal -- does not simply deal with moving or

vibrating or piles that are anything but stationary, literally.

That means in one place.

And when you look at 100 tons of coal, give or take, in a

rail car that is moving, that is subject to a great variety of

forces at different times, not only leaving the mine but on its

journey and right at the staging location itself, nobody in

their right mind would call that a stationary coal pile.

And so for -- that is another reason that we have to be

careful about estimating and applying AP-42 to these

situations. And crusting, as it's used in AP-42, refers

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 84 of 228
 541

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

specifically to a situation where you have a stationary pile,

and let's say you don't want to do anything with it and you

want to store it for some long time. You put a chemical

suppressant or you put a dust suppressant, and it develops a

crust because you're not touching it. You're not working it.

That is not the situation for the coal that is in a rail

car that is moving, that is subject to vibration, that is

subject to wind forces, that is subject to scouring by wind,

that is subject to being buffeted by the other locomotives and

the cars.

You know, the BNSF, who has studied this for a long time,

they apply even this crusting agents, and a few miles down,

their own employees have said there is significant scouring

because of what I call "vortex shedding." It's like being

behind a big semitruck, and three or four lengths behind you

can feel severe vibration. That's because the vortices that

are being shed from the truck. Same thing happens in a train,

but only much more complicated.

For all those reasons, any crust that you apply is not

going to be maintained. There is settling in the coal cars as

the -- as the coal moves -- movement.

All those reasons tell me that any crust, even if it was

perfectly applied -- and that's not true -- would break up. It

would be inappropriate, therefore, to simply say that, let me

go to that section of AP-42, pick the highest value, which is

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 85 of 228
 542

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

really what you can do, use 1.12, because that puts -- suppress

your emissions. The higher the threshold friction velocity,

the lower the emissions. That would be entirely inappropriate.

Q. Okay. And do you agree or disagree with Mr. Chinkin's

opinion that the uncrusted coal pile is based on an active

moving pile?

A. No. Actually, I was very surprised. I was in the

courtroom yesterday when he basically said that that AP-42 line

item supposedly was from a -- a moving -- a pile that is being

reworked, and a vibrating pile.

To my knowledge, and I know based on restrictions that

were imposed by the Court not too long ago -- we cannot get

into the details of the underlying documents -- but my

knowledge of AP-42 -- and I've used those sections and those

references not just in this matter but in other matters -- they

are not for moving piles. They are stationary coal piles. We

can all agree with that.

MR. FELDMAN: Objection. Move to strike the last

answer, your Honor.

THE COURT: Overruled.

BY MR. AKER 

Q. Okay. Another -- you -- one of the key elements of your

calculations, I assume, or your verification of ESA's

calculations was the rate at which coal dust would be given

off, or whatever the term is, from rail cars as they are coming

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 86 of 228
 543

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

into the OBOT facility, is that correct?

A. Yeah. I mean, one of the central points, I think, that's

my understanding of following the proceedings, is whether there

is a finite amount of erodable material.

In other words, if there's no dispute, I think that

when -- in the mine when the coal cars are loaded, of course

there is erodable material. The coal breaks up. It's a

fryable material. Even the sub-bituminous coal -- I mean, even

the bituminous Utah coal is still fryable. All coals are

fryable, including bituminous coals. So the fact that there

will be dust there is, I think, pretty accepted.

The question is there is some discussion that that is a

finite amount, and as you get farther away from the mines, you

will lose that because all that will be dispersed. That is not

my view.

My view is the -- due to the forces on rail cars that I

just discussed, and they are significant and severe and the

journey is not -- is not a gentle one, they -- they are

created. And I'm talking about PM2.5 now. These are the

particles that you don't necessarily see that are created. So

there is enough in the literature about visible coal dust at

great distances from these mines. And that's -- that's the

bigger particles, things you can see, not the PM2.5 you can't

see.

So, yes. Just as an engineer, as a scientist, as a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 87 of 228
 544

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

technical person, as somebody having decades of experience

dealing with coal, it's -- it's quite silly to suggest that

somehow there is a stopping distance beyond which, you know,

the coal -- the train car coal losses will be zero when you

look at things like PM2.5, because the actions that cause the

erodable materials have simply stopped. They don't stop.

Forces on rail cars continue.

Q. And you used -- you agreed with ESA that a sort of

constant emission rate of coal dust from trains was appropriate

for trains coming in from Utah all the way to Oakland. Can you

explain why you feel that was correct.

A. Again, given the amount of information we had and how the

cars would be staged, and looking at making a reasonable but

not even a worst-case assumption, quite honestly, it was a

reasonable assumption to say that you would have at least the

same amount of PM2.5.

When I did my review, I could have said the PM2.5 being

emitted closer to the mine was a lot higher, in other words,

and could have diminished down to the level that I say it would

have been nearer the terminal. I did not do that because I was

not interested in estimating emissions, 50, 100, 200 miles from

the mine. I was interested in what was going on in West

Oakland, in Oakland.

And so it seemed entirely reasonable, based on the

literature again, the factor that I had used, if you recall, I

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 88 of 228
 545

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

have used 1. -- I have used 1.25, or even a threshold friction

velocity of .54 rather, and I know that is too big. It is too

large. I've already underestimated the emissions so much that

it -- it did not seem to be a proper use of judgment to do

something even lower.

Q. Okay. And why is that -- you've explained this briefly

before, but why is the 0.54, if I have the number correct, that

you used too high?

A. The underlying documents, the work that supports that

number is based on a visual observation of -- between PM15,

PM30, using these portable wind tunnels -- that are -- the best

technology that was there in the late '80s. No question. But

they were not PM2.5 threshold friction velocities.

MR. FELDMAN: I move to strike. That was evading

your ruling.

THE COURT: That's correct.

BY MR. AKER 

Q. Let's talk about covered rail cars.

A. Sure.

Q. What was your opinion on the use of those?

A. Well, given that all coal has volatility -- in other

words, inherent to coal is volatile matter. And that's not

methane that we talked about in the testimony earlier. That's

just organics that are part of the coal matrix.

Any coal has minerals and ash and it has, of course, the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 89 of 228
 546

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

carbon and it has volatile matter.

Unlike petcoke, for example, which does not have volatile

matter because it comes from a different refinery process, all

that is driven off.

That volatile matter, if it's put in a confined space, is

going to create a potential hazard. And it's because of that

reason that coal-covered cars are not in use. And I couldn't

find any that were in use. Just as ESA had verified and I --

essentially the same thing. It led me to the conclusion, not

just on practical applicable reasons, but on good --

(Court reporter clarification.)

A. But also theoretical reasons that it would be very

difficult to find use of these covered cars given the

combustibility risk.

MR. FELDMAN: Your Honor, I move to strike the last

answer. The witness was not disclosed on any topic relating to

combustibility. There is nothing, to the best of my

recollection, in any of his reports about that. And I move to

strike.

MR. AKER: Your Honor, a primary basis of Mister --

Dr. Sahu's opinions was the use of covered rail cars, and I'm

simply asking him are they in use and if not, why are they not

in use.

THE COURT: Did he provide an opinion on that in his

reports?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 90 of 228
 547

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

MR. AKER: I believe he did.

THE COURT: Okay. Show me.

MR. AKER: Because of the combustibility.

THE COURT: Show me.

MR. FELDMAN: I will apologize if I'm mistaken, but I

don't remember that.

(Brief pause.)

MR. AKER: I don't see it on a quick review, your

Honor.

THE COURT: Okay.

MR. AKER: But he definitely does talk about covers

and their use.

THE COURT: Show me where it is or the motion to

strike is granted.

MR. AKER: The rail car covers? He talks about rail

car covers, but I don't see the reference to combustibility.

I'm simply asking him the reason why rail cars are not used.

MR. FELDMAN: That's my objection.

THE COURT: He didn't provide an opinion on the -- on

the combustibility of -- he just assumed that rail cars would

not be used, but he did not provide an opinion about why.

MR. AKER: I don't see it right offhand here, your

Honor.

THE COURT: Okay. If he didn't provide an opinion

about why, then that's beyond the scope of his expert

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 91 of 228
 548

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

testimony. Do you want to -- you're free to take time if you

want to look to see if he provided an opinion on that.

Otherwise, I have to -- I don't have any choice but to grant

the motion to strike the last question.

MR. FELDMAN: For what it's worth, he actually

assumed that they are used. That's on Page 7,

subparagraph (c).

MR. AKER: What are you reading from?

MR. FELDMAN: TX-499.0010, Page 7 of the document,

subparagraph (c). The witness assumes -- it's a little hard to

figure out but ESA assumed 85 percent, he is assuming

25 percent for covers or surfactants.

MR. AKER: In his rebuttal report, your Honor, at

Page 3 --

THE COURT: Just -- I just want to say --

MR. AKER: Sure.

THE COURT: -- in his initial report, he does say

that he assumes emissions will be reduced by around 25 percent

based on -- he assumes that the controls will be less effective

than ESA assumes. And part of why he says that is that the use

of binders and dust suppressants and coal covers and covers are

not likely to be -- are likely to be less effective compared to

their effectiveness at the start of the journey in Utah given

the long travel to the terminal.

So, so far his report -- if anything assumes the use of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 92 of 228
 549

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

covers, it doesn't express any opinion about coal covers being

dangerous or causing -- sorry -- rail car covers being

dangerous or threatening to cause explosion. So where -- now

you want to point to the supplemental report, which is

Exhibit 501, is that right?

MR. AKER: It is 501, your Honor, on Page 5, where he

talks about his disagreement with Mr. Chinkin on: Operators

have agreed to use rail car covers since I have not seen any

specific designs in the record nor have I seen any binding

commitments --

THE COURT: I'm sorry. I don't yet see where you

are. Up at the top there? Paragraph (a)?

MR. AKER: Yeah.

THE COURT: Okay. 

MR. AKER: And he disagrees with Mr. Chinkin's

conclusion that these rail car covers will be used to cover

these -- the rail cars.

THE COURT: Okay. The motion -- that's all you have?

MR. AKER: Yes.

THE COURT: The motion is granted. That last answer

will be stricken.

BY MR. AKER 

Q. Dr. Sahu, let me ask you: To your knowledge, are rail car

covers used for coal?

MR. FELDMAN: Excuse me, your Honor. I object.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 93 of 228
 550

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

There is no foundation for this witness to be an expert on coal

car covers. There are experts about that.

MR. AKER: May I lay a foundation, your Honor?

THE COURT: No. Sustained.

BY MR. AKER 

Q. Do you have an opinion about the effectiveness of coal car

covers?

MR. FELDMAN: Same objection.

MR. AKER: This is clearly part of his report, your

Honor.

THE COURT: You mean that portion of the rebuttal

report he just read to me?

MR. AKER: Absolutely. Yeah.

THE COURT: He said he didn't know anything about

them in the supplemental report.

MR. AKER: Well, actually in his opening report, he

assumed control efficiencies from these surfactants or rail car

covers, so that was directly within his opening report.

And then in his rebuttal report, he challenges

Mr. Chinkin's claim that these cars will be covered.

THE COURT: Well, all he says in his report is that:

I haven't seen any specific designs for such covers in the

record, and I've not seen any binding commitments for how this

agreement to use covers effectively would be enforced.

And he complains that Chinkin merely says that rail car

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 94 of 228
 551

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

covers are being evaluated.

I mean, other than that, he doesn't provide any opinion on

the use of rail car covers as far as I can see.

MR. AKER: Well, I think I asked him does he have an

opinion as to the efficiency of covers or surfactants, not the

use of -- 

THE COURT: Covers. Where is his opinion on the

efficiency of covers?

MR. AKER: It's, your Honor, what you just read

about, the 25 percent, the 10 percent.

THE COURT: That -- that even covers would not be as

efficient as 85 percent.

MR. AKER: Correct. Or surfactants actually also.

MR. FELDMAN: There is no basis. He is not an

expert, as far as I know, in coal car covers or their

effectiveness.

THE COURT: I'll let you ask a little bit about

his -- what drove his assumptions regarding coal covers.

It appears to be, if not outside the scope, on the border

of beyond the scope of his report. And so I'll let you ask --

explore a little bit about it.

MR. AKER: Sure.

MR. FELDMAN: My further point is there is no

foundation for the witness's expertise in evaluating something

that he has no experience with.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 95 of 228
 552

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

THE COURT: I think you're probably right, but I'll

let him ask a couple questions about it and see how it goes.

MR. FELDMAN: Okay.

BY MR. AKER 

Q. As part of your experience, do you have experience with

coal trains and coal cars?

MR. FELDMAN: I'm sorry. What was that? I just

didn't hear.

THE COURT: Coal trains and coal cars.

A. Yes.

BY MR. AKER 

Q. Can you briefly describe your experience.

A. Well, I dealt with emissions from the transportation of

coal in many of my projects. And I also am familiar with the

properties of coal. And all I did in my report was talk about

the feasibility of covers simply given my knowledge of the

properties of coal.

Q. Okay.

A. And I have about 30 years of experience in the properties

of coal.

Q. Okay. And what about surfactants?

A. Surfactants -- I'm aware that surfactants have been used.

They are being used. There have been studies, some in the

mid-2000s as to how they can be used. I'm familiar with

probably the most recent application of surfactants at a BNSF

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 96 of 228
 553

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

facility in Washington State, a state-of-the-art facility, to

do just the application of surfactants on moving coal trains.

And my assumption of 25 percent and 10 percent

effectiveness of surfactants was based on that body of

knowledge, which is considerable since on -- I mean, the

availability of the body of knowledge, which is considerable

since about 2005 or '6.

MR. FELDMAN: Your Honor, I move to strike. There is

no reference to anything other than one study and no showing

that he is an expert.

MR. AKER: He has been working with coal --

THE COURT: He provides an opinion in his report

about -- a slightly more clear opinion in his report about

surfactants, so I will let him -- he can testify a bit about

that.

MR. FELDMAN: Excuse me. May the reference to

"covers" be struck? There is zero foundation for that.

THE COURT: Yes.

There is going to be no more testimony about covers from

this witness.

MR. AKER: Thank you, your Honor.

BY MR. AKER 

Q. And your opinion on surfactants as to their effectiveness,

can you provide that for the Court, please.

A. Well, I mentioned the surfactants are applied, but the --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 97 of 228
 554

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

getting surfactants to be even properly applied on these bread

loaf-shaped coal -- coal in a coal car is difficult. And that

is based on my review of how -- frankly one of the best

facilities that is designed to do that very thing is able to

even provide full coverage to a train car. And then, of

course, the surfactant doesn't survive these type of forces I

was talking when the rail car actually moves.

And the literature is quite clear that if you look at the

effectiveness as in known dust from these rail cars, let's say

100 miles or 200 miles away from where the surfactant is

applied, that you see a fair amount of even visible dust, not

to mention PM2.5, which you really can't discern. 

Q. Okay.

MR. FELDMAN: I would move to strike the portion of

the witness's answer following the reference to the literature,

since there is none cited and none referred to in the answer.

MR. AKER: Your Honor, he is an expert witness who

has been doing this for 28 years. He is obviously familiar

with the literature.

THE COURT: I'm going to allow a little bit of

testimony about this. But it's apparent that Oakland needs to

go to school on the rules about use of expert witnesses. And

I'm hopeful -- perhaps you can consult a little bit with

Mr. Finberg or something over the lunch hour to streamline the

use of expert witnesses after lunch and make it go a little bit

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 98 of 228
 555

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

more smoothly.

MR. AKER: Sure. Thank you, your Honor.

BY MR. AKER 

Q. Can you just -- are you familiar with the South Coast Air

Quality Management District Rule 1158?

A. Yes, I am.

Q. And can you tell us what that covers?

MR. FELDMAN: Your Honor, excuse me. I don't believe

this is in his report. If I'm mistaken, I apologize.

MR. AKER: I think it was brought up in his

deposition, your Honor.

THE COURT: Is it in his report?

MR. AKER: Umm, I -- I really can't be sure, your

Honor.

THE COURT: Then ask him about opinions that he

offers that he has disclosed in his report. Okay?

MR. AKER: Okay.

BY MR. AKER 

Q. Dr. Sahu, do you have a sense, the ESA report, as I

understand it, calculated approximately 20 tons per year of

additional fugitive dust, PM2.5?

A. PM2.5, yes. That was about -- about 20 tons after going

through some arithmetic errors and so on. It was in that

range, about 20 tons.

Q. Okay. And we have talked about your review of the ESA

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 99 of 228
 556

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

calculations. What were your conclusions regarding those

calculations?

A. They were generally consistent. And what I mean by that

is, they were in the 20- to 25-ton per year range after I did

my supplemental, where I added that second staging facility,

the close-in staging facility. They were probably slightly

higher, around 23 to 25 tons if memory serves.

Q. Okay. And so -- so what was ESA's calculation of PM2.5?

A. About 20, something in that range.

Q. And so how close were your calculations to ESA's?

A. Because I was doing a verification calculation, I -- and

both of them, I think, are significantly underestimated. They

are very close. I would call them -- they are in the same

order of magnitude, basically, but they are -- they happen to

be also pretty close in absolute terms.

Q. Great. Thank you.

Do you have any sense based on your 28 years of experience

of how that -- I'll just say 20 tons per year of PM2.5 -- how

relatively large is that? Is it a big contribution, a small

one? How would you characterize it?

MR. FELDMAN: Your Honor, I object. There is no

scientific basis for "big" or "small."

MR. AKER: I'm asking him, based on his experience

can he --

THE COURT: Is this -- is this something that was

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 100 of 228
 557

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - DIRECT EXAMINATION / AKER

disclosed in his report, whether it was big or small? Or was

the report just about checking ESA's calculations and verifying

them?

MR. AKER: Well, your Honor has asked questions about

how this falls within the -- how these calculations --

THE COURT: Was it disclosed in his report?

MR. AKER: I --

THE COURT: Was it part of the opinion that he

disclosed as offering?

MR. AKER: I don't think so, your Honor.

THE COURT: Okay. Then the objection is sustained.

MR. AKER: I have no further questions, your Honor.

THE COURT: Okay. Should we take our lunch break

now?

MR. FELDMAN: If you please, your Honor.

THE COURT: Sure. So why don't we resume at quarter

after 1:00, sharp. After lunch. Thank you.

MR. FELDMAN: Thank you.

(Whereupon at 12:24 p.m. proceedings were adjourned

for noon recess.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 101 of 228
 558

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

P R O C E E D I N G S

JANUARY 19, 2018 1:18 P.M.

---000--- 

THE COURT: Ready? Set?

MR. FELDMAN: Not quite. There was actually, if you

can believe it, a slight technical difficulty with one exhibit. 

So I'm hopeful that the Court would permit us -- I've

given it to the witness. I'm hopeful that your Honor will

permit us to display it for you without necessarily having a

hard copy of it.

THE COURT: That's fine.

MR. FELDMAN: This examination will take about five

minutes.

THE COURT: Okay.

MR. FELDMAN: I'm told and ordered.

Start?

THE COURT: Sure.

CROSS EXAMINATION

BY MR. FELDMAN 

Q. You believe there were fundamental uncertainties relating

to the OBOT project in the record before you, correct?

A. Yes. My opinion was that it was a conceptual level of

design when the emission calculations were done by ESA.

Q. The threshold friction velocity calculation drives the

calculation for staging, correct?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 102 of 228
 559

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

A. It is one of the important inputs into that calculation.

MR. FELDMAN: May I see Deposition 223, at 7 to 15.

(Document displayed.)

BY MR. FELDMAN 

Q. (As read)

"QUESTION: And if you used controls for staging, what

controls would you have assumed?

"ANSWER: Very little, by way of controls, because any

controls that would have been applicable would have

been considerably deteriorated. So the effect would

have not been very much and it would still basically

show up in -- like I said, your threshold friction

velocity is what drives the calculation."

Does that remain your testimony?

A. Yes.

Q. You reached the same number for staging, the same exact

number for staging, as ESA because you assumed their

assumption -- you accepted their assumptions for threshold

friction velocity and wind and all other inputs, correct?

A. Sure. I used the threshold friction velocity of .54 that

they had used, as I discussed in my direct testimony.

Q. You accepted their assumptions for threshold friction

velocity and wind and all other inputs, correct?

A. I'm just confused about the wind part because we were

talking about staging a minute ago, right? That's -- given

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 103 of 228
 560

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

that for staging, it was a threshold friction velocity. I just

want to clarify that's what you're talking about.

Q. Well, let's see if we can clarify it this way, Doctor.

Would you look at your opening report, Exhibit 499.

(Document displayed.)

A. Okay. And where am I going with that?

Q. If you'll look at the calculation for staging that appears

at 499.0044.

(Document displayed.)

Q. Do you see that?

A. I'm just trying to get there.

Q. Take your time, sir.

A. 44, you said, Counsel?

Q. I said 499.0044.

A. Yes, I'm there.

Q. This is in your report, correct?

A. Yes.

Q. This is an ESA spreadsheet, is it not?

A. Sure. I took ESA spreadsheets, and I decided what I

needed to change. I didn't want to replicate their

spreadsheet.

Q. So you attached to your report the ESA spreadsheet for

staging, correct?

A. Because I did not change anything. I did not want to

waste resources, and I accepted their assumptions. That's why

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 104 of 228
 561

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

it is there.

Q. You and Mr. Chinkin wrote opening reports on the same day,

correct?

A. Well, they were submitted on the same day, but I was,

obviously, developing the report in the days prior to

submittal.

Q. You and Mr. Chinkin submitted opening reports on the same

day, correct?

A. That's what I remember. Yes.

Q. And there was nothing said about threshold friction

velocity in your report, was there?

A. Because I did not change that assumption. I focused on

the -- where I had disagreed with ESA. Those were the factors

I focused on.

Q. And that's absolutely not true, is it?

A. Well -- 

Q. The last thing you said is absolutely not true. You said

it this morning and you said it again. And that's not true, is

it?

A. Well, you have to -- when I wrote my report, there were

important things that I reviewed, and there were several

assumptions that I disagreed with ESA and others I didn't.

Q. Would you look, please, at your opening report on

Page 00010, subparagraph (d).

Do you have that?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 105 of 228
 562

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

A. Which page was that? 00010?

Q. 0010.

A. Sure.

Q. That's (d) for "meteorological data," correct?

A. Yes.

Q. You accepted their meteorological data, did you not?

A. Because I cross-checked the ten years of data and verified

that what they had assumed was still true. But I went through

the process of verifying that.

Q. For coal, would you look, please, at 0011. For coal

storage emissions, one of the parameters is wind speed, and you

accepted their wind speed calculation, did you not?

A. After verifying that what they had done was as

appropriate, sure.

Q. And you called it out in your report, did you not?

A. Because I had done some research into verifying that.

That's what I --

Q. And would you look, please, at Page 0009, sub (a).

Do you see that?

A. I'll get there.

Sure.

Q. And there you accepted their rail trip lengths, did you

not?

A. Sure. For the same reason, because I looked at, to see if

this should be different, and then I decided that from a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 106 of 228
 563

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

geometry and other standpoint, I didn't want to change it.

Q. So there were three things that you agreed that you

commented on in your report, correct?

A. Each having gone through a verification process.

Q. You believe that nothing in AP-42 applies to

non-stationary piles, right?

A. Well, this section we're talking about, 13.2.5, yes. I

still believe that.

Q. Would you look, please, at your declaration, which is

Trial Exhibit 728.0004, paragraph 9.

(Document displayed.)

Q. Did you say under oath:

"As a fundamental matter, I stress that none of

the AP-42 calculation approaches is applicable to

non-stationary piles period."

Did you say that under oath?

A. I did.

Q. And you and ESA -- and you because you just took ESA's

spreadsheets -- you and ESA applied AP-42 for the calculations

you're presenting to the Court, correct?

A. And recognizing that with AP-42 --

Q. Could you please answer my question.

A. Well, I have to give you the context. But I used the

calculations only because -- you still have to apply judgment

when you use AP-42. That's all.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 107 of 228
 564

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

MR. FELDMAN: Your Honor, would you direct the

witness to answer the question?

THE COURT: You need to answer his questions

directly. And then if you need to supply an explanation, you

can do that. 

THE WITNESS: Well, would you repeat the question? I

will be happy to answer it exactly, please.

BY MR. FELDMAN 

Q. The question was: You and ESA used AP-42 in the

calculations you presented to His Honor.

A. I did.

Q. Thank you.

For long-term rail transport, you assumed 1.25 pounds per

car per mile, correct?

A. Yes.

Q. And you referred to all the literature that you read for

that, right?

A. Yes. That's part of my experience.

Q. In fact, sir, look at your report on page -- this is your

opening report, sir, 499.0010.

A. Okay.

Q. You cited one piece of -- if you can call it "literature."

Do you see that?

A. Yes. Are you referring to the footnote on that page?

Q. I beg your pardon?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 108 of 228
 565

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

A. The footnote on that page?

Q. Yes.

A. Sure.

Q. You cited something called "RETAC minutes," right?

A. Yes.

Q. And those RETAC minutes have in them -- excuse me.

And the RETAC minutes are Exhibit 991, are they not?

A. I mean, I don't remember the exact number --

Q. It's in front of you. I actually handed it to. That's

the one I asked for the Court's indulgence on.

A. Oh, sure.

Q. Do you got that?

A. Yes.

Q. That's Exhibit 991. 

A. Yes.

Q. Look at the second page, if my memory is correct.

A. I am there.

Q. And that's the calculation that's -- excuse me. That's

the data on which you based your 1.25-mile calculation,

correct?

A. For that footnote -- no. No. That data is not -- that

data would give you 1.5 miles.

Q. That's right. And then you reduced it?

A. I did reduce it.

Q. Just to cut it in half. Cut between the middle of what

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 109 of 228
 566

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

ESA found and what you found, right?

A. No, 28 years of engineering experience is what went into

that, not just cut in half.

THE COURT: Excuse me. Could you slow down, please.

A. I disagree with your characterization of "just cut it in

half."

BY MR. FELDMAN 

Q. Okay. That's what you base your calculation of 1.25 miles

on. It originally yielded 1.5 miles, and you reduced it to

1.25 miles, correct?

A. That was one of the data points.

Q. Is there any other cited there?

A. There is none cited because I don't cite everything in my

experience.

Q. Well, there are rules about that, and the Court will deal

with it.

Nothing in that report that you -- the RETAC report --

says that the rate of loss was constant, is there?

A. No. That was not the question that the gentleman at RETAC

was asked or was answering.

Q. Thank you.

That was Powder River Basin coal?

A. Sure.

Q. And what they were talking about was the loss of coal, not

emissions, correct?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 110 of 228
 567

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

A. They were talking about the coal loss from the top of the

rail cars. And you don't have loss from the top of the rail

cars unless they can be eroded and can disperse.

Q. But it wasn't about PM2.5 or PM10. It was total loss,

right?

A. It was visible loss, but the -- the PM2.5 was handled

through a speciation in that calculation later on.

Q. Would you -- would you agree with me that you have said

that the emission rates can vary during a trip like the one

from Utah to California, depending upon a whole number of

factors?

A. I have.

Q. Including wind?

A. Yes.

Q. Mechanical stresses?

A. Yes.

Q. Vibration stresses?

A. Yes.

Q. Individual coal lumps moving around?

A. Yes.

Q. Train speed?

A. Yes.

Q. And you used the constant rate?

A. I used that rate because it was conservative.

Q. Thank you.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 111 of 228
 568

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

Did you use a constant rate?

A. Yes.

Q. Would you agree with me that -- excuse me.

At Page 5-1 of the ESA report, there is a statement to the

following effect:

"This analysis would apply to any facility which

proposes such activities. ESA has analyzed the OBOT

facility as just one illustrative example of such a

facility."

Do you remember that?

A. Yes. I'm reading it here.

Q. You disagree with that statement, do you not?

A. No. The emissions part of it would be about the same,

where you put it, if the activities are the same. The impact

of the emissions in terms of concentration and harm, that would

depend on the context. But the emissions would be, if you have

the same type of activity, about the same.

MR. FELDMAN: May I see Page 170 of the deposition at

Line 3 through Line 13.

(Document displayed.)

BY MR. FELDMAN 

Q. (As read)

"QUESTION: Excuse me, the last two sentences of the

first paragraph on 5-1?

"ANSWER: I got it. I understand. It says..."

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 112 of 228
 569

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

And then it has the exact same language that I just read.

"QUESTION: Do you agree or disagree with the material

you've just read into the record?

"ANSWER: Disagree."

Was that your testimony?

A. Sure, because I was looking at it where the word

"analysis" is more than just emissions.

Q. Would you be surprised if your resume reflects that you've

testified 30 or 40 times in depositions and trials?

A. I didn't count them, but it's in the resume and you have

that. I didn't count them.

Q. That sounds right, doesn't it?

A. I just -- whatever is there. I'm not going to -- I don't

have a count.

Q. Well, do you have a count of the number of times you've

testified on behalf of someone who's accused of polluting,

right?

A. Would you say that again? I'm sorry.

Q. You have a count of the number of times you've testified

on behalf of someone who is accused of polluting, correct?

A. Well, I have had clients that were both industrial clients

and clients who have had permits and clients who are on the --

for the government. So I don't know which count you're talking

about.

Q. Have you ever testified on behalf of -- other than a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 113 of 228
 570

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

government agency or the Sierra Club or some other organization

that was claiming someone was polluting?

A. I have, sure.

Q. One time, right?

A. Well, it went to trial on that one time.

Q. One time?

A. I have had industrial clients for 27 years.

MR. FELDMAN: Would you direct the witness to answer

the question, your Honor?

THE COURT: I'm actually a little bit confused about

what the answer is. So why don't you ask the question again.

BY MR. FELDMAN 

Q. You've testified one time on behalf of someone accused of

polluting, correct?

A. I don't remember how many times I've testified on behalf

of, as you put it, someone accused of polluting.

Q. Do you have a recollection of any more than one?

A. I don't right now.

Q. Thank you.

MR. FELDMAN: May I have a moment, your Honor?

THE COURT: Sure.

MR. FELDMAN: Thank you, your Honor. Nothing

further.

THE COURT: Okay. Any redirect?

MR. AKER: No, your Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 114 of 228
 571

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SAHU - CROSS EXAMINATION / FELDMAN

THE COURT: Okay. Thank you very much.

(Witness excused.)

THE COURT: Next witness?

MR. AKER: Your Honor, we call Dr. Nadia Moore.

MR. MYRE: Your Honor, we have a brief issue with

another exhibit that was disclosed this morning. That's

Exhibit 1069. It's the Public Health Panel report.

In this case it does not appear in any of her four

different reports that have come out, and I asked her at

deposition about all of the reports that she reviewed, and she

confirmed that it was not one of them. So I would ask that she

be precluded from testifying about that report or any of its

contents.

MR. AKER: We don't intend to ask her about that

report, your Honor.

THE COURT: In that case, your motion is denied.

NADIA MOORE, 

called as a witness for the defendant herein, having been duly 

sworn, testified as follows: 

THE WITNESS: I do.

THE CLERK: Thank you. Please be seated.

And for the record, please state your first and last name

and spell both of them.

THE WITNESS: Hope Moore. H-O-P-E, M-O-O-R-E. I go

by Nadia, N-A-D-I-A, Moore.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 115 of 228
 572

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

THE CLERK: Thank you.

DIRECT EXAMINATION

BY MR. AKER 

Q. Good afternoon, Dr. Moore.

A. Good afternoon.

Q. Can you tell the Court what your current occupation is.

Please.

A. Sure. I'm currently a consulting toxicologist.

Q. And what is your educational background as a toxicologist?

A. I have a Ph.D. in environmental toxicology from the

University of Washington.

Q. Okay. And how long have you been in the toxicology field?

A. Twenty-five years.

Q. When did you start in toxicology?

A. Pardon?

Q. When did you start? Twenty-five years ago?

A. Yeah.

Q. And your current employment?

A. My current employer is Veritox, Inc.

Q. What does Veritox, Inc.?

A. They are a health consulting company.

Q. I would like you just to describe to the Court briefly

what a toxicologist does.

A. Sure. So a toxicologist evaluates adverse health effects

on different organisms including humans and how to ameliorate

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 116 of 228
 573

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

those effects.

Q. Okay. When you say "adverse health effects," what does

that mean?

A. So things that harm -- harm people or animals.

Q. And do you have a specialty within the field of

toxicology?

A. I've done a lot of inhalation toxicology work. In

toxicology you can look at different ways people are exposed.

So you might eat something or you might breathe something. So

I focus on what people breathe.

Q. Okay. I want to talk you to now about what we've been

calling "particulate matter" in this trial. Are you familiar

with that concept?

A. I am.

Q. And can you perhaps just briefly explain to the Court the

different types of particulate matter, to start out with.

A. Sure. So particulate matter is particles in the air, and

they can be made of a lot of different things. But they are

classified based on size. And so back when we first started

evaluating them, we looked at total suspended particulates, and

those are generally classified as larger in diameter. So I

think we talked about it earlier this morning. Particles are

classified by their diameter.

And so then as time went on, they speciated that into

different sizes of particles. So PM10 particles are particles

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 117 of 228
 574

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

that are around -- the mean particle size is 10 microns or

less. And PM2.5, then, is the smaller size, so 2.5 microns or

less.

Q. Can you give the Court some idea of how small 2.5 microns

is.

A. Sure. So kind of the width of a hair is about 60 microns.

And so if you think about it, it's five or six PM10, and each

PM10 molecule is four. So if you think about piling up a

molecule -- or a particle that's two and a half microns in

diameter, it would take about 40 of them to be about the same

width as a human hair.

Q. Okay.

A. Very small.

Q. Can you see it?

A. You cannot see a single particle without a microscope.

Q. Okay. And how does coal dust relate to this whole thing?

A. So coal dust has all sizes of particulates. So PM2.5,

PM10, total suspended particulates.

Q. But coal dust is just sort of a species of particulate

matter?

A. It contributes -- it contributes to particulate matter.

Q. Okay. And did you, as part of your work in this case,

read the ESA report?

A. I did.

Q. And did you come to an opinion on the ESA report's

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 118 of 228
 575

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

conclusions as to health impacts of particulate matter?

A. So the ESA report, there were conclusions, but their

overall sense was that PM2.5 can harm humans, right? No

threshold -- the mechanism. And so, yes, I agreed with that.

Q. Okay. And, if my recollection serves, the ESA report

talked about certain types of adverse health effects. 

Do you recall that?

A. Yes. Adverse health effects of PM2.5?

Q. Yes.

A. Yes.

Q. Can you talk about that a little bit, what types of

adverse health effects.

A. Sure. So the adverse health effects that are associated

with increased -- breathing increased concentrations of PM2.5

are early deaths. So mortality and specifically

cardiovascular-related diseases. So heart attacks, strokes,

respiratory diseases, such as emphysema, COPD, exacerbation of

asthma. And so not necessarily deaths, but hospital visits, ER

visits associated with those type of endpoints.

Q. Okay. And are some "subpopulations," I'll use the word,

more susceptible to particulate matter, PM2.5, than others?

A. They are.

Q. Tell us about that.

A. So it's -- people with preexisting heart and lung disease

are more susceptible. And so along those lines, the elderly

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 119 of 228
 576

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

are more susceptible because they have a susceptibility to

already have preexisting disease.

Children are more susceptible because children actually

breathe more air per body weight than an adult. So they

have -- and they spend more time outdoors as well. And they

also have a greater tendency to have asthma, so asthma attacks.

So those things make children more than susceptible.

There is also some literature that supports social

economic susceptibility.

Q. Tell us about that.

A. So people of low social economic status have less access

to health care. And so, again, that predisposes them to these

preexisting diseases that would be exacerbated by PM2.5

exposures.

Q. Are there statistics maintained as to the -- the degree to

which -- or the numbers of people that are affected by PM2.5?

A. Not specifically PM2.5.

Q. But what, the particulate matter?

A. So there are statistics based on, you know, what are the

asthma, the asthma attacks, the mortality rates and what --

what type of illness is associated with the mortality.

Q. Okay. Are you familiar with what we have been calling the

"NAAQS standards"?

A. I am.

Q. Can you tell us about that?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 120 of 228
 577

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. Sure. So the NAAQS are the National Ambient Air Quality

Standards. They are set by the U.S. EPA administrator as a

policy decision in order -- they are set at a concentration

that is neither more nor less stringent in order to protect the

population of the U.S.

Q. Okay. And what -- how do they develop those standards?

A. It's something we discussed at length with Dr. Maier two

days ago. So there is a lot of panels that get together and

put it together. And what they do is they review epidemiology

data. And the epidemiology is interesting. So epidemiology is

just the study of diseases among a population.

Okay. And so what they do is they look at groups of

people that are living in different areas, and they find out

all kinds of things about them and then they follow those

groups of people, hundreds of thousands of people over time,

and they look to see what the adverse health effects that they

suffered were. And they correlate that, then, to the

concentrations of the PM2.5 that -- where they lived. And what

they see, then, is areas of higher concentration have more

adverse health effects -- so heart attacks, strokes and

death -- than areas with lesser concentrations.

Q. Okay. And have the NAAQS standards over the years been

going up or going down? Can you talk about that.

A. Sure. So the NAAQS standards actually have been -- for

PM2.5 have come down. They were originally set at 15 in 1997,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 121 of 228
 578

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

and they came down to 12 in the latest ruling. And so the way

that they -- they do -- they do that is they look at

populations of exposure and effects to set them.

Q. Okay. And perhaps you could talk a little bit about how

those studies relate to the trends in ambient pollution.

A. Sure.

Q. Air quality.

A. So what the studies show? Is that what you're asking me?

Q. Yeah.

A. Okay. So the -- the epidemiology studies, what they show

is when you look at higher concentrations compared to lower

concentrations, there is a difference in disease. And so the

higher exposed have more than the lower exposed.

Now, what's interesting about air pollution research in

general, it really didn't start until we realized we had a very

large problem. And so actually it was the mid part of the 20th

century. There was a great London smog. It was very bad air

pollution, and they had 4,000 deaths that occurred over the

course of a week. And that really -- that opened the eyes of

the population that air pollution was very harmful. So harmful

that they killed -- that a lot of people died, and there was a

lot of hospital admissions during that time period.

And so after that time, really, the people started looking

at more exposed to lesser exposed concentrations, like I said,

right, and seeing that the more exposed had an effect. And

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 122 of 228
 579

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

then in this 1971, they set the first NAAQS, and the air

concentration started to come down. So the air pollution

levels came down.

And as a result of that, the "exposure continuum," is what

they call it, changes. And so as you set an air quality

standard at one level, the air quality actually gets better for

the entire population as -- as the state struggled to meet that

NAAQS standard.

And so -- so what happens is as they continue to look at

lesser and lesser exposed populations, they continue to see an

effect. And the U.S. EPA then actually says that, okay, well

we see an effect at every concentration we evaluate. And

that's -- we may have heard the term, there is no discernible

threshold for the effects of PM2.5.

Q. What does that mean?

A. So when we look at the studies, we -- when we compare a

more exposed to a lesser exposed, it doesn't matter what the

concentration is. We see more disease, more illness in the

higher exposed than the lower exposed groups.

Q. Is it -- so maybe you can describe the adverse health

effects of PM2.5 as levels increase -- as concentrations

increase.

A. Sorry. Say that one more time?

Q. Can you describe for us the -- the degree to which

increases in ambient PM2.5 levels affect human health.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 123 of 228
 580

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. Sure. So the -- so the increases are associated with,

like, a constant level of increased disease. So one of the

most studied is just increased mortality. So early deaths that

are associated with PM2.5. So as you increase levels, the

baseline mortality rate increases on average, depending on the

study, about 6 percent.

Q. Is there any level, based on your investigation, where,

let's say we're at concentration levels above the NAAQS

standard, where increases do not result in increased numbers of

deaths or disease, that kind of thing?

A. Say that -- say that one more time?

Q. Is there any level -- what I'm trying to get at is, you

said as these ambient concentrations increase, so do the

adverse health effects, correct?

A. Right.

Q. Is there any level above the NAAQS where that sort of

levels off, it doesn't start increasing?

A. I haven't seen literature that shows that.

Q. Okay. So the more you raise ambient concentration levels,

the more adverse health effects.

A. Right. Well, remember, we start out with the great London

smog in the middle of 19th century. We have deaths. And so it

went down from there.

Q. So the relationship between increased PM2.5 levels and

adverse health effects, is that something that can be -- is it

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 124 of 228
 581

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

proveable? Is it -- what's that based on?

A. So it's based on causation analysis. So -- so as a

toxicologist, there are many arms that factor into a causation

analysis. So one of them, kind of a fundamental tenet of

toxicology, is a dose response. As you increase the dose, you

see more of a response.

There is also biological plausibility. So we've done

molecular biology studies to show there is a mechanism that

mediates this. Does it make biological sense?

We also looked to see a temporality component. So the

exposure has to pre-date the disease, right? So we have

exposure, and then we have an outcome.

Q. Sure.

A. Trying to think. I lost my train of thought. But there's

a number of factors that go into that that prove causation.

Q. These adverse health effects you've been discussing, are

they based on scientific studies or what --

A. They are based on scientific studies. A weight of

evidence of the scientific studies that have been done.

Q. And what is the quality of these scientific studies in

your opinion?

A. The quality -- well, there's a lot of studies. So some of

them are high caliber and probably some of them are not. I

haven't gone through to weight of study on quality.

Q. Generally speaking, are they peer reviewed?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 125 of 228
 582

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. Yes.

Q. So I'm going to call it the "causal link" between

increased levels of PM2.5 and adverse health effects. Is that

a real cause and effect or is it just something they are

speculating about?

A. Well, I don't know. So the U.S. EPA has concluded there

is a causal link.

Q. Okay. And based on these studies?

A. On these studies.

Q. Let's talk for a little bit about -- actually, remind the

Court, what is the current NAAQS standards for PM2.5?

A. So it's 12 micrograms per cubic meter as an annual

average, averaged over three years, and 35 micrograms per cubic

meter for a 24-hour daily standard, the 98th percentile.

Q. Why the difference between 12 and 35? Why is the 35

higher?

A. The 35 is higher to allow for peaks to occur, but it's

important to realize that we can't live at 34 for very long,

right, because the -- overall, the average for the year has to

be 12 or less.

Q. Can you give the Court some idea of, you know, the -- this

concept of 12 micrograms per cubic meter. How much is that and

what do we breathe in?

A. Sure. So a microgram is 1 millionth of a gram, which is

hard to -- hard for me to comprehend. So -- so in looking for

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 126 of 228
 583

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

analogies, a grain of salt that comes -- you know, just out of

a salt shaker, ranges from 60 to 200, maybe, micrograms. But

so it's less than -- less than a grain of salt, okay, is the

mass for 12 micrograms.

And for a cubic meter, that's -- the volume is one meter

by one meter by one meter cubed. And that's kind of a hard

thing for me to visualize. So as an inhalation toxicologist, I

think of how much air would you have to breathe to breathe in a

cubic meter. And on average, the U.S. EPA population survey

says it's about an hour and a half of breathing.

So over the course of breathing for an hour and a half,

you would breathe the equivalent mass of less than a grain of

salt.

Q. And I assume that's -- since you're breathing, you're

doing it 24 hours a day, right?

A. That's right.

Q. Okay. And these long-term effects of PM2.5 -- breathing

PM2.5 -- is that on an annual average? How do they come up

with that?

A. So the long-term effects, correct, are on an annual

average numbers.

Q. Do they also measure short-term effects?

A. They do.

Q. What type of effects -- you talked about the adverse

health effects. What types of health effects might we expect

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 127 of 228
 584

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

to see based on the ESA's research for short-term effects?

A. So they are the same: Early deaths, cardiac events. So

heart attack, strokes, and exacerbation of respiratory disease.

Q. So people can die from this?

A. The studies link increased exposure with deaths.

Q. Okay. And you talked about some of the other adverse

health effects already, including increased hospitalizations,

things like that?

A. Correct.

Q. Again, this is a real causal link, according to the EPA?

A. Correct.

Q. So let's talk a little bit about concentration levels

below the NAAQS level -- let's take it at 12. Can you talk

about that.

A. So it's easier to kind of comprehend maybe what the EPA

did when they looked at the -- at the data. So when they did

their integrated science assessment, they looked at all of the

range of the data -- data that had been done. So all the

peer-reviewed studies.

Q. Let me stop you right there. Could you explain the

integrated science assessment.

A. Sure. Sure. So that was a process -- it's a document

that's generated by the U.S. EPA as part of their review of the

NAAQS. And so they integrate all the science that's been

generated since the last time they looked at the standard

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 128 of 228
 585

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

level.

Q. Okay. And I interrupted you, but if -- go ahead.

A. So I think I was talking about how they set the NAAQS

level at 12 --

Q. Right.

A. -- and then how they evaluate below that.

So what they did is they evaluated the entire data set,

and they found a few key studies that they thought were very

robust. And they looked -- and what they decided was they saw

effects all the way down the concentration curve to lowest

exposure levels. But the -- so the way -- and the way they --

but they had to set a NAAQS standard that was protective of the

human health. And so what they ended up doing is looking to

see how -- how confident were they in the effects that were

observed in the studies at those lower levels, right?

And so -- can I digress just a minute to talk about --

Q. Absolutely.

A. So, again, it's hard to talk about -- how are you

confident -- more confident in some data than others, right?

It's all published, and it's all in a study. So you think

about all the people in this room. Maybe there's 100 people in

this room. And we want to know what the true average age is of

everybody in this room.

So if we take 10 percent of the population, so if there's

100 people, we take 10 of them, and we get the average age and

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 129 of 228
 586

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

we have that number. How confident are we in that number

represents the average age of everybody in the room? Compared

to if we have half of the room and we take the average age,

we're more confident that that average age of more people

represents the true average.

So the -- the more population, the more confident we are

in the number.

And so that's what the -- essentially -- I mean, it's --

it's an analogy, but that's essentially what the U.S. EPA did

when they looked to set their NAAQS. So they looked at the

populations of exposure, and one of the key studies, the mean

average was 14 micrograms per cubic meter. So 50 percent of

the population was exposed to 14 micrograms per cubic meter or

higher.

What that meant is that 50 percent of the population was

also exposed to 14 or lower, right, lower than 14. And as we

get lesser and lesser concentrations, there's lesser and lesser

numbers of people that have been exposed. 

And so what the U.S. EPA says is, well, we see effects at

this level, but we're not that confident and we're going to say

at the 25th percentile is where we really lose confidence. We

see an effect, but we're not confident that that's a true

effect. That's when they set the NAAQS at 12.

Q. Do you -- concentration levels below the NAAQS, are they

free from adverse health effects?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 130 of 228
 587

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. So the epidemiology studies have shown that there are some

effects at those lower levels.

Q. Okay. And what has the EPA concluded?

A. The EPA concluded that there was no discernible threshold,

that they can see affects at those levels.

Q. I wonder if we can have Exhibit 466 up.

(Document displayed.)

MR. AKER: Mitch, if we can go to 0074.

(Document displayed.)

MR. AKER: And highlight the -- yeah, right there --

column -- next -- column to the left.

BY MR. AKER 

Q. Okay. You're familiar with the -- what's been called the

"final rule" issued by the EPA?

A. Yes.

Q. Can you tell the Court what that is.

A. That's the document that set the NAAQS levels and their

basis behind it.

Q. Okay. And in your report, you specifically quoted from

that. Do you recall that?

A. I do.

Q. And can you point the Court to the specific language you

were talking about.

A. I believe it's kind of in the middle. So the line that

starts with the word "2009a," the number.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 131 of 228
 588

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

Q. Okay. Going halfway down?

A. The sentence after that.

Q. Okay.

(Document highlighted.)

Q. Starts "to inform her"?

A. Yes.

Q. And to the end of the paragraph?

A. Sure. I don't know exactly.

Q. I wonder if you can read that.

A. Okay.

"To inform her," and her being the administrator

of the U.S. EPA, "decisions on an appropriate level

for the annual standard that will protect public

health with an adequate margin of safety, in the

absence of any discernible population-level

thresholds, the administrator judges that it is

appropriate to consider the relative degree of

confidence in the magnitude and significance of the

associations observed in epidemiology studies across

the range of long-term PM2.5."

And it goes on.

Q. And can you interpret that for us, translate that into

common English.

A. Sure. So this is what I was discussing earlier, where

they say there is no -- they haven't seen a threshold in these

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 132 of 228
 589

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

studies, but they have to set a level. And so they are going

to set the level based on the confidence they have in the

studies that show an effect.

Q. Is your interpretation of this, the NAAQS rule, the 12,

would you conclude from that that below 12 there are no adverse

health effects?

A. It would be hard to quantitate levels.

Q. But can you say that there are no adverse health effects

below 12?

A. I cannot say that there are no adverse health effects

below 12.

Q. Okay. And have there been some studies that have looked

at adverse health effects from concentrations below the NAAQS

standard?

A. Yes.

Q. Can you tell us about that.

A. Sure. So -- so as -- like I said, as the concentrations

have gotten lesser in the ambient air, there is now more

populations that have been exposed to levels that are below the

NAAQS standards. And there are studies that show that there

are adverse health effects at levels below those standards.

Q. Can you describe one for the Court?

A. Yeah. So there is actually a -- two studies by -- by

Dr. Di, D-I. And she -- and she looks at -- or he looks, I'm

not sure -- looked at the Medicare cohort. So they --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 133 of 228
 590

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

Q. What's a cohort?

A. Just a group of people. So it's everybody they could find

that was on Medicare from the years 2000 to 2012.

And they looked at deaths. And they looked at where those

people lived, and they compared death rates. And they found

that the death rates were higher in areas with higher average

concentrations than those in lesser. And they specifically

subgrouped those into populations that lived in concentrations

that were less than 12 micrograms per cubic meter.

Q. Again, this is concentrations less than the NAAQS

standard, correct?

A. Correct.

Q. Was there some -- I think I wrote down the term -- the

population exposure group that the EPA studied, was there a --

sort of -- what range of exposures was -- and I'm looking at,

for the bottom range, the bottom of the range.

A. So the lowest exposure I believe they considered was

5.8 micrograms per cubic meter.

Q. Why is that?

A. That was the lowest -- so when they evaluated these

people, that was the lowest concentration where people lived

that were in the study.

Q. Okay. I'm going to put a demonstrative up on the board

here.

(Demonstrative displayed) 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 134 of 228
 591

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

Q. Can you see that?

A. No.

Q. It will be on your screen too.

A. Okay. It's on the screen.

Q. Both ways.

(Document displayed.)

Q. So we put up your map of the OBOT terminal and kind of

surrounding areas. 

Do you see that?

A. I do.

Q. So as part of coming up with your expert opinions in this

case, did you look at the -- this surrounding community?

A. I did.

Q. What did you do to investigate?

A. Well, so the -- the ESA report had mentioned that there

was a CARE community, so that's a community --

Q. Air?

A. Yeah, Community Air R... Evaluation.

Q. Yes.

A. Sorry. I spaced on that, the "R."

So anyways, I researched into what the CARE actually was.

Q. What did you find?

A. So that was an initiative that was started by BAAQMD, or

Bay Area Ambient -- no.

Q. Air Quality Management District.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 135 of 228
 592

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. Pressure.

So it was started by BAAQMD in the early 2000s to identify

populations that were at risk for health effects of air

pollution.

Q. What -- what factors went in to determining whether they

were at risk?

A. So they evaluated communities for susceptible populations,

so elderly as well as -- not necessarily elderly -- aged as

well as young populations, populations of -- that had childhood

asthmatics. And then they also looked at emissions of

pollutants. And so they looked for areas that were high in

pollution as well as high in susceptible populations.

Q. And West Oakland met those criteria?

A. They did.

Q. And what are the goals of the CARE program?

A. So the goals of the CARE program were to identify these

at-risk communities. I'll call them "at-risk communities."

And then to focus their mitigation techniques on those

communities that were most affected. And then the final goal

was to engage communities and stakeholders to do more for their

communities than BAAQMD could do alone.

Q. More in what sense than BAAQMD can do?

A. It just said to go beyond what BAAQMD could do alone.

Q. Okay. And that's a BAAQMD program?

A. That's a BAAQMD program, right.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 136 of 228
 593

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

Q. This board I put up here also talks about Cal EPA

disadvantaged community, and it's showing that would be

cross-hatched up there. Are you familiar with that?

A. I have read about that.

Q. Can you tell us about that?

A. So that's a different program that identifies

disadvantaged in a slightly different way, but looks at

pollution levels and impacts from disease based on pollution.

Q. Okay. And West Oakland, I assume, meets both the CARE and

Cal EPA thing?

A. So I haven't actually looked at the Cal EPA. I'm taking

your word on it.

Q. Okay. But you're familiar with the CARE program?

A. I am familiar with CARE.

Q. Do you have an opinion as to -- did you look into where

ambient air concentrations stand in West Oakland?

A. I did.

Q. Tell the Court about that. What did you do to investigate

that?

A. So I looked -- the Bay Area -- the BAAQMD has

post-concentration levels for the Bay Area, as well as the U.S.

EPA has a database of concentrations that they record for their

monitors across the nation.

Q. Okay. And what did you -- and these are actual air

monitoring stations?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 137 of 228
 594

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. That's correct.

Q. That are set up around West Oakland or the entire United

States?

A. So BAAQMD's air monitors would be across the Bay Area,

across their district. And then they actually send their data

to the U.S. EPA. So the U.S. EPA database has every monitor in

the nation.

Q. Okay. And then do they maintain some kind of inventory of

those results, or that's -- can you get access to those

results?

A. Right. Yes, yes.

Q. And so the PM2.5 concentrations in West Oakland, did you

look into what those historically have been?

A. I did.

Q. And can you tell the Court what you found?

A. So the concentrations in West Oakland, they actually

installed their monitor in the end of 2012. So data began in

2013 for the first full years of measurements.

So for '13, I don't know the exact numbers off the top of

my head. But it was above 12 for the -- for 2013 and 2014.

And '15, they were below 12.

Q. How far below?

A. One to two micrograms per cubic meter.

Q. Okay.

A. I'd have to look at the numbers.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 138 of 228
 595

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

Q. And have you looked at concentrations in later years.

2016 and 2017?

MR. MYRE: Your Honor, we object. 2017 numbers

obviously weren't before the City Council.

Frankly, we object and move to strike a number of things

that Dr. Moore has testified so far that were not in the ESA

report, were not in anything else before the City Council, and

we can address that specifically in a post-trial briefing, but

I wanted to lodge that as well.

THE COURT: That's fine. You can go ahead and

testify about -- in response to that question.

BY MR. AKER 

Q. Okay. So when is the data available as to PM2.5

concentrations for a given year?

A. Sorry. Are you asking about specific concentration or?

Q. No. You -- how does the EPA or BAAQMD report these

concentrations?

A. So --

Q. I mean -- go ahead.

A. They report them in different mechanisms, I guess. BAAQMD

has a nice summary page where they give you the annual average

and what they call the "design value," which is the three-year

average which would compare it to the NAAQS directly.

Q. Okay. And so for a given year, let's say 2015, which you

talk about in your report, if you wanted to see the complete

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 139 of 228
 596

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

results for 2015, when would that be available?

A. In the middle of 2016.

Q. Okay. So at the time the City Council enacted this

ordinance in June of 2016, what were the latest year they would

have available to them of that data?

MR. MYRE: Objection. Foundation.

THE COURT: Overruled. You can argue about it, how

relevant it is later.

BY MR. AKER 

Q. Okay. What -- what would be the latest data they would

have had?

A. In 2016?

Q. Yeah.

A. It would have been 2015 data, the previous.

Q. Okay. And if we could --

MR. AKER: Mitch, if you could put up Trial

Exhibit 456?

(Document displayed.)

MR. AKER: Your Honor, this is a page from her expert

witness report, but I'm showing it not to introduce it into

evidence but just for illustrative purposes of the testimony

she was talking about. It's a table I'm going to refer to.

MR. MYRE: I don't know what he means, to present it

for "illustrative purposes."

If he's saying it's going to be a demonstrative that he is

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 140 of 228
 597

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

going to put up, we won't have an objection. But, of course,

we object to the introduction of this report as hearsay.

THE COURT: You're using a page from her report as a

demonstrative?

MR. AKER: Yes, just to illustrate. If we could go

to Page 0028.

(Document displayed.)

MR. AKER: And, Mitch, if you could just blow up that

table there.

(Document enlarged.)

BY MR. AKER 

Q. Okay. Do you recognize this?

A. I do.

Q. All right. Could you tell the Court what this is.

A. So these are just the average concentrations that were

recorded for West Oakland for the years 2013, '14 and '15.

Q. Okay.

MR. MYRE: Your Honor, I would renew the objection

that he is now offering this for the actual numbers. She said

she didn't know. It's not a demonstrative.

MR. AKER: She already testified as to the numbers,

your Honor. And this just puts specific numbers on the --

MR. MYRE: She just tried to confirm what it was.

THE COURT: I will allow it.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 141 of 228
 598

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

BY MR. AKER 

Q. Okay. So this is the results of your investigation as to

ambient air concentrations of PM2.5 for these years?

A. That's correct.

Q. Okay. And for 2013, the 12.8 was over the NAAQS level,

correct?

A. It was over --

Q. 12.8.

A. It was over 12.

Q. Yeah. And for the other two years, it was -- it was

under?

A. It was under 12.

Q. Are you familiar with other, you know, standards for PM2.5

emissions that are -- have been promulgated by other groups

besides the U.S. EPA?

A. Did you mean emissions?

Q. Emissions. I'm talking about the --

A. They are concentrations.

Q. -- the World Health Organization. Are you familiar with

that?

A. Right. So emissions is usually a tons per year.

Q. Okay. I may not be using the correct terminology.

A. But for concentration levels for ambient air, yes, the

World Health Organization.

Q. And what is that?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 142 of 228
 599

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

A. 10.

Q. 10. Okay.

So for at least two of these three years, it's over the

WHO standard, correct?

A. That's correct. Over 10.

Q. And so is it reasonable to assume -- well, let me ask you.

What would being the impact, then, of a -- an increase in PM2.5

emissions from a new facility such as the OBOT facility?

MR. MYRE: Objection to "emissions."

A. Say that one more time.

BY MR. AKER 

Q. What would be the impact of introducing a new source of

PM2.5 into Oakland?

A. You would increase the amount of PM2.5 in the air.

Q. And is there a potential for going over the 12?

MR. MYRE: Objection. Speculation. Foundation.

THE COURT: Overruled.

BY MR. AKER 

Q. Go ahead.

A. So is there possibility that it can go over 12?

Q. Yeah.

A. Sure.

Q. Has the U.S. EPA tried to sort of qualitatively

characterize the health effects from PM2.5 above the NAAQS

level, above 12? Is there anything in the final rule that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 143 of 228
 600

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - DIRECT EXAMINATION / AKER

discusses the degree of adverse effects? Is it minor or

significant or -- how did the U.S. EPA characterize it?

MR. MYRE: Objection. There was no opinion offered

on minor or significant.

A. Well, the --

THE COURT: Hold on a second.

Overruled. Why don't you ask the question again.

MR. AKER: Sure.

BY MR. AKER 

Q. Did the -- in passing this final rule, did the U.S. EPA

characterize the sort of magnitude of adverse health effects

from increases above 12? Did they say it was trivial or

what --

MR. MYRE: Objection.

THE COURT: Overruled.

BY MR. AKER 

Q. Go ahead.

A. Can I answer it?

THE COURT: Yes.

A. So they did characterize the particulate air pollution was

a substantial human health risk.

BY MR. AKER 

Q. Was that their exact words?

A. Something close to that.

Q. Okay.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 144 of 228
 601

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - CROSS EXAMINATION / MYRE

A. I can look it up in the final rule.

MR. AKER: Thank you, your Honor.

THE COURT: Okay. Any cross?

CROSS EXAMINATION

BY MR. MYRE 

Q. Dr. Moore, as a toxicologist, you would agree with me that

consideration of air concentrations would be required for a

risk assessment for PM2.5, correct?

A. Yes. You would need to know the dose.

Q. And you're not aware of a single report that was submitted

to the City of Oakland in 2015 or 2016 that contained any

estimate of PM2.5 ambient air concentrations that could be

caused by the OBOT facility, correct?

A. As I sit here today or as I wrote my reports?

Q. As you wrote the reports that you provided the opinions in

this case.

A. No.

Q. No, I am correct there were none, correct? Well, strike

that. I'll ask it one more time.

When you provided your expert opinions in this case, you

were not aware of a single report that was submitted to the

City of Oakland in 2015 or 2016 that contained any estimate of

PM2.5 ambient air concentrations that could be caused by the

OBOT facility, correct?

A. That is correct.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 145 of 228
 602

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - CROSS EXAMINATION / MYRE

Q. You discussed PM2.5, but you were not -- or I'm sorry --

strike that.

You discussed PM10 during your testimony, but you are not

offering any opinions about the potential health impacts caused

by PM2.5 -- or PM10, correct?

A. I am not offering any opinions on PM10.

Q. Thank you.

You testified about the ESA report, but you don't have an

opinion about the accuracy of any of the conclusions or

information in that report, correct?

A. Beyond the toxicology that they...

MR. MYRE: Please bring up Page 182, Line 5 through

14. This is from your deposition testimony in this case.

(Document displayed.)

BY MR. MYRE 

Q. Was this the testimony you provided:

"QUESTION: Are you just stating things that ESA

concluded in their report or are you offering some

sort of opinion on the accuracy, adequacy,

completeness, anything else related to the report

itself?

"ANSWER: No. These were just statements that were

made by ESA in their report.

"QUESTION: And you don't have a view one way or the

other whether or not those were accurate?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 146 of 228
 603

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - CROSS EXAMINATION / MYRE

"ANSWER: That's correct."

Was that your testimony?

A. That was, but I think we were talking about a specific

section of my report.

Q. Federal law instructs the EPA to set the NAAQS at a

standard which, if attained and maintained, provides an

adequate margin of safety requisite to protect the public

health, correct?

A. That's correct.

Q. In setting the NAAQS for PM2.5, it's your opinion that ESA

performed a comprehensive and reliable scientific risk

assessment, correct?

A. No.

Q. No, that's not --

A. I think you said ESA.

Q. Oh, thank you.

In setting the NAAQS for PM2.5, in your opinion, EPA

performed a comprehensive and reliable scientific risk

assessment, correct?

A. I do.

Q. You testified that exposure to PM2.5 could cause certain

potential adverse health effects, but isn't it a fact that

these specific potential adverse health effects were considered

by EPA in setting the NAAQS?

A. They were.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 147 of 228
 604

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - CROSS EXAMINATION / MYRE

Q. You testified that because of its demographics, the

population of West Oakland is more vulnerable or sensitive,

but, again, the protection of what you've described as the

vulnerable population was accounted for in setting the NAAQS,

correct?

A. That is correct.

Q. You testified about past mitigation efforts that Oakland

has taken to reduce air pollution, but this information does

not inform the question of whether the transport of coal poses

an increased risk of health effects to the citizens of West

Oakland, correct?

A. Okay. That was long.

Q. Would you like me to ask the question again?

A. The first part of it. Sorry.

Q. You testified about past efforts Oakland has taken to

mitigate air pollution.

A. Correct.

Q. But this does not inform the question of whether the

transport of coal through an OBOT facility poses an increased

risk of health effects, correct?

A. That is correct.

Q. You testified that no threshold had been identified for

PM2.5, but you agree with me that there is some threshold

concentration for all particles, including PM2.5, correct?

A. That's correct. The threshold just hasn't been identified

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 148 of 228
 605

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - CROSS EXAMINATION / MYRE

yet.

Q. And what is known as a non-threshold approach can be used

to evaluate health risks when no defined threshold has been

identified, correct?

A. I --

Q. What is known as a non-threshold approach in your field

can be used to evaluate potential health risks for chemicals

where there is no defined threshold?

A. That is correct.

Q. And, in fact, it is your opinion that this approach used

by EPA to determine the NAAQS was the best approach that there

is available for analyzing PM2.5, correct?

A. Well, I think it was a through approach.

Q. Do you think it was the best approach that there is

available in your scientific field to perform that analysis?

A. Yeah, I would agree with that.

Q. EPA specifically considered concentrations as low as

10 micrograms per cubic meter, like the World Health

Organization standard that you testified about, when it set the

NAAQS, correct?

A. That is correct.

Q. If EPA lowered its standard in the future, isn't it a fact

that people across the United States would then be held to that

lowered standard?

A. Yes.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 149 of 228
 606

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MOORE - REDIRECT EXAMINATION / AKER

MR. MYRE: Thank you.

REDIRECT EXAMINATION

BY MR. AKER 

Q. As part of your work on this project, you were asked to

review the ESA report, correct?

A. That is correct.

Q. And you were asked to offer opinions on certain areas that

were discussed in the ESA report?

A. Say that one more time.

Q. You were asked to provide opinions as to the accuracy or

whatever, some of the conclusions ESA reached in their report,

correct?

A. Right. So I was -- I guess I was asked to do an

independent review and then evaluate on my review against

theirs, so I would phrase it a little bit differently.

Q. And we talked about the adverse health effects that the

ESA report discussed, correct?

A. Correct.

Q. And did you agree with the conclusions in the ESA report

as to the link between increased PM2.5 standards and adverse

health effects?

A. I agree with the link between -- between -- increased

PM2.5 concentrations and adverse health effects.

Q. You agree --

A. Yes, I do agree.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 150 of 228
 607

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

Q. You agreed with the ESA report?

A. Yes.

MR. AKER: Thank you, your Honor.

THE COURT: All right. You may step down. Thank

you.

(Witness excused.)

THE COURT: Okay. So what's the plan from here on

out? What's Oakland got?

MR. SIEGEL: So we have Dr. Zoe Chafe next. 

THE COURT: Okay. 

MR. SIEGEL: And that's about probably 12 to 15

minutes of testimony. That will be brief.

And then we have, I believe, Dr. Carlos Fernandez-Pello,

and then Mr. Sullivan is next.

Do you want time estimates for any of these, or just the

list?

THE COURT: No, I was kind of curious who was left.

MR. SIEGEL: Yes. And then is it --

MR. AKER: The video.

MR. SIEGEL: -- the video of Mr. Wolff.

THE COURT: I mean, I'm -- here is what I propose we

do. Why don't we take a ten-minute break, and then I'm

comfortable going to 4:00 o'clock. So if that means the

addition of a little bit of time to each of your clocks, that's

fine. We can go until 4:00 o'clock today. Okay? I think that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 151 of 228
 608

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

would amount to an addition of some time to each of your

clocks.

So why don't we resume at 2:30. Okay?

(Whereupon there was a recess in the proceedings

 from 2:18 p.m. until 2:30 p.m.)

THE COURT: All right. Shall we proceed?

MR. SIEGEL: Yes, your Honor. Defendants call

Dr. Zoe Chafe.

ZOE CHAFE, 

called as a witness for the defendant herein, having been duly 

sworn, testified as follows: 

THE WITNESS: I do.

THE CLERK: Thank you. Please be seated. 

And for the record, please state your first and last name

and spell both of them.

THE WITNESS: Zoe Chafe. Z-O-E C-H-A-F-E.

DIRECT EXAMINATION

BY MR. SIEGEL 

Q. Good afternoon, Dr. Chafe. Could you just briefly

describe your educational experience?

A. Sure. So I hold a BA in Human Biology from Stanford

University, and a Master's in Science in Energy and Resources

from UC Berkeley. A Master's in Public Health from

UC Berkeley, and a Ph.D. in Energy and Resources from

UC Berkeley.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 152 of 228
 609

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

Q. So you have written a dissertation. Could you briefly

explain what that is?

A. Sure. My dissertation focused on the public health

effects of exposure to PM2.5, especially ambient air pollution

coming from household burning of coal and wood and other solid

fuels.

Q. And what would you describe as your profession?

A. I'm a public health professional also working in

environmental studies and sciences.

Q. In what fields?

A. Interdisciplinary. So my training is epidemiology within

public health mostly and environmental health sciences.

Q. And what are you currently doing professionally?

A. I'm a post-doctoral research associate at Cornell

University.

Q. And working on what kind of projects?

A. I still work on the same issues that I worked on for my

dissertation. They've changed a bit, but still focusing on the

health effects of exposure to ambient PM2.5, and, in

particular, air pollution.

Q. And if I could call up, please, Exhibit 961. And you'll

have in your binder here a set of exhibits, and then they will

be displayed on the screen.

(Document displayed.)

Q. Do you recognize this Exhibit 961, particularly if you

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 153 of 228
 610

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

turn to Page 3 of the exhibit?

A. I do.

Q. And what is it?

A. This is a report that I prepared for the City of Oakland

in my capacity as an employee with the City, and it's prefaced

by a memo by Council member Dan Kalb.

Q. And what -- you'll see that at the bottom of the page

there is a page reference that is different than what your

report says. That's what I will be referring to when I go

through the pages.

How did you access -- what did you do to prepare this

report?

A. To prepare this report, I reviewed the very large body of

evidence that was submitted to the City and became part of the

City record related to the Army base project. It was a

combination of online records that are available through the

City website as well as some paper records that I was given

during my employment with the City.

Q. And did you do anything else to prepare the report besides

look at the City's records?

A. I did, yeah. So in the case where I had questions or

needed additional information, I supplemented what I was given

through the City's record with additional outside research.

Q. If I could call your attention to, please, Page 114 of

this exhibit.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 154 of 228
 611

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

(Document displayed.)

A. Okay.

Q. So in the middle of the page, there you'll see a heading.

It should say "References to the Record" -- "References to the

Public Record."

If you just flip a couple pages, are these the records

that you referenced from the City's record?

A. That's correct. It's not an exhaustive list of what I

reviewed, obviously, but it is a list of records that were on

the public record that are referenced in this report.

Q. All right. And if I could just have you flip back to

Page 103, please, of the exhibit. And tell us briefly what

that is, heading at the top of the page?

A. This is a second section within the general "Works Cited"

or "References" section. And this is the list of outside work

beyond the City's record that I included in this report.

And, again, it's not an exhaustive list of everything that

I analyzed or summarized, but it's what's footnoted here in

this report.

Q. And approximately how many pages of work cited do you have

here?

A. I believe it's 13.

Q. And then did you actually read all of these works cited?

A. Yes, I did.

Q. All right. Let's just briefly discuss -- we had a lot of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 155 of 228
 612

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

testimony already from Dr. Moore, and I don't want to repeat

everything here that's from there, but if we could turn just to

Page 24, please, exhibit Page 24.

(Document displayed.)

Q. What is this bullet-pointed list at the top of the page at

Exhibit 24?

A. This is a fairly simplified list that lists some of the

major effects of human exposure to PM2.5, fine particulate

matter. Focused on a couple major categories, such as

respiratory and cardiovascular illness, asthma and also adverse

birth outcomes.

Q. If I could draw your attention to footnote 54, and the

point of that.

A. This footnote details a bit more about some of the adverse

birth outcomes. So this includes premature delivery, low birth

weight. And those are both things that would continue to

affect a child that -- over the course of its life, as well as

what's called early fetal loss or spontaneous abortion or

miscarriage.

Q. And I notice there is a lot of footnotes here. Is that

consistent throughout the report that you made references to

the works upon which you relied?

A. I did, yes. I would say actually it's probably a

simplified list because I couldn't include everything that I

reviewed. But I did attempt to include footnotes wherever

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 156 of 228
 613

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

possible.

Q. And if you could flip back, please, just to Page 22 of the

exhibit, top paragraph.

(Document displayed.)

Q. What's the principal point, really, here of the top

paragraph of Page 22?

A. Well, there are two categories of exposure to PM2.5, fine

particulate matter that we talk in the scientific literature.

One would be the short term, so hours to days exposure. And

the other would be long term, and that's usually expressed in

months to years. So this is if you have higher levels of air

pollution or some exposure to air pollution, those are kind of

two main categories that studies are usually based on.

Q. And if you could turn to Page 26 of the exhibit, please.

(Document displayed.)

Q. We heard a lot of testimony about this just a few moments

ago, but -- so we're going to be brief here. But what is it

about particulate matter 2.5 that causes health and safety --

health harms?

A. So PM2.5, as the previous witness mentioned, is something

that's a bit difficult to wrap our heads around. It's

invisible to the naked eye. It's very small. I'd like to

underscore the point that the largest possible size of a

particle in this category would be 2.5 micrometers in diameter,

but it goes way down below that to very, very small particles.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 157 of 228
 614

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

What happens is that those small particles are able to

penetrate very deep within our bodies. So within our lungs,

even crossing the blood-brain barrier in some cases. And it

causes an inflammatory reaction across the body systems.

Q. If I could turn to your attention, please, to Page 41 of

this exhibit, near the bottom of the page, not the page itself,

but the page above the footnote sections.

(Document displayed.)

Q. And I'll ask you in a moment to flip over to the next

page, 42, but can you tell us whether your report addressed the

particular concerns regarding the neighborhood in which the

proposed coke and coal terminal is to be sited.

A. I did address this. Unfortunately, West Oakland and the

surrounding areas are subject to many existing stressors.

There is environmental pollution that exists already. Many

people in the population are of what you call "low

socioeconomic status." Many have underlying health burdens or

diseases that are the result of years of cumulative stress or

exposure to those environmental toxins that are already in the

environment. And, of course, there are people who are very

young and very old living in that area, too.

Q. All right. Thank you.

And then just briefly to Page 47 of the report. Not of

the report but of the exhibit, I should say.

And the -- the last paragraph above the footnotes here, if

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 158 of 228
 615

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

you could just briefly address what this paragraph is about.

A. This is a paragraph that details some of the designations

that have been given to the neighborhoods around the area where

the proposed project would be. And here it lists, for example,

the California EPA has rated West Oakland as including some of

the highest census tracts in the state that are burdened by

pollution already. There are various ways of quantifying this,

the EnviroScreen tool, for example, is one. And as I mentioned

before, there is very significant sources of existing

environmental pollution there.

Q. All right. Thank you.

So now let's turn, please, back to Page 19 -- I'm sorry --

Page 21 of the exhibit.

The first sentence below Section 3.2. Are you there?

A. Yes.

Q. And that says -- if you could just read that first

sentence, please.

A. Sure. 

"There is no safe level of exposure to fine coal

dust particles (PM2.5)."

Q. And we just heard testimony about that from Dr. Moore.

And you made a statement about that. Do you still stand by

that statement?

A. I definitely stand by that statement.

Q. And do you have -- what can you say about the basis for

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 159 of 228
 616

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

the statement that there is no safe threshold?

A. There have been countless studies of ambient air pollution

and the effects of its exposure to the human body. And at this

point there is no evidence of a threshold of safe level of

exposure to ambient air pollution in the form of PM2.5.

I can't emphasize enough how well this has been studied

and continues to be studied in the form of new cohorts of study

subjects, and no evidence has been found of a threshold.

Q. But what about the -- you're familiar, I'm sure, with the

NAAQS, is that correct?

A. Yes, I am.

Q. And why does not the National Ambient Air Quality

Standard's threshold provide a -- I shouldn't call them a

"threshold." Why don't those standards provide a threshold

that provides safe levels?

A. Well, the -- the standards are set at a certain level

given scientific evidence, as we previously heard. And that is

done to -- to choose a level of risks at which that policy

decision is made, taking into account the many different types

of populations throughout our country.

I would, again, emphasize that it does not mean that there

is no level of harm below that standard that was set.

Q. So does it -- does this have anything to do with averages

that you could explain, versus individuals?

A. Sure. So epidemiology, which has been mentioned before,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 160 of 228
 617

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

is the population-wide study of the effects of pollutants on

groups of people, in this case. And so it's looking for trends

across time, across exposures, across people with very

different experiences in life and health burdens.

The actual exposure to an individual is going to be much

more informative about what that individual will experience.

So somebody who already has existing health problems will be

much more likely to experience some sort of adverse effect as a

result of exposure to PM2.5.

Q. All right. Thank you.

And then, just briefly, let's go to Page 73 of the

exhibit, an entirely different topic.

So Page 73 of the exhibit, there is a footnote 254 that

refers to a Jaffe study.

Did you find that?

A. Yes.

Q. So you'll see here that there is a comment about CCIG

noted.

Do you see that sentence?

A. I do see that.

Q. So have you had a chance to take a look at the issue here

in footnote 254 and determine whether CCIG's comments or their

critique was well taken?

A. Yes. This refers to the Professor Jaffe studies in 2015

in Washington State. I obviously reviewed this during the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 161 of 228
 618

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

course of preparing my report, and I've re-familiarized myself

with it recently.

I spoke to Professor Jaffe during the course of any

research and --

MR. SWEDLOW: Your Honor, I would object, only

because this witness isn't an expert witness. She's just

testifying about the report that was submitted for the City

Council. So the fact that she talked to somebody outside of

the report context isn't relevant.

THE COURT: Well, the fact that she talked to him is

okay. I mean, I suppose that whatever he said to her is

probably hearsay. But the fact that she talked to him is

probably okay, right.

MR. SWEDLOW: My objection is slightly different.

Whatever this person said to her was not before City Council,

and she's not an expert in this case. She's only testifying

about her report as part of the record.

THE COURT: I understand. Okay. Objection is

overruled.

BY MR. SIEGEL 

Q. Just if you could continue, if you recall where you were.

A. Sure. So there were a few concerns raised about the

study. One was that the measurement instruments used to

understand the ambient air pollution, the PM2.5 and other air

pollutants coming from these trains was not properly

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 162 of 228
 619

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

calibrated.

In fact, in this study the authors very carefully detail

the way that they have calibrated the equipment. The type of

equipment they use needs to be calibrated in many different

circumstances, and they use something called a "federally

equivalent method," which is approved by the EPA to do that

calibration. And they report the findings and their

calibration in the body of the study itself.

Another one is that I believe there was -- there was some

interest in knowing what fraction of the PM2.5 observed was

coming from diesel emissions versus coal dust. And this is

also very well detailed in the study, and they use two

different methods to try and discern that, that fraction. One

is by comparing what's called "black carbon," which is

something that's considered a marker for soot, from diesel

emissions to PM2.5. And that fraction changes whether it's --

what they call a freight train versus a coal train. So they

were actually able to find more dust originally from coal

trains than from other freight trains.

MR. SIEGEL: Okay. Thank you.

THE WITNESS: You're welcome.

THE COURT: That's it?

Could I follow up with a couple of questions? One part of

your report that Mr. Siegel didn't ask you about that I -- I'm

perhaps most focused on is Section 4.2, "Health Effects of Coal

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 163 of 228
 620

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

on Adjacent Communities." And in particular I'm looking at

Trial Exhibit Page -- the page number is down at the way

bottom -- 45.

THE WITNESS: Okay.

THE COURT: And what you've testified about so far is

for the most part sort of generally the effects of PM2.5 on

people. And here is where you talk about the possible effect

of PM2.5 emissions on people in West Oakland from the project.

And I'll read a couple of statements from this page,

Page 43 -- sorry, Page 45 of the Trial Exhibit.

"There is a high likelihood that adjacent

communities will experience very high peaks of PM2.5

in their neighborhoods at concentrations that could

cause adverse health effects."

And then down towards the bottom of that page:

"Previous studies done in other parts of the U.S.

found that people who live near coal facilities but do

not themselves work in mines and other coal-handling

facilities, may increase higher mortality rates

related to heart, respiratory and kidney problems."

Can you describe to me the basis you had for drawing those

conclusions. I know they are somewhat equivocal and you use

words like "could" and "may," but I was just curious if you

could describe in a little more detail the basis for your --

the conclusions reflected in those two statements.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 164 of 228
 621

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

THE WITNESS: Sure. So I'll take the first one

first, which is the piece of PM2.5 and the neighborhoods. So

this is based on the few studies that have been done that look

at potential effects of coal dust coming off of trains, and

understanding that those trains would be passing very close by

to residential neighborhoods.

Not only residential neighborhoods, but also recreational

areas, such as the paths that run along the Bay Bridge and will

be used more and more in the future by people that are included

in susceptible populations. So this is somewhat of an

extrapolation because we don't have any data yet on what would

happen if a train went through there, noting that those

populations that are closest to the train tracks are often some

of the most vulnerable.

The second part that you pointed out, which was

footnote 150 on Trial Document 46, Page 46, is an interesting

set of studies from West Virginia where there is coal dust in

the area. And so the researchers went through and tried to

understand what the more generalized effects were on the

population, not necessarily of people who were themselves

actively working in an area with coal dust, but those in the

area around. And they did find health effects there.

THE COURT: Okay. But you said they found health

effects there. But your report says that: 

"Previous studies done in other parts of the U.S.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 165 of 228
 622

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - DIRECT EXAMINATION / SIEGEL

found that people who live near coal facilities but do

not themselves work in mines or in other coal-handling

facilities may experience higher mortality rates."

Can you tell me a little bit more about why you have used

the word "may"?

A. I think it's based on the fact that there haven't been

very many studies done in this area. It's actually been

difficult to find equivalent cases that have been thoroughly

studied in ways that I would think are acceptable from a public

health research perspective.

So I think this is indicative. There is nothing else to

show that there are no effects in those communities. The

studies that have been done are showing health effects.

THE COURT: And then bouncing back to the first

sentence that I read, which is: 

"There is a high likelihood that adjacent

communities will experience very high peaks of PM2.5

in their neighborhoods, at concentrations that could

cause adverse health effects."

Could you explain why you chose to use the word "could" in

that sensor.

A. Yeah. It's a good question. I think it's probably

because, again, of the lack of particular data that we have for

this. At the time that I reviewed many of these documents, it

was a little bit unclear exactly how many coal trains would be

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 166 of 228
 623

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

coming through and what, if any, methods would be used to

suppress coal dust that might be coming off of them.

So, you know, I stand by the statement that there is a

high likelihood, I think, given the range of estimates of the

amount of coal that could be shipped through there and the type

of trains that be would used, that they could experience very

high peaks of PM2.5.

If those high peaks were experienced, then we would expect

to see health effects from them. It's more about the

underlying data rather than the relationship between those

peaks of PM2.5 and the health effects that would follow.

THE COURT: Okay. That's fair enough. Thank you.

Go ahead.

CROSS EXAMINATION

BY MR. SWEDLOW 

Q. Good afternoon, Dr. Chafe.

A. Good afternoon.

Q. If we could look quickly at Exhibit 108, the second page,

under the part that says "Timing and Deliverables."

Is it your understanding that your -- the goal of your

report was to support the application of public health or

safety regulations pursuant to Section 3.4.2 of the Development

Agreement?

A. As written here, yes. You will notice at the beginning of

the sentence, it says "If applicable." So this was the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 167 of 228
 624

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

guidance I was given at the beginning of the project.

Q. With respect to the work that you did in the report that

you submitted, you didn't do any air quality modeling to

determine the concentrations or relative concentrations of

PM2.5 from the anticipated OBOT facility, did you?

A. No, I myself did not.

Q. You didn't do any air quality modeling for concentrations

of PM10 or any other potential contaminant from the anticipated

OBOT facility, did you?

A. No.

Q. Your report doesn't contain a risk assessment for any of

the health or safety risks that you identified associated with

a potential coal facility at the OBOT terminal, does it?

A. Not in the formal sense of a risk assessment, no.

Q. You didn't compare the anticipated emissions either by

quantity or concentration of coal and any other bulk commodity

that may be transported at this facility, is that correct?

A. Could you repeat the first part of your question?

Q. You didn't do any quantitative comparison by quantity or

concentration for the emissions from a bulk material that

wouldn't be coal and would be coal at this facility?

A. No, not myself. I don't believe there was sufficient

information given to do that.

Q. You didn't compare the anticipated concentrations of PM2.5

to the CEQA threshold, did you?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 168 of 228
 625

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

A. No.

Q. You didn't compare the anticipated concentrations or

emissions to the BAAQMD limits, did you?

A. No. I attempted to gain information from BAAQMD but

wasn't successful.

Q. You didn't compare the concentrations or quantities of

emissions to the EPA New Source significant levels, did you?

A. No.

MR. SWEDLOW: With respect to the permit requirements

for the facility, could we put up T-604 on the first page?

(Document displayed.)

MR. SWEDLOW: I guess it would be the second page.

(Document displayed.)

MR. SWEDLOW: 

Q. These are the "Standard Conditions of Approval and

Mitigation Monitoring and Reporting Program" for the OBOT

facility.

Have you seen this before?

A. I believe that I scanned this at the early part of my

research, but I can't be 100 percent sure.

Q. For purposes of the risks that you identified associated

with a coal facility, did you consider the permit requirements

on Page 604.6 relating to rail emissions?

A. Is that the second box on the page?

Q. The second one. It says: 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 169 of 228
 626

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

"The ground lessee of the West Gateway and the

railroad right-of-way shall develop for City review

and approval a criteria pollutant reduction program

aimed at reducing or offsetting emissions from its

rail-related and maritime-related operations."

Did you consider any limitations on emissions that might

be placed on the rail activities through the City approval

process for this project?

A. On the rail? This was not a specific focus of my report.

Q. If we can go to Page 28 of this document.

(Document displayed.)

Q. There is a section on Page 28 referring to greenhouse gas

permit requirements. Here it says:

"The project applicant shall return a qualified

air quality consultant to develop a greenhouse gas

reduction plan for City review and approval."

Did you consider, as part of your opinion, that the City

could either approve or disapprove of the greenhouse gas

reduction program submitted by the applicant as part of your

risk identification?

A. I believe -- did you say "return" or "retain"? Because

the copy I have here says "retain."

Q. Does that change your answer at all?

A. No, I haven't thought through my answer. I was just

trying to follow you.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 170 of 228
 627

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

So what's the question?

Q. Did you consider the fact that the City had to approve the

applicant after submitting a greenhouse gas reduction program

when you were identifying the risks associated with a coal

facility?

A. No. This was not a major part of my report.

Q. Did you consider any of the permit restrictions and

requirements that existed with respect to this facility when

you were identifying potential risks that could exist at the

facility?

A. I -- I reviewed these in passing, but they were not a

major part of the work that I did.

Q. If we could you go to Page 49, with respect to fire

safety.

(Document displayed.)

Q. Did your report consider the fact that there were fire

safety approvals required before issuing permits for this

facility?

A. This, I do remember reviewing. So, yes, I did consider

it.

Q. Excuse me. You said you did or did not?

A. I did, yes.

Q. To what extent did you consider the fact that the project

applicant had to submit a fire safety plan to the planning and

zoning division for fire services for review and approval when

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 171 of 228
 628

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

identifying the risks associated with fire and explosion?

A. It was something I was aware of when we were preparing the

report.

Q. Did you incorporate the fact that the City had approval

power over the fire safety plan when identifying the risks

associated with fire and explosion?

A. I wouldn't say that that is an aspect that I was

familiarized with during my time at the City.

Q. So you would not?

A. No, that is not something I was briefed on beyond what's

written here.

Q. If we can go to Page 4.

(Document displayed.)

Q. Page 4 and Page 5 lists about 20 different BAAQMD approval

categories. Did you consider any of the prerequisite BAAQMD

approval categories when you identified the risks associated

with the potential facility at the OBOT?

A. As I mentioned before, I tried to get information from

BAAQMD about their approval process and what influence that

might have had on emissions and was not successful. So beyond

what's written on here, I didn't incorporate any additional

information.

Q. Did you quantify any dust exposure levels for any resident

of West Oakland from the proposed terminal?

A. So you used the word "quantify." I don't believe I was

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 172 of 228
 629

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

given sufficient information to do that for any specific

resident in West Oakland, no.

Q. Did you measure or estimate the incremental impact on the

max concentrations for any resident of West Oakland?

A. No, because that would have required air pollution

monitoring that I didn't have access to -- or sorry -- air

pollution modeling.

Q. Did you identify the frequency or level of risk associated

with any of the fire or explosion incidents that you identified

as it would relate to the potential OBOT facility?

MR. SIEGEL: Objection. It goes beyond the scope,

your Honor.

THE COURT: Overruled.

MR. SWEDLOW: What?

THE COURT: I said, "Overruled."

MR. SWEDLOW: Okay.

THE WITNESS: Could you repeat the question?

BY MR. SWEDLOW 

Q. Yes. Did you quantify the risk associated with any of the

fire or explosion incidents that you identified as it would

relate to the OBOT facility?

A. So I identified a few incidents that occurred at other

facilities. I did not quantify the risks associated with those

incidents, no.

Q. Is there any mathematical or quantitative way to relate

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 173 of 228
 630

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

your identification of other fires to the anticipated

operations at the OBOT facility within your report?

A. The first part of your question was whether I could relate

it to?

Q. Whether you could relate it quantitatively to the risk at

the anticipated OBOT facility.

A. No, I don't believe there was sufficient information given

to be able to do that.

Q. With respect to greenhouse gas, I believe your report

identified a very, very, very small increment of increase in

potential greenhouse gases from the coal that would be

transported through this facility, is that correct?

A. Actually, my finding was that relative to Oakland's

Climate Action Plan, it was quite a large increment.

Q. Would that greenhouse gas emission take place in Oakland

or anticipated to be in China and Japan?

A. The emissions would occur in China, assuming that there

was no combustion occurring as a result of an incident at the

terminal itself. There is potentially a way that those

emissions would be factored into something like the Oakland

Climate Action Plan, depending on where those emissions were

counted.

Q. Did you quantify the percentage of those emissions in

China and Japan that would make their way back to West Oakland

and impact air quality in West Oakland?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 174 of 228
 631

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

A. Not in terms of a specific concentration, no.

Q. In terms of a general concentration?

A. I did analyze the proportion of some pollutants in the Bay

Area that come from overseas pollution.

MR. SWEDLOW: Thank you. No further questions.

THE COURT: I forgot to ask you one question.

I believe that one of the other things that you said in

your report was that aside from the PM2.5 there are certain

toxins from coal dust that could be dangerous to members of the

community like arsenic. And what were some of the others? 

THE WITNESS: So lead, cadmium, mercury. Those are

some others.

THE COURT: And to what extent were you able to

assess the magnitude of the -- either the amount of those

toxins to which members of the community would be exposed or

the magnitude of the danger from those toxins?

THE WITNESS: It's a difficult question to answer.

It's one that I spent a lot of time thinking about, and, in

general, I approached it from two different ways. One is

exposure through coal dust itself, and the other is through

combustion emissions, if there were to be an incident where

coal was burned at the facility. So as a result of an

explosion or a fire either on the train cars or at the facility

itself.

In the event of the latter, it's well documented that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 175 of 228
 632

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

there are carcinogenic properties to coal combustion emissions.

So some of those trace metals, such as lead and mercury, are

what we call "liberated." So they are unbound and concentrated

when the coal is burned. And so those would be direct

emissions that would affect the West Oakland population.

For the coal dust itself, it depends on a lot of factors.

The coal dust, if it accumulates on soil and then is exposed to

elements such as water, there is evidence that leaching can

occur. But it depends on sort of the concentrations of

build-up and whether the -- those concentrations are in great

proximity to the population. So in other words, in someone's

backyard garden versus more in a general area and coming

through the waterways.

THE COURT: And did you make any effort to compare

the risk on that last -- on this last issue to the risk

associated with shipping other types of cargo through the

terminal?

THE WITNESS: No, I didn't feel I had sufficient

information about that. I think in my deposition I was asked

about a few other potential commodities, such as baby formula

and cork. And I just don't have the expertise or the -- I

haven't done the research to understand what the contamination

would be in those instances.

THE COURT: Last question. Is my old friend Joel

Moskowitz still at the public health school?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 176 of 228
 633

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CHAFE - CROSS EXAMINATION / SWEDLOW

THE WITNESS: The name sounds familiar, yes.

THE COURT: But you don't know him?

THE WITNESS: I don't know, no.

THE COURT: I was a lawyer for the City of

San Francisco and I was defending a challenge to an ordinance

requiring retailers to disclose information about the health

effects of cell phone use, and I worked with Joel on that.

THE WITNESS: Now I remember, yes. He is definitely

still there.

THE COURT: Cell phone guy. 

Okay. That's all I have. Anything else from anyone?

MR. SIEGEL: No, your Honor.

THE COURT: Okay. Thank you very much.

(Witness excused.)

MR. COLVIG: The City would call Dr. Fernandez-Pello,

who allows us to call him Dr. Pello.

And I put a Post-It in everybody's binder just to help us

get quickly to a page that I will be citing to.

THE COURT: You bet.

MR. COLVIG: After yesterday's binder blunders, I

thought I would go the extra mile in the other direction.

CARLOS FERNANDEZ-PELLO, 

called as a witness for the defendant herein, having been duly 

sworn, testified as follows: 

THE WITNESS: I do.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 177 of 228
 634

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

THE CLERK: Adjust the microphone directly in front

of you. Please state for the record your first and last name

and spell both of them.

THE WITNESS: Carlos Fernandez-Pello. C-A-R-L-O-S.

F-E-R-N-A-N-D-E-Z. P-E-L-L-O.

THE CLERK: Thank you, your Honor.

DIRECT EXAMINATION

BY MR. COLVIG 

Q. Good afternoon, Dr. Pello. Could you please provide us a

very brief sketch of your educational background.

A. Yes. I obtained a degree, a Ph.D. degree, in engineering

sciences from the University of California San Diego.

After that I went to Harvard University as a

post-doctorate fellow in the Physics Department.

And then at Princeton University, I was a junior faculty

in mechanical engineering. And since 1980, I have been a

professor at the Department of Mechanical Engineering at the

University of California Berkeley.

Q. A very fine school, I might add.

Are there areas in which you consider yourself an expert?

A. Yes. I'm an expert in combustion with an emphasis in

fire, specifically ignition and smoldering, and fire spread and

explosion, solid combustible fuels.

Q. Have you authored publications in this area?

A. Yes. I have over 200 peer-reviewed publications and a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 178 of 228
 635

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

similar number in one or another technical units.

Q. Have you authored a book?

A. Yes. I have coauthored a book in combustion.

Q. Do you teach?

A. Yes. I teach in the Department of Mechanical Engineering

at the University of California Berkeley. I teach courses in

heat transfer, thermodynamics and combustion.

Q. Can you give us a brief idea of some of the clients you've

worked for.

A. I have worked for NASA, the Department of Defense, the

Department of Energy, PG&E, Southern California Edison -- 

Q. That's probably enough. Thanks.

Have you been retained to assist in determining the cause

of fires before?

A. Yes, sir. I have been retained. I have testified maybe

around 30 times in these issues.

Q. Have you ever testified in a trial about coal combustion

issues?

A. Yes, sir.

Q. Did that involve the Los Angeles Export Terminal?

A. Yes, sir.

Q. Can you briefly tell us what information you reviewed to

prepare for your testimony.

A. Well, there is a lot of material. I reviewed the ESA

report. I reviewed the HDR, the design review.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 179 of 228
 636

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

Q. The Basis of Design?

A. Yes, sorry. Basis for Design.

The Cardno report. I've reviewed Dr. Rangwala's report,

the last report, the TLS report.

Q. Did you look at the ESA report?

A. Yes, sir.

Q. Okay. How does coal compare to other substances in terms

of fire and explosion danger?

A. Well, coal is a complex fuel in that it has many different

attributes. It's a fuel that has the capability of

self-ignition and spontaneous combustion. It produces dust

that is combustible and can cause explosions. It may release

methane that, together with the coal dust, is explosive and

enhances the possibility of explosion. It is easier to ignite

than many other solid fuels because it's a porous material and

can initiate the smoldering and then transition into flaming.

So it can ignite at relatively low temperatures.

At the same time it's very difficult to -- once it ignites

and burns, it requires special equipment to fight fires from

coal.

Q. How hot does coal burn in relation to other substances?

A. In general, coal burns hotter. I mean, in fact, that's

why it's used in power plants for power generation.

Q. How hot does coal burn compared to grain?

A. It's approximately twice.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 180 of 228
 637

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

Q. You mentioned that coal can present a problem with

explosion. Why does that happen?

A. Well, as I mentioned before, one of the characteristics of

coal is that it produces dust, and very fine dust mixed with

air behaves like a gaseous fuel. So if ignited and the

conditions are appropriate, it can explode.

Plus, in addition, we have the potential contribution of

methane that enhances the potential explosion problem of the

coal dust.

Q. Dr. Rangwala testified, and I'll quote him:

"With micro dust cloud, the quantity of energy is

needed on an order of 5 to 10 joules, end quote, to

cause an explosion." 

And that's in yesterday's transcript, Page 417, Lines 11

through 13.

Do you have an opinion on whether a spark could can have

10 joules?

A. Of course. Sparks from mechanical impact or from friction

for example, steel with cement, with concrete from a bulldozer

or something like that, it can -- or friction from mechanical

grinding or something -- this type of sparks can generate

energy on the order of 10 or more joules.

Q. Okay.

A. It is something that I have worked quite a bit with in my

research.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 181 of 228
 638

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

Q. Dr. Rangwala also testified that, quote: To ignite a gas

methane cloud, you barely need, like, 1 milijoule, end quote.

And that was at Page 417, Lines 10 through 11.

You mention that coal off-gases methane. Does that

include bituminous coal?

A. Yes.

Q. Does having coal in an enclosure affect the potential for

an explosion?

A. Yes. An enclosure reduces air current that could be used

-- so in order to have an explosion, you have to have a

combustible or a flammable mixture of coal dust and air, or

coal dust, methane and air.

If there are air currents, it will be used, the mixture,

and it may not reach the condition necessary for an explosion.

So when you enclose the facility, you reduce the wind, the

potential for wind, diluting the mixture but also cooling the

coal.

So that's one of the reasons for an enclosure, to

potentially facilitate --

Q. So does having coal enclosed in any way affect the ability

for dust to accumulate?

A. Yes. That's another reason to -- another possibility. So

what can happen is that if you don't have the wind, the coal

can accumulate and -- in wherever it is contained. And if

this -- if the structures are disturbed, the coal can separate

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 182 of 228
 639

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

and form a cloud that, in the presence of a spark, it could

cause an explosion.

Q. Dr. Rangwala said that bituminous coal is a high-ranking

coal, and in comparison to lower-ranking coals is less prone to

self-heating.

Do you have an opinion on that?

A. Yeah. So he is right. But the fact is that all coals has

the potential for a spontaneous ignition and explosion. Some

more than others, and some in more or less aspects than others.

Bituminous coal has less potential for self-ignition than

sub-bituminous coal, but it has more than anthracite.

Q. How does bituminous coal compare with sub-bituminous coal

for the heat it generates when it burns?

A. It's hotter. So it burns hotter.

Q. Okay.

A. That's why it's preferred in power plants.

Q. Great. Let's find Exhibit 1274. And that is the exhibit

that I put the tab in.

THE COURT: Thank you.

MR. COLVIG: You bet.

(Document displayed.)

BY MR. COLVIG 

Q. I'll just read the title. It's a report from the National

Institute of Occupational Safety and Health, from NIOSH,

entitled "Death in the Line of Duty... A Summary of a NIOSH

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 183 of 228
 640

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

Firefighter Fatality Investigation" showing a release date of

September 14, 2012.

Dr. Pello, based in your experience in these matters and

your work on this case, do you have an opinion about whether

this article is reliable information from a reliable source?

A. I don't have any reason to think that it's not reliable,

no.

Q. Have you seen this report cited in any of the reports in

this case?

A. Yes. Yes, sir.

Q. Which?

A. Well, I think that if I remember where ESA cites in its

report, I -- I did cite it in my report, and I believe -- I'm

pretty sure that Dr. Rangwala also cited in his report.

Q. Okay. I'm going to read a passage from Page 5 of that

report.

"One of the primary concerns for the bulk storage

of coal is its ability to produce its own heat. The

storage of bulk coal, whether inside a silo or

stockpiled on the ground, releases heat slowly through

oxidation. It is possible for enough heat to be

released over a period of time to raise the coal

temperature to self-ignition or spontaneous

combustion. Such fires can be very stubborn to

extinguish because of the amount of coal involved

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 184 of 228
 641

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

(often hundreds of tons) and the difficulty of getting

to the seat of the fire.

"Moreover, bituminous coal in either the

smoldering or flaming stage may produce copious

amounts of methane and carbon monoxide gases. Methane

is not a concern with sub-bituminous PBR coals. In

addition to their toxicity, these gases are highly

explosive in certain concentrations and can further

complicate efforts to fight this type of coal fire.

Even the most universal firefighting substance, water,

cannot always be used because of the possibility of a

steam explosion. Water contributes to the exothermic

reaction of coal, increasing the fire problem."

MR. SWEDLOW: Your Honor, I just object. We don't

have a question, and this is just reading a document.

THE COURT: I assuming he is going to ask whether he

agrees with this lengthy passage.

MR. COLVIG: The Court anticipates me very well.

BY MR. COLVIG 

Q. Do you agree with this passage?

A. Yes, I do.

Q. Thank you.

Can you tell us what an exothermic reaction is?

A. Well, it's a chemical reaction that releases heat.

Q. Let's turn to coal fires at other facilities.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 185 of 228
 642

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

Do you recall any discussion with Dr. Rangwala on this

subject yesterday?

A. I think so. I'm not sure.

Q. You don't remember me discussing the other facilities

with --

A. Yeah, yeah. The topic, yes.

Q. Other facilities. Okay.

A. Yes.

Q. And you recall the discussion about the coal fires on

conveyors including the 2000, 2001 fires at LAXT, the 2000 fire

at Norfolk, the 2014 fire in New South Wales, and the 2015 fire

in Scotland?

A. Yes, sir.

Q. Let's talk about the LAXT terminal fires for a moment.

Did ESA discuss those fires in its report?

A. Yes, sir.

Q. Okay. How many fires were there?

A. There were two fires. One was in, if I recall, in 2000.

I think it was September of 2000. And I believe that this

photograph here belongs to the first fire.

Q. Which was the other?

A. And then there was a second fire in 2001. I think it was

February. And this is the photograph of the second fire.

Q. Are there any lessons that can be taken from those fires?

A. Actually, I do. I do think that there are some important

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 186 of 228
 643

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

lessons. And to me, a very important lesson is that often in

the literature, the issue of a spontaneous ignition is

addressed, and explosion of coal. However, there is not that

much work done on the issue of ignition of coal by an adjacent

source of heat. And this is a very clear case of that. You

have the -- the role is in the conveyor belt -- in the conveyor

belt overheating, and heating the coal and igniting the coal.

And so that's a pretty particular form of ignition because

it requires much lower temperatures and overall a smaller

amount of coal.

Q. We've got to keep going. Let's keep going. What else -- 

A. There are several things that they are important here.

Another thing is that this was an enclosed facility. And

they have sensors.

Q. What kind of sensors?

A. It was infrared detectors, for temperature. And still you

had a fire. At the time that it was built -- I think it was

1997 -- it was considered a state-of-the-art facility. And

then you have two fires. So they tried to -- you would think

that they would try to plan it, to prevent. And still you had

a fire.

So the best of intentions don't necessarily prevent a

fire.

Q. Okay. Did you review Section 6 of the ESA report

regarding fire and explosion risks?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 187 of 228
 644

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

A. Yes, sir.

Q. Is there anything in that section that you disagreed with?

A. No, sir.

Q. Do codes, best practices, best technology and permits

guarantee that there will be no fires or explosions at a

facility?

A. Well, they certainly help mitigating the fire. Now,

preventing it is -- my general experience through my years of

consulting is that when an accident happens, it's a sequence of

event. It's not a single event. It's a sequence of events,

that they are very difficult to foresee in a coal or in a -- or

in relation of this practice.

I have worked on regulated industry, and I have seen

accidents. Actually, we have here -- in the Bay Area, we have

the refinery in Richmond and Benicia. These are highly

regulated industry. And we have had accidents that has

caused -- they call for shelter in place.

Q. How do you evaluate the danger of a potential fire in

general?

A. Well, I think that should be evaluated. One is the chance

of the probability that it will happen with time. And the

second is more of the consequences. So you can have a very

small chance by a very high consequence, and that's -- that's a

high risk.

I have a project in -- with NASA for fires in the space

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 188 of 228
 645

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

station on the spacecraft. And this is very critical. You

cannot have a fire.

Q. Do you have an opinion on the chances of a fire or

explosion happening at the proposed OBOT facility?

MR. SWEDLOW: Your Honor, I'm going to object. This

is not a disclosed opinion in the report anywhere -- chances of

a fire.

MR. COLVIG: I believe it was.

"Coal as a substance that is" --

THE COURT: Wait, wait, wait. Hold on a second.

Where are you reading from?

MR. COLVIG: I'm reading from the rebuttal report.

THE COURT: Okay.

MR. COLVIG: Page 16. It's actually the last

sentence.

THE COURT: Trial Page 16?

MR. COLVIG: I'm sorry. The -- it's the last page of

the report. Oh, well, the body of it, 17.

And he also testified in his deposition --

THE COURT: Okay. You can ask the question.

BY MR. COLVIG 

Q. What are the chances of a fire or explosion happening at

the proposed facility?

A. I think that they are high.

Q. Why?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 189 of 228
 646

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - DIRECT EXAMINATION / COLVIG

A. The reason -- there are multiple reasons. One of them is

the particular characteristics of coal. The fact that it

self-ignites, that it spontaneously combusts, that it produces

dust that is explosive. The fact that it can contain methane

that contributes to the explosion. The fact that it has a

lower ignition temperature.

But mostly I think what is very important is that we are

talking about a facility that is planned for operation for

60-plus years, with millions of tons of coal, of throughput

yearly, with hundreds of train cars going daily.

So that -- that is a lot of time for the possibility of an

accident to occur.

You would need that. The design is perfect, that the

fabrication is perfect, that the mountain is perfect, that the

operation is perfect, that there are not failures at all. And

we know that they are.

Q. Do you have an opinion regarding the consequences of a

fire or explosion event at the proposed facility?

A. Well, I -- personally I think that they would be

catastrophic.

Q. Why?

A. Because the potential where OBOT is going to be is near a

very highly density population. It's near the toll plaza. And

the prevailing winds -- if there is a fire or an explosion, the

prevailing winds are going to send the products or combustion

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 190 of 228
 647

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - CROSS EXAMINATION / SWEDLOW

to those regions.

MR. COLVIG: Thank you, Dr. Pello.

THE COURT: Cross?

CROSS EXAMINATION

BY MR. SWEDLOW 

Q. Good afternoon, Dr. Pello.

A. Good afternoon.

Q. You said you reviewed the ESA reports. Do you recall

that?

A. Yes, I do.

Q. Did you review any other reports that were submitted to

the City Council?

A. Maybe, maybe not.

Q. All the reports that were submitted to City Council, so

ESA and any other report that you can recall, did any of those

reports actually quantify the risk of fire associated with a

bituminous coal facility in West Oakland?

A. No.

Q. Did you quantify the actual risk of fire at the

anticipated OBOT bituminous coal facility in West Oakland?

A. I did not.

Q. Did you find any identified incidents in the ESA report or

any other report of spontaneous combustion at a bituminous coal

storage facility?

A. Well, the -- the reports -- the cases that I identify in

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 191 of 228
 648

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - CROSS EXAMINATION / SWEDLOW

any report, most of them, they don't say whether it's

bituminous or not.

Q. Right. So what I'm asking is, do you know of any

identified incidents of spontaneous combustion involving

bituminous coal at a storage facility?

A. No, I don't know. Of course, I don't know that there are

not either. I mean -- so what I am saying is that -- 

Q. It's possible, right?

A. It's possible.

Q. Do you know of any identified incidents of rail car

explosions involving bituminous coal?

A. No.

Q. Do you know of any incidents of dust explosions involving

bituminous coal at a storage facility?

A. I wonder if -- no, no.

Q. You were an expert in the litigation for the LAXT

facilities in those two fires, retained by the facility owner,

is that correct?

A. That's correct.

Q. But you still don't know the type of coal that caught fire

in that facility, do you?

A. No. It was not an issue.

Q. Your issue was -- one of your issues was that you said the

fire was started by spontaneous combustion, is that correct?

A. That's correct.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 192 of 228
 649

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - CROSS EXAMINATION / SWEDLOW

Q. And the jury found against your client on that issue, is

that correct?

A. I don't know.

Q. Did the jury find against your client?

A. Yes, but it doesn't mean that the jury rejected my

opinion. There were many other issues in the case.

Q. You're aware that the compaction of coal would delay any

theoretical spontaneous combustion for any type of coal; is

that right?

A. Not necessarily. It has to be compacted within certain

limits. In fact, compacting can enhance.

Q. Can you say that one more time?

A. In fact, compacting can enhance the spontaneous --

MR. SWEDLOW: Let's display Exhibit 930, Page 2. Can

we go back to -- now go to Page 2. That would be compacted

coal storage.

(Document displayed.)

BY MR. SWEDLOW 

Q. You are not familiar with the NFPA Handbook on Coal

Compaction, is that correct?

A. Not too much.

Q. In fact, you didn't know that the NFPA handbook on coal

compaction existed until Dr. Rangwala testified about that

handbook, is that correct?

A. That is correct.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 193 of 228
 650

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - CROSS EXAMINATION / SWEDLOW

Q. So when you're saying that you know about coal compaction

at a certain density, it's based on the fact that Dr. Rangwala

identified the NFPA Handbook on Coal Compaction for you -- 

(Court reporter clarification.)

Q. When you say that coal compaction relates to a specific

density, that's because Dr. Rangwala identified the NFPA

handbook on coal compaction for you, that you didn't know about

before he identified it, isn't that correct?

A. That's not correct. I identified the issue of compacting,

and it is true -- what is correct is that Dr. Rangwala brought

the issue, but the main source of information comes from the

study of Schmal. It's a study that was conducted in the

Netherlands. And in that study, it shows that compacting by

itself does not reduce the potential onset of -- onset of

ignition. What that study showed is that there not certain

type of compacting reduces the potential for spontaneous

ignition, but not any compacting.

Q. You're not aware of documented incidents of spontaneous

ignition at any bituminous coal facility ever in the history of

the world, are you?

A. Well, I -- I'm aware of a -- of accidents where coal was

involved, and there is no specification whether it's bituminous

or not.

Q. Right. My question is: Do you know of any identified

incidents that used -- that related to bituminous coal where

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 194 of 228
 651

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

FERNANDEZ-PELLO - CROSS EXAMINATION / SWEDLOW

there was spontaneous combustion at a facility?

A. I don't.

Q. You didn't quantify the risk or the reduction of risk that

would be associated with compliance with fire codes or safety

designs related to fire risk, did you?

A. No. I'm not a risk expert.

Q. You're not a risk expert, meaning you didn't actually

identify the quantum of risk associated with fire or explosion

at this site, did you?

A. In order to quantify that, you need to have an expertise

on risk, to be a risk analysis person.

Q. And you didn't do any risk analysis --

A. I told you that --

Q. -- for fire -- let me just finish.

For fire or explosion at this anticipated facility, did

you?

A. No, I am not -- I could not have done it, because I don't

have the expertise to do it.

MR. SWEDLOW: Thank you. No further questions.

THE COURT: Anything further?

MR. COLVIG: No.

THE COURT: Thank you very much.

(Witness excused.)

MS. LOARIE: Defendants call Mr. Steve Sullivan.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 195 of 228
 652

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

STEPHEN SULLIVAN, 

called as a witness for the defendant herein, having been duly 

sworn, testified as follows: 

THE WITNESS: I do.

THE CLERK: Thank you. Please be seated.

THE WITNESS: Thank you.

THE CLERK: And for the record, please state your

first and last name and spell both of them.

THE WITNESS: Steven, S-T-E-P-H-E-N, Sullivan,

S-U-L-L-I-V-A-N.

THE CLERK: Thank you.

DIRECT EXAMINATION

BY MS. LOARIE 

Q. Good afternoon, Mr. Sullivan.

A. Good afternoon.

Q. Can you tell us how long you've worked in the rail

industry?

A. I have 43 years worth of experience in the rail industry.

Q. What positions have you held?

A. The first 26 years were with a Class 1 railroad, with

Conrail. Started as a brakeman. And my last assignment at

Conrail was Director of Corporate Strategy doing mergers and

acquisitions.

I then moved on to become the chief operating officer at a

trade association in Washington D.C., representing

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 196 of 228
 653

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

600 railroads. And then after that, for the last four years

I've been a consultant working for a railroad consulting

company.

Q. So if I add the math, it's 40-some years?

A. Forty-three.

Q. Okay. Do you consider yourself a rail expert?

A. I do.

Q. Could I actually show Exhibit 485, TX Number 0034.

(Document displayed.)

MS. SHAW: Your Honor, again, this is for

demonstrative purposes. No objection, but, obviously, an

objection to the admission on hearsay grounds.

MS. LOARIE: Well, we'll concentrate on his resume,

and we can take up the objections, I believe, after trial on

these issues. Is that okay with the Court?

THE COURT: That's fine. But if you're -- and if

you're using his resume as a demonstrative, I suppose that's

fine. You can also just ask him about his qualifications.

MS. LOARIE: We'll be doing both.

BY MS. LOARIE 

Q. In any event, do you have experience with coal handling in

the rail industry?

A. Yes, I do have some.

Q. What's that experience?

A. One of my first early assignments as a manager with

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 197 of 228
 654

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

Conrail, I was responsible for a terminal improvement project

where we installed a rotary dump coal operation at our

Ashtabula coal dock.

After that I had operational responsibility over Detroit

Edison unit coal trains and their unloading process, and the

coal port in Toledo, Ohio.

After that, I was working with the capital acquisition

plan at Conrail and did the justification and the cost benefit

analysis on acquiring the stacker reclaimer for Ashtabula.

Q. Let me stop you for a minute. What is a stacker

reclaimer?

A. Stacker reclaimer is a giant gantry-like piece of

equipment that moves around the coal piles, and it actually

disassembles them and then restacks them to prevent pressure

from building up and spontaneous combustion, causing the piles

to catch on fire.

Q. Do you have any other coal-specific experience in the rail

industry?

A. I also worked on a prototype car for Conrail doing the

justification cost-benefit analysis that we put in to serve as

handling unit coal trains, and one of my last assignments at

Conrail was working on redesigning the coal network of the way

coal trains moved around the system.

Q. So it sounds like you have a lot of coal industry

experience.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 198 of 228
 655

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

In these operations, do you know what type of coal the

railroad was handling?

A. We were handling bituminous coal that was being mined out

of -- or I'm sorry -- anthracite coal that was being mined out

of West Virginia and Western Pennsylvania.

Q. Do you have any idea how that compares to bituminous coal?

A. It's harder. In the gradations of coal, the process is

pre-bituminous, bituminous, anthracite and then graphite. And

then we get to pure carbon after that.

Q. You talked about some experience in Ohio that was a coal

port, like an inland coal port. Have you ever seen coal dust

at port operations?

A. A lot of -- every port operation -- every coal unloading

operation I have been to produces coal dust.

Q. Have you ever seen coal dust along the rail lines?

A. Oh, yes. Yes. In fact, I have personal experience with

coal dust flying along the railroad right of way. As a young

trainmaster, one of the things that we were always instructed

to do when we were out on the property was to observe passing

trains. And on one particular day, I was in a high-rail

vehicle, which is a dual-mode highway and rail vehicle, and I

stood --

MS. SHAW: Your Honor, I apologize, but I object and

move to strike this line of testimony. This anecdote is not an

opinion expressed in the report.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 199 of 228
 656

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

THE COURT: I gather it's an effort to establish his

qualifications. I'm not quite sure how it does, but I'll allow

it.

A. Anyways, as the coal train approached, I moved across,

opposite the coal train, about 40 feet away -- 30 to 40 feet

away so that I could observe it passing. After it passed, I

had to go home and change because I was completely covered in

coal dust.

BY MS. LOARIE 

Q. And you mentioned you are a consultant now. Can you talk

about any of your representative clients.

A. We represent railroads, shippers, government authorities,

and special interest groups from time to time.

Q. And did you offer any opinions in this case on coal dust

or covers?

A. I did.

Q. The first opinion, I think, was on coal dust, if memory

serves.

A. Yes, I did offer an opinion on coal dust.

Q. What analysis did you do on coal dust?

A. The amount of coal dust that escapes through the bottom of

a coal car.

Q. Did you make any assumptions in -- in that analysis?

A. The assumptions that I used were based on the Basis of

Design report. OBOT had indicated they were going to use rapid

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 200 of 228
 657

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

discharge bottom dump coal cars. And the assumptions that I

used were a release of coal dust that occurs through the bottom

of coal cars.

Q. Did you assume that there would be anything on top of the

car?

A. No, I didn't, because in the Basis of Design report, OBOT

had indicated that they were going to put covers on the cars.

Q. So you assumed covers in your coal dust opinion?

A. In the coal dust opinion, yes.

Q. Was it realistic to assume covers?

A. No, they're not used in the industry, but because I wanted

to take a conservative approach to fugitive coal dust, I

assumed that somehow they would be used in this case.

Q. So you limited your opinion based on the Basis of Design

that assumed using covers on coal cars?

A. Yes.

Q. How is coal typically shipped?

A. Coal is typically shipped in open cars, and then the cars

are loaded from the top. And the standard method of unloading

the cars after they've been transported is to actually twist

the car in train upside down, unload it and then twist it back,

and then move down to the next car and repeat the process.

Q. Is fugitive coal dust released from coal cars?

A. It is.

Q. And you mentioned, I think I heard, that coal dust comes

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 201 of 228
 658

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

from both the top and the bottom normally?

A. There are a number of studies that have been done by

Burlington Northern Santa Fe, BNSF. And BNSF has modeled coal

dust escaping from coal cars, and it does escape from the top

and from the bottom.

Q. Can you quantify the coal dust loss from a typical coal

unit train?

MS. SHAW: Objection, your Honor. Mr. Sullivan is

offered as a rail operations expert. He is not, and he

candidly admits he is not an expert in calculating the amount

or rate of release of coal or fugitive dust.

MS. LOARIE: He offers an opinion in his report on

coal dust loss that we're going to discuss. So I would

disagree with that characterization.

THE COURT: Can you show it to me in his report?

MS. LOARIE: Yeah. Actually, I was just coming up

with it.

MS. SHAW: It's a different objection, your Honor.

It was about expertise. Mr. Sullivan candidly admits he

doesn't have expertise in calculating the amount or rate at

which coal dust is released.

THE COURT: Okay. And you can -- I suspect you will

cross-examine him on that. So I'll let him testify about it,

and we can assess the weight of the testimony.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 202 of 228
 659

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

BY MS. LOARIE 

Q. So if you want to turn -- we'll bring up Page -- TX Page

0028 in Exhibit 485. I think you have Exhibit 485 in front of

you. If you want to reference it or look at the screen, the

last paragraph.

(Document displayed.)

MS. SHAW: Your Honor, objection to this report.

Again, this is hearsay.

MS. LOARIE: I understand there to be a standing

objection on this report, and hopefully we can deal with it --

THE COURT: I don't want him -- I wanted him to

provide an opinion that he is offering here in court. I don't

want him to recite his expert report.

MS. LOARIE: Absolutely. And we're going to talk in

detail about that opinion and not just look at his report.

THE COURT: So why don't we just not read the

paragraphs from his report.

MS. LOARIE: We're not reading paragraphs from his

report. I was just bringing it up to the one number that he

cites there. I thought it would be helpful to the Court, but

if it's not, we're certainly happy to proceed without it.

THE COURT: I think you can elicit it without pulling

up the report.

MS. LOARIE: Sure thing.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 203 of 228
 660

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

BY MS. LOARIE 

Q. So you just talked about there was a typical coal dust

loss figure, a percentage loss -- I think you said 3 percent of

coal dust that's loaded -- I'm sorry -- 3 percent of the total

coal that's loaded from the car is lost?

A. The documents that I used in my opinion, there is a

website citation that BNSF actually indicates that up to

3 percent of the total loaded coal can be lost to fugitive dust

while the train is moving from the loading facility to the

unloading facility.

The bottom loss is calculated to be 7 percent of the total

loss. So doing the math on a typically loaded coal car is

where my numbers came from.

Q. So could you do that math actually, calculate out what a

typical coal car has for coal and then do the percentages?

That's why I was hoping your report might serve to be helpful,

off the top of your head.

A. Well, no. I can recall what I put in the report and the

calculations. The BNSF study, again, was a study that was

printed to RETAC, which is the Rail Energy Transportation

Advisory Committee to the STB. And then in the Q and A,

session there was more information that came out about coal

loss.

So using the bottom dump hopper car as a template, and

there are various kinds that can hold anywhere from 115 to

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 204 of 228
 661

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

130 tons per car, I did the calculation of how much dust would

be lost through the bottom of the car in the trip from the

origin point at Price, Utah to West Oakland and to the OBOT

facility. That calculation ranges again because of the varying

tonnages of the cars, anywhere from 50,000 pounds to

57,000 pounds per train per trip.

THE COURT: So you're saying your time is technically

up. And we gave you ten extra minutes, so you have nine

minutes left on your trial clock.

MS. LOARIE: Total?

THE COURT: According to Kristen.

THE CLERK: Out of the ten.

MS. LOARIE: I thought we had 15 minutes left.

THE CLERK: Ten.

MS. LOARIE: Okay. We'll go quickly.

BY MS. LOARIE 

Q. So that's a 57,000-pound figure is the bottom loss figure

from -- from a coal car?

A. Yes.

Q. What factors go into your coal dust release from the

bottom of the car?

A. Well, there are two things that influence the release and

the amount of release. The type of train operations, so

switching movements, start-and-stop operations will - will tend

to release more coal than the actual movement of the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 205 of 228
 662

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - DIRECT EXAMINATION / LOARIE

over-the-road operation. So in the case of a coal train coming

into the OBOT facility, the -- the train -- the preferred route

or the more preferential route would be the southern route,

which would bring it through Alameda, West Oakland, down

Embarcadero Street to a point just west of Embarcadero Street

where it would enter the Union Pacific yard. It would have to

traverse that yard to enter the support yard where the train

then would be stopped and broken into smaller segments, and

then taken back to the OBOT facility and switched through.

A lot of start-and-stop motion going on there.

The other factor is the distance traveled, because the

longer the train is on the line of road, the more the coal has

a chance to grind and grate together, compress, pulverize and

the fine particulate matter moves to the bottom of the car

where it then gets released.

Q. So some of that coal dust loss would occur in West Oakland

outside the OBOT property?

A. Yes.

Q. In terms of your fugitive coal dust loss, you also made an

opinion on covers in this case?

A. I did.

Q. And what was that opinion?

A. Well, they're not being used in the industry. There

are -- there are proposals for ideas to cover cars. There has

never been a proof of concept, a prototype design or any

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 206 of 228
 663

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - CROSS EXAMINATION / SHAW

studies that have been done to -- to show the effectiveness of

covering coal cars.

Operationally, it doesn't make a lot of sense for a

railroad to use them.

Q. You also gave an opinion on the distance traveled

impacting coal dust. Is there more or less loss at the end of

a trip from the bottom?

A. In this particular case, because we're traveling a

thousand miles either over the northern or the southern route,

and there is a lot of switching, stop-and-start motion that

goes on at the back end, especially at the -- within the West

Oakland and at the OBOT facility, the dust loss would be

higher.

MS. LOARIE: Okay. Nothing further.

THE COURT: Thank you.

CROSS EXAMINATION

BY MS. SHAW 

Q. Good afternoon, Mr. Sullivan.

A. Good afternoon, Ms. Shaw. How are you?

Q. Fine, thank you.

Mr. Sullivan, the application of covers to rail cars

carrying lignite coal is in use, correct?

A. The application of covers to lignite, I wouldn't

necessarily call it coal. It's a totally different product

that's in use, that is correct.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 207 of 228
 664

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - CROSS EXAMINATION / SHAW

Q. You consider yourself an expert in rail operations?

A. Yes. 

Q. And just so that we're clear, for purposes of your

opinions in this case, you are assuming that the rail cars

coming into the OBOT terminal will be covered, correct, sir? 

A. Part of my opinion, yes, that's correct.

Q. Now, you do not consider yourself an expert in calculating

the amount or rate of release of particulate matter from a

moving train, correct?

A. I am not an expert on dust release, that is correct.

Q. And you do not consider yourself an expert in calculating

the amount or rate at which coal dust is released from a moving

coal train, correct?

A. Other than citing the recognized experts in the industry,

BNSF, you're correct.

Q. All right. Now, there are several designs for rapid

discharge rail cars, correct?

A. Yes, there are.

Q. And you're not aware of the particular design or model of

rapid discharge cars that are planned to carry coal to the OBOT

terminal, correct?

A. I am not aware, that is correct.

Q. And you also do not know which make or model of rail cars

were used in BNSF's study of emissions from the bottom of rail

cars, correct?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 208 of 228
 665

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - CROSS EXAMINATION / SHAW

A. Yes. I say that's fair, yes.

Q. You do know that the coal used in the BNSF study was coal

from the Powder River Basin, correct?

A. The study that I cited was Powder River Basin coal, yes.

Q. And you don't have an opinion about how maintenance

practices affect the potential for coal dust to be emitted out

of the bottom of rapid discharge rail cars like those made by

Trinity Rail Car, correct?

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

Q. Sure.

You're not offering an opinion about how maintenance

practices affect the potential for coal dust to be emitted out

of the bottom of rapid discharge rail cars like those made by

Trinity Rail Car, correct?

A. I have not offered an opinion on the maintenance of the

cars, no.

Q. And you have no opinion about whether a lip on the bottom

doors of a rapid discharge rail car impacts the potential for

coal dust to escape out of the bottom of the car, correct?

A. Actually that's not true. And I think we talked about

this in deposition as well. So any time there are plates,

seams, enclosures in the bottom of the car, there is an

opportunity for coal dust to be lost.

In my experience in railroad operations, I did have coal

cars that were losing coal dust through the bottom of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 209 of 228
 666

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - CROSS EXAMINATION / SHAW

enclosures on the bottom of coal cars.

MS. SHAW: All right. Can we get up Mr. Sullivan's

deposition at Page 167, Line 14 through 19?

(Document displayed.) 

BY MS. SHAW 

Q. (As read)

"QUESTION: Do you have an opinion about whether a lip

on the door which locks or seals" --

(Court reporter clarification.)

"QUESTION: Do you have an opinion about whether a lip

on the door which locks or seals the flat edge of the

bottom outlet doors on a rapid discharge aluminum rail

car impacts the potential for coal dust to escape out

of the bottom of the car?

"ANSWER: I don't know that I have an opinion."

Was that your testimony, sir?

A. There is more to that answer.

Q. And your counsel can ask that question.

Was that your testimony?

A. That was part of it, yes.

Q. You've never worked at a railyard where coal was being

bottom-dumped from rapid discharge cars, correct?

A. No, that's not true.

Q. All right. Let's look at page -- at deposition -- well,

you have never worked at a railyard where coal was being

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 210 of 228
 667

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - CROSS EXAMINATION / SHAW

bottom-dumped from rapid discharge cars that are being at issue

here, correct?

A. That is correct.

Q. Thank you.

Now, profile shaping is the same thing as bread loafing,

correct?

A. Yeah. That's an industry term, yes.

MS. LOARIE: Objection. Outside the scope of exam.

THE COURT: I don't know because I don't know what

profile shaping or bread loafing is.

MS. LOARIE: We didn't talk about it, right?

BY MS. SHAW 

Q. Well, profile shaping is the manner in which you -- let's

see. Let's use your -- "reshaping the design of the way the

coal sits in the car when it's loaded," correct?

MS. LOARIE: I stand by my objection.

THE COURT: That's overruled.

A. It is. So when coal is loaded in the car, it has a

tendency to peak. And bread loafing is a way of reshaping it

to kind of flatten out the peaks in the car.

BY MS. SHAW 

Q. And profile shaping is used in the rail industry to

control or mitigate coal dust in train operations, correct?

A. It is one of the methods, correct.

Q. And water sprays are also used in the rail industry to

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 211 of 228
 668

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

SULLIVAN - CROSS EXAMINATION / SHAW

control and mitigate coal dust in train operations, correct?

A. Under certain circumstances, that's also correct, yes.

Q. And topical surfactants are employed in the rail industry

to control and mitigate coal dust in train operations, correct?

MS. LOARIE: Objection. Outside the scope of exam.

THE COURT: Overruled.

A. Topical surfactants are also a method that's employed.

BY MS. SHAW 

Q. Now, you testified about your work for the Short Line

Railroad Association, correct?

A. Yes.

Q. And you undertook training relating to hazardous materials

in connection with your work with the Short Line Railroad

Association, correct?

A. One of my undertakings, yes.

Q. That course did not address coal, did it?

A. No, it did not.

Q. And that course did not address petcoke, correct?

A. It did not.

MS. SHAW: Thank you.

THE COURT: Anything further?

MS. LOARIE: No.

I think we will be calling -- if I do a time check, I

believe OBOT is out of time and we have a few minutes left, so

we would probably proceed to the next witness.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 212 of 228
 669

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

THE COURT: Kristen is the keeper of the time.

It sounds like you're excused. Thank you very much.

THE WITNESS: Thank you, your Honor.

(Witness excused.)

MR. SIEGEL: Also, your Honor, we would like some

time to discuss the post-trial briefing.

THE COURT: Of course.

So what -- so the next witness is video testimony, is that

right?

MS. LOARIE: It's video testimony. And we had

offered to, after this morning, play OBOT's counters. I don't

know if they have any time left, but I prefer to --

THE COURT: I think Kristen is showing some time

left.

MS. LOARIE: I have time to re-examine. Six minutes.

THE CLERK: They still have four minutes left.

THE COURT: We'll watch the whole video.

MS. LOARIE: The whole video. Okay. Thank you.

THE COURT: And who are we hearing from?

MS. LOARIE: We will be hearing from Mr. James Wolff,

the Bowie Resource Partners CEO.

THE COURT: Great.

JAMES WOLFF, 

called as a witness for the defendant herein, testified via 

videotaped deposition played in open court, not reported. 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 213 of 228
 670

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

THE COURT: I thought for sure you were going to end

on the sentence where he said you don't want to breathe in coal

dust. That's like the best -- the best ending.

MS. LOARIE: My apologies.

THE COURT: All right. So are we all done?

MR. AKER: Yes, your Honor.

THE COURT: All right. So what -- how do you-all

want to proceed in terms of post-trial filings, the when and

the how and all that?

MR. FELDMAN: I have a good idea about the when.

That would be two weeks from Monday.

And then a subsequent filing ten days from two weeks from

Monday, simultaneous filings.

THE COURT: I never allow simultaneous filings.

MR. FELDMAN: I know better.

THE COURT: And so maybe it would be helpful to talk

about what you-all want to file before talking about when they

should be filed.

MR. FELDMAN: And, actually, I think, perhaps

uncharacteristically, you should tell us.

THE COURT: Well, I think that you should file

proposed findings of fact and conclusions of law.

MR. FELDMAN: That's what I thought.

THE COURT: And those, by the way, should include --

so for any -- for any point that you want to establish, it

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 214 of 228
 671

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

should have all the key citations to the record, as you know.

It should also hyperlink to those citations so that we can

access them quickly.

MR. FELDMAN: Would that include the transcript?

THE COURT: Yes. That would be very helpful. Thank

you.

And so proposed findings of fact and conclusions of law.

That, I wouldn't mind -- if you want to file those

simultaneously, that's probably fine.

And then evidentiary objections, as we discussed. I think

as the dust settles, so to speak, you know, you'll find that

many of your objections were less important than you thought

they were when you made them, and so hopefully you can just

focus on the ones that really matter in your document, setting

forth your arguments for which exhibits or which aspects of the

testimony I should not be considering at all.

So those would be the two things for sure.

Is there anything else?

MR. FELDMAN: Your Honor, may I ask a question?

THE COURT: Yeah.

MR. FELDMAN: Could you give us a hypothetical

example of a conclusion of law? It doesn't have to be this

case. What I mean by that is --

THE COURT: By the way, I sort of appreciate your

question, because I hate findings of fact and conclusions of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 215 of 228
 672

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

law. I think they are -- I mean, I think the whole findings of

fact, conclusions of law exercise is kind of lame, but we -- we

do have a rule that requires us to --

MR. FELDMAN: Well, if it's not -- I'm sure that

Mr. Finberg would agree that if it's not going to help you,

we're not interested in doing it.

THE COURT: But I think it will -- well, okay. So --

MR. FELDMAN: I actually think --

THE COURT: In other words, you're proposing maybe

just filing something on the facts?

MR. FELDMAN: That's what I was about to say.

THE COURT: I would be fine with that.

MR. FINBERG: Are we going to do post-trial briefs

then?

THE COURT: I'm perfectly happy for you to do them,

if you would like to do them.

MR. FINBERG: I think, yes, we would like to do

post-trial briefs if we're only going to do findings of fact.

MR. FELDMAN: I don't have any problem with that.

THE COURT: Yes. That's perfectly fine.

MR. FELDMAN: I think, shockingly, everybody seems to

agree.

THE COURT: Okay.

MR. FELDMAN: That's why I was asking. I think

conclusions of law are not that useful.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 216 of 228
 673

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

THE COURT: Although I think there is utility in my

receiving sort of proposed findings of fact from you.

MR. FELDMAN: I agree. I agree.

THE COURT: So you really have to drill down and you

have to identify the parts of the record that support your ...

MR. FELDMAN: Yes.

THE COURT: So proposed findings of fact --

MR. FELDMAN: Yes.

THE COURT: -- as I -- in the manner that I

discussed. And then evidentiary objections.

So those are two separate documents presumably.

MR. FELDMAN: Yes.

THE COURT: And then post-trial briefs?

MR. FELDMAN: Okay.

THE COURT: That sounds great to me.

MR. FELDMAN: I think it's important. I don't know

if it's important, but I think it would be useful if

Mr. Finberg would stipulate to what you just said. I mean, I

don't want anybody to say someday that it wasn't done right.

So do you agree --

THE COURT: Is everybody in agreement?

MR. FINBERG: To getting rid of the conclusions of

law?

THE COURT: Proposed conclusions of law. I'm

required by the rules to file a document that's titled --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 217 of 228
 674

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. FINBERG: I can only speak upon the behalf of

intervenors, but we have no objection to not having conclusions

of law. Kevin will have to speak for the City.

THE COURT: Proposed conclusions of law filed by you.

MR. SIEGEL: We very much want conclusions of law

ultimately from the Court, but proposed conclusions of law we

do not need to provide. We would like to provide proposed

findings as well as post-trial brief.

THE COURT: Post-trial briefs, that's fine.

MR. FELDMAN: May I suggest about ten days after the

three things -- the three things we just described, that there

be a further set of simultaneous briefs?

THE COURT: Well, I'll -- let's play with this a

little bit. What if we had -- first of all, whatever, like,

two weeks from Monday, let's say. And to me there is no magic

to any of these dates, and I'm happy to, you know, play around

with the dates.

MR. SIEGEL: We would like more time, Your Honor,

but ...

MR. FELDMAN: Our client has a need to get this

resolved, if possible.

THE COURT: We'll talk about that. But let's talk

about sort of the sequencing of that first.

So what if we had a date where the parties simultaneously

filed proposed findings of fact and evidentiary objections.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 218 of 228
 675

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. FELDMAN: Yes.

THE COURT: Okay. And then some date after that, the

plaintiff files its post-trial brief, and sometime after that

the Defendants file their post-trial brief. I think that would

be a good sequence.

MR. FELDMAN: But we need to -- we need, at some

point, to be able to respond to whatever the Defendants say. I

have the impression -- in fact, I know based on what

Mr. Finberg said -- that there is going to be new stuff that we

never briefed before.

THE COURT: Well, yeah. To the extent that -- is it

still your plan to make some sort of post-trial motion based on

this issue, this issue that has not been part of the case so

far?

MR. FINBERG: We were going to address the government

code section argument, yes.

THE COURT: Okay.

MR. FINBERG: Do you want that in a separate motion

or do you just want it as part of the post-trial trial brief?

THE COURT: I think you can -- I certainly -- what I

would propose is -- I had forgotten about that issue.

There are going to be issues about whether it's

appropriate for that, that argument to be made at this stage in

the proceedings or whether it's more appropriately made in some

other lawsuit.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 219 of 228
 676

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

MR. FELDMAN: Or whether you've already decided it.

THE COURT: I don't think I've already decided it.

But -- I hope I haven't already decided it.

But in any event, certainly you would have to have an

opportunity to respond to that.

MR. FELDMAN: I really do think that -- I just -- if

past is prologue, we -- notwithstanding your best efforts,

there may be two ships passing in the night here. I don't know

exactly what straits we're sailing in. But I -- I really would

be very reluctant, unless your Honor orders it, to not be able

to respond to the legal arguments that we may encounter.

THE COURT: You want to have a reply --

MR. FELDMAN: Yes.

THE COURT: -- to the plaintiff. That's fine. For

the record, I mean, I've never seen a case where it mattered

who got -- to the outcome, who got the last word. And your

filing a reply will extend the period of all this, and you just

said that your client needs a ruling quickly.

MR. FELDMAN: I understand. I do understand this.

MR. FINBERG: Or the other way to do it would be to

have simultaneous post-trial briefs, except for this government

code issue. We could make a motion on that issue. They could

get an opposition, and we could get a reply.

MR. SIEGEL: For the City, I have a slightly

different proposal. And that is, just as the plaintiff doesn't

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 220 of 228
 677

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

have an opportunity to reply at rebuttal in this trial, I think

that the briefing should follow the same course. And if there

is anything simultaneously submitted, it would be the

government code motion, but not our friends, the intervenors,

who are interested in filing, and that could be filed at the

same time as the plaintiff's brief with the reply to come from

the plaintiff on that issue afterwards.

MR. FINBERG: You're stipulating to that, right?

MR. FELDMAN: Passing why the intervenors are filing

that motion as opposed to the City -- passing that, I do

think --

THE COURT: I mean, I was wondering if there might be

a standing issue or an issue about this being outside the scope

of the intervention that I allowed. But all of that stuff, you

can talk about in your briefs.

MR. FELDMAN: That's why I really do think that, if

it's acceptable to your Honor, that we ought to have -- I

really do mean this -- simultaneous briefs and then another set

of simultaneous briefs.

And I don't see why the briefs can't be filed at or

shortly -- shortly after the findings of fact and evidentiary

objections.

They are not independent, but they are not that -- they

ought to be somehow tethered to each other.

So I think that -- and I have done this. I know for sure

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 221 of 228
 678

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

at least once, I was about to say --

THE COURT: I mean, I had simultaneous briefs, too,

both as a lawyer and as a judge. And I think they're terrible.

I mean, I really do. I think the parties are talking past each

other, and they don't get a meaningful way to respond to each

other.

MR. FELDMAN: That's why I'm suggesting. I'm sorry

I'm not being clear. Simultaneous opening briefs and

simultaneous second briefs.

THE COURT: I understand what you're saying. I think

that's terrible.

Well, what I'm going to do is I'm going to think about

this, and I'm going to put out an order telling you what I

want. But the upshot here is that we're going to be having

proposed findings of fact, and I assume that there will need to

be only one of those from the defendant's side.

MR. SIEGEL: I believe so. I don't see why --

MR. FINBERG: We can do that, yes.

THE COURT: Okay. And then evidentiary objections,

and I assume --

MR. FINBERG: We can do that together.

THE COURT: -- and I assume only one from the

defendant's side.

MR. SIEGEL: Yes.

THE COURT: And then post-trial briefs, which may

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 222 of 228
 679

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

need to be done separately, at least on -- at least to the

extent that the intervenors are making this argument.

MR. FINBERG: Correct, on the government code

argument, intervenors are making it. It's not clear that the

City is joining.

THE COURT: So is it something where -- is that sort

of the only thing you want to submit by way of post-trial

briefing, is just on that issue? You know, do a separate brief

on that and then sort of join with the City of Oakland on the

main post-trial brief?

MR. FINBERG: We probably can do it that way. Or you

could give us a total number of pages among us, and we could

divide it up how we think is appropriate.

THE COURT: My preference would be for -- I think it

might be better for all involved for you-all to do it together.

MR. FINBERG: Okay.

MR. COLVIG: We're good friends, your Honor.

THE COURT: So there will be a separate brief from

the intervenors, maybe Oakland as well, but at a minimum a

separate brief from the intervenors on this government code

issue.

MR. FINBERG: Very good.

THE COURT: Okay.

Mr. Feldman said he would like to file the -- start off

the process by filing the proposed findings of fact and the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 223 of 228
 680

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

PROCEEDINGS

evidentiary objections two weeks from Monday. What's the

defendant's view on when that should happen?

MR. SIEGEL: Three weeks.

THE COURT: From Monday?

Okay. So let me -- and then, you know, my tentative view

is that I'm -- I'm not going to need to hear further argument,

but -- so keep in mind that that's my tentative view. And I --

as I often do with argument, I may well vacate the hearing.

But I'll set a hearing date for argument in case I decide

I need it. Okay? And that will be, you know, a couple weeks

after the final brief comes in or something like that.

MR. FELDMAN: Yes.

THE COURT: Okay.

MR. FELDMAN: Understood that what you're saying is

you're going to set a hearing date without any conviction that

you'll have it.

THE COURT: Exactly. Yeah. And usually I, you

know -- I vacate these hearings usually a week or five days

before the hearing so that your life is not made too miserable

preparing for no reason.

So that will be the plan, and I'll issue an order about

dates and order of briefing and whatnot.

MR. FELDMAN: If I may say, there is a week in March

that I'm not available.

THE COURT: Okay.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 224 of 228
 681

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

MR. FELDMAN: I can't remember exactly what week. I

know why, but I can't remember exactly what week. I think it's

the week of March -- it ends in March 20th or so.

THE COURT: Okay.

MR. FELDMAN: Although Ms. Shaw could probably argue

it. Not probably. She definitely could argue it better.

Yeah, there is a week in March. I think it's the third

week in March.

THE COURT: Okay. I'm not sure if that's an

incentive to schedule it for that week, but...

(Laughter.)

THE COURT: We'll see.

MR. FELDMAN: I can imagine.

THE COURT: I'll give it some thought. Thanks very

much to everybody.

MR. AKER: Thank you, your Honor.

MR. FELDMAN: Thank you, your Honor.

I would say that your Court Reporter deserves combat pay.

MR. COLVIG: Yes.

THE COURT: As well as the Courtroom Deputy, who has

gone home.

MR. FELDMAN: Thank you, your Honor.

(Whereupon at 4:22 p.m. further proceedings were 

 adjourned.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 225 of 228
 682

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

I N D E X

Friday - January 19, 2018 - Volume 3 

 

PLAINTIFF'S WITNESSES PAGE VOL.

CAPPIO, CLAUDIA

(SWORN) 467 3

Direct Examination by Mr. Feldman 468 3

Cross Examination by Mr. Siegel 484 3

Redirect Examination by Mr. Feldman 491 3

 

Plaintiff Rests 

- - - 

DEFENDANT'S WITNESSES PAGE VOL.

SAHU, RANAJIT

(SWORN) 507 3

Direct Examination by Mr. Aker 508 3

Cross Examination by Mr. Feldman 558 3

 

MOORE, NADIA

(SWORN) 571 3

Direct Examination by Mr. Aker 572 3

Cross Examination by Mr. Myre 601 3

Redirect Examination by Mr. Aker 606 3

 

CHAFE, ZOE

(SWORN) 608 3

Direct Examination by Mr. Siegel 608 3

Cross Examination by Mr. Swedlow 623 3

 

FERNANDEZ-PELLO, CARLOS

(SWORN) 633 3

Direct Examination by Mr. Colvig 634 3

Cross Examination by Mr. Swedlow 647 3

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 226 of 228
 683

 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

 

I N D E X

SULLIVAN, STEPHEN

(SWORN) 652 3

Direct Examination by Ms. Loarie 652 3

Cross Examination by Ms. Shaw 663 3

 

WOLFF, JAMES

VIDEOTAPED TESTIMONY 669 3

- - - 

E X H I B I T S

TRIAL EXHIBITS IDEN EVID VOL.

 1278 459 3

213-2 and 213-3 460 3

_ _ _ 

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 227 of 228
 Debra L. Pas, CSR, RPR, RMR, CRR

 Official Reporter - U.S. District Court - San Francisco

 (415) 431-1477

CERTIFICATE OF REPORTER

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter. 

 

 _________________________________

Debra L. Pas, CSR 11916, CRR, RMR, RPR 

Friday, January 19, 2018 

Case 3:16-cv-07014-VC Document 230 Filed 01/19/18 Page 228 of 228