Forensics and Environmental Protection

• Nov 01, 2001

At some point during the career of environmental professionals, it is highly probable that they will become involved or entrapped, depending upon their point of view, in disputes centered on environmental issues. Simply stated, those professionals who participate under the broad umbrella of environmental protection (i.e., those activities that encompass environmental oversight, compliance, management, engineering, investigation and remediation) will most likely be drawn into the stressful realm of litigation. As a consequence, environmental professionals should to be prepared to participate in the environmental forensic process -- forensics is the art of debate within a legal forum. Forewarned is forearmed.

Environmental disputes can arise from a myriad of circumstances that result in the pollution of air, soil and/or water resources. These circumstances can range from discharge permit noncompliance, the failure of pollution control equipment or leakage from chemical storage facilities, the extraction and use of mineral and energy resources and from historical chemical/waste handling and management practices. Regardless of the reasons for an environmental dispute, the number of environmental professionals who potentially could be required to provide legal testimony (i.e., as either a witness to factual issues or as an expert) can range from a handful to hundreds. For example, the following simple dispute, where two prior owners of a property must allocate the cost of soil and groundwater pollution, is illustrated to show how environmental professionals become enmeshed in the resolution process.

For this example, the following has been assumed: (1) the operations at the property remained the same during its entire history; (2) there were only two prior owners with no leased operators or tenants; (3) each owner had only one insurance policy; (4) throughout the history of the site investigation and remediation there were only two geotechnical consulting companies utilized; and (5) the regulatory oversight was conducted by only one agency.

In many cases, however, there are more than two owners, multiple site operations and sites, adjacent properties that are sources of either air or groundwater pollution, multiple insurance carriers, multiple regulatory agencies and, on occasion, third-party lawsuits for health related damages. The varying combination of each set of circumstances can involve so many environmental professionals that, if one party chose to change consultants, it might be impossible to find a replacement due to conflicts of interest between parties. For most environmental professionals involved in environmental protection, it is only a matter of time before they are caught up in the environmental forensic process.

Given the significant costs usually associated with cleaning up pollution, it is no wonder that litigation between potentially responsible parties is so commonly the vehicle for allocating liability. The typical forms of environmental litigation center on either allocation of damages or resolution of insurance coverage. However, there are situations where minimizing cost becomes the litigation objective. Therefore, the three most typical forms of litigation are:

• Allocation of Damages (Cost) -- Once a final remedial action plan (RAP) has been adopted for a site, the parties may dispute their percent allocation of the remedial costs. In these cases, it is the objective of environmental professionals to provide factual data and testimony to support a minimum percentage allocation for their party.
• Insurance-Related Litigation -- Insurance litigation usually involves either environmental impairment liability (EIL) or comprehensive general liability (CGL) insurance coverage issues. In these cases, environmental professionals provide factual data and testimony to support either the position of the insured or insurers.

Regardless of the reason for an environmental dispute, the number of environmental professionals who potentially could be required to provide legal testimony (i.e., as either a witness to factual issues or as an expert) can range from a handful to hundreds.

• Minimizing the Cost -- In private party disputes, and prior to the point where a regulatory agency establishes a final remedial action plan, one party in the dispute may demand remedial costs that appear to be unjustifiably high. Thus, it is the objective of environmental professionals to provide factual data and testimony to support a more realistic and, hopefully, reduced cleanup cost -- which clearly benefits both parties in the litigation.

Environmental professionals require detailed and comprehensive pollution specific information in order to be able to provide factual data and testimony. Because pollution is usually the result of past practices, detailed historical site and operations information must be assembled and evaluated. In addition, critical technical information often is missing or "unavailable" (e.g., chemical analyses, geologic/soil boring logs, process and unit operations, etc). This dilemma dictates the need for both fact witnesses and forensic scientists/engineers to provide information, insights and opinions to explain complex environmental issues and facts. In order to fill in pollution data gaps, environmental professionals may employ tools such as aerial photography, mineralogy, process mineralogy, chemical finger printing, age dating, focused (additional) analytical studies and water/chemical transport modeling. Another critical element is the expert's detailed understanding of industry practice and industry knowledge so as to be better able to address areas when fact witnesses and factual documents are no longer available.

Once each party has assembled and analyzed the historical and technical information, the most difficult process remains: that of convincing the neutral party(s) (a mediator, a judge or jury) that the pollution and thus, the degree of responsibility of each party is equitable, or at least more believable. Because each party presents its own version of what it believes to be the truth, it is through the forensic process that the most accurate factual truth is determined. As an environmental professional participating in establishing the truth, the path towards providing testimony as either a fact or expert witness is essentially the same.

Because there are differing technical facts and opinions in environmental litigation, the path to explaining, defending and resolving case issues often takes a tortuous path. The legal path undertaken by an environmental professional to define the truth is an iterative (repetitious) process whereby scientific and engineering information is collected, analyzed and reanalyzed in order to uncover facts that support opinions which truthfully describe the situation being evaluated.

The process of developing testimony involves most of the following general steps:

• Defining case objectives and collection of documents to support testimony;
• Developing the testimony (i.e., developing facts and formation of opinions);
• Defending the testimony (i.e., the deposition);
• Participation in settlement meetings;
• Developing graphics for settlement meetings and/or trial; and
• Providing trial testimony.

Most individuals understand that this process is adversarial and that there can be varying levels of stress associated with providing testimony. Stress can be reduced, however, if one is properly prepared. In order to help environmental professionals provide credible testimony, we offer some practical suggestions that will, hopefully, improve performance (i.e., reduce mistakes) and lessen the degree of stress associated with the forensic process.

Defining Case Objectives -- Once called to provide testimony, the typical practice is to have a meeting with the client to discuss case objectives. In addition to case objectives, the meeting is also a forum for review of an initial set of documents, and asking the testifying professional what additional documents are required. A review of the initial documents almost always results in a request for more documents, if available, in order to further assess the technical issues. Because any notes taken at meetings are discoverable by opposing parties, notes -- if taken at all -- should contain only factual information.

Developing Testimony -- Based on the available data, further meetings or discussions should be held in order to establish if the facts are sufficient to support the client's objectives. It should be understood at this point that the available fact pattern may not support the client's legal objectives. If the technical facts and testimony appear unsupportive, the client should be so informed. Beyond this point, the next phase of the work deals with further collection and review of relevant information available from the litigants or from public sources.

In addition to these documents, information also may be obtained by site visits and/or by conducting site-specific sampling and analyses to answer technical issues not addressed by the remedial studies. In fact, remedial investigations rarely address the technical issues that are required to support litigation objectives. Interestingly and often overlooked is information obtained from opposing expert and fact witness deposition testimony.

Armed with the available documents, the individual providing the testimony may (1) form general opinions that are verbally communicated to the client, (2) write detailed opinions, if asked, (3) write a report that provides opinions and the basis of each opinion, and (4) prepare an affidavit. Because developing testimony is an iterative process, testimony may change as more information is reviewed and evaluated. As a result, the production of sequential drafts is not a good practice.

Defending Testimony -- Once testimony has been developed, it is reasonable to assume that a deposition will follow. Providing deposition testimony is acknowledged to be one of the most difficult aspect of forensics, even for the experienced professional. For example, the following exchange occurred at the beginning of an expert's deposition:

MR. O'CONNEL: Q. If there's ever a point in time where you don't understand a question, please let me know. If there's ever a time you want to break -- particularly today, I understand that you had some recent dental problems.

THE WITNESS: A. I've always said I'd rather have a root canal than give a deposition. Somehow I've managed to put them both together.

This observation is shared by many environmental professionals who associate a deposition more closely with an inquisition. Unfortunately, this is the price that is paid in order to participate in a legal debate. Obviously, if the testimony is well supported, the deposition process will be fundamentally easier than when offering poorly supported testimony. In either case, a deposition can be less stressful by completing the following steps prior to one's deposition:

• Review your resume and work experience;
• Determine if the deposition will be video taped (Remember that excerpts from a video deposition can, and often are shown in court. Facial expressions often reveal the strength and weakness of an answer.);
• Review all of your prior relevant testimony that may be related to the testimony which will be the subject of the deposition;
• Review all publications (or site documents) that you have written that may be related to the testimony;
• Review the opposing expert or fact witness testimony, supporting documents, and case-specific deposition testimony, if applicable;
• Prepare a binder (s) of relevant documents that support your testimony that may be readily referred to during the deposition (keep in mind that a deposition is not a memory test);
• Based on this review, determine the specific areas where your testimony differs with the opposing parties and understand the bases of these difference; and
• Understand the litigation objectives of all parties.

It is not possible to anticipate every question that will be asked by opposing counsel. However, the number of unanticipated questions and thus the level of stress can be minimized with proper preparation.

Meetings and Graphics -- The key to successful mediation (revolving around technical issues) is in the presentation. The stronger the technical presentation (i.e., good graphics supported by clear and easy to understand facts and issues) the more directly will the mediator "buy into the logic.

In the final analysis, most settlement conferences and meditations boil down to negotiating dollars. Technical issues usually represent a factual foundation, posturing and window dressing (unless there really was only one side to the technical issues). Even though the majority of environmental cases settle, it is important to anticipate and therefore prepare for trial testimony early. Failure to do so can lead to disaster if suddenly confronted with unexpected demands, schedules changes (which almost always occur) and settlement impasse.

Providing Trial Testimony -- Credible trial testimony is highly correlated to preparation. One of the saddest sights is to see a witness (unless, of course, it's an opposing witness) confused over the content of an exhibit or confused regarding some of the more simple facts. Here are a few simple guidelines:

• Honesty is the best policy;
• Provide clear responsive answers;
• Appreciate your weaknesses; and
• Prepare, prepare, prepare.

The presentation of convincing testimony is the ultimate goal of any witness. This can be accomplished by understanding the environmental forensic process. The purpose of this article is to give a very brief introduction to participating in the process. For those seeking more detailed information, please refer to the author's text entitled A Practical Environmental Forensics, Process and Case Histories, published by John Wiley & Sons.

This article appeared in the November 2001 issue of Environmental Protection, Vol. 12, No. 11, on page 48.

This article originally appeared in the 11/01/2001 issue of Environmental Protection.