89    THE SCENE OF THE ACCIDENT: FORENSIC ENGINEERING
IN HAZARDOUS WASTE LITIGATION
Paul P. Stewart, Attorney
Rivkin, Radler, Dunne, & Bayh
Uniondale, New York 11556
INTRODUCTION
The institution of hazardous waste law suits has escalated over the last few years as a result of recent
legislative enactments. This has produced an acute demand for qualified scientific and engineering
specialists capable of working alongside attorneys in the defense of claims for environmental contamination brought on by governmental authorities and private parties. In the context at this presentation.
Forensic Engineering is a general term applied to the technical specialist who undertakes to investigate
an alleged release of chemical substances into the environment and identify the causes and damages
associated with that release. It also refers to the participation of such a specialist as an expert witness
in a hazardous waste Lawsuit.
This presentation is intended to provide the industrial waste engineering community with insight
into the different areas that a technical specialist can contribute towards the successful disposition of
a law suit involving allegations of environmental contamination. I have attempted to take the specialist through the litigation process by identifying the legal issues and defenses most commonly encountered and describe how specialists have participated in that process from initial assessment of the
claim to trial.
INDUSTRY PERSPECTIVE
Government regulatory activity has substantially increased over the last several years, resulting in
significant rise in litigation against owners and operators of industrial waste generating facilities. A
principal cause for this activity is viewed as an interest in the control of groundwater pollution. The
U.S. Environmental Protection Agency (EPA) has identified ponds, lagoons and impoundments
where wastes have been disposed of, and leaking underground storage tanks, as two major sources of
groundwater pollution.1 Because groundwater is such a substantial source of drinking water supply,
its protection is particularly critical.
Recent amendments to the Resource Conservation and Recovery Act (RCRA) have sanctioned
private law suits to enforce violations of this statute where there is inaction on the part of government.1 Additionally, the Superfund Amendment and Reauthorization Act (SARA) explicitly provides
for law suits by persons named as potentially responsible parties (PRPs) seeking contribution for
statutory liabilities against those who have contributed to the alleged violations but chose not to
cooperate with Federal or State regulatory authorities.2 These provisions clearly highlight the need for
cooperation among PRPs at the earliest possible time to avoid incurring substantial legal expenses in
litigation.
The need for early participation of scientific and engineering experts in the regulatory process is
also apparent from a reading of these amendments. Most notable is a party's inability to challenge an
EPA decision through judicial review until after substantial sums of money have been expended.
Furthermore, the acceptance of health assessments as indications of hazards under numerous regulatory statutes is likely to trigger not only more expensive cleanups, but also toxic tort suits by area
residents. These are but a few factors providing additional incentives for PRPs to focus their use of
expert opinions, data submissions and advocacy as early as possible in the process.2
43rd Purdue Industrial Waste Conference Proceedings, © 1989 Lewis Publishers, Inc., Chelsea, Michigan 48118.
Printed in U.S.A.
791