Environmental Forensics: Strategy, Tools and Case Studies

Environmental forensic tools are being used more frequently in many environmental law cases such as toxic tort, cost recovery, insurance coverage, and liability apportionment. This presentation provides a description of the strategy and tools used in a variety of environmental law cases.

1. Should you use forensics in environmental litigation?
   1. Would it advance understanding?
   2. Would results be damaging to case?
   3. Would it be cost-effective?
2. Strategy
   1. Organize technical team
   2. Evaluate existing data in context of case goals
   3. Select tools ? know limitations
   4. Use multiple independent lines of evidence
   5. Corroborate results
   6. Use opposing experts' opinions wherever possible
3. The Tools
   1. Historical reconstruction
   2. Critical data review
   3. Failure analysis
   4. Transport modeling
   5. Chemical fingerprinting
   6. Communication
4. Historical Reconstruction
   1. Agency files
   2. Fire Insurance (Sanborn) maps
   3. Local historical societies
   4. Chemicals and formulations unique to process
   5. Commercial availability of compounds
5. Historical reconstruction
   1. Aerial Photography
      1. Register (geo-reference) historical photos to base image
      2. Allows forensic examination of key areas
      3. Use GIS to evaluate chemical/spatial relationships
      4. Preparation of trial exhibits
      5. Photo/GIS overlay
6. Critical data review
   1. Sampling methods
   2. Analytical errors or uncertainty
   3. Data analysis
   4. Accuracy
   5. Selective data presentation
   6. Use of statistics
   7. Use of models
   8. Data interpretation
7. Failure Analysis
   1. Cause, timing and/or rate of release from containment structure
   2. In situ examination
   3. Simulation testing
   4. Modeling
8. Transport Modeling
   1. Simplify reality to predict outcomes
   2. Used to confirm or challenge allegations of timing of release and/or contaminant source(s)
   3. If possible, let other side go first
   4. First, use simple models with conservative assumptions
   5. Reliability is dependent on representativeness of input parameters
   6. Consider range of input parameters
9. Chemical Fingerprinting
   1. Mineral speciation
   2. Isotopic ratios
   3. Comparing profiles and patterns
   4. Sedimentation analysis
10. Communication
    1. Trial exhibits must be:
       1. Clear, accurate and simple
       2. Factually and scientifically correct
    2. Exhibits can be biased and misleading:
       1. Exaggerated vertical or horizontal scale
       2. Selective data presentation
       3. Data contouring
       4. Transport models based on biased data
    3. Avoid technical overload
11. Case Studies
    1. Aerial deposition fingerprinting
    2. Contaminated sediment examples
    3. Failure analysis and environmental releases
12. Aerial deposition fingerprinting
    1. Whose dioxin is it?
    2. Where did the lead come from?
13. Contaminated sediment examples
    1. Background
       1. Testing Tools
       2. Sediment Chemicals
       3. Important Terminology and Concepts
    2. PCBs in a Kentucky river
    3. Spatial and Temporal Analysis Using GIS
    4. Mercury in Surface Sediments (1972 and 1992)
    5. Vertical Distribution of Mercury
    6. Arsenic Profiles
14. Failure analysis and environmental releases
    1. What was the contamination from tape burning?
    2. Potential causes of sudden releases
    3. Timing of a recent release
    4. Metallurgical tools in failure analysis