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Photo Documentation of Frac Sand Mine Surface Water Spills

by mlamadrid | about 1 month ago | 0 | 0

By Lee Boland for Community Science Forum: Water Photo: North and East Branches of Running Valley Stream, demonstrating turbid water from a sand mine stormwater breach along the North Branch.

From town, we followed the Eighteen Mile Creek discoloration 2.5 miles upstream to where it branched with Running Valley creek and finally to the southern edge of the Enron Oil & Gas (EOG) mine, taking photographs of the turbid water from public roads. One or more settling ponds in the mine had obviously been breached...”

The industrial sand mining industry in western Wisconsin increased dramatically with the rise of the U.S. natural gas and oil market, as sand is used as proppant in hydraulic fracturing. This “frac sand” mining includes blasting through sandstone hillsides and crushing, sorting, settling, and transferring sands off site through truck and rail. Wooded hillsides become barren, leaving scars of earth open to erosion, and mounds of sand and silt exposed, producing windblown dust and sediment-laden stormwater runoff.

On September 8th, 2014 an intense rainstorm occurred near Colfax, Wisconsin; four inches fell in three hours on an area that included a frac sand mine. Within several hours the creek running through town – 6 miles downstream of the mine – was the creamy color of colloidal clay. From town, we followed the Eighteen Mile Creek discoloration 2.5 miles upstream to where it branched with Running Valley creek and finally to the southern edge of the Enron Oil & Gas (EOG) mine, taking photographs of the turbid water from public roads. One or more settling ponds in the mine had obviously been breached so that the glauconitic clay suspended in the pond water or stored in the mine’s spoil piles had been released into the streams. Since this now-idle sand mine had no onsite washing plant, its raw sand was trucked 16 miles to a washing and drying facility near a railhead where the saleable sand was loaded into railcars. Then, 30% of the raw sand comprising clay and other waste products was trucked back to the mine spoil piles, where it still contributes to the stormwater sediment runoff.

Both creeks near the mine are Class II trout streams. Both ran creamy for more than two weeks. This caused a lot of concern for the health of the trout habitat there and for the general fisheries downstream in the Red Cedar River and Tainter Lake. The people who have regularly monitored the two trout streams for years for temperature, turbidity, rate of flow, macroinvertebrates, and oxygen content monitored them again soon after the spill event. They found that at the Running Valley site the stream bottom was definitely higher than before, and walking in it was like walking in billowy powder. The new material was sticky clay that covered the native sand/gravel streambed, where trout need to nestle their eggs. The Wisconsin DNR said that Running Valley Creek had been tested for Total Suspended Solids after the spill and the TSS count exceeded 1200 milligrams per liter (mg/L). The permissible level is 40 mg/L. Such turbidity seems not to have bothered the Wisconsin DNR: No citations were issued. The WDNR representative said nothing illegal had occurred.

image description

On July 6th, 2015 another large storm occurred in the same area. Again the two creeks ran cream colored. Although the North branch of Running Valley Creek was colored brown by farm field erosion, it cleared up one day later. The East branch flowing from the EOG mine remained creamy for several more days. The WDNR stormwater regulator dismissed the possibility of the mine having turbid runoff because mine personnel had given him a tour the day following the event, showing him that a settling pond overflow riser had been balloon plugged so that “no water could escape,” despite there also being several other ponds scattered around the mine property. He concluded that farm field erosion was entirely at fault, though no row-crop fields open to erosion existed anywhere along the East branch of Running Valley Creek, he had interviewed no farmers, and he had not contacted the citizen stream monitors. At least Enron Oil & Gas took the matter seriously: a huge new settling pond structure was built in 2015. It was designed for a 500 year storm event. County regulations require a 100 year rainfall design while the DNR requirement is for a laughable 10 year event. It should be noted that 100 year (+) rainfall events have happened here several times in the past five years.

On September 21st, 2016 it happened yet again: 5.5 inches of rain fell in approximately two hours during the night. By noon we were visiting the place where the North and East branches of Running Valley Creek merge, taking photographs of the confluence from a nearby road (see photo). The giant new settling pond had done its job; the East branch was running clear. This time the North branch was cream colored. The northwestern corner of the mine contains a surface water pond and a number of raw sand stockpiles. While it would have required trespassing to photograph this area of the mine, aerial photos and a flyover suggested that a breach had allowed clay-laden water to escape west into the North branch of Running Valley Creek.

This mine is a classic example of how problematic frac sand mining is. Even though EOG attempts to be a good operator, when 250 acres of steep terrain are totally eviscerated, it’s no surprise that bad things can and do happen with surface runoff and hydrodynamics. Stream-cooling seeps and springs disappear, and such an expanse of denuded sand strata opens a “Pandora’s box” of possible water problems. For instance, when aquitards are destroyed, percolation rates accelerate. When nature’s filtering layers are removed or processed such that they’re exposed to oxygen, acidification and leaching can occur. It would be hard to find a more porous and vulnerable strata than the nice white Wonnewoc formation which is being laid bare in a hundred sand mines. The groundwater aquifer lies right below the Wonnewoc, endangering people’s well water.

And then there’s the problem of mine reclamation. The mines have been idle for a long time now. Little supervision of them is happening. Almost no reclamation has been completed. Will they ever be reclaimed and by whom? The rains won’t stop.

Lee Boland is a Master’s level Civil Engineer, registered as a Professional Engineer for 52 years. He and his wife Katherine Stahl live on 360 acres of woodland across the fence from a proposed 1310 acre mine.

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Citizen Science Investigations: aka ‘Common Legal Issues when using Community Sourced Data’

by lenagd | 2 months ago | 0 | 2

Image obtained at: http://www.thebluediamondgallery.com/wooden-tile/images/evidence.jpg

Lena Golze Desmond is an associate with Feller Law Group (www.feller.law) based in Brooklyn, which specializes in energy law. She is the lead collaborator of 'Law for the Environmental Grassroots,' (www.lawforenvgrassroots.com) an initiative focusing on expanding grassroots access to legal resources. She's a NYCELLI (New York City Environmental Law Leadership Institute) Board Member, an Environmental Leadership Program Senior Fellow, and managed to keep almost all of her houseplants alive this year!

This is part of Public Lab's 'Environmental Evidence' blog series - an examination of the ways in which the law and the legal system are helpful and harmful - for communities and advocacy groups seeking to use community-sourced data to activate change. 'The Law' can be an incredibly powerful tool for holding polluters accountable, but it is often overly complex, costly, and slow to respond to changing circumstances.

In this three-part blog, Part 1 will look at how the system currently works (and doesn't work). Part 2 will discuss common hurdles in using community-sourced data. Part 3 will focus on emerging trends, as well as ways in which community and advocacy groups can help shape the discussion of who gets to participate in the scientific process.

PART ONE: How it Should Work

Part 1 of this three-part series will give an overview of how citizen science and community- sourced data ("community data") should work in the legal realm, as well as issues that can negatively affect that process. It walks through the best-case scenario of using community sourced data to address a problem, from identifying the issue to using the legal system to redress it.

Step 1: Identifying the Problem

Maybe the movement starts with a bad smell and oil in the water. Reports of kids getting sick, or a decline in a certain species [1]. Perhaps it's part of an ongoing project, or even a positive trend: monitoring cases of asthma; documenting a return of life to a once-barren field; an increase in community gardens. Whatever the situation, the goal is to gather data to a) better understand what is going on and b) use that data to advocate for some action, whether it's cleaning up polluted areas or continuing a successful policy.

Step 2: Gathering the Evidence

Access to the tools to monitor and address threats to our environment and communities has generally been limited to 'professional' scientists or well-funded companies and research institutions. However, as groups (like Public Lab!) have been working to create easy-to-use and more affordable tools, we have seen an increase in the methods that are available to collect data and the types of private citizens engaged in data collection.

On one end of the spectrum is "citizen science" [2]. Citizen science often uses professional tools and equipment (loaned by professional scientists running the study), or involves basic observations that don't require equipment (e.g. bird counts), using studies designed by scientists. It may be well-funded, or include university and government agency partners. In the case of the water pollution identified in Step 1, a citizen science project might involve funding from a local university, and use metrics designed by a scientist.

On the other end is the emerging movement of "community science." With community science, data is usually collected by the public using low-cost means, such as low-cost (and low-quality) commercially available particulate matter sensors, or DIY tools, or basic photography. It is generally designed and conducted by community members [3]. For example: the local environmental justice coalition ("EJ for All") notices continuous dumping of what looks like hazardous waste in the river. One member obtains photographic evidence of the waste coming out of the pipeline located on the property of a manufacturing company (let's call it "Shady Business LLC"). The group then works with community volunteers to measure indicators of water quality (such as conductivity or turbidity) near the site of the discharge as well as downstream, upstream, and nearby tributaries to get a sense of the magnitude of the harm.

Regardless of the group and method, the goal is usually to gather the data so that a) conclusions can be drawn that b) are of a sufficiently high quality and c) use that data and those conclusions to be able to effectively address the issue.

Step 3: Turning Evidence into Action

After having gathered data, the next step is to use the data to prompt action. This 'action' can take many forms: publishing the data to a newspaper to raise awareness; submitting to a governmental agency or scientific institution; pressuring politicians to act. Another option is to use the legal system to force the polluter to stop what it's doing, or take steps to fix the problem.

Environmental litigation is very broad in scope. Each state has different rules, as does federal regulation, and it is difficult to neatly categorize them. That said, there are generally four types of legal action that are used to address environmental pollution (listed in order of prevalence):

  1. involvement in agency decision-making or petitioning for judicial review
  2. using 'citizen suit,' provisions in legislation (like the Clean Air Act and Clean Water Act) to bring a suit against the alleged violators [4]
  3. bringing public nuisance suit against someone engaged 'unreasonable' action [5]
  4. filing 'toxic torts' and civil lawsuits based on injury caused to someone from the pollution [6].
Type of Action /Characteristics Agency Decision-Making OR Petitioning for Judicial Review Citizen Suits Public Nuisance Toxic Torts
How to Initiate ADM: During Public Comment Notice period;PJR: Depends on the statute of limitations, but usually must file claim within appx 3 months File Notice of Intent to Sue and serve on required parties File lawsuit in civil court (usually state) File lawsuit in court (state or federal) |
Parties Individual Commenters State/Federal Agencies Plaintiff Alleged Polluter State Environmental Agency Plaintiff Alleged Polluter Plaintiffs (often Class Action) Alleged Polluter Insurance Companies |
Legal Standards - Generally Arbitrary & Capricious (i.e. there can be no reasonable explanation for action of agency) Need to make sure that the law/legislation authorizes citizen suits (it is usually explicitly stated in the text) A substantial and unreasonable interference with rights common to the general public Federal Rules of Evidence |
Legal Standards for Evidence Agency must consider comments, but has discretion over how much weight to give them Varies by state and by authorizing legislation; agency also has a certain amount of discretion in deciding whether of not to pursue action The relevant state rules governing evidence Federal Rules of Evidence401701702703 |
Duration During Comment Period: depends on agency, but usually 60 daysIf suing agency for its action: depends on specific state/federal statute of limitations. Initial response (from state environmental agency): 10-30 daysIf agency decides not to assist and community continues on its own: 30 days -- 1 year Less than 1 year Years |
Cost During Comment Period: no cost -- low costIf suing agency for its action: cost of hiring attorney and filing motions If agency decides to pursue: limited cost for individual plaintiffIf agency decides not to assist and community continues on its own: $1-15K Main cost is usually cost of attorney and cost of presenting evidence Some cases are on a contingency basis, but can go into millions |

Agency Decision-Making / Petitioning for Judicial Review

Participating in agency decision-making (e.g. writing or vocalizing a public comment) is often one of the easiest and most cost-effective entry points for individuals. The Environmental Protection Agency, as well as most state environmental agencies, are required to solicit public comment whenever considering action (or inaction) that might have an effect on the environment [7]. For example, when New York's Governor Cuomo was considering whether or not to allow fracking, the New York State Department of Environmental Conservation received a record 200,000 public comments [8]. The Governor ultimately decided not to permit fracking in New York.

It is also possible to sue an agency or official for certain actions or inactions (petitioning for judicial review). While the rules are different in every state, an individual can challenge the decision of an agency to, for example, grant or deny a permit, amend rules, or issue a determination. However, the person(s) challenging the action generally have to show that the action was 'arbitrary and capricious,' meaning it did not follow logic and was made 'on a whim,' which is a pretty high bar to meet. Thus, if the agency/official can offer any reasonable explanation, the court will commonly defer to that explanation.

Citizen Suits

Some environmental legislation, notably the Clean Air Act and Clean Water Act, have so-called 'citizen suit' provisions, which allow private citizens to sue alleged violators of those laws. For example, the community group EJ For All decides to activate the 'citizen suit' provision of the Clean Water Act to stop Shady Business LLC from dumping waste into the river [9]. It provides the required notice of intent to sue to Shady Business as well as the state environmental agency. It also provides the agency with the photographs it took and water data it collected.

Public Nuisances

Public nuisance lawsuits are helpful for when there are no specific regulations prohibiting the conduct. In these suits, a judge can determine that the action is so unreasonable, the interference so substantial, and the relative 'utility' or worth of the conduct insufficient to merit the continuation of the action. However, for public nuisance suits, the plaintiffs have to show not only that the action is causing harm to the general public, but that they have suffered a unique harm. For example, if a factory spills toxic waste into a local public field -- that is harm to the general public, but only people who have been actually harmed -- their child became ill -- would have the 'standing' to sue. Public nuisance suits can be for money, but the goal is often to get the polluter/nuisance-maker to stop with the nuisance.

Toxic Torts

The final category -- toxic torts and similar litigation -- is the most expensive and time-consuming, which is why it is also, unsurprisingly, the least common. In these types of litigation, plaintiffs who have suffered harm because of the pollution sue the company responsible. Part 2 of this series will examine why these kinds of cases are especially unfriendly for community-sourced data.

In our case, the state environmental agency considers the evidence submitted by EJ For All, and determines the company did violate effluent limitations. It issues a penalty to Shady Business LLC. Hit where it hurts, the CEO Ronald Drumpf [10] orders the company to stop dumping in the river. The water quality returns to normal, kids are allowed to swim again, and all is well.

General Conclusions

That's how it's supposed to work. But community activists know all too well how often it doesn't happen that way. How often there's not enough time or money to do the research, to access the proper tools, to get people to listen, to afford attorneys, or how to influence the media, the government, the legal system. The next section gives an overview of obstacles that groups often face when trying to address an environmental issue in their community.


End Notes

  1. https://ccsinventory.wilsoncenter.org
  2. There is no one agreed-upon definition of 'citizen science.' Cornell's Orinthology Lab uses the working definition of projects in which volunteers partner with scientists to answer real-world questions. The White House, in its 2015 Memorandum on Citizen Science describes it as actions where "the public participates voluntarily in the scientific process, addressing real-world problems in ways that may include formulating research questions, conducting scientific experiments, collecting and analyzing data, interpreting results, making new discoveries, developing technologies and applications, and solving complex problems."
  3. Dosemagen, S, and G. Gehrke. 2016. "Civic Technology and Community Science: A New Model for Public Participation in Environmental Decisions." In Confronting the Challenges of Public Participation: Issues in Environmental, Planning and Health Decision-Making (Proceedings of the Iowa State University Summer Symposia on Science Communication). Edited by J. Goodwin. Ames, IA: Science Communication Project.
  4. https://www.law.umaryland.edu/about/features/feature0012/faq.html
  5. Rest 2d. Torts § 821B (1979).
  6. https://en.wikipedia.org/wiki/Toxic_tort
  7. https://www.epa.gov/nepa/how-citizens-can-comment-and-participate-national-environmental-policy-act-process
  8. http://www.ecowatch.com/new-yorkers-deliver-unprecedented-200k-comments-on-cuomos-fracking-rul-1881682190.html
  9. Under 33 U.S.C. 1365 of the Clean Water Act.
  10. No relation, of course.

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Environmental Protection Belongs to the Public: A report for EPA on the role of citizen science

by Shannon | 2 months ago | 3 | 4

Cross-posted from the Citizen Science Association blog co-written by Shannon Dosemagen (Public Lab) and Alison Parker (ORISE Fellow hosted by EPA).

In 2015 EPA charged the National Advisory Council on Environmental Policy and Technology (NACEPT), an EPA advisory council, with developing a set of recommendations about the transformational opportunities of citizen science, including strong links and partnerships with citizen and community citizen science organizations. The Council’s 28 members, representing academia, business and industry, nongovernmental organizations, and all levels of government, have been working for the last year to provide EPA with advice and recommendations on how to integrate citizen science into the full range of work of EPA. After exploring a diverse range of citizen science approaches, the advisory council concluded enthusiastically that citizen science is an invaluable opportunity for environmental protection and the best way for EPA to connect with the public.

On December 13th, the council transmitted a report to EPA titled Environmental Protection Belongs to the Public: A Vision for Citizen Science at EPA outlining thirteen specific recommendations for EPA.

Four top level recommendations guide the report; these recommendations encourage EPA to 1) embrace citizen science as a core tenet of environmental protection, 2) invest in citizen science for communities, partners and the Agency, 3) enable the use of citizen science data at the Agency and 4) integrate citizen science into the full range of work of EPA. Within these categories, NACEPT recommends that EPA commit to providing feedback to community citizen science organizations, lower technological barriers, identify data uses for the whole spectrum of citizen science work, and take a collaborative approach to enhance ongoing work by the citizen science community. These recommendations provide a model for how local, state, and federal government can support and integrate citizen science fully and proactively.

As co-editors of this report, we’re excited about the conclusion - from the diverse perspectives that make up the NACEPT council - that citizen science is a strong future direction for environmental protection and can enhance the full spectrum of Agency activities. The Council encourages EPA to become more engaged with citizen science activities and projects happening outside of the Agency and we view the Citizen Science Association as a great resource in understanding the landscape of important work. There are many opportunities for EPA to embrace the conclusions of the report and support citizen science for environmental protection. We look forward to increased engagement by the EPA in the broad landscape of citizen science.

If you have responses and/or comments on the NACEPT report, please direct them to citizenscience@epa.gov and Green.Eugene@epa.gov.

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What fuels a movement?

by stevie | 3 months ago | 0 | 3

Lead image of protesters protesting the Pet Coke Piles on southeast side of Chicago. Image found on the Public Lab Chicago page.

Passion alone is not enough - we need to be great organizers

Thanks to Olga Bautista for the title of this blog post, please read on for the transcript of my interview with her.

I’ve been thinking a lot about Public Lab’s relationships with community organizers and local grassroots environmental groups. Over the years, there have been a number of people and groups who have put “boots on the ground” and conducted local environmental research projects. Many of them have worked to create physical space and events in their community for Public Lab gatherings. Yet the stories of their work come back to the broader Public Lab community through word of mouth rather than through these activists directly engaging with online spaces. Ultimately, in my opinion, if we’re seeking Public Lab to become a space for people to collaborate on and publicize their environmental projects, these on-the-ground people are who we should be thinking of and creating both our in person and our online spaces for. I want to start learning more deliberately from some of these community organizers about what is working, what could be better, and how can we amplify the things that they want to be heard.

To kick off this exploration, I had a phone call with Olga Bautista. I’ve known Olga for about a two years. She is a rock star community organizer. She (and Benjamin Sugar) were the driving forces behind the second Regional Barnraising in Chicago. For years now, she and her group, Chicago Southeast Side Coalition To Ban Petcoke, have been working to fight the petroleum coke piles in their community that sit directly in their neighborhood and on the Calumet River. Due in large parts to their activism and efforts, these piles were just recently moved from their community.

It had been a while, so I wanted to catch up, hear what has been going on, how they’ve been doing, and see if I could explore some of the questions I’ve been having about the Public Lab space with her. Below is an excerpt of our conversation. Olga was kind enough not just to give me some advice about the questions I’ve been floating around, but to really give me a low-down on things that have been useful for her on an organizing level in the past year as well. Thanks Olga! Here’s the transcript:

Olga.jpg

Olga Bautista, of the Southeast Environmental Task Force and the Southeast Chicago Coalition to Ban Petcoke. (Photo by Terry Evans / Courtesy of Museum of Contemporary Photography)

How have things been going?

Things are changing for the better, but we need more people, and we need to be intentional about building more leaders who can take on more of the work. It’s important that we’re deliberate in who makes the decisions. We don't want the big greens or other advocacy groups to speak for us because we know exactly what would make our lives better.

What are some of the challenges you have been facing lately?

It’s complicated figuring out who are the other players on the playing field and plowing through anyway. It’s also hard to not get discouraged. There are a lot of groups who work on the issue, people who break off forming other groups, and we end up competing with others who are working on the same issue.

What are some of the things that have been important in your successes?

It’s really important to plan and evaluate everything. For example, before meetings we talk about what we want to achieve, after we talk about what has been decided and we check in with everyone about how they feel it went. We’ve been starting to use this methodology that really centers us and we have been doing things this way for about a year. It's organized, and it has helped us work hard and be really intentional about everything we do.

Some of the things we practice are that:

We make a point to sync up in the beginning and at the end of every meeting, to see how we feel about the work we did. We have a vibe watcher at our meetings, when you have that kind of order, it makes everyone feel comfortable that they're getting heard. We’re also really well prepared before meeting. Leaders will set the agenda ahead of time and send out materials. Everyone is expected to have reviewed everything prior to coming to the meeting.

It’s really professional. We’re grassroots organizers in a working class community, and we’re really figuring this out and it’s working.

What has been challenging for you?

Some of the things in my case that have been difficult, are things like managing time and calendars. We have so many different challenges, linking them up and planning time to reflect on the work that we're doing is tough. I'm not able to carve out enough time for this. It's easier for me to go to a meeting than carve out time in front of a computer. Because I’m a mom, I’ve got these other responsibilities and pressing things that take up my time.

Another challenging thing is that if you're an organizer that lives in an affected community, it’s different than if you live in a different neighborhood. If you live somewhere else you can separate out your life. I run into people just going to the grocery store, people who ask me questions about emails or who get mad and are violent to me about the work I do with the coalition, and I’m just trying to pick up a jug of milk!

How has your work and relationship been with Public Lab?

With Public Lab, I talk about you guys all the time. All your ears should be ringing, because it's part of the message. Public Lab is an extremely important part of the petcoke fight. Balloon mapping was absolutely important. To see everyday people get together and gather this extremely important data without having to get in a plane. We literally had an entourage following us sometimes.

As a community organizer, what are some things you need or look for when you start to work with other groups or organizations?

One group I’ve been working with lately that has helped a lot with some of these community trainings had stipends for me to do a week long organizer training. This made a huge difference. I’m looking for support in things like grant writing, and groups who collaborate with other agencies and foundations who might be able to help us fund the work.

What’s coming up for you in the near future?

In the next three weeks, we’re working to develop a door knocking campaign. It’s something we haven't done since we started, but we really want to do this again. We need to find new leaders. We need to figure out who is serious, have a plan for those people to go to training and learn about things like structural racism, and structural oppression. These are ideas that we know and feel their affects everyday. Some people just don't know there is a name for it.

What would tell others who are just getting into Environmental Justice issues and community organizing?

There are so many things to learn and practice:

1) Skills to be efficient and effective are not just common sense, you need co-conspirators in your group who are on the same page and you need to practice those skills.

2) Nobody told me that the work is based so much on relationships. You have to develop relationships with people. I’m doing a lot of one-on-ones now, which some of us get trained on. Things like: when you meet someone for the first time, you don't end the conversation with an ask. Those are some of the things we have been learning.

3) It’s slow process and can't be rushed. This is difficult for me. We have deadlines. We have comment periods coming up, having regular expectations of each other that we need to accomplish. I always have feelings like I’m not able to follow through or i’m not depending on other people enough.

4) Getting the people on the same page with you that's difficult, that's the relational part. People have to take on the work fully. Everyone I talk to, they have to do it for themselves, not for me.

5) People on the ground, we need to have exit plans for things that we are committed to that are not going anywhere and take things off our plate instead of put things on.

-- End transcript --

I learned so much from this conversation with Olga. I’ve been really inspired by the work she does and what the group has been able to accomplish. While I can start to see some future directions come out of this conversation on the questions I had, I don’t want to jump to conclusions until I have a few more conversations and things to draw from. I would l love to hear if you have ideas on this topic, or if you know anyone I should share this conversation with. Let me know who in the comments below or email me at stevie@publiclab.org. Looking forward to it!

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Interview: Chris Nidel on environmental evidence in court

by warren | 3 months ago | 0 | 5

A few months ago, as our first interview for the Environmental Evidence Project blog series (#evidence-project), we caught up with Chris Nidel, an attorney with Nidel Law, PLLC, based in the DC area. Lead image: satellite images of waste at a Maryland Perdue chicken farm from a case Chris fought in 2012.

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As Chris writes in his bio, he's been involved in environmental law for a long time, starting shortly after getting a Master's in Chemical Engineering at MIT:

After graduate school, I went to work for a major pharmaceutical company doing drug process development. After a few years, I became disillusioned with the approach that the pharmaceutical industry, including the company I was working for, took toward putting profits over saving lives.

...

The combined realization that this company seemed more concerned about profits than creating cost-effective lifesaving medicines and that they seemed to care less about the illness and death that they were responsible for in their own right, forced me to leave. I went directly to law school at the University of Virginia. After graduating, I relocated to Dallas, Texas so I could work on major environmental and toxic tort litigation with the late Fred Baron at his firm Baron and Budd.

In the years since, Chris has worked at different firms and eventually started his own, and has been part of cases involving "cancer clusters, unsafe landfills, and air and groundwater contamination", and "air pollutants from TVA's coal fired power plants in Tennessee, Kentucky, and Alabama."

With all he's seen and done in environmental law, we wanted to ask some general questions about how evidence is used in court, from a pragmatic, real-world perspective.

I get this question all the time, where somebody says "how do I take samples that'll be admissible in court" -- and unfortunately, there's no right answer. ... I've had defendants in cases challenge EPA's own historical sampling. So you can have EPA scientists take samples and send them to whatever lab they feel is the appropriate lab to do the analysis, with whatever certification they have, and then the big company still comes back and say, "well, we don't believe those sample results. So while there is no silver bullet, the key is the reliability and ultimate credibility of the results. If the sampling and analytical methods are defensible...the data should be admissible"

Chris is realistic about the shortcomings of the current system, and emphasizes that you can never be 100% sure that evidence will be admitted, or that it will be effective:

Any time there's a legal argument in a court, there's always a chance that you'll lose it. If somebody said to me, "I want make sure I'm guaranteed that these samples -- or this evidence, or data -- is going to get admitted into court, I would be a fool to say, "sure, here's what you need to do guarantee it," because there's no guarantee. If you file a case against Monsanto, and the judge happens to play golf with the vice president of Monsanto, you may not be able to get those samples in. These issues may be out of your control and are independent of who did the analysis, and what qualifications they have, and what protocols they followed.

Data without advanced degrees

Chris has, however, worked on a case with Waterkeeper Alliance where samples were collected, stored, and managed by someone without a formal scientific degree. In this case, the person collecting samples was member of the local Riverkeeper organization and was an environmental advocate, but did not have extensive scientific training. Rather, she had a web-based certification for water sampling. According to Chris,

...the more important thing was that she actually followed a protocol. She got sterilized sample bottles from the lab, she wore sterilized gloves when she took the samples ... she filled out the chain of custody, she took it to the lab within the specified amount of time, she kept the cooler on ice, whatever was needed. And that was it. She took it to a lab, and they followed certified protocols. We didn't hire an engineer, or a chemist or a biologist to go out there and we didn't need to.

Due to this sampling protocol and detailed chain of custody, and since the laboratory followed an established analytical protocol, the samples were admitted as evidence in court without issue. In fact, the validity of the samples themselves wasn't even questioned in this case. Demonstrating the use of well-documented and rigorous methods can sometimes be sufficient for samples and data collected by non-accredited persons to be accepted as court-admissible evidence.


Clearly, there are nuances to this, and even without a cookie-cutter approach, there are pathways for people without a scientific degree to produce knowledge in ways that can be legally recognized. But that's what can be so frustrating about this topic -- it's not a clear set of rules you can just follow, and even if you follow what rules there are to the letter, you're still not guaranteed a result.

Expert witnesses

The example above specifically deals with samples that were analyzed later in a lab. What about other pathways? Many, it turns out, involve some kind of expert witness to authenticate, or essentially vouch for, the evidence. The judge or jury, who may not have relevant formal backgrounds to evaluate the evidence, won't be, as Chris puts it, "sitting there trying to speculate as to why they should believe one over the other" -- they'll rely on experts for that sort of thing. But who chooses the experts?

The problem with those experts are they are going to be paid by both sides. Clearly, they're going to have an opinion that's in your favor, and the other side is going to come in with an opinion in their favor, and... if you thought the DNC was bad, that's the sausage being made.

Not to mention -- what qualifies someone to be an expert in court? How much do expert witnesses tend to cost, and what happens if one side or the other can't afford an expert witness? We hope to circle back to this question in a later post.

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Chris spoke at our June 6 OpenHour online panel on the topic of "Concepts of Proof" -- where he discussed his use of aerial photography in pollution cases. Watch the full video here.

Photographic evidence

Looking for a way through the thicket, we were really interested in photographic evidence, and how it might be different -- does it require expert authentication too? Chris said that it depends:

What conclusions or facts are you trying to establish? In our PCB case we used a lot of historic aerial photos... and EPA had an aerial photo lab assess the pictures -- here are barrels, etc, here are contours.

So interpretation by experts can enter into it. But what's most important is how it fits in with, and can relate to, other supporting evidence. One key aspect appears to be whether or not understanding a given piece of evidence is common knowledge, or if it requires certain training and experience to understand the implications of that evidence. Chris talked through a scenario we mentioned in #OpenHour about a photograph taken by a crane operator, who documented a plume of suspected pollution in a nearby waterway:

If you just put the guy in the crane on the stand, and you say, "You were up in the crane, you took these pictures. How did you take them? On what day? What were you looking at? Explain to us what direction you were facing when you took the pictures." [Because] the guy who sat in the crane who doesn't have any background, you probably don't get anywhere with it. You get the fact that there are pictures; you might even get them admitted. You might get the jury to be able to draw their own conclusions:

"I took the picture, I was on top of my crane, it's about 200 feet up, I was looking at the South Bay and this is what I saw."

The jury can look at that picture and they can understand that. Everything is good up to that point. Now, "I think this looks like a bunch of chromium was thrown into the bay. I'm just a crane operator, [but] my conclusion is that a bunch of chromium was going on in the bay that day."

That probably doesn't fly because neither the guy in the crane or the jury could conclude that it's necessarily chromium. On the other hand, if you can get that in front of the jury and the judge says, "I don't know that Johnny in the crane can tell us it's chromium, but I think it's admissible," and the jury could make their own deduction that there was chromium because you have other evidence. Let's say that you have evidence of what was in the barge from which the plume was coming. Now we have test data that shows that the barge was full of chromium, and now you have a photograph from Johnny in the crane that looks like a bunch of stuff is coming out of the barge, ergo, the jury decides chromium came from the barge.

You can also hire an expert and then the question would be does that expert have something that will help the jury themselves that the jury doesn't have without the expert? The expert comes in and says, "I've seen lots and lots of chromium discharges from power plants and I know what chromium looks like when it gets discharged, and this is clearly a chromium discharge." Then you get at it that way as well, and that's probably the typical way to do it, albeit the expensive way to do it. You hand off those pieces of evidence to someone else to draw the conclusion that you want to draw for the jury.

Given the complexity and uncertainty of the law as it plays out in court, we found it very helpful to hear about specific cases and examples. It seems that permissible and influential evidence is in the eye of, well, many beholders. While sometimes it may depend on internal, potentially invisible relationships between a judge and the case at hand, other times it's about walking a jury through enough solid testimony for them to draw conclusions about the value of the evidence themselves.

There are a few things we have learned to that can help us strengthen our cases as potential curators of evidence. We can make sure we're following existing protocol, as seen in the Riverkeeper example. We can also secure supporting evidence for our claim, such as seen in the crane operator example where supporting evidence could come from a lab or an expert witness.

Our hope is that in that the posts to come, more of these pathways to success, and limitations around evidence, are teased out. In the meantime, let's continue these discussions here and ping in with your questions and ideas. Thanks to Chris for making time to talk with us!


Questions

Questions we've addressed here:

  • How is environmental evidence admitted into court-based legal processes?
  • What can strengthen the case for evidence to be admitted in court?
  • Who can vouch for, or interpret, evidence in court, and how is it weighed?
  • Is photographic evidence treated differently from other environmental evidence in court?
  • ...

Questions we'd like to address in upcoming posts:

  • What collection, storage, and analysis protocols can strengthen environmental evidence in court?

We're moving these questions into the new Questions system -- so feel free to repost one here:

Ask a question about evidence

Title Author Updated Likes
Who can vouch for, or interpret, evidence in court, and how is it weighed? @warren 3 months ago
What are the limits to what can be interpreted from a photograph without an expert witness? @warren 3 months ago
What are ways to strengthen photographic evidence in court? @warren 3 months ago
What's the best way to archive/store a timelapse video? @warren 5 months ago

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