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Expert Testimony

Numerous cases where EcoShelf has provided expert testimony are included here. To learn how to optimize efficiency and productivity of expert engagements, read our feature on Working with Scientific and Technical Experts.
 
Consistency with national Continengcy Plan (NCP) in hazardous site cleanups by private and governmental parties. EcoShelf was retained by a corporate PRP to assist in the defense of an action for cost recovery brought by a municipality that conducted, and the state regulatory agency that was responsible for oversight, of a state-mandated closure of the mixed industrial and municipal solid waste landfill owned by the municipality. The municipality sought 50% contribution from the client. We reviewed the RI/FS and decision documents for the remedy selected by the municipal owner, and approved by the state oversight agency, and discovered several instances that indicated that the municipality failed to comply with the NCP, and the state oversight agency overlooked the municipality's inconsistencies. A key issue we noted was that the risk assessment required to be conducted as part of the decisional process by the NCP showed that the landfill posed no unacceptable risk to humans, and only a very limited area of very limited risk to only one of the five indicator animal species selected for study, under applicable USEPA and state regulations and guidance documents. Accordingly, consistency with the NCP would have required remediation of only the limited contamination, a remedy that incurred only about 0.5% of the total costs allegedly spent by the municipality in closing the landfill. The case was settled with our client responsible for only a fraction of the municipality's initial demand.
 
Allocation of Liability for cleanup of hazardous waste sites. We evaluated the waste-in data, prepared a detailed allocation, and developed an advocacy position paper on the unfairness of the interim allocation assigned to our client (one of the several dozen PRPs at the site) for Superfund response costs in a complex, abandoned industrial waste landfill. The initial interim allocation had assigned 13% responsibility to the client for an extremely expensive response action (estimated in excess of $100 million). The site had been used for disposal of drummed manufacturing wastes, and of wastes transported to the site by container truck by a number of significant industrial enterprises located in this regional manufacturing hub in mid-western US. We conducted a detailed and de novo review of the data and analysis performed by the allocation consultant engaged by the PRP group, including data either rejected by or not considered by the allocation consultant, and developed an updated allocation that was successfully used to reduce our client's interim liability to no more than 1%.
 
Malpractice by consultants, engineers, and attorneys. We were retained to review and render an expert opinion on the legal and regulatory adequacy of the work conducted by an environmental engineering contractor during attempted remediation and removal of underground storage tanks at a former truck stop slated for Brownfields development by the subsequent innocent purchaser. The actions of the retained contractor had resulted in damage to an existing and usable building. Our review elicited the conclusion that the contractor failed to comply with accepted technical and regulatory requirements for site remediation, including the requirements of the state environmental authority, the USEPA, and OSHA, among others, and that if it had, the damage suffered by the property owner would not have occurred.
 

Environmental Forensics and Manufacturing Chemistry.

  1. We were retained to assist in the defense of a manufacturer of steel wire hangers in an enforcement action alleging failure to file SARA Title III reports for the aggregate amount of nickel present in the steel used to manufacture the wire hangers on an annual basis. The government had apparently relied on the composition of the steel disclosed in the MSDS for the steel used to assert that the reporting threshold had been exceeded. We utilized our understanding of the steel making process to determine that the government had used the MSDS for an inappropriate grade of steel in its calculations. We conducted a detailed calculation based on the actual lot analyses for steel purchased by the client to show that the aggregate nickel content of the annual usage of steel by the client was well below the reporting threshold, leading to a dismissal of the action and avoidance of significant penalties for the client.
     
  2. We were retained by the property owner in a matter involving groundwater contamination with TCE at the site of a former metal working operation. The manufacturer, the seller of the property, had used TCE as a degreasing solvent for several decades. The groundwater, however, also showed the presence of PERC, a solvent allegedly not used by the manufacturer, in quantities significant in proportion to the TCE. Predictably, the seller, in an effort to limit its liability for the entire costs of remediation of the groundwater contamination, argued that there must be another responsible party and contamination source for the PERC who should contribute some part of the cleanup costs. We reviewed the method of manufacture of TCE and rendered an opinion that the chemistry of the manufacturing process during the relevant time period of the operation of the facility by the seller would also produce PERC as a co-product in meaningful enough quantities to be relevant in the matter.

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