application of forensic chemistry to environmental and toxic tort litigation

Application of Forensic Chemistry to Environmental and

Toxic Tort Litigation ACS National Conference Boston

August 23, 2007

Leonard S. Kurfirst

W I L D M A N H A R R O L D | A T T O R N E Y S A N D C O U N S E L O R S

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Privileged: Attorney-Client Communication and Work Product.

DISCLAIMER

» Purpose today – To provide an overview of how forensic chemistry applies to environmental and toxic tort litigation, not to provide legal advice to any person or corporation.

» For questions you may have regarding facts or scenarios applicable to you or your company, you will want to consult with a qualified attorney or consultant.

» General observations or recommendations contained within this outline do not necessarily apply to all litigation scenarios.



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Types of Litigation Requiring Forensic Chemistry

» Toxic Tort Litigation

» Personal Injury

» Property Damage

» Nuisance

» Environmental Litigation

» RCRA remediation

» State Clean Up



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Examples of Industries Affected

» Petro-Chemical

» Energy/Power

» Waste Disposal

» Transportation

» Manufacturing

» Mining

» Steel

» Agriculture/Pesticides



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Elements of Toxic Tort Litigation

» Unreasonable or negligent emissions

» Generating exposures

» Resulting in a dose

» Causing personal injury, illness or property damage.



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Environmental Litigation

» Emissions

» Presently exceeding permitted rates or

» Having resulted in past contamination of soil, air or water

» At levels exceeding regulatory standards.

» Emissions need not be “negligent” or unreasonable.



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Role of Chemical Forensics in Litigation

» Identify Chemicals of Concern

» Determine Levels of Exposures

» Identify Sources

» Define Background Levels

» Can be crucial information in cases seeking millions of dollars in compensation and remediation costs.



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Litigation Strategies

» Demonstrate that community exposures to air, water, soil and/or dust samples significantly exceed regulatory standards, thereby increasing risk of injury or disease.

» Look to medical/scientific literature which shows that similar exposures generate the same types of injuries/illnesses with a relative risk greater than 2.

» Show that community exposures exceed expected background levels.

» Conduct bio-monitoring and prove that chemical concentrations are at levels deemed to be potentially hazardous.



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Traditional Exposure Pathways Analyzed

Soil (ingestion and dermal)

» Dust (ingestion primarily)

» Air (inhalation)

» Water (ingestion)



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The Need for Consistency

The failure to follow rigid standards introduces variability that complicates cross-study data analysis and interpretation.

Efforts to establish consistency must continue to improve.

The consequences of generating data that cannot be duplicated or compared to recognized standards can be very costly.

Examples of variables in data standards and collection techiniques follow.



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Standards Used for Comparison

» Screening Values

» State DEQs, EPA, ATSDR

» Preliminary Remediation Goals (Tier 1) for air, water and soil exposures

» Different assumptions regarding bio-availability, cancer slope factors, acceptable risk ranges

Medical Literature

Epidemiology Studies

Different Protocols

Bio-monitoring

Blood, Urine, Hair



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Dust/Soil Sampling Sites

Attic Dust

Living Quarters Dust

Floors/Carpeting

Furnace, A/C Filters

Window Sills, Shelving, Under Furniture

Soil

Single tests

Composites

Varying depths

Sediment



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Different Soil and Dust Sampling Techniques

» Concentration v. Loading

» EPA prefers loading for risk assessment

» Wipe sampling

» Wet and dry wipes

Vacuuming

» HVS3

Soil Sampling

Depth Variability

Composite v. individual tests



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Types of Water Contamination

» Ground Water

» Private Wells

» Municipal Wells

» Surface Water

» Storm Water

» Flooding

Clean Water Act and Permitting



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Analysis of Air Contamination

» Present Exposures

» Ambient Air Sampling

» Indoor

» Outdoor

» Past Exposures

» Air Modeling

» Attic Dust/Historical Concentrations

Clean Air Act and Permitting



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Data QA/QC

» Collection Contamination Concerns

» Chain of Custody

» Lab Calibration

» Consistency in testing methodologies

» GCMS



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Alternative Sources of Contamination

» With respect to PAHs, dioxins, arsenic, lead and other heavy metals, sampling will almost certainly generate evidence of contamination because these chemicals are ubiqutous.

» Other common sources to consider are traffic exhaust, barrel burning, tobacco smoke, and background levels in the earth’s crust.

» Difficulties may exist in trying to identify a suitable control sample.



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Chemical Fingerprinting



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Challenges to Forensic Evidence in Litigation

» Conflicting Expert Reports

» Depositions

» Daubert Hearings

» Trial Cross Examination



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What Litigators Look For In a Chemical Consultant



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Conclusion



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Further Information

Leonard S. Kurfirst

Wildman, Harrold, Allen & Dixon LLP

225 W. Wacker Dr., Suite 2800

Chicago, IL 60606-1229

(312) 201-2707

[email protected]

application of forensic chemistry to environmental and toxic tort litigation

Documents

levels of exposures

types of litigation

litigation scenarios

litigation strategies

air inhalation water

different soil

soil ingestion

past contamination of