CHAPTER 7 FINDING AND MANAGING APPROPRIATE AND COST EFFECTIVE TECHNICAL ASSISTANCE IN MAJOR ENVIRONMENTAL CASES
| Jurisdiction | United States |
(Feb 1994)
FINDING AND MANAGING APPROPRIATE AND COST EFFECTIVE TECHNICAL ASSISTANCE IN MAJOR ENVIRONMENTAL CASES1
Atlantic Richfield Company
Denver, Colorado
Roger L. Freeman 3
Davis, Graham & Stubbs
Denver, Colorado
TABLE OF CONTENTS
Page
I. INTRODUCTION
II. FINDING AND RETAINING TECHNICAL ASSISTANCE—THE SELECTION AND START-UP PROCESS
A. Identifying Technical Assistance Needs
1. Hydrologists and Hydrogeologists
2. Chemists/Geochemists
3. Geologists/Mining Engineers
4. Biologists and Botanists
5. Water Engineers
6. Resource Economists
7. Historians
8. Allocation Experts
9. Litigation Coordination/Networking
10. Design Specialists/Engineers
11. Toxicologists/Epidemiologists/Risk Assessors
12. Computer Modeling Experts
B. Forging the Environmental Team
1. What Areas to Cover
2. Assembling the Team—Firms vs. Individuals
C. Testimonial vs. Non-Testimonial Experts
D. Conveying Legal Precepts to Technicians: Effective Communication Techniques
1. Establishing Clear Lines of Authority—In-house and Outside Counsel
2. Communications with Consultants
E. Setting Realistic Goals—Balancing Cost-Effectiveness with Getting the Job Done
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III. CONTRACTUAL ARRANGEMENTS WITH CONSULTANTS
A. Scope of Work
B. Control of Team
C. Payment
D. Insurance
E. Indemnities
F. Intellectual Property
G. Confidentiality—Attorney-Client and Work Product Privilege
1. Attorney-Client Privilege
2. Work Product Doctrine
IV. ONGOING MANAGEMENT OF THE PROJECT
A. Budgeting and Reporting
B. Development of Written Products
V. CONCLUSION
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I. INTRODUCTION
We learn at a young age that our "natural environment" is comprised of a collage of integrated elements. Who cannot recall sketching rudimentary pictures (or, more recently, watching their kids do so) of the sky, soil, water, sun and other basic environmental components? Unfortunately, translating these elements from a childhood image to rigorous scientific and engineering disciplines is a difficult task. What appears on the surface to be a fundamental and easily observable system splinters into an array of complex and interrelated fields in the context of a major environmental cleanup.
Not surprisingly, then, the popular term "environmental consultant" encompasses a range of scientific, engineering and related fields, all of which can be important ingredients in analyzing an environmental problem. The proliferation of such titles as "hydrochemist" attest to the interlocking and multi-faceted nature of these environmental disciplines and the increased specialization within the industry. Given this complicated playing field, and with the passage of such sweeping
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laws as the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") or ("Superfund")4 , it is hardly shocking that the sheer number and range of technical environmental firms nationwide has exploded in recent years.
Faced with the daunting task of orchestrating this potpourri of environmental disciplines, companies engaged in major environmental cleanups often find themselves mired in confusion and budget overruns as the project proceeds. These problems are exacerbated by the complications inherent in the CERCLA and associated litigation process, particularly at many of the former mining sites which dominate the CERCLA field in the Rocky Mountain West.
In this paper, we endeavor to provide insight on how to tackle the thorny issues surrounding the interplay between outside technical firms and the legal project team on environmental cases. We approach this problem with a strong litigation bent, for several reasons: (1) many of the most complex questions arise in this context; (2) the sheer magnitude of environmental cleanup costs often portends future lawsuits, if not with EPA then with other private parties; and (3) lawyers are increasingly called on to handle and oversee environmental litigation matters, while non-litigation cleanups (e.g., underground tank removals) are becoming the charge of in-house project managers and engineers. Our discussion draws largely upon our experiences in CERCLA cases, particularly at mining sites.
This article is also intended to guide in-house and outside counsel (termed the "attorney project team" here)5 on ways to best allocate their collective and individual time and resources to the never-ending task of managing environmental matters. While we come at these issues with a "big case" mindset, we believe that these thoughts can be usefully applied to the entire spectrum of environmental matters.6
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II. FINDING AND RETAINING TECHNICAL ASSISTANCE — THE SELECTION AND START-UP PROCESS
A. Identifying Technical Assistance Needs
Identifying the appropriate makeup of the environmental consulting team can be a cumbersome and painstaking process. The average historic mining site cleanup serves as a useful example. One can quickly identify the following categories of expert services that may be required to fully staff a CERCLA cleanup at a typical mining site:
1. Hydrologists and Hydrogeologists. Water is the primary medium through which the vast majority of environmental contaminants are transmitted; in turn, understanding hydrology and its various spinoffs is the starting point for nearly every environmental matter. The visibility and overarching nature of the hydrology component requires that particular attention be paid to selecting hydrology experts. Because of the often unique and specialized nature of hydrological patterns at mining sites, it is also critical that one select a hydrology team with a strong mining background. Within the general area of hydrology, various subspecialists, such as wetlands experts, may also be required.
2. Chemists/Geochemists. Since the extent, nature and magnitude of an environmental problem ultimately turn on contaminant concentrations and chemical properties, chemistry and geochemistry are central to solving environmental puzzles. Again, the need for such expertise is intensified at most mining sites, where complex issues of metals transport and origin permeate remedial design decisions — and often drive cost allocation arguments among individual parties.
3. Geologists/Mining Engineers. Basic geology often plays an important role in analyzing environmental problems at mining sites. The team geologist may double as an experienced mining engineer who can assist in re-creating and analyzing the processes and facilities that led to current environmental conditions. Mining engineers also can be critical in attempting to quantify the volume of tailings or other waste generated by individual parties.
4. Biologists and Botanists. Perhaps the public's most immediate vision of what represents our "natural environment" is wildlife. The impact of an environmental problem (e.g., acid mine drainage) on wildlife species is often critical to remedy selection and in evaluating potential "natural resource damages".7 (In this regard, specialists in fisheries biology
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may be particularly necessary.) Likewise, experts in botany can be required where natural resource damage issues prevail or where endangered plant species are present.
5. Water Engineers. Many mining and other CERCLA sites are steeped in history. Past mining, irrigation and agricultural water use patterns may have directly impacted the transport of tailings and other mine wastes. Current water uses also may be impacted by remaining wastes. Accordingly, it is often necessary to retain a consulting team familiar with evaluating past and present water uses, including the mechanics of water diversion structures and the like. Because of CERCLA's broad liability scheme, theoretically reaching nearly any party with prior involvement within a mining district, these consultants can often assist in development of facts supporting the "operational" role of irrigation or agricultural interests in the genesis of the environmental problem.
6. Resource Economists. Big dollars are at issue in most environmental cleanups. The role of a resource economist can range from dissecting the costs associated with particular remedies to unraveling complex economic formulas surrounding the calculation of natural resource damages.
7. Historians. Many mining districts now in the CERCLA mill have a long history that is often difficult to access and unravel. A number of research firms now specialize in providing a historical perspective on past entities' activities. Obtaining this information is often critical to the potentially responsible party ("PRP") identification and cost allocation process, and may become even more important as the federal government is implicated at an increasing number of CERCLA sites. For instance, at some production plants used for wartime activities, claims have been successfully pressed by PRPs that the federal government's management and control of these plants creates substantial federal responsibility for cleanup.8 Accessing government archives and repositories is often critical in developing this theory — as a result, some firms are developing a specialty in this area.
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8. Allocation Experts. Particularly at municipal landfills, many firms are now specializing in the arduous process of identifying the volume, and predicting the relative toxicity, of individual waste streams sent to the site. Oftentimes this task entails more document review and organization than application of particular scientific theories, and can be performed at least in part by a paralegal or similar personnel. At mining and other sites, firms are now specializing in developing models attempting to simulate the relative contribution of past conditions and practices to current contamination problems.
9. Litigation Coordination/Networking. Some consulting firms are now...
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