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Legal Considerations

Coal-Tar Site Litigation

  Much research into the technical and operational nature of manufactured gas and its related technologies,  has been conducted, mainly since 1993, and largely supported by funds expended toward litigation.  This has occurred mainly in North America, and, regrettably, very little of it has been published, largely  because of restrictions levied by clients on experts and on researchers, and by court motions by RPs, to restrict release of depositions and testimony by case experts. Many experts are fearful of publishing their opinions, lest they become available for peer-review or for general scrutiny. In the author’s experience,  legal actions related to coal-tar sites generally fall into the ten categories listed in the following table.  

Need for Expert Historic-Technical
   Engineering and Geological Assistance in
   Litigation and Other Legal Proceedings for Coal-Tar Sites

Type

General Premise

Rational for Employing
Specialty Expertise

Activate or force remediation

PRP is recalcitrant and citizens and environment are at risk

Identify and describe nature and magnitude of related environmental threat

Conduct of Remediation;
Completeness of Remediation

Regulatory disagreement with assessment of site threat, cleanup plan, or progress of remediation

Identify and describe nature and magnitude of related environmental threat, in terms of short-fall in scope of remediation advocated by regulatory agency

3rd Party
Intervenors in
Disagreement

Site/waste characterization is
inadequate and/or flawed and that
remediation underway is inadequate

Evaluation of reported characterization findings in terms of opposing technical knowledge

Regulatory Agency
Seeks Cost Recovery

Agency has had to move on
remediation without participation  of PRP

Prove time-and-place connection between RPP and the UHWS; often the case with off-site dumps or discharges of gas manufacturing residuals or wastes

“Innocent” Land Owner Purchases
Contaminated Dump Ground

Gasworks wastes transported from the plant and dumped at a remote area; later urbanization creates value for the site and development ensues

Developer becomes liable for costs of removal and other forms of site remediation; engages experts to identify the gasworks source and to support litigation for cost recovery

Health Impairment from
Long-Term Exposure to
PAHs

Individuals or clusters of workers
or site or bordering residents have
been subjected to long-term
exposures to PAH carcinogens, from
undeclared wastes

Search for, define, and prove presence of otherwise unreported “hot spots” of wastes or
contaminated soil or water; with linkage to
history of facility operation and its waste
management practices

Inverse Condemnation
of
Real Property Values

Presence of facility wastes and/or conduct of remedial actions has caused depreciation of real property

Locate and prove presence of migrated plant toxics and of relative effect of the RP remedial actions to date

RP seeks Recovery of
Remedial Expense from its
Rate Payers

That remedial expenses are linked to current service, rather than to past waste management practices

Attempt to show that historic practices were proper and in accordance with state of knowledge of the manufactured gas industry, as related to known ground conditions at the present time.

RP seeks
recovery of
expense from
other PRPs

For companies of multi-ownership corporate history, earlier owners or operators are sought for reason of their involvement in generation and/or discharge of toxic wastes

Need to identify and demonstrate manner in which the earlier owner is involved; usually involves history of FMGP, its manner of operation, location and extent of toxics, and timing of release and/or transport

RP seeks
recovery of
expense from 3rd party

Some 3rd party has had incidental involvement in generation and/or discharge of toxic wastes

Need to identify and demonstrate manner in which the 3rd party is involved; usually involves history of FMGP, its manner of operation, location and extent of toxics, and timing of release and/or transport

 Prepared by Dr. Hatheway on 1 February, 2008 as part of his delivered manuscript to the publisher of his forthcoming (2008)
technical book "Remediation of Former Manufactured Gas Plants and Other Coal-Tar Sites; Taylor & Francis Group, Publishers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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