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
tdekker@limno.com
Office: (734) 332-1200
1. Allocation Themes, Approaches and Topics
a. Cost Causation and Technical Allocation Factors
b. Modifying and Equitable Factors
c. The Role of Cities and CWA in Superfund Allocations
d. De Minimis Parties
e. Orphan Contamination and Shares
f. Background Contamination
g. Role of Models – Uses and Limitations
h. Role of other technical tools as lines of evidence
2. Contaminated Sediment Site Allocation Examples - CERCLA
a. Portland Harbor
i. Based on contaminant release
ii. City is a major PRP
b. Fox
i. Transport is major issue
ii. Arranger share & equitable factors
c. Kalamazoo
i. All major shares are orphan except Georgia Pacific
ii. Party not local that may have liability as arranger
d. Lower Duwamish
i. CSOs and stormwater are significant sources
e. New Bedford Harbor
i. Allocation based on cost by subarea
ii. Underfunded, EPA and ACOE performing much of the work
f. Commencement Bay (Hylebos and Thea Foss)
i. Settlements/allocations based on location, quantity, and type of release
3. Technical support commonly involved in allocations
a. Historical Due Diligence on PRPs/Industrial Processes
b. Allocations calculations
c. Technical Experts
i. Environmental Forensics
ii. Industrial Processes
iii. Risk Assessment
iv. Modeling
4. Allocation Themes, Approaches and Topics
5. Areas where expert support may be required:
a. Establishing arranger shares: anyone who arranged for disposal or treatment, or
arranged for transport with the intent of disposal or treatment of hazardous substance.
b. Establishing, allocating orphan contamination / share: portion of haz. waste that is
attributable to parties that are absent or not financially viable. EPA sometimes
contributes.
c. Establishing Nexus / Nexus Weight: degree to which contaminant release can be tied to
an affected site
d. “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.”
e. Determining “Cost Causation” and Technical Allocation Factors
6. “Cost causation”
a. Definition: an assessment of how each party’s wastes affected the total cost of cleanup
b. “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?
c. 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
d. Stand-Alone Risk Method:
fi = SARi/ΣSAR
(1) Gives weight to exposure and toxicity
7. Common Technical Allocation Factors
a. Quantifying Releases
i. Magnitude x Duration x Nexus Weight
b. Release Contaminant Properties
8.
9.
10.
11.
i. Toxicity, Bioaccumulation, etc.
ii. What drives remedies?
c. Fate and Transport of Party Releases
i. Proximity, likelihood of release being present in Area of Potential
Concern/Sediment Management Area (AOPC/SMA), spatial extents
ii. How is this translated into nexus weight?
Modifying/Equitable and Other Factors
a. ‘Gore Factors’
i. Ability to distinguish releases by various parties;
ii. Degree of involvement in causing the contamination;
iii. Waste management practices/degree of care exercised by the party
(current/historical);
iv. Degree of cooperation with regulating agencies;
v. Relative benefits realized from site use or remediation;
vi. Contractual obligations between the parties respecting environmental losses or
damages;
vii. Economic status of the parties or their ability to pay; and
viii. Other factors as may be identified in state law.
ix. Other Factors
Role of Cities: Superfund / CWA overlap
a. Combined Sewer Overflows
b. MS4 and Municipal Stormwater
c. ‘Arranger Share’
d. Implications for Indirect Releases
i. Large to De Minimis Party Shares
Common De Minimis Party Approaches
a. Typically based solely on mass loading
b. Premium for early settlements
c. Timing of group
Role of Models – Uses
a. Spreadsheet Models
i. Define allocations based on factors (mass loading, physical factors, model
output)
ii. Example: Lower Fox
b. Hydrodynamic Models
i. Estimate bottom shear stress (typical, extreme event conditions)
ii. Extent of horizontal transport
c. Particle Tracking Models
i. Release from source area(s)
ii. Extent of horizontal transport & initial deposition patterns
iii. Examples: Lower Fox (OU4), Berrys Creek
iv. Role of Models – Uses
d. Sediment Transport Models
i. Explicit representation of resuspension, deposition, horizontal transport
processes
ii. Use of “components analysis” to understand fate of specific source material
(external loading, sediment deposits) - e.g., Lower Duwamish
e. Contaminant Transport Models
i. Represent key contaminant transport pathways (resuspension, deposition,
sediment-water dissolved exchange, etc.)
ii. Possible basis for “attenuation factors”
iii. Hindcasting applications (e.g., Fox River)
12. Role of Models – Limitations
a. Potential misapplication of RI/FS models for allocation purposes
i. Often problematic due to mismatch in spatial scales
b. Uncertainties are often significant:
i. History of contaminant source loading (magnitude, timing)
ii. Limited historical water column / sediment data (e.g., pre-1980s)
iii. Potential significance of sediment-water diffusive exchange (often not
represented by sediment transport or PTM models)
iv. Limited ability to represent / calibrate to extreme event conditions
c. Allocation approaches may be anti-technical or anti- modeling
i. Other Data/Spatial Viewing Tools
13. Other Lines of Evidence
a. Geostatistical methods for site characterization and source attribution
i. Where is it, how much is there, and where did it come from?
b. Geochronological methods for age-dating sediments and stability evaluations
i. How old is it, and how far has it traveled?
c. Contaminant fingerprinting and statistical unmixing
i. Who is responsible for what?
d. Post-interpretation of site characterization data
i. How to reinterpret data to answer new questions about the site?
e. Historical data review and model hindcasting
i. What happened in the past, what are the implications for future site behavior?