LEGAL ASPECTS OF ANALYTICAL DOCUMENTATION 



The legal elements that must be proven to attach liability to a specific 

 discharger (Dunnigan 1978) are listed in Tab n e 2. It is apparent that data 

 derived from the analytical documentation procedure described previously 

 would be useful in proving a number of the required legal elements. For in- 

 stance, analytical data could be used to establish that a spill occurred, 

 although photographic documentation and eyewitness accounts would be more 

 useful. Analytical data used to "fingerprint" the spilled substance would 

 undoubtedly be influential in establishing that a specific discharger caused 

 the spill, if the discharger contested his liability. Unfortunately, it does 

 not appear that analytical data will help to establish the validity of what 

 is probably the most difficult legal element to prove, which is, that the 

 spill actually did do significant damage to the environment. This statement 

 relates primarily to damage done to populations or communities. Many forms 

 of acute short-term environmental damage, such as fish kills and kills of 

 waterfowl are easily detected. Even though such observations are easily 

 made, however; it is difficult to estimate the effects of the kills at the 

 population or community levels. For instance, who really knows what percent- 

 age of a fish kill is represented by the carcasses that wash ashore? As 

 suggested by this observation, it is much more difficult to prove that a popu- 

 lation or community was damaged than that an individual organism was damaged. 



Table 2. Legal Elements that Must be Proven 

 to Attach Liability (Dunnigan 1978) 



1 . The spill occurred 



2. A specific discharger caused the spill 



3. There was environmental damage 



4. The spill caused the environmental damage 



5. The cost of cleanup and restoration and/or 

 replacement of natural resources 



There is as yet no universally accepted method for determining that a particu- 

 lar population or community was damaged by a spill. It seems likely, however, 

 that regardless of what population parameters are measured, the biologist must 

 establish that the: (1) system of interest changed following the spill, (2) 

 magnitude of the change was greater than expected based on estimates of the 

 normal variation of the system, and (3) change actually represented damage 

 to the system. Point number one, that the system changed, can usually be 

 determined empirically, and point number three, that the change actually repre- 

 sented damage to the system, will probably be established in court through 

 arguments based on expert opinion. Point number two, that the change was 

 greater than could be explained by the norma'i variation of the system, is the 



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