·"· . ·.: .,., Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN 4 KATHLEEN McHUGH, and DEANNA SCHNEIDER, Individually and on behalf 5 of all persons similarly situated, 6 Plaintiffs, 7 vs. CASE NO. 11-CV-724 8 MADISON-KIPP CORPORATION, CONTINENTAL CASUALTY COMPANY, 9 UNITED STATES FIRE INSURANCE COMPANY and ABC INSURANCE 10 COMPANIES 1-50, 11 Defendants, 12 and 13 MADISON-KIPP CORPORATION, 14 Cross-Claimant, 15 vs. 16 CONTINENTAL CASUALTY COMPANY, COLUMBIA CASUALTY COMPANY and 17 UNITED STATES FIRE INSURANCE COMPANY, 18 Cross-Claim Defendants, 19 20 (Caption continued) 21 DEPOSITION OF 22 R. MICHAEL SCHMOLLER 23 Madison, Wisconsin September 11, 2012 24 9:51 a.m. to 3:57 p.m . 25 Kathy A. Halma, RPR Halma-Jilek Reporting, Inc. Experience Quality Service! Deposition of R. Michael Schmoller Page 1 (414) 271-4466 Case: 3:11-cv-00724-bbc Document #: 117 Filed: 02/13/13 Page 1 of 86
86
Embed
Page 1 ·· 1cleanairmadison.org/rcra/117 -Deposition of Schmoller DNR... · 2013-03-04 · Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
·"·
. ·.: .,.,
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12
1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
4 KATHLEEN McHUGH, and DEANNA
SCHNEIDER, Individually and on behalf
5 of all persons similarly situated,
6 Plaintiffs,
7 vs. CASE NO. 11-CV-724
8 MADISON-KIPP CORPORATION,
CONTINENTAL CASUALTY COMPANY,
9 UNITED STATES FIRE INSURANCE
COMPANY and ABC INSURANCE
10 COMPANIES 1-50,
11 Defendants,
12 and
13 MADISON-KIPP CORPORATION,
14 Cross-Claimant,
15 vs.
16 CONTINENTAL CASUALTY COMPANY,
COLUMBIA CASUALTY COMPANY and
17 UNITED STATES FIRE INSURANCE
COMPANY,
18
Cross-Claim Defendants,
19
20 (Caption continued)
21 DEPOSITION OF
22 R. MICHAEL SCHMOLLER
23 Madison, Wisconsin
September 11, 2012
24 9:51 a.m. to 3:57 p.m .
25 Kathy A. Halma, RPR
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12
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
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
A
Q A
Yes.
Where are you employed now currently, please?
With the Wisconsin Department of Natural
Page 6
Resources. I'm the Regional Spill Coordinator
the South Central Region out of the Fish Hatchery
Road office.
Q How long have you had that job?
1
2
3
4
5
6
7
8
9
10
11
12
A I have been the Spill Coordinator since February
of 2010. I have worked out of that office since
1988 in the Remediation Program.
Q How long have you been involved at the
Madison-Kipp site for WDNR?
A Technically February o£2010. When I became the 13
Spill Coordinator, I took over responsibiUty for
the Kipp site.
Q Did you have any involvement in any capacity
before February of 2010 at Madison-Kipp?
A At brief times a number of years prior to that I
14
15
16
17
18
looked at the file and had some interaction with 19
the previous project manager, Dino Tsoris, and we 20
talked about it, but not in a project manager 21
role I didn't, no. 22
Q Dino is D-1-N-0?
A Yes. His real first name is Constantine, but
everyone calls him Dino.
Page 7
23
24
25
Q Can you spell that last name for the reporter? 1
A T-S-0-R-1-S. 2
Q All right. So Mr. Tsoris was your immediate 3
predecessor at Madison-Kipp, right? 4
A Yes. 5
Q Why did you take over for him, do you know? 6
A That was just part of the job assignment when I 7
became the Regional Spill Coordinator. There 8
were certain sites that also site project manager 9
responsibilities came with, and Kipp was one of 10
them. 11
Q As of February 2010 when you got involved at 12
Madison-Kipp, what happened to Tsoris? Was he 13
still involved at Madison-Kipp? 14
A No, Dino at that time left to go work in our 15
Drinking Water Program in our downtown office. 16
Q Do you know why? 17
A No. 18
Q Did it have anything to do with his performance 19
at Madison-Kipp, so far as you know? 20
A No. 21
Q Where is Mr. Tsoris today? Does he still work 22
for DNR? 23
A Yes, he's still in the Drinking Water Program. 24
Q Okay. Did he have a different job title than 25
Deposition ofR. Michael Schmoller
Page 8 ~
you?
A No, no, he was the Regional Spill Coordinator
that preceded me in that position.
Q Okay. Who told you that you were going to be
working out at Madison-Kipp as of February 20 10?
A That would have been my immediate supervisor. At
that time it was Pat McCutchen and he was the one
that would assign the site to me.
Q Okay. What did McCutchen say to you in that
regard about why you were going to be working out
at Madison-Kipp?
A That was just part of the job duties. It was
just kind of a standard transition. I gave us
some sites that I had and took on some new ones.
Q Did you become the Regional Spill Coordinator in
February of 201 0?
A Yes.
Q What was your title before that?
A Hydrogeologist. In the state system we're
hydrogeologists.
Q Okay. Let's talk about your educational
background for just a minute. Where did you go
to college?
A I started in Stevens Point for two years, and
then I got an undergraduate degree in the botany
II I
Page 9 j program through Madison here. Then I got a i graduate degree technically through the Urban and ~ Regional Planning Program, but it was a water
resource emphasis, and that would have been 1981
I got the master's degree. I think '78 is when I
got the BS.
Q With the water resource emphasis?
A Yes, the Urban and Regional Planning Program is
kind or a build-your-own program type or thing.
They didn't have a lot of structure to it at that
time. So you could emphasis what you were
interested in, so we were able to take
engineering classes and geology classes and just
kind of work them into a resource management
planning kind of curriculum.
Q And you got your master's in '78, did you say?
A '81.
Q In '81?
A '78 was my undergrad degree.
Q Okay. Do you have any other educational degrees?
A No.
Q All right. What did you do after you got your
graduate degree? What did you do professionally?
A Within about three months or so of graduation -
Well, I graduated and we traveled for awhile, and
~:
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 10 Page 12
1 then in January of '82 is when I started with the 1 work on this site for a certain period of time. ~
2 Department. 2 It was more because we sat in proximity to each i 3 Q DNR? 3 other, so it was just discussions about it, ~ 4 A Department of Natural Resources, yes. 4 but-·
I
5 Q And what were you doing when you started? 5 Q Do you remember any specific issues?
6 A When I first joined, at that time it was called 6 A No. My guess at that point is it probably was
7 the Bureau of Water Resources Management, and 7 probably more related to, you know, groundwater
8 they had a Groundwater Management Section within 8 and where might the groundwater be going and
9 that and we wrote the original groundwater law 9 where the groundwater contamination would be.
10 for Wisconsin and the original Chapter NR140 10 There probably would not have been discussion on
11 Administrative Code for that. I was involved 11 vapors or soils or anything. It probably would
12 with kind of like staff support for the 12 have been groundwater. For the majority of our
13 negotiations that took place for both the code 13 sites groundwater is our focus.
14 and the statute. 14 Q Do you remember, prior to February of 2010, any
15 Q Okay. What did you do next at DNR? 15 specific questions that Mr. Tsoris approached you
16 A I was in that position until about 1988 when I 16 with concerning the Madison-Kipp site?
17 transferred to South Central Region, and there 17 A No, no.
18 you do -- in the regional office you do more site 18 Q Okay. Do you have any professional licenses or
19 specific project management. So I became a 19 certificates?
20 project manager at that point for sites, 20 A No, no.
21 individual sites. 21 Q So in February of 2010 when you took over the
22 Q In 1988? 22 Madison-Kipp site, what did you do, if anything,
23 A Yes. 23 to acquaint yourself with the history of the site
24 Q And you held that position until February of 24 and any work that had been done prior to
25 2010? 25 February 2010, that sort of thing?
Page 11 Page 13
1 A Correct, yes. 1 A I would have reviewed the file, just gone through
2 Q So were you promoted in February of 2010? 2 the existing file to get familiar with what
3 A No, that's a lateral movement. That was not a 3 reports were there, you know, where the
4 promotion. 4 contamination is or isn't, what needs to be done,
5 Q Did you request it? 5 what needed to be done to move the site forward.
6 A Yes, it's one that you interviewed for, yes. 6 Q Did you talk to Dino? I'm talking about, you
7 Q Okay. All right. Now you said that prior to 7 know, about February of 2010 when you took over.
8 February 2010 you had some involvement with the 8 A I'm certain that I did. I don't recall any
9 Madison-Kipp site, right? 9 specific conversations, but that would have been
10 A Um-hum. 10 something I would have done.
11 Q Yes? 11 Q Okay. What was going on at the site at the time
12 A Yes. 12 from DNR's point of view?
13 Q That's one of the other rules. You know what I'm 13 A We had had -- At that point the on-site
14 saying, right? 14 monitoring wells were in place and there were the
15 A Right, yeah. 15 on-site vapor probes that were in place on the
16 Q Just speak with words rather than head nods and 16 east side of the building. Those vapor probes
17 things like that. 17 had showed some fairly high levels at that time,
18 A Yes, I did have some involvement with Kipp prior 18 so-- And in 2010 or so is when we were starting
19 to that. 19 to become more aware for the potential for vapor
20 Q Tell me about that, please. 20 concerns, so when I looked at the site, you know,
21 A You know, they would have been just conversations 21 there were a couple things that stood out. We
22 with Dino related to the site, you know, 22 needed to resolve, you know, where groundwater
23 investigation or whatever. It was not -- It was 23 contamination was going. We only had on-site
24 more of a causal kind of contact. It was not 24 wells at that point, and we needed to resolve how
25 assigned work like by a supervisor, you know, 25 big of an off-site vapor problem we had. Those
4 (Pages 10 to 13)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9111/12 Deposition of R. Michael Schmoller
Page 34 Page 36 I 1 seeing. We have high on-site shallow groundwater 1 A At this point of all the issues that we're ~ 2 contamination, but everywhere we have looked off 2 dealing with at the site? i
3 site we don't see any shallow groundwater 3 Q Yes.
I 4 contamination. So what role groundwater could be 4 A In my mind that is not a high priority, so it
5 as a source is not clear. 5 would be sometime down the road.
6 Q Okay. Well, you can figure that out, that's 6 Q No timetable? Is that fair to say?
7 determinable, isn't it, through testing? 7 A Correct.
8 A I'm not sure what testing you would do to 8 Q All right. Now you did say in answer to a couple
9 distinguish between a soil source versus a 9 questions ago, you did say that you believed that
10 groundwater source at this site. 10 the vapor, at least some of it, may be moving
11 Q Well, let me ask you this then. Are you making 11 laterally through soils?
12 any -- Is the Department, when I say "you" I mean 12 A Yes.
13 the Department, I don't mean to personalize it, 13 Q Okay. From Madison-Kipp's property laterally
14 but is the Department making any effort to 14 through soils to these homes we have been talking
15 determine whether groundwater contamination is 15 about, right?
16 responsible for any of the vapor contamination at 16 A Correct.
17 the homes on Waubesa and South Marquette? 17 Q Now what makes you say that? What makes you
18 A Yes, we have required some investigation along 18 believe that that may be going on?
19 those lines, primarily the off-site shallow 19 A Well, we have historically and recently we have
20 wells. Up and down South Marquette Street we 20 high soil concentrations on site for perc and
21 have three shallow wells. If there were off -- 21 some other parameters. Our understanding of
22 For groundwater to be a vapor source it has to be 22 vapor transport tells us that we know that when
23 shallow groundwater contamination. So if we had 23 you have high soil contamination levels, that
24 shallow groundwater contamination moving off site 24 movement through the unsaturated soil is a
25 to the east beneath the homes on South Marquette 25 primary mechanism for vapor to move. So looking
Page 35 Page 37
1 Street, we would see it in those three monitoring 1 at the closeness of these homes to those high
2 wells, and that would tell us that would at least 2 contamination levels, to me the site
3 have the potential for groundwater to be a 3 characteristics tell me that movement through the
4 source. 4 unsaturated zone is one of the primary mechanisms
5 At this point, all the off-site 5 for getting to these homes, which led to the
6 monitoring wells we have put in, at least for 6 installation of the SVE system as a first cut
7 shallow monitoring, we have found very little 7 remedial action.
8 contamination. I think there's only a single 8 Q Okay. Have you concluded definitively that
9 well to the northeast that has just a trace of 9 that's how the vapor is moving from the
10 perc in it. The three wells on Marquette Street 10 Madison-Kipp site to the homes laterally through
11 all have been non-detect the one or two times 11 soils? Have you concluded that definitively?
12 they have been sampled. So it isn't obvious that 12 A Yes, I think there's enough data that you can
13 groundwater is a source to those homes at this 13 make that definitive conclusion, because if you
14 point. 14 look at the off-site vapor probes that are in
15 Q But you think you have done enough testing to 15 some of these people's yards, they also show
16 determine that? Excuse me. Let me ask you a 16 elevated perc readings. For those to get there,
17 different question. 17 for me the primary mechanism is the unsaturated
18 Do you think you have done enough 18 transport, unsaturated soil transport. I think
19 testing to rule out groundwater as a source of 19 one of the ways we will know for sure is if we
20 vapor contamination in these homes? 20 see changes in the homes along the north side of
21 A No. 21 Marquette Street because of the operation of the
22 Q When do you expect to have an answer, a 22 SVEsystem.
23 definitive answer, about whether groundwater is 23 (Exhibit 3 was marked.)
24 contributing to vapor contamination at the homes 24 BY MR. COLLINS:
25 on Waubesa and South Marquette? 25 Q Schmoller No. 3, I also got that off DNR's
10 (Pages 34 to 37)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition of R. Michael Schmoller
Page 38 Page 40 ~. 1 website. You recognize that, don't you? 1 contamination. The gradients, the groundwater [ 2 A Yes. 2 gradients there seem to be very strongly ~ 3 Q Okay. Tell me what Schmoller No. 3 is then, 3 downward.
~ 4 please. 4 Q When you are talking about lateral movement, now ~
5 A It's a map that was prepared by the City of 5 you are talking about groundwater?
6 Madison Engineering based on the data available 6 A Yes, I'm talking about groundwater specifically.
7 at the time it was produced, February of 2012, I 7 Q All right.
8 guess, showing an estimate of the extent of the 8 A So whether or not or how far groundwater
9 shallow groundwater contamination at the Kipp 9 contamination exists to the east of Monitoring
10 property. 10 Well Nest 5 isn't certain.
11 Q Okay. Has there been any effort that you are 11 Q Okay. Is it fair to say as to the contamination
12 aware of since this shallow plume was drawn to 12 of shallow groundwater, you don't know what the
13 update it and perhaps draw a more accurate one? 13 extent of the contamination is?
14 A No. 14 A I don't think that's entirely accurate. I think
15 Q Okay. Do you rely on this plume drawing at all 15 we know -- I think we have a good handle on the
16 to make any decisions? 16 on-site distribution of shallow groundwater ~
I 17 A No. Not at this point, no. 17 contamination. I think where probably the
I 18 Q Well, it was up on your website, right? 18 greatest question lies is the area to the east of
19 A Yes. 19 Monitoring Well 5, Monitoring Well Nest 5S, which
20 Q Is it unreliable? 20 is the water table there. That has, I think,
21 A No, I think at the date and time that it was 21 several hundred parts per billion of perc,
22 produced it was a reasonable approximation, as 22 tetrachlorethylene, in it. That well is very
23 good as we could do, of where we thought there 23 close to the property line. So has that shallow
24 was or was not shallow groundwater contamination. 24 groundwater contamination gone off site in an
25 Q Is that still true today? Is it still the best 25 east or southeasterly direction. It seems to be
Page 39 Page 41
1 you can do? 1 that the shallow groundwater now at the site has
2 A Let's see. The northern portion of those 2 either a southern or southeast now component to :
3 contours could be adjusted some, because we do 3 it.
4 have a monitoring well up there to the northeast 4 So whether or not there's contamination ~ 5 of the site now that shows, like I said, a less 5 there that has crossed the property line or not, ~ 6 than a part per billion detect, so the northern 6 we don't know. That's probably the biggest
7 extent probably could be refined some. We have a 7 uncertainty with this map. But we know that we
8 number of geoprobes on the property itself now. 8 don't have it, you know, in the parking lot to ~ ~~
9 Now those are not -- they were taken at the top 9 the east -- to the west of the site where ~
10 of the rock, not exactly at the water table, but 10 Monitoring Well 10 is now. We know we don't have
"
11 those probably could be used to refine the 550 11 it up and down Marquette Street, because we have
12 contours more closely at least for on-site. 12 three wells where it's clean. We know we only ~ 13 Q What's the depth to groundwater of this formation 13 have a low level of contamination to the ~
14 here? 14 northeast, and both Monitoring Wells 4 and 6 have I 15 A It's about 18 feet, roughly. 15 historically shown either non-detect or very
16 Q Okay. So do you believe that there is 16 little. ... ,
17 groundwater contaminated to a concentration of up 17 So I think we have a pretty solid idea
18 to 500 parts per billion in approximately the 18 where the shallow groundwater contamination is or r
19 configuration as shown here on Schmoller 3? 19 is not, other than right directly on that
20 A The area that would be of biggest question to me 20 property line near Monitoring Well Nest 5.
21 would be along the east side. When you look at 21 Q And Monitoring Well Nest 5, those numbers have
22 the 500 oval, the eastern part of that oval would 22 historically been quite high, haven't they?
23 probably be more accurately drawn as a dash line, 23 A Yes, 5 and then the deeper wells at 5 have shown,
24 as an estimate. At this site there does not 24 you know, some high concentrations.
25 appear to be a lot of lateral movement of 25 Q And what are the concentrations currently at
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 46 Page 48
1 groundwater. What the future remedial action 1 have not agreed on any remediation option or
2 will be to deal with the shallow groundwater 2 strategy, correct, for the shallow groundwater, ~ 3 isn't clear. It could be a range of things. It 3 correct? ~
4 could be pumping, although I don't think that 4 A Correct. i 5 will be the option. I think the most likely 5 Q Okay. Neither have you guys agreed on even a
6 alternative is some form of in situ treatment. 6 list of options, correct? ~
7 Q Okay. Tell me what you mean by "in situ 7 A Correct.
8 treatment." 8 Q Have you asked Madison-Kipp to give you its ideas
9 A Injection of one or more chemicals actually into 9 about how this groundwater should be cleaned up?
10 the groundwater to stimulate natural 10 A No, we have not made a formal request along those
11 bioremediation that's occurring. 11 lines.
12 Q Is there any timetable within the Department for 12 Q Okay. Do you expect to?
13 choosing an option for cleaning up the shallow 13 A I don't know if it will be a formal request. I
14 groundwater contamination that we see here in 14 would expect it more to be discussions between
15 Schmoller No. 3? 15 Kipp and the Department as to where are we at,
16 A In discussions with Kipp we have set a 16 maybe submittals of technical memos to review t 17 January 2013 deadline for remedial actions to be 17 things. I don't foresee us sending a letter
18 in place. In our discussions we have asked for 18 saying, "By December 1st give us your list of
19 remedial actions to be operating at that point in 19 remedial options." I
20 time. That would include shallow groundwater. 20 Q Have you ever determined how long that shallow
21 Q That's four months from now? 21 groundwater has been contaminated undemeath the
22 A Yes. 22 Madison-Kipp facility and, to a certain degree,
23 Q Do you expect that deadline to be met? 23 these homes here as depicted on Schmoller 3?
24 A That's the State's intention, yes. 24 A No, no.
25 Q I appreciate that. I'm asking a different 25 Q Does it matter to you?
Page 47 Page 49
1 question now. Apart from intention, do you 1 A In terms of choosing a remedial action, probably
2 expect that deadline to be met? 2 not. In terms of understanding the site, you
3 A Yes. 3 know, to know when things got there would be
4 Q You do? 4 good, but it's not critical.
5 A Yes. 5 Q Do you have even an estimate, even a decade when I 6 Q Okay. Has Madison-Kipp identified for you its 6 this shallow groundwater became contaminated?
7 favored choices for cleaning up the shallow 7 A The only firm data we would have would be the
8 groundwater? 8 first time monitoring wells were put in place in
9 A No. 9 the mid 1980s or so. That would be the only firm
10 Q What makes you say that? What makes you expect 10 date that we could attribute it to. i 11 that a shallow groundwater remediation option 11 Q And did those reveal contamination? ~
12 will be in place four months from now? Excuse 12 A Yes.
13 me. You are not talking about a choice having 13 Q Okay. In the mid 1980s? • 14 been made, you are talking about an operating 14 A Yes, I think the first groundwater monitoring was I 15 system in place four months from now, right? 15 done in '85, I believe.
~ 16 A Yes. 16 Q So do you believe the shallow groundwater l 17 Q What makes you think that that is a realistic 17 contamination as depicted on Exhibit 3 has been ~
•i
18 timetable? 18 there approximately three decades?
19 A In terms of the pace of the investigation that's 19 A Yes.
20 occurred at the site through this summer, you 20 Q The dotted lines for the 5 ppb and 50 ppb plumes
21 know, the pace that we expect to see remedial 21 indicate uncertainty about the boundaries of ~ 22 analysis to be done, an option to be chosen, it 22 those plumes, correct?
23 is our expectation that we have an operating 23 A Correct.
24 system by that date. 24 Q And didn't you say earlier that the 500 ppb '
25 Q I gather that the Department and Madison-Kipp 25 plume, or at least part of it, should be dashed,
f•
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9111/12 Deposition ofR. Michael Schmoller
Page 54 Page 56 •
1 Q That's violating the law of the State of 1 and how, I'm not certain. At this point in time i 2 Wisconsin, isn't it? 2 we are looking at it it, you know, there needs to i'
3 MR. BUSCH: Object to the form of the 3 be some active measures taken to, you know, to ~ ~
4 question for the reasons previously stated. 4 bring the groundwater into compliance with !:
5 THE WITNESS: Yes, it-- I'm not sure if 5 standards.
6 violation is the correct way to describe it. 6 BY MR. COLLINS:
7 Certainly the concentrations that are there 7 Q Don't you believe this groundwater should have
8 exceed the cleanup standards that are set in that 8 been cleaned up long before now, at least to the I 9 code and kick in the requirements of that code 9 standards in the regulation? ~. 10 for investigation and cleanup. 10 A I don't know if I can say that, because I don't
11 BY MR. COLLINS: 11 know -- you know, as we look at the site today,
12 Q All right. Okay. So why is it that the 12 we see it's a site with a certain size of a ' 13 groundwater hasn't been cleaned up before now? 13 problem to it. If you look at the reports that
14 If the concentration of chemicals for the last 14 were generated back in the early '90s, late '80s, ~
15 three decades have exceeded what is allowed by 15 somewhere in that time frame, those reports did
16 Wisconsin law, why hasn't this been cleaned up 16 not give an indication of the size of the problem I 17 long before now? 17 that we have today. So, you know, the
' 18 A Well, there have been several remedial actions 18 information that was being used to make the
19 taken at the site over the years in terms or 19 decisions for the son actions that were taken,
20 source control activity dealing with contaminated 20 remedial actions, I think they probably thought l 21 soils and operation of the ozone system for about 21 that those were appropriate measures and adequate
~ 22 a four or five year period of time there. So 22 Cor the size of the problem.
23 there have been measures taken to begin to 23 So to say that, you know, there should :
24 address the contamination. The contamination 24 have been more done then, I mean, you can look
25 problem -- The groundwater contamination problem 25 back and say, "Boy, if we had done more back then
~ ~
Page 55 Page 57 ~ ~
1 is sizeable, you know, there's a lot or 1 we would be in better shape now," I'm not sure il'
2 groundwater contamination out there, and it's 2 that anyone knew what we were looking at at that ~ -~
3 going to take some time to figure out how to deal 3 point. So to judge and say, "Oh, it should have • ~ 4 with the shallow with the deep, because you are 4 been done," yes, I can look at it now and say, ; 5 going to have to deal with them together. 5 "Yeah, we have got 3,000 parts per billion, you
I 6 Q I appreciate you have only been on the job two 6 know, it should have been taken care of," but I'm
7 and one-half years, so I realize there's a 7 not sure you can look at the history of the site ~ 8 25-plus-year history of this contamination before 8 and always say that that would have been the ~ 9 you got there. I want to preface the question by 9 conclusion. IC I had this site in 1988, I'm not I
10 saying that. But the Wisconsin laws and 10 sure I would have reached that same conclusion. I 11 regulations you know about relative to 11 Q Wasn't Madison-Kipp told as early as 1994, if not
12 groundwater contamination, they don't just say 12 sooner, to investigate the extent of groundwater ! 13 try, do they? I mean, they say clean it up, 13 contamination and clean it up?
14 don't they? 14 MR. BUSCH: Object to the form, lack of li 15 MR. BUSCH: Object to the form of the 15 foundation.
~ 16 question, calls for a legal conclusion and for a 16 MR. COLLINS: That's a serious 9
17 characterization of the law. 17 objection? Who objected? ~ 18 THE WITNESS: You know, the rule 18 MR. BUSCH: I did. ~
~ 19 requires remedial activities to achieve 19 MR. COLLINS: Is that a serious ~ 20 compliance with the standards, and I believe the 20 objection? ~ 21 term is reasonable period of time. The statute 21 MR. BUSCH: Yes, the way that you ~ 22 has technical and economic feasibility language 22 phrased that question, absolutely. ~ 23 in it. There have been measures taken over the 23 BY MR. COLLINS: i 24 years to begin to address it. You know, what the 24 Q Did you understand my question? ~ 25 logic was behind choosing those actions and where 25 A Can you ask it again?
,, i
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
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
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
Page62
property. It was across the street to the west.
So given the, you know, given the flow
direction that was derived at that time, it was,
oh, this looks like this must be coming from
Kipp. That was the conclusion. So the
investigations that were taken through the mid
1990s would have appeared to be an appropriate
response now. So had we known that the
contamination, at least as estimated on Figure 1
here, existed at that time, you know, that
probably would not have been an appropriate
response.
Q When you say Figure 1, you mean Schmoller 3?
A Yes, Exhibit 3. Yes, you could say had we been
more aggressive and taken more action in 1994,
there's some degree of likelihood that the
contamination we see would be less than it is
today.
Q I'm not asking about aggressive. I'm asking
about compliance with the law. Isn't it true
that if in 1994 -- beginning in 1994 Madison-Kipp
complied with the law, that the groundwater
contamination we see depicted in 2012 on
Schmoller 3 would not be that way, at least not
to that extent?
Page 63
MR. BUSCH: Object, lack of foundation,
calls for a legal conclusion.
MR. COHEN: Object to the form of the
question, as well.
THE WITNESS: Can you repeat it again?
COURT REPORTER: ''I'm not asking about
aggressive. I'm asking about compliance with the
law. Isn't it true that if in 1994 -- beginning
in 1994 Madison-Kipp complied with the law, that
the groundwater contamination we see depicted in
2012 on Schmoller 3 would not be that way, at
least not to that extent?"
THE WITNESS: I don't think you can
conclude that there ;.vas not compliance with the
statute or code in 1994 by the actions that were
taken at that time given what we knew about the
nature of the site. If we knew, you know, if we
knew that the site looked like this and those
actions were taken, then you could say, "Well,
you are not doing what the code is requiring of
you." But at the time, you know, you look at the
investigations that occurred early on and what
was shown and then the remedial actions were
taken fairly shortly after that, I think that
there was -- that everybody involved, and if I
1
2
3
4
5
6
7
8
9
10
11
Page 64 ~ had been the project manager, I think we probably ~ were complying with the requirements of the code. ~ We were moving ahead at an appropriate pace, ~
given the nature of the site. ~ BY MR. COLLINS:
Q Well, one of the reasons the law requires a
company like Madison-Kipp to determine the
horizontal and vertical extent is so that it can
investigate and fmd out how big of a problem we
have, right?
MR. BUSCH: Object to the form, calls
12 for a legal conclusion.
13 BY MR. COLLINS:
14
15
16
17
18
19
20
21
22
23
24
25
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
Q Isn't that the purpose of the requirement, to f fmd out how big the problem is really?
A There is a requirement in the code to determine
the vertical and horizontal extent of
contamination.
Q And isn't that just another way of saying, "Let's
fmd out how big a problem we have?"
A Correct.
Q Isn't it true that today, today in 2012, the
Department and Madison-Kipp still do not know the
horizontal and vertical extent of the groundwater
contamination?
Page 65 i A True.
Q Is that acceptable to you?
A No. And we have got, you know, there are in
place plans for additional field investigation
activities to take place to continue to answer
that.
Q When do you expect to know the horizontal and
A
vertical extent of the groundwater contamination
emanating from Madison-Kipp?
We have another phase of the investigation that ~ should be starting this month that will probably ~
Q
take four to six weeks to complete. Those are on
and off-site deep wells that will have a number
of vertical sampling points to them. At that
~ ~ ~l
~ ~
point it's my hope that that data will define the
extent of the contamination to the point that we .,
need it to make remedial decisions.
Okay. So I'm asking you to estimate, as best you
can, when do you think the Department will know
the horizontal and vertical extent of the
groundwater contamination emanating from
Madison-Kipp?
A Okay. For the purposes of making remedial
decisions, by the end of October, mid November,
somewhere in that range.
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition of R. Michael Schmoller
Page 70 Page 72 i 1 the sewer lines? 1 preferential pathway? ~
2 A Well, I think if you would look at the -- If you 2 A No.
3 go back to Exhibit 2 -- 3 Q Is it fair to say that as of today the Department
4 Q Yes. 4 does not know all of the potential sources of
5 A -- and you look at the testing to the east side 5 contamination on Madison-Kipp's property?
6 of Marquette Street or the west side of Waubesa 6 A True.
7 Street and then up and down the north and south 7 Q Do you have any plans to investigate in order to
8 side of Fairview, if-- I mean, the sewer lines 8 determine what all those sources are on
9 on Waubesa and Marquette run north/south, so if 9 Madison-Kipp's property?
10 they are a migration pathway, they are taking it 10 A Yes. Well, specific plans, no. As I said, we
11 north and south, not off site. 11 have intentions. I think if you look at the
12 So the only, you know, if you look, 12 homes on Waubesa Street adjacent to the plant, -13 Fairview is where you might see some movement 13 the vapor readings there tend to be just a touch '
14 off, and we have got data points on both the 14 higher than the ones on Marquette Street, and so
15 north and south of that road, and both of those 15 I think there is a source for vapors in that
16 homes, 2902 and 2001, both have detects, but they 16 southwest portion. I think we need to look
17 are not, you know, elevated that would indicate, 17 there. There was, you know, there was a parking
18 oh, they are sitting on some sort of preferential 18 lot there at one time that's now built over, and '
19 path. There again, they are consistent with what 19 so there may be a need to look underneath the
I 20 we see in homes directly adjacent to the site and 20 building there for contamination. We have got a
21 further north and south on Marquette. So at 21 pretty good feel for the soU contamination in f
22 least at this point the data has not told me that 22 the northwest quadrant and along the east side of
23 it looks like there's a preferential path leading 23 the plant, so there may not need to be more work
24 off site. 24 there. There may need to be more work underneath
25 Q Well, preferential path doesn't necessarily mean 25 the plant in other locations, but I wouldn't know ~
Page 71 Page 73 ~
I 1 higher concentrations, does it? 1 where those would be at this point. t
• 2 A I think it would. If you look at -- If you have 2 Q Are there any plans to look comprehensively at
3 just a broad front of transport movement through 3 the property to test the soil, for example,
4 the soils, okay, you are going to get a 4 throughout the property to determine where all " 5 widespread of, you know, relatively uniform 5 the soil contamination is on the property?
6 numbers. If you had a preferential pathway, then 6 A Well, that's -- A lot of that has been done. You ~ 7 you would see something that would diverge from 7 know, we had -- I think it was just slightly over ~
8 that. You would have a straight line going like 8 100 shallow soil borings that were put in place i 9 east, and those numbers would be higher because 9 around all, you know, north, southwest, southeast ~
10 it's preferential. It's moving easier through 10 of the plant to look for soil contamination from !! ~
11 that way, so you would have more mass moving 11 not only chlorinateds, but PCBs and other ~
12 through which would give you greater 12 parameters. I think we have a pretty good I 13 concentrations. We don't see that. The only 13 picture of the soil contamination from zero to
14 place that we saw what looked like maybe some 14 4 feet at the site. I 15 higher concentrations were those homes directly 15 Q You are not talking about the building now, you " 16 adjacent to where Monitoring Well Nest 5 was. 16 are talking about -- ~ ~
17 Q Do you have any plans to investigate whether the 17 A I'm talking about the parking lot and areas •I ~
18 sewer lines are serving as a transport mechanism 18 outside the building perimeter, not inside the ~· 19 for any kind of contamination from Madison-Kipp? 19 building. ~ 20 A Not at this time, no. 20 Q Let's talk about the building for a second. You
21 Q How about utility trenches? Do you have any 21 alluded to it a moment ago, but let's focus on it
22 plans to investigate utility trenches for the 22 now. Do you have any plans to test underneath
23 same reason? 23 the building, for example, in the former location I 24 A No. 24 of the, you know, degreasing pits, for example,
25 Q Do you have any plans to investigate any other 25 or drains? For example, the standard places
I
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 86 Page 88 ~
1 side of Dixon? 1 Q Has there been any testing for vapor
~ 2 A Not at this time. 2 contamination in the homes to the south of the ~
3 Q How come? 3 plant? I don't see any depicted on here, so I'm I 4 A The decision just hasn't been made yet. 4 assuming not, but I thought I would ask.
5 Q Okay. You don't believe you have reached the 5 A No, we have not gone south of Atwood. " ~ 6 point to the east of the plant where vapor 6 Q How come?
7 contamination emanating from the plant has 7 A At this point it wasn't viewed as a migration
8 stopped, do you? 8 pathway.
9 A We may have, given the readings that we see on 9 Q How come? ~
10 Dixon Street are low. I think all of the detects 10 A There's not a lot of perc-related soil I 11 on Dixon Street were all -- they may all have 11 contamination in the parking lots south of the ~
12 been less than a part per billion by volume for 12 building, and the building ends roughly at 265
13 perc in which case, you know, it seems like you 13 Waubesa, 226 South Marquette. That's roughly
14 are maybe reaching the eastward limit. So it's 14 where the plant ends, maybe 269 and 230, ~ 15 possible that we have. 15 somewhere in there. Then we have the parking ~
~ 16 Q How far east of the facility do you plan to test 16 lots which do not show a lot of soil I~ 17 for vapor contamination? 17 contamination. There's not a lot of shallow ~ 18 A At this point there's no plans to go any further 18 perc-related groundwater contamination there. We
19 than the west side of Dixon Street. 19 have those monitoring well nests on the southeast
20 Q Okay. How about west? How about for the west? 20 and southwest corners, and then you have got all
21 How far to the west do you plan to test? 21 of the utility sewer lines and things underneath
22 A Right now we have that single sample on Corry 22 Atwood that could be interceptors, if it was a
23 Street, and there's no further plans to sample on 23 soil transport. So this wasn't viewed as a
24 Corry Street, either the east side of Corry 24 priority.
25 Street or the west side of Corry Street. So at 25 Also, one of the problems you get
Page 87 Page 89 ~
] 1 this point there's no plans for vapor sampling 1 into -- When you cross the south side of Atwood,
2 any further in either direction. 2 it's a commercial area. We don't know the ~
3 Q All right. Is the administration going to meet 3 history of that. You could take a sub-slab ~ 4 and make a decision about the folks on the west 4 sample at one of those homes there or businesses,
5 side of Waubesa and the east side of Corry 5 get a detect and not be 100 percent certain that ~
6 Street? Are they going to meet about them, too, 6 that detect is related to an activity that took ~ 7 and what to do about them? 7 place at Kipp. When you start getting further ~ 8 A Yes, that would be a management decision. 8 away into commercial areas, there could be other I~ 9 Q Okay. But, I mean, do you expect that will be 9 sources. So getting a positive result there, I[
' 10 addressed in the same meeting as what to do about 10 one, it wouldn't be obvious where it came from, ~ 11 the families on the east side of South Marquette 11 and, second, just what we know of the site and ~ 12 and on Dixon? 12 characteristics at this point it isn't obvious ~ 13 A I would think so. I think the vapor discussion 13 that migration would occur to the south. ~
~ 14 would include all of those aspects. 14 Q So you are not considering doing any testing to
~ 15 Q When is this meeting or decision going to be 15 the south?
16 made? 16 A Not at this point, no. ~
17 A Okay. There's no meetings planned at this point, 17 Q And you don't expect you are ever going to be ~ 18 but I would think within the next 30 days. 18 doing any testing to the south for vapor, ~ 19 Q Okay. Does it start with some kind of submission 19 correct? 11
Pi 20 from you? 20 A It's not something that I had intended to do. ~ 21 A It would be -- Yes, it would start with a meeting 21 Q Okay. Because if the shallow groundwater which ~
22 with myself, my immediate supervisor and probably 22 as we have seen is contaminated were a source of II ~
23 the Bureau Director reach an agreed upon position 23 vapor mitigation to the structures above it, I 24 that would be then taken forward to see whether 24 those structures to the south of the plant could
25 upper levels of management agree or disagree. 25 be threatened by vapor contamination having ~ ~ ~ :''
Halma-Jilek Reporting, Inc. Experience Quality Service!
16 Q Okay. How many samples for PCBs are taken at 16 A -- southwest.
17 each home? 17 Q Okay. What would be the closest addresses where
18 A At each residential parcel there were two sample 18 you think the spraying occurred in the northeast?
19 locations, two samples taken at each location, so 19 A It would be 102 through like 154 or 162 South
20 four. 20 Marquette Street. Those properties I think would
21 Q Okay. And why do you believe that's enough to 21 be adjacent to that.
22 characterize the soil of that particular address? 22 Q Okay. I mean, if that's true, then how do you
23 A At this point what we were trying to do is 23 explain all the non-detects in 102 through 134?
24 develop a general understanding of where there is 24 A It's possible that, you know, the runoff would be
25 or is not PCB contamination off site and what 25 irregular going off the site. It wouldn't be a
Page 95 Page 97
1 those concentrations may be, do they exceed our 1 sheet flow, you know, and that so it's possible
2 guidance criteria or not. So given the size of 2 that those parcels just didn't receive oils that
3 these lots, they are not large lots, we felt two 3 had PCBs in them, didn't receive oils at all.
4 locations and two samples at two depths was a 4 It's, you know, it's possible that the materials
5 good level or effort to give us an idea of the 5 that were used for dust control, not all the
6 distribution of PCB concentration in these yards 6 materials used had a PCB content to them.
7 and enough that we could start making decisions 7 Q Do you plan to test for PCBs any further from the
8 whether or not there were remedial measures that 8 plant than what we see depicted on Schmoller 5?
9 needed to be taken or not. 9 For example, across South Marquette or across
10 Q Have you determined what the transport mechanism 10 Waubesa?
11 was for the PCB found at these homes? 11 A Not at this point, no.
12 A Based on what we know of the history of the site, 12 Q Okay. What do plan to do about those homes that ~ 13 there was a spreading of oils or some other 13 are contaminated with PCBs in the soil? t
~ 14 liquid, industrial liquid, for dust control in 14 A Again, that's a decision similar to how the vapor ~· 15 the northeast portion of the site and also I 15 decisions will be made. We'll have to present I 16 believe in the parking lot that existed towards 16 the data to management, and they must then decide
17 the southwest portion of the site, and that those 17 what remedial measures will be taken, if any. II 18 liquids had PCBs in them because we know from 18 Q Management of what?
~ 19 records that there were various hydraulic fluids 19 A At the Bureau Director or Division Administrator
20 used on the site that had PCB content in them. 20 level. ~
21 We believe those fluids were probably included in 21 Q DNR management?
22 the fluids that were disposed here, and so when 22 A DNR management.
23 those liquids were spread for dust control and 23 Q Have you talked to Madison-Kipp about what should ' 24 such, that it looks like there was runoff from 24 be done for those folks that have PCB
25 the Kipp property to portions of the backyards of 25 contamination in their soil?
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 102 Page 104 ~ ·~
1 Q So when you use the term "deep groundwater," you 1 A Locations. There may be multiple wells at each ~
2 are talking about something between 40 and 2 location, but five locations, yes. ~ 3 170 feet below ground surface? 3 Q When will those be installed? ~ 4 A I think these results are kind of an amalgamation 4 A Over the course of the next six weeks or so, I i 5 of that, yes. 5 believe. We have agreed to location. It's a r 6 Q Have you ruled out in your own mind the 6 matter of getting the drillers scheduled and
7 possibility that vapor contamination can be 7 completing the fieldwork and getting all the
8 coming off the deep groundwater, especially since 8 testing done.
9 some of it is only 40-feet deep? 9 Q Is it fair to say there is no plan in place to IJ
10 A Yes. Given the characteristics of the site, I 10 clean up the deep groundwater contamination?
11 don't believe the deeper groundwater 11 A Right now, no, there -- at this moment there is
i 12 contamination would be a source of vapor to 12 no plan in place to clean up the deep water
13 homes. 13 contamination. I 14 Q Why is that? 14 Q When do you expect to have such a plan in place?
15 A Again, we're about 18 feet to groundwater, so you 15 A Later this fall, earlier this winter type of a ~
16 would have 20 feet of clean, you know, if you hit 16 thing. ~ 17 contamination at 40 feet, that was your 17 Q Okay. I want to talk to you about what's
18 shallowest, you would have 20 feet of clean 18 happening on site right now. There were plans to ~ ~
19 groundwater lying above that, so you would have 19 install approximately 80 soil borings on site, ~ 20 to move vapor through 20 feet of saturated 20 correct? i 21 material and then up, you know, another 21 A Yes. I 22 20-some-feet of unsaturated material to a home, 22 Q Have those been installed?
23 and I don't think-- I don't think that's what 23 A Yes.
24 happening out here. 24 Q Okay. Has data been generated --
25 Q Is it fair to say that the vertical and lateral 25 A Yes. ~
Page 103 Page 105 I I extent of the deep groundwater contamination has 1 Q -- from those locations? .. 2 not been defmed? 2 A Yes.
3 A True. 3 Q Okay. Has that data been published?
4 Q Is it fair to say that the plumes drawn on 4 A Published, no.
5 Schmoller No. 9 are uncertain in their 5 Q Made publicly available on the website or
6 dimensions? 6 otherwise?
7 A That's true. 7 A It's not gone to the website, no. It's in our \
8 Q Is there any timetable for being able to draw a 8 files, which means it's publicly accessible, but
9 reliable plume for the deep groundwater? 9 it's not gone to the website. ~ 10 A Yes, we have an agreed to land plan with 10 Q Okay. Do you expect to put it up on the website?
~ 11 Madison-Kipp to install four or five -- I believe 11 A I don't know the plans for that. ~ 12 it's five additional monitoring wells or 12 Q Okay. If not you, who decides whether it goes up I
13 multiple-- Let me start over. 13 on the website or not? ~ 14 At five locations we have an agreement 14 A Linda Hanefeld and Mark Giesfeldt would make that t 15 to install multiple sampling locations stratified 15 decision.
16 by depth. We have agreed to five spots where we 16 Q Okay. Can you think of any reason why it
17 would be drilling, sampling and then determining 17 shouldn't go up on the website? ~ 18 where to sample the groundwater at depth. That 18 A Other than just like the sheer volume of it. It ~
19 should go a long ways towards defining the nature 19 may overwhelm people, because it's a lot of data. &! ~
20 and extent of the deep groundwater contamination 20 Q Is it possible for you to tell us just generally ~
21 for remedial decision making. It's my hope that 21 what those -- the results generated at those ~ 22 once that data is in, we can look at it and start 22 locations showed?
I 23 making some specific decisions on remedial 23 A Again, it shows the northeast area to be --
24 possibilities. 24 there's widespread PCE soil contamination in the
25 Q Are you talking about five new off-site wells? 25 northeast quadrant, and it extends down the i :\
·'
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/ll/12 Deposition ofR. Michael Schmoller
Page 106 Page 108 l
1 eastern side of the property. Then there are 1 to any of these residential properties and test
i 2 some lower level detects in the southeast and 2 deeper than you have previously?
3 southwest portions of the site. I think that 3 A Probably not, no, because if you don't find it in i 4 what the data tells us is that the source of the 4 the shallow soils, you are unlikely to find it in
5 PCE contamination in that area was probably 5 the deeper soils and that, so I would -- No, to
6 related to the spreading of these liquids at 6 go back over across the street and say sample at
7 different times, because we see the 7 15 feet--
8 contamination, you know, basically covers that 8 Q I'm not talking about across the street.
9 entire existing parking lot area to -- Our 9 A I'm sorry. Across the property line--
10 sampling focused primarily on the top four feet, 10 Q Yes.
11 but we see PCE contamination at various levels 11 A -- and sample at 15 feet, no, at this point we
12 throughout that region. 12 don't have any plans to do that.
13 Q In soil-- 13 Q Okay. And can you tell us anything about the
14 A In soil. 14 concentrations that were detected in these recent
15 Q --you are talking about? 15 soil borings?
16 A I'm Wking about in soU. 16 A In the off-site soil borings, again, all the
17 Q Let's say with reference to Schmoller 8, just 17 contamination levels we found were less than the
18 because that's soil sampling or VOCs, with 18 direct contact guidance criteria number.
19 reference to Schmoller 8, you said some of these 19 Q I'm talking about the more recent on-site soil
20 80 soil borings were made in the northeast corner 20 borings.
21 of the site, is that right? 21 A There were some locations where there was some
22 A Yes. 22 elevated PCE in the soils, and in some cases
23 Q All right. So how close to the fence line 23 those were the same location where I found
24 separating the property from 102 to 134 are we 24 elevated PCBs and elevated PAH's.
25 talking about? 25 Q When you say "elevated," can you give me any
Page 107 Page 109
1 A Probably within 20 feet or so. 1 better sense? Elevated can mean a lot of
2 Q 20 feet? 2 different things.
3 A Probably maybe just a little further than that, 3 A I can't picture any concentration numbers off the
4 but, yes, 20 feet. 4 top of my head real quickly exceeding the direct
5 Q Did the results of any of that testing make you 5 contact criteria number, which is 30 parts per
6 think that you ought to go back to these 6 million for PCE. We exceeded that in some
7 properties and conduct any other testing? !mean 7 locations.
8 at the homes. 8 Q Parts per million?
9 A Well, we originally ran for VOCs, and then we 9 A Parts per million.
10 went back a second time to pick up the PCBs and 10 Q Okay. And so we have been talking about the
11 PAHs and such. At this point, though, the 11 northeast. You said also some of the soil
12 dataset that we have, no, there isn't any -- I 12 borings were done in the southwest portion of the
13 don't think there's a need to. 13 site?
14 Q Well, specifically with reference to depth, okay, 14 A Yes, where there are parking lots now down to the
15 so if you found PCE contamination in the 15 southeast and stuff west of the building there
16 northeast corner, you know, within 20 feet of 16 were some PCE concentrations detected there,
17 these homes and on Madison-Kipp's site, at what 17 also.
18 depth did you fmd that contamination? 18 Q And in what concentrations? What were the
19 A Mostly in the top four feet. That's where most 19 highest concentrations, can you recall?
20 of the samples were taken. There were a number 20 A I don't remember numerically. They tended to be
21 of locations that went deeper, and we did find 21 a little lower than what we saw in the northeast,
22 some contamination deeper, but the top four feet 22 though.
23 is where the majority of that contamination lies. 23 Q If I wanted to, if I wanted to see those results,
24 Q Okay. But where you found contamination deeper 24 what should I do, send you a FOIA?
25 than that, does it make your think you should go 25 A Make a request through Steve. We have been
28 (Pages 106 to 109)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 110 Page 112
~ 1 handling aU those data requests through Steve. 1 screen at about 230 feet. We found low-level PCE ~
2 Q Who paid for that testing? 2 in those wells. I think one well was about 6, ~ 3 A That would have been Madison-Kipp. 3 the other well was in about 20 parts per billion
~ 4 Q And its contractor did the tests? 4 range.
to 5 A Yes. 5 We did the geology. The geology was ;
j
6 Q ARCADIS or some sub of ARCADIS? 6 pretty much as expected. The rocks we expected ~
~ 7 A Yes, mostly ARCADIS. I think they collected the 7 to see we saw. It gives us some indication where ~
8 majority of them, yes. 8 we think, if there's lateral migration off site
9 Q So what else -- Do you plan to do anymore to 9 at depth through the groundwater, that
10 require or request anymore soil borings on the 10 information has been useful to us in that regard.
11 Madison-Kipp site? 11 Q What did you fmd in that regard? Sorry to ~
12 A Not at this time, no, I don't think so. 12 interrupt you.
13 Q Okay. And if you go undemeath the building to 13 A It's not consistent, which is what we expected.
14 test the soils undemeath the building, that will 14 There are layers of rock that move the water
15 be something at some undetermined time in the 15 horizontally better than others, and you can see
16 future, is that right? 16 that in the data. There's a variation in the
17 A Right, yes. 17 concentrations of PCE as you go down, and so it ~ 18 Q Tell us what else, if anything else, has been 18 gives us an indication that there are some depths ~ 19 done in the last few months on site in terms of 19 that would be more of interest than others for
20 environmental investigation. 20 sampling off site to catch what would be the
21 A The two deep borings were installed at Locations 21 primary migration pathways. When we put these
22 3 and 5 to determine -- to look at the nature of 22 next set of wells in, we will be packer testing
23 the groundwater contamination at depth and 23 at different intervals, and that will help us
24 describe geology. Those were done. I'm not sure 24 decide where to place the screens. So if there
25 if you are aware of that work. The two borings, 25 is something going off site, we maximize the
I Page Ill Page 113
1 one in each location, went down to about 230 feet 1 change of detecting it so we know where it's ~ 2 or so. We cored them, so we looked at the 2 going, because it's probably not a uniform, broad ~
~ 3 geology, we looked at the VOC concentrations as 3 front vertically moving off site. It's probably ~ 4 we went down. That work was completed. 4 more -- It's more discrete than that. ~!
~
Q Do you have the results? Q Is this the first testing of this kind that has ~
5 5
~ 6 A Yes, we have the results for those two. 6 ever been done at this site?
7 Q Do you plan to post those, because those aren't 7 A At this site, yes.
8 nearly as voluminous as the soil borings, 8 Q Yes, that's what I mean. '
9 correct? 9 A Yes, correct. ~
10 A Yes. Again, what gets decided to be posted, I'm 10 Q Okay. How long has this kind of testing that you ~ ~
11 not sure what's going to go out there. 11 are talking about, I mean, this has been ~
12 Q What did you find? 12 available for decades, hasn't it? I mean, this I 13 A If you look at both locations, you consistently 13 is not particularly novel technology, driven kind ~ 14 find PCE concentrations down to a depth of about 14 of testing, is it? ~ • 15 180 feet in each location. From 180 to 230 feet 15 A The approach that we're using is called a i 16 -· 16 discrete fracture network approach developed by ! 17 Q This is water now? 17 some folks in Canada, and that's probably been i 18 A This is water. These are aU-- Well, yes, 18 developed and refined in the last ten years or '
' 19 because we started right at the water table and 19 so. A lot of work that's been done in Eastern
20 worked our way down. And so we find PCE 20 Dane County went into defining this approach. So
' 21 concentrations in the core analyses to a depth of 21 although the field techniques that we're using,
22 about 180 feet. From 180 feet to 230 feet we 22 geophysics and stuff have been available for
23 didn't find much. There was concentrations 23 years, using them kind of in this combination to I 24 there, but they were much less. 24 make these types of decisions or analysis is
25 At each location we put a five foot 25 relatively new. It's not brand new. It's been I
M
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/ll/12 Deposition of R. Michael Schmoller
Page 118 Page 120 ' '
1 portion. There were a number of geoprobes that 1 we're talking about the same thing?
2 were taken down to about a 40-foot depth or so to 2 A If you were to go straight west, like 130, 134, :
3 the top of bedrock, and then at that depth we 3 138 west of there to the edge of the building you
4 took a PCE analysis and that gave us a 4 would see some. There were, again, some fairly
5 distribution of groundwater contamination -- PCE 5 high numbers kind of almost towards the south
6 contamination at the top of rock. There are some 6 central middle of the parking lot, I believe.
7 in the southeast and southwest, also, but 7 There were some elevated numbers.
8 primarily in northeast, and it gave us a 8 Q Again, nearest what addresses?
9 distribution we can see, kind of a layout of the 9 A Okay. That would be, again, west of 134, 138,
10 PCE contamination. 10 but not as far as the building, more towards the
11 Q All on site, right? 11 middle of the parking lot. There were some
12 A All of those were on site. If there were -- If 12 elevated numbers there. Then there were
13 there were any ofT site, and I don't think there 13 concentrations in the, you know, double-digit
14 were, they would be along the bike path. There 14 range or so kind of scattered throughout the
15 may have been some there, but I think the 15 parking lot.
16 majority -- There were not any taken in like 16 Q Okay. Now the elevated concentrations that you ' "<
17 backyards or anything like that. 17 mentioned were found near the northeast comer of
18 Q And you say approximately 40? 18 the building, in other words, west of 114?
19 A I think it was like 28. 19 A Yes.
20 Q Okay. 28. To 40 feet. I'm sorry. 20 Q Do you recall what those concentrations were?
21 A Yes. 21 A It was in the several hundred -- Again, oh, gosh,
22 Q And these results are available in your ftles, is 22 I want to say like 500 to 700 parts per billion.
23 that right? 23 Q At what depths, do you recall?
24 A Yes. 24 A About 43 feet or so.
25 Q Just like the other things we have recently been 25 Q Forty-three?
\
Page 119 Page 121
1 talking about? 1 A Forty, 43 feet, somewhere in there. ~ 2 A Yes. 2 Q You said there were also elevated concentrations r 3 Q Can you generally describe the results? 3 I think in the -- and I'm sorry if I'm ~ 4 A It shows -- You know, again, it kind of shows 4 misspeaking now, but in the vicinity of the
5 what we expected. We see kind of an irregular 5 building near like 130 to 142?
6 pattern. I don't think it's something you could 6 A Right.
7 contour and that, but all of them showed PCE 7 Q And what were those, can you recall? ~ 8 contamination. It showed some elevated numbers 8 A Those were lower. They were in the hundreds of I~ 9 in the -- what would be kind of the northeast 9 parts per billion range, but they were lower than ~ 10 corner of the building. There was some fairly 10 what was up in the corner.
11 high PCE numbers in the groundwater there. 11 Q At the same depth? ~ ~ 12 Q In the comer of the building now, not the 12 A Yes, all in about the same depth. I~
13 property? 13 Q Yes. And you said there were also some elevated i 14 A The building, corner of the building. 14 concentrations kind of in the center of the j
~ 15 Q So that would be nearest what residential 15 property west of 130, 134, 138. What were those
,,
16 addresses, please? 16 concentrations? ~ 17 A It would be kind of directly west of 114 South 17 A Similar to the area directly to the west of that. ~ 18 Marquette Street. 18 Again, several hundred parts per billion. ~ 19 Q Okay. 19 Q And were there geoprobes in the last couple of
20 A And then there's that segment of the building 20 months installed on the southern part of the
21 that has a north/south orientation to it. 21 property, as well?
22 Q All right. 22 A Yes, at the same time that these were done in the
23 A Okay. There was some fairly high PCE groundwater 23 north there were some done in the south. Again,
24 concentrations along that area. 24 those did not show anything but maybe trace
25 Q Near what addresses, please, just so we make sure 25 levels again, but not a lot. I'm trying to I
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition of R. Michael Schmoller
Page 126 Page 128 ~
1 weeks or so to talk about technical issues, 1 that there are several chemicals identified ~
2 progress at the site, what field activities are 2 there? For example, ethyl acetate, vinyl ~ 3 going to go next, what those field activities 3 acetate, methyl ethyl ketone, heptane, toluene, ' 4 will be. This particular meeting we had at the 4 ethylbenzene, o-xylene, and there are others. I
t 5 Kipp facility, so we actually walked the 5 A Yes.
6 facility, looked at where some of the monitoring 6 Q Do you see those detections there?
7 wells were, looked at access issues, if there 7 A Yes.
8 were going to be any, and then we were in the 8 Q Along with PCE?
9 conference room there. Typically we meet at the 9 A Correct.
10 South Central Region DNR office, but this meeting 10 Q Have you dedicated any thought or investigative
11 was at the Kipp facility. 11 effort to determining the source of those
12 Q Okay. Apart from consultants, who have you dealt 12 chemicals in Mr. Sahfs sub-slab?
13 with most often representing the company? 13 A Yes, I spoke with Henry Nehls-Lowe and Terry ' 14 A Either Dave Crass or Mark Meunier. 14 Evanson, and also the Department has a contractor '
15 Q Okay. Had you ever, prior to February of 2010, 15 working on the site, SCS/BT2, and I talked with
16 dealt with Mr. Crass on any of your sites? 16 those three people about these results. What you
17 A I don't think so. No, not that I recall. 17 see in the indoor air and sub-slab, other than
18 Q Have you dealt with anybody else from the Michael 18 what we considered to be like a target compound, 1
19 Best Jaw finn since February of 2010 relating to 19 those are things that are often found in the
20 Madison-Kipp? 20 ambient air just in people's homes as a result of
21 A Yes. In one of the early meetings where we 21 whether it be cleaning fluid, degassing off the
22 discussed air testing issues, Timm Speerschneider 22 dyes of your furniture, you know, if someone has
23 from their office attended that meeting. 23 paint in their home, just a general mix of
24 Q You say air testing. What kind of air testing? 24 chemicals that are just found in the ambient
25 A We were just getting into the vapor testing 25 background in people's homes.
Page 127 Page 129 I 1 underneath homes and what the action criteria 1 Q But not in your sub-slab?
I 2 should be for levels of concern, and Timm sat in 2 A Well, you can get both, I guess. If you look,
3 on a meeting where Henry Nehls-Lowe from the 3 the sub-slab has fewer compounds. There are
4 Division of Health explained how the different 4 still some other ones that are there, the MEK,
5 guidance numbers are generated for both sub-slab 5 vinyl acetate, some of those, and ethyl benzene.
6 and indoor air concerns and why those are 6 There's some gasoline constituents or
7 sometimes look different than other air -- 7 potentially, but, again, the results that we
8 ambient air standards for different reasons. 8 were -- that we focused on were the perc results.
9 Q Okay. During any time that you have worked for 9 Q I appreciate that, but these did tum up. By the
10 DNR, did you ever run into a lawyer named Raymond 10 way this is-- Mr. Sahfs is not the only home '
11 Taffora? 11 where you see this phenomenon, right?
I 12 A Not that I recall. I don't recognize that name. 12 A Right.
13 Q All right. Let's look at Schmoller 10, please. 13 Q In other words, multiple chemical detections in
14 So the first page of this is a Jetter that you 14 addition to tetrachloroethylene, right? I 15 sent to a resident named Barry Sahf, right? 15 A Correct, yes.
16 A Um-hum. 16 Q And are you saying as to each of those homes you i 17 Q Yes? 17 think it's something inside the home that got X
1. 18 A Yes. 18 down into the sub-slab?
19 Q Okay. And it describes or it contains the Jab 19 A It's possible, because of the -- If you look, you
20 report which identifies the results of both 20 know, many of these homes the basement floors are ~ 21 sub-slab and indoor testing, correct? 21 not contiguous, they are cracked, they are
~
! 22 A Correct. 22 fissured, they have crawl spaces and that, so
23 Q Now what I wanted to ask you about particularly 23 there's an opportunity to find things in the
24 was the detections both in and under Mr. Sahfs 24 sub-slab other than chemicals that may be
25 home of chemicals in addition to PCE. Do you see 25 migrating from releases at Madison-Kipp.
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition of R. Michael Schmoller
Page 134 Page 136 ~ 1 A 1 I guess that's probably the best I can describe ' No, I was not.
r: 2 Q Okay. Were you aware that such conversations 2 it, not knowing all the legal ins and outs.
~ 3 were taking place? 3 Q Okay. How many conversations did you have with
4 A I know there were conversations between the 4 Mr. Crass on that topic? ~ 5 Department and Kipp relating to possible 5 A Maybe two or three. I 6 lawsuits, but beyond that I don't have any 6 Q Okay. And did you ask him for legal advice?
'-7 specific knowledge. 7 A No.
8 Q Okay. How do you know what you just told me? 8 Q Okay. Do you know why he furnished you the
9 A I probably heard that just through general 9 bullet points that we see in Schmoller 11 here?
10 discussions working on the site. I don't recall 10 A I know we had -· I know I talked to him about it, ij
11 specifically who told -- who would have told me, 11 because I know I went back and looked at the RCRA ~
12 but I understood that to be the case. 12 statutes to try and understand some things, and I I 13 (Exhibit 11 was marked.) 13 know I had some questions about it. I don't know '
14 BY MR. COLLINS: 14 if it was the primary purpose. I think I called • 15 Q I'm going to ask you some questions about 15 him. I don't know if that was the primary reason I 16 Schmoller 11, which is an email. Why don't you 16 for the call or what. I know we talked about
17 tell me when you are ready and I will go ahead 17 this issue and how the state action interrelated ~
18 and ask them. 18 with the citizen suit, and he sent these points E 19 A Okay. 19 back to me to explain or to give some explanation ~
' 20 Q Okay. Are you ready? 20 of how he understands the process to work.
21 A Yes. 21 Q Well, why are you talking with -- I mean, you are ; 22 Q Okay. So this is Schmoller Exhibit 11. It's an 22 the regulator for the company that is his client,
23 October 13, 2011 email from Mr. Crass at Michael 23 right?
24 Best to you, a copy to Mr. Meunier. Beginning in 24 A Um-hum.
25 the second paragraph Mr. Crass says to you, 25 Q Yes?
Page 135 Page 137 I ~·
1 "Also, I understand that you have received 1 A Yes. :
2 allegations that the Department is 'raising' to 2 Q And the Department you work for has lawyers,
3 cut a 'sweetheart' agreement with Kipp so as to 3 correct?
i 4 'cut off rights,' of potential plaintiffs to sue. 4 A Yes.
5 I want to respond to those allegations for your 5 Q I'm sorry. I don't understand why you are
6 consideration,'' and then there follows six bullet 6 talking to Madison-Kipp's lawyer about these
7 points. Do you see that? 7 issues rather than Mr. Tinker or some other
8 A Yes. 8 lawyer who is on your side.
9 Q Okay. Did you and Mr. Crass have any 9 A I think it was just the course of our general ,.,
10 conversations about the possibility of the 10 interaction on the site. For much of the time ~ 11 plaintiffs filing a RCRA claim? 11 that I have worked on this site it wasn't i
12 A We did talk about that. I can remember I went 12 uncommon to talk to the lawyers directly. Since i 13 back and I was looking at the statutes to try and 13 things have been more formalized, more things go ~
14 understand. Not being a lawyer, I didn't 14 through Steve now, Steve Tinker, but when I first ~
15 understand the importance of-- because we were 15 became involved with the site, it was routine I 16 negotiating the scope of work which was going to 16 that I would call Dave or Mark Meunier and talk
17 be part of a legal agreement between the state 17 about issues related to the site and where it was
J. 18 and Kipp, and for some reason there was an 18 going. So the conversation that led to this
19 importance or a difference between it being filed 19 email would have been just part of our normal ~ 20 in state court versus federal court, and I guess 20 day-to-day management of the site.
~ ~
21 I'm still not sure I understand the difference 21 Q You didn't see anything inappropriate about it? ~ 22 why there's an importance between the two. But I 22 A No. Again, the decisions on what lawsuit gets I 23 know there was a discussion of that, and there 23 filed, what court it gets filed in, what the I 24 was a concern on how what we were doing, what 24 legal implications of that are, I mean, that's
25 that -- how that related to the citizen lawsuit. 25 not -- those aren't decisions I make. Those h'
~ ~ ,,
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 138 Page 140 ~
1 aren't issues that I'm responsible for. 1 whether or not the DOJ could bring a state spill I 2 On or about this time we were having a 2 or federal RCRA suit in federal court?
3 series of pubUc meetings, you were at a couple 3 A Okay. I'm a half a step behind here.
4 of them, and, you know, the citizens were asking 4 Q Yes. The email that we have got here --
5 questions. What is this lawsuit, what's going 5 A Oh, this is about-- I'm sorry. I read Murphy
6 on, what are you doing, and I didn't have 6 Oil there. I was going to say-- Okay. No, I'm
7 answers. I was trying to come up with an 7 not even sure -- I'm not sure I can tell you
8 understanding of what this lawsuit meant in terms 8 exactly what that even means. I think it means
9 of where it was going to be filed, what it was 9 that whatever legal action would be associated
10 going to be asking for, etcetera. That's 10 with the Scope of Work that we had been
11 probably how the conversation came up. 11 negotiating for quite a number of months would
12 Q And so you thought the thing to do to get answers 12 not go in federal court, but would be filed in
13 was to go to Madison-Kipp's lawyers, is that 13 state court, I guess is what that means. But,
14 right? 14 you know, where suits get filed is not something
15 A I don't think that's the only place I went. I 15 people come and ask me.
16 think in the conversation with Dave it just came 16 Q I'm not asking you to guess about what anything
17 up. I am pretty sure this email was a result of 17 means. I'm wondering whether were you aware of
18 a phone call that I made to him, if I recall 18 Madison-Kipp asking the State of Wisconsin to sue
19 correctly. It probably was not exclusively about 19 it in or about October of 2011, that Madison-Kipp
20 the lawsuit issue. Again, there's a reference to 20 was asking the State of Wisconsin to bring suit
21 a Scope of Work Draft No.6 which was laying out 21 against Madison-Kipp? Were you aware that that
22 a number of our initial investigation and some 22 was going on?
23 remediation needs. So I know I did have 23 A I knew that there were discussions of a suit.
24 conversations with him about that, and that's why 24 I'm not sure if I knew that -- I know now that
25 he provided these bullet points. 25 there was a request on their part. I don't know
Page 139 Page 141
1 (Exhibit 12 was marked.) 1 if in October of 2011 if I knew that the suit
2 BY MR. COLLINS: 2 that was -- that we were discussing was part of a
3 Q Do you have Schmoller No. 12? 3 request from Madison-Kipp.
4 A Yes. 4 Q Well, how do you Irnow it now?
5 Q Okay. So that's an October 13, 2011 email from 5 A Because it's been talked about since then and I
6 Mr. Tinker to Mr. Crass and another lawyer over 6 have heard about it.
7 at Michael Best, and it says, "Enclosed you will 7 Q What have you heard since then?
8 find decisions from Judge Crabb dismissing a 8 A That there was a request that the Scope of Work
9 civil complaint filed by our office alleging 9 that we have negotiated and the legal framework
10 state and federal environmental law violations 10 that was going to go with it was initiated on a
11 and our attempt to intervene in the US Attorney's 11 request from Madison-Kipp to either our agency or
12 enforcement action. Judge Crabb held that our 12 DOJ or somebody, I'm not exactly sure who and
13 office is limited to bringing statutorily 13 that, but I'm not sure if I knew it in October of
14 authorized enforcement actions, and we were not 14 2011. I just don't recall.
15 statutorily authorized to bring state or federal 15 Q But you heard something along those lines more
16 claims in federal court. It doesn't appear that 16 recently?
17 our office would have jurisdiction to commence a 17 A Well, since then. I mean, that scope of work has
18 state spill or federal RCRA suit in federal 18 been negotiated for a number of months, and I
19 court." Do you see that? 19 have known for more than the last two months.
20 A Yes. 20 When you say "recent," I have probably known for
21 Q So particularly with regard to that last sentence 21 maybe a longer period of time than that, but I
22 now, the possibility that the DOJ would have 22 probably still don't completely understand all
23 jurisdiction to commence a state spill or federal 23 the ins and outs of it at this point.
24 RCRA suit in federal court, were you ever 24 Q Well, did someone tell you that Madison-Kipp had
25 involved in any discussions of those topics about 25 approached the state, either your Department or
36 (Pages 138 to 141)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 158 Page 160 ~
I were in place for some period of time. 1 taken a number of years to get done. Would it
~ 2 Q The Spill Law, for example, has been around for 2 have been a little faster, probably. I can't say
3 decades, hasn't it? 3 for certain. But I do know that in the two years I 4 A Yes. 4 or so that I have had it, I felt that an
5 Q It's cited by the state to Madison-Kipp in that 5 enforceable timeline was important to keep things
6 1994 responsible party Jetter, correct? 6 on task.
7 A Correct. 7 Q Okay. All right. Have you been involved in
8 Q So that enforcement power under that law has 8 discussions with anybody other than Mr. Tinker or
9 always been around, correct? 9 any other lawyer for the state in which that
10 A Correct. 10 person told you why it is that the state has yet
11 Q Do you know why the state waited until the fall 11 to sue Madison-Kipp. Could? You just say yes or
12 of 20 11 to start talking about using its 12 no right now?
13 enforcement power and possibly suing 13 MR. TINKER: I think you can answer yes I 14 Madison-Kipp? 14 or no whether you had discussions. What those
15 A The only part of that discussion I would have 15 discussions are will be the next question.
' 16 been in is for the first 14 years or so of the 16 BY MR. COLLINS:
17 site history everything has been done kind of 17 Q Why don't we take them one at a time. So have ~ 18 across the table, handshake, go do it, da-da-da, 18 you been involved in any discussions like that? ~ 19 and there had been delays over the years for 19 A Okay. Just give me the question again.
20 things getting done. I think my interest in it 20 Q Sure. Have you been involved in any discussions
21 was to have an enforceable timeline so we weren't 21 with anyone other than Mr. Tinker or any other
22 getting delays and reports being written, 22 lawyer for the State of Wisconsin where someone
23 fieldwork being done, whatever. So what may have 23 conveyed to you why it was that the State of
24 worked through the initial years of the site, 24 Illinois -- excuse me -- State of Wisconsin has
25 kind of an informal arrangement, I wanted it to 25 not sued Madison-Kipp?
Page 159 Page 161
1 be formal so we had some way of saying, "You 1 A Have not sued Madison-Kipp. No, in that I do not ~ 2 missed a deadline and we have got the authority 2 recall any discussions -- The only person that I
3 to do something." 3 possibly could have talked to about that with
4 Q Do you think the way of the state doing business 4 would have been Dino Tsoris, Constantine Tsoris,
I 5 with Madison-Kipp before you showed up actually 5 about why there was not an enforcement action
6 worked? Do you think that informal handshake 6 taken earlier in the site history, but I don't --
7 relationship worked? 7 I think by the time I got the site I think I
f 8 A If you look back, there was a lot of 8 viewed that as kind of a water, you know, over
9 investigative work and remediation work that was 9 the dam type of thing, and what decisions were
10 accomplished during those first 14 years or so. 10 made were made. I don't recall asking anybody or ~ 11 Certainly you could argue that it could have been 11 anybody telling me why there were no enforcement I 12 done maybe quicker, that there were delays in 12 actions taken in the early history of the site. ~
13 there. I think there was some frustrations on 13 Q Okay. So now you mentioned Mr. Tsoris' name. ~ ' 14 the Agency's part at the rate at which things got 14 Let me just put a question on the record so we ~ ~
15 done at different times and that, so if in 1995 15 have it so we're outside the realm of guesswork. ~ 16 we would have had a formal agreement with 16 Did you ever have a conversation with Mr. Tsoris ~ 17 specific dates, maybe things would have gone 17 at any time about why the state has not taken
~ 18 quicker, although I don't-- I'm not 100 percent 18 enforcement action against Madison-Kipp? I 19 convinced of that, because even if we would have 19 A None that I can recall.
20 had a formal agreement with specific dates, once 20 Q Okay. The state just a couple of months ago i
21 we got in the investigation and we started seeing 21 served an NOV, Notice of Violation, on
22 the size of the problem, we could have missed the 22 Madison-Kipp, correct? i 23 vapor issue. 23 A Yes. ~ 24 Once we started seeing the size of the 24 Q Okay. To your knowledge has the state previous ~ 25 soil and groundwater problem, it still would have 25 to this one Notice of Violation ever served
~
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition ofR. Michael Schmoller
Page 162 Page 164 • ~ 1 Madison-Kipp with any other Notice of Violation 1 when it was some statements that Madison-Kipp had ~ 2 relating to PCE contamination at or emanating 2 gone to the Governor's Office about them working I 3 from the Madison-Kipp site? 3 with the state and what we were requiring them to
4 A I don't think there have been past NOVs. The NOV 4 do at the site. I don't believe I ever knew that
5 that was relatively recent was associated with 5 they had gone to the Governor's Office in
6 PCBs, not PCE. 6 relationship to trying -· for the state to take
7 Q I understand that. I'm sorry. Let me ask that 7 any action to try and preempt the citizen suit
8 question again. Has the Department of Natural 8 type of thing. I think there were issues raised
9 Resources or the State of Wisconsin issued any 9 at the Governor's Office about what we were
10 NOV to Madison-Kipp ever for any aspect of the 10 asking them to do, how much we wanted them to do,
11 PCE or VOC contamination? 11 you know, why isn't the site done, that sort of
12 A I don't think so. 12 thing.
13 (Exhibit 16 was marked.) 13 Q Why do you think that? You said you think that.
14 BY MR. COLLINS: 14 Why do you think that?
15 Q Okay. All right. So Schmoller 16 is a two-page 15 A I believe I have heard that conversation or I
16 document. It's got my name up in the upper, 16 have heard people relate to that, that that had
17 left-hand comer of the first page because this 17 occurred.
18 is printed off my computer. These two pages are 18 Q Somebody told you that?
19 part of a subpoena response I got from the 19 A Yes, I believe I heard that.
20 Govemor's Office. They emailed it to me, and so 20 Q Who told you that?
21 when I printed it off my computer, my name shows 21 A Again, that would have been someone like either a
22 up on it. We have got two pages. We have got an 22 Linda Hanefeld or a Mark Giesfeldt, because they
23 email from a lawyer named Raymond Taffora to 23 would have been the ones who would have heard
24 Brian K. Hagedom, who I don't know what he is 24 about such a meeting or such a contact, and they
25 today, but at least was at the time the Chief 25 would have told me just as a matter of course of
Page 163 Page 165
1 Legal Counsel to the Govemor. 1 day-to-day discussions about the site.
2 Mr. Taffora writes to Mr. Hagedom, he 2 Q I don't know what would have told you means.
3 says, "Brian, This is one of the matters I'd like 3 What I want to know is did Hanefeld or Giesfeldt
4 to talk about with you. Can you call me sometime 4 or anybody tell you that Madison-Kipp had gone to
5 today on it." Attached is a Madison-Kipp 5 the Govemor's Office concemed about or
6 Corporation Background which Mr. Taffora sends to 6 complaining about how much work the Department
7 Mr. Hagedom. You are free to read any and all 7 was requiring it to do out at the site?
8 of it. I want to direct your attention to the 8 A Yes, I did hear a concern like that.
9 last bullet point. That's the one I want to ask 9 Q Okay. Who told you that?
10 you about. It says-- Well, the last bullet 10 A It would have been either Linda or Mark. I don't
11 point says, "MKC would prefer to spend its 11 recall who.
12 resources defending allegations against the State 12 Q When did Linda or Mark -- And by "Linda" you mean
13 of Wisconsin and restoring the environment than 13 Hanefeld and Mark Giesfeldt?
14 paying out-of-state plaintiffs' counsel given 14 A Yes.
15 that the federal statute provides for the 15 Q When did Linda or Mark tell you that?
16 plaintiffs' attempted recovery of their fees and 16 A I could not recall specific dates.
17 costs." Do you see that? 17 Q Well, I assume it was while you were-- it was
18 A Yes. 18 February 2010 or later, right?
19 Q Have you ever heard, I don't just mean back in 19 A Yes, during my tenure as project manager.
20 the fall of 2011, but then or any time since that 20 Q Okay. Can you tell me a year when you would have
21 the Govemor's Office had anything to do with the 21 heard that?
22 possibility that the state might ftle a complaint 22 A I could not narrow it down more than either 2011
23 against Madison-Kipp? Did you ever hear about 23 or 2012.
24 any Govemor's Office involvement in that? 24 Q Okay. And what else did they tell you about
25 A I'm sure I have heard -- I heard at some point 25 that?
42 (Pages 162 to 165)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition of R. Michael Schmoller
Page 166 Page 168
1 A Nothing that I recall. 1 involved with the DOJ or not?
2 Q Did it sound to you like Madison-Kipp was 2 A Not that I know of.
3 complaining about something that you were 3 (Exhibit 17 was marked.)
4 requiring Madison-Kipp to do or insisting that 4 BY MR. COLLINS:
5 Madison-Kipp do? 5 Q Before you look at that, can I ask you a couple
6 A That would have been -- Yes, because ultimately 6 more questions on the topic we were just on.
7 most of the requests that the Department was 7 A I'm sorry. What was that?
8 making of Kipp for investigation or cleanup would 8 Q Before we get into this Schmoller 17, can I
9 have originated with me, so it would have been a 9 follow up on the area we were just talking about.
10 complaint about-- Well, again, you know, I don't 10 A Sure.
11 solely dictate, you know, what the data is he 11 Q Okay. All right. So you told me Hanefeld or
12 asks for, so it probably would have been a more 12 Giesfeldt came to you and told you certain
13 general complaint of what the Remediation and 13 things. Did you ever hear from anyone else that
14 Redevelopment Program is asking of Kipp. A lot 14 Madison-Kipp had gone to the Governor's Office
15 of the ideas would have originated with things 15 complaining about any behavior or decision of
16 that I was thinking about. 16 DNR? ;
17 Q Okay. So what was DNR asking or requiring of 17 A Related to Kipp or just in general? I'm sorry.
18 Kipp that caused Kipp to go to the Governor's 18 Q Relating to Kipp, yes.
19 Office and complain, at least according to what 19 A Not that I recall, no. I 20 you were being told by Hanefeld or Giesfeldt? 20 Q Whatever Hanefeld or Giesfeldt told you, was it
21 A That I don't know. I don't think the discussions 21 verbal as opposed to in writing?
22 ever got that specific. 22 A Yes, it would have been just in discussions, yes.
23 Q Well, did they tell you why they were relating 23 Q In all of your experience with DNR, had you ever
24 this to you? 24 been told by a superior that a company whose
25 A Just as part of, hey, this is what I heard. 25 contamination problem you were overseeing on
Page 167 Page 169
1 Q All right. 1 behalf of the people of the state had gone to the ~
2 A You know, it's just background information. 2 Governor's Office complaining about decisions you
3 Q Okay. But did you ever ask them, you know, what 3 were making? Had that ever happened to you
4 am I supposed to -- how am I supposed to 4 before?
5 interpret that? Did you ever ask whoever told 5 A It may have happened in relation to certain
6 you this, Hanefeld or Giesfeldt, what am I 6 Superfund sites, because those were bigger
7 supposed to make of the fact that somebody has 7 efforts. We were asking a lot of companies to do
8 gone to the Governor's Office over decisions I'm 8 things.
9 making? 9 Q Respectfully, I'm not asking you about -- A lot ~ 10 A No, because it wouldn't have made any difference 10 of things may have happened. If you can tell me
11 to me. I know I didn't ask that. 11 for sure that it ever happened before, I'd like ~
12 Q Well, how did you feel about the fact that 12 you to tell me that, rather than speculate about ~
13 Madison-Kipp was going to the Governor's Office 13 possibilities. ~ ~
14 complaining, evidently, about things you were 14 A I cannot recall a specific incident where it's ~ 15 insisting that it do? 15 happened. 1
16 A You take it in stride. It wasn't something that 16 Q How long have you been with the Department?
17 I really thought a whole lot about. 17 Since '88, right?
I 18 Q Okay. You told me earlier you had never had 18 A I started in '82.
19 contact with Mr. Taffora. That's the gentleman 19 Q We're coming up on 30 years?
20 that wrote this email, Schmoller 16. You told me 20 A Yes.
21 that, right, you never had contact with him, 21 Q So as far as you can recall today, Madison-Kipp ~
22 correct? 22 is the first time where a company went to the
23 A I don't recognize the name or the person. 23 Governor's Office complaining about decisions you
24 Q I was going to ask you you don't even recognize 24 were making on an investigation and cleanup site,
25 the name whether he was somebody formerly 25 is that right?
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition of R. Michael Schmoller
Page 186 Page 188 ~
I 1 '05, correct? 1 homes, and then wherever it leads you from there. ij
2 A Yes. 2 Q So, for example, if we look at the PCE parameter, i 3 Q Okay. And then ran out to September of '09, and 3 the tetrachloroethylene, in September of-- I 4 that's the last test results shown on this 4 Excuse me. In 2008 you see numbers in the triple
5 exhibit. Can you tell us, if we go across the 5 digits and a couple even over 1,000 parts per
6 top from left to right, can you tell us where the 6 billion by volume, right?
7 probe locations are? There are, I think, nine 7 A Yes.
8 probe locations indicated across the top. So 8 Q And that's in somebody's yard, correct?
9 starting with VP-1N, please. 9 A Correct.
10 A VP-1N and 2N and VP-1S and 2S are nested next to 10 Q Okay. And if you look at the vapor probes, 1N,
11 each other. The N wells are in one location, the 11 2N, 1S, 2S, those are on Madison-Kipp's property,
12 S wells are in another location right along the 12 but very near the boundary line between
13 eastern property line of Madison-Kipp near 13 Madison-Kipp's property and these homes, correct?
14 Monitoring Well 5, I think just a little south of 14 A Correct.
15 Monitoring Well 5. The vapor probes, the 1 and 15 Q Now how far away would you say? How far are the
16 2, represent different depths of monitoring in 16 vapor probes 1N, 2N, lS, 2S, how far away are
17 the soil. 17 they from somebody's yard?
18 Q Okay. 18 A Oh, within a few feet.
19 A And they would represent vapor concentrations on 19 Q By "a few feet" you mean 5, 10?
20 the Kipp property near the property line between 20 A Five to 10. There's a fence line, and they are
21 Madison-Kipp and the residences directly to the 21 right up against the fence line.
22 east. The 150 Sand D, the 154 Sand D and the 22 Q From 2005 to 2009, we're looking at just PCE now,
23 162 S and D are residential addresses. 23 a few feet away from people's homes you have
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition of R. Michael Schmoller
Page 194 Page 196 m
1 f01ward with sub-slab sampling units in all three 1 disagreement over what the data was telling us, I I 2 homes in question. Two samples will be collected 2 and lacking an enforcement tool to set dates or •
3 from each probe over a 60-day time period. Based 3 whatever, you can see the time period it took to ~ 4 on the analytical results, we will decide what 4 get the work done.
5 the next action should be. Kipp is hesitant to 5 Q You believed you were dealing with a potential
6 move forward with this work. They wanted an 6 public health issue here, right?
7 extended time frame to do the work. I said no,'" 7 A Yes.
8 and then it goes on. So is it fair to say, at 8 (Exhibit 22 was marked.)
9 this time we're in August of 2010, you have seen 9 BY MR. COLLINS:
10 the vapor results literally on the properties of 10 Q Do you have 22, Mr. Schmoller?
11 a few of these homes on South Marquette Street 11 A Yes.
12 and also on Kipp property immediately adjacent to 12 Q Twenty-two is an email from Nauta to you and also
13 those homes, and you are concerned about vapor 13 Mr. Meunier at Madison-Kipp. Do you see that?
14 migration actually getting to these homes, 14 A Yes.
15 correct? 15 Q All right. And the subject is soil gas.
16 A Correct. 16 Mr. Nauta says, on June 15th of 2011, "!think we
17 Q And you want sub-slab testing, right? 17 have pretty well defined the northern and
18 A Yes. 18 southern extents of the soil vapors. The
19 Q And you have been talking -- Come August 13, you 19 detection level is .1 ppb. 202 South Marquette
20 and your folks at DNR have been discussing that 20 came in at .3 ppb of PCE, and 142 came in at 1.8
21 issue with Kipp and advising Kipp of your view of 21 ppb. Tricholoroethane and the various forms of
22 things for several months, correct? 22 dichloroethene were all non-detect at both
23 A Yes. 23 locations." Do you see that?
24 Q And isn't it fair to say that Kipp was resisting 24 A Yes.
25 doing that testing? 25 Q Okay. The conclusion expressed there by
Page 195 Page 197
1 A Yes, there were some delays going on there. 1 Mr. Nauta, that is, that we have pretty well
2 Q Why were they resisting? At least what were they 2 defined the northern and southern extent of the
3 saying? What were they offering as a reason for 3 soil vapors, that was inaccurate, wasn't it?
4 their resistance? 4 A Correct, yes.
5 A As I recall -- I'm not -- Their argument back, as 5 Q Because, in fact, the PCE vapor was found in the
6 I recall it, was that they were not convinced 6 same residential area both north and south of
7 that we were going to be finding -- the data that 7 where he said the northern and southern extent
8 existed convinced them that, one, we would find 8 were, correct?
9 concentrations under the sub-slab on that. I 9 A Correct.
10 think they disagreed with our interpretation of 10 Q Okay. Did you-- Well, you've had extensive
11 the data in terms of what it meant for possible 11 dealings with Mr. Nauta. In fact, you still do,
12 sub-slab data. Then they also -- there's also, 12 correct?
13 if you look in our -- in the guidance or 13 A Yes.
14 somewhere along the line there was always this 14 Q Okay. Did you ever come to not trust his
15 discussion of kind of 100 feet being a rule of 15 conclusions and recommendations about vapor
16 thumb for vapor migration for chlorinated&. 16 contamination and how far it might have gotten
17 Q 100 feet from where? 17 and where it might be found?
18 A From a source area. I know that was pointed out 18 A I disagreed with his conclusions. I don't
19 a couple times saying, "Look, you know, we're 19 think -- Distrust is not a good word on that. I
20 pushing that limit, and, you know, we just don't 20 think disagree is probably better.
21 think you are going to find it there, so why do 21 (Exhibit 23 was marked.)
22 we need to do it." Our position was, "Geez, the 22 BY MR. COLLINS:
23 data looks to us like there could be something 23 Q Do you have 23 there, Mr. Schmoller?
24 going on, so you need to do it." So there was 24 A Yes.
25 like I guess I would say a professional 25 Q Okay. The larger email is one that you write to
50 (Pages 194 to 197)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11/12 Deposition ofR. Michael Schmoller
Page 198 Page 200 ~,
1 John Hausbeck, Henry Nehls-Lowe, Theresa Evanson 1 A Right. ~ 2 and some other folks, Jessica Maloney and Brynn 2 Q Okay. You would not have said in the middle of ~ 3 Bemis. Its subject is confirmation soil samples 3 2011 that the extent of the soil vapor impacts in ~
4 at 150, 154 and 162 South Marquette, right? 4 the residential area had been defmed to that 1 5 A Yes. 5 point, correct?
6 Q Now those homes, 150, 154 and 162, are homes that 6 A Yes, I think in June of2011 my thinking was
7 were -- that show up on Schmoller 18, right? 7 probably that we had a bigger problem than those
8 A Yes. 8 number of homes.
I 9 Q Okay. So you say, "!just spoke with Bob. He 9 (Exhibit 24 was marked.)
10 verbally gave me the following PCE soil results 10 BY MR. COLLINS:
11 for the confirmation samples taken in the 11 Q So this is another letter from Mr. Nauta to you. :
12 backyards of these three residences. Remember, 12 This one is dated July 19th of 2011. On the
13 these soils were treated in 2005 when the soils 13 third page we have got his conclusions.
14 along the east side of the building near Well 14 Mr. Nauta is saying to you, "The extent of soil
15 Nest 5 were treated by chemical oxidation. All 15 vapor impacts appears to be defmed to the north
16 of the samples were collected June 7 from a 1 to 16 and south of the properties on the west side of
17 2 foot depth in the locations near the previous 17 South Marquette Street. Radon systems have been ~
18 November 2002 soil sampling." Now are we -- 18 installed in the basements of five properties
19 We're talking here about soil contamination, 19 removing PCE vapors from beneath the basement and
20 right? 20 discharging them to the atmosphere." Do you see '
21 A Correct. 21 that?
22 Q Okay. Do you know why there was a six-year lag, 22 A Yes.
23 a six-year passage of time between the 2005 23 Q All right. So Mr. Nauta's conclusion expressed
24 treatment of the soils and this testing that you 24 in the letter that the extent of soil vapor
25 are describing in this email? 25 impacts appears to be defined to the north and
Page 199 Page 201 ~ ~
1 A I can't speak specifically to that, being the 1 south of the properties on the west side of South I 2 project manager, so why there were no 2 Marquette Street was inaccurate at the time he
3 confirmation samples collected after the 3 expressed it, correct? l
4 treatment, because there were confirmation 4 A Yes, we would not have agreed to that.
5 samples, post-treatment samples, collected on 5 Q Okay. And you didn't, right?
6 site. Why there were none collected off site, 6 A Right.
7 I'm not sure. 7 Q In fact, in the last sentence of the letter says, '
8 Q Okay. Is it fair to say that by the time you are 8 "No further soil sampling or remediation is
9 writing this email, which is, you know, the 9 anticipated at this time." Do you see that? ~ r, 10 middle of 2011, that from the evidence you were 10 A Yes.
I 11 seeing, from the data you were seeing, you were 11 Q And you didn't agree with that at that time,
12 concerned that you had a significantly more 12 either, did you? ~ ~
13 extensive vapor contamination problem than had 13 A No, we would have been looking for more. 1' •'
14 been previously discussed and addressed? Is that 14 (Exhibit 25 was marked.) ~;
i 15 true? 15 BY MR. COLLINS: ~
16 A Vapor problem? 16 Q 1\venty-five is a document entitled, "Kipp Ideas." ~ 17 Q Yes. Weren't-- 17 Do you see that? ~
18 A I'm sure by that time I was convinced that the 18 A Yes. ~ 19 vapor problem was bigger than those three to five 19 Q Do you know who wrote that?
20 homes directly adjacent to it. In June of 2011 20 A I did.
21 what I exactly had envisioned of it, I'm not 21 Q Okay. And there's no date on it. We did get it ~ 22 sure. 22 from the DNR documents, just so you know, but do i 23 Q Okay. So this is one of the reasons why you keep 23 you know when you wrote it or what prompted you
24 testing until you run out of vapor, right, to 24 to write it? ' 25 fmd out how far its gone? Is that correct? 25 A I do things like this to kind of just pull my own
~ !i
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneidervs. Madison-Kipp 9/11/12 Deposition ofR. Michael Schmoller
Page 202 Page204 ~ ~
~ 1 ideas together, and I will type them up and then 1 A Yes. I ~ 2 I will save them on my computer and I will go 2 Q And then you go on to say, "Need to defme extent
3 back and look at them periodically, because when 3 of problem, remediate to the extent practical and
4 you have a site like this, there's lots of moving 4 deal with health issues, environment and health
5 parts and I do this a lot just to kind of keep on 5 requirements." You are talking with specific
6 topic. 6 reference to the vapor contamination there,
7 Q Okay. So among the things you say in the Kipp 7 right?
8 Idea document is vapor results indicate new, 8 A Yes.
9 larger problem. After earlier tests thought we 9 Q And you are concerned about how far into the
10 had seen limit of vapor problem. June email. 10 residential area it may have spread, right?
11 Not true. Northern most results seem to indicate 11 A You know, how far has it spread and also I was--
12 a separate source, maybe part of old sewer line 12 my fear was that we didn't want to get into the
13 issue. These are not really new requests. Goes 13 decision making where we relied on mitigation
14 back to our earlier requests for a perimeter soil 14 alone, that we wanted to remediate the source of
15 gas survey. Do you see that? 15 the problem. As an agency we have two
16 A Yes. 16 responsibilities, public health protection and
17 Q Do you see the reference there to "maybe part of 17 restore the environment. So that note to me is
18 old sewer line issue?" 18 to keep pounding it in my head that we just can't
19 A Yes. 19 put 100 mitigation systems around Kipp and say we
20 Q When we talked a couple of hours ago, I think 20 did the job. That's what that is all about.
21 your testimony was essentially you have no plans 21 Q Okay. Because the 100 mitigation systems are, so
22 to pursue the possibility that this sewer line is 22 to speak, treating the symptoms and not getting
23 a conduit for contamination, right? 23 at the -- what's causing it, right?
24 A Correct. 24 A Contamination avoidance as opposed to
25 Q So did you change your mind since you wrote this? 25 remediation.
Page 203 Page 205
1 A No. What this-- You know, our earlier 1 Q Okay. A reference in the frrst paragraph is made
2 discussions were focused a lot like on sewers 2 to a perimeter soil gas survey. Do you see that?
3 under Waubesa Street, Fairview, Marquette or 3 A Yes.
4 wherever. This sewer line is the one that runs 4 Q That was never done, was it?
5 east/west on the Kipp property along the north 5 A No, we had asked for it and it was denied and not
6 end of the property there, and this one was 6 done.
7 identified early on in some of the earlier 7 Q Denied by whom?
8 reports where contamination may have gotten into 8 A Kipp.
9 that sewer and discharged towards the northeast 9 Q Okay. Did they tell you why?
10 end of the Kipp property. The vapor results that 10 A Bob had made the argument that he didn't think it
11 indicate a new, larger problem, those are vapor 11 was -- it was cost effective or worthwhile to do,
12 results from right where the sewer line 12 and the thinking, as was expressed to us, was
13 discharged in that area. So we were getting some 13 that the vapor issue just didn't warrant that
14 real high vapor readings up there on some probes 14 level of investigation.
15 on the Kipp property, and so there was some 15 Q Okay. You believe even today that it did, right?
16 thought that this sewer line, because there was 16 A Yes, I think if we had done that back then, we
17 some real high soil readings along that sewer 17 might have been further ahead.
18 line, also, and so that's what that one is about. 18 Q Okay. Do you !mow when the Department began to
19 So this line kind of falls in a little different 19 be concerned about the possibility of vapor
20 category than some of the municipal lines that 20 migration from the Madison-Kipp site to off-site
21 we're talking about off site. 21 locations?
22 Q Okay. About two-thirds of the way down this 22 A It would have been -- Let me get my dates all
23 document you see there's a paragraph that begins, 23 straight. You know, when I first got the site it
24 "Mitigation alone is not acceptable." Do you see 24 took me several months to get up to speed, so the
25 that? 25 earliest it would have been would have been mid
52 (Pages 202 to 205)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112
1
2
3
4
5
6
Page 206
to latter part of 2010, maybe into 2011,
somewhere in there when I started looking at the
data and having conversations with Terry Evanson
and Henry Nehls·Lowe saying, "Does this on-site
vapor data and these vapor probes in the
backyards indicate a big enough problem that we
1
2
3
4
5
6
7 should be doing sub-slab sampling," and their 7
8 answer at that time was yes, so it was at the 8
9 time those discussions were taking place. 9
10 Q Do you !mow if concem for the potential for 10
11 vapor migration off the Madison-Kipp site 11
12 predated your involvement at the site? 12
13 A I don't know. 13
14 (Exhibit 26 was marked.) 14
15 BY MR. COLLINS: 15
16 Q Okay. So Schmoller 26 is a memorandum which your 16
17 predecessor, Mr. Tsoris, wrote to the file dated 17
18 August 25, 2004. He's describing a communication 18
19 he had with Mr. Nauta. In the second paragraph 19
20 he says, "I stated that the proposed remedial 20
21
22
23
24
25
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
A
Q
A
Q
action activities need to move forward in a
timely manner. In particular, the soil vapor
probes need to be installed to evaluate the
potential for vapor migration. Robert Nauta
stated that he's planning to contact Madison-Kipp
Page 207
and he will call me with an update. I stated
that if I do not hear from him or representatives
of Madison-Kipp, I would send a letter to the
company referencing the delay in responding to
the necessary remedial actions." Do you see
that?
Yes.
Okay. So you believe from reading this here that
Mr. Tsoris is concemed about the possibility for
off-site vapor migration, right?
Yes.
Now if we go back to Schmoller 18 for just a
second, that's the table with the data on it. Do
you see that?
A Yes.
Q All right. Now that data generation starts in
February of '05, which is about half-a-year after
Mr. Tsoris writes this memo, correct?
A Yes.
Q All right. You can see again, if we just look at
PCE in February of '05 and the results generated
on the company's site, there's 51,800 parts per
billion by volume PCE, right?
A Yes.
Q Now you would say that clearly creates a concem,
21
22
23
24
25
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
A
Q
Deposition ofR. Michael Schmoller
Page 208 i ~ especially since the result is generated five
feet or so from a family's yard, that that result
validates a concem for the potential for vapor
migration, right?
Yes, I would say that.
All right. How quickly after those numbers were
generated in testing a few feet from people's
homes in February of '05 should someone have been
testing the sub-slabs of those homes just a few
~
I ~
feet further away? ,.
A Based on today's understanding of vapor issues, ~ that would happen within a period of, you know, a ~
few weeks to a couple months type of thing. ~
Whatever it would take to get -- to meet with the ~
RP, arrange for their contractor to get access t and connect the samples and that. In February of ~
'051 don't know what the thought process would ~ have been. I don't know, whether it would be ~ Dino and the other people within the agency, what .~ their understanding of vapor issues and migration ~ and risks, you know, seven years ago I don't know
what our level of understanding was at that
point. In today's time we would be out there in
a couple months looking at the sub-slab.
Q Okay. By the way, had you ever seen Mr. Tsoris'
Page 209
memo, Schmoller 26, before today?
Probably in reviewing the file when I got it I A ~ probably saw it. Did I read it in detail, ~ ~ probably not, just given the size of it. Usually ~ when you get a file you focus more on the reports ~ than the memos. ~~
Q
A
Does reading this memo and your testimony to this
point in the deposition today refresh your
recollection as to whether you have ever spoken
to Mr. Tsoris about the possibility of vapor
migration from the Madison-Kipp site?
Again, yes, I don't recall any specific
discussions with Dlno during the transition
period. So, no, I don't remember any.
Q One of the things earlier you mentioned that you
did when you first came on the Madison-Kipp site
in February of 2010 is you reviewed the file. I
think you said it took a little while, right?
A Yes, that's standard. You try to do that.
Q It's a big file, but is it fair to say, based on
your review of the file to things that happened
prior to February of 2010 and then things that
happened since, based on your immediate and
direct experience with Madison-Kipp, that there
is a history at this site of Madison-Kipp
I ~ ~
I
Halma-Jilek Reporting, Inc. Experience Quality Service!
Kathleen McHugh and Deanna Schneider vs. Madison-Kipp 9/11112 Deposition of R. Michael Schmoller
Page218 i 1 VARGA, BERGER, LEDSKY, HAYES & CASEY, I
125 South Wacker Drive, Suite 1250, Chicago, Illinois, I 2 60606-4473, by MR. NORMAN B. BERGER, appeared on behalf of the Plaintiffs. i 3
I MICHAEL, BEST & FRIEDRICH, LLP, 100 East 4 Wisconsin Avenue, Suite 3300, Milwaukee, Wisconsin,
53202-4108, by MR. JOHN A. BUSCH, appeared on behalf of 5 Madison-Kipp Corporation. 6 MICHAEL, BEST & FRIEDRICH, LLP, One
South Pinckney Street, Suite 700, P.O. Box 1806, 7 Madison, Wisconsin, 53701-1806, by MR. DAVID A. CRASS,
appeared on behalf of Madison-Kipp Corporation. 8
TROUTMAN SANDERS, LLP, 55 West Momoe 9 Street, Suite 3000, Chicago, Illinois, 60603-5758, by
MS. REBECCA L. ROSS, appeared on behalf of Continental 10 Casualty Company. 11 MEISSNER, TIERNEY, FISHER & NICHOLS,
S.C., 111 East Kilbourn Avenue, 19th Floor, Milwaukee, 12 Wisconsin, 53202-6622, by MR. MICHAEL J. COHEN,
appeared on behalf of United States Fire Insurance 13 Company. 14 MR. STEVE TINKER, Assistant Attorney
General, P.O. Box 7857, Madison, Wisconsin, 53707, 15 appeared on behalf of the Wisconsin Department of
Natural Resources. 16 17 That said deponent, before examination, 18 was sworn to testify the truth, the whole truth, and 19 nothing but the truth relative to said cause. 20 That the foregoing is a full, true and 21 correct record of all the proceedings had in the matter 22 of the taking of said deposition, as reflected by my 23 original machine shorthand notes taken at said time and 24 place. 25
Page 219
1 2
3 Notary Public in and
4 for the State of Wisconsin
5 6
Dated this 22nd day of September, 2012, 7
Milwaukee, Wisconsin. 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
56 (Pages 218 to 219)
Halma-Jilek Reporting, Inc. Experience Quality Service! (414) 271-4466