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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — July 1993

Articles

The Artification of Science: The Problem of Unscientific "Scientific" Evidence

by Cynthia H. Cwik, James L. Ferrell, and Ernest J. Getto

Editors' Summary: The absence of a certain threshold for admitting scientific information into evidence permits many courts to admit as scientific evidence the testimony of experts that does not meet scientific standards for reliability. The validity of an expert's opinion admitted as scientific evidence in cases involving issues on the frontiers of science, including toxic-tort and other environmental litigations, often determines the outcome of those cases. Many courts considering the appropriate threshold for admitting scientific information into evidence have reached various conclusions, prompting the U.S. Supreme Court to decide to examine the issue for itself in Daubert v. Merrell Dow Pharmaceuticals.

The authors posit that evidence lacking a firm scientific basis is art disguised as science — or "artified" science — and that because such science lacks explanatory power, the admission of such evidence leads to poor jury verdicts in cases involving scientific questions crucial to their outcome. The authors consider the current standards for admitting scientific evidence and review approaches taken by several different courts. Their exploration reveals that the correctness of legal judgments in cases involving questions of science depends on informed and established expert testimony that meets a uniform standard. They conclude that the accuracy of evidentiary decisions and the subsequent legal judgments is improving as more and more courts abandon "artified" science and honor the line between law and science.

Prejudgment Interest on Superfund Costs: CERCLA's Running Meter

by Thomas H. Birdsall and Dan Salah

Editors' Summary: CERCLA § 107(a) authorizes EPA and private-party plaintiffs to recover prejudgment interest on outstanding costs related to CERCLA's response actions. This interest can amount to millions of dollars, and may be the single largest cost item at a site. Despite this, surprisingly little attention has been paid to prejudgment interest and how it is calculated. The authors, whose practice includes reviewing government-sponsored prejudgment interest claims and preparing such claims in private cost recovery actions, provide an introduction to calculating prejudgment interest under CERCLA and the issues that can arise in making this calculation in government and private cost recovery actions. They first examine how prejudgment interest rates are determined and suggest that the appropriate rate for both government and private actions may be the risk-free return on U.S. Treasury bills in which Superfund monies are invested. They next examine the calculation of prejudgment interest and enumerate the variables that must be known before this calculation can be made. The authors evaluate EPA's proposed amendment to the cost recovery provisions of the NCP that would require EPA to provide the amounts and dates on which interest is calculated and the amounts and total interest charges for a site. They then discuss how the time period for the accrual of prejudgment interest is determined, and analyze EPA's proposed amendment to the NCP that would define one of two alternative dates that CERCLA specifies for the commencement of the accrual period. The authors argue that the amendment would make a legislative change by regulatory means and that conforming the amendment to the statutory requirement may encourage EPA to provide specific information on its cost claims as soon as possible. Finally, they provide sample calculations of prejudgment interest and conclude that the magnitude of these amounts makes it advisable for both plaintiffs and defendants to devote more attention to the calculation, documentation, and evaluation of such claims.

Dialogue

Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision

by Susan Mackay, Laura E. Perrault, and Vicky L. Peters

Does the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 suspend the states' authority to enforce environmental laws at sites selected by the federal government for remedial action? The United States has taken that position to avoid compliance with state laws at federally owned hazardous waste sites. The issue recently came to a head before the Tenth Circuit Court of Appeals in a case concerning the U.S. Army's Rocky Mountain Arsenal (Arsenal), located near Denver, Colorado.2 The court held that CERCLA does not preempt the states' rights to exercise independent authority to protect their citizens' health and welfare, and the environment. Because the U.S. Environmental Protection Agency (EPA) delegated its authority to enforce the Resource Conservation and Recovery Act (RCRA) to Colorado,3 the court ruled, the state "has the authority to enforce [RCRA] at the Arsenal, and '[a]ny action taken by [Colorado] … [has] the same force and effect as action taken by the [EPA]…."4