contamination in orangetown: a mock trial and site...

ABSTRACT

This report discusses how we developed andimplemented an interactive upper division/graduatelevel class project based on a fictional trichloroethylenecontamination incident as part of our spring-2003semester hydrogeology curriculum at SyracuseUniversity. The “truth” of the contamination was basedon a hypothetical Visual MODFLOW and MT3Dcomputer simulation of groundwater flow andcontaminant transport. The class was divided into threeconsulting groups. One provided expert services topeople living in a town (“Orangetown”) whose drinkingwater had been contaminated. The other two groupsprovided expert services to two fictitious manufacturingcompanies accused of responsibility for thecontamination. The consulting groups prepared en-vironmental assessment and contaminant character-ization reports on different, fixed mock budgets. Theculmination of the project was a daylong mock trial.Lawyers represented the three consulting groups (onereal lawyer and two senior consulting hydrogeologistswith extensive trial experience) and a jury of lay peopledecided the outcome. The overall exercise substantiallyincreased the students’ attention and interest in thematerial, as well as their examination performance in thecourse. Future iterations of the Orangetown Project maybe integrated with courses in Maxwell School ofCitizenship and Public Affairs, S.I. Newhouse School ofPublic Communications, and the Syacuse UniversityCollege of Law.

INTRODUCTION

Instructors that teach university courses in contaminanthydrogeology usually spend the majority of timelecturing on the geochemistry of different classes ofcontamination, mathematics and modeling approachesused to characterize contaminant transport, fieldmethods used in contaminated site investigation, and thedifferent approaches used to clean up contamination.Typically students solve numerous homework problemsto gain experience with the technical material in eachsubject area and take examinations testing theircompetence in the material.

In contrast to what is presented in textbooks, we findthe quality and amount of chemical and hydrologic datain “real world” problems, such as investigations of leakyunderground storage tanks or landfills, is often scant andof poor quality. The practice of contaminant hydro-geology is more often an exercise in clear critical thinkingand “best professional judgment” than applyingsophisticated mathematics and models to excellentacademic-quality data sets. “Best judgments” arecommonly tested through litigation, where attorneysexamine hydrogeologists who serve as expert witnesses(e.g. Harr, 1995). Some of the most intensive and

aggressive questioning hydrogeologists and otherenvironmental scientists encounter is in the courtroom,not in the classroom or at professional meetings.

This paper presents the results of a semester-longclass project designed to introduce graduate and upperdivision undergraduate students taking our con-taminant hydrogeology course to the full process ofcontaminant site investigation through a mock trialexperience.

METHODS

We designed the class project to address the overalleducational objectives we have for the course,Contaminant Hydrogeology (GOL600/400; 3 credits),offered through the Department of Earth Sciences atSyracuse University (NY), in the spring 2003 semester.The constituency of the class is primarily graduate andupper level undergraduate students in the Departmentof Earth Sciences. In the course, students learn aboutmajor types of solute contamination: landfill leachate,gasoline and oil, pesticides, acids and bases, and densenon-aqueous solvents, and how they move in groundwater. Students were assigned a standard textbook(Bedient et al. 1999), problems and periodic tests, as is thenorm. The mock trial project took the place of individualclass projects and was worth 40% of the student’s finalclass grade. The grading for the mock trial project wasbased on written reports and evaluations of groupperformance and preparedness at the mock trial.

The semester-long class project was designed as a“real-world”, contentious, groundwater contaminationproblem, including a mock trial and ruling made by ajury of lay people. The project was loosely patternedafter the Woburn contamination scenario made famousin the book and subsequent movie, “A Civil Action”(Harr, 1995), but centered on a fictitious litigation in the“City of Orangetown.” There, “Pure Water for Life” (acitizen group) was suing “Xenophobotech Corporation”(a military hardware manufacturer) and “HotSAX, Inc.”(a woodwind instrument manufacturer), forcontaminating an Orangetown water supply well withsolvents. The class was divided into three groups toprovide expert services to the three fictional litigants inthe trial. Throughout the semester, the student groupsacted as environmental consultants. Each group had tosubmit proposal describing its technical investigations,which were limited by a fictitious budget. Once theproposed plan was accepted, each group had to buy sitedata (provided by us, the course instructors), completethe site-investigation, write up the findings, prepare forthe trial, and endure the mock trial itself.

Class Project Design - The contaminant problem was ahypothetical trichloroethylene spill that contaminated aconfined (overpressured) sand aquifer, overlain bylayers of silty and clayey soil through which water andcontaminants would slowly move (Figure 1). The

266 Journal of Geoscience Education, v. 52, n. 3, May, 2004, p. 266-273

Contamination in Orangetown: A Mock Trial and Site

Investigation Exercise

Donald I. Siegel Department of Earth Sciences, Syracuse University, Syracuse, NY 13244,

[email protected]

Jeffrey M. McKenzie Department of Earth Sciences, Syracuse University, Syracuse, NY 13244,

[email protected]

Siegel and McKenzie - A Mock Trial and Site Investigation Exercise 267

Figure 1. Geologic cross section and site map takenfrom the Visual MODFLOW computer interface. Theplan view shows the companies involved in thelitigation, their property boundaries and storagetanks (solid circles) and the contaminated municipalwell. The cross section is through the Orangetownsite and includes geology. The students wereprovided with the plan view (a) but not the geology (b).

Figure 2. Description of the class project, as given tothe students at the beginning of the semester.

“truth” of the contamination for the class was amathematical model of this scenario created by theauthors using MODFLOW, a U.S. Geological Survey3-dimensional numerical groundwater computer code(McDonald and Harbaugh, 1988), coupled to MT3D, anEnvironmental Protection Agency contaminanttransport code (Zhang, 1990), together in a commercialpackage, Visual MODFLOW (Guiguer and Franz, 2001).The model consisted of 15 layers, divided into 800 blockseach. The computer calculated hydraulic head (theheight to which water would rise in a groundwatermonitoring well) and concentrations of contaminants,mostly trichloroethylene (TCE), at the center of eachblock. The MODFLOW and MT3D models were rununder non-steady state conditions to simulate both themovement of solutes and the subsequent pumping bythe municipal well within the model domain.

Although the model could be much morecomplicated, we chose a relatively simple design, giventhe difficulty the students would have in characterizingthe problem within their limited budgets – a commonissue in real-world studies. At the onset of the project, thestudents were only provided with an aerial map of thestudy area, including property boundaries and thelocation of the town well (Figure 1a), and a briefdescription of the problem (Figure 2).

Site Assessment and Characterization - Although thestudents knew of the site model, they were not shown thefull model until after the mock trial. The three classgroups assessed the local geology and extent ofcontamination for their respective clients by usingstandard hydrogeology investigative techniques, such as

installing monitoring wells and sampling groundwater.Data for the investigations, including hydraulic headmeasurements and contaminant concentrations in watersamples, were supplied by the instructor and derivedfrom the model simulation.

The defendants were instructed that they had to betrue to science and engineering, while trying to minimizeliability. In contrast, the “Pure Water for Life” consul-tants were told to use science and engineering within thebroad range of plausibility to convince a lay jury toaward them the damages asked. All groups had to ini-tially submit a consulting proposal, with a rigidly pro-scribed format (Figure 3). No group could obtaininformation outside their own property lines and eachgroup had a fixed budget to buy hydrologic and geo-chemical data (Table 1): $200,000 for Xenophobotech’sconsultants, $100,000 for HotSAX’s consultants, and only$20,000 for “Pure Water for Life’s” consultants. PureWater for Life’s consultants also had the opportunity tobe “creative,” by asking the Town and “University” pro-fessors at Orangetown University (i.e. us) for pro bono orinexpensive specialized technical assistance. As an ex-ample of an investigation, Xenophobotech’s consultantsdrilled 10 wells on Xenophobotech’s property, obtainedhydraulic conductivity values from slug tests (a standardengineering test) for 4 wells, and obtained analyses ofwater samples from all wells for concentrations of inor-ganic solutes and volatile organic compounds.

After about 7 weeks of data acquisition andinterpretation, scientists for Xenophobotech andHotSAX produced interpretive reports distributed to all.Pure Water for Life Scientists had an additional 3 weeksto then do studies and produce their report, alsodistributed to all as pre-trial filed testimony (Figure 4).


Figure 3. Consulting proposal guide and format used by consulting groups.


Item Price Notes

Test hole and well $50/ftIncludes well log (geology), water level, andsupporting information.

Slug test for hydraulicconductivity

$300/testThe value plus error bar. Test must be done inexisting monitoring well.

Inorganic analysis $300/samplepH, major and minor solutes. Analysis must be fromexisting monitoring well.

Volatile organics $100/sampleHydrocarbons and solvents. Analysis must be fromexisting monitoring well.

Report costs $2500/wellUp to $20,000. Consulting reports often cost severaltens of thousands of dollars to prepare inprofessional practice.

Table 1. Pricing for site investigation data. Each consulting group was given a fixed budget: Xenophobotech’sconsultants had $200,000, HotSAX’s consultants had $100,000, and Pure Water for Life had $20,000.

Figure 4. Consulting report outline and format used by the student groups for their Site Assessment Reports.

Mock Trial - When all of the pre-filed reports wereproduced, volunteer attorneys were assigned to eachgroup: a senior partner of a major law firm in Syracuseand two senior hydrogeologists in major consultingfirms who have extensive experience giving experttestimony. The judge for the trial was the environmentalscience advisor to a U.S. Senator from New York, and areal court reporter donated his time to record the trial.Six members of the community volunteered to serve asjurors in the mock trial: an editor of a local paper, aphysician, a computer systems analyst, a librarian, aspeech pathologist, an antiquities dealer, and two specialeducation teachers. The educational level of the jurors ishigher than most “real juries”; nevertheless, they servedthe purpose of the project. The Syracuse UniversityCollege of Law provided a mock courtroom for theday-long trial.

The trial consisted of brief opening remarks by thejudge, and then segments of 15 minutes of directtestimony, 30 minutes of cross examination, and 10minutes of redirect testimony for each litigant group.One student in each group provided live testimony onthe stand, presenting the group’s visualization of thecontamination problem.

RESULTS

As expected, each consulting group developed adifferent hydrogeologic conceptual model of theOrangetown site that was true to science while servingthe needs of the client. Xenophotobech’s scientistsdetermined that contamination from Xenophobotechbypassed the Orangetown water supply wellcompletely, partly because they neglected to considerthat pumping of the town well diverted contaminationtoward the well. Scientists for HotSAX found thatcontamination from their company had to be minimalbecause their factory is underlain by thick clayey soilsthat do not pass water easily. Pure Water for Lifescientists argued that the companies share equal blamefor the contamination. Their arguments in court werebuttressed by clever use of isotopic “fingerprinting”analyses for chlorine in the dissolved solvent.

True to form (based on the senior author’sprofessional experience), the technically most organizedand professional work was done by the consulting firmsfor the defendants, Xenophobotech and HotSAX. Thesegroups had more resources (money) to obtain scientificinformation to buttress their cases. In contrast, despiteequal technical skills, the consulting group for the

plaintiffs, Pure Water for Life, was disorganized and hada hard time reaching consensus on what to do. They hadto do much more critical thinking, which led to divisivedebate to evaluate the problem, rather than letting thedata ‘speak for itself’.

Mock Trial - At trial, the mood was somber, given theaustere setting of the Lampe Courtroom, a courtroomused for instruction at the Syracuse University College ofLaw (Figure 5). The judge ruled with an iron hand(supported by a geologist’s pick struck on a piece ofgranite, as is appropriate for the course). Defendants,plaintiffs and their attorneys sat at separate tables facingthe judge, jury box, and witness box (Figure 5). Thestudents emotionally were immersed in the mock trial,party due to the semester long buildup to it. One studentcommented in the course evaluation that:

Even though the trial was a “mock” presentation,I had butterflies as if my work was actually beingtested in a court of law. I feel it was an accuraterepresentation of how “real-world” trials occurand believe that everyone involved benefitedfrom the experience.

The lawyers had prepared their witnesses to someextent before the trial, and we also gave students a list ofcritical elements for expert witnesses to know (Table 2).All students did very well under intense cross-examina-tion. The judge leaned over and asked the senior authorif the witnesses had any previous courtroom experience.When he said that they did not, she commented that shehad seen real expert witnesses do far worse.

The student expert witnesses clearly were keyed upfor their role-playing, as shown in the followingexchange by one of the expert witnesses duringcross-examination – obviously the student had notvisited the Orangetown sites, but acted as if he had:

Q: Did you personally visit the HotSAX site?A. Yes.Q. And have you personally visited theXenophobotech site?A. YesQ. And have you been on the Orangetown Wellsite as well?A. Yes.


Issue Information

Purpose of a TrialTo resolve disputes, not todetermine the truth

Direct testimony Poise leads to dignity

Cross examination

1.Defend known items2. Show a balance between

commitment anddetachment

3. KISS – “Keep it simple,stupid!”

Re-direct Return to known items

Table 2. Trial facts and hints for expert witnesses.

Figure 5. The Lampe Courtroom, Syracuse University.Plaintiffs at front table, jury to the left, witness box isleft of the white screen and author, Siegel, is talkingto the class prior to proceedings.

Q. And were you there to personally observe thedrilling of the various wells and the placement ofthe piezometers?A. I believe our scientists and some of ourtechnicians were there. No, I was not presentduring the installation of the wells.Q. Do you feel it’s important to go out andobserve the well drilling to make sure that thewell drillers are following the appropriateprocedure?A. No, because they follow appropriateprocedures because they have to, and we haveother staff that monitors that activity.

Each student witness presented the results ofeach group’s scientific interpretation using MicrosoftPowerPoint illustrations, one of which is shown as Fig-ure 6. In this figure, Xenophobotech shows the zone, orplume, of contamination as a fairly restricted area undertheir facility. In contrast, Figure 7 shows the “truth” –contamination migrated from the Xenophobotech prop-erty to the municipal well.

The major issues that the students had to addressunder cross-examination were different. In the case ofXenophobotech, opposing attorneys questioned why theconsultants did not better sample vertically to determineexactly where the plume of contamination might havegone, as well as why the expert did not think a pumpingwell would induce any contamination to it. Attorneysquestioned the HotSAX expert on the extent to whichfractures and cracks in the clayey soil might haveallowed contamination to move downward farther thanhe postulated. The experst had some problem explainingthe data they obtained from the drilling, which includedobservations of fractures. For example (from the courttranscript):

Q. I have in front of me a drill report for p-1 thatbegan at 800 feet. And it indicates that the soil

from 800 to about 670 is silty clay, brown, upper15 feet, fractures. Soil gray below minor peatylayers. Does that indicate that just the upper 15feet of the core was fractured?A. The way we interpreted it, yes.Q. But it could be interpreted that that entire unit,it did not segregate a separate fractured layer inthe upper 15 feet, did it?A. I believe it did. The upper 15 feet, I think thatwas very unequivocally reported in the well logs.Q. But it is possible that the rest of that sectionwas fractured also?A. I can’t say that.Q. If that section was fractured would TCE orother contaminants have been able to penetratethrough that unit?A. TCE would penetrate to the extent that therewere fractures.Q. So that’s a yes.A. Yes.

The Pure Water for Life expert demonstrated, withwater and food coloring, how mixtures of contaminationcould occur, and then discussed how isotopes (a form ofan element with more neutrons than the most commonkind) of chlorine in TCE can be used to fingerprintcontamination sources. Following is a sample of thistestimony (from the court transcript):

Q. Do you have an illustration for us?A. Yes, I do. One can imagine that the blue dye isthe TCE from HotSAX. And the red dye is theTCE from Xenophobotech. Now, if one were tomerely dilute these we can clearly see that bydiluting you still have the same color, it’s justmore dilute. It doesn’t mean that the chemicalfingerprints have changed. However, if we mixthe two together we can very definitely see that


Figure 6. Diagram, produced by Xenophobotech’s consultants, shown in court illustrating the TCE plume.

the color that we get when mixed in equalproportions is green. That is 50 percent TCE fromXenophobotech, 50 percent TCE from HotSAX.Clearly, not literally, but figuratively.Q. Is the same signature found in the carbonisotopic data?A. The same signature is found.

Subsequently, the expert stated that the isotopic‘fingerprint’ data showed a 50:50 mixture of TCE fromHotSAX and Xenophobotech reaching the city well.However, under intense cross-examination, the experthad to admit that not enough TCE was in the water to dosuch an analysis; a water-table map made by his firm forthe site was substantially wrong, and that data were notplotted correctly on materials presented to the court. Itwas a difficult time for the expert, who nonetheless kepthis cool (from the court transcripts):

Q. Have you checked your measurements to seethat they were accurately to scale or are they justapproximations?A. In this case an approximation.Q. If they were an approximation then why didyou put a scale on the map? Isn’t it important tobe accurate in terms of these things?A. It is important to be accurate.Q. And I think distance is probably very criticalhere considering the media we’re going through,the clays and things like that, the slow traveltimes that occur in clays, is that correct?A. That is correct.Q. And so that in terms of this diagram it doesn’tfully and accurately portray what is in fact on theground, is that correct?A. This is merely a planned view. Whencalculations are made they were made accurately.Q. Well, the calculations were made accurately,but then when they were put on this Exhibit theywere put on inaccurately. Is that correct?A. That would be correct.

The jury was allowed 30 minutes to come to adecision for two questions: first, whether HotSAXand/or Xenophobotech were responsible forcontamination of the city well, and second, if bothcompanies were guilty, what were the proportions ofblame. The verdict was guilty for both companies, withXenophobotech responsible for 75-80 percent of thecontamination and HotSAX for the rest. The truth was, in

fact, about a 50:50 mix as suggested by the isotopesanalyzed by Pure Water for Life.

The jury commented that Pure Water for Life’sisotopic data seemed to implicate both HotSAX andXenophobotech as guilty, despite the fact that they didnot understand all of the isotopic diagrams shown tothem, or that concentrations of the solvent were too smallto get good data. The jury also commented on the qualityof the diagrams presented in court. Xenophobotech’sdiagrams were hard to read and made it difficult for thejury to fully understand the testimony. The jury felt thatwitness “performance” on the stand, in addition totechnical content, influenced their decision – somethingwell known in the courtroom (Wyche, 1995).

After the jury made its decision, the true extent of thecontamination, as simulated by the computer model, waspresented and comments were solicited from all present.The attorney and mock-attorneys also commentedpublicly on how well the student witnesses held upunder cross-examination. One of the hydrogeologistswho acted as an attorney said that he almost had a“sadistic pleasure” being on the other side of the witnessbox to grill the expert.

Student Course Evaluations - At the end of thesemester, the students were asked to anonymously writea few paragraphs to evaluate the course and the courseproject. The overall class evaluations for the course werevery positive, and the students particularly enjoyed theclass project and the mock trial. Both from ourobservations and the students’ class reviews, the classproject was very stimulating. From the class evaluations:

I think that this trial was the best educationalexperience I have had here at Syracuse Universityso far.

[The mock trial] was the most interesting andinvaluable 3 hours I have spent in any academicsetting. What I learned during those three hourswas just amazing.

Splitting the class up into groups was good andgave a “competitive edge” to the project that canreally bring the best out in people.

Based on the student reviews, we feel our originalgoal when we designed the course project was met – toteach contaminant hydrogeology from a practical,“real-world” standpoint. Many students stated that theclass project gave them tangible experiences that directly


Figure 7. Diagram showing “true” extent of contamination as created by the authors. Distance units are infeet. Contours lines represent concentration of TCE in ug/L.

prepared them for jobs in environmental geology. Fromclass reviews:

I feel confident that I could now begin to conducta competent site assessment, analyze geochemi-cal data with an informed eye and constrainplume morphology and migration.

It is not often that in the classes I have taken hereat SU [Syracuse University] where I leave with asense of confidence in the work I can performand/or exhibit outside a classroom.

We also were pleasantly surprised to find that theclass project helped students think about problems in anon-traditional “textbook” approach. From classreviews:

The ability to think things out and solve aproblem is one of the most important skillsanyone could ever need to develop. Rather thanbeing told what was right and what was wrong,we were left finding out for ourselves, with a bitof guidance, when we “slipped.”

SUMMARY AND CONCLUSIONS

Reviews of the course project were overwhelminglypositive. Many participants suggested that students inthe College of Law be involved in the process, perhapsguided by experienced lawyers. The project could easilyhave been expanded to 6 hours of testimony by addingre-cross examination and summation arguments by thelawyers. Funding and the patience of the volunteersneeded for the project precluded an extension of the trial.

As instructors, we found the trial focused thestudents on learning the complexities of contaminanttransport and fate in a timely manner, if for no otherreason than not to embarrass themselves in public. Weare concerned about the different ways thatenvironmental science is practiced in academia, thepolitical arena, and in the courts (Siegel, 2001). Whatsociety arguably would like to see is the overlap of thebest of each, but what often happens is the converse:sound law lags behind sound policy which in turn lagsbehind current sound science. We think classroomprojects such as “Contamination in Orangetown”provide students with an important benchmarkeducational experience to which they can comparefuture environmental work that involves the lay publicwith scientific issues. The performance of the studentson standard examinations in the course, including thecomprehensive final examination, was measurablybetter this year than in past years. We think the studentswere very focused on the technical material because ofthe trial scenario.

We are exploring the idea of expanding the course toinclude the Syracuse University College of Law,Syracuse University Maxwell School of Citizenship(public policy), the S.I. Newhouse School of Com-munication and perhaps even the College of Visual andPerforming Arts.

Our science students would be the scientific expertsthat “do” the science. Policy students might be involved“representing” the EPA or NYDEP and testify whetherthe science met regulatory constraints. Policy studentscould also be involved in the court proceedings thatcould include financial claims and/or medical liabilityissues. Law students could serve as the lawyers. Mediastudents could report on the proceedings (written or

video) and assist with the development of visualmaterials for trial. Acting students could even play theroles of aggrieved citizens or material witnesses to thecontamination and testify in court. As background, theprofessors for the science, policy, and law courses wouldeach give a lecture to the entire assembly explaining thebasics of important aspects related to the problem.

We could choose, for our numerical simulation, alocal urban setting that could be visited, although thecontamination would not be real. Alternatively, wecould choose a real (unknown to the students) EPASuperfund site. There are many alternatives, and it willtake some time to decide what to do, pending on interestoutside the Department of Earth Sciences.

ACKNOWLEDGMENTS

We thank the College of Arts and Sciences, SyracuseUniversity, for their generous funding of this pilotproject, and the Syracuse University College of Law forproviding the Lampe Courtroom on a weekend day.

This project simply would not have been possiblewithout the gracious volunteering (and role playing, initalics) of: Dr. Rhea Jezer (Environmental Advisor to Sen.Hillary Clinton, Judge), Dean Heberlig, Esq. (SeniorPartner; Bond, Schoeneck & King; Lawyer forXenophobotech), Edward Hinchey (Office Principle, ERM,Lawyer for Pure Water for Life), Guy Swenson (SeniorHydrogeologist, O’Brien and Gere Engineers, Lawyer forHotSAX), John Drury, CSR, RPR (Court Reporter), and thejurors; Bette Siegel, Robin Illowsky, Jerry Illowsky,Randy Marshall, Jane McKenzie, Stephanie Bergman,and Jef Sneider.

REFERENCES

Bedient, P.B., Rifai, H.S., and Newell, C.J., 1999,Groundwater Contamination: Transport andRemediation, Prentice Hall PTR, Upper SaddleRiver, N.J., 604 p.

Guiguer, N.B. and Franz, T., 2001, User’s Manual forVisual MODFLOW, Waterloo Hydrogeologic,Waterloo, Ontario, 316 p.

Harr, J. 1995, A Civil Action, Random House, New York,500p.

McDonald, M.C., and Harbaugh, A.W., 1988, A modularthree-dimensional finite-difference ground-waterflow model: U.S. Geological Survey Techniques ofWater-Resources Investigations, Book 6, Chapter A1,586 p.

Siegel, D.I., 2001 “Truth or Consequences” for thePracticing Hydrologist: On Scientific Certainty andEthics, Hydrologic Processes, v. 15, p. 521-523

Wyche, B.W., 1995, The hydrogeologist in litigation: topten tips on how to be an effective expert witness,Groundwater Monitoring and Remediation, Spring -1995, p. 94-96.

Zhang, Z., 1990, MT3D: a modular three-dimensionaltransport model for simulation of advection,dispersion and chemical reactions of contaminantsin groundwater systems, Report to the U.S.Environmental Protection Agency, Ada, Oklahoma,170 p.


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