UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

* * * * * * * * * * * * * * * *

*

UNITED STATES OF AMERICA *

* Case No.

vs. * 06-CV-00354-PB

*

GENERAL ELECTRIC COMPANY *

*

*

* * * * * * * * * * * * * * * *

DEPOSITION OF RICHARD A. WHITNEY

Deposition taken at the Office of the United

States Attorney, James C. Cleveland Federal

Building, 53 Pleasant Street, Concord, New

Hampshire, on Friday, April 20, 2007,

commencing at 10:00 a.m.

Court Reporter: Brenda K. Hancock, RMR, CRR

CCR No. 55 (NH RSA 331-B)

FPWIT009739

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 1 of 27
Page 2 Page 4

Also present: Madeline Fleischer

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1 APPEARANCES:

2 For the Government: U.S. DEPARTMENT OF JUSTICE

ENVIRONMENTAL & NATURAL

RESOURCES DIVISION

ONE GATEWAY CENTER, SUITE 616

4 NEWTON CENTER, MA 02458

By: Catherine Adams Fiske, Esq.

14

15 For the Defendant: MINTZ LEVIN COHN FERRIS GLOVSKY

AND POPEO PC

16 One Financial Center

Boston, MA 02111

By: William 'Mo' Cowan, Esq.

-and18 Kathryn Bagley Schadinger, Esq.

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20

21

Page

5

29

51

63

67

Number Page

INDEX

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3

EXHIBITS FOR IDENTIFICATION:

1

WITNESS:

4

RICHARD A. WHITNEY

14

1 Declaration ofRichard A.

15 Whitney.................... 22

16

17

18 (Exhibit attached to transcript)

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20

21

22

23

13

5

6 EXAMINATION:

7 By Ms. Rowley

8 By Mr. Cowan

9 By Ms. Rowley

10 By Mr. Cowan

11 By Ms. Rowley

12

U.S. DEPARTMENT OF JUSTICE

ENVIRONMENTAL & NATURAL

RESOURCES DIVISION

P.O. Box 7611

601 D Street, NW, Room 2121

Washington DC 20004

By: Laura J. Rowley, Esq.

U.S. ENVIRONMENTAL PROTECTION

AGENCY

Office of Site Remediation &

Restoration

One Congress Street

Suite 1100 (HBS)

Boston, MA 02114-2023

By James E. Israel, Investigator

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STIPULATIONS 1

It is agreed that the deposition shall be taken 2

in the fIrst instance in stenotype and when 3

transcribed may be used for all purposes for which 4

depositions are competent under the Federal Rules of 5

Civil Procedure. 6

Notice, fIling, caption and all other formalities 7

are waived. All objections except as to form are 8

reserved and may be taken in court at time oftrial. 9

It is further agreed that ifthe deposition is 10

not signed within thirty (30) days after submission 11

to counsel, the signature ofthe deponent is waived. 12

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RICHARD A. WHITNEY,

having been duly sworn by the court

reporter, was deposed and testifIed as

follows:

EXAMINATION

BY MS. ROWLEY:

Q. Good morning, Mr. Whitney. My name is

Laura Rowley, and I'm an attorney for the United

States in this matter.

A. Mm-hmm.

Q. Could you please state your name.

A. Richard A. Whitney.

Q. And your address.

A. 72 Ring Road in Wilton.

Q. Mr. Whitney, I know you've been deposed

before, but I'll just remind you that in this

deposition, please listen to the question that I ask

you before giving your answer, and just give a verbal

answer for the sake ofthe court reporter, so that

she can write it down. If you don't understand a

question I ask, just ask me to rephrase it or repeat

it until you do understand.

A. Okay, because sometimes I don't hear.

2 (Pages 2 to 5)

FPWIT009740

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 2 of 27
any?

MR. COWAN: Well, the usual. All

objections except as to form waived till time of

trial and waive the reading and signing, but it's up

to you. I don't know what your preferences are.

MS. ROWLEY: I'm fme with waiving the

reading and signing. That seems to make sense.

MR. COWAN: And as to objections?

MS. ROWLEY: Except as to form.

MR. COWAN: All right.

MS. ROWLEY: Is that fine?

MR. COWAN: Sure, sure.

Were there some that were not?

Pardon?

Were there some that were not in good

Page 6

1 Q. Okay. Is there any reason that you

2 can't testify truthfully and fully today?

3 A. Pardon?

4 Q. Is there any reason that you can't

5 testify truthfully and fully today?

6 A. No.

7 Q. Okay.

8 MR. COWAN: Laura, before you get

9 going, I'm sorry to intelject, but are we going to do

10 any stipulations? It's up to you; I'm just curious.

11 MS. ROWLEY: We could. Do you have

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Page 7

1 MS. ROWLEY: Okay.

2 CONTINUING EXAMINATION BY MS. ROWLEY:

3 Q. Mr. Whitney, did you used to work at

4 Fletcher's Paint Works in Milford, New Hampshire?

5 A. Yes.

6 Q. When was that?

7 A. Pardon?

8 Q. When was that?

9 A. I don't remember the exact years, but I

10 know I was there when President Kennedy was shot,

11 which was '63, I believe.

12 Q. And about how long did you work there?

13 A. Seven years, I think.

14 Q. What specific jobs did you do at

15 Fletcher's?

16 A. Run the forklift, I supplied all the

17 materials that came in, unloaded all the trucks and

18 that, made paint.

19 Q. What kind of materials did you unload

20 from trucks?

21 A. Chlorinated biphenyls, Whiting, Georgia

22 Clay, and then I used to drum up resins and that into

23 drums and waste, whatever, whatever came into the

Page 8

1 plant.

2 Q. Are you familiar with the term pyranol?

3 A. Yeah.

4 Q. And is pyranol the same thing as

5 chlorinated biphenyls?

6 A. I believe so, yeah.

7 Q. SO, one of yourjobs was unloading

8 pyranol or scrap pyranol offthe trucks?

9 A. Yes.

10 Q. Where did this pyranol come from?

11 A. GE, and I think it was -- I can't think

12 ofthe other one's name now, but there was another

13 company, too, that was mixed in there.

14 Q. Where did you typically unload a truck

15 ofpyranol when it came in?

16 A. To begin with, it was at the plant, and

1 7 then after we got more over there than we could

18 handle in that one spot, they put them over on

19 Cottage Street.

20 Q. When Mr. Fletcher first started to

21 receive the pyranol from GE, what were his plans?

22 What was he planning to do with it?

2 3 A. I don't know. He never let me in on

Page 9

1 it. They said that they'd try to find a buyer for

2 it, and I guess they did.

3 Q. Do you know how he found a buyer?

4 A. No. All I know is that all of a sudden

5 we were getting some ready to go.

6 Q. Do you know whether Mr. Fletcher ever

7 advertised the pyranol in any chemical journals?

8 A. I don't know.

9 Q. Do you know whether he ever advertised

10 it anywhere?

11 A. Well, he just advertised his paint and,

12 apparently, some ofthat was in some ofthe paint.

13 Q. But you don't know whether he

14 specifically placed an ad just for pyranol?

15 A. No, I don't. No.

16 Q. When drums ofthis pyranol would arrive

17 from GE and you unloaded drums of it from the truck,

18 how would you describe the condition ofthose drums?

19 A. Most of them were pretty good, because

20 they--

21 Q.

22 A.

23 Q.

3 (Pages 6 to 9)

FPWIT009741

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 3 of 27
Page 10

MS. ROWLEY: I think he said "leaking,"

so I'll use that term.

THE WITNESS: Well, we'd usually put it

in another drum, that's all.

A. I don't know, but there used to be a

guy that would come around and picked up all the

drums, the drums that we couldn't use.

Q. When you were putting the pyranol from

the bad drum into a clean one or a good one, do you

know whether there were any spills that occurred when

that happened?

MR. COWAN: Objection. I'm going to

object to the reference of "bad drum." I'm not

really sure that's there's been any foundation for a

"bad drum."

Q. When was that?

A. I don't know what the dates are on

that. That's 40,50 years ago.

Q. Right. But at some point you would

take drums over to another location, Cottage Street?

A. Yeah, yeah, when we got more than we

could handle at the main plant.

Q. And there you might store them stacked

on their side?

A. Yeah, they were stacked on their side.

Q. Okay. Did drums ever leak while they

were stored--

A. Occasionally. Occasionally, yeah.

Q. Okay. Did you or other employees at

Fletcher's ever test the contents of drums to measure

the specific gravity ofthe pyranol?

A. Yeah. We used to check it every load

that came in.

1 shape?

2 A. Once in a while, you'd find one that

3 was leaking or something but not very often.

4 Q. What would happen if a drum came in and

5 it was in bad shape?

6 A. We'd put it in a good drum.

7 Q. And what would happen with that old

8 drum?

9

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Page 11

1 CONTINUING EXAMINATION BY MS. ROWLEY:

2 Q. And did any ofthe pyranol spill while

3 you were transferring it from the leaking drum to the

4 new drum?

5 A. Not as a rule. Once in a while, you

6 might have an accident.

7 Q. When you were unloading the drums of

8 pyranol from a truck, did you come across any drums

9 that had loose or missing bungs?

10 A. Loose ones but not missing.

11 Q. Were there ever any gaskets that were

12 loose or missing?

13 A. Sometimes, yeah.

14 Q. Did this result in leaks or spills?

15 Did that result in leaks or spills?

16 A. Yeah. Usually, what we did is put new

17 gaskets on them and tighten them up.

18 Q. Did you ever spill pyranol on

19 yourself--

20 A. Yes.

21 Q. -- when you were unloading the trucks?

22 How often did that happen?

23 A. Every time we worked on it.

Page 12

1 Q. Were there other people helping you

2 unload the trucks?

3 A. Sometimes. Sometimes I'd unload it by

4 myself.

5 Q. And would they also spill the pyranol

6 on themselves?

7 A. Pardon?

8 Q. Would they also spill pyranol on

9 themselves?

10 A. Yeah.

11 Q. When you unloaded the drums from the

12 truck, where did you put them, or where did you store

13 them?

14 A. Well, to begin with, we'd just stand

15 them up and check them out, and whoever bought it,

16 we'd load it back on trucks for them.

1 7 Q. In between the time when you unloaded

18 the truck and checked them out and the time when

19 someone came to pick them up after they bought them,

20 how were they stored?

21 A. How were they what?

22 Q. How were the drums stored during that

23 intermediate time period?

Page 13

1 A. Usually standing right up.

2 Q. Did you ever store the drums laying on

3 their side?

4 A. Not until we went over to Cottage

5 Street.

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4 (Pages 10 to 13)

FPWIT009742

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 4 of 27
Page 14 Page 16

1 Q. Every drum? 1 process, did spills ofpyranol ever happen?

2 A. Yeah. 2 A. Did we spillit?

3 Q. Why did you do this? 3 Q. Yeah.

4 A. Pardon? 4 A. Not as a rule. Once in a while you

5 Q. Why did you do this? 5 might get a little bit of a spill but nothing -- no

6 A. We did it in the yard, and it had to be 6 large amounts.

7 a specific gravity in order for the customer to take 7 Q. Okay. Did you ever have to treat the

8 it. 8 pyranol in any other way, not just blending it, but

9 Q. The customer requested a specific 9 were there other things you had to do?

10 number? This was at the request ofthe customer? 10 A. Yeah. We had to run it through

11 A. Yeah, yeah. 11 filters. We started getting black specks in it, so

12 Q. SO, who performed this testing? 12 we would run it through I believe it was the Cuno

13 A. Usually Clyde Bishop. 13 filter.

14 Q. Anyone else? 14 Q. And other than black specks, were there

15 A. I did a few ofthem, but usually I was 15 any other things that you had to filter out ofthe

16 too busy doing other stuffto be checking that. 16 pyranol?

17 Q. If Clyde Bishop tested a drum, would 17 A. No. Not as a rule, no.

18 you have had any reason to see the contents ofthat 18 Q. How long did you have to filter the

19 drum? 19 pyranol before the black specks were removed?

20 A. To what? 20 A. How long?

21 Q. To see the contents ofthat drum. 21 Q. Yes. You mentioned three or four days

22 A. No. When you took the sample out, that 22 for blending. Was it about the same for filtering?

23 was it. 23 A. After it was all blended, and usually

Page 15 Page 17

1 Q. But ifthe sample met the correct 1 they would run -- the filter was before it was

2 specifications, what would happen to the drum after 2 blended, usually.

3 that? 3 Q. When you finished filtering and

4 A. Well, ifit meets specifications, it 4 blending the pyranol, did you put it back into the

5 went to one section. Ifit didn't meet, we'd move it 5 same drums that it came out of?

6 over to another and usually blend them together. 6 A. No.

7 Q. SO, if a drum was tested by Clyde 7 Q. What did you do with the old drums that

8 Bishop and it met the specifications, would you have 8 it came out of?

9 had any reason along the way to see the contents of 9 A. They used to stack them up, and there

10 that drum? 10 was a guy that used to come up and get them, get all

11 A. No. 11 the dirty drums and clean them, and then he'd sell

12 Q. SO, what did you do with the pyranol 12 them back to us.

13 that was too heavy or too light? 13 Q. Did you rinse the old drums out before

14 A. After we got enough ofthem, we blended 14 you gave them to this company?

15 them together. 15 MR. COWAN: Laura, I'm going to object.

16 Q. How did you do that? 16 The questions are leading, including that one, so I'm

17 A. By dumping it into a tank and then 17 going to object to the form ofthe question.

18 pumping it up into a bigger tank and recirculating 18 THE WITNESS: I didn't hear all of

19 it. 19 that.

20 Q. How long did you have to recirculate 20 CONTINUING EXAMINATION BY MS. ROWLEY

21 it? 21 Q. Did you rinse the drum out before

22 A. Three or four days usually. 22 giving it to this company?

23 Q. While you were doing this blending 23 MR. COWAN: Again, I'm going to object.

5 (Pages 14 to 17)

FPWIT009743

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 5 of 27
Q. Did you ever receive any special

instructions from General Electric concerning

handling the pyranol?

A. No.

Q. Did a driver for Fletcher's ever come

back from General Electric with any paperwork

regarding safety guidelines for handling pyranol?

Page 18

1 Leading question.

2 THE WITNESS: Not that I know of.

3 CONTINUING EXAMINATION BY MS. ROWLEY:

4 Q. After you were fInished fIltering a

5 batch ofscrap pyranol, what did you do with the

6 material that was fIltered out, the black specks?

7 A. It was put in a barrel.

8 Q. Do you know what became ofit after

9 that?

lOA. No. Two or three barrels that had that

11 in it was sitting there when I left.

12 Q. Where was it sitting?

13 A. Right in the yard.

14 Q. At which location?

15 A. Down by where we had the pump at the

16 time.

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18

19

20

21

22

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Page 19

1 A. Not that I see.

2 Q. Did anyone who worked at Fletcher's

3 ever give you any special instructions about handling

4 pyranol?

5 A. I didn't hear that.

6 Q. Did anyone who worked at Fletcher's

7 ever give you any special instructions about handling

8 the pyranol?

9 A. No. They told us it wouldn't hurt us.

10 Q. Who told you that?

11 A. It would have been the boss at the

12 time, which was Earl Wesson.

13 Q. SO, did anyone from either General

14 Electric or Fletcher's tell you to wear protective

15 gear, such as gloves or a mask while you were working

16 with it?

17 A. No.

18 Q. Did anyone ever tell you to avoid

19 inhaling the pyranol?

20 A. To what?

21 Q. To avoid inhaling the pyranol.

22 A. No.

23 Q. Did you ever see any warning labels on

Page 20

1 the drums that related to pyranol?

2 A. No. Usually, there was just the name

3 ofthe plant.

4 MR. COWAN: I'm going to object. I

5 understand this is a deposition, but I also

6 understand that the posture ofthis case at this time

7 is limited for purposes ofthe useful product

8 defense. I'm not really sure ifthis line of

9 questioning about the health hazards, if you will, of

10 PCB's in pyranol have anything to do with the posture

11 ofthe case at this point, and I'm going to object to

12 that line of questioning.

13 MS. FISKE: Are you instructing him not

14 to answer?

15 MR. COWAN: Oh, no, I can't instruct

16 him not to answer. I'm objecting to the line of

1 7 questioning.

18 MS. FISKE: Okay.

19 MS. ROWLEY: Okay, sure.

20 CONTINUING EXAMINATION BY MS. ROWLEY

21 Q. When you were working with the pyranol,

22 you mentioned earlier that you might spill some on

23 yourself while you were unloading the trucks. Were

Page 21

1 there other occasions when you would spill the

2 pyranol on yourself?

3 A. Well, when you're filtering it, you

4 might get a little on you.

5 Q. How often would that happen?

6 A. Almost every load.

7 Q. What would happen when you spilled

8 pyranol on yourself?

9 A. You'd probably keep right on working,

10 you know.

11 Q. Did you work with other chemicals at

12 Fletcher's?

13 A. Yeah.

14 Q. Were any ofthose chemicals considered

15 hazardous?

16 A. Yeah. Some ofthem were, yeah.

1 7 Q. Do you remember which ones?

18 A. The ammonia. That was industrial

19 grade. They used to use that in the wax, floor wax,

20 and there was asbestos. There was quite a bit of

2 1 asbestos when they made the roof coating.

22 Q. When you worked with those chemicals,

23 did you take any safety precautions?

6 (Pages 18 to 21)

FPWIT009744

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 6 of 27
(Whitney Exhibit No. 1

marked for identification)

CONTINUING EXAMINATION BY MS. ROWLEY:

Q. Have you had a chance to review this?

A. Yeah, I think I did once before

somewhere along the line.

Q. Okay. This document is entitled

"Declaration ofRichard A. Whitney."

A. Yes.

Q. And do you recognize it?

A. Yeah.

Q. Is that your signature on the second

page?

A. Yeah.

Q. Who contacted you regarding making this

Page 22

1 A. No, they didn't have any.

2 Q. Did anyone tell you they were unsafe?

3 A. Oh, yeah, finally, after we'd worked on

4 them for a number ofyears.

5 Q. I'd like to show you a copy ofthis.

6 It's a Declaration signed by you in January.

7 MS. ROWLEY: I'd like to mark this as

8 Exhibit 1.

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Page 23

1 Declaration?

2 A. I can't remember all the names ofthe

3 people. I'm lucky ifI can remember my own some

4 days.

5 Q. Do you remember when someone contacte(

6 you?

7 A. A couple, three years ago, anyways, at

8 least. I can't remember the dates.

9 Q. Just regarding this specific

10 Declaration that you made in January, 2007, do you

11 remember when somebody first called you about this

12 A. Do I remember what?

13 Q. When somebody first contacted you about

14 this Declaration that you signed in January.

15 A. I don't remember when it was. I can't

16 remember back.

17 Q. Do you recall somebody by the name of

18 Joe Nassif?

19 A. What was his last name?

20 Q. Nassif, N-A-S-S-I-F.

21 A. No, I don't think so. I might

22 recognize him if! see him.

23 Q. Do you recall someone named Patrick

Page 24

1 Flax?

2 A. Yeah. I would say that name rings a

3 bell, but I can't think ofjust --

4 Q. Was it Mr. Flax who called you or spoke

5 with you about making this Declaration?

6 A. I don't know. I can't remember all the

7 different people.

8 Q. Did you meet with somebody in person

9 about making this Declaration?

10 A. Yeah, a couple oftimes I have.

11 Q. Did they come to your house?

12 A. No. I met him down at the restaurant,

13 I think. I met him down at Gary's Harvest. It's a

14 little local restaurant about a mile from my house.

15 Q. And what did you talk about with this

16 person?

17 A. Just the materials we used. •

18 Q. Was the meeting at the restaurant --

19 was that the only meeting you had before signing thi

20 Declaration?

21 A. No. I think we had -- it seems as

22 though there was one back several years ago, and tha

23 was in Boston, I think.

Page 25

1 Q. And I'm just concerned with the last

2 few months. This was signed in January, 2007, so

3 anywhere around that time period. Could you, please,

4 look at paragraph 8 ofthis? Could you look at

5 paragraph number 8 ofthis Declaration?

6 A. (Witness reading document). Mm-hmm.

7 Q. Have you had a chance to read it?

8 A. Yeah, I have.

9 Q. Were there any drums ofpyranol stored

10 anywhere at Fletcher's when you stopped working for

11 him?

12 A. Was there any what?

13 Q. Were there any drums ofpyranol stored

14 on the property ofMr. Fletcher at the time that you

15 stopped working for him?

16 A. Yeah.

17 Q. After you stopped working for Mr.

18 Fletcher's, did you ever drive past his business?

19 A. Yeah.

20 Q. Did you notice whether there were drums

2 1 still stored on his property?

22 A. I think they were over on Cottage

23 Street then, but other than that, I didn't pay too

7 (Pages 22 to 25)

FPWIT009745

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 7 of 27
Page 26 Page 28

more.

Q. Were any ofthose drums drums of

pyranol?

A. Pardon?

Q. Did any ofthose drums contain pyranol?

A. Yeah.

Q. How many?

A. More than half.

Q. Do you remember where on Mr. Fletcher's

property those drums were?

A. Yeah, pretty much so.

1 much attention to it.

2 Q. Do you remember about how many drums

3 were on the property when you stopped working for Mr.

4 Fletcher?

5 MR. COWAN: I'm going to object to

6 "drums." Drums of anything?

7 MS. ROWLEY: Yes, drums of anything.

8 THE WITNESS: I don't have the foggiest

9 idea. A lot ofthem, I know that.

10 CONTINUING EXAMINATION BY MS. ROWLEY:

11 Q. Okay. You couldn't estimate?

12 A. A couple ofthousand, anyways, ifnot

13

14

15

16

17

18

19

20

21

22

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1 A. Mm-hmm.

2 Q. And you had mentioned that some might

3 be leaking.

4 A. Yeah. Sometimes, yeah.

5 Q. Do you know why they were leaking?

6 A. Gaskets would be gone. Gaskets were

7 either missing or leaking.

8 Q. Were the drums ever leaking because

9 they were rusty?

10 A. No.

11 Q. How often would a gasket be leaking?

12 A. Oh, you might get one or two a load, or

13 sometimes you might have the whole load leaking, you

14 know, but other times they'd come in and they'd be

15 perfect, there'd be nothing wrong with them. It just

16 depended.

17 Q. And were they ever leaking because a

18 bung was loose or missing?

19 A. Occasionally, yeah.

20 Q. And would that also vary, depending on

21 the load?

22 A. Yeah, pretty much so.

23 Q. Did you ever get a load where, you

Page 27 Page 29

EXAMINATION

BY MR. COWAN:

Q. Good morning, Mr. Whitney.

A. Good morning.

Q. We met earlier. Again, my name is Mo

Cowan, and I represent the General Electric Company.

A. Yes.

Q. I have a few questions to ask you today

I have.

A. Pardon?

Q. Did you ever get a load ofpyranol from

GE where the bungs were loose on many ofthe drums?

A. It wouldn't be all ofthem. Once in a

while you would get one or two that would be, or even

three that would either be loose or dripping, you

know, and then we'd do what we could to fix them.

Q. Were you able to fix the bungs or loose

gaskets all the time?

A. Yeah. Ifwe didn't, then we dumped it

in the tank and blended it, you know.

MS. ROWLEY: Okay. I think that's all

1 know, the bungs were loose or missing on a lot ofthe

2 drums?

3

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7

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Where were they?

The last ofit was over on Cottage

Q. Were there any on Mill Street?

A. Mill Street, Cottage Street. They come

right together there.

Q. Oh, okay. That's the same location?

A. Yeah.

Q. Were there any on Elm Street?

A. There was for a while, but I don't know

when they took them out ofthere completely.

Q. Okay. Did you notice whether the

amount of drums on either Mill Street or Elm Street

increased after you stopped working for Mr. Fletcher?

A. I don't know. I didn't pay that much

attention to it.

MS. ROWLEY: Could we just take a short

break for a moment?

(Recess taken from 10:11 to 10:12 a.m.)

CONTINUING EXAMINATION BY MS. ROWLEY:

Q. Mr. Whitney, I asked you about the

condition ofthe drums that arrived from General

Electric.

1 Q.

2 A.

3 Street.

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9

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12

13

14

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8 (Pages 26 to 29)

FPWIT009746

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 8 of 27
Page 30 Page 32

1 following up on Ms. Rowley's questions. I'll offer 1 A. You mean, are you talking about the

2 you the same instructions she did. Should I ask a 2 pyranol?

3 question that you don't understand or you can't hear 3 Q. Yes.

4 me, please just let me know, and I will do my best to 4 A. Okay. They would bring it in with

5 either repeat it or rephrase it in a manner that 5 their truck, to begin with. At first, it was a small

6 makes sense to you. 6 truck, and then they went and graduated to a larger

7 A. All right. 7 truck, and then they started having someone else come

8 Q. Just a couple ofpreliminary questions. 8 in with tractor-trailers with loads ofit.

9 How did you arrive at today's proceedings? 9 Q. And you said "their trucks." Whose

10 A. He brought me up (indicating). 10 truck are referring to, Fletcher's?

11 Q. And by "he," you're pointing to Mr. 11 A. Yeah.

12 Israel behind me? 12 Q. And what do you understand is pyranol?

13 A. Right. 13 Strike that. You earlier said the chlorinated

14 Q. And did you happen to have a 14 biphenyls are the same as pyranol; is that your

15 conversation on the way here? 15 understanding?

16 A. Pardon? 16 A. That's what I understood, yeah.

17 Q. Did you happen to chat on the way here 17 Q. And you mentioned that this material

18 in the car? 18 came from General Electric, correct?

19 A. Oh, yeah. 19 A. Yeah, some of it.

20 Q. Small talk? 20 Q. Did some come from other places?

21 A. Yeah. 21 A. Yeah. I'm trying to think ofthe name

22 Q. Did you talk about today's proceedings 22 of the place now.

23 at all? 23 Q. Does the name Sprague Electric ring a

Page 31 Page 33

1 A. No, not really. No. 1 bell?

2 Q. Okay. Did you discuss your deposition 2 A. Yeah, that's where they come from.

3 or the testimony you expected to give today? 3 Q. Do you recall a company by the name of

4 A. No. 4 Aerovox?

5 Q. Did you discuss this case at all? And 5 A. No.

6 by "this case," I mean the United States versus 6 Q. That's A-e-r-o-v-o-x, I believe, ifmy

7 General Electric. 7 spelling's still up to par.

8 A. No. 8 A. No, I don't recall that.

9 Q. And did you discuss your employment at 9 Q. Okay. And did you unload material that

10 Fletcher's Paint Works or Milford Paint Works? 10 was shipped to Fletcher's from Sprague Electric?

11 A. I think we mentioned it, but I don't 11 A. Yeah.

12 think there was any -- you know, just mentioned it, 12 Q. And how was that material shipped from

13 that's about it. 13 Sprague Electric?

14 Q. Just mentioned that you worked there? 14 A. I believe they went down with our

15 A. Yes. 15 truck, well, with the company truck, and got it, but

16 Q. In response to a question Ms. Rowley 16 I can't remember for sure.

17 asked you earlier in the deposition, you said that 17 Q. Was this material also in barrels?

18 you unloaded materials from the trucks brought to 18 A. Yeah.

19 Fletcher's? 19 Q. And what was inside the barrels, if you

20 A. Yup. 20 know?

21 Q. And what were in those drums? Excuse 21 A. Chlorinated bipheny1.

22 me, strike that. And what was on the trucks, or how 22 Q. The same sort ofmaterial from General

23 did the material arrive at Fletcher's? 23 Electric?

9 (Pages 30 to 33)

FPWIT009747

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 9 of 27
mean?

A. Well, they weren't leaking any more

than any ofthe others were, the same.

Q. Well, how often were the Sprague

coatings.

Q. And did you have an understanding of

how Webtex was going to use the material purchased

from Fletcher, the chlorinated biphenyls?

A. Yeah. I guess they were going to make

a -- some of it they made glues out of.

Q. They used it in their products?

Page 34

1 A. Yeah.

2 Q. And where was this material from

3 Sprague Electric stored at Fletcher's?

4 A. Usually, everything was marked with a

5 number on the barrel, and we'd store it with the

6 stufffrom GE.

7 Q. It was all stored together?

8 A. Yeah. Maybe one row might be Sprague

9 Electric, and maybe the next row, you know.

10 Q. And you worked at Fletcher's for about

11 six or seven years, correct?

12 A. Yeah, for about seven years.

13 Q. In your duties and responsibilities at

14 Fletcher's, did you have much daily interaction with

15 Mr. Fletcher, the owner ofthe company?

16 A. Yeah. I talked to him a lot, yeah.

1 7 Q. And when you talked with him, did he

18 discuss with you his business plans or his business

19 strategies?

20 A. No, not really.

21 Q. SO, when you were fIrst asked to unload

22 the chlorinated biphenyls, had you had a conversatior

23 with Mr. Fletcher about what he intended to do with

Page 35

1 that material?

2 A. No.

3 Q. At any point, did you come to

4 understand how the material was going to be used by

5 Mr. Fletcher?

6 A. No. To begin with, he never said

7 anything about what he was going to do. I knew he

8 was going to try to sell it, but to who or what for,

9 I don't know.

10 Q. Did you ever learn whether he sold it,

11 and, ifso, to whom?

12 A. Yeah. I know he sold some to Webtex.

13 Q. Webtex?

14 A. Yeah.

15 Q. And who was Webtex, ifyou recall?

16 A. It was a company that used to make roof

17

18

19

20

21

22

23

Page 36

1 A. Yeah, they used it in their products.

2 Q. What kind ofproducts were made at

3 Fletcher's Paint Works? I realize that may be

4 something of an obvious question.

5 A. They made traffIc paint, roof coatings,

6 house paint, interior paint, varnishes, shellacs.

7 Q. Do you know if any ofthe material Mr.

8 Fletcher purchased from General Electric or Sprague

9 Electric was ever used in any ofthe products that

10 Mr. Fletcher himselfmade or his company made?

11 A. Yeah.

12 Q. And what products were those?

13 A. I think it was a roof coating.

14 Q. Roof coating. Let's talk about the

15 drums that you recall unloading from Sprague

16 Electric. Do you recall the condition ofthose

17 drums?

18 A. Yeah, they were pretty decent.

19 Q. And when you say "decent," what do you

20

21

22

23

Page 37

1 Electric drums leaking, that you recall?

2 A. Well, you might get one or two out of a

3 load, or maybe three, but, never -- to begin with, we

4 didn't get as much from Sprague Electric as we did

5 fromGE.

6 Q. But when they came to Fletcher's, they

7 were all stored together?

8 A. Basically, yeah.

9 Q. Did you ever travel to any General

10 Electric facility to collect the pyranol?

11 A. Did I?

12 Q. Did you?

13 A. No. No, I never did.

14 Q. SO, you never saw the drums as they

15 were stored or maintained at GE before they were

16 transported to Fletchers?

17 A. No.

18 Q. Is that correct?

19 A. That's right.

20 Q. SO, what is your recollection ofthe

21 condition of General Electric's drums when they

22 arrived at Fletcher's?

2 3 A. Most ofthem were in pretty good shape.

10 (Pages 34 to 37)

FPWIT009748

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 10 of 27
Page 38

1 You'd have a few leakers almost -- you're bound to

2 get a leaker in a load, you know what I mean?

3 Gaskets are loose or something like that.

4 Q. Do you know whether those gaskets were

5 loosened or became loose en route to Fletcher's or

6 before they left General Electric?

7 A. No, I don't. I would assume that if

8 Wally had seen the leak, he probably would have

9 tightened the bung up or whatever, you know, to stop

10 the leak, but as a general rule they weren't too bad.

11 Q. And by "Wally," you mean who, sir?

12 A. Pardon?

13 Q. You referred to a "Wally." Who was

14 "Wally"?

15 A. Wally Hooper.

16 Q. Was that a co-worker at Fletcher's?

17 A. He was a truck driver and paint.

18 Q. I'm sorry. And paint?

19 A. He made paint, too, for him.

20 Q. Did Mr. Hooper drive the trucks to

2 1 General Electric --

22 A. Yeah.

23 Q. -- to transport the material?

Page 40

1 and half, you base that on what, your personal

2 observation?

3 A. Yeah.

4 Q. But you observed these drums once they

5 were at Fletcher's; is that correct?

6 A. Yeah.

7 Q. I'm going to ask you to look at Exhibit

8 1, which is the only exhibit we have thus far, is

9 your Declaration, Mr. Whitney. Now, again, this is

10 your signature on page 2; is that correct?

11 A. Yeah.

12 Q. And you read this before you signed it?

13 A. Mm-hmm.

14 Q. And you signed it, believing that all

15 ofthe statements therein were true?

16 A. Yes.

17 Q. Paragraph 6 ofthe Declaration states

18 that you had no recollection that the drums picked up

19 from General Electric were in poor condition. Is

20 that true?

21 A. Yeah. As a general rule, they were

22 pretty decent.

23 Q. Paragraph 8 ofthe Declaration reads,

Page 39

1 A. Yeah. 1

2 Q. And did I understand your testimony 2

3 just a few seconds ago, you have an understanding 3

4 that had Mr. Hooper seen loose -- or something wrong 4

5 with the drums he would have dealt with it before it 5

6 left General Electric? 6

7 A. Oh, yeah, because ifhe'd seen 7

8 something coming on the truck that was leaking, he's 8

9 supposed to have them set aside or repair it, ifhe 9

10 could. The heat and the cold has a lot to do with 1 0

11 whether or not a drum leaks. 11

12 Q. The heat and the cold? 12

13 A. Right. When it's cold it contracts, 13

14 and when the sun shines down on it, it will expand. 14

15 Q. Would you have any reason to know 15

16 whether any leak that you may have observed resulted 16

1 7 from environmental or weather conditions or from some 1 7

18 other cause? 18

19 A. Well, some ofit, I suppose, probably 19

20 halfwas the environment and the other half was 2 0

21 because they were just leakers and had to be fixed, 2 1

22 you know. 22

23 Q. And you base that separation, the half 23

Page 41

"There were not any cWorinated biphenyls at

Fletcher's Milford Paint Works, including those

picked up at GE, that Fletcher's Milford Paint Works

couldn't either sell to Webtex or use." Is that

true, Mr. Whitney?

A. Yeah. I would think so, yeah. That's

what we were told.

Q. SO, you have an understanding that

whatever General Electric or whatever Fletcher

purchased from General Electric, Fletcher either used

it or sold it to someone else for someone else's use?

A. Yes.

Q. In response to some questions from Ms.

Rowley, you talked about blending --

A. Yeah.

Q. -- ofsome ofthe material.

A. Right.

Q. Do you recall when the blending

process, as you recall it, began to occur at

Fletcher's? Do you remember the time period?

A. No, not really. I would think probably

six months to a year after we first started getting

it.

11 (Pages 38 to 41)

FPWIT009749

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 11 of 27
Page 42

1 Q. Was it your testimony earlier that the 1

2 blending ofthe material began to happen because it 2

3 was a request ofthe customer? 3

4 A. That, and it had to be checked out as I 4

5 far as the specific gravity, too. 5

6 Q. Specific gravity? 6

7 A ~~ 7

8 Q. And the process, the blending was 8

9 designed to -- 9

lOA Right, to make it more even for them -- 10

11 easier for them to use. 11

12 Q. And that made it more marketable -- 12

13 A Right. 13

14 Q. -- for sale to Webtex and others? 14

15 A Right. 15

16 MS. ROWLEY: Object to the fonn ofthat 16

1 7 question. 1 7

18 CONTINUING EXAMINATION BY MR. COWAN 18

19 Q. Do you know why the material was 19

20 blended, to make it heavier or to address the 2 0

21 viscosity? What was the purpose ofthat? 21

22 A Well, it was easier for them to use. 22

23 Q. And by "them," you mean who? 23

Page 43

Page 44

recall when Mr. Fletcher or Fletcher's Paint Works

first began to purchase pyranol from General

Electric?

A. I don't know. I think I had worked

there for more than a year, but I couldn't say exact

dates. I can't remember things like that.

Q. It was a long time ago.

A. Yeah, when all my kids were little.

Q. They're not so much anymore, I imagine.

A. The youngest one's 48.

Q. In response to a question Ms. Rowley

asked earlier in her questioning, you indicated that

there were approximately 2,000 drums left at the

Fletcher's Paint Work site after you left.

A Yeah. That was everything, though.

Q. That was everything?

A. Yeah.

Q. Meaning what, when you say

"everything"?

A. Well, the resins for paints. There was

all kinds ofresins and kettled oils and then they

had tanks for -- there were two tanks inside the shop

that they used to store traffic resin in there.

Page 45

1 A Webtex.

2 Q. And do you know ifthey could use it

3 without that blending process?

4 A Yeah, but it's like the weight per

5 gallon is what -- they wanted it all the same. They

6 didn't want, say, 12 pounds per gallon in this barrel

7 and then dump another barrel in that's only 10

8 pounds. So, we suggested blending it, and they said

9 "Try it and see what happens." So, we tried it and

1 0 it came out real good.

11 Q. SO, they had been purchasing it prior

12 to the blending process, and then, through

13 discussions with Mr. Fletcher or his employees and

14 Webtex, a decision was made to blend it?

15 A Right.

16 Q. To make it consistent for Webtex's --

17 A Yeah.

18 Q. -- business?

19 A Yeah.

20 Q. But Webtex had been buying it

21 beforehand; is that correct?

22 A Yes.

23 Q. Mr. Whitney, do you know or do you

1 Q. SO, these 2,000 barrels contained a

2 variety or any number ofmaterials?

3 A. 1v1m-hmm.

4 Q. And do you recall when was the last

5 time you saw these approximately 2,000 barrels?

6 A. It was after I got through.

7 Q. How soon after you got through or

8 completed your employment with Fletcher's?

9 A. Within weeks.

10 Q. Within weeks?

11 A Yeah.

12 Q. And you said that some ofthe barrels

13 contained resins and other materials used in

14 Fletcher's's manufacturing process.

15 A. Right.

16 Q. And do you know ifsome ofthe barrels

1 7 contained pyranol or chlorinated biphenyls?

18 A. Yeah.

19 Q. And how do you know that, sir?

20 A. How do I know that?

21 Q. Yes.

22 A. Because I know pyranol when I see it.

23 Q. I'm sure you do, but this material was

12 (Pages 42 to 45)

FPWIT009750

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 12 of 27
Page 46 Page 48

1 drummed up, is that correct, meaning it was in drums? 1 on the load on the truck.

2 A. Yeah. Well, they continued on the 2 Q. SO, the 1,000 barrels is just your best

3 piles that we had started, because we started putting 3 guess?

4 them over on Cottage Street. 4 A. I would think, between the two places,

5 Q. You said "they" continued? 5 I would think there was close to 2,000.

6 A. Yeah. After I got through, somebody 6 Q. Closer to 1,000?

7 had to do it. 7 A. Close to 2,000, yeah.

8 Q. Meaning, someone who was working for 8 Q. Barrels total?

9 Fletcher's? 9 A. Yeah.

10 A. Yeah. 10 Q. Full ofvarious things?

11 Q. You weren't working there at the time? 11 A. Yeah.

12 A. No. 12 Q. But you're not sure among those 2,000

13 Q. SO, am I correct that your estimate of 13 how many actually contained chlorinated biphenyls 0

14 how many barrels of chlorinated biphenyls were in 14 pyranol?

15 that 2,000 is based on the fact that you saw drums 15 A. Well, no, not exactly.

16 being stored in a particular area? 16 Q. We talked about Webtex a little bit,

17 A. Yeah, when I was there, a lot ofit, and Webtex purchased pyranol and chlorinated "

17

18 because they used to bring them in on 18 biphenyls from Mr. Fletcher, correct?

19 tractor-trailers. Sometimes they would be too high 19 A. Mm-hmm.

20 on the trailer, and you'd have to take them offwith 20 Q. Do you know of any other companies who ,

21 a forklift. 21 purchased that material from Mr. Fletcher?

22 Q. But is it fair to say that you don't 22 A. No.

23 know whether, after the time you left the company, 23 Q. Did you ever talk to anyone at Webtex

Page 47 Page 49

1 whether more barrels of chlorinated biphenyls from 1 about how they were using the pyranol they were ,

2 General Electric, Sprague Electric or anyone else 2 purchasing from Fletcher's?

3 were being received at Fletcher's and stored at 3 A. The only time anyone said anything to

4 Fletcher's? Do you know that? 4 me about the pyranol was when they were having black

5 A. Yeah. 5 specks, and, so, we figured ifwe filtered it that

6 Q. I'm talking about the time after you 6 would get rid ofthe black specks, and we did. So,

7 left. 7 we filtered it and blended it all in one operation.

8 A. Oh, at least within a few weeks it was 8 Q. And that was at the request ofWebtex?

9 still coming in. Of course, I went to work for 9 A. Yeah.

10 another company. 10 Q. Did you ever talk to anyone at General

11 Q. How many barrels do you recall or do 11 Electric about the pyranol?

12 you know, actually do you know contained chlorinatec 12 A. Pardon?

13 biphenyls among those barrels you saw after the time 13 Q. I'm sorry. Did you ever talk to anyone

14 you left? 14 at General Electric about the pyranol?

15 A. I would say about half ofthem were, 15 A. No.

16 because there was still a lot ofbarrels ofpaint and 16 Q. Just a couple ofmore questions, Mr.

17 resin for making paint, kettled oils, boiled linseed 17 Whitney. I believe you may have testified that you

18 oil, all that sort ofstuff there. 18 have an understanding -- well, strike that. Do you

19 Q. Could there have been as few as 200 19 know whether or not after the time you left

20 barrels that contained chlorinated biphenyls? 20 Fletcher's whether Fletcher's Milford Paint Works

21 A. I think there was more than that. 21 continued to receive chlorinated biphenyls from

22 Q. Could there have been 500? 22 anyone or from any company?

23 A. Well, I can't remember now how many was 23 A. I don't know how much they -- I would

'13 (Pages 46 to 49)

FPWIT009751

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 13 of 27
Page 50 Page 52

1 assume some, because the pile got larger.

2 Q. And your assumption is based on the

3 fact, simply, that you saw the pile where you used to

4 store or in your responsibilities you stored pyranol

5 at Fletcher's continue to grow?

6 A. Right.

7 Q. SO, you're assuming any other barrels

8 in that area contained pyranol; is that fair to say?

9 A. Yeah.

10 Q. We talked about the blending. Do you

11 know whether Fletcher's's Milford Paint Works used

12 the pyranol received from General Electric or anyone

13 else in the form in which it was received, that is to

14 say, without blending in its materials?

15 A. To begin with they did.

16 Q. Okay.

1 7 A. But then they found out it had the

18 specks in it, they wanted to get rid ofit, the

19 specks.

20 Q. But before that time they had been

21 using it as is?

22 A. Yeah.

23 Q. Did you ever discuss the blending

1 A. Probably not.

2 Q. And what about if you didn't filter it

3 to get rid ofthe black specks?

4 A. Ifwe hadn't taken the black specks out

5 ofit, they couldn't use it, because it leaves little

6 specks in whatever they were making with it.

7 Q. Were you or Clyde Bishop or anyone else

8 at Fletcher's testing the drums that came in for the

9 specific gravity ofthe pyranol before Webtex made

10 that request?

11 A. Did we do what?

12 Q. I'll start over. You had testified

13 earlier that you started blending the pyranol --

14 A. Yeah.

15 Q. -- about a year or so after you started

1 6 working there.

17 A. Yeah.

18 Q. In that year before you started

19 blending the pyranol, were you testing drums for

2 0 specific gravity?

21 A. Yeah. Well, Clyde Bishop was then.

22 Q. Okay. Why was Mr. Bishop testing for

23 specific gravity, ifthere wasn't any need to blend

Page 51 Page 53

Q. You have no reason to believe that

anyone else did; is that fair to say?

A. No, I have no reason to believe that

they didn't or did.

Q. You just don't know?

A. Right.

Q. Okay. I think I'm done for now until

Ms. Rowley starts asking more questions.

MS. FISKE: We'll take a few minutes,

please.

(Recess taken from 11:00 to 11:10 a.m.)

EXAMINATION

BY MS. ROWLEY:

Q. I have a few follow-up questions after

Mr. Cowan asked you his questions. You talked about

the fact that you were blending and filtering the

pyranol because Webtex requested it. Do you know

whether Webtex would have purchased the pyranol if

you didn't blend it?

in them.

Q. And this was even before you were

blending the material your boss was interested in the

specific gravity?

A. Well, they were checking also to see

how much was in the drums. Sometimes they would fill

a drum right to the very top, and you can get 58, 59

gallons in a 55-gallon drum, because you have to --

you should leave a little dead air space.

Q. And other times, then, were drums not

full?

A. Other times the drums wouldn't be full,

and ifthey were over full, we'd take some out and

put it into a different drum.

Q. Why did you test for the specific

gravity, though?

A. Because we were asked to. Because my

boss told me to.

Q. Okay. But you could have just seen,

you know, whether a drum was full or over full or not

full just by opening it up and looking into it?

A. Right. They wanted specific gravities

1 it?

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

1 process you've described today with anyone at General

2 Electric?

3 A. I didn't. I don't know whether anyone

4 else did.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

14 (Pages 50 to 53)

FPWIT009752

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 14 of 27
Page 54

Q. For who? Who do you mean by "them"?

A. Webtex.

Q. SO, Webtex was interested in knowing

what the specific gravity was --

A. Yeah.

Q. -- when they purchased it?

A. It was easier for them ifwe blended it

for them.

Q. Okay. But even before you started

blending it, they wanted to know what the specific

gravity was?

A. Right.

Q. I understand. Could I ask you to look,

again, at the Declaration, Exhibit I?

A. Okay.

Q. And look specifically at paragraph 9,

which says, "Either Clyde Bishop, Earl Wesson or I

tested the specific gravity ofthe contents of every

drum of chlorinated biphenyls at Fletcher Milford

Paint Works..." It also says that" ... the quality

1 A. Yeah, yeah, they wanted it, because it

2 helped them to make their product, made it easier for

3 them.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Page 56

1 THE WITNESS: I can't remember now

2 exactly when they did, but they had taken two or

3 three loads, I think, and then they decided they had

4 the black specks in it and they wanted to get rid of

5 them, so we did.

6 CONTINUING EXAMINATION BY MS. ROWLEY:

7 Q. I'd like to look at paragraph 6 of your

8 Declaration, which says, "I have no recollection that

9 the drums picked up from GE were in poor condition."

1 0 I think Mr. Cowan also asked you about this

11 paragraph. Now, you stated that this is true, in

12 general, correct?

13 A. Mm-hmm.

14 Q. But earlier you also talked about the

15 fact that some of drums that were arriving from GE at

16 Fletcher's were leaking.

1 7 A. Yeah. Well, what happens is it may not

18 be leaking at all in New York, okay, and it's 30

19 degrees, and you come back down to Milford and it

20 might be 60 degrees, and the expansion ofthe product

21 would force it out through the gaskets.

22 Q. And sometimes there were missing

23 gaskets?

Page 55

1 ofthe chlorinated biphenyls picked up at GE was 1

2 generally the same and did not get worse throughout 2

3 my time at Fletcher's Milford Paint Works." 3

4 A. Mm-hmm. 4

5 Q. IfWebtex was buying the pyranol as is 5

6 before you started the blending and filtering and 6

7 then later they wouldn't take it unless you had 7

8 blended or filtered it -- 8

9 A. Ri~ 9

10 Q. -- did the quality somehow get worse? 10

11 MR. COWAN: Objection. 11

12 THE WITNESS: Well, one ofthe things 12

13 in manufacturing, if you can supply your customer 13

14 with a product that is the same in each and every 14

15 drum, okay, it saves them a lot ofwork and a lot of 15

16 time, and time is money in manufacturing. So, we 16

17 decided to blend it all together and have it all one 17

18 viscosity. 18

19 CONTINUING EXAMINATION BY MS. ROWLEY: 19

20 Q. When did Webtex start complaining about 20

21 the black specks? 21

22 MR. COWAN: Objection. I'mnotsure 22

23 there's any foundation of a complaint. 23

Page 57

A. Pardon?

Q. And sometimes there would be missing

gaskets, correct?

MR. COWAN: Objection.

THE WITNESS: Right.

CONTINUING EXAMINATION BY MS. ROWLEY

Q. And, in addition, you also testified

that once in a while there was a drum that was in

poor condition and you had to --

A. Yeah.

Q. -- pour the contents into a new drum.

A. Right.

Q. SO, this paragraph 6, would it be fair

to say that you meant in general?

A. Right.

Q. Okay. I'd like to look, again, at

paragraph 8. You've stated that either Mr. Fletcher

could use the chlorinated biphenyls or they were sold

to Webtex; however, you've also said that when you

stopped working at Mr. Fletcher's, there were about

2,000 drums left on the property and about maybe hal

ofthose contained pyranol; is that right?

A. Mmm-hmm.

15 (Pages 54 to 57)

FPWIT009753

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 15 of 27
Page 58

1 Q. SO, when you left Fletcher's, when you 1

2 stopped working for Mr. Fletcher, there were a good 2

3 number ofdrums ofpyranol that had not been used? 3

4 A. Oh, yeah. 4

5 Q. Okay. And you also talked about how 5

6 you noticed that this pile of drums was still there 6

7 several weeks after you stopped working for Mr. 7

8 Fletcher; in fact, that maybe the pile of drums was 8

9 increasing? 9

lOA. Yeah. I think they increased quite a 10

11 bit, yeah. 11

12 Q. Quite a bit? Can you estimate? 12

13 A. No. It's pretty hard to -- that piece 13

14 ofland there is probably a couple of hundred feet 14

15 long and, oh, probably 30 or 40 feet wide. So, you 15

16 know, it's pretty hard to -- I don't know whether 16

17 they had them -- you know, you'd stack them up, go 17

18 three high or four high or five high, or maybe the 18

19 back side down to almost nothing there, you know. 19

20 It's hard to say. 20

21 Q. There was a substantial-enough increase 21

22 that you noticed it just while you were driving by, 22

23 correct? 23

Page 59

1 MR. COWAN: Objection. 1

2 THE REPORTER: Was that a yes? 2

3 THE WITNESS: No. 3

4 CONTINUING EXAMINATION BY MS. ROWLEY: 4

5 Q. Do you want me to repeat the question? 5

6 You did notice an increase in the number ofbarrels 6

7 ordrums? 7

8 A. On the land, right. 8

9 Q. On the land, okay. Now, Mr. Cowan had 9

10 asked you about whether you knew for sure that the 10

11 contents ofthose drums that were stored at 11

12 Fletcher's was pyranol. I just want to ask you, was 12

13 it the practice at Fletcher's to stack drums 13

14 containing different contents in the same pile? For 14

15 instance, did you store all the drums of pyranol 15

16 together? 16

17 MR. COWAN: You mean, while he was at 17

18 Fletcher's? 18

19 CONTINUING EXAMINATION BY MS. ROWLEY: 19

20 Q. While you were at Fletcher's. 20

21 A. We used to put one thing in each pile. 21

22 Ifwe had, let's say, linseed oil or kettled linseed 22

23 oil, if you had 25 drums ofthat, you would put the 23

Page 60

25 drums in a row. If you had 25 drums ofsomethin

else, then you'd put that in a different row, but you

never mixed them together.

Q. Okay.

A. Otherwise, how would you know what you

had?

Q. Makes sense. You said that you last

saw the piles of drums several weeks after you

stopped working for Mr. Fletcher's. In the weeks an(

months and years after you stopped working for Mr.

Fletcher's, did you ever have occasion to drive by

the Cottage Street or Mill Street property?

A. Oh, yeah.

Q. Did you notice whether the drums were

still there?

A. No, I don't believe they were.

Q. Is it safe to say that several weeks

after you stopped working for him they were there?

A. Yeah.

Q. What about months?

A. No, it was longer than that before they

left. I remember going over and seeing Johnny. JoIn

Racicot and I are pretty good friends, and I can't

Page 61

really remember how long it was before the pile went

down.

CONTINUING EXAMINATION BY MS. ROWLEY

Q. Did Mr. Racicot live near the Cottage

or Mill Street property?

A. Pardon?

Q. Did Mr. Racicot live near the Mill

Street property that was owned by Fletcher's?

A. Yeah, about twice the length ofthis

room away from it, his wife and kids.

MS. ROWLEY: For the record, this room

is 10 by--

MR. ISRAEL: About 20 feet.

MS. ROWLEY: -- about 20 feet.

THE WITNESS: The width ofthe road,

34, 35 feet. It's two rods wide.

MR. COWAN: I'll take your word for it.

CONTINUING EXAMINATION BY MS. ROWLEY

Q. When drums were stored at Mr.

Fletcher's, they were stored sometimes on their side;

is that correct?

A. They decided to do that when they put

them over to the Cottage Street, yeah, but over the

16 (Pages 58 to 61)

FPWIT009754

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 16 of 27
Page 62

1 other place, when I was stacking them, they were 1

2 stored on end. 2

3 Q. Now, in either position, whether they 3

4 were stored standing up or stored on their side, 4

5 would the weather conditions, you know, increases itJ 5

6 temperature or decreases, cause the drums to leak? 6

7 A. Well, I didn't like the idea oflaying 7

8 them on their side, because you had to insert the 8

9 barrels so they can't roll, you know, and, God, 9

10 there's little kids living in that neighborhood, you 10

11 know, and I was scared to death one ofthem's going 11

12 to get hurt, because they love to play on stufflike 12

13 that, you know. 13

14 Q. SO, you noticed there were children 14

15 playing among these drums? 15

16 A. Well, around there, yeah. In the 16

17 neighborhood, let's put it that way. 17

18 Q. Okay. Did they play on Mr. Fletcher's 18

19 property? 19

20 A. I don't know whether they did or not, 20

21 but there's always that chance, you know? 21

22 Q. The weather conditions; did they cause 22

23 the drums to leak while they were being stored? 23

Page 63

1 A. Sometimes, yeah. 1

2 Q. Were you able to fix the leaks on the 2

3 drums while they were -- 3

4 A. Most ofthem, yes. 4

5 Q. And some ofthem you were not? 5

6 A. I don't know. I haven't been there in 6

7 all that time. 7

8 Q. While you were working there. 8

9 A. Well, while I was working there I tried 9

10 to keep them tight all the time, but one ofthe 10

11 things we used to do was go around and check the 11

12 barrels because some ofthe resins and that are quite 12

13 expensive, you know. 13

14 MS. ROWLEY: That's all I have. 14

15 EXAMINATION 15

16 BY MR. COWAN: 16

17 Q. Mr. Whitney, I have just a couple of 17

18 more. I'm going to try to sit here and, hopefully, 18

19 you can hear me and the stenographer will be able to 19

20 hear us both. 20

21 Again, looking at Exhibit 1, which is 21

22 your Declaration, paragraph 8, which now we've read a 22

23 couple oftimes, but it discusses where you said 23

Page 64

that, "There were not any chlorinated biphenyls at

Fletcher's Milford Paint Works, including those

picked up at GE, that Fletcher's Milford Paint Works

couldn't either sell to Webtex or use." And, again,

that's true, to the best of your knowledge; is that

correct, sir?

A. I couldn't hear you.

Q. I'm sorry. Is that a true statement,

paragraph 8?

A. Yeah, yeah, I think so.

Q. SO, was it your understanding that the

drums containing pyranol, or that you understand

contained pyranol, after you left, that you've

testified today, do you have an understanding that

they were also sold to Webtex or used?

A. I don't know ifthey were or not.

Q. Do you have any reason to believe they

were not sold to Webtex or used by Fletcher's?

A. No, I don't. Personally, I don't know

of anything firsthand on that. I've heard rumors.

Q. When you left Fletcher's, do you know

who took over your job responsibility, that is to

say, who was responsible for unloading materials off

Page 65

oftrucks? Do you know?

A. No, I don't know.

Q. Do you know who had the responsibility

for stacking or storing drums that may have come in

after the time that you left the company?

A. No. I don't know who was responsible

for all that.

Q. SO, you wouldn't know one way or the

other whether or not they followed the protocol and

procedure you just described, which is to say --

A. No.

Q. -- only certain materials are stored in

certain places and never mixed up. You don't know

whether or not they followed that procedure?

A. No.

Q. And ifthey didn't follow that

procedure, is it fair to say that it's possible that

among the drums that you believe may have contained

pyranol after you left there could have been drums

containing other material?

A. Yeah. Possibly could have been

solvents that they used to rinse down the machines

with, and that sometimes would make them -- the

17 (Pages 62 to 65)

FPWIT009755

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 17 of 27
Page 66 Page 68

1 viscosity would go down on them.

2Q. We've talked a lot today about barrels

3 containing chlorinated biphenyls or pyranol, right?

4 A. Yes.

5 Q. When you've been referring to that, Mr.

6 Whitney -- I apologize for this unartful question --

7 but have you been referring to just material received

8 from General Electric or material received from

9 Sprague Electric or, possibly, others?

lOA. From all ofthem. They were all

11 basically the same. A leak is a leak. It doesn't

12 make any difference whether it's from a red drum or a

13 brown drum or a blue drum, you know?

14 Q. And Ms. Rowley just asked you a

15 question about barrels being stored on their side or

16 barrels possibly leaking. Do you have any specific

1 7 recollection today whether barrels received from

18 Sprague Electric, for example, as compared to General

19 Electric, may have been leaking?

20 A. Not any worse or not any better, I

21 would think.

22 Q. And you don't have the ability to tell

23 us today, or at all, really, whether a particular

1 and signing?

2 MS. ROWLEY: I guess, yes.

3 (Deposition ofRICHARD A. WHITNEY

4 concluded at 11:30 a.m.)

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Page 67 Page 69

day

Notary Public/Justice ofthe Peace

My Commission Expires:

RICHARD A. WHITNEY

Subscribed and sworn to before me this

2007.

CERTIFICATE OF WITNESS

I, RICHARD A. WHITNEY, do hereby swear/affim

that I have read the foregoing transcript ofmy

testimony, and further certify that it is a true and

accurate record ofmy testimony (with the exception

ofthe corrections listed below):

Page Line Correction

1 barrel that may have been received from General 1

2 Electric, for example, may have leaked or spilled? 2

3 A. No. 3

4 Q. I'm sorry. You have to say that out 4

5 loud? What was your answer? 5

6 A. No. There's no way ofreally telling. 6

7 MR. COWAN: Unless Ms. Rowley asks 7

8 another wave of questions, I don't have any more 8

9 questions, Mr. Whitney. 9

10 MS. ROWLEY: One follow-up question. 10

11 EXAMINATION 11

12 BY MS. ROWLEY: 12

13 Q. While you were working at Fletcher's, 13

14 was it per Mr. Fletcher's's instructions that you 14

15 would keep -- store different materials in different 15

16 piles or different places? 16

17 A. No. No, it wasn't from his 17

18 instructions. It was just common-sense-type of-- I 18

19 mean, if you're going to be making paint, say, next 19

2 0 week, you don't bury the barrels that you're going to 20 of,

21 use. 21

22 MS. ROWLEY: I think that's it. 22

23 THE REPORTER: Is the witness reading 23

18 (Pages 66 to 69)

FPWIT009756

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 18 of 27
Page 70

1 CERTIFICATE

2 I, Brenda K. Hancock a Registered

3 Professional Reporter, Certified Realtime Reporter

4 and Notary Public ofthe State ofNew Hampshire, do

5 hereby certifY that the foregoing is a true and

6 accurate transcript ofmy stenographic notes ofthe

7 deposition ofRICHARD A. WHITNEY who was first duly

8 sworn, taken at the place and on the date

9 hereinbefore set forth.

10 I further certifY that I am neither

11 attorney nor counsel for, nor related to or employed

12 by any ofthe parties to the action in which this

13 deposition was taken, and further that I am not a

14 relative or employee of any attorney or counsel

15 employed in this case, nor am I financially

16 interested in this action.

17 THE FOREGOING CERTIFICATION OF THIS

18 TRANSCRIPT DOES NOT APPLY TO ANY REPRODUCTION OF THI

19 SAME BY ANY MEANS UNLESS UNDER THE DIRECT CONTROL

20 AND/OR DIRECTION OF THE CERTIFYING REPORTER.

21

22

23

Brenda K. Hancock, RMR, CRR

N.H. Certified Court Reporter

19 (Page 70)

FPWIT009757

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 19 of 27
Page 1

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ago 13:8 23:7 24:22 B 51 :23 52:23 55:17 certain 65: 12,13 commencing 1:19

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air 53:6 56:1958:19 42:20 49:7 54:10 CERTIFICATI... 67:18

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amounts 16:6 barrel 18:734:5 41:14,1842:2,8 CERTIFYING 33:3,1534:15

AND/OR 70:20 43:6,767:1 43:3,8,1250:10 70:20 35:1636:1046:23

answer 5:18,19 barrels 18:10 33:17 50:14,23 51 :20 chance 22:12 25:7 47:1049:2265:5

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APPLY70:18 basically 37:8 bound 38:1 chemicals 21:11,14 concluded 68:4

approximately 66:11 Box2:7 21:22 Concord 1:17

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area46:1650:8 44:2 70:22 8:532:13 33:21 40:1956:957:9

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31:23 16:1233:6,14 brought 30:10 45:1746:1447:1 62:5,22

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FPWIT009758

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 20 of 27
Page 2

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59:14 42:3 55:13 DIRECTION duties 34:13 55:1956:657:6

continue 50:5 70:20 59:4,1961 :3,18

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CONTINUING 7:2 daily 34:14 34:1850:23 Earl 19:12 54:20 exception 69:5

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20:2022:11 26:10 dates 13:7 23:8 discussions 43: 13 31:1732:13 42:1 exhibit 4:18 22:8,9

27:2042:1855:19 44:6 DISTRICT 1:1,2 44:1252:13 56:14 40:7,8 54:17

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57:3 58:23 61 :21 decision 43: 14 11:3,414:1,17,19 37:1,4,1038:6,21 fact46:1550:3

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corrections 69:6 23:1424:5,9,20 53:5,11,1754:22 49:11,1450:12 57:13 65:17

Cottage 8:19 13:4 25:540:9,17,23 55:1557:8,11 51:266:8,9,18,19 familiar 8:2

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FPWIT009759

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 21 of 27
Page 3

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FPWIT009760

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 22 of 27
Page 4

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FPWIT009761

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 23 of 27
Page 5

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FPWIT009762

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 24 of 27
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FPWIT009763

Case 1:06-cv-00354-PB Document 60-1 Filed 08/18/08 Page 25 of 27
Page 7

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FPWIT009764

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FPWIT009765

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