MATSON & ASSOCIATES

Historical Research Tools: Acquiring Samples

2015-04-08T11:00:00.000-04:00


Historical Collection of Dyes

Have you ever searched Ebay for sediment samples before? Ever queried craigslist for water samples? Ever dug into the archives of a science history museum for soils? It’s not often environmental professionals find themselves utilizing the same tools as collectors and bargain hunters, as well as archivists, conservation scientists, and curators. However in the fields of Environmental Forensics and Environmental Research you might find yourself looking to unconventional resources when the circumstances call for it.

Looking to History for Answers - What We're Reading (Part 2)

2015-04-02T11:00:00.000-04:00

“No science is so intimately connected with the pursuits of man, or mingles so extensively with his occupations as chemistry.” – Stephen Elliott, Botanist, 1816

Perhaps a bit of professional bias, but we most certainly agree with Mr. Elliott! In our research, and our work in Environmental Forensics, chemistry is woven into nearly every aspect: whether connecting industrial footprints to chemical fingerprints; demystifying the complex interactions of pH, temperature, groundwater flow, and heavy metals; or having an expert connect with a jury, chemistry matters.

It is fitting then that what we’re reading includes the study of atoms and molecules, of their fate and transport, of their anthropogenic origins. As with most pursuits of humans, these texts touch on history, politics and conflict, too.

Tips on Technology for Expert Witnesses in the Courtroom

2015-03-18T15:00:00.000-04:00

Google “technology in the courtroom” and you’ll encounter 15 million hits on iPads and animation, LCD projectors and touch screen telestrators. You’ll find details on skyping in witnesses for testimony or using 3D printers to create demonstratives. You’ll find advertisements for CLE (Continuing Legal Education) classes from local bar associations. These hits are all in response to the “technological tidal wave” crashing onto the legal system. They reflect the collective need of attorneys and judges alike to anticipate, adapt, and accept the latest gadgets, and employ them effectively, efficiently, and ethically. . . without drowning in apps, cords, and associated lingo.

But, as we noted recently in our post on essential apps, attorneys aren’t the only ones in the courtroom with a need to be tech savvy – experts should be too. Not simply because it’s the latest fad, but because well-presented data in concert with engaging testimony are part of effective expert witnessing. If technology can enhance that connection with the jury and make one a more effective expert, then it makes sense to embrace those tools.

Still not sold? Below we’ll cover more of the why, as well as some of the “how” in terms of best practices for use.

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Know your Legal Lingo Part 3 – Case Law and Expert Opinions

2015-03-05T10:20:00.000-05:00

When is a strainer a container? When it’s a leaking landfill that conformed to the “state of the art” at the time of construction. How can that be? Well, that's the case law – for now – in the Western District of Michigan.

Case law? How does that relate to experts?

It is important for you, the expert, to know the case law or precedent governing certain issues on which you are providing expert opinions. The jurisdiction of your case – whether in state or federal court - dictates the case law the judge will abide by when making his/her rulings. Knowing to ask your attorney about the applicable case law not only demonstrates your knowledge of the legal system, but more importantly having the information ensures you are sufficiently aware of what the court will be considering on various issues when you are forming your opinions, preparing your expert report and testifying in deposition and at trial.

Here we explain the basics of the U.S. court system and provide an example of how case law was used to resolve a question of law concerning a pollution exclusion provision in an insurance coverage matter involving groundwater remediation.

Update: PCBs in the Carolinas

2015-02-26T11:00:00.000-05:00

We blogged about the illegal dumping of PCBs into sewer systems in North Carolina and South Carolina a couple months ago, and wanted to provide an update. Today, both states continue to struggle with disposing of this persistent compound even as federal investigations have yet to uncover the responsible parties.

Meanwhile, wastewater treatment facilities and their customers are the ones paying the price. According to an area news source, the director of the Charlotte-Mecklenburg Utilities reported that PCB cleanup at its plants has to date cost nearly $4 million. He estimates that completing the job could cost anywhere from another $6 million to $9 million.
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Expert Reports - Ghost Writing Redux

2015-02-24T11:00:00.000-05:00

Photo Credit: Brad Shorr

Three months ago we blogged about whether expert reports can be ghostwritten by attorneys.

While the answer is still no, recent coverage of a patent infringement case by attorneys of Akin Gump Strauss Hauer & Feld LLP provides further proof of the consequences. In Numatics, Inc. v. Balluff, Inc., No. 2-13-cv-11049, 2014 WL 7211167 (E.D. Mich. Dec. 16, 2014) the district court in Michigan excluded the defendant’s expert after defendant’s counsel admitted that they drafted the report. You can read the coverage by Akin Gump here, but their conclusion is worth repeating:

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Dodging Daubert: Developments in Expert Admissibility in Federal Courts

2015-02-19T11:00:00.000-05:00

If you’ve been following the news or tracking major judicial developments, you may know that the Supreme Court of the United States, also known as SCOTUS, has a busy spring ahead of it this year. The nine justices have already heard arguments concerning the Fair Housing Act in January and will soon be hearing oral arguments for cases concerning the future of the Affordable Care Act, marriage equality, and lethal injection.

But what case won’t SCOTUS be hearing?
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Uncovering a Byproduct of the Blues: Synthetic Indigo and Halogenated Carbazoles

2015-02-17T11:00:00.000-05:00

Better analytical capabilities, or novel or advanced detection techniques have often been an important factor for the discovery of environmental contaminants. For example PCBs were initially called “DDT ghost peaks” in analytical samples, but were eventually identified by the Swedish chemist, Soren Jensen, who utilized advances in gas chromatography and mass spectrometry to unmask the mystery compounds in the late 1960’s (Spears, 2014). Widespread groundwater contamination from the use of the industrial solvent, TCE, made headlines as analytical methods in the 1970’s allowed for low-level detection. Likewise, a similar history can be found for the rocket propellant, and firework ingredient, perchlorate. Prior to 1997 perchlorate could only be reliably detected to approximately 100 parts per billion (ppb) (Motzer, 2001) but “breakthrough developments in analytical instrumentation and methods” dropped that detection limit to 4 ppb (Halden, 2014). Such contaminants often remain invisible to the public until analytical techniques sufficiently advance to shed light on their presence.
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Essential Apps for Experts

2015-02-13T11:20:00.000-05:00

"The impact of technology on law is moving forward with all the subtlety of a charging rhinoceros…”

Credit: Blake Patterson. Cropped for Clarity.

That’s at least according to Oliver R. Goodenough, Professor of Law and Director of the Center for Legal Innovation at the Vermont Law School. While there is no doubt that technology is rapidly changing the legal profession and some lawyers aren’t yet embracing the latest trends; others are not only anticipating, but incorporating it into their practice. One of the tools that attorneys have been turning to for several years now is the iPad. In fact a survey by the International Legal Technology Association revealed that 90% of law firms have attorneys using iPads (read more here). And why wouldn’t there be? The iPad is convenient, small, and easy to use. And, today there are apps for jury selection and trial preparation; for keeping track of witnesses and scanning exhibits; and for reviewing transcripts and for managing pdfs.

So what about iPads for experts? Could it make your life easier too? Could you use your iPad for more than just Angry Birds?

Ten Mistakes Experts Make and How to Avoid Them

2015-02-11T11:19:00.001-05:00

We all know that making mistakes when trying something new is part of the experience. And, we've all heard the old adage – ‘learn from your mistakes’. For the most part, this is true. But, when it comes to expert witnessing, making mistakes can have an impact on both the case and your credibility. Here we present ten mistakes that experts have made and how you can avoid them.
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Play it Cool – Researching Historical Spills

2014-11-25T14:00:00.000-05:00

Jet fuel, anhydrous ammonia, PCE, mercury, 2,4-D, or cranberries; gasket ruptures, corrosion, vandalism, storms, abandonment, derailments, or collision; 2 ounces, 414 pounds, or 900,000 gallons; whatever the source, whatever the cause, whatever the amount; leaks and spills happen.

Last November we blogged about some of the available research tools for environmental professionals to use for historical investigations. This November, we’ll add another: The National Response Center’s (NRC) database of oil spills, chemical releases, transportation accidents involving hazardous and radioactive substances, pipeline releases, and more.

A Tale of Two Conferences: Dioxin 2014 & Soils, Sediments, Water, and Energy

2014-11-17T11:00:00.000-05:00

This summer and fall M&A attended two conferences. Both were exciting opportunities connect with great people. A brief synopsis of the conferences and some recent work is given below:
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“PLEASE HAVE RE-TYPED ON YOUR OWN STATIONERY. THANK YOU.” Or, A Word on Authorship & Expert Reports

2014-11-03T11:00:00.000-05:00

The blog, Compelling Discovery, written by Michael P. Lowry, Esq. has spent much of October covering Expert Witnesses. Although the target audience is lawyers, many of these posts have direct relevance to experts – especially beginners. The most recent post concerns whether attorneys can prepare expert reports.

…Can they?

Spring Cleaning and Back to Blogging!

2014-05-16T10:59:00.000-04:00

David Patte, U.S. Fish and Wildlife Service

M&A has been MIA in the blogosphere as of late, but a busy spring will do that to a blog! What’s new?

Well, we just posted about a recent M&A publication in Chemosphere. It’s an environmental forensics paper that identifies the likely source of a unique contaminant in the Passaic River in New Jersey. You should check it out!

In a similar vein, we will be presenting and attending several conferences this spring and summer. Check out the details on River Rally 2014 and the Shale Energy Engineering Conference...
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Using Environmental Forensics to Solve a Chemical Mystery in the Passaic River

2014-05-06T09:21:00.001-04:00

On April 15, 2014, the Editorial Board of the New York Times wrote an op-ed concerning the proposed plan for the cleanup of the Passaic River in New Jersey – a river that has often been described as “toxic,” “dirty,” and “troubled.” The drivers for the cleanup, and for such descriptions, are the pollutants contained in the sediments of the river – vestiges of decades upon decades of heavy industrial activity. The contaminants typically discussed are PCBs, dioxin, mercury, and heavy metals; but as the New York Times notes, the list is far longer than that. Many of the contaminants are not just the products that were manufactured along the banks (e.g. DDT), but also the byproducts from chemical manufacturing (e.g. dioxin or PCB 11). It is this latter category that is sometimes less understood due to the unintentional nature of production, and the analytical challenges (especially historically) of detecting the presence of these by-products. In September of 2014, however, Matson & Associates environmental chemist and engineer, Dr. Robert Parette, and Wendy Pearson, president of the firm, published an article in the journal Chemosphere, discussing a compound that while not well known to the general public, may provide an important tracer for contaminants in the Passaic River and Newark Bay.

Daubert & North Carolina – A rocky relationship ends in a wedding, but will the marriage last?

2014-02-28T12:32:00.001-05:00

After almost 15 years, North Carolina finally tied the knot with Daubert. In January 2014, the Court of Appeals declared that North Carolina courts should apply the Daubert criteria to expert testimony. In State v McGrady (2014) the Court upheld the trial court’s exclusion of expert testimony and clarified what the 2011 Amendments to NC Rule of Evidence 702 meant for expert testimony. In short, the Court stated that the standard for admissibility set in Howerton v Arai Helmet (2004) was replaced by Daubert with the adoption of the 2011 amendments. Here is a little history of the rocky relationship.

Injection Wells Coming to Pennsylvania

2014-02-17T11:39:00.002-05:00

As we reported in a recent post on oil and gas wastewater there are significant challenges to treatment and disposal. In Pennsylvania, the majority of the wastewater is either recycled or treated and discharged through centralized waste treatment facilities. Wastewater can also be disposed of through underground injection wells, which are used extensively Ohio, but few such wells exist in Pennsylvania. However, based on two recent underground injection well permit approvals this trend may be changing.
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The Cat Strikes Again: PCBs in a North Carolina Wastewater Treatment Plant

2014-02-11T13:46:00.000-05:00

As we’ve noted before, Polychlorinated biphenyls (PCBs) are a bit like the pink stain in the classic children’s book The Cat in the Hat Comes Back. Once introduced into the environment, they have a knack for both persisting and resisting efforts to be removed effectively and efficiently, and with a little “help” - in this case, criminal activity - can contaminate everything from sewers to sediments to wastewater treatment plants.

Unfortunately PCBs have been getting a little more “help” than usual lately: First in South Carolina, and now – in an incident that may leave you with strong feelings of déjà vu – in North Carolina.

Muddying the Well Waters: Fracking ≠ Drilling

2014-01-27T15:04:00.001-05:00

A recent AP article examined claims of water well contamination from nearby oil and gas drilling. The author performed a comprehensive review of drilling-related complaints requested from state agencies in four states: Pennsylvania, Ohio, West Virginia and Texas. The article noted that contamination from methane, not from drilling chemicals, is commonly the source of pollution. While many of the wells drilled in these states over the last 5 years have been wells that are ultimately used for fracking, scientists agree that the issues related to the well drilling process and improper casing of the well (regardless of how the gas or oil will be produced) cause the greatest potential for pollution, not hydraulic fracking.

While the title of the original AP article was “Oil and gas drilling pollutes well water, states confirm” other media sources used the article to report that fracking was the cause of the well pollution. For example, a number of articles based on the AP investigation began appearing shortly after with these headlines:

“Fracking caused hundreds of complaints about contaminated water in 4 states”
“Report: Fracking operations are contaminating well water in 2 states”
“Fracking investigation finds evidence of water contamination”.

You can read them here, here and here.

The idea that news stories can be taken out of context and sensationalized is nothing new, but in this case it does change the tone and direction of the discourse around fracking. As one commenter on the AP article astutely noted “It’s too easy to confuse people by conflating fracking with drilling.”

Submitted by Eric Chase, P.G.

West Virginia Chemical Spill & Polluted Drinking Water: History repeating itself?

2014-01-23T11:41:00.001-05:00

"Chemical pollution can do its damage so quickly that preventive legislation and control are essential.”

A reaction to the recent West Virginia Chemical Spill?
A quote pulled from the many articles that have been published in the wake of the events?

No and No.

The quote is from 1947. It’s the reflection of Arthur Pickett, the Deputy Engineer of Los Angeles County, on an incident of chemical contamination that had occurred 2 years earlier.
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Update: Matson & Associates Blog

2014-01-14T13:06:00.001-05:00

A little more than 5 months ago we decided to launch our blog. Since then we’ve learned a great deal about the importance and potential of blogging. We’ve also learned about what works and what doesn’t. We’ve thought about content creation, what our contemporaries are doing, and what we can contribute to the blogosphere. We’ve looked at environmental engineering blogs, environmental consulting blogs, law blogs and expert witness blogs. After a good deal of reading and writing, we’ve updated our “About” to reflect a more carefully crafted niche.

When our blog began its primary objective was to serve as an introduction to expert witnessing. However, the more we wrote, the more we found that applying our expertise to analyze current environmental events and issues resonated both with us and our readership. The change in our “About” is intended to mirror this adjustment in content. Importantly, we aren’t abandoning the expert witnessing component, but just shrinking it a little so that we can make room for more on environmental science, engineering, regulation, and law. We’re excited about the revision and hope you are too!

Update: PA Supreme Court Rules Municipalities Can Ban Fracking through Zoning

2013-12-23T14:06:00.003-05:00

In our recent post we discussed the fight over municipalities banning fracking and the 2012 challenge to portions of Pennsylvania Act 13 related to zoning. The Pennsylvania Supreme Court took up the challenge and ultimately ruled that provisions of Act 13 that revoked municipalities’ ability to make zoning decisions regarding fracking were unconstitutional. In a recent 4-2 decision the court upheld its earlier ruling that allowing oil and gas development to preempt local zoning regulations is unconstitutional. The majority opinion was rooted in the grounds that zoning restrictions violated the Environmental Rights Amendments of the state’s constitution. Click here for the 160+ page decision.

South Carolina PCB Update

2013-12-20T15:18:00.001-05:00

In October we wrote that PCBs had been found in sewage treatment systems and grease traps in South Carolina. At that time the SC Department of Health and Environmental Control (DHEC) had indicated that criminal activity was suspected after investigations revealed the presence of PCBs in area grease traps and on the equipment of several waste oil haulers.

On Wednesday the DHEC arrested the owner of American Waste Septic Tank Service – a waste hauling company that received a cease and desist letter earlier this year after equipment was discovered to be contaminated with PCBs. According to Mark Plowden of the DHEC “[The] arrest represents only the leading edge of a larger and ongoing criminal investigation.”

As of now there is no indication of the original source of the PCBs (i.e. where the PCBs were hauled from); nor how extensive the criminal activity may be, but we’ll be sure to keep abreast of developments as they become available.

Submitted by Kate McMahon

ASTM E1527-13: Why the Regulatory Agency File and Records Review is Good for PCBs

2013-12-12T15:48:00.001-05:00

The new ASTM Standard for Phase 1 Site Assessments (E1527-13) has received much attention this year (see here, here, and here) and most recently upon publication in November. We were most interested to learn that the updated version contains new requirements concerning regulatory file reviews, Section 8.2.2. Most notable is the expectation that consultants conducting a Phase I will review the regulatory file, and if not, be able to justify in writing the reason for not doing so. Two case studies below, both concerning unexpected PCB contamination, demonstrate why this is an important update.

Forensics with Foresight

2013-12-05T14:58:00.001-05:00

When we talk about forensics, we’re usually talking about investigating events in the past: analyzing DNA evidence found at the scene of a crime, reconstructing a traffic accident to discover the cause of a collision, assessing accounting systems to determine culpability in the aftermath of fraud, or sampling a groundwater plume to determine the source of contamination; ultimately, the analysis is occurring ex post facto. So instead of reacting to events, what if scientists sought to anticipate the needs of their field? For example, what if scientists began applying the analytical tools we currently have with an eye toward future litigation in the environmental arena?