Motion-Secondary: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                1 | EUGENE BROWN, JR. (SBN: 079824)
DAVID A. PEREDA (SBN: 237982)
2 | FILICE BROWN EASSA & MCLEOD LLP

2] | Safety Consultant for The Cohen Group, located in San Mateo, California. Prior to The Cohen

22. | Group, | was the Corporate Industrial Hygienist and Director: of Environmental Laboratories for

1999 Harrison Street, Suite 1800 ELECTRONICALLY
3.) Oakland, California 94612-3520 FILED
‘Telephone: (510) 444-3131 Superior Court of California,
4) Facsimile: (510) 839-7940 County of San Francisco |
5 | Attorneys for Defendant FEB 24 20 10 |
TOSCO REFINING COMPANY, INC, BY: CHRISTLE ARRIOLA
6 Deputy Clerk,
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10.
Ho) JOYCE JUELCH AND NORMAN CASE NO, CGC09-275212
JUELCH, SR. 1
12 DECLARATION OF JOEL COHEN IN |
Plaintiffs, SUPPORT OF TOSCO REEINING !
13 COMPARY, INC?S MOTION FOR, i
vy SUMMARY JUDGMENT
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ASBESTOS. DEFENDANTS (BP), Date: March £8, 2010
15 Time: 9:30 a.m.
Defendants, Dept: 220
16 Judge: Hon. Harold E. Kahn
Yriai: April 5, 2010: i
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18 ee
19 1, Joel Michael Cohen, declare as follows: i
20 1 lam_and since 1980 have. been President of and Senior Environmental Health and |
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23 | Hewlett Packard Company.
‘34. 2. {received a Bachelor of Science degree from Oakland University in Rochester. |
25 | Michigan in 1972, and a-Master Public Health degree in 1974 from the University of Michigan in
26 | Ann Arbor, Michigan. |
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05022 S977 DAP 6284001

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sake Mdencrs trans bE

OF JOEL COHEN IN SUPPORT. SC
FOR SUMMARY JUDGM.in

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. 3. have been certified in the Comprehensive Practice of Industrial Hygiene by the .
Anieriean Board of Industrial Hygiene since 1980(CIH #1871). Lama Diplomate of the
Academy of Industrial Hygiene. | am a Certified Asbestos Consultant ia the State of California
#0508), 1 aman Accredited Asbestos Inspector, Asbestos Management Planner, Asbestos
Abatement Contractor/Supervisor, and Asbestos Project Designer by the U.S. Environmental
Protection Agency. i am a Registered Environmental Assessor inthe State of California (#00480).
4 L have served as an instructor for the PA-accredited programs for the Pacific
Asbestos information Center, University of California, Berkeley. and the Midwest Asbestos,

Information Center, University of Tlinois, Chicago. 1 assisted i in the development of the

Ca liforsia State Contractors Li ieense Board examination for asbestos abatement contractors. 1
have served as.a technical advisor on several Yechnical Advisory Commitiees for the Ca lilornia
Occupational Safety and Health Administration, including asbestos and on Asbestos ‘T) raining.
5. _Lam trained to analyze suspect bulk materials. for the presence of asbestos and to
analyze air samples for the presence. of fibers in accordance with the. National Institute for

Occupational Safety and Health (NIOSH) approved methods. I have performed these

services under the accreditation of the American Industrial Hygiene Association Prof
Analytical Testing Program and the National Voluntary Laboratory Accreditation Program. |
have personally analyzed thousands of bulk samples suspected of containing asbestos, and
thousands of air samples

6,” Lhave over 35-years experience in the practice of industrial hygiene: Ll have
authored or-co-authored. three books and more than two dozen papers on industrial hygiene,
exposure to hazardous substances i in occupational settings including refineries, and presented ~

numerous rechnical papers at professional conferences, 1 have personally reviewed and conducted

evaluated buildings of various ages, from buildings of historical concern, to current construction.
Adrne and correct copy of my Curriculum Vitae is attached hereto and incorporated herein
though fully set forth-as Exhibit A.

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“LARATION OF JOEL COHEN IN SUPPORT OF TOSCO REF

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hundreds of site assessments for various hazardous substances, including asbestos..1 have |
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FOR SUMMARY JUDGMENT. |Laise RIBAS ESSE

7, industrial hygiene is.that science devoted to the anticipation, recognition,
evaluation and control of those environmental factors or stresses arising in or from the workplace
that may cause sickness, impaired health and well-being, or significant discomfort and
inefficiency among workers, An industrial hygienist is. defined in-the pertinent California standard
(Title 8, California Code of Regulation, §1529, “Asbestos") as,

*A professional qualified by education, training and experience to anticipate, recognize,
evaluate and develop controls for occupational health hazards."

‘The categories of environmental stresses] am routinely asked to evaluate include

chemical, biologic, physical, and ergonomic. [ evaluate these stresses on-the basis of observation
using my experience and training, and with the aid of quantitative and qualitative measurement
techniques.

8. In-this case, | have been retained on behalf of Tosco Refining Company to render a
professional opinion as ah industrial hygienist and submit this declaration in support of its motion
for summary judgment.

9. I have reviewed the deposition transcripts of JOYCE JUBLCH, including the Trial

Preservation deposition, dated September 15,.2009 and Volumes | and Il of plaintiff's deposition

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dated September 16 and 17, 2009.

10. Plaintiff testified that she. worked at Tosco on one occasion in 1983 while
employed by Plant. She stated that she observed a two-person Toseo maintenance crew cleaning,
an area after.she.had cleaned at the end of the job. She states the ground where the cleaning took
place was.gravel (Tbe ground. the ground surface is gravel. It's kind of Hike ~ 1 call i's not
pea gravel. It’s not the real dinky thing. It’s biggerthan that. It's covered with gravel and your
dirt. The dirt and the gravel is on top of it. (V.2., pg 218,:2-6)]. Plaintiff stated that there would
be dust during cleaning. She did not know if the dust contained asbestos.

11. Based upon plaintiff's deposition testimony, there. is-an absence of information to
conclude with scientific certainty that plaintiff was exposed fo airbome levels of asbestos from

the cleaning activities of Tosco employees, In order to determine whether the dust that plaintil’

ARATION OF JOEL COHEN IN SUPPORT OF TOSCO REFINING
FOR SUMMARY JUDGMENT|
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need to be tested by an analytical laboratory. “There is.no’supporting information that the dust or |
clean-up residue contains asbestos, and if so, in what concentration. ‘To assume the dust |
contained ashestos would be speculative. Due tothe passage of time, weather conditions and
other factors, there is no way to test the. dust today to determine the asbestos content of the dust
plaintiif observed in 1983.

12, Assuming, however, the dust contained asbestos-still does not demonstrate an |
exposure-to the plaintiff, To determine exposure, an air sample would need to be collected and
analyzed by an analytical laboratory to quantitatively demonstrate plaintiff was exposed. Again, /
this carmot be determined almost 30 years after the fact. It is possible to, qualitatively determine
whether'an exposure occurred, assuming the dust contained asbestos, if factors affecting exposure. i
were known. These factors include duration of exposure, proximity to ‘the source, intensity (i.¢:, |
concentration of asbestos in the dust) and environmental factors (i.¢., wind speed, climatic I
conditions, whether the plaintiff was upwind or downwind of dust). Unfortunately, none of these |
factors are known, except that the:plaintiff testified that it was raining on one day of cleaning and
cleaning took “about one hour” a. day. Without information relative to these exposure factors, one
cannot state to a reasonable degree of scientific probability that.an exposure to. asbestos occurred i
and to do.so would be speculative, |
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88022 34977 DAP 6254091

TON OF JOEL COHEN IN SUPPORT OF TOSCO REFINING COMPANY, INC’S MOTION
FOR SUMMARY JUDGMENT

“CARAT!I 13. Therefore, it is my professional opinion, based on the materials | received and

2 | reviewed in this case, as well as my education, training and experience in industrial hygiene and.
3 | the causes and sources of asbestos exposure, that it is not possible to render an opinion as to the
4 | content of the dust and debris that Ms. Juelch claims to have observed at ‘Tosee in. 1983, orto

5 || render the opinion that the dust and/or debris contained asbestos. Furthermore, even. if one
assumes the dust contained asbestos, there is insufficient information.to render an opinion

whether Mr. Juelch was exposed to a measurable concentration of asbestos.

I declare under penalty of perjury. pursuant to the laws of the State of California that the
foregoing is true and correct and that if called as a witness, 1 could and would testify competently

il | thereto. Executed this _ a day of February 2010, in San Mateo, California.

BBEGM -5- 03022 34977 DAP '625400.1

Esuswartenen | ECLARATION OF JOEL COHEN IN SUPPORT OF TOSCO REFINING COMPANY, INC.’S MOTION
’ ‘OR SUMMARY JUDGMENT

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