March 18,2015. CASE NO SWF-CN LACKAWANNA TRANSPORT COMPANY, dlbla WETZEL COUNTY LANDFILL Application for a certificate of need

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1 1500 Chase Tower 707 Virginia Street, E. n Charleston, VVV Mailing Address: P.0. Box 2031 Charleston, WV (304) Fa: (304) PLLC Attorneys at-law www. kaycasto.com March 18,2015 Ms. Ingrid Fenell Executive Secretary Public Service Commission of West Virginia Post Office Box 812 Charleston, West Virginia RE: CASE NO SWF-CN LACKAWANNA TRANSPORT COMPANY, dlbla WETZEL COUNTY LANDFILL Application for a certificate of need Dear Ms. Ferrell: Enclosed for filing in the above-referenced proceeding, please find the original and twelve (12) copies of WCSWA's Reply To LTC's Brief Regarding Relevancy and Admissibility of Opinion Testimony By Intervenor's Expert. As evidenced by the Certificate of Service attached thereto, a copy of the filing is today being served upon all counsel of record. Should you have any questions regarding this filing, please do not hesitate to contact me. Sincerely, hg enclosures cc: counsel of record 4 Robert R. Rodecker WV State Bar No C H A R L E S T O N. M 'L=T 111 MERITAS LAW FIRMS WORLDWIDE O R G A N T O W N

2 BEFORE THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON CASE NO SWF-CN LACKAWANNA TRANSPORT COMPANY, d/b/a WETZEL COUNTY LANDFILL, Application for a certificate of need to construct and operate within the permitted area of its facility a dedicated disposal cell for the disposal of drill cutting waste. WCSWA S REPLY TO LTC S BRIEF REGARDING RELEVANCY AND ADMISSIBILITY OF OPINION TESTIMONY BY INTERVENOR S EXPERT A. LTC s objections to the admissibility and relevance of Dr. Zwierschke s testimony were overruled at the hearins and no further briefing was contemplated. In the Introduction to its brief regarding Dr. Zwierschke s testimony, LTC asserts that the Commission reserved judgment on the issues of the admissibility and qualifications of Dr. Zwierschke, and granted leave to LTC to file a brief in support of its motions to exclude her testimony. (LTC s Brief at 1.) No transcript references are provided to support these assertions. Rather, the transcript would suggest that the Commission has already determined that her testimony is relevant and admissible, reserving only the issue of the extent to which Dr. Zwierschke s opinions can be considered by the Commission. No further briefing was requested, offered, or invited. On the first day of the hearing, LTC argued that environmental matters were outside the scope of the statutory criteria that the Commission should consider and were within the exclusive province of the DEP. Accordingly, LTC moved that Dr. Zwierschke s testimony be excluded as

3 irrelevant. (Tr. 1 at ) After taking a recess to consider the motion, the Chairman explained that the Commission had both quasi-judicial and legislative functions and, consequently, was more liberal in accepting evidence than a circuit court. (Id. at ) He then announced the Commission s ruling as follows: So for purposes of moving the matter forward, we re going to take the testimony. We re probably going to let it in unless you have specific objections to something that s egregious. And we will assess in the final outcome the weight that we want to assign to environmental matters and we will make a ruling that we re required to make as charged by statute. So we will allow the testimony in and when we get to it, I guess --- now, there was some dispute about whether she would be available today. Id. at 23. Thus, subject to specific objection made to egregious matters when the evidence would be offered, the Commission determined that environmental evidence, including Dr. Zwierschke s testimony, was relevant. The next day, when Dr. Zwierschke s testimony was offered, the only objection made was to her qualifications as an expert to offer opinion testimony. (Tr. 2. at 45.) As to this issue, the Commission again recessed to consider the matter, after which the Chairman announced the ruling as follows: All right. We re going to reserve ruling on the --- we re going to admit her testimony. We re going to reserve ruling on the --- whether or not it can come in as expert testimony and the extent to which we use it. I think we need to give further thought to that, hut it will be otherwise admitted. (Id. at 49.) Thus, the only issue held in reserve was whether Dr. Zwierschke was qualified to render an expert opinion. And yet, the Discussion of Law in LTC s Brief focuses largely on relevance (an issue already decided) and on Rule 702@), West Virginia Rules ofevidence (LTC s Brief at 2

4 13-20), which (as hereafter discussed) applies only when the proffered testimony is based on a novel scientific theory or method, whch is not the case here. B. Dr. Zwierschke s knowledge and experience qualify her to provide helpful insights into the relationship between LTC s regulatory noncompliance and its acceptance of drill cuttings, and the impact thereof on the environmental integrity of LTC s landfd. In City of Wheeling v. Public Service Comh of W. Ya., 199 W.Va. 252, 262, 483 S.E.2d 835 (1997), the Supreme Court of Appeals acknowledged that the Commission is not bound by the technical rules of evidence (W. Va. Code, [ 1983]), but opined that, in determining the admissibility of expert testimony, the Rules of Evidence were instructive. Rule 702 is the paramount authority for determining whether an expert is qualified to give an opinion. (Id.) Rule 702(a) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. With regard to Rule 702, said Court stated in Sun Francisco v. Wendy s Intern., Inc., 221 W.Va. 734,741,656 S.E.2d 485,492 (2007): The Rules of Evidence embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact. This liberal thrust was further explained in In re Flood Litigation Coal River Watershed, 222 WVa. 574, 581,668 S.E.2d 203, 210 (2008) Rule 702 reflects an attempt to liberalize the rules governing the admissibility of expert testimony. Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.1999). See also... Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (highlighting the liberal thrust of the Federal I Rule 702@), K Vu. Rules of Evidence; Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995). 3

5 Rules and their general approach of relaxing the traditional barriers to opinion testimony. ). In Perrine v. E.I. Du Pont De Nemours & Co., 225 W.Va. 482, 536,694 S.E.2d 815,869 (2010), the Supreme Court of Appeals explained the test to decide whether a witness is qualified to provide an expert opinion under Rule 702: First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert s area of expertise covers the particular opinion as to which the expert seeks to testify. [Internal citations omitted.] Furthermore, this Court has recognized that the Rules of Evidence are liberal and... a trial court should err on the side of admissibility. [Gentry v. Magnum,] 195 W.Va. at 525, 466 S.E.2d at 184 ( What must be remembered, however, is that there is no best expert rule. Because of the liberal thrust of the rules pertaining to experts, circuit courts should err on the side of admissibility. (citing I1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers 5 7-2(A), at 24 ( [tlhis standard is very generous and follows the general framework of the federal rules which favors the admissibility of all relevant evidence )).) The purpose of Dr. Zwierschke s testimony, in her own words, was to review and comment on the documents [that the Authority] obtained fiom the DEP... as they pertain to the operational performance of the Wetzel County Sanitary Landfill since it began accepting large quantities of drill cuttings. (SWA Exhibit KHZ-D at 4.) LTC does not challenge the authenticity of the attachments to her testimony consisting of DEP FOIA responses ( FOIA Documents) themselves, nor Dr. Zwierschke s summaries and descriptions thereof. Only her opinions are challenged. Dr. Zwierschke opined that the FOIA Documents she reviewed allowed her to assess the performance and compliance of the landfill over the previous four years, during much of which time it was handling large quantities of drilling waste. (Id. at 10.) She opined that the documents demonstrate a pattern of repeated deficiencies throughout the time period [Id.], a 4

6 few examples of which were summarized in the WCSWA s opening brief (water pollution from storm water runoff and from discharges into the Ohio River that violated LTC s NPDES permit; storing drill cuttings in the composting building rather than landfilling them; building cells without first having approved plans; disposing of drill cuttings as the initial layer of Cell 6 in violation of DEP requirements that only MSW be used). She further opined that said violations (and many others) were directly related to the volume of drill cuttings coming into the facility. (Id. at 22-26; ) In short, during the time that the landfill has been accepting drill cuttings, [tlhis facility has not been in compliance with all of the regulations that apply to landfills and has failed to protect the environment from negative impacts due to the disposal of waste. Dr. Zwierschke was qualified, by knowledge, skill, experience, training, or ed~cation, ~ to offer these opinions. She has a Ph.D. in engineering from Ohio State University and is licensed as a registered professional engineer in Ohio, Missouri and West Virginia. (Tr. 2. at 24; WCSWA Exhibit KHZ-D, Attachment 1 at 1.). Thus, she meets the minimal educational or experiential qualifications in a field that is relevant to the subject under in~estigation. ~ In addition, Dr. Zwierschke has first-hand experience with respect to regulatory compliance and (Id. at 32.) LTC s Brief sets up straw men by quoting selected portions of Dr. Zwierschke s responses to preliminary questions, such as what is the purpose of a landfill?, in which she provided general background information without expressing any opinions, and then challenged her ability to provide opinions on such matters. (LTC s brief at 6-10.) However, as she repeatedly explained during her cross-examination, she did not render any opinions on those matters. She was not asked to assess the radioactivity of the drill cuttings, the efficacy of LTC s geo-textile liner(s), the compliance record of landfills other than LTC, or the impact of traffic, noise, or dust on neighbors of the landfill, despite LTC s outlandish efforts to make it appear otherwise. (Tr. 2. at 22-23,26, 37,41.) Rule 702. It has been noted that the use in Rule 702 of the disjunctive or allows an expert to he qualified by any of the five methods listed. Perrine v. E.I. Du Pont De Nernours & Co., 225 W.Va. 482, 536,694 S.E.2d 815, 869 (2010) 4 Perrine, supra. 5

7 operational issues pertaining to landfills, both as an instructor and a consultant, as summarized in her direct testimony: I published a series of articles explaining waste management concepts and landfilling while at The Ohio State University, including engineering aspects of landfill design, design and function of landfill liners and bioreactor landfills. I also taught graduate level modules on landfills related to the design of landfills to minimize potential environmental impacts as well as to comply with appropriate regulations. During my employment at Bennett & Williams, I have been involved in projects relating to solid waste landfills, construction and demolition debris landfills and hazardous waste landfills. * * * I have been involved as an expert in two cases relating to solid and hazardous waste landfills that involved the preparation of expert reports. With regard to the solid waste landfill expert report, the case focused on operational issues and environmental compliance at a landfill that accepted a special waste that resulted in the necessity of remediation methods and landfill redesign to address the issues. * * *... Similarly, I have personally been involved with management and maintenance issues at solid waste landfills and designed, constructed and operated a constructed wetlands system to address leachate outbreak and treatment issues at a solid waste landfill. (SWA Exhibit KHZ-D at 2-4.) Dr. Zwierschke also has specific experience with drill cuttings. With regard to projects relating to oil and gas drilling activities, I have provided advice to a client regarding the acceptance of and the environmental concerns associated with the remediatiodcomposting of drill cuttings. (Id. at 3.) She also testified to additional experience working with construction and demolition debris landfills, closed landfills, hazardous waste landfills, and bio-reactor landfills. (Id. at 2-4.) 6

8 LTC complains that she had no prior experience working with West Virginia landfills or the specific regulatory scheme applicable thereto. However, as she explained on cross- examination, Landfills across this country are regulated by very similar statutes, in fact, the same federal statute. So my experience in Ohio translates directly to West. Virginia. (Tr. 2. at 39.) The Supreme Court of Appeals has rejected the very same argument advanced by LTC in its Brief in two cases in which police officers from jurisdictions other than West Virginia were called upon to testify as to the reasonableness of a West Virginia officer s conduct in light of accepted safety standards: As we suggested in Ventura v. Winegardner, 178 W.Va. 82, 86, 357 S.E.2d 764, 768 (1987): Despite his lack of specific knowledge of... [the West Virginia laws regarding law enforcement], it is obvious from his education and background that he would have more than a passing knowledge of the subject. Officer Mader s testimony involved his views concerning the reasonableness of the Sheriffs conduct in light of the accepted safety standards. To this end, his testimony was a fact-based opinion, not a statement of mere legal conclusion. Gentry v. Mangum, 195 W.Va. 512,526,466 S.E.2d 171, 185 (1995). Like those out-of-state police officers, Dr. Zwierschke was not called upon to testify regarding the nuances of West Virginia law and, in fact, accepted the DEP s conclusions as to whether specific conduct constituted a violation of applicable regulations or permit conditions. Therefore, when these inspectors issued Notices of Violations ( NOVs ) and noted concerns in their inspection reports, I relied upon the facts as the inspectors reported them in the official Landfill Inspection Reports. (SWA Exhihit KHZ-D at 9.) Indeed, the great bulk of her testimony is a summary of the FOIA Documents appended to her testimony, thus enabling any reader to immediately verify whether she accurately characterized them. LTC has made no complaint in that regard. While it is true, as LTC suggests, that the Commission may itself read the FOIA Documents, the Commission will benefit from Dr. Zwierschke s efforts to summarize 7

9 the most relevant portions thereof and from the conclusions drawn therefrom by a person with substantial technical experience in operational issues encountered at landfills; in particular her conclusion that the repeated deficiencies in LTC s performance were related to the disposal of drill cuttings. (SWA Exhibit KHZ-D at 22-26; ) The remainder of LTC s complaints go to the weight, rather than admissibility, of Dr. Zwierschke s testimony. That this is the first case in which Dr. Zwierschke has given live testimony, that she was unable to visit the landfill, and that she developed her testimony in a short time-frame, have nothing to do with whether she was qualified, by knowledge, skill, experience, training, or education to render an opinion, which is the only question left open by this Commission s prior rulings. In Gentry v. Mangum, 195 W.Va. 512, ,466 S.E.2d 171, (1995), the Supreme Court of Appeals stated: Because of the liberal thrust of the rules pertaining to experts, circuit courts should err on the side of admissibility. See I1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers 5 7-2(A) at 24 ( [tlhis standard is very generous and follows the general framework of the federal rules which favors the admissibility of all relevant evidence )[.]... [dlisputes as to the strength of an expert s credentials, mere differences in the methodology, or lack of textual authority for the opinion go to weight and not to the admissibility of their testimony. Gentty, 195 W.Va. at 52527,446 S.E.2d at LTC s complaint that Dr. Zwierschke s testimony did not include LTC s responses to the DEP s NOVs is meaningless because LTC could have cross-examined Dr. Zwierschke regarding their contents, but elected not to do so. That she had not analyzed the compliance records of competing facilities is likewise meaningless since each of them already has the appropriate permits and the appropriate CON. The question of whether they are suitable facilities to take the drill cuttings currently being received at LTC has already been decided. They are. 8

10 C. Dr. Zwierschke s testimony is not subject to exclusion under Rule 702(b) because it was not based on novel science. Importantly, much of LTC s Discussion of Law has nothing to do with the qualifications of Dr. Zwierschke, but is instead based on Rule 702(b) (or on the Duubert decision on which that Rule is based), which has little or no applicability here. Rule 702(b) applies only to an expert whose testimony depends on novel scientific approaches, and is designed to prevent junk science from being presented to ajury. Rule 702(b) states: (b) In addition to the requirements in subsection (a), expert testimony based on a novel scientific theoty, principle, methodology, orprocedure is admissible only if: (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert has reliably applied the principles and methods to the facts of the case. (Emphasis supplied.) Generally, in West Virginia, opinions by engineers are not subject to this test because such opinions are grounded in technical knowledge rather than application of the scientific method. In Watson v. Inco Alloys Intern., Inc., 209 W. Va. 234, 240, 545 S.E.2d 294, 300 (2001), the Supreme Court of Appeals explained the distinction: [W]e observe that numerous courts, including the Supreme Court of the United States, have generally considered testimony in the field of engineering as technical.rather than scientific. In Kumho Tire Company, Ltd. v. Carmichuel, the Supreme Court of the United States acknowledged that, while disciplines such as engineering rest upon scientific knowledge, 526 US. 137, 148 (1999), engineers are not scientists and, therefore, the Court had to determine how its prior holding in Daubert applied to the testimony of engineers and other experts who are not scientists. 526 U.S. at 141. * * * 5 Daubert v. Mewell Dow Pharmaceuticals, 509 US. 519 (1993). 9

11 Based upon the foregoing, we hold that unless an engineer s opinion is derived from the methods and procedures of science, his or her testimony is generally considered technical in nature, and not scientific. Therefore, a court considering the admissibility of such evidence should not apply the gatekeeper analysis set forth by this Court in Wilt v. Burucker, 191 W.Va. 39, 443 S.E.2d 196 (1993), and Gentlyv. Mungum, 195 W.Va. 512, 466 S.E.2d 171 (1995). LTC cites numerous decisions from other states on page 19 of its brief that rely, in whole or in part, on a Duubert gatekeeper analysis to exclude opinions proffered by engineers in products-liability cases, often because the subject matter was outside the scope of engineering,6 or because the testimony was scientific in nature, as opposed to technical, and was unsupported by appropriate scientific methodology, such as empirical testing of the expert s hypothesis? They have no similarity, legally or factually, to the testimony offered here, which was a technical review of historical documents demonstrating LTC s noncompliance with regulatory requirements, which review enabled Dr. Zwierschke to opine that such noncompliance was related to drill cuttings and negatively impacted the environmental integrity of the facility. D. An operator s history of regulatory noncompliance is relevant to fitness and the public convenience and necessity. As earlier explained, the WCSWA believes that the Commission has already ruled that Dr. Zwierschke s testimony is relevant. However, LTC continues to press this issue in its Brief, again arguing that environmental compliance is exclusively within the province of the DEP. Staff echoes this sentiment. Both LTC and Staff buttress their argument by referring to a 2001 Memorandum of Understanding between the DEP and the PSC regarding their respective roles 6 7 E.g., Gardner v. Aloha Ins. Services, 566 Fed. Appx. 903 (1 1 Cir. 2014). E.g., Bielskis v. Louisville Ladder, Inc. 663 F. 3d 887 (7 Cir ) 10

12 in obtaining and enforcing financial security for a landfill s closure and post-closure obligations.(see Staff Exhibit JWF-D-1.) That Memorandum includes a recitation that the DEP is the State s lead environmental agency, and that the PSC is the lead agency with respect to economic issues, but both recitations were made in the context of closure and post-closure obligations and neither suggests that the PSC is thereby precluded from considering an operator s record of environmental noncompliance in determining whether to grant a CON. It clearly is. In Sexton v. Public Service Com n, 188 W. Va. 305,309,423 S.E.2d 914,918 (1992), the Supreme Court of Appeals of West Virginia stated: Certainly, the PSC may assess, as it did in this case, environmental considerations with regard to the proposed [waste treatment] facility[.] Said Court has held that violations of laws and regulations can, preclude granting a certificate of authority to operate as a motor carrier. Stephens v. Public Service Commission, 177 W.Va.698, 356 S.E. 2d 191 (1987); Browning-Ferris Industries v. Public Service Commission, 175 W.Va. 52, 330 S.E. 2d 862 (1985). In Browning-Ferris the Court further noted Moreover we question the propriety of granting operational authority to a company which has so clearly demonstrated itself to be disrespectful of the rules and regulations of this State. Id. at 55, 865. CONCLUSION Based upon the foregoing, Dr. Zwierschke was qualified to render the expert technical opinions in her testimony. 11

13 WETZEL COUNTY SOLI WASTE A U~~OR~TY By Counsel Kay, Casto & Chaney, PLLC Post Ofiice Box Charleston, WV Telephone: Silas B. Taylor (WV State Bar No. 3712) 106 Savilla Lane Charleston, WV Telephone: (304)

14 CERTIFICATE OF SERVICE I, Robert R. Rodecker, co-counsel for the Wetzel County Solid Waste Authority, do hereby certify that a copy of the foregoing Reply To LTC s Brief Regarding Relevancy And Admissibility Of Opinion Testimony By Intervenor s Expert was served upon the following counsel of record on this 18th day of March, 2015, in the manner so indicated: VIA FIRST CLASS U.S. MAIL, POSTAGE PREPAID: Ancil Ramey, Esquire Steptoe & Johnson PLLC Post Office Box 2195 Huntington, WV E. Dandridge McDonald, Esquire Kurt L. Krieger, Esquire Todd M. Swanson, Esquire Steptoe & Johnson PLLC Post Office Box 1588 Charleston, WV Counsel for Lackawanna Transport Company VIA HAND DELIVERY: John Little, Esquire Transportation Division Public Service Commission of West Virginia 201 Brooks Street Charleston, West Virginia 25301