US v. John Emerson Tuma – Day Eight – Morning Session
Shaun Smith resumed the stand for a continuation of his direct testimony. Mr. Boren took Mr. Smith through a detailed description of the discharge process. Once notified that the tank was ready, Ana-Lab would come out to the facility and “lock-out” the inlet valve to the tank so that no material could be added. The outlet valve was also “locked out.” A sample was collected and once analyzed, Ana-Lab would then unlock the outlet valve and the discharge to the City would begin. After the discharge, the tank would be gauged to read the level of the tank (to make sure it was empty). Mr. Smith testified that the compositor would collect a composite sample during the discharge and it would be analyzed. Ana-Lab would not compare the pre-discharge sample analysis with the composite sample of the actual discharge. Mr. Boren then attempted to elicit testimony that the system would detect tampering; however, Mr. Smith did not have that knowledge. He did testify that if the power was disconnected, the equipment would log a power failure.
On cross examination, Mr. Smith acknowledged that the SOP was in place from August 2007 on and that prior to that time, Ana-Lab had no controls in place at the facility, specifically, he testified that the types of controls he described were not in place in 2006 or 2007, until August 2007. Mr. Smith further testified that Ana-Lab did not have keys to lock out or have any other control over the valve allowing discharges to the Red River. Mr. Smith testified that he had been told that the line going to the Red River went to the Port. Mr. Smith also testified that Ana-Lab had no controls over any other piping at the facility and that he did not know where other pipelines went to within and without the facility. He finally testified on cross examination that Ana-Lab had no control over any valves prior to August 2007. There was no re-direct.
The next witness for the defense was Ben Head, another Ana-Lab employee. He testified he went to the ARKLA facility to conduct work. He was shown a field lag book that Ana-Lab used to record information at the facility. The log showed that the controls in place by Ana-Lab began on July 26, 2007, the first entry in the log book. The log book recorded the results of the flow meter and gallons discharged. Mr. Head testified that there were chains on the valves but he did not recall ever being trained to tell whether a valve was open or closed. Mr. Head did testify that a power interruption to the flow meter and the compositor would be recorded and noted in the log book. He was never suspicious of any samples being faked. He also testified that he did not recall Ana-Lab having any controls on the Red River discharge valve. Mr. Head testified as to various entries in the log book to the extent that the facility discharged over 5 million gallons from July 26, 2007, through September 28, 2007. On cross examination, Mr. Head reconfirmed that the earliest entry was July 26, 2007, which also showed an entry that the technician spoke with Cody Tuma and John Tuma. Mr. Head testified that John Tuma was in charge. Mr. Head finally testified that prior to this time, Ana-Lab had no controls and the facility and that he did not know what was being discharged or how it was being prepared for discharge. There was no re-direct.
The last witness for the defense was Charles Tubbs. It was apparent from the direct that Mr. Boren had not spoken with Mr. Tubbs prior to his testimony. Mr. Boren went through Mr. Tubbs’ background with included service with the United States Coast Guard as a spill response pollution investigator. He testified that ARKLA had a boat for spill response in case there was a spill to the Red River and that he and John Tuma put that together. Mr. Tubbs then testified that prior to the sale of the facility to CCS, Mr. Tuma was always on-site and that after the sale, he was either at the facility or in his office in Houston, TX. Mr. Tubbs testified that he did talk with Mr. Tuma about facility operations by telephone. Mr. Boren then took Mr. Tubbs on a review of the various treatment units in place at the facility, including the API oil/water separator, the sludge pit and drying bed, the electro-coagulation unit, the reverse osmosis unit, the DAF (diffused air flotation) unit, the Baker filters and the injection of ammonia, CO2 and acid into the treatment system. Mr. Tubbs testified that the facility was operating except for “turn-arounds” or scheduled maintenance. Mr. Tubbs testified that sometimes the EC unit worked but that the facility never got to a point where it was consistent in its output (reducing chlorides) stating “Sometimes it would work; sometimes it didn’t.” On cross examination, Ms. Lehnert had Mr. Tubbs testify that John Tuma was in charge except for a brief period of time in which Troy Yonker was plant manager. He then testified that there was a lot of work put into trying to get the EC up and running and had it been running correctly it would have been connected to the reverse osmosis unit. Mr. Tubbs testified that the EC was never up and running in the treatment process. Mr. Tubbs then testified that the reverse osmosis system was the wrong application for what the facility was trying to undertake and that it was only used in a testing application. He finally testified on cross examination that he was never involved in any discharges.
On re-direct, Mr. Tubbs testified that notwithstanding the EC and reverse osmosis system not being a part of the treatment process, the facility did operate and treat wastewater. The defense then made a proffer (outside the hearing of the jury) that if allowed, Mr. Tubbs would testify that had the facility actually discharged as alleged, there would have been fish kills and oily sheens would be visible. Judge Stagg did not allow the testimony as it went to environmental harm which was not admissible. The defense then rested.
The government called one witness on rebuttal, the manager of the Red River Terminals, Matt Vienne (sp?). Mr. Vienne testified that the facility had leased tanks from Red River Terminals. He testified that he had never opened any valves at the facility that had been leased to ARKLA and that the only valve he had access to once the tanks were leased was a valve to relieve pressure. He was not aware that AKLA had a discharge line upstream from his facility. He testified that he had no conversations with Mr. Tuma regarding barge traffic up stream or why a discharge line would need to be laid at the bottom of the Red River channel. He also testified that he was not aware of any barge tramp lines near the facility’s outfall. On cross examination, Mr. Boren asked if he was aware of a Corps of Engineers cable allowing barges to tramp – he was not. Mr. Vienne then testified that he was not aware of any barges that might go north of his facility only that the ones coming to his facility would not go north of his facility (and then near the ARKLA outfall discharge line).
After Mr. Vienne was excused, the prosecution rested. The jury charge will be argued beginning at 3:00 p.m. this afternoon and closing arguments are scheduled to begin at 9:00 a.m. tomorrow morning.
More later.
As always, feel free to contact me at walter.james@jamespllc.com.
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