                                                                                  ACCEPTED
                                                                              01-14-00104-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         5/26/2015 8:21:49 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                    IN THE COURT OF APPEALS
              FIRST DISTRICT OF TEXAS AT HOUSTON
    ___________________________________________________________
                                                        FILED IN
                                                   1st COURT OF APPEALS
                                                       HOUSTON, TEXAS
                         NO. 01-14-00104-CV        5/26/2015 8:21:49 PM
                                                   CHRISTOPHER A. PRINE
    ___________________________________________________________
                                                           Clerk

                    WHITE LION HOLDINGS, L.L.C.
                                Appellant

                                   vs.

                         THE STATE OF TEXAS

                              Appellee
    ___________________________________________________________

                              On Appeal from
                    th
                The 98 District Court of Travis County, Texas
         Trial Court No. D-1-GV-06-000627 and D-1-GV-13-001068
    ___________________________________________________________

               APPELLANT’S APPENDIX (Part 3) TO
             MOTION TO SUPPLEMENT THE RECORD;
                 MOTION FOR REHEARING AND
            MOTION FOR RECONSIDERATION EN BANC




Jacqueline Lucci Smith                      Joan Lucci Bain
TBA #: 00786073                             TBA #: 01548020
LUCCI SMITH LAW PLLC                        BAIN & BAIN PLLC
10575 Katy Freeway, Suite 470               10575 Katy Freeway, Suite 405
Houston, Texas 77024                        Houston, Texas 77024
Tel.: 832-494-1700                          Tel.: 713-629-6222
Fax:                                        Fax: 713-629-6226
Email: JLS@LucciSmithLaw.com                JBain@BainandBainlaw.net
Part 1
Appendix 1: State of Texas Motion for Summary Judgment
against Bernard Morello in Cause No. D-1-GV-06-000627 in
the 353rd District Court of Travis County, Texas.


Part 2
Appendix 2: Morello’s Response to Motion for Summary
Judgment with Exhibits A-K in Cause No. D-1-GV-06-000627
in the 353rd District Court of Travis County, Texas.


Appendix 3: Order Granting Final Summary Judgment
against Morello in Cause No. D-1-GV-06-000627 in the 353rd
District Court of Travis County, Texas.


Part 3
Appendix 4: Morello’s Motion for New Trial with Exhibits
A-K in Cause No. D-1-GV-06-000627 in the 353rd District
Court of Travis County, Texas.
Appendix 4: Morello’s Motion for New Trial with Exhibits A-K
in Cause No. D-1-GV-06-000627 in the 353rd District Court of
Travis County, Texas.
                              CAUSE NO. D-1-GV-06-000627

STATE OF TEXAS;                               §           IN THE DISTRICT COURT
            PLAINTIFF                         §
                                              §
V.                                            §       OF TRAVIS COUNTY, TEXAS
                                              §
BERNARD MORELLO,                              §
           DEFENDANT                          §         353RD JUDICIAL DISTRICT

                      DEFENDANT’S MOTION FOR NEW TRIAL

       Pursuant to Texas Rule of Civil Procedure 329(b), Defendant files this, his Motion for

New Trial, and shows the following:

I.     BACKGROUND

       A. THE HISTORY OF THE PROPERTY

       This case is a statutory enforcement action originally filed jointly against Defendants

White Lion Holdings, LLC (“White Lion”) and Bernard Morello (“Morello”) for violations of

Texas Water Code section 7.101 relating to property located at 2010 Spur 529 in Rosenberg,

Texas (“Property”).   The Property was purchased out of bankruptcy by White Lion.         The

Property was originally owned by Vision Metals, Inc. (“Vision”). While the Property was

owned by Vision, it became contaminated and, on January 12, 1988, Vision received a permit

from the Texas Commission on Environmental Quality (“TCEQ”) for an Industrial Waste

Management Site (Permit No. HW-50129-001). A Compliance Plan (CP-50129) was issued on

the same day to address the monitoring and cleanup of the contaminated groundwater at the

Property.

       Vision subsequently entered into modifications of the Compliance Plan (on March 15,

1995 and November 16, 1999) before filing for bankruptcy in 2000. (Ex. B.)       For the three

years prior to the bankruptcy, Vision was wholly noncompliant with its permit and the

Compliance Plan. (Ex. A at 105:10-14.)


                                              1
       Morello does not own the Property nor has he agreed in his individual capacity to be

responsible for the prior owner’s contamination of the property or its clean up. Rather, White

Lion is the sole owner of the Property and improvements and Morello’s only connection to the

Property is as the sole member of the LLC.

       B.     MORELLO SUBSEQUENTLY OBTAINS THE PURCHASE RIGHTS FOR THE
              PROPERTY AND TRANSFERS SAME TO WHITE LION; WHITE LION PURCHASES
              THE PROPERTY IN APRIL 2004

       On February 27, 2004,      after successfully bidding on the Property at a bankruptcy

auction, Morello entered into a contract to purchase the Property (hereinafter referred to as the

“Purchase Agreement”). (Exhibit C.) On April 5, 2004, Morello assigned any and all of his

rights in the Purchase Agreement to White Lion. (Ex. D.) Closing on the sale of the Property

occurred on April 6, 2004 between Vision and White Lion, with Vision conveying the property

directly to White Lion via Special Warranty Deed recorded under Fort Bend County Clerk

document number 2004042731. (Ex. E.) Therefore, Morello was never the owner of the

Property, and White Lion is the only owner of the Property after Vision.

       C.     WHITE LION SUBSEQUENTLY TAKES TRANSFER               OF THE   COMPLIANCE PLAN
              AND ITS OBLIGATIONS FROM VISION

       As mentioned supra, the Property was subject to a Compliance Plan (CP-50129) dating

back to 1988 for contamination caused by Vision. Effective June 23, 2004, Plaintiff transferred

CP-50129 and its rights and obligations from Vision to White Lion. (Ex. A at 32:11-17.)

Moreover, and as part of the Purchase Agreement, the financial assurance provided to the TCEQ

by Vision under CP-50129 was included in the purchase and assigned to White Lion. (Ex. A at

35:11-13.) The facts, therefore, clearly show that title to the Property transferred directly to

White Lion from Vision and that White Lion, not Morello, was substituted as the sole obligor

under the compliance plan.



                                               2
        D.      AFTER WHITE LION’S PURCHASE OF THE PROPERTY, MUCH OF THE
                INFRASTRUCTURE RELATED TO CP-50129 WAS REMOVED OR DESTROYED BY
                THIRD PARTIES

        The Purchase Agreement in bankruptcy specifically excluded personal property, such as

pipe manufacturing machinery and other items. (Ex. A at 21-22.) This personal property was

sold separately in the bankruptcy auction. (Id.) Accordingly, White Lion was required to allow

thirty-eight independent, additional buyers of the personal property on site, to remove the

personalty they had purchased. (Id. at 51:15-17.) Many of these buyers and their contractors

caused major damage to the Property, particularly the electrical, water, air, and gas systems. (Id.

at 107:13-21.) Although White Lion closely monitored the removal process and attempted to

protect the Property as much as possible, (Id. at 56-57), extensive damage was done to the

utilities and infrastructure:

        The Corrective Action System, the system itself, the functioning -- these are just
        fixtures here. This is just a pipe that runs into the ground. All the internet work
        that runs it is all gone. It was damaged at the time that the buyers were there. The
        equipment was gone. The pipes were cut. Electricity was cut. I've already went
        over all that. It was destroyed.

(Id. at 107:13-21.) Following the conclusion of the removal process, the Property resembled a

“war zone.” (Id. at 51:24-25.)

        E.      GIVEN THE SCOPE AND COST OF REPAIRS, WHITE LION WAS UNABLE COMPLY
                WITH THE REMEDIAL ELEMENTS OF CP-50129 OR POST PROOF OF FINANCIAL
                ASSURANCE

        With repair estimates at over $1 million (id. at 53:18-21), White Lion did not have the

financial ability to replace the utilities and remediation system that were destroyed by the

personal property buyers, much less the additional funds to continue with the Compliance Plan.

(Id. at 25-26, 48-49, 51-52, 55, 65-67, 70, 79-81, 93-94, 99-101, 103, and 107-108.) Moreover,

White Lion was unable to afford the premium for financial assurance required under the Texas




                                                 3
Administrate Code. (Id. at 40:14-18.) Given that the damage to the remediation infrastructure

was beyond White Lion’s control and could not have been prevented by its due diligence,

substantial compliance with C-50129 and the financial assurance requirement was impossible.

       F.      PLAINTIFF FILES SUIT AGAINST WHITE LION               AND   SUBSEQUENTLY ADDS
               MORELLO IN HIS INDIVIDUAL CAPACITY

       Plaintiff filed suit against White Lion on April 14, 2006, seeking injunctive relief and

statutory penalties related to White Lion’s failure to comply with CP-50129 and the related

financial assurance requirements. On January 22, 2007, Plaintiff joined Morello in his individual

capacity. On August 23, 2013, the State obtained an interlocutory summary judgment against

White Lion. As part of the Motion for Summary Judgment, the State asked the Court to sever

White Lion as a party, thereby converting the interlocutory judgment into a final one. The

Plaintiff waited until after that case was fully briefed and submitted on appeal, to seek a second

summary judgment against Morello in his individual capacity for the same conduct. This Court

granted said motion and entered a final summary judgment on April 14, 2015. It is now apparent

that the State used an improper severance to lay a trap for this Court to enter a separate judgment

against Morello in order to secure a double recovery. For the reasons set forth below, Morello

now moves the Court for a new trial in this case.

II.    STANDARD ON MOTIONS FOR NEW TRIAL

       The purpose of a motion for new trial is to give the trial court an opportunity to examine

assigned errors, and allow those errors to be cured by granting a new trial. Mushinski v.

Mushinski, 621 S.W.2d 669, 670-71 (Tex. Civ. App.—Waco 1981, no writ); Townsend v.

Collard, 575 S.W.2d 422, 423-24 (Tex. Civ. App.—Fort Worth 1978, no writ).

       Motions for new trials must identify specifically the action upon which the movant

complains so that the objection can be clearly identified and understood by the court. TEX. R.



                                                4
CIV. P. 321. As discussed below, Morello is moving for a new trial on the specific grounds,

which include: (1) an improper application of the law resulting in entry of judgment against

Morello in his individual capacity; (2) an improper application of the law granting the severance

of White Lion, which led to a double recovery for the same acts; (3) an improper application of

the law based on the State’s judicial admission; and (4) newly discovered evidence requiring a

new trial. Because the Court has no discretion in applying the law to the facts of the case, its

prior rulings on the first three grounds constitute reversible error and for which no discretion

exists to deny Morello a new trial. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)

(orig.proceeding). As for Morello’s newly-discovered evidence ground, the Court has discretion

in its ruling on same. However, the facts demonstrate that a failure to grant the requested new

trial would constitute and arbitrary and unreasonable ruling reversible on appeal. See id.

III.   AUTHORITY AND ARGUMENT

       A.      THE COURT’S JUDGMENT AGAINST MORELLO IN HIS INDIVIDUAL CAPACITY
               CONSTITUTES REVERSIBLE ERROR UNDER TEXAS LAW

       “Corporations, by their very nature, cannot function without human agents.” Holloway v.

Skinner, 898 S.W.2d 793, 795 (Tex. 1995). Therefore, and “[a]s a general rule, the actions of a

corporate agent on behalf of the corporation are deemed the corporation’s acts” so that no

liability attaches to corporate officers and directors. Id.   This same liability principle applies

where managers or members act on behalf of limited liability companies. See Shook v. Walden,

368 S.W.3d 604, 621 (Tex. App.—Austin 2012, pet. denied).

       One exception to this principle occurs where the plaintiff pierces the corporate veil based

upon allegations that a defendant is the alter ego of the corporation. See Karl and Kelly Co., Inc.

v. McLerran, 646 S.W.2d 174 (Tex. 1983) (per curiam). Plaintiff neither pleaded, argued, nor

proved alter ego liability so that this exception does not apply. A second exception occurs where



                                                 5
the corporate agent engaged in fraudulent or tortious acts. See Miller v. Keyser, 90 S.W.3d 712,

717 (Tex. 2002). This is the exception on which Plaintiff relied, but the conduct complained of

is effectively a breach of contract, and the State has failed to plead or prove of any tort or fraud

committed by Morello.       As discussed below, Plaintiff duped the Court into applying this

exception and committing reversible error by granting summary judgment.

               1.      BASED ON THE CASES CITED BY THE STATE, THE COURT’S GRANT OF
                       SUMMARY JUDGMENT IMPOSING PERSONAL LIABILITY AGAINST
                       MORELLO IS REVERSIBLE ERROR.

       Texas law recognizes that a corporate agent/officer may be liable for acts carried out on

behalf of the corporation only upon a showing that the individual was engaged in fraudulent

or tortious acts. Where there is no evidence that the corporate agent engaged in fraudulent or

tortious acts there can be no liability imposed on the agent. Indeed, the Supreme Court has

emphasized the importance of maintaining “a clear distinction . . . between individual liability as

distinguished from that of the corporate employer.” Holloway v. Skinner, 898 S.W.2d 795, 798

(Tex. 1995).

       The State’s conclusory interpretation of its cited cases on agent liability was misleading.

(Pl’s MSJ at p. 20-21.) The development of the applicable law is critical to the understanding of

the limitation of agent liability, and, in an attempt to fully inform the Court, a full discussion of

these cases follows.

                       a.      KARL AND KELLY COMPANY V. MCLERRAN: CORPORATE
                               OFFICERS/AGENTS ONLY LIABLE UNDER ALTER EGO THEORY

       In Karl and Kelly Company Inc. v. McLerran, the Texas Supreme Court addressed the

issue of personal liability of corporate officers. See 646 S.W.2d 174 (Tex. 1983) (per curiam).

In that case, the plaintiffs purchased a new home from Karl and Kelly Company and

subsequently sued both the company and its officers (Karl Simon and James Kelly) under the



                                                 6
DTPA for construction defects. Id. at 174. When defendants failed to appear for trial, the court

entered a post-answer default judgment in favor of plaintiffs. Id.

       Following affirmance by the Dallas Court of Appeals, the Supreme Court granted writ of

error. In reversing, the Supreme Court impliedly held that liability as to corporate agents such

Karl and Kelly was only proper upon pleading and proof that such agents were the alter ego of

the corporation. Id at 174.

                       b.      LIGHT V. WILSON: IMPLIEDLY OVERRULING MCLERRAN BY
                               HOLDING THAT CORPORATE AGENTS MAY ALSO BE LIABLE FOR
                               THEIR OWN TORTIOUS MISCONDUCT

       In Light v. Wilson the plaintiff contracted with Goldstar Builders for construction of a

new home and deposited a substantial deposit with Goldstar for same. See 663 S.W.2d 813 (Tex.

1984). When Goldstar failed to take any action to begin construction, plaintiff sent a demand to

Goldstar and its sole owner—Glen Light—for return of their money. Id. Light responded with a

letter refusing to return the deposit. Id. Light’s bases for refusing to return the deposit were that:

(1) the delays in construction were due to the plaintiffs’ inability to obtain financing and (2)

Goldstar had spent too much money on the project to allow a refund. Id. at 814.

       Plaintiffs subsequently filed suit against Goldstar and Light alleging fraud, conversion,

and DTPA violations and obtained a verdict on the DTPA claim. Id. Following affirmance by

the intermediate court of appeals, the Supreme Court granted writ of error and reversed as to

liability against Light. Id. at 815. In so doing, the Court noted that the plaintiffs had not pleaded

or proved alter ego and that “[t]herefore, there being no finding of fact that Light violated the

Deceptive Trade Practices Act, cannot be personally liable.” Id. Thus, the Light court impliedly

overruled McLerran by holding that corporate agents could be found individually liable for their

own tortious misconduct as well as under an alter ego finding.




                                                  7
                      c.      LEYENDECKER & ASSOCIATES V. WECHTER: AFFIRMING LIGHT
                              AND UPHOLDING CORPORATE AGENT LIABILITY FOR HIS
                              TORTIOUS ACTS

       In Leyendecker & Associates, Inc. v. Wechter, plaintiffs contracted for the construction of

a townhome in Houston. See Leyendecker v. Wechter, 683 S.W.2d 369, 371 (Tex. 1984).

During negotiations for the home, a Leyendecker agent advised that the plaintiffs could buy a

corner lot which was slightly larger (2,475 square foot) than the standard lot in the development.

Id. at 372. Plaintiffs’ subsequently paid Leyendecker additional money in exchange for such lot.

Id. Following closing, however, plaintiffs discovered that the actual size of their lot did not

include the 2,475 additional square foot. Id. Plaintiffs subsequently complained to the Greater

Houston Builders Association regarding the lot size discrepancy as well as certain building

defects. Id.   Chris Hilliard later responded on behalf of Leyendecker by falsely accusing the

Plaintiffs of urging Leyendecker to make fraudulent insurance claims. Id.

       Plaintiffs subsequently sued Leyendecker for misrepresentation of the lot size and

construction defects, and Leyendecker and Hillard for libel in connection with the false statement

regarding insurance claims. Id. As to the libel claim, Plaintiff’s obtained a judgment which the

court of appeals affirmed. On writ of error, the Supreme Court considered Leyendecker’s

contention that “an employee who commits a tort while acting within the scope of his

employment is not liable to the party injured.” Id. at 375. Disagreeing, the Court cited to Light

for the proposition that “[a] corporation’s employee is personally liable for tortious acts which

he directs or participates in during his employment.”       Id. (emphasis added). After noting

Hilliard’s affirmative and tortious act of “penn[ing] the libelous letter”, the Court affirmed.

Consistent with its decision in Light, the Court thus affirmed the individual liability of a

corporate agent based on his active, tortious conduct.




                                                8
                        d.     WETZEL V. BARNES: REAFFIRMING THAT COURTS MAY IMPOSE
                               PERSONAL LIABILITY ON CORPORATE AGENTS WHERE AGENT
                               ENGAGES IN AFFIRMATIVE TORTIOUS CONDUCT

       In Wetzel v. Barnes, the Supreme Court again visited the issue of personal liability for

corporate officers. See 691 S.W.2d 598 (Tex. 1985). In that case, the plaintiffs entered into a

contract with Barnes/Seagraves Development Company for the purchase of a remodeled home.

See id. at 599. In connection with the contract, Michael Barnes and Patrick Seagraves made

affirmative representations that the plumbing and air conditioning complied with local building

code specifications. Id. After plaintiffs purchased the home they discovered that these systems

did not function properly and brought suit against the corporation and Barnes/Seagraves

individually for making false and misleading representations in violation of the DTPA. Id. at

599-600.

       Following a bench trial, the court found for plaintiffs with the court of appeals reversing

and rendering judgment for defendants. Id. at 599. On writ of error, however, the Supreme

Court reversed the court of appeals judgment and affirmed the judgment of the trial court. With

respect to the individual liability of Barnes and Seagraves, the Supreme Court noted that the

record “contain[ed] evidence as to statements of both men upon which the trial judge could have

relied in concluding that they each made oral misrepresentations.” Id. at 601. Citing to Light,

the Court then held that “there can be individual liability on the part of a corporate representative

for misrepresentations made by him.” Id. Thus, and consistent with the precedent in Light, the

Court again affirmed the individual liability of a corporate agent based on commission of

tortious conduct. Id.




                                                 9
                       e.      MILLER V. KEYSER: REAFFIRMING LIGHT AND WEITZEL AND
                               HOLDING THAT A CORPORATE AGENT IS PERSONALLY LIABLE
                               ONLY FOR HIS OWN FRAUDULENT OR TORTIOUS ACTS

       Miller v. Keyser involved another case under the DTPA brought by plaintiffs against a

home builder. See 90 S.W.3d 712, 717 (Tex. 2002). In that case, the plaintiffs purchased a

home from D. B. Interests, Inc., a builder in Pearland, Texas. Id. at 715. DBI’s sales agent

handling all negotiations for the sale was Barry Keyser. Id. During negotiations, Keyser

correctly represented to plaintiffs that the back 20 feet of the lot on which their home was to be

built was encumbered by an easement. Id. However, Keyser concurrently misrepresented that

this portion of the lot could be fenced in as part of the yard. Id. After plaintiff purchased the lot

and constructing a home on same, they fenced in the entire tract including the easement. Id.

Subsequently, the Brazoria County Drainage District enforced its easement rights and required

plaintiffs to remove the infringing portions of the fence at their own cost. Id.

       Plaintiff subsequently brought suit against DBI and Keyser for fraud and

misrepresentations in violation of the DTPA. Id. The trial court later dismissed plaintiffs’

claims against DBI as untimely so that plaintiffs’ proceeded to trial against Keyser. Id. After the

jury found Keyser liable for misrepresentations, the intermediate court of appeals relied upon the

Court’s previous decision in McLerran and held that a corporate agent acting within the scope of

his employment could not be personally liable under the DTPA. Id.

       On petition for review, the Supreme Court began by reviewing the McLerran, Light, and

Barnes decisions. Id at 717. After considering the facts of each, the Court agreed that its

decision in Light overruled McLerrran and held that “if there is evidence that the [corporate]

agent personally made misrepresentations, then that agent can be held personally liable.” Id.

The Court then concluded as follows: “Our holdings in Light and Weitzel comport with Texas'




                                                 10
longstanding rule that a corporate agent is personally liable for his own fraudulent or tortious

acts.” Id. (emphasis added). Based on this holding, the Court noted that Keyser had personally

violated the DTPA through various false, misleading, and deceptive acts and remanded the case

back to the court of appeals. Id. at 720.

                2.         BASED ON THE KEYSER LINE OF CASES, THE COURT’S GRANT OF
                           SUMMARY JUDGMENT IMPOSING PERSONAL LIABILITY AGAINST
                           MORELLO WAS REVERSIBLE ERROR

        Applying these principles to the present case leads to the conclusion that summary

judgment against Morello for White Lion’s violations was error. First, Plaintiff neither alleges in

its petition nor argues in its summary judgment motion that Morello committed any type of fraud

in this matter. In order for Morello to be liable in his individual capacity, then, the acts forming

the basis of Morello’s alleged liability must sound in tort.        But Plaintiff’s own summary

judgment motion forecloses this possibility. Specifically, Plaintiff states the following in its

motion:

                        Morello asserts that compliance with the Compliance Plan
                has been caused by or otherwise rendered impractical by third
                parties. This matter is not a tort action. This is a statutory
                enforcement action brought against Morello as operator and sole
                decision maker of White Lion . . . .

(Pl’s MSJ at p. 29, emphasis added.) Based on the authorities cited above, this admission by the

State conclusively establishes that summary judgment against Morello individually is improper

and is reversible error.

        In an attempt to avoid the requirement that Morello have committed fraud or a tort,

Plaintiff argues that “the actions are viewed, not in the context of a tort, but in the context of

whether such actions amount to causing, suffering, allowing, or permitting a violation of law” as

set forth in Texas Water Code section 7.102. (Pl’s MSJ Reply at 5.) But under Keyser, actual




                                                11
tortious conduct is required to impose personal liability on a corporate agent. As noted by Texas

courts, this is not an arbitrary requirement but one based on the policy of preventing tortious

acts: “[t]he purpose of individual liability in the corporate setting is to prevent an individual from

using the corporate structure or agency law as a blanket to insulate himself from liability from

his otherwise tortious conduct.” See Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 889 (Tex.

App.—Houston [14th Dist.] 2010, no pet.). Holding Morello individually liable for White

Lion’s administrative code violations runs counter to this policy because such liability is not of a

tortious character.

       Moreover, Texas’ cannons of construction prohibit the Court from construing the above-

referenced language of the Water Code as imposing individual liability on corporate

agents/officers such as Morello. Statutes that authorize a penalty are strictly construed. In re

Hecht, 213 S.W.3d 547, 572 (Tex. Spec. Ct. Rev. 2006) (citing Cain v. State, 882 S.W.2d 515,

519 (Tex. App.—Austin 1994, no writ)). A civil statue that is penal in nature must be couched in

such explicit terms that the party upon whom the statue is to operate may, with reasonable

certainty, ascertain what the statue requires to be done and when it must be done. Mo. K. & T.

Ry. Co. of Texas v. State, 100 S.W. 766, 767 (Tex. 1907). If such explicit terms are not present,

there is no opportunity for a person charged with the duty to protect himself by the performance

of it according to the law. Id.

       In the present case, Texas Water Code § 7.102 is penal in nature as it authorizes civil

penalties. But there is nothing in the wording or the legislative history of sections 7.101 and

7.102 of the Texas Water Code that changes the law on principal, agent liability. As such, the

liability imposed by the statue must be strictly construed with the existing law (i.e., it did not

create new liability for individuals acting in as an agent for a company). If the statutes are




                                                 12
interpreted, as the State wants this Court to interpret them, then Mr. Morello had no opportunity

to protect himself when he acted as the agent of White Lion.

       In conclusion, the trial court’s imposition of personal liability against Morello constitutes

a failure to analyze or apply the law correctly, which in turn constitutes an abuse of discretion.

See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Accordingly, the

Court should grant Morello a new trial in this matter.

       B.         PLAINTIFF IS JUDICIALLY ESTOPPED       FROM   OPPOSING MORELLO’S MOTION
                  FOR NEW TRIAL

       Even assuming that individual liability against Morello was proper as Plaintiff contends,

Plaintiff is nevertheless judicially estopped from taking the position that Morello (or White Lion

for that matter) is liable for violations of the Water Code or non-compliance with the compliance

plan. Judicial estoppel precludes a party from adopting a position inconsistent with one that was

successfully maintained in an earlier proceeding. Pleasant Glade Assembly of God v. Schubert,

264 S.W.3d 1, 6 (Tex. 2008). The elements of judicial estoppel in Texas are: (1) a prior

inconsistent statement made in a judicial proceeding; (2) which was successfully maintained in

the prior proceeding; (3) which was not made in advertently or by mistake, or pursuant to duress;

and (4) which was deliberate, clear, and unequivocal. Andrews v. Diamond, Rash, Leslie &

Smith, 959 S.W.2d 646, 650 n. 2 (Tex. App.—El Paso 1997, writ denied). As discussed below,

Morello has established each of these elements requiring a new trial.

       In its Motion for Summary Judgment, Plaintiff took the following legal position:

                  Morello’s only means to defeat summary judgment in this matter is
                  to demonstrate that he has taken steps to ensure compliance.

(MSJ at p. 24.)

       At the time of the hearing, the State had convinced this Court to strike the affidavits of

David Heslep (Ex. H), and Wayne Crouch (Ex. I) – a decision this Court has since reversed.


                                                 13
(Ex’s J, K). Those affidavits contain evidence that White Lion (and Morello as its Member) did

in fact take corrective action and that the TCEQ was aware of and approved of the action being

taken. Because the State has judicially admitted that steps toward compliance defeated its

motion, it is bound by that admission.1 Further, because Morello presented uncontroverted

evidence that White Lion had taken appropriate steps towards compliance, summary judgment

should have been denied on the basis of the State’s admission. This statement was successfully

maintained by Plaintiff given that it obtained an order granting summary judgment. Moreover,

the statement was not made by accident or mistake, and was deliberate, clear and equivocal.

                                                            Specifically, and in response to the motion, Morello submitted the affidavits of David

Heslep (Morello’s Resp., Ex. H) and Wayne Crouch (Morello’s Resp., Ex. I), and both affidavits

were admitted into evidence over the objections of the Plaintiff. The Heslep affidavit establishes

that Heslep, on behalf of White Lion, forwarded to Ms. Elanor Wehner of the TCEQ a draft

memo outlining steps that White Lion intended to implement to comply with CP-50129. Id.

Attached to the affidavit is an email from Wehner acknowledging receipt of the plan and her

statement that “[w]hat I can say is that overall I like the progression/sequencing of the tasks

referenced in the memo.” Id. The Crouch affidavit similarly shows steps taken by Morello to

comply with CP-50129, including Crouch’s statements and evidence showing that Morello had

retained Crouch to perform groundwater testing, that Crouch had done such testing, and that the

results showed that the Property was moving toward compliance with CP-50129. Id.

                                                            Given this proof, Morello clearly established that he had taken steps to ensure compliance

with CP-50129. Plaintiff admitted in its summary judgment motion that Morello could defeat

the motion by demonstrating that he had taken steps to ensure compliance.                                                                                                                                                                                     Accordingly,

Plaintiff is now estopped from arguing otherwise. The uncontroverted evidence establishes that
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  
1	  Presumably,                                                                                   this is why the Plainitff moved to strike the affidavits.


                                                                                                                                                                                                                                                         14
White Lion had in fact taken steps to ensure compliance, therefore summary judgment was

improper and this Court should grant a new trial.

        C.     THE COURT’S ORDER SEVERING PLAINTIFF’S CLAIMS AGAINST WHITE LION
               FROM THOSE AGAINST MORELLO WAS REVERSIBLE ERROR REQUIRING A NEW
               TRIAL

        Texas Rule of Civil Procedure 41 governs a trial court’s authority to sever claims. Rule

41 states that “[a]ny claim against a party may be severed and proceeded with separately.” TEX. R.

CIV. P. 41. It is significant that Rule 41 only allows severance of claims, not severance of parties.

Rule 41 also requires that a trial court order severance before the controversy is submitted.

Separate claims may be severed by order of the court on motion of any party or on its own

initiative at any stage of the action, but before the time of submission to the trier of fact, on such

terms as are just. TEX. R. CIV. P.41.

        Severance of a claim is proper if (1) the controversy involves more than one cause of

action; (2) the severed claim is properly the subject of a lawsuit; and (3) the severed claim is not

so interwoven that it involves the same facts and issues. Guar. Fed. Savs. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (emphasis added). If the claim a party seeks to

sever does not meet all three prongs, then the claim may not be severed, and to do so amounts to

an abuse of discretion. Nicor Exploration Co. v. Florida Gas Transmission Co., 911 S.W.2d 479,

482 (Tex. App.– Corpus Christi 1995, writ denied) (“By severing [one plaintiff’s action from the

action of another plaintiff], the trial court effectively severed a party, instead of a cause of

action.”).

        The controlling reasons to grant a severance are to do justice, avoid prejudice and to

further convenience the parties. Nicor Exploration Co., 911 S.W.2d at 482. If a claim against

multiple parties involves the same facts and issues, none of these objectives are met – they are




                                                 15
thwarted. If a claim involving an indivisible injury is severed, the facts and issues relating to

each particular entity's liability for their part in the injuries is the same. “[T]o divide [such a

suit] into two suits would produce two trials focused on the same facts and same injury, and

could potentially lead to undue repetition, confusion and prejudice to the interests of both the

plaintiffs (who could be either over or under compensated) and the defendants (who could face

unduly low or high fractional shares of the total liability for damages).” Santos v. Holzman,

No. 13-02-662-CV, 2005 WL 167309, at *4 (Tex. App.-Corpus Christi Jan. 27, 2005, pet.

denied) (mem. op.), citing Jones v. Ray, 886 S.W.2d 817, 822 (Tex. App. – Houston [1st

Dist.] 1994, orig. proceeding). See also, Levetz v. Sutton, 404 S.W.3d 798, 801 (Tex. App. –

Dallas, 2013, pet. denied) (reversing order of severance because the facts were interwoven and the

severance did not avoid prejudice or further convenience.). Therefore, a trial court may not

simply sever a party from the cause of action; it should sever only complete and discrete claims

from one another. Id.

               1.       THE TRIAL COURT IMPROPERLY SEVERED A PARTY—WHITE LION
                        HOLDINGS—NOT A CAUSE OF ACTION, EXPOSING MORELLO AND
                        WHITE LION TO DUPLICATE PENALTIES FOR THE IDENTICAL CONDUCT.

       In this case, the trial court abused its discretion by granting the State’s Motion to Sever

the summary judgment against White Lion Holdings when the State did not meet its burden of

proof on summary judgment to demonstrate it was entitled to severance.

       As noted by the Supreme Court in Guranty Federal, the third severance factor requires a

showing that the severed claims are not so interwoven with the other claims that they involve the

same facts. See 793 S.W.2d at 658. Among other reasons, the claims in a case are considered

interwoven when their severance would result in two or more separate judgments that, taken in

the abstract, would either: (1) undercompensate the plaintiff (because the respective juries could




                                                16
each find the other defendant fully liable and thus each award plaintiff nothing), or (2) over

compensate the plaintiff (because the respective juries could each find their respective defendant

fully liable and enter two verdicts imposing a double recovery). In situations such as this

presenting the prospect of double recovery for the plaintiff or double jeopardy for the defendant,

severance is improper because the third Guaranty Federal factor cannot be met. See Jones, 886

S.W.2d at 821-22.

       In the present case, Plaintiff’s suit consisted of two claims. The first was that White Lion

failed to comply with CP-50129 rendering it in violation of Texas Water Code section 7.102.

Plaintiff’s second claim was that White Lion failed to acquire financial assurance in the amount

of $574,000 in violation of the Texas Administration Code. Plaintiff asserted the exact claims

against Morello in his individual status and sought the exact amount of damages from both

Defendants. In fact, the Court—in two separate and enforceable judgments (this cause and cause

number D-1-FV-13-001068)—awarded Plaintiff the same damages against each defendant, thus

allowing the Plaintiff a double recovery. (Ex. H.) Notably, the Plaintiff waited until its motion

for summary was granted against White Lion and obtaining severance before filing an identical

motion for summary judgment against Morello, individually. In short, the Plaintiff’s actions

make it clear that its intent all along was to place Morello in double jeopardy. Thus, and for the

same reasons noted by the Jones court, severance of Plaintiff’s claims against White Lion and

Morello was an abuse of discretion.

               2.     IMPROPER SEVERANCE IN THIS CASE RESULTS IN AN EXCESSIVE FINE IN
                      VIOLATION OF THE TEXAS AND UNITED STATES CONSTITUTIONS

       Article I, section 13 of the Texas Constitution provides, "[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." TEX. CONST.

ART. I, § 13. The term “fines” has been defined as including civil penalties. See Pennington v.



                                               17
Singleton, 606 S.W.2d 682, 690 (Tex. 1980). Generally, prescribing fines is a matter within the

discretion of the legislature. A fine is not unconstitutionally excessive, and courts may not

override the legislature’s discretion, “except in extraordinary cases, where it becomes so

manifestly violative of the constitutional inhibition as to shock the sense of mankind.” Id.

(quoting State v. Laredo Ice Co., 96 Tex. 461, 73 S.W. 951, 953 (1903)).

       Here, the State used the trial court’s severance of the State’s Claim’s against Morello’s

company, White Lion Holding’s LLC, as a mechanism to impose double liability for the same

conduct on both Morello and White Lion. After the Court granted summary judgment against

White Lion, it severed White Lion from the case in violation of Rule 41’s prohibition against

severing a party instead of a claim, and further in violation of the Rule’s prohibition against

severance after submission to the trier of fact.    The State then sought a second summary

judgment against Morello in his individual capacity for the identical conduct, thus accomplishing

a double recovery for a single act through improper severance. The State even conceded in oral

argument before the Court that Morello “is White Lion.” (Ex. G at 10:14).

       Assuming without conceding that any penalty is justified in this case, the State should

have been limited to one penalty against the responsible party, whether it was White Lion or

Morello. By severing White Lion, the State avoided a finding on a critical issue central to both

motions – who is the responsible party? Even if the State could argue that the corporate veil

should be pierced (which Morello denies), at most it would have been entitled to joint and

several liability against Morello and White Lion, not a double recovery.




                                               18
                                                                                                                         3. THE IMPROPER SEVERANCE VIOLATES THE EQUAL PROTECTION, AND DUE
                                                                                                                            COURSE OF LAW PROVISIONS OF THE TEXAS CONSTITUTION, AND THE
                                                                                                                            DUE PROCESS AND EQUAL PROTECTION PROVISIONS OF THE U.S.
                                                                                                                            CONSTITUTION.

                                                            In its two judgments, the Court has now awarded over $760,4942 in fines against Morello

and White Lion after stipulating that the civil penalties should only be $50 per day (five times

the purchase price of the Property).                                                                                                                                                                                                                     Yet, Morello and White Lion have both consistently

maintained inability to pay the fine and to conduct the remediation the state is demanding.

Furthermore, by denying the continuance requested by Morello and White Lion, the Court

awarded a penalty that new evidence proves to be unjustified.

                                                            Where the amount of a penalty imposed by a State agency is so high that it effectively

deprives a citizen of the ability to litigate his defense to such penalty, it is unconstitutional. See

R. Communications Inc. v. Sharp, 875 S.W.2d 314, (Tex. 1994) (holding that conditioning a

taxpayer's right to initiate judicial review on the payment of taxes or the posting of a bond equal

to twice the alleged tax obligation violates the open courts mandate of the Texas Bill of Rights.

TEX. CONST. art. I, § 13. Taxes cannot be raised by means that make meaningless our

constitutional guarantees.). While this case does not present an open courts question, it does

present an unconstitutional denial of due process and equal protection under state and federal

law.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  
2	  The
       Court awarded Plaintiff $325,600 in civil penalties and $40,800 in attorneys’ fees against
White Lion in cause no D-1-FV-13-000627. (Ex. I.) The Court awarded Plaitniff $367,250 in
civil penalties and $26,844 in attorneys’ fees. Morello asks this Court to take judicial notice of
the contents of its final judgment in this case.	  	  

                                                                                                                                                                                                                                                              19
       D.      THE COURT SHOULD GRANT MORELLO                  A   NEW TRIAL BASED       ON   NEWLY
               DISCOVERED EVIDENCE

               1.      THE GRANT OF A NEW TRIAL BASED ON NEWLY-DISCOVERED
                       EVIDENCE IS WITHIN THE SOUND DISCRETION OF THE TRIAL COURT

       A party seeking a new trial on grounds of newly-discovered evidence must demonstrate

to the trial court that (1) the evidence has come to its knowledge since the trial, (2) its failure to

discover the evidence sooner was not due to lack of diligence, (3) the evidence is not cumulative,

and (4) the evidence is so material it would probably produce a different result if a new trial were

granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Denial of a motion

for new trial is reviewed for abuse of discretion.

                       a.      NEWLY-DISCOVERED EVIDENCE ESTABLISHES THAT CP-502129
                               AND ITS REMEDIATION OBLIGATIONS WAS BASED ON
                               PLAINTIFF’S ERRONEOUS DETERMINATION OF THE AFFECTED
                               AQUIFER

       Prior to White Lion’s ownership of the Property, Vision utilized the premises as a steel

tube manufacturing facility.     (Pl’s MSJ at 7.)        This usage ultimately caused groundwater

contamination at the premises due to elevated levels of heavy metals and other compounds. (Id.

at 8.) Vision subsequently discovered the contamination and reported same to the State which

then instituted CP-50129 to remediate same. (Id. at 8-9.) CP-50129 called for Vision to

implement an extensive cleanup and monitoring system consisting of: (1) placing additives in the

Property’s wastewater impoundments; (2) capping such impoundments with four feet of clay and

vegetative covering; (3) implementation and maintenance of a groundwater monitoring program

and system to test the effectiveness of CP-50129, (4) installation of a network of wells (21 total)

to monitor groundwater flow and contaminants; (5) installation of a network of recovery wells

for extraction of contaminated groundwater; (6) submission of semi-annual and annual reports to

Plaintiff, and other requirements. (Id. at 9-10.)



                                                    20
       In short, CP-50129 created massive financial and regulatory obligations for Vision and

subsequently, White Lion. These onerous remediation and monitoring requirements of CP-

50129 were all premised on Plaintiff’s error that the contaminated ground water plume beneath

the Property potentially fed into the Upper Chicot aquifer—which is used for agricultural or

human use. (Ex. F.)

       In December 2014, White Lion retained David Heslep and his firm of WDIA

Environmental Solutions, LLC, to assess the Property and prepare a proposal for modification of

and compliance with CP-50129. (Ex. F.) Heslep is a licensed professional geologist for the

State of Texas with significant project management experience and technical expertise in

environmental matters.     (Id.)   In particular, Heslep has been involved with numerous

groundwater remediation projects at sites in at least 8 states. (Id.) In his efforts to bring the

Property into compliance with CP-50129, Heslep discovered that the aquifer beneath the

Property is actually the Brazos River Alluvial Aquifer—a fact which greatly reduces any risk

from the plume beneath White Lion’s property. Id.

       As noted by Heslep, had TCEQ’s experts properly identified the aquifer at the time CP-

50129 was renewed in 1999, “the current pump and treat system required by the Compliance

Plan would not have been necessary and that a natural attenuation system would have been

appropriate for remediating the contamination at the [Property].” Id. In short, the entire basis of

the Compliance Plan, and the corresponding obligations, were “not necessary to protect the

public health and environment.” Id. Indeed, Mr. Heslep makes clear that “[h]ad this error not

been perpetuated by the State, a less stringent, less expensive plume monitoring system would

have been appropriate.” Id.

       This evidence came to light after trial. Where a trial occurs by summary judgment,




                                                21
courts hold that the evidence must not have been discovered prior to the ruling on summary

judgment. See Indus. Clearinghouse, Inc. v. Jackson Walker, L.L.P., 162 S.W.3d 384, 389 9Tex.

App.—Dallas 2005, pet denied.). The Court issued its letter ruling on April 6, 2015. As noted

supra, Heslep discovered the evidence on April 11, 2015. (Ex. F.) Morello discovered the

evidence on that same day. (Ex. H.) Accordingly, the first requirement for a new trial based on

newly-discovered evidence has been satisfied.

                       b.     MORELLO’S FAILURE TO DISCOVER THE NEW EVIDENCE WAS
                              NOT DUE TO LACK OF DILIGENCE ON HIS PART

       The second element that must be satisfied for a new trial based on newly discovered

evidence is that the party’s failure to discover the evidence sooner was not due to lack of

diligence. Waffle House, 313 S.W.3d at 813. Evidence of a party’s due diligence in procuring

new evidence is properly adduced by affidavit or testimony. See Edwards v. Edwards, 418

S.W.3d 757, 761 (Tex. App.—El Paso 2013, no pet.) (“The trial court is not privy to a plaintiff's

efforts at due diligence, and as such, it must be apprised of such by sworn affidavit or testimony .

. . .”). Finally, whether a party acts with sufficient diligence in discovering the evidence in

question is a matter left to the discretion of the court. See Benz Group v. Barreto, 404 S.W.3d

92, 97 (Tex. App.–Houston [1st Dist.] 2013, no pet.); Allseas USA, Inc. v. PS Fabricators,

L.L.C., 2012 WL 7849219. *9 (Tex. App.—Corpus Christi 2012, no pet.) (“Whether Allseas

acted with sufficient diligence was a factual matter best left to the trial court's discretion.”).

Finally, and as noted by the Texas Supreme Court, diligence is defined as “such diligence that an

ordinarily prudent and diligent person would exercise under similar circumstances.” Strickland

v. Lake, 163 Tex. 445, 357 S.W.2d 383, 384 (1962).

       Applying this definition of diligence, it becomes clear that Morello satisfies the second

prong of the inquiry. The evidence in question involves the underground aquifer potentially



                                                22
affected by the plume under White Lion’s Property which was misidentified by at least two sets

of experts in this case. Specifically, Plaintiff’s and Vision’s environmental experts mistakenly

identified the aquifer in 1988, and again in 1998-99, as the Upper Chicot. (Ex. F.) In his

affidavit, Heslep mentions that he only discovered the correct aquifer at issue after long inquiry

into hydrological surveys which provided the key. (Id.)

       Clearly, and given that trained geologists misidentified the aquifer at issue, this evidence

was not discoverable by a layperson such as Morello. As established by his sworn deposition

testimony, Morello repeatedly testified that he: (1) does not hold himself out as an environmental

law expert (Ex. A at 16); (2) knows nothing about wastewater, groundwater, or groundwater

recovery systems (Id. at 68, 70); (3) considers groundwater related issues to be “way over [his]

head” (Id. at 70); (4) considers issues related to CP 50129 as “not my area of expertise” (Id. at

82-83). In his affidavit, Morello goes further, stating that “I have no education or practical

experience with environmental compliance issues, and I had no reason to question any of the

underlying geological or hydrological bases for the compliance plan.” (Ex. H.) Taken together,

and considering the Strickland court’s definition of diligence, Morello cannot be found to have

lacked reasonable diligence in procuring the newly-discovered evidence. In fact, it would be

unreasonable to find or expect Morello to have discovered the evidence sooner than he did.

Accordingly, Morello has satisfied the second requirement for a new trial based on newly-

discovered evidence.

                       c.     THE EVIDENCE IS NOT CUMULATIVE

       The third element that must be satisfied for a new trial based on newly discovered

evidence is that such evidence is not cumulative of any other evidence in the case. Waffle

House, 313 S.W.3d at 813. The test for determining whether evidence is cumulative asks “not




                                               23
merely whether the evidence to be adduced from the two witnesses is similar, but also whether

the excluded testimony would have added substantial weight to the offering parties' case.” Sims

v. Brackett, 885 S.W.2d 450, 454 (Tex. App.—Corpus Christi, 1994, no writ). In the present

case, there can be no argument that the newly-discovered evidence is not cumulative as it is

contrary to Plaintiff’s evidence/theory relating to the relevant aquifer and adds substantial weight

to Morello’s case (as discussed more in the next factor).           Indeed, the issue of the plume

potentially affecting the Brazos River Alluvium Aquifer appears nowhere in the record in this

case. Accordingly, Morello has satisfied the third requirement for a new trial based on newly-

discovered evidence.

                       d.      THE   NEWLY-DISCOVERED      EVIDENCE    WOULD                  HAVE
                               ELIMINATED THE NEED FOR THE TRIAL BELOW

       The final element that must be satisfied for a new trial based on newly discovered

evidence is that the evidence is so material it would probably produce a different result if a new

trial were granted. Waffle House, 313 S.W.3d at 813. Based on testimony from the Heslep

affidavit, this test is met. On this point, Heslep states as follows:

               In essence, the Upper Chicot was erroneously identified as far back as
       1988 as a potentially affected aquifer despite the fact that the Upper Chicot
       generally flows south/southeast, while the flow of the aquifer under the Vision
       Metals/White Lion facility is to the north. This error was carried forward
       thereafter in all reports and proposed plans and adopted by the TCEQ and its
       predecessor. The State failed to detect the error, and required the more stringent
       pump and treat system based on the error. Had this error been detected by the
       State, a less stringent, less expensive monitored natural attenuation plan would
       have been appropriate. A monitored natural attenuation plan would have been
       much cheaper to install, maintain, and operate than the existing system.

              It is my opinion that a monitored natural attenuation plan would have been
       found appropriate for the site from the start of White Lion's ownership of the site,
       had the correct aquifer been identified by the State.

(Ex. E, emphasis added.)




                                                  24
         In summary, and had Plaintiff correctly determined that the aquifer below the Property

was the Brazos River Alluvium Aquifer, CP-50129 would have had vastly different and less

expensive remedial and monitoring provisions. In his affidavit, Morello states that White Lion’s

failure to comply with CP-50129’s remediation and monitoring requirements was due to

financial inability. (Ex. L; Ex. H). Morello also states that Heslep had previously estimated the

costs of a monitored natural attenuation plan (as would have been proper had Plaintiff identified

the proper aquifer at issue), and that White Lion could have financially borne such a burden.

(Id.) In short, there would have been a completely different result in this case and likely no case

at all. Accordingly, Morello satisfied the fourth requirement for a new trial based on newly-

discovered evidence.

   IV.      CONCLUSION

         WHEREFORE, for the reasons provided above, Morello respectfully requests that the

Court vacate its summary judgment of April 14, 2015 and grant him a new trial in this matter.

Morello also requests any and all other and further relief to which he may be entitled.




                                                25
                   Respectfully submitted,

                   LAPEZE & JOHNS, P.L.L.C.



                   By:___________________________
                   Keith W. Lapeze
                   Texas Bar No. 24010176
                   Taylor L. Shipman
                   Texas Bar No. 24079323
                   601 Sawyer Street, Suite 650
                   Houston, Texas 77007
                   Tel. (713) 739-1010
                   Fax. (713) 739-1015
                   keith@lapezejohns.com
                   taylor@lapezejohns.com

                   ATTORNEYS FOR DEFENDANT
	     	  




              26
                             CERTIFICATE OF SERVICE

       A copy of this documents was served on all counsel of record in accordance with the
Texas Rules of Civil Procedure on May 14, 2015.




                                                ____________________________________
                                                Keith W. Lapeze

	  




                                           27
EXHIBIT A
EXHIBIT

  A
                                                              rnard Morello -   9/19/2014

                                                                                      6
       1              (Friday, S    embe r 1 9 ,   2 0 1 4,   1: 11 p. rn. )

       2                         PRO C E E DIN G S

       3                           BERNARD MORELLO,

       4   having taken an oath to tell the t                  , the whole truth,

       5       nothing but         truth, was exarni              and testified as

       6     11ows:

       7                             EXAMINATION

       8   BY MR. PRITZLAFF:

       9        Q.     Good morning.     My name is Craig Pritzlaff.

      10   I'm a lawyer representing the State of Texas, with the

      11   Attorney General's Office, here on behalf of the Texas

      12   Commission on Environmental Quality, TECQ.                  We've met

f~~   13   before, haven't we?

      14        A.     Yes.

      15        Q.     Can you please state your full name for the

      16   record?

      17        A.     Bernard J. Morello.

      18        Q.     And the " J" is for?

      19        A.     Joseph.

      20        Q.     And your current address, please?

      21        A.     5100 San     lipe, Number 78, Houston, Texas

      22   77056.

      23        Q.     That's the same address of White Lion

      24   Holdings, LLC?

      25        A.      Yes.

                          Integrity Legal Support Solutions
                               www.integrity-texas.com
                                                   Bernard Morello -   9/19/2014

                                                                             7
     1           Q.     Your counsel is here, participating by

~    2   telephone, correct?

     3           A.     Yes.

     4           Q.     Have you been to a deposition before?

     5           A.     Yes.

     6           Q.     SO you know how this works; but just as a

     7   reminder, this is similar to as if we were in a

     8   courtroom, but it's much less for.mal.          I'm going to be

     9 asking you a series of questions; and as you can see,

    10   the court reporter is here, taking down everything that

    11   we say.       And you understand everything is going to be

    12   taken down and recorded by the court reporter?

    13           A.     Yes.

    14           Q.     To help her out, let's try not to a talk over

    15   each other.        Respond "yes" or "no."     She cannot record a

    16 head nod or an "uh-huh" or a "huh-uh."             Do you

    17   understand that?

    18           A.      Uh-huh.

    19                         (Laughter. )

    20           Q.      (BY MR. PRITZLAFF)    Okay.   Yes.   Again, let's

    21   not talk over ourselves.

    22                         The notes that the court reporter is

    23   taking down, you will have an opportunity to make

    24   changes to that, to review it, and to sign off of on

    25   that.        Do you understand?

                           Integrity Legal Support Solutions
                                www.integrity-texas.com
                                                         Bernard Morello -     9/19/2014

                                                                                     8
             1        A.   Okay.     Yes.

             2        Q.   The transcript can then be used as evidence.

             3   Do you understand that?

             4        A.   Yes.

             5        Q.   You understand you have taken a sworn oath

             6   today to answer each question in this deposition

             7   truthfully and honestly?

             8        A.   Yes.

             9        Q.   You understand that it's just as if we were

            10   before a jury or a Court and that testimony can be used

            11   in court if necessary?

            12        A.   Yes.

'~
~:;
'-'
 ;-~~   -
            13        Q.   If you don't understand me at any time --

            14                    MR. PRITZLAFF:    Or, Mary,   if you can't

            15   hear me at any time    --
            16        Q.   (BY MR. PRITZLAFF)           just ask me to repeat

            17   or speak up.     And can we have an understanding that if

            18   you ask a question, we can agree you've understood it

            19   and have heard the question?

            20        A.   Yes.

            21        Q.   Now, I'll arrange -- at any point in time if

            22   you need to take a break, please just let us know; and

            23   we'll take a break.        And the restroom facilities are out

            24   in the hall; or if you need to speak with your counsel,

            25   we can set you up in a room as well.


                                Integrity Legal Support Solutions
                                     www.integrity-texas.com
                                                        Bernard Morello -   9/19/2014

                                                                                  9
          1         A.      Okay.

~
~:~-~     2         Q.      Is there anything you need right now before we

          3    get going?

          4         A.      No.

          5         Q.      Are you on any medication or under the

          6    influence of any kind of drug that might influence your

          7    ability to testify truthfully or honestly?

          8         A.      No.

          9         Q.      Do you have any physical, mental, or emotional

        10     ~pair.ment    that might prevent you from answering

        11     truthfully and honestly today?

        I L"        A.      No.

        13          Q.      Did you meet with anyone in preparation for

        14     your deposition?

        15          A.      No.

        16          Q.      Did you review any documents in preparation

        17     for your deposition?

        18          A.      No.

        19                        (Exhibit 1 marked.)

        20                        MS. KOKS:   Craig, this is Mary.    I'm

        21     hoping that the documents you are going to refer to -- I

        22     may have them; I may not.        I have some of the records in

        23     this case.     If you could just tell,    you know,   verbally

        24     which ones they are exactly, then,       I can see if I've got

        25     it so I can look at it as well.


                              Integrity Legal Support Solutions
                                   www.integrity-texas.com
                                                               Bernard Morello -    9/19/2014

                                                                                          10
           1                         MR.    PRITZLAFF:     Understood.   I've marked

~          2   the Notice of Deposi tion as Exhibi t             1.

           3                         MS. KOKS:     Thank you.

           4                         MR.    PRITZLAFF:    And I'm handing it to

           5   Mr. Morello.

           6          Q       (BY MR. PRITZLAFF)          Mr. Morello, did you

           7   receive that document?

           8          A.      Yes.

           9          Q.     Did you review that document?

          10          A.      Not really, no.

          11          Q.     Okay.         On the second page of the document,

          12   there's a list of instructions.                Did you review that?


~
.
~ji;.i~   13          A.      No .

          14          Q.      Okay.        On that page am I    correct that it's

          15   asking for various documents?               Correct?

          16          A.      Yes.     You know,    I'll take that back.       I think

          17   these are questions that Stephen Doggett did ask me.                  We

          18   had a conversation about these,               and I think he said you

          19   had all these documents or he was going to give them to

          20   you.       So I take that back.           I didn't read this.   He read

          21   some of this stuff over the phone to me.

          22          Q.      Okay.        So there are no documents that you're

          23   bringing to the deposition today in response to that

          24   subpoena duces tecum?

          25          A.      No, because, like I said,          I think he said you


                                 Integrity Legal Support Solutions
                                      www.inteqrity-texas.com
                                                               Bernard Morello - 9/19/2014

                                                                                        11
                      1   had all these documents.

~
 ............
:.
     ~~~.:-:                        Okay.     I do have one quick question.
                      2        Q.

                      3        A.   Yes.

                      4        Q.   For Number 1, it says, "A list of all White

                      5 Lion Holdings, LLC's members, managers, officers,

                      6   employees from 2004 to the present."     Does such a list

                      7   exist?

                      8        A.   No.

                      9        Q.   Okay.     On Number 2, "The Company Agreement for

                     10   White Lion Holdings, LLC."    Does such a Company

                     11   Agreement exis t?

                     12        A.   No.


 ~        i-'~_~'
                     13        Q.   Number 3, an operating agreement between White
     -,    :::"- ~


                     14   Lion Holdings and Bernard Morello.     Does such an

                     15   operating agreement exist?

                     16        A.   No.

                     17        Q.   These are self-explanatory, I think.        I did

                     18   speak to Mr. Doggett about the deeds.

                     19                    "All documents relating to the

                     20   conveyance" -- Number 6 "of any real property comprising

                     21   any part of the Site from Bernard Morello to White Lion

                     22   Holdings, LLC."     Do those documents exist?

                     23        A.   No, there is no documents.

                     24        Q.   Number 7, "All documents relating to

                     25   conveyance of any real property comprising any part of


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     1   the Site from any person to Bernard Morello."      Do any

~    2   such documents exist?

     3           A.   No.

     4           Q.   Okay.   Number 8, "All documents relating to

     5   any distribution or compensation from White Lion

     6 Holdings, LLC to Bernard Morello from April 2, 2004

     7   until the present."     Any such documents?

     8           A.   No.

     9           Q.   Number 9, "All documents relating to any loan

    10   from White Lion Holdings, LLC to Bernard Morello from

    11   April 2nd, 2004 to the present."     Do any such documents

    12   exist?

    13           A.   No.

    14           Q.   Number 10, "All documents concerning removal

    15   of any part of the Corrective Action System."

    16   Corrective Action System is defined as that set forth in

    17   Section II of the Compliance Plan, meaning the

    18   groundwater remediation system.     Do any such documents

    19   concerning removal of any part of that Corrective Action

    20   System exist?

    21           A.   I don't have any other than the Compliance

    22   Plan.

    23           Q.   Number 11, "All documents concerning operation

    24   and maintenance of the Corrective Action System."     Do

    25   any such documents exist?

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                1        A.      No.

                2        Q.      "All documents concerning the financial

                3   assurance mechanism for the Site."         Do any such

                4   documents exist?

                5        A.      Other than the original one from 2004 to 2005,

                6   and I think you have that.        I believe you do.

                7        Q.      There's some debate about which one I have,

                8   and I can speak to your counsel to make sure I have the

                9   right one.     I think that covers that document.

               10                       (Exhibit 2 marked.)

               11        Q       (BY MR. PRITZLAFF)     I have a document marked

               12   Exhibit 2, Order.       And have you seen that document?

               13        A.      Yes.

               14        Q.      Okay.    And that document was an order from the

               15   Court, ordering this deposition to proceed today at

               16   1: 00, correct?

               17        A.      Correct.

               18        Q.      Okay.    Other than yourself, is there anyone

               19   else that may have relevant documents?

               20        A.      The lawyers.

               21        Q.      Other than your lawyers, is there anyone else

               22   at White Lion Holdings, LLC that may have documents

               23   reI evan t to this matter?

               24        A.      No.
"\   j
     ~-~~'!!
               25        Q.      Would you say you're the record custodian for

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     1   Whi te Lion Holdings?

     2          A.   I guess you could say that, yes.

     3          Q.   Is anyone else at White Lion Holdings

     4   responsible for maintaining records?

     5          A.   No.

     6          Q.   Since this is a deposition that may -- some of

     7   this   test~ony   may be utilized in court, it would be

     8   helpful for you to tell the jury a little bit about

     9 yourself.      So I would just like to go very briefly into

    10   your background, and then we'll delve into the site.

    11   Have you gone by any other names?

    12          A.   No.


~
    13          Q.   Where were you born?

    14          A.   Omaha, Nebraska.

    15          Q.   And what was your date of birth?

    16          A.   7/21/57.

    17          Q.   How long did you live in Nebraska?

    18          A.   Probably all but the last, maybe, 15 to

    19   16 years.

    20          Q.   Have you lived anywhere else other than

    21   Nebraska and Texas?

    22          A.   No.

    23          Q.   When did you move to Texas?

    24          A.   Probably '98,   '99 area,   somewhere in there.

    25          Q.   Did you go to high school in Nebraska?


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                                                                         15
 1        A.      Yes.

 2       Q.       Did you graduate?

 3        A.      Yes.

 4       Q.       Did you go to college or university?

 5        A.      Yes.

 6        Q.      Which college or university?

 7        A.      UNO, University of Nebraska Omaha.

 8        Q.      Did you graduate?

 9        A.      No.

10        Q.      How many years did you complete?

11        A.      Probably five,    six years off and on.

12        Q.      But no degree?

13        A.      No degree.

14        Q.      What did you study?

15        A.      Business.

16        Q.      Did you have any other education, formal

17   education?

18        A.      Not really.     I mean,    I went to law school; but

19   auditing classes.        That's it,    just aUditing.

20        Q.      Which law school was that?

21        A.      Creighton University.

22        Q.      In Omaha?

23        A.      Yes.

24                       (Reporter requests repeat.)

25                       THE WITNESS:   Creighton.


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                                                                                   16
             1                    MR.   PRITZLAFF:   C-R-E-I-G-H-T-O-N.

             2        Q.    (BY MR. PRITZLAFF)       After your school, did

             3   you -- let me step back to your law school education.

             4   Did you take any courses related to environmental law or

             5   environmental regulations?

             6        A.    No.

             7        Q.    In your undergraduate experience, did you take

             8   any courses related to environmental science?

             9        A.    No.

            10        Q.    Environmental law?

            11        A.    No.

            12        Q.    So you would not hold yourself out as an


~                expert in environmental compliance or environmental law
"-'[:',,;
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            13

            14   matters?

            15        A.    No.

            16        Q.    Have you ever been arrested?

            17        A.    No.

            18        Q.    After your schooling, what did you do?

            19        A.    Well, during schooling,      I worked.   That's why

            20   it was five or six years; and that's why I didn't

            21   graduate because I pretty much worked the whole time,

            22   real estate principally.

            23        Q.    Did you purchase and sell properties?

            24        A.    No, purchase and hold properties.
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            25        Q.    Do you still do that today?

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     1        A.     Yes.

     2        Q.     Do you work in any area outside of Nebraska or

     3   Texas?

     4        A.     No.

     5        Q.     Are you currently married?

     6        A.     No.

     7        Q.     Do you have any children?

     8        A.     No.

     9        Q.     Do you have any family members that have any

    10   interest in White Lion Holdings?

    11        A.     No.

    12        Q.     Let's turn now to 2004 and the former Vision

D   13   Metals site.       How did you learn about the sale of the

    14   property?

    15        A.     You know, this is going back 10 or 11 years;

    16   but I think there was an ad in the Houston Chronicle,        I

    17   believe in the real estate section.       And there was an

    18   auction.

    19        Q.     This was a bankruptcy auction, correct?

    20        A.     Yes.

    21        Q.     Did you conduct any due diligence prior the

    22   purchase?

    23        A.     No, other than go by it.

    24        Q.     When I use the term "due diligence," do you

    25   understand what I mean?

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 1        A.    Yeah, that's pretty broad.

 2        Q.    What does that mean to you when I say "due

 3   diligence" ?

 4        A.    Well, due diligence, to me, is doing an

 5   in-depth study and analysis of the project, the site.        I

 6   do a drive by, typically, before I buy a location, to

 7   look at the transportation aspect of it, the social

 8   economic conditions.     In this case it's really not

 9   important for an industrial site.       It is transportation,

10   but not social economic conditions.       I look at the

11   growth of an area, how the area is growing, and the

12   infrastructure that's in place.

13        Q.    That's a typical type of diligence that you do

14   at other properties you purchase?

15        A.    Yes.

16        Q.    Do you conduct environmental analyses of any

17   of the properties?

18        A.    I never have, no; but I've never bought

19   anything that had any environmental issues with it.

20        Q.    Have you ever purchased any other kind of

21   industrial property?

22        A.    Not -- not like this, no, no.      Industrial-

23   zoned property, yes, but not -- maybe just vacant land,

24   industrial land.

25                     (Exhibit 3 marked.)

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     1           Q       (BY MR. PRITZLAFF)    I'm handing you a document

~    2   I've marked as Exhibit 3, a Real Estate Purchase

     3   Agreement by and between Vision Metals and Bernard

     4 Morello.         Have you seen that document before?

     5           A.     Many years ago.

     6           Q.     What is your understanding of the effect of

     7   this document?

     8                      MS. KOKS:     Objection,   form.

     9           Q       (BY MR. PRITZLAFF)    You can answer if you

    10   understood my question.

    11           A.     No, I don't understand your question.

    12           Q.     What is this document?

    13           A.     A purchase agreement.

    14           Q.     For what?

    15           A.     It's between two parties, the sale of Vision

    16 Metals.

    17           Q.     And who are those parties?

    18           A.     Bernard Morello and Vision Metals.

    19           Q.     And which property does this purchase and sale

    20   agreement concern or real estate agreement concern?

    21           A.      37 acres, 25.322 acres, and 115.22, it looks

    22   like.        I think there's something missing here.   There

    23   should be another tract, too; but I don't see it.

    24           Q.      Is it fair to say it generally encompasses the

    25   site of the for.mer Vision Metals facility that is the

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               1   subject of this suit?

               2         A.     It encompasses,     yes,    the whole farmland and

               3   the plant and some vacant land adjacent to the plant.

               4         Q.     And on page 14, is that your signature?

               S         A.     Yes.

               6                       (Exhibit 4 marked.)

               7         Q      (BY MR. PRITZLAFF)         I'm handing you an exhibit

               8   marked Exhibit 4, First Amendment to Real Estate

               9   Purchase Agreement.        Did this document amend the real

              10   estate purchase agreement that we just looked at in

              11   Exhibit 3?

              12         A.     Yes.

              13         Q.     And on State Bates Number 610, is that your

              14   signature?

              lS         A.     Yes.

              16         Q.     Let's go through this very briefly.

              17         A.     Okay.

              18         Q.     So on the first page of this document, we have

              19   the

              20                       MS. KOKS:   Which one are you referring

              21   to?   I'm sorry.

              22                       MR. PRITZLAFF:      I'm on the First

              23   Amendment to Real Estate Purchase Agreement, Mary.

              24                       MS. KOKS:   Okay.     Thank you .
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        ,'-

              2S                       MR. PRITZLAFF:      We marked that as


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             1   Number 4 .

~
  - 't~ ,
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'7~~         2                       MS. KOKS:    I got that.    Thank you.

             3        Q        (BY MR.   PRITZLAFF)      On state 605, Excluded

             4   Assets, what was excluded out of the deal?

             5        A.       Personal property.

             6        Q.      Okay.

             7        A.       It looks like there was deposits, energy

             8   futures,     things like that.

             9        Q.      And moving to the second page of the

            10   agreement, there was another amendment to Section 3.1,

            11   the purchase price was reduced?

            12        A.      Yes.

            13        Q.      And on Section 6.3, referring to personal

            14   property, what is that?         What was the effect of that

            15   amendment?

            16        A.       I'm not following you on that one.

            17        Q.       I'm on Paragraph E.

            18        A.       Paragraph E.      Okay.    They are to remove it by

            19   August 1st; and if not,         it will be deemed abandoned.

            20   And then the company is entitled to remove property

            21   thereafter.

            22        Q.      What kind of property?

            23        A.       Personal property.

            24         Q.     Was it personal property related to anything

            25   involving the Corrective Action System, the groundwater


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         1   remediation system?

~
'~.:'    2           A.      Some, yes.

         3           Q.     What parts of personal property were involved?

         4           A.      I think compressors, electric switch gear,

         5   some of the -- I think it was called process water

         6   system or something like that, where they were treating

         7   groundwater onsite.

         8           Q.      That was part of the personal property that

         9   was part of the sale?

        10           A.     Well, it wasn't supposed to be part of the

        11   sale.        We had quite a dispute on what was to be sold and

        12   kept with the building and what was to be sold to other

        13   parties.        So it was contested.

        14           Q.      Okay.

        15           A.      Transformers, gone, that I believed stayed

        16   with the building, but went with the personal property.

        17           Q.     Monitoring wells?

        18           A.      No, not monitoring wells.

        19           Q.      Recovery wells?

        20           A.      No.

        21           Q.      Piping from the monitoring or recovery wells?

        22           A.      A lot of it was destroyed.

        23           Q.      SO is it your testimony that piping from

        24   recovery wells was destroyed by --

        25           A.      By third parties, yes.

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               1         Q.     Who?

               2         A.     Purchasers and their contractors.

               3         Q.     Did you specifically witness any of those

               4 parties destroying parts of the Corrective Action

               5   System?

               6         A.     Out of the 38 buyers,    yes,   and their

               7   contractors, yes.

               8         Q.     Which ones?

               9         A.     We have lawsuits pending or we did have

              10   lawsuits on several occasions and the names I don't

              11   know, but I believe you have a packet of all that

              12   in forma t ion.


~
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   ~  ,
              13         Q.     Let's keep going for now .

              14         A.     Okay.

              15         Q.     Section F, what is the effect of that

              16   provision?

              17         A.     That looks like that I have the ability          or

              18   the Corporation, because this was assigned to the

              19   Corporation, has the ability to hire Jennifer Stevens,

              20   current environmental counsel to the Company,            to

              21   facilitate the buyer's dealings with Environmental

              22   Protection Agency,       Texas Commission, with respect to

              23   environmental obligations associated with real estate.

              24   That should be at buyerts sole cost and expense.

              25         Q.     So is it fair to say they loaned you their

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                                                  Bernard Morello -    9/19/2014

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     1   environmental lawyer to assist you with environmental

~    2   matters?

     3           A.     Well,   I don't know if they could have done

     4   that because she was representing them; and we had a

     5   dispute on several items.         So I think that might be a

     6   conflict of interest,       anyway.

     7           Q.     Did you utilize her to help you at all with

     8   any environmental matters?

     9           A.     No, other than I think she filled the forms

    10   out after I had closed on the Permit and Compliance

    11   Plan.        That was a month or two after the closing.

    12           Q.      SO she helped transfer of the Permit and

~   13   Compliance Plan after the transaction?

    14           A.      Yes.

    15           Q.     Did you retain another environmental counsel

    16   to assist you?

    17           A.      No.

    18           Q.      Did you retain any other environmental counsel

    19   to assist you with compliance with the Compliance Plan?

    20           A.      No.

    21           Q.      Did you retain an environmental consultant to

    22   assist you?

    23           A.      No.

    24           Q.      Switching to page 3, Paragraph H,

    25   Post-Closure/Corrective Action Insurance, what is the

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              1   effect of that provision?

              2           A.   I think that was the insurance that I was

              3   referring to that carried over after the closing until

              4   2005.

              5           Q.   Did you -- did White Lion renew that policy?

              6           A.   We tried.

              7           Q.   How did you try?

              8           A.   We contacted whoever the -- I don't remember

              9 who the company was.       We contacted them, and they

             10   declined coverage.

             11           Q.   When you say "we, " who do you mean by "we"?

             12           A.   I contacted them.

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,,~~~~-l
             13           Q.   What is your role at White Lion Holdings, LLC?

             14           A.   Manager.

             15           Q.   Are there any other managers at White Lion?

             16           A.   No.

             17           Q.   Are there any other officers at White Lion?

             18           A.   No.

             19           Q.   Is there any other person other than you at

             20 White Lion that makes decisions for White Lion?

             21           A.   Well, yes, I guess you could say that.

             22           Q.   Who would that person or persons

             23           A.   Well, it would be   -- I made very little
             24   decisions because of the conditions that I was under at
lJ
 '\.   -j.



             25   the time.     So it was driven mainly by the conditions on

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               1   the ground and the damages.     And I was seeking advice

~              2   from two lawyers.     One is George Bamberg,   and the other

               3   was Stephen Doggett, who you know.

               4        Q.   Were they employed by White Lion?

               5        A.   No.

               6        Q.   Did White Lion retain them as counsel?

               7        A.   Yes.

               8        Q.   Did you separately retain them as counsel

               9   individually?

              10        A.   Not until this recent action that the State

              11   has taken, no.

              12        Q.   But --

              13        A.   They never represented me if that's what

              14   you're aSking.     I think that's what you're asking.

              15        Q.   Yes.

              16        A.   Yeah.

              17        Q.   But they are not employed by White Lion?

              18        A.   No.     They are engaged by White Lion.

              19        Q.   They are not part of the management, formal

              20   management structure of White Lion, correct?

              21        A.   No.

              22        Q.   In ter.ms of the for.mal management structure of

              23   White Lion, it's just you, correct?


    »
1---':"
'-...   -->
              24

              25
                        A.

                        Q.
                             Yes.

                             So when you say, "We tried to renew the


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      1   financial assurance policy," work me through that

      2   decision-making process.             The decision-making process

      3   was just solely conducted by yourself, correct, for

      4 Whi te Lion?

      5           A.       Right.     I had contacted -- again,       I don't know

      6   the name     0   f the company now.       It's been ten or eleven

      7   years ago.         And I believe this gentleman in this

      8   agreement, who was -- I don't know what his title was --

      9   but he was a Vision Metals officer, part of the

     10   agreement that was supposed to be transferred is this

     11   insurance.

     12                        I didn't even know what it was,

~~   13   truthfully, until recent time because this is a whole

     14   new area for me; but they said I didn't have the

     15   experience or the qualifications to take over the

     16   post-closure insurance.            And so it kind of stopped from

     17   there; but, yet,          the coverage was still there because it

     18   was part of our agreement.             But I think the company was

     19   kind of saying,           "Hey, wait a second.      This guy doesn't

     20   qua 1 i f y for it."       But, ye t , Vi s ion Me tal s say s ,   " It's

     21   part of the contract."            That's what kind of transpired

     22   there.

     23                        I had a dialogue with them; and they

     24   said,    "You have to have experience running these

     25   facilities."         And I didn't have the experience.


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        1        Q.      Did you investigate what they would require
..~
~;~~
        2   for the experience needed to obtain financial assurance?

        3        A.      They just -- no.     They asked me questions,       you

        4   know, like if I ran a facility.           I said,   "No.   This is

        5   the first time.        I'm a real estate in

        6   vestor."     So, no,    I did not -- it didn't go any further

        7   than that.

        8        Q.      Did you seek out to retain anyone to assist

        9   you that might have that type of experience?

       10        A.      Other than at the time          at that time it was

       11   Mr. Bamberg who was representing me because this was all

       12   part of the closing, no,       I didn't.     He was the attorney


:D     13   that handled the transaction.

                                (Exhibit 5 marked.)
       14

       15        Q       (BY MR. PRITZLAFF)     Hold that one there for a

       16   moment.    We'll come back to it.

       17        A.      Okay.

       18        Q.      It's bringing me down a trail right now.          I've

       19 marked as Exhibit 5 a document, Permit for Industrial

       20   Solid Waste Management Site.        Have you seen this

       21   document before?

       22        A.      Yes.

       23        Q.      This is the hazardous waste and solid waste

       24   permit for the site, correct?

       25        A.      Yes.


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      1                     (Exhibit 6 marked.)

      2        Q     (BY MR. PRITZLAFF)      I'm also handing you a

      3   document that's been marked Exhibit 6, Compliance Plan

      4 for Industrial Waste Management Site.         Have you seen

      5   this one before?

      6        A.   Yes.

      7        Q.   This document covers the remediation system at

      8   the site, correct?

      9        A.   Yes.

     10        Q.   And it specifically covers the solid waste or

     11   hazardous waste impoundments that were for.merly part of

     12   the wastewater treatment plant system at the site,

i}   13   correct, the closure of those units?

     14        A.   Yeah.     I don't know about wastewater.

     15   Wastewater, to me,    is sewage.   So I'm not ...

     16        Q.   When I    say "impoundments at the site, " you

     17   know what I'm speaking of, correct?

     18        A.   The pits or the caps.

     19        Q.   The closed pit area.

     20        A.   The closed pits, yes.

     21        Q.   And the groundwater beneath it has been

     22   contaminated with heavy metals that leach from those

     23   pi ts, correct?

     24        A.    I believe it's stabilized.      I think that was

     25   the purpose of it,     yes.

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               1       Q.    And there's a network of monitoring wells

r~             2   stationed about the site, correct?

               3       A.    Yes.

               4       Q.    To monitor the groundwater beneath the site?

               5       A.    Yes.

               6       Q.    And there also used to be a system of recovery

               7   wells to draw groundwater out of that site, correct?

               8       A.    Yes.

               9       Q.    Please turn to page 20 of 24 of the Compliance

              10   Plan, Section XI, Financial Assurance.

              11        A.   Yes.

              12       Q.    Are you there?


~
"-   ....
,;.~~:::
        ~-"   13        A.   Yes.

              14        Q.   How much financial assurance does this

              15   Compliance Plan require for that property?

              16        A.   It shows 574,000 upon issuance.

              17        Q.   How much financial assurance had Vision Metals

              18   had in the policy that you were attempting to have

              19   transferred?

              20        A.   I think it was about the same amount.

              21        Q.   Did you      were you aware of this provision?

              22        A.   No -- you mean at the time I purchased or

              23   after the fact?     I guess I need for you to expand on

              24   that question a little bit.

              25        Q.   When did you become aware of this provision?


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         1        A.     After the auction and when this issue of

         2   environmental things came up,      after I scratched my ear

         3   at the auction.

         4                      (Exhibit 7 marked.)

         5        Q      (BY MR. PRITZLAFF)     I have here what's been

         6 marked as Exhibit Number 7, entitled Compliance Plan

         7   Application.       Have you seen this before?

         8        A.     Yes.

         9        Q.     And on page 5, is that your signature?

        10        A.     Yes.

        11        Q.     And the last two pages contain a letter and

        12   enclosure signed by Jennifer Stevens, before-mentioned

31      13   Vision Metals' environmental counsel, basically just

        14   transmitting the document and payment for this transfer

        15   of the Permit and Compliance Plan, correct?

        16        A.     Yes.

        17        Q.     So when you said earlier that she helped you,

        18   this basically was her only step, was a formality of

        19   assisting you to transact this application to

        20   transfer

        21        A.     She didn't help me.     She was representing the

        22   seller, not my interest.

        23        Q.     Okay.

        24        A."    Yeah.     This occurred after the closing of the
,):'.
\,
        2S   property.

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               1           Q.     And she was just facilitating the transfer of

~              2   the permit for both parties?

               3           A.     I think that's a fair statement, yes.

               4                         (Exhibit 8 marked.)

               5           Q       (BY MR. PRITZLAFF)    I have a document that's

               6 been marked here as Exhibit 8, a transmittal letter from

               7   TCEQ to Bernard Morello.          Have you seen this before?

               8           A.     It's been a long time.       That's who it's

               9   addressed to.         So I assume I've seen it ten, eleven

              10   years ago.

              11           Q.     And attached to it are two sheets confirming

              12   the transfer of both the Permit 50129 and the Compliance


~ -'~
\-f-.'/~~~\
              13   Plan 50129 to White Lion Holdi.ngs, LLC, correct?

              14           A.     Yes.

              15           Q.     And that's effective July 23, 2004 for both

              16   the Compliance Plan and the Permit, correct?

              17           A.     Yes.

              18           Q.     Did the TCEQ contact you concerning the

              19   financial assurance?

              20           A.     Well, yeah,    I would assume there's probably

              21   something in that letter.          So that's one way of contact,

              22   yeah.        I would say yes.

              23                         I don't understand.    Do you mean like a

              24   telephone call?

              25           Q.      Do you recall a telephone call from TCEQ?

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                1          A.    Well,   I had a dialogue with an Ellie Weinert

                2   from TCEQ.     So we may have talked about it at the time.

                3          Q.    Was this after the permit was transferred?

                4          A.    We had several conversations up until the time

                5   the State filed a lawsuit, and she said she couldn't

                6   talk to me anymore.       And I haven't had a conversation

                7   with her since then.       I don't know the gist of the

                8   conversation that far back.

                9          Q.    At least as of July 23rd, 2004, you were aware

               10   of the financial assurance obligations at the site,

               11   correct?

               12          A.    Yes, I believe it was in place at that time.

               13                    (Exhibit 9 marked.)

               14          Q     (BY MR.   PRITZLAFF)   I'm handing you a document

               15   that's been marked Exhibit 9, correspondence from TCEQ

               16   to Bernard Morello, Sole Manager of White Lion Holdings,

               17   LLC, dated September 20th, 2004.        It's been a long time,

               18   but do you recall this letter?

               19          A.    Not really, you know.     It's been ten years

               20   ago.    Not specif ics about it.     I mean, I can read it;

               21   and it might bring some memories.

               22          Q.    Why don't you go ahead and take some time to

               23   review it?

               24          A.    Okay.
\

    ,
        ~
        --.,
         -:'
               25                    MS. KOKS:    While he's doing that, Craig,

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 1   can you tell me again what it is?           I was trying to write

 2   all this down.       It's a letter dated what?

 3                      MR. PRITZLAFF:    September 20th, 2004,

 4   RE:    Financial Assurance, site.

 5                      MS. KOKS:   Thank you.

 6                      MR. PRITZLAFF:    State Bates Number 626,

 7   627.

 8          A.   Okay.     I read it.

 9          Q    (BY MR. PRITZLAFF)      Does that refresh your

10   recollection of events?

11          A.   Yeah.     It looks like she was responding to a

12   letter that I had forwarded to her.

13          Q.   The letter references the prior, in-place

14   Vision financial assurance, does it not?

15          A.   Yes.

16          Q.   And is it fair to say that the TCEQ advised

17   you there on page 2 that, "We understand that financial

18   assurance for this permit and compliance plan currently

1~   is in effect through an insurance policy issued by

20   Zurich North America Insurance to the previous facility

21   owner, Visions Metals, Inc.         However, as we stated

22   in our August 27th, 2004 letter to you, White Lion, as

23   the new owner and operator, is required to establish

24   financial assurance with" -- probably should be

25   "within" -- "six months of the ownership change.            To


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     1   date, this has not been done."

     2                    Further down in the letter, "Please

     3 provide adequate financial assurance, as is required

     4   under 30 TAC, Chapter 37, Subchapter P, by October 6th,

     5   2004."

     6                    Is that an accurate reading of those

     7   provisions of the letter?

     8        A.   Yes, uh-huh.

     9        Q.   Did you -- did White Lion provide financial

    10   assurance by October 6th, 2004?

    11        A.   Yes.     Because of the financial insurance that

    12   I assumed through the purchase, yes.       I believe it

~   13   expired January of 2005,     I think it was.

    14        Q.   Do you agree that TCEQ disagreed that the

    15   Zurich North American insurance policy that you believe

    16   was applicable was not applicable?

    17                    MS. KOKS:   Objection, form.

    18        Q    (BY MR. PRITZLAFF)      If you understood that,

    19   you can answer.

    20        A.   I think there was a question whether it was

    21   applicable or was not applicable.       We were having a

    22   dialogue about that.     That's when I called whoever

    23   Zurich was represented by.

    24                    (Exhibit 10 marked.)

    25        Q    (BY MR. PRITZLAFF)      I have here a document

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      1   marked as Exhibit 10, dated October 7th, 2004, State 630


•
*
--    2

      3
          to 631.       This is correspondence from TCEQ to Bernard

          Morello, Sole Manager, White Lion Holdings, LLC,

      4 correct?

      5           A.     Yes.

      6           Q.     Why don't you take a moment to read that?

      7           A.     Okay.

      8           Q.     What is your understanding of this letter?

      9           A.     Kind of a backup to the previous letter,      just

     10   saying that they have not received an acceptable

     11   financial mechanism due on October 6th.

     12           Q.     Was an acceptable financial assurance

     13 mechanism ever provided to TCEQ?

     14           A.      From my understanding, up until January of

     15   2005, it was; but I don't in any way,         shape, or form

     16   expect to be an expert in this area.          So I really don't

     17   know.        The purchase agreement, obviously, says it's to

     18   be transferred.        So I believe they had paid the policy

     19   in full,       and they received no refund.   So it was just

     20   transferred to White Lion Holdings.

     21           Q.     Was a copy of that transferred policy in White

     22   Lion's name submitted to TCEQ?

     23           A.      I don't know if the lawyer, Mr. Bamberg,

     24   submitted that or not -- or Jennifer Stevens.          I would

     25   not know that.         I wouldn't have probably handled that,

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         1   anyway.     It would have been the lawyers' responsibility

r,~      2   to do that, I would think, at the closing or -- I

         3   don't -- no, I didn't -- I didn't -- it wasn't my

         4   responsibility as part of the purchase agreement to get

         5   that transferred.     It was my understanding it was

         6   transferred.

         7         Q.    When you began to receive these letters from

         8   TCEQ in Septeinber and October, what di.d you do to

         9   inquire about the financi.al assurance?

        10         A.     I had a very good dialogue with the EPA out of

        11   Dallas, and they were the ones that were helping me

        12   along.     And I asked them about this; and they said,

.~
,-f{/   13   "Well, that's a prorated number; and that is based upon

        14   many years ago when the plan was started.      It was in the

        15   Eighties sometime, and that should be reduced."        Because

        16   I didn't know anything about this.      This is all new to

        17   me.   I didn't even know what this was about.

        18                    So they said, "You can get that reduced."

        19   So any of the correspondence that you see, like this

        20   letter here, correspondence, that was written by EPA and

        21   signed by me.

        22                    MR. PRITZLAFF:   Objection, nonresponsive.

        23         Q      (BY MR. PRITZLAFF)   My question is:   When you

        24   received this correspondence from the TCEQ, how did you

        25   respond to TCEQ with respect to the financial assurance?

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                     1        A.     I first called up the Dallas office of EPA and

                     2   ask them,   "What is this?   What does this mean?"    And

                     3   they would kind of explain to me what it meant.       Again,

                     4   I think I had several conference calls with Eleanor,

                     5   "Ellie" Weinert; and she would kind of go through the

                     6   process with me, also.

                     7        Q.     Did you investigate how much it would cost to

                     8   obtain financial assurance in the amount specified in

                     9   the Compliance Plan?

                    10        A.     Yes.   I think actually on the policy there was

                    11   a number -- and I don't remember        but it was a huge

                    12   number for financial assurance.       I don't know what that


1D,~~

    . .w
~_;;-
        .
   '"'it!:  ~'-"
                    13

                    14
                         number is, but I got sort of like a dec sheet of the

                         policy and it showed how much the premium was.

                    15        Q.     Who at White Lion would analyze the financial

                    16   ~lications     of obtaining financial assurance as

                    17   specified in the Compliance Plan, Section XI?

                    18        A.     I mean,   I was the only one; but I didn't know

                    19   anything about it.     So, again,   I didn't know anything

                    20   about it.    So I was just asking these other folks that I

                    21   mentioned at EPA and TCEQ.     SO they were kind of helping

                    22   me along.

                    23        Q.     Could White Lion Holdings, LLC afford to host

                    24   the financial assurance as specified in Section XI of
. "
      J '   -~~~:
              "

                    25   the Compliance Plan?

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      1        A.   No.    That's why they denied my application.

      2   They sent out an application; and I was not experienced

      3   enough to do this,    to run an operation like this.         And I

      4   may be confusing that with the permit, too, because I

      5   think the permit said the same thing.        They waived any

      6   experience at all.

      7        Q.   To your knowledge, did they base their

      8   decision on the financial wherewithal of White Lion

      9   Holdings, LLC?

     10        A.   They may have.

     11        Q.   Were you required to submit financial

     12   documents to the insurance company as part of your

     13   application to obtain financial assurance?

     14        A.   I think what I told them is probably all the

     15   assets they have is just the facility,       and there's a

     16   loan against it.     So that was it.     It was new,   so.

     17        Q.   Which company were you speaking with to obtain

     18   financial assurance?

     19        A.   Again, I don't know.        Whoever represented

     20   Zurich Insurance.     I don't know who that is.

     21        Q.   Did you investigate any other companies to

     22   obtain financial assurance?

     23        A.   No.

     24        Q.   Why not?
,~
.Y
     25        A.   Well, you know,    first,    I didn't know about it;


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       1   and, then, according to what they were telling me, this
~;~    2   is a very, very specialized area of insurance.       There's

       3   very few people that sell that product.

       4          Q.   When you say "at first I didn't know about

       5   it," you knew about it at least as of July 23rd, 2004,

       6   correct?

       7          A.   I -- yeah, according to the letters, yes.

       8   Yes.

       9          Q.   Did anyone -- strike that.

      10                    As the sole decisionmaker at White Lion,

      11   you allowed White Lion to not provide financial

      12   assurance as specified in Section XI of the Compliance

~     13   Plan, correct?

      14          A.   I don't know if I can say I didn't allow.     I

      15   didn't even know what it is or what it's even for.       It's

      16   not did I allow.     All I know is the premium was

      17   extremely high,     and I could not afford that.   I was just

      18   starting a new project, so.

      19          Q.   So as the sole decisionmaker at White Lion,

      20   you, for whatever reason, permitted White Lion to not

      21   obtain financial assurance, correct?

      22          A.   Yeah,   for whatever reason.   Yes.

      23          Q.   As the sole decisionmaker for White Lion, you

      24   caused White Lion to not obtain financial assurance as

      25   specified in Section XI of the Compliance Plan, correct?

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 1        A.      No.

 2                      MS. KOKS:   Objection,   form.

 3        A.      I think I answered it already:         No.

 4        Q       (BY MR. PRITZLAFF)     You individually allowed

 5 the financial assurance at the facility to lapse,

 6   correct?

 7        A.      No.

 8        Q.      You individually permitted the financial

 9 assurance at the facility to lapse, correct?

10        A.      No.

11        Q.      Who permitted the financial insurance to

12   lapse?

13        A.      I guess it would fall back on the condition

14   that I was under.       I could not provide financial

15   assurance.     I was not acceptable for that,        for financial

16   assurance.     So it's not like -- first,      I didn't know

17   what it was for; secondly, I could not really afford it,

18   starting a new project; and, thirdly, the folks for both

19   EPA and TCEQ were telling me that's based upon a

20   Compliance Plan that is -- I think it was 30 or

21   32 years.     And it's prorated over a period of years; so

22   that number would be drastically reduced.           So those

23   elements, it's like putting somebody in a car that

24   doesn't know how to drive.

25        Q.      Is it fair to say you didn't know how to drive

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                  1   Whi te Lion?

                  2        A.    Yeah.

                  3                     MS. KOKS:     Objection,    form.

                  4        A.    I guess so.        I'd say that.

                  5        Q     (BY MR. PRITZLAFF)        Did you look at retaining

                  6   any consultant to assist you or advise you with respect

                  7   to obtaining financial assurance?

                  8        A.    No.

                  9        Q.    Let's go back to Exhibit 4, please.

                 10        A.    Okay.

                 11                     MR. PRITZLAFF:     Back on Exhibit 4, Mary.

                 12                     MS. KOKS:     Thank you.

                 13        Q     (BY MR. PRITZLAFF)        Page 3, Section I,

                 14   Mr. Morello, why don't you take a moment to read that?

                 15        A.    Section 5?

                 16        Q.    "I" as in "indigo. "

                 17        A.    Okay.

                 18        Q.    It's entitled Utilities.           Read that and tell

                 19 me what your understanding of that provision is.

                 20        A.    Okay.

                 21        Q.    You've completed reading it?

                 22        A.    Yes.

                 23        Q.    What is the ANTS facility?

                 24        A.    I have no idea.
\
    '.
         :9
         -"',-
          '


                 25        Q.    Does the term "Acid Neutralization Treatment

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      1   System" sound correct?

      2        A.    Yes.

      3        Q.    Do you know what the Acid Neutralization

      4   Treatment System is?

      5        A.    I think that was the process that I referred

      6   to earlier.      That's what I believe it is.

      7        Q.    Do you know whether that ANTS facility was

      8   utilized for treatment of groundwater recovered from the

      9   Corrective Action System?

     10        A.    Yes,    I believe so.

     11        Q.    This provision says that the buyer will agree

     12   to continue to run the ANTS facility, correct?

     13        A.    Right.

     14        Q.    So this ANTS facility and the treatment system

     15   associated -- which is the treatment system associated

     16   with the Corrective Action System, was not part of the

     17   personal property that was sold separately, correct?

     18        A.    No,    I'm not quite sure of that.    I can't say

     19   "yes" or "no."      I do not know that.

     20        Q.    But, in any event, this provision says that

     21   the buyer shall continue to run the ANTS facility,

     22   correct?

     23        A.    Right.

     24                     (Exhibit 11 marked.)
.)
     25        Q        (BY MR. PRITZLAFF)   Hold that one.   I have

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      1   here Exhibit 11.

      2                        MR. PRITZLAFF:       Mary, Assignment of Real

      3   Estate Purchase Agreement, which we marked as 11.

      4                        MS. KOKS:    Okay.     Thank you.

      5           Q       (BY MR. PRITZLAFF)        Mr. Morello, do you want

      6   to take a moment to read that and explain what this

      7   document is?

      8           A.      This would be because at the time I showed up

      9   at the auction,          I didn't have a corporation; and I

     10   believe the purchase agreement -- and maybe it's this

     11   agreement; I'm not real sure -- allowed me to assign the

     12   facility to a corporation.            I believe that's what this
('
     13   is.     Yeah.

     14           Q.      Who did you assign it to?

     15           A.      To White Lion Holdings.

     16           Q.      Okay.    So you initially purchased the facility

     17   and then transferred your rights, duties, and

     18   obligations under the real estate contract to White

     19   Lion?

     20           A.      Right.     I assigned my rights to White Lion

     21   Holdings,       yeah.

     22           Q.      I   just wanted to make sure we had that on the

     23   record.      So when we're speaking of the duties under this

     24   agreement, it's now flowing to White Lion; with you as
.J   25   sole owner?

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     1           A.   Correct.

     2           Q.   So now, back to Exhibit 4, which is the one

     3   right in front of you.

     4           A.   Okay.

     5           Q.   Back to the amendment.   Back to page 3,

     6   Section I.

     7           A.   Okay.

     8           Q.   We've discussed the buyer continues to agree

     9   to run the ANTS facility after closing and to continue

    10   to run any and all facilities necessary to comply with

    11   the environmental obligations associated with the real

    12   property, correct?

    13           A.   Yes.

    14           Q.   And I want to clarify what you've stated

    15   earlier with respect to the personal property.      That was

    16   excluded or otherwise sold separately by Vision,

    17   correct?

    18           A.   Yes.

    19           Q.   Okay.   This provision states that the buyer,

    20   you, White Lion, would continue to run the Corrective

    21   Action System, correct?

    22           A.   Run ANTS facility.   So that's what it says,

    23   ANTS.

    24           Q.   And continue on to that same paragraph.
)
    25   " ... and to run any and all facilities necessary to

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                        1   comply with the environmental obligations associated

~                       2   with the"

                        3        A.     Yes, right.

                        4        Q.     Would you agree that that includes the

                        5   Corrective Action System?

                        6        A.     Yeah.   But,   you know,   corrective action -- I'm

                        7   you know, a little confused.       Corrective Action System,

                        8   Compliance Plan,    I'm a little confused on the terms.

                        9        Q.     Sure.   Well, let's explore what the Corrective

                       10   Action System is then.

                       11        A.     Okay.

                       12        Q.     Let's turn to the Compliance Plan --

/1  _,~ 'f'~i.'
,:~~.
                       13        A.     Okay.

                       14        Q.     -- which is Exhibit 6.

                       15        A.     Okay.

                       16        Q.     I'd refer you to page 4 --

                       17        A.     Okay.

                       18        Q.     -- entitled Corrective Action Systems.

                       19        A.     Okay.

                       20        Q.     Why don't you read through Section II for a

                       21   moment and then tell me when you're ready.

                       22        A.     Okay.

                       23        Q.     Did that help refresh your recollection of

                       24   what the Corrective Action System is?
      )
                   ,

,        .        -'


                       25        A.     Well, yes -- not my recollection.       I just -- I


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 1   don't know these terms you're using.         I know "Compliance

 2   Plan" because I see it here.      Okay.    Yes.

 3           Q.   What is your understanding of the Corrective

 4   Action System?

 5           A.   It -- what page is that on?

 6           Q.   Page 4 of 24.

 7           A.   To install and operate a Corrective Action

 8   System with groundwater monitoring background wells,

 9   point of compliance wells.

10           Q.   And then observation wells and other wells to

11   remediate and/or contain contaminated groundwater,

12   correct?

13           A.   Yes.

14           Q.   And then if you will turn to Table 2, page 23

15   of 24, do you agree that this page comprises a list of

16   those wells that are the Corrective Action System?

17           A.   I believe that's what's referred to,     yes.

18   Yeah.

19           Q.   So in Section A there are three background

20   monitoring wells, correct?

21           A.   Yes.

22           Q.   And in Section B there are 13 points of

23   compliance wells, monitoring wells, correct?

24           A.   According to this,   yes.

25           Q.   And in Section C there are five recovery


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     1   system wells, correct?

     2        A.    Yes.

     3        Q.    And in Section D there are 9 wells associated

     4   with monitoring wells, observation wells, correct?

     5        A.    Yes.

     6        Q.    So there's approximately 26 total wells,

     7   correct?

     8        A.    I haven't added them up, but I believe what

     9   you say.   I haven't added them up.

    10        Q.    Do you want to add them up yourself?

    11        A.    No.     I believe you.

    12        Q.    If you'll note on Section C, Zone 1, RW-26 ,


J   13   Recovery Well 26

    14        A.    Okay.

    15        Q.    -- so that gets you to 26 total wells?

    16        A.    Yes.

    17        Q.    Some wells, if you'll note, have an A, B, or C

    18   behind them.

    19        A.    Okay.

    20        Q.    Do you know what that means?

    21        A.    No,    I do not.

    22        Q.    Do you now have an understanding of the

    23   Corrective Action System, of what it involves?

    24        A.    Basically, yes.

    25        Q.    Okay.     Would you agree that that system was

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 1   not part of the personal property sold by Vision Metals?

 2        A.      No,    I do not agree.   As I said before,    the

 3   utilities and the lines were cut and severed;

 4   trans formers were removed.       So part of this process

 5   system was removed.        So I think it was all linked

 6   together.

 7        Q.      When was the process system removed?

 8        A.      Part of it was removed,     I believe,    right at

 9   the time of the sale.        The buyers came in there.      And

10   then afterwards, whatever was kind of left is when I

11   took it down.

12        Q.      What did you take down?

13        A.      There was tanks and -- that's all I remember

14   were jus t   1 arge tanks.

15        Q.      You yourself?

16        A.      Yes.

17        Q.      What equipment did you use?

18        A.      We had cranes.     I had help,   too.    I didn't do

19   it all myself, but I had cranes to take it down.

20        Q.      Did you take out the monitoring wells?

21        A.      No.

22        Q.      Who took out the monitoring wells?

23        A.      I think the monitoring wells had been damaged

24   for years.     If you're referring to the wells around the

25   mounds, we didn't take them out.         They were damaged over

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                  1   the years.

    ~
    -:~ - ~ "
     .            2           Q.     What did the monitoring well look like?

                  3           A.      PVC and the metal cap over it.

                  4           Q.      How tall was the metal cap?

                  5           A.      I don't know.         Maybe 3, 4 feet,     2 feet,

                  6 protruding out of the ground.

                  7           Q.     Was it colored?

                  8           A.      Yes.

                  9           Q.     What color?

                 10           A.     White and orange,          I believe.

                 11           Q.     Were they highly visible?

                 12           A.      Yes.     Oh, sure .

-
         ~
    ,,'~~~-:~'
     .           13           Q.      They were visible onsite in 2004?

                 14           A.      You know,      I can't say in 2004 that I walked

                 15   back there.        You could see the ones from the building,

                 16   yes; but it covered a fairly good-sized area.                   So I

                 17   don't know, you know, if all of them were there at that

                 18   time.        I don't know.

                 19                          MR.   PRITZLAFF:       We've been going for over

                 20   an hour.        Do you need a break?

                 21                          THE WITNESS:       No, I'm fine.

                 22                          MR. PRITZLAFF:         Mary, are you okay?

                 23                          MS. KOKS:      Yeah,    I'm all right.

                 24                          MR. PRITZLAFF:         Okay.   Let's proceed for

                 25   a little while longer.

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          1          Q       (BY MR. PRITZLAFF) Tell me a little bit about

f'~.J>    2   the site itself.         What was the plan for the site?

          3          A.      You mean once I had acquired it?

          4          Q.     Correct.

          5          A.      First,    I just wanted to buy the farmland and

          6   the buildings.          That's what I showed up at the auction

          7   for.       The plan was to as soon as the       this is right

          8   after the closing.          I believe the buyers moved in right

          9   away, personal property buyers.          And the goal was to get

         10   the buildings empty, because they bought all the

         11   personal effects, and to lease it out,         lease each

         12   building      o~t.   That was kind of the plan.    That plan

 ,~      13   dramat.ically changed at the end of the removal date.

         14          Q.      Bow so?

         15          A.      The buyers, the personal property buyers --

         16   and I'm not saying all 38 of them because some of them

         17   acted extremely responsible if they did damages.            But

         18   several of them did extensive damage to the utility

         19   infrastructure there.          It was so unsafe to use anything

         20   there without shutting everything down because there was

         21   open water lines.          There was open gas lines.   There was

         22   open electrical lines, high voltage.          Whatever other

         23   kind of lines, whatever utilities there were, they were

         24   virtually destroyed.          And the way I've compared it is

         25   going into a war zone; and after the war is over with,

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 1   things are cannibalized.     I mean, that's basically what

 2   it looked like after the removal process.

 3        Q.     Let's say in 2004, how often would you be at

 4   the site?

 5       A.      During the removal, every day, even Saturdays

 6 and Sundays.

 7        Q.     How engaged were you in the cleanup process?

 8        A.     Are we talking about cleanup or removal of

 9 personal property?

10        Q.     Tell me how involved you were and how you were

11   involved in sort of a general, broad sense.

12        A.     Well, I was trying to protect and have the

13   buyers respect the real property.     And so I was from one

14   end of the facility to the other and there was so much

15   going on and the buyers had -- which was probably the

16   worst thing -- unfettered access to the facility.        They

17   had a short window, depending on what they purchased, to

18   remove it from the facility.     So they took whatever

19 measures they could with total disregard for real

20   property and the buildings.     They just went in there and

21   did whatever they could to get their equipment out.

22   That's all they were interested in.

23                   And it wasn't up to me even though I

24   fought this.    The auctioneer had control of these

25   buyers, and that's what started these damage lawsuits is

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 1   that they didn't want to fix.       Some did.    Some acted

 2   real responsibly.     They came to me and said,     "Hey, we

 3   did some damage; we'll fix it."

 4                    I said,   "That's fantastic."

 5                    Others just walked away,   just said,

 6   "Forget it."     And so after -- I don't know.      It was

 7 after a year or something that notices were sent out we

 8   finally filed a lawsuit and proceeded, you know,         to go

 9   after them.

10                    Along the way -- if you want me to keep

11   going here.

12        Q.   Yes, please.

13        A.   -- they wanted me to mitigate the damages.             So

14   I was -- my plan basically for the facility was thrown

15   out because I realize when somebody buys a facility like

16   that I would have some work to do,      cleanup work to do;

17   it's not tidy.     The floors were not going to be where

18   you could eat off of them.      So I knew there was some

19   cleanup I had to do, but we're talking major cleanup.

20   There were estimates out there well over a million

21   dollars worth of damage.      That was unforeseen.    I had no

22   idea that was going to happen.

23                    You know,   the personal property buyers

24   and the auction company were trying to pretty much get

25   rid of me so they could do their removal.        And they were

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     1   threatening that I was interfering with them, and I was

~    2   only trying to protect the property.    And, you know, the

     3 dynamics of the project and the direction of the project

     4 turned 180 degrees when all that happened.      And so it's

     5 been a maj or struggle.

     6                  And I haven't wavered one bit on it from

     7 day one.     I'm as excited about the project today as I

     8 was back then.     And then when the State came down and

     9 started enforcing this in 2013, that moved any of my

    10   efforts to continue to now efforts to deal with the

    11   State, in all honesty.

    12                  So I've been lacking.   And the place

    13   looks -- it doesn't even look like the same place that

    14   it did from the time I saw it in the beginning before

    15   the Company bought it.   And it doesn't look anything

    16   like it did after the removal.    It's a totally changed

    17   place.    I think there has been a video that I believe

    18 Mr. Doggett offered to you at one time; and, as I said,

    19   it looked like a war zone.   And it looks presentable.

    20   That was my goal, to make it look presentable, enticing

    21   for industry or storage to lease.

    22                  And it's been -- because I've had no

    23   utilities, it has been an extremely difficult task to do

    24   that.    So it's been used for staging basically because

    25   there is no utilities.    That's it in a nutshell.

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     1                    And maybe I went on too much or didn't

~    2 answer your question, but I don't think I've ever

     3   expressed that or you maybe don't know any of the

     4   background.     I know your big focus is this area here,

     5   but I had a huge amount of responsibilities that was

     6   undertaken.     And they just got larger as it progressed,

     7   so.

     8           Q.   Anything you want to add on to that; or does

     9   that encapsulate the situation as you saw it 2004, post

    10 purchase to date in terms of what was going on at the

    11   site?

    12           A.   Yeah.   I mean,   you know,   there was no option

    13   once the damages occurred ln what could be done.           That

    14   restricted a lot of things.        I had no experience.        I was

    15   buying some metal buildings on a piece of ground and

    16   some farmland and trying to lease it out; but I

    17   probably -- after that happened,       I took on something

    18   much greater than I expected.        And they were

    19   circumstances out of my control when other people

    20   damaged the property.      I have high respect, myself,         for

    21   other people's possessions; but other people in this

    22   world do not.

    23           Q.   Did you make any decisions for White Lion to

    24   retain additional employees to help you monitor the

    25   situation at the site?

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 1          A.   When you say "monitor," I don't understand

 2 what you mean by that.

 3          Q.   Well, when you were explaining what was going

 4 on and you were having to run from one point to the

 5   other and people were coming into your facility with

 6 unrestricted access and out of the facility, is it fair
                                                       •
 7   to say that you were stretched thin,   trying to monitor

 8   everything going on?

 9          A.   Well, the buyers were trying to go back -- and

10   the auction company -- go back to the bankruptcy court,

11   saying I was interrupting the removal operations.     And

12   there was a window.    It depended on what you acquired

13   there as personal property; but there was a window to

14   get things out, a 30-day, 60-day, 90-day window.

15                   And it was a difficult task because some

16   people's personal property was in front.    This was a

17   jam-packed facility with equipment allover; and to get

18   one machine out, you had to move another machine.     So

19   there was a lot of argument among the buyers of, "You've

20   got to get your machinery out so I can get mine out."

21                   In the meantime, my concern was damage to

22   the facility.    That was my principal concern; but they

23   were trying to get me out of the picture as much as they

24   could so they could, you know, get their possessions

25   out.    I think because it was such a short window -- and

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        1   this is -- I'm only saying this as,              I guess,   in

        2   hindsight,       you could say.       I think what happened is the

        3   creditors wanted to close out the estate; and they were

        4   forced to just say,         "Get this stuff out."        Because my

        5   understanding is they had two other auctions at this

        6   facility to try to sell it.             I didn't attend it.      I

        7   didn't know about it until after.               So it was a going

        8   concern as a pipe manufacturer.

        9           Q.     Was all that work completed by August 1st,

       10   2004?

       11           A.     August 1st?      No.   There was a buyer that

       12   stayed longer,        and they had       they needed more time to

,::I   13   remove some of there equipment out of there.

       14           Q.     Just one buyer?

       15           A.     One of the buyers,      yes.

       16           Q.      So most of the work, then, was completed by

       17   August 1st?

       18           A.     No,    there were several people that just walked

       19   away.        The buyer I'm referring to,        they were actually

       20   the buyer of the facility; but they were going to buy

       21   the whole thing,         lock, stock, and barrel, not as a going

       22   concern, but all the machinery.               And they

       23           Q.      They weren't the buyer, prospective purchaser?

       24           A.      No,   no, no.   They were the buyer of the real
 )
       25   and personal property.


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                        1          Q.   I thought you were the purchaser of the
.~  ,'..::, ~~
    -,                  2   property?

                        3          A.   Well, what happened,     the way they set it up is

                        4   they tried to -- wanted to maximize the estate.        So they

                        5 auctioned it in two different ways, either as a bulk

                        6   bid,   real and personal property, and as a bid just for

                        7   the real property and then a bid for that personal

                        8   property.     And somebody else was the higher bidder.        It

                        9 happened to be one of the associates of the buyer; but

                       10   there was a several-million-dollar check,       I guess, that

                       11   came back insufficient.       So that's when it fell back on

                       12   me.    And that's kind of how that -- I was not really the

                       13   first buyer there.     I   was kind of the fallback buyer.

                       14          Q.   You can't disagree that you're the owner of

                       15   the property?

                       16          A.   White Lion is the owner of the property,        yes.

                       17   Yes.

                       18                    MS. KOKS:    Can we clarify what we mean by

                       19   "the property"?     I think there's been some confusion on

                       20   that point.

                       21          Q    (BY MR. PRITZLAFF)     What does "the property"

                       22   mean to you?

                       23          A.   Well, when I     had raised my hand or scratched

                       24   my ear, whatever you want to call it, at the auction,          it
~
    .)
     -   -       -~"




                       25   was broken down into farmland and then vacant land and

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                                                                          59
 1   then plant land.        The plant encompassed 37 acres.     And

 2   then there was some vacant land that was a forested

 3   area,    I guess you would call it; it was covered in trees

 4   at the time and that was adjacent to the plant.           And

 5   then beyond that is the farm ground.

 6           Q.   And the far.m ground encompasses 115 acres,

 7   correct?

 8           A.   Yes.     The farmland is owned by myself and I'm

 9   not exactly sure of the acres, but I believe it's 115.

10   I believe you're probably right there.

11           Q.   And so the balance of the real estate that was

12   the subject of the real estate purchase agreement stayed

13   with White Lion Holdings.        The farmland component of

14   approx~tely         115 acres, you later conveyed -- or it was

1S   conveyed to you specifically, Mr. Morello?

16           A.   Right.

17           Q.   When all of the personal property removal was

18   occurring was post-sale, mostly pre-August 2004,

19   correct?

20           A.   The majority,    other than some people just

21   wal ked away.

22           Q.   Did you direct White Lion to retain any

23   additional personnel to assist with the oversight of the

24   personal property removal?

25           A.   No.


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 1         Q.   You mentioned White Lion was then embroiled

 2   or brought a series of lawsuits against some of the

 3   entities involved with the removal of the properties,

 4   correct?

 5         A.   Right.

 6         Q.   Did any of those suits concern specifically

 7   strike that question, and let me start over.

 8                     Did any of those lawsuits specifically

 9 address any of those entities that were sued causing

10 White Lion to not comply with the Permit or the

11   Compliance Plan?

12         A.   Yes.

13         Q.   In which lawsuits was that claim specifically

14 made?

15         A.   Any lawsuits -- and I don't have the names of

16   the parties -- but any lawsuits that stated in there

17   about the utilities or damage to utilities.      And this

18   keeps in my mind a professional and workmanlike manner.

19   Those are the parties that we filed lawsuits against,

20   and I don't have specific names for you.

21         Q.   Was a specific claim made based upon -- for

22   interference with White Lion's ability to comply with

23   the Permit or Compliance Plan?

24         A.   I don't know how the lawsuit was framed.        I

25   don't know that.      Again, that was ten years ago.   I


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 1   don't know.     I can't answer that.

 2           Q.   Was a specific suit filed against any entity

 3   for damage done to the Corrective Action System?

 4           A.   I don't know if it's ever mentioned the word

 5   "Corrective Action System" in the lawsui ts.       I can't say

 6   that because I haven't seen those for years.        I don't

 7   know.

 8           Q.   Has any of those lawsuits concerned damage to

 9   a moni toring well?

10           A.   Again,   that's the same answer.   I don't know.

11   I haven't seen those lawsuits for years.        So I don't

12   know.

13           Q.   Do any of those lawsuits concern damage to a

14   recovery well?

15           A.   Same answer.     I don't know.

16           Q.   Did you specifically see a party remove a

17   monitoring well?

18           A.   No, not -- no.

19           Q.   Did you specifically see any person remove any

20   monitoring well at the site?

21           A.   Well, when you say "remove," I don't know

22   maybe you can explain what you mean by "remove."

23           Q.   You previously described the monitoring wells

24   on the site as a 3-foot yellow box sticking out of the

25   ground?

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                                                                 rnard Morel        - 9/19/2014
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           1         A.     Right.

~
!1i,'4i
"
           2         Q.     Did you see anyone remove any of those                 ye~~ow


           3   boxes?

           4         A.      I can say that I saw it damaged.              I t     nk it

           5     Ils back to the            ent, is what I'm trying to              t to.

           6   Did        y intenti        ly damage them?        No,   I don't t        nk

           7   so.   No.

           8         Q.     Did you notify TCEQ of this damage?

           9         A.      No.

          10         Q.     Why not?

          11         A.      I didn't even know I had to.

          12                       MR.      TZLAFF:     Why don't we take a

.])       13   break?      We've been going for over an hour and a half.

          14                       MS. KOKS:    That's          e with me.       Thank

          15   you, guys.      I'm going to put you on mute so that you

          16   don't hear any background noise.

          17                       MR. PRITZLAFF:          's reconvene in

          18   ten minutes.        Is that too much time or too little?

          19                       THE WITNESS:       No, that's fine.

          20                       MS. KOKS:    That's fine.        I'll tell you

          21   what, I'll just call back in.

          22                       MR. PRITZLAFF;       Okay.     I'm going to leave

          23   the line open.

          24                       MS. KOKS:    Okay.     I'll call back

          25                       MR. PRITZLAFF:       Okay.

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 1                        (Off the record from 2:43 to 2:54 p.m.)

 2                        MR. PRITZLAFF:     Okay.   We're back on the

 3   record.      And, Mary, you're still on, right?         I just want

 4   to make sure.

 5                        MS. KOKS:   I am, yes.     Thank you.

 6           Q     (BY MR.    PRITZLAFF)     Did you insure the site?

 7           A.    Yes.

 8           Q.    In what name did you insure the site?

 9           A.    I believe it was     -- liability was Bernard
10   Morello and White Lion, I believe.

11           Q.    SO the policy is just for the broad liability

12   coverage, correct?

13           A.    Yes.

14           Q.    It was both in your name, Mr. Morello, as well

15   as White Lion Holdings?

16           A.    I believe so.      You're talking about what --

17   you know, I don't know what year you're talking about.

18           Q.    Initially, in 2004.

19           A.    I don't know.      Now,   I know because I renewed

20   the policy; and both names are on there.             It's for

21   liability.      And I don't know back then.         I can't answer

22   that.

23           Q.    Okay.     Since you purchased the facility, the

24   for.mer Vision Metals site, has anyone else had control

25   of that site?

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                  1        A.     What do you mean by "control"?

                  2        Q.     What would you say "control" means?

                  3        A.     Possession.

                  4        Q.     Has anyone else had possession of the

                  5   facility?

                  6        A.     Yes.

                  7        Q.     Who?

                  8        A.     Tenants.

                  9        Q.     From what time periods?

                 10        A.     I don't know the first tenant I had there what

                 11   the time period was, but the last tenant is just moving

                 12   out now.    So I don't know.


    1l
  -'r:i~~;
, '\'~~-~
,       ""
                 13        Q.

                           A.
                                  Has anyone else operated the site?

                                  There's really no operation going on.       It's
                 14

                 15   not a manufacturing facility.         So I think that's what

                 16   you mean.    I'm not sure.     Maybe you can explain.

                 17        Q.     Well, let's go about it a different way.         How

                 18   often are you at the faci1.ity?

                 19        A.     Most weekdays and oftentimes on Saturday.

                 20        Q.     How many hours do you spend out there?

                 21        A.     Probably, a guess         it varies a lot, but

                 22   sometimes 60,      80 hours a week.

                 23        Q.     How long have you been out there from 60 to

                 24   80 hours a week?
,)  "    -   ~



                 25        A.     Since I started.

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                                                                                           65
                    1          Q.    When did you start?

                    2          A.    Right after I got possession of it, after the

                    3   buyers were finished removing.

                    4          Q.    Since April of 2004 to the present?

                    5          A.    No.   They were in there,   still, up until

                    6 August or so, whatever it was, when the last buyer moved

                    7   out.    And then tenants moved in; and they have

                    8   possession of the property, separate areas, you know.

                    9          Q.    So since at least some point in 2004 to the

                   10   present, you've been at the site 60 to 80 hours a week?

                   11          A.    Pretty much so, yes.

                   12          Q.    Who at White Lion is responsible for making

fD
 . ,,,,,:;.,To..
\.<{;-Jo-
                   13   decisions about what transpires on the site?

                   14          A.    Today or back then?     I don't understand what

                   15   you mean by that,     for the timeframe.

                   16          Q.    Let's say in the '04,    '05 timeframe.

                   17          A.    Not many decision were being made back then

                   18   because of the condi tions out there.       Decisions like

                   19   areas to clean up,     if that's what you mean, or

                   20   mitigating damages of this buyer or mitigating damages

                   21   of that buyer.      It kind of all ebbed and flowed with how

                   22   much each party involved in the lawsuits were banging on

                   23   Mr. Doggett's door,     saying, "He's not mitigating his

                   24   damages."     So I'd move over there.      It was kind of back

                   25   and forth.     I was kind of allover the place,        trying to

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           1   satisfy, you know, different areas and trying to get the

           2   place presentable for tenants.

           3        Q.   Who at White Lion is responsible for making

           4   environmental compliance decisions?

           5        A.   I guess I would be.     I guess you could say me;

           6   but under the conditions,    it's hard to make decisions.

           7        Q.   Is there anyone at White Lion that could have

           8   made those decisions other than you?

           9        A.   No.

          10        Q.   Who at White Lion is responsible for complying

          11   with the Compliance Plan?

          12        A.   White Lion.

          13        Q.   Anyone other than you at White Lion that would

          14   be responsible for compliance with the Compliance Plan?

          15        A.   There is nobody else.     I'm the shareholder of

          16   White Lion.     So that's all there is.

          17        Q.   Who made the decision at White Lion to stop

          18   monitoring the groundwater wells?

          19        A.   That was,    I guess you could say,   third-party

          20   buyers and contractors, their actions.

          21        Q.   How did third-party buyers or contractors

          22   prevent White Lion from taking a sample from a

          23   monitoring well in the Compliance that's part of the

          24   Corrective Action System?
  ~" ..
\jJ
 .



          25        A.   I don't think they prevented sampling.       I'm

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                                                                   67
 1   talking about the groundwater treatment.

 2       Q.    So none of those third parties would have

 3   could have or did       let me restate it completely.

 4                   None of those third parties prevented

 5 White Lion from taking any monitoring sample -- any

 6   groundwater sample from any monitoring well on the

 7   facility, correct?

 8       A.    No.

 9        Q.   But it's your testimony that the third-party

10   contractors interfered with White Lion's ability to

11   operate the recovery wells?

12        A.   The pump and treat system,    yes.

13        Q.   Do you know which company would have prevented

14   White Lion from continuing to maintain and operate the

15   pump and treat system?

16        A.   Principally the ones we sued based on the

17   utilities' and, again,    I don't have those names at all.

18        Q.   How much power does it take to run the pump

19   and treat system?

20        A.   No idea.

21        Q.   Have you ever tried to repair the pump and

22   treat system?

23        A.   No.

24        Q.   Who at White Lion made the decision to not

25   repair the pump and treat system?

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              1        A.     There's nothing to repair if there's nothing

~
 ''l~    _
~'':IC
  "           2   there.    It's gone.

              3        Q.     Who made the decision to not replace the pump

              4 and treat system if it was gone, at White Lion?

              5                     Let me res ta te the whole thing.    Who at

              6 White Lion made the decision not to replace the pump and

              7   treat system if it was gone?

              8        A.     The pump and treat system, as I understand it,

              9   was a massive system.       So it was -- you know, there was

             10   no option to replace it.

             11        Q.     Isn't it true White Lion never intended to

             12   operate the pump and treat system?

             13        A.     No.

             14        Q.     Did White Lion attempt to transfer the

             15   wastewater permit at the site to White Lion from Vision

             16   Metals?

             17        A.     Wastewater?     I'm not quite sure about

             18   wastewater.       I don't know anything about that.

             19        Q.     Bow did White Lion intend to handle the

             20   groundwater recovered from the pump and treat system?

             21        A.     I don't know because I didn't know anything

             22   about it.     You're asking me questions,     and I'm not an

             23   expert in this area.       So I don't know.

             24        Q.     Did White Lion ever retain expertise to advise

             25   it on how to comply with the Compliance Plan?

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 1           A.     Yes.

 2           Q.     When?

 3           A.     I think it was 2013.

 4           Q.     Note on Exhibit 7 --

 5                         MR. PRITZLAFF:    And, Mary, we've marked

 6   as Exhibit 7 the Compliance Plan application.

 7                         MS. KOKS:    Thank you.

 8           Q       (BY MR. PRITZLAFF)      Note on page 2, Section 4,

 9   and then right above Section 5, it says, "Wastewater

10   Permit Numbers."          Do you see that?

11           A.     Yes.

12           Q.     And what does it say in bold?

13           A.     "TPDES 01237       (Not being transferred to new

14   owner; Vision Metals will terminate.)"

15           Q.     That bolded part is something that you typed

16   in, correct?

17           A.     No.

18           Q.     Who typed it in?

19           A.     Whoever prepared this.        I didn't prepare this.

20   I don't know.

21           Q.     Who prepared this for you?

22           A.      I have no -- I have no idea.       I don't know.

23           Q.     Did you review this before you signed it?

24           A.      I can't say ten or eleven years ago I did

25   that.        I don't know.

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             1        Q.   If groundwater was being removed from the

             2   recovery system, how did White Lion intend to collect

             3   that material?

             4        A.   You know,    it's way over my head because I

             5   don't understand.     I'm not an expert in this area.    So

             6   it's hard for me to answer.     If I was an expert in here,

             7   I could answer; but I don't know.     I simply don't know.

             8        Q.   You, as the sole decisionmaker for White Lion,

             9   did not obtain the expertise needed to comply with the

            10   Compliance Plan, correct?

            11        A.   Yes.

            12        Q.   Why was that decision made?

"3
- --.(:~-
~   -~,
            13        A.   Because there was limited resources.     There

            14   was many other fires I was trying to put out on the

            15   site, and this was just one of multiple things that I

            16   had to deal with.     So I guess it was prioritized.

            17        Q.   So you, as the sole decisionmaker for White

            18   Lion, because of financial reasons, allowed White Lion

            19   to not comply with the Compliance Plan?

            20        A.   No, that's not true.     I think what it is, is

            21   unforeseen circumstance came up that didn't allow

            22   resources at all to be focused in this area.     Because I

            23   didn't hear a thing from the State I figured, well, it

            24   mustn't be that important.

            25        Q.   When you say you didn't hear a thing from the

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 1   State, what do you mean by that?

 2          A.     Well, I       ink about -- shortly after I

 3               ed it, they      led a lawsuit from probably 2005 or

 4   so -- or maybe it was in 2004; I'm not sure                   I

 5   didn't hear from them until you           t engaged in       really

 6   of any significant substance until you got engag              last

 7   whatever it was,              e of last year.    So I was just

 8   busy         ting out other fires,    as I said there, and

 9   figured it mustn't            important         e I didn't   ar

10   much of anything.

11          Q.     So you, as the sole decisionmaker of White

12   Lion, determined that if the State was not contacting

13   you, it was not worth complying with the Compliance

14   Plan, correct?

15                 No, no.     That's not what I said.

16          Q.      If there was a groundwater pump and treat

17   system on the property -- and you do not dispute that

18   you knew it was on the property, correct?

19          A.      Yes.

20          Q.     What does "pump and treat" mean to you?

21          A.      Pump       groundwater and treat it, like a

22   treatment plant.          That's how I would guess.

23          Q.     How did White Lion intend to treat the

24   groundwater?

25          A.      I have no idea.

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                1         Q.   Did you make any affirmative decision for

                2 White Lion to engage a company to assist it with

                3   treating groundwater at the site?

                4         A.   No, other than just getting the EPA to assist

                5   me.   That was it.

                6         Q.   So you, as the sole decisionmaker of White

                7   Lion, knew pump and treat meant pump water out and treat

                8   it, correct?

                9         A.   I know it today.     Did I know it back then?

               10   No.

               11         Q.   When was the first time you, as the sole

               12   decisionmaker of White Lion, read the Compliance Plan?

 .~
 ...:.-;;::-
,-
               13         A.   Probably last year when this all started.

               14         Q.   When did you, as the sole decisionmaker of

               15 White Lion, first read the Permit?

               16         A.   Same time, last year.

               17         Q.   Who at White Lion was onsite when TCEQ would

               18   come to visi t the property?

               19         A.   I would have been.

               20         Q.   Who at White Lion interacted with TCEQ when

               21   TCEQ would call Whi te Lion?

               22         A.   You mean the people that came out?      Is that

               23   what you mean, or are you talking about -- I'm

               24   misunderstanding.

               25         Q.   Yeah, it was a terrible question.

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           1           A.   Okay.
r~
 :
 '~   ,
           2           Q.   When TCEQ would send White Lion a letter, who

           3   at White Lion was responsible for responding to that

           4   correspondence?

           5           A.   They would address it to me.      So, obviously,   I

           6   would respond.

           7           Q.   Was there any other person at White Lion who

           8 would have been charged with the responsibility of

           9   responding to TCEQ?

          10           A.   No.

          11                      (Exhibit 12 marked.)

          12           Q    (BY MR. PRITZLAFF)    I have here a document

19        13   that's been marked as Exhibi t 12, correspondence from

          14   TCEQ to Bernard Morello, White Lion Holdings, LLC, dated

          15   October 14th, 2004.      Why don't you take a moment to read

          16   that.

          17           A.   Okay.

          18           Q.   Earlier I believe you testified that TCEQ

          19   wasn't involved early on in the site, correct?

          20           A.   No, they were -- I think I had a dialogue with

          21   them early on the site -- in the purchase of it,        early

          22   on.

          23           Q.   SO is it fair to say TCEQ was involved in the

          24   site and in dialogue with you since you purchased it?
IJ        25           A.   Up until the time the lawsuit was filed,     I had

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         1   a dialogue; but after that, no dialogue at all.

         2           Q.   So you agree that TCEQ was involved -- was in

         3   communication with you concerning compliance at the site

         4   since at least April of 2004?

         5           A.   Yeah.   If that's what the date of the letter

         6   is, yes.

         7           Q.   What is your understanding of this letter as

         8   you have read it?

         9           A.   Well, again, I don't know all these

        10   terminologies in here.       They are basically responding to

        11   correspondence that I sent them; and then, they are

        12   wanting me to submit a response by April 27th.         And,

,:'3)   13   basically, this letter was shipped off to EPA; and then

        14   EPA wrote a letter.      And they'd send it back to me, and

        15   I'd sign it.     That's why there's all the technical terms

        16   in the letters to TCEQ.       I just signed the letter.

        17           Q.   Did you specifically respond with the

        18   infor.mation that TCEQ asked for in this letter April

        19   14th, 2004 letter?

        20           A.   You know,   I don't know anything about this.

        21   So it's hard for me to say if I responded appropriately.

        22   I don't know because I don't know anything about this.

        23   This is so out of my knowledge, my sphere of knowledge

        24   that I don't know.       You know,   I can't answer that.     You

        25   know,    I can't answer that.

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      1        Q.       Do you   reoa~~    TCEQ coming out to visit your

1)    2 property in 2004?

      3                 I'm not sure if it was 2004 or 2005;                    I do

      4 remember that a gentleman carne out, yes.

      5                        (Exhibit 13 marked.)

      6        Q        (BY MR. PRITZLAFF)         I'm handing you a document

      7 marked as Exhibit 13, correspondence from TCEQ to

      8 Bernard Morello,         so~e   manager of White Lion      Ho~dings,


      9   LLC, dated December 14th, 2004.            Why don't you take a

     10 moment to review that letter.

     11        A.       Okay.

     12        Q.       You're the      on~y   person at White Lion that

     13   would have met the TCEQ inspector at the site, right?

     14                 Right.

     15        Q.       It's a long time ago.        Do you   reoa~l   meeting

     16 Mr. Arnett on November 12, 2004?

     17                 Yes,    I remember him        cifically.

     18        Q.       What do you      reca~l   about that inspection and

     19 your visit with Mr. Arnett?

     20        A.       I do not want to answer that because he

     21   confided in me.         So all I can say is he wal           around

     22        place.     He and I walked around the facility.

     23         Q.      He confided in you?

     24         A.      Well,        it this way:      He said some things to

     25   me    at       he said, "Just keep           s between you and I.n

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     1   And that was it.      So I kept it at that.

     2        Q.     What was the substance of this confidence?

     3        A.     Again, it's -- he said,     "This is all about

     4   politics.     This agency is extremely political."     And

     5   let's leave it at that.

     6        Q.     But the purpose of his visit was not to

     7   discuss politics, correct?

     8        A.     No.   He was just -- because I wasn't

     9   experienced in this area,     I think he was trying to

    10   educate me and give me some advice.

    11        Q.     What was he looking at when he was visiting

    12   your facili ty?

    13        A.     We just walked around.      I don't know what

    14   specifically he was looking at.        I don't know.

    15        Q.     Do you recall receiving this letter?

    16        A.     Not specific to this letter, but that is me on

    17   there.

    18        Q.     Do you have any reason to suspect you did not

    19   receive it?

    20        A.     No,   I'm quite sure I   received it.

    21        Q.     Bow did you respond when you received this

    22   letter?

    23        A.     I don't know back then how I responded.

    24   Typically, what I would do is fax it to EPA; and then
)
    25   EPA would respond back for me.       And so that's typically


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         1   what transpired.        I don't know if it did on this letter
'-'7\
  Iy     2   specifically, but ...

         3        Q.    Now, EPA is a Federal government agency,

         4   correct?

         5        A.    Yes.

         6        Q.    Is EPA the permittee at the site?

         7        A.    No.     I think that was a big problem that TCEQ

         8   had is because they were --

         9                     MR.   PRITZLAFF:     Objection,   nonresponsive.

        10                     THE WITNESS:       Okay.

        11        Q     (BY MR.      PRITZLAFF)     Is EPA the named permittee

        12   of the Compliance Plan?

        13        A.    No.

        14        Q.    Who is?

        15        A.    White Lion Holdings.

        16        Q.    Was this -- was any of the correspondence that

        17   you received from TCEQ directed to the Environmental

        18   Protection Agency?

        19        A.    No.     I think they were just trying to help.

        20        Q.    These letters were directed to you, correct?

        21        A.    Yes.

        22        Q.    As sole manager of White Lion Holdings,

        23   correct?

        24        A.    Yes.
  )
        25        Q.    Whose responsibility was it to respond to the

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             1   correspondence from TCEQ when it was directed to Bernard

             2 Morello, Sole Manager of White Lion Holdings, LLC?

             3        A.      Well, I just saw in here this is going back to

             4   2001 on here.        I didn't even own it in 2001.

             5        Q.      Where are you referring?      On Section 2 there,

             6   on State page 830

             7        A.      Yeah.

             8        Q.      -- Summary of Investigation Findings,

             9 discussing recordkeeping and annual reporting procedures

            10   applicable to generators.        And what is your

            11   understanding of the reference to years prior to your

            12   ownership?

            13        A.      You know,    I don't know.   It says recovered

            14   ground waters for those years based on amount generated.

            15   You know, again, I don't know anything about this.            I

            16   can assume what it means.        It means how much gallons

            17   they pumped out of the ground.        Again,_~Qis    is not my

            18   area of expertise.

            19        Q.      You're an extremely intelligent person

            20   correct?     You've been very successful in your career,

            21   correct?

            22        A.      I don't want to answer that.

            23        Q.      Do you understand that this is talking about

            24   recovery of water, groundwater?
,)
l.   '. ~

            25        A.      Yes.

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                1           Q.     Does that not imply continued obligations to

                2   recover groundwater if the prior facility was reporting

                3   what groundwater it recovered?

                4           A.     Well,   I see that here,   yeah.     I see where

                5   you're corning from wi th that,        yes.

                6           Q.     Would that not have been a reasonable

                7   interpretation of this letter in December of 2004?

                8           A.     Yes.

                9           Q.     As the sole decisionmaker at White Lion, you

               10   individually allowed White Lion to disregard its

               11   compliance obligations, did you not?

               12           A.     No.


 1D
  -.-,.
               13           Q.     Then who did?
\ 'J~·1'
               14           A.      The circumstances that White Lion was

               15   surrounded in at the time.

               16           Q.     Did you ever respond to TCEQ in response to

               17   this December 2004 letter or any other letter that you

               18   received, or White Lion received, from TCEQ about these

               19   circumstances and those circumstances causing an

               20   inability of White Lion to comply?

               21           A.      I may have had some conversation with Ellie

               22   Weinert and maybe Mr. Arnett on the phone.             I don't

               23   know.        That's a long time ago.

               24           Q.     Can you specify an exact time and place of
  )       --


               25   those telephone calls?

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                                                                         80
 1        A.    No, no,    no.     I know I had a dialogue with

 2   Ellie and Bruce.

 3        Q.    You've been involved in real estate

 4   transactions for almost four decades, correct?

 5        A.    Pretty close.

 6        Q.    Documenting things in paperwork is       ~ortant


 7   in real estate transactions, is it not?

 8        A.    Well,   you mean closing documents?      I don't

 9   understand what you mean.

10        Q.    If you're going to enter is a contract,

11   generally you embody that into a written document,

12   correct?

13        A.    Yeah.     You keep it in an archive file,    yes.

14        Q.    If someone objects to some provision, that's

15   generally embodied in some kind of correspondence,

16   correct?

17        A.    Every circumstance is different.        I assume

18   that would happen,     yes.

19        Q.    Would you not have deemed it wise for White

20   Lion to have responded to correspondence from TCEQ

21   telling it that it's in violation of various

22   requirements?

23        A.    I can't say that I did or did not respond

24   because I had not only written letters but there was

25   also telephone calls, telephone conversations, and then


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                 1   site visits.

                 2        Q.      Let's look at Exhibit 6 again, Compliance

                 3   Plan, on page 14, Section B, Reporting Requirements,

                 4   Section 2.     Did White Lion ever submit a report, as

                 5   referenced in this section, on January 21st and

                 6   July 21st of each year?

                 7        A.      No.

                 8        Q.      Who made that decision for White Lion to not

                 9   submi t those reports?

                10        A.      Well,   first of all,   I didn't read this until

                11   last year.     So I wouldn't have known to submit the

                12   plans.

                13        Q.      So it was you, correct?

                14        A.      That I didn't submit,     yeah.    If you don't know

                15   something, you can't submit something.

                16        Q.      You transferred -- you instructed White Lion

                17   and had White Lion transfer the permit to White Lion,

                18   correct?

                19        A.      I instructed?    No.    No,   I didn't instruct.    I

                20   signed the document.       I didn't prepare the document, no.

                21   I don't know who prepared the document.

                22        Q.      You signed the application to transfer,

                23   correct?

                24        A.      Yes.
\;,   )
      '~   :-
                25        Q.      Each the Permit and the Compliance Plan?

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        1          A.   Yes.

1)
 ,,'
,~      2          Q.   If you entered into a contract with someone to

        3 purchase a piece of property and the other party

        4 refused, later, after you signed the contract, to give

        5   you the property because they said they never read the

        6   contract, would you agree with that?

        7                      MS. KOKS:   Objection, form.

        8          Q    (BY MR. PRITZLAFF)      You can answer if you

        9   understand the hypothetical.

       10          A.   Why don't you re-ask it?      I don't understand

       11   the question.

       12          Q.   Sure.     If you entered into a contract with

/~     13   someone to buy something and you both signed the

       14   contract and that someone then, later, refuses to give

       15   you what you contracted to purchase and they say, "Well,

       16   I   never read it, so I    don't need to do it, " would you

       17   say, "Okay.     Sure.    Fine"?

       18          A.   No, I wouldn't.

       19          Q.   Is it reasonable for you, as the sole

       20   decisionmaker of White Lion, to not have read a

       21   Compliance Plan that's in White Lion's name until 2013,

       22   nine years after the Per.mit and Compliance Plan were

       23   transferred to White Lion?

       24                      MS. KOKS:   Objection, form.
,)
       25          A.   If I knew what -- even if I read it,     I

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      1   wouldn't know what it meant,          anyway, because this is not

~     2   my area of expertise.        Now,     I have learned in the last

      3   year; but prior to that,        no.

      4          Q.      (BY MR. PRITZLAFF)      TCEQ came out at other

      5   t~es    to your facility, correct?

      6          A.     Yes.

      7          Q.     Do you recall when?

      8          A.     I think this Mr. Bruce -- whatever his last

      9   name is -- Bruce Arnett came out again,           to follow up;

     10   and I don't know when he came out.           But he did come back

     11   out.

     12                        (Exhibit 14 marked.)

     13          Q       (BY MR. PRITZLAFF)      I have here a document

     14   that's been marked as Exhibit 14, correspondence from

     15   TCEQ to Bernard Morello, Registered Agent, White Lion

     16   Holdings, LLC, dated June 26th, 2008.           Do you want to

     17   read through that and let me know when you're finished?

     18          A.     Okay.

     19          Q.     Do you recall meeting Mr. Elijah Gandee on

     20   January 4th, 2008?

     21          A.     Yes.

     22          Q.     Do you recall what Mr. Gandee looked at when

     23   he visited the facility in 2008?

     24          A.      I think he did the same thing that Mr. Arnett
,~
J                    He walked around -- both of us walked around the
     25   did.

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      1   facility.

      2           Q.   Did he discuss with you the outstanding

      3   violations that are attached to this correspondence?

      4           A.   I don't know if he did at that time.        I think

      5   this probably came after his site visit,         so.

      6           Q.   The monitoring wells were visible on the site

      7   in 2008, correct?

      8           A.   I think so, yes.

      9           Q.   But the system was not operational, correct?

     10           A.   Right.

     11           Q.   Do you recall Mr. Gandee returning to the

     12   site?

     13           A.   Yes.

     14                       (Exhibit 15 marked.)

     15           Q    (BY MR. PRITZLAFF)     I have a document that's

     16   been marked Exhibit 15, correspondence from TCEQ to

     17   Bernard Morello, White Lion Holdings, LLC, dated

     18   February 14, 2014.       I'll let you read that document for

     19   a moment.

     20           A.   Okay.

     21           Q.   Do you recall this visit by Mr. Gandee of

     22   July 29th, 2013?

     23           A.   Yes.

     24           Q.   During this visit, the monitoring wells were
,)
     25   all gone, correct?

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      1           A.   I don't know if they were or not.
,)    2           Q.   Well, let's look on the summary of violations.

      3           A.   Okay.

      4           Q.   Number 4.

      5           A.   Okay.

      6           Q.   Why don't you read through that a moment and

      7   tell me when you're done.

      8           A.   Okay.

      9           Q.   Do you dispute anything that's written there

     10   in that Section 4 of this letter?

     11           A.   I wouldn't know either way.      You know, we

     12   walked around the whole facility; and, you know, he

_~   13   asked me some questions and proceeded on.

     14           Q.   Well, let's look at his statement here in

     lS   Section 4, the second paragraph, third sentence.

     16   "Furthermore, none of the above-ground portions of the

     17   wells nor any bumper guards nor metal protective casings

     18   were observed during the investigation."         Do you dispute

     19   that?

     20           A.   No.

     21           Q.   So    somet~e   between 2008 and this site

     22   inspection in July of 2013, the bumper guards, metal

     23   protective casings of the wells, were removed.        Who

     24   removed them?

     2S           A.   Well,    I think they were damaged; and then once

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 1   they get shredded up, you just pick up the pieces.

 2 Mowers would hi t them constantly.

 3        Q.   Shredded by what?

 4        A.   By your shredders.

 5        Q.   What shredders?

 6        A.   Mowers, shredders, equipment that shreds the

 7 vegetation.

 8        Q.   Shredded solid steel well casings, is that

 9   your testimony, by a lawnmower?

10        A.   No, I'm saying plastic, PVC plastic.      There

11   was metal housings around it.     I think it was just sheet

12   metal, I believe, sheet metal housings; and they were

13   rusted off.   Several of them were that way for -- you

14   know, again, I didn't walk around the whole facility

15   back in 2004; but I think several of them were gone or

16   deteriorated back then.

17        Q.   Who was responsible at White Lion for ensuring

18   that those monitoring well casings would not be

19 destroyed; anyone other than yourself?

20        A.   Yeah -- no, no, there is not.

21        Q.   Okay.

22                   (Exhibit 16 marked.)

23        Q    (BY MR. PRITZLAFF)    I have here a document

24   that we've marked as Exhibit 16, which is a series of

25   four photographs.

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                  1        A.      Right.

~
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                  2        Q.      Do these photographs accurately represent what

                  3   we're talking about when we refer to monitoring well

                  4   covers?

                  5        A.      Yes, yes.

                  6        Q.      And the gauge of the steel is accurate as it's

                  7   shown, correct?

                  8        A.      It's very thin steel; and it's all rusted at

                  9   the bottom where it hi t the soil, yeah.

                 10        Q.      And i.t's --

                 11        A.      Just like it's shown here in these pictures.

                 12   I don't know when these were taken, but that's what they

                 13   look like.     Maybe there's a date on it here.       I can't

                 14   see it on this photo.

                 15                       (Exhibit 17 marked.)

                 16        Q       (BY MR. PRITZLAFF)     In any event, that's a

                 17   reasonable    approx~ation,     representation, of what the

                 18   moni.toring wells generally look like, correct?

                 19        A.      Yes.

                 20        Q.      I have here now another exhibit marked 17,

                 21   which is a series of four pictures which I believe are

                 22   date stamped, generally showing the site around the

                 23   impoundments, correct?

                 24        A.      Yes.

                 25        Q.      And none of those protective caps are visible,

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                1   correct?
r~i9
 [:--..c-
                2          A.   No.

                3          Q.   You see nice, green, mowed fields, correct?

                4          A.    Yeah.   If there's not a lot of obstacles,

                5   that's correct.

                6          Q.    I seem to recall -- and please correct me if I

                7   get this    test~ony   wrong -- but I believe you stated at

                8   some point earlier that you wanted to make the property

                9   more enticing for a prospective purchaser, correct?

               10          A.    Presentable so people would be interested in

               11   leasing,    yes.

               12          Q.   Did you use the word "enticing"?

               13          A.    I don't know.   If I used that term,      are you

               14   saying?

               15          Q.   Did you use that term?

               16          A.    I don't know if I used it or not.

               17          Q.    In any event, a property without all of those

               18   monitoring wells on it is certainly more enticing, is it

               19   not?

               20          A.    The way these pictures look,     yes,   I will agree

               21   with you.     Yes.   Comparison of the two,    yes, that looks

               22   much better.

               23          Q.    Isn't it true you wanted those wells removed?

               24          A.    No.
 \
     J:~'~-.

               25          Q.    Would you, when you were at the site during

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       1   any of the 60 to 80 hours a week every week for the last

(.~    2   10 years, observe the mowers?

       3          A.   I have seen hit them and damage them before,

       4   but that's kind of an occurrence that happens.         That

       5   happens on the buildings, too,     anything that's in the

       6 way.

       7          Q.   You didn't go out and chop them down yourself?

       8          A.   No.

       9          Q.   Did you direct someone to go chop those down?

      10          A.   No.

      11          Q.   You allowed them to be chopped down, correct?

      12          A.   No.

      13          Q.   You allowed them to not be replaced, correct?

      14          A.   I think we are in the process of doing that

      15   now.

      16          Q.   When was the first   t~e   you noticed a

      17   monitoring well had been -- one of those metal casings

      18   has been removed?

      19          A.   I didn't know how many of them were out there,

      20   so I couldn't tell you.    I don't know when they were

      21   first removed.

      22          Q.   When was the first time you noticed one that

      23   you knew where it was was gone?

      24          A.   I really didn't count monitoring wells.

      25   That's not something I did.      I seldom actually would go

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                1      k in this area,        as I had no reason to.
f':~
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       ,
                2           Q.    Did you ever see a monitorinq well qet
  7'



                3   destroyed?

                4           A.    Not destroyed but damaged,       yes,   and chewed up,

                5   yes.

                6           Q.    Tell me how

                7           A.    The well is still there.      It's just the cover

                8   is gone.

                9           Q.    Tell me a specific instance of when you

               10   observed that.

               11           A.    I don't know a specific instance.          I   don't

               12   know.

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 .,-~?~,-
               13           Q.    Who hired the mowers to qo out on your site?

               14           A.    I   would have hired them.

               15           Q.    Did you enter into a contract with the mowers?

               16           A.    I   don't know if I   had a contract or it was

               17   just a verbal agreement.         I don't know.

               18           Q.    When you say "I," was that you, Mr. Morello?

               19           A.    No.    It was my capacity as White Lion

               20     lding's manager.

               21           Q.    Does anyone else at White Lion make

               22   contractinq decisions?

               23           A.    Make cont       ing decisions?     No, I would say

               24      ,    no.
      )
               25           Q.    In any event, at some point in time, you would

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               1   have noticed a monitoring well had been damaged or
r'j""
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        .;~

               2   destroyed by a mower or some other event, correct?

               3           A.   Right,   the closer they were to the buildings,

               4   which I'd look out; but stuff on the other side,      I

              15   seldom go back there to pits or mounds.

               6           Q.   As the sole decisionmaker for White Lion, you

               7   allowed White Lion not to replace those wells, correct?

               8           A.   My understanding, the wells are still there;

               9   just the head or the top is not there.       The well is

              10   still there.

              11           Q.   You, as the sole decisionmaker of White Lion,

              12   allowed the wells to not be replaced, correct -- or

              13   repaired, correct?

              14           A.   They have been -- some have been repaired,

              15   yes.     I believe there was a new one put in last year;

              16   maybe more than one.       I'm not sure.

              17           Q.   In any event, at the site, the Corrective

              18   Action System is in a complete and total state of

              19   disrepair, correct?

              20           A.   Yes.

              21           Q.   And you, as the sole decisionmaker of White

              22   Lion, permitted White Lion to not replace or repair that

              23   Corrective Action System, correct?

              24           A.   If you could, explain a timeframe for me.     I
   )
              25   mean,    that's a broad question.    Is it from 2004 to 2013


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     1   or 2013 to 2014?

     2                    MR.   PRITZLAFF:   Would you read back my

     3   question to him?

     4                    I'll object as nonresponsive.

     5                    (The material was read as requested.)

     6        A.   But what I'm saying is:        Is there a time frame

     7   you're saying there or what?

     8        Q.   (BY MR. PRITZLAFF)        In 2013, at the   t~e   of

     9   the TCEQ inspection, you would agree that the Corrective

    10   Action System was in a complete and total state of

    11   disrepair, correct?

    12        A.   Yes.

    13        Q.   And you, as the sole decisionmaker of White

    14   Lion, permitted White Lion to not repair or replace the

    15   Corrective Action System, correct?

    16        A.   In 2013, no,      that is not correct.

    17        Q.   What about in '12?

    18        A.   No.

    19        Q.   As the sole decisionmaker of White Lion -- let

    20   me restart this.

    21                    Is it fair to say that in 2004, the

    22   Corrective Action System was non-functional?

    23        A.   In 2004, yes,      that's correct.

    24        Q.   Is it fair to say from 2004 to the present,
)
    25   the Corrective Action System has not been operational?

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 1           A.   Correct.

 2           Q.   As the sole decisionmaker of White Lion, you

 3   have allowed White Lion to keep the Corrective Action

 4   System non-functional, correct?

 5           A.   Yes.

 6           Q.   As the sole decisionmaker for White Lion, you

 7 have permitted White Lion to not repair the Corrective

 8   Action System, correct?

 9           A.   No.    I have corrected it last year.      We've

10   taken action now on it.

11           Q.   Is it your   test~ony   that that Corrective

12   Action System today is fully functional?

13           A.   No.

14           Q.   So as the sole decisionmaker of White Lion,

15   through today, since White Lion has owned the property,

16   you have permitted White Lion to not operate the

17   Corrective Action System by allowing it to be repaired?

18           A.   The Corrective Action System is gone.        It's

19   all -- there is no pump and treat.        All that facility is

20   gone,    and that's all part of this.     This is still here.

21   It's underground, but the pump and treat system is gone.

22           Q.   So as the sole decisionmaker of White Lion,

23   you have permitted the Corrective Action System to be

24   gone?

25           A.   I have permitted it -- no,    I have not

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      1   permitted it to be gone.       It's like you're asking me

'~    2   would I like to have somebody run into my car.              No,   I

      3   would not like to have somebody run into my car.

      4        Q.   But you permitted White Lion, in your capacity

      5   as sole decisionmaker, to not repair it, correct?

      6        A.   Based on the circumstance, yes,          that's

      7   correct; but I'm trying to get it repaired.

      8                 MR. PRITZLAFF:       Let's take a short break.

      9                 THE WITNESS:       Okay.

     10                 MR.   PRITZLAFF:     Mary,    let's just take

     11   about five minutes.    Okay?

     12                 MS. KOKS:    That sounds fine.

     13                 MR. PRITZLAFF:       I have it at 12:50 -- or

     14   2:50 right now.

     15                 MS. KOKS:    You mean 3:50?

     16                 MR. PRITZLAFF:       Is it 3:50?

     17                 MS. KOKS:    Yeah.

     18                 THE WITNESS:       Daylight Savings Time.

     19                 MR. PRITZLAFF:       You're correct.

     20                 MS. KOKS:    Okay.

     21                 (Off the record from 3:51 to 3:59 p.m.)

     22                 MR. PRITZLAFF:       Mary, are you ready?

     23                 MS. KOKS:    Yes,    sir,    I am.   Go ahead.

     24        Q    (BY MR. PRITZLAFF)       What happened to the

     25   wellheads when they were damaged?

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 1        A.   You mean the shredded portion of them?

 2       Q.    Any portion of the them.

 3        A.   Thrown in a dumpster.

 4        Q.   Who did that?

 5       A.    Probably I did or some temporary help I had.

 6        Q.   So you would have picked up the pieces and

 7   thrown them away yourself?

 8        A.   Or temporary helpers,    clean up after the

 9 mowers or whatever.

10        Q.   You said yourself that some of these wells

11   were damaged when you purchased the property or shortly

12   thereafter, correct?

13        A.   Well,   I said I didn't see all the wells

14   because I didn't walk all the way around the back of

15   them or whatever; but, yes,    I saw pictures here in 2004

16   or so where they were kind of deteriorated.

17        Q.   And one of your purposes for this property was

18   to clean it up and make it enticing to tenants and/or on

19   a prospective purchaser, correct?

20        A.   To lease it out, look respectable and

21   presentable, yes.

22        Q.   And if you saw, like on Exhibit 16, a piece of

23   rusted wellhead sticking up out of the ground, that's

24   not very presentable, is it?

25        A.   No, it really isn't.

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           1        Q.   Would you have directed someone to remove it?
f':~       2        A.   No.

           3        Q.   Would you have directed someone to paint them?

           4        A.   No.

           5        Q.   If it was unpresentable to the property, why

           6   would you not have directed its repair?

           7        A.   Well,   up until last year,    I didn't really know

           8   the function of the whole system.

           9        Q.   If you didn't know the function of the whole

          10   system, is it reasonable to say you would have directed

          11   it to be removed?

          12        A.   No.

<~
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          13        Q.   Did you know what those wells shown in

          14   Exhibit 16 were before 2013?

          15        A.   They were protective covers for pvc.

          16        Q.   Did you know what the pvc was for?

          17        A.   A well.

          18        Q.   Did you think to inquire why the well was

          19   there?

          20        A.   No.     I mean,   it's part of this Corrective

          21   Action System.

          22        Q.   But you said you didn't know about the

          23   Corrective Action System before 2013?

          24        A.   I didn't know the functioning of the

          25   Corrective Action System.


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         1          Q.     Look at Exhibit 6 again, the Compliance Plan.

         2          A.     Okay.

         3          Q.     Mr. Morello, turn toward the back, states page

         4   564.       It's a map, Attachment A, Sheet 304.

         5          A.     Okay.

         6                      MR. PRITZLAFF:     Mary, did you hear that?

         7                      MS. KOKS:      Yeah, I'm trying to track that

         8 down myself.

         9                      MR. PRITZLAFF:     Okay.

        10          Q       (BY MR. PRITZLAFF)     Have you reviewed that

        11   picture?

        12          A.      Yeah.    I've reviewed it, uh-huh.

'L)
:;~~'
        13          Q.     What does it mean to you?

        14          A.     Well, it's one that Mr. Couch came out and

        15   identified different locations of these wells.

        16          Q.     Remind me who Mr. Couch is.

        17          A.      He's an environmental consultant.

        18          Q.     When did you retain Mr. Couch?

        19          A.      Last year.

        20          Q.     Who does he work for?

        21          A.     White Lion Holdings.

        22          Q.     Who hired h"lln.?

        23          A.      I did.

        24          Q.      But this map was not prepared by Mr. Couch,
 ])
        25   correct?

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          1           A.   No.

          2           Q.   Do you understand that this map shows the

          3   approx~te      locations of each well associated with the

          4 Corrective Action System?

          5           A.   I do now.

          6           Q.   At what point did you obtain that knowledge or

          7   understanding of what this map means?

          8           A.   When I read this plan.

          9           Q.   Which you said before was 2013?

         10           A.   That's correct.

         11           Q.   When you look at this map today and you think

         12   back to all the time that you've been on this property,

J)       13   which is considerable over the years, do you recall

         14   seeing monitoring wells in the approximate locations

         15   demonstrated on this map?

         16           A.   Yes, sure.

         17           Q.   But it never occurred to you, as the sole

         18   manager and decisionmaker of White Lion, to investigate

         19   what those yellow protrusions from the ground pertained

         20   to?

         21           A.   Well,   I knew it's all part of the system.

         22           Q.   So you knew it was part of the system?

         23           A.   Yes.

         24           Q.   You knew it was part of the system as early as
'-
     )
     '
         25   2004?

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             1          A.   Yes.

r~
 - ,-
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             2          Q.   You knew that all of those wells were parts of

             3   a network of groundwater monitoring and recovery wells,

             4   correct?    As early as 2004 you knew that?

             5          A.   Well, put it this way:   I didn't know the --

             6   how they operated and how they functioned.     Put it that

             7   way.    I knew they were part of an entire system,    a

             8   network; but I'm not ...

             9          Q.   You may not understand the engineering or the

            10   technical science behind the operation of each well

            11          A.   Right.

            12          Q.   -- but you knew, from looking at the site,

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            13   from the point in time you purchased it to today, that

            14   those wells were part of some network of monitoring,

            15   correct?

            16          A.   Yes.

            17          Q.   And you understood that that network of

            18   monitoring related to contaminated groundwater at the

            19   facility, right?

            20          A.   I knew there were issues; but I didn't know

            21   anything about them, put it that way.

            22          Q.   But you knew that the system related somehow

            23   to some environmental issue at the site, correct?

            24          A.   Yes, yes.
)
            25          Q.   And, yet, as the sole decisionmaker of White

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       1   Lion, you affirmatively allowed that system to fall into

       2   disrepair?

       3           A.    No.    Again,   it goes back to intent.       Would I

       4   want somebody to purposely hit my vehicle?            No.     Things

       5   happen.

       6           Q.    When someone hits your vehicle, the reasonable

       7   response is to have it repaired, correct?

       8           A.     Unless it's totalled.

       9           Q.    As the sole decisionmaker for White Lion, it's

      10   reasonable if you see a system on your site that's

      11   attached to a Compliance Plan, that it should be

      12   repaired, correct?

      13           A.    No,    I think -- no.   It's all interworked

      14   together.

      15           Q.    So it's not reasonable to repair it?

      16           A.    No.     I'm saying it's all interconnected.        It's

      17   like,    going back to the car analogy,      just because you

      18   have an engine,       it doesn't mean you can drive the car

      19   around.      You have to have a transmission.        You have to

      20   have a rear end.         You have to have metal around it and

      21   seats.       That's what I'm saying.    It was all

      22   interconnected.

      23           Q.    Did you ever investigate how much it would

      24   have cost to repair or rehabilitate a monitoring well?

-'
"""




      25           A.     No.


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 1        Q.    TCEQ has been in contact off and on with you

 2   since 2004 when you took possession of the property,

 3   correct?

 4        A.    Yes.

 5        Q.    We've talked about that.    It never occurred to

 6   you, as the sole decisionmaker of White Lion, to alert

 7   TCEQ of the status of those wells?

 8        A.    No.

 9        Q.    It never occurred to you when TCEQ visited

10   your property to look at those wells, to discuss what

11   you needed to do to get the Corrective Action System

12   back into compliance?

13        A.    Did they discuss it with me?    Again, that's a

14   conversation that was a long time ago.     I don't know the

15   specifics; but you have to understand,    there was some

16   different fires I'd been putting out --

17        Q.    I'll stop you there.

18        A.    It was important.   I don't mean to say it

19   wasn't important, but there was many other fires there

20   and many other responsibilities at that facility that

21   were on a much higher priority than this.     The system

22   was destroyed in the beginning and the resources were

23   limited and very thin and so a person can only do so

24   much unless you're Exxon Mobil.

25        Q.    How does White Lion get its funding?

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             1        A.   I lend the company money.

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.c           2        Q.   Are there documents that record the lending?

             3        A.   No.

             4        Q.   Does White Lion keep books?

             5        A.   Yes.

             6        Q.   Who keeps those books?

             7        A.   I keep the books.

             8        Q.   Is anyone else responsible for keeping those

             9   books?

            10        A.   No.

            11        Q.   You're the only person at White Lion.        So do

            12   you keep minutes of decisions made?


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:~:-\~
            13        A.   No,    I don't even have meetings.

            14        Q.   Where are the books kept for White Lion?

            15        A.   In our office -- it isn't really books.           You

            16   pay something, and that's it.     How much you have and how

            17   much goes out.

            18        Q.   What other sources of income other than you

            19   does Whi te Lion have?

            20        A.   I'm not a source of income for them at all.

            21        Q.   What other sources of financial resources --

            22   strike that.

            23                    From what sources does White Lion receive

     ---    24   revenues from?
 )     -.

            25        A.   Rent, scrap.     That's it.


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            1        Q.    When did income from rent begin to come into

r-J         2 White Lion?

            3        A.    I don't have the dates; but it was way after

            4   the purchase, in recent years I will say.

            5        Q.    After 2008?

            6        A.    Yes,   I would say so.

            7        Q.    After 2009?

            8        A.    Yes,   I would say so.

            9        Q.    After 2010?

           10        A.    I don't know.    I don't have the exact -- I

           11   don't want to say yes because I don't know, but it's in

           12   more recent years.

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           13        Q.    When did revenues from scrap begin to come in

           14   to White Lion?

           15        A.    Probably in the beginning.

           16        Q.    Did the revenue from -- so scrap was the only

           17   revenue for White Lion until the lease revenues came in,

           18   correct?

           19        A.    Yes.

           20        Q.    Was the revenue of scrap sufficient to cover

           21   White Lion's debts and obligations?

           22        A.    No.

           23        Q.    Did White Lion receive loaned monies from any

           24   other person other than you?

           25        A.    No.

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     1        Q.    Did White Lion receive financing from any

     2   other entity other than you?

     3        A.    Yes.

     4        Q.    Such as financial institutions?

     5        A.    Yes.

     6        Q.    You previously stated that there was a

     7 priority system that you had in your decision-making

     8 process for all of the various tasks and steps that

     9 needed to be accomplished by White Lion at the property,

    10   correct?

    11        A.    Yes, yes.

    12        Q.    How were those priorities -- what was the

    13   decision      how did you make that decision to

    14   prioritize?   What factors did you consider?

    15        A.    A lot of it had to do with the damages that

    16   were done to the facility, and I think I said this

    17   before:    The buyers kept complaining that I wasn't

    18   mitigating my damages.      So I would get a call from

    19 Mr. Doggett, saying,       "Work on this area."   This place

    20   looked like a mess, a war zone, at the time I acquired

    21   it afterwards, after the tenants -- not the tenants --

    22   the buyers and contractors left.

    23                     So I had a plan to clean up, and that

    24   plan changed dramatically because of the damages.         So I
)
    25   was trying to appease the buyer's concern on mitigating

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     1   the damages.     And so I was kind of allover the map.

     2   It's a large facility.       I was trying to satisfy this and

     3   satisfy that, and I was moving around that area.

     4                    And I know probably what you're going to

     5   say is,    "Well, why didn't you appease the State of

     6   Texas?"    It's because I didn't hear from them.        It seem

     7   like it was a big subject; and,      obviously, since

     8   testing,   the conditions there have improved

     9   dramatically.

    10        Q.     So the correspondence that TCEQ sent to you in

    11   2004 did not qualify, in your mind, as concern of the

    12   State of Texas?

    13        A.     No, because it was in noncompliance three and

    14   a half years before I bought it; and nothing was done.

    15        Q.     The Notice of Violation that you received in

    16   December of 2004, which I've marked as Exhibit 13, did

    17   not qualify as a concern --

    18        A.      First of all,   I didn't know --

    19        Q.         of the company?

    20        A.         I didn't understand any of it.      I've said

    21   that before.

    22        Q.     What does the term "Notice of Violation" mean

    23   to you?

    24        A.      Well,   I understand that.    I'm not stupid.    I
)
    25   know what a Notice of Violation is.         It's a violation.

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                                                            Bernard Morello -      9/19/2014

                                                                                       106
              1   But you have to understand that area,          and that's not my
~~
, ~~\,:';'
 .,,:~-'      2   thing.

              3           Q.     In subsequent months, TCEQ corresponded with

              4 you further concerning the violations that they

              5   observed, correct, through 2005, correct?

              6           A.      Did they correspond with me?    Yes, we had a

              7   dialogue.

              8           Q.     And they threatened to bring an enforcement

              9   action against you, correct?

             10           A.      If that's what the letter says, but I saw

             11   those enforcement letters now in the files of the

             12   previous owner; and nothing was ever done.            I didn't

 ~           13   think it was that important, and they were an

             14   experienced operator.          I'm not.

             15           Q.     You're saying one of your decision prongs in

             16   your decisionmaking matrix was that the State didn't

             17   care.        That's just not true, is it?

             18                      MS. KOKS:     Objection, form.

             19                      MR. PRITZLAFF:     I'll move on.

             20           Q       (BY MR. PRITZLAFF)    And then, the State

             21   ult~tely         -- TCEQ referred the matter to the Attorney

             22   General's Office, and a civil suit was filed.           When the

             23   civil suit was filed, at that point in time, did the

             24   decisionmaking matrix for you raise any higher?
,)
             25           A.      I don't think you're understanding.      You're

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                                               Bernard Morello -    9/19/2014

                                                                        107
      1   acting like I intentionally did something.     There's so

I~    2   much a human being can do.    And that's a very large

      3   facility; and under the conditions I was in -- it was

      4   not planned to be this way -- but under the conditions I

      5   was in, unless you had unlimited resources and unless

      6   you had expertise in this area, nobody else could have

      7   done any different than what I did.     And that is try to

      8 make the best of the situation you're in, and that's

      9   what I've tried to do all along.

     10        Q.     But you've said before that the Corrective

     11   Action System is gone.

     12        A.     It is.

     13        Q.     It does not exist; and that occurred under

     14   your watch, correct?

     15        A.     The Corrective Action System, the system

     16   itself, the functioning -- these are just fixtures here.

     17   This is just a pipe that runs into the ground.     All the

     18   internet work that runs it is all gone.     It was damaged

     19   at the time that the buyers were there.     The equipment

     20   was gone.    The pipes were cut.   Electricity was cut.

     21   I've already went over all that.     It was destroyed.

     22        Q.     And you, as the sole decisionmaker of White

     23   Lion, made a conscious decision not to repair and

     24   replace the Corrective Action System because it would

     25   have cost too much money out of your own pocket,

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                                                           Bernard Morello -   9/19/2014

                                                                                   108
          1   Mr. Morello, right?

          2        A.      No.

          3                       MS. KOKS:   Objection,    form.

          4        A.      No.

          S        Q.      (BY MR. PRITZLAFF)       Who receives distributions

          6   from White Lion?

          7        A.      No one.

          8        Q.      Does White Lion file its own tax returns?

          9        A.      Yes.

         10        Q.      No one other than you could have made a

         11   decision for White Lion to repair the Corrective Action

         12   System, right?

         13        A.      To answer that, my hands were tied.

         14                       MR. PRITZLAFF:     Object as nonresponsive.

         lS                       I'll have the question read back to you.

         16                       (The material was read as requested.)

         17        Q       (BY MR. PRITZLAFF)        That's a yes-or-no

         18   question.

         19        A.      No.

         20                       MR. PRITZLAFF:     I have no further

         21   questions.     Thank you for your time.

         22                       THE WITNESS:     Sure.

         23                       MS. KOKS:   I'll reserve mine to the time

         24   of trial.
)':
  ,:-~

         2S                       MR. PRITZLAFF:     Mary, thank you for


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                                                      rnard Morello - 9/19/2014
                                                                           109
            1   rticipati     by telephone.

            2                 MS. KOKS:    Oh, I appreciate you allowing

            3 me to do so.

            4                  (Deposition adjourned at   4:22~p.m.)


            5                             --000--

            6

            7

            8

            9

           10

           11

           12

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           13

           14

           15

           16

           17

           18

           19

           20

           21

           22

           23

           24

           25

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                                  www.integrity-texas.com
                                                                     Bernard Morello - 9/19/2014

                                                                                           112
              1                       CAUSE NO. D-I-GV-06-000627
  -~
r ;.>.{F:"
  --, .,
              2     STATE OF TEXAS,                            IN THE DISTRICT COURT

              3          Plaintiff,

              4
                    v.                                         TRAVIS COUNTY, TEXAS
              5
                    BERNARD MORELLO,
              6
                         Defendant.                            353RD JUDICIAL DISTRICT
              7

              8
                                      REPORTER'S CERTIFICATION
              9
                               ORAL DEPOSITION OF BERNARD MORELLO,
             10
                                   Taken on September 19, 2014
             11

             12                     I, Debbie D. Cunningham, Certified

             13   Shorthand Reporter in and for the State of Texas, hereby

             14   certify to the following:

             15                    That the witness, BERNARD MORELLO, was

             16   duly sworn by me, and that the transcript of the oral

             17   deposition is a true record of the testimony given by

             18   the witness i

             19                    That the deposition transcript was

             20   submitted on            OC:f-ob er   2..   201L{        to the witness

             21   or to the attorney for the witness for examination,

             22   signature, and return to me by

             23                     That the amount of examination time used

             24   by each party at the deposition is as follows:

             25               BY MR. PRITZLAFF:                02:51:32

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                                                         Bernard Morello - 9/19/2014
                                                                                     113
                1             BY MS. KOKS:             00:00:00

                2                   That pursuant to information given to the

                3   deposition officer at the   t~e   said   test~ony   was taken,

                4 the following includes counsel for all parties of

                5   record:

                6
                    COUNSEL FOR PLAINTIFF:
                7                     .
                              OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                8             Environmental Protection Division
                              P.O. Box 12548
                9             Austin, Texas 78711-2548
                              (T) 512.475.4138 I (F) 512.320.0911
               10                 By:  Craig Pritzlaff, Esq.
                                  craig.pritzlaff@texasattorneygeneral.gov
               11

               12
                    COUNSEL FOR DEFENDANT:             (VIA SPEAKERPHONE)
".~
 ",-. ,~
 .,~,- :~t~;   13
 ,:~~~- '"
                              MUNSCH, HARDT, KOPF & HARR, P.C.
               14             700 Milam Street, Suite 2700
                              Houston, Texas 77002-2806
               15             (T) 713.222.4030 I (F) 713.222.5830
                                  By: Mary W. Koks, Esq.
               16                      mkoks@munsch.com

               17

               18                   I further certify that I am neither

               19   counsel for,    related to, nor employed by any of the

               20   parties or attorneys in the action in which this

               21   proceeding was taken, and further that I am not

               22   financially or otherwise interested in the outcome of

               23   the action.

               24                    Further certification requirements

               25   pursuant to Rule 203 of TRCP will be certified to after

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                                   Bernard Morello - 9/19/2014

                                                         114


 2

 3   2014.

 4

 5

 6                            i.
 7                 Texas CSR
                   Expiration:
 8                 INTEGRITY LEGAL SUPPORT SOLUTIONS
                   3100 West Slaughter Lane, Suite 101
 9                 Austin, Texas 78748
                   www.integrity-texas.com
10                 512-320-8690; FIRM # 528

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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                  www.integrity-texas.com
                                                        Bernard Morello - 9/19/2014

                                                                                  115
                1          FURTHER CERTIFICATION UNDER RULE 203, TRCP

                2        The original deposition/errata sheet was / was not

                3   returned to the deposition officer on --------------------;

                4        If returned, the attached Changes and Signature

                5   page contains any changes and the reasons therefor;

                6        If returned, the original deposition was delivered

                7   to MR. PRITZLAFF, Esq., Custodial Attorney;

                8        That $ - - - - - - is the deposition officer's

                9   charges to the Plaintiff for preparing the original

               10   deposition transcript and copies of exhibits,   if any;

               11        That the deposition was delivered in accordance

               12   with Rule 203.3, and that a copy of this certificate was

,. .,          13   served on all parties shown herein on

               14   and filed with the Clerk.

               15        Certified to by me on

               16

               17

               18

               19                                 :1.
                                       Debbie D. Cunningham, C
               20                      Texas CSR 2065
                                       Expiration:  12/31/2014
               21                      INTEGRITY LEGAL SUPPORT SOLUTIONS
                                       3100 West Slaughter Lane, Suite 101
               22                      Austin, Texas 78748
                                       www.integrity-texas.com
               23                      512-320-8690; FIRM # 528

               24
 '"
      J --.'


               25

                                Integrity Legal Support Solutions
                                     www.integrity-texas.com
EXHIBIT B
EXHIBIT

  B
EXHIBIT C
EXHIBIT

  C
EXHIBIT D
EXHIBIT

  D
EXHIBIT E
EXHIBIT

  E
EXHIBIT F
STATE OF TEXAS

COUNTY OF HARRIS



       Before me, the undersigned, on this day personally prepared David H. Heslep, who being
duly sworn, deposed and said:



        "I am David H. Heslep 1 am a licensed professional geologist in the State of Texas,
license # 6414. Attached hereto are:



            Exhibit                              Item                               Date

               A                          My qualifications                       -----------


               B                    Services Agreement between                    12115/14
                                    White Lion Holdings L.L.c.
                                             and WDIA

               C                        Draft Memorandum-                         12/15/14
                                    Steps to Achieve Compliance

               D                       Emails between me and                       118115
                                        E. Weimer at TCEQ

               E                       Emails between me and                      2/11115
                                              Welmer

               F                   U.S. Geological Survey (Brazos                   2007
                                      River Alluvium Aquifer)




       "The facts contained in this affidavit are true of my own personal knowledge.

        "All of the exhibits are true and conect copies ofthe originals, and are incorporated
herein by reference for all purposes. My qualifications are attached in Exhibit A.

        "I have been hired by Bernard Morello on behalf of White Lion Holdings [WLH] to
assess the status of the property formerly owned by Vision Metals, fOllTIulate a plan to modify
the existing Compliance Plan and Pennit, and to implement that plan. See the attached Services
Agreement, Exhibit B. My initial proposal is embodied in Exhibit C (Draft Memorandum-Steps
to Achieve Compliance). I have been in communication with TCEQ as evidenced by Exhibits D
and E. WLH has been moving forward to implement the plan and has plugged and abandoned
old wells and installed new monitoring wells. I have personally been at the WLH site and
scheduled and monitored the work that is being done.

        "Part of my proposal included a proposed deep monitor well into the second groundwater
unit on the south side ofthe monitoring area. See Exhibit E. However, TCEQ's Eleanor Wehner
asked that this well be placed on the north side of the monitoring area because she said records
showed that the water flow was to the north rather than the south. In Exhibit E in the Google
earth Untitled Map, my proposed well to the south is shown by the white box in the center of the
page with the words "Proposed Deep Well Location". Eleanor Wehner's proposed well to the
north is shown by the hatched circle with the letters "MW 26" with an arrow pointing north.

        "I became puzzled as to why the flow of the targeted aquifer was to the north, rather than
the south, since the Upper Chi cot aquifer which had been identified as the potentially affected
aquifer, flows south.

        "Based on my training and experiences, my knowledge of the WLH site, and my review
of the Semi Annual Reports for the Vision Metals/White Lion Holdings facility, the 1999 pennit
renewal application, and a geologic study perfonned by the United States Geological Survey at
the request of the Texas Water Development Board regarding the Brazos River Alluvium
Aquifer, I came to the conclusion on April 11, 2015, that a major error had been made in the
geologicallhydrological analysis as it pertains to the former Vision Metals - White Lion
Holdings, LLC site.

        "I reviewed the 1999 pennit renewal application and noticed it was incomplete. Only
"renewal" was checked, but at the back of the package are attachments labeled as Class 3
Modification to the pennit pertaining to recovery wells thus changing the compliance plan. It
also appears the geologic assessment and description have been carried over from the initial
permit. After reviewing this and monitoring reports dated in 2003, they all show groundwater in
the lower groundwater unit identified as Zone 2 flowing in a northerly direction. The geology
and aquifer is described in the renewal application as being part of the Upper Chi cot aquifer. It
is widely published the Chi cot flows in a south to southeast direction toward the Gulf of Mexico.
Since all the reports indicated a northerly flow at the Vision Metals site, this raised the question
as to why? Upon further research of the aquifers in Texas, the aquifer identified as the Brazos
River Alluvium Aquifer was identified as being located in the vicinity of the property. Further
research revealed a study done by the USGS in cooperation with the Texas Water Development
Board titled Hydrogeologic Characterization ofthe Brazos River Alluvium Aquifer, Bosque
County to Fort Bend County, TX [the report] that revealed that that aquifer had been identified
many years before and numerous studies have been done on it. The report provided detailed
figures and by using those figures with identifiable features of the Brazos River, it was
determined the Vision Metals/White Li9n property is situated on top of the Brazos River
Alluvium aquifer, not the Upper Chicot aquifer. The report further documents groundwater flows
in the Brazos River Alluvium aquifer to the north as it does on the Vision MetalslWhite Lion
property. The report states the aquifer is primarily used for.irrigation purposes with some
domestic uses based on location and water quality. "'Given this information, it became apparent
that further investigation was needed to accurately identify Zone 2.

       "I also reviewed:

               1. the current compliance plan and permit for the White Lion facility, and

               2. the 1988 compliance plan.

        "In reviewing everything, it is clear that the flow of the aquifer which was potentially
subject to contact with the plume at the WLH facility was to the north. The flow of the Upper
Chicot aquifer is to the south. This did not make sense so I re-reviewed the U.S. Geological
Survey maps and Texas Water Development maps for the area in question. I also determined that
the WLH site has intermittent sand lenses which is typical of the Brazos River Alluvial Aquif6f,
and not typical of the Chi cot Aquifer. All things considered, it is my opinion that the reason the
actual flow of the aquifer at the WLH facility was to the north was b~cause it was the Brazos
River Alluvial Aquifer, not the Upper Chicot Aquifer. I have shared my fmdings with Eleanor
Wehner at TCEQ, and she indicated she agreed with my opinion regarding the identification of
the Brazos River Alluvial Aquifer.

         "The fact that the actual aquifer potentially affected is the Brazos River Alluvial Aquifer
greatly reduces any risk from the WLH plume. It is my opinion that had the proper aquifer been
identified by Vision Metals experts and the TCEQ expeIj:s when the permit came up for renewal
in 1999, that the current pump and treat system required by the Compliance Plan would not have
been necessary and that a monitored natural attenuation plan would have been appropriate for
remediating the contamination at the WLH facility. This is a much lower level of remediation
than the current plan and would have resulted in much lower financial assurance and much lower
installation, operation, and maintenance costs. The pump and treat remediation plan continued in
effect in 1999 was not necessary at that time to protect the public health and environment.

        "At this time there is no way to know why this mistake was made, but the mistake was a
major reason the pump and treat remediation plan remained in place in 1999. Both Vision Metals
and TCEQ failed to detect the error. The error in the original geological analysis as to which
aquifer was involved was carried over in the 1999 analyses. The result of the error is that a much
more involved and stringent remediation system was put into place than was necessary.
         "In essence, the Upper Chicot was erroneously identified as far back as 1988 as a
potentiallya.ffectedaquiferdespite the fact that the Upper Chicot generally flows
south/southeast:. while the flow of the aquifer under the Vision MetalslWhite Lion facility is to
the north. This error was carried forward thereafter in allreportsa:nd proposed plans and adopted
by the TCEQ' and its predecessor. The State failed to' detect the error, and required the more
stringent pump and treat system based on the error. Had this error been detected by the State, a
less stringent, less expensive monitored natural attenuation plan would have been appropriate. A.
monitored natural attenuation plan would have been much cheaper to install, maintain, and
operate than the existing system.

        "It is 11;1Y opiniontha1: a monitored natural attenuation plan would have been found
appropriateforthe site from the start of White Lion's ownership of the site, had the cortect
aquifer been identified by the State."                     .




                                                            David H. Heslep




         Sworn to and subscriber this             13   day of May 2015.


      ",,\~~II1(jI',     SARAH DELeON
    liJ::A;J:;;~ Notary Public. S,tate of Texas
    ;: :..~)"S

                                                         c~·,«~~
                      My cornrnisSlon Expires
     \~;;,... ·,:'+·l     June 16. 2018
      ~"",~:",\\"'\;

                                                            Notary Public
                                                            State of Texas
EXHIBIT G
                                                                    1
 1                         REPORTER 'S RECORD

 2                           VOLUME 1 OF 1

 3                    CAUSE NO. D-1-GV-06-000627

 4

 5   STATE OF TEXAS               )     IN THE 353RD JUDICIAL
                                  )
 6   VS.                          )
                                  )
 7   WHITE LION HOLDINGS , LLC AND)
     BERNARD MORELLO              )
 8                                )     DISTRICT COURT OF
                                  )
 9                                )
                                  )
10                                )     TRAVIS COUNTY, TEXAS

11

12

13   * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

14                         REPORTER 'S RECORD

15
     * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
16

17

18                      BE IT REMEMBERED , on the 19th day of

19   February , 2015, the following proceedings came on to be

20   heard in the above-entitled and numbered cause before the

21   Honorable Rhonda Hurley, Judge presiding , held in Austin,

22   Travis County, Texas.

23                      Proceedings reported by machine

24   shorthand .

25
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629              EXHIBIT

                                                            G
                                                       2
 1                             APPEARANCES

 2

 3

 4   FOR THE PLAINTIFF :

 5   MR. CRAIG PRITZLAFF
     Assistant Attorney General
 6   P. O. Box 12548
     Austin, Texas 78711-2548
 7   Phone No. 512-475-4138
     Fax No. 512-320-0911
 8
     FOR THE DEFENDANT :
 9
     MR. KEITH LAPEZE AND
10   MR. STEPHEN A. DOGGETT
     (Lapeze & Jones, PLLC)
11   601 Sawyer
     Suite 650
12   Houston , Texas 77007
     Phone No. 713-739-1010
13   Fax No. 713-739-1015

14
     ALSO PRESENT :
15
     MR. DAVID TERRY
16   Staff Attorney for TCEQ

17

18

19

20

21

22

23

24

25
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
                                                                   3
 1                          INDEX

 2                         VOLUME 1

 3   HEARING

 4   FEBRUARY 19, 2015                               Page   Vol.

 5   Argument by the Plaintiff -----------------      4      1

 6   Argument by the Defendant -----------------      20     1

 7   Rebuttal Argument by the Plaintiff --------      33     1

 8   Reporter 's Certificate --------------------     37     1

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                    PATRICIA A. DAY, CSR, RPR, RMR
                            (512) 854-9629
                                                                    4
 1                        P R O C E E D I N G S

 2                          February 19, 2015

 3                   THE COURT:    All right, this is cause number

 4   GV-06-000627.     Would you state your appearances , please,

 5   for the record.

 6                   MR. PRITZLAFF :   Your Honor, Craig Pritzlaff

 7   with the State of Texas and the Attorney General 's

 8   Office.

 9                   MR. TERRY:    David Terry, staff attorney for

10   the Texas Commission on Environmental Quality .

11                   MR. LAPEZE:    Keith Lapeze and Stephen

12   Doggett for Mr. Morello and Mr. Morello is personally

13   here as well.

14                   THE COURT:    All right and this is the

15   state's motion for summary judgment .

16                   MR. PRITZLAFF :   Yes, Your Honor.   We're

17   here on the state's motion for summary judgment .     This is

18   an environmental enforcement case involving the sole

19   owner, sole manager , sole employee and sole director , who

20   through deliberate inaction and deliberate actions

21   caused, allowed , or permitted his company to blatant ly

22   violate laws governing --

23                   THE COURT REPORTER :    Please slow down.    I'm

24   not understanding your words.

25                   THE COURT:    And would that company be White
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                      5
 1   Lion Holdings ?

 2                     MR. PRITZLAFF :   White Lion Holdings , LLC.

 3                     THE COURT:   Okay, go ahead.

 4                     MR. PRITZLAFF :   Under Mr. Morello 's watch

 5   and after suit was filed in this case the entire

 6   groundwater treatment and monitoring system at the

 7   facility was removed.      This is a blatant violation of

 8   TCEQ laws, and especially the Compliance Plan pertaining

 9   to this site.

10                     For over a decade now Mr. Morello has

11   refused to accept the law, he's refused to accept the

12   requirements to comply, and refused to address the

13   contaminated groundwater on his property .

14                     In short, his goal when he acquired this

15   property , which is a former heavy manufacturing facility ,

16   was to clean it up.      And by clean it up, I don't mean

17   clean up the environmental issues, but clean it up to

18   make it more enticing for prospective purchasers and/or

19   lessors.

20                     The presence of a large groundwater

21   mediation system on the property was not enticing and was

22   also costly and expensive to maintain .

23                     In the end by avoiding his obligations for

24   so long, by not taking one single drop of groundwater out

25   of the ground, by not sampling a single drop of
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                       6
 1   groundwater for almost 10 years, by not repairing a

 2   single groundwater monitoring well, by not repairing a

 3   single groundwater monitoring well, by failing to report

 4   anything to the State of Texas for almost a decade, he's

 5   avoided those costs of compliance for almost a decade.

 6                   As we will discuss today, in this kind of

 7   case when you have a corporate representative , the only

 8   corporate representative that participate s in, directs ,

 9   and with knowledge and assents to, agrees to, that

10   corporate individual casts aside his corporate shield and

11   could be held individually liable.

12                   The state has already obtained final

13   judgment against its company White Lion, LLC back in

14   September on summary judgment .   And we believe summary

15   judgment is appropriate in this case, Your Honor.

16                   Now, it may be apparent from the briefing ,

17   which is voluminous , that it appears that this is a very

18   complex case.   And to some extent it is.    But I think I

19   can simplify things today for you.

20                   I offer to you the following road map.       Of

21   course you can -- I'll drive you wherever you need me to

22   go in this case, but I thought I would first discuss the

23   site and the regulations that apply to the site.       And

24   then discuss Mr. Morello 's role in why the state believes

25   he should be held personally liable.
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                 7
 1                  I would also like to finally address his

 2   primary defense , which is third party interference , and

 3   with that we'll turn to the facility and its background .

 4                  This facility is a heavy manufacturing

 5   facility that operated for nearly four decades in Fort

 6   Bend County in the small town of Rosenberg, which is just

 7   west of Houston , Texas.

 8                  As part of the manufacturing process the

 9   facility generated a hazardous wastewater stream

10   consisting of acid waste and heavy metal runoff,

11   wastewater.   That acid waste was run through a series of

12   huge impoundments on the facility .

13                  Those impoundments collected this hazardous

14   wastewater and became hazardous themselves because it

15   stored hazardous waste.     The facility changed its

16   operations and proceeded to close those units.      There's a

17   federal law in place called the Resource Conservation and

18   Recovery Act, RCRA, which governs cradle-to-grave

19   management of hazardous waste.

20                  Texas was delegated authority to implement

21   that program in the state of Texas and it requires , among

22   other things, when hazardous waste units are closed they

23   obtain a permit.

24                  Former owner and operator obtained a permit

25   to close those units.      And contemporaneous with that
                    PATRICIA A. DAY, CSR, RPR, RMR
                            (512) 854-9629
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 1   closure they discovered the groundwater beneath those

 2   units was contaminated .

 3                   The TCEQ then issued a Compliance Plan.

 4   That Compliance Plan addressed investigation of that

 5   groundwater , and then later after a treatment protocol

 6   was set in place, it also addressed treatment and

 7   monitoring that groundwater .     It is this Compliance Plan

 8   that's the subject of this suit.

 9                   Can you see this?     Should I move it up

10   further ?

11                   THE COURT:    Yeah.   Okay, that's good.      You

12   can come on up.

13                   MR. LAPEZE:    That's fine.   I just wanted to

14   see what it was.     Thanks, Judge.

15                   MR. PRITZLAFF :   So here's the facility in

16   general .   It may be difficult -- do you want me to bring

17   it up closer to you?

18                   THE COURT:    I can see pretty well.       If you

19   are going to point it out I'm fine.

20                   MR. PRITZLAFF :   If you see these dots, what

21   the Compliance Plan contemplated is drilling a series of

22   21 monitoring wells all over the facility .        Those

23   monitoring wells are intended for the owner and operator

24   to be able to sample the groundwater regularly .

25                   There's also five wells here in the
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                   9
 1   impound ment that allow for the recovery of groundwater .

 2   That's treated onsite.     There's an onsite treatment

 3   system called the ANTS, Acid Neutralization Treatment

 4   System.    There's five of those recovery wells on the site

 5   as well.

 6                    As you can see, they're located all over

 7   the facility .   The plan also requires regular monitoring

 8   and maintenance of those wells.       Bi-annual groundwater

 9   samples must be taken and reports filed with the state on

10   at least a semiannual basis.

11                    The permittee under the Compliance Plan is

12   also required to provide financial assurance in the

13   amount of $574,000.     That's to guarantee performance of

14   the remedy through the life of the plan, which is set for

15   at least 30 years, but it could go on longer if

16   contamination remains at the facility .

17                    Former owners and operators of the site

18   went bankrupt in 2000, declared Chapter 11 bankruptcy and

19   then this facility was spun out.       The last groundwater

20   samples taken of the former owners and operators was in

21   2003.

22                    THE COURT:   What do you mean by spun off?

23                    MR. PRITZLAFF :   The asset was sold.

24                    THE COURT:   Okay.

25                    MR. PRITZLAFF :   And the last groundwater
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
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 1   report filed with the state was in 2004, which is the

 2   year Mr. Morello came in and purchased the facility .

 3                  It's February 2004 that Mr. Morello entered

 4   into a purchase and sale agreement .    He initially agreed

 5   to purchase the facility for $650,000.     Later negotiated

 6   an amendment to that plan, which dropped the purchase

 7   price down to $150,000 for, among other reasons , assuming

 8   all the other liabilities at the facility .

 9                  He then formed White Lion Holdings , LLC and

10   transferred his rights and obligations under the

11   purchase and sale agreement to White Lion, and then the

12   property was deeded to White Lion.

13                  Let's discuss Mr. Morello 's role at the

14   facility at White Lion.    Quite simple, he is White Lion.

15   He's the only employee .   He's the only decision maker,

16   the only person responsible for making environmental

17   compliance decision s, and most importantly , the only

18   person that could direct and ensure White Lion would

19   comply and manage the groundwater .

20                  In the beginning things were good.    Mr.

21   Morello applied for and transferred the Compliance Plan

22   over to his company .   That was approved on July 23rd,

23   2004.   That's one of the dates that's important here.

24                  For counsel 's benefit , I'm writing the

25   date.
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                   11
 1                    Later that month he wrote a letter to TCEQ

 2   requesting more time to address maintenance issues with

 3   some of the recovery wells that were already present at

 4   the facility .

 5                    He requested more time to conduct the

 6   latest round of groundwater samples , and more time to

 7   study whether another remedy may be applicable at the

 8   facility .

 9                    Would you like to see a copy of that

10   letter?

11                    THE COURT:   It's up to you.

12                    MR. PRITZLAFF :   This is in Exhibit L of the

13   state's motion.     His words, "Due to the property transfer

14   and the permit transfer , the first half of 2004

15   semiannual sampling event was not performed .        These

16   extenuating circumstances precluded submission of the

17   semiannual Compliance Plan report.       However , the next

18   scheduled report due January 20th, 2005 will be

19   submitted .   The laboratory of QA/QC issues you raised in

20   your April 27th, 2004 letter will be addressed in the

21   January 2005 report submittal .     I'm presently exploring

22   other authorized handling methods for the recovered

23   groundwater as an alternative to the handling methods

24   specified in the existing Compliance Plan.         I'm

25   respectfully requesting TCEQ initially provide an
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                     12
 1   additional 120 days to comply."

 2                   TCEQ granted an extension .   Mr. Morello

 3   thereafter ignored his own words.     In late August in one

 4   of his last acts to engage with the TCEQ, Mr. Morello

 5   also asked for a delay to provide financial assurance

 6   until January 12th, 2005 because the former owner and

 7   operator already had a financial assurance policy in

 8   place.

 9                   However the TCEQ's rules required that the

10   new owner must independently provide financial assurance

11   within six months of acquiring ownership .       And this is

12   the TCEQ response which I believe is Exhibit N.

13                   30 Texas Administrative Code, Section

14   305.64(g) is very clear that a new owner must

15   independently provide its own financial assurance within

16   six months, no later than six months after acquiring the

17   facility .

18                   Mr. Morello was explained this, and he

19   failed to respond .   So that's the other key date.      That

20   was the date by which I believe White Lion obtained the

21   facility by a meeting on April 6th.     Six months after

22   that was October 6th.    That was the date by which

23   financial assurance had to be provided .

24                   The reasons were multi why the rule was

25   expressed .   The reasons for the rule are sound.      One, the
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                  13
 1   prior owner and operator is no longer at the facility .

 2   Two, in this case, the prior owner and operator his

 3   bankrupt.

 4                  There are also no assurances that Mr.

 5   Morello 's plans to revise the Compliance Plan would

 6   comport with the rules, and he was explained that in that

 7   correspond ence, and told in the interim he still needed

 8   to comply with the Compliance Plan.

 9                  Mr. Morello didn't like those responses and

10   he ignored them.   In fact, ignore, ignore, ignore is this

11   case, and that's what the company did thereafter .

12                  In his deposition Mr. Morello admitted --

13   that was September 19th, 2014 -- that the facility was in

14   complete noncompliance with the Compliance Plan, and had

15   not provided financial assurance , September 19th.

16                  We have two counts in this case.    One,

17   complete total violation of the Compliance Plan as a

18   whole.   And two, failure to provide financial assurance .

19   3,710 days for the first count times the minimum penalty

20   established in Section 7.102 of the Water Code, there's a

21   penalty for that count of $185,500.00.

22                  The second count regarding financial

23   assurance, that's 3,653 days, times a minimum penalty set

24   in Section 7.102 of the Water Code, $50 per day.      It's

25   $181,750.00.
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                    14
 1                     The state's also seeking its attorney 's

 2   fees in the amount of $26,844.00.

 3                     Let's now look and examine further why Mr.

 4   Morello , himself , should be held personally responsible

 5   in this case.

 6                     To be clear the state's not seeking to

 7   pierce the corporate veil.       It's seeking civil penalties

 8   for Mr. Morello 's actions to cause, allow, and permit the

 9   violations as set forth in 7.102 of the Water Code.

10                     Here's the full text of the statute , Your

11   Honor.      I've also included Section 7.101, which is policy

12   description that we cited in our brief, primarily because

13   defense counsel in their response objected to our

14   citation to that.      But the operative cause of action is

15   7.102 for the civil penalty .

16                     In the case of personal participation of a

17   corporate representative , courts will disregard the usual

18   corporate shield when an individual directs , participates

19   in, or has knowledge of and assents to the wrongful acts.

20   In this case the wrongful act is a violation of the

21   statute .

22                     As the court held in Malone Service s, a

23   case involving corporate representatives were held liable

24   for directing or participating in violations of a permit

25   prohibiting disposal of waste into an on-site
                        PATRICIA A. DAY, CSR, RPR, RMR
                                (512) 854-9629
                                                                  15
 1   impound ment.

 2                    The Court held the proper mechanism for

 3   courts to look at are the actions of the individual s, not

 4   as defendants have purported , to see whether they're

 5   acting within the scope of their employment .     That's

 6   already presumed .

 7                    But the actions are viewed in the context

 8   of whether to determine such actions constitute separate

 9   violations by that individual .

10                    The statutes are structured with, among

11   other things, this in mind.     A person includes an

12   individual .    That's true in DTPA cases and was true in

13   Malone Services , the statute issued there.

14                    And here the issue or the evidence is

15   overwhelming Mr. Morello caused, allowed , or permitted

16   violation of the Compliance Plan and the financial

17   assurance requirements .

18                    As the sole decision maker, employee and

19   person responsible , Mr. Morello was the only person that

20   could cause his company to comply.

21                    Mr. Morello instead made affirmative

22   decisions to ensure White Lion ignored the law.        He took

23   affirmative personal actions to remove certain components

24   of the treatment plan and monitoring system required .

25                    These egregious actions took place after
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
                                                                    16
 1   the state filed suit in this matter, after the TCEQ

 2   initiated an enforcement .

 3                 Let's look at his affirmative actions .         I'm

 4   going to focus on two here.      His testimony , he said --

 5   Mr. Morello explained that he was out at that site 60 to

 6   80 hours a week, everyday .     Incredibly , in 2006, so

 7   this -- backing up a second.

 8                 So after the correspond ence with TCEQ that

 9   we discussed earlier , and Mr. Morello failed to comply,

10   TCEQ inspected the facility in late 2004; more engagement

11   with Mr. Morello to get him to comply, more letters .         He

12   continued to ignore it.      TCEQ got to the end of the line

13   and could not take any further action and referred the

14   matter to the Attorney General for enforcement .

15                 In 2006 this case was initially filed, and

16   Mr. Morello was added in 2007 as a defendant .

17                 In late 2006, and early 2007, and this is

18   from a deposition in another case, Mr. Morello , with

19   respect to the ANTS system, which is the system that

20   would treat the contaminated groundwater , he removed it.

21   He didn't notify the state.

22                 He said I was going to remove it anyway.

23   It was not broken.   This had nothing to do with any third

24   party damages at the facility .     This eliminated any

25   possibility of treating the groundwater at the facility .
                    PATRICIA A. DAY, CSR, RPR, RMR
                            (512) 854-9629
                                                                   17
 1                    Then sometime between 2008 and 2013, every

 2   single groundwater well at that site was removed .

 3   They're not hard to see.     Every single one of those wells

 4   is protected by a large yellow metal housing .      You can

 5   see, it's fairly thick steel.     These pictures are from

 6   2008.   If you recall the picture , they were dotted all

 7   over the site.

 8                    Mr. Morello 's testimony when we asked him

 9   what happened to those wells, he said that mowers at the

10   site destroyed them, that he would pick up these pieces

11   and throw them away.

12                    When our inspector was out there last time

13   in mid 2013, that's all that's left.      Green fields and

14   open holes into the ground, which that's a whole host of

15   issues for additional contaminate migration .

16                    These actions , these direct actions taken

17   by Morello allowed -- he allowed them to be taken under

18   his watch, or he took them personally himself , caused,

19   allowed , and permitted White Lion to violate the

20   Compliance Plan.

21                    Mr. Morello also did a lot of inaction,

22   made a lot of decisions to not do anything , to not

23   repair, notify TCEQ, notify removal of equipment , file

24   reports .   These decisions to not act constitute

25   affirmative action.
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
                                                                       18
 1                     I think about it as perhaps we should ask

 2   the question of what Morello did to comply, and it would

 3   be nothing .     That inaction warrants penalties in this

 4   case.

 5                     One last point, you are going to hear most

 6   likely Mr. Morello talk about third party involvement at

 7   the facility .    When he purchased the facility from the

 8   bankruptcy , apparently other parties came in and removed

 9   equipment , and he said those third parties eliminated any

10   possibility of his complying .

11                     However , he testified that those third

12   parties never prevented him from taking samples from the

13   groundwater .    Those wells are in place, they require no

14   power.

15                     Furthermore , with respect to the recovery

16   wells, these aren't high yield wells that are coming out

17   of the ground.     A few gallons per minute, if that.       The

18   power required to power a small pump at those recovery

19   wells would be minimal .

20                     Irregardless , even if this defense were

21   applicable , it doesn't apply.     The question here is Mr.

22   Morello 's personal actions .    It's not the third party's

23   obligations to comply; it's Mr. Morello .

24                     Mr. Morello never notified the TCEQ of

25   these issues.     By his own testimony , he said that work
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                    19
 1   was completed in August 2004.

 2                   Telling ly, in one of Mr. Morello 's

 3   voluminous response exhibits , there are letters to

 4   insurers .   Here's an example of one of them, and they're

 5   all dated around the same time; July 2005 in this case,

 6   July 16th, 2004.    That's actually the one I really

 7   wanted, which is letters to the insurers to some of these

 8   third parties with respect to potential damages at the

 9   facility .

10                   He then sent a letter, remember , in July

11   2009 -- or July 29th, 2004, later that month, asking for

12   more time to comply and giving assurances to TCEQ.       But

13   he never ever notified TCEQ or alerted them that there

14   were some problems at the facility caused by other

15   parties .

16                   If that defense even were applicable it

17   would have been waived.

18                   The evidence here is so overwhelming that

19   Mr. Morello personally participated in, directed and had

20   knowledge of and assented to causing , suffering , and

21   allowing violation of the Compliance Plan.

22                   Summary judgment is proper here, and civil

23   penalties should be assessed .   This matter has been

24   pending for a very long time, and the facts and evidence

25   here are so very clear.    Summary judgment is the proper
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                   20
 1   means to resolve this now.

 2                   I would like to reserve the balance of my

 3   time for rebuttal .

 4                   THE COURT:    All right, thank you.     Not

 5   much.

 6                   Mr. Lapeze?

 7                   MR. LAPEZE:    Thank you for pronouncing my

 8   name right.    Do the best you can.    We're taking this

 9   record for other reasons so I have that.

10                   Your Honor, just an introduction , TCEQ is

11   seeking nearly $400,000 in civil penalties against my

12   client, Mr. Morello , individually when he never

13   personally owned, never personally operated , and never

14   held a permit personally regarding this property at

15   issue.

16                   The owner, operator , and permit holder in

17   this case, and of this property is and has always been

18   White Lion.    I'll call it White Lion, like the '80s band.

19   That is undispute d.

20                   They make -- the state makes lots of

21   arguments in their motion for summary judgment that Mr.

22   Morello owned the property .     That's false.     He never

23   owned it, ever.

24                   Yes, he went to -- I'll explain the facts

25   in a minute.   He went to a bankruptcy auction and got a
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                    21
 1   purchase agreement .     That's like a contract to sell.     He

 2   never owned it, and I'll explain that in a minute, Judge.

 3                     The state leaves a lot of the facts out,

 4   and I think these are the most facts I've ever heard

 5   discussed at a summary judgment hearing , which is good

 6   for us, because you know the burden of proof, Judge, but

 7   let me talk about the facts for just a second.       I've kind

 8   of jotted them down.

 9                     This is what the state left out for the

10   most part.   The property was owned and contaminated by

11   Vision Metals.     Vision Metals entered into Compliance

12   Plan and permits for the TNRCC, now the TCEQ as you know,

13   in 1988.

14                     Vision filed for bankruptcy in 2000.

15   Mr. Morello attended the bankruptcy auction , which he

16   read about in the newspaper in 2004.       Decided to bid on

17   this property .    And lo and behold he won the bid.

18                     So he entered into a contract to sell, a

19   purchase agreement for this property that he could assign

20   it to anyone.     But there are certain limitations and

21   criteria before he closed; approval by the bankruptcy

22   court, approval by the TCEQ.      I think it was actually

23   approval by the bankruptcy court.

24                     Before closing , Mr. Morello assigned

25   everything he had to White Lion.      So White Lion is the
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                    22
 1   one who bought the property .      White Lion's the one that

 2   negotiated with the TCEQ to enter into the permit, into

 3   the Compliance Plan.

 4                     Now, the bankruptcy trustee not only sold

 5   the real property to White Lion, it sold all of the

 6   equipment on the property to other third parties .

 7                     Remember , they're trying to get all this

 8   money for the corpus of the bankruptcy .       So they sold the

 9   pipe making equipment , the metal rolls, and all these

10   other things to 38 individual buyers.

11                     These buyers were like vultures on a dead

12   carcass .     They went into this facility after the facility

13   was -- after they bought it, and they tore it to pieces;

14   removed the transformers .

15                     There's no electricity on this property .

16   There has not been since 2004.       They destroyed the

17   utilities .     They destroyed many things.    Despite the

18   state's factual statements to the contrary , they damaged

19   dramatically the remediation system that was out there.

20                     These are fact issues.    They caused

21   approximately 1.4 million dollars in damages .       White

22   Lion's sole asset was this property .

23                     When Mr. Morello purchased -- when he got

24   White Lion to purchase this property , there was no debt.

25   Immediately after all these vultures came in, third
                        PATRICIA A. DAY, CSR, RPR, RMR
                                (512) 854-9629
                                                                   23
 1   parties came in and destroyed the property , it's

 2   immediately 1.4 million dollars in debt.

 3                    This happened after the Compliance Plan was

 4   entered into by White Lion.      So this is what White Lion

 5   is facing, immediate debt.

 6                    Now, what did White Lion do?     Well, as any

 7   lawyer would instruct White Lion to do, they started

 8   suing people, started suing these third parties , saying,

 9   look, you damaged the property .     And the state pointed

10   this out with these exhibits .

11                    So White Lion could get the money to start

12   complying with the remediation plan.      10 years of

13   litigation plus, this case is still in litigation , White

14   Lion's recovered approximately a third of the 1.4 million

15   dollars .

16                    A lot of that money has gone to paying

17   lawyer's fees and whatnot on this.      That's the background

18   of all this.    So you have Mr. Morello as the sole

19   officer , sole employee of White Lion having to triage

20   decisions .    You have a patient dying on the table trying

21   to figure out how to best handle all this.

22                    None of this was expected when he bought

23   it.   That's the source of our affirmative defenses in

24   this case, which we're going to talk about in a minute.

25                    Now I want to go to the case's primary
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
                                                                  24
 1   argument at hand.     And I could not have developed a

 2   better exhibit than the exhibits they did.        This is what

 3   Mr. Pritzlaff said when he put this before you.        Morello

 4   is White Lion.    That's his quote.

 5                    I agree with that.   His actions were White

 6   Lion's.   The statute that they're talking about, 7.102

 7   and 7.101, basically the same thing, talks about the

 8   actions of a person.

 9                    Of course, a person can be defined as a

10   corporation .    So the question is what is a person.

11                    Well, when we look at a person we go back

12   decades of Texas case law starting in 1907 where it says,

13   the acts of a person as an agent or employee of a company

14   are the acts of the company .

15                    When we look into LLC law and everything

16   else that's been cited for you in the briefing ,

17   employees , officers , whatnot cannot be held individually

18   responsible for the obligations unless you start piercing

19   the corporate veil.

20                    What are the exceptions to this?

21   Exceptions to this are -- and there's lots of case law

22   that we've cited to you and the state in particular has

23   cited to you -- the employee has individually committed a

24   tort, fraud, slander , libel.

25                    Another situation , and those are all the
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
                                                                  25
 1   cases cited, and we'll talk about Malone Services in a

 2   second because that case is really good for our side of

 3   this summary judgment .     In the Holloway case, you are

 4   talking about the terms of a contract .     This is more of a

 5   contract than a tort, because we're talking about things

 6   that he didn't do or was obligated to do under the

 7   Compliance Plan.

 8                   The Holloway case is great.      Where it said

 9   that you can't hold an individual employee liable for the

10   breach of a contract .     The law doesn't allow that unless

11   you prove that employee acted in bad faith or against the

12   best interest of the company .

13                   Again these are fact issues.      Was it in bad

14   faith?   Did he commit a tort?     They didn't make any

15   allegation in their petition , we can read it, that he was

16   fraudulent , wrongful , tortious , nothing in the petition .

17   There's no allegations .

18                   What their case is is that Mr. Morello ,

19   just because White Lion did it, he did it.

20                   Now, in the background of all this, White

21   Lion has already been held responsible in a summary

22   judgment .   Granted it's on appeal, and I know you don't

23   want to talk about the specifics , it's a little bit

24   outside the record, and I'm talking about some of the

25   things they said that were outside of the record, but
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                    26
 1   there are reasons they are going after this man

 2   individually .

 3                    Now, looking at this law, this decades old

 4   law, to win summary judgment , the state must prove as a

 5   matter of law that Mr. Morello directed or participated

 6   in tortious acts, or that his actions were not in good

 7   faith or against the best interest of White Lion.       That

 8   is their burden.      That's the case law.   That's how they

 9   separate Mr. Morello from White Lion.

10                    Now, let's talk about the Malone Services

11   case just briefly .    Malone Services , you had employees --

12   first of all, it doesn't deal with 7.102 or 7.101.       It's

13   a completely different statute .

14                    There are no cases interpreting 7.101 or

15   7.102 in a person.     Yet employees that fraudulently sent

16   reports to the State of Texas were dumping illegally ,

17   cutting tarps -- you know, these reports were fraudulent .

18   And the statute said, thou shall not dump.

19                    So it's clearly distinguishable .   They were

20   committing fraud.     It's a tort.

21                    And the Court said quote, this is tortious

22   activity , so it falls within the elements of tort.

23                    What's more important is that that case was

24   after a jury trial.     The jury found those people to be

25   responsible , to be liable for their tortious acts.      It
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
                                                                    27
 1   wasn't a summary judgment .

 2                    Now, the state's theory is really wrong.

 3   Let me just twist this hypothetical just a bit.       If we

 4   listen to the state, how they want to interpret this, any

 5   person that causes, suffers , allows, permits , let's say

 6   I'm a shareholder , and I read my 10-Qs and 10-Ks in this

 7   small independent oil and gas company that I've invested

 8   in.     They have obligations with the TCEQ that they report

 9   on and know about it.

10                    This company then puts in a 10-Q; Hey,

11   money is short because of the way oil is, and we can't

12   afford to pay for these things, so we're going to let

13   these obligations go.     Just letting you know that,

14   shareholder , that we expect in a couple quarters we'll

15   have the money to start our obligations up again, which

16   is a technical violation of the law if you don't do your

17   reports or whatnot.

18                    I'm a shareholder .   I didn't come in with

19   my own money to help the company out.       Well, technically

20   then, I caused, suffered , allowed , or permitted .

21                    That's the question they asked him in his

22   deposition .    His deposition is attached as an exhibit .

23   Why didn't you personally go in with your own money, Mr.

24   Morello , and pay for these things?      You should have done

25   that.    That's their argument .
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
                                                                   28
 1                    This would change decades of Texas law if

 2   this argument , this strict liability argument was to be

 3   adopted .    That's not the law in Texas.

 4                    In fact, the law in Texas is that for penal

 5   statutes -- and this is Footnote 58 I describe d this in

 6   detail in the response brief, for penal statutes , which

 7   this is, it's strict construction .

 8                    If the Legislature wants to change the law

 9   with penal statutes , then it has to make it very clear

10   and explicit in the terms.      This is not very clear that a

11   person -- decades of law on agency law in Texas is

12   overrun by this.     And the consequences would be dire.

13                    What the state has done in this case is

14   effectively ignored these arguments and these issues.

15   There is no allegation of tortious activity , fraudulent ,

16   wrongful , like I said earlier .    And again, this is

17   similar to a contract .

18                    There are genuine issues of material fact

19   all through these issues.      Was he acting as an agent or

20   not?     All we want is our day in court on that issue, Your

21   Honor.

22                    Now, let's talk about the affirmative

23   defenses .    We've pled in this case affirmative defenses ,

24   third party interference , force majeure , several of these

25   other defenses, and their inability to comply, things
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
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 1   like that.

 2                     As you know, Judge, and you know the law,

 3   they not only have to prove their case as a matter of law

 4   they have to disapprove the affirmative defenses as a

 5   matter of law to win.

 6                     Now, their argument in this case is, well,

 7   for force majeure in this third party interference

 8   causing you not to be able to comply because there is no

 9   money, et cetera, et cetera, you had a separate

10   obligation under the Compliance Plan to let us know about

11   this, and you failed to do that.          So that in and of

12   itself is a violation of the Compliance Plan.

13                     Well, they make two causes of action in

14   this case.      Your Honor, may I approach ?

15                     THE COURT:    Uh-huh.

16                     MR. LAPEZE:    And I just want to show it to

17   you briefly .     I've highlighted the relevant portions for

18   you.

19                     The first claim is failure to operate the

20   complete corrective action plan.          We've been calling it

21   the Compliance Plan.      And the second claim is failure to

22   provide for financial assurance .

23                     The specific violation rule that they claim

24   with the corrective action plan is 30 TAC, 335.166(6).

25   The financial assurance is a completely different
                        PATRICIA A. DAY, CSR, RPR, RMR
                                (512) 854-9629
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 1   statute , and it's an independent obligation of a

 2   Compliance Plan to provide for financial assurance , 30

 3   TAC 305.64(g).

 4                    The reason why I bring that up to Your

 5   Honor, and the reason why it's important is this.        Is

 6   that financial assurance , not providing that, they have

 7   not even addressed our affirmative defenses with any

 8   argument that they have made.

 9                    Therefore , on the financial assurance piece

10   of their argument , they lose as a matter of law.       Their

11   only argument about our affirmative defenses is regarding

12   the Compliance Plan.

13                    So for their Count 1 they say, okay, their

14   affirmative defenses don't count, and this is why. They

15   never address our affirmative defenses for Count 2

16   because it's separate and apart from the Compliance Plan.

17                    Now, regarding that, they never make one

18   allegation until their summary judgment that there's this

19   force majeure provision in the Compliance Plan.        Not one.

20                    So because they didn't plead it, they never

21   argued it before, they've waived it.      They can't do it.

22   We've timely objected to that in our summary judgment

23   response .

24                    Now, I just want to talk about some

25   misstatements of fact, and I talked about those briefly .
                      PATRICIA A. DAY, CSR, RPR, RMR
                              (512) 854-9629
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 1   All throughout the summary judgment they talk about

 2   7.101.   That's not even mentioned in their pleadings .

 3   7.102 is.    So it's very confusing about whether or not --

 4   what they're arguing here.     But 7.101 is not a policy.

 5   It is a specific statute , "thou shall not" statute .

 6                   Again, Morello never personally owned the

 7   property .   He was never personally the operator .      White

 8   Lion was.    The notices of violation , the notices of

 9   enforcement were never issued to Morello personally .         He

10   was never put on notice that we're going to hold you

11   personally responsible for this.

12                   The cases cited by the state, Your Honor,

13   I'd invite you to read them, they're all after bench

14   trials or jury trials.

15                   The one summary judgment is where the

16   defendant got a summary judgment .    No way there's a fact

17   issue on whether or not he was an agent.      So we're

18   sending that back down.

19                   And if you just read through the reply,

20   this case is replete with fact issues.      This is a serious

21   summary judgment , Your Honor.    We're talking about

22   holding my client responsible in a summary proceeding for

23   almost $400,000 after the state has received a summary

24   judgment against White Lion.

25                   And these are just for fines.     The state
                      PATRICIA A. DAY, CSR, RPR, RMR
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 1   states in their motion for summary judgment that the only

 2   way -- and I don't understand this exactly , but I think

 3   it's worth bringing up.      The only way for Mr. Morello to

 4   defeat it, if he shows that he is somehow starting to

 5   comply with this, or he's complying with this or trying

 6   to comply with the Compliance Plan.

 7                  Well, we did that.       We added some exhibits

 8   to show you, Your Honor, that environmental consultants

 9   have been hired and have been working for quite awhile

10   now on this site.

11                  The state doesn't mention that.          As a

12   matter of fact, they try to strike those exhibits .            Long

13   story short, Your Honor, all my client wants is his day

14   in court, be able to argue his points and defend himself

15   in front of a jury.

16                  And last, and I received a note from my

17   co-counsel , last, but certainly not least, there are

18   arguments the state made regarding how the wells work and

19   power to operate the wells.       There's nothing in the proof

20   about that.   The state doesn't have any of that in their

21   proof in their summary judgment .

22                  Your Honor, unless you have any questions ,

23   that is all I have, and I thank you for your time and

24   your attention .     I appreciate it.

25                  THE COURT:      Thank you, sir.      All right,
                        PATRICIA A. DAY, CSR, RPR, RMR
                                (512) 854-9629
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 1   briefly , very brief.

 2                     MR. PRITZLAFF :   Yes.   With respect to

 3   ownership , we present that not to prove up ownership .

 4   It's merely contextual to show his involvement early on.

 5                     With respect that the contamination was

 6   caused by another party, that's irrelevant .        The issue

 7   here and the cause of action here is for the Compliance

 8   Plan which is in White Lion's name, and the rampant

 9   violation of that plan.      Company debt is irrelevant to

10   compliance .

11                     The actions here of Mr. Morello constitute

12   affirmative action to destroy that treatment unit, all

13   the monitoring wells, taking affirmative inaction to not

14   do anything .

15                     Most importantly , I need to correct a very

16   important point here.      The Compliance Plan, that is not a

17   contract .     It's a creature of statutory and regulatory

18   law.     This is addressed in our response brief, our reply

19   brief.

20                     It is a statutorily required obligation .

21   The state doesn't -- is not entering into an arms-length

22   negotiation with the defendant or with the permittee to

23   enter into that Compliance Plan.       It's statutorily

24   required .

25                     There's no damages action.     Civil penalties
                        PATRICIA A. DAY, CSR, RPR, RMR
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 1   is the remedy for violation .     The state does not need to

 2   prove tort causes of action elements , bad faith, fraud.

 3   The elements are set forth in Section 7.102 of the Water

 4   Code.   And it's not strict joint and several liability .

 5   I don't know if he said that.

 6                  It is his individual actions , whether they

 7   amount to violations of the law, and the evidence is

 8   clear that they do.      He participated in, directed , and

 9   with knowledge assented to those violations .

10                  With respect to the affirmative defenses ,

11   we've addressed those in the response brief.

12                  And with respect to force majeure , which

13   was just added in their most recent answer filed a week

14   ago, it's irrelevant .     It's inapplicable .   Look at

15   Section 11 of the Compliance Plan, or Section 12 of --

16   Section 13 of the Compliance Plan.

17                  It specifically speaks to force majeure ,

18   and it's just not relevant here.      It's a red herring .

19   Even if it was applicable , he never filed any kind of

20   paperwork to that effect to raise that as an issue.

21                  With respect to the consultant hired, they

22   were hired after the fact.      And as admitted in his

23   deposition , the facility is in complete noncompliance as

24   of September 19th, 2014, and honestly to this day, we

25   could seek additional 151 additional days of penalty if
                     PATRICIA A. DAY, CSR, RPR, RMR
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 1   Your Honor so chose to add those on.

 2                   That brings us up to the last point.          I

 3   don't know if you wanted to address objections to those

 4   affidavits now.

 5                   THE COURT:     I'll carry those with it under

 6   advisement .

 7                   MR. PRITZLAFF :       Okay.    We have two proposed

 8   orders.    One for the objections and one for the --

 9                   THE COURT:     Okay.

10                   MR. LAPEZE:     Your Honor, we have an order

11   as well.    May I approach ?

12                   THE COURT:     Yes.

13                   MR. PRITZLAFF :       Unless you have any further

14   questions , Your Honor.

15                   THE COURT:     I don't.       Are there any

16   deadlines coming up?

17                   MR. PRITZLAFF :       Oh, Malone Services .   May I

18   make one more point?

19                   THE COURT:     Yes, sir.

20                   MR. PRITZLAFF :       On Malone Services , he is

21   correct , Malone Services is the key case.          The statutory

22   provision there is very similar to here.           Any person who

23   violates a provision of a permit, and I've highlighted

24   that for you.     The same definition of person as applies

25   here.
                       PATRICIA A. DAY, CSR, RPR, RMR
                               (512) 854-9629
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 1                   THE COURT:   Okay.

 2                   MR. PRITZLAFF :    And in the Court's own

 3   words, when a corporate officer who participate s in or

 4   directs the commission of a tort may be held personally

 5   liable.

 6                   And it's equating the statutory violation

 7   to the tort case law because this was a unique case at

 8   the time.   Liability is based on the agent's own actions ,

 9   not his status as an agent.       It cites federal court case

10   law regarding personal participation which has been

11   adopted .

12                   THE COURT:   Thank you, sir.     Okay, you-all

13   are excused .   I'll send a letter ruling.

14                   (Hearing concluded .)

15

16

17

18

19

20

21

22

23

24

25
                     PATRICIA A. DAY, CSR, RPR, RMR
                             (512) 854-9629
                                                                37
 1                      REPORTER 'S CERTIFICATE

 2   THE STATE OF TEXAS     )

 3   COUNTY OF TRAVIS       )

 4             I, Patricia A. Day, Official Court Reporter for

 5   the 98th Judicial District Court of Travis County, Texas,

 6   do hereby certify the foregoing contains a true and

 7   correct transcription of all portions of evidence and

 8   other proceedings requested by counsel for the parties to

 9   be included in this volume of the Reporter 's Record, in

10   the above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were reported

12   by me.

13             I further certify that the Reporter 's Record

14   truly and correctly reflects the exhibits , if any,

15   admitted by the respective parties .

16             WITNESS MY OFFICIAL HAND this the 10th day of

17   March, 2015.

18                         _/s/ Patricia A. Day
                           Patricia A. Day, CSR, RPR, RMR
19                         Official Court Reporter
                           98th Judicial District Court
20                         P.O. Box 1748, Austin, Texas 78767
                           (512) 854-9629
21                         Certification No. 967
                           Date of Expiration of Current
22                         Certification : 12/31/16

23

24

25
                    PATRICIA A. DAY, CSR, RPR, RMR
                            (512) 854-9629
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                                                   98TH DISTRICT COURT
       RHONDA HURLEY                                                                                         KELLY DAVIS
           Judge                                     HEMAN MARION SWEA IT                                     Court Clerk
             (512) 854-9384                        TRAVIS COUNTY COURTHOUSE                                  (512) 854-5887
                                                           P. O. BOX 1748
          MICHELLE ROCHE                               AUSTIN, TEXAS 78767                                  PATTY DAY
            Staff Attorney                               FAX (512) 854-9338                            Official Court Reporter
             (512) 854-7839                                                                                 (512) 854-9629
     michelle.roche@traviscountytx.gov

        DORINA COCKMAN                                    March 9, 2015
       Court Operations Officer
           (512) 854-9384



             Craig J. Pritzlaff                                Keith W. Lapeze
             ASSISTANT ATTORNEY GENERAL                        Taylor 1. Shipman
             Environmental Protection Division                 LAPEZE & JOHNS, PLLC
             P.O. Box 12548, MC-066                            60 I Sawyer Street, Suite 650
             Austin, Texas 78711-2548                          Houston, Texas 77077
             Via Facsimile: (512) 320-0911                     Via Facsimile: (713) 739-1015

             Stephen A. Doggett
             ATTORNEY AT LA W
             201 South 11 th Street
             Richmond, Texas 77469
             Via Facsimile: (281) 342-8458

                       Re: Cause No. D-I-GV-06-000627; State of Texas v. Bernard Morello; in the 353rd Judicial
                       District Court, Travis County, Texas

             Dear Counsel:

                    The State of Texas' Motion for Summary Judgment came on for hearing on February 19,2015.
             Having considered the motion, response, summary judgment evidence and arguments of counsel, the
             court grants the motion. The Court sustains the State's objections to the affidavits of Mr. Heslep and
             Mr. Crouch.

                    Counsel should prepare an appropriate order, circulate to opposing counsel for approval as to
             form and submit to the court for signature.




                                                                       RHONDAHU EY
                                                                       Judge, 98[h District Court
                                                                       Travis County, Texas
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             cc: Velva 1. Price, District Clerk
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