IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF AMADOR ---oOo--- The People of the State of California) Plaintiff, ) ) vs. ) No. 98-0767 ) ROBERT ROLAND WOMACK, DAVID STERLING ) MASON III and MARK SHERRILL, ) Defendants. ) _____________________________________) PROCEEDINGS HELD BEFORE THE GRAND JURY NOVEMBER 17, 1998 VOLUME IV APPEARANCES: For the People: DAVID J. IREY Deputy District Attorney Reported by: JAN BENEDETTI-WEISBERG, CSR No. 4643 933 1 ---oOo--- 2 WITNESS INDEX Page 3 DAVID MASON Examination by Mr. Irey 937 4 BRIAN DRAKE 5 Examination by Mr. Irey 1043 6 BOB VAN DE POL Examination by Mr. Irey 1049 7 NICK HERNANDEZ 8 Examination by Mr. Irey 1078 9 LOUIS PODESTA Examination by Mr. Irey 1152 10 GARY POGGIO 11 Examination by Mr. Irey 1155 12 SHERRY MARTIN Examination by Mr. Irey 1160 13 GARY URZIK 14 Examination by Mr. Irey 1173 15 KEITH TALLIA Examination by Mr. Irey 1192 16 JOHN CARSTENSEN 17 Examination by Mr. Irey 1258 18 ---oOo--- 19 20 21 22 23 24 25 934 1 E X H I B I T S 2 Exhibit No. Description Ref. 3 6 Reward Tag 1104 4 8 Photograph 1105 5 11 Tallia Bid 1204 6 19 Photograph 1104 7 21 Photograph 1090 8 22 Photograph 1092 9 23 Photograph 1103 10 25 Photograph 1091 11 26 Building Permit File 1177 12 27 Inspection Record 1104 13 28 Building Department Street File 1168 14 41 Photograph 1260 15 43 Oil Equipment Service Records 1202 16 61 1991 County Permit 1007 17 62 1988 County Permit 1008 18 66 Check to Hernandez 1098 19 67 Check to Hernandez 1098 20 68 Check to the City 1165 21 ---oOo--- 22 23 24 25 935 1 JACKSON, CALIF., TUESDAY, NOVEMBER 17, 1998, 9:38 A.M. 2 BEFORE THE GRAND JURY OF AMADOR COUNTY 3 ---oOo--- 4 THE FOREPERSON: We have all 19 with us this 5 morning, Mr. Irey. 6 THE SECRETARY: I will go ahead and call roll. 7 (Redacted.) 8 GRAND JUROR XXXXXXX: Here. 9 THE SECRETARY: (Redacted.) Here. 10 (Redacted.) 11 GRAND JUROR XXXXXXXX: Here. 12 THE SECRETARY: (Redacted.) 13 GRAND JUROR XXXXX: Here. 14 THE SECRETARY: (Redacted.) 15 GRAND JUROR XXXXXX: Here. 16 THE SECRETARY: (Redacted.) 17 GRAND JUROR XXXXX: Here. 18 THE SECRETARY: (Redacted.) 19 GRAND JUROR XXXXXXXXXX: Here. 20 THE SECRETARY: (Redacted.) 21 GRAND JUROR XXXXXXXX: Here. 22 THE SECRETARY: (Redacted.) 23 GRAND JUROR XXXXXX: Present. 24 THE SECRETARY: (Redacted.) 25 GRAND JUROR XXXXXXXX: Present. 936 1 THE SECRETARY: (Redacted.) 2 GRAND JUROR XXXXXX: Here. 3 THE SECRETARY: (Redacted.) 4 GRAND JUROR XXXXXXX: Here. 5 THE SECRETARY: (Redacted.) 6 GRAND JUROR XXXXXXX: Here. 7 THE SECRETARY: (Redacted.) 8 GRAND JUROR XXXXX: Here. 9 THE SECRETARY: (Redacted.) 10 GRAND JUROR XXXXX: Here. 11 THE SECRETARY: (Redacted.) 12 GRAND JUROR XXXXXX: Here. 13 THE SECRETARY: (Redacted.) 14 GRAND JUROR XXXXXXXX: Here. 15 THE SECRETARY: (Redacted.) 16 GRAND JUROR XXXXXXXX: Here. 17 THE SECRETARY: (Redacted.) 18 THE FOREMAN: Here. 19 MR. IREY: I just gave to my investigator the two 20 names the Grand Jurors wanted subpoenaed. We will try to 21 fit those people in today or tomorrow. 22 Our first witness is David Mason, Mr. 23 Mason's son. 24 THE FOREPERSON: Mr. Mason, good morning. If you 25 could remain standing and raise your right hand. 937 1 THE WITNESS: Take my jacket off. With long 2 underwear, it gets a little hot. 3 THE FOREPERSON: You do solemnly swear that the 4 evidence you shall give in this investigation now pending 5 before this Grand Jury shall be the truth, the whole 6 truth and nothing but the truth, so help you God. 7 THE WITNESS: I do. 8 THE FOREPERSON: Thank you. You may be seated. 9 10 (TIME NOTED: 9:31 A.M.) 11 ---oOo--- 12 DAVID MASON 13 Called as a witness herein by the People, 14 having been duly sworn to tell the truth, was examined 15 and testified as follows: 16 EXAMINATION 17 BY MR. IREY: 18 Q Mr. Mason, the court reporter is taking 19 down everything you say today. And so if you could 20 answer audibly yes or no, instead of shaking your head. 21 A Okay. 22 Q Okay. And the person all the way in the 23 back, he sits back there on purpose so we will see if 24 your voice carries. He is kind of like the drama coach 25 here. If you could speak up loudly all the way back. 938 1 A Head cold, so I take a cough drop. 2 THE FOREPERSON: Mr. Irey, do we have an 3 admonition to read at this time? 4 MR. IREY: Mr. Foreman, in the overabundance of 5 caution, if you could read that admonition, that would be 6 helpful. 7 THE FOREPERSON: You are advised under the Fifth 8 Amendment of the Constitution of the United States and 9 also under Article 1 of the California Constitution that 10 you have a privilege against self-incrimination. That is 11 to say, you do not have to answer any questions that may 12 tend to incriminate you or subject you to punishment for 13 a crime. And you can refuse to answer any such questions 14 by stating that the answer may tend to incriminate you. 15 Do you understand? 16 THE WITNESS: Hopefully, yeah. 17 THE FOREPERSON: Thank you. 18 THE WITNESS: Yes. 19 Q BY MR. IREY: Mr. Mason, who is your 20 current employer? 21 A Toms Sierra Company. 22 Q And so the paycheck comes from Toms Sierra 23 Company? 24 How long have you been employed by Toms 25 Sierra Company? 939 1 A Approximately three years. 2 Q Prior to that, who was your employer? 3 A My father, which is Mason Oil Company, 4 which I am a member of the corporation. 5 Q Okay. And if you could, start with Toms 6 Sierra Company, and explain what your current position is 7 with Toms Sierra Company, and then your father's with 8 Toms Sierra Company. And then we will go back to the 9 corporate make-up of Mason Oil, please. 10 A Toms Sierra is a -- I am their division 11 manager, this area. My father works as -- oh, I don't 12 know what position you call -- sales position or 13 whatever. Anyway, he just gets to do whatever I give 14 him. He is a minimal employee for insurance purposes. 15 He just works there. 16 Q For insurance purposes being? 17 A Well, he gets insurance for his family and 18 for his wife and him and gets a small paycheck. 19 Q So he is actually your employee currently? 20 A Yeah. 21 Q And then prior to that, there was a Mason 22 Oil Company. Could you go over a brief history of Mason 23 Oil, who started it, things like that. 24 A Technically started with my grandfather, 25 1924. He was a -- he was a consignee for Associated 940 1 Oil. Then it went to Phillips 66. And they had an 2 antitrust suit and did away with Phillips 66 on the West 3 Coast back in the '60s, I think it was. 4 And then it was -- turned into Tosco. 5 Phillips 66 was bought out -- West Coast division was 6 bought out by Tosco Corporation. Tosco, we became a -- 7 they did away with consignees and became only direct 8 marketers, which is, you buy the product from the company 9 and you sell it to the community. That's what we did 10 until we were bought out by Toms Sierra three years ago. 11 Q So then at some point there in the late 12 '50s, early '60s, later, Mason Oil Company was formed? 13 A Yeah. It was formed under my dad, 14 incorporated as a corporation. I don't know exactly 15 when. It was a long time ago. It's still a 16 corporation. 17 Q Before you were an employee of Mason Oil 18 Company? 19 A Yeah. 20 Q Okay. 21 A I worked part-time for the oil company in 22 the summers and in vacations, you know, Christmas, 23 Thanksgiving, when I was going to college. And then 24 later became a full-time employee after I got out of 25 college. 941 1 Q Where did you go to college? 2 A California State University Sacramento. 3 Mechanical engineering. 4 Q And you have a degree in that? 5 A Yes. 6 Q What year did you get that degree? 7 A Long time ago. Let's see. I graduated in 8 '73. So '78, somewhere around there. I don't -- dates 9 aren't very -- I'm not very good with dates. 10 Q And then you became an employee of Mason 11 Oil Company full time? 12 A After a period of doing other jobs and 13 stuff. My dad found that he needed more help at -- in 14 the home business. And since I knew the business already 15 and was driving for him -- you know, I had driven for him 16 part-time in the summers and Christmas and Thanksgiving 17 and all that, filling in. He wanted me bad. 18 And he gave me a better -- he gave me a 19 better deal than what I was going to get working as an 20 engineer. Plus, I got to live in this community. I love 21 this community. Our family has been here -- I am the 22 fifth generation. And I got a son I am proud to raise 23 here, too. 24 Q So sometimes in the '70s or early '80s, 25 you came back to Amador County? 942 1 A (Witness nods head.) 2 Q Okay. Mason Oil Company gets bulk 3 deliveries and then -- is that still true? 4 A Yeah. It's Toms Sierra. But Toms Sierra 5 has their own trucks. They buy from Tosco. They buy 6 from all the majors, and then we redistribute it out of 7 our bulk plant there in Martell. 8 Q So from Martell bulk plant, you distribute 9 not only to facilities with Mason names on it, but to 10 other facilities, correct? 11 A Well, Toms facilities, and also other 12 stations and stuff. 13 Q So you have a bulk plant in Martell. 14 About how many gas stations do you distribute to from 15 there? 16 A See, in emergencies, due to -- we will 17 take care of Trading Post sometimes and other ones. 18 Mostly, those are taken care of directly. 19 What we do is, we will -- like today, one 20 of my drivers is going to deliver some to Amador Station, 21 because Amador Station is -- wants, like, 500 gallons. 22 And big gas trucks, the big truck and trailers, don't 23 haul small amounts like that. He will go up and deliver 24 500 gallons to that station. And he will go on and 25 deliver home deliveries. 943 1 Q So to card locks, what is commonly 2 referred to as gas stations, home deliveries? 3 A Yes, yeah. 4 Q Home heating fuels also; but no propane? 5 A Don't have propane trucks. 6 Q What types of products are at the bulk 7 plants? 8 A All light refineds, which means kerosene, 9 gasoline, diesels, the two different types of diesels, 10 clear and red, and premium and regular gasoline. We 11 don't have any plus. 12 Q Red diesel being farm fuel, ag fuel? 13 A Red fuel meaning it doesn't have State and 14 Federal taxes on it. Doesn't necessarily mean for a 15 farm. It means for, like, heavy equipment, that kind of 16 stuff. Not for motor vehicle use. It doesn't have road 17 taxes on it. 18 Q Okay. And you said that you are currently 19 a corporate officer of Mason Oil? 20 A As far as I know now, unless Dad has 21 dissolved the corporation, yes, I am a corporate 22 officer. I think I am president. But there is... 23 Q Do you know -- so you don't know what your 24 title is? 25 A I think I am president, you know. I 944 1 don't -- you have to ask so many people to be in a 2 corporation, but the corporation was just formed for us 3 to market as a... 4 Q As a? 5 A I don't know. There was -- when it was 6 originally formed, there was some tax benefits, but I 7 don't think they are there any more. I don't even know 8 what the reasoning is. I have asked him several times, 9 and -- 10 Q Does he answer? Or does he not answer? 11 A Well, he doesn't really answer, because he 12 doesn't -- see, he has thought about dissolving it, too. 13 I think it's more expensive to dissolve it than keep it 14 going. One of those balls that gets rolling, it's 15 cheaper to just keep it going than -- until they have 16 dispersed all the Mason Oil properties and they are -- 17 not Mason Oil properties, but all of his properties. 18 Unless they are dispersed, then it's not -- from what I 19 understand -- I don't know. 20 You are more of a lawyer -- you are a 21 layer, so you know more than I do about that. 22 Q He may have been right the first time. 23 One of the things that the Grand Jurors 24 are trying to determine is who is who in the zoo. I am 25 trying to help them determine that. I am going to try 945 1 and ask you specific questions. 2 A If I can answer, I will answer them for 3 you. 4 Q Then I might ask you if you have any idea 5 where the paperwork might be kept. They also have the 6 power to subpoena paper records. 7 A Good luck. I don't have any idea where 8 any of the paperwork is. I tried to find some checks one 9 time, corporate checks. And I spent almost two years 10 looking for 'em and I never found them. So good luck. 11 Q Okay. So you might be the president of 12 Mason Oil, Inc. Correct? 13 A Right. 14 Q But you are pretty sure you are a 15 corporate officer? 16 A I know I am corporate officer. 17 Q Who else is a corporate officer of Mason 18 Oil, Inc.? 19 A My dad is and my brother. 20 Q Your brother named? 21 A Scott. 22 Q Okay. 23 A I don't know. I think there is another 24 one. I am not sure whether it was -- used to be Grace 25 Skeen, but now it's not Grace Skeen any more. 946 1 Q Grace Skeen? 2 A Yeah, she was our secretary. 3 Q How do you spell Skeen? 4 A S-K-E-E-N. 5 Q Okay. 6 A She is no longer -- that was -- she is no 7 longer any more. So I don't know whether my brother 8 became secretary or -- this was before Toms Sierra bought 9 Mason Oil. 10 Q Okay. 11 A And I don't know. 12 Q Before we get into the specific handling 13 of 505 Sutter Street, which is the primary focus of this 14 Grand Jury, could you walk us through the Toms Sierra 15 purchase issue. 16 It's our understanding there were some 17 serious financial issues leading to the purchase by Toms 18 Sierra. If you can recall? 19 A You mean the Toms Sierra purchase? 20 Q Correct. 21 A When it purchased the Mason Oil, are you 22 talking about? Is that what you are talking about? Or 23 purchasing what? 24 Q What did Toms Sierra purchase? 25 A Well, they didn't purchase anything, other 947 1 than blue sky. 2 Q Other than what? 3 A Other than blue sky. 4 Q That's what they purchased? 5 A Blue sky and inventory and some of our 6 equipment. 7 Q Inventory sitting inside the -- 8 A Tanks. Stuff we haul. 9 Q And equipment being motor vehicles? 10 A Right. 11 Q So they did not purchase dirt? 12 A What? 13 Q They didn't purchase dirt, as opposed to 14 blue sky? 15 A No, not under my understanding. I was -- 16 you know, that was -- they -- that was worked out with my 17 dad and Toms Sierra. 18 Q Did you have to sign paperwork as the 19 president? 20 A No. I don't think so. 21 Q Okay. 22 A I don't remember any at the time. 23 Q Okay. So Mason Oil sold out to Toms 24 Sierra? 25 A And our accounts receivable was part of 948 1 it, too. 2 Q So let's say people owed you $400,000, 3 then Toms Sierra purchased that? 4 A Yeah. It came with it, yeah. So that was 5 an actual asset, you know, assets, as far as that goes. 6 Q Okay. And what did Mason Oil get for 7 that? 8 A Uh, they got relinquished debt that we 9 owed against the product, as far as I know. And that's 10 about it. 11 Q So at that time -- 12 A And then Dad got a lease. He got a lease 13 payment for the properties, for our properties, from Toms 14 Sierra. 15 Q Two things. Release of debt and monthly 16 lease payments? 17 A For minimum five years, and then it was 18 reupped after that. 19 Q About what year did this happen? 20 A This happened three years ago 21 approximately. 22 Q So you are still in the first five-year 23 part of the lease? 24 A Right. 25 Q Okay. Did your dad owe a million plus to 949 1 Toms Sierra? 2 A I don't know what he owed. 3 Q Did your corporation owe a million plus to 4 Toms Sierra? 5 A As I said, I don't know. I don't know 6 what they owed. At the time, the figures were -- the 7 figures were down -- they put 'em down on the thing. The 8 debts were canceled back and forth. And that -- I think 9 it was somewhere around a million dollars. I am not 10 sure. 11 But the payback for my dad was the lease 12 payment. And that was to cover his debts to me and my 13 brothers and sisters and other debts that he owed. 14 Q Okay. So if you know, your dad had 15 been -- I can't testify. 16 Your dad had been keeping his chin above 17 water to keep the business solvent? 18 A Yeah. He had borrowed from me and my 19 brothers and sister to keep the business solvent, yeah. 20 Q And then Toms Sierra came and bought him 21 out? 22 A (Witness nods head.) 23 Q Toms Sierra being Roy Toms? 24 A Yeah. Well, he is -- he was at the time 25 the owner, the president, CEO of Toms Sierra. Which was 950 1 the person that we were buying our product from, so... 2 Q Was Roy Toms? 3 A Well, it was Toms Sierra. 4 Q Okay. And that's his corporation or was 5 his corporation? 6 A Yeah. He was -- you know, that's another 7 family-held corporation. 8 Q And the last two or three months, someone 9 bought Toms Sierra, correct? 10 A Right. I think a month ago, month and a 11 half ago. I am not exactly sure of the date. It's been 12 going on for almost over a year. So the exact date -- we 13 call every month and find out, Well, it's a month 14 farther. It's a month farther. 15 So they spent -- from what I understand -- 16 I don't know. I hear all kinds of things. Some lawyers 17 made a awful lot of money on it, million and a half, $2 18 million, something like that, putting it together. But 19 it took 'em over a year to do it. 20 Q And they bought everything that Toms 21 Sierra -- to your knowledge, they bought all of Toms 22 Sierra? 23 A I think Roy and Nick kept some stations, 24 but I am not sure. That was their deal. And we -- you 25 know, all we knew -- all we were told was that our deal 951 1 was going to continue on with what they did. 2 Q And the new company is called? 3 A Toms Sierra. Same. 4 Q The company -- 5 A Five people -- from what I understand, 6 five people put together a consortium that bought Toms 7 Sierra and they are keeping the name Toms Sierra. 8 Q Sierra Trading Post. Those are Toms 9 Sierra? 10 A No. They are one of our customers. 11 Q Okay. Three years ago, there was a 12 purchase -- Mason Oil Company, itself, still is a corp 13 A As far as I know, it is. 14 Q What does Mason Oil Company own? 15 A Nada, as far as I know. That's why I 16 never paid much attention as it was -- it was a 17 corporation just for -- for liability, I guess, whatever. 18 I don't know. I don't know exactly what it was formed 19 for. Some tax benefits and some other things. That's 20 the only reason that I ever heard that we ever formed it. 21 Q So Mason Oil never wrote you a check? 22 A Mason Oil wrote me a check, writes me a 23 check every month for the lease payment. The money -- I 24 think the money comes from the lease from Toms and then 25 goes to -- goes to Mason Oil. I don't know. 952 1 I am trying to think if my last check was 2 from my dad. I don't know. 3 Q Okay. 4 A I'm sorry to be so vague, but I just don't 5 pay -- my wife banks all my money. I don't know how you 6 guys are, but I never see my paycheck. 7 In fact, one of the running jokes is at 8 the bank, they go, Gosh, Dave, you sure you are Dave 9 Mason? I have stock in Bank of Amador. And so it's 10 funny, but it's true. I just never -- I never do any of 11 my banking or anything. She gives me what money I have 12 and that's it. 13 Q Okay. So -- 14 A I call her -- she calls me the drone, you 15 know. 16 Q Okay. Does the lease checks come to your 17 house? Or do you pick them up at Mason Oil? 18 A I pick it up at Mason's Oil. I pick it up 19 at Toms Sierra. 20 Q In Ione? 21 A My dad's office. 22 Q In Ione? 23 A Yeah. 24 Q That's a Toms Sierra office? 25 A Right. 953 1 Q The main Toms Sierra office is in Colfax, 2 if that's true? 3 A As of right now, it is. I hear they are 4 buying a piece of property and building a new office 5 somewhere between Auburn and Colfax, I heard. I don't 6 know exactly where. You hear all kinds of rumblings. 7 Q That's the main office? 8 A That's the main office. 9 Q What kind of paperwork is kept at the main 10 office? 11 A All the Toms Sierra paperwork is kept at 12 the main office. 13 Q What kind of paperwork is kept in Ione? 14 A Our tags for our sales, daily sales. What 15 else? You know. 16 Q I am asking you. I don't know. 17 A That's -- we -- our office, we take care 18 of the customers for -- Toms Sierra customers at the card 19 lock, whatever. When we get out in the field, I write a 20 tag out. We keep one tag at the office. The customer 21 gets the other tag. I think there is two or three other 22 ones that go in the garbage. 23 Q Okay. When you lease your stations to 24 Toms Sierra, did you sign a contract? 25 A I didn't sign any contract. 954 1 Q Okay. Did you delegate your authority in 2 the corporation to your father to sign the contract? 3 A He is C.E.O. that -- I don't know whether 4 it was leased to Mason Oil or Dave Mason or whether it 5 was leased to Mason and Family Trust. There is three 6 different organizations. And I don't know where it is. 7 Q What's the Mason Family Trust? 8 A That's the Mason Family Trust was when my 9 mom died. 10 Q Late '70s? 11 A Yeah. I -- yeah. I remember right, 12 yeah. She died of cancer. 13 Anyway, my dad formed a corporation, 14 formed the family trust then, so that hers would be 15 separate from his. And I don't know exactly what the 16 separation was, but that was if -- you have to talk to -- 17 they have a -- they have a trust lawyer, I guess or 18 something. I don't know exactly who it is. 19 Q Whom? 20 A Who? 21 Q Yeah. 22 A I don't -- I know who our corporate 23 lawyers are, but I don't know what -- whether they are 24 the same or not, Dave. I really don't know. 25 They are -- that's why I was -- when you 955 1 asked me, I hate to sit up here and look like an idiot, 2 but I just don't know these things. Because I don't deal 3 with it. And since I don't -- since I don't deal with 4 it -- my dad's personal stuff I think of as not my 5 business. I don't check into that. 6 Q Again, if you can't recall, maybe at the 7 end of each question, you might give us a list of two or 8 three people who would be most familiar with that. 9 For instance, I don't know how much the 10 checks are; my wife would know. Or I don't know anything 11 about the living trust. 12 A I know how much the checks are for. And I 13 know they come from my dad. But I can't tell you 14 whether -- I don't remember whether they come from a 15 Mason Oil Company or whether they come from Mason Family 16 Trust or whether they come from Dave Mason. I never -- I 17 just sign 'em and that's it. 18 Q So you don't know? 19 A You can ask my dad. He would be glad to 20 tell you. 21 Q Hypothetically, we might not be able to 22 talk to your dad in front of this forum. That's the 23 problem there. 24 A Oh, okay. 25 Q Nor, hypothetically, your mom. As you 956 1 know -- and the Grand Jurors don't know -- yesterday I 2 called and released her, based on information -- 3 A She is not my mom, but yes. 4 Q Based on the stress and cancer and things 5 along those lines. 6 A This is my stepmom. 7 Q There are privileges against testifying 8 against your spouse and your stepmom is married to your 9 dad, right? 10 A Right. 11 Q There are privileges that your father 12 holds. So we may not ever talk to those two 13 individuals. So you can give us their names. That would 14 be helpful. 15 But also maybe you could tell us where the 16 banks are or where the attorneys are or where the 17 accountants are and we might be able to figure it out 18 that way. If that's possible. If you don't know, you 19 don't know. 20 A I'm sorry, you know. 21 Q So Toms Sierra writes a monthly check to 22 either David Mason, Mason Oil or Mason Family Trust? 23 A (Witness nods head.) 24 Q He has to hear you all the way in the back. 25 A Yes. 957 1 Q And that check is for X dollars per month? 2 A Yeah. It's been renegotiated several 3 times, but yeah. 4 Q So it's renegotiated? 5 A Well, see, as the -- the properties 6 diminished. 7 Q Volume? 8 A Yeah. Like, when they closed a station, 9 he did away with the station. 10 Q 505? 11 A Yeah. And see, Dad gets so much, and then 12 he has to pay payments to, like, he was -- he has been 13 paying payments to, like, Earl Ferrari. 14 Q Who is? 15 A He owns the property next to us at the 16 Martell bulk plant. 17 Q Downhill? Uphill? Behind you? 18 A Well, behind us is the mill. And to the 19 left of us is the mill. And to the right of us is 20 Ferrari. It's where our road is there. 21 Q To the right would be uphill? 22 A Yeah, it would be. 23 Q It would be closer toward -- 24 A Martell is uphill. It's all uphill. Our 25 plant is like -- 958 1 Q Further away from Stockton? 2 A No. That's -- it would be north. Or 3 actually, it would be west. West, wouldn't it? 4 Q So it's an easement for the use of a road? 5 A Yeah. 6 Q So he writes a monthly check? 7 A To Ferrari. 8 And then part of it goes to -- then part 9 of it goes to -- to my cousins, too. 10 Q Are they part of the Mason -- 11 A For the lease payment. 12 Q -- Family Trust? 13 A No. It's for the lease of the station in 14 Ione, the card lock. 15 Q So your cousins own the Ione card lock 16 dirt? 17 A Dirt. 18 Q We are into who owns dirt versus tanks in 19 a few minutes. 20 Money comes into one of these three groups 21 and somebody writes checks out to pay some of the bills, 22 correct? 23 A Mm-hmm. 24 Q Do you sign any of those checks? 25 A (Witness shakes head.) 959 1 Q Again, she can't type -- 2 A No. No, I don't. 3 Q Okay. Does your brother Scott sign any of 4 those checks? 5 A No, he doesn't. 6 Q Does your stepmother Miriam sign ever any 7 of the checks? 8 A No, she doesn't. She doesn't have 9 anything to do with that. 10 Q Who signs the checks? 11 A My dad signs the checks. 12 Q Money comes from one of these three -- to 13 one of these three groups, and your dad pays bills out of 14 it? 15 A I think it goes out of Mason Oil. I am 16 not sure. 17 Q You don't -- did you get paid today? You 18 don't have a check in your wallet we could look at? 19 A I got some birthday money, because 20 yesterday was my birthday. That's it. 21 Q Happy birthday. 22 A I thought it was real nice yesterday when 23 you called me. 24 Q Thirty-four or 44? 25 A Forty-four. 960 1 Q Okay. 2 A That's why my son is my 40th birthday 3 present. 4 Q Don't get need to get into that, Mr. Mason. 5 A He is a redhead like you. 6 Q Okay. So then your dad writes you a 7 check. Does he write you five checks because there were 8 five leases? Or is it one big lease, if you know? 9 A He doesn't -- I don't get paid anything 10 from the leases. I get paid -- I get paid for what my 11 loan is that I loaned him some money when my grandmother 12 died. I loaned -- I loaned -- I don't know whether it 13 was -- it was my dad. I loaned him some money when my -- 14 to keep Mason Oil afloat when my grandmother died. And I 15 have loaned him money against my house as another loan 16 later to keep us afloat. 17 Q So the checks you are getting, it's not 18 Scott, you and David, your father get checks. It's just 19 that your dad is making loan payments? 20 A Right. 21 Q So out of his lease, he makes loan 22 payments? 23 A Right. As I said, the debts are paid out 24 of the lease payment. And that was the understanding of 25 it. And that's why he got it over five years, because he 961 1 owed so much money against Mason Oil -- I mean, against 2 the -- against the company or whatever you want to call 3 it. I don't know exactly how you put it. 4 Q Okay. Then recently you loaned your dad 5 another 20,000 plus? 6 A Yes, I did. 7 Q You told us the first time we chatted with 8 you that your wife didn't know about that? 9 A Right. 10 Q Does she know now? 11 A No. 12 Q If there is an indictment, about 20 days 13 after the indictment, this becomes public record. So 14 plus or minus, you will know how to -- 15 A The money has been repaid. 16 Q Okay. So -- 17 A But it's still -- I told you that in 18 confidence. I asked you not to -- and I told you that in 19 confidence. And I asked you not to say that to public, 20 because it was not a public matter. And you immediately 21 brought it out. 22 Q I have to bring out the truth to the 23 Members of the Grand Jury. They have received 24 information that there is a document for $80,000, of 25 which the Womacks only kicked in 30,000. So they have 962 1 wondered where that other $20,000 came from. 2 A You mean 60,000. 3 Q I apologize. And I apologize for that 4 part of it. We can try to get that two minutes of the 5 transcript tied up, but they have to know where the 6 $20,000 came from. Because the paperwork is not clear on 7 where the 20 -- I think it's $20,700 or something along 8 those lines. I apologize for that. 9 A I was not explained that when I was told 10 that. But that's neither here nor there. It's too late 11 now. 12 Q So -- 13 A That was personal money that I -- I 14 inherited some stock that I have been investing for the 15 last twenty something years. And I have an account 16 against it that I can write out of it. And my father was 17 in bad shape and so I did it. 18 Q It was an emergency loan? 19 A It was a -- it was because he is my 20 father. I wouldn't have done it for anybody else. 21 Q Okay. Well, maybe we can get into, 22 before we get into who owns the dirt, the loan that 23 precipitated the sale to Womack. 24 That loan, was it from Mason Oil, David 25 Mason or Mason Family Trust, if you know? 963 1 A It must have been from Mason Family Trust, 2 because it was all -- it was against all of my dad's 3 properties. 4 And it was -- this was the savings and 5 loan debacle. We had a loan from Washington Savings. 6 And there was supposedly no problem in transferring it. 7 They transferred it to, like, five different places. One 8 of them was Wilmington Trust. The other one -- seemed 9 like every year, we got another name in the mail we are 10 supposed to send our money to as we were gradually 11 supposedly paying this loan off against it. 12 And the last company was going to -- what 13 they wanted, they wanted immediate payment of the loan, 14 is what they wanted. 15 Q And they started pushing that issue late, 16 late '97? 17 A I can't -- it went on for a long time. 18 Because first we had the station sold. And then we were 19 able to borrow money against our own building there in 20 Ione. 21 Q When you say "the station sold," that. 22 Would be 505 Sutter? 23 A Yeah. It was -- there was a guy who was 24 there who was working there, and supposedly had money and 25 he was going to buy it. And we had it all -- in fact, we 964 1 had it all signed and ready to do. Then the money never 2 came up. He was inheriting it from his father. Oh, it 3 was just one thing after another. 4 And we -- you know, we paid most of the 5 loan off with the loan against the property in Ione. And 6 then there was a -- then we were renegotiating with them, 7 trying to get them to release some of it. Because 8 virtually all of the loan at this point was all 9 interest. It wasn't -- it wasn't -- the principal had 10 been paid off, more than paid off, through the years we 11 had been paying our payments. 12 And we knew that they paid, like, 5 13 percent on the dollar, which they -- they did negotiate 14 lower than what it was supposed to be, but it was 15 never -- it was the 80,000 or whatever it was exactly -- 16 I don't know exactly. I think it was 80,000 was what was 17 left. 18 And Dad could refinance his house, but 19 because they had a lien against it, he couldn't refinance 20 his house and get the money out of it to pay this 21 20,000. So it was like Catch 22. There he was with 22 plenty of -- 23 Q Equity? 24 A -- equity in his house, but he couldn't 25 get the equity out of his house, because he couldn't get 965 1 them to release the house until he got the money to them. 2 Q So he had to get this $80,000 note paid? 3 A The note paid. 4 So that's where -- and Womack would only 5 give him that much for it. And so that's why I took -- I 6 took the initiative myself. He never asked me for it. I 7 went and got a check for it. Gave him the money. I 8 said, Do it so you can get out from under this thing. 9 Get it done. Get us behind it. And then... 10 Q If we can go back to the initial sales 11 price on that property was in the mid 130s? 12 A Yeah. We had it sold at that. 13 Q And you had it listed through whom? 14 A Through him? 15 Q Through whom. Sorry. 16 A It wasn't listed through anybody. It was 17 a direct sale from my dad to a person. 18 Q And the person's name? 19 A Tom Brito was his name. He is gone to 20 Hawaii. 21 Q Is that the guy who that was operating the 22 surplus store out of there? 23 A Right. 24 Q Okay. Do you know if that was a -- I 25 guess we should go into the dirt. Let's do the 505 966 1 dirt. 2 Who owned that location at 505 Sutter? 3 A I think Mason Family Trust did, but I am 4 not sure. 5 Q Okay. And you don't remember the name of 6 the lawyers for the Mason Family Trust or any of that? 7 A Well, the corporate lawyers are Cinnamon, 8 Haagen and whatever it is. I don't know. They got some 9 long name. 10 Q Here in town? 11 A No. They are out of Sacramento. 12 Q Sacramento? 13 A I don't think there is any corporation 14 lawyers in town. 15 Q So who owned the tanks at 505 Sutter? 16 A I think Mason Family Trust did, but I am 17 not sure. 18 Q You don't think Mason Oil, Inc.? 19 A No. As I said, I don't think Mason Oil, 20 Inc. ever owned -- they owned the trucks, the business 21 part. But Mason Family Trust, I think, owned all of the 22 properties. But that's just my -- 23 Q Best guess? 24 A Yeah. 25 Q Okay. So then the building would have 967 1 been owned probably by Mason Family Trust also? 2 A Which building? 3 Q The building at 505 Sutter. 4 A Yes. 5 Q So tanks -- 6 A Which is my dad. 7 Q Who else signs off on Mason Family Trust? 8 Do you? 9 A No. 10 Q Okay. So Mason Family Trust owns dirt and 11 tanks. 12 And the contract with Mr. Womack -- have 13 you seen the contract with Mr. Womack? 14 A I haven't seen nothing. 15 Q Okay. So and then the person who puts the 16 gasoline in the tank the last three years is Toms Sierra? 17 A Mm-hmm. 18 Q And then the person who pays for that 19 gasoline is whom? 20 A Tom Brito was paying for it. 21 Q So Tom could call up Ione plant and say, 22 Please bring me 500 gallons next Thursday. And you would 23 say, We will be there, Tom. 24 A Yeah. Have the cash ready for us. 25 Q How do you spell his name? How long did 968 1 Tom Brito -- 2 A B-R-I-T-O, I think. 3 Q Okay. How long did he lease the station 4 for? 5 A I don't know. He was in again, out again 6 type deal, you know. 7 Q No, I don't. 8 A You know, he was going to close it, then 9 he was -- he was getting the money together. So he kept 10 closing it to go do that. He was in there for about -- I 11 don't know. I have no idea. 12 It was -- it happened after they fired the 13 guy that was there managing it for Toms Sierra. So he 14 was there for maybe a year, maybe more. I don't know. 15 Q So "they fired" meaning Toms Sierra fired 16 some guy? 17 A Yeah. They had a guy in there who -- 18 well, he was there when we were there, who was running it 19 for Mason Oil. He had small repairs, and then he also 20 sold gas out of it. 21 Q This is somebody who had a lease with -- 22 A No lease. He was an employee of Mason Oil 23 Company. 24 Q So Mason Oil Company actually operated the 25 gas station? 969 1 A For a while, yes. 2 Q Mason Oil monthly would write the manager 3 a check? Or would you just let him do repair business 4 and not get -- 5 A No, no. We collected the money, gave him 6 a regular hourly check like a regular employee. 7 Q So he is your mechanic, Mason Oil Company, 8 Inc.? 9 A When he was working for Mason Oil, yeah. 10 Q At some point, Toms Sierra fired him? 11 A Mm-hmm. 12 Q His name was? 13 A Lee. I forget what his last name was. 14 This was quite a while ago. 15 Q So this -- 16 A Couple years ago. 17 Q If Toms Sierra fired him, it would be less 18 than three years ago. 19 A Yeah. But still, last name, I don't 20 know. In fact, he lived next door to me. 21 Q He doesn't live there any more? 22 A No. Hasn't lived there for a long time. 23 Q So Mason Oil fires him? 24 A No. Toms Sierra fires him. 25 Q Toms Sierra fires him. Then Toms Sierra 970 1 brings in this guy Brito? 2 A No, no. Toms Sierra closes the station. 3 This guy Brito wants to buy the station. So he pays a 4 payment, you know. So he pays to Toms Sierra a payment 5 and he also buys gas from Toms Sierra. 6 Q Okay. Then at some point he leaves? 7 A Right. 8 Q Does he tell you ahead of time he is going 9 to leave? 10 A No. He is a midnight rambler. He left. 11 Q And do you know when that was, plus or 12 minus two or three months? 13 A Yeah, plus or minus two or three months, 14 over a year and a half ago. 15 Q Summer of '97? 16 A No. Yeah, maybe. I don't know. I don't 17 exactly... 18 Q Who would know? 19 A Well, see, he -- he left, but he was -- he 20 still owed Toms Sierra money for gasoline. And so we 21 diddled around with it for a while trying to get the 22 money out of him. His wife was working at Wal-Mart. 23 And then, all of a sudden, they just up 24 and disappeared one night. 25 Q Owing several thousand dollars? Or a 971 1 couple thousand dollars? Or do you know? 2 A Owing some money. I don't know exactly 3 how much. 4 Q Did the guy make the lease payments to 5 your dad or not? 6 A I think the sales of the gasoline was to 7 cover the lease. There was no lease payment. And then 8 he was going to buy the station. 9 Q So keeping the gas station open, your dad 10 kept getting a lease from Toms Sierra? 11 A Well, no. Dad never got any specific 12 lease from Toms Sierra on the property because the 13 station was closed. So that was -- the lease payment was 14 made smaller, anyway, so that was no lease payment on 15 that. 16 Q So when Brito -- 17 A Brito. 18 Q When Brito walked, he didn't owe your dad 19 money; he owed Toms Sierra money? 20 A He owed Toms Sierra money. He might have 21 owed my dad money for other things, but I don't know 22 exactly what. 23 Q So that's summer of '97? 24 A Yeah. 25 Q There was gas in the tank until when? 972 1 A After we exhausted all possibilities, 2 pumped out the gas. 3 Q Are there records of that somewhere? 4 A It was considered part of our inventory. 5 I just put it back in my inventory. So there probably 6 isn't any records of it. Because I had to do it on my 7 own time, go down, do it, get it out. 8 Because I didn't want to let it sit any 9 longer than possible because gasoline, after you sit for 10 very long, it's no good. It loses its vigor. Whatever 11 you want to call it. 12 Q Toms Sierra took back their gas? 13 A It was always considered Toms Sierra gas. 14 Put it back in my inventory. I had to consider it in my 15 inventory every month anyway. 16 Q Did you tell Toms Sierra you were going to 17 do this? 18 A No. They knew it was part of their 19 inventory. They let me do whatever I wanted to do. 20 Q You are the boss? 21 A I am the boss. 22 Q So you don't know whether you pumped 100 23 gallons out of each tank or 500 gallons out of each tank? 24 A It was more than that. It was -- I don't 25 know -- 500 gallons at the most, five, 600 gallons. So 973 1 probably two, 300 in each tank. 2 It wasn't very much in there, because I 3 didn't want to leave very much in there, because if he 4 skipped, then I would lose all that money. You know, I 5 mean, if he took a whole bunch with him, be gone. 6 Because he had keys for it. 7 Finally I went down, put our locks on it 8 and everything, looked it all up. 9 Q Locked the pumps? 10 A Yeah. 11 Q And locked the fill and input, output? 12 A Yeah. 13 Q Okay. 14 A But that was already locked. We always 15 lock -- usually lock on situation like that. Especially 16 when you got downtown, you know, you never know who is 17 coming in and out. All kinds of things can happen. You 18 don't want people being able to put anything in it. 19 Q Okay. So then that the tanks are what you 20 consider empty? 21 A Dry. 22 Q But how many tanks have you emptied to 23 know that the tanks were dry? 24 A How many tanks have I pumped out in my 25 lifetime in 25 years? 974 1 Q Yeah. All the way to where you know they 2 were empty? 3 A I have pumped thousands and thousands and 4 thousands of 'em, you know. 5 Q All the way empty? 6 A Well, as far as I -- as far as -- I pump 7 it down to about a quarter of an inch with my pump, half 8 an inch to a quarter of an inch. 9 Q And that's left behind? 10 A That's left behind to evaporate or 11 whatever happens to it. 12 Q Okay. At that point, as a mechanical 13 engineer, you have a gas tank that is mostly vapor and 14 just a little bit of gas, correct? 15 A Right. 16 Q And is that vapor flammable, to your 17 knowledge as a mechanical engineer or as someone in the 18 gas business? 19 A Yeah, it's flammable. 20 Q Okay. 21 A Anything is flammable. You are flammable, 22 you know. 23 Q So you remember doing this. You remember 24 pumping these tanks out. You don't remember when or -- 25 A It was at least -- at least five or six 975 1 months before this action. 2 Q Early '98, late '97? 3 A Somewhere around there. Maybe even before 4 that. 5 Q This contract you had with this Brito guy 6 for $130,000, was that in writing somewhere? 7 A He had it started. It was, if you want to 8 talk to -- I think it's -- what's it called? Amador 9 Title, Mother Lode Title, Amador Title. Amador Title, 10 the one that's -- not the one -- 11 Q Not George Ryan; the other one? 12 A The other one. There is only two. Yeah, 13 it was the other one. 14 Q And it was started? Escrow was started? 15 A Yeah, everything -- I don't know if escrow 16 was started because no money was there. 17 Q Okay. And this guy walks? 18 A Well, yeah. 19 Q And then you pump the tanks down pretty 20 much empty? 21 A (Witness nods head.) 22 Q You know that because you stick the tank 23 at the end? Or you know that's how good your vacuum is? 24 A No. I stick the tank at the end. When 25 you are pumping out a tank, if you lose vacuum on it, you 976 1 might not pump it all out. I always check it to make 2 sure. 3 Also check the tank before for any water 4 or anything else in it, too. There is usually a little 5 bit of water left in it because the water stays at the 6 bottom. That's why you leave a little bit in there. 7 Q And there is a -- a Vasoline-like stuff, 8 if you are getting -- that you can actually put on the 9 stick to decide whether or not it's water or gas, right? 10 A I use that. 11 Q Did you use it on these tanks? 12 A I use that on every tank I pump out. I 13 don't want to pump any water in my truck. 14 Q Because that tweaks the whole load? 15 A Well, it tweaks my pump. And when pumps 16 are your livelihood, you kind of take care of your 17 livelihood. 18 Q So in this case, you remember you put the 19 stuff on, you stuck the tanks, there was a little bit of 20 gas, and then there was some water? 21 A No. I stuck the tank and there was just 22 nothing on the bottom, is what -- you know, all you see 23 is a residue on the bottom. That's it. 24 Q Okay. And then -- 25 A I don't know whether the tanks -- it's 977 1 because the tanks leaned that way. Because they pumped 2 actually better than normal. Normally, you leave this 3 much, but it pumped. 4 Q Because when you install a tank, you can 5 install it on an angle that goes toward -- 6 A What I do, what I do is, I pump -- when I 7 install a tank above ground -- because I don't install 8 underground tanks. I put it -- I lean it back a little 9 bit so that, if it ever has any water built up in it, 10 they have a plug on the bottom of it, of the tank, so you 11 can open it and take any water out. 12 Q Above-ground tanks? 13 A Yeah. 14 Q Okay. 15 A That's the kind I install. 16 Q Okay. Good. There aren't any plugs on 17 underground storage tanks at the bottom? 18 A Not that I know of. But maybe the new 19 ones, who knows? I haven't even seen one of the new 20 ones, other than the... 21 Q After this guy walks away and the title 22 doesn't go forward, I heard there was a sign posted, For 23 Sale sign, for a while? 24 A Mm-hmm. 25 Q But that wasn't a listing? 978 1 A No, that wasn't a listing. Yes, it was. 2 He listed it with CT Realty. He did. 3 Q Okay. 4 A Because he listed it. He had a listing 5 with CT when Womack bought it. 6 Q Okay. And so it was listed -- 7 A I just remembered that. 8 Q And it was listed in the low hundreds at 9 that point? 10 A I don't even -- it's not -- I don't know. 11 I am not in the business to buy a station. I didn't ask 12 my dad what he was listing at. But I would imagine 13 that's what he wanted. 14 I think he -- he might have lowered it 15 down to the 80s so that he could get the 80,000 out of 16 it. But that is just a surmise, you know, surmising what 17 I -- I would have thought. I am sure that's probably 18 what he did, because that's what he wanted to get out of 19 it. He might have lowered it to the 95, to get -- to 20 make a little bit on it, too, you know. 21 Q To pay off this note so he could do 22 whatever he needed to with the equity in his house? 23 A So he didn't have to get the equity out of 24 his house. 25 Q Boom, note is paid off. Only thing that 979 1 Mason Oil, Inc. loses or Mason Family Trust loses is the 2 Highway 49 -- 3 A Station. 4 Q -- station? 5 A (Witness nods head.) 6 Q Then they would keep the Ione card lock, 7 correct? 8 A We don't own Ione card lock. We own the 9 Ione building. Or Mason Family Trust or whatever owns 10 the Ione building. And they own the bulk plant in 11 Martell. 12 Q So they own the Ione building; not the 13 dirt? 14 A You see, there is two lots there. You are 15 confusing properties. 16 Q I have no idea. Sorry, Mr. Mason. There 17 are two lots there? 18 A Yeah. There is the property. The Mason 19 oil building, which is the green -- I think it's green or 20 tan building. I don't know. Faded. Anyway, and that 21 half of the lot is that. 22 And then there is a station, is the other 23 half of the lot. Which is my cousin's. My grandfather, 24 from what I understand, bought the property and then he 25 built a station there for his nephew to operate so he 980 1 could make a living, and then kept the other part, the 2 other half of the property. 3 So that's what I understand the reason the 4 station got built there and whatever. But that's back in 5 the '50s, I think. 6 Q So that station and those tanks are owned 7 by your cousins? 8 A Yeah. As far as I know. 9 Q So you don't think Mason Oil, Inc. owns 10 those tanks? 11 A (Witness shakes head.) Hm-mmm. 12 Q The Walsh card lock. Who owns what there? 13 A Well, from what I understand, the Walsh 14 card lock, when Toms Sierra bought the Mason Oil Company, 15 they bought the responsibility for all of our card locks. 16 And so they are taking responsibility for all of them as 17 removal of the tanks and whatever. 18 Q You think they own the tanks? 19 A Well, from what I understand. That's my 20 understanding of it. 21 But as I said, that's not part of me, so I 22 never saw anything in writing or anything, but that's 23 what -- from what I understand, that is the deal. 24 Q Before they bought the Walsh card lock, 25 did Mason Oil or the Mason Family Trust own either the 981 1 dirt or the tanks? 2 A We had the -- we had a lease there. And 3 so the lease was the responsibility for the tanks. 4 Q Upgrades, management? 5 A Yeah. 6 Q Stick the tanks, all that kind of stuff? 7 A Any leaks or anything, we are responsible. 8 Q Emerson card lock, same deal? 9 A Same deal. 10 Q So Toms Sierra is going to upgrade those 11 tanks? 12 A In fact, they have upgraded two of them so 13 far. We had one, when we dug down there, was dented, and 14 they couldn't -- they wouldn't certify that it would -- 15 it wasn't leaking, but they wouldn't certify that their 16 coating would work, because it had a dent in it. So they 17 were going to replace it. 18 In fact, they have ordered a new tank for 19 there. And we had to leave that in spot until we can get 20 the new tank to put in the same spot. 21 Q Because you needed to have the capacity to 22 sell? 23 A Yeah. We needed -- they had a 12,000 in 24 that spot, and they are going to -- I don't know what 25 they are going to put in there, whether they are going to 982 1 put a split twelve in there or what. But they are going 2 to replace it with a new tank because of the new tank 3 laws, the upgrades that have to be done, we have to -- 4 you have to have a new double-wall tank put in. 5 So, of course, this is coming close to the 6 deadline so, of course, it's three to four months before 7 you can get a new tank, so -- 8 Q The bulk plant -- 9 A We are operating it with just two tanks, 10 in other words, right now. 11 Q The bulk plant is all above ground? 12 A Everything is above ground in the bulk 13 plant. 14 Q And those are Amador County sites, correct? 15 A Right. 16 Q But your dad owns something -- 17 A West Point. 18 Q Was that a Mason Oil facility? 19 A That was -- I don't know whether -- I 20 don't know what -- it wasn't a Mason oil facility. It 21 was a -- it was a -- well, it was operated under Mason 22 Oil sign, but it was leased. 23 Q From somebody? 24 A It was leased to somebody. We own -- Dad 25 owns the ground. 983 1 Q Dad owns the ground? Dad owns the tank? 2 A In fact, he has contracted with Keith 3 Tallia to take the tanks out. 4 Q Dad owns the ground. Dad owns the tank. 5 Dad might be Mason Family Trust or might be Dave Mason? 6 A Yeah. 7 Q Okay. So thanks for the history. 8 Now, the specifics. You wanted 100,000, 9 then you wanted $90,000? "You" being your father? 10 A Not me. But yeah, my father. 11 Q Because Mason Oil doesn't own any dirt, 12 correct? 13 A As far as I know. The Mason Oil, all they 14 owned was, they had the business, was Mason Oil. 15 Q Then at some point, Womack, if you know, 16 contacts your dad. Is that your understanding? Or does 17 your dad contact Womack? 18 A I don't -- I don't know whether my dad 19 contacted Womack or Womack contacted my dad. But it was 20 kind of a natural, because that -- Dad used to own that 21 property above it, where Roland Womack has his office, 22 and -- 23 Q The Victorian? 24 A Yeah. He, at one time, owned it. And he 25 sold it to some -- to Stan Lukewoods, I think it was. 984 1 Q The doctor that was there before? 2 A No. Stan Lukewoods sold it to the doctor. 3 Q So anyway, you owned both parcels, gas 4 station and the Victorian? 5 A (Witness nods head.) 6 Q "You" being Mason Family Trust or your 7 father or someone? 8 A Not me owning any of it. I don't own it. 9 I have a little tiny house in Ione -- that's it -- that I 10 own. 11 Q Okay. 12 A The bank owns, actually. 13 Q So there is a contact. They reached some 14 kind of deal. 15 Was your dad keeping you briefed during 16 this? 17 A No. Other than -- other than he said that 18 he had somebody else that he thought he could sell the 19 station to. 20 Q Okay. 21 A And that he wanted -- that first they were 22 going to have the station there, keep the station. 23 Because, see, the station was already upgraded. It 24 already had the double-wall tanks, and it already had -- 25 the only thing it needed was, this year, you had to add 985 1 either double-wall piping or cathartic protection. 2 That's all. 3 Q So it was close, plus or minus a couple 4 thousand bucks? 5 A Yeah. It was almost a turn crank deal to 6 keep it a station. It had the sniffers in it. It had 7 everything. 8 Q Okay. Prior to that, were you working for 9 Mason Oil in '88? 10 A What? 11 Q Were you working for Mason Oil in '88? 12 A Well, even if I was in college, I was 13 probably working -- when you are having a family, you are 14 in a family, you work for your family. I was born in 15 '54, so I been working for them since. 16 Q Do you remember when the tank was pulled 17 in '88? 18 A Yeah. 19 Q And there was contamination? 20 A The place is an old station, so there was 21 always contamination. You know, there is always a little 22 bit of contamination left over from -- I forget. My dad 23 said -- he said that the place was, like, in the '30s or 24 '40s when it was built. 25 Q Late '30s, I think. 986 1 A So in the old days, when they did it, they 2 just -- half the time, as we found out later over Jake's 3 thing, they just left the tanks, so... 4 Q Okay. And so '88, you remember -- 5 A We cleaned up as much as we could and put 6 a new tank in. 7 Q You put a new tank in? 8 A That double tank. It's a double tank. 9 Q That was '91. 10 I was asking if you remember the '88, 11 where they closed one in place? 12 A Oh, one where they filled it with 13 concrete? 14 Q Yeah. 15 A Yeah, that was -- that was, they just 16 closed it off and took samples and closed. Then they 17 filled it with slurry. 18 Q Okay. And then -- 19 A That was under -- 20 Q Did they take out a waste oil tank then? 21 Or do you remember? 22 A They didn't have waste oil tanks. 23 Q So that was the one on the site closest to 24 Roland's office, correct? 25 A Yes. 987 1 Q So in '91, the tank had a leak? 2 A Well, what happened on '91 is, the tank -- 3 there is a high water table there in the wintertime 4 because all the water comes off of that hill. Okay. The 5 water was leaking into the tank from the top, we found 6 out. It was a crack in the top. And so we immediately 7 pumped it out and then we went from there, and then put 8 the new tank in it. 9 Because what it was doing, it was leaking 10 in the thing. The only way you could fix it was to put a 11 new tank in. So we put -- took the advantage of that. 12 But also, the fact that we wanted to put bigger tanks in 13 there. But because it's all rock, solid rock -- it's 14 shale. The whole hill is shale. And you couldn't fit it 15 in without dynamiting it. 16 Of course, they don't allow you to 17 dynamite in the City of Jackson. So we chiseled out as 18 much as we could to fit that -- that tank just fit. I 19 mean, it just barely fit in there. 20 Q Corner to corner? And you had Tallia do 21 that for you? 22 A Yeah, Keith Tallia put it in. 23 Q Do you remember if Mason Oil took out 24 permits? 25 A Keith Tallia is the person that did it. 988 1 He did all the permits and all the everything. We never 2 did anything on that. Because we -- we aren't in the 3 business to put in tanks. 4 Q Okay. 5 A Or take tanks out. 6 All we -- all he did was, he just -- we 7 had this problem. Keith told him, said, Hey -- Keith let 8 us pay it off over a period of quite a few years. It was 9 $56,000 to do this. And the State was supposed to 10 reimburse us for all of the costs on that, which they 11 never did. And from what I understand, they probably 12 never will. 13 Q Okay. And so that was a long-term loan by 14 somebody to one of the three Mason entities -- by Tallia, 15 and you guys paid Tallia off? 16 A It was no loan. It was Keith Tallia. It 17 was a friendship because we had known him and done 18 business with him for a number of years. He did all of 19 our environmental work. And he was a good enough person 20 to let us do it and saved our behind because we would 21 have had to close the station and we would have had to go 22 under because of it. 23 Q So you took the tank out. There was 24 contamination. You made the hole a little bigger than 25 the preexisting one so you could put in this 989 1 double-walled tank, correct? 2 A Not much bigger. As I said, they chiseled 3 out about as much as they could out of the rock. It was 4 just -- that whole station is made on a slate -- cut out 5 of a slate hill. 6 So I don't know exactly how they did it to 7 begin with. But boy, I -- I would imagine they had to 8 dynamite it when they originally built it or if they had 9 dynamite in those days. 10 Q They took the contaminated soil to the 11 Martell plant for a while? 12 A No, no. 13 Q They talked about doing that and they had 14 to take it all to Forward? Is that what happened? Do 15 you remember? 16 A To where? 17 Q To Forward Landfill in San Joaquin County? 18 A I don't know if they took it to Forward or 19 they took it wherever, to the one down in Bakersfield, 20 Kettleman City. I don't know if they took it there. 21 They had a certificate for where they 22 took the soil. There wasn't that much soil. There isn't 23 any soil there. It's whatever was around the tank. 24 Because that was essentially all it was, until you got to 25 rock. And I don't think there was too much soil around 990 1 the tank. And the tank took up most of the space. 2 Q Okay. And so then in May the weekend 3 before the tank came out or the week before the tank came 4 out, did you know that the station was closing? Did you 5 know that it was going to be demoed by Womack? 6 A (Witness shakes head.) No. 7 Q No? 8 A I didn't know anything. Sorry about 9 that. I didn't know anything. I got a call on Monday, 10 The station is gone. 11 I am going, It's gone? What do you mean 12 "gone"? 13 Q You had no idea? 14 A I had no idea nothing was happening. 15 Q Your dad signed the contract on Thursday 16 or Wednesday of the week before and by Saturday -- 17 A He didn't tell me anything about it. 18 Q Did he tell you at any point that escrow 19 had been opened in early April with Womack? 20 A Hadn't been or? 21 Q Had. Did he tell you -- 22 A No, no. He just -- he hadn't told me 23 anything about that. 24 Q Okay. 25 A The only thing he told me is that Womack 991 1 was thinking of buying the station. And but if -- that 2 he was only going to give this much. That was what was 3 to entail on it. 4 We talked about the other deal, as a 5 father and son, you know, for the loan. And that was it. 6 Q And then -- okay. So you didn't know 7 Womack -- Womack has got this deal. It's going to be 8 60,000. Or you knew that? 9 A I knew the 60,000, because I loaned him 10 the 20. That tells you right now, I knew it. I knew 11 that. 12 And that was the reason that I loaned it 13 to him. It wasn't because I decided that my dad needed 14 $20,000 and gave it to him. 15 Q Did he tell you that he had, three weeks 16 before, received this Tallia bid? 17 A No. I mean, no. What do you mean this 18 Tallia bid? 19 Q The Tallia bid to remove the underground 20 storage tank at 505 Sutter Street. 21 A He talked to Tallia about it -- I didn't 22 know it was a bid -- to get an idea of what it cost. But 23 I think it was because he was talking to him -- it wasn't 24 about that. 25 He was talking to him about the one in 992 1 West Point, because that's the one he is going to do. 2 Tallia is doing in West Point for us as soon as he gets 3 the time to take out -- I think it's two tanks there or 4 three. 5 Q Okay. So he didn't specifically say, I 6 got a bid from Tallia? 7 A (Witness shakes head.) Not that I know 8 of. 9 Q One of the issues for the Grand Jurors is, 10 did your dad know that the site was contaminated? 11 And so I guess my question to you is, did 12 Mason Oil receive the documentation from the County 13 between 1991 and 1998 regarding the contaminated site, if 14 you know? 15 A Uh... No, I don't know for sure. I don't 16 know anything about it, other than, we -- we -- he was 17 trying to get the money from the -- from the State back. 18 And so I assumed that it was -- that it was taken care of 19 and we were just trying to get the money back -- we had 20 already cleaned up. 21 So I don't know. We had -- they had 22 monitor well on site. And they had taken samples. And 23 it showed clean, as far as I know. But -- 24 Q Did you see some documents that -- 25 A No, I never saw any documents. 993 1 Q Because that's the first question, is, 2 have you personally physically seen documents? 3 A (Witness shakes head.) 4 Q Okay. But somebody told you that it was 5 clean? 6 A It might have been my own assumptions that 7 it was clean, because it wasn't -- it wasn't -- from what 8 my understanding was on the site, which I never saw -- I 9 just talked to Tallia -- it wasn't very bad. So that it 10 would -- and since they closed the other side, I thought 11 that after ten years or whatever the time was since we 12 put the new tank in, that it was clean. But I don't 13 know. 14 Q Isn't that contradictory to an earlier 15 statement -- and I am not trying to tie you up, but 16 attorneys sometimes do that. 17 A minute ago, you said, in the old days in 18 the '30s, the tanks leaked. And that's what the 19 contamination is. You said the stuff in '91 would be 20 gone by now. 21 A We hauled all that soil away when -- you 22 know, when they did the new tank. So that's what I 23 assumed that they hauled away, you know. 24 Q But you didn't review Tallia's work to see 25 further work necessary, stuff like that? 994 1 A Not my place. That was my dad's station. 2 I don't -- I -- no, it was not my place. 3 Q So then the letter from Steve Buckley in 4 '93 that said significant contamination still exists at 5 that site. You don't remember seeing that? 6 A I never saw that. 7 Q And your dad never told you, I got this 8 letter from Buckley that says significant contamination 9 still exists? 10 A No, he didn't. 11 Q Okay. And so you didn't -- 12 A I didn't receive it. And I didn't -- if I 13 received it, you know, if it went to me, I would have 14 read it, yeah. But I didn't get one, no. 15 Q Okay. So you didn't see your dad's 16 response back to Buckley saying whatever? Did your 17 dad -- 18 A What did he say? I have no idea. 19 Q Okay. When I met your dad with Ron Hall 20 that first time, your dad called them F'ing something 21 regulators. What was that? 22 I got to ask. These people need to know. You 23 don't have to say the F'ing part? 24 A Do I get to tell them how you threatened 25 to throw him in jail and how you threatened to haul him 995 1 away? 2 Q Walk us through that. 3 A He is a 70-year-old man. And I thought it 4 was pretty cheap shot to get him all riled up like that. 5 Q Absolutely. Go ahead. Tell the story. 6 A And so at the point, he did call them 7 that, because of the fact that you told him that what -- 8 you know, what good is it? You know. 9 Q Walk us through that, please. 10 A We are down at our office, my dad and I. 11 And they just show up. And he says -- he says, You have 12 a problem. I am going to throw you in jail. 13 Q Ron Hall is going to testify and you are 14 under oath. So go ahead and tell the story. 15 A This my own recollection. 16 Q Okay. 17 A I mean, is that you are going to throw him 18 in jail for -- this is -- I don't know the exact words. 19 You guys are better at this than me. You play the game. 20 But it's -- they threatened to throw him 21 in jail. They threatened to fine him a million dollars. 22 And I don't know exactly what the money amount was, but 23 it was way more than anything we have ever seen in our 24 whole lives. 25 Because they give me this, because we are 996 1 an oil company, we should know better than to do this. 2 When we didn't know anything was happening. He says, 3 Well, you pulled thousands of tanks in your career. 4 And I looked at him and I said, The only 5 tank that I have ever even seen taken out was the tank 6 that they took out there and put the new tanks in. We 7 have never taken any out. We don't take tanks out. We 8 didn't do it then. We hire people to do it. We didn't 9 have anything to do with this. I didn't know anything 10 about it. 11 And then I get a call on Monday, on the 12 Monday following the demolition of the station, saying 13 the station is gone. And I had no idea what they were 14 talking about. He is threatening my poor old father. 15 And I -- I look at him and said, Hey, 16 this guy is -- and I told Dave, I said -- and I took you 17 aside and I said, This guy is old. Later. He has got 18 diabetes. He has got high blood pressure. And you are 19 threatening him to take him to jail. You are threatening 20 to fine him more than any bit of money that he has, to 21 take away what little life he has left. And he has no 22 recourse. He didn't even know this was happening. He 23 didn't know anything about it. Other than they might 24 have told him they were going to demolish the station. 25 And I don't know about the permits, other 997 1 than, I thought that they said that they had the 2 permits. But I have no idea. I never saw 'em. I am one 3 of those kinds of people, I guess. I am just stupid. 4 When somebody tells me they are going to do something, I 5 suppose they are going to do it right. 6 I have -- you know, if that's a crime in 7 our country, then why -- why do this? You know what I 8 mean? You might as well -- you can throw most of the 9 people in this county in jail because they -- they take a 10 handshake for a deal. I have always done it that way. 11 You say it's not the right way to do it, 12 but that's the way we have always done it. And 13 hopefully, we get through all of this thing and have a 14 life afterwards. But maybe not. And that's why he has 15 that opinion of bureaucrats. 16 Q Okay. So that's -- 17 A Because somebody threatens him. 18 Q Let's start 1991. Walk me through who 19 threatened him in 1991. Anybody? 20 A In '91? 21 Q Right. When he first stopped not cleaning 22 up his property. Tell me. We will go year by year. 23 1991, the regulators said, Please, Mr. Mason, could you 24 clean this up. 25 Tell me what steps Mason Oil took to clean 998 1 it up in 1991. 2 A For one thing, you are surmising that I 3 knew something. 4 Q If you knew. 5 A I didn't know anything about the letter, 6 so you how can I say that he -- why he said that. 7 Q Okay. 8 A I wasn't there. 9 Q Okay. In 1992? 10 A And I didn't know that. So how can I 11 surmise something from something that I don't know? 12 Q Okay. 13 A You are saying that I know something that 14 I don't know. 15 Q I will ask a different question. If it 16 sounds like that, I apologize. 17 Did you know whether or not Mason Oil in 18 1991, other than overexcavation, did any work at the 505 19 contaminated site? 20 A Other than putting the -- the well in 21 there? 22 Q Yes. 23 A That was all I was told that I -- all we 24 had to do. 25 Q Okay. In 1992, did you have any knowledge 999 1 of any steps taken by Mason Oil to clean up the 2 contamination? 3 A If I known in '91, I would have known in 4 '92. But I didn't know either one of them, because that 5 was all -- I don't know what you are talking about in 6 '92. 7 Was there another letter sent that I 8 didn't know about? Was something else done? 9 Q I can't answer your questions, but I can 10 say that there is a binder here that -- 11 A My dad worked directly with Keith Tallia 12 on it, on the whole site, as far as I know. I don't know 13 what their plan was to do. I don't know what 14 contamination on the site there was. I -- 15 Q Here is a letter. 16 A Like I said, it's not my property. I 17 didn't know anything about that. 18 Q September 30th, 1992. 19 "Mr. Dave Mason: As you are well aware, 20 after January 1st, 1993, manual reconciliation may 21 no longer be valid for leak detection at your 22 facility." Blah-blah-blah. "Failure to complete 23 upgrade requirement is a violation of Health and 24 Safety Code 25299 and may result in a civil penalty 25 of not less than $500 or more than $5,000 for each 1000 1 underground storage tank for each day of violation. 2 "To ensure that the leak monitoring system 3 you installed is appropriate, please contact me and 4 I will meet with you on site. Steve Buckley." 5 Is that the same threat from Mr. Buckley 6 that I gave? Did I say it was a $500 per day per 7 violation minimum fine under California law, none of it 8 waivable, none of it dischargeable? 9 A He put in a double-wall tank with leak 10 protection. That met all of the -- all of the -- all of 11 the things. 12 I don't understand what you are talking 13 about. Buckley wasn't threatening him because he already 14 had put that tank, double-walled tank, with the leak 15 detector in it. It was all -- that's all legal. And 16 that had been done in -- when we took out the old tanks. 17 So I don't know what you are talking about. 18 Q Is that the same statute I quoted to you 19 and your father? 20 A Except for you did all of the totals on 21 it, as far as I understand. 22 Q So I said, if a tank is out of compliance 23 for a year, that's $186,000 minimum fine? 24 A And didn't we -- didn't we explain to you 25 at the time that we did not know anything about it at 1001 1 all? 2 Q I can't answer your question. I am 3 just -- you can go ahead and fill that in. And you can 4 say whatever you want. You can say, yes, that's what you 5 said, Mr. Irey. And do you remember, at the same time, I 6 said this? That's okay for the record. Okay. 7 Did I say that, under California law, 8 hazardous waste disposal is a $5,000 per day minimum 9 fine? 10 A You said that. And you said more. 11 Q And I said up to $25,000 per day, correct? 12 A Right. 13 Q And then I said there is penalty 14 assessments on top of that that make the minimum fine for 15 any one of these counts $13,500? Is that what I said? 16 A Yes, you said that. 17 Q And then did I say that jail -- 18 A As far as I understand. 19 Q -- between zero and three years in State 20 prison? 21 I was giving you ranges; is that correct? 22 A Mm-hmm. 23 Q Didn't I say -- did I say I was going to 24 take your dad to jail? Have I ever in your life 25 mentioned to you that your dad was going to jail in your 1002 1 life? 2 A In the way that you threatened. The way 3 that you put it. 4 Q The way that you took it. 5 A It was the tone that you put. It was not 6 in a cordial and well-meaning manner. It was more of: 7 You did this. You did that. You did this. This is what 8 is going to happen to you if you -- if you don't tell me 9 what happened here. 10 And both of us looked at each other and 11 said, We don't know anything. We would be glad to tell 12 you everything that we know. And we were open to 13 anything, any question that you wanted to ask us. Didn't 14 we also say that? 15 And at that point, you gave us more of: 16 This is the fines. This is -- this is what's going to 17 happen to you and -- but we -- and when you have no 18 knowledge of what you want and you won't ask us what you 19 want, we couldn't answer what you want. 20 Q Did we say we wanted the tank? 21 A Yeah. And we had no knowledge of where 22 the tank was. 23 Q Did we say we wanted the soil? 24 A Didn't say anything about the soil that I 25 remember. I don't know. 1003 1 Q That might have been before we knew that 2 the soil was missing. 3 Did we say anything about the piping? 4 A You said that the piping was taken 5 illegal. But we did not take the piping. We did not -- 6 you said that Mr. Womack moved those and Mr. Womack did 7 this and Mr. Womack did that. 8 But we weren't -- my dad was in San 9 Francisco that weekend. I was at home because it was 10 raining, like, incredibly hard, to use less vernacular 11 words. But it was raining so hard that you couldn't see. 12 And I was home playing with my kids,, tell 13 the truth what I was doing. And I -- I had no -- until 14 Monday, when somebody called me and told me, I didn't 15 know anything about what was going on. 16 Q Okay. And then for the Grand Jurors, how 17 many steps have you taken to try to find the tank before 18 Mr. Womack found the tank? Walk us through the steps you 19 took. 20 A When you have no idea who took the tank -- 21 all we did was call Mr. Womack, and if he knew of 22 anything, please tell 'em where it was. But that's all I 23 did. That's all anything. 24 But I didn't know where the tank was. I 25 didn't even know it was taken. That's how stupid I was, 1004 1 I guess. 2 Q So when you were selling the gas 3 station -- you, because you used the term "you." When 4 you were selling the gas station, being one of your 5 father's three entities? 6 A "You" meaning none of me, you mean? 7 Q Right. None of you. 8 When you were selling the gas station, you 9 were selling it as a gas station to that guy? 10 A As -- as I reported it, as I thought at 11 first, that's what it was. Because it was a turnkey 12 operation, as I said. It had the double-wall tank with 13 the sniffer in it. And all of that all has value, had 14 value to me. 15 Whether Prospect Motors used it for a key 16 lock or whatever -- whatever was done with it, all it 17 needed was minimal to be upgraded to meet the new 18 specifications. 19 Q Close. 1,500, $2,000, correct? 20 A Yeah. 21 Q So at that point, you were selling the gas 22 station and the tanks? 23 A As far as I knew we were, yeah. 24 Q Have you had any conversations with 25 whether your dad was selling the gas station as a gas 1005 1 station to Mr. Womack? 2 A From what I understood, at first it was 3 supposed to be a station. And then Dad said he didn't 4 know if he was going to operate it or not. Then he said 5 he didn't think so later, so... 6 Q So you never saw the bid in April before 7 the tanks came out? 8 A No. 9 Q So you didn't see the $5,600 bid to do it 10 the legal way? 11 A There was no bid, as far as I know. 12 Q Okay. 13 A There was a question -- from what my -- 14 from what I have talked to my dad -- and that's just 15 between my dad and me -- there was just a question of 16 what Tallia would charge to take out of tanks there, if 17 he decided to take it out. 18 Q Okay. 19 A I don't know what -- you know, what 20 entailed on that. And from what I understand, the 21 conversation was not -- didn't have anything to do with 22 the station in Jackson. It was just, he was going to the 23 one in West Point. 24 And he is still going to do the one in 25 West Point as soon as he gets the time. Because my dad 1006 1 has contracted with him to do it when we get the money. 2 Q In '88 Mason Oil takes out permits and 3 they deal with a tank legally? 4 A Not Mason Oil. Keith Tallia. 5 Q In 1991, they do it legally and take out 6 the permits? 7 A Tallia did it for us. I guess he took out 8 the permits. He does all that. 9 You call him up and you say you have this 10 problem. How do we solve it? Okay. And then we -- then 11 we come up with a plan. Then it's done. That's what it 12 was done. 13 Q "We" being Mason Family Trust? 14 A "We" being Mason Family Trust or Mason Oil 15 or whatever, whoever was doing it at the time. 16 Q So did Mason Oil pay for the -- 17 A I don't think so. I think my dad did. 18 Q Okay. 19 A Because... 20 Q So is your dad mad at Womack for this? Or 21 just the Government? 22 A He is -- he is not mad at anybody about 23 this. It's just, this is -- this is -- the way I look at 24 it, it just was a mistake all around, you know. 25 Everybody made mistakes. 1007 1 I guess our biggest mistake was not 2 following up on all of the different things that had to 3 be done. But when somebody says that they have it all 4 done, they have it all done, we have never -- we have 5 never -- we never done the permits or anything for one. 6 We wouldn't even know what you needed. 7 Q Your dad signs the permits. Have you ever 8 seen the permits that your dad signed? 9 A No. 10 Q Okay. 11 A And I -- I -- the only permits he ever 12 signed that I know of were the ones that on the job 13 when -- I don't know if he did -- I think he had to 14 sign -- did he have to sign ones for Keith? I don't 15 know. He signed them all. I don't remember signing any 16 that I know of. If I did, it was a long time ago. 17 Q This has been marked Grand Jury Exhibit 18 61, County permit application for underground storage 19 tank. See that? 20 A Mm-hmm. 21 Q Yes? You have to say yes. 22 A Yes. 23 Q And then the signature. Is this your 24 dad's? 25 A No. 1008 1 Q It's not your dad's signature? 2 A (Witness shakes head.) No. 3 Q And this County permit application for 4 underground storage tank, 1988. Is this your dad's 5 signature? 6 A That's not how he normally signs it, no. 7 Q Okay. 8 A You want me to tell the truth, don't you. 9 Q Absolutely. I bet this looks like his 10 signature, this 1987 county permit application. 11 A That's his signature. 12 Q So the one Grand Jury exhibit 9 is his 13 signature. Grand Jury Exhibit 61 and 62 is not his 14 signature? 15 A Well, it doesn't look like his signature. 16 Q It's a different signature? 17 A It's a different signature than is on the 18 other. 19 Q Okay. So your dad gets pennies on the 20 dollar for his gas station or dimes on the dollar for his 21 gas station, gets a bid from Tallia, gets his money? 22 A As I said, I don't know if he got a bid on 23 that. That was just a side comment on the -- on the -- 24 when he was doing his West Point station. It was not a 25 written bid or anything that I know of. 1009 1 Q Okay. 2 A From what I understand, that's what the 3 conversation was. 4 Q When Mr. Hall and I came and visited you 5 and your father, we reminded you that you were the owner 6 of the underground storage tank, correct? 7 A Many times. 8 Q And that, by law, you were responsible 9 from cradle to grave, correct? 10 A Many times. 11 Q And that Federal and State law have always 12 required that the person who owns the hazardous waste to 13 babysit the hazardous waste, correct? 14 A You didn't say that. 15 Q Do you think that's fair, that if you own 16 the tank, you are responsible for the tank? 17 A I think sometimes life isn't fair. 18 Q Do you think it's fair to walk away and 19 leave an underground storage tank and contaminated soil 20 in the ground and walk away? 21 A Do I think it's fair? Or are you asking 22 Mason Family Trust? 23 Q I am asking David Mason, who had a 24 birthday yesterday. 25 A Oh. You are going to get it right this 1010 1 time, my name? My name is -- on my subpoena was wrong 2 about five times. I am David S. Mason IV on it. I am 3 David -- David Junior. 4 But it's David Reginald Mason is my name. 5 So you can know that anyway, please. 6 And no, I don't think it's a good thing 7 that anybody leaves contaminated whatever on a property, 8 you know, that they are responsible for. But I am also 9 saying that we didn't go to do that. We are paying for 10 the clean-up of this property. We have a plan in. We 11 have a plan on all properties that we have. We were 12 never trying to avoid our responsibility to the 13 community. 14 Q In 1991 when you began the Keith Tallia 15 removal of the leaking underground storage tank, that 16 particular leaking underground storage tank has taken, at 17 least to this date, seven years to deal with the issues. 18 Is that your understanding? 19 A (Witness nods head.) 20 Q Because you don't believe that -- I'm 21 sorry. She couldn't hear your answer. 22 A I don't believe what? 23 Q I have to ask that first one again. I am 24 sorry. 25 So the first leaking underground storage 1011 1 tank took a lot of money. You said fifty some thousand 2 dollars and years, correct? 3 A (Witness nods head.) 4 Q Sorry. She needs to hear it? 5 A Yes. As far as I know, it did. 6 Q And the common theory is that the 1992 7 tank didn't leak because it was the state of the art. 8 Correct? 9 A Right. 10 Q So if there were any new leaks, they would 11 have come from the piping or the dispenser, which hadn't 12 been upgraded yet? 13 A The piping wouldn't have leaked because it 14 was a suction system. And, as you know, in suction 15 systems, if they spring a leak, it goes back into the 16 tank. 17 Q Okay. 18 A Okay. 19 Q So the -- 20 A So there wouldn't have been any 21 contamination. 22 The reason they are going to -- they are 23 going to cathartic protection is for the eventuality 24 of -- it's a new system, new law. And as I said, when we 25 put it in, it was state of the art then, but they didn't 1012 1 have the system that they have now. 2 Q Has Bob Womack ever told you that he is 3 the one that drove the tank away? 4 A (Witness shakes head.) 5 Q Have you ever asked him what happened to 6 the tank? 7 A I was at the meeting with you. And I 8 heard the story that he told. But no, I have never even 9 talked to Womack, Mr. Womack, about it at all. 10 Q But you heard the story about some guy 11 showed up, it was pouring rain, that story? 12 A Yeah. 13 Q That's the only time you have heard that 14 story? Or you have heard that from your father? 15 A I asked my dad and talked about it. My 16 dad and I talked about it. That's the same story he told 17 my dad. That's the only thing we know. 18 MR. IREY: Okay. It's no fun to testify, Mr. 19 Mason. 20 At this point, Members of the Grand Jury 21 can ask you any question that they want. 22 THE WITNESS: Sure. 23 Q BY MR. IREY: Did you know at any time 24 that Womack wanted the property at 505 for parking for 25 Roland's business? 1013 1 A I had heard later that that was what he 2 was thinking about doing, but that was after the fact. 3 Q After demo, after tank? 4 A Yeah. 5 Q I asked you if you talked to Womack. And 6 you said, Womack? Probably 200 times during this. You 7 are talking about Robert Womack, correct? 8 A Robert Womack. Never even spoke to Roland 9 or -- I talked to Luke, but that was it. 10 Q Luke out at Owens Illinois? 11 A Yeah. 12 Q Okay. Do you know where that Owens 13 Illinois story came from that Luke was telling? 14 A From what -- nearest thing I could figure 15 out on the whole thing was, on Monday, they called up. 16 Somebody called up and asked where the tank -- you know, 17 where the tank was? 18 I think Womack -- Mr. Womack had talked to 19 my dad and said that maybe Owens would be interested in 20 the tank. And so my dad asked me on Monday -- I think it 21 was Monday -- who I would talk to if the tank was out at 22 Owens Illinois. 23 And I told him to talk to Phil Joses, 24 because Phil Joses is the pit manager and he knows 25 anything that goes on at the plant. And that was how I 1014 1 think it got started. 2 But that's -- it turned out that it was 3 not out there, but that was not -- that was just because 4 my dad asked me, if it was out there, who would know 5 where it was? We weren't sure that it was out there. We 6 didn't know where it was. We just surmised that because 7 Mr. Womack had mentioned that they might be interested in 8 the tank. Well, if they took it out there, then... 9 But I didn't -- as I said, I didn't know 10 where it was at that time. I still don't know where it 11 was. 12 Q And have not been told where it was? 13 A Well, I heard later that it was returned 14 over -- that the tank showed up over at -- 15 Q Lodi? 16 A Lodi. 17 Q So you heard that from your dad or from 18 someone else? 19 A From my dad. 20 Q Please tell us who could tell us, being 21 the Members of the Grand Jury, other than your dad, 22 specific information on Mason Oil, Mason Oil, Inc, David 23 Mason, and the Mason Family Trust? 24 A God, the only -- I could ask my dad and 25 then I could repeat it to you. That would be the only 1015 1 way I could do it. 2 He -- that's -- that's just how it is. 3 And as far as I know, that's all -- he is the only one 4 that would be able to if I don't, you know. 5 Q Okay. Please tell us, if you could, who 6 would know where the paperwork was for David Mason? 7 A My dad. 8 Q Mason Family Trust? 9 A My dad. 10 Q Mason Oil? 11 A My dad. 12 Q Nothing is in Ione, huh? At the business? 13 A Yeah, it's in -- probably in his desk. I 14 don't know. I have no idea where it exactly is. 15 Q When was the last time that that guy named 16 Brito was selling gas? 17 A I can't say exactly because, well, it was 18 probably six months or -- no -- four or five months 19 before the station was closed, I mean, was done, this 20 thing. 21 Q Okay. 22 A Destroyed. 23 Q So that would be early, early, early '98? 24 A No, not -- in '97. 25 Q Fall of '97 or summer of '97? 1016 1 A Yeah. 2 Q Not the three years that's been printed in 3 the paper? 4 A Three years, the station? 5 Q The articles in the paper talk about it's 6 been three years since the station sold gas. That's not 7 true? 8 A Well, this has taken what a year, almost a 9 year. I don't know. When -- 10 Q May 2nd. 11 A Oh, May. Then it's been ten months, I 12 guess. 13 Q Okay. 14 A And then it was six months prior to that. 15 Six months to a year prior to that, so -- 16 Q And there will be records somewhere on 17 earth about Mr. Brito buying gas from Toms Sierra? 18 A Yeah, we could probably look under the 19 account. I am not sure exactly when it was. 20 Q How are accounts kept in Toms Sierra? Roy 21 Toms is coming in tomorrow. By address or account 22 number? 23 A Would have been cash and account. 24 Probably was, just paid for the gas as he got it. And so 25 it would be in the listing. 1017 1 Q Listing? 2 A You know, in the files, under cash sales. 3 Q So we ask Mr. Toms, Do you keep track of 4 your cash sales? He will say, I don't. Somebody else 5 does. This is the person's name. Something like that? 6 A Yeah, it's at our office. Judy would be 7 there. Judy. 8 Q Our office Colfax or our office Ione? 9 A Our office Ione. 10 Q So Judy would have these records? 11 A (Witness nods head.) 12 Q They would be not Mason Oil Company 13 records; they would be -- 14 A Toms Sierra. 15 Q Toms Sierra. 16 If you know, when Mr. Womack bought the 17 gas station, how was he going to get rid of the tank? 18 Only answer that if you know. 19 A From what I understood, what I thought was 20 going to happen was, it was not going to be removed. He 21 was just going to get soil samples under the tank. 22 Q You were present when Mr. Womack told 23 us -- okay. Were you present -- 24 A Because it had value, is what I thought. 25 Q Were you present on September 2nd when we 1018 1 had the meeting where everybody showed up? 2 A Yes, I was. 3 Q Were you present when Mr. Womack said that 4 your father never told him that the property was 5 contaminated? Do you remember? If you remember? 6 A No, I don't remember that statement. 7 Q Do you remember if your father has told 8 you at any time that he told Womack ahead of time that 9 the property was contaminated? 10 A I don't think he did. But I don't think 11 Dad thought it was contaminated. 12 Q If you know, if Womack was not going to 13 use the gas station as a gas station, be -- let me 14 rephrase this. 15 If you don't know whether or not he was 16 going to use the gas station as a gas station, who do you 17 think might know what Womack's plans were? 18 A My dad might know. Might have known. But 19 it was changing all the time, you know. Roland maybe, I 20 guess. I don't know. 21 Q That changing part. I haven't asked you 22 about that, and I am sorry. I think we will be done in 23 ten minutes if the Foreman and Grand Jurors -- our normal 24 break is at 11:00. 25 It did change, who your dad was actually 1019 1 selling it to. Is that your understanding? 2 A I didn't know anything about that. 3 Q You don't know whether he sold it to KRL? 4 A No. All -- I always thought it was Mr. 5 Womack. But is that his corporation or -- I don't even 6 know. 7 Q So you always -- 8 A Then I thought, well, maybe he is selling 9 it to Roland. But I -- Mr. Womack is the one who was 10 dealing with my dad the whole time on the thing. 11 So I don't -- I never knew anything other 12 than the amounts had changed. And that first it was -- 13 he was thinking of using the station because he didn't 14 like the price of gas in Jackson. He asked me if I could 15 get a deal on gasoline. And I give him a good deal on 16 it. 17 Q Whom? 18 A Mr. Womack, at first. This was way prior 19 to the buying it. 20 Q So probably this year or sometime before? 21 A It was way before the demolition of the 22 station. 23 Q So he was -- 24 A Yeah. 25 Q So you guys chatted about that? 1020 1 A Yeah. 2 Q And that's Robert Womack; not Roland? 3 A Roland -- as I said, only time I talked to 4 Roland is at the meeting. I didn't even talk to him. He 5 was sitting next to me though. 6 Q You not sure if that was '98 or maybe '97 7 or years ago? 8 A It was before. I don't know. It was 9 probably in '97. I don't know. 10 Q When Brito was still there? 11 A Yeah. 12 Q And you talked about what? Brito is not 13 really selling gas. If I took over, I would sell gas, 14 that type of thing? 15 A Yeah, bitching about the price of gas. A 16 lot of people do. I get a lot of that. 17 Q You actually talked about what price you 18 could get him gas for? 19 A Yeah. I told him I could get him truck 20 and trailer price. It was close to the bulk plant. The 21 tanks were small. It was so close, I could give him a 22 pretty good price. 23 Q It's not that far? 24 A It's only a quarter or half a mile from 25 our plant. It's easy. When that station was going hard 1021 1 and had the tanks that it had in, the other tanks before, 2 we would go there in the morning, go there in the 3 evening. That's how much gas they would sell at this 4 place. 5 Q Because it's right on 49? 6 A Right on the drag. 7 Q At the Martell plant is there a gate 8 between the plant and the old mill? 9 A No. 10 Q If not, do you know of any time that Mark 11 Sherrill trucks used that as access to dump loads of demo 12 debris or dirt from any construction site? 13 A No. That I know of, never came on our 14 property. 15 Q Do you know if that is where the debris 16 from 505 Sutter Street went? 17 A I don't know anywhere it went. I thought 18 it went to the dump, from what I understand. 19 Q Who told you that? 20 A You told me that. 21 Q That's the only person that has told you 22 that? 23 A That's the only one that I know. 24 Q So if you were told today that the debris 25 went to Mark Sherrill's property, that would come as news 1022 1 to you? 2 A Definitely. 3 Q If you were told that the debris and 4 contaminated soil went to the old mill, that would come 5 as a surprise to you? 6 A Definitely. 7 Q That's the stuff we were looking for 8 earlier this year, correct? The construction debris, the 9 piping, the tank? 10 A I thought you said it went to the dump, 11 all went to the dump. 12 Q Mr. Womack again. 13 A As I said, that's all new to me. I don't 14 know anything about it. 15 Q Did the gas from 505 Sutter go on CL or 16 bulk plant? 17 A It went to bulk plant. 18 Q What's CL mean? 19 A Key lock. Actually, it's card lock. They 20 changed it. Magnetic strip card lock. 21 Q Do you keep daily inventory records of 22 card locks and bulk plants? 23 A Yes. Have to. 24 Q Your bulk plant above-ground stuff, too? 25 A I don't do it at bulk plant. We do daily 1023 1 one at bulk plant. We just do it for State. 2 Q Everything else, States Cal inventory 3 reconciliation? 4 A Yes. 5 Q The upgrade tank -- 6 A Didn't have to. 7 Q Because it was upgraded? 8 A Yeah. It was just considered part of my 9 inventory, my bulk plant. 10 Q You do keep inventory at bulk plant? 11 A Yes. 12 Q So the question might be, did you show an 13 increase of your inventory at the bulk plant when you 14 pumped out the tanks? 15 A We -- yeah, but with your getting loads 16 all the time and all of our trucks come out of plant, we 17 have no meters that come off of our tanks at our plant. 18 So there is no reconciliation, like you would -- so you 19 wouldn't see an increase, because they are always selling 20 out of it every day. 21 Q That's why your meter on your truck has to 22 be calibrated pretty darn close? 23 A It's calibrated every year, both sides, 24 gas meter and diesel meter. And our -- and our air 25 eliminating systems are calibrated by the County every 1024 1 year. 2 Q Sticker weights and measures? 3 A Weights and measures. They also do the 4 pumps at every key, lock card, lock or regular station 5 in the county. 6 Q Do you know if it is your responsibility 7 when you sell property to disclose any material defects? 8 A I would think so. But I didn't sell it. 9 Q Do you know if your dad disclosed to Mr. 10 Womack any material defects? 11 A They were checking the soil, from what I 12 understand. I don't know. 13 Q You know, if your father failed to 14 disclose any material facts, why he did not? 15 A I don't think he -- I don't think he ever 16 lied to Womack about any of it. It's not in his make-up 17 to lie to people. At least, I have never found that. 18 Q Did you sign any papers to sell the 19 property? 20 A No. 21 Q Did Robert Womack have permission from you 22 or your dad to take the tank out, if you know? 23 A I don't know. 24 Q Okay. I can ask it two different 25 questions. 1025 1 Did Robert Womack have permission from you 2 to take the tank out? 3 A From me, no. 4 Q Did Robert Womack, if you know, have any 5 permission from your dad -- that's only if you know -- to 6 take the tank out? 7 A I think he had permission to demolish the 8 station and do whatever he wanted to do. And as far as 9 the permitting and everything, that was up to Womack. 10 Q I am going to ask a question. 11 A Sure. If I can answer, I will answer. 12 Q I think you can answer. I am supposed to 13 play a judge here, too. 14 A Okay. 15 Q Do you have an attorney? 16 A (Witness shakes head.) Should I have an 17 attorney? 18 Q No. But I am going to say that's an okay 19 question to ask. 20 Do you feel that your father was 21 responsible for the tank at the time it was pulled? 22 A I didn't know it was going to be pulled 23 and I don't think he knew it was going to be pulled. I 24 think that they thought -- that he thought that there was 25 going to be checked underneath. 1026 1 Q Because? 2 A I don't think -- well, for one thing, he 3 didn't know about the demolition happening at that time. 4 And for another thing is, the thing had value. The tank 5 had value. So why would you demolish something that has 6 value when all you would have to do is, you could -- you 7 know, you didn't even have to take it off the site. You 8 could have it certified that it is clean and then have it 9 sold to somebody or somewhere, as far as I understood. 10 Because that's what Keith -- that's what I 11 understand what Keith said that it had value. 12 Q Because it was only five and a half years 13 old? 14 A Yeah. 15 Q Low volumes? 16 A Yeah, low volumes. Four, five years old, 17 steel double-walled tanks, had sniffers in it, had all 18 the equipment with it. All you had to do was either dry 19 ice it or triple wash it or whatever needed to be done, 20 and then you could take it anywhere and set it up, as far 21 as I understood. 22 Q If you had done A, B and C ahead of time. 23 A That's what I understood, you know. 24 That's what I would have done. But I -- you know, all I 25 can tell you is what I think. But it had value. 1027 1 We had spent a bunch of money to buy this 2 thing. This is a 2,000 gallon, 1,000 gallon each side, 3 split-wall, double-wall tank. 4 Q Okay. Then the Grand Juror's question 5 was, do you feel that your father -- do you feel -- I 6 will put in a word -- today that your father was 7 responsible for the tank at the time it was pulled or 8 that Robert Womack was responsible for the tank at the 9 time it was pulled? 10 A Well, our -- you know, he is -- I guess he 11 was the landowner. I didn't even know if he was the 12 landowner or not because I thought that the -- you know, 13 the property was -- Womack was buying it. 14 Q "He" being whom? Your dad or Womack? 15 A Womack was buying the property from my 16 dad, from what I understood. 17 But, you know, as far as the 18 responsibility as ownership of the property, I guess he 19 owned the property, from what I understand. But I didn't 20 know. 21 But if Womack told -- Robert Womack told 22 my dad that he was going to take it out and get the 23 permits to take care of it, then I would surmise that 24 Womack was responsible, rather than my dad, because he 25 told my dad that he was going to do this. And if he 1028 1 didn't do what he was -- what he told him he was going to 2 do, how can you be responsible for somebody else's lack 3 of doing something? 4 Q That was your most interesting answer. 5 I am going to ask a follow-up question, Mr. Mason. 6 A That's the way I understand it. 7 Q You said, if Mr. Womack told your dad he 8 was going to get the permits. Did Womack tell your dad 9 he was going to get some permits? 10 A Well, from what I understand, that was 11 what he was -- that -- I am -- 12 Q You can only testify to what you know. 13 A I am just supposed to tell you what I 14 know. 15 I don't know if he told my dad that he got 16 the permits or not. But when somebody tells you they are 17 going to demolish something -- he told my dad that he was 18 going to demolish it. Tell me later -- I found out, of 19 course, on that Monday, that he was going to demolish 20 it. My dad didn't know he was going to demolish it that 21 weekend either. 22 But anyway, if he told my dad he was going 23 to demolish the station, I would assume that my dad would 24 assume that they would get the permits and do it right. 25 Q Okay. So -- 1029 1 A Not that he asked Womack, Did you get the 2 permits or get what or whatever. I don't know if he did 3 that or not. I have no idea whether -- I am not my dad. 4 I wasn't there. And -- 5 Q So your dad hasn't said, I wish Womack 6 would have done what he told me he was going to do and 7 get the permits? Your dad has not told you that? 8 A No. My -- my dad said he thought he told 9 me as conversation that he thought he got the permits. 10 He thought that it was all taken care of, in other 11 words. He didn't say permits or whatever. He just said 12 he had thought he had taken care of. 13 Q Do you have any hazardous material 14 training? 15 A Yes. 16 Q And that's required by California law? 17 A Right. 18 Q Chapter 6.95? 19 A (Witness nods head.) 20 Q Health and Safety Code? 21 A I have a special license to drive truck. 22 And I have to take Haz Mat. I have to take a special 23 test on my driver's test. 24 Q You have Class A plus hazardous 25 certificate, what you have? 1030 1 A Plus tanker, plus air endorsement, plus 2 whatever, a whole bunch of different stuff. 3 Q That's for your employment at Toms Sierra? 4 A For my employment -- well, not for my 5 employment at Toms Sierra, but for some of the things I 6 do for Toms Sierra, yeah. 7 Q Do you have any hazardous waste training? 8 A Other than I took some classes. I took a 9 class, single class, in Sacramento. That's it. 10 Q Eight-hour class? Or 40-hour class? Or 11 do you know? 12 A It was eight-hour class, one-day class. 13 This was back quite a few years ago when it first 14 started. 15 Q I think that this has been asked, but 16 maybe not this way. 17 Do you know if your dad had knowledge that 18 the tank was going to be removed? 19 A I don't think my dad had knowledge that 20 the tank was going to be removed. Because when my dad -- 21 when I -- when I asked him, he goes, Well -- he talked 22 about, you know, the Owens thing. That was the first 23 thing we had. 24 And so obviously, he didn't know that the 25 tank was going to be removed or he would have known where 1031 1 it was. He wouldn't have looked so shocked when they 2 said, Where is it? 3 Q If -- that's not what it says. 4 Is your sister involved as a corporate 5 officer in the family business? 6 A I -- I was trying to think of that, but I 7 don't think she is. Because she -- she -- she gets a 8 payment from the company, but she is not -- she was never 9 at any of the corporate meetings. So she wouldn't be on 10 it. 11 We had -- we have one corporate meeting a 12 year. We haven't had one in a few years. But she never 13 came, so I wouldn't think so. 14 Q Does your sister involve herself with the 15 family business at all? 16 A No, not any more. She used to a long time 17 ago. She used to -- she used to work at the office. Now 18 she works for the school district over at Argonaut High 19 School. And her husband works for SMUD. 20 Q How many other times were Mason Oil, Mason 21 Family Trust or David Mason fined for not being in 22 compliance with State, Federal or County laws, if you 23 know? 24 A We were never fined. Ever. 25 Q For the oil business? 1032 1 A Any fines. 2 Q Hasn't your dad had other issues related 3 to compliance with State, Federal and County laws in his 4 past? 5 A Other than -- other than that -- 6 Q Federal -- 7 A Yeah, well, that. 8 Q So that's -- 9 A That was banking deal. Mason Oil was 10 never fined on it. 11 Q All right. So maybe I will ask three 12 questions. 13 Has Mason Oil ever been fined for not 14 being in compliance with State, Federal or County laws, 15 if you know? 16 A Well, they were -- they were fined -- I 17 don't think he got a fine. I think he got a -- he got 18 sentenced. He had to take some time. 19 Q That was your dad? 20 A That was my dad. But that was personal 21 deal. That was a check deal. 22 Q I will ask the question. 23 A No, it never has. 24 Q So not for Mason Oil. Not for Mason 25 Family Trust? 1033 1 A No. 2 Q And David Mason had done some time 3 personally? 4 A Personally, yeah. 5 Q For money issues? 6 A Money issues. 7 Q I think that's specific enough for the 8 Grand Jury at this time. 9 A Thank you. 10 MR. IREY: Can we take a two-minute break, take 11 the 15 after that? It's been two hours. Otherwise, we 12 are putting Mr. Mason two minutes behind. 13 THE FOREPERSON: What is your request? 14 MR. IREY: May we take a two-minute break and 15 stay in the room? 16 Unless we think we are going to keep Mr. 17 Mason on the stand for a few more minutes or take the 18 ten? 19 GRAND JUROR: I need to use the bathroom real 20 quick. That's all. 21 Q BY MR. IREY: Mr. Mason, did you know that 22 Mr. Womack had inquired with County Environmental Health 23 about closing the tank in place not long before the tank 24 was pumped? 25 A (Witness shakes head.) No. No. Sorry. 1034 1 Q When Toms Sierra bought the business, what 2 did they buy at 505 Sutter? 3 A It was just part of the accounts that was 4 selling gas through. 5 Q Not dirt? 6 A Well, they -- I am trying to think. I 7 don't think so. I don't know. 8 Q Not the tanks? 9 A No. Tanks were already -- they said the 10 tank was done. We had a lot of other things that we have 11 to do. We are doing 'em now, through the company. But 12 that one was one of the ones that I put out of my mind 13 because we had already spent the money there. It was 14 already -- it had value. It was already a going 15 station. Didn't have to do any more upgrades, other than 16 a little bit. 17 Q Okay. After you leave before the next 18 witness comes in, I will read this question, but I am 19 going to rephrase this one. 20 Do you think your dad really cared what 21 Womack did with the tank, as long as he got his money as 22 fast as he could? 23 A Well, I think he figured that Womack was 24 buying the station, so it was his property. He didn't -- 25 he didn't -- he didn't -- since it's somebody else's 1035 1 property, we didn't think of it, you know, that way. I 2 am sure that's the way he thought of it. Or he wouldn't 3 have let him tear it down, tear down something, a going 4 business. 5 Q Citizens of State of California, Amador 6 County, and maybe Members of this Grand Jury know that 7 the tank might have been worth money. But $60,000 is 8 more money. 9 How would you respond to that issue, as 10 far as what drove this tank to be removed illegally? 11 A I don't have any reason why -- why it was 12 removed illegally. That's what I said. The whole thing 13 is just nebulous. 14 It's really strange to me that somebody 15 would -- would want to hide something that is of value 16 when -- when it costs less to just have it gassed or, you 17 know, to render it inert or whatever it takes and then 18 sell it. It had more value that way than to just get rid 19 of it. So it didn't have -- to me, it didn't make any 20 sense. The whole thing doesn't make any sense. 21 Q So you have read a lot in the paper and 22 heard a lot around town that this is very expensive, 23 correct? This process, prosecution. Is that your 24 understanding? 25 A From what I have read in the paper. I 1036 1 really don't know. I -- from all of the -- the 80 2 witnesses or so that I have heard that was called, I 3 don't know. 4 Q Who told you 80 witnesses were called? 5 You read it somewhere? 6 A What? 7 Q You read it somewhere? 8 A Yeah. 9 Q So if -- 10 A I had -- I heard there was just huge 11 amount of money being spent on this thing. 12 Q So if your dad would have taken out a $100 13 permit in May of 1998 and the tank was pulled legally, 14 what do you think the costs would have been to anybody? 15 A I wouldn't have thought that it would have 16 been much more cost than three or $4,000 at the most. 17 Q So 3,100 bucks. $100 county permit, 18 $3,000. 19 A Yeah. And, you know, as I said, you 20 can -- you could recoup some of your losses on the 21 equipment and the -- and the tank, you know, the sniffing 22 equipment and all the stuff that -- the tank alarms and 23 stuff that was all hooked to the tank. It all had value, 24 the whole thing. 25 He had a compressor there had value, air 1037 1 compressor. So you could have just recouped everything. 2 I mean, it wouldn't have cost nothing hardly. That's why 3 the whole thing was really strange, the whole deal. 4 That's what we would have done, if we were doing it. 5 Q Please list the reasons that you believe 6 that Robert Womack would have known the type of permits 7 to get for the tank. 8 A I have -- I don't know what Mr. Womack's 9 background is. I have no idea what -- you know, what 10 knowledge he is, other than if you -- you would -- you 11 would have thought he would have went to the City and 12 asked them, the City would have told him what he needed. 13 But that's what I understood. That's what -- you know, 14 if you are doing it on your own, that's what you have to 15 do. 16 But I don't know -- I don't know what kind 17 of knowledge -- I don't even know what he did before. I 18 know he has got a beautiful house. 19 Q Did your father give -- 20 A Seemed like a nice kid. His sons all 21 seemed nice. 22 Q Did your father give permission to Womack 23 or the Building Department for demolition of your 24 father's station? 25 A Yeah. From what I understand, he did. He 1038 1 gave permission to demolish the station. 2 Q To Womack? 3 A To Womack. 4 Q Do you know if he gave it to the Building 5 Department? 6 A I don't know. I never saw any paperwork 7 or anything. I just assume, when he gave permission to 8 Womack, he must have signed something to demolish it. 9 But I don't know. 10 Q If you know, was your father aware that 11 Womack had taken out a permit to destroy his property? 12 A I think he -- I think -- later I found out 13 I think he was aware that he was going to demolish the 14 station, but that was -- that was another thing. He 15 figured it was going to be his property, so... You hate 16 to see something happen like that, but you got to deal in 17 reality. When you sell something, it's gone. 18 Q Your dad took out what is commonly 19 referred to as a retroactive permit. Is that your 20 understanding? 21 A Mm-hmm, yes. Uh-huh, yes. 22 Q And he put in there, Hazardous Waste 23 Hauler, Wolin and Sons. Is that your understanding? 24 A I didn't know that, no. I never saw the 25 permit, Dave. I -- all I know is he went down and he 1039 1 took -- took -- went down that Monday or Tuesday. And 2 that was when they were supposedly going to find the tank 3 and everything was going to be settled. And I thought it 4 was settled. It never did. So I don't know. 5 Q Who actually legally owned the property at 6 505 Sutter on the day the demolition -- I can't ask that. 7 That calls for a legal conclusion. 8 To the best of your knowledge, who owned 9 the property at 505 Sutter on the day of demolition of 10 the station? 11 A To the best of my knowledge, I thought 12 that Womack owned it, but that -- at that time, I thought 13 it was. Then later, I found out that it -- that it -- 14 that it wasn't. It was still owned by my dad. That's to 15 the best of my knowledge. At that point, I did. That's 16 what I thought. 17 But I was not -- I have a lot of duties 18 with the company. I do all of the -- I do run the whole 19 thing. And so that was the least of my -- my mind was 20 not on that. My mind was taking care of my customers and 21 doing my job. And that -- that was a deal with my dad. 22 The only thing, only reason I even got 23 involved later in it was because of the loan, that I had 24 to loan my dad the money so that he could do it. And 25 that was it. 1040 1 Talk to my wife. I am a workaholic. I 2 work six, seven days a week. And one of my failings, I 3 think -- because the only time I get to see my kids is, I 4 take my kids to work with me. Luckily, my son loves to 5 go with me. So whenever possible, I take him with me. 6 But now he is in kindergarten, so I only get to take him 7 on weekends. 8 MR. IREY: Any other questions of the Grand 9 Jurors? 10 Mr. Mason, that was a long stint. Thank 11 you for your time today. I think it helped clarify some 12 issues for the Grand Jury. 13 At this time, the Grand Jury Foreman has 14 an admonition for you. 15 THE FOREPERSON: You are admonished not to reveal 16 to any person except as directed by the Court what 17 questions were asked or what responses were given or any 18 other matters concerning the nature or subject of the 19 Grand Jury's investigation that you learned during your 20 appearance before the Grand Jury. 21 This admonition continues unless and until 22 such time as a transcript of this Grand Jury proceeding 23 is made public. Violation of this admonition is 24 punishable as contempt of Court. 25 This does not prevent you from discussing 1041 1 the matter with your attorney, if you have an attorney 2 advising you with respect to your appearance before the 3 Grand Jury. 4 I need you to sign -- 5 THE WITNESS: I couldn't remember all the 6 questions anyway. 7 THE FOREPERSON: If you could sign and date that 8 I read that to you, please. 9 THE WITNESS: Not hard to forget, 17th, day after 10 my birthday. I sign as witness? 11 THE FOREPERSON: Yes, please. 12 THE WITNESS: I didn't sign it David IV. 13 Sorry. 14 THE FOREPERSON: You are excused. 15 THE WITNESS: Thank you for letting me in right 16 away. Appreciate it. Sorry it took me so long to get 17 answers out. 18 THE FOREPERSON: To my fellow Grand Jurors: The 19 Grand Jurors are admonished that they are not to form or 20 express any opinions about this case or to discuss it 21 among themselves until the Grand Jury receives the case 22 for deliberation. In addition, no inspection of evidence 23 should be conducted without the permission of the 24 Foreperson and on the advice of the prosecuting attorney. 25 A violation of this rule could result in a 1042 1 charge of contempt against the Grand Juror who would 2 investigate or view any matters with regard to this case 3 without the entire body of the Grand Jury. 4 We will take a ten-minute recess. Please 5 be back at a quarter to 12:00. At that time, we will 6 take lunch at 12:30. Dave, 12:30 to 1:30? 7 MR. IREY: Please. 8 (Recess taken from 11:35 to 11:45 a.m.) 9 MR. IREY: Brian Drake. 10 THE FOREPERSON: Could you raise your right 11 hand. 12 You do solemnly swear that the evidence 13 you shall give in this investigation now pending before 14 this Grand Jury shall be the truth, the whole truth and 15 nothing but the truth, so help you God. 16 THE WITNESS: I do. 17 THE FOREPERSON: Thank you. You may be seated. 18 19 (TIME NOTED: 11:45 A.M.) 20 ---oOo--- 21 BRIAN DRAKE 22 Called as a witness herein by the People, 23 having been duly sworn to tell the truth, was examined 24 and testified as follows: 25 1043 1 EXAMINATION 2 BY MR. IREY: 3 Q If you could spell your last name for the 4 court reporter, please. 5 A D-R-A-K-E. 6 Q Okay. Mr. Drake, we just met three 7 minutes ago for the first time, correct? 8 A Yes. 9 Q Although you know the names on the 10 subpoena, you don't know why you are here to testify 11 today? 12 A No. 13 Q We have never spoken? 14 A No. 15 Q Have you spoken with Investigator Hall 16 about this issue? 17 A Very briefly. 18 Q Okay. And were you at Mel's that Saturday 19 morning that the tank came out of the ground, if you 20 recall? 21 A I don't know if I was. I am usually there 22 on Saturday mornings, but I don't know that specific 23 morning, no. 24 Q Mr. Drake, you own a ready mix company? 25 A Yes. 1044 1 Q And what's the name of it? 2 A Amador Transit Mix. 3 Q Okay. So did Bob Womack ask you if you 4 wanted an underground storage tank that morning? Or 5 ever? 6 A No, no. 7 Q Ever? 8 A No. 9 Q So if Mr. Womack has told investigators 10 that he asked you on May 2nd in the morning between 6:00 11 and 7:00 a.m. if you wanted an underground storage tank, 12 that would be inaccurate? 13 A That would be inaccurate. 14 Q So you are positive you were never asked 15 by Mr. Womack if you wanted an underground storage tank 16 from 505 Sutter Street? 17 A I am positive. 18 MR. IREY: I have no further questions of this 19 witness. If any Member of the Grand Jury wants to write 20 down a question at this point, they can. 21 I don't know if they will have any 22 questions of you, Mr. Drake. Sorry about the wait. 23 THE WITNESS: No problem. 24 MR. IREY: The Grand Jurors are equally sorry. 25 What they are trying to do is get their business done as 1045 1 efficiently as possible. 2 THE WITNESS: No problem. 3 THE FOREPERSON: Mr. Drake, I have an admonition 4 to read to you. 5 You are admonished not to reveal to any 6 person except as directed by the Court what questions 7 were asked or what responses were given or any other 8 matters concerning the nature or subject of the Grand 9 Jury's investigation that you learned during your 10 appearance before the Grand Jury. 11 This admonition continues unless and until 12 such time as the transcript of this Grand Jury proceeding 13 is made public. Violation of this admonition is 14 punishable as contempt of court. 15 This does not prevent you from discussing 16 the matter with your attorney if you have an attorney 17 advising you with respect to your appearance before the 18 Grand Jury. 19 Sir, if I can get you to sign and date 20 that I read you that admonition. 21 MR. IREY: Mr. Drake, I have one more question. 22 Q Has Mr. Mark Sherrill, Mr. Bob Womack, Mr. 23 Dave Mason, told you at any time what they did with the 24 underground storage tank or the soil at that specific 25 site? 1046 1 A No. 2 MR. IREY: Same admonition? 3 THE FOREPERSON: Same admonition. 4 MR. IREY: So we have a question. Sorry, Mr. 5 Drake. Coming out of the woodwork. 6 THE WITNESS: Okay. Sure. 7 Q BY MR. IREY: Did Bob Womack ever tell you 8 that he hauled the tank? 9 A No. 10 Q Did Mark Sherrill ever tell you it was his 11 truck? 12 A No. 13 Q Did Bob Womack ever tell you he didn't 14 know what happened to the tank? 15 A No. I had no conversation with Bob Womack 16 at all. That's why I was surprised I was even called 17 here today. 18 GRAND JUROR: That's probably answering my 19 question. 20 THE WITNESS: I have a question. 21 MR. IREY: That's going to be a little tough. 22 THE WITNESS: Can I ask a question? 23 MR. IREY: You can ask it. She will write it 24 down. 25 THE WITNESS: Was Bob Womack the one that 1047 1 requested me to be here today? Did he say that he had a 2 conversation with me? Is that why I am here? 3 MR. IREY: You can ask Investigator Hall. I 4 can't answer questions. 5 Q Did you hear anyone talking about the 6 demolition of the gas station that Saturday morning at 7 breakfast? 8 A No. Because I come in there before they 9 even started. I mean, I saw them taking the tank out 10 about when I went to get the mail around 10:30. And I 11 just immediately turned left and went about my business. 12 Q When you say you saw them taking the tank 13 out -- 14 A I saw them doing -- what I would consider 15 them doing some underground work, which I thought would 16 probably be taking the tank out. I had no prior 17 knowledge of that at all, no. 18 Q And you think it was underground work, 19 not demolition, because of what? 20 A Well, it looked like they were digging. 21 And digging at the site of an old gas station would tell 22 me they were probably removing a tank. 23 Q Do you think that was on Saturday or 24 Sunday? 25 A I believe it was Saturday, because I went 1048 1 to get the mail. And there is no mail on Sunday, so... 2 Q Have Mr. Womack or Mr. Sherrill or Mr. 3 Mason ever asked you to tell the Grand Jury a different 4 story than what actually happened? 5 A No. 6 MR. IREY: Okay. Same admonition. 7 THE FOREPERSON: Same admonition, please. 8 THE WITNESS: Are we done? Okay. 9 THE FOREPERSON: Thank you. 10 THE WITNESS: Thank you. 11 MR. IREY: Mr. Bob Van De Pol. 12 THE FOREPERSON: If you could remain standing 13 and raise your right hand, please. 14 You do solemnly swear that the evidence 15 you shall give in this investigation now pending before 16 this Grand Jury shall be the truth, the whole truth and 17 nothing but the truth, so help you God. 18 THE WITNESS: I do. 19 THE FOREPERSON: Thank you. You may be seated. 20 (TIME NOTED: 11:50 A.M.) 21 ---oOo--- 22 BOB VAN DE POL 23 Called as a witness herein by the People, 24 having been duly sworn to tell the truth, was examined 25 and testified as follows: 1049 1 EXAMINATION 2 BY MR. IREY: 3 Q Mr. Van De Pol, if you could spell your 4 last name for the court reporter. And speak up so the 5 person in the back could hear you. 6 A Capital V-A-N, capital D-E, capital 7 P-O-L. Van De Pol. 8 Q Mr. Van De Pol, you have currently 9 retired? 10 A Yes, I am. 11 Q Prior to that, what type of business were 12 you in? 13 A Well, I was employed by Wolins and Sons, 14 heavy equipment operator. 15 Q How many years? 16 A With them, I think it was around ten 17 years. 18 Q And when did you leave working for Wolin 19 and Sons? 20 A '94. 21 Q Okay. And in '94, you had some type of 22 disability claim; is that correct? 23 A No. 24 Q Workmen's Comp. injury, something like 25 that? 1050 1 A Workmen Comp., yeah. 2 Q And you had been injured while working for 3 Wolin and Sons? 4 A No. 5 Q At this point, if possible, whenever you 6 have a chance, can you give a narrative answer? Because 7 otherwise, I will have to ask 65 questions instead of 8 asking one. 9 Could you briefly describe to the Grand 10 Jurors what the injury -- 11 A In Operating Engineers that, when you 12 retire, they send you to three doctors. And what it is, 13 is an evaluation of your health, you know, during the 14 time that you have worked in heavy equipment industry. 15 And that's what this was based on. 16 Q And you received a check? 17 A Yes. 18 Q For tens of thousands? How much? 19 A It was 34,000, I think. 20 Q And Wolin and Sons Workmen's Comp. would 21 have to pay that? 22 A I would imagine. I mean, I didn't ever 23 see where the check came from, but I mean, I would 24 imagine that. 25 Q And how long have you known Bob Womack? 1051 1 A Oh, since about I'd say '90 -- no, '86, 2 '87, somewhere in there. 3 Q Do you live in the neighborhood? 4 A Yes, I do. 5 Q Would you consider Mr. Womack a truthful 6 person? 7 A I would. 8 Q Have you ever worked on Wolin and Sons' 9 equipment on an hourly wage by Bob Womack when Wolin and 10 Sons didn't know about that? 11 A They didn't know about it? 12 Q Yeah. 13 A No, not that I know of. 14 Q Have you ever worked on equipment that was 15 loaned to Bob Womack after you received a Workmen's Comp. 16 check? 17 A Yes, I have. 18 Q For Bob Womack? 19 A Yeah. 20 Q So you got this Workmen's Comp. injury 21 that said you can't work anymore, correct? 22 A That isn't the way it works. 23 Q How does it work? 24 A I retired. That's the settlement of the 25 Operating Engineers. They didn't say I wasn't unable to 1052 1 work. And when I retired, then I worked once or twice 2 for Bob Womack. 3 Q Using Wolin and Sons' equipment? 4 A Right. 5 Q Okay. And when was the last time you did 6 that? 7 A Oh, God. I just don't know what to say on 8 that. I mean, probably the last I worked for Bob Womack 9 was probably two, three years ago. 10 Q Did he call you to ask you to help work on 11 this underground storage tank? 12 A No, he did not. 13 Q Did you call him to ask to work on the 14 underground storage tank? 15 A No, I did not. 16 Q Has he talked with you in the last couple 17 weeks since you received your subpoena? 18 A Not since I received the subpoena. 19 Q But before that? 20 A Before that. 21 Q Did he talk to you about the underground 22 storage tank removal issue? 23 A Well, he told me just what -- you know, 24 going through the process, what he did. 25 Q What did he do? 1053 1 A Well, he got the permit. 2 Q From whom? 3 A From the City. 4 Q Did he show you it? 5 A No. I seen it afterwards. 6 Q From whom? 7 A From Mr. Womack. 8 Q So you had more than one discussion about 9 this? 10 A Well, casually, I guess. I mean, you 11 could say it was twice. 12 Q The second time, he was actually showing 13 you documents? 14 A Well, no. He -- well, yes, he did, I 15 mean, really. 16 Q How many documents did he show you? 17 A Just the one. It was a permit. 18 Q Permit to do what? 19 A To take out the gas tank. 20 Q Really? You read that on there somewhere? 21 A No, I didn't. I just took it for granted 22 that was the permit to take out the gas station. 23 Q So Bob Womack said, Look. Here is the 24 permit to take out the gas tank. 25 And you said, Well, that's not fair. 1054 1 Is that how it went? 2 A No, I didn't say that. 3 Q What did you say to Bob? 4 A I don't remember what I said really, tell 5 you the truth. 6 Q Is Mr. Bill Wolin a truthful person? 7 A I would say. I have no reason to doubt 8 him. 9 Q Okay. Other than these two conversations 10 you had with Mr. Womack when he said he had a permit, 11 have you had any other conversations? 12 A Not with Mr. Womack. 13 Q Who else have you had conversations with 14 regarding the underground storage tank removal? 15 A Well, it's nothing about the underground, 16 outside the average person you see on the street, what 17 you read in the paper. 18 Q So not Mr. Sherrill? 19 A No. I don't even know the man. 20 Q Okay. So he didn't ask you to work. 21 Investigator Hall told you that there were 22 about five or six phone calls to your house from the work 23 site that day, and you told Investigator Hall? Let the 24 Grand Jurors know. 25 A Well, the first call, I think, was on the 1055 1 29th, April 29th. I have no recollection of talking to 2 any Womack. 3 And I think the next call was the 2nd of 4 May. 5 Q Saturday? 6 A Yeah, Saturday. There was a telephone to 7 my house. But I never talked to no Womack. There was 8 other parties that live at the house, including my wife. 9 And she did not talk to Mr. Womack. She talked to Mrs. 10 Womack. 11 And as far as what we could figure it out, 12 on the 3rd the phone call was, it was a call from Mrs. 13 Womack on knitting a rug. 14 Q Because they do that together? 15 A Yeah, yeah. That's 90 percent of the 16 talk, is through my wife, I mean. 17 Q So Mr. Womack never asked you if you 18 wanted the tank? 19 A No, no way. 20 Q And he never told you -- 21 A I never knew that he even had the property 22 until the 2nd of May. 23 Q How did you learn on the 2nd of May, which 24 would have been a Saturday, that he had the property? 25 A Mrs. Womack had called my wife. And she 1056 1 wanted -- my wife had some health food samples. And she 2 wanted to know if she would bring the health sample food 3 down to Roland Womack's office. And that's next to where 4 the Mason Oil. 5 Q That's where she was that day? 6 A That's where -- she was there. So okay. 7 And towards the afternoon, my wife went down there and 8 brought her the samples of this health food. 9 Q Did you go with your wife? 10 A Pardon? 11 Q Did you go with your wife? 12 A No. 13 And the only time I knew is when she come 14 back and she says, Do you know that Bob Womack bought the 15 Mason Oil Company deal? 16 I says, No. I had no idea he did it. 17 And she says, They are tearing it down 18 already. 19 That was the first I ever knew about it. 20 Q And then the first conversation you had 21 with Bob Womack about the missing tank was when? 22 A Oh, I don't know. I would say probably a 23 week or so later. 24 Q And he said -- 25 A I happened to be going by there. I was 1057 1 asking him about cutting some wood on his property. And 2 then he told me about the situation, what they was doing. 3 Q What did he say was happening? 4 A Well, he told me the same thing about 5 getting a permit. He told me the whole story about 6 getting the permit, you know, how he was going to take it 7 out and stuff like that. 8 Q Okay. Did he tell you who drove the tank 9 away? 10 A No. 11 Q Did you ask? 12 A No, I didn't. 13 Q Did he tell you that the tank was missing? 14 A No, he did not. 15 Q Did he tell you what he did with the soil? 16 A No. 17 Q Did he tell you what he did with the 18 piping? 19 A No. 20 Q Did he tell you he gave away the tank? 21 A I -- could have been mentioned during it. 22 I don't know. I don't really remember. 23 Q Okay. And then later, he showed you some 24 permit? 25 A Yeah. He showed me the permit that he had 1058 1 got. 2 Q How did that come up? You guys were 3 driving down the road together and he stopped -- 4 A No, we weren't driving down the road. I 5 was over at the house there. That's when I asked for 6 cutting the wood. 7 When this conversation come up, he says 8 that the City had said -- he had gotten a permit from the 9 guy at the City, that he was inexperienced. So I guess 10 he got -- 11 Q "He" being Bob? Or "he" being the guy at 12 the City? 13 A No. The guy at the City giving the permit 14 was inexperienced. That's what the City had said. 15 Q That's what Bob told you the City had 16 said? 17 A Yeah. 18 And then he, Mason, produced the permit 19 ten years ago with the same man's name on it that gave 20 him a permit ten years ago. 21 Q Mason did that? 22 A Yeah. 23 Q That's what Womack told you? 24 A Yeah. 25 Q Did you see that permit? 1059 1 A No. 2 Q So you saw one piece of paper that didn't 3 say anything about gas tanks. Womack told you that was 4 the permit to take the gas tanks out, correct? 5 A Well, I tell you, I didn't sit there and 6 read with a fine-toothed comb. None of my business. I 7 took his word for it. I seen it was a permit, you know. 8 Q You get a plumbing permit. Is it okay to 9 do excavation on your property? 10 A I don't know what the permit tells you to 11 do. I have had no really no experience with permits. 12 Q Never got a permit in your life? 13 A Well, for putting a new roof on my house, 14 yeah. 15 Q Did you get a permit to put a new roof on 16 your house? 17 A Yeah. I got it from the Planning 18 Department. 19 Q Do you think you could have pulled a tank 20 that day? 21 A I didn't pull the tank? I didn't hear 22 you. 23 Q Do you think that that permit would have 24 allowed you to pull a tank that day? 25 A I don't know anything about their permits, 1060 1 so I can't answer you truthfully on that. 2 Q So your answer is, you don't know what you 3 think about that? 4 A Well, no. I mean, I don't know what the 5 City or the County or what their permit deals call for. 6 Q Okay. Did Mr. Womack tell you, three 7 weeks before he tore down the gas station and took out 8 the tank without a permit, that he inquired at the County 9 about what permits were necessary? 10 A No. 11 Q Would it change your opinion of Mr. 12 Womack's truthfulness if that was a fact? 13 A That I knew three weeks before? 14 Q If Mr. Womack knew three weeks ahead of 15 time he needed permits, would it change your opinion of 16 him today that he is still telling you that he had all 17 the permits that were required? 18 A Well, if it's the truth, I guess I would 19 have to believe you. 20 Q So would that change your -- 21 A But I don't know that. 22 Q Would that change your opinion of Mr. 23 Womack? 24 A Not really. 25 Q He would still be a truthful guy? 1061 1 A Well, I would have to see it. I mean, if 2 he -- if he knew that ahead of time, sure, I would have 3 my doubts about him. 4 Q What about if, at the City, staff told Mr. 5 Womack to get County permits; and the City staff was 6 assured by Mr. Womack that he had been in contact with 7 the County on that very issue. Would that change your 8 opinion of Mr. Womack? 9 A Well, I guess it would. 10 Q So if I have three -- I am not going to 11 ask that question. Strike that, please. 12 Okay. Did Mr. Womack at any time tell you 13 he is the guy that hauled the tank off? 14 A No. 15 Q Never? 16 A No, he never told me what he did with the 17 tank. 18 Q Would it surprise you if Mr. Womack hauled 19 the tank off after all you have read and heard? 20 A Well, I guess so. 21 MR. IREY: No further questions of this witness. 22 Any Member of the Grand Jury has a question at this 23 time of Mister -- Van De Pol? 24 THE WITNESS: Van De Pol. 25 MR. IREY: -- Van De Pol, they submit it to me 1062 1 and I ask that of you. Okay? Then after that, the Grand 2 Jury Foreman would read you an admonition so that you 3 don't talk about these questions. And we're pretty much 4 going to be done. 5 Q Did you understand that Robert Womack was 6 blaming the City of Jackson for making an error in 7 issuing his permit when you referenced the inexperienced 8 employee? 9 A Well, I -- I would take it that way, I 10 mean. I don't know how else I could explain it for you. 11 Q Did Mr. Womack or his family influence 12 you not to be honest with your testimony to the Grand 13 Jury? 14 A No, they did not. 15 Q Have you talked to anybody about your 16 testimony today? 17 A No. 18 Q Nobody other than Ron Hall? 19 A No. 20 Q Not your wife? 21 A Well, I said I was subpoenaed, yeah. But 22 there is nothing so eventful that I would want to make a 23 conversation out of it. 24 Q So Mr. Womack never told you not to be 25 truthful? 1063 1 A No. 2 Q Mr. Womack never offered you the tank? 3 A No. 4 Q Mr. Womack never told you that he didn't 5 know where the tank went? 6 A I don't recall him ever saying that. 7 Q Do you and your wife see Mr. Womack and 8 his family socially? 9 A I wouldn't call it socially. If you call 10 cutting wood at his property -- I think we have went out 11 to breakfast in the last ten years twice. And that's 12 all. 13 MR. IREY: Any other questions of the Grand 14 Jurors? 15 THE FOREPERSON: Mm-hmm. 16 Q BY MR. IREY: Did you and Mr. Womack talk 17 about the search warrant of his house? 18 A Yeah, he mentioned something about that, 19 yeah. 20 Q Would that be the third meeting? Or is 21 that a second meeting? 22 A No. I inmate only met that I know of 23 twice with Womack. 24 Q On this issue? 25 A Well, it wasn't on this issue. It was 1064 1 something else. I am cutting wood. That's how come I 2 was there. 3 Q What did he tell you about the search 4 warrant? 5 A Well, he said they come out while he was 6 gone and trashed his house. 7 Q Okay. Give us the list of things that 8 were trashed, please. 9 A Well, I don't know. Gee, I mean, I have 10 no idea. I wasn't in the house. 11 Q What did he say was trashed? 12 A He just said -- that's the term he used: 13 They trashed his house. 14 Q So let's -- hypothetically, we have a 15 videotape of the search. Okay. This is a hypothetical. 16 Let's say that everybody in the Grand Jury has seen that 17 the whole house was treated with kit gloves, as I think 18 they say. I think it's kit gloves; maybe kid gloves. 19 So all of these people know how the search 20 warrant went. And let's say the house wasn't trashed. 21 Let's say the house was treated perfect. 22 Would that change your influence or your 23 opinion of what Mr. Womack tells you in the future? 24 A Well, yeah, it sure would. 25 Q So if all these people in this room know 1065 1 that he was treated golden that day, but he tells you his 2 house was trashed, would that change your opinion of Mr. 3 Womack? 4 A Well, to a certain point, sure, it would. 5 If you catch somebody lying, I mean, what are you going 6 to do? 7 Q So he didn't give you a list of what was 8 trashed with the house? 9 A No, no. 10 Q He just used the one sentence? Or did 11 you talk about the search warrant for ten minutes? 12 A No, he never was talking about it for ten 13 minutes. He just told me that the house was trashed. 14 And that was it. 15 Q Didn't tell you what they took? 16 A Well, not what I -- he didn't tell me. I 17 read it in the newspaper. 18 Q Did he tell you how many times he has 19 talked to the newspaper on this? 20 A No. 21 Q Did he tell you he was sending documents 22 to the newspaper? 23 A No. 24 Q Did he tell you that he was facilitating 25 this letter-writing campaign? 1066 1 A No. 2 Q Has anyone else told you that Womack was 3 contacting the newspaper daily? 4 A Not that I know of. 5 Q Has anyone told you that? 6 A Not that I can recall. 7 Q Do you feel this issue before us today is 8 serious or overrated? 9 A Definitely overrated. 10 Q I might have more questions. 11 What's overrated about it? 12 A Just the way they are going at this thing, 13 in my book. 14 Q How does your book read? 15 A Well, what did the man do? He didn't kill 16 anybody or anything else. He did everything -- what I 17 know, he did everything what his permit called for. I 18 mean, what more can the man do? 19 Q You have pulled underground storage tanks 20 in your career? 21 A No. 22 Q Ever? 23 A Well, I can't say. Maybe 30 years ago. 24 Q Okay. So in the last five years, no? 25 A No, not in the last five years. 1067 1 Q Have you had any training while you were 2 in the construction industry on whether or not it's okay 3 to pull underground storage tanks? 4 A No. 5 Q Do you know anything about the Uniform 6 Fire Code? 7 A No. 8 Q Do you know anything about California 9 Hazardous Waste Control Act? 10 A No. 11 Q Do you know -- are those laws that you 12 think are bad? Walk me through that. Remember, these 13 laws are the ones that Congress passed. 14 A Well, I think everybody is entitled to 15 their own opinion. 16 Q What's your opinion on health and safety 17 of humans? 18 A Well, I mean, I just think that the -- 19 these environmental deals and stuff like this are just 20 going way overboard, what you have to do. 21 Q Such as, you should be able to leave 22 gasoline in the ground? 23 A No. I didn't say that. 24 Q Okay. So tell me where the overboard 25 happens. 1068 1 A Well, I am no lawyer, so I really can't. 2 Q You are a citizen. This is America. What 3 do you think? 4 A I am glad it is America. 5 Q Okay. So should you be able to pull a 6 tank on weekends without permits? 7 A Well, according to my book, that what I 8 heard that he had the permit. 9 Q That's not my question. Strike that 10 answer, please. 11 Should you be able to pull tanks on 12 weekends without permits? 13 A Well, I guess not. If you need a permit, 14 you can't be pulling a tank. 15 Q Should you place people that are on hourly 16 wage in danger of losing their life because you didn't 17 take out a permit as you had been told? 18 A Well, I have to disagree with you there, 19 because -- 20 Q Are you answering my question? Should you 21 be able to do it? 22 A Well, according to the law, no. 23 Q But according to you, Mr. Van De Pol? 24 A Well, you could have a permit, but I don't 25 see nothing wrong with pulling the tank on Saturday or 1069 1 Sunday. 2 Q Without dry ice? 3 A If you have a permit. 4 Q What do you think about firemen? 5 A Well, I don't know if there was such a 6 great fire danger there. 7 Q Do you like firemen? 8 A I don't have nothing against them. 9 Q Do you think a Uniform Fire Code which has 10 been promulgated because of firemen is a reasonable set 11 of rules? 12 A I suppose. I don't know the rules of the 13 firemen. 14 Q Okay. So if the Fire Code says you are 15 supposed to do A, B and C, it might make sense because 16 it's a fire; not like an environmental rule? 17 A I guess. Whatever the law is, the law is. 18 Q Okay. And if the law requires you to 19 handle underground storage tanks a certain way, then that 20 should be followed? 21 A Well, presumably, whatever the permit 22 says, yes. 23 Q This inexperienced Jackson official -- I 24 am going to ask two questions before I read this. 25 Do you know the name of this inexperienced 1070 1 Jackson official? 2 A No, I don't. I seen it on the permit, but 3 I don't remember what his name is. He is the one that 4 gave him the permit. 5 Q Some guy? 6 A Well, it was the man that gave Womack the 7 permit. 8 Q So it was a man, not the lady, when you 9 saw the name? 10 A As far as, I know, it was a man. I don't 11 know. 12 Q Okay. You said you got a permit ten years 13 ago for a roof? 14 A Mason did it. 15 Q No. For your roof. 16 A Well, no. That hasn't been ten years ago. 17 Q How long ago? 18 A Probably five years ago. 19 Q City guy? 20 A Yeah. 21 Q City of Jackson guy? 22 A It was in the Planning Department. 23 Q For the City of Jackson? 24 A Well, no. Because I don't live in the 25 City. 1071 1 Q Okay. So it wasn't the same person -- it 2 wasn't a City person who issued your roofing permit? 3 A Well, not my -- for -- as far as I know, 4 it wasn't. I went to the County building down there and 5 got the permit. 6 Q From the County? 7 A If he was City or County, I don't know. I 8 took it he was County. 9 Q Okay. So the question is, this 10 inexperienced Jackson official was the same person -- or 11 was it the same person who issued a permit -- I 12 apologize. 13 If you know, was this inexperienced 14 Jackson official the same person who issued a permit ten 15 years ago? 16 A Well, according to the name on that 17 document of Womack, I mean, that permit of Womack's, it 18 was. 19 Q Okay. So if this is true, isn't this a 20 long time to be employed by the City of Jackson as an 21 inexperienced person? 22 A Well, yes, it is. 23 Q Therefore, you think Jackson hired bad 24 employees? 25 A I don't know really that much about their 1072 1 employees. 2 Q Besides Mr. Womack telling you all of his 3 tales of woe, what is the worst experience you had with a 4 government official in Amador County in the last ten 5 years? 6 A I never had no run-ins with them. 7 Q Pretty regular quality people, like you 8 and me? 9 A I imagine. I don't have nothing against 10 them. 11 Q The guy next door, doing their job? 12 A Well, I imagine so. 13 Q No bad experience? 14 A Not that I can recall of. 15 Q Womack tell you about this vendetta Gary 16 Clark has against him? 17 A No. 18 Q No talk of the vendetta, other than what 19 you read in the paper? 20 A Just what I have read in the paper. 21 Q Do you feel that the environmental laws 22 apply to everyone? 23 A I imagine so. They should apply to 24 everyone. 25 Q Do you feel that the courts have an 1073 1 obligation to enforce all laws? 2 A I imagine they do. 3 Q Fire Code? 4 A Yeah, all the laws. 5 Q Including environmental laws? 6 A Well, yeah. It's a law, isn't it? 7 Q But you were going -- 8 A If we don't like them, I mean. 9 Q Change 'em? 10 A That's our privilege, I think. 11 Q To change them? 12 A But they should be, you know, applied to 13 everybody. 14 Q Okay. And so you were going to give us a 15 list of environmental laws that are a little ridiculous. 16 A Oh, I don't know. I don't know the names 17 of all these environmental laws, I mean. You could be 18 reading a newspaper and you could say, This party here is 19 going overboard. I think that is America. That's your 20 privilege to think that. 21 Q If you believe the newspaper? 22 A Well, yeah. 23 Q Do you think, when mining waste gets in 24 creeks, it's bad for creeks? Or do you think it's okay? 25 A I have no idea on that. 1074 1 Q It makes, like, super fish? 2 A I don't know anything, the materials or 3 what in it. So I just don't know. 4 Q You worked for Wolin and Son. You had to 5 get permits when you crossed creeks. Do you think those 6 were ridiculous permits? 7 A Yes, I do. 8 Q Did you ever see a salmon try to breathe 9 in silt? 10 A No, I never did see a salmon breathe in 11 silt. 12 Q You ever see a human try to breathe in 13 silt? 14 A No. 15 Q You ever try to see a bug breathe in silt? 16 A No. 17 Q How do you think they fare? 18 A I don't know. Just like all the rest of 19 the bugs, I guess. 20 Q Ever see gasoline catch fire? 21 A Yes. 22 Q Ever seen a container with gasoline in it 23 explode? 24 A Yes. 25 Q What do you think a 2,000 gallon tank 1075 1 would do if it exploded? 2 A It would make a noise. That's for sure. 3 MR. IREY: No further questions. 4 Q When you operated heavy equipment, did you 5 follow the safety rules? 6 A Yes. 7 Q All of 'em? 8 A Well, I imagine most of 'em. 9 Q Hard hat? 10 A Not always. 11 Q Steel boots? 12 A No. We are not required on steel boots. 13 Q Goggles? 14 A We are not required that either. 15 Q Hearing? 16 A Well, yeah. You are supposed to wear 17 hearing plugs. That's your option. 18 Q So when a hydraulic line broke in the 19 field, what did you guys do with the hydraulic fluid? 20 A Well, I don't know if I had one break in 21 the field like that. 22 Q Ever? 23 A Well, yeah. I have worked on equipment 24 for 40 years. 25 Q You've never seen a hydraulic line break? 1076 1 A Well, I don't see -- I haven't seen it 2 broke. I don't know what they did. I am no mechanic. 3 Q Have you ever seen a gas tank blow or have 4 you ever known one to below? 5 A I have heard of them blowing. I never 6 seen a gas tank blow. 7 MR. IREY: Any other questions? 8 Q Do you feel, because no one was hurt 9 physically on this job, that the investigation should not 10 be taking place? 11 A No. I -- what I am trying to say is, now, 12 you say he is a liar. 13 Q I didn't say that. 14 A So, I mean, I am just going by what the 15 man told me. If you -- if somebody tells you he got a 16 permit, I mean, what more you going to do? 17 Q But believe him? 18 A Well, Womack -- I have no reason to 19 disbelieve him. He has treated me fair and square. And 20 he has never lied to me that I know of. Until what you 21 are saying here today. So what am I supposed to do? 22 Condemn the man for something I hear here? 23 MR. IREY: I am not asking you to do that, Mr. 24 Van De Pol. I am only asking the questions that I came 25 up with and the Members of the Grand Jury came up with. 1077 1 And now that we have no further questions, 2 the Grand Jury Foreman has an admonition for you. 3 THE FOREPERSON: You are admonished not to reveal 4 to any person except as directed by the Court what 5 questions were asked or what responses were given or any 6 other matters concerning the nature or subject of the 7 Grand Jury's investigation that you learned during your 8 appearance before the Grand Jury. 9 This admonition continues unless and until 10 such time as a transcript of this Grand Jury proceeding 11 is made public. Violation of this admonition is 12 punishable as contempt of court. 13 This does not prevent from you discussing 14 the matter with your attorney if you have an attorney 15 advising you with respect to your appearance before the 16 Grand Jury. 17 Sir, if I could get you to date and sign 18 that I read you that admonition. That's exactly what I 19 just read right there. The 17th, sir. 20 Thank you very much. You are free to go. 21 MR. IREY: Thank you. Sorry about the wait. 22 Nick Hernandez. 23 THE FOREPERSON: Mr. Hernandez, if you could 24 remain standing, please, and raise your right hand. 25 You do solemnly swear that the evidence 1078 1 you shall give in this investigation now pending before 2 this Grand Jury shall be the truth, the whole truth and 3 nothing but the truth, so help you God. 4 THE WITNESS: I do. 5 THE FOREPERSON: Thank you. You may be seated. 6 7 (TIME NOTED: 12:18 P.M.) 8 ---oOo--- 9 NICK HERNANDEZ 10 Called as a witness herein by the People, 11 having been duly sworn to tell the truth, was examined 12 and testified as follows: 13 14 EXAMINATION 15 BY MR. IREY: 16 Q Mr. Hernandez, if you could spell your 17 last name. 18 A H-E-R-N-A-N-D-E-Z. 19 Q Mr. Hernandez, we met at 9:00 this morning 20 for the first time; is that correct? 21 A Yes, sir. 22 Q Are you going to tell the truth for us 23 today? 24 A Absolutely. To the best of my ability, 25 as I remember it. 1079 1 Q Is your mind foggy today? 2 A No, it's not foggy at all. It was just a 3 job like a hundred other jobs. It was a long time ago. 4 Q You are not on any -- I have to ask these 5 questions because they would have got asked later by the 6 Grand Jury, because they ask awesome questions. 7 You haven't got in any car wrecks or hit 8 your head in the last five months? 9 A Not lately. 10 Q You are not on any medications that would 11 affect your memory? 12 A No, not at all. 13 Q This question I haven't had to ask 14 anybody. I apologize for asking it, because I am not 15 sure. 16 Do you have any felony convictions? 17 A No. 18 Q Okay. So tell us what happened the day 19 the tanks came out of the ground. Give us a narrative, 20 please. 21 A The day the tank came out of the ground. 22 I believe it was a Saturday. We had an excavator there, 23 two ten-wheelers. And we started demolition on a gas 24 station. 25 Talking to everybody? 1080 1 Q Mostly them. 2 A Okay. And we started tearing down a gas 3 station. We were hauling the debris off to the Amador 4 County landfill. After we tore down the gas station, 5 used the excavator and scraped out around the tank and 6 popped the tank up out of the ground and loaded it up -- 7 by then, it had started raining. It was raining then, 8 raining pretty hard. We loaded the tank up onto a 25,000 9 pound trailer. 10 And at that particular time, when we were 11 done strapping it down, binding it down, I went home. 12 And it was either Bob or Mark Sherrill drove the 13 ten-wheeler and the trailer to his property on Highway 14 88. 15 The following day, which is Sunday now, I 16 went out with Mark, brought the truck and trailer back to 17 the shop. The gas tank was not on the trailer at that 18 time. Got the water truck, went back down to the job 19 site right across from Coast to Coast, the gas station 20 there, sucked out all the water in the hole, took that 21 back to Amador County landfill. 22 Q That wouldn't have been Sunday. 23 A It was a Sunday. They took -- stayed open 24 for us. Took up all the debris and disposed of the water 25 in the hole where the tank was. Finished that. Went 1081 1 out, got another water truck, brought that down and 2 washed down all the streets and sidewalks. Put up fences 3 because there was a big hole in the ground. 4 And that was best I can remember. 5 Q Okay. I might be able to help refresh 6 your recollection with some of these questions. 7 A Okay. 8 Q I appreciate your candidness. This was 9 the most information this Grand Jury has received in 45 10 seconds in a week. 11 A Oh, good. 12 Q So it was Mark's trailer? 13 A Mark's trailer. 14 Q You were there? 15 A (Witness nods head.) 16 Q You have to answer yes or no for -- 17 A Yes, I was there. 18 Q You don't have to answer yes or no. You 19 have to answer accurately and honestly. She will write 20 it down. It has to be audibly. 21 A Mark's trailer. 22 Q So the first time Investigator Hall asked 23 you about it, you said you didn't know? 24 A That's true, yes. 25 Q And -- 1082 1 A Why? 2 Q Why? 3 A I didn't want to get anybody in any 4 trouble. 5 Q But that's what we are here for. 6 A Exactly. 7 Q Go ahead. 8 You just didn't want to get anybody in 9 trouble? 10 A I know Mark. I work for Mark. I know 11 Bob. We also own Antonio's, and I used to see them on a 12 regular basis. And kind of got to ride fences as far as 13 politics and everything else in the county. You learn 14 how to try to keep everybody out of trouble. 15 Q So that's why you kind of avoided your 16 subpoena for a couple, three weeks? 17 A I didn't avoid it. I called and talked to 18 everybody that left me a message. 19 Q Okay. So -- 20 A I am working in San Jose. I don't know if 21 you folks know that. It's a hardship for me to get up 22 here. 23 Q You lost a day of work? 24 A Yes, sir. 25 Q And the money that went with it? 1083 1 A Yes, sir. And with house payments and car 2 payments and insurance payments, like everybody else in 3 this room will tell you, you need every day of work you 4 can get. 5 I did not avoid. I called and returned 6 all the messages. 7 Q Okay. So you told Investigator Hall that 8 you didn't know what happened to the tank. But you had a 9 a whole story that went with that. What was the story? 10 A I don't remember. 11 Q What story do you think you told 12 Investigator Hall? 13 A I -- hell, it was a lie. I don't remember 14 what I said. It was a lie. It was a lie. 15 Q Okay. The whole story was a lie? 16 A That I told. Not what I just told you. 17 That's the honest to God's truth. 18 Q What you told them? 19 A What I told you, all you people in 20 here. 21 What I told Investigator Hall about not 22 knowing what happened down there, that was a lie. That's 23 why I don't lie. Because you don't remember. You get 24 caught up. I don't know what I said. 25 Q You tell him it was raining hard? 1084 1 A No. It was raining hard. It was pouring. 2 It was storming. 3 Q You couldn't see the truck? 4 A Well, something to that effect, yeah. You 5 are right. You got me. 6 Q You didn't know whose truck it was? 7 A Yeah. That's right. I did say that. Now 8 that you remind me, I did. 9 Q Okay. So this is the question that is 10 real important to these individuals. 11 A Okay. 12 Q And to other people. And we need you to 13 answer it honestly, just as all of your questions. 14 A I will. 15 Q Did anybody tell you the story you were 16 supposed to tell people if they came by? Because there 17 might have already been people testify to that. 18 A There were. 19 Q And what were those stories? 20 A Well, they just -- let's see here. 21 Mmmm... Didn't know anything. Didn't know where the 22 tank went. Didn't know what kind of truck it was. 23 This was Mark Sherrill asked me to say 24 this. I didn't know the color of the truck, the time of 25 day it was, what the guy looked like, where the tank was 1085 1 going. That was all said to me. 2 Q By Mark? 3 A By Mark. 4 Q What about Bob? 5 A Bob pretty much did everything through 6 Mark. 7 Q With you? 8 A Yeah, with me, right. 9 Q So did Mark say, Nick, this is Bob's story 10 that we are all going to say? 11 A No, no. Not at all. 12 Q He just said Mark -- 13 A Nick, this is the way it is. This is what 14 I need you to do if anybody asks you anything. 15 Q When did he tell you that? Week one? 16 A I can't remember when that was, but I 17 saw -- who was the man outside I was sitting with? 18 Q Investigator Hall. 19 A Okay. I saw him come up to the shop 20 probably a month after that had happened, maybe three 21 weeks. It was in that time frame, I guess. And that's 22 when we had the discussion. 23 Q So Investigator Hall and -- do you 24 remember if I was with him? 25 A He was with another guy. I don't remember 1086 1 if you were with him or not. 2 Q I probably wasn't in a suit. 3 A Well, I don't know. 4 Q So you saw Investigator Hall show up, talk 5 to Mark. Investigator Hall left. Mark ran to you, like 6 100 yard dash? Or he just kind of meandered over? What 7 happened? 8 A Well, he just said -- I said, Who is 9 that? I said, He looked official, you know. He told me 10 it was the D.A. or somebody, investigator or something. 11 I don't remember exactly. He said, If anybody asks you 12 anything about the tank, could you say this? 13 I said, As long as it doesn't cause any 14 grief, I can say that. 15 Q Walk us through what he told you to say 16 one more time. See if you can repeat the same story. 17 A Let's see. I didn't get a good look at 18 the truck. I didn't get a good look at the trailer. I 19 didn't get a good look at the driver. And I had no idea 20 where the tank was going. 21 Q Okay. Now, it's been your testimony that 22 you don't remember for sure who got in the truck to drive 23 it? 24 A Yeah. That's -- I wasn't there when the 25 truck went away. 1087 1 Q Were you later told who drove it? 2 A No, no. I never asked. 3 Q Ever? 4 A Never asked. I could go home and ask 5 right now, go out to a phone and find out. But I never 6 did ask. 7 Q Who would you ask if you went? 8 A I would call Mark and ask Mark. 9 Q You think Mark knows? 10 A Of course Mark knows. 11 Q Why do you say, "Of course Mark knows"? 12 A It's his truck and trailer. 13 Q And whose tank? 14 A Now, that's what you guys are working out, 15 right? I just found out today that that property wasn't 16 sold to the Womacks. 17 Q Who did you find that out from today? 18 A It's a small room out there. 19 Q Who did you find that out from? 20 A Oh, quit it. Really. 21 Q No. I am serious. 22 A You are expecting him later this 23 afternoon, an older gentleman. I don't know him at all. 24 Blue suit. 25 Q That is the guy that was hammering the 1088 1 Grand Jurors for taking so long, right? 2 A Same guy. 3 Q Same guy? 4 A Same guy. 5 Q Mr. Carstensen. You say, same guy? 6 A He is sitting out there waiting to get in. 7 Q Some guy you don't know said Womack 8 doesn't own it? 9 A I didn't understand why Mason was in so 10 long, said they sold the property. He said, Oh, no. 11 That's when I found out. 12 Q Okay. There is some confusion, Mark's 13 version of the story hasn't been told to this group, and 14 Billy Wolin's story. 15 A Okay. 16 Q What truck was it? 17 A Mmmm... I think it was the transfer. 18 Q So a ten-wheeler? 19 A Yeah. Ten-wheeler, front part of the 20 transfer without the trailer. 21 Q As opposed to three-quarter ton or one ton 22 that has tool boxes on it? 23 A No, not that truck at all. It was a 24 regular tractor trailer. Okay. It was a ten-wheeler 25 front end with 25,000 pound trailer on the back side. 1089 1 MR. IREY: This might take ten to fifteen more 2 minutes. If the Grand Jurors want to keep going? Mr. 3 Foreman? 4 THE WITNESS: However you guys want to do it. 5 THE FOREPERSON: We have had a couple of 6 requests that we adjourn at 5:00 p.m. today, if that's 7 possible. We have people that made appointments after 8 5:00 p.m., doctor's appointments. 9 Is that going to be possible? 10 MR. IREY: You run the whole thing. I will quit 11 at 3:00. 12 GRAND JUROR: Second. 13 THE FOREPERSON: Mr. Irey, we will adjourn at 14 5:00 p.m. today. 15 We have a question from -- we have a 16 question from the jury box. 17 THE SECRETARY: We have lots more. 18 MR. IREY: Back on the record? 19 THE FOREPERSON: Yes, we are back on the record. 20 Q BY MR. IREY: Mr. Hernandez, we didn't 21 have a chance to brief you about this before, correct? 22 A Right. 23 Q Okay. At the end of my asking 24 questions -- did I already do this? Members of the Grand 25 Jury can ask -- actually, write down a question. And 1090 1 then I will ask that of you. Okay? 2 A Sure. 3 Q Kind of like a double team. 4 A They just can't ask me? 5 Q No. 6 A No. Got to be all -- okay. 7 Q All secret, secret. People aren't 8 supposed to know their names or faces. The last person 9 we had in with a blindfold. 10 We are going to show you some exhibits we 11 thought you should be able to see. 12 Okay. So in the morning, you remember 13 taking some trucks to the landfill? 14 A Yeah. 15 Q I was going to show you pictures of the 16 trucks. 17 A You were going show me pictures of trucks? 18 Q This is Grand Jury Exhibit 21. 19 A That's the truck and trailer. 20 Q How do you know it's this truck and 21 trailer? 22 A It belongs to Mark Sherrill. I know the 23 truck. I have driven the truck. I know the trailer. I 24 have pulled the trailer. 25 Q The day you were working at the 1091 1 underground storage tank removal, did you load the 2 trailer? 3 A We loaded the trailer. 4 Q Who was there? 5 A Billy Wolin was running the excavator. 6 Bob Womack and one of his kids -- I don't know his name, 7 but he works at Owens Illinois in Ione. 8 Q We may have a picture of him. 9 A Okay. 10 Q Grand Jury Exhibit 25. 11 A Well, that's the back side of a man, but 12 that would definitely be him. 13 Q Okay. 14 A He was on the job site. There was myself 15 and Mark Sherrill. And that's all that had to do with 16 the loading. 17 Q Was June Womack still there? 18 A June was there, but she was in the truck 19 or the car. No. Excuse me. It was a black Lincoln 20 off-road -- the new off-road whatever they have. 21 Q Navigator? 22 A There you go. 23 Q She was present when the tank came out of 24 the ground? 25 A I don't know if she was actually standing 1092 1 around. She was in the -- wherever the dentist's office 2 was or Coast to Coast, one of those places. 3 Q Plus or minus 200 feet? 4 A Right. 5 Q Grand Jury Exhibit 22. 6 A Back side of the trailer, yes. 7 Q Trailer that the tank was loaded on? 8 A Yes. 9 Q The morning you went -- you took the 10 debris from the demo site to the landfill, right? 11 Correct? 12 A Right, yes. 13 Q I will ask the question more open-ended. 14 And then the afternoon, you stopped taking 15 the trucks to the landfill and you were taking them other 16 places. Do you remember where? 17 A Hmmm... No. 18 Q Would Mark's property help refresh your 19 recollection? 20 A That's where the trucks ended up. That's 21 where that truck ended up. 22 Q The cement and the debris and the soil. 23 A You know what, we might have taken a 24 couple loads up there. That could be. 25 Q What about the old mill? 1093 1 A That could be, too. 2 Q What would help refresh your recollection? 3 A Well, I just don't remember that. We were 4 working at the mill at the same time that this job was 5 going on. 6 Q That was your Monday through Friday job? 7 A Yeah. You know, so I could have. I don't 8 remember. I thought we took everything to the landfill, 9 to be honest. I really thought we took it all to the 10 landfill. We could have taken a load or two there, you 11 know. There was -- there was another driver. John 12 either showed up or Mark was hauling debris, too. Now, I 13 am not 100 percent on that. I don't even remember John 14 being there, tell you the truth. All right. I guess I 15 was. 16 Q Who said that? 17 A Mark. 18 Q Mark said John was there? 19 A Sherrill. Yes. 20 Q Okay. On Saturday, when the tank, the 21 demo -- 22 A When we were demolitioning it. 23 Q Not just to bring the rock in? 24 A Now, that was something John did all by 25 himself. I never worked -- helped with the rock. John 1094 1 did take all the rock down there. 2 Q After you found out you were going to get 3 subpoenaed -- going to get; not gonna -- you and Mark 4 have a chat about truth, justice? Or stick with the old 5 story? 6 A Yeah, we did. 7 Q How did that chat go? 8 A Well, I told him exactly what I was going 9 to do if I was asked a certain question. I said, I am 10 going to answer as truthfully as I can. I said, I am not 11 going to go to jail for anybody, Mark. 12 Q Okay. And what did Mark say? 13 A He says, I am not asking you. But if they 14 don't ask, you know, you don't have to volunteer. 15 Q So this was a second conversation? 16 A I guess it would be, yes. 17 Q You had the one when Investigator Hall was 18 out there. 19 A That's true. 20 Q You had one after you heard you might be 21 getting subpoenaed? 22 A Mm-hmm. 23 Q As recently as three weeks ago, Mark was 24 holding the party line? 25 A Yes. 1095 1 Q So what question was it that I wasn't 2 supposed to ask? I need to know. 3 A Well, at that time, I think the tank was 4 still missing; is that correct? 5 Q I think -- I can't answer your questions, 6 but what question was that? 7 A It was about the fuel tank. It was about 8 the fuel tank. 9 Q What was I supposed -- if I didn't ask 10 what about -- 11 A The fuel tank was not supposed to be 12 found. Okay. It wasn't supposed to turn back up. 13 Q Did Mark ever tell you, Don't worry. The 14 tank will never be found? 15 A He could have. I don't remember if that 16 was said or not. 17 Q Do you remember him saying something like 18 that? 19 A Hmmm... 20 Q You have to answer audibly. 21 A No, no. I am sorry. I don't remember 22 anything like that. He could have. But like I said, I 23 don't remember. 24 Q Because you wouldn't remember if somebody 25 said, Don't worry. That will never be found. Happens a 1096 1 lot in the constructions industry or what? 2 A Lots of stuff happens in the truck 3 industry. Trucks flipping over, cats flipping over. 4 Q Stuff gets buried? 5 A Yeah. 6 Q Oh, we were looking for your check. 7 A Yeah. I didn't remember if Mark paid me 8 or Bob Womack paid me. But I think it was Bob. 9 Q With a check? 10 A Yes. 11 Q Sunday when you were done? 12 A Yes. 13 Q Okay. And he was paying you by the hour? 14 A Uh-huh. 15 Q And did the check bounce? 16 A No, no, no. No. It never bounced. 17 Q Okay. You have done work for Womack 18 previously? 19 A No, never. 20 Q I have two checks, one dated -- I am going 21 to have them marked as exhibits. 22 A Okay. 23 Q So okay, so besides those two 24 conversations, the one the day that Investigator Hall 25 came out and the one after you heard you were going to 1097 1 get a subpoena, did any person speak with you about not 2 telling the truth to the D.A. or the Grand Jury at any 3 other time? 4 A No. It's just -- like I said, it was a 5 phone call that said, Please don't volunteer any extra 6 information. That I just told you about. 7 Q When did that happen? 8 A After you guys started looking for me. 9 Q Down in San Jose? 10 A Down in San Jose. 11 Q So there is a long distance phone call 12 from Mark Sherrill to you? 13 A Probably. 14 Q Phone search warrants might help us. 15 Would that be your thought on that? 16 A Mmmm... I just told you what happened. 17 Q Has Mark told you he cut a deal? 18 A Yeah. 19 Q So you feel more comfortable the only 20 person you are getting in trouble is Womack now? 21 A No. That has nothing to do with anything. 22 Q You would have told us the truth had Mark 23 not cut a deal? 24 A If you would have asked that question, I 25 would have told you the truth. 1098 1 Q If I hadn't asked that question? 2 A I wouldn't have volunteered the 3 information. 4 Q Thank you for being honest. 5 A Okay. 6 Q This has been marked Grand Jury Exhibit 7 66. 8 Does this appear to be the check Mr. 9 Womack made out to you? 10 A Sure does. Lot more than I remember. 11 Q And No. 67 is going to be a bigger 12 surprise. This has been marked Grand Jury Exhibit 67. 13 Do you recognize those two checks? 14 A Yeah, this is the one I remember. 15 Q Okay. That was a month later. That's 16 6/8/98. What were you doing on the gas station a month 17 after -- 18 A I don't know. I don't know what that is. 19 Like I said, I don't remember this one. I remember this 20 one. 21 Q The first weekend you worked all day 22 Saturday, correct? 23 A Yeah. 24 Q And part of the day on Sunday? 25 A Uh-huh. 1099 1 Q If you remember. I am not telling you. 2 A No. We did. We worked partial Sunday. 3 There is a month difference in these two checks. This 4 was a Saturday and Sunday deal. It wasn't one day one 5 month and one day the next month. 6 Q Did he decide someday down the road he 7 hadn't given you enough money, so he said, Nick, here is 8 some more money? 9 A No. He would never do anything like that. 10 Q Why do you say that? 11 A I know Bob. You don't get that much money 12 by being easy with it. 13 Q So Bob left both checks. It says 14 "Station" bottom left? 15 A It sure does. 16 Q But you don't remember what you did? 17 A Are you sure the -- this wasn't wrongly 18 dated or anything? 19 Q I am not sure. You are the one 20 testifying, but -- 21 A There's a month difference here. 22 Q I could give you a hint. If the tank pull 23 was on 5/2/98 and you did the clean-up on 5/3/98 -- 24 A This is the check I got Sunday. This is 25 my Sunday's work check. This had to have been 1100 1 Saturday's. 2 Q Okay. 3 A Okay. That had to have been Saturday's. 4 It was just misdated. 5 Q Fifteen hours, fifteen bucks an hour or 6 something like that? 7 A That sounds about right. 8 Q Okay. So who wrote those checks? 9 A I imagine Bob did. 10 Q And what's the business name at the top of 11 those checks? 12 A KRL Partnership. 13 Q Okay. So we are trying to race 14 through. 15 What question would you ask if you were -- 16 A I don't understand the month difference in 17 the two checks. 18 Q We won't worry about the checks right 19 now. 20 What question would you ask next if you 21 were the prosecutor? 22 A Why did he pay me instead of Mark? 23 Q Okay. Why did he pay you instead of Mark? 24 A I don't know. That was the deal Mark and 25 Bob worked out, I guess. 1101 1 Q So you are working hourly for Womack? 2 A I guess so. According to these checks. 3 Q Did you have any Workmen's Comp. 4 insurance? 5 A No. 6 Q Did you talk about it with Mark later? 7 A No. 8 Q Do you think that you were supposed to 9 have Workmen's Comp. insurance? 10 A I am -- I would think so, yeah. 11 Q Walk us through your underground storage 12 tank training, all the way through today's date in your 13 life. 14 A From the storage -- pulling the tank out 15 to today? 16 Q Every single minute of training you have 17 had removing underground storage tanks in your life. 18 A All right. I have never done one on a 19 weekend. I have never pulled a tank out of the ground 20 without a State or County official being present. 21 Q Did that come up that day? 22 A No. 23 Q Not in front of you? 24 A No, not in front of me. 25 Q You didn't hear Billy Wolin lecturing Bob 1102 1 Womack? 2 A No. I never heard of anything of that. I 3 was in the truck. 4 But that did seem a little off. 5 Q You didn't bring it up to Mark? 6 A Mmmm... Yeah, later on that day, I think 7 I did. I mentioned something. It was something to the 8 effect that, I guess, with that much money, you could 9 pretty much get away with whatever. 10 Q Let's walk through this again. I like 11 that you asked me -- you told me what the question was to 12 ask. 13 Okay. So later that day, the tank came 14 out. 15 A Yeah. 16 Q Before the tank got on the trailer and 17 left, Mark Sherrill said to you, "I guess" what? 18 A No. Wait. Wait a minute. You are 19 reading something else in here. Start again. 20 Q You get away with a lot if you have money? 21 Something along those lines? 22 A That was earlier on in the day. That 23 wasn't when the trailer was -- the tank was being loaded 24 that that happened, like you are trying to make it 25 sound. No. 1103 1 I mean, I had mentioned to Mark earlier on 2 in the day that there was no inspectors, there was no 3 County officials, no State officials or nobody around. 4 And I just assumed that, if you had that kind of money, 5 things like that can just be brushed aside. This was a 6 conversation between Mark and I. 7 Q So did Mark say the money part or did you 8 say the money part? 9 A It could have been me. It could have been 10 Mark. I don't remember exactly. That was the 11 conversation we had earlier in the day; not during the 12 loading of the tank. 13 Q Did Mark say: No. No. He has permits. 14 A No. As far as I knew, they had all the 15 required permits. 16 Q Or you wouldn't have worked that day? 17 A I don't know. I probably would. That's 18 as honest as I can be. 19 Q Grand Jury Exhibit 23. That's the vacant 20 lot? 21 A Yes, it is. 22 Can I see that check? 23 Q He wants to know how much Bill was paid. 24 A Okay. That fits. 25 That's the truck. That's the Marmon got 1104 1 there. 2 Q Grand Jury 19. The Marmon? 3 That's called the Marmon? 4 A Yeah. 5 Q Is that the maker? 6 A Yeah, that's the maker of the truck. 7 Q Okay. And that's Grand Jury Exhibit 19. 8 And the people in that picture? 9 A See. That would be Mark Sherrill, Bob 10 Womack, Billy Wolin and Bob's black Lincoln. 11 Q Grand Jury 27. Was this posted on site 12 that day, if you recall? 13 A I don't remember. 14 Q Anywhere on there you see that it was 15 underground storage tanks can be removed? 16 A Not from where I am sitting, no. 17 Q Did you ever see this reward sign posted 18 in Grand Jury Exhibit 6? 19 A No. But I heard about it. 20 Q What did you hear about it? 21 A That Bob was offering $1,000 for finding 22 his truck. 23 Q So -- 24 A It made me laugh. 25 Q Why? 1105 1 A Because Bob knew where the tank was. 2 What? 3 Q They just heard a lot of testimony. 4 A Okay. 5 Q Grand Jury Exhibit No. 8. 6 Did you ever hear about Bob taping City 7 employees? 8 A No. 9 Q Does that surprise you he would? 10 A No. 11 Q Little secret in his pocket? 12 A Doesn't surprise me. 13 Q Okay. So when the underground storage 14 tank was being removed and you are down in the hole with 15 shovels, have you seen the video? 16 A No. I would like to, though. How do I 17 look on film? 18 Q Except for the cigarettes? 19 A I had three of 'em. Okay. 20 MR. IREY: Mr. Foreman, I think we are not going 21 to finish in five minutes. 22 THE FOREPERSON: Since he is already away from 23 his job in San Jose, I was thinking we could take our 24 break and... 25 MR. IREY: You could watch the video. You can 1106 1 come to the District Attorney's office and Mr. Hall will 2 be happy to show you the video. Okay? 3 THE WITNESS: Sure. Maybe I will remember some 4 more, too, huh? 5 GRAND JUROR: (Redacted.) What are we doing? 6 Are we letting him go? 7 THE FOREPERSON: We are trying to establish that 8 now. 9 MR. IREY: We are going to take our lunch break. 10 Mr. Hernandez is coming back after lunch. That's my 11 understanding. 12 THE FOREPERSON: We will do that. 13 THE WITNESS: How long you take for lunch? I got 14 time to go to Ione and pick up some oil and stuff? Some 15 stuff I got to do for my job, oil and other things I have 16 to take down to the job site. Do I have an hour? 17 GRAND JUROR: Yeah, you have an hour. 18 THE FOREPERSON: It's up to us. We set the 19 time. 20 MR. IREY: It might help your testimony go more 21 quickly if you come watch the video at the DA's Office 22 and, after you are done testifying, you will be able to 23 pick it up before you go to work tomorrow. 24 THE WITNESS: I am leaving today. 25 THE FOREPERSON: Okay. 1107 1 GRAND JUROR: (Redacted.) 2 Would it be maybe better for us to get his 3 expressions by watching the video in front of us instead 4 of watching it -- 5 MR. IREY: We can do both. 6 GRAND JUROR: Just a question. 7 MR. IREY: But next time, wait until he leaves. 8 GRAND JUROR: I'm sorry. 9 MR. IREY: It's no big deal. 10 GRAND JUROR: Okay. 11 THE FOREPERSON: At this time -- at this time -- 12 MR. IREY: Sorry, Mr. Foreman. 13 THE FOREPERSON: It's all right. Don't let it 14 happen again. 15 Okay. I am going to read you an 16 admonishment during for your break here. Okay? 17 THE WITNESS: I won't talk to anyone on my break, 18 whatever. 19 THE FOREPERSON: You are admonished not to reveal 20 to any person except as directed by the Court what 21 questions were asked or what responses were given or any 22 other matters concerning the nature or subject of the 23 Grand Jury's investigation that you learned during your 24 appearance before the Grand Jury. 25 This admonition continues unless and until 1108 1 such time as a transcript this Grand Jury proceeding is 2 made public. Violation of this admonition is punishable 3 as contempt of court. 4 This does not prevent you from discussing 5 the matter with your attorney if you have an attorney 6 advising you with respect to your appearance before the 7 Grand Jury. 8 So if I could get you to date and sign 9 that I read you this admonition, and then we will have 10 you initial it when we finish with your... 11 THE WITNESS: And today is the 16th? 12 THE FOREPERSON: 17th. 13 THE WITNESS: 17th. 14 MR. IREY: 1:30, 1:40 or 1:45? 15 THE FOREPERSON: One hour. 55 minutes? 16 GRAND JUROR: I think 45 minutes. 17 MR. IREY: Mr. Hernandez, while they dicker, you 18 shouldn't be here. 19 (Whereupon, page 1109 was reported and transcribed, but is under separate 20 confidential cover.) 21 ---oOo--- 22 23 24 25 1110 1 THE FOREPERSON: The Grand Jurors are admonished 2 they are not to form or express any opinions about this 3 case or discuss it among themselves until the Grand Jury 4 receives the case for deliberation. In addition, no 5 inspection of evidence should be conducted without the 6 permission of the Foreperson and on the advice of the 7 prosecuting attorney. 8 A violation of this rule could result in a 9 charge of contempt against the Grand Juror who would 10 investigate or view any matters in regard to this case 11 without the entire body of the Grand Jury. 12 We stand in recess until 1:40. Thank 13 you. 14 (Recess taken from 12:50 to 1:40 p.m.) 15 16 (Whereupon, pages 1111 - 1112 were reported and transcribed, but are under 17 separate confidential cover.) 18 ---oOo--- 19 20 21 22 23 24 25 1113 1 (Whereupon, the following proceedings were held in the presence of the Deputy 2 District Attorney:) 3 THE FOREPERSON: That's fine, David. Come on 4 in. That will -- we will do that at the end. 5 MR. IREY: Thank you. Next time I see 6 Investigator Hall, I will pass this on. 7 Mr. Hernandez, back in. Same seat. 8 THE FOREPERSON: Welcome back, Mr. Hernandez. I 9 will remind you, you are still under oath. 10 Q BY MR. IREY: This is the point we usually 11 ask the Grand Jury -- it's my first question to you: Did 12 you go call Bob Womack or Mark Sherrill on your break? 13 A No, I did not. 14 Q You were at the District Attorney's 15 Office, correct? 16 A Yes, I was. 17 Q You went and you looked at the video? 18 A Yes, I did. 19 Q Okay. They like narrative answers instead 20 of short answers. Do you think you could answer in 21 narratives for us, please. Yes? No? 22 A I will do the best I can. How is that? 23 Q As long as it's the truth. 24 A Okay. 25 Q You have had 40-hour training; is that 1114 1 correct? 2 A Yes. 3 Q In fact, you are currently working on a 4 clean-up? 5 A Yes. 6 Q And where is that? 7 A Down in San Jose. Actually, it's new 8 Almaden outside of San Jose. We are cleaning up two 9 mercury mines. 10 Q As part of that training, do you take any 11 safety precautions? 12 A Yes. 13 Q And could you briefly describe those 14 safety precautions at that particular job? 15 A At this particular site, depending on 16 where you are working at, you can be fully suited, fresh 17 air, respirators. That's basically it there. 18 Q And your truck? 19 A In my particular truck, all I need is a 20 respirator when I am in certain areas. Rest of the 21 time -- have the windows up. Rest of the time, I can 22 leave the windows down and dance on the hood if I like. 23 Q And you have pulled underground storage 24 tanks in your day? 25 A Yes, I have. 1115 1 Q And are there usually -- are there usually 2 precautions taken? 3 A Absolutely. 4 Q And could you give us a short list of some 5 of those precautions? 6 A Number one, pulling fuel pumps, you would 7 pump full of water, suck the water out. Depending on 8 size of tank, depends on how much dry ice you would put 9 inside the tank, which forces ail the fumes, whatever is 10 in the tank, out. 11 Q Did you do that on that day? 12 A No, we did not. 13 Q You are sure? 14 A Absolutely 100 percent. We did not. 15 Q Did you discuss any of those issues before 16 he pulled the tank out of the ground? 17 A Yes. 18 Q Who did you discuss those issues with? 19 A With my boss at the time Mark Sherrill. 20 Q And what did Mark say? 21 A Don't feel good about it, stay back. So I 22 stood back a lot. 23 Q I can't testify, but it appeared from the 24 videotape that you weren't always right next to the tank? 25 A Not at all, no. 1116 1 Q What were your reasons for that? 2 A Well, explosions or whatever. 3 Q Okay. So besides the two conversations 4 you had with Mark Sherrill about what you were supposed 5 to testify to, if asked, do you remember having a 6 conversation with Bob Womack? 7 A Not about the tanks, no. 8 Q What did you chat with Bob Womack about? 9 A How June was, how everybody is doing. 10 Stuff like that. Like I said, we knew him from the 11 restaurant. 12 Q Prior to leaving or sometime during the 13 day, did you hear from Mark and/or Bob Womack where the 14 tank was going to go? 15 A Yeah, yeah. It came up during the day, 16 during a little slack time there, that it was going to go 17 up on the property at 88. 18 Q Sherrill-owned property? 19 A Yes. Mark Sherrill's property on Highway 20 88. 21 Q Not the Bossi Ranch? 22 A I don't know anything about that. Don't 23 know where it is at. 24 Q You heard Bob or Mark say that's where the 25 tank was going to do go? 1117 1 A Try to remember here. All three of us 2 were in the conversation. 3 Q So you guys had to plan on getting a 4 trailer there in order to -- 5 A We had the trailer already. Mark owns the 6 trailer. 7 Q No. But I mean, did you have to leave the 8 site to go get the truck and trailer to be available to 9 load the tank onto it? 10 A Yeah, I am sure somebody had to go get the 11 trailer, yes, from the yard and bring it down to the job 12 site. 13 Q So on Saturday morning, that trailer was 14 at Sherrill's -- 15 A Shop. 16 Q -- shop? 17 A Right. 18 Q Do you remember if you went and got that 19 truck and trailer? 20 A I didn't go get the trailer, so it must 21 have been Mark. 22 Q And then right before you left, do you 23 remember overhearing where the tanks were going that day? 24 Left the site for the day. 25 A Right before I left the site for the day? 1118 1 You mean, after I loaded it up? 2 Q Yes. 3 A See you at the property or something along 4 those lines, is what was said. 5 Q You weren't going to the property? 6 A No. I was going home. 7 Q You don't know whether it was Bob -- Mark 8 or Bob who drove the truck? 9 A No, I didn't see who drove the truck. 10 Q You never asked after? 11 A No. It wasn't my business. 12 Q Okay. Then on Sunday, you went back to 13 kind of do the rest of the clean-up? 14 A Yes, sir. 15 Q Water truck, that kind of stuff? 16 A Suck out all the water down at the hole. 17 Dispose of the water at the landfill. Clean up the 18 streets and sidewalks. Put up a fence around the hole. 19 Basically, it was an early day. 20 Q You did that before you did the vac truck, 21 wash down the dirt? 22 A No. The fence was the very last thing to 23 go up. 24 Q You are sure you did that on a Sunday? 25 A Yeah. Positive. 1119 1 Q Okay. You are sure before you washed the 2 street down of the dirt that you actually took a full 3 load of the vac truck to the dump? 4 A I think I made two trips with the water 5 truck, I think. That's approximately 8,000 gallons. 6 Q Okay. 7 A But you got to remember it was raining, 8 too, on Saturday. So it filled the hole right up again, 9 if that's... 10 Q Okay. So you remember taking water to the 11 dump on Saturday? 12 A Yes. 13 Q Or Sunday? 14 A Sunday. 15 Q This is before testing of the water? 16 A No. We had a guy that came out and tested 17 it. A guy from Sacramento, I believe. I saw a check 18 for -- hand him a check, 1,500, for testing that water in 19 the hole. 20 Q You saw Bob? 21 A Saw Bob hand this man a check for 1,500. 22 Q So who was in charge of the operation? 23 A As far as what? My superior? 24 Q As far as you knew that day. 25 A Mark Sherrill was my boss. That's all I 1120 1 was concerned with. 2 Q Who was in charge of the entire 3 operation? 4 A That would be Bob Womack. 5 Q You didn't know whether Mark Sherrill or 6 Bob Womack would be paying you at the end of the job? 7 A Right. I assumed it would be Mark 8 Sherrill. 9 Q Did Mark call you up -- 10 A No. It was a complete surprise when he 11 handed me a check, when Bob Womack handed me a check. 12 Q Before you started working there, did Mark 13 say, I need to you work Saturday? Or how did it go? 14 A Yeah, that's what happened. 15 Q And he said: 6:00. We will meet at 16 Mel's? 17 A Mel's. Have breakfast. 18 Q Tell us the Mel's story. Have you read 19 some of the stuff in the newspapers? 20 A No, not really. I have heard some of it. 21 Like I said, I have been working in San Jose for a while. 22 Q Tell us what kind of conversations 23 happened at Mel's. 24 A Well, myself, Billy -- there was a couple 25 other guys at our table. Then Bob Womack, June and a 1121 1 couple of their friends were at a another table, you 2 know, separate table. 3 Q But the big table, right? 4 A We were -- yeah. As soon as you walk in, 5 the first big table there is where we were sitting. Then 6 Bob and June were sitting at another table. 7 Q Okay. And Bob come up to you and asked 8 you if you wanted a gas tank? 9 A No. 10 Q Did you hear Bob ask anybody if they 11 wanted a gas tank? 12 A No, I never heard him ask anybody if they 13 wanted a gas tank. 14 Q At all that morning? 15 A No. But as I said, they were sitting at 16 another table. 17 Q Did you see him get up, walk around table 18 to table to table, asking -- 19 A No. We just had breakfast, went to work. 20 Q Bob pay for breakfast? 21 A Yes, he did. One of the fringes of 22 working on weekends. 23 Q So then you went to work. You hauled 24 stuff to the dump. You may have hauled stuff -- 25 A I really don't remember taking anything to 1122 1 the property. Now, that end dump could have taken stuff 2 to the property. Mark was driving the end dump. 3 Q That's the gold truck? 4 A The Marlin, yes. All my stuff -- I am 5 sure you have all the tags from the dumps. All my loads 6 went to the dump. 7 Q They all stopped in the morning. So did 8 the payment stop in the morning. 9 Hypothetically, there is a possibility 10 that a later witness will testify that he was on site. 11 He told Womack, It's 30 bucks a ton to take it to the 12 dump. Why don't you haul to it -- 13 A That could be. 14 Q You don't know? You weren't part of the 15 conversation? 16 A No. 17 Q You don't remember switching at noontime 18 and starting to take stuff to Mark's or the old mill? 19 A No. 20 Q If Mark testifies later the stuff went to 21 Mark's or the old mill, you don't -- 22 A That could be. He could have taken the 23 stuff to the property. That's his call. I didn't take 24 anything to the property, not to my recollection. 25 Q Have you taken stuff to his property? 1123 1 A Absolutely, yeah. Lots of fill. 2 Q Lots of fill? 3 A Lots of fill. 4 Q Have you ever seen that permit? 5 A No. 6 Q Has he ever told you that he needed a 7 permit? 8 A No. 9 Q Has he ever mentioned that maybe his wife 10 is the Planning Commissioner or something and he doesn't 11 need permits? 12 A No, never nothing to that effect. 13 Q As a heavy equipment operator, as a 14 trucker, have you any information related to that, for 15 landfills, you need permits? 16 A Anything we have worked on, yeah. But as 17 far as Mark Sherrill's piece of property, I don't know 18 what he needs in the City of Jackson. I have no idea 19 what he needs. 20 Q Okay. You said during that day that 21 Womack was explaining that he had obtained all required 22 permits necessary for the removal of the underground 23 storage tanks. 24 When he said that, what did you think 25 about that? 1124 1 A I have never seen a tank removed on a 2 weekend. 3 Q Okay. 4 A I -- it struck me as being odd. It struck 5 me as not quite true. No inspectors, working on the 6 weekend. It didn't seem right. 7 Q At the time, were you aware that the City 8 of Jackson could not issue appropriate permits? 9 A No, I was not aware of that. But I would 10 assume it would have to be State or County. 11 Q You have worked on how many underground 12 storage tank pulls? 13 A I have probably pulled about a hundred or 14 so. 15 Q Always during the week? 16 A Always during the week, Monday through 17 Friday. 18 Q Always with inspectors? 19 A Always with inspectors. 20 Q Always with sampling? 21 A Always with sampling. 22 Q Was there any sampling done that day? 23 A The sampling was done Sunday morning by 24 this individual out of Sacramento. I couldn't tell you 25 his name or -- 1125 1 Q On Saturday when the tank came out of the 2 ground -- 3 A It was done on Saturday, yes. No. It 4 might have been done on Sunday when he was checking 5 water. 6 Q If you can't remember, you can't 7 remember. 8 A Yeah. 9 Q The day the tank came out and loaded on 10 the trailer? 11 A I don't think there was sampling done that 12 day. I think it was done the following day. 13 Q Did you smell contaminated soil? 14 A No. It didn't seem in excess of anything. 15 There was no oil slick on the water. There was nothing 16 that looked bad. 17 Q Okay. Besides -- 18 A If there would have been a spill of any 19 kind, I would not have showed up. I would have not have 20 been there the following day. I would not have been 21 there. 22 Q Besides Womack and Mark Sherrill, has 23 anybody talked to you about your testimony here today? 24 A No. 25 Q You said you haven't spoken to Mark 1126 1 Sherrill in two or three weeks? 2 A Yeah. About the time you started looking 3 for me, last time I talked to him. 4 Q He called you up on the phone? 5 A He left a message on my phone, yes. 6 Q On your voice mail? 7 A Yeah. 8 Q Here? 9 A No. On my cell phone. 10 Q Okay. Did you call him back? 11 A Yeah. 12 Q And you chatted for a while? 13 A Mm-hmm, we sure did. Yes. 14 Q So would it be a long distance cell phone 15 from you back to Mark? 16 A Or Mark to me or whatever, yeah. 17 Q Okay. And so when you first heard the 18 story that the underground storage tank was given away on 19 a rainy Saturday night and you knew better, you didn't 20 call anybody or tell any of your buddies that that's a 21 lie; you just smirked? Or how did it go? 22 A No. It's none of my business. Like I 23 said, we own a local business. And just try to stay out 24 of other people's business. 25 Q So was Bob Womack lying to the District 1127 1 Attorney's Office when he told them that he didn't know 2 where the tank went on Sunday? 3 A You knew he was lying to you. Of course 4 he was, yes. 5 MR. IREY: I have no further questions of Mr. 6 Hernandez at this time. Any Member of the -- 7 THE WITNESS: Oh, no. 8 MR. IREY: This is just the introduction. Once 9 their ink gets warmed up. 10 THE WITNESS: You know I didn't get my oil and 11 stuff. You know that. 12 Q BY MR. IREY: Before I ask any of these 13 questions, although, I wanted to try to refresh your 14 recollection from the Environmental Health referral. 15 Basically, as a chronology, about May 4th, 16 Womack comes to the counter. May 5th, they have a couple 17 meetings with the Board of Supervisors. May 6th, which 18 would be Wednesday, the laboratory comes out to the site 19 to sample for gasoline in the water. Late on May 4th. I 20 apologize. 21 May 5th, 4:15. "I supervised the sampling 22 of the water in the tank cavity at approximately 4:15 by 23 a representative of Sparger Labs. Womack was present." 24 Then the next day, at 10:30 a.m.: 25 "Received fax copy of preliminary laboratory data from 1128 1 Sparger Labs." Which would be Wednesday morning. 2 This may or may not help refresh your 3 recollection on whether or not the water was pumped out 4 of the hole on Wednesday, as opposed to Sunday. But you 5 if you are positive it was Sunday? We have no 6 information in our files. This is first time the Grand 7 Jury heard today -- 8 A Well, the best I can remember, we did it 9 all on Sunday. 10 Q That's as you remember? 11 A Yeah. 12 Q Is it possible that you could have worked 13 Saturday, ten hours, Sunday -- 14 A It's possible. I mean, during the summer 15 months -- I don't know if you know anything about 16 seasonal work. We work all we can work. If I can get 20 17 hours a day, seven days a week for five months, I will 18 take it. 19 Q I will finish my question. 20 If it's possible on Sunday, you worked ten 21 hours, Saturday four or five hours, and then on 22 Wednesday -- 23 A Like I said, it's possible. That's what I 24 was trying to say. Days run together after a while. 25 That's all I was saying. That's all I was trying to 1129 1 say. It's possible. I might have been mistaken. But I 2 think it was done on Sunday. 3 Q That might explain the second check if you 4 worked a different -- 5 A That could be. I don't remember. I 6 remember the little check. I don't remember the other 7 check. 8 Q Is it your belief that John Henney was at 9 505 on Saturday, as well as Sunday, when he brought in 10 the rock? 11 A I -- I didn't work on that job when they 12 got the rock. 13 Q Okay. I will ask the second question. 14 Is it your belief that John Henney was on 15 site Saturday or Sunday, regardless of the question about 16 bringing in rock? 17 A No. You know, I don't think he was there 18 Saturday and Sunday. 19 John being the other Sherrill driver. Is 20 that who Henney is? 21 Q Correct. 22 A I never even knew his last name. Matter 23 of fact, I called him Rat Boy. I didn't like the guy. 24 But that's true. I don't think he was 25 there Saturday and Sunday. Like I said, he could have 1130 1 stopped in when I was at the dump or something. I don't 2 know. 3 Q You don't remember seeing him? 4 A Right. I don't remember seeing him at 5 all. 6 Q Who all heard the conversation of the tank 7 going to Sherrill's property? 8 A Nobody else. No one else. It would be 9 Mark, myself and Bob. 10 Q So Billy is there working? 11 A Unless Billy got in another conversation, 12 I don't know. 13 Q But that conversation you remember was the 14 three of you? 15 A Was the three of us, yes. 16 Q Then Mark didn't say, Nick, go get the 17 truck and trailer? 18 A Nope. I was already with a loaded truck 19 right there. I had something else to do. He probably 20 drove his pickup up, picked up the truck and trailer and 21 brought it back. That would be my guess. 22 Q He had loaded the -- wasn't it a 23 compressor, hydraulic lift? You remember the hydraulic 24 lift getting loaded? 25 A That was put on the trailer behind the 1131 1 pickup. The big scraper bucket. This one that was 2 scraping alongside the tank, that was brought over from 3 the mill. 4 Q And then that truck and trailer left? 5 A Yeah. 6 Q Do you remember Mark coming back with this 7 truck and trailer or not? 8 A Yeah. I saw the truck and trailer there. 9 But I wasn't there when he went and got it and brought it 10 back or whatever. Now I remember seeing the truck and 11 trailer there. 12 Q Who was working at Amador landfill on 13 Sunday, if you know? 14 A He is a retired -- Bob Grunagan was there 15 for sure. I talked to Bob. He is the owner. And then 16 the guy that works in the office, at the scales there, 17 he is a retired prison guard. And I know him, but I 18 don't know his name. 19 Q Emmett? 20 A Emmett? No. 21 GRAND JUROR: Rettagliata? 22 THE WITNESS: I don't think so. 23 Doesn't Emmett work here or used to work 24 here? Was a jailer? That's what I am thinking. This 25 guy worked out at the prison, I think. 1132 1 Q BY MR. IREY: So that was during the week? 2 A Weekend. 3 Q Okay. Just trying to help refresh your 4 recollection. 5 Can you give us an estimate of the cubic 6 yards of untested soil removed from 505 Sutter Street on 7 May 2nd and May 3rd? 8 A Oh, let's see. I would probably have to 9 say, mmmm, hmmm... Maybe 120 yards. 10 Q Including the demo debris? 11 A Yeah, that's including the demo debris. 12 Q If you ratchet out the demo debris -- 13 A Okay. How about 40 yards, is my guess. 14 Q On Sunday, there wasn't -- 15 A No removal of the material other than the 16 water. 17 Q Okay. 18 A As far as I remember. 19 Q Was Luke Womack there when the tanks were 20 pulled and loaded? 21 A Is Luke Womack the guy in the picture? 22 The guy in the video? 23 Q I can't keep answering your questions. 24 A If it's the same guy in the picture, he 25 was there. 1133 1 Q There were two Womacks there? 2 A Yes. Bob and one of his kids. 3 Q Were both Womacks still there when the 4 tank came out of the ground? 5 A I do believe so, yes. If that's the same 6 guy in your picture and in your videotape, I do believe 7 they were both there. 8 Q Was Bill Wolin Senior on the site at 505 9 Sutter for the demo of the station? 10 A He stopped by -- I don't remember when. I 11 think it was early in the morning. He had -- he had done 12 a little video himself, and it was during the 13 demolition. That's when Mr. Wolin was there. 14 Q Was he there when the tank was removed? 15 A I don't remember if he was there or not. 16 Q Do you know if June Womack videoed the 17 tank being loaded onto the trailer? 18 A She could have. Somebody was always 19 running the camera. Either Bob or June was always 20 running the camera. 21 At the time the tanks were coming out, Bob 22 was helping us. So June might have been videotaping 23 that. That's possible. 24 Q You don't have specific recollection? 25 A No. It was raining, like I said, really 1134 1 hard. And there is this big huge round tank could fall 2 on anybody any minute. You are kind of concerned with 3 what you are doing. That's all. 4 Q Do you still work for Mark Sherrill? 5 A Absolutely not. 6 Q Do you think Mark Sherrill cuts corners 7 here and there? 8 A Yes. I think he does what he has to do to 9 stay in business, yes. 10 Q Okay. Just prior to beginning your 11 testimony again, you were explaining to Investigator Hall 12 and I that there is a big difference between your current 13 boss and the way Sherrill Trucking was run. Is that 14 correct? 15 A That's correct. 16 Q What types of things does your current 17 boss do for you as an employee that you weren't used to 18 working for Mark Sherrill? 19 A Well, my boss, the guy I work for now, 20 hunts me down on payday. 21 Q Not just about pay. About working 22 conditions. 23 A As far as safety and the truck safety and 24 the equipment, everything was -- is all taken care of 25 now. Everything. This guy I work for, Mike Gautier, 1135 1 takes excellent condition of his trucks. Richard Vocco, 2 a partner of his, is very meticulous taking care of their 3 trucks and people. 4 Q Have you done anything illegal for Mark 5 Sherrill or Bob Womack in the past? 6 A No. 7 Q Did you know that pulling the underground 8 storage tank was illegal? 9 A I felt that it was not right, yes. I did 10 feel that it was wrong. 11 Q Was Luke Womack present when -- they are 12 all on the same page. Was Luke Womack present when the 13 tank came out of the ground? 14 A That's -- like I said, if he was there, 15 it's the same guy in the picture, you know, same guy in 16 the video, he was there, I think. 17 Q Do you remember anybody leaving right as 18 the tank was coming out of ground saying, I worked long 19 enough today? 20 A When the tank got in the air, all the eyes 21 were on the tank. Everybody's eyes are on the tank until 22 you board it up, chain it up, bind it. All the eyes are 23 on the tank. I am not looking at you or anybody next to 24 me. I am just watching that tank. 25 Q If you know, did he know or hear where the 1136 1 tank was going after it was removed? 2 A Is that "he" being Luke? 3 Q Yes. 4 A I have no idea. 5 Q So you weren't present? 6 A I would assume he would know. Bob being 7 his father. 8 Q But you weren't present -- 9 A No. 10 Q -- when Bob said, Luke, I will meet you 11 for dinner in half an hour. I am going to take this tank 12 to Mark's. 13 A No. 14 Q Did Womack pay Mark Sherrill for the use 15 of his trucks or the storage of waste on his property? 16 A There we go again. I don't know what 17 arrangements they have. I didn't know Bob Womack was 18 going to pay me. I assumed I would be getting paid from 19 Mark. 20 Q How long did you work for Sherrill? 21 A Approximately a year. 22 Q And why do you no longer work for Mark 23 Sherrill? 24 A Simple finances. 25 Q You get paid more where you work? 1137 1 A I get paid more and I get paid on time. 2 Q Who is John that you referred to earlier 3 before lunch? 4 A John is -- you guys call him Linley or 5 Hinley or Hensley. 6 Q You call him? 7 A I call him Rat Boy. 8 Q I am trying to phrase this as a 9 question. 10 If you were a Member of the Grand Jury, 11 would you appreciate witnesses such as yourself being up 12 front and honest with Members of the Grand Jury? 13 A Oh, absolutely. 14 Q If you can recall, who was working at the 15 landfill? Did I already do this? I apologize. 16 A That's another question. Same one twice. 17 Q I am not going to ask that one again. 18 Which truck were you driving on Saturday 19 and Sunday? 20 A I was driving the Kenworth ten-wheeler. 21 And then I drove two different water trucks on Sunday. 22 Q Which truck were you driving on Saturday 23 and Sunday if -- I am going to try to rephrase this. 24 Has your testimony today helped refresh 25 your recollection whether or not you were driving the red 1138 1 truck or the gold truck and whether you hauled soil and 2 debris to either Mark Sherrill's or Georgia Pacific? 3 A Okay. I did not drive the gold end-up. 4 Mark drove the end-up. 5 I drove the red ten-wheeler KW, Kenworth. 6 As far as taking to his property, I still do not remember 7 taking any debris to his property from this job. But 8 from several other jobs, yes, if that helps. 9 Q At any time did Robert Womack, Roland 10 Womack, Mark Sherrill or David Mason III, including any 11 employees from Wolin and Sons, bribe you in any way by 12 offering you money not to tell the truth? 13 A Oh, no. I am unbribable. 14 Q So no contact that way? 15 A No. None whatsoever. 16 Q Mark just, in your opinion, hoped, as a 17 friend, that you wouldn't? 18 A We are not even friends, you know. He was 19 an employer. I was an employee. Never anything else. 20 Q He was just banking on your good will? 21 A I guess, yeah. 22 Q At any time, did you smell any gas fumes? 23 If so -- 24 A None. 25 Q -- why did you continue to keep working? 1139 1 A Ever. I wouldn't have been there, had 2 there been. Like I said, I -- I felt pretty good about 3 it or I'd have left. 4 Q We have seen a videotape of the tank 5 coming out of the ground. Several witnesses have told us 6 that it was pouring rain. Was it really? 7 A It was storming. Just storming. 8 Q So when in the two minutes between the 9 when the tape ends -- they are going to laugh because I 10 fail at this every time. 11 THE FOREPERSON: Use the remote control. 12 GRAND JUROR: You want me to get Ron? 13 THE FOREPERSON: Here it comes. 14 Q BY MR. IREY: You just saw this video an 15 hour ago for the first time? 16 A Yes. 17 Q You can kneel down over here, kind of the 18 easiest way. I will point to people as they show up in 19 the video. 20 Do they usually use five and a half, 21 six-foot wide bucket to pull underground storage tanks? 22 A No. 23 Q You usually try not to create too much 24 soil debris? 25 A Normally, uses a lot smaller bucket. 1140 1 There's one in the background you will see that's 2 normally the size they will use. 3 Q Do you remember if this is right where 4 June Womack stopped videotaping? 5 A Like I said, as far as the videotaping, I 6 don't know who was videotaping. I know Bob and June were 7 both taking turns with the camera. I don't know -- I 8 imagine this one was June because Bob was down with us 9 helping take off the pipes and stuff. I don't know if 10 she stopped. 11 I think -- I think they videotaped the 12 whole thing. Oh, it stops right there. Yeah. I am sure 13 there was more videotape. I am sure there was more 14 tape. 15 Q I am sure there was more videotape, you 16 said? 17 A It would be my guess. How is that? It 18 would be my guess that there is more tape. 19 Q Did Mark Sherrill at any time tell you he 20 taped over the -- 21 A No. Not at all. It wasn't even Mark's 22 recorder. It was June and Bob Womack's recorder. 23 Q So right at that point where the video 24 stops, it starts just pouring rain? 25 A Well, it actually started -- as soon as we 1141 1 got the tank up, is when it started pouring. It couldn't 2 have picked a worse time. 3 Q Like I said -- 4 A The sky opening up. 5 Q Getting a rainbow, the opposite happens? 6 A You got it. It was pouring, you know. 7 Q All the way through the time you 8 chained -- 9 A Yeah, the whole time. We were all soaked. 10 Q So the last ten minutes or 25 minutes 11 were kind of hard? 12 A Twenty minutes or so. 13 Q Are you aware that Bob Womack told the 14 Land Use Community Development Committee that you 15 confirmed putting dry ice in the tank? 16 A That I what? 17 Q Confirmed putting dry ice in the tank. 18 A I brought to it their attention. Nobody 19 down there had ever heard of that before, as far as 20 putting dry ice in the tank. 21 Q Did you know Bob Womack told the Land Use 22 Committee that you could confirm that dry ice was put in 23 the tank? 24 A No, I had no idea that was said. 25 Q Is your working in San Jose a result of 1142 1 the problem that has developed around the tank removal? 2 A Absolutely not. 3 Q You are not banned from Amador County? 4 A No, no. When they bring cannibals back, I 5 will be afraid. 6 Q When they bring what? 7 A Cannibals back, I will be afraid. Until 8 that day.... 9 Q Is the position Mark put you in with this 10 case partially the reason you left Mark's business? 11 A No. The problem I had with Mark was 12 simple finances. Just simple finances. 13 Q Were you out on the Sherrill's property on 14 Sunday? 15 A Yes, we went and retrieved the truck and 16 trailer Sunday. 17 Q Why did you remember if the tank wasn't on 18 there? 19 A Because when the tank was on the trailer 20 Saturday, and we went to go get the truck and trailer 21 Sunday, there was no tank on the trailer. 22 Q You laugh each time that question comes 23 up. 24 What chat or series of chats did you have 25 on Sunday about the location of the tank? 1143 1 A Nothing. That's as honest as I can be. 2 Nothing. It was none of my business. I don't know. 3 People are like that, right? I mean, some people keep 4 their noses out of other people's business. I am one of 5 those people. That's all. I am just one of those 6 people. 7 Q No question asked? 8 A Right. It wasn't my business. 9 Q Mark didn't say -- 10 A I didn't feel good about it Saturday in 11 the first place, and I didn't really want to know where 12 the tank was. 13 Q Was it -- 14 A It wasn't there on the trailer. That's 15 all I know. It wasn't on the trailer any more. 16 Q Did you see it on site? 17 A No, I didn't see the tank. 18 Q Okay. Were you -- we heard earlier, I 19 think -- but again, there has been a lot of witnesses, so 20 if I am wrong, I will ask it as a hypothetical. 21 Hypothetically, someone earlier testified 22 that -- this is a hypothetical. We haven't heard this 23 yet. Hypothetically, were you on site on Sunday when 24 somebody came by and said, Bob, I want that tank that you 25 were asking about at Mel's. Can we get it? And then Bob 1144 1 says, It's no longer here. It's at Mark's. Let's go to 2 Mark's and get it. 3 Were you on site when that conversation 4 happened? 5 A No, sir. 6 Q So you weren't there when anybody showed 7 up and wanted the tank? 8 A No, I wasn't. I was not there when that 9 conversation took place. 10 Q Do you remember sometime on Sunday that 11 Womack left in a hurry to go give the tank away? 12 A No. It was a real laid back, easy 13 morning. 14 Q Did you see the tank at Sherrill's on 15 Sunday? 16 A No, I did not. 17 Q Can one man unload the tank? 18 A Oh, easily. 19 Q From the trailer? 20 A Absolutely. 21 Once the tank is out of the ground, all 22 the hard stuff is over. Grab it with a chain, push it 23 off, move it anywhere you want with a cat. 24 Q Usually, you would want that triple rinsed 25 or dry iced. Or do you want to push them around before 1145 1 dry ice and rinse? 2 A There was no dry ice. 3 Q Do you think it would have been safe to -- 4 A Absolutely. 5 Q It would have been safe? 6 A Yes, much safer. Based on past 7 experiences with other tanks blowing up and such. 8 Q Maybe I didn't ask the right question. 9 Do you think it would have been safe, if 10 the tank had not been triple rinsed, to be pushing it 11 around with a tractor one day later? 12 A No. 13 Q Was the water clean that you pumped out of 14 the hole, if you know? 15 A It was fine. As far as I could see, there 16 was no slick, there was no fumes, there was no smell. It 17 was -- it seemed fine. 18 Q Had you been part of the conversation 19 where they were told they couldn't take it directly into 20 the storm drain? 21 A Yeah, that's why we brought the water 22 truck in to pump the water out to take it to the Amador 23 landfill to dispose of the water properly. 24 Q Were you part of that conversation? 25 A No, I was not part. I am sure that's what 1146 1 happened. That's why the water truck was there to siphon 2 the water out of the hole and take to it the Amador 3 County landfill. 4 Q If the water was clean, it could have gone 5 in Jackson Creek? 6 A I don't think that he would allow that 7 anywhere. 8 Q Okay. If you knew, why take clean water 9 to the landfill? 10 A Precaution. 11 Q Even without fumes present, didn't you 12 know it was unsafe to smoke near a gasoline tank, 13 especially in light of your considerable experience with 14 this type of work? 15 A Yes, yes. 16 Q Do you think the tank was full, half full, 17 three quarters full? 18 A Empty. 19 Q Because? 20 A We checked it first. And the only thing 21 we could find in it was water. It was checked. 22 Q Who checked it? 23 A Bob. 24 Q And it was water? 25 A It was water, yeah. 1147 1 Q How could Bob check a tank and determine 2 it was water? 3 A Stick a stick in the tank, pull the stick 4 out, smell the stick. No fumes. No gas. It was water. 5 Q How much water? 6 A Quarter inch, half inch. 7 Q You saw Bob check it? Or he just told you 8 he checked it? 9 A Checked it. Bob checked it. Yes, I saw 10 him. 11 Q So he had a six or seven foot long stick 12 on site? 13 A No. Something he picked up somewhere. It 14 wasn't on site, I don't believe. 15 Q Do you recall any problem with the chain 16 while handling the tank? Such as, did the chain break at 17 some point? 18 A Mmmm... I remember one slipping, I 19 think. I don't remember a chain breaking; just one 20 slipping. 21 Q Okay. And you don't remember whether or 22 not after the piping was cut off the tank, the piping 23 that went from the tank to the dispenser island, whether 24 that was removed or not? 25 A I know all the pipe that we pulled off on 1148 1 the top, we threw in the loads of debris that we got rid 2 of at the dump. 3 The pipe underneath the soil, I have no 4 idea what happened to that. 5 MR. IREY: Any other questions of the Grand 6 Jurors? 7 At this point, Mr. Hernandez, the Foreman 8 reads an admonition into the record and has you sign it. 9 Just like you did before lunch. 10 Thank you for your time today. I think 11 you were a big help. 12 THE FOREPERSON: I will read this to you. 13 THE WITNESS: Okay. 14 THE FOREPERSON: You are admonished not to reveal 15 to any person except as directed by the Court what 16 questions were asked or what responses were given or any 17 other matters concerning the nature or subject of the 18 Grand Jury's investigation that you learned during your 19 appearance before the Grand Jury. 20 This admonition continues unless and until 21 such time as the transcript of this Grand Jury proceeding 22 is made public. Violation of this admonition is 23 punishable as contempt of court. 24 This does not prevent you from discussing 25 the matter with your attorney, if you have an attorney 1149 1 advising with you respect to your appearance before the 2 Grand Jury. 3 I will have you initial underneath your 4 name. 5 GRAND JUROR: I have one more question. 6 MR. IREY: We have one more question, Mr. 7 Hernandez. I have a question. 8 Q Everything you testified today was the 9 truth, correct? 10 A As far as I can remember, the absolute, 11 positive truth. 12 Q And in the past, you were lying to 13 Investigator Hall? 14 A As far as what? Here you go again. 15 Q Your memory. 16 A As far as not remembering? 17 Q Yeah. 18 A Yes, I lied. 19 Q Thank you for testifying truthfully 20 today. And it will just be a second on the question. 21 One thing they are doing often, they are 22 bringing people back two, three, four days in a row. 23 Is that something you would like to have happen, if at 24 all possible? No? 25 A If you guys can make my house payments and 1150 1 truck payments, I would be more than happy to sit here 2 with you all day every day. 3 Q This is a touchy feely question. 4 A And yes, I am married. Just kidding. I 5 had to break the ice here a little. 6 Q Do you feel better now that you have told 7 the truth? 8 A Always. The truth will set you free. 9 Q Do you know Randy Cunha? 10 A Randy Cunha? I know lots of different 11 Cunhas. 12 Q Cunha. The guy that works at Swenson 13 Shoes. 14 A The guy that fixes, repairs the shoes? 15 Yes, I do know him. I didn't know that was his name. I 16 do know him. 17 Q Did you see him come over to the site and 18 talk with people that day? 19 A No, not that I remember. He was right 20 across the street. He could have come over any time. 21 Q But you don't remember? 22 A No. 23 Q Do you remember him being present when the 24 tank came out of the ground? 25 A No. Like I said, when that tank pops up, 1151 1 that's where all the eyes are, is on the tanks. You are 2 not looking around to see who is there. Honestly. 3 Q Did you talk to Billy Wolin about what he 4 was doing pulling tanks on weekends? 5 A No. 6 Q Just wondering. 7 A No. 8 I thought we were all done here. You tell 9 me we are all done and I signed out. 10 THE FOREPERSON: I hadn't released you yet. 11 Same admonition, please. 12 Q BY MR. IREY: One last question. 13 If you were the prosecutor asking one last 14 question, what question would you ask of yourself? 15 A What question would I ask of myself? Look 16 at this guy. I would figure out how we could get this 17 gentleman all the mileage and hours that are due to him, 18 and would wonder how we could help pay this man back for 19 his loss of wages today. That would be my last 20 question. How can we fix this for this gentleman? He 21 was so much help for us, how could we fix that for him? 22 MR. IREY: Same admonishment. 23 THE FOREPERSON: Same admonishment. You are free 24 to go. 25 THE WITNESS: Where would I check? 1152 1 MR. IREY: Check with me. I don't know yet. 2 Louie Podesta. 3 THE FOREPERSON: If you could remain standing and 4 raise your right hand, please. 5 You do solemnly swear that the evidence 6 you shall give in this investigation now pending before 7 this Grand Jury shall be the truth, the whole truth and 8 nothing but the truth, so help you God. 9 THE WITNESS: Yes. 10 THE FOREPERSON: Thank you. You may be 11 seated. 12 (TIME NOTED: 2:22 P.M.) 13 ---oOo--- 14 LOUIE PODESTA 15 Called as a witness herein by the People, 16 having been duly sworn to tell the truth, was examined 17 and testified as follows: 18 19 EXAMINATION 20 BY MR. IREY: 21 Q Could you pronounce your last name and 22 spell it for the court reporter, please. 23 A Podesta, P-O-D-E-S-T-A. 24 Q Mr. Podesta, did Bob Womack offer you the 25 underground storage tank? 1153 1 A No, sir. 2 Q At any time? 3 A No, sir. 4 Q And that would include that Saturday 5 morning, May 2nd? 6 A Yes. 7 Q At no time? 8 A No. 9 Q So if Mr. Womack told us that he offered 10 the tank to you, that would be an inaccurate statement? 11 A Yes. 12 MR. IREY: I have no further questions of Mr. 13 Podesta. 14 I appreciate your taking time out of your 15 busy schedule. That is a question the Grand Jurors had 16 to know the answer to. 17 THE WITNESS: Okay. 18 MR. IREY: At this point, if any Members of the 19 Grand Jury have any questions, they can put them down in 20 writing and I will ask those of you, Mr. Podesta. Thank 21 you. 22 Q Have you talked to Bob Womack about this 23 tank issue? 24 A No. 25 Q Mark Sherrill? 1154 1 A No. 2 Q June Womack? 3 A No. 4 Q Masons? 5 A No. 6 MR. IREY: Do any Members of the Grand Jury have 7 a question? Okay. 8 The Grand Jury Foreman has what's called 9 an admonition for you, Mr. Podesta. Thank you for your 10 time. 11 THE FOREPERSON: You are admonished not to reveal 12 to any person except as directed by the Court what 13 questions were asked or what responses were given or any 14 other matters concerning the nature or subject of the 15 Grand Jury's investigation that you learned during your 16 appearance before the Grand Jury. 17 This admonition continues unless and until 18 such time as the transcript of this Grand Jury proceeding 19 is made public. Violation of this admonition is 20 punishable as contempt of court. 21 This does not prevent you from discussing 22 the matter with your attorney if you have an attorney 23 advising you with respect to your appearance before the 24 Grand Jury. 25 And if I could get you, sir, to please 1155 1 sign and date that I read that you admonition. 2 THE WITNESS: Okay. 3 MR. IREY: Underneath the clock, please. 4 THE FOREPERSON: This gentleman? 5 MR. IREY: I apologize. Gary Poggio. 6 Is that how you pronounce it? 7 THE FOREPERSON: Mr. Poggio, if you would remain 8 standing, please, and raise your right hand. 9 You do solemnly swear that the evidence 10 you shall give in this investigation now pending before 11 this Grand Jury shall be the truth, the whole truth and 12 nothing but the truth, so help you God. 13 THE WITNESS: Yes. 14 THE FOREPERSON: Thank you. You may be seated. 15 (TIME NOTED: 2:25 P.M.) 16 ---oOo--- 17 GARY POGGIO 18 Called as a witness herein by the People, 19 having been duly sworn to tell the truth, was examined 20 and testified as follows: 21 22 EXAMINATION 23 BY MR. IREY: 24 Q Mr. Poggio, do you know Bob Womack? 25 A Not personally. 1156 1 Q Were you present at Mel's when Mr. Womack 2 offered you an underground storage tank? 3 A No. 4 Q Did Mr. Womack at any time ever offer you 5 an underground storage tank? 6 A No. 7 Q Were you present at Mel's Diner when you 8 heard Mr. Womack offer anyone else an underground storage 9 tank? 10 A No. 11 Q Have you ever seen a reward posted around 12 town for a missing underground storage tank? 13 A In the paper. 14 Q Other than -- 15 A The local paper. 16 Q Other than in the paper? 17 A No. 18 Q Have you spoken with Mr. Womack regarding 19 the missing underground storage tank? 20 A No. 21 Q Have you spoken with Mr. Mason regarding 22 the missing underground storage tank? 23 A No. 24 Q Have you spoken with Mr. Mark Sherrill 25 regarding the missing underground storage tank? 1157 1 A Probably. As far as spoken with him -- I 2 mean, he is in Mel's every morning, and there has been 3 talk. 4 Q Did Mark tell you he didn't know where the 5 tank went? 6 A No. 7 Q No, he did not tell you that? 8 A He did not say anything about where the 9 tank was. 10 Q Okay. Did he say that he did not know 11 where the tank was? 12 A Not to my knowledge. Just the tank, the 13 tank, itself, has been talked about, you know. 14 Q Did he ever -- 15 A Nothing specific. 16 Q Did he ever tell you that he lied to the 17 D.A.? 18 A No. 19 Q Did he ever tell you that Womack is lying 20 to the D.A.? 21 A No. 22 Q Did he ever tell you he was telling the 23 truth to the D.A.? 24 A No. 25 Q Did you talk to Mark Sherrill after the 1158 1 tank was found? 2 A I talk to Mark every day, one way or 3 another. I mean, I see him every morning at Mel's. 4 Q What business are you in, sir? 5 A I work for PG&E. I am a foreman. 6 MR. IREY: Okay. I have no further questions of 7 Mr. Poggio at this point. 8 I didn't have an opportunity to brief you 9 on the process, but any Member of the Grand Jury can 10 write down a question and I read it into the record. 11 THE WITNESS: Yes, I have been there. I mean, I 12 have been a juror. 13 MR. IREY: If none of the Grand Jurors have any 14 questions? 15 At this point, the Foreman has an 16 admonition for you, Mr. Poggio. 17 THE FOREPERSON: You are admonished not to reveal 18 to any person except as directed by the Court what 19 questions were asked or what responses were given or any 20 other matters concerning the nature or subject of the 21 Grand Jury's investigation that you learned during your 22 appearance before the Grand Jury. 23 This admonition continues unless and until 24 such time as a transcript of this Grand Jury proceeding 25 is made public. Violation of this admonition is 1159 1 punishable as contempt of Court. 2 This does not prevent you from discussing 3 the matter with your attorney if you have an attorney 4 advising you with respect to your appearance before the 5 Grand Jury. 6 If I can get you to sign and date that 7 admonition I just read to you, please. 8 THE WITNESS: This is what you just read to me? 9 THE FOREPERSON: Yes, that's word for word what I 10 just read. It's the 17th. 11 THE WITNESS: I am the witness, right? 12 THE FOREPERSON: You were a witness, yes. 13 MR. IREY: One last question. 14 THE WITNESS: Yeah. 15 Q BY MR. IREY: Do you know where the tank 16 went? 17 A No. 18 THE FOREPERSON: Same admonition applies. 19 THE WITNESS: Yes. 20 MR. IREY: Thanks. 21 THE FOREPERSON: Ms. Martin, if you could remain 22 standing and raise your right hand, please. 23 You do solemnly swear that the evidence 24 you shall give in this investigation now pending before 25 this Grand Jury shall be the truth, the whole truth and 1160 1 nothing but the truth, so help you God. 2 THE WITNESS: I do. 3 THE FOREPERSON: Thank you. You may be seated. 4 5 (TIME NOTED: 2:30 P.M.) 6 ---oOo--- 7 SHERRY MARTIN 8 Called as a witness herein by the People, 9 having been duly sworn to tell the truth, was examined 10 and testified as follows: 11 MR. IREY: I have passed the name the Grand Jury 12 gave me after lunch on to Mr. Hall. 13 THE FOREPERSON: Okay. 14 15 EXAMINATION 16 BY MR. IREY. 17 Q Ms. Martin, could you spell your last name 18 for the court reporter, please. 19 And when you are answering, if you try to 20 answer all the way to the last person in the last row, 21 that would be helpful. Thanks. 22 A Sure. It's Martin, M-A-R-T-I-N. 23 Q And who is your employer? 24 A City of Jackson. 25 Q And what capacity are you so employed? 1161 1 A I am an accounting service tech. 2 Q An accounting service tech? 3 A I am a clerk. 4 Q And a clerk for what department or 5 division? 6 A For Administration. 7 Q Okay. And earlier this year, did you have 8 contact with a Mr. Robert Womack? 9 A Yes, I did. 10 Q And was that while you were working in 11 your capacity for the City of Jackson? 12 A That's correct. 13 Q Could you give a narrative answer to all 14 of the Grand Jurors about that particular contact. To 15 the best of your recollection, the first contact. 16 A Mm-hmm. He came in for a demolition 17 permit that the building inspector issued to him. And I 18 took in the money for that permit. 19 Q Okay. And in taking in that money for 20 that permit, it's basically, permit issued. Then they 21 say, Now you need to go to Sherry. Take this permit over 22 to Sherry. Is that how that works? 23 A What we do is, after the building 24 inspector issues the permit, we have a drawer up front 25 that we just put 'em in. Then whoever is up at the front 1162 1 counter, you know, comes in, and they will pull it out of 2 the drawer, you know, when someone asks for the permit. 3 And I happened to be the one that took in the money for 4 that permit. 5 Q Okay. And then when you take in the money 6 for the permit, do you make a notation in the file? Or 7 do you just -- 8 A I do a receipt on the computer. 9 Q Okay. Then you print out the receipt? 10 A That's right. 11 Q And between that contact with Mr. Womack, 12 did you have any contacts with him throughout the summer? 13 A Yes. 14 Q Okay. When was your next contact with Mr. 15 Robert Womack, if you recall? 16 A It was on September 2nd. 17 Q Why do you know it was September 2? 18 A Because I remember he came in and he 19 tape-recorded us. 20 Q Did you give him permission to tape record 21 you? 22 A No. 23 Q How do you know he was tape recording you? 24 A In the middle of our conversation, he was 25 asking me questions, the building inspector noticed a 1163 1 little red light in his pocket. 2 Q The building inspector being? 3 A Which is Larry White. 4 Q Okay. 5 A That took over for Gary Rouse. 6 Q Okay. 7 A He called me in the back room and brought 8 that to my attention, that he was tape recording us. At 9 that time, he contacted the City Manager from the back 10 room. 11 Q Okay. 12 A And -- 13 Q You can't testify to what the City Manager 14 told Mr. White, but you can testify to what Mr. White 15 told you. 16 A Okay. Well, he had told me that he is 17 tape recording us. 18 Q Did you actually see the tape recorder in 19 the pocket? 20 A Not at first, no. After I went back into 21 the front room, yes. 22 Q So you -- Mr. White had told you there was 23 a tape recorder, correct? 24 A (Witness nods head.) 25 Q You need to answer so she can take it. 1164 1 A Yes. 2 Q So then you went out and you physically 3 saw the tape recorder? 4 A It was in his shirt pocket. 5 Q It had a light on? 6 A Yes. 7 Q And at that point, did you end your 8 conversation with Mr. Womack? Or did you do something 9 additional? 10 A I ended my conversation. Sat back at my 11 desk. And Larry White continued talking to him. 12 Q Had him fill out a public records request? 13 A Yes, that's correct. 14 Q And later that day, did you immediately 15 process the public records request? Or did Mr. Womack 16 leave? 17 A He had left and he came back. 18 Q Okay. 19 A That same day. 20 Q When he came back, did you have the 21 records ready for him? 22 A No, not at that time. They were back on 23 the building inspector's desk. Building inspector was 24 not in. I made a copy for him when he requested it. 25 Q One page copy? 1165 1 A Just one page copy. 2 Q Of the City permit from '88? 3 A That's correct. 4 Q You didn't copy the '88 County permit? 5 A I don't remember. I don't think so, no. 6 I believe it was one copy. 7 Q Did you tell Mr. Womack it was okay if he 8 pulled the underground storage tanks? 9 A No. 10 Q This has been marked Grand Jury Exhibit 11 68. If you remember -- if you don't remember, you say a 12 check is a check, that's fine. But that's made out to 13 whom? 14 A City of Jackson. 15 Q On what date? 16 A May 1st. 17 Q From? 18 A Excuse me? 19 Q Who signed it? 20 A Oh. R. Womack. 21 Q Did Mr. Womack sign the check in front of 22 you? Or do you recall? 23 A I don't recall. I don't remember. 24 Q Okay. So that was May 2nd. 25 A Oh. 1166 1 Q Go ahead. 2 A Oh, no. That was May 2nd on that? 3 Q My apologies. September 2nd. 4 On September 2nd, when you were making 5 this copy of the discovery, were you happy with Mr. 6 Womack? 7 A No, I wasn't. 8 Q Why were you unhappy? 9 A I was unhappy because he tape-recorded me 10 without my consent. 11 Q Have you been tape-recorded to your 12 knowledge without your consent previously at the County 13 center? 14 A I don't know if I have been tape-recorded. 15 Q To your knowledge? 16 A To my knowledge, no. 17 Q Okay. That information come down from 18 the City Attorney that you weren't supposed to speak with 19 Mr. Womack? 20 A Well, from the City Attorney? 21 Q City Manager. I apologize. 22 A Or to the -- I don't understand the 23 question. 24 Q Where did the information come from, as 25 far as you know, to end your conversation with Mr. 1167 1 Womack? 2 A I just ended it. I was upset. 3 Q Okay. Before Gary Rouse got ill, is he a 4 real trustworthy guy? 5 A Yes, he is. 6 Q And diligent? 7 A Mm-hmm, yes. 8 Q Okay. And then he got pretty sick? 9 A That's right. 10 Q And he had to leave his employment? 11 A Right. 12 Q How many years have you worked with Gary 13 Rouse? 14 A I have worked with Gary Rouse for six 15 years now. 16 MR. IREY: Okay. I have no further questions of 17 Ms. Martin. 18 At this point -- I think I explained this 19 to you, but I am not sure -- the Grand Jurors can put a 20 question down in writing, and then I will go ahead and 21 ask those. 22 Q Does this file look familiar to you? 23 A Yes. 24 Q What are these files called? 25 A The building permit file. 1168 1 Q Is this the file you would have made a 2 copy of the permit from? Or would it have been the 3 street file? 4 A This is the application for the permit. 5 Q Okay. There is a second file. It's 6 called the street file? 7 A Yes. 8 Q This has been marked Grand Jury Exhibit 9 28. Correct? 10 A Yes. 11 Q And inside Grand Jury Exhibit 28, the 12 first documents? 13 A Mmmm... I did not make a copy of this 14 one. 15 Q What's that document called? 16 A This is the application for underground 17 storage tank. 18 Q A County permit? 19 A This is a County permit. 20 Q So the document you remember making a copy 21 of for Mr. Womack is something other than that? 22 A No. Matter of fact, it was this right 23 here. It was the copy of the permit. 24 Q So it was a copy of the building permit? 25 A Yes. 1169 1 Q Building permit, City of Jackson 2 Department of Plans and Inspections? 3 A That's right. 4 Q No. 4171? 5 A Mm-hmm. 6 Q Did you also make -- 7 A Yes. 8 Q Did you also make him a copy of a 1988 9 permit? 10 A I don't think so. 11 Q You may have? 12 A I may have, but I don't think I did. 13 Q And you don't remember making a copy of 14 the County permit? 15 A No. I know for a fact I didn't make a 16 copy of these. 17 Q But the street file, does anybody get to 18 add extra stuff to the street file? Or only City 19 employees? 20 A City employees. 21 MR. IREY: Questions? 22 Q Ms. Martin, did you speak with anyone from 23 the newspaper recently -- this is the, Are you the mole? 24 question. 25 Did you speak with anyone from the 1170 1 newspaper recently? If so, did you tell them that the 2 City of Jackson made a mistake with this case? 3 A No. Never talked to the newspaper. 4 Q Do you know, in the last three days, if 5 they have called your office? 6 A No. 7 Q Would you pass messages as a clerk on to 8 other people if you received a call? 9 A Yes. 10 Q Kind of central clearinghouse? 11 A Yes. 12 Q And you don't recall anyone from the 13 Amador Ledger Dispatch calling to speak with anybody in 14 Administration? 15 A Not for this issue, no. 16 Q If you know, was there any conversation 17 with Womack as to why and what he needed a permit for on 18 the day he purchased the permit? 19 A I don't know anything about that. 20 MR. IREY: Any questions of any of the Grand 21 Jurors? 22 Q If you know, did Mr. Womack ever mention 23 permits to take the tank out of the ground? 24 A I don't know. 25 Q At any time, did you ask him if he was 1171 1 going to pull the tank? 2 A Not me, no. 3 Q Did you hear anyone ask him about the 4 tanks? 5 A No. 6 Q Who have you spoke with about the 7 underground storage tank issue? And if it's a list 8 longer than 20, let us know. 9 A I haven't talked to anyone about this. 10 Q Ron Hall? 11 A As for the underground storage, that has 12 nothing to do with me. I don't know anything about that 13 permit. 14 Q But as to the illicit taping, you saw the 15 tape. 16 A Oh, yes. 17 Q You saw the tape recorder on? 18 A Yes. 19 Q First time last week or the week before, 20 you listened to the tape; is that correct? 21 A That's correct. 22 Q That was the tape of the exact same 23 conversation of you and Larry White and Mr. Womack on the 24 date -- 25 A Yes. 1172 1 Q -- 9/2/98? 2 A That's right. 3 MR. IREY: Any other questions? Okay. 4 At this time, the Grand Jury Foreman has 5 what's called an admonition for you, Ms. Martin. 6 THE WITNESS: Okay. 7 THE FOREPERSON: You are admonished not to reveal 8 to any person except as directed by the Court what 9 questions were asked or what responses were given or any 10 other matters concerning the nature of the Grand Jury's 11 investigation that you learned during your appearance 12 before the Grand Jury. 13 This admonition continues unless and until 14 such time as a transcript of this Grand Jury proceeding 15 is made public. Violation of this admonition is 16 punishable as contempt of Court. 17 This does not prevent you from discussing 18 the matter with your attorney, if you have an attorney 19 advising you with respect to your appearance before the 20 Grand Jury. 21 If I could get you to date and sign that I 22 just read that to you. 23 THE WITNESS: Sure. 24 MR. IREY: Gary Urzik. 25 THE FOREPERSON: Mr. Urzik, if you could remain 1173 1 standing and raise your right hand, please. 2 You do solemnly swear that the evidence 3 you shall give in this investigation now pending before 4 this Grand Jury shall be the truth, the whole truth and 5 nothing but the truth, so help you God. 6 THE WITNESS: So help me God. 7 THE FOREPERSON: Thank you. You may be seated. 8 (TIME NOTED: 2:43 P.M.) 9 ---oOo--- 10 GARY URZIK 11 Called as a witness herein by the People, 12 having been duly sworn to tell the truth, was examined 13 and testified as follows: 14 15 EXAMINATION 16 BY MR. IREY: 17 Q Mr. Urzik, could you spell your last name 18 for the court reporter, please. 19 A U-R-Z-I-K. 20 Q Who is your employer? 21 A City of Jackson. 22 Q For how long have you been so employed? 23 A Around eighteen years now. 24 Q And what capacity are you currently 25 employed? 1174 1 A I am engineering technician, public works 2 inspector. 3 Q Okay. How long have you known Gary Rouse? 4 A He started in 1985, I believe. 5 Q Okay. And were your desks relatively 6 close to one another? 7 A Yes, we are. We share the same office. 8 Q In May or late April of this year, did you 9 overhear a conversation that Mr. Rouse was having with a 10 a Mr. Robert Womack? 11 A Yes, I did. 12 Q Could you provide that information to the 13 Grand Jurors in as full a narrative form as possible, 14 please. 15 A I was coming in my office after doing an 16 inspection. And Mr. Womack and Gary Rouse were at the 17 counter discussing a permit to be issued. And they asked 18 me to join 'em because it involved a possible 19 encroachment permit which might need to be taken out for 20 the project. 21 Q Encroachment upon? 22 A The City street, Rex Avenue. 23 Q Okay. 24 A He wanted to have his dump trucks parked 25 on the side of the street. 1175 1 Q "He" being Mr. Womack? 2 A Yes. 3 Q If possible, as you are giving this, if 4 you could say Womack or Rouse or Mr. Womack, Mr. Rouse, 5 that would help when I have to go back and read this. 6 The Grand Jurors may have to review it. 7 A Okay. And Mr. Womack was requesting 8 permission to park a dump truck on Rex Avenue so, during 9 the demolition, they could park there and dispose of all 10 the material into the truck. And because he was saying 11 he contacted the State for an encroachment permit to be 12 able to park on the highway. And they denied it for some 13 reason. 14 And so he was asking if he could -- Mr. 15 Womack was asking if he could park the truck off of Rex 16 Avenue. And I told him that he could do that without a 17 permit, as long as he made the area safe and was off to 18 the side as close to his property as he could get. 19 Because there was still enough room for traffic to flow 20 safely. 21 So I believe I asked him for proof of 22 insurance, liability insurance. And as long as he 23 supplied that, he could obtain -- not obtain a permit; 24 but obtain permission from me to park the dump truck 25 there. 1176 1 Q What type of insurance were you requesting 2 at that time? 3 A It's an insurance certificate that shows 4 at least a million dollars liability insurance. 5 Q Did he provide that to you? 6 A I don't remember for sure. I would have 7 to check. 8 Q Okay. Please go on with your narrative. 9 A Mmmm... Gary Rouse and I were discussing 10 the project with him. And we did mention to him that he 11 would need to contact the Health Department because it 12 was probably tanks underground. 13 And he said not to worry, that the -- he 14 had already been in contact with them and it's being 15 taken care of. 16 Q So you specifically remember telling Mr. 17 Womack that he needed to contact the County regarding the 18 underground storage tanks? 19 A That's correct, yes. 20 Q And he told you that he had already done 21 that? 22 A He said he was in contact with them, yes, 23 mm-hmm. 24 Q So he assured you that he was well aware 25 that he needed to be in contact with the County 1177 1 Environmental Health? 2 A Mm-hmm, that's correct. 3 Q Regarding the underground storage tanks? 4 A Mm-hmm. 5 Q This is before the tanks came out of the 6 ground? 7 A That's correct. Before issuance of the 8 permit. So we went ahead and issued him the permit, on 9 that premise that he would follow through with what he 10 said he was going to do. 11 Q That being the demolition permit? 12 A Yes. 13 Q And under contractor, is that the 14 information -- this is Grand Jury Exhibit 26. 15 A Mm-hmm. 16 Q If you could say yes for her? 17 A Yes. 18 Q Okay. And it's a building permit 19 application, correct? 20 A Yes. 21 Q And under contractor, is that the 22 insurance information that you were looking for? Were 23 you looking for something else? 24 A No. I was looking for something else. 25 Q Okay. And it's called a what? Just proof 1178 1 of insurance? 2 A Proof -- it's a certificate of liability 3 insurance. 4 Q In case? 5 A An accident. 6 Q An accident happened, they ran into a 7 truck while they are doing the demolition permit on a 8 City street? 9 A That's correct. Or someone ran into them 10 or any accident occurred. If a person got injured in any 11 way and wanted to sue the City, we would know that we 12 were covered. 13 Q Okay. Were you present at any time when 14 anybody from the City of Jackson told Mr. Womack or 15 anyone else that they could pull the tanks with the 16 demolition permit? 17 A I don't remember that at all. That wasn't 18 said. Put it that way. 19 Q What was said was, check with the County? 20 A That's always done by the County. There 21 has been other instances in town where tanks have been 22 changed and the County always handles that. We don't do 23 that. 24 Q And Gary knew that at the time? 25 A Yes, mm-hmm. 1179 1 Q But Gary's memory, to the best of your 2 knowledge -- you have seen him recently, correct? 3 A Mm-hmm. 4 Q Yes? For the court reporter. 5 A He can't remember. 6 Q And that's fair because of other issues 7 that you know with Gary, correct? 8 A That's correct. 9 Q This isn't the only thing on earth he 10 can't remember, is it? 11 A No, it isn't. 12 Q So you are 100 percent sure that you were 13 present when Womack was told to deal with the County on 14 the tanks? 15 A 100 percent. 16 MR. IREY: No further questions of this 17 witness. If any Member of the Grand Jury has a question, 18 I would be happy to ask that of Mr. Urzik. 19 I would say I have no further questions, 20 and then I remember. 21 Q Your wife works for the District 22 Attorney's Office, correct? 23 A That's correct. 24 Q That hasn't influenced your testimony 25 today, has it? 1180 1 A No. 2 Q Good. If you know, how was the permit 3 issued to Womack to demolish the property if he did not 4 own it? 5 A He told us that -- we met with him, I 6 would say, a month before. And he discussed with the 7 City planner -- Mr. Womack discussed with the City 8 planner and I. 9 Q And her name? 10 A Susan Peters. 11 -- the possibility of putting in a 12 business, replacing that gas station. And we discussed 13 the project and we were in favor of it. And he said he 14 was in the process of purchasing that property then. I 15 guess it was taken for granted that he owned the property 16 when he came in to obtain the permit. 17 Q Okay. Did he say he was buying it? Or 18 did he give you one of his businesses were buying it? Or 19 do you remember? 20 A I understood that he was buying it. 21 Q Do you know where Ms. Sherry Martin was 22 when you told Womack about the permits he needed to take 23 out the tanks? 24 A I don't remember her being in the office. 25 Q Is her office a little separate from your 1181 1 office? 2 A It's right there at the counter. 3 Q But you don't recall one way or the other? 4 A I don't recall she was sitting at her desk 5 or not, no. 6 Q But the proximity to Mr. Womack and Mr. 7 Rouse and yourself -- closer than you are to the jurors 8 in the jury box? 9 A Closer than that, yes. 10 Q At any time in your conversation with 11 Robert Womack, did he ever ask you for a tank removal 12 permit? 13 A No. 14 Q If you remember, do you remember a permit 15 being issued to Mason ten years ago? Were you the one 16 that issued it? 17 A I know there was some permits taken out 18 years ago. I happened to notice a permit in the file, I 19 think, that I issued for electric or something. 20 Q For Mason? 21 A Yeah. 22 Q This has been marked Grand Jury Exhibit 23 28. 24 Could you skim through here and see if 25 there are any 1988 City of Jackson permits? 1182 1 A There's June 8th, 1988 permit issued by 2 Gary Rouse for a gas line. 3 Q Okay. 4 A From tank to pumps. 5 Q Okay. So not the underground storage 6 tank, itself; just from tanks to pump? 7 A That's what it appears to be, yes. 8 Q Mostly, the City deals with, on tank 9 issues, if it's true, plumbing, electrical and integrity, 10 structure, make sure you don't put too much weight on 11 piping, those types of issues? I will ask a different 12 question. 13 Does the City issue underground storage 14 removal permits? 15 A No. 16 Q Do they issue underground storage tank 17 installation permits? 18 A It could be like a site development 19 permit. And the County would be involved also, because 20 they inspect the tanks as they are installed. 21 Q Okay. And any other '88 permits in the 22 file? Take your time. 23 A July 21, 1988 issued by Gary Rouse. Oil 24 Equipment Service. Remove old gas tanks. Install new 25 2,000 gallon tank. 1183 1 Q Okay. Is there a parallel County permit 2 in that same file? 3 A It appears that there is a County permit 4 application for underground storage tanks, July 19, 1988. 5 Q New installation? 6 A For a new installation. So that covers 7 that. 8 Q Oh, I think -- Mr. Urzik, have you been 9 talking to the newspaper and telling them that you issued 10 an underground storage removal permit and it's all the 11 the City's fault? 12 A No. 13 Q Are you the mole at the City that's been 14 providing information to the Ledger Dispatch? 15 A No. 16 Q Are you aware, from anyone other than 17 someone from the District Attorney's Office who asked you 18 about it, that the number one story in the newspaper 19 tomorrow is going to be that it was all the City's fault? 20 A No. 21 Q Has anyone at the City of Jackson told you 22 they are in contact with the Ledger Dispatch and it's 23 going to break this story tomorrow? 24 A No, I haven't heard any of that. 25 The Ledger Dispatch called me yesterday, 1184 1 asking me questions about Jake Strom's fire downtown, and 2 was inquiring about a tank that was removed there. 3 That's the only contact I have had. 4 Q If you know, how does a County permit 5 eventually end up in a street file? 6 A Mmmm... I would say that -- just to have 7 on file that it was done correctly, that we would obtain 8 a copy of any permits or documentation that would involve 9 the removal of a tank. 10 Q So in a perfect world, you would often 11 have that type of document, but that's not always the 12 case, correct? 13 A Well, with Gary Rouse forgetting a lot of 14 things, I would say it could have been missed. 15 Q Okay. 16 A I don't see any other permits in here. 17 Just those. I thought I had written one. Evidently not. 18 Q Is it common practice to have the Building 19 Department -- I will rephrase. I misread it. 20 Is it common practice for the Building 21 Department to assume ownership of the property listed on 22 permit applications? 23 A Normally, it is. You know, we require 24 some kind of form of evidence that they own the property 25 if we are in question about it. Usually, we know who 1185 1 owns the property. 2 Q The next question, please don't answer, 3 but I will rephrase it a different question that is 4 pretty much the same thing. What good does it do for the 5 County to retroactive permits after work has been done. 6 Okay. So the -- my question to you is, 7 what would it do for the City to issue a retroactive 8 permit after any work had been done? 9 A I don't really understand what you are 10 getting at. 11 Q Okay. I can ask a different question. 12 Does the City issue retroactive building 13 permits? 14 A You mean permits after the fact? 15 Q Yes. 16 A There might have been an occasion where I 17 have taken over for Gary Rouse, if he has been gone for a 18 week or two, and I might have allowed work to be done on 19 certain projects, minor things, and asked them to come in 20 the following day or the following week to obtain a 21 permit. 22 Q Okay. Would the normal course of business 23 be that you would then inspect the site or the project? 24 A Yeah, I would go ahead and do the 25 inspections, with the understanding that they would come 1186 1 in and obtain the permit. 2 Q Okay. If you know, is a site normally 3 inspected before permits are issued? 4 A Well, it's what I just said. I would do 5 inspections before issuance of the permit, yes. 6 Q Okay. 7 A Just sometimes where people come in with a 8 site plan before a permit is issued, and I would go out 9 into the field and take a look at the site. 10 Q Okay. Who is Susan Peters? 11 A The City planner. 12 Q She is a contract City planner? 13 A That's correct. 14 Q So does she have an office -- 15 A I believe she has a home office. 16 Q Okay. But she wasn't present when Womack 17 came in and you and Gary Rouse were discussing the 18 issues? 19 A No, no. 20 MR. IREY: Any other questions of any of the 21 Grand Jurors? 22 Thank you, Mr. Urzik. At this time, the 23 Foreman has an admonition for you. 24 THE FOREPERSON: You are admonished not to reveal 25 to any person except as directed by the Court what 1187 1 questions were asked or what responses were given or any 2 other matters concerning the nature or subject of the 3 Grand Jury's investigation that you learned during your 4 appearance before the Grand Jury. 5 This admonition continues unless and until 6 such time as a transcript of this Grand Jury's proceeding 7 is made public. Violation of the this admonition is 8 punishable as contempt of court. 9 This does not prevent you from discussing 10 the matter with your attorney if you have an attorney 11 advising you with respect to your appearance before the 12 Grand Jury. 13 And if I could get you to please date and 14 sign that admonition I just read to you. 15 MR. IREY: We are going to have another question 16 in just a second, Mr. Urzik. It's kind of a test. I 17 have five. That's what happens. 18 Q Have you talked with Mr. Womack about the 19 underground storage tank removal since May 2nd, 1998? 20 A No, I don't believe I have. I discussed a 21 problem with his retaining wall. 22 Q And the problem being that he took a 23 retaining wall out without permits? 24 A Well, I believe that was part of the 25 demolition permit. 1188 1 Q Okay. 2 A But there was another wall above it which 3 is in jeopardy or which we felt was in jeopardy. 4 Q In having that discussion with Mr. Womack, 5 at first, did he deny that that wall was even taken out 6 during the demolition, if you know? 7 A He did, I believe, to Larry White. 8 Q Not to you personally? 9 A No. 10 Q Okay. And you were concerned about the 11 structural integrity of the roadway adjacent and above? 12 A The driveway above, yes. 13 Q Okay. And the set of conversations you 14 had with Mr. Womack were related to that? 15 A Mm-hmm. 16 Q But not the underground storage tanks? 17 A No, I don't believe so. 18 Q Did you or anyone inspect 505 Sutter 19 before the permit was issued? 20 A Repeat that. 21 Q Did you or, if you know, did anyone else 22 inspect 505 Sutter before the demolition permit was 23 issued? 24 A I didn't. 25 Q Did you check ownership after the fact? 1189 1 A No. 2 MR IREY: Any more questions? Okay. 3 Same admonition? 4 THE FOREPERSON: The same admonition applies. 5 You are free to go. 6 THE WITNESS: Okay. 7 THE FOREPERSON: You guys need a break? Okay. 8 We will take a ten-minute recess. 9 Grand Jurors are admonished that they are 10 not to form or express any opinions about this case or 11 discuss it themselves until the Grand Jury receives the 12 case for deliberation. In addition, no inspection of the 13 evidence should be conducted without the permission of 14 the Foreperson and on the advice of the prosecuting 15 attorney. 16 A violation of this rule could result in a 17 charge of contempt against a Grand Juror who would 18 investigate or view any matters with regards to this case 19 without the entire body of the Grand Jury. 20 We stand in recess until 3:15. 21 (Recess taken from 3:05 to 3:15 p.m.) 22 MR. IREY: The next witness is Keith Tallia. 23 THE FOREPERSON: Dave, at this time, I will 24 mention to the Jurors, if at any time on the video you 25 see something you don't recognize, you are welcome to -- 1190 1 what? Raise their hand? What? What would be the proper 2 procedure for clarification? 3 MR. IREY: Maybe what you could do is, you could 4 say in your question to the Grand Jury that you would 5 like me to ask a witness, Mr. Witness, could you explain 6 to me the videotape when the underground storage tank was 7 coming out of the ground. I have a couple of questions 8 regarding that. And then we will play the videotape. 9 THE FOREPERSON: Thank you. 10 MR. IREY: Then write down the specific question 11 you want to ask of that particular witness. 12 There will be witnesses who are familiar 13 with underground storage tank pulls; and there will be 14 witnesses who have seen the videotape; and there should 15 be witnesses that are familiar with underground storage 16 tank pulls and have seen the videotape. That might be 17 the person to ask. 18 GRAND JUROR: Which videotape is this? 19 GRAND JUROR: The short one or the long one? 20 GRAND JUROR: Is this the one we have seen 21 before? Because it's a different speed. The location 22 looks different from where the other one was. 23 MR. IREY: I don't think that we should have the 24 Grand Jurors talking on the record too much. This would 25 be -- I have no idea. This would be the long version, 1191 1 which is the same as Grand Jury Exhibit -- 2 THE FOREPERSON: You want the air up? 3 MR. IREY: -- three. 4 The tape, I think, is one hour and 31 5 minutes. I think that's what Mr. Hall testified to. And 6 I don't think we went through it at regular speed, the 7 entire tape. We only went through the tape the last 15 8 or 20 minutes, I guess. 9 You can circle around up under the clock, 10 please. 11 THE FOREPERSON: Mr. Tallia, if you could remain 12 standing, please, and raise your right hand. 13 You do solemnly swear that the evidence 14 you shall give in this investigation now pending before 15 this Grand Jury shall be the truth, the whole truth and 16 nothing but the truth, so help you God. 17 THE WITNESS: I do. 18 THE FOREPERSON: Thank you very much. You may be 19 seated. 20 THE WITNESS: Thank you. 21 22 (TIME NOTED: 3:18 P.M.) 23 ---oOo--- 24 25 1192 1 KEITH TALLIA 2 Called as a witness herein by the People, 3 having been duly sworn to tell the truth, was examined 4 and testified as follows: 5 6 EXAMINATION 7 BY MR. IREY: 8 Q Mr. Tallia, could you spell your last 9 name for the record, please. 10 A T-, as in Tom, A-L-L-I-A. 11 Q Okay. And what is your current 12 occupation? 13 A Self-employed contractor. I own a 14 contracting firm. 15 Q And how long have you owned that firm? 16 A February 1st, 1963. 17 Q Pretty close to 36 years? 18 A Correct. 19 Q And does your business sometimes involve 20 the removal of underground storage tanks? 21 A A lot of times. 22 Q Most of your business? 23 A Presently, about 50 percent of it. 24 Q Okay. How many underground storage tanks 25 have you removed in the last ten years, if you know? 1193 1 A Well, in the last -- two years ago, the 2 last count I had in the 33 years previous to that, it was 3 about 7,000 tanks. 4 Q Okay. Did you remove those with or 5 without permits usually? 6 A Since permits have been required, we 7 always remove them under permit. 8 Q In fact, some tanks that don't require 9 permits, you persuade your clients to obtain permits for, 10 correct? 11 A That's correct. 12 Q And those would be farm tanks, home 13 heating tanks? 14 A That's correct. 15 Q And the reason for that? 16 A I have seen too many cases where, even 17 though they are exempt under the law, where it would come 18 home to basically haunt the person that owned the tank at 19 that time down the road. If a property is sold and there 20 is going to be any loaned money involved for the 21 purchaser, lending institutions won't have anything to do 22 with it if you can't show that the tank was handled 23 properly, properly disposed of, soil samples taken, et 24 cetera. 25 Q So as an aid for these particular 1194 1 landowners down the road, you try to convince them that 2 it's in their best interest to go ahead and take out a 3 permit, correct? 4 A That is correct. And if they renege, I do 5 not do the job. 6 Q And your business is currently 7 headquartered in San Andreas? 8 A That's correct. 9 Q Have you done work in Amador County? 10 A Yes. 11 Q Lots of work in Amador County? 12 A Yes. 13 Q The Grand Jurors have heard testimony for 14 maybe four or five days, so I think they are comfortable 15 with the overall underground storage tank issue. 16 But if you could basically walk through 17 how a client contacts you, what steps you take 18 pre-removal, what are the initial steps you take when you 19 are on site, the handling of underground storage tank to 20 the point where it's on a truck or a trailer, and then 21 what's done with the tank, the rinsate and the piping at 22 that point. 23 A The first thing we do is prepare a 24 proposal, which is a cost of what it will take to do the 25 job. Have the customer sign that. It becomes a 1195 1 contract. Then apply to the various agencies involved 2 for the permits, pay for the permits. 3 Once the permits are obtained, we mark the 4 site for USA, which stands for Underground Service Alert, 5 who, in turn, notifies all the utility companies that may 6 have utilities in the area. They come mark them on the 7 ground before we dig. 8 Then we go in and expose the top of the 9 tank. We have a licensed vacuum truck on the job. We 10 use a high pressure washer. We triple rinse the tank; 11 that means, rinse it three times, pump it dry by the 12 vacuum truck, pump all the sludge and rinsate out. 13 That's transported to a legal hazardous waste disposal 14 site under a hazardous waste manifest. 15 We then inert the tank by inserting dry 16 ice into it in quantities of 15 pounds per 100 gallons of 17 tank capacity, generally considerably more, to accelerate 18 getting the LEL, which stands for Lower Explosive Limit, 19 down within an acceptable range, as well as getting the 20 O2, oxygen, down in an acceptable range to make it safe 21 to transport over the highway. 22 Then the regulator must be on site at that 23 point. We have notified them to be on site. Which is 24 the environmental health department of the county or city 25 involved, as well as some places, the fire department has 1196 1 to have a representative on site. 2 Once they are on site, check the LEL 3 levels and O2 levels of the tank. It is removed from the 4 excavation, is set on a truck and sent to an authorized 5 disposal site, which, in turn, issues a certificate of 6 disposal to us, which becomes very important. 7 And at that point, we have a third party 8 independent consulting firm under the direction of a -- 9 if it's not a licensed geologist on the job, he has an 10 employee under his direction, registered geologist, to 11 capture soil and/or water samples from the hole under the 12 protocol that's provided in what is called LUFT manual, 13 Leaking Underground Fuel Tank manual. It's actually put 14 out by the State Regional Water Control Board, Department 15 of Water Resources. 16 Normal protocol at that point -- sometimes 17 it gets varied depending upon some other physical 18 restrictions that may be on the property. Normal 19 protocol at that point would be to put a temporary chain 20 link fence around the hole. Cover the pile with 6 21 milliliter visquine. It's not been determined whether 22 it's hazardous or non-hazardous, so we take the 23 precaution to go ahead and cover it. Then leave the site 24 in a safe condition until we see the results of the soil 25 sampling. 1197 1 At that time, consult with the 2 environmental health department that's involved as to 3 whether any further remedial action will be required. If 4 it is, we provide -- we prepare a proposed work plan of 5 how we intend to either treat, remove the contaminated 6 constituents and get the health department to approve 7 that. 8 Once they approve that, our customer 9 agrees to the extra money, we proceed with the 10 remediations. 11 Q That's pretty much the same pattern your 12 business has operated under for a substantial number of 13 years? 14 A Yes. And at the end of all of this, we 15 provide a report to the environmental health department 16 involved, as well as to the customer, that contains a 17 copy of the soil sampling and analysis report that's done 18 by this consulting firm, as well as a chain of custody, 19 how the soil samples were transported from the job site 20 to the State-certified laboratory, a copy of the manifest 21 for the rinsate, the sludge, copy of the tank disposal 22 certification, and our cover letter as to whether we 23 agree or disagree with the consultant's recommendation of 24 how to handle any contamination that may be present. 25 Q Did you have an opportunity to review 1198 1 records from your business from 505 Sutter Street before 2 you testified today? 3 A Yes. 4 Q And they weigh about five pounds, eight 5 pounds? 6 A Yes. 7 Q And that's a series of actions your 8 business has taken over a period of years? 9 A Yes, those are job files. 10 Q For mostly Mason Oil Company? 11 A Yes. 12 Q And then we asked you if it was possible 13 if we could make a complete copy of that and return the 14 copy to you while the Grand Jury proceedings are ongoing. 15 Is that your understanding? 16 A Yes. 17 Q You wanted to make sure you got your 18 originals back, correct? 19 A Yes. 20 Q At this time, I would like to mark the 21 brown box and all of its contents as a Grand Jury 22 exhibit, please. 23 Mr. Tallia, did you do work for Mason Oil 24 Company or one of the Mason-controlled businesses at 505 25 Sutter Street in the late 1980s? 1199 1 A Yes. 2 Q Can you explain what you remember or what 3 you remember from the records you reviewed, just 4 basically an over -- just an overview of what activities 5 took place in '88. 6 A Okay. We removed -- we found a 1,000 7 gallon tank to be leaking. At the request of Mr. Mason, 8 we removed that tank, and also a 1,000 gallon tank that 9 was right next to it. We also removed a 550 gallon tank 10 that was discovered during the excavation process. 11 We installed a new 2,000 gallon, 12 two-compartment, double-wall STIP III corrosion protected 13 tank. 14 Q Was that in '91 that you installed the new 15 tank? Or '88? 16 A My recollection that it was '88 or '89. 17 Q Okay. Do you remember closing a tank in 18 place at 505? 19 A Yes. 20 Q Was that before or after you put the new 21 S-T-I-P tank in, if you recall? 22 A It's my understanding that it was after. 23 Q Okay. So when you pulled the tanks in the 24 late '80s or 1991 -- and again, your records might help 25 you, and I can hand you this if you want to quickly look 1200 1 through it. 2 A If you don't mind. 3 Q You could do that with permits? 4 A Certainly. 5 Q Did you get County permits? 6 A Yes, sir. 7 Q Did you get the necessary City plumbing 8 and electrical permits? 9 A Yes, sir. 10 Q And so sometimes there is more than one 11 permit for an underground storage tank removal, correct? 12 A That is correct. 13 Q Sometimes Fire Code? 14 A Correct. 15 Q Sometimes Electrical Code and Building 16 Code for installations? 17 A For installation, yes. 18 Q And then always County permit for removal 19 or installation, correct? 20 A Correct. County Environmental Health. 21 Q Just take a minute and look and see if you 22 can quickly determine what work was in '88 and what work 23 was in '91, Mr. Tallia. 24 Mr. Tallia, do all your employees have 25 OSHA 40-hour training? 1201 1 A They do. 2 Q Is that required by law for working on 3 underground storage tanks? 4 A It definitely is. 5 Q In fact, Mr. Tallia, did you help write 6 the rules for the State Contractors Licensing Board 7 related to underground storage tank requirements? 8 A I wrote -- helped write the test for the 9 Contractors State License Board that is given for 10 hazardous designation on contractor's licenses on A and 11 C-12 contractor's licenses that you must possess in order 12 to work on any hazardous substances site. And that 13 includes underground storage tanks. 14 Q And State Contractors Licensing Board 15 chose you and some other people you know to help draft 16 these -- this test? 17 A There were ten of us, ten contractors that 18 did that for the Contractors Board. 19 Q Okay. 20 A It appears from my records here that the 21 1991 tank was a 1,000 gallon tank removal only; not a 22 reinstallation. The '88 and '89 job was the removal of 23 the three tanks that I previously stated, which included 24 the installation of the new 2,000 gallon, two-compartment 25 tank. 1202 1 Q And that's from your cursory overview of 2 your records? 3 A Excuse me? 4 Q That's from your review of your records 5 just now? 6 A Yes. 7 Q So in '88 when you were doing the work, 8 you got permits, correct? 9 A Correct. 10 Q In '92 or '91 when you were doing the 11 work, you got permits? 12 A Correct. 13 Q And in your original records, it looks 14 like there is basically a three-page accounting, a 15 ledger. It looks like a ledger, how you can keep track 16 of what you bill. I must have marked it yesterday as an 17 exhibit. 18 Mr. Tallia, this has been marked Grand 19 Jury Exhibit No. 43. What is this document called for 20 your business? 21 Is that basically just -- 22 A This is an invoice. And this is a pricing 23 sheet that generated that invoice. 24 Q Okay. And the seven-page document? 25 A Correct. No. Eight pages counting the 1203 1 invoice. Seven pages on the pricing sheet. 2 Q And there are subcategories in 3 description; is that correct? 4 A That's correct. 5 Q On 5/21, there is a description of some 6 work. 5/21/91. 7 A Correct. 8 Q And that work would have been? 9 A Expose top of tank. 10 Q Then 5/22/91? 11 A Test tank and lines. 12 Q 5/28/91? 13 A File the site leak report with Amador 14 County. 15 Q 5/30/91? 16 A Remove the tank. 17 Q And then so that particular tank never had 18 a reinstallation done on it? 19 A No. 20 Q Okay. And then the contaminated soil. 21 What did you do with the contaminated soil from that job 22 site, if you recall? 23 A That was -- that was transported to some 24 property that Mason Oil Company owned at Martell, 25 California. And that was under an arrangement that was 1204 1 made directly between Mason Oil Company and Environmental 2 Health Department. 3 Q Then eventually on to Forward? Or can you 4 tell from the pricing sheet? 5 A I can't tell from this. 6 Q Okay. In 1998, were you contacted 7 regarding 505 Sutter Street? 8 A 1998? 9 Q Yeah. 1998. May of 1998 or April of 10 1998. This year. 11 A Mmmm... I probably was. I think that's 12 when we give a proposal for removing another tank there. 13 Q This has been marked Grand Jury Exhibit 14 No. 11. 15 A Yes, I prepared that. 16 Q Okay. Now, why would you have prepared a 17 bid for the removal of underground storage tank? 18 A Because I was asked for it. 19 Q By whom? 20 A I am almost positive it was Dave Mason 21 Senior. 22 Q Okay. Being David Sterling Mason III, if 23 you know that name? 24 A That's correct. 25 Q Okay. Now, why are you almost positive, 1205 1 as opposed to positive? 2 A Because I directed the proposal to him. 3 Q Okay. And the date on this proposal? 4 A April 13th, 1998. 5 Q Okay. At that time, did Mr. Mason tell 6 you what -- that he wanted you to prepare a bid for him? 7 A Yes. It was my recollection of the 8 conversation was that I was talking to him about some 9 tanks on another property that he owned in Calaveras 10 County. And he mentioned that he also was going to have 11 to get this tank out and needed a price on it. 12 Q He told you he was going to have to get 13 this tank out? 14 A Yes. 15 Q And he told you he was going to have to 16 get it out the right way. Did he say that? 17 A Pardon? 18 Q Did he tell you he was going to have to 19 take it out the right way? 20 A I don't think that was part of the 21 conversation. It must be assumed, being he asked me to 22 do it. 23 Q Okay. So it's not he said, By the by, 24 could you go ahead and send me a proposal? 25 I think when we interviewed you a couple 1206 1 weeks ago, you said you wouldn't spend your nights 2 writing up these proposals if? If what? 3 A Right. I served my apprenticeship writing 4 proposals. 5 Q So you don't -- 6 A I don't do them for the fun of it. I do 7 them with the hopes of getting the job. 8 Q When you are asked? 9 A When I am asked. 10 Q And that's, you were asked -- 11 A I have no reason to do it if I am not 12 asked to do it. 13 Q You were asked to prepare this. And Mr. 14 Steve Buckley testified earlier. He testified something 15 about you contacted his consulting company prior to -- 16 A Correct. 17 Q -- bidding this job. How does that work? 18 A I get a price from him as a third party 19 consultant, what it's going to cost to capture the soil 20 samples and have 'em analyzed. I have that part of my 21 price. 22 Q You hear there is a client, correct? You 23 talk to whatever subcontractors you need to talk to or 24 equipment rental agencies? 25 A Yeah. Usually, just a consultant. 1207 1 Q You have your own equipment? 2 A Yes. 3 Q Okay. And then they send you back their 4 information? 5 A Correct. 6 Q In writing usually? 7 A Correct. Usually, by fax. 8 Q And then you fold that into a bid package? 9 A Correct. 10 Q And then do you fax that on to proposed 11 client? Or how do you -- 12 A Usually send it U.S. mail. 13 Q Would you have -- but on a bid, would you 14 already start a pricing ledger or not? Would you send 15 that without keeping track of -- 16 A No. We have another sheet, an estimate 17 sheet we prepare the bid off of. I don't have one of 18 those with me. 19 Q On this particular job, if necessary, you 20 have what is called an estimate sheet? 21 A Correct. 22 Q From that estimate sheet, you prepare the 23 bid? 24 A Correct. 25 Q And then you mail this to Mr. Dave Mason 1208 1 or one of your staff? 2 A Yeah, to Dave Mason, Post Office Box 668, 3 Ione, California. 4 Q You usually mail it the day you date it? 5 A Excuse me? 6 Q Do you usually mail it the same day you 7 date the proposal? Or a few weeks later? 8 A Generally, the next day. My secretary 9 types it, I sign in the evening when I get in. Mailed 10 the next day. 11 Q After you sent that proposal, did you in 12 the next few weeks after that have any contact with Mr. 13 Mason? 14 A I don't -- I did have contact with him. I 15 don't know at what point. Because he ultimately told me 16 to proceed with the job in Calaveras County. 17 Q Did you have any conversation with him 18 regarding the 505 Sutter Street property? 19 A There was some conversation that I don't 20 remember exactly what was said, something about that he 21 may be disposing of the property. But I don't remember 22 the exact text of the conversation. 23 Q Do you remember if it was before or after 24 the tank came out of the ground? 25 A Oh, I am sure it was prior to that. 1209 1 Q Okay. So it was a proposed bid pre-tank 2 coming out of the ground? 3 A Correct. 4 Q And he said, I may be disposing of the 5 property. Did he tell you to whom or for what? 6 A No. 7 Q Okay. And do you remember if anybody else 8 was around when you were having this conversation? Or 9 was it over the phone? 10 A It was via telephone in the evening. 11 Q From San Andreas to his house? 12 A Correct. Well, he initiated the call, so 13 I am not sure whether it was his home or his office. 14 Q Is it long distance from Jackson to -- 15 A It would have been from Ione to -- his 16 office and home are both in Ione. 17 Q And to your -- 18 A To San Andreas, to my home. 19 Q That would be long distance? 20 A Yes. 21 Q Okay. And then after that, when you 22 realized that you didn't get the bid, is that because 23 someone came by and said, They pulled the tank 24 illegally. 25 Or how did you first learn that you didn't 1210 1 get the bids? 2 A Uh, came to Jackson on a Saturday night to 3 have dinner and was told that that station and everything 4 involved with it had disappeared. 5 Q And do you remember who you were told this 6 by? 7 A I know the gentleman's first name. I 8 don't know his last name. 9 Q Was it the same Saturday that the station 10 was knocked down? Or was it a week or so later, if you 11 know? 12 A I stand corrected. I came on Sunday 13 night, I understand, and it was knocked down on 14 Saturday. I was told on a Sunday night. And the 15 gentleman was the bartender at Theresa's. His name is 16 Tim. 17 Q And Tim said, Hey, the gas station is 18 gone? Or how did the conversation -- 19 A Basically. Wanted to know if I did it. 20 And I said no. 21 Q Okay. Who else pulls underground storage 22 tanks with permits in Amador County that you know about? 23 A Gentleman that used to work for me 24 operates under the name Petroleum Pump and Meter. 25 There has been several companies from out 1211 1 of the area have been in here. Thorpe from Lodi, I think 2 has done some. Marty Thorpe has done some in Amador 3 County. Bassett Construction or Bassett Engineering out 4 of Elk Grove has been in here and done some. 5 That's all I can think of at the moment. 6 Q Okay. The bid that you prepared, what was 7 the total price on that bid? 8 A Have to look at the last page. I think it 9 was $5,594. 10 Q That included all permits? 11 A Yes, it did. 12 Q So you would have gone to Environmental 13 Health and taken out their permit? 14 A Correct. 15 Q Filled it out? 16 A (Witness nods head.) 17 Q She is writing it down. If you could say 18 yes? 19 A Oh, what all it included? 20 Q Yeah, please. 21 A Okay. Well, my proposals always include 22 everything to do the job properly and legally, except any 23 remediation that might be required after the fact. 24 Because nobody has a way of predicting what that might 25 be. 1212 1 I always tell the customer all they have 2 to do is write the check when they are done. So 3 basically, it's a total package. 4 Q Okay. And that's what this package 5 included? 6 A Yes. 7 Q And it outlined the training that your 8 employees had, correct? 9 A Yes. That's all stated in the proposal. 10 Q Okay. And some of that training that you 11 believe to be required is? Could you go ahead and give 12 us the short list? 13 A The training that is required? 14 Q Yeah. 15 A Okay. Every employee that -- or every 16 person that goes onto a hazardous materials site, which 17 tank removals are, has to have initially 40 hours of 18 authorized OSHA training; and each year thereafter, they 19 have to have an eight-hour refresher course. 20 We have to be with -- the firm, 21 themselves, have to be properly licensed, which is an A 22 contractor's license for the hazardous substance removal 23 designation, or a C-12 license with a hazardous substance 24 removal certification. And in some cases, a C-36 license 25 can do this work, but that gets involved to the type of 1213 1 project it is and so forth. 2 But in most instances, it's the A license 3 or with a hazardous disposal substance. Be properly 4 insured. 5 Q Have Workmen's Comp. insurance? 6 A Definitely. You have employees, you 7 definitely have to have Workmen's Comp. insurance. 8 Q You say it's all persons. That would 9 include regulatory staff? 10 A Correct. 11 Q Attorneys? 12 A Anybody that comes on the site is required 13 to be 40-hour OSHA trained and have a current card saying 14 that they have their eight-hour refresher within the last 15 twelve months. 16 Q Okay. And that training is so the 17 Contractors Licensing Board has stuff to do? Or are 18 there reasons that the training -- 19 A No. That's a requirement of the Federal 20 Government. The Occupational Safety and Health Agency, 21 OSHA stands for. It's mainly safety training and it's 22 required by the Federal Government. 23 Q Okay. So you bid the job. No phone calls 24 other than he thought he had someone to buy it? Or how 25 did that conversation go? 1214 1 A There was a conversation, as I say, when 2 he asked me to proceed with the job in Calaveras County, 3 that I don't know if he really asked me to hold -- he 4 said he was going to hold off on it or something. I 5 vaguely remember there was a conversation to the effect 6 he may be disposing of or selling this piece of property. 7 Q So it's kind of at that same time, the way 8 you remember it is, he said, Go with the -- you said 9 Calaveras County property? 10 A Correct. 11 Q Which is West Point? 12 A West Point. 13 Q And hold the Amador, because he had 14 other -- 15 A Yeah. Don't do anything on this one. 16 Q Are you actually going to have a bid 17 proposal that went to West Point about this same time? 18 A Yes. 19 Q And then two go out. One comes back; one 20 is out there hanging? 21 A Correct. 22 Q If you could -- for Ron Hall, the District 23 Attorney's Office, and possibly the Grand Jurors, if you 24 could have someone fax just that proposal and the signed 25 proposal back on the West Point station at some point, 1215 1 that would be great, Mr. Tallia. Thank you. 2 A Okay. 3 Q Okay. And so the bartender told you 4 that. 5 Did you do any checking on Monday or 6 Tuesday to find out from Environmental Health who got the 7 job and how it was done? 8 A I -- I can't recollect whether it was 9 Monday or Tuesday. But sometime not too long after that, 10 I was doing another project somewhere in the County and I 11 talked to Bob Fourt from Environmental Health Department 12 and made some comment to him about it. 13 And he said he was well aware of it and 14 was checking into it. 15 Q Okay. As a businessman, do you believe 16 it's fair that people do midnight underground storage 17 tank pulls? 18 A Certainly not. 19 Q Cuts into your business? 20 A Pardon? 21 Q Cuts into your business? 22 A I don't generally believe in breaking the 23 law, regardless of what it involves. 24 Q So it's just not safe. It's breaking the 25 law? 1216 1 A Correct. 2 Q Possibility of issues regarding the 3 flammable conditions of the tank if it wasn't properly 4 handled? 5 A Right. 6 Q Residue from the gas tank, including the 7 liquids? 8 A Right. 9 Q Liquids mixed with water? 10 A Right. 11 Q Gas and water is hazardous waste in 12 California? 13 A Yes, definitely. 14 Q Once you remove an underground storage 15 tank, without immediately taking samples under the piping 16 or dispenser island or the tank, is it much more 17 difficult to find the appropriate location to take the 18 sample? 19 A Would you restate that? I lost you. 20 Q If you have taken this pen off this table 21 and that's where the leak occurred, would it be much more 22 difficult to determine where the source of the leak was 23 after the fact? 24 A Proper -- proper sampling protocol would 25 develop within a very close range of where the leak was. 1217 1 Q Okay. So especially on a small site like 2 505 Sutter? 3 A Yes. 4 Q On a construction site, it might be 5 different or a mine or something like that? 6 A Yeah. 7 Q But this small location, because you 8 installed the tank, you could pretty much figure out 9 where to take the samples? 10 A Definitely. 11 Q Okay. So after Bob Fourt, has anyone 12 other than Bob Fourt chatted with you -- or Ron Hall and 13 myself -- regarding what happened that day, who hauled 14 the tanks, those types of things? 15 A Not from an official capacity. I think 16 generally it's known that -- it got around over several 17 counties as kind of the project to be talked about, so to 18 speak. And you know, naturally, had some conversations 19 with -- people would bring it up or wanted to know if I 20 was involved in it or whatever. But nothing from an 21 official standpoint until Ron Hall contacted me. 22 Q Can you just haul the soil off on a 23 weekend? 24 A Pardon me. 25 Q Can you haul the soil off on a weekend 1218 1 without taking any samples? 2 A No, not lately. 3 Q When you -- have you viewed this video 4 that's being shown at this time, Mr. Tallia? 5 A Yeah, I viewed a video concerning this 6 project earlier in the day. 7 Q The last ten minutes of the video? 8 A Yes. 9 Q And that was mostly related to the actual 10 tank being prepared to come out of the ground? 11 A Mm-hmm. 12 Q Yes? Sorry. So she can write everything 13 down. 14 A Yes, yes. 15 Q When you viewed that video, did you notice 16 any peculiar actions or any what you would consider 17 violations of the law occurring? 18 A First thing I noticed is several safety 19 violations. 20 Q Such as? 21 A Hard hats, safety shoes. 22 Q Okay. 23 A Non-existence of 'em. It appeared to me 24 that I could see petroleum constituents floating on the 25 water and the water was being bailed out of the backhoe 1219 1 bucket and thrown over on the dirt pile. 2 Q Does that decrease or increase the amount 3 of contaminated soil? 4 A It certainly increases the potential for 5 spreading it. 6 Q And instead of keeping it and placing it 7 in a baker tank or something along those lines -- 8 A Right. 9 Q -- where the source is here and 10 immediately, it only goes one other place? 11 A Or pump it into your vacuum truck to go to 12 a hazardous waste disposal site that day. 13 Q And you have a vacuum truck? 14 A No. I hire them. 15 Q You hire a vacuum truck to come out. But 16 you don't spread the waste water from the groundwater 17 over the entire site? 18 A Certainly not. 19 Q Do you use a five foot wide bucket when 20 you are doing it? 21 A No. 22 Q Because? 23 A Well, it's not necessary, for one thing. 24 And secondly, we use a conventional backhoe bucket. 25 Q Eighteen inches? 1220 1 A Well, it depends on size of the tank, 2 which backhoe we are using. Up to 42 inches wide. 3 Q But that's for 10 and 12,000 gallon tanks? 4 A Correct. 5 Q Little 2,000 gallon tank, would you use a 6 smaller -- 7 A 24-inch bucket on smaller backhoe. 8 Q And then you would excavate around the 9 site -- I think in your bid, you call it, take the 10 material off the top, before you call Environmental 11 Health? 12 A Well, not before we call 'em. We call 13 them generally 48 hours before, and we give them a point 14 in time to be on the project. And it behooves us to be 15 ready for 'em when they get there. 16 Q So they are on site a short period of time 17 and you are happy to wait for them to do their 18 inspections a short period of time, correct? 19 A Correct. 20 Q You noticed, you said, violation. You 21 noticed waste water violation. 22 What about when they are actually getting 23 ready to pull the tank out and they are all down in the 24 hole? 25 A Well, again, that's somewhat safety. Do 1221 1 you have to have a man down there to hook up your chain 2 or cable or whatever? And that's a call, each site is a 3 little bit different. A call you make whether he has to 4 have a safety rigging on, a safety belt. Depends on the 5 situation. 6 Q Whether the ingress and egress is 7 relatively straightforward, instead of all the way down 8 in a pit? 9 A This one did look a little bad. He could 10 have slipped off the tank into that pond of water real 11 easily. 12 Q It actually does show him slipping a bit, 13 one of the pictures? 14 A Exactly. 15 Q Each of the people in the tank pit would 16 require the training you listed before? 17 A Definitely. They are on the job site. 18 Q And when they are loading this truck with 19 the debris from the hole after it's an open pit and after 20 they have spread the water across the surface of the lot, 21 would they be able to do that legally without having 22 tested the soil? I will ask a different question. 23 Once you spread the water from the tank 24 pit across all the soil, would you be mandated then to 25 take -- take tests of the soil? 1222 1 A In most cases, the regulator -- they 2 generally get to the job early. If the regulator saw 3 that, would definitely make you take more tests on the 4 soil. 5 Q Would have stopped the job and said, Stop 6 putting the waste water over the clean soil. 7 A Right. 8 Q The idea is to visquine limit the amounts 9 of soil that may be impacted, because the number of 10 samples required to be taken is based upon -- 11 A Quantity. 12 Q -- the quantity? 13 A Correct. 14 Q So if there is 60 yards of contaminated 15 soil, there are more samples required than if there are 16 20? 17 A That's correct. 18 Q Goal is to limit the cost to your client, 19 correct? 20 A Correct. 21 Q And then you do that by limiting the 22 amount of waste created? 23 A Correct. 24 Q That's waste water, right? 25 A And waste soil. 1223 1 Q Waste soil. Waste piping? 2 A Right. 3 Q Trips to the dump. All of those things? 4 A Right. 5 Q Okay. Have you -- 6 A Excuse me a minute. You asked about, 7 would we haul it on the weekend? 8 In order to haul contaminated soil to any 9 legitimate disposal facility, soil or water, you have to 10 characterize it, which is sample it, get the analysis, 11 send it to them for approval, before they will even agree 12 to take it. That's mandated by State law. 13 So it isn't a case of digging it up today 14 and taking it to the dump tomorrow. 15 Q Even if you pay 24-hour turn-around, it's 16 still two days? 17 A It takes some time to get the disposal 18 facility to accept it. 19 Q And some disposal facilities aren't open 20 on weekends. Is that your understanding? 21 A None of the Class 1s are. 22 Q Okay. 23 A Some of the Class 2s are. 24 Q Okay. At any time after the tank came out 25 of the ground, did you call David Mason and say: David, 1224 1 what did do you? 2 A No, I did not. 3 Q Did he call you? 4 A Yes. 5 Q Okay. Could you describe that for the 6 Members of the Grand Jury, please. 7 A I can't remember the exact wording, but 8 the text of it was that he was possibly facing a very 9 severe fine. And I would say he was probably near to 10 tears, if I could have seen him on the other end of the 11 line. Kind of asking me what I thought he should do. 12 And that was basically it. I told him I really didn't -- 13 didn't have an answer for him. 14 Q Did he tell you any of the specifics about 15 why he was facing a fine? 16 A He didn't mention your name, but he said 17 that it was some prosecution under way. 18 Q Did you remind him that you had bid the 19 job? 20 A I didn't have to remind him. He already 21 knew. 22 Q Did he bring that up, that I wish -- 23 A I don't think it came up in that 24 conversation. 25 Q I wish I had just taken your bid, 1225 1 something like that? 2 A No. 3 Q You said you would have loaned him the 4 money; is that correct? 5 A I would have worked out a payment plan 6 with him. Which I did on the one in Calaveras County. 7 Q So, i.e., payable over a year or something 8 along those lines, whatever? 9 A X number of dollars a month until paid, 10 yes. 11 Q Because you have known him forever? 12 A Correct. We grew up together. 13 Q And you kind of feel sad for this to have 14 happened to him? 15 A Most definitely. 16 Q Then you also feel -- 17 A Pretty hard for me to set here and talk 18 about something that he has done wrong. 19 Q What he did was wrong. Is that your 20 understanding? 21 A Well, definitely. 22 Q Pretty much from the time he walked away 23 from his responsibility of doing it legally through your 24 bid, to when the tank returned several months later. Is 25 that -- 1226 1 A Well, I can't put everything into its 2 exact category. Because I don't know what the 3 relationship was between he and the other players 4 involved in this, Dave. But let's say that the entire 5 project was done wrong and done illegally. 6 Q He is the owner of the tanks. 7 A He was the owner of the tank. 8 Q Okay. But even though you feel bad for 9 David Mason, your testimony today has been truthful, to 10 the best of your recollection, correct? 11 A Most definitely. 12 MR. IREY: At this point, Mr. Tallia, any Member 13 of the Grand Jury can write down a question. And at 14 least one of them wanted to ask a specific question 15 regarding part of the videotape they haven't been able to 16 ask anybody. I think there is a scene in the videotape 17 they want us to play for you. And they might ask you in 18 writing, and then I will actually ask the question, about 19 something they observed during this tank pull. So that's 20 what happens at this point. 21 Usually, that reminds me of one or two 22 follow-up questions. And then we will be done. 23 THE WITNESS: Okay. 24 Q BY MR. IREY: If you know, who at the 25 landfill determines if the material dumped is hazardous 1227 1 or not? 2 A Are you speaking strictly of Amador County 3 at this point? 4 Q This is -- I haven't briefed you on it. I 5 will ask the question. You can answer it to the best of 6 your ability. Then I might have to ask a follow-up 7 question that might help bracket it a little better so 8 that it might be easier for you to answer. 9 So in this question, I have to read it how 10 it's written: If you know, who at the landfill 11 determines if a material being dumped is hazardous or 12 not? 13 A In most cases, that determination is not 14 actually made at the landfill. It's made by the 15 Department of Public Works at their office, that they 16 generally have one or two persons that are assigned to 17 the solid waste disposal in that particular domain. And 18 they make that decision based upon the analytical results 19 that are provided to 'em. 20 Q Okay. So they take the information that 21 is given to them from the generator or the generator's 22 consultant, correct? 23 A Correct. 24 Q Then they have rules and requirements 25 which they are required to meet pursuant to the Regional 1228 1 and State Water Resources Control Boards? 2 A That's correct. 3 Q So at the landfill, the landfill has 4 basically a list of what they cannot accept, correct? 5 A Correct. 6 Q And in order to make that determination on 7 whether they can or cannot accept it, they have rules 8 that have been promulgated, correct? 9 A Correct. 10 Q And then they say, if you are going to 11 bring soil here, you must do this, correct? 12 A Correct. 13 Q And then that's what the sample results 14 being brought to them would be? 15 A Correct. 16 Q But if you don't sample, then you can't 17 have any sample results? 18 A That is correct. 19 Q Have you ever had a truck turned away as 20 unacceptable from a landfill? 21 A No, I have not. 22 Q Do you provide your sample results ahead 23 of time to the place where you are going to dispose of 24 the material? 25 A I certainly do. I can't afford to run 1229 1 trucks up and down the road unless I know they are going 2 to get emptied. 3 Q At 60, 80, 100 bucks an hour? 4 A 90 bucks for hazardous waste dump truck. 5 Q So you don't spend five hours to 6 Kettleman, five hours back, if it's going to be rejected? 7 A That's correct. 8 Q You cross your T's and dot your I's 9 before -- 10 A Plus the bill of lading we ship it on, 11 bill of lading or manifest we ship it on, has approval 12 number from the disposal facility right on it before we 13 load the truck. That number is issued by the disposal 14 facility. 15 Q Do you consider David Mason Senior an 16 honorable man? 17 A I have to say yes. And I suffix that by 18 saying I have done a lot of business with the gentleman 19 over the years. He always took care of his obligations. 20 Q Did he tell you during this about the 21 money crunch he was under? 22 A Yes. 23 Q What did he say about that? 24 A He said that he was short of funds and -- 25 not necessarily relative to this project; but, as I say, 1230 1 the other project. He said that he was short of funds. 2 And could we work out a payment agreement? Which I did. 3 Q Did he tell you that his house was going 4 to get foreclosed upon if he didn't get the money for 5 this property? 6 A He did not. 7 Q What would it cost, from start to finish, 8 to remove an underground gas tank like the one at 505 9 Sutter Street? 10 A Well, as I stated, I offered a proposal to 11 do it for $5,594. 12 Q What would it -- I am going to ask the 13 question as it's written. Compared to just removing a 14 tank without any restrictions, what would the difference 15 be? 16 A I have to give you a kind of off the top 17 of the head answer to that, because I don't get involved 18 in not doing it properly, so I don't even figure it that 19 way. But I would say 50 percent, as an off-the-top 20 figure. 21 Q If the tank had exploded, besides loss of 22 life, what impact could the explosion have had on homes 23 or businesses in a one block radius? 24 A Well, that's kind of difficult to 25 determine. It certainly could have had some effect. 1231 1 Q In this scene right here, did you think 2 you saw a sheen on the water? 3 A Yes. Can you move it back one? 4 GRAND JUROR: Oh, yeah. 5 MR. IREY: I believe I can do that after two 6 weeks. 7 Mr. Tallia, I was a little weak on it 8 earlier this week. 9 THE WITNESS: Well, that's definitely hydrocarbon 10 floating on the water there. 11 Q BY MR. IREY: No doubt about it? I mean, 12 after 7,000 tanks, that's pretty much what you think? 13 A I would certainly say that it is. 14 Q Okay. Oh, I told you yesterday I would 15 yellow them that way so I was sure I asked them. 16 Here is a video question, but I don't 17 think you can answer it. So the last question -- I will 18 just go ahead and play the tape to the end, and we 19 will -- I will ask you if you could observe what is in 20 this question. 21 A Okay. 22 Q Is the equipment used in removing 23 contaminated waste required to be cleaned in a certain 24 manner? 25 A Before or after? 1232 1 Q You could answer it both ways, because I 2 can only read the question: Is the equipment used in the 3 removing of contaminated waste required to be cleaned in 4 a certain manner? 5 A Generally, it's cleaned at the end of the 6 project, washed down. 7 Q When David Mason called you to ask your 8 opinion about what he should do now that he is being 9 investigated, did you indicate that he was not the -- did 10 he indicate that he was not the initiator of this 11 project? 12 A It seems to me that he more or less did. 13 It was something to the effect that he had sold this 14 property to somebody by the name of Womack, I believe, 15 and that they had initiated what happened. 16 Q Did he tell you he was upset with Womack? 17 A Not necessari -- no, I don't think he did. 18 Q Was the property contaminated after the 19 the '88 and '91 issues? 20 A Yes. 21 Q So -- 22 A Was it contaminated after? It was 23 contaminated at the time. So that has -- the assumption 24 is that the contamination is still there because it 25 hasn't been properly remediated. 1233 1 Q So if you knew your -- if you owned a 2 piece of property -- here is a hypothetical -- and you 3 knew there was contamination, do you think that you would 4 be required to disclose that to a purchaser? 5 A It's my understanding, California real 6 estate law requires that. 7 Q Okay. So if you failed to disclose that, 8 do you think that that would be failure to disclose a 9 material defect? 10 A Yes. 11 Q Do you have any information one way or 12 the other whether Mr. Mason knew the property was 13 contaminated at 505 Sutter Street? 14 A In these files which you have, there are 15 letters between myself and the Amador County 16 Environmental Health Department so stating that. And 17 copies were sent to Dave Mason. Every time we wrote a 18 letter to the County concerning his property, he got a 19 copy. 20 Q Mr. Fourt wasn't sure of that. That's the 21 way the system works? When you send a letter to 22 Environmental Health or the City, you cc. Mr. Mason? 23 A Definitely. It's right on the bottom of 24 all the letters. 25 Q Okay. And so other than that, the 1234 1 correspondence through the mail, did you also ever have 2 an occasion to chat with Mr. Mason about his site being 3 contaminated? 4 A Yes. 5 Q So there is no doubt in your mind that Mr. 6 Mason knew the property was contaminated? 7 A That's correct. 8 Q So if Mr. Mason told George Ryan it wasn't 9 contaminated, that would be inaccurate? 10 A Well, all I can say, Dave, is that at one 11 time, Mr. Mason definitely knew it was contaminated 12 because he and I discussed it. 13 Q Have you ever seen any accident regarding 14 tanks of gas? 15 A Pardon? 16 Q Have you ever seen any accidents regarding 17 underground storage tanks? 18 A Yes. Just recently. 19 Q If yes, please tell us. 20 A Okay. Recently, I was hired by Federated 21 Insurance Company, who insure most of the oil jobbers in 22 the United States, to go down to Fremont, California, 23 make an inspection of a tank that had literally blown up 24 underground. And this was a brand-new 20,000 gallon 25 double-wall fiberglass tank, just been put in last 1235 1 November. 2 By the time I got there, they had the top 3 of the tank uncovered. It had literally exploded, for a 4 couple of different reasons. The engineer made a boo-boo 5 when he designed the system. The County made a boo-boo 6 when they approved it. And the driver filling the tank 7 made a big boo-boo that he was pumping into an 8 underground tank with high pressure pump and the tank was 9 only rated for 57 PSI. He had too much product to fill 10 the tank. And one of these boo-boos that everybody else 11 made is what we call float vent valve that came up 12 closed. There is nowhere for the air or diesel he was 13 pumping into the tank to go. Kept building pressure 14 inside the tank. Pump he was using was capable of 80 15 PSI. We don't know what pressure let go, but literally 16 exploded that tank underground. 17 Q Okay. How did you know that he -- and I 18 am going to insert "Mason" -- was the owner of the tank? 19 A Because I had done several jobs for him at 20 the property and he owned the property. He hired me to 21 put the tank in. 22 Q He is the one that paid you when you did 23 the work? 24 A Yes. 25 Q Do you happen to remember if it was David 1236 1 Mason who paid you? Or Mason Family Trust who paid you? 2 Or Mason Oil? 3 A Mason Oil Company. 4 Q That's what you remember? 5 A Yes. 6 Q Did Mr. Womack call you or your businesses 7 to find out how much it would cost to do the job? 8 A I have never had a conversation or met Mr. 9 Womack. 10 MR. IREY: Any other questions? 11 Q At this time, do you think, based on your 12 training and experience, that 505 Sutter Street is a safe 13 site to use as a parking lot? 14 A I'm not qualified to answer that at this 15 point because I have no soil and/or water samples in 16 front of me to make that determination with. It could be 17 very hazardous. It could be -- could be nil. I have no 18 information. 19 Q Because there is a sequence that you need 20 to do in order to make a determination such as that; is 21 that correct? 22 A Most definitely. 23 Q And that's just that site, 505 Sutter. If 24 the plume has migrated off site, there could be other 25 issues downstream or on adjacent properties? 1237 1 A Definitely could be affecting groundwater 2 or somebody's well. 3 Q If this property moved -- if this plume -- 4 hypothetically, if there is gasoline constituents there 5 and the plume moves 120 feet due south, then the adjacent 6 property owner's property has been devalued, correct? 7 A Yes. 8 Q So until you determine the vertical and 9 horizontal extent of the contamination, you are unable to 10 make a determination whether any remediation is 11 necessary, correct? 12 A Correct. 13 Q Or substantial remediation is necessary? 14 A Right. And in this case, there is 15 definitely groundwater involved. The first requirement 16 is to drill at least three drillings to determine the 17 groundwater gradient. 18 Q That's something you told David Mason 19 years ago? 20 A I am sure. 21 Q But you didn't install any wells? 22 A No. 23 Q Should the water that was in the hole be 24 taken to the landfill in Ione? 25 A I cannot make that determination here. I 1238 1 have seen no sample results on that water. 2 Q If you know, what percentage reading is 3 waste to be taken to a waste dump other than Ione? 4 A Would you clarify that a little bit, 5 please. 6 Q Ask a different question. 7 Do you know if Ione is a Class 2 landfill? 8 A It was at one time. I am not sure that it 9 still is. 10 Q And as a Class 2 landfill, it could in the 11 past or if it currently exists -- I think Mr. Fourt could 12 answer that -- it can take some types of contaminated 13 soil? 14 A If it was designated as Class 2, yes. 15 Q And that's designated Class 2 waste, 16 correct? 17 A Correct. 18 Q That's usually hydrocarbon contaminated 19 soil? 20 A Correct. 21 Q And at certain levels, a landfill can take 22 it? 23 A Correct. That level is established on 24 their permit by the -- I believe California Solid Waste 25 Board. 1239 1 Q Okay. What about liquid waste? I am not 2 familiar with Class 2 landfills taking liquid waste. 3 A Generally, liquid waste doesn't go to 4 ordinary Class 2 landfills. Normally, liquid waste goes 5 to a recycler. 6 Q Who pulls the hydrocarbons out of the 7 water? 8 A Out of the water and generally makes a 9 usable product of one form or the other out of the 10 hydrocarbons. Either that or burns them off. 11 Q Then is allowed to dispose of the waste 12 water that has had the hydrocarbons pulled out of it at, 13 usually, a city sewer plant? 14 A Sometimes city sewer plant. In one case, 15 it goes out and irrigates orchards. 16 MR. IREY: Okay. Any other questions of any of 17 the Grand Jurors? 18 Q The video question is: Just as the -- 19 oh, do you know whether or not the pit was filled with 20 water when you were at dinner on Sunday night after the 21 tank -- 22 A I didn't go to the job site on Sunday 23 night. 24 Q Okay. Do you know whether or not there 25 was high groundwater at that site? 1240 1 A I do. 2 Q And was there? 3 A Yes. 4 Q So if Mr. Womack told everybody it was 5 just rain water in that hole, that might be inconsistent 6 with your knowledge of that site? 7 A That's correct. 8 Q Because when you worked on there in '88 9 and '91, there was high groundwater? 10 A Yes. Also, the State Regional Water 11 Quality Control Board has taken the position any water in 12 a hole is groundwater. 13 Q Just to start. 14 A Right. 15 Q Because once it's infiltrated the ground, 16 it becomes groundwater? 17 A Right. 18 Q Because it's in contact and it can move 19 with the groundwater? 20 A It will eventually become part of the 21 groundwater, is what their concern is. 22 Q Is it more difficult to pull underground 23 storage tanks in the rainstorm than when it's dry? Or 24 does it make much difference? 25 A I wouldn't say it's any more difficult. 1241 1 We do it all the time. Just put a raincoat on. Be a 2 little more careful with your personnel. 3 MR. IREY: Any other questions? 4 Q How many employees do you have? 5 A Present time, 14. 6 Q How many of those are 40-hour trained? 7 A Yep. 8 Q All? 9 A Well, one of those is an office person 10 that is not 40-hour trained. 11 Q After you received your subpoena, did you 12 have any contact with David Mason or Robert Womack? 13 A I have not. 14 Q So for $5,500, none of this would have had 15 to have happened. Is that your understanding? 16 A That is correct. Well, for -- if I were 17 doing the job for $5,594, none of this would have 18 happened. 19 Q As you observed the water had hydrocarbons 20 on it, how should you have removed it and where should it 21 go? 22 A In our case, we would remove as much as we 23 could with a vacuum truck, sucking it off the surface of 24 the water. It would go to a licensed hazardous waste 25 disposal site. 1242 1 Q After you tested it? Or would you just 2 automatically, for expedience -- 3 A In the case of liquids and the companies 4 that we deal with, they will take it without an analysis, 5 because there is also a law saying, once it's in that 6 truck, it can only stay in that truck -- I believe it's 7 66 hours, you have to get it out of that truck. 8 So liquids they will take without the 9 analysis. They run a check on 'em at their gate to make 10 sure that you are not shipping 'em the stuff they use in 11 transformers. 12 Q PCBs? 13 A PCBs and antifreeze. 14 Q Okay. But you still have to take a sample 15 before it goes? 16 A Oh, yes, definitely. 17 Q So the person who is the owner of the 18 underground storage tank and potentially responsible 19 party who contaminated the waste water, they pay for you 20 to have a sampler out there. The sampler takes it to 21 certified lab. Certified lab runs a sample, sends you 22 the results. 23 And you forward them both to the disposal 24 facility and to the owner of the property? 25 A In the case of liquids, we don't end up 1243 1 sending them -- don't send one to the disposal facility. 2 We send it to the county and to the property owner or 3 whoever hires to us remove the tank. 4 Q Each time? 5 A Pardon? 6 Q Each time? 7 A Each time. 8 MR. IREY: Any other questions? There we go. 9 Q Do you believe there are too many laws in 10 removing underground storage tanks? 11 A That's a two-sided sword. Certainly, the 12 number of laws could be consolidated into a smaller 13 number of laws. But as far as the requirements for 14 removing underground storage tanks, I certainly don't 15 feel that they are too stringent. A tank full of 16 gasoline vapor is much more dangerous than a couple cases 17 of dynamite. 18 Q This is what they always tell prosecution 19 not to ask my nor more questions. Since this is a Grand 20 Juror's question, I might get in more trouble. 21 In the video, when a piece of underground 22 storage tank pipe falls into the hole, does this appear 23 to be an accident or deliberate? I don't know if you -- 24 A I saw that. And I am not sure it was a 25 piece of pipe or, was it his wrench? The first thing I 1244 1 thought, it kind of looked to me like he was swinging a 2 wrench and it fell into the hole. But it appeared to be 3 a careless accident, rather than deliberate. 4 MR. IREY: Okay. Mr. Tallia, thank you for your 5 afternoon. 6 At this point, the Grand Jury Foreman will 7 have what's called an admonition for you. Or did we 8 already read that? 9 THE FOREPERSON: No, we didn't. 10 MR. IREY: After that, the Grand Jury Foreman 11 won't have an admonition with you guys. We will be done 12 for the afternoon. Or not. 13 THE FOREPERSON: We decided I would admonish them 14 at the very end of the day. We try to limit the ones in 15 the middle. 16 Mr. Tallia, you are admonished not to 17 reveal to any person except as directed by the Court what 18 questions were asked or what responses were given or any 19 other matters concerning the nature or subject of the 20 Grand Jury's investigation that you learned during your 21 appearance before the Grand Jury. 22 This admonition continues unless and until 23 such time as a transcript of this Grand Jury proceeding 24 is made public. Violation of this admonition is 25 punishable as contempt of court. 1245 1 This does not prevent you from discussing 2 the matter with your attorney if you have an attorney 3 advising you with respect to your appearance before the 4 Grand Jury. 5 Sir, if I could get you to date and sign 6 the admonition I just read to you. 7 THE WITNESS: 17th today? 8 THE FOREPERSON: Yes, it is. Thank you very 9 much. You are free to go. 10 THE WITNESS: Okay. Thank you. These are yours, 11 I guess, right? 12 MR. IREY: The originals are the Grand Jury's. 13 And I believe this to be a true and correct copy, Mr. 14 Tallia. 15 THE WITNESS: The two that you handed me in 16 plastic are yours, right? 17 MR. IREY: That's definitely ours. And I will 18 keep that and give you these. 19 THE WITNESS: Okay. Thank you. 20 You going to keep all that, that is 21 everything here? 22 MR. IREY: That's supposed to be everything. 23 THE WITNESS: How about the pockets? Can I keep 24 the pockets? Keep 'em. I can get new ones. 25 MR. IREY: Thank you. 1246 1 THE WITNESS: These -- you want the originals, in 2 other words. Okay. 3 MR. IREY: But we marked the box. We can keep 4 the box and give you half the box. You want to keep the 5 whole box? 6 THE WITNESS: That isn't going to work. You are 7 going to have to keep the whole box. The guy drives a 8 hard bargain. 9 MR. IREY: Thank you. 10 THE WITNESS: Thank you, Dave. 11 MR. IREY: Mr. Foreman -- 12 THE FOREPERSON: Yes. 13 MR. IREY: -- and Grand Jurors, I know I told you 14 there aren't any witnesses. There aren't any waiting. 15 But Mr. Carstensen said, if we gave him five minutes, he 16 might be able to be here. Tomorrow is a really packed 17 day. If we are trying to finish this week, we might want 18 to squeeze one more witness in. 19 Is that something that -- either way. 20 GRAND JUROR: I need to ask if somebody needs to 21 be recalled -- are you supposed to step out at this 22 time? 23 MR. IREY: I could do that. 24 GRAND JUROR: Are you supposed to leave? 25 GRAND JUROR: Is he going to be a witness that 1247 1 would be a lot of questions and it would go beyond five? 2 If so, would he come back tomorrow? 3 MR. IREY: We absolutely can stop at 5:00. If he 4 answers in a narrative form, he should be able to finish 5 easily before 5:00. If it's like pulling teeth, I don't 6 know. 7 GRAND JUROR: But can he come back tomorrow if we 8 don't finish? 9 MR. IREY: I did not ask him that. But if the 10 Grand Jury -- he is under subpoena, so he has to come 11 back. The answer is, yes, he can come back. He is not 12 on the list of people who told us -- we had people here 13 that were going to have knee surgery and people that had 14 vacations. He wasn't on the list of people that were 15 going to be out of town on Wednesday, the 18th of May -- 16 November. Got a lot done in three weeks, huh? 17 So it's up to the Foreman and Grand 18 Jurors. Do we want to try? 19 GRAND JUROR: Yes. 20 THE FOREPERSON: Go for it. 21 MR. IREY: You guys will have a conversation 22 while I contact... 23 (Whereupon, pages 1248-1256 were reported and transcribed, but are under separate 24 confidential cover.) 25 1257 1 (Whereupon, the following proceedings were held in the presence of the Deputy 2 District Attorney:) 3 MR. IREY: Would you like to start? 4 THE FOREPERSON: We were waiting for Jan to give 5 me the go. 6 And who do we have here, Dave? 7 MR. IREY: John Carstensen. Is that how you 8 pronounce your name? 9 THE WITNESS: That's right. 10 THE FOREPERSON: Mr. Carstensen, if you could 11 stand and raise your right hand. 12 You do solemnly swear that the evidence 13 you shall give in this investigation now pending before 14 this Grand Jury shall be the truth, the whole truth and 15 nothing but the truth, so help you God. 16 THE WITNESS: I do. 17 THE FOREPERSON: Thank you very much. You may be 18 seated. 19 (TIME NOTED: 4:35 P.M.) 20 ---oOo--- 21 JOHN CARSTENSEN 22 Called as a witness herein by the People, 23 having been duly sworn to tell the truth, was examined 24 and testified as follows: 25 1258 1 EXAMINATION 2 BY MR. IREY: 3 Q Mr. Carstensen, how do you spell your 4 last name, for the reporter? 5 A It's C-A-R-S-T-E-N-S-E-N. Carstensen. 6 Q And are you a business owner in this 7 community? 8 A Yes, sir, I am. 9 Q And what business do you own? 10 A I own Alaska Engineering. 11 Q Recently, you ran for elected office, 12 correct? 13 A Yes, sir, I did. 14 Q That would have been the City of? 15 A Sutter Creek. 16 Q So you must be a resident of Sutter Creek 17 and businessman in Jackson? 18 A Yes, sir. 19 Q Mr. Carstensen, do you know why you 20 received a subpoena? 21 A No, sir. 22 Q Do you know Mr. Robert Womack? 23 A Yes, sir. 24 Q Do you know Mr. David Mason? 25 A Yes, sir. 1259 1 Q Have you chatted with Mr. Womack this 2 week? 3 A No, sir, not this week, but I did last 4 week. 5 Q What about? 6 A Mmmm... Hang on. It was in regards to 7 the retaining walls at the property that's in question. 8 Q Okay. How long have you known Mr. Robert 9 Womack? 10 A Whew. Really not sure. Say, 20 years. 11 Q Prior to him moving to Sutter Creek? 12 A Uh, I only knew -- I knew of him, but I 13 really didn't know him that well. 14 Q How did you know of him? 15 A Well, I was with Operating Engineers. I 16 was an Operating Engineers, and his brother was a 17 surveyor in Operating Engineers. And so I knew him 18 through his brother. 19 Q Okay. And what was his vocation at that 20 time, if you remember? 21 A I don't know. His brother was a 22 surveyor. I don't remember what Bob's was. 23 Q Okay. And how much engineering work have 24 you done for Bob Womack? 25 A Mmmm... I done a retaining wall at this 1260 1 particular dentist's office. There is a -- they had an 2 office there. And they wanted a carport, and so I did 3 the retaining wall for the carport. 4 Q Okay. Other than that, have you done any 5 other engineering work for Mr. Womack? 6 A Probably off and on, yeah. 7 Q Regarding 505 Sutter Street -- are you 8 familiar with that address? 9 A Yes, sir, I am. 10 Q When was the first time Mr. Womack 11 contacted you regarding purchasing that site? 12 A I don't think he ever did. 13 Q When was the first time he contacted you 14 about planning some type of parking office structure 15 there? 16 A Oh, February? Of this year? 17 Q You are sure? Okay. 18 A I am guessing. 19 Q This is Grand Jury Exhibit 41. The grey 20 masonry retaining wall -- is that the wall you discussed? 21 A No. The one I built is this one up here. 22 Q Black felt pen. Okay. 23 Mr. Carstensen, if you could just circle 24 the retaining wall and put your initials. So it is the 25 one closer to the dental office? 1261 1 A Let me just put it this way. 2 Q Okay. Thank you. So it's not the one 3 directly behind the excavator in 41. It's the one up to 4 the right toward the dental office? 5 A That is correct. 6 Q Okay. Thank you. So February this year, 7 Bob Womack contacts you and says, John, I would like to 8 do what? 9 A Mmmm... He says that he is -- I really 10 don't know, to be honest with you. I figure, if you 11 really want words, I don't know. All I know is that he 12 did contact me. He asked me to -- that he was going 13 to -- well, in effect, he was going to own this place, 14 and that he wanted a parking structure on the same level 15 as the top level. 16 So, yeah, he wanted to park cars on what I 17 would call a second level. 18 Q And he wanted you to design a building, 19 parking structure building, on top of it? 20 A Well, actually, the building on top of it 21 didn't come out until the -- until the Saturday and 22 Sunday that I was standing there while he was removing 23 this stuff. And talking to him, I said, Bob, really, you 24 ought to think about putting another office on top, 25 because this is commercial space. 1262 1 Q If you are going to pay X for a space, 2 you might -- 3 A Well, so much per square foot is the 4 value. And it doesn't cost that much more. If you have 5 got a footing to support a parking garage, it doesn't 6 cost that much more to put a one-story structure on top 7 of that parking garage. 8 Q So first three months, February, March, 9 April? 10 A Sometime in that area. I am not quite 11 sure, to be honest with you. But it was prior -- prior 12 to him taking the thing out. 13 Q Did you actually draft up drawings for 14 him? 15 A No. I was told that I wasn't supposed to 16 start any work until after title had passed. 17 Q Okay. And so Bob said he was buying the 18 gas station? 19 A Yes. 20 Q And he didn't say KRL was buying the gas 21 station? 22 A I really understood that his son was 23 buying the gas station. Mr. Roland Womack. 24 Q You understand that now? Or you 25 understood that initially? 1263 1 A Probably now. 2 Q Okay. So initially, he contacts you. He 3 tells you he is going to buy the station from Dave 4 Mason. 5 Does he tell you how much he is going to 6 pay for it? 7 A No. 8 Q He just says, After I get the station and 9 demo the station? 10 A No. He didn't even say that. He says 11 when title passes. 12 Q Okay. So how many conversations did you 13 have before the demo actually occurred? 14 A Well, actually, the big conversation was 15 while I was standing -- I was standing on the second 16 layer. And, you know, my office is in Jackson. 17 I go to Sutter Creek. I see him there. I 18 swing up and talk to him. And he had actually talked to 19 me -- actually, what we were talking about was buying 20 steel beams to support the floor of the parking lot. 21 Q And that was on Saturday? 22 A Now, here again, I don't know whether it's 23 Saturday or Sunday. I just know that I had two 24 conversations with him, one on Saturday and one on 25 Sunday. 1264 1 Q Okay. 2 A And I don't really remember which day. 3 Q What time of day were you there on 4 Saturday? 5 A I can't remember that. I -- both cases, I 6 think it was when I was going home from work. And so 7 normally, I stay and get the mail until about noon. So I 8 am thinking, 1:00. 9 Q So the building was down, but the tank 10 wasn't out of the ground? 11 A Yes. 12 Q On Saturday? 13 A And I don't know about where the tank 14 was. I am sure the building was down, yeah. 15 Q Before that Saturday, hypothetically, Mr. 16 Womack came to the County Environmental Health and was 17 told how to close an underground storage tank in place. 18 Are you familiar with the fact that Mr. 19 Womack came to the County? 20 A No. 21 Q And talked about closing a tank in place? 22 A No. 23 Q At any time did Mr. Womack come to you and 24 say, It's double-walled tank. I want to close it in 25 place. Can we just build over it? 1265 1 A No, that wasn't our conversation. 2 Q No time did you talk about the gas tanks? 3 A We talked about 'em a lot afterward, when 4 they were taken over to Richmond and demolished, you 5 know. Here is a perfectly good tank and it's totally 6 demolished. 7 Q Yeah. 8 A You know, I mean, there is a lot of 9 conversations then about a 3,000, $4,000 tank being 10 destroyed. 11 Q Before that, though? 12 A No. 13 Q Somehow Mr. Womack changed his mind from 14 closing the tank in place to removing the tank? 15 A I don't know anything about that. 16 Q One of the reasons he stated to the Land 17 Use Committee was because he later learned you couldn't 18 close a double-wall tank in place. 19 That sounds like something an engineer 20 might have told him? 21 A No, no. My conversations strictly had to 22 do with the new building. 23 Q You talk about contamination at the site 24 at all? 25 A No, huh-uh. 1266 1 Q Okay. Then you are on site that day. You 2 don't remember when, but probably noon to one-ish? 3 A I am guessing, because I was on my way 4 home. 5 Q The building was already down? 6 A Yeah. 7 Q You don't remember anything about the 8 tank? 9 A No. 10 Q Just talking about buying steel beams to 11 support the structure? 12 A Yeah, that's what the conversation was 13 about. 14 Q Did you talk about the footing that would 15 be required and -- 16 A No. 17 Q Did you talk about, if you were building 18 an office building, how much you needed to overexcavate 19 the site to get down -- 20 A No, no. 21 Q Don't you need to have pea gravel down 22 before you pour the pad? 23 A Oh, definitely. 24 Q You didn't discuss how deep he had to go 25 with getting rid of the soil? 1267 1 A No. 2 Q About how long were you there? 3 A I am guessing 30 minutes, 45 minutes. 4 Q Just you and him chatting? Or other 5 people present? 6 A Just two of us up on top. 7 Q Was his wife sitting across the street in 8 the car? 9 A I don't know. I understood she took 10 videos. She might have a video of me standing there. 11 Q Okay. And then either that day or the 12 next day -- then the next day, you came to the site also? 13 A Yeah, because I worked both days. I mean, 14 I have flexible hours. 15 Q Was there a big tank pit where the tank 16 used to be? 17 A No. Full of water. 18 Q Full of water? 19 A Yeah. I mean, it was totally full. There 20 wasn't any oil slick in it or anything. It was just full 21 of water. 22 Q So you remember that? 23 A Yeah, because I don't know whether he is 24 pulling my leg or what he was doing. He said, Look, 25 John. There is no oil slick. 1268 1 Q So he brought that up? 2 A Yeah. 3 Q Did he tell you -- 4 A I mean -- 5 Q Did he tell you he took all the water out 6 of the hole the day before and dumped it on the ground? 7 A No. We were standing there mainly 8 discussing the new building. And the tank -- and the 9 hole was there. And the hole was full of water. It had 10 rained. And I remember him saying that: Look, John. 11 There's no oil slick. Yeah, that's interesting. It 12 didn't occur to me one way or the other. 13 Q Did he tell you about the tank pit, how 14 the tank came out, what he did with the tank, stuff like 15 that? 16 A No. 17 Q Didn't talk about anything other than, 18 Look, there is no oil slick? 19 A Yeah, that was just a passing remark. 20 Q Okay. But there was actually a hole 21 filled with water? 22 A Yeah. Well, I don't know whether there 23 was a hole or not. All I know is, there was a pond of 24 water there, you know. All I saw was the top of the 25 water. 1269 1 Q A lot of safety cones up and around the 2 hole? 3 A I don't even remember that, to be honest 4 with you. 5 Q Okay. So you remember no oil slick, but 6 you don't remember whether there were safety cones? 7 A That's right. I don't. 8 Q Okay. As an engineer, a civil engineer, 9 should there be -- if there was a pit there full of 10 water, should there be some type of safety precautions 11 being taken? 12 A Yes, there should be. 13 Q What should those be? 14 A Could be -- you are talking about a hole 15 that's full of water. Boy, if it were me, I mean, I 16 would have the dug-out thing very well barricaded. 17 Q Did you mention that to Bob that day? 18 A No. The emphasis was definitely on -- 19 see, he hadn't even thought of the third story. And so I 20 mean, that's where my emphasis was. And my emphasis was 21 that it's just as easy to put on a third story, because 22 you have the foundation for the parking garage, you have 23 everything coming up. And even the discussion was, it 24 could be six stories high. 25 Q Because of the zoning? 1270 1 A Because of the zoning, yeah. 2 Q Okay. So you didn't talk about the tank, 3 but you did talk about the way the top of the water 4 looked? 5 A Yeah. 6 Q You did talk about the three-story 7 building? 8 A Right. 9 Q But you didn't talk about the safety 10 procedures? 11 A No. 12 Q Did you talk about how he had tweaked the 13 retaining wall? 14 A No. I don't know. What do you mean by 15 "tweaked the retaining wall"? 16 Q I don't know. Removed the retaining wall 17 without talking to anybody first. That came up months 18 later. 19 A Did it -- 20 Q You wrote a letter. 21 A I wrote the letter, I think, last week. 22 Q But, I mean, it came up in November; not 23 in May. 24 A Oh, yeah. Just -- actually, he actually 25 showed me a picture of the old retaining wall, which had 1271 1 nothing do with the foundation of the retaining wall that 2 is there now. It was -- it was out from the retaining 3 wall. It wasn't retaining. 4 Q Stepped? 5 A Yeah. Stepped, yeah. And there is a 6 picture of that. 7 Q So that was all the discussions you had 8 regarding the underground storage tank as of May 3rd? 9 A Yes, sir. 10 Q In April when he was going to buy the gas 11 station, did you talk about he had to remove the tanks? 12 A No. In fact, to tell you the truth, the 13 tanks on the book store here on Water Street, I stood 14 there and watched -- watched them do that, you know. 15 It's just another tank -- you know, tank removal, 16 construction, you know. I don't have much concern with 17 tank removals. 18 I mean, I had concern there because behind 19 the book store, he was worried about being closed and out 20 of business and things like that, you know. And so, you 21 know, there is passing observations, yeah, there is a 22 hole in the ground. Yeah, it's -- they were able to take 23 the tank out and fill the hole and concrete it in five 24 days, you know. 25 Q If you did it legally, you could get it 1272 1 all done in five days with a permit? Is that what I just 2 heard you say? 3 A I don't know. You didn't hear me say that 4 at all. 5 Q Did they have a permit? 6 A All I said is, it took five days to take 7 that tank out and cover it with concrete, in my 8 recollection. It could have been seven or eight days. I 9 don't remember. 10 Q Okay. So then after the tank came out, 11 you had conversations Mr. Womack regarding the tank, you 12 said? 13 A No, no. I don't even remember saying 14 that. 15 Q I thought you said you had lots of 16 conversations Mr. Womack of how this whole thing was 17 handled. 18 A Oh, you mean -- you mean after it hit the 19 paper? 20 Q I don't know whether it was before or 21 after it hit the paper. It seemed like it was months 22 before it hit the paper. 23 A Oh, no, no, no. No, no, no. I don't know 24 the exact time level. 25 Was the tank taken out three weeks ago? 1273 1 Q May 2nd. 2 A Oh, in May. Oh, okay. So yeah, it would 3 be sometime after May 2nd. 4 Q Okay. What were those conversations? 5 Just generally. 6 A There really wasn't too many conversations 7 that I can remember. I just -- I can't really remember 8 any specific conversation on that. Whew. I just don't 9 remember. 10 Q Okay. Did he tell you he didn't know 11 where the tank went? 12 A No. 13 Q Did he tell you that he hauled the tank? 14 A No. 15 Q Did he tell you that it was on Sherrill's 16 truck? 17 A No. 18 Q So you had several conversations with Bob 19 Womack regarding how this whole thing was being done, 20 correct? 21 A The only thing that I can remember, he was 22 very insistent about it, that he had a permit for all of 23 this. I can just remember him telling me that. 24 Q Time and time again? Did he ever show you 25 the permit, like he did everybody else? 1274 1 A Mmmm... I saw the permit last week. 2 Q Last week? 3 A Yeah. 4 Q You guys sat down at a table, and he was 5 showing you his deck of cards. And one of the things was 6 a permit? 7 A Well, no, it wasn't. It was -- it was on 8 a -- in Main Street, on the corner of Main and Gopher 9 Flat Road. He was in a parking lot. He said, Here, 10 John. Let me show you. 11 Q What did it say? 12 A It says, you know, with the City. And it 13 said that -- he was complaining because -- his complaint 14 was, it was the same permit signed by the same person in 15 the City that was signed ten years ago when Mason removed 16 the first tank. It was signed by Rouse. 17 Q You saw the signature was Gary Rouse? 18 A Yeah. 19 Q Okay. Did it say demolition of building? 20 Or did it say removal of underground storage tanks? 21 A It said only demolition of building. 22 Q Did you say, Bob, this is only for the 23 demolition of the building. You need another permit for 24 the tank. 25 A No, I didn't tell him that. Why should 1275 1 I? That's not my business. My business is civil 2 engineering. 3 Q Okay. So, as a civil engineer, do you 4 know there are requirements regarding removal of 5 underground storage tanks? 6 A I sure do now. 7 Q Did you know before? 8 A No. 9 Q Really? 10 A No, I didn't. 11 Q So how long has that law been around? 12 '74? 13 A Probably. 14 Q '84 for all of the rules? 15 A Yeah. 16 Q But Clean Water Act, Clean Air Act, '70, 17 '72. Almost thirty years. 18 A Yeah. 19 Q Almost 30 years since Government decided 20 we don't want gasoline in the groundwater. 21 A Well, we are talking about what happened 22 at the Shell Oil Station when we removed the tanks. 23 Q What happened there? 24 A All I know, they finally threw the dirt on 25 the ground and they put some bacteria on it or 1276 1 something. And it ate the oil. Except that it rained 2 and all the stuff went in the creek. 3 Q Therefore it was bugs, plus oil, instead 4 of just oil, huh? 5 A Yeah. 6 Q So he showed you that permit. Did he show 7 you any other paperwork just last week? 8 A Not that I remember. I just -- 9 Q Did you tell him you had been subpoenaed? 10 A Yeah. 11 Q Did he tell you to tell the truth? 12 A Yeah. 13 Q Really? You are the only guy. 14 A Well... 15 Q Strike that. I apologize. 16 A All right. Actually, to be very honest, I 17 presume he did not say, John, I want you to be sure to 18 tell the truth. I am sure he did not say that. 19 Q Did he say, if they don't ask, don't 20 answer? 21 A No. No. He -- no. My conversation -- my 22 work with him isn't like that. You know, I don't tell 23 him what to do and he doesn't tell me what to do. 24 MR. IREY: Okay. I have no further questions of 25 Mr. Carstensen. If any Members of the Grand Jury have a 1277 1 question? 2 At this time, Mr. Carstensen, I read them 3 into the record and you answer them just as if I had 4 asked them. 5 THE WITNESS: Sure. 6 MR. IREY: Thanks. 7 Q Did you know they removed the retaining 8 wall required by the City for structural integrity on the 9 back wall? For the back wall? 10 A Okay. You want to read that question one 11 more time. 12 Q Sure. Did you know they removed the 13 retaining wall required by the City for structural 14 integrity of wall in back? In May. Maybe that helps. 15 A Uh... Are we talking about the little 16 wall that was in front of the other wall? 17 Q I think so. I will point to the wall I 18 think they are discussing. 19 In Grand jury Exhibit No. 41, the wall 20 adjacent to Mr. Womack's right leg. Did you know that 21 that wall was removed back in May? 22 A No, huh-uh. 23 Q You didn't learn that until the City 24 brought you the -- 25 A I didn't know until now, today, right now. 1278 1 Q Okay. 2 A I might add -- I might add that it hurts 3 the structural integrity of that particular wall, but 4 it's not a danger. I mean, in other words, you need -- 5 you need a -- with allowing something to happen there, 6 you know, another wall to be built. I am to be retained 7 to put in a wall right alongside that, right along 8 there. I have actually written a letter saying that, 9 right now, that what's there will not endanger life and 10 limb. I strongly believe that. 11 Q And you will look at it again in April. 12 The goal would be, you would have to remove that wall 13 anyway to put the new wall in for the new structure? 14 A I am not sure. Or one right beside it. 15 You can design a wall with a straight back side and an 16 enormous footing in front with a lot of reinforcing 17 steel. So there is a possibility of leaving that wall 18 exactly like it is and building another one up tight 19 against it. 20 Q Okay. Do you remember if there was a 21 fence around the site? 22 A No, I do not remember. 23 Q What rumors have you heard about the 24 removal of the underground tanks -- 25 A Oh. 1279 1 Q -- comma, other than the newspaper and 2 Robert Womack? 3 A Well, the only rumor that I know of was 4 that 2,400 gallon tank, as I understand it -- it's 5 strictly rumor. Is that it was taken to some farm place 6 in Stockton and was going to be used for chemicals for 7 Stockton. 8 Q Other than Womack? 9 A That probably was Womack, if you really 10 want to know the truth of it. 11 Q Okay. If you were going to build a new 12 structure, would it be your responsibility to make sure 13 that there was no contamination left? 14 A I'd say no. 15 Actually, let me explain this. The deal 16 is that I am not even to start work until the deed is 17 transferred. And one of the things it says in the title 18 insurance was that the soil would be inspected and passed 19 before escrow closed. Now, this is what I am told by 20 Womack. 21 Q So you haven't seen that contract? 22 A No, I haven't seen it. 23 Q So you won't start until the deed is 24 transferred? 25 A That's right. 1280 1 Q Or would you build it anyway, with the 2 knowledge of that there was a gas station previously at 3 this location? 4 A I would -- I wouldn't build it anyway. I 5 would make darned sure what's going on, that there would 6 be an EPA clearance. You just don't do something without 7 EPA clearance. 8 Q A so-called clean letter? 9 A Yeah, yeah. 10 Q If you have seen the -- if you have seen 11 the wall at 505 after the removal of the gas station, do 12 you believe the wall is sound? 13 A The answer is yes. This has to do with 14 life and limb. It has to do with, is anybody going to 15 get hurt? The answer is, no, nobody is going to get 16 hurt. Can that wall possibly fall down in the middle of 17 the night? Possibly. I mean, it's possible. But there 18 is no danger to life and limb. 19 And be very honest with you, I go by it. 20 I inspected it this morning. I got on -- I parked 21 there. I got out of my car. I walked the wall. I got 22 around upstairs and I walked the upstairs. I will 23 probably be doing that at least every other week. 24 Q Were you told what to say to the Grand 25 Jury? 1281 1 A No, not at all. 2 Q You were at the scene of 505 Sutter for 45 3 minutes. What did you really talk about? 4 A We talked about the parking garage and the 5 building upstairs. He really -- he had no idea about 6 building upstairs. And so I told him, you know, it's 7 cheap. It's inexpensive because of all the structural -- 8 you have to -- see, when you are building a wall, it's 9 got to be made out of concrete, and you need a lot of 10 concrete and everything. So just to put a simple little 11 store on top of it would -- 40 pounds per square foot is 12 no -- in fact, to tell you the truth, the weight on the 13 stem of the wall actually keeps it from slipping. It 14 actually helps. It helps the integrity of the wall. 15 Q As being a public official, do you believe 16 a tank removal should be done in the manner it was as a 17 matter of public safety? 18 A Whew. Well, I don't know how to answer 19 that one. I don't think it was -- tanks are removed all 20 the time. And I think that -- I do -- I have worked with 21 Wolin for a long time. And they are quality people. And 22 there is no danger of what they were doing. I mean, like 23 I said, I was around -- well, I was -- when the theater 24 burned down, I watched them take that tank out. I didn't 25 see any danger, you know. 1282 1 MR. IREY: Okay. I have no further questions of 2 this witness. Any Member of the Grand Jury has any 3 additional questions? At this point, Mr. Carstensen, 4 thanks for coming over on such short notice. 5 The Grand Jury Foreman has what's called 6 an admonition for you. 7 THE WITNESS: All right. 8 THE FOREPERSON: You are admonished not to 9 reveal to any person except as directed by the Court what 10 questions were asked or what responses were given or any 11 other matters concerning the nature or subject of the 12 Grand Jury's investigation that you learned during your 13 appearance before the Grand Jury. 14 This admonition continues unless and until 15 such time as the transcript of this Grand Jury's 16 proceeding is made public. Violation of this admonition 17 is punishable as contempt of court. 18 This does not prevent you from discussing 19 the matter with your attorney if you have an attorney 20 advising you with respect to your appearance before the 21 Grand Jury. 22 And I need you to sign and date that I 23 read you that admonition, please. The 17th, sir. 24 Thank you very much. 25 MR. IREY: Thank you, Mr. Carstensen. Sorry 1283 1 about the wait this morning. We are going as fast as we 2 can. 3 THE WITNESS: That's okay. I really 4 appreciate -- I got a lot of work done in my office 5 today. Thank you. Thank you very much. 6 THE FOREPERSON: I will read this as quickly as 7 I can because I know people are in a hurry. 8 The Grand Jurors are admonished they are 9 not to form or express any opinions about this case or 10 discuss it among themselves until the Grand Jury receives 11 the case for deliberation. In addition, no inspection of 12 evidence should be conducted without the permission of 13 the Foreperson and on the advice of the prosecution 14 attorney. 15 A violation of this rule could result in a 16 charge of contempt against a Grand Juror who would 17 investigate or view any matters with regard to this case 18 without the entire body of the Grand Jury. 19 And we stand adjourned until 9:30 a.m. 20 tomorrow, Wednesday, the 18th. 21 (Whereupon, the proceedings recessed at 5:07 p.m.) 22 23 ---oOo--- 24 25 1284 1 REPORTER'S CERTIFICATE 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF TUOLUMNE ) 5 6 I, JAN L. BENEDETTI, CSR, hereby certify that I 7 was duly appointed and qualified to take the foregoing 8 matter; 9 That acting as such reporter, I took down in 10 stenotype notes the testimony given and proceedings 11 had; 12 That I thereafter transcribed said shorthand 13 notes into typewritten longhand, the above and 14 foregoing pages being a full, true and correct 15 transcription of the testimony given and proceedings 16 had. 17 18 19 20 21 22 _____________________________ 23 JAN BENEDETTI-WEISBERG 24 25