Litigating a CERCLA Allocation Case – Pre-Trial Strategies and Trial Techniques

Wednesday May 13, 2015

Trial Techniques Session –
Tim Dekker, Ph.D., P.E.
Vice-President
LimnoTech
Water Environment | Scientists Engineers
501 Avis Drive
Ann Arbor, MI 48108

Office: (734) 332-1200

  1. Allocation Themes, Approaches and Topics
  2. Cost Causation and Technical Allocation Factors
  3. Modifying and Equitable Factors
  4. The Role of Cities and CWA in Superfund Allocations
  5. De Minimis Parties
  6. Orphan Contamination and Shares
  7. Background Contamination
  8. Role of Models – Uses and Limitations
  9. Role of other technical tools as lines of evidence
  1. Contaminated Sediment Site Allocation Examples - CERCLA
  2. Portland Harbor
  3. Based on contaminant release
  4. City is a major PRP
  5. Fox
  6. Transport is major issue
  7. Arranger share & equitable factors
  8. Kalamazoo
  9. All major shares are orphan except Georgia Pacific
  10. Party not local that may have liability as arranger
  11. Lower Duwamish
  12. CSOs and stormwater are significant sources
  13. New Bedford Harbor
  14. Allocation based on cost by subarea
  15. Underfunded, EPA and ACOE performing much of the work
  16. Commencement Bay (Hylebos and Thea Foss)
  17. Settlements/allocations based on location, quantity, and type of release
  18. Technical support commonly involved in allocations
  19. Historical Due Diligence on PRPs/Industrial Processes
  20. Allocations calculations
  21. Technical Experts
  22. Environmental Forensics
  23. Industrial Processes
  24. Risk Assessment
  25. Modeling
  26. Allocation Themes, Approaches and Topics
  27. Areas where expert support may be required:
  28. Establishing arranger shares: anyone who arranged for disposal or treatment, or arranged for transport with the intent of disposal or treatment of hazardous substance.
  29. Establishing, allocating orphan contamination / share: portion of haz. waste that is attributable to parties that are absent or not financially viable. EPA sometimes contributes.
  30. Establishing Nexus / Nexus Weight: degree to which contaminant release can be tied to an affected site
  31. “but for” analysis (related to COC contribution to RD/RA): demonstration of causation, as in “but for the release, the adverse impact would not have occurred.”
  32. Determining “Cost Causation” and Technical Allocation Factors
  33. “Cost causation”
  34. Definition: an assessment of how each party’s wastes affected the total cost of cleanup
  35. “The design of an allocation method based upon cost causation principles necessarily requires an examination of three questions”:

(1)What are the known or estimated allowable response costs?

(2)What conditions require, influence, or motivate those costs? and,

(3)To what extent, if any, did a party’s actions or involvement at a site create or contribute to those conditions?

  1. Stand-Alone Cost Method:

fi = SACi/ΣSAC

(1)Could be used to support equal shares, if any party alone could have required the whole clean-up

(2)Where remedial cost is roughly proportional to loads, supports allocation based on loads

(3)Could support weighting according to unit cost of clean-up by subarea

  1. Stand-Alone Risk Method:

fi = SARi/ΣSAR

(1)Gives weight to exposure and toxicity

  1. Common Technical Allocation Factors
  2. Quantifying Releases
  3. Magnitude x Duration x Nexus Weight
  4. Release Contaminant Properties
  5. Toxicity, Bioaccumulation, etc.
  6. What drives remedies?
  7. Fate and Transport of Party Releases
  8. Proximity, likelihood of release being present in Area of Potential Concern/Sediment Management Area (AOPC/SMA), spatial extents
  9. How is this translated into nexus weight?
  10. Modifying/Equitable and Other Factors
  11. ‘Gore Factors’
  12. Ability to distinguish releases by various parties;
  13. Degree of involvement in causing the contamination;
  14. Waste management practices/degree of care exercised by the party (current/historical);
  15. Degree of cooperation with regulating agencies;
  16. Relative benefits realized from site use or remediation;
  17. Contractual obligations between the parties respecting environmental losses or damages;
  18. Economic status of the parties or their ability to pay; and
  19. Other factors as may be identified in state law.
  20. Other Factors
  21. Role of Cities: Superfund / CWA overlap
  22. Combined Sewer Overflows
  23. MS4 and Municipal Stormwater
  24. ‘Arranger Share’
  25. Implications for Indirect Releases
  26. Large to De Minimis Party Shares
  27. Common De Minimis Party Approaches
  28. Typically based solely on mass loading
  29. Premium for early settlements
  30. Timing of group
  31. Role of Models – Uses
  32. Spreadsheet Models
  33. Define allocations based on factors (mass loading, physical factors, model output)
  34. Example: Lower Fox
  35. Hydrodynamic Models
  36. Estimate bottom shear stress (typical, extreme event conditions)
  37. Extent of horizontal transport
  38. Particle Tracking Models
  39. Release from source area(s)
  40. Extent of horizontal transport & initial deposition patterns
  41. Examples: Lower Fox (OU4), Berrys Creek
  42. Role of Models – Uses
  43. Sediment Transport Models
  44. Explicit representation of resuspension, deposition, horizontal transport processes
  45. Use of “components analysis” to understand fate of specific source material (external loading, sediment deposits) - e.g., Lower Duwamish
  46. Contaminant Transport Models
  47. Represent key contaminant transport pathways (resuspension, deposition, sediment-water dissolved exchange, etc.)
  48. Possible basis for “attenuation factors”
  49. Hindcasting applications (e.g., Fox River)
  50. Role of Models – Limitations
  51. Potential misapplication of RI/FS models for allocation purposes
  52. Often problematic due to mismatch in spatial scales
  53. Uncertainties are often significant:
  54. History of contaminant source loading (magnitude, timing)
  55. Limited historical water column / sediment data (e.g., pre-1980s)
  56. Potential significance of sediment-water diffusive exchange (often not represented by sediment transport or PTM models)
  57. Limited ability to represent / calibrate to extreme event conditions
  58. Allocation approaches may be anti-technical or anti- modeling
  59. Other Data/Spatial Viewing Tools
  60. Other Lines of Evidence
  61. Geostatistical methods for site characterization and source attribution
  62. Where is it, how much is there, and where did it come from?
  63. Geochronological methods for age-dating sediments and stability evaluations
  64. How old is it, and how far has it traveled?
  65. Contaminant fingerprinting and statistical unmixing
  66. Who is responsible for what?
  67. Post-interpretation of site characterization data
  68. How to reinterpret data to answer new questions about the site?
  69. Historical data review and model hindcasting
  70. What happened in the past, what are the implications for future site behavior?