Thursday, August 15, 2013

If a picture is worth a thousand words, what is a site visit worth?

Matson & Associates (M&A) routinely works on cases for both plaintiffs and defendants in which contaminated sites are the subject of a lawsuit. We spend most of our efforts reviewing materials produced during discovery (e.g. company documents, consulting reports, lab analyses, maps and drawings, depositions), aerial photos and satellite imagery, as well as articles published in peer-reviewed journals.  Most of the information we need to form and support expert opinions is contained in these materials. Despite the large amount of materials available to review, it doesn’t always give us a full picture of the site.

Get Out of the Office

Over the years, we have found that while the information gathered during a site visit may or may not be explicitly used to form or support expert opinions, conducting one can be valuable for a number of reasons, including:
  • Documents, maps, and photographs taken by others may not accurately describe the site conditions;
  • Observing operations at a facility will provide perspective on current conditions and may provide insight on historical operations;
  • In deposition, the attorney may ask specific questions about a site that is the subject of expert opinions; and
  • In a trial setting the jury may be interested in impressions of the site and having firsthand knowledge helps with credibility.
In some cases, a site visit provides key information relevant to our expert opinions and may even be a significant part of our methodology.  The following case study describes how we (M&A) relied on observations from our site visit in our evaluation of the potential for PCBs to migrate off-site.

M&A in the Field

M&A was retained on behalf of a defendant to evaluate whether the presence of PCBs at an abandoned site presented an imminent and substantial endangerment to human health or the environment as defined by EPA under RCRA 7002. In order for an imminent and substantial endangerment situation to exist, there needs to be a contaminant present, a pathway for exposure to the contaminant and a receptor with potential exposure to the contaminant.  After reviewing discovery materials, the regulatory file, literature, aerial photos and case law on RCRA 7002 lawsuits we determined that a site visit was necessary to better assess potential pathways for the transport off-site of PCBs detected in the soils.

Our site visit generally followed the methodology outlined in the site reconnaissance section of ASTM E1527 - 05 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. We observed, analyzed and documented the topography, the vegetative cover, and other features associated with transport pathways. A point cover count indicated the site was heavily vegetated minimizing the potential for soil erosion, the concrete pads and gravel areas were free of oil staining, eliminating the potential for storm water contamination, and the site was in a topographic low with no engineered outlets for storm water drainage, reducing the potential for storm water runoff from the site.

The Site Visit Was Priceless

Using the information gathered from the site visit plus our knowledge of the physical and chemical properties of PCBs, we followed a generally-accepted methodology to evaluate several scenarios for off-site transport of and exposure to PCBs. M&A submitted an expert report opining that the PCBs at the site did not present an imminent and substantial endangerment to human health or the environment. The subtleties of the site conditions, significant to the expert opinions, could only have been determined from firsthand observations.

Submitted by Wendy N. Pearson (President) and Eric Chase, P.G.


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