From The 'Lectric Law Library's Stacks The Environmental Engineer as Forensic Expert - by Anthony J. DeFalco, P.E., DEE *
It's a very valuable function and requirement that you're performing, so have a great day and keep a stiff upper lip. -- Vice President Dan Quayle remarks to oil spill clean-up workers at Prince William Sound, May, 1989
Within the past 30 years there have been great changes in the environmental engineering profession. Today, perhaps, no other engineering discipline requires such broad knowledge of related areas. The important growth of knowledge in this field, however, developed over time and was acquired through various environmental campaigns waged during different time periods, waxing and waning with the intensity of regulatory enforcement and achievement of cleanup goals, respectively. To understand the forensic value of the environmental engineer, it is important to understand first how the profession metamorphosed into its present state. Engineers who have lived through these changes and who have learned from them have much to offer in the forensic field today.
The year 1972 was a pivotal year for the environmental engineering profession. That particular year, of course, marked passage of the Water Pollution Control Act (Act) which, in turn, spawned more than 23 amendments and other environmental legislation, as well, either directly or indirectly. Thus, environmental laws and their consequent regulations, after 1972, covered the air, water and soil media and specific issues related to fresh water from surface or subsurface sources, residuals and solid wastes and, of course, hazardous and toxic wastes.
From an environmental engineering viewpoint, life before 1972 was considerably simpler when the emphasis was on treatment of conventional pollutants from domestic and municipal sources. These pollutants essentially comprised organic substances which depleted dissolved oxygen from our natural waterways usually resulting in a reduction in diversity of natural flora and fauna and even fish kills in isolated instances. They also included a few select dissolved inorganic substances, as well. By the early seventies, however, pollution from industries became recognized as a serious problem on a grand scale. Pollutants from the entire spectrum of American industry were more complex and, consequently, treatment methods became more sophisticated. Environmental engineering grew in its capacity to keep abreast of newer technologies and adapt existing technologies to these new challenges.
In the decade following passage of the Act the environmental engineer continued to focus on treatment or control of pollutional impacts to our natural resources. Significantly, non-point pollution from our agricultural lands and other discharges to small streams and ponds that impacted our ground water resources were added to his agenda during this period. Legislation focused on either protecting our media or limiting the emission of specific pollutants or both but the net result was to implement some degree of treatment or control to the pollutant effluents or emissions. Throughout this period, the environmental engineer again needed to broaden his understanding of these issues and adjust his problem-solving capabilities to include the implementation of required treatment or control facilities.
In the early eighties with the passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and later on the Resource Conservation and Recovery Act (RCRA), the era of intense review of the problems involving hazardous and toxic wastes and their potential to inflict harm on our environment and on the general population, as well, was born. For the first time the environmental engineer was exhorted to focus his attention on existing contamination of our land and subsurface soil and aquifer resources at orphaned sites (governed by CERCLA) as well as any contamination at active sites (governed by RCRA). Another round of regulation dictated approaches that engineers could use to cleanup or remediate these contaminated sites. New terms entered his vocabulary but more importantly, the environmental engineer now recognized that he needed to enlist the aid of other scientific discipline's to address complex issues of ecology, public health, geology, medicine, toxicology, law and others, as well.
The technical scope of the environmental engineer has expanded dramatically since those early days before 1972. Educated in civil or chemical engineering, biology, biochemistry geology, soil mechanics, chemistry and hydrogeology, today's experienced environmental engineer has had to acquire a working knowledge in a wide variety of other disciplines such as toxicology, public health and ecology, as well. Also, if an environmental engineer started his or her career in the 1960s as a consultant and worked on industrial pollution problems in one or more media since that time, he or she was most likely involved with a wide variety of different industries such as paper making, steel production, auto manufacturing, food processing, pharmaceuticals, chemicals and petrochemicals to name a few. This breadth of experience is unique.
But the greatest contribution of the experienced environmental engineer is in his role as problem solver. the highly qualified and experienced environmental engineer is most likely well equipped to serve an attorney's case well in situations involving the following: urban storms and flooding; issues deriving from contaminated water or air and contamination of vadose zones and acquifers, as well; LNAPL and DNAPL liability and remediation; environmental construction errors and accidents and any allegations of faulty design and/or operations; liability from pollution incidents and a host of other issues requiring an investigation into causation, negligence, product liability, etc.
However, where the issues in a case are narrowly drawn he must rely on other specialists. Examples of this might be instrument/control problems that prevents or has prevented proper operation of an environmental treatment process or an incident involving a significant adverse impact upon an endangered species because of an environmental accident. In these two examples, he will involve an instrument engineer and an ecologist, respectively.
Because of the profession's breadth of possible technical involvement, it us usually advisable to consult initially with an experienced environmental engineer to decide how best to provide the proper forensic expertise to support the attorney's case and to furnish expert testimony, as well.
* Mr. DeFalco was former Vice President and Chief Engineer at Roy F. Weston, Inc. and has 35 years experience in the environmental field. He's available as an expert consultant and witness.