The politics of risk: pre-litigation site assessment in Houston, Texas.

• Author: Macey, Gregg P.

1. INTRODUCTION II. THE SITE: KENNEDY HEIGHTS, TEXAS A. Preliminary Note B. History: The Racial Underpinnings of Site Redevelopment C. Residents Discover the Problem III. AGENCY SITE AND RISK ASSESSMENT: TEN YEARS AND FEW ANSWERS A. The Early Focus on Murr Way. B. Chevron-Railroad Commission Joint Efforts C Phase II of the RRC-Chevron Investigation Commences D. Comparison of Results by Party IV. THE LIMITS OF SITE CHARACTERIZATION AND RISK ASSESSMENT IN KENNEDY HEIGHTS A. The Importance of Sampling Frame Choice B. Site Characterization and Risk Assessment As a Negotiated Process Between RRC and Chevron 1. Media Attention 2. RRC Questions 3. Lack of Balance in the RRC/Chevron Relationship C. Risk Assessment: The Final Stage in a Negotiated Process V. DISCUSSION I. INTRODUCTION

   The residents of Kennedy Heights in southeast Houston, Texas wrestle with a complex set of questions about their neighborhood. At base is their concern that something dangerous, potentially even poisonous, exists beneath the soil of their single family homes. To get answers, they called upon the appropriate state and federal regulatory agencies in the early 1990s, specifically the Railroad Commission of Texas and the U.S. Environmental Protection Agency (EPA), to investigate what earlier contractors hired by the city suspected was residual contamination from crude oil storage. The investigations took ten years and encompassed two of four elements of the scientifically accepted practice of risk assessment: exposure assessment (1) and risk characterization. (2) Residents of the subdivision also sought redress in the courts, filing toxic tort claims against the former owners of the site. (3) The two processes, risk assessment by the state and EPA and toxic tort litigation, are driven to varying degrees by questions of causation, which are answered by the same type of people: "experts." Before residents can be told whether the air they breathe or the water they drink is causing them harm or threatening them, a series of "experts," mostly contractors hired by an agency or potentially liable party, will first look at the totality of the evidence and make a series of judgment calls. (4)

   This Article will demonstrate how one final product of either process, whether called a "site assessment" or "risk assessment," is merely a stylized account of a negotiated process between regulated entities and agencies that lack the wherewithal to participate in the give-and-take that is involved. Simply put, the thesis is that the institutional setting in which risk assessments are undertaken can subordinate intellectual form while elevating negotiation and compromise. The results of this politicized investigation might be clearly stated in a government document, but the assumptions underlying the findings and the process that led to the collection of data points will be obscured or left out.

   Why does this finding matter for toxic tort litigation? It is important because, despite the shortcomings inherent in a politicized process and problems with communicating risk once it has been quantified by hired experts, this approach to risk assessment (5) is accepted practice among regulatory agencies. More generally, it comports with the received view of science first sketched by Karl Popper. Popper noted that, far from universal knowledge derived from formal logic, science is an imperfect process involving intuition, conjecture, inference, professional judgment, and repeated testing. (6) This sort of "deductive falsification" guides most of the progress of science today.

   However, a relatively recent development in the courts offers a competing view of science, one that is more closely aligned with the logician's search for universal knowledge derived from formal logic. (7) The ascendancy of this new standard of scientific validity in the courts presents residents of contaminated communities and agency policymakers with a conundrum: the methods upon which they must rely to demonstrate that their properties pose a risk and should be cleaned up call for improvement and greater transparency, while at the same time a new judicial interpretation of scientific evidence threatens to discount the practice as a whole. This Article argues that, given the nature of risk assessment in the context of contaminated sites, where negotiation supplants analysis, the courts' growing expectation of scientific validity is unrealistic at best.

   Following the Supreme Court's decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., (8) federal trial judges are charged with the task of determining the admissibility of scientific evidence, including the results of site and risk assessments that are used in toxic tort cases. Because causation claims in toxic tort cases rest on expert testimony, this "gatekeeper" role for district judges is critical: if experts are not allowed to speak to their findings, most toxic tort cases will be dismissed on summary judgment. How are district judges supposed to evaluate evidence that purports to be scientific? Daubert requires a trial court, under Rule 104(a) of the Federal Rules of Evidence (FRE), (9) to determine whether an expert is testifying from "scientific knowledge" (10) and whether their reasoning or the methodology underlying their findings is "scientifically valid." (11) In dictum, the Court added several criteria for whether information testified to by an expert witness could be considered valid, in addition to the test of "general acceptance" formerly used in Frye v. United States. (12) whether the methodology employed to generate the information can be proven wrong, whether the method has undergone publication or peer review, the existence and maintenance of standards controlling the technique's operation, and the method's known or potential rate of error. (13) Many courts have read these requirements (and others suggested in subsequent decisions (14)) to mean that the evidence presented by a scientific expert should be without flaws, logical leaps, or inferences that have not been proven fully. This high standard of validity is evidenced in the "corpuscular approach" used by most courts: a proponent of scientific evidence must establish the reliability and relevance of every individual study from which he drew his findings (in addition to the same test for the expert's broader conclusions). (15) Absent this finding, the study (and testimony) will be excluded. (16)

   Challenges to expert testimony were more successful following the Daubert decision. One report found that "the exclusion rate in the Third Circuit for evidence based on physical science in a product liability case jumped from 53% during the two years before Daubert to 70% between mid-1995 and mid-1996." (17) A fifty-case sample of civil actions spanning three months found that district judges excluded 90% of the challenged experts. (18) The post-Daubert environment, characterized by a conception of science that is more exacting than the scientific method itself, posed a challenge to the residents of Kennedy Heights, whose legal counsel decided to settle rather than face a Daubert hearing on their soil and water contamination evidence. (19) The changing judicial conception of the scientific process also raises questions regarding how one should make sense of site characterization and risk assessment, such as what took place at Kennedy Heights for more than ten years. (20) Do the results of site assessment in Kennedy Heights, where "scientific" methods were applied in a form of negotiation between a regulated entity (Chevron) and a resource-strapped and arguably inept agency (the Railroad Commission), suggest that litigators should call for a more stringent application of the Dauber doctrine? Or does such an approach to admissibility render entire areas of inquiry, such as risk assessment, essentially off-limits to toxic tort plaintiffs? Is there another way to view the process of site or risk assessment that would be more useful to interested parties in a toxic tort litigation?

   To explore these issues, this Article sets out the story of Kennedy Heights. Rather than focus on the case that was ultimately settled by a court-appointed special master, the Article delves into the administrative process of investigating potential site contamination. The process is recounted here following extensive document review, including internal and external Railroad Commission correspondence, field notes, and data; site and risk assessment documents prepared by all relevant parties; historical primary documents regarding the site's history; and interviews with a handful of "experts" charged with managing the process (from the Railroad Commission, Exploration Technologies, Inc., the Texas Natural Resources Conservation Commission, and Chevron attorneys, who spoke on behalf of the contractors who prepared the site's only comprehensive risk assessment report).

   The resulting case study will help make sense of how site and risk assessment fail to embody the kinds of rational analytical approaches upon which regulatory agencies publicly claim they depend and that they hold up to their constituents as scientific. Second, given the standards of admission for scientific evidence in mass torts cases shaped by the holding in Daubert, the Kennedy Heights experience should give us pause before we accept the assumption, exhibited even by the final judge to preside over Adams v. Chevron U.S.A., Inc. (Adams v. Chevron), (21) that such evidence must be sufficiently established and constitute scientific proof of a certain proposition. (22) Primary documents outlining the various efforts toward site characterization and risk assessment suggest that these processes were shaped in different ways, used divergent assumptions, and ultimately yielded findings that more closely resembled arguments than results. The rich history left behind by the Kennedy Heights story gives us a chance to see the tasks of site...