Free Declaration - District Court of Delaware - Delaware

Case 1 :88-cv-00263-SLR Document 322 Filed 10/26/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DiSTRiCT OF DELAWARE
NATURAL RESOURCES DEFENSE COUNCTL, INC. )
)
and DELAWARE AUDUBON SOCIETY, )
)
Plaintiffs, ) Civil Action No.
) 88-263-SLR
v. )
l
TEXACO REEINING AND l\/iARi<`ETI`NG, l`NC. )
)
Defendant. )
SUPPLEMENTAL DECLARATEON OF MR. MICHAEL H. SALAZAR
I, MICHAEL H., SALAZAR, hereby declare the following:
l. i respectfully submit this supplemental declaration in response to the declaration
of Dr. Robert Livingston ("Livingston Reply Dec.") proffered by plaintiff NRDC in
opposition to defendanfs motion for relief fromjudgment.
2. Dr. Livingston states a conclusion, without further support, that the absence of
Rangia at five Triad sites is evidence of impact caused by PAI—Is from the refinery.
(Livingston Reply Dec. at I7 & l9.) This conclusion is not scientifically sound or
reasonable. . it ignores the natural and anthropogenic conditions in the sampling area as
described by Dr. Burton, as well as the distribution of PAHs with the refinery signature
as described by Dr. Uhler.
3. As a scientist experienced with bivalves, i wouid not expect an even distribution
ofRangir1, even under pristine conditions. Furthermore, I wouid expect that Rmrfa
would be absent from many different areas within the study area due to natural factors
alone. These factors would include but not limited to temperature, salinity, dissoived
oxygen, pH, current speed, turbidity, sediment grain size, and sediment cornpactness.
4. lf Dr. Livingston were correct that the absence of Rnngicz at five Triad sites is
evidence of impact caused by PAHs from the refinery, I would expect a direct
relationship between the absence of Rrmgia and the highest concentrations of PAI-is with
the refinery signature if they were the sole cause of their absence. This was not the case.

Case 1:88-cv-00263-SLR Document 322 Filed 10/26/2005 Page 2 ot 4
5. 1 was surprised that Dr. Livingston did not consider the effect of natural factors in
controlling the distribution of Rtmgia within the study area. Most bivalve biologists
would consider the effects of natural and anthropogenic factors when theorizing as to the
causal factors controlling Rcmgia distribution in the study area. As an example, I agreed
with the explanation provided by Dr. Burton that, "`lt was felt that the habitats with
insufficient clams [for collection] may not have had sediment preferred by clams. Some
of the [collection] sites had a very high sand content and some of the sites had mostly
hard clay." (Burton Dec., Exh. 4 at 1.) The presence of hard clay alone could be enough
to preclude the presence of Rangia. Accordingly, l was comfortable that collecting
Hangin from nearby mud flats would provide the best substitute for the collection of
Rarzgia at each Triad site.
5. lt is my expert opinion that the other five locations from which Rangfu were
collected were representative of each nearby Triad site. Dr. Livingston attempts to
question whether the Remgia collection sites, which averaged three—quarters of a
kilometer from a Triad site, could be representative of that site. (Livingston Reply Dec. 'li
14.) l find this criticism unreasonable based on the scope of the overall study, which
encompassed more than twenty (20) linear kilometers.
6. l was very satisfied by Dr. Burton’s efforts to locate clam beds within the l00 by
l00 meter grid station established for each ofthe fifteen (l 5) Triad (te., sites identified in
the Scope of Work) sampling sites, or as close a possible to each site. However,
sufficient densities of clams were present at only nine (9) stations at or near the titteen
(15) Triad sites; thus, only nine (9) clam stations were established. Four (4) ofthe clam
stations were at exactly the same stations as the Triad stations, while the remaining tive
(5) stations were within close proximity ofthe Triad stations, or located between two (2)
Triad sites.
7. Therefore, it is my expert opinion that the results of the bivalve study provided
scientifically sound estimates of bioavailability at the locations where the Triad Studies
were conducted. ln my opinion, the statement in the Livingston Reply Declaration that
the distance of the collection sites from the Triad site °°invalidates use ofthe Rcmgia data
for the purpose employed by "l`exaco" is incorrect. (Id. ll 14.)

Case 1:88-cv-00263-SLR Document 322 Filed 10/26/2005 Page 3 of 4
VERIFICATION
1, Michael H. Salazar, declare under penalty of perjury that the foregoing is true and
correct. Executed on 26 dc fobe V 20¤$° .
Michael H. Salazar g

Case 1:88-cv-00263-SLR Document 322 Filed 10/26/2005 Page 4 of 4
20.
CERTIFICATE OF SERVICE
1, Samuel T. Hirzel, II, hereby certify that on October 26, 2005 I electronically filed
SUPPLEMENTAL DECLARATION OF MR. MICHAEL I-I. SALAZAR with the Clerk of
Court using CM/ECP, which will send notification of such tiling(s) to the following:
C. Scott Reese, Esquire
Cooch & Taylor
S24 N. Market Street
Suite 1000
P.O. Box l680
Wilmington, DE 198991680
I also certify that copies were caused to be served on October 26, 2005 upon the
following in the manner indicated:
BY HAND DELIVERY:
C. Scott Reese, Esquire
Cooch & Taylor
824 N. Market Street
Suite 1000
P.O. Box 1680
Wilmington, DE l9899~—l6S0
BY FEDERAL EXPRESS
Mitchell S. Bernard, Esquire
Nancy S. Marks, Esquire
Amelia Toledo, Esquire
Natural Resources Defense Council
40 West 20th Street
New York, New York l00l 5
Samuel T. irzel, I/(#4415)
Morris, Nichols, Arsht & "Funnell
l20l North Market Street
P. O. Box I347
Wilmington, DE l.9S99—l347
rncascio(5&inizat.<;,o,g,*gi,.
Attorneys for Defendant