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United States v. Lightman

June 30, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JEROME LIGHTMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge:

HONORABLE JEROME B. SIMANDLE

OPINION

This matter is before the court on the motion of defendant Stepan Company ("Stepan") to strike a portion of the expert report of The Weinberg Group ("Weinberg"), which was retained by the defendant members of the Joint Defense Group ("JDG") *fn1 to serve as its allocation expert in this matter. Specifically, Stepan moves to strike Weinberg's modified allocation of responsibility for response costs at the Ewan and D'Imperio Sites. Because the court finds that Weinberg's modified allocation is based on speculation rather than on well-reasoned scientific analysis, the court grants Stepan's motion.

BACKGROUND

This is a civil action to identify the parties that should beat the cost of cleaning up environmental contamination at the Ewan and D'Imperio Superfund Sites caused by the illegal dumping of hazardous waste at the sites by the Lightman Drum Company ("LDC") in the mid- 1970's.

In connection with this litigation, the JDG retained Weinberg "to conduct an analysis regarding allocation of Superfund liabilities and potential costs at the Ewan and D'Imperio Superfund Sites." (Aronson Certification ("Aronson Cert."), Ex. A at 1.) In order to perform that task, Weinberg "reviewed and evaluated an extensive amount of information concerning the types and amounts of industrial wastes generated by members of [the JDG] and Stepan Company and disposal of these wastes at the Ewan and D'Imperio Superfund Sites by [LDC]." (Id.) Weinberg then created an allocation model based on the following assumptions:

(1) The approach used involves an assumption that both the volume and the characteristics of wastes assumed to have been deposited at the Ewan and D'Imperio Sites contributed to the costs associated with response or remediation. Waste streams with a high inherent hazard influenced placement of the Sites on the CERCLA National Priorities List and also affected the types and degree of remediation selected for cleanup of the sites (e.g., waste removal, groundwater treatment). However, the total volume of waste also influences the costs associated with each of the response actions undertaken at the Sites.

(2) The waste generators each produced one or more types of waste streams, and each of the waste streams contributed some hazardous substances and some volume of waste to the Sites.

(3) Characteristics of the individual waste streams differed to varying degrees; similar waste streams should be treated similarly in terms of contribution to overall remediation costs.

(4) A unit amount of waste with a high inherent hazard should bear a larger share of the remediation costs than waste with a low inherent hazard.

(5) A unit amount of waste that requires implementation of a more costly remedy should bear a larger share of the remediation costs than waste that requires a less costly remedy. (Id. at 1-2.)

The first step in Weinberg's methodology was "to characterize the individual waste streams contributed by each of the waste generators." (Id. at 3.) In doing so, Weinberg "relied on information produced by the waste generators during the discovery phase of this action, on expert reports characterizing the mobility and persistence of selected waste streams, on review of the scientific literature, and on [its] own professional experience concerning the content of waste streams from a variety of manufacturing operations." (Id.) Using this information, Weinberg then "calculat[ed] a numerical score to characterize the individual waste streams according to their relative inherent hazard and overall ability to affect remediation costs." (Id.)

This process included consideration of the quantity and toxicity of waste stream components and the mobility and persistence of the different waste streams. (Id. at 3-9.) Weinberg then assigned a percentage share of liability for remediation costs at each of the sites to the individual waste streams contributed by the waste generators. (Aronson Cert., Ex. A, at Tables 6 and 7.)

Finally, Weinberg proceeded to modify its initial allocation of percentage shares of liability for remediation costs at each of the sites to reflect "the effects that individual waste streams may have on other wastes also present in the disposal ...


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