Expert Witness - Qualifications

Curriculum Vitae

Mark Malachowski - Expert Witness Qualifications

EXPERTISE

Hazardous and Acutely Hazardous Materials Safety and Regulatory Compliance, Process Engineering Evaluations, Auditing and Risk Assessment

EDUCATION

J.D. Northwestern California University of Law, Sacramento

M.S. Natural Resources: California State University, Arcata

B.S. Oceanography: California State University, Arcata

LICENSES AND CERTIFICATIONS

Registered Environmental Assessor: California No. 03523

State Bar of California: No. 242696

Hazardous Materials Investigations: California No. OR 6109

Hazardous Materials Program Management: University of California

EXPERIENCE SUMMARY

2009 - Cited as Expert Witness in Petition for Review with the U.S. Supreme Court*

Expert Testimony: 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.

Expert Testimony: 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.

The 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.

The 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.

Expert Witness Services: 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.

Expert Witness Services: 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.

Expert Witness Services: 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 25143.2(d)(6)).

Administrative Hearings: Represented 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.

Regulatory Compliance: Mr. 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 chemical industries.

His 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.

Chemical 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: Coordinated design 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 Design: 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.

Clean Technology: 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.

PUBLICATIONS

Malachowski, “Contaminated Site Redevelopment: The New Land Reuse and Revitalization Act (AB 389)” (in preparation).

Malachowski, “Recycling PCB Etch Increases Productivity”, Circuitree, November 1997.

Malachowski, “Clean Technology Reduces Need for Waste Treatment”, Pollution Engineering, January 1994.

Malachowski, “Case Study: Waste Minimization at Hewlett Packard, Sunnyvale”, Minimization and Recycling of Hazardous Waste ’92, September22-24, 1992.

Malachowski, “Hewlett-Packard’s Sunnyvale Facility”, Pollution Prevention in California: An Overview of California’s Pollution Prevention Programs and Technologies, July 1992.

Malachowski, “Hewlett-Packard’s Sunnyvale Facility Is a Leader in Waste Minimization”, Pollution Prevention, Autumn 1991.

Malachowski and Cushman, “Regulatory Strategies for Industrial Waste Compliance”, CWPCA Bulletin, Fall 1991.

Malachowski, “Hermaphroditism in the Rock Scallop, Crassadoma (Hinnites) Giganteus, in Humboldt Bay, California”, California Fish and Game, Spring 1991.

Malachowski, “The Reproductive Cycle of the Rock Scallop Hinnitues Giganteus (Grey) in Humboldt Bay, California”, Journal of Shellfish Research, December 1988.

Email: Markmal@eqsinc.com

*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 prejudiced.