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27 St. B. Tex. Envtl. L.J. 168 (1996-1997)
Air Dispersion Modeling: A Critique of Modeling Principles and Environmental Protection Agency Regulations as They Relate to the Use of Models for Litigation in Toxic Tort Cases

handle is hein.journals/txenvlw27 and id is 170 raw text is: 168 AIR DISPERSION MODELING: A CRITIQUE OF MODELING PRINCIPLES AND ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AS THEY RELATE TO THE USE OF MODELS FOR LITIGATION IN TOXIC TORT CASES BY MARY WILSON 1. INTRODUCTION The use of computer air dispersion modeling in toxic tort cases has, in recent years, become a prevalent tool for demonstrating the geographical extent of pollution con- tamination and resulting health effects. Analysts have raised many questions as to the validity of using such air dispersion modeling to prove the amount and duration of exposure to pollutants for people living near the site of accidental releases or continuous emissions. The very na- ture of a computer model requires the creation and ma- nipulation of an extensive, complex, and often inexact mathematical formula for input of emission, meteorologi- cal, and topographic information. Once the formula is de- termined to be statistically accurate (if possible), the un- derlying information on the local conditions must be en- tered into the model. The data on the emission, meteoro- logical, and topographic conditions is either based on moni- toring information at the site which, if it exists at all, can be very limited or based on information obtained from local sources (i.e., the National Weather Service), which can often vary from exact conditions at the site. Many of these shc-__..:m!s can be overcome for regulatory pur- poses, since the modeling used for obtaining industry per- mits and State Implementation Plans depends on histori- cal data accumulated over a long period of time for a spe- cific pollutant at exact monitoring locations and under spe- cific conditions, including historic weather patterns, known emission amounts, temperatures and rates, and back- ground emissions from other nearby sources. These condi- tions usually are not the conditions under which a sudden and accidental release of a hazardous pollutant occurs. Therefore, inserting questionable or imprecise emission, meteorological, and topographic conditions into inexact mathematical formulas makes the modeling of such an occurrence a difficult, if not impossible, task. Despite the difficulties of obtaining accurate model- ing results for single event occurrences, air models are the primary tool experts use to formulate opinions that people in a specific geographical region have suffered adverse health effects or have lost value to their property due to their proximity to the site of the release. In some cases, due to the long latency period between the time of expo- sure and the manifestation of a disease, health problems may not be immediately evident. Also, the property may not show any actual contamination. Nonetheless, health prob- lems could appear in the future, and over time the property could lose value due to the release. Except for air modeling, no other existing technology allows the expert to make sweeping opinions about the potential health effects on persons and loss of value to property in a certain geographical region. That technology, as will be seen in this article, is subject to huge factors of error. The issue at hand is whether modeling is a suffi- cient basis upon which to award the extraordinary amounts that many plaintiffs in large toxic tort cases demand. This article will review the current standards that the U.S. Environmental Protection Agency (EPA) uses to cri- tique air models recommended for regulatory reporting and permitting requirements and for toxic tort litigation pur- poses. The article will further discuss the input of informa- tion from the particular source that emits pollutants to determine whether any significant limitations exist on the type of predictions the models can make in a toxic tort case, including, by way of example, limitations to a par- ticular geographical terrain, meteorological conditions, and emissions limitations. Finally, the article will present a ST. B. TEX. ENVTL. L.J. vol. 27; 1997

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