ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
EPA
NEIC POLICIES
AND
PROCEDURES MANUAL
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
DENVER. COLORADO
MAY 1978
%
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Environmental Protection Agency
Office of Enforcement
EPA-330/9-78-001
NEIC POLICIES AND PROCEDURES MANUAL
May 1978
National Enforcement Investigations Center
Denver, Colorado
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FOREWORD
As part of the Environmental Protection Agency, the National
Enforcement Investigations Center provides the Office of Enforcement
with technical information and evidence in support of EPA legal
actions. For this reason, the legally oriented standard operating
procedures described in this manual are important to every employee.
This manual discusses NEIC project phases, then presents pol-
icies and procedures which employees are responsible for knowing and
following. Should employees be called to testify as government
witnesses, they must be able to relate the facts acquired during
field and laboratory investigations in a truthful, confident, and
straightforward manner; helpful Witness Guidelines are appended to
this manual. By adhering to the Center1s policies and procedures,
employees protect both their professional careers and the integ~ity
of NEIC.
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CONTENTS
I
NEIC PROJECT PHASES. . . . . . . . . . .
INTRODUCTION. . . . . . . . . . . . .
PROJECT REQUEST. . . . . . . . . . . .
BACKGROUND REVIEW. . . . . . . . . . .
PROJECT PLAN. . . . . . . . . . . . .
PROJECT ACTIVITIES. . . . . . . . . .
REPORT. . . . . . . . . . . . . . . .
FOLLOWUP . . . . . . . . . . . . . . .
NEIC OPERATING POLICIES AND PROGEDURES. .
EMPLOYEE CONDUCT. . . . . . . . . . .
PROJECT COORDINATOR
RESPONSIBILITIES AND AUTHORITY. . . .
SAMPLE CONTROL. . . . . . . . . . . .
DOCUMENT CONTROL. . . . . . . . . . .
QUALITY ASSURANCE MANAGEMENT. . . . . .
II
APPENDICES
A
B
Witness Guidelines
Safety Precautions When Accepting
Samples From Outside Sources
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I. NEIC PROJECT PHASES
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I.
NEIC PROJECT PHASES
INTRODUCTION
The projects undertaken by NEICspan a wide variety of activi-
ties. from one employee performing technical. supportive or admini-
strative tasks. to numerous employees from divergent disciplines
working as a team to accomplish a series of complex tasks. Most of
the Center's projects consist of these phases:
Project Request
Background Review
Project Plan
Project Activities
Report
Followup
This section of the manual discusses the items covered in each phase
which are common to most projects. and highlights NEIC policies per-
tinent to each phase.
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PROJECT REQUEST
All HEIC projects are preceded by requests for work to be per-
formed. Among the variety of requests received by HEIC for technical
assistance, many involve projects which require extensive field work
and which address pollution problems in more than one medium.
Others include, for example, a technical and/or legal review of an
abatement proposal, or analytical support for a Regional enforcement
case.
The content of the project request is essential to the success
of the project. To assure that NEIC is as responsive as possible, it
will consider informal requests from sources within the Agency.
However,. the official requester must followup with a specific written
request detailing the objectives, relating those objectives to an
enforcement action, and identifying the requester's contact. A
written, in addition to a verbal, request ensures HEIC of administra-
tive accountability and clarity of project definition, as well as
allowing management to adequately coordinate and schedule the Center's
workload.
Official requests for technical assistance will be received only
from the following:
Administrator
Deputy Administrator
Assistant Administrator for Enforcement
Deputy Assistant Administrators }. .
Headquarters Division Directors ----In the Offlce of Enforcement
Department of Justice, Headquarters ----with the knowledge and con-
currence of the Asst. Adminis-
trator for Enforcement
J
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Regional Administrators
Deputy Regional Administrators
Regional Enforcement Division Directors
Other Regional Division Directors! with the knowledge and
U.S. Attorney's Offices ----concurrence of the Regional
State and Local Program Directors Enforcement Division Director
After an official request has been received and accepted, NEIC
will acknowledge it, generally by memorandum stating the tentative
schedule for completing the work. The acknowledgement, usually sent
to the requester before any work begins, designates specific NEIC em-
ployees as contacts for technical work and legal coordination, and
s~eks access to all files related to the work. In some cases, for
example, requests for technical support or review of an abatement
proposal, the acknowledgement memorandum can provide a sufficient
outline of work activity.
To accomplish the objectives of a request efficiently and effec-
tively, a Project Coordinator is usually named. The selection of
this individual is generally determined by the type investigation or
assistance requested, such as: a multi-media evaluation with or
without sampling; case preparation; performance audit; pesticide
misuse investigation; or control technology assessment. In some
instances, a technical assistance request may involve only one
individual---for example, a detailed control technology assessment;
or it may .involve only analytical support---such as pesticide an-
alyses on Regional misuse investigations; or it may require support
from several Branches within NEIC.
When the project is confined to one Branch, the choice of who or
whether to name a Coordinator for a technical assistance project lies
with the Branch Chief. However, in those cases where more than one
Branch is involved, the Assistant Director for Technical Programs,
after consultation with the appropriate Branch Chiefs, will issue a
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memorandum designating the Coordinator. The individual selected will
have demonstrated through past performance as Project Coordinator, or
as an assistant, the ability to carry out the extensive administra-
tive and field responsibilities of the Project Coordinator (as de-
scribed in Section II).
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BACKGROUND REVIEW
Review of the available background information applicable to a
specific project is essential, and is a logical first step in pro-
viding technical assistance. The scope and duration of the back-
ground review will vary with the complexity of the project request.
Background information is available at the Center through the in-house
and affiliated libraries and the NEIC computerized data retrieval
systems. However, for certain projects it will be necessary to make
visits to EPA headquarters, Regional offices and/or State and local
agencies to review and obtain copies of pertinent file information.
Where necessary, a reconnaissance of the project site provides veri-
fication or updating of background information. Examples of the
types of information which may be obtained during a background review
include: the applicable laws and regulations, the status of current
and pending litigation related to the project, Regional Office legal
strategy and how the NEIC study relates to the strategy, specific
descriptions of related process and pollution control systems, copies
of relevant source permits and compliance schedules, past self-monitor-
ing data, and availability of well-established analytical methods.
It is, emphasized that'the primary purpose of such a review stage
is to familiarize NEIC personnel with the background'of the work
request, and possible legal ramifications, so that a project plan can
be developed. Moreover, information obtained during the review will
often be used later in the actual conduct of the project, and in
preparing the report. Therefore, it is important to conduct as
thorough a review as possible early in the project development. The
background review may even continue throughout the project to obtain
needed information.
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PROJECT PLAN
The project is outlined in a general manner when HE1C acknowl-
edges acceptance of the official request. After sufficient background
information has been obtained and evaluated, a more comprehensive
project plan is usually prepared based on the specific objectives and
tasks in the project request. For projects that are small in scope,
the acknowledgment memorandum may also serve as the project plan.
Projects such as complex pollution control evaluations, NPDES permit
compliance evaluations, air pollution source surveys, ambient air and/or
receiving water quality surveys, pesticide use investigations, and
solid/hazardous waste disposal evaluations normally will require a
detailed project plan.
Prepared by the Project Coordinator, the project plan thoroughly
details the course of the project in terms of scope, logistics and
schedules. Among the items addressed in the project plan are:
l.
2.
objectives of the project
background information, including a summary of process(es),
applicable regulations or permit conditions, etc.
survey methods, including sampling locations, schedules and
procedures, analytical requiremtns, quality control program,
etc.
process data to be collected
personnel and equipment requirements
safety program and equipment
3.
4.
5.
6.
The Project Coordinator works closely with NEIC.s Branch Chiefs
and other management personnel to clarify items such as sampling equip-
ment required, analytical capabilities, logistical requirements, and
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personnel availability. The Project Coordinator also communicates
with the requester or designated representative to ensure that the
plan being developed addresses the tasks requested and focuses on the
objectives.
The importance of the project plan cannot be overemphasized.
The plan approximates an agreement between the requesting party and
those individuals performing the work. Manpower, equipment needs and
logistics can be forecast and scheduled. The need for additional
equipment, contract services, or personnel can be determined far
enough in advance so that these can be secured expeditiously.
The project plan should be provided by NEIC to the requester and
the survey team at least two weeks before any specific field, labora-
tory, or consultant activity is undertaken. If no comments on the
plan are received from the requester during this period, it is assumed
that the plan has been approved. Changes made to the project plan
will be coordinated with the requester by the Assistant Director for
Technical Programs. If considered necessary, a meeting will be held
between the appropriate HEIC personnel and the requester to discuss
any differences and modifications. Once all concerned parties agree
to the project plan, it serves as a reference document for the project.
However, during the conduct of the project, some modifications
to the plan may be deemed necessary by NEIC personnel when unforseen
circumstances arise. To this end, the project plan will contain a
statement that the plan is subject to change. If the requester
desires changes in the project plan after the project activities have
commenced, such requests will be directed to the Assistant Director
for Technical Programs, who will con~ult with the Project Coordinator
and Branch Chief(s). The requested changes will subsequently be
detailed in a memo from the requester to the Assistant Director.
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PROJECT ACTIVITIES
Technical duties such as information searches. inspections.
evaluations. sampling surveys. observations. data gathering and an-
alytical testing are performed according to established procedures as
applicable. When new methods or modifications to existing procedures
are required. they must be documented as expeditiously as possible.
Because of the close scrutiny that may be given to NEIC-gathered data
during litigation. all samples are maintained under chain-of-custody
procedures and accounted for by a document control program. To ensure
that all procedures practiced at NEIC yield accurate data. these
procedures are audited routinely through a quality assurance manage-
ment program. (See Section II for procedures and programs.)
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REPORT
The final report is the culmination of all the project efforts,
and it can be the requester's basis for enforcement actions. The
report is extremely important because it might be used as evidence in
legal proceedings.
The overall responsibility for preparing the final report is
that of the Project Coordinator, who, along with the management of
NE1C, bears the burden for the accuracy and defensibility of the
report and its conclusions. Achieving this goal, however, requires
that each Branch participating in the project assure that its indi-
vidual contributions ,to the report are accurate.
The form of the final report will vary with the type and com-
plexity of the project. Some projects can be adequately presented in
a memorandum, while other more complex projects will require extensive
data and information presentation and discussion. All reports,
however, must be accurate and legally defensible.
A color code has been adopted for all bound reports prepared at
NEIC. A black cover is reserved for a report specifically targeted
for enforcement case preparation. A red cover indicates a profes-
sional paper, special project, or technical information compilation
not directly related to enforcement action. The green cover is used
for a unique publication type, such as the NE1C Safety Manual. All
white-cover reports are draft copies of the above categories. Spe-
cific details for document control procedures related to draft copies
of reports are covered in Section II.
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The NEIC library maintains a set of the Center's bound reports,
most of which are also on microfilm or are available from the Technical
Services Branch supply. Other short-form reports are available in
the various Branch files, as well as the Central File (described in
Section II). Each employee is encouraged to become familiar with the
various forms of NEIC reports.
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FOLLOWUP
Completion and transmittal of the project report do not neces-
sarily signify the end of NEIC's involvement with the project.
Often, telephone discussions and/or meetings are held between the re-
quester and NEIC to review the project work. This helps assure that
all project objectives have been met and that the report is clear and
accurate. Followup involvement by NEIC personnel in subsequent legal
p~oceedings has and will continue to occur. In such cases, NEIC
personnel may be involved in enforcement case preparation and serve
as, or be deposed as, witnesses [Appendix A gives Witness Guidelines
for preparing testimony as a professional witness]. Other reports
may affect EPA policies or serve as forerunners for additional en-
forcement studies.
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II. NEIC OPERATING POLICIES AND PROCEDURES
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II.
NEIC OPERATING POLICIES AND PROCEDURES
EMPLOYEE CONDUCT.
EPA employees are required to perform their duties in a profes.
sional and responsible manner, refraining from any use of official
position for private gain. NEIC employees are also required to
collect and report the facts of an investigation completely, accurately
and objectively. They must also conduct themselves at all times in
accordance with the regulations prescribed in the EPA handbook,
RESPONSIBILITIES AND CONDUCT FOR EPA EMPLOYEES; the following four
paragraphs review some topics in the handbook especially applicable
to NEIC work.
Employees shall avoid conflicts of interest through outside em-
ployment 'or other private interests. A conflict of interest may
exist whenever an EPA employee has a personal or private interest in
a matter which is related to his official duties and responsibilities.
It is important to avoid even the appearance of a conflict of interest
because the appearance of a conflict damages the integrity of the
Agency and its employees in the eyes of the public. All employees
must, therefore, avoid situations which are, or give the appearance
of, conflicts of interest when dealing with others in or outside the
government.
Good public relations and common sense dictate that employees
dress appropriately and with proper safety equipment for the activity
in which engaged. When in the laboratory, field, or industrial
facility, employees should consult their supervisor and the NEIC
SAFETY MANUAL relative to proper attire and safety requirements.
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~
It is important that cooperation be obtained and good working
relations established when working with the public. This can best be
accomplished by using diplomacy, tact, and persuasion. Employees
should not speak of any person, other regulatory agency or facility
in a derogatory manner, and should use discretion when asked to give
a professional opinion on specific products. All information ac-
quired during an employee's duties is for official use only.
An employee is forbidden to solicit or accept any gift, gra-
tuity, entertainment, favors, loans, or any other thing of monetary
value from any person, corporation, or group which has a contractual
or financial relationship with EPA, which has interests that may be
substantially affected by such employee's official actions, or which
conducts operations regulated by EPA.
ENTERING A FACILITY
Authority
Various Federal environmental statutes grant EPA enforcement
personnel authority to enter and inspect facilities. The authority
granted in each statute is similar to that stated below, in Section
308 of the Clean Water Act:
lI(a)(8) the Administrator or his authorized representative, upon
presentation of his credentials -
(i) shall have a right of entry to, upon, or through any prem-
ises in which an effluent source is located or in which any
records required to be maintained ... are located, and
(ii) may at reasonable times have access to and copy any rec-
ords, inspect any monitoring equipment or method required. . .,
and sample any effluents which the owner or operator of such
source is required to sample. .. "
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For the specific requirements on conducting inspections and col-
lecting data pursuant to a particular Act, see: Section 114 of the
Clean Air Act; Section 9 of the Federal Insecticide, Fungicide, and
Rodenticide Act; Section 3007 of the Resource Conservation and Recovery
Act; Section 8 of the Toxic Substances Control Act; and Section 1445
of the Safe Drinking Water Act.
Unreasonable Search and Seizure
EPA authority under the various Acts is subject to the lIunreason-
able search and seizurell provisions of the Fourth Amendment to the
Constitution. The prohibition is not against all searches and seizures,
but only those which are unreasonable or to which valid consent, if
required, has not been given. Consent, in this context, means the
intentional foregoing of right to privacy which is not the result of
either fear, ignorance or trickery.
To comply with the Acts and avoid any lIunreasonable searchll and
procedural problems, a facility should be entered in the following
manner:
1. The plant premises should be
or through the entrance designated by
inspection notification letter.
entered through the main gate
the source if in response to an
2. The employee should introduce himself in a dignified, cour-
teous manner to a responsible plant official. A responsible plant
official may be the owner, operator, officer or agent in charge for
the facility, including the plant environmental engineer. Identifi-
cation credentials should always be shown.
3. If there is only a guard present at the entrance, the em-
ployee should present his credentials and suggest that the guard call
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his superior on the phone.
responsible official he is
call him directly.
If the inspector knows the name of the
to see, he should request the guard to
4. If the Company provides a blank sign-in sheet, it is accept-
able to sign it. NEIC employees shall not, however, sign a release
(waiver) when entering a facility under the authority of Federal law.
5. If entry is refused, the employee should not contest the
issue with the facility representative, but will immediately do the
following:
a.
Obtain name and position of the individual representing the
source;
b.
Cite Section 308 of the Clean Water Act, Section 114 of the
Clean Air Act, or other appropriate EPA-administered legis-
lation, ask if he/she heard and understood the reason for
your presence, record the answer and any reasons given for
denial of entry;
c.
Leave the premises.
After leaving the facility, the employee should, at the earliest
possible moment, inform by telephone the NEIC Enforcement Specialist
Office, and the appropriate Regional enforcement attorney of the
events which took place.
~UESTING INFORMATION
Section 308 of the Clean Water Act and Section 114 of the Clean
Air Act address the protection of trade secrets and confidential
information. As a general policy, EPA is extremely reluctant to
accept this type of information unless it is necessary for carrying
out Agency functions under these Acts.
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In compliance with EPA regulations, an NEIC request for Company
information, pursuant to statutory authority, will contain a state-
ment allowing the facility to designate all or part of the information
requested by the Agency as confidential by marking it according to:
Code of Federal Regulations, Title 40, Part 2, Section 203.41; or
Federal Register, 41 FR 36902. In addition to citing the appropriate
regulation(s), the NEIC request should state that:
(1)
the business may, if it desires, assert a business confi-
dentiality claim covering part or all of the information in
the manner described by [the applicable regulation], and
that information covered by such a claim will be disclosed
by EPA only to the extent, and by means of the procedures,
set forth in [the applicable regulation];
(2)
if no such claim accompanies the information when it is
received by EPA, it may be made available to the public by
EPA without further notice to the business.
Wheh conducting a plant evaluation, inspection or reconnais-
sance, NEIC personnel should not accept confidential information un-
less it is absolutely essential in carrying out NEIC responsibili-
ties. In those limited situations, the source should be requested to
identify the material, in writing, which is entitled to confidential
treatment as a trade secret. In addition, reasons should be given to
substantiate the claim, including any supportive technical data or
legal authority. By statute, effluent and emission data are not con-
fidential. Any confidential information received in the mail or
hand-delivered should be handled as outlined in the document control
program (see page 28).
DISCLOSURE OF OFFICIAL INFORMATION
It is EPA policy to make information about EPA and its work
available, freely and equally, to all individuals, groups and
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organizations. This policy, however, does not extend to investigatory
information or evidence relating to the suspicion of a violation of
Federal environmental laws.
Any NEIC employee who receives a request, written or oral, for
inspection or disclosure of NEIC investigatory records, whether made
under judicial discovery procedures or the Freedom of Information
Act, shall immediately advise the Chief, Enforcement Specialist
Office for approval to release the information. Non-confidential
information, however, may be disseminated to other EPA officials with
the approval of the appropriate Regional Office. All requests for
"confidential" information should be referred to the Chief, Enforcement
Specialist Office.
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PROJECT COORDINATOR RESPONSIBILITIES AND AUTHORITY
The Project Coordinator, the selection of whom is described in
Section I, is the primary contact for a specific, assigned project.
All communications with the Regional, State, local and company offi-
cials and to the press need to be coordinated through this individual.
PROJECT PLAN
The Project Coordinator is responsible for preparing the project
plan. This will involve obtaining the necessary inputs from the re-
quester (Region, Headquarters, etc.), all affected NEIC Branches, the
legal staff, the safety officer, and the administrative staff. A
draft plan (stamped DRAFT REPORT FOR AGENCY REVIEW ONLY, DO NOT
DUPLICATE) will be provided for internal review to all Branch Chiefs
and other affected parties. The Coordinator is responsible for
disseminating the draft project plan for review and ensuring that all
draft plans are returned. After comments have been incorporated into
the final project plan, all drafts will be disposed of and a revised
copy will be sent to the Region or other EPA organization requesting
the work. As a general rule, the final plan should be sent to the
requester and given to project participants at least two weeks before
any field work begins.
A briefing on the plan will be held prior to beginning any field
work. At that time, those aspects of the study such as test methods,
chain-of-custody procedures, legal aspects, safety requirements, and
document control will be discussed with all participants in the
project, who are expected to read the project plan and be aware of
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the required procedures. (Section I discusses changes to the project
plan once it has been transmitted to the requester.)
ADMINISTRATIVE MATTERS
Petty Cash and Procurement Requests
The Project Coordinator is responsible for determining petty
cash needs for the study and designating those individuals who will
receive petty cash. Proper receipts are necessary to receive credit
for petty cash. When appropriate, the Project Coordinator will
arrange to use purchase orders in the field. For example, ice is
often required in large quantities during a survey; thus, a purchase
requisition would be appropriate. Prior to the survey, the respec-
tive NEIC Branches are expected to submit purchase requisitions for
survey needs in a timely fashion to avoid emergency requests.
Time Keeping
The Project Coordinator is expected to certify as correct the
Time Reports used by field personnel to report regular time, over-
time, and compensatory hours. It is expected that Project Coordina-
tors and Branch Chiefs be familiar with the Fair Labor Standards Act,
the EPA Pay Administration Manual as it pertains to overtime, holiday
and hazardous-duty pay, and compensatory hours. As appropriate, the
Coordinator will be provided a packet containing the necessary pay
manuals, policy statements, and forms. Instructions for the completion
and submission of time records will be provided by the respective
Branch Chiefs.
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FIELD ACTIVITIES
The Project Coordinator shall have the overall responsibility
for determining that all field activities are carried out expedi-
tiously and that the project objectives. Branch Chiefs are expected
to assign personnel capable of carrying out the Branch responsibility
associated with a particular study; these personnel are expected to
understand and follow the procedures relative to their assignments.
The necessity for change from the project plan not affecting the
objectives or overall scope of the study---such as addition or deletion
of sampling points; modifications to schedules or frequencies; or
changes in analytical load---will be coordinated through an approved
by the Project Coordinator. This includes any support work being
conducted in Denver.
Transportation needs in the field will be determined during the
planning stage. GSA vehicles will be used whenever available. The
Project Coordinator will be responsible for assuring that vehicles
and mobile laboratories transported from Denver will generally travel
in convoy, and it is imperative that the Project Coordinator be
notified immediately of any delays that occur enroute. It is also
expected that the rolling stock (mobile labs, vehicles, boats, monitor-
ing equipment) are kept in a state of readiness. If equipment is
returned from the field needing repair, maintenance, or overhaul, it
shall be accomplished expeditiously by the appropriate Branch.
During the field study, the Project Coordinator is responsible
that all chain-of-custody and quality control procedures for sampling,
flow monitoring, analyses, record keeping, etc. are followed. The
field personnel are, however, expected to understand and follow the
custody procedures relative to their assignments. Following completion
of the field activities and before returing to NEIC, the Project
Coordinator shall assure that all field documentation is complete.
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The Project Coordinator is responsible and has the authority for
assuring that all field work is conducted safely, using all required
safety equipment. All employees are expected to read and adhere to
the NEIC SAFETY MANUAL.
REPORT WRITING
The Project Coordinator, in cooperation with other personnel,
will develop an outline and determine the writing assignments for a
project report. The Coordinator is responsible for assembling the
r~port and circulating review copies which will be numbered and
stamped DRAFT REPORT FOR AGENCY REVIEW ONLY, DO NOT DUPLICATE. The
Coordinator shall make every attempt to ensure that all draft copies
are returned, and incorporate appropriate comments. In preparing
reports, the quality of, and the ability to substantiate and defend
the contents, are foremost. The Project Coordinator and NEIC manage-
ment are responsible for assuring that all NEIC reports achieve this
goal.
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SAMPLE CONTROL
A sample* is physical evidence collected from a facility or from
the environment. An essential part of all NEIC enforcement investiga-
tions is that the evidence gathered be controlled. To accomplish
this, the following sample identification and chain-of-custody pro-
cedures have been established.
SAMPLE IDENTIFICATION
The method of identification of a sample depends on the type of
measurement performed. An in-situ measurement is one in which the
sample is collected and/or the measurement performed and the data are
recorded directly in logbooks or Field Data Records (FDRs), with
identifying information while in the possession of the sampling team.
Examples of in-situ measurements are pH, temperature, conductivity,
flow measurement, continuous air monitoring, and stack gas analysis.
Samples other than in-situ measurements are identified by a
sample tag (page 11-12) or other appropriate identification (hereinafter
referred to as a sample tag) attached to or folded around the sample.
Included on the tag are the sample identification number, date, time and
location of sample collection, designation of the sample as a grab or
composite, the type of sample and preservative, any remarks, and the
*
For purposes of this manual, the term . sample' includes remote
sensing imagery.
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a :;0 ,,"") 3: a .D
18. Ambient Filter/None N ;x:.mZ c :-
N "Tl -I Z CD
19. Solid Adsorbant/Ice or freeze Ul m ...... -I )::0 ::I
00 oJ) n
20. Ambient ~Pinger/Amb. or Ice m Z m CD
;;oVl Z
'21. Benthos/ hanol or FOrmal ;x:. \> Z
,\> -< 0
22. Bacteriology/Ice, m '
nz
23. Plankton/Formal;HgC12;Lugol's m -I
:~Cl~ Z m 3:
24. Chlorophyll/Ice or freeze -1:;0 0
m .
25. Pathogenic Bacteria/Ice :;0 ........
0
26. \> p,
0 '<
3 ........
'0 -<
-s
Remarks: 0
-i
'" ......
-s 3
p, CD
c-
a to O:;t ~
"2 3A, 81 'i
- 1/1 (~
. ~ o(!I../U-
I . ~
s t/~d
p _.-". .
~6k . '
~..~
. I" ooo~ 000<, de.,
. ,~t., 99.99
.----'
~(l
C)~)t '~J L
S N'f ¥ ()/1
-------
11-13
(6/78)
signature of the sampler. Each sample's identification number con-
sists of a three-digit project code assigned by NEIC, a two-digit
station number assigned by the Project Coordinator and listed in the
project plan, and a two-digit (three as required) sequence number
assigned by the sampler(s) at the time of sample collection. At each
station, the sequence number begins at 01 for each sample type and is
increased by one (1) each time a sample is collected or composited
for the particular sample type, regardless of date or time. Thus,
for e){ample, if the 10th "metals" sample was collected at the same
time as the 17th "nutrients" sample at the same station, the sequence
numbers would be 10 and 17, respectively. The information listed
above is also recorded in the appropriate logbook or FOR, along with
any pertinent in-situ measurement data and field observations. Thus,
while provision will be made where circumstances require a slight
modification to the number sequence for a specific survey, a typical
sample number will be:
Project Code
Station No.
Sequence No.
or, 202-03-07.
202
03
07
After collection and identification, the sample is preserved and
maintained under the chain-of-custody procedures discussed below. If
the composite or grab sample collected is to be split with the company,
it should be aliquoted into similar sample containers. Sample tags
with identical information are attached to each of the samples, with
the Company tag being marked as IICompany Split. II The same procedure
is followed when splitting samples with other EPA Regional Offices,
Federal or State agencies; the appropriate agency is marked on the
split sample tag. In a similar fashion, all tags on blank or dupli-
cate samples will be marked IIBlankll and "Duplicate," respectively.
-------
II-14
(6/78)
CHAIN-OF-CUSTODY PROCEDURES (March 29, 1978)
Due to the evidentiary nature of samples collected during en-
forcement investigations, the possession of samples must be traceable
from the time the samples are collected until they are introduced as
evidence in legal proceedings. To maintain and document sample
possession, chain-of-custody procedures are followed.
Sample Custody
A sample is under custody if:
1.
2.
It is in your &ctual possession, or
It is in your view, after being in your physical
possession, or
3.
It was in your physical possession and then you
locked it up to prevent tampering, or
4.
It is in a designated secure area.
Field Custody Procedures
1.
In collecting samples for evidence, collect only that
.number which provides a fair representation of the media
being sampled. To the extent possible, the quantity and
types of samples and sample locations are determined prior
to the actual field work. As few people as possible should
handle samples.
2.
The field sampler is personally responsible for the care
and custody of the samples collected until they are trans-
ferred or properly dispatched.
-------
II-I5
(6/78)
3.
Sample tags shall be completed for each sample, using
waterproof ink unless prohibited by weather conditions.
4.
During the course and at the end of the field work, the
Project Coordinator determines whether these procedures
have been followed, and if additional samples are required.
Transfer of Custody and Shipment
1.
Samples are accompanied by a Chain-of-Custody Record (see
page 11-16). When transferring the. possession of samples, the
individuals relinquishing and receiving will sign, date,
and note the time on the Record. This Record documents
transfer of custody of samples from the sampler to another
. person, to a mobile laboratory, or to the HEIC laboratory
in Denver.
2.
Samples will be properly packaged for shipment and dis-
patched to the appropriate NEIC laboratory~ for analysis,
with a separate Record prepared for each laboratory (e.g.,
Mobile Chemistry Lab, Mobile Biology Lab(s), Denver Chem-
istry Lab, Denver Biology Lab). Shipping containers will be
padlocked for shipment to the Denver laboratory. The
"Courier to Airport" space on the Chain-of-Custody Record
shall be dated and signed.
3.
Whenever samples are split with a facility or government
agency, a separate Chain-of-Custody Record is prepared for
those samples and marked to indicate with whom the samples
are being split.
*
See Appendix B for Safety Precautions When Accepting Samples
From Outside Sources.
-------
ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement
CHAIN Of CUSiODV RECORD
NATIONAL ENFORCEMENT INVESTIGATIONS CEI\:
. Building 53. Box 25227. Denver Federal Center
Denver. Colorado 80225
Proj. No. Project Name SAMPLE TYPE
c
.2 co
.2 Im~ .gBm -~ ~ en
SAMPLERS: (Signature) c: .2 .- c - u: en ~ C at U II:
~ co I~~ ~~i~~ ;~'~I ~ ~ II: W
0 ~ ~~ g~~~~~o~oE ~ ~~ w Z
c ~~B 00 _Oo~~~~ 0- -c~c 1Du.-
~~~a~~I~!~~~~OCO~~~~~~!gt~ :i!O<
::> ~
~~~~~~ ~~5~~~~~~~~~~~~~~i z z
~~~=~~ ~oe~~~~oeeE~Eo~~~~ 0 Remarks
STA. NO. SEO. NO. OATE TIME STATION LOCATION o~zo~oo>o~ w~~w~-
-------
11-11
(6/78)
4.
All packages will be accompanied by the Chain-of-Custody
Record showing identification of the contents. The ori-
ginal Record will accompany the shipmentt and a copy will
be retained by the Project Coordinator.
5.
If sent by mailt the package will be registered with return
receipt requested. If sent by common carriert a Government
8ill of Lading should be used. Receipts from post offices
and bills of lading will be retained as part of the perma-
nent documentation.
Laboratory Custody Procedures
1.
A sample custodian or a designated alternate will receive
samples for the laboratory and verify that the information
on the sample tags matches that on the Chain-of-Custody
Record included with the shipment. The custodian signs
the custody record in the appropriate space; a laboratory
staff member performs this function in the field. Couriers
picking up samples at the airportt post officet etc. t shall
sign in the appropriate space.
2.
The custodian distributes samples to the appropriate analysts.
The names of individuals who receive samples are recorded
in internal Branch records. Laboratory personnel are
responsible for the care and custody of samples from the
time they receive them until they return them to the custo-
dian. Samples received after normal working hours may be
analyzed immediately or stored as appropriate.
3.
Once field-sample testing and necessary quality assurance
checks have been completedt the unused portion of the
sample may be disposed of. All identifying tagst data
-------
sheets and laboratory records shall be retained as part of
the permanent documentation. Samples forwarded to the
Denver laboratory for analysis will be retained after
analyses are completed. These samples may be disposed of
only upon the orders of the Chief, Enforcement Specialist
Office and Assistant Director for Technical Programs, and
only after all tags have been removed for the permanent
file.
11-18
(6/78)
-------
11-19
(6/78)
DOCUMENT CONTROL
The goal of the NEIC Document Control Program is to assure that
all documents for a specific project issued to or generated by NEIC
personnel will be accountable when the project is completed. This
program includes a serialized document number system, a document
inventory procedure, and a central filing system, all under the
supervision of a Document Control Officer (DCO).
Accountable documents used or generated by NEIC employees include
items such as logbooks, field data records, correspondence, sample
tags, graphs, chain of custody records, bench cards and photos (see
page 11-27 for a more complete list). Each document bears a serialized
number and is listed, with the number, in a project document inventory
assembled by each Branch at the project1s completion.
Unless prohibited by weather, waterproof ink is used in recording
all data on serialized accountable documents.
SERIALIZED DOCUMENTS
The DCO is responsible for assigning the necessary serialized
NEIC documents to project personnel for field activities. Once a
Project Coordinator is appointed, all field logbooks, field data
records, field laboratory logbooks, sample tags and chain-of-custody
records are assigned to this person. The Coordinator is responsible
for ensuring that a sufficient supply of documents is obtained for an
investigation and that these documents are properly distributed to
the appropriate personnel. The DCO provides the Project Coordinator
-------
11-20
(6/78)
with a list of all serialized project documents that were assigned to
personnel for field activities.
PROJECT LOGBOOKS
The logbook of the Project Coordinator will document the transfer
of logbooks to the individuals who have been designated to perform
specific tasks on the survey. All pertinent information should be
recorded in these logbooks from the time each individual is assigned
to the project until the project is completed.
Logbook entries should be dated, legible and contain accurate
and inclusive documentation of an individual's project activities.
Since th~ logbook forms the basis for the later written reports, it
must contain only facts and observations. Language should be objec-
tive, factual and free of personal feelings or other terminology
which might prove inappropriate. Entries made by individuals other
than the person to whom the logbook was assigned are dated and signed
by the individual making the entry.
Field analysts who conduct their assigned project analyses in a
mobile laboratory are assigned a Branch logbook by the Chemistry
Branch. In addition to information documenting the analysis performed,
field analysts document in their logbooks the date and results of any
calibration of mobile laboratory equipment. A record is also kept of
any incidents related to the survey; for example, the electricity
going off in the lab, tampering with government vehicles or equipment,
etc. When appropriate, visitors to the mobile lab. such as facility
personnel. are noted in the logbook.
All project logbooks are the property of
turned over to the Project Coordinator when a
been concluded.
NEIC and are to be
survey assignment has
-------
11-21
(6/78)
FIELD DATA RECORDS
Where appropriate, serialized Field Data Records (in the form of
individual sheets or bound logbooks) are maintained for each survey
sampling station or location. The Project Coordinator numbers the
FDRls with the appropriate project code and station number. All
in-situ measurements and field observations are recorded in the FDR's
with all pertinent information necessary to explain and reconstruct
sampling operations. Each page of a Field Data Record is dated and
signed by all individuals making entries on that page. The Coordinator
and the field team on duty are responsible for ensuring that FDR's
are present during all monitoring activities and are stored safely to
avoid possible tampering.
SAMPLE INDENTIFICATION DOCUMENTS
Assignment of all serialized sample tags to field personnel is
recorded in the Project Coordinator's logbook. Individuals are
accountable for each tag assigned to them until it has been filled
out, attached to a sample, and transferred to another individual with
the corresponding Chain-of-Custody Record. At no time are any
sample tags to be discarded; if any of these forms are lost, voided
or damaged, it is noted in the appropriate FDR or logbook immediately
upon discovery. Tags attached to those samples split with the facil-
ity or another government agency will be accounted for as described
below.
At the completion of any reconnaissance or field-sampling investi-
gation, all unused sample tags are returned to the Project Coordinator
by the individual to whom they were originally assigned. This individual
lists the serial numbers of the returned items in the Coordinator's
logbook and signs and dates the transfer.
-------
II-22
(6/78)
CHAIN-Of-CUSTODY RECORDS
All serialized Chain-of-Custody Records are assigned and accounted
for in a manner similar to that for the sample tags as described
above. When samples are transferred from a field sampler or courier
to field laboratory personnel, the analyst, after signing, retains
the white (original) custody record and files it in a safe place.
The copy of the custody record is returned to the Project Coordinator.
A similar procedure is followed when dispatching samples via common
carrier, mail, etc., except that the original accompanies the shipment
and is signed and retained by the receiving laboratory sample custodian.
When samples are split with the facility or another government
agency, the separate custody record that is prepared (see page 24) is
labeled to indicate this. In addition, the serial numbers from all
the tags are recorded on the custody record. The person relinquishing
the samples to the facility or agency should request the signature of
a representative of the appropriate party, acknowledging receipt of
the samples. If a representative is unavailable or refuses to sign,
this is noted in the "received by" space. When appropriate, as in
the case where the representative is unavailable, the custody record
should contain a statement that the samples were delivered to the
designated location at the designated time. The copy of the custody
record may be given to the facility or agency upon request; all white
originals are returned to the Project Coordinator.
ANALYST, INSTRUMENT AND SAMPLE ENTRY LOGBOOKS
Logbooks and data sheets that are used for various purposes
(chemical or biological analyses, equipment calibration, etc.) wit~;n
the NEIC laboratories are not handled by the DCa, but rather ar~
accountab 1 e by practices i nst ituted by i ndi \/i dua 1 B'.anc~~5.
-------
11-23
(G/l8)
All laboratory observations and calculations not recorded on
serialized bench cards, instrument graph printouts, etc., are entered
in serialized logbooks assigned by a Branch file custodian. The
logbook should contain information sufficient to recall and describe
succinctly each step of the analysis performed should the analyst be
required to testify in subsequent enforcement proceedings. Sufficient
detail should be provided to enable others to reconstruct the analysis
should the analyst not be available to do so. Any irregularities
observed during the testing process should be noted. If, in the
technical judgment of the analyst, it is necessary to deviate from a
particular analytical method, the deviation shall be properly justified
and documented.
When an individual is assigned a logbook for use on a variety of
projects, each page contains information about only one project and
is labeled with the project code, dated, and signed by the individual.
All bench cards, instrument printouts, and other separate documents
are labeled similarly. Notes (taken at meetings, from research articles,
etc.) which do not relate to a particular NEIC project shall not be
kept in the assigned logbook. When a laboratory logbook is completed,
it is returned to the Branch file custodian and a new logbook is
issued. The custodian or other appropriate staff member maintains an
inventory sheet for the logbook, listing the project code for each
page. These books that have been completed and turned in are used
for reference purposes only.
Where applicable, the Branch file custodian issues a serialized
instrument logbook in which all information relating to calibration
and maintenance of a particular laboratory instrument is recorded.
serialized sample entry logbook is used in the laboratory to record
the entry of the samples to the laboratory or laboratory instrument
for analysis. Again, each page should contain information about one
project only.
A
-------
11-24
(6/78)
PHOTOGRAPHS
When movies, slides or photographs are taken which visually show
the effluent or emission source and/or any monitoring locations, they
are numbered to correspond to logbook entries. The name of the
photographer, date, time, site location, and site description are
entered sequentially in the logbook as photos are taken. Once devel-
oped, the slides or photographs should be serially numbered corre-
sponding to the logbook descriptions.
CORRECTIONS TO DOCUMENTATION
As previously noted, unless prohibited by weather conditions,
all documentation in logbooks, FDR1s, sample tags, custody records
and other data sheets are filled out with waterproof ink. Non~ of
the accountable serialized documents listed above are to be destroyed
or thrown away even if they are illegible or contain inaccuracies
which required a replacement document.
If an error is made in a project logbook assigned to one indivi-
dual, that individual may make corrections simply by crossing a line
through the error and entering the correct information. Changes made
subsequently are dated and initialed. If an error is discovered on a
sample tag, custody record or FOR. when possible the person who made
the error should correct it. Corrections or insertions are made by
inserting the word or abbreviation for "corrected," the dSlte. alnd the
correcting person1s initials beside the correction. The procedure
applies to words or figures inserted or added to a prior recorded
statement.
If a sample tag is lost in shipment, or a tag was never prepared
for a sample(s), or a properly tagged sample was not transferred with
-------
11-25
(6/78)
a formal NEIC Chain-of-Custody Record, the following procedure applies.
A written statement is prepared detailing how- the sample was collected,
air-dispatched or hand-transferred to the field or NEIC laboratory.
The statement should include all pertinent information, such as
entries in field logbooks regarding the sample, whether the sample
was in the sample collector's physical possession or ~n a locked
compartment until hand-transferred to the laboratory, etc. Copies of
the statement are distributed to the Project Coordinator, the Assistant
Director for Technical Programs and the appropriate Branch project
files.
CONSISTENCY OF DOCUMENTATION
Before releasing any analytical sample results to the Project
Coordinator, the Chemistry and/or Biology Branches assemble and
cross-check information on corresponding sample tags, custody records,
bench cards, analyst logbooks and sample entry logbooks to ensure
that data pertaining to each particular sample is consistent through
out the record. A statement that all project evidentiary data in the
Branch's possession has been accounted for accompanies the transfer
of any analytical data from the NEIC laboratories to the Project
Coordinator.
The Project Coordinator then conducts a cross-check of evidentiary
data in his possession (FOR's, logbooks, custody records, etc.) to
ensure that information recorded corresponds to information from each
of the Branch laboratories and is consistent throughout the project
record.
-------
11-26
(6/78)
DOCUMENT NUMBERING SYSTEM AND INVENTORY PROCEDURE
In order to provide document accountability to the appropriate
individuals, each of the document categories discussed above features
a unique serialized number for each item within the category. Logbooks,
FOR's, sample tags and custody records are serially numbered by the
DCO before assignment to project personnel. The logbooks and FDR's
are usually given a five-digit number, with the project code as the
first three digits followed by a two-digit document number. Sample
tags and custody records are labeled with a four digit document
number and the project code appears elsewhere on the document. All
Branch documentation not covered by the above (logbooks, data sheets,
graphs, etc.) are uniquely and serially numbered using the project
code as part of the number when appropriate.
All ~ther documents (such as recorder graph paper, data calcula-
tion sheets, memos, correspondence, photos, etc.) which are generated
during a project are sequentially numbered with the project code, the
Branch initials and a serialized number (e.g., 707-CH-Ol), usually at
the time the Branch file is assembled.
BRANCH FILES
After a Branch has completed its work for a particular investi-
gation, all documents generated from that project should be assembled
in the Branch file. Individuals may retain clean (no handwritten
comments) copies of documents for their personal files but only after
personally verifying that the original or similar copy is in the
Branch file. The Chief of each Branch in Technical Programs is
responsible for assuring the collection, assembly, and inventory of
all documents relative to a particular project at the time the project
objectives are completed. The file then becomes accountable. Any
records leaving the file must be signed out.
-------
CENTRAL FILE
11-27
(6/78)
When the NEIC has completed the project objectives, all inven-
toried Branch tile documents are reviewed and submitted to the Central
File by each Branch Chief. By this time each document will have been
labeled with a unique serialized number as specified above. The
format of the Central File covers the following document classes:
A.
B.
C.
D.
E.
F.
Project Logbooks
Field Data Records
Sample Identification Documents
Chain-ot-Custody Records
Analytical Logbooks, Lab Data, Calculations,
Graphs, etc.
Correspondence
1. Intra-office
2. EPA
3. Industry
4. Record qf Confidential Material
Report Notes, Calculations, etc.; Drafts
References, Literature
Sample (on-hand) Inventory
Check-out Logs
Litigation Documents
Miscellaneous - photos, maps, drawings. etc.
Bench Cards.
G.
H.
1.
J.
K.
L.
Once deposited in the Central File. documents may only be checked
out through the DCO or designated representative.
REPORTS
All draft reports are numbered and accountable. They are stamped
DRAFT REPORT FOR AGENCY REVIEW ONLY. DO NOT DUPLICATE on the cover
page. The author is responsible for disseminating draft reports for
internal NEIC review, and preparing a memorandum for the Assistant
Director for Technical Programs to transmit copies to Regional Offices.
-------
11-28
(6/78)
Headquarters. etc. All draft copies of the report are to be returned
to the author. Once comments have been incorporated and the final
report has been prepared. all draft copies are disposed of. However,
Regional Offices may retain a copy of the draft report with their
comments until they receive the final report at which time the draft
will be returned to the NEIC.
LITIGATION DOCUMENTS
Any court documents. litigation reports. letters, memos, etc.
from the Chief. Enforcement Specialist Office. EPA Regional Office(s).
State Pollution Control Offices. etc.. which discuss legal matters
or strategies. should be placed in a separate file folder (see Central'
File format) which is reviewed by the Enforcement Specialist Office
at the appropriate time.
CONFIDENTIAL INFORMATION
Any information received by NEIC with a request of confidentiality
is handled as IIconfidential.1I A separate. locked file is maintained
in the Central File room for the segregation and storage of all
confidential and trade-secret information. Upon receipt by MEIC.
this information is directed to and recorded in the Confidential
Inventory Log by the DCO. The information is then made available to
MEIC personnel. but only after it has been logged out. The informa-
tion should be returned to the locked file at the conclusion of each
working day. Confidential information may not be reproduced except
upon approval by and under the supervision of the DCO. Any reproduction
should be kept to an absolute minimum. The DCO will enter all copies
into the document control system and apply the same requirements as
for the original. In addition. this information may not be entered
-------
11-29
(6/78)
into any computer or data handling system. Confidential documents
may not be destroyed except upon approval by and under the supervision
of the Chief, Enforcement Specialist Office. The DCO shall remove
and retain the cover page of any confidential information disposed of
for one year and shall keep a record of the destruction in the Confi-
dential Inventory Log.
-------
11-30
(6/78)
QUALITY ASSURANCE MANAGEMENT
Quality assurance (QA) procedures are followed at MEIC to assure
that high quality data is produced. Documented, official EPA and/or
state-of-the-art measurement methods are used with integral quality
control (QC) procedures to detect and minimize errors.
The quality of project conclusions and recommendations depends
on the quality of the sampling network design, sample collection
techniques, field and laboratory measurement methods, and data"reduc-
tion techniques. Therefore, so far as practical~ QC methods are us~d
to verify individual measurement operations during each portion of a
project.
ORGANIZATIONAL RESPONSIBILITY
The Quality Assurance Coordinator for the Center is responsible
for assisting each Branch Chief in developing quality control procedures
for his Branch. Each Branch that performs measurements is responsible
for developing and documenting QC procedures, where appropriate, for
the measurement operations it performs.
MEASUREMENT METHODS
When available, EPA-approved methodology is used. Where approved
methods do not exist, such as for monitoring toxic organic compounds,
each Branch will develop the methodology required to meet the study
objectives. Any measurement method unique or new to NEIC is documented
-------
to show satisfactory performance before it is routinely used. Recom-
mended documentation for new methodology includes a method description
with integral quality control procedures and, if possible, data to
show the precision, accuracy, and detection limit of the method.
When appropriate the format of methods documentation should address
the following:
Summary and limitations of the method
List of supplies, equipment, and instrumentation required
Calibration and maintenance procedures and schedules, in-
cluding the source and quality of standards
Detailed operating procedures for each step in the method;
an instrument or standard reference manual is referenced only
if the procedure being used is exactly described
Integral quality control procedures to verify that the meas~
urement is being performed properly and to measure the
precision, accuracy, and detection limit of the method
Method-specific forms to record all sample and quality
control data
To assure that significant new methodology is consistent with
the state-of-the-art, new methods are sent for review to the appro-
priate EPA laboratory, peer group or scientific journal.
TRAINING
11-31
(6/78)
Staff members are trained before being allowed to independently
perform a measurement during a survey. The Branch Chiefs are respon-
sible for assuring this training is provided formally and/or on-the-job.
-------
DATA REVIEW
11-32
(6/78)
The primary responsibility for the proper performance of a
measurement including QC checks lies with the employee making the
measurement. The employee evaluates the QC results as soon as pos-
. sible after the measurement is performed. When QC results are deter-
mined to be outside accepted limits, the measurement process is
stoppedp problems are corrected and documented and then the measure-
ment is continued.
INDEPENDENT AUDIT
The NEIC participates in all appropriate EPA interfacility airp
water, and radiation performance evaluation studies. The NEIC QA
Coordinator, or his designee, initiates round-robin or other inter-
laboratory audit procedures to assure the quality of specific measure-
ment techniques, as required.
DEFINITIONS
Quality Control (QC) -
The documentation and evaluation of methods,
personnel trainingp and routine performance
checks integral to each measurement process
which are used to verify proper performance.
Examples of the routine checks are instrument
maintenance and calibration, flowrate and
leak measurement checks, and blankp duplicatep
and spiked sample determinations. The
resulting data are evaluated immediately and
any problems found are corrected by the
individual performing the checks.
-------
Quality Assurance (QA) -
Accuracy -
Precision -
Detection Limit -
I 1-33
(6/78)
The sum of independent audits performed to
verify that the quality control system is
effective and adequate to assure high
quality data. Quality assurance audits are
generally performed by a person or technique
outside of the normal operation. Examples
are audits using reference flow measuring
devices and laboratory reference standards.
The degree of agreement between a measured
value and the true value. It is difficult
to determine the accuracy of a measurement
on a real environmental sample because the
true value is unknown. Therefore, the
accuracy of an individual measurement pro-
cedure is usually determined by analyzing
a standard reference material or device,
or by spiking a sample with a known quantity
of material and re analyzing.
The degree of agreement between repeated
measurements of one property using the
same method and technique.
The limit at which one can distinguish between
inherent randomness or instrument "noisell in
the measurement and a real value. Opera-
tionally defined as the analyte concen-
tration equivalent to three times the stan-
dard deviation of background readings.
-------
A
B
APPENDICES
WITNESS GUIDELINES
SAFETY PRECAUTIONS WHEN ACCEPTING
SAMPLES FROM OUTSIDE SOURCES
-------
APPENDIX A
WITNESS GUIDELINES
The following suggestions are made for prospective witnesses in
order to lessen the fears and apprehensions which almost everyone has
when first testifying before a board, commission, hearing officer, or
in court. Even those who have testified previously encounter a
certain anxiety when called for a repeat performance. When a witness
is properly prepared, both with regard to the subject matter of
testimony and conduct on the witness stand, there should be little
fear about testifying.
It i~ of utmost importance that the witness be thoroughly prepared
as to the subject matter of his testimony. Only the witness can
recall what occurred in the field and/or laboratory and why. Since
many cases are tried substantially after field and laboratory activities
are conducted, it is imperative that adequate documentation be originally
prepared in order that a witness' memory may be refreshed. A thorough
and detailed review of all survey documents is the only way prospective
witnesses can be adequately prepared.
In order to assist witnesses on how they should conduct themselves
the following suggestions are given.
The witness will be required to take an oath to tell nothing but
the truth. The important point is to remember that there are two
ways to tell the truth---one is a halting, stumbling, hesitant manner,
which makes the board member, hearing officer, judge or jury doubt
that the witness is telling all the facts in a truthful way; and the
other way is in a confident, straightforward manner, which inspires faith
in what is being said. It is most important that the witness testify
-------
in the latter manner. To assist a witness in testifying in such a
mannert a list of time-proven hints and aids are provided below.
GENERAL INSTRUCTIONS FOR A WITNESS
If you are to be a witness in a case involving testimony concern-
ing the appearance of an objectt placet conditiont etc. t try to refresh
your recollection by again inspecting the objectt placet conditiont
field notes and recordst etc. t before the hearing or trial. While
making such inspectiont close your eyes and try to picture the item
and recall, if you can, the important points of your testimony. Repeat
the test until you have thoroughly familiarized yourself with the fea-
tures of your testimony that will be given.
Before you testifYt visit a court trial or board hearing and
listen to other witnesses testifying. This will make you familiar
with such surroundings and help you to understand some of the things
you will come up against when you testify. At least be present at the
hearing of the matter in which you are to testify in sufficient time
to hear other witnesses testify before you take the witness chair.
This, howevert may not always be possible since, on occasion, witnesses
are excluded from the court room.
A good witness listens to the question and then answers calmly
and directly in a sincere manner. The facts should be well known so
they can be communicated. Testimony in this manner applies to cross-
examination as well as direct examination.
Wear neatt clean clothes when you are to testify.
tively.
Dress conserva-
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Do not chew gum while testifying or taking an oath. Speak clearly
and do not mumble. You will not be permitted to smoke while testifying.
DIRECT EXAMINATION
In a discussion on administrative procedures,
Retired Chief Judge, U.S. Court of Appeals for the
gave the following advice:
E. Barrett Prettyman,
District of Columbia,
The best form of oral testimony is a series
of short, accurate, and complete statements
. of fact. Again, it is to be emphasized that
the testimony will be read by the finder of
the facts, and that he will draw his find-
ings from what he reads. . . Confused, dis-
cursive, incomplete statements of fact do
. not yield satisfactory findings.
Stand upright when taking the oath. Pay attention and say "I do"
clearly. Do not slouch in the witness chair.
Do not memorize what you are going to say as a witness. If you
have prepared answers to possible questions, by all means do not mem-
orize such answers. It is, however, very important that you familiarize
yourself as much as possible with the facts about which you will be
called upon to testify.
During your direct examination, you may elaborate and respond
more fully than is advisable on cross-examination. However, when
you volunteer information, do not ramble and do not stray from the
main point raised in your lawyer's question. The taking of testimony
is a dialogue, not a monologue. If your testimony concerns a spe-
cialized technical area, the Court or hearing board will find it easier
to understand if it is presented in the form of short answers to a
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logical progression of questions. In addition, by letting your lawyer
control the direction of your testimony, you will avoid making remarks
which are legally objectionable or tactically unwise.
Be serious at all times. Avoid laughing and talking about the
case in the halls, restrooms or any place in the building where the
hearing or trial is being held.
While testifying, talk to the judge, hearing officer or jury.
Look at him or them most of the time, and speak frankly and openly
as you would to any friend or neighbor. Do not cover your mouth with
your hand. Speak clearly and loudly enough so that anyone in the
hearing room or courtroom can hear you easily. At all times make cer-
tain that the reporter taking the verbatim record of your testimony
is able to hear you and record what you actually say. The case will
be decided entirely on the words that are finally reported as having
been the testimony given at the hearing or trial. Always make sure
that you give a complete statement in a complete sentence. Half
statements or incomplete sentences may convey your thought in the con-
text of the hearing, but may be unintelligible when read from the cold
record many months later.
CROSS EXAMINATION
Concerning cross-examination, Judge Prettyman gives the following
advice to prospective witnesses:
Don't argue. Don't fence. Don't guess. Don't
make wisecracks. Don't take sides. Don't get
irritated. Think first, then speak. If you do
not know the answer but have an opinion or be-
lief on the subject based on information, say
exactly that and let the hearing officer decide
whether you shall or shall not give such infor-
mation as you have. If a 'yes or no' answer to
a question is demanded but you think that a
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qualification should be made to any such answer,
give the Iyes or nol and at once request per-
mission to explain your answer. Don1t worry
about the effect an answer may have. Don't worry
about being bulldozed or embarrassed; counsel
will protect you. If you know the answer to a
question, state it as precisely and succinctly
as you can. The best protection against exten-
sive cross-examination is to be brief, absolutely
accurate, and entirely calm.
The hearing officer, board member
not hearsay, conclusions, or opinions.
to testify about what someone else has
or jury wants only the facts,
You usually will not be allowed
told you.
Always be polite, even to the attorney for the opposing party.
Do not be a smart aleck or cocky witness. This will lose you the
respect and objectivity of the trier of the facts in the case.
Do not exaggerate or embroider your testimony.
Stop instantly when the judge, hearing officer or board member
interrupts, or when the other attorney objects to what you say. Do
not try to sneak your answer in.
Do not nod your head for a "yes" or "no" answer.
The reporter must hear an answer to record it.
Speak out clearly.
If the question is about distances or time and your answer is only
an estimate, be certain that you say it is only an estimate.
Listen carefully to the question asked of you. No matter how nice
the other attorney may seem on cross-examination, he may be trying to
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hurt you as a witness. Understand the question. Have it repeated if
necessary; then give a thoughtful, considered answer. Do not give a
snap answer without thinking. You cannot be rushed into answering,
although, of course, it would look bad to take so much time on each
question that the board member, hearing officer or jury would think
that you are making up the answers.
Answer the question that is asked--not the question that you
think the examiner (particularly the cross-examiner) intended to ask.
The printed record shows only the question asked, not what was in
the examiner's mind and a nonresponsive answer may be very detrimental
to your side's case. This situation exists when the witness thinks
III know what he is after but he hasn1t asked for it.1I Answer only
what is asked.
Explain your answers if necessary. This is better than a simple
lIyesll or IIno.1I Give an answer in your own words. If a question can-
not be answered truthfully with a lIyesll or IIno,1I you have a right to
explain the answer.
Answer directly and simply the question asked you and then stop.
Never volunteer information.
If by chance your answer was wrong, correct it immediately; if
your answer was not clear, clarify it immediately.
You are sworn to tell the truth. Tell it. Every material truth
should be readily admitted, even if not to the advantage of the party
for whom you are testifying. Do not stop to figure out whether your
answer will help or hurt your side. Just answer the question to the
best of your ability.
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Give positive, definite answers when at all possible. Avoid saying
"I think," "I believe," "in my opinion. II If you do not know, say so.
Do not make up an answer. You can be positive about the important
things which you naturally would remember. If asked about little details
which a person naturally would not remember, it is best to say that you
do not remember.
00 not act nervous. Avoid mannerisms which will make it appear
that you are scared, or not telling the truth, or all that you know.
Above all, it is most important that you do not lose your temper.
Testifying at length is tiring. It causes fatigue. You will recognize
fatigue by certain symptoms: (a) tiredness, (b) crossness, (c) nervous~
ness, (d) anger, (e) careless answers, (f) willi.ngness to say anything
or answer any question in order to leave the witness stand. When you
feel these symptoms, recognize them and strive to overcome fatigue.
Remember that some attorneys on cross-examination are trying to wear
you out so you will lose your temper and say things that are not correct.
or that will hurt you or your testimony. 00 not let this happen.
If you do not want to answer a question. do not ask the judge.
hearing officer or board member whether you must answer it. If it is
an improper question, your attorney will object for you. Do not ask
the presiding officer, judge or board member for advice.
00 not look at your attorney or at the judge. hearing officer or
board member for help in answering a question. You are on your own.
If the question is an improper one. your attorney will object. If the
judge, hearing officer or board member then says to answer it, do so.
Do not hedge or argue with the opposing attorney.
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There are several questions which are known as "trick questions. II
That is, if you answer them the way the opposing attorney hopes you
will, he can make your answer sound bad. Here are two of them:
"Have you talked to anybody about this matter?" If you say "no,"
the hearing officer or board member, or a seasoned jury, will know that
is not right because good lawyers always talk to the witnesses before
they testify. If you say "yes," the lawyer may try to imply that you
were told what to say. The best thing to say is that you have talked
to Mr. , your lawyer, to the appellant, etc., and that you
were just asked what the facts were. All we want you to do is simply
tell the truth.
"Are you getting paid to testify in this appeal?" The lawyer ask-
ing this hopes your answer will be "yes," thereby implying that you
are being paid to say what your side wants you to say. Your answer
should be something like "No, I am not getting paid to testify; I am
only getting compensation for my time off from work, and the expense
it is costing me to be here."
In addition to the above suggestions and guidelines, several addi-
tional references are available for further background:
Expert Witnesses and Environmental Litigation, J. L. Sullivan
and R. J. Roberts, Journal of the Air Pollution Control Assoc.,
April 1975, Vol. 25, No.4.
Environmental Litigation and the In-House Engineer, F. Finn;
R. C. Heidrick; K. Thompson, Journal of the Air Pollution
Control Assoc., Feb. 1977, Vol. 27, No.2.
Essentials of Cross-Examination, Leo R. Friedman, CEB 1968.
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APPENDIX B
SAFETY PRECAUTIONS
WHEN
ACCEPTING SAMPLES FROM OUTSIDE SOURCES
In order to minimize hazards to HEIC analytical personnel and to
prevent laboratory contamination, procedures for collection and
transportation of samples for analysis by the NEIC laboratory are as
follows:
1.
NEIC will accept potentially dangerous samples only in
cases where there has been active participation in the
. planning and execution of the sampling program by a des~
ignated NEIC staff member. * Such active participation must
include full sharing of knowledge relative to process,
previous analytical data, and other information relative to
the characteristics of the material to be sampled.
2.
Samples from municipal sewage treatment plants or the
ambient environment will be accepted only after detailed
discussion and agreement between the Regional project
coodinator and the NEIC Chemistry Branch Chief or his
representative. This exchange of information must include
a positive sample identification scheme, full discussion of
known characteristics of the material sampled, and sample
preservation and shipment procedures. Except in emergency
situations such agreement will be confirmed in writing by
NEIC prior to sampling.
*
In an emergency precluding participation of NEIC personnel,
procedures can be worked out by a telcon.
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3.
Submission of unusual or non-routine kinds of samples,
i.e., bag samples of gaseous emissions, core samples from
landfills, etc., will be governed by procedures similar to
those in item 2 above. However, if there is a possibility
of toxic exposure, the procedures in item 1 will be followed.
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