Standard of Care

Reasonableness and Appropriateness of Response to Hydrochloric Acid Release

Peter Alvey, P.E.

Roux Associates, Inc. was retained by outside counsel for a scaffolding company to assist in litigation related to a hydrochloric acid release within a silicon wafer manufacturing facility. The release was caused by contractor personnel during dismantling of the scaffold when a cross-member fell and ruptured a pipe carrying hydrochloric acid. The released acid quickly reacted with plant surfaces causing a cloud containing chlorides to form within the plant. Due to the sensitive nature of the silicon wafer manufacturing process, a concern was raised by the plaintiff regarding the potential chloride contamination. Roux was asked to opine regarding the reasonableness and appropriateness of the investigation and response to the resulting residual chlorides within the plant.

Roux opined that the consultant retained by the plaintiff to respond to the release had not properly characterized the residual chlorides. They had misused and misinterpreted the test method and resulting data. In addition, the consultant did not perform adequate background testing and also devised an inappropriate cleaning protocol. Roux concluded that more than 75% of the costs claimed for investigation and response activities were unreasonable and/or inappropriate. Roux prepared an expert report was deposed and the case settled prior to trial.

Compliance with Safe Drinking Water Act

Neil M. Ram, PhD, LSP, CHMM
New York

Roux Associates was retained by the U.S. Attorney’s Office for the Southern District of New York to review and evaluate the actions undertaken by a municipal water district in New York State to meet the regulatory requirements and compliance deadlines of the Long Term 2 Enhanced Surface Water Treatment Rule (“the LT2 Rule”), which was promulgated to reduce disease incidence associated with Cryptosporidium and other disease-causing microorganisms in drinking water. Based on our review and evaluation of the actions undertaken by the water district, Roux Associates (1) provided opinions regarding the adequacy and timeliness of the water district’s efforts to achieve compliance with the LT2 Rule, (2) performed an evaluation of several engineering alternatives considered by the water district to achieve compliance with the LT2 Rule, and (c) identified interim measures that could be undertaken by the water district to achieve partial compliance with the LT2 Rule pending construction of the selected alternative. An expert report was prepared and depositions were taken, but the parties subsequently reached agreement on the terms of a consent decree and the case was resolved prior to going to trial.

Analysis of Phase I Assessment

Peter Alvey, P.E.

Roux Associates, Inc. was retained by a major financial services company to assist in litigation regarding the failure of mortgage-backed security. At the heart of the failure was the default by an owner of a shopping center, built over a former landfill, on a multi-million-dollar mortgage. Roux was asked to determine whether the Phase used in the securization met the requirements of ASTM 1527-00 and ASTM 1527-05, the published standards for the performance of Phase I assessments.

Roux concluded that the consultant that prepared the Phase I had failed to identify all issues at the site which met the ASTM standard definition of Recognized Environmental Condition (adverse environmental conditions at the site).

Roux has prepared and expert report and provided deposition testimony in this matter. The case is awaiting trial.

Industrial Facility

Neil M. Ram, Ph.D., LSP, CHMM

Roux Associates provided opinions about the historical practice and standard-of-care associated with the design, construction, operation, and closure of an industrial surface impoundment historically used to receive wastewater discharges from a manufacturer of adhesives and other chemicals. Roux Associates also opined as to whether or not facility personnel could have anticipated that operation of the surface impoundment would result in groundwater contamination.

Roux Associates determined that historically, there was a continuum of knowledge about the association between disposal of chemicals in surface impoundments and groundwater contamination. However, it was not until later that industry began to widely recognize that that disposal of chemicals in unlined surface impoundments could result in groundwater contamination.

Given the above, Roux Associates opined that facility personnel had taken reasonable care in the design and construction of the surface impoundment. More specifically, inclusion of a liner and/or leachate collection system was not common knowledge or common practice in the historical period when the surface impoundment was constructed. Therefore, based on the state-of-knowledge at the time, it was reasonable for plant personnel to design and construct an unlined surface impoundment as a means of treating its process wastewater. Moreover, because it was not widely known that such design and construction had the potential to contaminate underlying groundwater, Roux Associates opined that facility personnel could not have anticipated that operation of the surface impoundment would result in groundwater contamination.

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