25 Apr 2006

Plaintiffs' Criticism of Sampling & Analysis Procedures Lacks Credibility and Demonstrates No Understanding of Judicial Inspection Process

QUITO, Ecuador, April 25, 2006 - Chevron has formally notified the Superior Court in Nueva Loja that a report critical of Chevron's Judicial Inspection sampling and analysis procedures, prepared by a group of technicians hired by plaintiffs' attorneys, is replete with inaccuracies and errors, and displays complete ignorance of the Judicial Inspection objectives, and the sampling and analysis plans, which the plaintiffs own technical experts helped develop.

According to Sara McMillen, Chevron's senior scientific advisor, "This report is clearly designed to direct attention away from data collection flaws and incomplete sample analysis on the part of the Plaintiffs' own experts. The allegation by A. Maest, M. Quarles and W. Powers that Chevron has designed a sampling strategy to intentionally avoid evidence of environmental impacts is simply false and reflects either a willful disregard for the facts or a complete ignorance of the work that we are conducting in the field and the many reports we have issued to date."

There are several key facts that illustrate a continuing effort by plaintiffs to taint the results of the Judicial Inspection process:

  • A sampling plan and analysis plan was developed and agreed to by plaintiffs, Chevron and the Court.
    Chevron experts have followed this plan during every Judicial Inspection.
    Plaintiffs' experts have consistently violated the sampling and analysis plans by:
    • Not analyzing every sample taken
    • Not following appropriate QA/QC procedures
    • Not providing chain -of-custody (COC) documentation
    • Not taking samples properly
    • Not analyzing samples for the full specified list of chemicals
  • The Judicial Inspection process is intended to determine the effectiveness of the remediation program met the agreed to 1995 Remedial Action Plan

Chevron's sampling plan is specifically designed to meet the expectations of the Judicial Inspection process through a thorough plan that includes:

  • sampling of soils in all Texpet-remediated pits as well as soil and groundwater at perimeter points around closed and open pits,
  • sampling of all drinking water sources in the site vicinity,
  • sampling of crude oil and produced water at production stations,
  • sampling of agricultural soils and inspection of crops by agricultural experts,
  • co-sampling of Plaintiffs soil samples.

Plaintiffs have consistently attempted to broaden the scope of this work by:

  • Claiming that Texpet is responsible for contamination and spills that have occurred in the past 15 years while the fields have been owned and operated solely by Petroecuador.
  • Stating that Texpet is responsible for the remediation of sites that were excluded from Texpet's remediation program by the Government of Ecuador and Petroecuador and are currently the responsibility of Petroecuador.
  • Erroneously characterizing unremediated areas as part of Texpet's remediation program and then stating that a site was not remediated.

On the first 33 JI sites, Chevron has conducted far more extensive sampling and testing than the Plaintiffs, testing 631 soil samples and 125 drinking water samples, compared to only 230 soil samples and 15 drinking water samples analyzed by the Plaintiffs. In addition, Chevron has analyzed more of the Plaintiffs' samples than they have themselves, testing 244 split samples while the Plaintiffs analyzed only 230.

The criticisms presented by Maest, Quarles and Powers continue plaintiffs' misrepresentation of the intent of the Judicial Inspection and demonstrates that the technicians:

  • Failed to read the Sampling and Analysis Plans agreed to by all parties
  • Failed to read the Judicial Inspection reports.
  • Failed to attend a Judicial Inspection to observe Chevron's sampling before writing their report.

Chevron's response to this critique, which plaintiffs submitted to the court on March 8, 2006, provides documented evidence of the misrepresentations and errors in the report, including:

Allegation Facts
Chevron selected samples so as to avoid contamination, including collecting only superficial soil samples at closed oil sites and locating samples outside of the expected pathway of contaminant migration

On the contrary Chevron is using the Sampling and Analysis Plan developed jointly with plaintiffs' principle technical consultant and approved by the Court. To ensure a thorough review, Chevron either analyzes a portion of plaintiffs' samples or co-samples at the same location. In other words, Chevron has been collecting samples in the same location as the plaintiffs in addition to those locations identified by its own technical expert.

Additionally, Chevron experts have consistently collected soil samples around the perimeter of sites for two reasons:

  1. to address plaintiffs claims that there is widespread subsurface contamination due to migration of hydrocarbons from pits; and
  2. to determine background concentrations of naturally-occurring metals in soils in the Oriente.
Chevron Collects Soil Samples from Waste Pits in the Superficial, Recently-Added Layer of Topsoil.

The critique fails to mention this is only one part of the sampling plan and experts on behalf of Chevron also sample subsurface soil in every soil boring, collecting 347 subsurface soil samples ranging from depths of 0.3 to 6.28 m deep. This represents approximately 55% of the soil samples collected by experts on behalf of Chevron.

The surface samples are taken, as in any technically sound site assessment, to assess whether there are potential contaminants in the surface soil which may provide a direct exposure to humans via dermal contact or be a potential issue for plants.
Chevron's 'compositing' or mixing of soil samples misses hotspots and violates U.S. EPA Guidance. It is interesting that the plaintiffs' report criticizes Chevron's experts for compositing when plaintiffs' own experts composite their own soil borings and have done so since January 2005. Furthermore the critique states "It is important to note that throughout this analysis we look to USEPA guidance and standards only in order to supplement areas that may not be well defined in Ecuadorian environmental standards." However, in the case of composite sampling, the technicians failed to note Ecuador Decree 1215, in which Anexo 5 provides specifications for composite soil sampling.
Chevron ignores the fact that proper pit closure must always include controls to limit human exposure to the waste that remains and to protect the environment. Such controls typically include deed and zoning restrictions to limit the use of the land for future owners, impermeable barriers to prevent human contact, and limitations on use of the localized groundwater and surface water."

This claim is absurd on many levels:

  1. It ignores the legal fact that Chevron never owned surface rights to the land. They are owned by the Government of Ecuador. Therefore, the Government of Ecuador would be the only party that could legally establish such land use restrictions, if any were necessary or appropriate.
  2. moreover, these sites have continued to be operated by Petroecuador for oil field operations exclusively since 1990. It would be the responsibility of the Government and Petroecuador - not Texpet - to control land use in the area.
  3. Regardless, for major oil producing states in the U.S., such as Texas and Louisiana, no land use restrictions are applied if the TPH concentration in soil is <10,000 mg/kg. All of Texpet's remediated site soils meet the leachable TPH concentrations required by the Government of Ecuador.

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