Environmental Forensics

Proceedings of the 2011 INEF Conference

By Robert D. Morrison, Gwen O’Sullivan

The Royal Society of Chemistry

Copyright © 2012 The Royal Society of Chemistry
All rights reserved.
ISBN: 978-1-84973-372-4

Contents

Environmental Forensics and Natural Resource Damages Allan Kanner and Robert Morrison, 1,
Gasoline Differentiation in Water Table Free Product in a Neighbourhood of Mexico City D. Flores-Hernandez, L.L. Diaz-Gutierrez, MA. Amezcua-Alieri, V Shevnin, O. Delgado-Rodriguez, A. Rosas-Molina and S. Marin-Cordova, 12,
A Forensic History of Dry Cleaning Equipment and Solvents Robert Morrison, 22,
The History of Leaded Petrol in North America and Europe Gil Oudijk, 49,
Advanced Site Investigations with 3D-CSIA Approach Reveal Multiple Sources Yi Wang, Jeff L. Newton and Amber Igoe, 64,
Mass Balance Calculations for Retail Petroleum Tanks Brian L. Murphy and Farrukh M. Mohsen, 77,
Resolution of a Comingled LNAPL Plume to Address Concerns of a Potential MTBE Release Jun Lun, 92,
Visualization and Analysis of Environmental Forensic Data Benjamin L. Harris and Justin R. Hone, 103,
Fingerprinting of Gas Contaminating Groundwater and Soil in a Petroliferous Region, Alberta, Canada Barbara Tilley and Karlis Muehlenbachs, 115,
Fingerprinting Crude Oil Spills in Southern California Alan Jeffrey, 126,
New Dimension of Pentacyclie Teriterpanes: Does Combustion Change the Chemical Structures of Compounds? M. Sakari, M. P. Zakaria and M. H. Abdullah, 137,
Forensic Analysis of the Stable Carbon Isotope Fractionation During Abiotic Oxidation of Methyl Tert Butyl Ether Gwen O’Sullivan, Frank Keppler, John T. G. Hamilton and Robert M. Kalin, 151,
Change of Atmospheric Concentrations and Source of Benzo(a)pyrene and 7-Nitrobenzene(a)pyrene in Kanazawa, A Typical Local City in Japan During 1999 and 2000 Ning Tang, Hirotaka Hama, Takayuki Kameda, Akira Toriba and Kazuichi Hayakawa, 163,
Comparison of Atmospheric Concentrations of Polycyclic Aromatic Hydrocarbons and Selected Nitrated Derivatives in Egypt and Japan H.F. Nassar, T. Kameda, A. Toriba, and K. Hayakawa, 171,
Volcanic Ash Deposition Across the UK: Evidence from Environmental Change Network Sites Helen. A. Watson, E.M. Delbos, J.J.C. Dawson and D. Monteith, 181,
Prediction of Turbulent Transport using Variable Effective Diffusivities of VOC Vapor in Indoor Air Victoria Hilborne, 194,
Linking Distribution of Soil PAHs to Location as a Forensic Tool Lorna. A. Dawson, S. M. Rhind, Z. L. Zhang, L. Poggion, C. E. Kyle, B. Mayes, I. Alders, M. Osprey, J. Ross and A. Cuthbert, 199,
Isoscaping Soil Carbonate Across Northern Ireland Neil Ogle, D. J. Creamer and Luc Rock, 206,
Tracing Higher Plant Inputs to Coastal Sediments: An Integrated Isotopic and Molecular Approach for Forensic Investigation Y. Eley, N. Pedentchouk and L. Dawson, 218,
Carbon Disulphide – Contaminant or Biogenic Compound? A New Perspective Marcus W. Trett, R. Moss, B. Calvo and G. Wilkinson, 232,
Assessing Changes to the Congener Profile of PCDD and PCDF During Bioaccumulation in Chicken and Duck Eggs David Megson and Sarah Dack, 244,
Prediction of the Environmental Fate of Methylamphetamine Waste Lisa N. Kates, Caroline Gauchotte-Lindsay, Niamh Nic Daéid, Robert M. Kalin, Charles W. Knapp and Helen E. Keenan, 262,
An Objective Method for Comparing Unresolved Complex Mixtures (UCM) ‘Humps’ in Gas Chromatograms Robert Mayes, 275,
High Resolution Site Characterisation and Integration with Environmental Forensics Curt Stanley, and Ileana Rhodes, 285,
Environmental Forensic Approach in Malaysia: An Analysis of Environmental Legislation Norhazni Mat Sari, Stephen Mudge, Mazlin bin Mokhtar and Zainudin Mohamed Shamsudin, 295,
Source Apportionment of Industrial Fugitive Dusts: Developments in Passive Dust Monitoring Hugh Datson, Mike Fowler and Ben Williams, 319,
Author Index, 332,
Subject Index, 334,

CHAPTER 1

ENVIRONMENT AL FORENSICS AND NATURAL RESOURCE DAMAGES

A. Kanner and R.D. Morrison

1 INTRODUCTION

The overriding public interest in the preservation and reclamation of natural resources is one of the most important factors driving the rapid development of natural resource damages (NRD) programs in the United States. As the nature of the public interest in natural resources has evolved and strengthened, so has environmental legislation. The idea of having polluters pay to restore restorable resources is taking hold on both the state and federal level. Historically, this development marks another step in the evolution of environmental laws, and highlights the interests that drive those changes.

2 FOCUS ON THE ENVIRONMENT

The United States has always had environmental laws of a sort. For example, in State of New Jersey v. Ventron, the New Jersey Supreme Court briefly outlined the longstanding nature of environmental rules in New Jersey following industrialization:

One of the earliest antipollution statutes was “An Act to secure the purity of the public supplies of potable waters in this state,” enacted in 1899. L.1899. c. 41, p. 73. This provision made punishable the discharge, whether directly into state waters, or onto the ice or the banks of any watercourse or tributary thereof, of any sewage, drainage, domestic or factory refuse, excremental or other polluting matter of any kind whatsoever which, either by itself or in connection with other matter was capable of impairing the quality of water that might find its way into the water supply of any municipality. Id.

The New Jersey legislature supplemented this protection in 1937, by enacting a much broader provision, now codified at N.J.S.A 23:5-28:

No person shall allow any dyestuff, coal tar, sawdust, tanbark, lime, refuse from gas houses, or other deleterious or poisonous substance to be turned into or allowed to run into any of the waters of this state in quantities destructive of life or disturbing the habits of the fish inhabiting the same, under penalty of two hundred dollars for each offense. N J.S A 23:5-28, L. 1937, c. 64, § 2,p. 176.

The 1937 act imposed strict liability on anyone who allowed a pollutant to escape into the waters of the state. The same story repeats itself throughout the United States. Public nuisance has been aggressively used as a basis for environmental laws for over a century.

The American bias in early days in favor of exploiting natural resources was always tempered by pragmatism and property rights. These pragmatic concerns included rules about industry not damaging private or municipal drinking water wells. Property rights also provided landowners with trumps against unreasonable neighbors. Legislation that undermined property rights was often challenged as impermissible government takings. These rules, despite their importance, are generally not considered to be environmental laws, as we currently use that term. Instead, the preservationism of President Teddy Roosevelt is viewed by many as the beginning of American environmentalism.

Initially, environmental efforts were prompted by such preservationist ideals — the desire to maintain the “great” natural resources and save such sites from exploitation. For example, in the 1960s, the proposed construction of a dam in the Grand Canyon raised awareness about environmental protectionism — the need to preserve the legacy of a nation’s natural resources. Legislation was directed primarily at the behavior of government agencies, as opposed to private individuals, and broad rights were granted those who satisfied constitutional standing requirements. Congress generally enacted environmental legislation to “ensure that government agencies respected social and cultural values when pursuing development projects,” rather than to address the illegal conduct of polluters and the consequences of their actions. Exceptions of course exist, as can be seen in the development of the Clean Water Act during this time.

3 FOCUS ON RESTORATION

The focus of environmental laws in the 1950s and 1960s was significantly different than the present day focus of environmental legislation. In effect, we have begun to move from a “great places” approach to natural resources to a “reclaiming” or “restoring” approach. While a few “great place” battles still continue, such as the effort to preserve the Arctic Wilderness, today environmental activism and legislation is inspired by the need to restore and prevent further exploitation of injured and diminishing natural resources such as the nation’s coastal areas. Environmentalism is motivated less by the need for preservation and more by the desire for reclamation. People now understand two things about natural resources. First, natural resources can be salvaged, even in seemingly impossible industrial and urban locales. The technology and the capacity to reclaim and recreate natural resources have improved exponentially and will continue to improve.

The Meadowlands in New Jersey is a classic example of this type of transformation potential. At one time the world’s largest dump,

“the Hackensack Meadowlands is perhaps the largest urban wetland complex in the northeastern United States. It lies along the Hackensack River and is located within the New York-Newark metropolitan area. Given this location, the Meadowlands has been greatly impacted by urban and port development. … The New Jersey Meadowlands Commission (“NJMC”) is acquiring wetlands and management rights and making zoning changes … in an effort to protect the remaining wetlands. Plans are underway to restore the Hackensack Meadowlands ecosystem. … Wetland restoration and enhancement efforts include restoring tidal flow, removing contaminated soils, creating open water areas, controlling invasive species … and regulating water levels. … The main hope for the future of Meadowlands wetlands as well as for other urban wetlands is that as many as possible will be set aside as open space for our benefit and for future generations and that wetland restoration efforts will be accelerated to revitalize significantly impacted wetlands and to rebuild lost wetlands wherever practicable. Wetlands are natural resources that, among other things, increase the quality of life for urban residents across America.”

Second, people take property rights more seriously and also understand that the public’s right to its property or “commons” is important for both monetary and nonmonetary reasons. Natural resources that were formerly viewed with little interest or real understanding, such as groundwater, have generated a special need for attention in light of the crucial role they will play in the future of this country’s survival.

The enactment of the Comprehensive Environmental Compensation, Response and Liability Act of 1980 (“CERCLA” or “Superfund”) was an attempt by Congress to respond to the massive pollution and contamination of the environment in the United States. However, as the past thirty plus years have demonstrated, CERCLA is not effective in enabling the recovery of damages for pollution and restoring injured natural resources. In fact, CERCLA has actually enabled polluters to prolong any meaningful cleanup of natural resources by permitting them to engage in years of ineffective and mostly useless remediation and feasibility studies. Two CERCLA problems in this regard are rules delaying restoration until the completion of remediation, and rules potentially capping recoveries and making restoration damages not retroactive to CERCLA’s enactment. Rule changes are needed to expedite and eliminate any tensions between restoration and remediation. Moreover, the remediation response time of CERCLA is poor, thus prolonging what is already a tediously slow road to restoration.

4 FOCUS ON FORENSIC PROOF

Major NRD challenges will nevertheless remain, especially as regards forensic proof. Although primary restoration remains essential, better and less contentious methods of quantifying replacement values (where complete restoration is impossible), total values, and loss of use damages (for the period between damage and restoration) may be needed. In addition, given the relative youthfulness of restoration sciences, novelty questions will be significant.

As with most environmental litigation, apportionment issues will remain in the forefront. Most NRD laws provide for strict, joint and several liability. In complex, multi- party cases, generators will often contest proof of causation as to themselves of specific contamination giving rise to NRD liability. This means any defendant that is shown to have contributed even 1% to the NRD is responsible for the whole as against the trustee, unless it can carry its burden of proof on apportionment against the trustee by showing that it has only caused a portion of the NRD. As against other responsible parties, the polluter may seek contribution and subrogation based on equitable factors (or contract). Forensic scientists will be tasked with these apportionment and contribution issues much as they have in the past in Superfund site remediation litigation.

Many defendants in these cases seek to escape liability with “baseline” arguments. This involves one of two arguments. In most cases the issue is what was there pre- pollution. In this sense, baseline reflects the polluter’s efforts to apportion harm, a matter as to which it carries the burden of proof. Alternatively, some polluters use “baseline” to do a “what if” scenario: What if the subject pollution had not occurred, what pollution (e.g. urban pollution) would have been at the site anyway. The polluters then attempt to argue that this amount of damages is not assigned to them and they need not carry any burdens. This happens often and represents a fundamental misreading of applicable law. Nevertheless it is an effective tool in negotiations, and so will undoubtedly continue.

This raises another point. Much of NRD practice is about negotiations. Often polluters will agree to the use of certain scientific techniques that they turn around and attack at trial as junk science. It at least keeps things interesting.

Superfund’s NRD liability is not generally retroactive, unless there is no basis for apportionment between pre and post-1980 NRDs in which case the polluter pays. In remediation cases, this temporal issue has been less significant (except where insurance coverage is the issue), because liability of the federal level is retroactive. The states vary on whether NRD is retroactive, and when it is not, a different set of forensic issues apply.

Besides apportionment and allocation injuries, NRD litigation raises a host of relatively new injury assessment and damages questions. NRD is often tied to definite injuries, and associated pathways. This in turn raises questions of injury determination (e.g. a change in benthic population following contamination) and injury valuation among other concerns. By the same token, loss of use of services or resources is often challenged.

5 NOVELTY AND FORENSIC PROOF

Relatively novel or immature scientific information or techniques raise important issues for investigators employing environmental forensic techniques. Two issues of fundamental importance are arguably definitional: (1) what makes a field of scientific inquiry relatively novel, such that different scientific positions about appropriate methods and application of the same are even tenable, and (2) in that novel field, what criteria or tests make scientific information more credible than competing scientific information. For example, the use of appropriate statistical tools may improve confidence in analytical conclusions that might otherwise be viewed as too novel.

Novelty techniques and methods need to be employed with great care. The traditional judicial focus is not supportive of new science. The U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. set forth a four-part test for scientific evidence that has been reaffirmed by the Court in Kumho Tire Co. v. Carmichael. To be admissible, a court must ascertain that: (1) the theory or technique has been appropriately tested and found valid; (2) the technique or theory “has been subjected to peer review” and published in a respected journal or other suitable outlet; (3) the error rate is low enough so that the theory or technique is reliable; and (4) the theory or technique, as well as the “standards controlling the techniques operation,” is “generally accepted” within the “relevant scientific community.”

As certain scientific fields mature, the range of acceptable scientific differences narrows as to core issues, though new issues arise as the technique is applied to new subjects. For example, appropriate methods for detecting sources of chlorinated solvents, additives, degradation products and the use of isotopes, which have been used to distinguish manufactured trichloroethylene (TCE) from TCE formed from the degradation of perchloroethylene (PCE) has rapidly matured.

While stable isotope analysis will not necessarily provide a silver bullet in all cases, it can give additional information that will generally be beneficial. It can provide a tool to identify source discrimination and the extent of natural attenuation particularly for groundwater contaminants. The benefits of two-dimensional isotope analysis (i.e. C and Hisotopes) in evaluating mechanisms of degradation can distinguish abiogenic from biogenic sources. So too, integrated oil fingerprinting methods characterize and distinguish the different hydrocarbon sources in spill oil samples when mixed with other hydrocarbons, such as tracing the sources of the spilled crude oil from the Deepwater Horizon or Hurricane Katrina.

(Continues…)Excerpted from Environmental Forensics by Robert D. Morrison, Gwen O’Sullivan. Copyright © 2012 The Royal Society of Chemistry. Excerpted by permission of The Royal Society of Chemistry.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.