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 February 2006 Feature
Steve Hilfiker is the founder and owner of Environmental Risk Management, Inc. (ERMI), a licensed engineering and geology firm specializing in assessment and remedial services. In addition to his ASTM E50 and E50.06 activities, Hilfiker is co-chair of the Florida Petroleum Marketers Association’s Environmental Committee, and has been on the board of directors of the Florida Environmental Assessor’s Association since 1991.

New Subcommittee on Forensic Environmental Investigations

The origin of recently established ASTM Subcommittee E50.06 on Forensic Environmental Investigations, part of Committee E50 on Environmental Assessment, Risk Management and Corrective Action, is based in Daubert challenges, in which attorneys challenge their opponent’s expert witnesses. In many cases, experts are competent and their scientific methods credible, but due to the lack of professional standards in the emerging field of environmental forensics, a skilled opposing attorney can use this weakness to have the expert witness’ testimony struck from the record.

Experts in environmental forensics conduct scientific investigations of incidents of environmental contamination that are subject to dispute resolution. They explore the source, fate, transport, and identification of environmental contaminants and are often called on as expert witnesses in trials associated with the incidents.

As Ioana Petrisor, Ph.D., environmental specialist at DPRA Inc., and managing editor of Environmental Forensics Journal, stated at the subcommittee’s meeting last June, despite the evolution of environmental forensics as a science in recent years (noted was the existence of degreed curricula, the formation of the International Society of Environmental Forensics, and a scientific journal), there is currently a lack of standardized environmental forensic procedures. These standards, if created through a credible process, will be important to the science for the reasons described in this article.

The community of stakeholders that are ready to develop the standards needs a solid foundation to achieve its goals. We decided to work with ASTM International because of its global recognition as a leader among standards developers. ASTM’s methods of obtaining consensus in the development of standards are rigorous, diligent and transparent. In short, an ASTM standard is credible.

The Need for Standards
The need for standards within the environmental forensic sector was a primary focus of discussion during Subcommittee E50.06’s organizational meetings, which were held in March and June 2005. The following background is from a paper published in the Environmental Forensics Journal.1 This summary explains the basis of much of E50.06’s planned activity.

In 1993, the United States Supreme Court issued its landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which made significant changes in the standards for admissibility of expert opinions in federal courts. The Supreme Court established a gatekeeping requirement under which courts must screen expert opinions for reliability and exclude “junk science.” The Court also established a new, more flexible test to be used in this process. These standards have now become better defined through their application by courts over the twelve years since Daubert, including a number of environmental cases.

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert opinions. The rule, in its original form, provided:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Daubert, the Supreme Court held that district court judges have a “gatekeeping role” to determine evidentiary reliability of scientific evidence before it is admitted and redefined the requirements for admissibility of scientific evidence under Rule 702.

Admissibility is based on a two-step analysis in which the trial court determines (1) whether the proffered expert opinion reflects scientific knowledge, whether the findings are derived by the scientific method and whether the work amounts to good science (reliability), and (2) whether the proffered expert opinion is relevant to the task at hand (relevance).

For the first step in this admissibility analysis, the Supreme Court provided a list of nonexclusive factors, which it characterized as “general observations,” which a court should analyze in determining the reliability of scientific evidence:

1. whether the scientific theory or technique “can be (and has been) tested”;
2. whether the scientific theory or technique “has been subjected to peer review and publication”;
3. “the known or potential rate of error”;
4. “the existence and maintenance of standards controlling the technique’s operation”; and
5. “general acceptance” in the “relevant scientific community.”

Subcommittee E50.06 intends to address points 4 and 5. Our specific goals are defined by the five task groups described below that are currently working on draft work items.

Subcommittee Scope
The scope of E50.06’s activity, as adopted by the subcommittee in its June 2005 meeting, is:

The development of standards for processes and technologies applied to judicial, private, and/ or administrative procedures. The activity will encourage research in this field and sponsor symposia, workshops, and publications to facilitate the development of such standards. The activity will promote liaison with other ASTM International committees and other organizations with mutual interests.

Task Group E50.06.01 is developing a Terminology for Forensic Environmental Investigations. Its members will research peer-reviewed literature and other published (and unpublished) materials to list and define the terminology used in forensic environmental investigations. Users of the standard, relevant associations, organizations, and entities with mutual interests will also be identified and asked to participate in the standards development effort.

Task Group E50.06.02 is developing a Guide for Use of Forensic Environmental Investigation Methodology. Despite the evolution of environmental forensics in recent years, there is an absence of standardized procedures outlining proper use of its most common methods. The legal context for developing a set of standards in the field of environmental forensics will be defined by this task group.

Task Group E50.06.03 is developing a Guide for Reference Materials/Guidance Documents. Its members will identify existing technical resources prepared by governmental, academic, and professional organizations in the field of environmental forensics.

Task Group E50.06.04 is working on a Guide for Qualifications, Experience, and Education of Professionals. The group’s focus will be on how to qualify an expert rather than on precisely what criteria will qualify an expert, with a view toward general guidance over specific requirements.

Task Group E50.06.05 is developing a Guide for the Determination of the Reliability of Environmental Forensic Evidence, which will show how to qualify the substance of an expert’s testimony.

Progress
Each task group is in the process of preparing drafts that are currently in the pre-ballot developmental stage. Subcommittee E50.06 has generated much support for its standards development efforts. As of January 2006 the group had 95 participants from nine countries (Belgium, Canada, France, Greece, India, Ireland, Nigeria, Peru, the United Kingdom and the United States). Since that time, our efforts have been heavily promoted through main Committee E50 and individual communications and our numbers are growing.

The subcommittee welcomes the participation of scientists, legal professionals, government, insurance, and industry representatives, and other interested parties from around the world. We will be holding virtual meetings online and encouraging as much international communication as we can. //

Reference
1 David G. Ries and Robert L. Burns, Jr. 2005. Expert Opinions in Environmental Litigation - Gatekeeping 12 Years After Daubert. Environmental Forensics 6(3), in press.

 
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