Malachowski - Expert Witness Qualifications
and Acutely Hazardous Materials Safety and Regulatory Compliance, Process
Engineering Evaluations, Auditing and Risk Assessment
Northwestern California University of Law, Sacramento
Natural Resources: California State University, Arcata
Oceanography: California State University, Arcata
LICENSES AND CERTIFICATIONS
Environmental Assessor: California No. 03523
Bar of California: No. 242696
Materials Investigations: California No. OR 6109
Materials Program Management: University of California
Cited as Expert Witness in Petition for Review with the U.S. Supreme Court*
Provided expert witness testimony for defense in case cited as the
“worst environmental crime” in the history of San Francisco.
Defendant, owner of a manufacturing facility, faced five hazardous waste
law felonies and up to 15 years in prison. Defense prevailed at preliminary
hearing, case dismissed.
In the People of the State of California vs. L. D. Hillman, the defendant was
charged with five felonies of hazardous waste and hazardous substance law. The
violations were as follows: H&S 25189.5 improper storage, transportation,
and disposal of hazardous waste; H&S 25189.5(b) abandonment of hazardous
waste; H&S 25189.5(c) labeling, placarding, or manifesting requirements of
hazardous waste; H&S 25189.5(d) improper storage; H&S 25189.6 reckless
handling and storage of a hazardous waste; and PC 374.8 deposit of a hazardous
substance on a highway.
Provided expert witness testimony at trial for the defense in the United States
of America vs. Evertson. This federal indictment involved complex chemical
engineering, innovative manufacturing process improvements and patent issues.
Based on evidence collected during FBI and EPA investigations, the defendant was
indicted in the US District Court in Pocatello, Idaho. The US government alleged
that the highly explosive nature of 10 metric tons of alkali metals was an
imminent danger and triggered an immediate CERCLA response.
defendant was charged with HMTUSA 49 U.S.C Section 5214, the willful transport
of hazardous waste in violation of DOT regulations pertaining to manifests (40
CFR Part 262), labeling, placarding and packaging, and HMTUSA 49 USC Section
5102, the loading, unloading and
storage incidental to that transport.
defendant was also charged with 42 U.S.C 6928(d) (2)(A), the illegal storage, 42
USC Section 6905(33) and disposal, 42 USC Section 6903(3); 40 CFR Section
260.10, of a hazardous waste. The court made an unprecedented ruling on a Motion
in Limine that an Intermediate Manufacturing Process Stream (IMPS©)
defense as explained by Mr. Malachowski could be raised in Federal court in
opposition to hazardous waste transportation and disposal charges.
Provided expert witness services in Denis
Bolden, et al. vs. Philip Transportation and Remediation, Inc. et al.
The case involved a perception leak from a truck transporting hazardous
materials on a public highway. Services
included assessment of: First Responders Reports and witness depositions, and
evaluation of chemical properties and hazardous material handling regulations.
Provided expert witness services for the defense in case of alleged
violations of Health and Safety Code sections 25189.6 (a) and 25189.5, illegal
transport and disposal of hazardous waste. In the People of the State of
California vs. Miller, the defendant was video taped in a “sting operation.”
Defendant faced a three strike penalty of life imprisonment, if these
charges were counted as felonies.
Provided expert witness services in San
Mar Enterprises vs F.G Budget Tires. The
case involved a fire in a tire storage area that spread to an
adjacent property. EQS prepared a declaration pertaining to fire
causation, and provided technical consulting on related fire code issues that
pertained to tires, acetylene, combustible waste, and vegetation and similar
material, their handling, storage, transportation, exposure effects and control.
Expert Witness Services: Provided expert witness services for the defense in
Daniel Lau v Autotech Technologies. Testified at the deposition and trial. The
issue was whether a wave soldering operation was the source of lead
contamination in a facility.
Expert Witness Services: Provided expert witness services for the defense
in The People of California v Dawsen. Testified at the 1538.5 hearing. Defendant
was charged with illegal storage of a hazardous waste. The issue was whether the
substances were Excluded Recyclable Material (ERM) or if the "material is
used...as a safe and effective substitute for a commercial product." (H&S Code
semiconductor manufacture at administrative hearings of the California
Department of Toxic Substance Control (DTSC), negotiating monetary fines and
penalties down to mitigating measures and compliance schedule and program
implementation. Reviewed laboratory analytical and geological data, preformed
site inspection and completed Phase I as required for compliance. Negotiated
disputed hazardous waste tax liabilities for the generation of hazardous waste
with the DTSC Senior Counsel and the State Board of Equalization (BOE) reducing
liabilities from $64,000 to $16,000 in one case, and resulting in the removal of
a $250,000 lien in another.
Malachowski has 20 years of experience in environmental science, engineering and
regulatory affairs. He has provided
services to the law firm Orrick, Herrington and Sutcliffe, Western Digital
Corporation, National Semiconductor, Micrel, Vishay (Siliconix), Novellus
Systems Inc., Kamatsu Silicon America, Sigma Circuits, Toxichem Systems Inc. and
BenTyler Enterprises Inc. consultants, and dozens of clients in the
semiconductor, printed circuit board, metal finishing, pharmaceutical and
government experience includes providing consulting services to the US Navy and Department
of Defense, and working for the cities of Sunnyvale, Palo Alto and Arcata, and
the State of California. His
experience includes industrial process and waste water treatment engineering,
system monitoring and control design, risk assessment and management, and
environmental and safety regulatory compliance. He specializes in federal, state and local regulatory
requirements for industries handling large quantities of acutely hazardous
materials and aqueous wastes.
Industry Pollution Engineering and Compliance: Conducted
HAZOPs and prepared RMPP documents for National Semiconductor and Sigma
Circuits. Managed compliance, health and chemical safety and waste treatment
engineering for Micrel, Vishay, Performance Semiconductor, Photronics, Silicon
Valley Printed Circuits, South Valley Circuits, ENS, PK Selective Metal
Finishing, and Itel, for acutely hazardous materials handling, air permits, TGO,
IWDP, PBR, and SB-14.
Managed teams that audited Orbit Semi-conductor, and conducted a Phase I of the
Intel Livermore site. Managed
facility closure of Nycomed Salutar, a pharmaceutical manufacturer and
Photronics a semiconductor manufacturer. Prepared
environmental reports for Western Digital Corporation. Conducted a Phase I for
an oil well property and Photornics. Audited
SB-14 reports prepared by IBM, Komag, Intel, Hewlett Packard, Hadco and AMD.
Process Engineering Project Management:
modifications, obtained permits and rebates and managed installation of a
printed circuit board etch recovery system that increased productivity 25%,
reduced water use by 20,000 gallons per day and eliminated the need to procure
and dispose of ten 55 gallon drums of copper etch per week at Silicon Valley
Printed Circuits; results are published in Circuitree, November 1997.
Superfund Groundwater Cleanup Project
Negotiated with Westinghouse and the Environmental Protection Agency
(EPA) on cleanup strategies for a groundwater solvent and PCB remediation
project. Evaluated design
proposals, health risks, and reviewed project results for pilot and full-phase
cleanup. By presenting a well-
considered plan to the EPA, Westinghouse was allowed to pursue one of the less
restrictive options, which reduced project costs.
Pilot Waste Minimization Audit, Circuit
Board Manufacturer Regulatory Affairs:
Managed negotiations with Hewlett Packard (HP) executives to gain their
cooperation in conducting a pilot waste minimization audit.
The audit won the 1991 EPA National Pretreatment Award and was recognized
statewide by California EPA and nationally by the Hazardous Materials Control
Institute as a model program. Improved
waste management alone at HP resulted in a $210,000 per year cost savings.
Moffett Field NAS/NASA and NAS Alameda
Clean Water Act (CWA) Compliance: Worked with Navy Public Works to
ensure compliance with federal, state and local governments and agencies.
Determined sources of heavy metals, corrosives and solvent discharges and
recommended corrective action at Moffett Field Naval Air Station and NASA,
Moffett Field. Monitored Phase I Superfund cleanup discharge.
Developed NAS Alameda Storm Water Discharge Annual Report.
Treatment System Design:
Managed a water quality laboratory, conducted systematic analyses, and
used the results to make design modifications in an experimental waste water
treatment system. This project
received a Ford Foundation Award for innovative design.
The design was successfully used worldwide.
Completed an initial system design assessment for storm water treatment
for Naval Air Station Alameda.
Mr. Malachowski met with Mr. Roger Papp, the environmental director of
Elf Atochem, the chemical division of Elf Aquitaine, in Paris, France in the
spring of 1993. At this meeting,
clean technology, which favors efficient management of chemicals and their
related processes, was discussed in the context of corporate-wide strategic
planning. Procedures for recycling
hydrochloric acid from the chlorinated hydrocarbon production process for use in
ferric chloride production was the basis of an article by Mr. Malachowski
published in Pollution Engineering.
“Contaminated Site Redevelopment: The New Land Reuse and Revitalization Act
(AB 389)” (in preparation).
“Recycling PCB Etch Increases Productivity”, Circuitree, November 1997.
“Clean Technology Reduces Need for Waste Treatment”, Pollution Engineering, January 1994.
“Case Study: Waste Minimization at Hewlett Packard, Sunnyvale”, Minimization
and Recycling of Hazardous Waste ’92, September22-24, 1992.
“Hewlett-Packard’s Sunnyvale Facility”, Pollution
Prevention in California: An Overview of California’s Pollution Prevention
Programs and Technologies, July 1992.
“Hewlett-Packard’s Sunnyvale Facility Is a Leader in Waste Minimization”, Pollution
Prevention, Autumn 1991.
and Cushman, “Regulatory Strategies for Industrial Waste Compliance”, CWPCA
Bulletin, Fall 1991.
“Hermaphroditism in the Rock Scallop, Crassadoma (Hinnites) Giganteus, in
Humboldt Bay, California”, California
Fish and Game, Spring 1991.
“The Reproductive Cycle of the Rock Scallop Hinnitues Giganteus (Grey) in
Humboldt Bay, California”, Journal of
Shellfish Research, December 1988.
*On July 20, 2009, the
Washington Legal Foundation filed a petition in the U.S. Supreme Court, urging
it to review the criminal conviction of Krister Evertson who was found guilty of
storing “hazardous wastes” without a permit. The petition set forth the argument
that the chemicals were not properly classified as “waste” because Evertson had
not abandoned them.
The Petition for Writ of Certiorari (http://www.wlf.org/Upload/litigaiton/briefs/EvertsonCertPetition.pdf)
states, ”Mr. Evertson introduced substantial evidence that he had not abandoned
the material stored at Steel and Ranch. With respect to the process sludge, he
introduced the testimony of an expert witness, Mark Malachowski, who testified
that the process sludge was part of an “intermediate process stream.” He
testified that creation of the process sludge (a mixture consisting of borax,
sodium, silicon and mineral oil) was a large step toward the creation of sodium
borohydride. He testified that even after two years, the mixture could be turned
in to sodium borohydride by injecting hydrogen into the mixture and heating it
to the critical temperature. He estimated that the process of manufacturing
sodium borohydride was 70-80% complete. Accordingly, he opined, the process
sludge should not be considered junk – it had value because it could be used to
complete the manufacturing process.”
RCRA is an extremely complicated statute that is a trap for the unwary. A
significant source of confusion is the regulation adopted by the EPA. When
handled in a certain manner, a hazardous substance may be deemed to be a
hazardous waste. However, the handling distinction is so esoteric, that courts
tend to defer to the expertise of the EPA, and consider all hazardous substance
as hazardous waste. One method of handling that would transform a hazardous
substance into a hazardous waste is disposal.
Thus, if the EPA confiscates a material, and then disposes of it, it is deemed a
hazardous waste, even though the material was a valuable hazardous substance
before it was confiscated. If the court refers to the hazardous substance as a
hazardous waste in the jury instructions, the defendant’s rights are severely
Copyright © 2007 - 2011