The afternoon session began at 1:20 p.m. when the government called Todd Cage to the stand. Todd Cage is the employee who first came forward on October 22, 2007 and notified CCS of the illegal discharges.
The government briefly went through Todd Cage's employment at ARKLA that he was hired in July 2006 to work the night shift and was promoted to night shift supervisor in January 2007. When he was first hired, Cody Tuma, John Tuma's son, was Mr. cage's supevisor. Mr. Cage also testified that John Tuma was in charge of the facility and lived on site at the facility in a trailer. Cody Tuma also lived at the facility in the trailer with John Tuma.
Mr. Cage testified that it would take about 12 minutes to unload a truck and that it would only require one person to unload. Mr. Cage testified that he discharged to the City POTW and to the Red River and that Cody Tuma showed him how to do it. Mr. Cage also testified that John Tuma and Wayne Mallet also directed his actions. In the beginning of his employment, Mr. Cage only talked to John Tuma occasionally; however, later on he would talk to John Tuma more, often by telephone via cell phone. The truck unloading would involve taking a sample of the truck to determine in the facility could accept the waste. The trucks would be emptied into whatever tank had room. The tanks would then be discharged to either the City or the Red River. Overtime, the volume of truck traffic increased. Bonuses would be paid every time a new record was set for number of trucks unloaded. Mr. Cage testified he had no role in the treatment process, but viewed the process in the plant. He would initially help Cody Tuma with discharges by helping him open valves for the discharges.
Mr. Cage testified that discharges did occur from Tank B1 to the City but that it was mixed with well water to dilute the waste water. The recipe would average 10 minutes of waste water and then up to 9 hours of well water being pumped into Tank B1. This was done so that when Ana-Lab sampled the Tank B1, it would be within discharge limits. Mr. Cage also testified that he discharged Tanks B1, B2, B3 and B4 to the City as well. Most times it was untreated waste water. Hoses were used to bypass meters. When asked how he learned that, Mr. Cage testified that he was originally told how to do it by Cody Tuma, Wayne Mallet and John Tuma. He testified that he could bypass the sampler by unplugging it. He also testified that there were many different ways to use pipes and hoses to bypass flow meters and sampling devices. Discharges were made to the City POTW every night.
As to discharges to the Red River, Mr. Cage testified that it was a fairly simple process of turning a valve once the cap was removed from the Outfall at the Red River. He testified that the whole plant was set up to align pipes to go anywhere in the facility. This occurred because the treatment system in place would not bring the sample numbers down to meet permit discharge limits. In January 2007, Cody Tuma went to the day shift and Todd Cage became night manager. Mr. Cage testified that discharges to the Red River continued during this time and that he was told to watch the front of the facility in case anyone from the City showed up. If that occurred, he testified that he was to shut everything down. He testified that only he and Cody Tuma undertook the discharges during the night shift. Mr. Cage testified that millions of gallons of untreated waste water was discharged to the Red River. He also testified that he was told to go to the Red River, along the discharge line to check for any metering devices or broken lines.
Mr. Cage testified that the spliced line was installed in the spring of 2007 (this is a discrepancy with testimony from E.A. Rowe); however, he also testified that it was installed at about the time there was a flood in the lab (caused by a piece of pipe not having a "blind" on it). Mr. Cage testified he recognized the spliced pipe and that it had come from the pipe rack just outside the North Building at the facility. Mr. Cage testified that John Tuma told him about the spliced line and what it would be used for. To put it in context, Mr. Cage testified that he had told John Tuma that he (Todd Cage) would have problems shutting off a discharge if anyone came to the facility to which John Tuma purportedly said that he was putting a line in to eliminate that problem.
Mr. Cage admitted that he occasionally drank on the job and occasionally smoked dope on the job. He said that it was all done with Cody Tuma and sometimes with Wayne Mallet. Mr. Cage testified that sometimes John Tuma bought the beer.
Mr. Cage testified that he first told Larry Smith, who was then plant manager about the discharges on the night the lab first flooded. Mr. Cage testified that when he told John Tuma the lab had flooded Mr. Tuma responded "Who removed the skillet?" A "skillet" is a blockage that prevents movement through a pipe. At that point, Mr. Cage testified, that he thought he was being set up and decided to come forward. He testified that John Tuma was "100% in charge." Mr. Cage testified he came forward because it "needed to be done." Mr. Cage finished his direct by testifying that he did not have a lawyer and that no promises had been made to him regarding any potential charges or immunity. [As an aside, Mr. Cage always refused offers to retain counsel for him.]
Cross examination was spirited. Mr. Boren asked Mr. Cage is he came forward because of his "civic duty." Mr. Boren also had Mr. Cage admit that he was the guy who turned the water on to discharge when the lab was flooded. When asked why he did that, Mr. Cage testified that Wayne Mallet had told him "it was good to go."
Mr. Boren asked if Mr. Cage had told his current employer that he had discharged millions of gallons to the Red River. Mr. Cage testified that they knew and when pressed he stated that he had told the individual who had trained him at this new employer what had happened. He also testified that this individual had also worked at the facility and "knew the story."
On cross, Mr. Cage acknowledged that some of the water went to the treatment process but that most of the time, all of the treatment processes could be bypassed. When asked why trucks were sampled if the waste was bypassing the treatment system, Mr. Cage testified he did it because he was told to do it.
Mr. Boren then took Mr. Cage on a review of the various tanks and treatment processes at the facility trying to poke holes in Mr. Cage's testimony regarding bypassing the treatment system. Mr. Cage was steadfast in his testimony that while there were certain treatment systems at the facility (such as the DAF - diffused air flocculation - and the EC - electro-coagulation - unit and boilers in the N tanks, all of them were capable of being bypassed and were bypassed. When showed flow meters, Mr. Cage testified that pictures were taken after work-arounds were removed. When showed pictures of the compositors and flow meters installed, Mr. Cage testified that John Tuma told him how to get around those systems.
The cross examination then focused on the chains and locks on the various valves. Mr. Cage testified that John Tuma had keys to all of the locks and provided those keys to Todd Cage, Cody Tuma and Wayne Mallet. Mr. Cage then testified: "Locks are not a factor when you could bypass it." Mr. Cage was then confronted with a discrepancy in his deposition testimony provided in a case filed by John Tuma against CCS for wrongful termination with regard to the opening of valves that were supposedly chained shut (Mr. Cage testified in his deposition that you could still open the valves). The defense had a valve brought in and a chain put on the valve. After some initial testimony regarding the valve, the government objected to the use of the valve as it was different (according to Mr. Cage) from the valve actually in use at the facility. After in chambers argument, the government's objection was sustained.
Cross continued with Mr. Boren attempting to poke holes in Mr. Cage's testimony. Cross got very contentious and Mr. Cage argued with Mr. Boren on most points. (In fact, it appeared that Mr. Boren was extremely frustrated in the cross examination of Mr. Cage). At one point in the cross, Mr. Boren asked Mr. Cage if he had told the CCS investigator that John King, ARKLA's outside counsel and later CCS's in-house lawyer, knew about the illegal discharges. Mr. Cage said he did not remember if he ever did or not, saying he never met John King.
Mr. Cage testified that he traced every line at the facility and knew where every line went. He testified that he learned of the permit limitations in the spring of 2007 by overhearing conversations between Jeri Dixon, Wayne Mallet and Cody Tuma. He further testified that employees though it was funny that the company was investing in "$500,000.00 paper weights" when referring to new equipment being purchased.
Redirect was uneventful and confirmed that John Tuma was in charge even after new plant general managers were hired.
After the jury was excused, the government informed the Court that it had three more witnesses and anticipated closing its case tomorrow afternoon. The defense informed the Court that John Tuma would be its first witness.
More later.
As always, please feel free to conatct me at walter.james@jamespllc.com
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