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Abstract

This presentation will focus on the City of Wichita’s largely failed efforts to collect its response costs for remediating the Gilbert & Mosley Site (“Site”), one of the premier Brownfield redevelopment models. In City of Wichita v. Trustees of the Apco Oil Corporation Liquidating Trust, 306 F. Supp. 2d 1040 (D. Kansas 2003), the Court held that if properly used, computer models are invaluable in estimating the size of overlapping contaminant plumes. Both parties used computerized groundwater modeling to determine the plume sizes allegedly migrating from each source, and mathematical computations to allocate orphan shares within the Site. Both parties agreed that where plumes overlapped, the overlapped area should be divided by the number of PRPs whose plumes contributed to the overlap. However, the parties then parted ways. The City proposed two allocation models; the Trustees evaluated six allocation models. The City’s groundwater modeling expert modeled parent CVOCs for some sources, and daughter CVOCs for others; the Trustees’ expert modeled parent CVOCs for some sources, and daughter CVOCs for others; the Trustees’ expert modeled both parent and daughter CVOCs for all sources. The City saddled the last two defendants remaining at trial with the entire orphan share; the trustees argued that they should be saddled with little if any orphan share. Both parties used the same computer model, but inputted different variables. Faced with competing modeling, the Court reasoned that “even in the best of circumstances, a model is only an estimate and the accuracy of the estimate depends to a considerable extent on the data selected for sue in the computer model, the quality and reliability of that data and, of course, the skill of the modeler.” Ultimately, the Court rejected the City’s modeling base don Daubert, holding that “To be reliable, the expert’s testimony must be based on the ‘methods and procedures of science’ and reflect more than the witness’’ ‘subjective belief or unsupported speculation.’” After examining glaring errors in the City’s modeling, the Court rejected the City’s methodology because it was not based on any guidelines or standards, but rather on poor quality “professional judgment”. The presentation will delve into groundwater modeling, modeling presentation, allocation, Daubert principles, and witness creditability.

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