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ENFORCEMENT WORKSHOP ON
OBSERVING, REVIEWING, AND
EVALUATING COMPLIANCE TESTS
Selected Papers on the
Legal Aspects of Enforcement
Compiled by
PEDCo Environmental, Inc.
505 S. Duke Street
Durham, North Carolina 27701
Contract No. 68-01-4147
Prepared for
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement
Division of Stationary Source Enforcement
Washington, D. C. 20460
May 1979
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FOREWORD
The following reference manual is a compilation of
selected legal documents, publications, and U.S. EPA memos
on the legal aspects of air pollution enforcement. This
manual is intended to be an instructional aid for persons
attending workshops sponsored by the U.S. Environmental
Protection Agency, Region VI Office.
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TABLE OF CONTENTS
Page No.
SECTION A. UNIT-ED STATES CONSTITUTION: EXCERPTS OF
ARTICLES AFFECTING SEARCH AND SEIZURE, PROSECUTION, AND
DUE PROCESS OF LAW
A-l. Amendments to the Constitution 1
Article IV
Article V
Article-VI
Article VII
Article XIV, (Sections 1 and 5)
SECTION B. PLANT ENTRY
B-l. Entry to Industrial Facilities, Office of the 9
General Counsel memo, November 8, 1972.
B-2. The Barlow Decision, Office of the General Counsel. 17
SECTION C. GATHERING EVIDENCE 69
C-l. Chain-of-Custody Procedure for Source Sampling, Sec- 71
tion 3.0.3 of Quality Assurance Handbook for Air Pol-
lution Measurement Systems, Vol. Ill - Stationary
Source Specific Methods, EPA-600/4-77-027b, August,
1977.
C-2. Freedom of Information Procedures, EPA Transmittal, 85
Order No. 1550-1C, August 23, 1978.
SECTION D. PRESENTING EVIDENCE 103
D-l. A Primer for EPA Employees: Presenting Scientific 105
Evidence, James A. Rogers, Office of the General
Counsel, September 1974.
D-2. The Opacity Witness, Kenneth B. Malmberg, Division 141
of Stationary Source Enforcement, U. S. Environmental
Protection Agency.
D-3. Expert Witnesses and Environmental Litigation, 163
J. L. Sullivan and R. J. Roberts, JAPCA, Vol. 25,
No. 4, April 1975.
D-4. How to Testify, Training Material presented in U. S. 173
EPA Air Training Institute Air Pollution Field En-
forcement course.
v
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TABLE OF CONTENTS
P"age No,
i
SECTION D. PRESENTING EVIDENCE (continued)
D-5. Suggestions for Witnesses, T. M. Truitt, Office of 189
the General Counsel, U. S. Environmental Protection
Agency.
D-6. Appearance as Witness, U. S. Environmental Protection 207
Agency, Pesticides Inspection Manual, June 1975.
SECTION E. ENVIRONMENTAL LITIGATION AND INDUSTRY 219
E-l. Environmental Litigation and the In-House Engineer, 221
Frank Finn and Clarke Heidrick, Jr., Presented at
the 69th Annual Meeting of APCA, June 27 - July 1, 1976.
VI
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Table of Contents
Page No,
Section A. United States Constitution: Excerpts of
Articles Affecting Search and Seizure,
Prosecution, and Due Process of Law
A-l. Amendments to the Constitution
Article IV
Article V
Article VI
Article VII
Article XIV, (sections 1 and 5)
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A-l
UNITED STATES CONSTITUTION
Amendments IV, V, VI, VII, and XIV
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Amendments to the Constitution
of the United States
Resolved by the Senate and House of Representatives of
the United States of America, in Congress assembled, two
thirds of both Houses concurring, that the following Arti-
cles be proposed to the Legislatures of the several States,
as Amendments to the Constitution of the United States, all,
or any of which Articles, when ratified by three fourths of
the said Legislatures, to be valid to all intents and pur-
poses, as part of the said Constitution, viz.
Article IV-The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no War-
rants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Article V-No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb, nor shall be compelled in any
criminal case to be a witness against himself, nor be de-
prived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use
without just compensation.
Article Vl-In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impar-
tial jury of the State and district wherein the crime shall
have been committed, which district shall have been pre-
viously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance
of Counsel for his defence.
Article Vll-In suits at common law, where the value in con-
troversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury shall
be otherwise re-examined in any Court of the United States
than according to the rules of the common law.
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Article XIV (July 28, 1868)- 1. All persons born or natu-
ralized in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property without due process
of law, nor deny to any person within its jurisdiction the
equal protection of the laws.
5. The Congress shall have power to enforce by appropriate
legislation the provisions of this article.
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Table of Contents
Page No.
Section B. Plant Entry
B-l. Entry to Industrial Facilities, Office of the 9
General Counsel memo, November 8, 1972.
B-2. The Barlow Decision, Office of the General Counsel 17
memo.
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B-l
ENTRY TO INDUSTRIAL FACILITIES
Office of General Counsel memo
November 8, 1972
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UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF THE GENERAL COUNSEL
WATERSIDE MALL
NOV 8 1972
Memorandum
To: All Regional Counsels
Froa: Assistant Administrator for Enforcement and
General Counsel
Subject: Visitors' Releases and Hold Harmless Agreements
aa a Condition to Entry of EPA Employees on
Industrial Facilities
FACTS
As a condition to entry on industrial facilities, certain
firms have, required EPA employees to sign agreements which
purport to release the company from tort liability. The following
"Visitors Release" required by the Owens-Corning Fiberglas
Corporation is an example:
VISITORS RELEASE
In consideration of permission to enter the
premises of Owens-Corning Fiberglas Corporation ,
and being aware of the risk of injury from
equipment, negligence of employees or of other
visitors, and from other causes, the undersigned
assumes all risk, releases said corporation,
and agrees to hold it harmless from liability
for any injury to him or his property while upon
its premises. ...
READ CAREFULLY BEFORE SIGNING
In addition to such "Visitors Releases" employees or
their supervisors have been asked to sign entry permits which
include an agreement that EPA will pay for any injury or damage
resulting from our activities at the facility.
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QUESTIONS
1. Does signing such a "Visitors Release" effactively
vaiv* th« •mploye«'« right to obtain damages for tortious injury?
2. May EPA employees contractually obligate the Agency
to pay for any injury or damage caused by our activities?
3. May firms condition EPA'a entry upon signing such
agreements?
ANSWERS
1. Generally, yes; employees waive their right to
damages and the government is prevented frora^exercising its
right of subrogation under the Federal Employees' Compensation
Act.
2. No; federal tort liability is established and limited
by the Federal Tort Claims Act, and such agreements are also
invalid as violative of the Anti-Deficiency Act.
3. No; EPA employees possess a right of entry under
both the Clean Air Act and the Federal Water Pollution Control
Act Amendments of 1972.
DISCUSSION
Although the precise effect of an advance release of
liability for negligence cannot be determined without reference
to the law of the state in which the tort occurs, we must
assume that such agreements are generally valid. By signing
such agreements EPA employees may effectively waive their right
to sue for damages and the government's right of subrogation
under the Federal Employees' Compensation Act, 5 USC 8101 et seq.
The Restatement of Contracts. Ch. 18, S 575 states:
(1) A bargain for exemption from liability for the
consequences of a willful breach of duty is illegal,
and a bargain for exemption from liability for
the consequences of negligence is illegal if
(a) the parties are employer and employee and
the bargain relates to negligent injury of
the employee in the course of the employment,
or,
(b) one of the parties is charged with a duty of
public service, and the bargain relates to
negligence in the performance of any part
of its duty to the public, for which it has
received or been promised compensation . . .
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With the exceptions mentioned in the Restatement of Contracts...
supra, no general public policy seems to exist against express
agreements for assumption of risk, and they need not be
supported by consideration. 10 Prosser on Torts § 55 and
Restatement of Torts 2d, Ch. 17A, §4968. Despite this general
rule, cases arising under the Federal Tort Claims Act involving
releases signed by civilian passengers prior to boarding ill-fated
government aircraft indicate that the courts do not favor such
agreements. (Friedman v. Lockheed Aircraft Corp.. 138 F. Supp.
530 (1956)—a release is no defense against gross, willful, or
wanton negligence in New York; Rogow v. U.S.. 173 F. Supp. 547
(1959)—a release is Ineffective unless the flight is gratuitous;
Montellier v. U. S.. 315 F2d 180 (1963)—a release does not
destroy a cause of action for wrongful death in Massachusetts.)
Such apparent judicial disfavor of advance releases is, of course,
insufficient Justification for assuming the risk of signing them,
and ordinary prudence requires us to assume their validity. Although
signing a release does not affect the employee's right to benefits
under FECA, such compensation will ordinarily be much less than
might be recovered in a tort action against the negligent
corporation.
Since the Federal Employees' Compensation Act, 5 USC 8131
and 8132,. provides that an employee may be required to assign
his right to sue third parties to the United States and that
the employee must, within limitations, pay over any recovery
from third parties as reimbursement of FECA benefits, the
employee's release prejudices the government's rights as well
as t\is own. Employees should therefore be instructed not to
sign such releases under any circumstances.
Although an EPA employee's express assumption of the risk
of injury to himself may be valid, an agreement which purports
to obligate EPA to pay all damages caused by our activities is
not. The Federal Tort Claims Act, 28 USC 2674 provides:
The United States shall be liable, respecting
the provisions of this title relating to tort
claims, in the same manner and to the same
extent as a private individual under like
circumstances, but shall not be liable for
interest prior to judgment or for punitive damages . . .
Congress has granted only a limited waiver of the government's
sovereign immunity, and 23 USC 2680 lists exceptions to the
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general waiver stated in 28 USC 2674, supra. Exceptions which
might be relevant in cases arising out of the actions of EPA
employees include 28 USC 2680(a):
Any claim based upon an act or omission of an
employee of the Government, exercising due care,
in the execution of a statute or regulation,
whether or not such statute or regulation be
valid, or based upon the exercise or performance
or the failure to exercise or perform a discretionary
function or duty on the part of-a federal agency
or an employee of the Government, whether or not
the discretion Involved be abused;
and 28 USC 2680(b):
Any claim arising out of assault, battery,
false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference
with contract rights . . .
Since the government's tort liability is limited by statute,
an administrative undertaking to expand such liability by
contract is probably invalid. In any event, EPA should not
create the occasion for judicial resolution of the question.
An additional basis for considering such indemnification
agreements invalid is the Anti-Deficiency Act, which provides
at 31 USC 665(a):
No officer or employee of the United States shall
make or authorize an expenditure from or create
or authorize an obligation under any appropriation
or fund in excess of the amount available therein. . .
Since the extent of the government's obligation is uncertain,
the Comptroller General has stated that a contractual assumption
of tort liability is not a lawful obligation of the United States,
and payment may not be made pursuant to such agreements. (7 CG 507,
16 CG 803, and 35 CG 86.) In fairness to companies which may
rely upon the validity of such indemnity provisions, employees
should be instructed not to sign them.
Inasmuch as the Clean Air Act and the Federal Water
Pollution Control Act Amendments of 1972 grant EPA employees
a right of entry to corporate facilities, a company may not
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lawfully condition Che exercise of this right upon the signing
of a release or indemnity agreement. The Clean Air AcC
provide*, ae 42 USC 1857c—9(a) (2) :
. . .the Administrator or his authorized
representative, upon presentation of his
credentials (A) shall have a right of entry
to, upon, or through any premises in which
an emission source is located or in which any
records required to be maintained"under paragraph
(1) of this section are located ...
The procedure for enforcement of this right is provided in
42 USC 1857c—8:
(a)(3) Whenever, on the basis-df any information
available to him, the Administrator finds that any
person is in violation of. . . any requirement
of section 1857c—9 of this title, he may issue an
order requiring such person to comply with such section
or requirement, or he may bring a civil action in
accordance with subsection (b) of this section.
(b) The Administrator may commence «a civil action for
appropriate relief, including a permanent or temporary
Injunction, whenever any person—(A) fails or refuses
to comply with any requirement of section 1857c—9
of this title.
When a firm refuses entry to an EPA employee performing his
functions under the Clean Air Act, the employee may appropriately
cite the statute and remind the company of EPA's right to seek
judicial enforcement. If the company persists in its refusal,
EPA should go to court in preference to signing a "Visitors
Release."
In addition to procedure for judicial enforcement
similar to that of the Clean Air Act, the Federal Water
Pollution Control Act Amendments of 1972 reinforce EPA's
right of entry with criminal and civil penalties. Section 3Q9
states:
(c)(1) Any person who willfully or negligently violates
section . . .308 of this Act (Note—Section 308 establishes
the right of entry). . . shall be punished by a fine of not
less than $2,500 nor more than $25,000 per day of violation,
or by imprisonment for not more than one year, or by both.
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If the conviction is for a violation committed after
a first conviction of such person under this paragraph,
punishment shall be by a fine of not more than $50,000
per day of violation, or by imprisonment for not more
than two years, or by both.
(3) For the purposes of this subsection, the terra 'person1
shall mean, in addition to the definition contained in
section 502(5) of this Act, any responsible corporate
officer.
(d) Any person who violates section . . .308 of this Ace.
and any person who violates any order issued by the
Administrator under subsection (a) of tHis section
(Note—subsection, (a) provides for administrative orders
to enforce the right of entry), shall be subj ect to a
civil penalty not to exceed $10,000 per day of such
violation.
In See v. Seattle. 387 U.S. 541(1967) the Supreme Court
reversed the conviction of a corporation for refusal to admit
building inspectors of the City of Seattle. Justice White
held that the Fourth and Fourteenth Amendments required a
warrant for such inspections, even where the search was
reasonably related to protecting the public health and safety
and even where a corporation, rather than an individual, was
the subject. Under See evidence obtained by inspectors of
the Food and Drug Administration has been held inadmissible
where the inspectors obtained consent to enter by threatening
prosecution under 21 USC 331, which provides criminal penalties
for refusal to permit entry, U.S. v. Kramer Grocery Co..
418 F2d 987 (8th Cir., 1969). Although two more recent Supreme
Court decisions, Colonnade Catering Corp. v. U.S.. 397 U.S. 72
(1970) and U.S. v. Biswell. 92 S. Ct. 1593 (1972), may create
doubt as to whether See retains its original vigor (see
Memorandum of the Assistant to the Deputy General Counsel,
September 29, 1972), the possibility that evidence obtained
under the FWPCA Amendments of 1972 will be ruled inadmissible
is a risk EPA need not assume.
Since the Amendments provide for judicial enforcement of
the right of entry, EPA employees should be instructed not
to mention the civil or criminal penalties of Section 309
when faced with a refusal to permit entry. When such refusals
occur, this office should be informed immediately so that a
decision can be made as to whether to issue an order of the
Administrator under 309(a) or seek an appropriate judicial
remedy under 309(b).
Vj
john R. Quarles, Jr.
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B-2
THE BARLOW DECISION
Office of General Counsel memo
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Draft policy guidance on conducting plant inspections being prepared by
EPA Office of General Counsel. This document has not been officially-
released or distributed and is being circulated for policy review within
the agency at this time.
MEMORANDUM
TO: Regional Administrators
Surveillance and Analysis Divi^;on Directors
Enforcement Division Directors
FROM: Assistant Administrator
for Enforcement
SUBJECT: Conduct of Inspections After the Barlow's Decision
I. Summary
This document is intended to provide guidance to the Regions in
the conduct of inspections in light of the recent Supreme Court decision
in Marshall v. Barlow's Inc., U.S. , 98 S. Ct. 1816 (1978).
The decision bears upon the need to obtain warrants or other process for
inspections pursuant to EPA-administered Acts.
In Barlow's, the Supreme Court held that an OSHA inspector was not
entitled to enter the non-public portions of a work site without either
(1) the owner's consent, or (2) a warrant. The decision protects the
owner against any punishment for insisting upon a warrant.
In summary, Barlow's should only have a limited effect on EPA
enforcement inspections:
o Inspections will generally continue as usual
o Where an inspector is refused entry, EPA will seek a warrant through
the U.S. Attorney
o Sanctions will not be imposed upon owners of establishments who insist
on a warrant before allowing inspections of the non-public portions
of an establishment
The scope of the Barlow's decision is broad. It affects all current
inspection programs of EPA, including inspections conducted by State
personnel and by contractors. The Agency's procedures for inspections,
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particularly vhere entry is denied, were largely in accord with
the provisions of Barlow's before the Supreme Court issued its ruling.
Nevertheless, a number of changes in Agency procedure are warranted.
Thus, it is important that all personnel involved in the inspection'
process be familiar with the procedural guidelines contained in this docu-
ment.
This document focuses on the preparation for and conduct of inspec-
tions, including (1) how to proceed when entry is denied, (2) under what
circumstances a warrant is necessary, and (3) what showing is neces-
sary to obtain a warrant.
II. Conduct of Inspections
The following material examines the procedural aspects of conducting
inspections under EPA-administered Acts. Inspections are considered in
three stages: (1) preparation for inspection of premises, (2) entry onto
premises, and (3) procedures to be followed where entry is refused.
A. Preparation
Adequate preparation should include consideration of the following
factors concerning the general nature of warrants and the role of personnel
conducting inspections.
(1) Seeking a Warrant Before Inspection
The Barlow's decision recognized that, on occasion, the Agency may
wish to obtain a warrant to conduct an inspection even before there has
been any refusal to allow entry. Such a warrant may be necessary whan
surprise is particularly crucial to the inspection, or when a company's
prior bad conduct and prior refusals make it likely that warrantless
entry will be refused. Pre-inspection warrants may also be obtained where
the distance to a U.S. Attorney or a magistrate is considerable, so that
excessive travel time need not be wasted where there is refusal of entry.
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At present, the seeking of such a warrant prior to an initial inspection
should be an exceptional circumstance, and should be cleared through
Headquarters. If refusals to allow entry without a warrant increase, such
warrants may be sought more frequently. (For specific instructions .on
how to obtain a warrant, see Part D.)
(2) Administrative Inspections v. Criminal Investigations
It is particularly important for both inspectors and attorneys to
be aware of the extent to which evidence sought in a civil inspection can
be used in a criminal matter, and to know when it is necessary to secure a
criminal rather than a civil search warrant. There are three basic rules
to remember in this regard: (1) If the purpose of the inspection is to
discover and correct, through civil procedures, nonconpliance with regulatory
requirements, an administrative inspection (civil) warrant may be used;
(2) if the inspection is in fact intended, in whole or in part, to gather
evidence for a possible criminal prosecution, a criminal search varrant
must be obtained under Rule 41 of the Federal Rules of Crimninal Procedure;
and (3) evidence obtained during a valid civil inspection is generally
admissible in criminal proceedings. These principles arise from the recent
Supreme Court cases of Marshall v. Barlow1s, Inc., supra; Michigan v. Tyler,
U.S. , 98 S.Ct. 1942 (1978); and U.S. v. LaSalle National Bank,
U.S. ', 57 L. Ed. 2d 221 (1978). It is not completely clear whether
a combined investigation for civil and criminal violations may be properly
conducted under a civil or "administrative" warrant, but we believe that
a civil warrant can properly be used unless the intention is clearly to
conduct a criminal investigation.
(3) The Use of Contractors to Conduct Inspections
Several programs utilize private contractors to aid in the conduct
of inspections. Since, for the purpose of inspections, these contractors
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are agents of the Federal government, the restrictions of the Barlow1 s
decision also apply to them. If contractors are to be conducting
inspections without the presence of actual EPA inspectors, these conr
tractors should be given training in how to conduct thenselves when
entry is refused. With respect to obtaining or executing a warrant,
an EPA inspector should always participate in the process, even if
he was not at the inspection where entry was refused.
(4) Inspections Conducted by State Personnel
The Barlow's holding applies to inspections conducted by State
personnel and to joint Federal/State inspections. Because s
programs are largely implemented through the States, it is essential
that the Regions assure that State-conducted inspections are conducted
in compliance with the Barlow1s decision, and encourage the State inspec-
tors to consult with their legal advisors when there is a refusal to
allow entry for inspection purposes. State personnel should be encouraged
to contact the EPA Regional Enforcement Office when any questions con-
cerning compliance with Barlow's arise.
With regard to specific procedures for States to follow, the
important points to remember are: (1) the State should not seek for-
cible entry without a warrant or penalize an owner for insisting upon
a warrant, and (2) the State legal system should provide a mechanism for
issuance of civil administrative inspection warr
enforcing an EPA program through a State statute, the warrant process
should be conducted through the State judicial system. Where a State
inspector is acting as a contractor to the Agency, any refusal should
be handled as would a refusal to an Agency inspector as described in
section II.B.3. Where a State inspector is acting as a State employee
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with both Federal and State credentials, he should utilize State pro-
credures unless the Federal warrant procedures are more advantageous,
in which case the warrant should be sought under the general procedures
described below. The Regions should also assure that all States which
enforce EPA programs report any denials of entry to the appropriate
Headquarters Enforcement Attorney, for the reasons discussed in section
II.B.4.
B. Entry
(1) Consensual Entry
One of the assumptions underlying the Court's decision is that
most inspections will be consensual, and that the administrative inspec-
tion framework will thus not be severely disrupted. Consequently, inspec-
tions will normally continue as before the Barlow's decision was issued.
This means that the inspector will not normally secure a warrant before
undertaking an inspection, but will present his credentials, and issue a
notice of inspection where required, in an attempt to gain admittance.
Although the establishment owner may complain about allowing an inspec-
tor in or otherwise express his displeasure with EPA or the Federal
government, as long as he allows the inspector in, the entry is
voluntary and consensual unless the inspector is expressly told to
leave the premises. However, if the inspector has gained entry in a
coercive manner (either in a verbal or physical sense), the entry
would not be consensual.
Consent must be given by the owner of the premises or the person in
charge of the premises at the time of the inspection. In the absence
of the owner, the inspector should make a good faith effort to determine
who is in charge of the establishment, and present his credentials to
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that person. Consent is generally needed only to inspect the non-public
portions of an establishment - i.e., any evidence that an inspector obtains
while in an area open to the public is admissible in an enforcement
proceeding.
(2) Withdrawal of Consent
The owner may withdraw his consent to the inspection at any time.
The inspection is valid to the extent to which entry was allowed before
consent was withdrawn. Thus, observations by the inspector, including
samples and photographs obtained before consent was withdrawn, would be
admissible in any subsequent enforcement action. Withdrawal of consent
is tantamount to a refusal to allow entry and should be treated as
discussed in section II.B.3. below, unless the inspection had progressed
far enough to acomplish its purposes.
(3) When Entry is Refused
Barlow's clearly establishes that the owner does have the right
1
to ask for a warrant under normal circumstances. Therefore, refusal
to allow entry for inspection purposes will not lead to civil or criminal
penalties if the refusal is based on the inspector's lack of a warrant
and one of the exemptions discussed in Part C doesn't apply. If the
owner were to allow the inspector to enter his establishment only in
response to a threat of enforcement liability is it quite possible that
any evidence obtained in such an inspection would be inadmissible. An
inspector may, however, inform the owner who refuses entry that he intends
to seek a warrant to allow the inspection. In any event, when entry is
1
FIFRA inspections are arguably not subject to this aspect of Barlow's
See discussion, p. 8.
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refused, the inspector should leave the premises immediately, and telephone
the designated Regional Enforcement Attorney as soon as possible for
further instructions. The Regional Enforcement Attorney should contact
the U.S. Attorney's Office for the district in which the establishment
desired to be inspected is located, and explain to the appropriate Assistant
United States Attorney the need for a warrant to conduct the particular
inspection. The Regional Attorney should arrange for the United States
Attorney to meet with the inspector as soon as possible. The inspector
should bring a copy of the appropriate draft warrant and affidavits.
Samples are provided in the appendix to this document.
(4) Headquarters Notification
It is essential that the Regions keep Headquarters informed of
all refusals to allow entry. The Regional Attorney should inform the
appropriate Headquarters Enforcement Attorney of any refusals to enter,
and should send a copy of all papers filed to Headquarters. It is
necessary for Headquarters to monitor refusals and Regional success in
obtaining warrants so that procedures may be improved and to assess if
the impact of Barlow's on EPA inspections, and on all Federal administra-
tive agency inspections, is greater than we expect.
C. Areas Where a Right of Warrantless Entry Still Exists
1. Emergency situations.
In an emergency, where there is no time to get a warrant, a warrant-
less inspection is permissible. In Camara v. Municipal Court, 387 U.S. 523
(1967), the Supreme Court states that "nothing we say today is intended
to foreclose prompt inspections, even without a warrant, that the law has
traditionally upheld in emergency situations". Nothing stated in Barlow's
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indicated any intention by the court to retreat from this postion. The
Regions will always have to exercise considerable judgment as to when it
is impossible to secure a warrant when dealing with an eitergency situation.
However/ if entry is refused during an emergency, the Agency would need
the assistance of the U.S. Marshall to gain entry anyway, and a warrant
could probably be obtained during the time necessary to secure that
Marshall's assistance.
An emergency situation would include potential imminent hazard
situations, as well as situations where there is potential for destruction
of evidence or where evidence of a suspected violation will disappear by
the time a warrant is obtained.
(2) FIFRA inspections.
There are some grounds for interpreting Barlow's as not being
applicable to FIFRA inspections. The Barlow's restrictions do not apply
to areas that have been subject to a long standing and pervasive history
of government regulation. An Agency administrative law judge held recently
that even after the Barlow's decision, refusal to allow a warrantless
inspection of a FIFRA regulated establishment properly subjected the
owner to civil penalty. N. Jonas & Co., Inc., I.F. & R Docket No. III-121C
(July 27, 1978). For the present, however, FIFRA inspections should be
conducted under the same requirements applicable to other enforcement
programs.
(3) "Open Fields" and "In Plain View" situations.
Observation by inspectors of things that are in plain view, (i.e.,
that a member of the public could be in a position to observe) does
not require a warrant. Thus, an inspector's observations from the public
area of a plant, or even from certain private property not closed to
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the public, would not be ruled inadmissible. Observations made even
before presentation of credentials while on private property which is
not normally closed to the public are admissible.
D. Securing a Warrant
There are several general rules for securing warrants. Three
documents have to be drafted - an application for a warrant, an accom-
panying affidavit, and the warrant itself. Each document should be
captioned with the District Court of jurisdiction, the title of the
action, and the title of the particular document.
The application for a warrant should generally address under
what statutes and regulations the Agency is seeking the warrant, should
clearly identify the site or establishment desired to be inspected
(including, if possible, the owner and/or operator of the site). If
all of the factual background for seeking the warrant is stated in the
affidavit, the application should so state, and the application can be
a one or two page document. The application should be signed by the
U.S. Attorney or by his Assistant U.S. Attorney.
The affidavit(s) in support of the warrant application is a
crucial document. It should consist of consecutively numbered para-
graphs, and describe all the facts that support warrant issuance. It
should recite or incorporate the neutral administrative scheme under
which dropped line the basis for inspecting the particular establishment.
Each affidavit should be signed by a person with personal knowlege of all
the facts stated. In denial of entry cases, this person would most
likely be the inspector who was denied entry. Note that an affidavit
is a sworn statement that must either by notarized or personally sworn
to before the magistrate.
27
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The draft warrant should be submitted in a form whereby the
magistrate will only have to sign it to make it a valid warrant ready
for execution. The warrant is a direction to an appropriate official,
i.e., an EPA inspector, U.S. Marshall or other Federal officer, to
enter a specifically described location and perform specifically described
inspection functions. The inspection is limited by the terms of the
warrant so it is important to specify to the broadest extent possible
the areas that are intended to be inspected, any records to be inspec-
ted, any samples to be taken, any articles to be seized, etc. While
a broad warrant may be permissible in civil administrative inspections,
a vague or overly broad warrant will probably not be signed by the
magistrate, and may prove susceptible to constitutional challenge
via a motion to quash and suppress evidence in Federal District court.
The draft warrant will be signed by the magistrate, at which point it
is an enforceable document. In drafting the warrant, there should be
added, either following the magistrates signature, or on a separate
page, a "Return of service" or "certificate of service" indicating
upon whom the warrant was personally served, which should be signed
and dated by the inspector. As they are developed, more specific
warrant-issuance documents will be drafted and submitted to the Regions.
There are three basic types of warrants for inspection:
1. Civil specific probable cause warrant.
Where there is some specific probable cause for issuance of a warrant,
such as an employee complaint or competitor's tip, the inspector should be
prepared to describe to the U.S. Attorney in some detail the basis for this
probable cause.
28
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This will be stated in the affidavit in support of the warrant.
This type of warrant should be used when the suspected violation is one
that would result in a civil penalty or other civil action.
2. Civil probable cause based on a neutral administrative
inspection scheme.
Where there is no specific reason to think that a violation has been
committed, a warrant may still be issued if the Agency can show that the
establishment is being inspected pursuant to a neutral administrative
scheme. As the Supreme Court stated in Barlow's;
"Probable cause in the criminal law sense is not required.
For purposes of an administrative search, such as this, probable
cause justifying the issuance of a warrant may be based not only
on specific evidence of an existing violation, but also on a
showing that "reasonable legislative or administrative standards
for conducting an ... inspection are satisfied with respect
to a particular [establishment]". A warrant showing that a speci-
fic business has been chosen for an OSHA search on the basis of a
general administrative plan for the enforcement of the act derived
from neutral sources such as, for example, dispersion of employees
in various type of industries across a given area, and the desired
frequency of searches in any of the lesser divisions of the area,
would protect an employers Fourth Amendment rights."
Every program enforced by the Agency has such a scheme by which it prioritizes
and schedules its inspections. For example, a scheme under which every permit
holder in a given program is inspected on an annual basis is a satisfactory
neutral administrative scheme. Also, a scheme in which one out of every three
known PCB transformer repair shops is inspected on an annual basis is a
satisfactory neutral administrative scheme for inspection, as long as neutral
criteria, such as random selection, are used to select the individual
establishment to be inspected. Headquarters will prepare and transmit
to the Regions the particular neutral administrative scheme under which
each program's inspections are conducted. Inspections not based on specific
probable cause must be based on neutral administrative schemes for a warrant
to be issued. Examples of two neutral administrative schemes are provided
in the appendix.
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The Assistant U.S. Attorney will request the inspector prepare and
sign an affidavit that states the facts as he knows them, including the
sequence of events culminating in the refusal to enter, and a recitation
of either the specific probable cause or the neutral administrative
scheme which led to the particular establishment's selection for inspection.
The Assistant U.S. Attorney will then present a request for an inspection
warrant, a suggested warrant, and the inspector's affidavit to a magistrate
2
or Federal district court judge.
3. Criminal Warrants.
Where the purpose of the inspection is to gather evidence for a
criminal prosecution, the inspector and the Regional Attorney should request
that the U.S. Attorney seek a criminal warrant under Rule 41 of the Federal
Rules of Criminal Procedure. This requires a specific showing of probable
cause to believe that evidence of a crime will be discovered. Agency policy
on the seeking of criminal warrants has not been affected by Barlow's. The
2
The Barlow's decision states that imposing the warrant requirement
on OSHA would not invalidate warrantless search provisions in other
regulatory statutes since many such statutes already "envision resort
to Federal court enforcement when entry is refused". There is thus
some question as to whether the existence of a non-warrant Federal
court enforcement mechanism in a statute requires the use of that
mechanism rather than warrant issuance. We believe that the Barlow's
decision gives the agency the choice of whether to proceed through warrant
issuance or through an application for an injunction, since the decision
is largely based on the fact that a warrant procedure imposes virtually
no burden on the inspecting agency. In addition, an agency could attempt
to secure a warrant prior to inspection on an ex parte basis, something
not available under normal injunction proceedings. Several of the acts
enforced by EPA have provisions allowing the Administrator to seek
injunctive relief to assure compliance with the various parts of a
particular statute. There may be instances where it would be more appro-
priate to seek injunctive relief to gain entry to a facility than to
attempt to secure a warrant for inspection, although at this point we
cannot think of any. However, since the warrant process will be far
more expeditious than the seeking of an injunction, any decision to
seek such an injunction for inspection purposes should be cleared through
appropriate Headquarters staff.
30
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distinction between administrative inspections and criminal warrant
situations is discussed in Section II.A.2.
E. Inspecting with a Warrant
When the warrant has been issued by the magistrate or judge, the
inspector may then proceed to the establishment to commence or continue the
inspection. Where necessary because of a high probability that entry will
be refused even with a warrant or where there are threats of vidence, the
inspector should be accompanied by a U.S. Marshall when he goes to
serve the warrant on the recalcitrant owner. The inspector should never
himself attempt to make any forceful entry of the establishment. If the
owner refuses entry to an inspector holding a warrant but not accompanied
by a U.S. Marshall, then the inspector should leave the establishment
and inform the assistant U.S. Attorney and the designated Regional Attorney.
They will take the appropriate action such as the seeking of a citation
for contempt. Where-the inspector is accompanied by a U.S. Marshall,
the Marshall is principally charged with executing the warrant. Thus,
if a refusal or threat to refuse occurs, abide by the U.S. Marshall's
decision, whether it is to leave, to seek forcible entry, or otherwise.
The inspector should conduct the inspection strictly in accordance
with the warrant. If sampling is authorized, the inspector must be sure
to carefully follow all procedures, including the presentation of receipts
for all samples taken. If records or other property are authorized to be
taken, the inspector must receipt the property taken and maintain an
inventory of anything taken from the premises. This inventory will be
examined by the magistrate to assure that the warrant's authority has
not been exceeded.
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Returning the Warrant.
After the inspection has been completed, the warrant must be. returned
to the magistrate. Whoever executes the warrant, (i.e., whoever performs
the inspection), must sign the return of service form, indicating to whom
the warrant was served and the date of service. He should then return
the executed warrant to the U.S. Attorney who will formally return it to
the issuing magistrate or judge. If anything has been physically taken
from the premises, such as records or samples, an inventory of such items
must be submitted to the court, and the inspector must be present co certify
that the inventory is accurate and complete.
III. Conclusion
Except for requiring the Agency to formalize its neutral inspection
schemes, and for generally ending the Agency's authority for initiating
civil and/or criminal actions for refusal to allow warrantless inspections,
Barlow's should not interfere with EPA enforcement inspections.
Where there is doubt as to how to proceed in any entry case,
do not hesitate to call the respective Headquarters program contact for
assistance.
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APPENDIX
The Appendix contains three attachments.
Attachment I is a warrant application, affidavit and warrant to
conduct an inspection, where the Agency has specific probable cause to
celieve that a civil violation of an EPA regulation or Act has occured.
In particular, care should be taken in spelling out the specific facts
that give rise to probable cause. Note also, that the scope of the
warrant is carefully articulated.
Attachment II is a warrant application, affidavit and warrant to
conduct an inspection in which the establishment to be inspected has
been selected under a neutral administrative inspection scheme. Note
the extraordinary detail of the administrative scheme describe: in
paragrapns 8^-20 of the affidavit. Such detail should not be necessary
for most EPA neutral administrative inspection schemes. Note also
the executed inventory and return of service forms attached to
Attachment II4
Attachment III contains a very brief scheme for' PC3 inspections.
In implementing such a scheme, the Regions must still utilize neutral
criteria in selecting the individual establishement to be inspected.
33
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
IN TIIE MATTER OF
CLEAN LAND AIR AND WATER,
CORPORATION, D/3/A CLAW:
ROLLINS ENVIKO:::IL:NTAL SERVICES
OF LOUISIANA INCORPORATED;
ENVIRONMENTAL PURIFICATION
ADVANCEMENT INCORPORATED;
EPA, INC.; IN IBCRVILLE
PARISH. LOUISIANA
NO-,
APPLICATION FOR WARRANT TO
ENTER, INSPECT, PHOTOGRAPH,
SAMPLE, COLLECT INFORMATION,
INSPECT AND COPY RECORDS
TO THE UNITED STATES MAGISTRATE, by the United
States of America, Environmental Protection Agency, through
Janes Stanley Lemelle, Assistant United States Attorney, for
the Kiddle District of Louisiana, hereby applies for a
varrant pursuant to section 308 of the Federal Water Pollution
Control Act, 33 U.S.C. 1318, and the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. 6927, for the purpose of
conducting an inspection as follows:
To enter to, upon, or through the premises of a.
waste disposal operation known by various names including
the CLAW facility, which consists of three sites, to wit:
aa. infection well site, a field office and storage tanks,
and waste pits and landfill site located in Iberville Parish,
•
Louisiana in or near the Bayou Sorrells community. The
facility can be reached for disposal purposes by truck or
barge. The ownership and operation of the CLAW facility
vaste disposal operation has been known by several different
names, to vit: Clean Land Air Water Corporation (CLAW);
EPA, Incorporated; Environmental Purification Advancement;
Environmental Purification Abatement (EPA, Inc.) and Rollins
Environmental Services of Louisiana. .A company letterhead
using the names of CLAW and EPA, Inc. lists an address of
Route 2, Box 380B, Plaquemine, Louisiana 70764. It is
reported in the newspapers and clsrvhcre. that on July 28,
1978 - three days after the death of the truck driver on the
CLAW facility - that the injection well on the CLAW facility
was sold to the Rollins Environmental Services of Louisiana.
Unsubstantiated reports say that CLAW no longer has any
34
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assets, leaving the pits and landfills tinder the ownership
of EPA, Inc. and the injection well under the ownership of
Rollins. CLAW and EPA, Inc. are reported to be different
company and/or corporate names for the same people. Despite
these possible ownership changes, the CLAW facility apparently
continues to be operated as a single unit. Further, it is
reported that CLAW or Rollins is under a federal court order
Co honor its contract with a client to accept waste. For
purposes of this application, affidavit and warrant, the
three sites and all operations will be referred to as CLAW.
The field office and storage .tanks are in or on
the edge 'of Bayou Sorrells; the injection well site is about
1.6 miles northwest of Bayou Sorrells on the road; the waste
open pits-landfills are located approximately 7.7 miles
northwest of Bayou Sorrels on the levee road. The address
of the CLAW facility is Clean Land Air Water Corporation EPA
Incorporated, Route 2, Box 380 B, Plaquemine, Louisiana.
These CLAW facilities are known to EPA inspectors and well
known to local people.
The CLAW facility is an establishment subject to
the requirements and prohibitions of the Federal Water Pol-
lution Control Act, including but not limited to sections
301, 303 and 311, and sections 3007 and 7003 of the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et
seq.) - -
On Friday, August 4, 1978, Edward McHam, an
employee of the U.S. Environment ProceCtion Agency, requested
permission to enter and inspect the said premises. Despite
such request, employees of said facility refused to grant
access to said premises to Mr. McKsa, a duly authorised
inspector of the Environmental Protection Agency.
The determination to inspect said premises was
based on the following:
The sheriff's office of Iberville Parish requested
EPA's assistance and reported a death at said premises.
35
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Local unresc and fear of the facility was reported to the
Enforcement Division of Region VI, Dallas, Texas on Tuesday,
August 1, 1978 and EPA was requested to inspect the facility
which is a disposal site for chemical wastes and numerous
oil wastes of a hazardous and toxic nature.
Much local unrest, and agitation and complaints
have been reported on television and in newspapers concerning
the operation of the CLAW facility as well as the untimely
death of a 19 year old truck driver at said facility while
he was discharging waste into an open pit at the facility.
The death was possibly caused by his inhalation of toxic
fumes caused by a reaction of mixing incompatible toxic
wastes in the open pit. Allegedly two eye witnesses to the
death of the driver reported the presence of choking fumes
in the area when they opened the doors to their truck to
assist the driver who died. They also reported that his
truck was parked at the edge of the open pit truck ramp,
with doors open at the time of his dea'th. Subsequent
laboratory tests of waste taken from the pits have shown
waste materials present in the pit, which, when mixed with
the spent caustic being discharged from the driver's truck
could have caused the death. Final autopsy reports are
still pending. It is reported and alleged that CLAW facility
officials directed the driver to take and discharge his
wastes at the truck ramp in the open pit, rather than in the
injection well. Discharging toxic waste into an open pit,
at the edge of a pit, is not a safe, desirable, or acceptable
practice since toxic chemical reactions are very probable
and can result in the death of anyone nearby.
Edward.McHam made a preliminary inspection
in which he obtained two pit samples and observed evidence
of oil. hazardous wastes, waste spillage and a "sloppy"
operation which appears to be dangerous to the environment
36
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as well as hazardous Co the healch and-welfare of cicizer.s.
.He furcher observed high wacer markings on che adjacenc
trees ac Che pic sice and a lack of levees beCween che sices
and the Grand River and ocher wacerways. In addicion. Cher"e
may be hazardous wasces and condicions which nay pose a
substancial presenC. or poCencial hazard to human healch
or the environmenc when improperly Creaced, scored, crans-
ported, or disposed of, or otherwise managed.
-The inspection will be commenced in daytime
within regular business hours and will begin as soon as
practicable after issuance of this warrant and will be
completed with reasonable promptness.
The inspection will be conducted by the
Doited States Environmental Protection Agency (EPA) inspec-
tors, who will be accompanied by the United Scates Marshal
to ensure entry so chat the EPA inspectors may perform an
inspection of the premises, inspect and copy records, take
photographs, gather information and evidence and collect
samples in accord with 33 USC 1318 and 42 USC 6927.
A return will be made to the Court upon completion
of the inspection.
WHEREFORE, it ±s respectfully requested that a
warrant to enter and inspect che CLAW facilicy be issued.
Respectfully submitted,
DONALD L. BECXNER
UNITED STATES ATTORNEY
6AMES STANLEY LE:-iELL£
As's.istanc U.S. Attorney
r*
&
37
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AFFIDAVIT
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
I, Edward McHam, being duly sworn, hereby depose
and say:
1. I am a duly authorized employee of the United
States Environmental Protection Agency, and my title is
Chemical Engineer, Surveillance and Analysis Division,
Region VI, which includes the State of Louisiana. In my
capacity, I am responsible for inspecting facilities subject
to various federal environmental statutes as directed by my
supervisors.
2. On Tuesday, August 1, 1978 from about 7:45
p.m. to 8:45 p.m., I made a preliminary inspection of the
CLAW facility and took two samples at the open pits. On
Wednesday. August 2, 1978, I took a. few photographs of the
facilities from around 3.:30 p.m. until 5:30 p.m. On Thursday,
August 3, 1978 accompanied by another EPA employee, I visited
the facility and area from about 11:30 a.m. to 2:00 p.m. and
also took a few additional photographs. These brief visits
to the site have only involved facility employees a few
minutes each time in order to obtain passes from the field
office and to open gates at various guard houses.
3. On Friday, August 4, 1978, a local deputy
sheriff, state and local officials and I were refused admit-
tance to the CLAW facility. Also, CLAW officials were no
longer at the field house or available elsewhere to issue
passes to enter. My previous sampling and inspection was
not sufficient for laboratory purposes and needs to be
resumed.
4. Information I have gathered in the local
community, in nevi^papers, on television, from laboratory
38
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tests of the samples, from the Ibcrvil'le Sheriff's Office,
and at the CLAW facility strongly suggest and support the
need to enter and inspect the facilities for possible Section
301, 311 and other violations of the Federal Water Pollution
Control Act. Further, it is possible that there are hazardous
wastes and conditions on the premises as defined in Section
1004(5) of the Resource Conservation and Recovery Act of 1976,
(42 USC 6903)(5)-which constitute an imminent hazard under
section 7003 of the Resource Conservation and Recovery Act
of 1976 (42 USC 6973). These observations are:
a. Obvious spillage of waste material on
the grounds of the CLAW facility subject to entering waterways.
b. Contaminated landfills with obviously
exposed and damaged barrels with their contents emptied or
nearly empty.
c. Drainage from landfills into a "fishing"
lake and other adjacent areas leading to various waterways.
d. Open pits containing oil wastes and
hazardous, toxic chemical wastes with the appearance of
overflow wastes on the adjacent grounds as well as high
• water marks on trees next to the open pits equal to or
higher than the pits.
e. The lack of levees between the facility
grounds and drainage areas to the Grand River, "fishing
lake", bayous and barrow ditches.
f. Copies of a few facility log records and
other documents which were previously copied by the local
Sheriff's office. These records indicate the receipt and con-
tent of oil and hazardous chemical wastes accepted at the
facility.
g. Poor maintenance and sloppy "housekeeping"
practices at the facility which leads a reasonable person to
recognize the likelihood of these prohibited pollutants
39
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entering inco nearby waterways including waters of the
United States and its tributaries, as well as posing a
threat to the environment and the public health and welfare
of the United States.
h. The reported death of a 19 year old
truck driver at the CLAW (EPA, Inc.) open pits on July 25,
1978 while he was discharging waste into an open pit ac the
facility. The death was possibly caused by his inhalation
of toxic fumes caused by a reaction of mixing incompatible
toxic wastes in the open pit. Two eye witnesses to the
death of the driver reported the presence of choking fumes
la the area when they opened the'doors to their truck to
assist the driver who died. They also.reported that his
truck was parked at the edge of the open pit with the doors
open at the time of death. Subsequent laboratory tests of
waste taken from the pits have shown waste materials were
present in the pit, which, when mixed with the spent caustic
being discharged from the driver's truck could have caused
the death. Final autopsy reports are still pending. It is
allegedly reported that CLAW facility officials directed the
driver to take and discharge his wastes to the truck ramp on
the edge of an open pit. Discharging toxic waste into an
open pit at the edge of a pic is not a safe, desirable, or
acceptable practice since toxic charaical. reactions are very
probable and can result in the death of anyone nearby.
5. Section 308 of the Federal Water Pollution
Control Act, 33 USC 1318,'and section 3007 of the Resource
Conservation and Recovery Act of 1976, (42 USC 6927), pro-
viding for entry, inspection, record inspection and copying
and sampling are reasonable, in the public interest and
necessary in order to carry out the provisions of these
Acts, which Acts are designed to protect the environment, as
40
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well as Che public health and welfare. In, the instant
matter ic is reasonable to assume the need for inspection
f
based on the information and observations set out in paragraph
A above and in the public interest.
C
'iDWARD C. MC HAH
CHEMICAL ENGINEER
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
Subscribed and sworn to before me
at Baton Rouge, State of Louisiana,
this /a of CLu^r . 1978,
41
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
IN THE MATTER OF
CLEAN LAND AIR AND WATER,
CORPORATION, d/b/a CLAW;
ETC.,. ET AL.
WARRANT OF ENTRY, INSPECTION
AND MONITORING PURSUANT TO
33 U.S.C.S1318 and 42 U.S.C.S6927
TO: THE UNITED STATES OF AMERICA, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, THROUGH ITS DULY DESIGNATED REPRESENTATIVE
OR REPRESENTATIVES, THE UNITED STATES MARSHAL OR ANY OTHER
FEDERAL OFFICER
An -application having been made by the United States of
America, United States Environmental Protection Agency, for a
warrant of entry, inspection and monitoring pursuant to 33 U.S.C.S1313
•and 42 U.S.C.S6927, as part of an inspection program designed to
assure compliance with the Federal Water Pollution Control Act
(commonly referred to as the Clean Water Act), 33 U.S.C.§1251, et
seq., and the Resource and Recovery Act of 1976 (42 U.S.C;§6901, et
seq.},. arid an affidavit having been made before me by Edward McHam,
a duly authorized employee of the United States Environmental
Protection Agency, that he has reason to believe that on the premises
.hereinafter described there exist a danger to the public's health,
welfare and safety and to the property, rivers and environment of
•the United States, and that in order to determine whether the
Federal Water Pollution Control Act (commonly referred to as the
i
Clean Water Act), 33 U.S.C.§1251, et seq., and the Resource and
Recovery Act of 1976 (42 U.S.C.S6901, et seq.), and the rules,
regulations and orders issued pursuant to the Acts have been or
are being violated, an entry on, and inspection and monitoring
of the said described property is required and necessary;
42
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And, the Court being satisfied that there has been a
sufficient showing that reasonable legislative or administrative
standards for conducting an inspection and investigation have been
satisfied with respect to the said described property and that
probable.cause exist to issue a warrant for the entry, inspection,
investigation and monitoring of the said described premises:
IT IS HEREBY ORDERED AND COMMANDED that the United States
of America, United States Environmental Protection Agency, through
its duly designated representative or representatives, the United
States Marshal, or any other federal officer are hereby entitled to
and shall be authorized and permitted to have entry upon the
following described property which is located in the Middle District
of .Louisiana:
; "Those premises known as the Claw Corporation
waste disposal facility in Iberville Parish,
Louisiana, also known as EPA, Inc., Clear Land
Air Water Corporation, Environmental Purification
Advancement, Environmental Purification Abatement
and possibly as the Rollins Environmental Services
of Louisiana, or which are owned or operated by
any other person or company/ corporation or part-
nership, which premises and property are more
particularly and further described as follows:
"From the intersection of La. Highway 75 and
:J.a. Highway 3056, proceed South for approximately
7 miles; turn right and travel across the Bayor-
Sorrel—Pontoon Bridge, a distance of approximately
0.2 miles; turn right, proceed northwest on Route
2, the Lower-Laves Road, for approximately 1.6
miles at which point the pavement ends; at this
point turn right, travel approximately o.l miles
to the entrance of the injection well, which is
believed to be owned by Rollins Environmental
Services of Louisiana, Incorporated, all as is
shown on the attached photos identified as
Government Exhibits 1 and 2.
"From the Rollins Environmental Services of
Louisiana, Incorporated office, proceed South on
the shell/gravel road for approximately 1.4 miles
until the road deadends. This is the location of
the field office of Clean Land Air and Water
(CLAW), and storage tanks which are believed to be
owned by Rollins Environmental Services of Louisiana
Incorporated, all as is shown on the attached photos
identified as Government Exhibits 3, 4, and 5.
43
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•From the field office of CLAW, return to the
site of the intersection at the paved lower levee
road and the road leading to the deep well injection
site (Rollins Environmental}. Proceed northwest
on the unpaved shell/gravel lower levee road
approximately 6.1 miles to the entrance road and
bridge leading to the gate guard house and gate
of the EPA, Inc. waste disposal pits. This same
entrance road is 7.7 miles northwest along the
lower levee road from the intersection of the lower
levee road and Bayou Sorrel Pontoon Bridge Road.
IT IS FURTHER ORDERED that the entry, inspection,
Investigation and monitoring authorized herein shall be conducted
during regular working hours or at other reasonable times, within
reasonable limits and in a reasonable manner from 6:00 a.m. to
10:00 p.m.
IT IS FURTHER ORDERED that the warrant issued herein shall
be for the purpose of conducting an entry, inspection, investigation
and monitoring pursuant to 33 U.S.C.S1318 and 42 U.S,C-§6327
consisting of the following:
(1) entry to, upon or through the above described
premises, including all buildings, structures,
equipment, machines, devices, materials and
sites to inspect, sample-, photograph, monitor
or investigate the said premises;
(2)- access to, seizure of and copying of all records
• . pertaining to or related to the operation of
the facility, equipment, waste materials
which are accepted and stored on the premises
and records which are recuired to be maintained
under 33 -U.S.C.§1318(a)(A), and 42 O.S.C.S6901,
et seq., including any rules and regulations
and orders promulgated thereto;
{3} inspection, including photographing, of any
monitoring equipment or methods required by
33 U.S.C.§1318(a)(A), and 42 U.S.C."§6927;
(4) inspection, including photographing,of any
equipment, processes or methods used in sampling,
monitoring or in waste characterization;
(5) inspection, including photographing, of any
equipment or methods used to dispose of or store
waste substances;
(6) sample and seize any pollutants, effluents,
runoff, soil, or other materials or substances
which may reasonably be expected to pollute
the waters of the United States under various
conditions or threaten the. public health, safety
or welfare of the people of the United States;
44
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C7) seize, inspect, sample, and photgraph any
evidence which constitutes or relates to or
is part of a violation of the Federal Water
Pollution Control Act (commonly referred to
as the Clean Water Act, 33 U.S.C.51251, et
seq., and the Resource and Recovery Act of 1976
.{42 U.S.C.S6901, et seq.);
(8) . take such photographs of -the above authorized
procedures as nay be required or necessary.
IT IS FURTHER ORDERED that a copy of this warrant shall
be left at the premises at the time of the inspection,
IT IS FURTHER ORDERED that if any property is seized,
•the officer conducting the search and seizure shall leave a receipt
for the property taken and prepare a written inventory of the property
seized and return this warrant with the written inventory before
me within 10 days from the date of this warrant.
IT IS FURTHER ORDERED that the warrant authorized herein
shall be valid for a period of 10 days from the date of this warrant.
IT IS FURTHER ORDERED that the United States Marshal "is
hereby authorized and directed to assist the representatives of the
Onited States Environmental Protection Agency in such manner as
nay be reasonably necessary and required to execute this warrant
and the provisions contained herein, including but not limited to .
gaining entry upon the premises, the inspection and monitoring
thereof, the seizure and sampling of materials, documents or equipment,
•and the photographing .of ,the .premises, and the materials or equipment
thereon.
DATED this /e> day of QLJLL*^,^L- , 1978.
UNITED STATES HAGISTIwVTE
45
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Attachment II
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN THE MATTER OF: )
)
GENERAL MOTORS CORPORATION )
GENERAL MOTORS ASSEMBLY DIVISION )
WILLOW RUN AIRPORT ) APPLICATION FOR
YPSILANTI, MICHIGAN 48197 ) ADMINISTRATIVE WARPJVNTS
AND )
VEHICLE EMISSION LABORATORY )
GENERAL MOTORS PROVING GROUND )
MILFORD, MICHIGAN 48042 )
NOW COMES the Administrator for the Environmental
Protection Agency (EPA), by and through the United States
Attorney, and applies for administrative warrants to
enter, to observe a Selective Enforcement Audit (SEA) test
on a configuration of motor vehicles manufactured by the
General Motors Corporation (GM) as specified in a SEA test
order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA, and to inspect GM's records, files,
papers, processes, controls, and facilities which are
involved in and-associated with the manufacture and testing
of said configuration pursuant to said test order at the'
premises of the GM Willow Run vehicle assembly plant, Ypsilanti,,
Michigan, and the GM vehicle emission laboratory at Milford,
Michigan, in accordance with Sections 206(b) and (c) , 208(a)
and 301(a) of the Clean Air Act, 42 U.S.C. §7525(b) and (c) ,
7542(a) and 7601(3), and regulations promulgated thereunder.
In support of this application, the Administrator respectfully
submits an affidavit and proposed warrants.
James K. Robinson
United States Attorney
By:_
Assistant United States Attorney
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IN Ti!S UNITED STATES DISTRICT COURT
FOR 'L'llS EASTERN DISTRICT OF MICHIGAN ,-
SOUTHERN DIVISION
IH THE ::AT7SR 0?:
)
GENERAL MOTORS CORPORATION ) ADMINISTRATIVE WARRANT FOR
GENERAL MOTORS ASSEMBLY DIVISION ' } ENTRY AND INSPECTION UKD2R
WILLOW RUN AIRPORT } THE CLEAN AIR ACT
YPSILAXTI, MICHIGAN 43197 }
TO: MATTHEW A. LOW, Acting Chief, Manufacturers Programs
Branch, Mobile Source Enforcement Division, Office of
Enforcement, United States Environmental Protection Agency
(E?A), and any other duly designated enforcement officers or
employees of the EPA:
Application having been made, and Matthew Low having shown
probable cause for the issuance of an administrative warrant
for entry; observation of a Selective Enforcement Audit
(SEA) fcest on the configuration of motor vehicles manufactured
by General Motors Corporation (GH) of engine family 84032
and engine code 2, with 4000-pound inertia weight, A-3
transmission and 2.56 rear axle ratio, as specified in a SEA
test order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA; and inspection of GM's records,
files, papers, processes, controls and facilities which are
involved in and associated with the .manufacture and testing
of said configuration pursuant to said test order at the
premises of the GM Willow Run- vehicle assembly plant, Ypsilanti,
Michigan;
WHE?.ErORE, pursuant to the Clean Air Act as amended, 42 U.S.C.
57401 efc 55 c (I. , and the regulations .thereunder, you and any duly
designated enforcement officers and employees of the Environmental
Protection Agency are hereby authorized to enter the above-described
premises at reasonable times during normal operating hours for the
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purpose of conducting an administrative inspection pursuant
to Sections 206(b) and (c), 208(a) and 301(a) of the Clean
Air Act, 42 U.S.C. §§7525(b) and (c) , 7542(a) end 7601, and
40 C.F.R. §85.601 et seq. You and ony duly designated
enforcement officers and employees of EPA are authorized to
observe activities conducted by GM pursuant to the SEA test
order issued on July 28, 1978, concerning the vehicle
configuration specified in said test order to determine
whether GM is complying with 40 C.F.R Part 86 and with the
test order. The activities that you and the designated
persons are authorized to observe include the following:
vehicle and engir.e manufacture, assembly, and storage
procedures; sample test vehicle selection procedures;
and related activities. You and any designated enforcement
officers and employees are authorized to inspect at reasonable
times during normal operating hours the records, files,
papers, processes, controls and facilities which are
involved in and associated with the above activities and
are maintained, used and generated by GM at that location.
You and any duly designated enforcement officers and employees
are authorized to copy documents and photograph components,
test vehicles and facilities.
The duration of this inspection shall be of such reasonable
length as to enable you and the authorized enforcement officers
and employees of EPA satisfactorily•to complete such inspection
according to 40 C.F.R. 586.601 et seq.
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A prompt return of this warrant shall be made to
this court showing that the warrant has been executed and that
inspection has been completed within such reasonable time.
DATED:
, 1978
V U
'•.'
•. \
UNITED. STATES MAGISTRATE
•. '• •• / :> A ' .•'.• •
JCo
/ //.
49
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P.STtJRH PL-' SERVICE
I hereby certify that a copy of the within warrant was
f) t -IS
served by presenting a copy of same to KoV'dM \ re,\'OSr ,
an agent of General Motors Corporation (GM) on A'jqi'a't' 1 ,
1973, at the GM Willow Run vehicle assembly plant, Ypsilsnti, Michigan
f (Narae of parson making service)
(Slzficiii'l Title v:ithin the^'Qnited
States Environmental Protection Agency)
RS7URM
Inspection of the establishment described in this
warrant was coraolcted on Av^'JS'T- ^ , 1978.
sL. V (
employee
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Inventory of Property Received Pursuant to Administrative
. Warranty
GH Assembly Division, VJillcw Run Airport, Ypsilanti,
Michigan 4 CIS 7
1. Vehicle Inspection Record Form (Chassis No. 2 (yellow)
ti%'R!;-71-S4 }
2. Xeroxed copies of lists c£ VIN Numbers of Cars making up
Batches 4, 5, 6, 7, 8, 9 (7 sheets)
These are the items that E?A has received under
the authority granted it pursuant to the Administrative
Warrant for Entry and Inspection
Bruce Luncy
Enforcement Officer
11:30 am 8/4/78
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN THE MATTER OF : ) AFFIDAVIT IN SUPPORT OF
) APPLICATION FOR WARRANTS
GENERAL MOTOR CORPORATION ) TO ENTER AND INSPECT '
GENERAL MOTORS ASSEMBLY DIVISION ) PURSUANT TO THE CLEAN AIR
WILLOW RUN, AIRPORT ) ACT (42 U.S.C. §7401 et seq.)
YPSILANTI, MICHIGAN 48197 ) '
AND )
VEHICLE EMISSION LABORATORY )
GENERAL KOTORS PROVING GROUND )
MILFORD, MICHIGAN 48042 )
Matthew Low being duly sworn upon his oath, according to
law, deposes and says:
1. I am Acting Chief, Manufacturers Programs Branch,
Mobile Source Enforcement Division, Office of Enforcement,
United States Environmental Protection Agency (EPA),
Washington, D.C. I am in charge of a program known as the
Selective Enforcement Audit (SEA) program, which will be
described below. I report to the Director of the Mobile
Source Enforcement Division, who is under the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement; in
turn, he is under the Assistant Administrator for Enforcement,
who reports to the Administrator of the Environmental
Protection Agency.
2. This affidavit is made in support of an application
for administrative warrants to enter; observe a Selective
Enforcement Audit (SEA) test on the configuration of motor
vehicles manufactured by the General Motors Corporation (GM)
of engine family 840B2 and engine code 2, with 4000-pound
inertia weight, A-3 transmission and 2.56 rear axle ratio as
specified in a SEA test order issued on July 28, 1978, by
the Assistant Administrator for Enforcement of EPA; and
inspect GM's records, files, papers, processes, controls,
and facilities which are involved in and associated with
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the manufacture and testing of said configuration pursuant
to said test order at the premises of the GM Willow Run vehicle
assembly plant at Ypsilanti, Michigan, and the GM vehicle
emission laboratory at Milford, Michigan, pursuant to
Sections 206(b) and (c), 208(a) and 301(a) of the Clean Air
Act, 42 O.S.C. §7525(b) and (c), 7542(a), and 7601(a), and 40
C.F.R. §86.601 e_t seg., 41 Fed. Reg. 31472 (July 28, 197S).
3. Title II of the Clean Air Act, 42 U.S.C. §§7401,
7520-7551, establishes the Federal program for con'trol of
motor vehicle emissions. Emission standards for motor
vehicles are prescribed pursuant to Section 202 of the Act,
42 O.S.C. §7521. Section 206(a), 42 U.S.C. §7525{a), authorizes
the EPA Administrator to require new motor vehicles to be
tested to determine whether such vehicles conform with the
emission standards and other regulations prescribed pursuant
to Section 202. Such standards are applicable for the vehicles'
useful life (5 years or 50,000 miles). The vehicles that are
tested during this certification process are usually pre-production
prototypes. In the certification process the manufacturer
submits applications for certification, each covering one or more
engine families and setting forth the corresponding technical
descriptions, specifications, and operating parameters for
each family covered. An engine family is made up of a group
of vehicle models, known as "configurations", with the same
basic engine and emission control system specifications. One
or more prototypes, known as durability vehicles, from each
engine family are subjected to testing over 50,000 miles to
determine deterioration in emissions performance for that
engine family. Thereafter, prototypes, known as.emission-data
vehicles, of individual configurations within a given family
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are subjected to a 4000-mile test. The emission levels of
the emission-data vehicles during their useful life are determined
by applying the "deterioration factor" calculated from the
50,000-mile test results for that engine family to the emission
data obtained after 4000 miles of operation. If it is demonstrated
that the prototype vehicles of the various configurations within
an engine family comply with the emission standards over their
useful life and with other regulations, the Administrator issues
to the manufacturer a certificate of conformity for the particular
engine family described in the application.
4. To determine whether new motor vehicles actually being
manufactured, as distinguished from pre-production prototypes,
meet the regulations, including emission levels, with respect to
which the certificate of conformity was issued, Section 206(b),
42 U.S.C, S7525(b), authorizes the Administrator to test and to
require the testing of new production vehicles. In addition, to
enforce Section 206, Section 206(c) provides that officers or
employees designated by the Administrator may enter a manufacturer's
plant to .conduct tests of vehicles and to inspect records, files,
papers, processes, controls, and facilities. Section 208(a), 42
D.S.C. §7542(a), further requires manufactuers to establish and
maintain such records, make such reports, and provide such
information as the Administrator may reasonably require to enable
him to determine whether the manufacturer has acted or is acting
in compliance with Title II of the Act and the regulations
promulgated thereunder and to permit duly-designated EPA officers
or employees to have access to and copy such records. Section
301(a), 42 U.S.C. §7601(a), authorizes the Administrator to
prescribe such regulations as are necessary to carry out his
functions under the Act and to delegate to any EPA officer or
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employee such of his powers and duties under the Act, except the
making of regulations, as he may deem necessary or expedient.
Based upon the authority of Section 206, 208 and 301, 42 U.S.C.
SS7525, 7542 and 7601, EPA has established a program for spot
assembly-line testing known as the Selective Enforcement Audit
»
(SEA) program. Regulations concerning the SEA program are set
forth at 40 C.F.R. §86.601 et seq., 41 Fed. Reg. 31472 (July 28,
1976). ' '
5. Onder the SEA program, the manufacturer can be required
to test a representative sample of production vehicles from a
designated-motor vehicle configuration to determine whether the
configuration is being manufactured to conform to the applicable
emission requirements. The SEA regulations prescribe specific
procedures by which SEA testing is to be conducted, including
procedures for vehicle selection, preparation and pre-conditioning,
for dynamometer operation to simulate driving conditions and for
collection of vehicle exhaust gas samples for analysis. A SEA
is initiated by the- issuance of a test order to a manufacturer
requiring that manufacturer to conduct emissions testing and
specifying, among other items, the motor vehicle configuration
to be tested, the plant or storage facility from which vehicles
must be .selected and the procedures to be employed in selecting
sample vehicles for SEA testing. Section 206(b) of the Act,
42 O.S.C. §7525(b), authorizes the Administrator to issue a
test order. Pursuant to Section 301(a) of the Clean Air Act,
42 U.S.C. §7601(a), the Administrator has delegated the authority
to conduct testing through the issuance of test orders to EPA's
Assistant Administrator for Enforcement along with the furtner
authority to redelegate this power to the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement, and in
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turn to redelegate to the Director:, Mobile Source Enforcement
Division. EPA Delegation 7-30, November 10, 1977. Such re-
delegation to the Deputy Assistant Administrator was made on
Hovember 14, 1977.
6. Under Sections 206(b) and (c), 208(a) and 301(a) of
the Clean Air Act, 42 U.S.C. §§7525(b) and (c), 7542(a) and
7601{a), and 40 C.F.R. §86.601 et seq., duly designated EPA
enforcement officers and employees are authorized under the
SEA program to enter the manufacturers' facilities at reasonable
times during normal working hours for the purpose of observing
activity relating to the SEA testing and inspecting records,
files, papers, processes, controls and facilities to determine if
the manufacturer is acting in compliance with regulations and the
test order. Ordinarily, the EPA.monitoring includes observation
of vehicle and engine manufacture, assembly and storage procedures;
sample test vehicle selection procedures; sample test vehicle
preparation, pre-conditioning, mileage accumulation, erai-ssion testing.
maintenance and soaking procedures, as well as the calibration of tesj
equipment; and related activities. Commonly, EPA inspects
records, files, papers, processes, controls, and facilities which
are involved in and associated with the above activities and are
maintained, used or generated by the manufacturer at the locations
where test vehicle assembly, SEA test vehicle selection and
testing take place. Also, EPA is authorized to copy documents,
photograph components, test vehicles and facilities and obtain ..
reasonable assistance from facility personnel in executing its
functions under the SEA program. E?A attempts to enter and
conduct these inspection-related activities in conjunction with
each SEA test order for the purpose of monitoring the activity of
the manufacturer undertaken pursuant to the test order to ensure
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that such activity conforms to the requirements of the test
order and the SEA regulations.
7. The manufacturer is notified by the test order of
the configuration (or alternate) to be tested, the location
from which test vehicles will be selected, when the testing
is to begin and when EPA officers and employees will be
present. The date of completion of the test, and therefore
the duration of the EPA inspection, is not specified at the
outset because it is not possible to do so. SEA selection
and testing normally take up to two weeks. If the manufacturer
elects to retest vehicles in an attempt to avoid failing an
audit, or if upon failing an audit a re-audit is necessary,
audit activity under the test order may continue for a
month. The Clean Air Act Selective Enforcement Audit
regulations, 40 C.F.R. §86.601 et seg., 41 Fed. Reg. 31472
(July 28, 1976), and the test order define the scope and
purpose of_the audit. The test order identifies the EPA
enforcement officers and employees who have been designated
to enter,, observe activities, and inspect records, files,
papers, processes, controls and facilities used in or
associated with the audit.
8. Under the regulations and the Clean Air Act, a SEA
test order may be issued to any manufacturer at any time for
any motor vehicle configuration being manufactured. When a
SEA test order provides less than 24 hours notice to the
manufacturer, the SEA test order must be authorized in
writing by the EPA Assistant Administrator for Enforcement.
9. The frequency with which SEA test orders are issued
to any given manufacturer is generally based on that manufacturer's
proportionate share of total vehicle production. A manufacturer's
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projected sales volume is used as the basis for establishing
the preliminary number of SEA test orders to which that
manufacturer may be subject annually. A higher production
volume requires more audits for sufficient review of the
manufacturer's production. The maximum number of SEA test
orders that may issue to a given manufacturer during a given
model year is preliminarily set at the number obtained by
dividing that manufacturer's total projected sales for that
model year by 300,000 and rounding to the nearest whole
number. 40 C.F.R. §86.603(f). Any manufacturer with
projected sales of less than 150,000 may be subject to an
initial annual limit of one SEA test order. One additional
SEA test order may issue to a manufacturer for each configuration
failing an audit and, when the annual limit figure, inceased
by these additional test orders, has been met, for each
configuration for which evidence exists indicating noncorapliance.
Because the agency's resources are limited, EPA may undertake
fewer SEA's than are authorized by its regulations.
10. Within these annual limits on the number of test
orders EPA may issue to each manufacturer, EPA employs a
systematic process, .as discussed, below, for choosing which
configuration of which manufacturer to subject to an audit.
Initially, EPA seeks to issue test orders proportionately among
manufacturers according to their respective annual projected
sales and to distribute those test orders evenly over the course
of a model year. This process then employs three primary sources of
information, assembly-line test data, projected sales volume, and
certification data, as bases for assigning points to rank
configurations for the purpose of determining which configuratin
would be most appropriate for an audit at a given time. Once
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configurations are ranked, the process also considers other,
non-quantifiable factors in reaching an ultimate decision about
which configuration to audit.
11. Where data being evaluated by EPA from any of these
three sources pertains to individual configurations, points are
assigned to the respective individual configurations according to
the guidelines of the ranking system. If the data evaluated
pertains to engine families, points based on a engine family's
data will be assigned for ranking purposes to an individual
configuration within the engine family. The configuration
receiving the engine family's points will be identified according
to two factors. To begin with, its production rate must be high
enough to enable sample test vehicles to be selected for testing
in an expeditious manner. Once that determination has been made,
its actual physical characteristics (such as engine code, inertia
weight, type of transmission, or rear-axle ratio) which distinguish
it from other configurations within the engine, family must make
it the configuration most likely to produce the highest level of
emissions, of the configurations in that family.
12. Before ranking configurations, SEA's systematic
configuration selection process applies the general objective
that each manufacturer should receive at least one half of
its annual limit of audits as computed from its projected
sales during the model year, with those audits distributed
. over the model year, to ensure proper review of the total
production of each manufacturer. Thus under the plan
described below, a configuration of a particular manufacturer
may replace another configuration of any manufacturer which
otherwise would have been chosen for an audit. This result
occurs whenever issuing the test order to the manufacturer
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of the replaced configuration would have subjected that
manufacturer to a disproportionate number of audits as of
that time in the model year.
13. The most important factor considered quantitatively
by EPA is a configuration's emissions data which have been
generated by a manufacturer's own quarterly assembly-line
testing and submitted to EPA. The data allows EPA to
evaluate both the rate at which production vehicles coming
off the assembly line fail to meet an emission standard
for a given pollutant and the mean emission value measured
from assembly-line vehicles as compared to a pollutant's
emission standard. Points due to failure rates are assigned
to a vehicle configuration as follows:
Failure Rate
Range Points
0-10% 0
11-20% 5
21-30% 15
31-40% . 30
40% and above 5O
Points according to the configuration's mean emission value
compared ,to the emission standard (std) are assigned as follows:
Range Points
Mean value is between 0.9 5
of the std and the std
Mean value is greater than 15
the std but less than or
equal to 1.1 of the std
Mean value is greater than 30
1.1 of the std
Application of the point total derived from these calculations
will take into account the reliability that can be attributed
to the data submitted by a manufacturer. For example, EPA
will assess the number of vehicles tested in order to
determine the failure rate or mean emission value. Data
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reliability also depends upon the extent to which a discrepancy
is found in a comparison between past SEA data pertaining to
the configuration in question and the manufacturer's most
recently submitted internal assembly-line data. Furthermore/
evaluation of this point total also will consider both
whether a manufacturer has failed to provide test data for
one or more configurations in production at the time the
assembly-line data was generated and whether any "running
changes" incorporated into the manufacturer of a configuration
since that time may be expected to cause the emissions level
of the configuration to exceed standards for a pollutant.
14. The next most important factor in this point
ranking system is the configuration's (or engine family's)
projected annual sales figure as provided by the manufacturer
in its application for certification. Points based upon
projected sales are assigned as follows:
Annual Projected Sales Points
0-20,000 0
20,000-50,000 10
50,000-100,000 20
100,000 and above 30
This factor focuses on higher-production models and tends to
assure through SEA review that a high percentage of vehicles
produced complies with the emission standards.
15. Finally, certification data generated from prototype
testing and regarding configurations currently in production
are examined; that is, EPA reviews the pertinent certification
data on configurations being manufactured either according to
the manufacturer's original application for certification or
according to its latest running change application for an amended
certificate of conformity. If the configuration*.s emission
performance level based on that data is within 10% of the emission
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standard for a given pollutant, 15 points are assigned to that
configuration. Application of this 'factor may be adjusted where
analysis by EPA's certification group indicates that certification
test data may not be indicative of whether production vehicles of
that configuration are likely to meet emission requirements. The
focus of this factor is on vehicles that have demonstrated only
marginal compliance during the certification or running change
approval process.
16. Aside from these quantitative factors and the
objective of distributing audits among manufacturers
throughout the model year/ in choosing which configuration
of which manufacturer to audit EPA takes into account the
location of the manufacturer's assembly plant and test
facilities. This factor generally is given significant
consideration if these establishments are located overseas
or are otherwise geographically removed from the Midwestern
United States. Most manufacturing and testing establishments
are located in the area, and therefore most audit activity
can be expected to take place there. EPA also considers
whether a configuration is being manufactured at a sufficiently
high rate to allow sample vehicles to be selected expeditiously
for testing. Information on current production rates of
configurations might not be requested' from a manufacturer
so as to avoid suggesting to manufacturers which configur-
ations may be subject to an imminent test order. Thus, a
test order can designate an alternate configuration of that
manufacturer for testing, chosen according to the normal
systematic process described above subject to the constraints
regarding location and production rate, in the event that the
primary configuration is unavailable for testing.
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17. Automobile manufacturers for the most part have
centralized their testing facilities in eastern Michigan. •
Consequently, they generally have expressed a preference
that vehicle selection for any audit of any configuration
produced in that area and others take place at a plant in
that area. Pursuant to 40 C.P.R. §86.603(d), EPA complies
with these indicated preferences when specifying locations
for vehicle selection pursuant to a test order unless the
Administrator determines that information exists indicating
noncbmpliance at other plants. If a manufacturer does not
indicate a preferred plant for a configuration being
audited, the test order will specify that test vehicle
selection be conducted at the location closest to the
manufacturer's testing facility at which a sufficient number
of vehicles are available from which a sample representative
of the configuration can be chosen expeditiously, unless it
is determined that evidence exists indicating non-
compliance at another plant. Since the goals of the EPA
program can be accomplished with a relatively high percentage
of audits testing vehicles selected from locations in eastern
Michigan, a relatively high percentage of vehicle selection
for SEA's takes place in that area. Once a test order has
been issued covering a. specific manufacturer, configuration
and facility for sample test vehicle selection, EPA sends a
team of enforcement officers to the manufacturer's facilities
where selection and testing take place for the purpose of
monitoring the manufacturer's activity performed in response
to the test order.
18. Experience with the administration of the SEA program
has produced indications that providing a manfacturer with advance
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notice of an intent to require SEA testing before EPA enforcement
officers can gain access to the manufacturer's facilities pursuant'
to that test order can give the manufacturer an opportunity to
alter its production processes. The manufacturer thereby can
bias production of a vehicle configuration so that sample vehicles
selected for SEA testing will not provide representative data
which would enable EPA to review accurately the manufacturer's
production of that configuration on the whole. Such
notice would occur if EPA enforcement officers requested
permission to enter a facility to monitor activity related
to the SEA, and permission to enter were refused, before
a warrant authorizing that entry were obtained.
19. On the basis of 1978 model year projected sales
alone General Motors may be subject to 20 test orders during
the model year and has been subject to 10 orders thus far.
Ford may receive 11 test orders on the basis of projected
sales and has been issued 8. Chrysler may receive 5 test
orders based on projected sales and has received 6, since
one of its configurations failed an audit. See 40 C.F.R.
S86.603(f). American Motors may be issued 1 test order
based on projected sales and has not yet received any. Four
European and three Japanese auto manufacturers have been
audited during the current model year.
20. GM is a manufacturer of automobiles and operates
facilities devoted to that purpose at its Willow Run vehicle assembly
plant in Ypsilanti, Michigan. GM also operates emission
testing facilities at its vehicle emissions testing laboratory
in Milford, Michigan, where GM usually ships cars for
SEA testing after such cars have been selected at a vehicle
assembly plant as SEA sample test vehicles. GM produces
hundreds of different configurations during the model year.
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21. GH is still eligible to receive 10 SEA test orders
for model year 1978 configurations. The configuration Specified
in the SEA test order issued on July 28, 1978, has been chosen
as the subject for SEA testing because of the configurations
currently under production and available for selection it has
accumulated the greatest number of points under EPA's systematic
process for choosing configurations to audit and because no
non-quantitative factors indicate that another configuration is
more appropriate for auditing. Assembly-line test data submitted
by GM which, according to our analysis, pertains to its engine
code 2 configuration of its 840B2 engine family with 4000-pound
inertia weight, A-3 transmission and 2.56 rear axle ratio shows a
56%- failure rate of vehicles tested with respect to the emission
standard for nitrous oxides (NOx), giving that configuration
50 points for ranking purposes. The mean emission value for NOx
derived from this assembly-line testing (1.99 grams/mile) falls
within 0.9 of the NOx emission standard (2.00 grams/mile),
contributing another 5 points. The projected annual sal'es
for this configuration is 63,741, giving the configuration
an additional 20 po-ints. Certification testing conducted for
this.configuration produced data which showed the prototype
CO eaissions level (15 gram/mile) to be within 10% of the CO
emission standard (also 15.0 grams/mile), thereby assigning the
configuration 15 more points. The configuration's point total
of 90 is the highest for any configuration r^ms. Ining in production
long enough and at a rate high enough to allow for expeditious
sample test vehicle selection pursuant to the SEA regulations.
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22. The document, which is attached and incorporate^
by'reference, and sets forth the SEA test order for this
configuration will be delivered to GM by an EPA enforcement
officer at the same time the designated officers and employees
appear at GM's vehicle assembly facilities in Ypsilanti,
Michigan, to begin monitoring GM's activities performed
pursuant to the SEA test order. The entry, observation and
inspection there and at GM's vehicle emission testing
laboratory in Milford, Michigan will be consistent in
purpose, scope, location and timing with the Clean Air Act,
this Court's administrative warrants, EPA regulations, the
test order and the program described in this affidavit.
MATTHEW LOW
Sworn and subscribed before me
this • day of , 1978
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Attachment III
RECOMMENDED INSPECTION SCHEME
1. 3 Electric Utilities
2. 4 PCS article and equipment repair facilities
3. 2 PCS processors or PCB article Manufactures
(i.e. Transformer and capacitor Manufacturers)
4. 1 Die casting facility or Hydraulic system operator
5. 1 Waste Oil handling facility
In the event that there are no known facilities in the Region
for an above category eleminate that itan or use category 3 or 4 as
alternatives.
67
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Table of Contents
Page No,
Section C. Gathering Evidence
C-l. Chain-of-Custody Procedure for Source Sampling, Section 71
3.0.3 of Quality Assurance Handbook for Air Pollution
Measurement Systems, Vol. Ill - Stationary Source
• Specific Methods, EPA-600/4-77-027b, August 1977.
C-2. Freedom of Information Procedures, EPA Transmittal 85
Order No. 1550-1C, August 23, 1978
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C-l
CHAIN-OF-CUSTODY PROCEDURE FOR
SOURCE SAMPLING
Section 3.0.3. of Quality Assurance Handbook
for Air Pollution Measurement Systems, Vol. Ill
Stationary Source Specific Methods
EPA-600/4-77-027b
August 1977
U.S. Environmental Protection Agency
Office of Research and Development
Environmental Monitoring and Support Laboratory
Research Triangle Park, North Carolina 27711
71
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Revision No. 0
Date: January 1979
CHAIN-OF-CUSTODY PROCEDURE FOR SOURCE.SAMPLING
As part of the overall quality assurance activities
associated with the collection and analysis of source sam-
ples, particular attention should be directed to the hand-
ling of the sample and the analysis report.
Source test results, or possibly even the sample it-
self, may be used to prove the compliance status of a faci-
lity. However, test results and samples will not be ad-
mitted as evidence unless it can be shown that they ac-
curately represent the conditions that prevailed at the time
the test was conducted. This requires that:
1. the sample be collected properly,
2. the sample be handled properly,
3. the sample be analyzed in accordance with docu-
mented test procedure, and
4. the analysis (test report) be prepared completely
and accurately and then filed in a secure place.
Failure to comply with these requirements may void the
results of a test or, at least, diminish the credibility of
the test report.
1. 0 Sample Collection
Proper sampling requires the use of the correct method,
the equipment designated by the method, and competent per-
sonnel. Prior to the test date, the tester should determine
that the proposed test methods comply with the appropriate
testing regulations; in some instances, it may be necessary
to deviate from the proposed methods. For example, the only
reasonable sample site may be too close to an elbow or a
duct obstruction. In such cases, the tester should make an
engineering analysis of the use of the test site and then
proceed only after obtaining the approval of the adminis-
trator. This determination should be recorded in the field
notes. An after-the-fact site analysis may suffice in many
instances, but good quality assurance techniques dictate
that this analysis be made prior to spending the many man-
hours required to extract the sample. Once the test method
is selected, preparations for the test should be made ac-
cording to documented guidelines.
1.1 Preparations
When conducting the test, it is necessary that the
sample be extracted in a manner to ensure that it represents
the actual conditions at the time of the test. This means
that the process is operating in its mode specified by the
73
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applicable control regulation, the extracted sample typifies
the stack gas conditions, and the instruments used in the
sampling are properly calibrated and maintained.
Because the results of source tests are being used
increasingly as proof of compliance, the pretest preparation
and posttest scrutiny are becoming more sophisticated.
Thus, steps need to be taken prior to the actual test to
ensure the integrity of the test data.
In many cases, reagents or filters are prepared prior
to sampling and become an integral part of the sample it-
self. A record should list the date, the person by whom it
was prepared, and the location of these items at all times
from preparation until actual use for sampling. Since these
items become a part of the sample itself, it is necessary
that their integrity be maintained from preparation through
analysis. For example, a bulk quantity of solution may be
prepared and transported to the field where the specified
amount is used in ac :ordance with the test method. The bulk
solution ultimately becomes an integral part of several
samples during tlie sampling process. For this reason, one
member of the sampling crew generally serves as sample
custodian and should be responsible for entering
information on sample preparation items in the field note-
book. However, as long as proper records are kept more than
one individual may serve in this capacity. This serves as a
written record for the sampling crew and also fulfills
chain-of-custody procedures.
1.2 Sample Handling • •
Once the sample is procured it should be handled in
such a way as to ensure that there is no contamination and
that the sample analyzed is actually the sample taken under
the conditions reported. For example,- each sample should be
kept in a secure place between the time it is extracted and
the time it is analyzed. If further analysis may be re-
quired, the sample should be returned to a secure place. It
is always best to keep a sample secure up to the time it is
discarded. These security measures should be documented by
a written record signed by the handlers of the sample.
Identification - Care should be taken to mark the
samples to ensure positive identification throughout thd
test and analysis procedures. The Rules of Evidence used in
legal proceedings require positive procedures for identifi-
cation of samples used in analyses as the basis for future
evidence. An admission that the laboratory analyst could
not be positive whether sample No. 6 or sample No. 9 was
analyzed could destroy the validity of the entire test
report.
Positive identification also should be provided for the
74
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filters used in any specific test before taring. If ink is .
used for marking, it must be indelible and unaffected by the
gases and temperatures to which it will be subjected. Other
methods of identification can be used, if they provide a
positive means of identification and do not impair the
function of the filter.
Finally, each container should have a unique identifi-
cation to preclude the possibility of interchange. Grease
pencils may be used for this purpose. A better method,
however, is to affix an adhesive-backed label to the con-
tainer. The number of the container should be recorded on
the analysis data form. Figure 1 shows how a standardized
identification sticker can be used for each of the four
containers needed to collect a sample for EPA Test Method 5.
. Contamination and Tampering - To reduce the possibility
of invalidating the results, all components of the sample
should be carefully removed from the sampling train and
placed in nonreactive containers. The best method of sealing
depends on the container. Place containers in a place of
limited access (i.e., locked van or locked sample box).
This will preclude accidental opening of the container and
should be a sufficient safeguard if all other aspects of the
chain-of-custody procedure are observed. However, if there
is any possibility of temporary access to the samples by
unauthorized personnel, the sample jars and containers
should be sealed with a self-adhesive sticker that has been
signed and numbered by the test supervisor or other respon-
sible person. This sticker should adhere firmly to ensure
that it cannot be removed without destruction. The samples
should then be delivered to the laboratory for analysis. It
is recommended that this be done on the same day that the
sample is taken. If this is impractical, all of the samples
should be placed in a carrying case or other place of limi-
ted access (preferably locked) for protection from breakage,
contamination, and loss.
In transporting the sample to the laboratory, it is
important that precautions be taken to eliminate the pos-
sibility of tampering, accidental destruction, and physical
and/or chemical damage to the sample. This practical con-
sideration should be dealt with on a case-by-case basis.
For example, samples obtained from a rock crusher are non-
reactive but those from an asphalt saturator may be reac-
tive, and gaseous samples may decay or react.
The person who has custody of the samples should be
able to testify that no one tampered with them. Any hand-
ling of samples by unauthorized persons can result in con-
tamination. For example, a curious person with a cigarette
in his mouth may open a sample; the smallest ash dropping
75
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Container No. f\"^f
Plant ABC, £0rfX City PoC/Unk
Site £*/'•/• Win Sfncfc Pollutant f&ff".
Date //-/£-7? Run No. 2.
•'Yront half Front filter no
Back half Back filter no
Rinse nCe.'fos?£»
VO!UM< Initial fJ-A* Final 3CO W> *
Cleanup by :<;l •/&«€» Field Chief : 0 .&«/££ j
C/ u
—
Container No. rf ~ 5
punt/) 6^, &rto. city ftxlunk
Site£x/f /6/n ttLtk Pollutant /2ir/".
Date //*/f-77 Ru" No. 2.
Front half Front filter no
l^Back half Back filter no
Rin.e Ace-hnc. "Blank
Volumes Initial /V-/f. Final A/'/f. t
Cleanup bys^.^J^Field Chief : AJ-£»£U*?1 «»
<7 0 " "
PROBE RINSINGS
ACETONE BLANK
Container No. ^"(0
plant A6C. C/>rJ>. city Podunk
site ESPOu4le+ pollutant /&rt
Date H*/5"17 Run No. 2.
Front half •Front filter no W*!S~t
Back half Back filter no
Rinse A)- A.
Volume: Initial AJ./T. Final A/.rf. M
Cleanup bv:^-/^€x Field Chief : Kj-SA^lt^S «
^-' U «••
FILTER
Container No.
Plant
Site
Date
S-7
Corb.
city
Pollutant
Run No.
Front half
Back half
Rinse
Front filter no
Back filter no
Volume: Initial
Cleanup bycO^
Final
A/./?.
Field Chief
: A).
SILICA GEL
FIGURE 1.
Typical labels used for samples collected for a source test of
particulate natter using EPA Test Method 5.
N
to
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into the container could make a significant difference in
the analysis. Security should be continuous. If the samples
are put in a truck, lock it. In the laboratory, the samples
should be kept in a secure place.
To ensure that none of the sample is lost in transport,
mark all liquid levels on the side of the container with a
grease pencil. Thus any major losses that occur will be
readily ascertainable.
Chain-of-Custody - The chain-of-custody is perhaps the
most critical part of the test procedure. The chain-of-
custody is necessary to make a prima facie showing of the
representativeness of the sample. Without it, one cannot be
sure that the sample analyzed was the same as the one pur-
ported to be taken at a particular time. The samples should
be handled only by persons associated in some way with the
test. A general rule to follow is "the fewer hands the
better", even though a sealed sample may pass through a
number of hands without affecting its integrity. Ideally,
all sample containers should be transported from the site to
the vehicle and from the vehicle to the laboratory by the
same person.
It is generally impractical for the analyst to perform
the field test. For this reason, each person should re-
member from whom the sample was received and to whom it was
delivered. This requirement is best satisfied by having
each recipient sign the data form for the sample or set of
samples. Figure 2 shows a form for particulate samples
which may be used to establish the chain of custody from the
test site to the laboratory. This form is designed for
tests performed by EPA Method 5. Note that the silica gel
was weighed in the field. If for some reason this is not
done, the silica gel must be returned with the other con-
tainers, and an appropriate notation made under "Remarks".
Figure 3 shows another form which may be used. A form of
this type should accompany the samples at all times from the
field to the laboratory. All persons who handle the samples
should sign the form. It is important to realize that the
chain-of-custody procedures do not stop with the sample
analysis. If the sample must be kept for future analysis,
it should be kept in a secure storage area. Figures 2 and 3
reflect this.
2.0 Sample Analysis
For source samples to provide useful information,
laboratory analyses should meet the following requirements:
1. Equipment should be adequate for proper analysis;
2. Personnel should be qualified to. make analysis;
3. Analytical procedures should be in accordance with
accepted good practice; and
4. Records should be complete and accurate.
77
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PARTICULATE SAMPLE RECOVERY AND INTEGRITY SHEET
Plant: Afef ,£ofb &dun)v Ohl'P Sample date: II-I"?-17
Sample location: Kiln glfl-i* 5JQ£k Run no.: 2.
Sample recovery bv: O
-------
riant
0.
Sample
numbar
Number
of
container
Description
of Samples
Ace-tone.
Person responsible for samples"? vU<-t*
Date/A-/f-77
Sample
number
2.
Relinquished
by:
Received
Time
Date
-77
Reason for change
of custody: ,
pu-tin Sarnp/e Iccker
Sample
number
Relinquished
by: -
Received
by:
Time
Date
Reason for change
of custody:
gun
Sample
number
Relinquished
by:
Received
Time
Date
//-2D-77
Reason for change
of custody:
Sample
number
Relinquished
by:
Received
by:
Time
Date
Reason for change
of custody:
Sample
number
Relinquished
by:
Received
by:
Time
Date
Reason for change
of custody:
FIGURE 3. Chain-of-custody receipt form - general form,
79
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The first three requirements are discussed elsewhere in this
handbook and need no further elaboration.
Complete and accurate records generally take the form
of a laboratory notebook. Where practical, standard pre-
printed forms should be used. Do not discard these records,
since it is possible that they will be needed in the future
to substantiate the final report. Figures 4 and 5 are
examples of standardized forms that can be used in the
laboratory. Note that the entries on these forms must agree
with those shown on the container labels (Figure 1) and on
the chain-of-custody receipt form (Figures 2 and 3).
3.0 Field Notes
Manual recording of data is required for source tests.
Standardized forms should be utilized to ensure that all
ne.cessary data are obtained. These forms should be designed
to clearly identify the process tested, the date and time,
the test station location, the sampling personnel, and the
person who recorded the data. During the actual test period,
the meter readings, temperature readings, and other perti-
nent data should be recorded in the spaces immediately upon
observation. These data determine the accuracy of the test
and should not be erased or altered. Any error should be
crossed out with a single line; corrected value should be
recorded above the crossed-out number.
Do not discard the original field records even if they
become soiled. For neatness, the field data may be tran-
scribed or copied for inclusion in the final report, but the
originals should be kept on file. Copies are not normally
admissible as evidence, but since the records may be sub-
poenaed, it is important that all field notes be legible.
4.0 The Report as Evidence
In addition to samples and field records, the report of
the analysis itself may serve as material evidence. Just as
the procedures and data leading up to the final report are
subject to the Rules of Evidence, so is the report itself.
Written documents, generally speaking, are considered hear-
say and are not admissible as evidence without a proper
foundation. A proper foundation consists of testimonies
from all persons having anything to do with the major por-
tions of the test and analysis. Thus the chief of the field
team, the cleanup man, all persons having custody of the
samples, and the laboratory analyst would be required to lay
the foundation for introduction of the test report as evi-
dence. However, the foundation laying is greatly simplified
under statutory exceptions to the Hearsay Rule (found in the
Uniform Business Records as Evidence Act) and the Federal
Rules of Evidence.I'2
Federal Rules 803(6) and 803(24) recognize that a
record of events is the result of input from many persons
80
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Plant ARC C^rp-i
ANALYTICAL PARTICULATE DATA
OUlO
Pun No.
Sample location kiln ftflt
Density of acetone (pa)
g/ml
Sample
type
Acetone blank
Acetone rinse
Filter (s)
Container
No.
A-S*
A-4
f'(o
Liquid Level
Marked
•
^
Container
Sealed
•
*r
^
3oO
Acetone rinse volume (Vaw)
Acetone blank residue concentration (Ca) ^.| j
Wa a Ca Vaw pa * (7-ljtie*) ( Zoo ) ( .7*0) •
Date and time of wt H-Ts-T? \ S'-flOa-M. Gross wt.
ml
Date and time of wt U-U-17I
•»H. Gross wt. SZIQ.V
Date and time of wt \\-2O''Jl'fc
Date and time of wt Ij-24-11 )$''.\£"4'**. Gross wt.
Average gross wt.
Tare wt.
Weight of particulate on filter(s)
Weight of particulate in acetone rinse
Total weight of particulate
Remarks:
- lp
ZO2-T
|0(< (?
Signature of analyst
Signature of reviewer
^a.
mg/g
mg
mg
mg
Average gross wt. SZ(Q.*7 mg
Tare wt. 5*108*.(9 mg
Less acetone blank vt. (Wa) O'ST rog
Weight of particulate in acetone rinse tQI-(o mg
Filters (s) no. HVIS7
H. Gross wt.
mg
mg
.O mg
ng
ng
mg
FIGURE 4. Standard form for Laboratory analysis of sample
(EPA Test Method 5) .
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ANALYTICAL BLANK DATA
Plant ABC g^rp.yPo^un^.Ok-o Blank no.
Sample location Kiln fofi't'
Liquid level at mark ^ container sealed «"" _
Density of acetone (ra) O.7^O _ mg/ml
Acetone blank volume (Va) _ SCO ml
Date and time of wt. U-ID-T7 ', fr'lf a.m. Cross wt. S0{0 . fr TT
Date and time of wt. U*2o-7?3-'2jO j^. Gross wt.
Average gross wt. SPfo .*7 ~T
Tare wt. SoyO.T. P.?
Weight of blank (rna) Q.S" n
Remarks:
Signature of analyst l>0 . 3 frffl.-**V
Signature of reviewer
FIGURE 5. Standard form for laboratory analysis of acetone
blank.
82
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who have no reason to lie and that introduction of all these
persons as witnesses in onerous. These rules, which recog-
nize the complexity and mobility of our society, are even
more liberal than the Uniform Business Records as Evidence
Act. Some 30 states have adopted this Act, and the trend is
definitely toward excepting scientific reports from the
Hearsay Rule. Indeed, in many cases the trial judge will
require the parties to verify the authenticity of source
test reports during the pretrial proceedings. However, the
party against whom the report is offered still has the
right, with reasonable cause, to cross-examine the test
participants. In this area, the trial judge may exercise
discretion.
The relaxed attitude toward reports of experiments made
by persons in the regular course of activity greatly simpli-
fies the introduction of the report as evidence. Only the
custodian of the report (usually the supervisor or the test
team) need testify.
To ensure exception from the Hearsay Rule, all test
reports should be filed in a secure place by a custodian
having this responsibility. Although the field notes and
calculations are not generally included in the summary
report, this material may be required at a future date to
bolster the acceptability and credibility of the report as
evidence in an enforcement proceeding. Therefore, the full
report--including all original notes and calculation forms--
should be kept in the file. Signed receipts for all samples
should also be filed with the test data.
These records are also subject to the Best Evidence
Rule, which basically states that the original of a document
is the best evidence and that a mere copy is not admissible
as evidence. Microfilm, snap-out carbon copies, and similar
contemporary business methods of producing copies are ac-
ceptable in many jurisdictions if the unavailability of the
original course is adequately explained and if the copy was
made in the ordinary course of business.
In summary, although all the original calculations and
test data need not be included in the final report, they
should be kept in the agency's files. It is a good rule to
file all reports together in a secure place. Keeping these
documents under lock and key will ensure that the author can
testify at future court hearings that the report has not
been altered.
83
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5.0 References
1. Uniform Laws Annotated, Vol. 9A Miscellaneous
Acts. Uniform Business Records as Evidence Act,
1936 Act, Edward Thompson Co., Brooklyn, N.Y.,
1965, p. 506.
2. Federal Rules of Evidence for U.S. Court and
Magistrates, West Publishing Co., St. Paul, Minn.,
July 1, 1975.
84
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C-2
FREEDOM OF INFORMATION PROCEDURES
EPA Transmittal
Order No. 1550-1C
August 23, 1978
85
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ENVIRONMENTAL
PROTECTION TRANSMITTAL
AGENCY
Addressee
1550.1C
August 23, 1978
PUBLIC AWARENESS - FREEDOM OF INFORMATION
MATERIAL TRANSMITTED:
EPA Order 1550.1C , Freedom of Information Procedures.
MATERIAL SUPERSEDED:
EPA Order 1550.IB dated May 13, 1975.
FILING INSTRUCTIONS:
File the attached material in numerical order in a three-ring binder
established for EPA Directives.
Jilliam J. Benoit
Acting Deputy Assistant
Administrator for Administration
Dist: Directives
87
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ENVIRONMENTAL
PROTECTION ORDER
AGENCY
1550. 1C
August 23, 1978
PUBLIC AWARENESS - FREEDOM OF INFORMATION
FREEDOM OF INFORMATION PROCEDURES
1. PURPOSE. This Order establishes policy and procedures for
implementing the Freedom of Information Act, as amended (5 U.S.C. 552),
relating to the availability to the public of identifiable and unpub-
lished records contained in EPA files. It supplements the EPA regula-
tions set forth in Part 2, Title 40, Code of Federal Regulations. For
additional information, refer to the regulations attached at Figure 1.
2. POLICY. It is Agency policy to make the fullest possible disclosure
of information without unjustifiable expense or delay to any person who
requests information subject to the other provisions of this Order.
3. COVERAGE. Any written request to EPA for existing records is
considered to be a request for records pursuant to the Freedom of Infor-
mation Act, 5 U.S.C. 552, whether or not that statute is mentioned in
the request. Requests for existing records prepared by EPA for routine
distribution, e.g., pamphlets, copies of speeches, press releases, and
educational materials, will be honored automatically. An individual
determination is not necessary in such cases, since preparation of the
records for routine public distribution itself constitutes a determina-
tion that the records are available to the public. Consequently, the
detailed procedures in this Order apply to written requests for existing
records which are not available for routine public distribution.
4. DESIGNATIONS. The following designations are made with respect to
implementation of the Freedom of Information Act. Explanations of
specific responsibilities associated with each designation are included
in the sections on procedures.
a. Freedom of Information Officer. The Executive Officer, Office
of the Administrator, is designated as the Agency Freedom of Information
Officer. Each Regional Administrator will designate a Regional Freedom
of Information Officer responsible for his/her particular Region.
Dist: Directives " Initiated by:
PM-213
88
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ORDER
1550 -'1C
August 23, 1978
b. Responsible Official. The authority to make initial positive
and negative determinations relative to the release of information,
waive payment of fees, or extend the date for mailing a determination
pursuant to the Freedom of Information Act (5 U.S.C. 552) and CFR Part 2
has been delegated to:
(1) Deputy Administrator;
(2) Assistant Administrators;
(3) Heads of Headquarters Staff Offices; and
(4) Regional Administrators;
This authority may be redelegated, except that the authority to issue
initial denials of requests for existing, located records may not be
redelegated below Division Director or equivalent.
c. Appeal Official. The General Counsel is the Agency official
responsible for making legal determinations on written appeals from
negative determinations made by Headquarters or Regional officials.
He/she may redelegate this duty to any attorney employed on a full time
basis by EPA including attorneys in Regional offices.
d. Director of Office of Public Awareness. The Director of the
Office of Public Awareness is designated as the Agency official respon-
sible for making public interest determinations regarding release of
records that have been found to be legally exempt from disclosure by the
General Counsel but that can be disclosed as a matter of Agency
discretion.
5. PROCEDURES FOR ROUTING REQUESTS.
a. Correspondence Marked "Freedom of Information" on the Envelope.
Correspondence marked "Freedom of Information" on the envelope will be
delivered directly to the Headquarters Freedom of Information Office or
to the Regional Freedom of Information Office, where it will be date
stamped, assigned a Request Identification Number, and logged in as a
Freedom of Information request. The Headquarters Freedom of Information
Office or the appropriate Regional staff will complete EPA Form 5180.1,
Mail Control Schedule, and hand-carry or telecopy the correspondence to
the office responsible for preparing the reply. In the event that more
than one office will be providing input to the reply, the Headquarters
Freedom of Information Office or the Regional Freedom of Information
Office will designate a lead office to coordinate the reply.
PAR 4
39
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ORDER
1550.1C
August 23, 1978
b. Correspondence Addressed to an Organizational Unit or Official.
If an organizational unit or EPA official receives correspondence
directly which is identified as a Freedom of Information Request within
the meaning of paragraph 3 of this Order, the correspondence will be
date stamped upon receipt and the procedure for determining whether the
information can be provided will commence immediately. Concurrently,
the office will forward a copy of the request, with the date and place
of receipt noted thereon, to the Freedom of Information Office, Head-
quarters, or the Regional Freedom of Information Office, as appropriate.
If the correspondence is not addressed to the appropriate office, the
receiving office will record the date of receipt and forward the
correspondence to the Headquarters Freedom of Information Office or the
Regional Freedom of Information Office for proper routing.
c. Unless there is an immediate positive determination, the Head-
quarters Freedom of Information Office or the Regional Freedom of
Information Office will send an acknowledgment of receipt of the corre-
spondence to the requesting party immediately after logging the corre-
spondence into the Agency. This acknowledgment, EPA Headquarters Form
1550-2 or EPA Form 1550-3, will inform the requesting party of the date
of receipt by EPA.
6. PROCEDURES FOR RESPONDING TO ORAL REQUESTS. If a requestor makes an
oral request, it is not a Freedom of Information Act request. However,
the office will respond as follows:
a. If the requested record is readily available, provide the
requestor with the information, subject to the payment requirements of
this Order; or
b. If the request will require extensive search time or involves
records that may be exempt from disclosure, the requestor may be asked
to put his/her request in writing and the request will then be processed
according to procedures governing any other written request.
7. PROCEDURES FOR RESPONDING TO WRITTEN REQUESTS.
a. Upon receipt of a Freedom of Information request, the
responsible official will immediately initiate an effort to obtain or
locate the records requested within ten (10) working days of the stamped
date and will:
(1) Obtain or ascertain the location of the records requested.
No charge will be made for furnishing information if the charge would be
PAR 5
90
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ORDER
August 23, 1978
less than $10. If the charge for furnishing the information (see para-
graph 13) would be less than $25 or less than the amount authorized in
the request, furnish the information or notify the requestor that the
information will be furnished as promptly as possible in accordance
with Part 2, Title 40, Code of Federal Regulations.
(2) If the fee would be greater than $25 or greater than the
amount authorized>in the request, immediately inform the requesting
party (by telephone if possible) of the expected charge and the require-
ment that the requesting party either make payment or make acceptable
arrangements for payment, before the search can be continued or the
information furnished; or
(3) Inform the requesting party that the records sought are in
the possession of another Federal agency; refer the request to the
appropriate office in such other agency; and notify the requesting party
of such referral; or • • •
(4) Inform the requesting party that the records requested do
not exist, to the best knowledge of the receiving office; or
(5) Inform the requesting party that the records requested have
been published and are available for sale and furnish the citation of
such publication -and the place where it may be obtained; or
(6) Make a determination not to release all or part of the
information requested (see paragraphs 8 and 9 of this Order for detailed
guidance); or
(7) Inform the requesting party by written notice that an
extension as described in paragraph 9 of this Order is necessary and
advise the party of the anticipated date of determination (no more than
twenty (20) working days after the receipt of the request for the
records), at which time the provisions of this Order will be promptly
followed; and
(8) Inform the Headquarters Freedom of Information Office or
the Regional Freedom of Information Office of the action taken.
b. If the description of the records sought in the request is not
reasonably sufficient to identify and locate the requested records, the
responsible official will notify the requestor (by telephone, if
possible) of the problem and assist the requestor in formulating his/her
request.
PAR 7
91
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ORDER
1550.1C
August 23, 1978
c. Generally, the responsible official has ten (10) working days
from the date of receipt by the Headquarters or Regional Freedom of
Information Officer in which to issue a written determination to the
requestor stating which of the requested records will and which will not
be released together with the reason for any denial of a request. (A
written determination is not necessary if within that ten (10) day period
all requested records are actually furnished to the requestor.)
Extensions of this time limit are discussed in paragraph 9 of this Order.
The 10-day period for a reply to a request does not include:
(1) Any time which elapses between the time that a requestor is
notified by the responsible official that his/her request does not
reasonably identify the records sought and the time that the requestor
furnishes a reasonable identification; and
(2) Any time which elapses between the time that a requestor is
notified by the responsible official that processing his/her request
will generate chargeable fees and the time that the requestor makes
suitable arrangements for payment for such charges. In this case the
responsible official need not search for, duplicate, or disclose records
until the requestor makes suitable arrangements for payments.
8. CRITERIA FOR MAKING NEGATIVE DETERMINATIONS.
a. Nine categories of matters which are exempt from the mandatory
disclosure requirements of the Act are:
(1) Matters that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order (5 U.S.C. 552(b)(l));
(2) Matters that are related solely to the internal personnel
rules and practices of EPA (5 U.S.C. 552(b)(2));
(3) Matters that are specifically exempted from disclosure by
statute (other than 5 U.S.C. 552(b)); Provided that such statute:
(a) Requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue, or
(b) Establishes particular criteria for withholding or
refers to particular types of matters to be withheld (5 U.S.C. 552(b)(3));
PAR 7
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°"DE" 1550. It
August 23,
(4) Hatters that are trade secrets and commercial or financial
information obtained from a person and privileged or confidential
(5 U.S.C. 552(b)(4));
(5) Matters that are interagency or intra-agency memorandums or
letters which would not be available by law to a party other than an
agency in litigation with the agency (5 U.S.C. 552(b)(5));
(6) Matters concerning personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy (5 U.S.C. 552(b)(6));
(7) Matters that are investigatory records compiled for law
enforcement purposes, but only to the extent that the production of such
records would:
(a) Interfere with enforcement proceedings;
<•*
(b) Deprive a person of the right to a fair trial or an
impartial adjudication;
(c) Constitute an unwarranted invasion of personal privacy;
(d) Disclose the identity of a confidential source, and in
the case of a record compiled by a criminal law enforcment authority in
the course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, confidential infor-
mation furnished only by the confidential source;
(e) Disclose investigative techniques and procedures; or
(f) Endanger the life or physical safety of law enforcement
personnel (5 U.S.C. 552(b)(7)).
(8) Matters that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the use
of an agency responsible for the regulation or supervision of financial
institutions (5 U.S.C. 552(b)(8)); or
(9) Matters that are geological and geophysical information and
data, including maps, concerning wells (5 U.S.C. 552(b)(9)).
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ORDER
August 23', 1978
b. In accordance with EFA policy, responsible officials will
release requested records even if the exemptions in paragraph 8, sub-
paragraph 7a(2), (5), or (7) apply, unless there is a compelling reason
for withholding the records. Responsible officials may not disclose any
records to which exemptions subparagraph 8a(l), (3), (4), (6), (8) or
(9) apply.
c. When a record that has been requested contains both information
that is exempt under subparagraph 8a and information that is not exempt,
the responsible official will provide the nonexempt information to the
requestor if it is reasonably segregable from the exempt information.
Information is reasonably segregable if it appears in separate
sentences, paragraphs, or pages. Deletions of information in amounts
less than sentences is encouraged if the meaning of the sentence is not
obscured.
d. A responsible official may also deny a request if the record
requested does not exist, cannot be located, or is not in EPA's
possession. In making such a denial, the responsible official will be
accountable for having made a thorough search. In the case of records
that are reasonably likely to exist but cannot be located, the
responsible official will continue the search and, if the records are
located at a later time, account for them to the requestor.
9. PROCEDURES FOR MAKING NEGATIVE DETERMINATIONS.
a. If the responsible official determines, within the 10-day period
plus any applicable extension period, that all or part of the requested
records will not be provided, he/she will prepare a denial letter
including the following:
(1) Citation to the specific section in Part 2, Title 40, CFR
that provides the statutory basis for withholding, citation to the corre-
sponding exemption of the Freedom of Information Act (5 U.S.C. 552(b)),
and a description of the specific exemption.
(2) The name(s) and title(s) or position(s) of the person(s)
responsible for the denial.
(3) A statement that the requestor has the right to appeal the
denial by writing within 30 days to the EPA Freedom of Information
Officer, A-101, 401 M Street, S.W., Washington, D.C. 20460. Figure 2
shows a sample denial letter.
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ORDER
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August 23, 1978
b. The official signing the negative determination will forward to
the"Headquarters or Regional Freedom of Information Office, as appro-
priate, a copy of the request for information, a copy of the negative
determination, and any other appropriate correspondence.
10. EXTENSION OF DATE OF DETERMINATION.
a. The official responsible for processing a request for information
may extend the time limit for making the initial determination for up to
ten (10) additional working days in unusual circumstances listed in sub-
paragraph lOb below. The General Counsel also may extend the time limit
for processing an administrative appeal for ten (10) working days for the
reasons listed in subparagraph lOb below.
b. The following unusual circumstances are the only criteria for
issuing a notice of an extension.
(1) The need to search for and collect the requested records
from field facilities.or other establishments that are physically distant
from the office processing the request or appeal; or
(2) The need to search for, collect, and appropriately examine a
voluminous .amount of separate-and distinct records-which-are-demanded in
a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having substantial interest in a
determination or among two or more components in EPA having substantial
subject-matter interest therein.
c. The official responsible for authorizing an extension must send a
written notice to the requesting party setting forth the reasons for such
an extension and the date on which either the initial determination or
appeal decision is expected to be dispatched.
a. The. notice must be sent prior to expiration of the initial 10-day
or 20-day period.
e. The responsible official also will notify the Headquarters or
Regional Freedom of Information Officer, as appropriate, of the action
taken and furnish copies of any correspondence.
PAR 9 95
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ORDER
1550. 1C
August 23,.1978
11. ADMINISTRATIVE APPEAL.
a. Within thirty (30) days after the receipt of a written denial
of a request for information from an EPA office, a requestor may appeal
the decision.
b. EPA has twenty (20) working days in which to make a final
determination on an appeal. Because of the importance of time in this
process, all appeals will be date stamped upon receipt by the Freedom of
Information Office; and the Agency Freedom of Information Officer will
hand-carry the appeal along with copies of the original request, the
initial denial, and additional correspondence to the General Counsel, or
any appropriate designee of the General Counsel.
(1) The General Counsel or designee will review the appeal, the
submitted case material and any additional material he/she may require;
and then render a legal opinion on the applicability of the exemptions to
the material withheld.
(2) The Director, Office of Public Awareness, will review those
negative determinations in which the General Counsel finds that the sub-
ject material may legally be withheld, but may be disclosed as a matter
of Agency discretion.
(3) In the event that the Director of the Office of Public
Awareness and the appropriate Assistant.Administrator, Regional Adminis-
trator, or Director of a Headquarters Staff Office does not agree on the
release of such information, the Administrator will make the final deter-
mination on whether or not the material is to be released.
c. Notification of Appeal Determination.
(1) If the initial negative determination is not upheld, the
General Counsel will inform the requestor in writing that the requested
records will be forthcoming.
(2) If the initial negative determination is in whole or part
supported, the General Counsel will notify the requestor in writing of
the decision to uphold the initial negative determination and of the
provisions for judicial review by the district court of the United States
in the district in which the complainant resides or has his/her principal
place of business or in which the Agency records are situated, or in the
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ORDER
1550. 1C
August 23, 1978
District of Columbia, and will state the name and title of the official
responsible for making the negative determination.
d. The General Counsel will notify the Agency Freedom of information
Officer of the action taken and furnish copies of the determination and
correspondence.
12. CREATION OF RECORDS. Generally, documents will not be created by
compiling selected items from other documents at the request of a member
of the public, nor will records be created to provide the requesting
party with data such as ratios, proportions, percentages, frequency
distribution, trends, correlations, or comparisons. The-responding
office will provide the information in the form deemed most appropriate
or the form in which it exists-in that office.
13. PAYMENT.
a. EPA will charge fees for copies of records which are furnished to
a requestor and for time spent in locating the records in accordance with
the fee schedule below. Fees will not be charged for periods of less
than one-half hour spent in connection with a search for records or
computer programming.
f
Records Search Time $2.50 per half hour
In-House Computer Programming Time $4.50 per half hour
Reproduction of Documents $ . 20 per page
Other costs of searching for or duplicating records (including such items
as: computer system time; contractor computer programming time; repro-
duction of photographs, microforms, or magnetic tape; computer printouts;
and transportation of records will be charged at the actual direct cost
to the Agency. Thus, if the information requested exists as a computer
record and a printout or tape is a means by which that information may be
made available, the fee will be the actual direct cost of the computer
system time added to any applicable search, in-house programming, repro-
duction, or contract programming costs.
b. Prepayment.
(1) The responsible office will determine as accurately as
possible the amount of fee payment that would become due upon completion
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ORDER
1550. 1C
August 23, 1978
of EPA's search and/or copying activities and, in the event that pending
requests for information would require the payment of fees in excess of
$25 or the amount authorized by the requestor, will inform the requesting
party (by telephone if possible) of the expected charge.
(2) Once the requestor has agreed to the actual or approximate
fee, and advance payment is received or acceptable payment arrangements
are made, the information to be made available will be released.
(3) The responsible official must keep the Agency or Regional
Freedom of Information Officer apprised of all actions taken with respect
to the payment of fees and furnish copies of all correspondence.
(4) Payments must be made in the form of a check or money order,
made payable to-the U.S. Environmental Protection Agency and delivered to
the Freedom of Information Officer, A-101, U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460 or the appropriate
Regional Freedom of Information Officer. The Freedom of Information
Officer will log and forward the payment to the local Financial Manage-
ment Office for deposit in the U.S. Treasury general fund account, and
notify the responsible office of the receipt of payment.
(a) In the event that an advance payment is different from
the actual fee calculated on completion of the request, the responsible
office will notify the Freedom of Information Officer of the difference.
(b) The Freedom of Information Officer will then direct the
local Financial -Management Office to effect the appropriate refund or
will prepare a statement of additional fees due, to be sent to the
requestor.
c. Delinquent Payments. EPA will not honor any new requests from a
person who is more than 60 days late paying fees assessed by EPA for
responding to their requests.
d. EPA will not charge fees for the following:
(1) For examination and evaluation of records which have been
already located and which are known to be among those requested;
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1550.1C-
August 23, 1978
(2) For the cost of preparing or reviewing a letter of response
to a request or appeal;
(3) If the total fee in connection with a request is less than
$10.00, or if the costs of collecting the fee would otherwise exceed the
amount of the fee;
(4) For search time or computer programming time by EPA
employees, if less than one half-hour of such time was required in
connection with the request;
(5) For responding to a request for one copy of the official
personnel record of the requestor;
(6) For furnishing records requested by members of either House
of Congress, or by a duly authorized committee or subcommittee of
Congress. However, in cases of individual members of Congress requesting
information on behalf of constituents, the Agency has the option of
charging for the request or waiving payment.
(7) For furnishing records requested by and for the official use
of other Federal agencies, foreign governments, and State and local
governments (except when covered by negotiated agreements); or
(8) For furnishing records needed by an EPA contractor or grantee
to perform the work required by the EPA contract or grant.
14. WAIVER.
a. A responsible official may reduce or waive payment of fees if
such a reduction or waiver is determined to be in the public interest.
This procedure will be observed in a consistent and objective manner in
consonance with EPA policy. In questionable instances, the Office of
Public Awareness or the Regional Public Awareness unit should be
conaulted. Requests from members of the press and public interest groups
will receive"automatic consideration for waiver.
b. If the requestor requests a waiver of all or part of the appli-
cable fees, the responsible official must determine whether or not to
waive the fees in accordance with subparagraph 14a above. If the respon-
sible official denies the request for a fee waiver, he/she must notify
the requestor that the requestor may appeal the denial to the Director of
the Office of Public Awareness, who has the responsibility for deciding
such appeals.
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ORDER
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August 23, 1978
15. ANNUAL KLVIOv.
a. On or before March 1 of each calendar year, the Agency s Freedom
of Information Officer will prepare an Agency report covering the
preceding calendar year. The report will be addressed to the Speaker of
the House of Representatives and President of the Senate for referral to
the appropriate committees of the Congress. The Freedom of Information
Officer will compile the data elements listed below both from the Head-
quarters and the field so that he/she may complete the report:
(1) The number of determinations made by EPA not to comply with
requests for records and the reasons for each determination;
(2) The number of appeals made by persons, the result of such
appeals, and the reason for the action upon each appeal that results in a
denial of information;
(3) The name(s) and title(s) or position(s) of each person(s)
responsible for the initial denial of records requested and the number of
instances of participation for each;
(4) The results of each disciplinary proceeding conducted
including a report of the disciplinary action taken against the officer
or employee who was primarily responsible for improperly withholding
records or an explanation of why disciplinary action was not taken;
(5) A copy of Agency rules regarding the Freedom of Information
Act;
(6) A copy of the fee schedule and the total amount of fees
collected for making records available;
(7) The administrative costs to EPA for complying with the
provisions of the Act in terms of man/years of effort expended. (This
information is vital for documentation of future positions to be advanced
by EPA and the Executive Branch and documentation of the effects of the
Act on Executive agency workload.); and
(8) Other related information as may be needed.
b. The Freedom of Information Officer will evaluate the information
gathered for the annual report to Congress from a management standpoint
to assure that EPA's actions are in congruence with the intent of the Act.
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ORDER
1550.1C
August 23, 1978
The Freedom of Information Officer may conduct evaluations of specific
EPA responses to Freedom of Information requests, as appropriate.
16. ACCOUNTABILITY AND DISCIPLINARY ACTION. Responsible officials will
be held individually accountable for their decisions with respect to the
release or withholding of information, the waiver of payment, and/or the
appeals process. As provided previously, the names and titles of respon-
sible officials in certain situations will be forwarded to Congress in
the annual report. Whenever a court orders the production of EPA
records improperly withheld from the complainant and issues a written
finding that the circumstances surrounding the withholding raise
questions of whether the responsible official acted arbitrarily or
capriciously, the Civil Service Commission will promptly initiate a
proceeding to determine whether disciplinary action is warranted.
17. TECHNICAL ASSISTANCE AND ADVICE. Responsible officials should be
aware of the oppor't-unity to seek legal assistance, especially in
instances involving possible exempted material, from the Office of
General. Counsel or the.Regional Counsel. Likewise, the Headquarters
Office of Public Awareness or the Regional Public Awareness units are
available for consultation when assessing the probable public response
to a negative determination or deciding whether to reduce or waive fees
for providing information. The Headquarters Freedom of Information
Office is available for consultation on EPA policy and procedures for
administering the Freedom of Information Act. The Management Information
and Data Systems Division is available for technical assistance and
consultation on EPA computer software and for determining automatic data
processing (ADP) costs.
18. SUPERSESSION. This Order super
PAR 16
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Table of Contents
Page No.
Section D. Presenting Evidence
D-l. A Primer for EPA Employees: Presenting Scientific 105
Evidence, James A. Rogers, Office of General
Counsel, September 1974.
D-2. The Opacity Witness, Kenneth B. Malberg, Division 141
of Stationary Source Enforcement, U. S. Environmental
Protection Agency.
D-3. Expert Witnesses and Environmental Litigation, 163
J. L. Sullivan and R. J. Roberts, JAPCA, Vol. 25,
No. 4., April 1975.
D-4. How to Testify, Training Material presented in U.S. 173
EPA Air Training Institute Air Pollution Field En-
forcement Course.
D-5. Suggestions for Witnesses, T. M. Truitt, Office of 189
the General Counsel, U. S. Environmental Protection
Agency.
D-6. Appearance as Witness, U. S. Environmental Protection 207
Agency, Pesticides Inspection Manual, June 1975.
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D-l
A PRIMER FOR EPA EMPLOYEES:
PRESENTING SCIENTIFIC EVIDENCE
James A. Rogers
Office of General Counsel
September 1974
105
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Preface
This primer is the result of a dialogue between the Assistant
Administrator for Research and Development and the Assistant
Administrator for Enforcement and General Counsel requesting closer
interaction between the research and legal elements of EPA. The primer
was developed to supplement a seminar program held at the various
National Environmental Research Centers during the fall of 1974.
107
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1. Introduction
This document is not intended to be used as a legal reference. The
purpose of this primer is to give practical guidance to scientists
as to what to expect when they become involved in some form of litigation
in which they are asked to present the results of their research or investi-
gation. The discussion is directed primarily at water pollution control
because most of the adversary type proceedings in which a scientist may be
called upon to testify will be related to water pollution and because most of
the practical lessons have been in this field. To avoid making this pre-
sentation unduly long, many generalizations have been made and fine points
of evidentiary rules, for example, have been ignored. The intent is to point
out in a general way what one will be asked by the government attorney and
on cross-examination so that laboratory or field investigation procedures
may be tailored to avoid the tragedy of having valuable scientific work
rendered less useful for failure to follow a protocol. The specific preparation
of a particular witness for a particular hearing, of course, necessarily must
take place with the government trial counsel in the time immediately before
he is to testify and is shaped largely by the substance of his testimony.
I have placed a great deal of reliance on actual examples of testimony,
both good and bad, in attempting to make points. The names of witnesses
have been deleted; none of them is an EPA employee.
2. Types of Proceedings
a* Trials in Court
The traditional way in which environmental issues are litigated is
in a courtroom, either federal or state. There have been hundreds of cases
in which the state or federal government brought actions against a polluter
either for violation of specific statutory or regulatory requirements or
for violation of some public nuisance concept. The Reserve Mining case is
the supreme example of this: the federal government based its claim for
relief on the pre-1972 Federal Water Pollution Control Act and the water
quality standards promulgated thereunder; the plaintiff states sued largely
on tho basis of public nuisances ("unreasonable interference with the public's
right to use jxiui onjoy tho onvlronmont").
• *
There will bo fewer court cases, involving water pollution af; least,
in which expert witnesses will be called upon to testify. Or at least the
witnesses will be called upon to present less sophisticated proof than before:
108
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This is because the country is gradually moving to the National Permit
Discharge Elimination System (NPDES)1_/ under which most contested
facts will be resolved in hearings before the Agency instead of in trial'
before a judge. Thus, whether the waste from a particular discharge will
interfere with oyster reproduction, and therefore what maximum effluent
discharge restrictions should be contained in the permit, is an issue which
will be addressed in hearings before the Agency's Administrative Law
Judges. If a discharger is violating its permit, the Justice Department --
or the State Attorney General if the NPDES program is being administered
by the State -- will bring an action. Here the issue will be simply whether
the effluent levels have exceeded the permit terms; it will be much like a
license violation case: the factual issue will be whether the permit was
violated -- basically a monitoring chore -- not whether deleterious effects
occur by discharging at that level. (This change in the burden of proof
was one of the major reasons for amending the Act to employ the permit
system).
Of course, even with the NPDES program, there will be court actions
and the basic rules of evidence for presentation of expert testimony will
come into play. These rules will be examined below in the section dealing
with adjudicator/ administrative hearings.
b. Administrative Trial-Type Hearings
Increasingly EPA is holding administrative trial-type hearings.
Mention has already been made of the NPDES procedures. There also will
be a great need for expert testimony in FWPCA section 316(a) hearings in
which power companies will attempt to demonstrate that the "effluent
limitation proposed for the control of the thermal component of any dis-
charge from such source will require effluent limitations more stringent
than necessary to assure the protection and propagation of a balanced,
indigenous population of shellfish, fish, and wildlife in and on the body of
water into which the discharge is to be made...." The first of these
hearings will begin this fall.
The third section of the recently enacted water pollution legislation,
which has already generated substantial litigation, is section 307(a),
establishing effluent standards for toxic water.pollutants. 2/ This section
Is unusual in that Congress has railed for a legislative ruFe-making hearing
to take on many of the trappings of a trial. Most importantly, the pro-
cedures for section 307(a) hearings call for cross-examination of witnesses.
The category of hearing which probably has thus far generated the
greatest workload for EPA scientists is the pesticide cancellation hearings.
These have been held for DDT and are being conducted for Aldrin/Dieldrin
I/The basic statutory framework is set out in sec. 402 of the Federal Water
Pollution Control Act, as amended.
2/The first list of toxic water pollutants consisted of Aldrin/Dieldrin, DDT,
Benzidine, Cadmium, Mercury, Cyanide, PCB's, Endrin and Toxaphene.
109
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and Mirex under the Federal Insecticide Fungicide and Rodenticide Act
(FIFRA). Traditionally these battles last for months and are fought by
the manufacturer and EPA, although the parties also include environmental
groups, users, and smaller companies who package various formulations
using their own labels.
The rules for presenting the expert testimony in trials and adjudicatery
type administrative proceedings really differ little. In each situation the
scientist is asked to testify as to his knowledge on technical questions rele-
vant to the issues being tried. It may be helpful to remember that conclusions
and opinions generally are not permissible forms of testimony and that an
exception to this rule is made for expert testimony under the theory that lay-
men would be unable to draw conclusions in difficult technical areas with-
out the assistance of experts. But is only when the expert testifying is
truly expert in the field, is drawing upon his expertise in making a con-
clusion, and laymen (judge or jury), given the same facts, could not render
a conclusion, that his opinion testimony is permitted.
Except on rare occasions the expert will not be asked to render an
opinion on the ultimate question; for example, he will not be allowed to give
his opinion that the permit for a power plant discharge should call for a
mixing zone of 1500 feet. If he is a biologist he will, however, be allowed to
say what the effect of use of a 1500' mixing zone on the zooplankton would be.
The expert witness in his proper role is merely providing a part of the
technical base upon which decisions are made. For him to render a judg-
ment on questions in which other disciplines come into play is to enter
fields in which he is not expert and in which he cannot render assistance
to the trier of fact.
In the pesticide cancellation hearings, the Agency Administrative Law
Judges have been allowing scientists to state their views as to whether a
product should be banned, the ultimate question to be decided, but have
also said that they will not give this testimony great weight. In a court
trial, such testimony would not be allowed at all.
Perhaps the major difference between expert testimony in the court
trial and in an adjudicatory administrative proceeding is the extent to
which hearsay is allowed. Hearsay evidence is
. . . testimony in court, or written evidence
of a Httitoment made out of court, the
statement being offered as un uHHortlon
to show the truth of matters asserted therein,
and thus resting for its value on the credi-
bility of the out-of-court asserter. 3_/
3/McCormick on Evidence, 2nd Ed., 1972, p. 584.
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It is important to remember that the hearsay rule applies to both oral and
written statements by an out-of-court party. In a traditional suit, then;
a witness testifying on the proper analytical methods for detecting
methoxychlor, for example, could not refer to a paper by another scientist
confirming the appropriateness of his methods if the purpose is to suggest
that the substance of that paper is true. Nor could a witness testify that
his results were confirmed by Dr. Jones, with whom he talked last week.
In administrative proceedings the hearsay rule is relaxed substantially.
In the proceedings held to date before EPA administrative law iudges,
hearsay expert testimony has been allowed if there is a "nexus between
the witness's expertise and the subject of the paper -- authored by
another --to which he wishes to refer. The witness in the hearing room
must, however, be prepared to stand some cross-examination on the
document. Thus, if he cannot say whether the analytical methods used by
the other investigator were acceptable, he may not be allowed to use the
paper.
c. Administrative Legislative Hearing
Quick mention is made of those administrative proceedings in which
"generic" rules are being considered. This may be in an EPA rule-making
hearing or in federal or state legislative proceedings in which proposed
Statutes are being debated. There is usually only informational questioning
not in an adversary setting. Often scientists appear in panels and most
of the time the bulk of the testimony has been prepared in advance.
d. Presenting Direct Evidence
The direct testimony in a court trial is usually given orally, often
with reference to a written report and always with access to written factual
data upon which the expert is relying in rendering his conclusions. And
almost always the direct testimony relates to the effects of the discharges
from a specific plant or outfall.
In administrative proceedings quite often now the direct testimony is
in written narrative form and only the cross-examination is done orally.
There urn many udvuntatfon to this: the witness and his lawyer can be
sure that the important, points ai'c covered, and dU'ftr.ult concepts can b<;
presented with more precision than is usually possible in oral testimony.
The opposition is usually given a week or two to study the document
before the witness appears. This allows them to narrow the areas of
cross-examination and to prepare for the often intricate questioning of
the scientific data. It allows the cross-examiner to have his own expert
go over the material with a fine-toothed comb. The end result is a
more organized hearing. It also allows the hearing to go forward without
the necessity of elaborate "discovery, " since the tender of written direct
testimony well in advance of the hearing serves the basic purposes of
pre-trial discovery: avoidance of surprise.
Ill
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Unfortunately, one of the by-products of the use of written direct'
testimony which is entered into the record without reading, is a feeling
by some witnesses that their testimony did not hold up well. This is
because the experienced cross-examining attorney chooses to question
the witness only on points on which he thinks the witness is not capable
of giving firm, well documented answers. Thus witnesses have gone
an entire day without being asked to discuss their basic research.
Nevertheless, that research will be used if it is adequately presented
in tlio written testimony.
More than any othor problem encountered by IS PA trial lawyers is
the natural resistance on the part of scientists to write complete narratives
rather than short precis of their work. There may be-an assumption that
whatever the rules at the hearing they will get to elaborate orally on the
presentation. In several instances the opposition attorneys have not
cross -examined at all because otherwise dangerous witnesses did not
present a statement worthy of the underlying research or investigations.
The rule to remember in writing direct testimony is to put on paper
everything you want to say. It is far easier for your lawyer to cut you
back if you said too much than it is for him to interpolate in a difficult
scientific area. An example of a good written presentation is attached as
Appendix A. Appendix B is an example of a statement that, while short,
attempts to say too much (see the last paragraph). Note in the well written
statement that reference is made to Appendix A, B, C, etc. Documentary
evidence relevant to the witness's presentation is usually physically
attached to the written testimony and referred to in the body of the
presentation. Sometimes these attachments are referred to as exhibits
rather than appendices.
It has often been said that the direct testimony ol' an expert witness
consists of four parts: (a) his qualifications (by education and/or
experience) as an expert, (b) tho material from which he fashions his
opinion, (c) the process or reasoning by which he gets from the material
at hand to his conclusion or opinion, and (d) the conclusion or opinion itself.
Usually there is little dispute over an expert's personal background and that
information comes in without question. In many cases the presentation of
raw data itself or with a clear statistical explanation is enough for one to
draw a conclusion, anil logical step-by-step delineation of how the experi-
ment was conducted or how the field samples were analyzed is vital to show-
rase 1,1ns ilata. HatUcr than belabor points (b)-(il) in abstract terms, actual
examples will he presented in the later discussion of cross-examination to
show what should and should not be done.
!1. I >iscovery
Discovery is a general term used to describe; the. process-by which one
side in litigation finds out what the tactual basis for the other side's case
is. In federal or state court actions there are several procedures by which
this can be accomplished. The most frequently used procedure is the taking
of oral depositions. Under this procedure, the potential witness is placed
under oath before a court reporter and asked a wide range of questions
designed to prepare the opposing lawyer for his testimony at the trial.
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The deposition is also an opportunity for the opposition to ask about reports,
memos, maps, lab books, pictures, etc., which the "deponent" knows of
or may have in his possession and which he does not intend to use in the.
trial, i. e., material which the other side may wish to use. By use of a
subpoena duces tecum (very roughly "you are ordered to appear and bring
all the following documents with you") the opposing party can force an EPA
scientist to collect all material arguably applicable to the issue. The lawyer
may precede the "noticing" of a deposition by filing a motion to inspect all
the documents related to the question. This helps prepare him to take the
deposition.
Another less often used procedure is the use of written questions served
upon the opposition and to be answered under oath (interrogatories). Some-
times this is used to initiate discovery by asking "who are the scientists
who have any knowledge on this subject" or "where are your freshwater
laboratories located, ' or "who have you consulted in bringing this lawsuit"?
Scientists are virtually united in their horror of the all powerful dis-
covery procedures, drafted and enacted by lawyers, which can force them
lo phofoduplieate massive amounts of material. Some lawyers have argued
(hat, unlike conspiring executives in an antitrust case, scientists should not
be put through the ordeal of having filing cabinets raided. Actually, the
Federal Rules of Civil Procedure, applicable in federal courts but adopted
intact by most states, provide for restricted discovery of an expert's data.
Rule I26(b)(l) states the basic rule:
Parties may obtain discovery regarding
any matter, not privileged, which is
relevant to the subject matter involved
in the pending action, whether it relates
to the claim or defense of the party seeking
discovery or to the claim or defense of any
other party, including the existence, des-
cription, nature, custody, condition and
location of any books, documents, or other
tangible things and the identity and location
of persons having knowledge ol' any dis-
coverable matter. It. is not ground for
objection Unit, the information Moii|.>;lil. will
be inadmissible at the trial it t;li<' infor-
mation sought appears reasonably calculated
to lead to the discovery of admissible evidence.
l-'rom this base, the Rules in section 26(b)(4) set forth an exception for
experts:
Discovery of facts known and opinions held
by experts, otherwise discoverable under
the provisions of subdivision (b)(1) of
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this rule and acquired or developed in an-
ticipation oi' litigation or i'or trial, may
be obtained only as follows:
(A)(i) A party may through interroga-
tories require any other party to identify
each person whom the other party expects
to call as an expert witness at trial, to
state the subject matter on whic.lt the ex-
pert is expected to testify, and to state
the substance of the facts and opinions to
which the expert is expected to testify
and a summary of the grounds for each
opinion, (ii) Upon motion, the court may
order further discovery by other means,
subject to such restrictions as to scope
and such provisions, pursuant to sub-
division (b)(4)(C) of this rule, concerning
fees and expenses as the court may deem
appropriate. " (Emphasis supplied.)
What the Kules giveth (in the form of protection to scientists) the trial
judges usually taketh away, in response to motions to have full discovery
of expert witnesses and documents. The theory advanced by most of these
judges is that in large complex cases, in order not to unduly drag out the
trial, it is essential to have the parties do the exploratory questioning
prior to trial. It must be remembered that most civil litigation in the
Vnited States is between two private parties and may involve one or two
experts at the most; the EPA scientist is likely to appear, if at all, in
a major suit or hearing in which the government and a large business
are the parties and in which a dozen or more experts will testify. In
such situations it is unlikely that discovery will be restricted.
Are any materials privileged and not subject to disclosure? Increas-
ingly the answer is, virtually nothing. Memos between researchers in a
laboratory, draft reports, memos of telephone calls, and letters have all
been hold to be discoverable. Only a very limited category of documents
which fall in the category of attorney "work product" are privileged. What
tails under tins heading cannot be staled with precision hut. they are
esscul i:il Iv those analyses ol the law and/or facts produced by l.lie al.l.ortiey
IT :\\ his direction iu prep:»r:\l.iou specifically lor l.his I i I i gallon. Thin
author has seen very few works ol a scientist: which ha.ve I'ulleM within
tin's category. That, your work is probably susceptible to discovery .should
not bv a deterrent to candor: no one can be faulted I'or stating what he
knows. Hut. it. should be a deterrent for hastily formed opinions or personal
comments which may be misunderstood if taken out of context.
No rigid distinction can be drawn in the above discussion between
trials in courts and administrative proceedings because Increasingly
lawyers have used the freedom of Information Act (KOIA) to obtain
those documents discoverable under court rules. The ICl'A regulations
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on the FOIA reveal how this can be done. Once having complied with the
mechanical requirements of 40 CFR Part 2, such as making a request
in writing at the right office, a party is entitled to review and copy all
materials except those
1. -- specifically exempted from disclosure by [some
other] statute.
~. -- trade secrets and commercial or financial in-
formation obtained L'rom a person and privileged
or confidential.
3. -- interagency or intra-agency memorandums or letters
which would not be available by law to a party other
than an agency in litigation with the agency.
4. -- geological and geophysical information and data,
including maps, concerning wells.
Emphasis has been added to category 3 to show why lawyers can argue
that the broad rules of the Federal Rules of Civil Procedure should be
employed in FOIA interpretations. The complete list of exemptions are
in 40 CFR §2. 105(a). If there is doubt whether all or part of the requested
material should be disclosed, the procedures set forth in 40 CFR §§2. 104 -
2. 107 should be followed.
4. Procedures of Laboratory Research and l/ield Investigations Which
Are Subject to Attack
a. Chain of Custody
The scientist or technician who fills water bottles in a stream just
below a potential defendant's outfall must take precautions to insure that
at trial the sample bottle he refers to can be shown to correspond to a
sample taken at a certain time and a certain place. The often elaborately
stated rules of chain of custody are nothing more than a means of guaran-
teeing the integrity of the identification of field samples. McCormick's
Handbook of the Law of Evidence states simply that: the expert witness must
be able to truce the chain of custody "with sufficient completeness to render
it improbable that the original item has either been exchanged with another
or been contaminated or tampered with." This requirement must be
met before the evidence con be received at all; it does not simply affect
the weight, to be given to the evidence.
The Legal Support IMvision of tin1 Office of Knforeement and General
Counsel in May of 1 !>?'.! prepared a rather detailed guide for scientists
gathering field samples. What follows is largely taken from that primer.
Stream and effluent samples should be obtained by using standard field
sampling techniques. The chain of custody record tag should be attached
to the sample container at the time the sample is collected and should
contain the following information: sample^ number, date1 and time taken,
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source of sample (include type of sample and name of firm), the pre-
servative and analyses required, name of person taking sample and'
witnesses. An actual tag is shown in Appendix C, and a sample trans-
mittal sheet is reproduced in Appendix D. The pre-filled side of the,
card should be signed, timed and dated by the person sampling. The
sample container should then be scaled with a pre-printed, gummed
seal containing the Agency's designation, date and sampler's signature.
The seal should cover the string or wire tie of the chain of custody tag
so that the tag cannot be removed and the container cannot be opened
without breaking the seal. The tags and seals must be filled out legibly
in ballpoint (waterproof ink).
Blank samples should be collected in containers with and without
preservatives so that laboratory analyses can be performed to show that
there was no container contamination. A bound field notebook, or log,
should be used to record field measurements and other pertinent information
necessary to refresh the sampler's memory in the event he later becomes a
witness in an enforcement proceeding. A separate set of field notebooks
should be maintained for each survey and stored in a safe place where they
can be protected and accounted for at all times. A standard format should
be established to minimize field entries and should include the date, time,
survey, type of samples taken, volume of each sample, type of analysis,
sample numbers, preservatives, sample location, field measurements such
as temperature, conductivity, DO, pll, and any other pertinent information
or observations. The entries should then be signed by the field sampler.
The responsibility for preparing and retaining field notebooks during and
after the survey should be assigned to a survey coordinator, or his designatec
representative.
The field sampler is responsible for the care and custody of the samples
collected until properly dispatched to the receiving laboratory or turned over
to an assigned custodian. He must assure that each container is in his
physical possession or in his view at all times, or stored in a locked place
where no one can tamper with it.
Color slides or photographs are sometimes taken of the outfall sample
location and any visible water pollution in the vicinity. Written docu-
mentation on the back of the photo should include the signature of the
photographer, time. date, and site location. I'holographs of this nature,
which may be used ns evidence, should be handled according to the established
chain of custody procedures.
When transferring the possession of samples, the transferee must sign
and record the date and time on the chain of custody record tag. Custody
transfers, if made to a sample custodian in the field, should be recorded
lor each individual sample. Every person who takes custody must fill in a
standardised "Receipt of Sample" form (see Appendix C). To prevent undue
proliferation of custody cards, the number of custodians in the chain of
possession should be as few as possible.
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Mailed packages should be registered with return receipt requested. If
packages are sent by common carrier, a Government Bill of Lading should be
obtained. Receipts from post offices, and bills of lading or other common
carrier receipts should be sent to and retained by the laboratory custodians
as part of the permanent chain of custody documentation.
The laboratory should designate an employee or employees as a sample
custodian. In addition, the laboratory should designate a clean, dry,
isolated room that can be securely locked from the outside as a "sample
storage security area. " The sample custodian must maintain a permanent
log book in which he records, for each sample, the person delivering the
sample, the person receiving the sample, date and time received, source
of sample, sample number, how transmitted to lab, and a number assigned
to each sample by the laboratory. A standardized format should be established
for log book entries.
Samples should be handled by the minimum possible number of persons.
Distribution of samples to laboratory personnel who are to perform analyses
should be made only by the custodian. The custodian should enter into the
log the laboratory sample number, time and data, and the signature of the
person to whom the samples were given.
Laboratory personnel arc responsible L'or the care and custody of the
sample once it is handed over to them and should be prepared to testify that
the sample was in their possession and view or securely locked up at all
times from the moment it was received from the custodian until the tests
were run. Once the sample testing is completed, the unused portion of
the sample, together with all identifying tags and seals, should be returned
to the custodian who will make appropriate entries in his log. The returned
tagged sample should be retained in the sample room until it is required
for trial. Strip charts and other testing documentation also should be turned
over to the custodian.
b. Laboratory Research Techniques
Volumes have been written on proper laboratory techniques, so
there will bo no attempt, here to indicate in oven a general way what pro-
cedures should be followed in examining n part.icul.Mi' substance. The
purpose of l.hlH Meellon i;t more t.i > eiu|>h:iMi'/.e the role proper (or arguably
improper) sampling l.oehniquo pl.ay.M in a ease. II a lawyer (let ermine.s
that an expert witness con do harm to his elicnl'H ease, and thai: the
substance of what the witness has to say is probably correct, or at least
difficult to attack, then he will attempt to cast doubt upon the analytical
methods employed by that scientist. It is imperative that accepted
laboratory techniques be followed to the letter and that if the methods
arc not presented in depth in the research paper itself, at least detailed
records are kept so that questions going to those methods can be answered.
The increasing number of environmental disputes has generated a lawyer-
specialist who (a) knows whore to find consultants and (b) knows how to
use their expertise, in ways which can seriously diseredit researchers
who are not careful.
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Improper cleanup before use of gas chromatography, failure to run
blanks or controls, failure to measure other possible stresses on the
organisms beside the test toxicant, have either totally impeached or
seriously questioned scientific work.
The statistical significance of tost results is often taken for granted,
yet several witnesses who have appeared in recent EPA hearings have had
their published work seriously questioned by skillful use of desk calculators
and accepted statistical analyses. Normit, probit and "t" tests are now
common terms in lengthy proceedings.
What follows is an excerpt from part of the Aldrin/Dieldrin proceeding.
It is not one of the several examples in which the witness was totally trapped
by improper methods; it is a more typical case in which a "question" is
raised in the mind of the trier of fact:
Q. First of all, I would like to discuss the
methodology that you employed in this partic-
ular experiment. In particular, I would like
to discuss the reliability and the weight to
which you give to the levels of dieldrin and
aldrin that you found. .. I would like to focus
on the methodology.
In particular I want to ask you, Dr.
whether in the techniques that you employed
for analyzing the presence of aldrin and/or
dieldrin, whether you used any separation
techniques, or so-called clean-up techniques,
in order to eliminate the presence of DDE, or
PCB, or any other artifacts which could have
caused interference on the GLC columns, and,
therefore, exaggerated or made too large the
results which you found for aldrin and/or
dieldrin?
A. Really there are two components to the
question. One is the sampling and one is the
in-house analysis of the sample.
You are asking once the sample is in-house,
and in a correctly identified manner, how it
is analyzed?
Q. That is correct.
A. In this particular investigation, some of
the peculiarities of saltwater chemistry said
it really wasn't that necessary to go through
elaborate separation schemes with the type of
gas chromatography, the typo of detector that
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was employed. We did use different columns so
we wouldn't catch any of these places where
one type of compound overlaps another, or one
reacts in a column and produce a spurious peak
of one sort or another.
Tn other types of work, sometimes medium clean-
up, extensive cleanup, might be needed, but not
in this case.
Q. Are you saying that because the samples
were taken from saltwater, in this case it
was actual seawater, wasn't it --
A. That is correct.
Q. -- that there were no artifacts that
could have been present in the seawater?
A. Oh, there may have been many arti-
facts. But using the particular column,
the inlet design, the type of detector,
the sensitivity settings, the thermal
settings, flow rates, all of those para-
meters, there was no interference at this
point. There were lots of other items
that could be seen on some of the chroma-
tograms, but they weren't of interest for
this particular paper.
Q. Did you separate the PCB's from your
sample?
A. I really don't recall in this partic-
ular case.
Q. You don't recall whether you used
separation techniques ?
A. No, I .«•!. nit- ri'stutr that. I do not
recall wlu'UuT l.hr conditions were s-uich
that I'C'IV.s wore occurring with the detec-
tor sensitivities, et cetera. In other
words, the conditions under which the
instrument was set up. There was no
specific procedures, again going through
column separations and things of this
sort, to try to separate out different
groups of compounds in this case.
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A. No. Let me restate that. I do not
recall whether the conditions were such
that PCB's were occurring with the detec-
tor sensitivities, et cetera. In other
words, the conditions under which the
instrument was set up. There was no
specific procedures, again going through
column separations and things of this
sort, to try to separate out different
groups of compounds in this case.
Q. You said earlier, I believe, that
there was no specific separation of PCB's?
A. In this case.
Q. In this case. Can you state --
A. In other words, we were not looking for
PCB's.
Q. I understand that.
Now can you state that it was your belief
that there were no PCB's in the samples
that you took?
A. No, I have no real feeling one way or
the other as to what might have been.
It must be emphasized that a judge cannot easily determine what is
"harmless analytical error"; as a lawyer in a strange field, he must rely
\ipon certain procedures which others in the field have called the standard
methods for analysis. If the witness cannot tick off the requisite pro-
cedures he should be prepared to explain why he used a different method,
and preferably bo able to point to some published work which sanctions the
method he used. Thort> is an aura of "peer acceptability" that surrounds
published work which does not attach to unpublished research. If at all
poMtiihle. the ext.ni lime mul effort nhould he made to publiflh your work,
preferably not junt. in an I'll'A elrevilur. Although probably unjustified.
the greater weight given by lawyers and judges to gloHHy papered finished
reports will no doubt continue.
'.'). What to Expect in Cross-Examination
When scientists think of trials or administrative proceedings in which
they are to appear they may not think of the purpose of the hearing, or even
the purpose of his testimony. They may not think of the novel scientific
legal issues involved. Often, their main concern is how bad cross-examina-
will be. To some scientists cross-examination is a forceful wrenching from
the world of the reasonable and polite to the world in which word games pre-
vail over accepted fact. In some trials, unfortunately, this has been true,
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but a witness can control the cross-examination to a remarkable extent by
being adequately prepared. Most of this preparation should be directed by
his lawyer, but there are some general points which apply to most situations.
The following guidelines have been used in preparing witnesses for the
headquarters hearings on pesticides and section 307 (a) of the FWPCA:
1. You have no obligation to answer a question which you
do not feel qualified to answer. You are not a defendant
in a criminal trial required to answer. An "I am not
qualified to answer that" or "I do not have enough facts
to answer that" is perfectly acceptable.
2. Do not be lured into areas beyond your field.
3. Ask for clarification of a question if you have any
doubt what is being asked.
4. When a hypothetical question is posed, make sure all
elements of the hypothetical needed for you to be able
to answer are present.
5. Take your time in responding to questions.
6. Do not elaborate beyond what is necessary to give a
complete answer --on the other hand, do not allow
yourself to fall into trap of giving an "out of context"
answer --an answer which, in and of itself, is true but
which has a misleading implication if further comment is
not given. If you cannot answer with a "yes" or "no",
make it plain you need to qualify your answer.
7. You may be asked to comment on works of other
scientists you do not know or have not read recently --
e. g. , "I show you this list of pesticide residue figures
from Iowa -- aren't they awfully low?" You probably
need to know how the research was conducted, the
details of the methods, before you can comment accurately.
8. Don't respond to a challenge by boasting.
!). Don't lry lo rowU»r tniijnr norlt'tul dcrlMinnH ("all
pesticides arc bad or corporations mislead Uio public").
10. You may be confronted with statements made by you at
an earlier date which arc too broad. If those statements
were your personal opinions and not your professional
scientific opinion you should say so. Scientists are
allowed personal opinions but are allowed to testify
in court in opinion and conclusion form only as to
matters within their scientific realm, upon which a lay-
man would be unqualified.
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11. Don't get angry at the interrogator if he becomes
arrogant or insulting. This invariably is because
he dosen't have any way to crack your testimony
scientifically and is trying to rattle you. Allow
your lawyer to attempt to put him in his place.
12. The good lawyer will not ask a question in an
opposing party's witness1 strongest ground. Do not
feel upset if you are not challenged on work you
want to discuss.
13. Don't be drawn into an argument with opposing
counsel. He isn't being called to testify.
14. If you feel discomfort, ask the judge for a recess.
Don't use this an an excuse -.- your counsel will ask
for a recess if he sees you need a chance to collect
your thoughts. Only for necessity will the court
interrupt a cross-examination.
15. Most importantly, remember you know more about
what you are talking about than anyone else in the court-
room. Your "home ground" is your data --do not
stray too far from it.
There have been notable examples in each major administrative hearing
held by EPA or court trial in which EPA was a party, of witnesses who have
fallen into one or more of the traps mentioned above.
The ideal expert witness has facetiously been characterized by some as
a white haired gentleman with a pipe and elbow patched tweed sport coat who
understates most answers he gives and never changes his mood of academic
detachment. This picture is not altogether misleading, for the best expert
witnesses seem to be those who are never caught exaggerating, never lower
themselves to the rancor of the hearing room, and never deviate from their
area of expertise. Judge E. Barrett Prettyman gives this advice to experts:
Don't argue. Don't fence. Don't guess.
Don't moke wiser racks. Don't take sides.
Don't Rot, Irritated. Think first,, th.-n
speak. H' you do know the aiiHwrr to
a question, say so. Tf you do not know
the answer but have an opinion or belief
on the subject based on information, say
exactly that and let the hearing officer
decide whether you shall or shall not give
such information as you have. If a 'yes
or no' answer to a question is demanded but
you think that a qualification should be
made to any such answer, give the "yes or
no" and at once request permission to ex-
plain your answer. Don't worry about the
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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 pre-
cisely and succinctly as you can. The
best protection against extensive cross-
examination is to be brief, absolutely
accurate, and entirely calm.
The skillful witness also knows when to concede a point, even if it
reflects poorly on his work. To struggle with a lawyer on a line of
questioning, only to agree with him later, highlights the concession and
places the other answers of the witness in an unfavorable light. What
follows is the aftermath of a cross-examination on a point on which a
witness refused to yield until the last possible moment. The expert
then became argumentative and refused to answer questions clearly
within his area of expertise. The questions deal with possible sources
dieldrin found along the Atlantic coast:
Q. Looking at Table 5, I notice that New York
is the most frequent reporter of residues of
dieldrin in mollusks. Are you able to account
for that?
A. No; that is an interesting observation,
but I am not able to account for it.
Q. Why is it interesting?
A. It just interests me as a person.
Q. What does it suggest to you?
A. I have no further comment.
Q. Refer to the New York section of the
paper. This begins at page 303.
A. YOB.
Q. You will tu)l,i«i(> the HitoH ol' tlu» moni-
toring stations are fringed around the
island of Long Island, not notorious as
one of the world's great feed corn granaries.
Does that suggest anything to you?
A. I am not in position to comment on that.
Q. You arc not even in position to comment
on whether or not these sites are adjacent
to urban areas ?
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A. No comment.
Q. No comment?
A. No.
Q. Are you able to comment, for example,
with respect to page 304 and let's say, for
example, the Mamaroneck data which shows
residues, if you allow a subjective judgment,
for example, in 1967, a fairly constant rate
throughout the year and tell us whether or
not that indicates to you that these are
agricultural or nonagricultural sources ?
A. No, I have no basis for comment.
Q. Let's go back to page 243 and nqtice in
the next column of Table 5 that Georgia is the
state reflecting the maximum value in ppb.
Are you able to comment about that?
A. No, I am not.
Q. If you will turn to the Georgia section and
particularly the Lazareth Creek data, Station
Number 1, for example; are you able to advise
us as to the existence of one or more wool treat-
ment plants on this creek?
A. No, I am not.
To some people, giving testimony as an expert witness is a challenging
experience which starts the adrenalin pumping and prompts an attempt to
answer all questions which are posed. A good lawyer will endeavor to draw
an export away from his area of expertise to a topic on which the witness
known enough to want to answer the questions but not enough to avoid being
trapped. The wltne.HH also trun he led into this unl'oi'tunale situation by u
elienl. and lawyer who wish to pmve a point, by t'orrhi).1, l.he witne.M.s to
"expand a little upon tlu'.s e.xpertlne. " The example which follows in of :.i
witness who rose to bait offered by the interrogator. The witness, who
was a ehcmist, had just presented data on the runoff of pesticides from a
eornt'ield during a heavy rain.
Q. Over the course of five years, Doctor,
how many days would you expec%t that kind
of rainfall to occur of that intensity? Did
you have any way of making an estimate?
Iowa weather?
A. Yes, I could make an estimate.
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Q. Out of five years, what would your
estimate be?
A. Well, I won't be numerical.
Q. Well, could you try -- how many days?
A. With considerable frequency. It is not
uncommon. Several times a year, at the
appropriate seasons; sometimes a couple
of times a week it's happened.
Q. Would you identify that for the record
and tell me what you see, whether you
recognize that?
(indicating.)
A. Yes, I recognize it. It is a publication,
1969, by the Iowa Academy of Sciences,
entitled, "Water Resources of Iowa. "
Q. Now I direct your attention to figure 8,
done in exactly the same method.
A I understand this figure, Doctor, and I
ask you to correct me if I am incorrect,
we can expect a four-inch rainfall in a
24-hour period once in five years; is that
correct?
A. Yes, sir.
Q. Thank you.
Tht» second example of a witness leaving his area of knowledge was
probably the fault of hln lawyers, who assisted in the drafting of an overly -
broad written statement. The witness was attempting to rebut an Kl'A
position in the Aldrin/Dieldrin hearings that much ii' not most of the
residues of these pesticides come from agricultural runoff rather than
point sources. Shell Chemical Company was attempting to show that sloppy
handling by formulation and fertilizer blenders was the cause of the pollu-
tion. (If this were so, the argument goes, EPA could reduce pollution
measurably by enforcement actions against certain plants and would not
need to ban the pesticide. Another more immediate purpose was to throw
doubt upon the EPA studies showing high residues in those agricultural
areas in which Aldrin is used.) A company chemist was put in the
uncomfortable position of carrying this torch:
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Q. Are any of your publications related
to the material you talk about in your
statement ?
A. No.
Q. So to shorten this up you have never
published in the fields of -- stop me if
you have, I am just going to read a list,
aquatic toxicology, kinetics of aldrin-
dieldrin degradation, the adsorption of
aldrin-dieldrin to soil particles, erosion
problems, the fate and effect of aldrin-
dieldrin in fresh water moving stream
environment, or the relationship between
turbidity and aldrin-dieldrin concentrations
in a moving fresh water stream.
Have you ever published in those areas ?
A. No.
Q. Do you know how many tons of soil leave
an average American corn field according to
the U. S. Department of Agriculture?
A. No.
Q. Don't you think that would be a good
figure to have in mind when you are
talking about the relative pollution of Iowa
corn streams ?
*******************
A. I don't see the need to know that figure.
Q. Did you liuvr any data on the distance
an aldrln or dloldrin moloculo can bo
transported in various size streams ?
A. No. But I would guess it could go from
one end to the other.
*******************
Q. You have no data on that, do you?
A. No.
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Q. You have no data on how far it would
travel in a highly turbid drainage ditch
or turbid Iowa stream of 500 cfs, do you?
A. No.
Q. Doctor, do you have any example of a
number in parts per million or pounds per
day for any formulating plant in the Midwest
at any time of the year?
A. No.
Q. Do you have any number for the pounds
per day or parts per million from any municipal
outfall in the Midwest?
A. No.
Q. Dr. _ , have you been in any of the
eight major Shell formulating plants in the
United States ?
A. No.
Q. Let me run to Figure C, the map of
fertilizer blenders, and so on. I take it
you have no knowledge of whether the
formulators on that map ever discharged
a drop of dieldrin to the water, is that
correct?
Q. I mean in normal operations.
A. I hiivo no ptM'Hoiuxl know U'd^c.
Q. And you have no knowledge of any type
of numbers in parts per millions or pounds
per day from any of these plants?
A. No.
Q. So, you do not know if they are polluting
the water in Iowa or not, basically, do you?
They could be all closed systems for all you
know, right?
• 127
-------
A. Right.
There are, unfortunately, many examples of expert witnesses who have
violated one or more of the fundamental rules for presenting evidence. The
chances of doing so, however, are far less if the potential witness has1 viewed
at least a day or more of the proceedings prior to giving testimony. This
accomplishes several things: it gives the "tone" of the hearing, it usually
indicates what general type of questions to expect, and most of all, it
reassures the witness. If you are called upon to testify you should make every
efl'ort to arrive enough before your appearance to view the proceedings.
Unfortunately, simple fatigue can undo the best of research. Experts
have likened giving testimony before good lawyers to a lengthy oral dis-
sertation defense without the usual opportunity to give complete answers.
By the end of a day of hard questioning, the witness1 concentration and the
precision of the answers fall off markedly. Good lawyers may save the most
aggressive and most important questioning for after the midafternoon break.
It is also at this time that the skillfully phrased leading question has its
greatest effect. Lawyers are not allowed to "lead" their own witnesses, but
may phrase long rhetorical questions when facing witnesses for the opposition.
These often begin with "I take it we can agree that. . . " or "I assume you
are aware that. . . " or some form of a lead-in which calls for a yes or no
answer to an often lengthy proposition. The prepared cross-examiner will
know where he wants to go, and roughly how many leading or hypothetical
questions it will take to get there. In most cases the final answer will not
be the conclusion the witness anticipated when he conducted his research, i. e. ,
it. may be a consistent extrapolation from his original work. Or it may be
a conclusion not truly in line with the data, but the inevitable result of
the skillful questioning.
The latter result, most frustrating to good scientists, can happen when
tiie leading or hypothetical questions are 95% accurate and the respondent
is either too tired or too timid to demand the correction of the 5%. As
any scientist knows, a 5% error compounded several times leads to sub-
stantial deviation: this simply is what happens when a witness is not
careful with leading questions. He should demand that all elements of a
hypothetical question he needs to reply are indeed included in the question
of that all elements of n leading question do indeed reflect the state of
facts. This training best comes from actual experlenec, but intensive
mock cross-examination by his own lawyer can give a fair Idea of what
to expect.
It is often a good idea at the end of a day of hearing or trial for
attorney and witness to review the past testimony in addition to preparing
for likely cross-examination to come the next day. Witnesses and their
lawyers often disagree as to what was said, or how it was interpreted, or
whether that was really what the witness wanted to say. If there has been
testimony that could be misinterpreted or was simply mis -spoken, the
government attorney should try to correct the misimprossion by well
phrased "re-direct" question. These are traditionally questions which
128 •
-------
deal with issues raised in the cross-examination, not with "new matters".
It is helpful to trial counsel if the witness keeps a mental note of areas,
of cross-examination in which he feels he needs to say more, and if the
witness can suggest appropriate questions to his lawyer.
In some of the bigger trials and trial-type administrative hearings
in which EPA has been a party, a daily transcript is made and is usually
available to the parties four or five hours after the close of the day's
hearings. Reference to the actual recorded answers, of course, greatly
facilitate the correction of misimpressions and the protection of a precise
record.
129
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Appendix A
STATEMENT OF
My name is . I am a physiologist at the Fish-
Pesticide Research Laboratory of the Bureau of Sport Fisheries and
Wildlife, U.S. Department of the Interior at Columbia, Missouri. My
duties there involve supervisory physiological, histopathological, and
nutritional research dealing with the chronic effects of environmental
pollutants on the physiology and biochemistry of fishes. I have been
employed by the Fish-Pesticide Research Laboratory since 1969.
My educational background is as follows: I received my B. A. in
Biology from Southwestern at Memphis, Memphis, Tennessee, in 1967,
my M. A. in Zoology in 1969 and my Ph. D. in Agricultural Chemistry
in 1971 both from the University of Missouri at Columbia.
My testimony will be taken from three papers which I coauthored.
These are:
1. "Serum Amino Acids in Rainbow Trout (Salmo gairdneri)
as Affected by DDT and Dieldrin" which appeared in Comparative BTb-
chemistry and Physiology in 1971, Volume 38B, pages 373 to 377. This
is attached as Appendix A.
2. "Ammonia Detoxifying Mechanisms of Rainbow Trout Altered
by Dietary Dieldrin", a manuscript accepted for publication in Toxicology
and Applied Pharmacology. This is attached as Appendix B.
3. "Phenylalanine Metabolism Altered by Dietary Dieldrin",
appeared in Nature, Vol. 238, pages 462 to 463 in 1972. This is attached
as Appendix "C^
My papers deal with the effect of dieldrin on ami no acid metabolism,
ammonia detoxifying mechanisms, and phenylnlamne and phenylketo acid
metabolism of rainbow I rout.
D1K.1.DIUN AND A MIND AT1I) MKTAHOLTSM
Ami.no acids are organic molecules which arc1 utilized for energy as
well ns for molecular components of proteins. Proteins are exceedingly
important to all living organisms; they serve both structural and functional
capacities in living organisms. The twenty naturally occurring amino
acids normally found in organisms are considered important building blocks
for life processes. Thus recognizing the importance of amino acids in bio-
logical systems, we initiated studies to elucidate the effect of dieldrin,
a common environmental contaminant, on amino acid metablism of rainbow
trout.
130
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Each of three groups of rainbow trout was fed a diet containing 7.1 ug
DDT/gm food, 7.1 ug dieldrin/gm food, or a diet containing neither DDT. or
dieldrin (control group). The dieldrin dosage was 143 ug/kg body weight
per day. The fish were fed in three separate 570 liter fiberglass tanks
for 140 days. After 140 days, whole body residue analyses were performed
on 4 fish from each group, serum amino acids were analyzed from 6 fish
in each group, and 12 trout from each group were subjected to forced
swimming to determine the effects of DDT and dieldrin on serum amino
acids after the trout were exercised. Six fish from each group were
analyzed after 6 hours and 6 fish after 24 hours of forced swimming. The
fish were exercised by placing them in a stamina tunnel which forces the
trout to swim against a current of water. The velocity of water was 2
ft/sec, which is similar to velocities encountered by trout in many natural
streams. Appendix A contains the references for the methods used.
Table 1, Appendix A, presents the results of this study.
The concentration of each amino acid in the control group, except
alanine, decreased after the fish were exercised. It is assumed that this
is a result of the fish's energy needs, i. e., amino acids were being
utilized in response to forced swimming.
Dieldrin altered the concentrations of 11 amino acids. The level
of seven amino acids and the total amino acids concentration were ele-
vated, while the concentration of four other amino acids were decreased
by dieldrin. The effect of dieldrin could have been on the amino acid in
question or perhaps on a metabolic pathway which affects a particular amino
acid via a "feedback" mechanism.
There was a significant interaction between dieldrin treatment and
forced swimming. The concentration of fewer amino acids were significantly
lower after exercise in the dieldrin group than in the control group. Leucine
and serine did not decrease in either of the exercised dieldrin groups, whereas
in the control exercised group both amino acids significantly decreased. The
concentration of methionine, hydroxyproline and aspartate increased in the
dieldrin exercised group, but decreased in the control exercised group.
The accumulation of these five amino acids in the serum suggests that the
utilization was inhibited by dieldrin. The mechanism that caused these
dieldrin-induced changes is unknown, but our results can be considered
Indicative of the subtle, biochemical el'l'eets of dieldrin that may alter
rainbow trout in our aquatic environment.
DDT also had a significant effect on amino acid metabolism, but those
results will not be discussed in tills testimony.
DTELDRTN AND AMMONIA DETOXIFICATION
The second study involved the relationship between dieldrin and ammonia
metabolism in fish. Ammonia is a natural end-product of protein and amino
acid metabolism, and it manifests a strong cytotoxicity in living cells. The
following biosynthetic reactions are responsible for detoxifying and maintaining
low, non-toxic levels of ammonia in fish:
131
-------
Reaction 1
o-oxorlutarate + NADH + H+ + Wl^ ^ > Olutomate + NAD + H?0
01utamate
Dehydropienase
(ODH)
Reaction 2
'"..lutmrmte + ATP + Nl!^"1" V. "'.'. ."~ . __^ Glutamine + ADP + Orthonho^phate
Olutamine
Synthetase
(GS)
Reaction 1 occurs in both the liver and brain of fish, whereas the second
occurs only in the brain. Thus, the brain has both biosynthetic reactions,
and the liver has only one. Regulation of these two reactions is extremely
important in maintaining low, non-toxic, ammonia levels in fish. This
study was initiated to elucidate the effects of dieldrin on the ammonia
detoxifying mechanisms and brain amino acid metabolism of rainbow trout.
Each of five groups of rainbow trout was fed a diet containing 0, 0. 36
1.08, 3.6 or 10. 8 yg dieldrin/gm of food. This equals to 0, 14, 43, 143 or
430 ug dieldrin/kg body weight of fish per day. The trout were fed daily
rations equivalent to 4% of their body weight per day for 240 days, after
which liver, blood and brain were taken for biochemical analyses. Each
group of fish was weighed monthly and feeding rates were adjusted accordingly
during the exposure.
The activity of the enzymes glutamate-oxaloacetate transaminase (GOT),
glutamate-pyruvate transaminase (GPT), and glutamate dehydrogenase (GDH)
were measured in both the liver and brain of fish from each group after 240
days. Also, glutamine synthetase activity (GS) (measured as glutamine
transferase) was measured in the brain of fish from each group. The
methodology, results, statistics, and disriiHsion of data are presented in
Appendix B. A nummary of tho data aloiitf with impllrutioiiH will he presented
in l.liis testimony.
The whole-body dieldrin residues after 240 days of exposure were 0. 30,
0.02, 2.0, and 5.86 yg/gm (ppm) in the 14, 43, 143, and 430 ug/kg dosage
groups, respectively. The dieldrin residues resulting from the three lowe"s"t
dosages were in the range of those reported in fish from the National
Pesticide Monitoring Program, We therefore suggest that results from this
study are indicative of biochemical effects of dieldrin that could be occurring
in l'ish in our aquatic environment.
132
-------
Liver GOT and GPT activities were not significantly altered by dieldrin
except for GOT in the highest dosage group. These two enzymes are indicative
of the amount of ammonia being transaminated by the liver. These results
suggest that dieldrin did not alter the transamination of amino nitrogen in
the liver. However, brain GOT and GPT activities were significantly decreased
by dieldrin except for GOT activity in the lowest dosage group. Decreased
activity of these enzymes could cause a concomitant increase in concentra-
tions of the amino acids aspartate and alanine. Analyses of the concentration
of free amino acids in the brain confirmed that both aspartate and alanine
concentrations were significantly increased in fish from the two highest
dosage groups, but not in those fed less than 143yg/kg/day (3. 6 yg/gm food).
Nine of the 16 amino acids measured in the brain were altered in the 143
ug/gm group, whereas 12 of the 16 amino acids were altered in the 430y g/kg
group. The significance of these individual changes in amino acid concentra-
tions is not completely understood, but we can conclude that brain amino
acid metabolism was significantly altered by chronic, dietary dieldrin
exposure.
The enzymes concerned directly with ammonia detoxification, GDH and
GS, were significantly altered by dieldrin. Liver GDH was significantly
stimulated by all dieldrin dosages, which suggests that the ammonia detox-
ifying capabilities of the liver were increased. Because GDH is located
exclusively in the mitochondria! matrix, these data indicate that mito-
chondrial metabolism was stimulated by dieldrin.
Electron microscopic analyses of liver cells showing changes in mito-
.chondrial morphology give further evidence that dieldrin has an effect at
this site. An electron photomicrograph representative of the control group
(0 dosage) is shown in Figure 1, Appendix B. In comparison, the lowest
dieldrin dosage caused swelling of mitochondria with no apparent disruption
of membranes (Figure 2, Appendix B). However, the highest dieldrin treat-
ment caused more pronounced effects on the mitochondrial (Figure 3, Appendix
B). The mitochondria were swollen, mitochondrial membranes were dis-
rupted, and the matrices of several mitochondrial appear severely damaged.
The electron microscopic examinations were correlated with the altered GDH
activity, and our interpretation offers an explanation as to why the lowest
dieldrin-treated group had slightly greater GDH activity than the highest
treated group. The mitochondria of the low dosage group were swollen,
which suggests stimulated mitochondrial metabolism, whereas those of the
high dosage group were not only swollen, but the outer membranes were
dlHrupl.nl which results in the mitochondria being inactive.
Hrain GDII activity was decreased significantly l>.y nil doses of dicUIHn.
The inhibition of brain GDI I suggests decreased ammonia detoxification, which
could have increased ammonia concentrations in the brain. However, dieldrin
had no effect on brain ammonia concentrations. In contrast, serum ammonia
increased significantly at the two highest doses of dieldrin. Because brain
ammonia is metabolized sequentially by glutamate dehydrogenase and glutamine
synthetase, we feel that the inhibition of GDH activity placed a greater load
of ammonia on the glutamine synthetase system. In all groups exposed to
dieldrin, glutamine synthetase activity (as assayed by glutamine transferase)
was stimulated, and compensated for the loss in ammonia detoxifying function
133
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performed by GDH. Thus, glutamine synthetase in the brain of dieldrin-
dosed fish in this study is likely responsible for maintaining brain levels
of ammonia within physiological limits. When this compensating mechanism
is exhausted or exceeded, then the toxic effects of ammonia are perhaps
manifested.
The dieldrin-induced change in brain GDH activity of rainbow trout may
account for the stimulation of brain glutamine synthetase activity, increase
in serum ammonia, and the increase in liver GDH activity. The ammonia
liberated from the brain in the low dosage group (14yg/day) did not result in
a detectable increase in the concentrations of either brain or serum ammonia.
This suggested that the ammonia liberated due to decreased brain GDH activity
was either bound by brain glutamine synthetase or transported from the brain
to blood, and then either excreted or detoxified by the liver. The ammonia
liberated from the brain probably accounted for the stimulated liver GDH
activity. In the second lowest dosage group (43/day), this same trend was
apparent. The two highest doses of dieldrin (143 and 430yg/day) caused an
increase in serum ammonia, which suggests that the excretion and liver
detoxification capabilities were being exceeded. Although the excess ammonia
load was not toxic to the trout, it caused the ammonia detoxifying mechanisms
to be continually taxed.
The implication that brain ammonia detoxifying mechanisms of fish play
such an important role in maintaining ammonia levels within physiological
limits demonstrates the impact that dieldrin could have on fish and their
ability to adapt to their environment. However, the most serious implica-
tions on fish involve the interaction of dieldrin and other environmental
chemicals that may also alter ammonia metabolism, as well as the inter-
action of dieldrin and elevated ammonia concentrations in water. Ammonia
is one of the most common poisons discharged into the aquatic environment
and has been a subject of much concern in fish toxicology. Results from
our study suggest that fish carrying body burdens of dieldrin would be less
tolerant to increased levels of ammonia in water.
DIELDRIN AND PHENYLALANINE METABOLISM
l/urthor research was done with rainbow trout which involved determining
tlu' effet'tH of dietary dleltlrin on the metabolism of one particular amino acid,
phenylalanlne. The concentration of phonylalunino wan altered by diehlrin in
our I'ifHt. study. Chiingos lit I.ho metabolism of pheny lakuilne have been related
to altered activity of brain enzymes anil mental deficiency in mammal.s.
Although little is known about the situation in fish, we evaluated the effects
of dietary dieldrin on metabolic pathways of phenylalanine in rainbow trout
(Salmo gairdneri).
Tn this experiment, we fed each of 5 groups of rainbow trout diets con-
taining dieldrin at the following concentration: 0, 0.36, 1.08, 3. 6 or 10. 8
yg dieldrin/gm food. This corresponded to 0, 14, 43, 143, or 430y g dieldrin/
kg body weight/day, respectively. The fish were fed daily rations equivalent
to 4% of their body weight for 300 days. The trout were weighed each month,
and we adjusted the feeding rates accordingly.
134
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At the end of the experiment liver phenylalanine hydroxylase, serum
phenylalanine and urinary phenylpyruvic acid were measured. The techniques
used in this study are noted in Appendix C.
Growth rates were not affected during the 300 day exposure period.
Whole body dieldrin residues after 300 days were 0. 41, 0. 79, 2. 10 and
6. 23ug/gra (ppm) in the 14, 43, 143, and 430 yg/kg groups, respectively.
It is important to note that residues in fish at the three lowest exposure
levels were in the range reported for fish in the aquatic environment by
the National Pesticide Monitoring Program.
The concentration of phenylalanine in blood was increased by all
dosages of dieldrin. The effects of dieldrin on serum phenylalanine are
given in Figure 2, Appendix C.
Liver phenylalanine hydroxylase is ah enzyme which converts phenylalanine
to tyrosine. This enzyme is responsible for maintaining the normal concen-
tration of blood phenylalanine. Our study showed that all doses of dieldrin
decreased the activity of this enzyme (Figure 1, Appendix C). These results
are consistent with our finding of increased serum phenylalanine, i. e., the
enzyme was less active and phenylalanine was not being converted to tyrosine.
Dieldrin1 s effect on phenylalanine hydroxylase activity appeared to be
persistent, for the liver enzyme activities in the group given the largest
and smallest doses of dieldrin were still significantly (P^O.05) lower than
the control group after the trout were fed control diets (0 dosage) for 4
months after the initial-300-day exposure. The half-life of dieldrin in
trout has been reported to be 44 days. Thus, after approximately three
half-lives, the enzyme activity was still decreased.
Urinary phenylpyruvic acid, a phenylketo acid metabolite of phenylalanine,
increased in concentration in the groups receiving the three highest dosages
of dieldrin. There was a significant correlation between decreased phenylalanine
hydroxylase activity and increased urine phenylpyruvic acid concentration among
the various dosage groups (r=0. 860, P<0.01). Thus, as dieldrin caused a
decrease in hydroxylase activity, there was a concomitant increase in the
urinary phenylketo acid metabolite.
IMienylketovirlii is :in inherited defect in phenylalanine metabolism ol'
m;uuwM.lH elmraotei'l'/ed by an Inhibition ol' phenylaUiniiie hydroxylase, increased
blood phenylalanine, increased urinary phenylketo addH, and mental deficiency.
Our study indicated that dieldrin has a marked effect on phenylalanine metabolism
and ean induce the biochemical manifestations of phenylketouria; however, the
effects of dieldrin on learning ability in fish remain to be tested.
135
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Appendix B
My name is and I am currently assistant professor of
environmental studies at ^ ~ . My formal educa-
tion includes BSc and MA degrees from the University of Missouri and a
PhD degree from Montana State University. I have had experience as a
research assistant at the University of Missouri and as a pollution biologist
with the Tennessee Game and Fish Commission. A list of my research
contributions and a curriculum vitae are attached for your review. The
information I will present below stems from a research project conducted
at the University of Missouri during the late 1960's under the supervision
of This work dealt with the effects of selected
pesticides (including dieldrin) on planktonic algae.
As you know, all life on this planet depends upon the energy of the
sun which is "fixed" or converted into a useable form via the activity of
green plants. Our goal in this research project was to determine if
certain chemicals, which were widely used at the time of the project had
any effect upon the ability of green plants to perform their important
role of energy fixation. We choose a green algae (Scenedesmus quadricauda)
as the test organism. Our experimental design consisted of exposing
laboratory cultures of this plankton organism to various concentrations
of specific pesticides and over a period of approximately 10 days determining
what influence, if any, that chemical had on the ability of the test organism
to grow (i. e., increase in numbers within the cultures) and to fix energy.
The methods used during this study were such that sublethal effects of any
of the tested compounds could be determined. In other words, the test
organism did not have to turn brown and die in order to determine whether
or not the compound under investigation had an adverse effect.
Growth was measured simply by counting the number of plankton algae
cells in a 1 ml aliquot of the control and pesticide treated cultures at two
day intervals. The rate of energy fixation (photosynthesis) was determined
with the aid of radioactive carbon-14 (C14) in the form of sodium carbonate.
Aliquota of each culture were withdrawn at two day intervals and incubated
with C.1 ''for four hours. The fells were filtered, washed, dried and the
amount, of racUoat-tlvn carbon whlrh had been "fixed" wan determined by
liquid scintillation.
A summary of the results from the dieldrin part of the study are
presented in Table T.
136
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Table I. Percentage differences cell number, carbon assimilation and
biomass between dieldrin treated cultures and controls at
0, 2, 4, 6, 8, and 10 days. Carbon assimilation expressed
as unit volume = cpm C per 50 ml of culture. * = significant
difference (p = 0.05, N=4).
Time in Days
0. 1
mg/1
Cell number
Unit volume
0 2
-32*
+S + 1
1* (•>
-23* -2fi*
-20* -1*2*
8
-17*
-25
10
-Q
+35
Biomass -22
1.0 mg/1
Cell number -37* -20* -38* -23* -11
Unit volume + 3 + 1 -33* -51* -32* +33
Biomass -32
These data show the percentage change of treated cultures from controls
as to the number of cells, the amount of carbon-14 taken up and the biomass.
Thus, by the second day of the experiment, the number of cells in the dieldrin
treated cultures (0.1 mg/1) was 32% less than the control cultures while the
amount of radioactive carbon being assimilated was about the same (1% greater
than controls). At a concentration of 1.0 mg/1 on this same day, the number
of cells was 37% less than the control cultures and again carbon uptake was
about the same (1% greater than controls). By the sixth day of the experi-
ment cell number at the lower concentration (0. 1 mg/1) was 26% below the
controls and the rate of carbon fixation was 42% less than the control cul-
tures. At the higher concentration of 1.0 mg/1 the number of cells in the
treated cultures were :W% lower than in the control cultures and the rate of
eat'bon uptake f>l% below the control rule. By the end of the experiment,
total biomass was 22% lower than control cultures in the 0. I mg/1 treatment
gr.oup and 32% lower in the 1.0 mg/1 group.
My conclusion from this information is that the compound dieldrin has
an adverse effect on the green plankton algae S. quadricauda. There was a
significant decrease in the growth and energy fixing abilities of the test
organism. Total biomass of the treated cultures was lower than controls at
the end ol' the test period.
T I'eel that dieldrin has fairly widespread effects. As other witnesses
have testified, this compound affects many diverse types of organisms. As
I have found, members of the plant kingdom are adversely affected. The
137
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ramification of this is that dieldrin may have a very subtle yet widespread
influence on an ecosystem. I therefore would support a complete ban on>
the pesticide dieldrin while encouraging an increased research effort into
more species-specific pest control methods.
133
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Appendix C
r >
O
/
I)
^
CHAIN OF CUSTODY RECORD
ENVIRONMENTAL PROTECTION AGENCY
SAMPLE NO. TIME TAKEN DATE TAKEN
SOURCE OF SAMPLE PRESERVATIVE
NAME OF PERSON TAKING SAMPLE
WITNESS (ES) TO TAKING SAMPLE
ANALYSIS REQUIRED:
Front
)
v
^
uw
-ll-J
JC/3
RECEIPT OF
SAMPLE
DISPATCH OF 1
SAMPLE
I hereby certify that I received this sample and
HiQpn^Prl nf "f t* A^ not*pf1 bplow.
RECEIVED FROM
DISPOSITION OF SAMPLE
DATE REC'D
TIME REC'D
SIGNATURE
I hereby certify that I received this sample and
disposed of Lt aa noted below.
RKCKfVBDTWW
DISPOSITION QF SAMPLE
l Uereby certify that i o
dispatched it as shown be
DATE OBTAIND
TIME OBTAIND
DATE DISPATED
SENT TO
)ATU KEC'l)
SIGNATURE
btained this
low.
TIME RECM)
sample and
SOURCE
TIME UISPATED
METHOD OF
SHIPMENT
SIGNATURE
Back
139
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Appendix D
SAMPLE TRANSMITTAL SHEET
TO: (Laboratory Name & Address)
FROM: (Field custodian or Field Sampler)
Sample No. Lab Number Preservative Analysis Required
To be completed in field:
Prepared by: Date:
~ Signature
Field Notebook No. Time:
To be completed by Laboratory:
Received by: Date:
Time:
Distribution: Orig. & copy - Accompany shipment
1 copy - mail directly to Laboratory
1 copy - mail to Data Management
1 copy - Survey Coordinator Field Files
• 140
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D-2
THE OPACITY WITNESS
Kenneth B. Malmberg
Division of Stationary Source Enforcement
141
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DRAFT
THE OPACITY WITNESS
introduction
This guideline is intended to assist the EPA employee in a civil or
criminal action in which he may be called as an opacity witness. It summarizes
the EPA witness1 presentation of opacity testimony in a format which can easily
be interpreted by judges, juries, and counsel. This testimony can be supple-
mented by exhibits which clarify and present opacity data in its simplest and
most easily understood form.
While other witnesses may be called to testify on rules, regulations,
administrative procedures, process variables, or unit process operations,
testimony on opacity evidence may be the most far-reaching in terms of varieties
of issues discussed. Because opacity is one of the most universally applicable
emission regulations, the EPA employee presenting opacity evidence should be
prepared to address diverse and sometimes controversial issues.
143
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THE OPACITY WITNESS
A person testifying on visible emission evalua-
tions (i.e., opacity evidence) should be familiar with
the development of visible emission evaluation procedures and
their application. As a witness, you may be questioned in
the following areas:
1. Specific observation procedures you followed
in the field.
2. The accuracy of the opacity method as applied to
industrial sources.
3. The accuracy of Method 9 as promulgated in the
Federal Register on December 23, 1971, and revised
November 12, 1974.-
4. Revisions to the method including the following
specific issues:
a. The averaging approach to determining compliance;
b. The potential effects of changes in observer
position and weather conditions;
c. The potential effects of water vapor on opacity.
144
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5. The training you received for certification by EPA.
6. The compilation of opacity data and its presentation. '
It may be necessary in presenting opacity evidence that
you discuss some or all of the above issues as an expert witness,
A. ISSUES
A major substantive area into which both sides will
delve is the one of qualifications. You must always present
an accurate summary of your qualifications to your attorney
prior to your testimony. Your summary of experience differs
from a resume in that it describes those specific qualifica-
tions which enhance your credibility and general ability
to discuss opacity issues and to answer questions on the
subject of visible emissions with a high degree of confidence.
Include a summary of all relevant work performed either in
your present position or elsewhere, with reference to previous
expert testimony, writing in the field, and any public
presentations you have made regarding opacity techniques or
procedures. This summary should be brief, and not over one
page in length, in most cases.
On a motion to postpone the trial the judge may change
the original trial date so that witness qualifications can
be examined both by himself and by the defense. Should
145
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this occur you may meet in the judge's chambers for a
verbal examination, in which the judge may ask various
questions about your experience, training, background, and
perhaps some questions relevant to the case at hand.
Other relevant issues are:
1. Training - The adequacy of observer training is
always subject to scrutiny. In anticipation of these
questions, you can be particularly helpful before trial.
Well before trial you should ask your attorney whether or
not a demonstration of visible emission evaluation proce-
dures could be of benefit to the court. This demonstration
could include a visual demonstration to the judge and the
jury of correct opacity reading technique. It could be
supplemented by films, pictures, and in-court demonstrations
illustrating equipment used in visible emission certifica-
tion procedures. At the very least this area of field
procedures should be fully discussed between you and your
attorney prior to any cross examination by the opposing
counsel.
146
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2. Accuracy - The Portland Cement Association's
remand response clarified EPA's position regarding the
accuracy of visible emissions evaluations. In this document
EPA tests showed an overwhelming majority of observations
made by certified opacity observers were well within the
standard for certification. You should stress the point
that these data also show that the error factor is biased
downward (that is, in favor of the emission source), when
evaluations are made under meteorological conditions con-
sidered less than ideal. If these points are clearly
presented little doubt can remain regarding the accuracy of
opacity evaluations.
3. Method 9 - The opacity method itself is also a
2
subject for witness examination. The method as promul-
gated in the Federal Register is clear in its applicability
procedural, and testing segments. The averaging concept
1"
Response to Remand by U.S. Ct. of Ap., re "Portland
.Cement Association v_._ Ruc.kelshaus", ESED, EPA, RTP,
North Carolina 27711. EPA 450/2 74023. November 1974,
Visual Determination of the Opacity of Emissions from
Stationary Sorces, 40 CFR 60, Appendix A.
147
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is particularly adaptable to continuous emission from
an emission source. As described in Section 2.5, the
averaging process must be thoroughly understood prior
to any attempt at presenting evidentiary data derived
by its application. Therefore your presentation must
stress its basic simplicity. You must make every effort
at presenting your data clearly, accurately, and in a
simple manner. Included among changes to the method
is a six-minute averaging procedure. You must insure
that these revisions are thoroughly explained and
understood by everyone prior to your examination on the
stand.
4. Data Presentation - Implicit in the presenta-
tion of opacity evidence is the citation of opacity data
which is claimed to be over the standard called for in
the regulation. You can assist your attorney by clari-
fying your technical reports and providng a concise format
for presentation of data which clearly shows:
a. the alleged violations;
b. the extent of those violations (both the
number of evaluations and their excess over
the standard);
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c. the six-minute ave-age of those evaluations,
if applicable and;
d if applicable, the number of evaluations
exempted by the particular state regulations.
In addition, you could supply a narrative report tying
in the particular state opacity regulation to the reading
made. For example, many state opacity regulations have
differing applicability requirements. Clearly under-
standing these regulatory applications is important for
development of an acceptable opacity enforcement case
5. Review of Testimony - Before taking the stand
as a witness, you should review the testimony of prior
witnesses with your attorney if possible. This will assure
your complete understanding of facts testified to previously,
vB. TESTIMONY
Since you have presented a description of your qualifi-
cations, questions in this regard will be brief and to the
point. The intent of these questions is to put aside any
suspicions in the minds of the judge or the jury. Your
answers should be as accurate and as well founded as was
your original discussion of this information with the
149
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attorney handing the case. You may then be asked to discuss
the procedures you followed in evaluating visible emissions
from this source, with particular emphasis on any deviations
from procedure which you found necessary. As an expert you
may be asked your opinion freely, if asked, based upon your
most professional judgment. On cross examination the defense
attorney will try to discredit testimony you previously gave
by placing you in the position of making a contradictory
statement or taking a position which is not based on your
specific areas of expertise. It is important that you do not
depart the narrowed area of your expertise. You should avoid
discussions based on particle sizing, particle distribution,
particle reflectance and dispersion, process operations,
process effluent characterises, process efficiencies,
etc., unless you feel fully qualified to discuss these
items.
The defense may also include remarks based on irrelevant
subjects which may be disconcerting to you at the start, but
as an expert witness you must remain calm and confident that
your counsel will not allow questions of this type to detract
from the case. Should it occur consistently, the judge will
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disallow a line of questioning if it appears inappropriate or
inconsistent. The judge himself may wish to take up examina-
tion of a witness already on the stand, if he sees fit. This
will occur if the judge wants a particular point developed or
expanded to clarify the facts for the jury.
Juries deserve discussion here because they are
asked to decide questions of fact. Your testimony will
for better or for worse influence that decision. Both the
type of evidence regarding opacity evaluations and confusing
defense presentations sometimes confuse a jury. Therefore
your presentation of opacity evidence must not place your
testimony in a negative light by a jury which may already be
confused. Do not try to judge their ability to digest your
testimony. The questions, your answers, the courtroom setting
are all influences on the jury's final decision. Therefore,
your answers should be structured as simple and precise
as possible for a layman's comprehension.
There are many excellent discussions on the correct
demeanor of a witness while on the stand., One which is
outstanding is that contained in Part III of the course
manual for "Air Pollution Field Enforcement," Air Pollution
Training Institute, U.S. EPA, 1972.
Questions in chambers by the judge with both opposing
parties present has become more signficant as a part of
151
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judicial proceedings involving technical issues. Judges
must have substantive answers to their inquiries based
on their sometimes limited knowledge of the technical
portion of a case which is based on air pollution viola-
tions. These sessions owe their productivity to the fact
that the unique knowledge of the parties involved will allow
a more freewheeling and intensive discussion on a given
point, beyond the hearing of the jury and courtroom. Since
such questions can assume the same form as questions asked
on the stand, as an opacty witness you should conduct
yourself as if you were under oath without any bias toward
either side and answer the questions as clearly and com-
pletely as possible. Questions may be asked to determine
applicability of certain rules of law, and the judge may
adjourn the court until he can make a decision about a point
of law. A transcript will also be made of these in-chambers
questions and answers.
To avoid any element of surprise you should always
conserve your answers if you suspect even remotely that by
continuing beyond a certain point you would demage the
case. Prosecutors always stress this point with witnesses,
and in giving opacity testimony it is doubly important
because of the nature of the evidence presented, and the
technical reports supporting this evidence.
Cross examination may be followed by redirect examination,
to clarify any questions raised under cross examination. The
primary reason for cross examination by defense counsel is
to refute your testimony previously given and if possible.to
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characterize testimony thus given as being untrustworthy or
wrong. When an indirect question is asked by the defense you
should demand clarification before answering. You should
qualify you answer, if the question is not presented completely.
The following question, in various forms, can be expected
by you as an opacity witness:
1. Direct Examination
a. General
(1) What is your name?
(2) What is your present job? (How long have you
had it, etc.)
Various other questions of this type will serve to put
you at ease and introduce your qualifications to the court.
b. Specific
(3) What do you do when you evaluate a source?
(4) Do you evaluate the emissions before you
enter the source?
(5) Do you inform the source of your evaluation
in advance?
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(6) Do you always enter the source?
(7) Why do you evaluate the emissions from
a source before entering?
(8) Do you have a regularly established procedure
you follow?
(9) What are the procedures followed in Method 9?
(10) What do you do if you cannot follow procedure
(e.g., observer angle to plume)?
(11) Where do you look at the plume to evaluate it?
(12) What do you do when you "read" a plume?
(13) What is "opacity"?
(14) How does "opacity" differ from Ringlemann?
(15) Have you seen the Bureau of Mines publication
18333? (The Ringlemann Method).
(16) How long do you "read" a plume
(17) Are you usually alone when reading?
(18) What are the weather conditions on the day
specified?
154
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Further questions would deal with specifics of your
reporting findings which may have been previously admitted
to the courts as evidence.
2. Cross Examination
a. State the exact dates and scores of your
certification.
b. Did you notify this source prior to these
evaluations.
c. Why not?
d. Does everyone in your office follow the same
procedures? -
e. Have you ever made a mistake?
f. Are photographs taken at the same time as
your readings?
Specific questions on various features of your report
<•»
may be interspersed with reference to various publications,
1'ncluding the Federal Register. You may take notes or file
copies with you to the stand to refresh your memory.
155
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Basically, in giving testimony, remember the following
four points:
1. Be truthful in your answers.
2, If you do not know, say so.
3. Be responsive to the question, and if you do
not understand it, say so.
4. Explain your answer when it is in need of either
clarification or qualification.
C. CONCLUSION
Direct evidence is communicated by those having actual
knowledge of the facts by means of their senses. Your
testimony is regarded as direct evidence if it most certainly
exhibits the true state of facts. Your powers of observation
as a visible emissions observer are among the primary means
available to the prosecutor for providing evidence of opacity
violations.
NSPS and SIP opacity regulations vary in their requirements,
both in minimum opacity requirements over a period of time, as
well as exemptions based on the age of the emission source, type
of process, precise location of the emission source, and process
malfunctions as described in the particular regulations.
156
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Supplementing your direct testimony is the presentation of
exhibits, documents, and demonstrations. This could include
your field reports, photographs and other information about
the source. Any sketches of the facility which you drew and
which were enlarged to a size such that they could easily be
shown to a jury from a tripod arrangement may also be useful
as possible exhibits. Drawings are especially helpful in that
most of the requirements and procedures for visible emission
evalutions are based on meteorological and physical characteris-
tics relative to a particular point source. Such parameters
as distance to the stack, direction of the wind, position of
the observer, relative position of the sun, meteorological
conditions, and other relevant visible emission evaluations
criteria can be easily, clearly, and concisely illustrated by
means of a large scale drawing or sketch.
Relevant books in the field of opacity include the course
book for the EPA training course Visible Emissions Certifica-
tion AP-30 - Optical Properties and Visual Effects of Smoke-
stack Plumes; Method 9 of Part 60 - Visual Determination of
the Opacity of Emissions from Stationary Sources; and the
Bureau of Mines Circular No. 8333, title Ringlemann Smoke
Chart. Any of these sources may be used to show the jury
specifications, instructions, and generally accepted methodo-
logy of opacity observation. Familiarity with these publica-
tions will enhance your credibility as a witness.
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VIII. SUMMARY
The complex nature of many visible emissions does.not
reduce their compatibility with opacity evaluation techniques.
Details stressed in this manual are necessary to fully explain
techniques and procedures of successful enforcement of opacity
regulations against stationary source of visible emissions.
The elements of case development, chain of custody
procedures, and other relevant portions of opacity evaluation
techniques have not been included. Guidance on these and
other issues is forthcoming. However, following the above
visible emission procedures should provide a sound foundation
for agency development of a comprehensive, enforceable, visible
emissions program for your area.
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BIBLIOGRAPHY
1. Policy with Respect to the Presentation of Testimony by EPA
Employees -.EPA Order -1000.7, April 6, 1972.
2. £ Primer for EPA Employees: Presenting^ Scientific Evidence by
James A. Rogers, EPA, Washington, D. C. September 1974.
3. How to Prepare Yourself for Cross Examination, by Jack E. Horsley,
Tfie" Journal to Legal Medicine, January/February 1974.
4. Hints for Expert Witnesses, Paul A. Humphrey, July 1973. Meteorology
pert Witne
RTF7 U. S.
Laboratory, RTP, U. S. EPA.
5. Field Operations and Enforcement Manual for Air Pollution ControlI,
M. I. Weisburd. August 1972. E~PA Contract ?CTA 70-122, APTD 1100,
1101, 1102, 3 Volumes.
6. Air Pollution Field Enforcement, Section III. Air Pollution Training
Institute, U. S. EPA, 1972.
7. Conner, E. D., Hodkinson, J. E., Optical Properties and Visual Effects
of Smoke-Stack Plumes, U. S. Dept. of H.E.W., Public Health Service
Publication 999-AP-30, Cincinnati, 1967.
8. Ringlemann Smoke Chart, Staff, Bureau of Mines. U. S. Dept. of Interior,
Information Circular 8333, May 1967.
9. EPA Visible Emission Inspection Procedures. S-24, by Kenneth B. Malmberg,
Stationary Source Enforcement Division, U. S. EPA, August 1975.
10. Guidelines for Evaluation of Visible Emissions. R. Missen and A. Stein,
April 1975, EPA Contract #68-02-1390, Publication #340/1-75-007, Washington,
D.C.
-------
FOOTNOTES
Response to Remand by U. S. Ct. of Ap., re "Portland Cement Association
V_. Ruckelshaus". ESED, EPA, RTP, North Carolina 27711. EPA 450/2-74023,
November 1974.
Method 9, Visual Determination of the Opacity of Emissions from Stationary
Sources, 40 CFR 60, Appendix A.
160
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D-3
EXPERT WITNESSES AND
ENVIRONMENTAL LITIGATION
J. L. Sullivan and R. J. Roberts
April 1975
Copyright © 1975 by Air Pollution Control Association.
Reprinted with permission from the Journal of the Air
Pollution Control Association, Vol. 2, No. 4, 353-361
(1975).
161
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EXPERT WITNESSES
AND
ENVIRONMENTAL LITIGATION
J. L. Sullivan and R. J. Roberts
The University of Western Ontario
Environmental legislation is developing rapidly. In addition, consid-
erable attention Is being given to the environmental impact of new
technological developments. Governments as well as citizens,
often through organized groups are placing unprecedented pres-
sures on many Industries and even on other parts of the govern-
ment. Popular feeling has been extremely strong on such matters
and resistance so far has not been strong. This is likely to change
substantially and the future may see a rapid increase in the num-
ber of environmental suits especially If the continued existence of
certain Industries is threatened. Expert evidence will be needed to
support government legislation and to support actions to preserve
the environment. Such measures will have Inevitable economic im-
plications and will evoke predictable responses. Reconciling these
viewpoints will provide a challenge for the community which will
probably depend to a larger extent on Interpretation In courts of
low. The ability ol various experts to give advice through the legal
process will be essential If the most effective compromises are to
be found. It Is the purpose ol this paper to discuss the gathering
and use of such scientific evidence In environmental lawsuits.
Knvironmental legislation is developing rapidly. In addi-
tion, considerable attention is being given to the environ-
mental impact of new technological developments. Govern-
ments as well as citizens, often through organized groups
are placing unprecedented pressures on many industries
and even on other parts of the government.
To a great extent, present forms of legislation still re-
main to be tested and to prove their effectiveness. Authori-
ties on the whole have acted with restraint and where pros-
ecutions have been launched the causes have been clear. As
a result, suits relating to environmental problems have
been comparatively few and in many cases have not been
vigorously contested. Companies faced with prosecutions
by governments for breaches of regulations have often ad-
mitted responsibility and received nominal punishment. In
many cases, these settlements are private and unrecorded.
Because of this dearth of litigation the need for expert
technical witnesses has not been felt very strongly and
comparatively little experience has been gained in the envi-
ronmental area.
This situation is likely to change substantially in the fut-
ure. Aided by what can only be regarded as an astonishing
emergence of public awakening, environmental groups have
scored major victories. These have, in some cases, h;id pro-
found financial implications. Stronger government pro-
grams in air and water pollution control are also beginning
to have more impact and to threaten the future economic
well-being of some industries. As these I rends c'nnl iniie ;md
:is more development:)! projei-ls lire stopped or delayed liv
environmental actions there are bound to be more vigorous
reactions from industry and other organizations.
The resulting upsurge in litigation will omphasi/e tin
need lor more technical experts ti> assist in providing
knowledge of the implications from liotli I lie environmental
and the economic points of view. All kinds of experts will
be required. Until recently, it could be almost taken for
granted that expert witnesses in environmental litigation
would be engineers or chemists. The types of cases which
Professor Sullivan is on the Faculty (if Krigiueerini:
Science and Professor Roberts is on tin- Faculty of l.;uv. The
University of Western Ontario, London, f'an;idn.
April
,'.,!..,^,- IK
163
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occurred were usually related to specific problems. How-
ever, in the past few years the question of the environmen-
tal impact of such developments as the supersonic trans-
port, new airports, pipelines, power stations, dams, etc.,
have brought about marked changes. Biologists, ecologists
and social scientists have become involved in legal suits
often through a sense of commitment concerning the issues
in dispute.
Expert Testimony In Environmental Litigation
Choice of Technical Expert
(i) Who may qualify as a technical expert—and how to
find him. Generally, anyone who is "qualified by some spe-
cial skill, training or experience"1 can be an expert witness.
"(T)he witness must have sufficient skill, knowledge or ex-
perience in that field or calling as to make it appear that
his opinion or inference will probably aid the trier (of fact)
in his search for truth."2
It is not essential that the witness be a scholar or spe-
cialist in his field. "The knowledge may in some fields be
derived from reading alone, in some from practice alone, or
as is more commonly the case, from both. While the court
may rule that a certain subject of inquiry requires that a
member of a given profession, as a doctor, an engineer, or a
chemist, be called, usually a specialist in a particular
branch within the profession will not be required."3
The question whether a person qualifies as an expert in a
particular field is a matter for the discretion of the trial
judge. For this reason—and also to enhance the credibility
of their expert in the eyes of the trier of fact—most envi-
ronmental lawyers choose to err on the. side of over-qualifi-
cation. They avoid the physicist or engineer who is a mem-
ber of a concerned citizens' group and wants to volunteer
his services. "A fellow who is just a volunteer, who does not
have practical experience in the field, may be damaging as
a witness because of weakness during cross-examination.
He may be vulnerable as to his academic experience in the
field, as to his practical experience in the field, or as to his
empirical study of the problems at hand."4
When finances permit,5 environmental lawyers will tend
to select their technical experts on the basis of "academic
credentials (to initially impress the judge or the decision
makers), professional experience, and attitudes,"6 the lat-
ter quality referring to the ability of the expert to refrain
from coloring his testimony with socio-economic judgments
adverse to the lawyer's position such as, "Industry should
not have to do this."
Where to find these technical experts? There are many
sources. Government agencies such as the Ontario Ministry
of the Environment have a number of highly qualified
technical experts who are their employees. However, while
the government may find these experts useful in its own
cases, there may be drawbacks to their usefulness to pri-
vate litigants. For example, in Ontario it is virtually impos-
sible for a government employed technical expert to testify
concerning matters within the scope of his employment.
The Ontario Public Service Act7 provides that every civil
servant must take an oath of secrecy that "except as I may
be legally required, I will not disclose or give to any person
any information or document that comes to my knowledge
or possession by reason of my being a civil servant."8 Simi-
lar prohibitions may also restrict the availability of experts
who are employees of private industry.
More fertile fields in which to recruit competent expert
witnesses include university faculties, private practitioners,
consulting engineers, recent retirees from government and" *
industry, and authors of technical books and articles. Many
professional and technical societies maintain rosters of
their membership by specialty. Societies in Canada main-
taining such lists include, inter alia, the Chemical Institute
of Canada and the professional engineering associations of
many provinces.9
Finally, it has been suggested that when an environmen-
tal lawsuit requires more than one technical expert, it is ad-
visable to "have one expert find another. You need some-
one whose judgment you can trust, because there are a lot
of people, particularly in the air pollution field, who hold
themselves out to be experts but who are just terrible at it
... One precaution, when -you find your first good expert, is
to give him the job of finding experts in related fields. He
can do a much better job by checking professional reputa-
tions in the scientific community than you can by looking
at a resume."10
(ii) Delineating the field of expertise. Many environ-
mental lawsuits do require the services of more than one
expert witness. They contain a range of technical issues
much broader than the range of competence of any one ex-
pert. "The man who knows about radioactive emissions
may not know about dissemination in the soil or the atmo-
sphere; and those experts who are knowledgeable about
dissemination may have no expertise in the health prob-
lems raised by the emissions. And so it goes down the
line."11
As a result, it is necessary carefully to delineate the field
of expertise of any one expert before he takes the stand.
The opposition can open a sometimes fatal weakness in the
environmental lawyer's case if the letter's expert offers an
opinion in an area beyond his competence and then is made
to look a fool on cross-examination. Karaganis suggests
that to avoid-this possibility, the lawyer should "(b)ring the
experts in for staff conferences, for allocation of research
functions, and have them try the case to (the lawyer) and
to one another. One of the best methods of finding out the
weaknesses in your case is to let a scientist posit his fin-' -
ings before a group of friendly but critical colleagues.
Weaknesses will become very evident, and, believe me, pol-
lution cases are not always solidly on the side of the (plain-
tiff) and against the defendant. The defendant very often
has some good arguments."12
(iii) Limiting factors. Perhaps the most significant limi--
tation on the lawyer in his choice of expert witnesses is fi-
nances. It has been said that .. "(c)ompetent experts will
run between four and six hundred dollars a day."13 and
that "(s)everal hundred thousand dollars is not an uncom- "
mon expenditure in the development of environmental tes-
timony. Such testimony is little different in terms of the
money spent, because of the complexity of the issues in-
volved, from patent litigation. Those .. . who are familiar
with the development of experts in patent litigation know
how costly it can be .... We estimate that the cost of ex-
pert testimony in our big cases will run between twenty and
thirty thousand dollars per case."14
If there are no funds from which to pay these large wit-
ness fees, the environmental lawyer may be required to fall
back on concerned citizens' groups and conservation orga-
nizations for technical experts. As Sive points out, "there
are numerous experts who are willing to contribute their
time without charge because they are dedicated to the
cause of conservation. The dedication exists to an inspiring
degree among surprisingly large numbers of expert physical
164
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ind social scientists and others who are officers, employees,
jr merely members of major conservation organizations or
:itizens' groups ... "I5 The lawyer must keep in mind, how-
jver, that volunteer experts obtained through these chan-
nels may be particularly vulnerable during the cross-exami-
nation. To avoid opening weaknesses in his case, the lawyer
should take special care to delineate these persons' fields of
expertise and stay within those bounds during direct exam-
ination.16
It is possible that in important cases, some members of
university faculties and others might be persuaded to testi-
fy without compensation. "Expert testimony in an impor-
tant environmental litigation is a mark of prestige in al-
most anyone's curriculum vitae It is no derogation of
the nobility and selflessness of those who have given many
whole days and weeks, with no or ridiculously small com-
pensation, to point out that such recognition may be help-
ful to the expert witnesses in intangible ways."17
Functions of the Technical Expert
(i) Pre-trial. In complex environmental litigation, the
technical expert can fulfill a variety of important functions
at the pre-trial stage. For this reason, the wise lawyer will
retain his technical experts as far as possible in advance of
the actual trial.
First, having his experts available early in the proceeding
gives the lawyer a chance to make effective discovery
against the polluter. The lawyer can be educated by the ex-
pert about the details necessary to make discovery effec-
tive, such as the nature and history of the industry in-
volved; the technology available to correct the pollution
problem; efforts, if any, by the industry to alleviate such
pollution; the physical and chemical nature of the pollu-
tants; the potential sources of the pollution within the of-
fending plant; and the short and long-term biological ef-
fects of the pollutants. If the experts are not available to
assist in discovery, important areas of investigation may be
foreclosed.
Second, the expert brought in at the pre-trial stage of the
litigation also has time to marshal! hard evidence that may
prove indispensable at trial, analyze the data already col-
lected, and make recommendations for additional research
or testing which might buttress the case against the pollut-
er. The importance to courts of such hard evidence is high-
lighted in Bortz Coal Company vs. Air Pollution Commis-
sion, Commonwealth of Pennsylvania.19 In that case, the
air pollution commission issued an abatement order which,
in effect, required the coal company's coke ovens to shut
down. The coal company took the Commission to court. In
court, the Commission presented as its chief witness one of
its own air pollution control engineers. In the words of the
court:
This engineering witness testified, in addition to his
qualifications, to a visit to the scene of Bortz's coke
ovens ... and to his observations concerning the emis-
sion of smoke from the operation of Bortz's coke ovens
.... From his observations, he testified that the smoke
emissions were in excess of the permissible allowance of
smoke as established by the Commission's regulation
utilizing the Ringelmann Smoke Chart . . . 19
Those observations were rejected because the Commis-
sion's expert did not have any hard evidence to back them
up. The court said:
The problem arises in that this witness, although ad-
mittedly an expert, for the purposes of this record, did
not make any stack tests, nor did he utilize any of the
available instrumentation to measure the amount of
falling paniculate, emitting particulate, or smoke den-
sity ... The Commonwealth here, in effect, is ordering
the shutdown of Bortz's coke ovens. This is no small
matter. To permit the Commission to order an abate-
ment based solely upon the visual tests strikes at the
heart of fairness ... 20
Third, the sooner the expert is able to impart to the law-
yer a thorough understanding of the problems in the case
the more successful the lawyer is likely to be in formulating
and developing an effective trial strategy to implement in
the courtroom. A thorough understanding of the technolog-
ical problems involved can be invaluable to the lawyer in
deciding what hard evidence to present, who should be his
witnesses, the questions to ask and how far he should go in
cross-examining the witnesses for the other side. On this
score, it has been pointed out that in environmental litiga-
tion it is necessary "that the attorney be as expert as, or
more expert than the expert."
Lastly, the expert must sit down with the lawyer in a
pre-trial conference and carefully prepare his own direct
testimony. The lawyer will "try to have the expert well-pre-
pared to present his subtle theories in as articulate and as
concrete language as possible. The more vague and ethereal
such testimony is, the more likely it is that the opposition's
attempts at derision will be complemented and thus fur-
thered, by the general psychological effect the witness has
on the court."21
This is also the point at which "clashes of temperaments
and techniques"22 are resolved. "Such a conference ac-
quaints both lawyer and witness with their respective
methods of presentation, the issues considered crucial and
the questions to be asked—in short a complete rapport re-
sulting in a smooth convincing presentation.23
(ii) Trial. At trial, the technical expert has two princi-
pal functions:
To give testimony interpreting the meaning of techno-
logical evidence for the benefit of the fact-finder, i.e., the
judge or jury, and
To give technical advice to the trial lawyer, particularly
during cross-examination of the other side's experts.
By far the more important function is the first. The out-
come of an entire environmental lawsuit may depend on
the efficacy of such testimony. If the lawyer does not per-
ceive the necessity for expert testimony on a particular
issue or the pitfalls associated with using technical experts
in such areas, the result could be disaster for his client.
Essentially, the subject matter to which expert testimo-
ny might be directed can be broken down into the following
broad categories: (a) Causal connection; (b) Pollution con-
trol technology; (c) Breach of emission standards; (d) Inju-
ry; and, (e) Damages.
Each of these categories raises its own special set of
problems which may dictate the use of an expert, as will be
seen in the following text.
Causal Connection
In many environmental lawsuits, one of the most diffi-
cult matters to prove is that the defendant caused the inju-
ry. "Numerous scientific and technical problems arise in
attempts to link activities of a given defendant allegedly
causing pollution with plaintiffs claimed injury from that
Aoril
Mo -1
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pollution."'-'4 These problems can arise in a variety of con-
texts, for example, showing that air, water of noise pollu-
tion from the defendant's operation and not the operations
of his neighbors caused the injury; showing that an oil slick
which damaged beaches or property came from a particular
ship; or showing that health problems resulted from the de-
fendant's pollution and not from disease. In such circum-
stances the technical expert may prove invaluable in either
fingering or exculpating the defendant as the responsible
party.
For example, in Russell Transport Ltd. vs. Ontario Mal-
leable /ron,25 technical experts used carefully gathered and
documented evidence to prove that pollutants emitted into
the air from the defendant's foundry operation caused the
plaintiffs injury.. The plaintiff corporation operated a new
car storage yard adjacent to this foundry. A short while
after commencing operations at this location, it came to the
plaintiffs attention that the paint on a number of cars in
the yard was becoming pitted and corroded. When a chem-
ist inspected the damage on some of these cars, he found
particles which were determined through microscopic ex-
amination to be "red iron rust, black iron scale, white cast
iron, chilled cast iron, grey cast iron or malleable pearl cast
iron particles, some of which were spherical in form, and
manganese sulphide crystal,... particles incident to found-
ry operations."26 To show conclusively that these particles
came from defendant's foundry, special panels of steel
painted in the same way as the cars27 were exposed in vari-
ous parts of the plaintiffs premises. After forty-six days
the panels were examined and showed marked pitting. It
was found that "(t)he plates which were exposed in areas
on the plaintiffs property more remote from the defen-
dant's plant show that the surface was affected to a lesser
degree."28
Causation difficulties requiring the-assistance of experts
also have arisen in disputes over oil spills. For example, in
United States vs. Tanker Monsoon,29 the evidence of an
expert witness showed conclusively that the Monsoon did
not cause an oil spill that fouled a part of the Piscataqua
River in New Hampshire, despite substantial circumstan-
tial evidence indicating responsibility. The Coast Guard re-
ceived a complaint of an oil spill in the river just as the
Monsoon was finishing discharging a cargo of No. 6 Bunker
Oil at a terminal in the same vicinity. There were no traces
of oil around the Monsoon's hull or the pier, but she was
the only tanker at any of the terminals and the spillage was
No. 6 oil. On this basis, the Monsoon was charged by the
Coast Guard with a violation of the Oil Pollution Act30 and
required to post a $10,000 bond and arrange for the clean-
up of the pollution at her own expense before being permit-
ted to set sail. At trial, chemical analysis of an expert
"showed conclusively . . . that although the oil spillage was
No. (i oil, it was special Navy oil, an irony which was not
pursued—and not the commercial grade carried by the
Monsoon."
The testimony of experts on the issue of causation can
become crucial in dealing with suspected injuries to health
from environmental hazards which are sophisticated and
not easily traced. There has been recent experience with
this in Toronto in connection with .high-lead blood levels, a
condition which causes brain damage in children. In Cana-
da Metal Company Ltd. vs. MacFarlane,*1 the Ontario
Ministry of the Environment issued two stop orders essen-
tially shutting down the plants of the Canada Metal Com-
pany and Roto-Cast Limited. "The stop orders were issued
immediately after data showing some high-lead blood lev-
els in persons residing near the Canada Metal plant had
been received by the Air Management Branch from the
City of Toronto's Medical Officer of Health."3- However,
the stop orders were quashed by the Supreme Court of On-
tario after Dr. Henrietta Sax, a lead expert retained by the
defendants testified on the companies' behalf. The Minis-
try of the Environment did not present any expert testimo-
ny in rebuttal, choosing to rely upon an affidavit of the Di-
rector of the Air Management Branch citing a staff engi-
neer's report "that soil, vegetation and ambient air quality
surveys in the vicinity of the Canada Metal Company plant
had shown levels of lead considerably in excess of these
found in normal urban environments."33 The court dis-
missed this report, saying, "What possible evidentiary
value is there in the words 'considerably in excess of those
found in the normal urban environment'? There was no ev-
idence as to what the lead levels were in a normal environ-
ment, let alone what the deponent in his own mind regard-
ed as a normal urban environment. To say that lead levels
in the soil, vegetation and ambient air in the vicinity of the
Canada Metal Plant were in excess ... of those found in a
normal urban environment, whatever that means, was ab-
solutely worthless."34 The court also rejected as unsubstan-
tial, evidence cited in the affidavit of blood tests taken by
Dr. Gordon Stopps, Senior Consultant, Environmental
Health, for the Ontario Ministry of Health. "(T)he court
laid great emphasis on the fact that, of 725 persons tested,
722 were in effect found not to have unsafe blood lead lev-
els. In other words, on the basis of the affidavit, 99.6% of
those tested living in the vicinity of the plant showed no
unsafe blood lead levels. Even the reasons for high lead
level content in the three persons were attributable, in
some cases, to other causes."
Pollution Control Technology
It is not unusual for expert witnesses to be called upon to
testify whether there is technology available which is capa-
ble of averting the pollution problem in question. Such tes-
timony can make or break a case such as a nuisance action,
where the relief sought is an injunction against emitting the
offending pollutant. In the absence of technology capable
of controlling the pollution an injunction might result in
closing down the plant and throwing large numbers of pe°>-
ple out of work—a prospect some courts find unthinkamo.
The problem as it exists in many courts in the U.S. was put
this way:
(The prosecutor) must also show that technology exists
capable of curing the problem, because whatever the
vogue may become with regard to shutting down pollut'-"
ing industries, courts today are extremely reluctant to
enjoin major economic activities. I am currently dealing
with one industry in Illinois which employ!-' eleven thou,-r
sand people. There is nut much dispute about the fact
that they are causing serious environmental degrada-
tion. We demonstrated this to the court, and the court
simply said to us, "If you think I'm cra;y cnnu/jh to put
eleven thousand workers out of work, vow 're sadly mis-
taken. "... The role of the public prosecutor, however, is
to do everything possible to eliminate the emission
source. Thus, in terms of proof, the big problem is not
proving the pollution but showing that technology ex-
ists to deal with it. In every case in irhich I hare been
involved, that is the first question the judge has asked
as
The question whether technology exists which is capable
of curing the pollution problem is al.-.o important to Cana-
dian courts, though perhaps to a lesser extent than in the
166
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U.S. Before issuing a preliminary injunction, i.e., a tempo-
rary injunction against emitting the offending pollutants,
Canadian courts follow the traditional American approach
of "balancing the equities," a process which necessarily in-
volves consideration of the overall social and economic ef-
fects of such action. Some Canadian courts have applied
the same principles in determining whether to issue a per-
manent injunction. The importance that these courts at-
tach to knowing whether there is technology available ca-
pable of alleviating the pollution problem is illustrated in
the opinion of MacDonnell, J. A., in Bottom vs. Ontario
Leaf Tobacco, where he stated:
The defendant's factory, employing it is said some two
hundred men, has been equipped with every known de-
vice for preventing the escape of fumes ana smells; it is
impossible to avoid the discomfort caused to the plain-
tiff without stopping the operation of the factory alto-
gether; to grant an injunction prohibiting the present
nuisance would mean the closing of the plant, resulting
not merely in loss to the defendant but in unemploy-
ment disastrous to a small community. .. .36
The court substituted money damages for the injunction.
On the other hand, there have been Canadian cases issu-
ing permanent injunctions against pollution by large indus-
trial operations without even considering whether technol-
ogy exists capable of alleviating the problem. A classic ex-
ample is the case of McKie vs. The K.V.P. Co. Ltd.,37
where the court, with no idea whether technology capable
of curing the pollution problem was available, permanently
enjoined a kraft paper mill in the Town of Espanola "from
depositing foreign substances or matter in the Spanish
river which alter the character or quality of the water flow-
ing over the lands of the plaintiff."38 In so doing, the court
apparently followed the English tradition in granting per-
manent injunctive relief which eschews as a" function of the
legislature and not the judiciary consideration of the ques-
tion whether the exercise of the rights of the plaintiff
should be subjugated to the economic interests of the de-
fendant or the community. Several other Canadian cases
have taken the same tack.
A noted Canadian authority suggests that this apparent
conflict in the approach of Canadian courts towards issuing
permanent injunctions is tending to resolve itself in favour
of the English tradition/19 But even if this prediction
proves to be correct, Canadian courts cannot help but be
influenced by the potential economic impact of decisions
affecting major industries. It appears that for this reason
alone, the expert witness will continue to he called upon to
testify whether technology exists capable of curing the pol-
lution problem under examination.
Breach of Emission Sl.ind.irds
One of the least complex issues calling for the evidence
of a technical expert, is the question whether a statutory
emission standard or regulation has been breached. The
issue is usually cut-and-dried—was the level of the pollu-
tant greater than that prescribed in the standard? The ser-
vices of an expert are required because many pollutants
cannot be detected and measured without sophisticated
equipment and techniques.
For example, in air pollution cases it is often necessary to
undertake stack sampling, a complex technique for deter-
mining what pollutants are emitted into the air. An access,
usually an outside ladder, must be erected along the side of
the smoke stack. Then an opening of approximately 14 in.
in diameter must be made into the walls of the stack in
order to insert the probe. Once the smoke is collected it
must be analyzed in a laboratory to determine if any. statu-
tory limitations have been exceeded. If the plaintiff does
not have access to the stack, he may undertake a complex
testing program using elaborate equipment at the receiving
end of the pollution. This is what took place in the Russell
Transport case,40 where an analysis of the dust deposits at
the receiving end proved that the defendant was responsi-
ble for the damage.
Some tests which appear relatively simple to perform
create many problems when a layman attempts to present
the results as evidence. One of these deceptively simple
tests involves the measurement of smoke density using a
Ringelmann Chart. The chart comprises a number of shad-
ed squares which represent various densities of smoke. The
instructions inform the operator that he must stand with
the sun at his back, hold the chart at arm's length and
match the shaded area with the smoke emerging from the
stack. Recently, it has been suggested that any citizen
using the smoke density chart may give evidence at trial.41
However, to be sure of having this evidence given its full
weight, it is advisable to have an expert conduct the test.
"Convictions are difficult to obtain because of the notori-
ous inaccuracy of the Ringelmann opacity test. Light con-
ditions, position of the observer, and diameter of the emis-
sion stack are factors which can be raised to cast substan-
tial doubt upon the validity of the test. The (plaintiff) must
be extremely careful to properly prove that the particular
testing device employed is the one referred to in the legisla-
tion."42
Beyond the practical reasons for having an expert testify
there may also be legislative restrictions on who may pres-
ent evidence. For instance, under Regulation 15 of the On-
tario Air Pollution Control Act'1-'1 only a provincial officer
may rely upon the smoke density chart to enforce the
Act.44 Similar restrictions exist in some states of the U.S.
One'such restriction, a practice of the Colorado State De-
partment of Health restricting the certification of experts
in the use of Ringelmann opacity readings to employees of
the State, was recently struck down by the Colorado Dis-
trict Court.45
Injury
The fact of injury is not always obvious and expert testi-
mony might be required to prove that injury did occur.
Medical experts often are called to testify on this issue
when the activity of the defendant is alleged to he a health
hazard. The difficulty with respect to injury to health is
that the precise harm from exposure to a pollutant, even in
qnnntitips pxpppdiiij: psialilishrrl limits. mii;ht nol HP clp-
I <•<•!.'i I >lr or in ij; 111 masqueraile us a nut her ail men I
A good example of huw medical experts can lie used con.
clusively to prove injury from the pollution of the defen-
dant occurred in Maryland vs. Galaxy Clirmicni Co. Ltd.'"'
In that case, Galaxy Chemical was emitting into the sur-
rounding atmosphere benzene, methylene chloride and
methyl ethyl ketone fumes. These fumes had little odor
and were substantially undetectable in the surrounding
area without scientific instruments. A number of persons
residing in this area complained of headache, nausea,
drowsiness, and abdominal pain. However, the majority of
persons in the neighborhood, some of whom lived next door
to the plant, had no such complaints. If this were the only
evidence of injury offered at trial, the action of the State of
Maryland would have failed. The court would have con-
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eluded that there was no injury, that the complaints of the
neighbors were the result of suggestion or attributable to
causes other than the fumes from the plant.
The state clinched its case with testimony from medical
experts which not only linked the ailments complained of
by the neighbors with the fumes from the plant but also
suggested that the absence of symptoms in others did not
mean that they were unaffected. Three different medical
doctors testified that they had examined a number of the
complaining neighbors and their laboratory tests confirmed
that these people were suffering from pancreatitis, an ail-
ment that can damage the pancreas and lead to diabetes.
One of these experts testified that "(i)t was her opinion
that the operations of Galaxy Chemical Company were ad-
versely affecting the health of the Valley residents. This
opinion was based on several being sick at the same time in
the nature of an epidemic and the laboratory abnormalities
when present in the Valley which upon leaving became nor-
mal again as the patient felt better and improved general-
ly."47 Each of these experts also testified, in effect, that
"(o)ne can have pancreatitis without symptoms and with-
out knowledge". The State was able to extract a similar
statement from Dr. Goldstein, a medical expert called on
behalf of Galaxy. On the basis of this evidence, the court
found:
(T)hat the present method of operation of Galaxy
Chemical Company constitutes a nuisance. . . . Without
concluding positively that the present method of opera-
tion is a hazard to health, the Court concludes that it
may be a hazard to health. . . .4y the pres-
ent record trill have a harmful effect on the persons in-
colccd. irrespective of whether such persons are non-
smokers or smokers. The plaintiffs' expert trould merely
sa\ that, as to non-smokers, there is a possibility that
toxic effects occurred from the levels of carboxyhemo-
glohin that were reached in the non-smokers . . . He was
not prepared to co even this far with respect to the pos-
sibility of harmful effects on the smokers. As preciously
stated, the plaintiff Hurt is a heavy smoker . . . .•'-
The Court concluded "that the plaintiff Hurt has failed to
prove that his duties . . . have caused him to be 'exposed to
dangerously high concentration of carbon monoxide,' which
'are likely to cause serious disease or fatality'.""'11 •
Damages
Where money damages arc churned, it is necessary for
the court to calculate in terms of cash the extent of the loss^
suffered by the plaintiff and it. is not uncommon for expert
witnesses to be called upon by the parties to assist the
court in this task. For example, medical experts might lw
requested to estimate the degree of physical impairment,
etc., resulting from a toxic dose of a pollutant/'4 Or real es-
tate experts might be called upon to estimate the drop in
market value of properly which has deteriorated either
physically or aesthetically at the hands of the defendant.M
It is important to distinguish the question of damages
from the question of injury. Sometimes, the failure of a
lawyer or expert to separate these issues in his own mind
can affect the witness' credibility resulting in harm to the
lawyer's case. This is particularly true in cases where injury
itself is in dispute—there is no loss to measure in terms of
cash if there is no injury. For example, in Kamo Electric
Cooperative Ltd. vs. Ciishard,''1' an expert witness who ap-
parently failed to distinguish damages from injury testified
at one point that "(h)e did not think the value of any real
estate is ever affected by the appearance of power lines."
At the same time, he "put the before and the after values
(of the farm affected by the power lines) at $51,700 snd
?50,l.r>0 total damage of $l..r>f>0." Needless to say, the elec-
tric cooperative that called him as its expert witness lost
the case.
Advisory Function.
The usefulness of a technical expert at trial is not con-
fined to giving testimony. The technical expert is also use-
ful as an advisor to the lawyer throughout the course of the
trial. Having his expert "on call for momentary advice on
technical points . . . particularly when examining the op-
posing expert"Sl can be a boon to the lawyer faced with un-
anticipated evidence or a response he doesn't quite under-
stand.
Also, keeping the technical expert cm hand throughout
the trial facilitates communication between the lawyer and
expert so that at the end of the trial clay, they can q. ickly
"recap the events of the day. discussing ways to strenfUhon
the weak areas and capitalize on the strong points thus fa:
developed."™
Moreover, the technical expert who is available to ob-
serve all of the proceedings at lri.il prior to taking the sta.nd
will often be able to present his evidence' more effectively.
This is usually the case when the opposing experts testify
first. The technical expert then has an opportunity to un-
derstand the techniques used by I ho m her side for complex
measurements Mich as calculation of optimum chimney
height. Tci-bnii-al witnesses who lake t he -.laud wit hi ml un-
derstanding the techniques used by I be ol her Mile m.iy \vpll
give testimony which will serve only lo contuse the court
and unjustifiably cause them to appear incompetent.1"
Credibility and Flaws in Expert Testimony
The testimony of a technical expert is worthless if it is
not believed, and. in general, most conns are inclined to be
skeptical of expert opinion. As a result, the credibility nf
the expert becomes a major issue in almost every case. The
lawyer for the other side can he expected to prod on cross-
examination every aspect of the technical expert'1- presen-
tation."" II he finds a Haw ho will relentlessly pursue it in
168
Jo.
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an attempt to hurt irreparably the cause of the side that
called the expert. Such flaws are commonly found:
In the manner in which the expert presents his testimo-
ny;
In the use by the expert of dubious testing equipment or
procedures; or,
In a conflict between the testimony of the expert being
examined and the testimony of another expert.
Some experts have been so emotionally wrenched by such
attacks that they are paranoid about taking the stand
again. This need not happen; the credibility issue may not
be a stumbling block to success if the lawyer and his expert
properly prepare before the latter takes the stand.
It is no secret that generally courts do not trust the opin-
ion of technical experts. This bias is aptly illustrated in
cases where courts have been confronted with conflicts be-
tween the scientific evidence of experts and the practical
evidence of lay witnesses. For example, in Southern Cana-
da Power Co. Ltd. vs. The King,61 the Supreme Court ap-
proved a lower court judgment in which lay testimony of
residents in the area as to the cause of a rush of water and
ice that washed out a railway embankment was accepted
over conflicting expert testimony as to causation. Mr. Jus-
tice Davis stated in his opinion that it could be appreciated
if the trial judge has disregarded the expert opinion and re-
lied solely upon the testimony of the lay witnesses. Similar-
ly, in Canadian Copper Co. vs. Lindala.62 the Ontario
Court of Appeals affirmed a trial court opinion preferring
the testimony of eye witnesses that crop damage resulted
from sulfur fumes from the defendant's plant over the tes-
timony of technical experts that the damage resulted from
disease and not the sulfur fumes.
In cases where both sides present expert evidence, this
natural bias against trusting expert opinion ca'n crystallize
into complete rejection of the opinion of one side's expert if
there are flaws to be found in his presentation. Even the
expert's looks, mannerisms, and speech are important.
They may be attacked if the other side believes that they
fail to convey an image of competence and sincerity. As
Sive points out, "(o)ne of the most significant... problems
involves the degree to which opposing counsel will attempt
to portray the witness as a composite of several objects of
derision, among which are the feminized male, the un-
worldly sentimentalist, the professor who has never met a
payroll, the enemy of the poor who need more kilowatts
and hard goods, and the intellectual snob."63
The expert's attitude on the stand may also destroy the
impact of his testimony. If he appears to be arrogant or ar-
gumentative, he risks having his testimony discounted alto-
gether. An example of the harm assuming such a stance can
do occurred in McKic vs. The K.V.P. Company Lld.M In
that case, Mr. Justice McRuer, complaining that some of
the expert witnesses called for the defendant found it diffi-
cult to distinguish between the function of a witness and
those of an advocate, rejected outright these witnesses' sci-
entific evidence. He took refuge in the opinion of Sir G. J.
Turner, L.J. in Goldsmith vs. The Tunnbridge Wells Im-
provement Commissioners65 which stated, in effect, that
with all due respect to scientific gentlemen their scientific
examination must have depended much on the state of cir-
cumstances which existed at the times of investigation, the
force of the stream, the state of the weather, etc. On this
basis, he concluded that these experts' scientific evidence
was secondary to other evidence as to the facts.
The credibility of a technical expert may also be under-
mined on cross-examination if the other side can force him
to admit that there might have been a defect in his testing
procedure or equipment. A good example of this occurred
in Nelson vs. C. & C. Plywood Corporation,''6 a nuisance
action in which the plaintiffs claimed that their well had
been poisoned by phenols deposited in the groundwater at
the defendant's plant. "(T)he defendant had an engineer
testify as to the direction of flow of the groundwater and
his conclusion was that the direction was away from the
Nelson well." However, the court discounted this testimony
when the other side brought out on cross-examination
"that the tests he had made were at high-water time." An-
other expert for the defendant, a chemist, "testified that
the phenols found in the Nelson well were not the same
phenols deposited by (the defendant)." His testimony was
likewise discounted when opposing counsel brought out on
cross-examination that "there could have been chemical
reaction with other minerals and chemicals in the ground
so that the phenols in the well may have a different chemi-
cal composition than when deposited (by the defen-
dant)."67
Credibility problems commonly crop up when there is a
conflict in testimony given by different experts. This can
happen quite inadvertently, as when different technical ex-
perts are called to give evidence on optimum chimney
height. Even in simple cases involving flat terrain the avail-
able methods of calculation of chimney heights based on
numerous theoretical predictions and empirical .observa-
tions are very doubtful. Two experts could arrive at such
divergent values as to confuse hopelessly a court attempt-
ing to resolve, for example, a difference on a specific height
between a government authority and an industry. Where
the topography of the site is not flat or where the many
other possible complicating factors exist the problem is still
more confusing. The experts on both sides of a case may be
able to feel that they are presenting the truth and will
argue in favour of assumptions which suit their purpose.68
Experiences in court giving evidence on atmospheric diffu-
sion and the calculation of chimney heights are bound to
evoke unpleasant memories in any technical witness who
has been concerned in them.
The key to avoiding all of these stumbling blocks is prep-
aration and attention to detail. Before he takes the stand,
the expert should take pains not to look seedy or radical.
"Experience has shown that a conservative image is most
impressive to the jury, instilling the idea that your expert is
a man of great sincerity, competence and integrity. His ap-
pearance will be restrained, sans long hair, beard, mod
dress and wire rims. His deportment will be quiet, yet self-
assured, courteous and poised. ... His diction should be ar-
ticulate and understandable to the farthest juror without
the aid of a public address system ... ."t>!>
The expert should be reminded-"to answer simply and
truthfully, not. to argue, not to regard cross-examination as
a game of wits, not to attempt to figure out whether an an-
swer will be helpful or harmful, and to leave strategy and
tactics to the lawyers."'0
The testimony of the expert should be cast, as far as is
possible, in lay language and should proceed in a logical
fashion readily understandable to laymen. "The jury will
remember little, if any, of testimony given in highly techni-
cal jargon."
"It is important that, while obtaining from an expert his
opinion, he also states his reason for it. If part of those rea-
sons is based on an exhibit you should have that exhibit
identified at the time, as an expert is unlikely to be testi-
fying again in the Court of Appeal."
. "It is important that continuous reference be made to
April 1975
Volume 25. No 4
169
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the empirical tests, investigations, etc. carried out by your
witnesses, for such data will have more impression on the
jury . .. "71
As to the tests performed hy the expert, care must be
taken that they are carried out in an unimpeachable fash-
ion with reliable equipment. The expert should have on
hand detailed accounts of the conditions under which each
test was performed, e.g., temperature, wind velocity, atmo-
spheric conditions, etc. In addition, the expert should be
present, if possible, throughout the trial in order to be bet-
ter equipped to explain any apparent contradictions be-
tween his own testimony and that of other experts giving
evidence in the same proceeding.
Conclusion
Environmental litigation is about to mushroom—and
with it, the number of scientists entering the court room as
expert witnesses. "The social-values and social-conflicts
questions, resulting from the 'good guys versus the bad
guys' issues, will increasingly give way to factual issues in
which the scientists' participation becomes more and more
important."72 More than ever before, lawyer and scientist.
will be melding their talents to produce hopefully convinc-
ing presentations to put before the courts. Their success in
meeting this challenge will depend on how well both under-
stand the role of the technical expert in environmental
cases.
References
1. Rex i: German. (1947), Ontario Reports 395, (1947), 4 Domin-
ion Law Reports 69.
2. McCormick on Evidence, at 30 (2nd. ed. 1972).
:t. Idem, See Rice v. Sockett, (1913), 27 Ontario Law Reports
410, 8 Dominion Law Reports 84 (H.C.), where the court stat-
ed that not only a consulting engineer but -also persons en-
gaged in cement construction and concrete work were to be
classed as experts. See also, Re Winnipeg Golf Club, (1928), 3
Dominion Law Reports 522 (Man. C.A.); Marchyshyn u. Fane
Auto Works Limited, (1932). 4 Dominion Law Reports 618
(Alta. C.A.) Regarding the absence of necessity for a specialist
in a particular branch within the profession, see McCaugherty
v. Gutta Percha & Rubber Co. (1903), 2 Ontario Weekly Re-
ports 204 (C.A.).
4. Karanganis, Public Suits: The Search for Evidence, in Hasset,
Environmental Law at 56 (Institute of Continuing Legal Edu-
cation, University of Michigan, 1971).
5. See later text and accompanying footnotes.
6. Karanganis at 57; Klein suggests that "(i)n establishing your
experts' credibility, it has been found valuable if a general out-
line is followed which lists systematically such items as name,
residence, occupation, place of work, education, chronological
experience, licenses, professional affiliations, authorships, lec-
tures, etc. The expert will respond best if given sufficient lati-
tude to expand each topic in a terse but narrative style, elabo-
rating as necessary, to cover the facts completely and authenti-
cally, with emphasis to suit the case requirements." Klein.
Milking the Most of Your Expert, 46 Conn. B.,J. 48:1, 491,
(1972).
7. Revised Statutes of Ontario 1970. c. 3H6.
8. Idem. Section 10( 1); certainly, a government-employed teclini-
cnl expert may be subpoenaed by the court nnd required to
give opinion evidence concerning matters within the scope of
his employment, even though he is directed by his agenqy to
refuse to testify. Re Diamond and (he Ontario Municipal
Board. (1962), Ontario Reports 328, (C.A.). However, his infor-
mation normally will not be available until trial—a severe
drawback to adequate preparation and presentation of the
case.
9. Technical societies in the United States which may be sources
of expert witnesses include the "ASME, ASCE, ASTM, ASM.
ASSE, ... as well as the professional socieities. including
NSPE, CEC, A1CE, AIA Institutes include such organiza-
tions as NSC, A ISC, ANSI. Members of their respective Code
Committees are an excellent source of expertise." S. J. Klein,
Making the Mast of Your F.xprrl. 4ti Conn. B..I. -tK:t. 485
(1971.').
II). KarnMganis, Public Suits: VVir .SViirr/i fur Kni/cMir. UH'rri'iitr
4, at 5H-.VJ. Haddcn suggests that "(Uhere arc iniiny SOUK-OS of
technological information which a lawyer should read in order
to be able to talk to his experts and cross-examine the defen-
dants intelligently. For example, local Tuberculosis and Respi-
ratory Disease Association offices can be very helpful in
supplying technical articles or suggesting where they can be
found. The United States Department of Health, Education
and Welfare publishes long lists of abstracts which may pro-
vide useful information, and the local pollution control agency
may be useful ...." D. Hadden, Private Damage Suits, in C.
Hassett, Environmental Law at 43-44 (Inst. Cont. Leg. Ed.
Ann Arbor 1971).
11. Joseph L. Sax, New Direction in the Law, in Hassett, Envi-
ronmental Law, at 6-7, (Inst. Cont. Leg. Ed., Ann Arbor, Mich.
1971).
12. Karanganis, Public Suits: The Search for Evidence, Reference
4, at 59.
13. Karanganis, Public Suits: The Search for Evidence. Reference
4, at GO. Sive estimates the range to be "from three hundred to
seven hundred fifty dollars per day plus expenses." D. Sive,
Securing, Examining, and CrossrExamining Expert Witness-
es in Environmental Cases, 68 Mich. Law Rev. 1175. at 1180.
14. Karanganis, Reference 4, at 57-60.
15. Sive, Reference 13, at 1180.
16. See later text.
17. Sive, at 1180
18. 279 A. 2d 388 (Pa. Cmwlth, 1971).
19. Idem, at 397.
20. Idem, at 398.
21. Sive, Securing, Examining, and Cross-Examining Expert
Witnesses in Environmental Cases, at 1191, Michigan Law .
Review (1970).
22. Idem. Such clashes may be common, resulting from an unfor-
tunate lack of communication between the scientific and legal
communities. A survey of the legal community conducted by
the Oak Ridge National Laboratory in 1971 highlighted the
gap between law and science. "Many respondents perceived
scientists and engineers to be narrow in their social outlook
and provincial in their approach to problems:
Scientists tend to specialize in professional subareas and
the positions they advocate fail to recognize the broader
general implications.
Most scientists remain academicians, aloof from the com-
munity.
Scientists .. . tend to measure human responses by slide
rules
.. . their political notions are absurd.
"The veracity and objectivity of scientists and engineers were
questioned by a large proportion of the respondents:
Scientists are often arbitrary about matters, believing
that they have the only set answers . . . (t)he information
is inaccurate, based on individual opinion rather than
fact.
Scientists' attitudes are influenced by the propensities of
their employers.
Scientists are too dogmatic, visionary and impractical in
their discussion of ecological problems . . . (those) who are
environmentalists are too emotional to provide the practi-
cal ideas needed.
Scientists tend to extend their expertise in environmental
matters into areas of politics and society which are be-
yond their competence. . . ."
•1. Ourlin. l.tiif. Xnrmv. nnd I'lthtu- /'u/irv A /Vn/t/tvn in Coni-
nu/'iiVrif KIM. in W. Tlionuis, Srii'titisl* in thr l.rgnl Nv.sd'm. nt
40-41. (Ann Arbor Scipm-c Pub. 1!)74).
2M. A. Mnlonry. Q.C., Expert /•.'rif/rm-i' I'M DffrnditiK n I'riminnl
('«*<•. at 91, tl.nw Sor. of Upper Canada Special Lecture Series
19f>'.»).
24. J. MarDonald & J. Oonway, Environmental Litigation, at 251
(University of Wisconsin 1972).
25. (1952)4 Dom. L.R. 721 (Ont.'H.C.)
26. Idem, at 723.
27. These panels were furnished by General Motors of Canada.
the manufacturer of the new cars stored on the plaintiffs
premises.
28. (1952) 4 Dom. L.R. at 726. This evidence might have heen im-
proved, for example, by comparing the quantitative rates of
deposition on the plaintiffs property with location; in the
same general area but more remote from the foundry. As a
rule, such emissions are relatively coarse and tend to settle
170
Journal of Jne Air Pollution Conttol A-,=.ocifii'On
-------
within a distance of a few hundred- feet of the cupola. This may
have forestalled a possihle defence that the plaintiffs were also
near to the Canadian Pacific Railroad. Emissions from steam 58.
locomotives often contain large particles which can be corro- 59.
sive. This was mentioned in the proceeding but the defendant
did not effectively press this point as an alternative explana-
tion for the damage. One technical witness called by the defen-
dant was obviously ineffectual. He apparently did not satisfy
the court that he was sufficiently familiar with the instrument
for measuring sulfur dioxide and moreover kept no proper rec-
ord of wind direction.
29. Environmental Reporter 1707. Vol. 1, No. 7651 (1st Cir. Oct.
21!, 1970).
30. United St. Code, Vol. 3, Section 431-437.
31. (1974) Ont. R. 577.
32. II Canadian Environmental Law News 161 (1973).
33. Idem, at 164.
34. Idem, at 164.
35. Karanganis, Public Suits: The Search for Evidence, supra, n.
10, at 50-51.
llfi. (193ft) Ont. 11. '20ft (C.A.). (1935) 2 Dom. L.R. 699. See ntso
Canada I'apcr Co. v. Hrnwn (1922), 63 Sup. Court Rep. 243, 66
Dom. L.R. 287; Helisle v. Canadian Cottons Ltd.. (1952) Ont.
Weekly Notes 114 (H.C.), (1947) 2 Dom. L.R. 840; Chadwick v. 60.
Toronto (1914), 32 Ont. L.R. Ill (H.C.), affd by C.A., 32 Ont.
L.R. 115, Ramsay v. Barnes (1913), 5 Ont. Wkly Notes 322.
37. (1948) 3 Dom. L.R. 201 (Ont. H.C.), affd by S.C.C. (1949)
S.C.R. 698.
38. Idem, at 219. However the court's action did not have as much
dnsh ns the quoted passage at first blush might indicate. The
court suspended the injunction for six months "in order to give
the defendant an opportunity to provide other means of dis-
posal of its noxious effluent." Idem, at 220. Later, the Parlia-
ment of Ontario issued a special act permitting K.V.P. to con-
tinue operating.
39. Mrljtirrn, The Common Law Nuisance Actions and the Enui- 61.
'nmmrntal Rattle— Well-Tempered Su'ords nr Hruken Reeds*
10 Osgoode Hall L.J. 505, 552-556 (1972).
40. Russell Transport v. Ontario Malleable Iron Co. Ltd, Ref. 26. 62.
41. D. Estrin & J. Swaigen, Environment on Trial. (New Press
1974).
•12. A. Lucas. The Rult of the Public, 6 University of British Co-
lumbia Law Review (1971).
43. Revised Regulations of Ontario 1970 Reg. 15. Sec. 7, Sub-Sec- 63.
lion 3. 64.
44. Some suggest that this regulation may be invalid "as there is 65.
nothing in the (Environmental Protection Act) itself to autho- 66.
ri?.e a regulation restricting the common law right (if a citizen 67.
to testily on such an everyday occurrence." Knvimnment tin
Trial, Ref. 42.
45. Western Alfalfa Corp. v. Air Pollution Variance Hoard of the
State of Colorado, 3 Environment Reporter-Cases 1399, (Col.
D. Ct. 1971).
4li. 1 Knv. Reporter-Cases 1661 (Md. Cir. Ct. 1970) prrrnanent in-
junction entered. 2 Env. Reporter-Cases 1199. (Md. Cir. Ct.
1971).
47. Idem, at 1662.
48. Idem, at 1666.
49. Idem, at 1668.
50. 461 Federal Reporter, 2nd Series, 810 (Ct. Cl. 1972).
51. That level is 50 parts of carbon monoxide per million. It was
noted in Maryland v. Galaxy Chemical Co. Ltd., that "in
Washington, D.C.. for the general population they hnve adopt-
ed a figure of 20 pnrts per million of carbon dioxide." III. at
Ili(i2. I;H.
fi2. / sort til'
injury must have resulted from over-exposure to pollutants be-
cause of uneasiness regarding the way in which the so-called
"safe" limits might have been set. They may feel that such
limits were set on the basis of skimpy evidence of harm or as
the result of highly subjective judgments. Some commentators
believe that there may be grounds for such suspicions. See. for
example, the conclusion of J. Hewings in Water Quality and
the Hazard to Health, University of Toronto. 1968.
ii4. NIT the discussion of Allyn v. United Status. Reference 50.
f>.r>. N. South West Reporter, 2d 513 (S. Ct. Mo. 1970). 09.
.Ml. Itli'm. 70.
.77. Klein. MakinK thr Must of Your Expert. 46 Conn. B.-l. 483. 71.
•IK!) (1972). "A chemicnl engineer, for example, ran help with
discovery by drafting interrogatories and making the results 72.
undcrsinndnhle." D. Madden, Private Damage Suits, in Has-
selt. Environmental Law at 44 (lust, of Cont. Leg. Ed., Ann
Arbor. Mich. 1971).
Idem.
Note that the lawyer must take care in framing questions to
ask his expert if the latter's opinion is required on conflicting
evidence adduced in his presence at trial. In such circumstanc-
es the court, in its discretion may require the lawyer either In
make clear the evidence on which the expert is being requested
to base his conclusion or to put his questions in hypothetical
form. The reason for imposing this requirement was expressed
by the Supreme Court in the following words:
In cases where the expert has been present throughout the
trial and there is conflict between the witnesses, it is ob-
viously unsatisfactory to ask him to express an opinion
based upon the evidence which he has heard because the
answer to such a question involves the expert in having to
resolve the conflict in accordance with his own view of the
credibility of the witnesses and the jury has no way of
knowing upon what evidence he bases his opinion. When,.
however, there is no conflict in the evidence, the same dif-
ficulty does not necessarily arise and different consider-
ations may therefore arise .... lilcta v. The (/ut'cn
(1964) S.C.'R. 561, 565, 48 Dom. L.R. (2d> 139.
"(T)he scientist who accepts the role as expert witness must be
aware of the tactics commonly employed during courtroom lit-
igation by opposing attorneys. The most common of these, of
course, is an attempt to demean the witness or to make him
look silly by confusing him or by asking him apparently simple
questions that he cannot answer. Actually, what the opposing
attorney does, and this is certainly no trade secret, is to slate
the factual situation U> the expert over and over again but each
time picking away at it by slightly changing the circumstances
upon which the expert bases his opinion. . . . " D. Sive. Scien-
tists in the Courtroom, in W. Thomas, Scientists in the Legal
Svstem. at 105-106 (Ann Arbor Science Pub. 1974).
(1936), S.C.R. 4; 1 Dom. L.R. 331. The expert witnesses did
disagree among themselves to the theoretical scientific evi-
dence given.
(1920) 51 Dom. L.R. 565 (C.A.) See Re Hum Fong Shee.
(1967), O.R. 220 (C.A.) where the same principle was applied
in resolving a conflict between lay and expert testimony. Cf.
Cassan v. HOIK (1914), 7 Ont. \Vkiy. Notes 267. (C.A.) Revg. 6
Ont. Wkly. Notes 437, 26 Ont. Wkly. Reports 695.
Sive, at 11.
Reference 37.
(1866) Law Reports Vol. 1, Chancery 349 at 353.
1 E.R.C. 1131 (S. Ct. Mo. 1970).
Idem. Si-e Also the discussion of Rortz Coal Co. v. Air Pollu-
tion Commission in text, and the discussion of A. P. Wearer v.
Sanitary Water Board. Env. R.C., 1497 (Pa. Cmwlth, 197U.
where the court invalidated the board's revocation of a mine
drainage discharge permit because there were no dye tests per-
formed which might have conclusively shown a causal connec-
tion between the mining operation and the pollution of a
stream. The court said:
We are by no means certain of the efficacy of dye tests to
this situation or even if such tests are still possible, but it
would seem that traces of dye might have surfaced in the
Kiser spring had dye been placed, at different times, for
example, in the open pit . .. and at the exploratory hole
five yards to the south of the spring. This may well have
yielded conclusive evidence and made unnecessary the
bulk of speculative testimony which comprises much of
Ihe record. . . . /nV;>i. al 1501.
As :i snp|Htsition a chimney may Itr uei-iled In dilute a toxic uas
\vhirh niviir.- only as a very rare sihi.il i,n\, if at all. ll may I hen
be that winds which blow Ironi a. significant direction might
occur only a small proportion of the time. In calculating
heights of chimneys six atmospheric stability categories rang-
ing t'mm A to K are possihle. The last is representative of ex-
tremely stable air and is the most unfavourable but occurs
rarely. Category I) representing average stability at nighttime
usually is accepted for calculations. I'se of this factor could re-
sult in a much lower chimney height at less cost though the
small risk would be. at least, theoretically greater. On such an
issue a cautious expert may be at some difference with another
one even if the second uses the samp basic formula.
Klein. Reference ?>7, at 492.
Sive. Reference 21. at 1194.
A. Maloney. (J.C.. Kxpi'rt Ki-idenrr in Itrfi-ndim; . I I.nw Soc. of I ipper Canada Special Series l!)fi!)).
D. Sive, -Scc'nr(N/N in thf Ctiurtrrxini. in W. Thomas, Scientists
in the Legal System, at 104. (Ann Arbor Science 1'ub. 1974).
April 1975
?5. Nri 4
171
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D-4
HOW TO TESTIFY
Training Material Presented in
U. S. Environmental Protection Agency
Air Training Institute Air Pollution Field Enforcement
course
173
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HOW TO TESTIFY
If you are awkward, uncertain, or amateurish on the witness
stand, the defense attorney can make you look like a fool and a ras-
cal, and probably will. But if you can testify like an expert an^ a
gentleman he can't ruffle you. Furthermore, the public, represented
by citizens in the courtroom, will have the feeling that their pro-
perty, possessions, and lives are being expertly protected by capa-
ble professionals in their department. When you are on the witness
stand, your department is on public display as in a merchant's show
window. Why not try to look as good as you are?
Why spend good money on an investigation and lose the
fruits of it on the witness stand? You might as well fumble the
ball after a 90 - yard run, just before you cross the goal line.
Good witness stand techniques will yield more convictions of ras-
cals, fewer injustice to innocent parties, better cooperation from
law enforcement officers, valuable personality development for you
personally, and economy of public funds.
Special thanks are due to Howard Hurd, Deputy District
Attorney in charge of the Complaint Division, Bounty of Los Angeles,.
for many ideas which have been included in this article. Valuable
suggestions have been "selected from an excellent paper, "Instruc-
tions to Witnesses," which Mr. Hurd prepared, and have been woven
in among the ideas given on the same subject by arson men.
A. YOUR IMPRESSION ON OTHERS
How to influence people by your
appearance and conduct in court.
When you take the stand, all eyes are on you. Just what
the judge and the jury think of your testimony will depend to a great
extent on your appearance and conduct. If you dress and act the
part of a solid citizen, what you say will have weight with those
who determine the outcome of the trial. A few suggestions follow.
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1. How to dress.
The most obvious way to make a good courtroom impression on others'
is by the way you dress. Your clothes are clearly visible. They
make the first impression. Here are some suggestions worth following.
a. Dress conservatively. As a representative of the department, in
court on department business, dress accordingly. Wear a suit of
conservative design and color, or your uniform. The suit should
be dark and single-colored. A suit is preferable to gaudy or
flashy clothes, such as sport clothes. Don't wear colors that
clash. Wear a tie and a white shirt, never a sport shirt. Stay
away from loud ties and socks. Wear business oxfords, not .sport,
shoes. A hat will add to your appearance.
b. Be neat and clean. Appear wall scrubbed and exceptionally clean.
Keep your hands and fingernails clean. Keep your face shaven
and hair trimmed. Have your suit cleaned and well pressed. Have
your shoes shined. Make sure that your clothes don't look as
though they have been slept in. You wouldn't ask a juror for a
job in shabby clothes; don't ask him for a conviction in them,
c. Subdue your clothing accessories. Keep nothing but the essentials
in your coat. Do not have pencils or cigars protruding from out-
side pockets. Wear no emblems, lodge pins, or rings. Do not wear
loud, fancy, or distracting jewelry. Do not wear firearms in
court.
2. How to present yourself "in good courtroom demeanor.
Your conduct and attitude can go a long way in creating a favorable
reception of the testimony you give in court. These ideas will show
you how.
a. Take the oath in a dignified manner. While you- are taking the
oath, look at the person who is administering it. Keep your
right hand up until it is fully given. Then seat yourself com- .
fortably in the witness chair. Got your poise.
b. Be yourself. Be natural on the witness stand and feel as though
you were talking to friends and telling them a story. You will
ir.ake an ideal witness when you get into the frame of mind that
you are speaking before a sociable, neighborly gathering. Don't
worry about the effect your testimony will have on the audience.
Don't wonder what the judge, jury, attorneys, and others, arc
thinking about you. Relax and answer the questions in your own
way.
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c. Remain calm. Keep your temper. Do not become angry or im- •
patient because of interruptions of counsel. Never become ar-
rogant or impress the court or jury with your importance. Don't
permit anything to confuse you and make you nervous, irritable,
or excited. Don't be so fearful or timid that you are not sure
of anything.
d. Refrain from making signs. You must not make signs. You must
not nod or shake your head or make signals for yes or no, nor
give signs of approval or disapproval of anyone who is being
questioned. Such signs can't be properly recorded by the steno-
grapher.
B. YOUR SPEECH
How to talk when you are
on the witness stand.
To assure the value of your testimony, it is important that your
speech convey your competence as well as the full facts resulting from
your investigation. The fruit of much tedious work must not be lost at
the point of delivery, on the witness stand, due to ineffective speech
or improper choice of words or manner.
1. How to be properly heard.
The effectiveness of your testimony depends upon your words being
• clearly understood in the entire courtroom and on the fact that your
voice creates a favorable impression. Here are some suggestions re-
garding your courtroom voice.
a. Make your words heard clearly in the courtroom. Speak loudly
and enunciate distinctly. Do not run your sentences together.
Do not hurry. Respond to questions as promptly as possible, but
do not rush. Keep in mind that all of the jurors must hear you,
and that the court reporter must take your testimony for the
record, without the need, for repetition. If a public address
system is available, use it.
b. Achieve a pleasing effect by means of your voice. Use your
natural speaking voice, in conversational and steady tones. Do
not yell or change your tone of voice except for inflections for
emphasis. Speak in a gentle and pleasing tone.
2. How to achieve a good effect by your language.
To place your thoughts clearly and correctly on the record, your
words and language must be well chosen, as follows.
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a. Make the meaning clear. Select your words carefully according
to their proper meanings. Use layman's language and explain,
if asked, any technical terms not understandable to the public.
Avoid vague language and gestures in lieu of words, since they
cannot be recorded in the stenographer's notes.
b. Avoid language faults and imperfections. Be as grammatically
correct as possible.Do not use profanity, and avoid -speech
crutches (such as oh's and ah's) to fill in the pauses.
3. How to achieve good effects on the courtroom personnel by means of
your attitude and audience- contacts.
The proper attitude and behavior on your part, as explained below,
will give weight to your testimony.
a. Be respectful. Be polite and show proper respect to the court.
Be confident and at ease, and yet speak with authority. How-
ever, avoid acting and being dramatic. Speak with simple sin-
cerity and seriousness, and refrain from sarcasms and clever re-
marks. When cross-examined, use the same tone and attitude as
you displayed on direct examination. Answer questions with si.-n-
plicity and firmness, without any feeling of antagonism or re-
sentment.
b. Address the judge, the jury, or whoever asks the questions. If
it is a trial by the court, speak toward the judge. If it is a
trial by jury, turn toward the jury. When talking at length,
share your glances between the judge or jury and the counsel
table. Direct your answers to the person asking the questions.
Remember at all times that the court reporter has to take down
your words.
C. YOUR RESPONSES
How to answer the questions
of the judge and attorneys.
Your answers are the principal part of the trial on which the
judge or jury base their verdict. The aim of the direct examination
is to bring out clear-cut evidence from your presentation. Your answers
must be comprehensive but always consisting of specific, objective facts
within your own direct observation. Therefore, your responses must fol-
low closely the questions of your attorney and be void of extraneous ma-
terial not directly bearing on the case. With a calm and courteous de-
livery of the facts you possess, the cross-questioning of the opposing
attorney will not weaken or upset your testimony but rather strengthen
it through the opportunity to re-state parts of it. Here are a few tips
on how to answer 'effectively.
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.1. How to receive the questions.
Be very attentive at all times while on the witness stand. You must
focus on the words as well as the meanings of the questions, and es-
tablish their clarity in your mind. If a question is obscure, it
should not be answered until clarified. The record of your testimony
should reflect concise statements clearly related to each question
directly bearing on the case. Your alertness in appraising the ques-
tions will promote such results.
a. Listen. To be sure you understand the question, .listen carefully.
Be sure you know what the person raising the question wants.
Listen to the question in its entirety, and understand it thor-
oughly.
b. Don't answer until the meaning of the question is clear. Before
giving your answer, be sure you have the question clearly in
your mind. If it is poorly phrased, be certain you know what is
being sought. Don't answer any question you don't understand.
c. Ask to repeat or clarify. If you do not understand the meaning
of a question, say so. Ask to have it repeated or road from
the record of the court reporter. If in doubt of the meaning
of the question, ask for a clarification. Do net try to outguess
the defense attorney; if his question carries a double meaning,
ask specifically what he wants.
d. Double questions.- Don't confuse ycur testimony by phrasing a
single compound answer to both parts of a double question. If
you get a double question, answer both parts separately.
e. Hypothetical questions. Beware of hypothetical questions. Do
not hasten to testify to such questions, nor to be unnecessarily
drawn into theoretical discussions beyond your facts and observa-
tions.
2. How to give tho right kind of answers.
It is important that your testimony be void of elements of vagueness
and be built from direct and objective statements. Your comprehen-
sive testimony should be the sum of simple and specific facts.
a. Be direct. State your answer as simply as possible to get the
desired meaning across. Be responsive to the question. If you
know the answer, give it directly and clearly. Talk to the point,
and don't digress. Don't beat around the bush or hedge with your
answers. If you do, later cross-examination will attack and may
weaken your testimony.
179
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b. Be brief. Boil down your answer to be brief but complete. Say
it briefly, but be sure you actually say it.
c. Be objective. Testify to facts and physical evidence derived
from your own observation. State only what you saw, said, heard,
and did. In a case involving a contract, do not testify to con-
clusions, such as "he agreed," or "it was understood." Be ac-
curate as to what you perceived through your own senses beyond
any doubt, and do not report what probably happened.
d. Don't report hearsay. State only facts that you personally know
to be true. Don't quote others as having the same opinion. Re-
' late conversations exactly as you remember them, using the exact
words and phrases spoken. Avoid hearsay, since it is not admis-
sible as evidence.
e. Be cautious about yes and no questions. If you can answer a
question by yes or no, do so. However, if a yes or no answer
needs qualifying, say so. If an attorney insists on a yes or
no, either tell him you cannot answer in this manner or answer
him and then ask the judge if you can qualify the yes or no.
f. Don't say "he" did. Say "Mr. Jones" did. Use the names of the
persons to whom you refer rather than the personal pronouns,
trhe," "she," or "they."
g. Answer completely., Be as explicit as time and conditions allow.
Be precise and complete with your answers.
3. How to keep within the limits of what you really know.
Answer only the questions you are qualified to answer. Give only
facts you possess. Don't be afraid to divulge the limits of your
knowledge or your mistakes. Here arc a few specific points along
this line.
a. Say "I don?t know," if you really, don't. When you arc sure you
don't know the correct answer, say "I don't know." Do not be
afraid to say this in a clear and confident manner. "I don't
know" does not mean ignorance on your part, only that you did
not observe the facts directly.
b. Say "-I don't remember" when you are not positive that you don't
know^Keep in mind that your saying "I don't know" closes cx-
amination on a point. Do not hesitate to say "I don't remember"
if such is actually the case. The attorney may need to ask about
things you have forgotten. Don't say "That is all:" rather say
"That is all I can recollect." This will not close further in-
quiry into the subject.
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c. Qualify or lirrit your answers. If the positive and accurate
answer is not- known or cannot be substantiated, you must qualify
your responses. Avoid positive answers when a lot of unsubstan-
tiated derail is involved. Don't bluff an answer. It will get
you involved.
d. Admit your mistakes. If you make a mistake and it is called to
your attention, admit it.
4. Hew to cooperate with your attorney.
Concentrate on the attorney's trend of thought and reasoning in posing
the questions. Wait for the complete question before you formulate
your answer. A simple mistake in your testimony can lose the case.
The pause necessary for framing your answer will also serve to allow
time for raising objections according to court procedure. You must
follow the line of questioning and avoid causing digressions.
a. Addrnss your responses correctly. In a court trial, direct your
answers to the judge. In a trial by jury, direct your answers
to the attorney and to the jury.
b. Respond slowly. Take all the time you need to assimilate the
question and to give the proper response. Think well before
answering, and do not speak hastily. Organize your thoughts.
Knew exactly what you want to say, and how to say it. There is
no great rush, but give your answer without hesitancy as soon
as you reasonably .can.
c. Allow tiT.e for objections. Objections are to keep improper
evidence out of the case. Attorneys object when rules are
violated, or when they think so. Before answering questions,
allow time for objections. When the opposing lawyer is examing
you, pause long enough to give the Deputy District Attorney time
to interpose an objection. If an objection is made, withhold
further testimony until the judge sustains or overrules the ob-
jection.
d. Don't volunteer information. Merely answer the question.
If
you don't know the answer, say so, but don't go off on tangents.
Under cross-examination the questions will only relate to state-
ments given under direct examination. Don't be talkative and
open up other areas for cross-examination.
5. How to deal with the opposing attorney.
Remember that the defense attorney, as a part of his job, must look
for loopholes and contradictions in your testimony, and for opportu-
nities to embarrass you. Therefore, you must be courteous and exercise
181
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self-control during cross-questioning to avoid all emotional pitfalls.
With a calm mind you are best able to remember the facts to which you
testified earlier. The following points will help you deal with the
opposing attorney.
a. Treat both attorneys alike. Answer the defense attorney in the
same courteous tone used to answer the prosecutor. Show the same
respectful and unbiased attitude.
b. Don't allow yourself to be irritated or angered. Be as unemotional
as possible. Stay with the facts which you know, and don't become
confused if the opposition tries unfairly to accuse you and upset
you. Beware of becoming angry or losing your temper.
c. Don't be led into an argument. Remain calm and do not become ar-
gumentative.
d. Don't be misled or trapped. Be prepared for attempts by the de-
fense attorney to distort your statements or lead you into giving
conflicting testimony.
e. Don't be clever. Be sincere and maintain a businesslike attitude
at all tiT.es. Refrain from flippant, clever or sarcastic answers.
f. DonTt be timid. Speak with a calm air of confidence, and don't
be timid as if you-were not sure of your testimony.
D. PRECISION AND ACCURACY
How to be exact and factual
when you take the stand.
In the presentation of evidence to the court as a witness or in-
vestigator, you will be interested in the following suggestions for keep-
ing your testimony precise and accurate.
1. How to assure accuracy on the stand by things you do beforehand. Here
are some ideas on preparation before you present your case in court
which will help you to testify more accurately.
a. Know your facts well. ' Before the trial you should be familiar
with all phases of the case. Know all the facts you may be
called upon to give. You should be sure of all the proper dates,
the addresses, the times of day or night, etc., relating to the
crime, your investigation, and your conversations. Knowing the
details of the case well will insure accuracy in your answers.
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b. Review your testimony. Study your case thoroughly before court
by reviewing ail your notes and facts. Make a list of the ques-
tions you nay be asked, and the best answers. Over-learn impor-
tant facts by reviewing your reports so that you will be able to
testify without hesitation. Review any conversations you have
had prior to taking the stand.
c. Get help from the District Attorney and your partner in the pre-
paration of the case. Go over the case thoroughly with your
partner in every detail several times. Especially do this the
• night before the case comes to trial. Prepare your testimony
with the help of the District Attorney.
d. Don't discuss the case with a witness who has preceded you on
the stand. Don't discuss the case with anyone who has testified
until you yourself have testified, to prevent coloring your testi-
mony.
Hew to improve the accuracy of your answers while on the stand.
Your choice of words is a very important part of your giving your
testimony properly. Here are some ideas from men who have had ex-
perience in testifying.
a. Don't lie. If you stick to the truth and testify only to what
you know to be true, you have nothing to fear. Cross-examina-
tion can't cross you up, and you won't be caught out on a limb.
A witness caught in a lie at any stage of the proceedings will
be condemned as unworthy of belief by the judge and the jury,
and nost if not all of his testimony will be discredited.
b. Don't exaggerate. State the facts only as they exist. Don't
attempt to color or exaggerate their significance.
c. Don't guess. Never guess at any of your answers' nor at what
an attorney wanes for an answer. Tell only what you know.
d. Qualify yes or no answers. Ask permission of the court to
qualify a yes or no answer and thoroughly explain it, if the
answer warrants it.
e. Select descriptive terms. When giving your opinion or testi-
mony, try to select words that arc especially descriptive. For
example, if a mciu was nervous, say "His hands shook," "His speech
was stumbling," "His forehead was covered with perspiration," etc,
f. Give testimony of the substance of a conversation. You arc not
expectdd to remember the exact words that were said, but you are
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expected to remember the substance of a conversation. You may
be able to memorize conversations of this sort, but you
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b. Don't be influenced by other witnesses. Don't be influenced by
ths tsotirnony aiv«ri on the stetnd ny another witness.
v;hat you know.
c. Don't let attorneys put words into your mouth. Allow enough time
to think over the question before you answer it. Don't allow
either attorney to put into your mouth words you don't intend to
say.
d. Avoid terms that are derogatory. Do not refer to the defendant
in a derogatory manner. Avoid references to race, color, etc.
Try not to color your report, avoiding loaded words and phrases.
Word your answers so as not to offend anyone whenever possible.
Show complete courtesy to the defense counsel, by addressing him
by his name, preceded by "Mister."
e. Don't omit the whole truth. Even though some of the facts may
put the defendant in a favorable light, give your testimony in
its entirety. The facts will speak for themselves. Include all
the points, both major and minor, that will indicate that you
gave the case a thorough investigation.
. Hew to SEEM fair.
Here are some ideas on how to handle yourself so that you will appear
ccr.pietely square and just in your testimony.
a. Don't SEEM prejudiced. You are relating the facts. You are not
the judge or the jury. By your answers you can convince the
court that you have treated and are treating the defendant fairly.
Let the facts speak for themselves, to lead the judge or jury to
their own conclusions as to guilt or innocence.
b. Admit that you talked about the case to others. "Did you talk
to anyone else" is used in cross-examination to frighten you
when your credability cannot be attacked any other way. Don't
be afraid to admit that you have talked over the case with
friends, relatives, or attorneys, since this is normal and usual
behavior.
c. Treat both the defense and prosecuting attorneys alike. Be care-
ful not to let your manner or tone change in your response to
the questions of the defense counsel from your manner in answering
the District Attorney. Don't show any antagonism or resentment.
Give no more weight to the prosecution answers than to the defense
answers.
c. Don't Defend yourself against personal attacks. Cross-exami-
nation is to see if you are honestly mistaken in your testimony.
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Try to understand that both sides arc trying to win the case.
Personal attacks are a tool used for this purpose. If you are
absolutely fair and unprejudiced, you need not worry about the
opposing counsel's trying to discredit your testimony. Don't
argue with him. The judge and your attorney will protect you
from insult.
e. Don't try to win the audience. Don't worry about the effect of
your answers on the audience during cross-examination.
f. Don't begrudge the defense a favorable point. The inclusion in
your testimony of minor points that may be slightly biased for
the defense will strengchcn the court's faith in your testimony,
even chough you may feel that it slightly hinders your case. You
might mention that the defendant was "cooperative," but stress
the details of che actual crime. Acknowledge readily any infor-
mation you may have which appears to help the defendant. Don't
hesitate to answer. Never insist on the truth of what is in-
correct.
g. Don't appear irked by setbacks in your case. Keep animosity
from your mind. You are regarded as an expert, so do not become
an amateur by bickering about unimportant details. Do not be-
come surly, if a witness changes his story from the original.
h. Don't try tc give your friends an advantage. If you arc a friendly
witness, you will hurt your friend's case by a display of partisan-
ship.
F. OPINION EVIDENCE
Hew to testify on matters
other than facts;
Since much of your evidence may be based on matters of opinion,
you will be interested in some ideas given by experienced arson in-
vestigators on how to help make your case a valid one in the presenta-
tion of your opinions.
1. How to formulate your opinions about the case so they will stand up
in court.
Here are some suggestions on how to substantiate your testimony by
presenting your opinions properly.
a. Base each opinion on facts. Tell the court the facts that cause
you to form a certain opinion. Use the facts as presented in
court to reinforce your testimony. An opinion, if absolutely
necessary, can be submitted indirectly by describing every fact-
ual thipg in connection with it.
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b. Clarify ±rt your own mind the point at which the facts end and
your opirion begins. Do not add short opinions or explanations
Lu L'hc faces. If you are giving your opinion, say so. Bo care-
ful tc keep what is opinion separate from what is fact. Give
only facts as fact.
2. How to qualify yourself as an expert, so that your opinion will carry
'.veight.
A few ideas from arson men will assist you to substantiate your testi-
mony by qualifying yourself as an expert in court..
a. State that you arc an expert. Your opinion should only be given
in court when you are called upon and qualified as an expert
witness. With the aid of the trial deputy's questions, classify
yourself as an expert in bookmaking, narcotics officer, etc.
b. Give your experience, qualifications, or proofs. When classify-
ing yourself as an expert, give accurate statements as to your
background, experience, and preparation, justifying the value
of ycur opinion. Your opinion as an expert witness must be en-
tered into the records of the preliminary hearing. If there is
an expert witness who is more qualified than you to answer a
certain question, make this fact known.
3. Kow to defend your opinion on other grounds than your recognize
expertness.
You won't have to worry much about defending your opinions if they
are based on sound facts, rather than on hypothetical ideas. Here
are some ways to help prepare yourself to substantiate them.
a. Give your opinion only when asked. The proper time to testify
to your opinion is when you are specifically asked for it on
the points pertaining to the offense.
b. Stand by your opinion. Don't be afraid or ashamed of your con-
sidered opinion. Stick with it. Speak confidently and with
assurance. Your opinion is based on the know-how of experience,
and is not a figment of your imagination.
c. Give the facts on which your opinion is based.
d. Give the reasoning by which you arrived at the opinion in work-
ing from the facts.
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G, SUMMARY
Some good advice from your friend,
the prosecuting attorr.p.y.
Here in .a nutshell is the evidence which was prepared for wit-
nesses by Howard Hurd, Deputy District Attorney in charge of the Com-
plaint Division, County of Los Angeles. It is his summary of his own
paper on "Instructions to Witnesses," and it is a fitting summary for
this article also.
Understand the .question.
Be responsive.
Be courteous and honorable.
Be at ease.
Use the names of t'..j persons to whom you refer.
Take sufficient time to answer the question.
Be honest and fair at all times.
Be truthful.
Be natural.
Fear nothing.
Answer slowly (Take your time).
DON'T:
" Be too talkative.
" Say "That is all;" but say "That is all I remember." .
" Be timid or fearful.
" Argue,
" Be clever.
" Be important.
" Guess .
" Lose your temper.
" Hurt your friend's case by being partisan.
It is understood that ordinarily you cannot remember the exact
words used.
The judge and lawyers are gentlemen, and the judge especially
will protect you from insult.
Your answers to the opposing attorney should be given in the same
manner, tone-, and attitude as your answers to my questions.
Remember that the law presumes you to be truthful.
Again I say, "Get into the frame of mind that this is a sociable,
neighborly gathering, and you will make an ideal witness."
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D-5
SUGGESTIONS FOR WITNESSES
T. H. Pruitt
Office of General Counsel
U. S. Environme.ntal Protection Agency
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SUGGESTIONS FOR WITNESSES
The following suggestions are made to you as a prospective
witness in order to lessen the fears and suspicions which almost
everyone has when he first testifies either before a board,
commission, hearing officer, or in court. Even those who have
testified previously encounter a certain anxiety when they hear
they will be called for a repeat performance. When you are pro-
perly prepared, both with regard to the subject matter of your
testimony and your conduct on the witness stand, you should not
have any fear about testifying. You will be thouroughly prepared
as to the subject matter of your testimony. You will also be
instructed with regard to your conduct as a witness. However, in
order to assist in the latter instructions, the following sugges-
tions are given with a firm request that you read what follows
several times before you actually sit in the witness chair.
You undoubtedly will be required to take an oath as a
witness to tell nothing but the truth. The important point to
remember is 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 you are telling all the
facts in a truthful way, and the other is in a confident, straight-
forward manner, which inspires faith in what you are saying. It
is most important that you do your best to testify in the latter-
manner. To assist you in testifying in such a manner, a list of
time-proven hints and aids which, if followed, will make your
testimony much more effective are listed below.
General Instructions:
(1) If you are to be a witness in a case involving
testimony concerning the appearance of an object, place, con-
dition, etc., try to refresh your recollection by again inspect-
ing the object, place or condition, etc., before the hearing or
trial. While making such inspection, 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
familairized yourself with the features of your testimony that
will be given.
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(2) Before you testify, visit a cout 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.
(3) A good witness listens to the question and then answers
it calmly and directly in a sincere manner. He knows the facts and
can communicate them. He testifies the same way on cross-examination
as he does on direct examination.
(4) Wear neat, clean clothes when you are to testify.
Dress conservatively.
(5) Do not chew gum while testifying or taking an oath.
Speak clearly and do not mumble. Of course, you will not be per-
mitted to smoke while testifying.
Direct Examination:
In a discussion on administrative procedures, E. Barrett
Prettyman, Retired Chief Judge, U.S. Court of Appeals for the
District of Columbia, gave the following advice:
"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 findings from what he reads...
Confused, discursive, incomplete statements
of fact do not yield satisfactory findings."
(6) Stand upright when taking the oath. Pay attention and
say "I do" clearly. Do not slouch in the witness chair.
(7) Do not memorize what you are going to say as a witness.
If you have prepared such answers to possible questions, by all
means do not memorize 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.
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(8) Be serious at all times. Avoid laughing and talk-ing
about the case in the halls, restrooms or any place in the build-
ing where the hearing or trial is being held. . •
(9) While testifying, talk to the board member, 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 certain 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 testi-
mony 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 context 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 to a question, say so. If you do not know the
answer but have an-opinion or belief on the subject
based on information, say exactly that and let the
hearing officer decide whether you shall or shall not
give such information as you have. If a "yes or no"
answer to a qestion is demanded but you think that a
qualification should be made to any such answer, give
the "yes or no" and at once request permission to
explain your answer. Don't 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
extensive cross esamination is to be brief, absolutely
accurate, and entirely calm."
(10) The hearing officer, board member or jury only wants
the facts; not hearsay, nor your conclusions, nor opinions. You
usually cannot testify about what someone else has told you.
(11) Be polite always, even to the other attorney.
(12) 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.
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(13) Do not exaggerate or embroider your testimony.
(14) 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.
(15) Do not nod your head for a "yes" or "no" answer.
Speak out clearly. The reporter must hear an answer to record it.
(16) 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.
(17) Listen carefully to the questions asked of you. No
matter how nice the other attorney may seem on cross-examination,
he may be trying to 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 of jury would think that you are making up the answers.
(18) 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 "I know what he is after but he hasn't asked
for it." Answer only what is asked.
(19) Explain your answers if necessary. This is better
than a simple "yes or no". Give an answer in your own words.
If a question cannot be truthfully answered with a "yes or no"
you have a right to explain the answer.
(20) Answer directly and simply the question asked you
and then stop. Never volunteer information.
(21) If by chance your answer was wrong, correct it
immediately; if your answer was not clear, clarify it immediately.
(22) 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 memory.
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(23) Give positive, definite answers when at all possible.
Avoid saying "I think", "I believe", "in my opinion". 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, but do not
let the cross-examiner place you in the trap of answering question
after question with "I don't know".
(24) Do not act nervous. Avoid mannerisms which will make
it appear that you are scared, or not telling the truth or all that
you know.
(25) 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) nervousness, (d) anger, (e) careless answers,
(f) willingness 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. Do not let this happen.
(26) 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.
(27) Do 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.
(28) Do not hedge or argue with the opposing attorney.
(29) There are several questions which are know as
"trick questions". 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:
(a) "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 infer that you were told what to say.
The best thing to say is that you have talked to .-ir. ,
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,
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(b) "Are you getting paid to testify in this appeal?"
The lawyer asking this hopes your answer will be "yes," thereby
inferring 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." A witness
should never be paid a contingency fee as it indicates strongly
that since his compensation depends upon the results, he will be
inclined to overstate the case.
Prepared by:
Legal Support Division
Environmental Protection Agency
Room 809
Cystal Mall #2
Washington, D.C. 20460
Telephone Area Code 703/557-7330
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THE CHAIN OF CUSTODY RULE AND THE
COLLECTION AND TRANSMISSION OF SAMPLES
Problem
In order to introduce in evidence any tests of water samples
where the sample has passed through several hands, you must account
for the continuous custody of the sample from the time taken to the
time of analysis, and you must also show that the sample was pro-
perly preserved or cared for Until analysis.
Discussion
When you testify regarding your role in either sampling or •
testing, be prepared for extensive cross examination by the dis-
charger's attorney attempting to show that there has been a "break"
in the chain of custody of the sample taken. That is, the attorney
will attempt to show that (a) the sample has been confused with a
sample from another source, (b) the sample was contanimated after
the sampling process and before testing, or (c) we cannot account
for the whereabouts of the sample for a period of time before
testing, thus the presence of pollution may be due to some unspeci-
fied occurrence while the sample was out of our custody. Most of
the "chain of evidence" problems can be avoided by following these
four recommendations:
1. To the maximum extent possible, make sure as few people
as possible handle the sample. In order to prove the "chain of
custody," the United States Attorney will have to call every person
who had possession of the sample from the time it was taken until
testing was completed, and a lenghty parade of witnesses to the
stand not only gives the discharger's attorney the maximum number
of targets for cross examination, but also creates a substantial
preparation problem for the government's attorney.
2. Attach a tag to the sample container containing spaces
on which the following information can be recorded.
(a) Name of person having custody of sample,
(b) Hour and date when sample is received,
(c) How sample is delivered (mail, hand delivered, etc.),
(d) Person to whom sample forwarded,
(e) Date, time and method of forwarding.
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This information should be recorded by each person who handles
the sample, so that one can examine the transfer tag and follow the
progress of the sample from collection to testing. The following
may be used as a guide in preparing transfer tags, if printed ones
are not available.
NAME
HOUR & DATE RECEIVED
DELIVERY METHOD
DELIVERED TO
DELIVERED ON
NAME
HOUR & DATE RECEIVED
DELIVERY METHOD
DELIVERED TO
DELIVERED ON
NAME
HOUR & DATE RECEIVED
DELIVERY METHOD ~
DELIVERED TO
DELIVERED ON
NAME
HOUR & DATE RECEIVED
DELIVERY METHOD
DELIVERED TO
DELIVERED ON
3. The transfer tag should be firmly attached to the sample
jar immediately upon obtaining the sample, and should not be removed
at any time. If possible, use a metal seal or heavy clip to secure
the tag to the container to eliminate any claim that tags could have
been mistakenly exchanged after sampling.
4. After filling, the sample container should be sealed with
a gummed lable or other device which prevents the opening of the
container without breaking the seal. By this method the chemist
can be certain that the sample has not been tampered with prior to
delivery to him.
Examples
1. "A", an EPA employee, obtains a sample of the Jones Company's
effluent on January 6, 1971. He gives it to Smith who asks his
newspaper boy to deliver it to the local EPA lab for testing. Although
the lab technician testified at trial that he found a sample on his
doorstep on the following day marked "Jones Company effluent - 1/6/711'.
and performed his tests properly, the judge would probably refuse to
accept the sample in evidence on the basis that EPA could not account
for its continuous custody prior to testing, with the result that .»
the case would be dismissed if the sample was the only proof that the
Company was discharging "refuse".
2. The criminal case against the Smith Company came to trial
four years after the samples were taken due to a backlog on the local
court's docket. As a result of reviewing the information on the transfer
tag attached to the sample, all EPA personnel involved in the sampling
and the handling of the sample were able to refresh their memories as to
the steps they had followed four years earlier and the sample was ad-
mitted into evidence and a conviction obtained.
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THE CHAIN OF CUSTODY RULE AND
THE LABORATORY ANALYSIS OF SAMPLES
Problem
As noted in section III, you must account for the continuous
care and custody of all samples from the time of collection to the
time of analysis. The following recommended procedures are intended. -
to ensure that the attorney for the discharger cannot successfully
claim that there has been a "break" in the chain of custody once the
sample has reached the laboratory.
Discussion
Each permanent laboratory should designate one full time
employee as a "sample custodian." Since this individual will be
called as a witness in all court cases in which samples analyzed by
the lab are offered in evidence, he should be an effective speaker
and the sort of person who will not easily be confused or upset by
cross-examination. In addition to appointing a custodian, the
laboratory should set aside a "sample room." This should be a clean,
dry, isolated room which contains refrigeration facilities and is
capable of being securely locked from the outside. The custodian
is responsible for maintaining a bound log book in which he will
record the following information with respect to each sample
received:
1. Name of person receiving the sample
2. Data received
3. Source of sample (Company, municipality, etc.)
4. Sample number from tag
5. How transmitted (mail, courier, etc.)
6. Accession number assigned by laboratory
The following procedures should be observed in order to
satisfy the "chain of custody" requirements within the lab:
1. All samples should be handled by the minimum possible
number of persons.
2. All incoming samples shall be received only by the
custodian, who will indicate receipt of the sample on the transfer
tag attached to the container.
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3. Immediately upon receipt the custodian will affix an
accession number to the attached tag, record the required information
in the log book and place the sample in the sample room, which -will
be locked at all times except when samples are removed or replaced
by the custodian. To the maximum extent possible, only the custodian
should be permitted in the sample room.
4. The custodian will ensure that heat-sensitive or light-
sensitive samples, or other sample materials having unusual physical
characteristics or requiring special handling are properly stored
and maintained.
5. Only the custodian will distribute samples to personnel who .
are to perform tests. The custodian will ensure that the laboratory
personnel complete the required receipt information on the tag prior
to surrendering custody of the sample.
6. Laboratory personnel should examine the seal on the
container prior to opening and should be prepared to testify that
their examination of the container indicated that it had not been
opened or otherwise tampered with.
7. The discharger's attorney will probably be able to
establish that Standard Methods is the water analysis "Bible" though
there are admittely other authoritative texts. If laboratory
personnel vary the procedure set in Standard Methods, they should
be prepared to justify their decision during cross-examination.
8. Laboratory personnel are responsible for the care and
custody of the sample once it is handed over to them and should be
prepared to testify that the sample was in their possession and
view or securely locked up at all times from the moment it was
received from the custodian until the tests were run.
9. Once the sample testing is completed, the unused portion
of the sample together with all identifying tags should be returned
to the custodian who will complete the receipt tag and retain the
tagged sample in the sample room until it is required for trial.
10. The person conducting laboratory tests should prepare
complete and detailed notes describing the sample (by origin and
sample identification number), the procedures performed and the
results of the testing. The notes should be typed up, signed and
dated by the person performing the tests and retained as a per-
manent record in the laboratory. In the event that the person who
performed the tests is not available as a witness at time of trial,
the government may be able to introduce the notes in evidence under
the Federal Business Records Act.
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11. Samples, tags and laboratory records of tests may be
destroyed only upon the order of the laboratory director, who will
first confer with the regional enforcement officer to make certain
that the information and samples are no longer required.
Examples
1. "J", a chemist in an EPA laboratory, completed testing
a sample taken from the Jones Company's outfall. Knowing that no
further tests would be run on the sample, he threw out the two cards
attached to the neck of the sample bottle and returned the bottle to
the sample room with a note stating "Remainder of Jones Company
sample. Testing completed 8-6-71." Since the custodian was not in .
the unlocked room, the error was not discovered until the case
was ready for trial 1 1/2 years later, when the government attorney
was forced to spend two weeks attempting to determine the names of
the various people who had handled the sample, since the transfer
tag containing this information was not available.
2. "J", and EPA chemist, received a sample from the custodian
at 4:45 on Friday afternoon. He left the sample on lab table during
the weekend, but completed his testing promptly on Monday and found
high concentrations of cyanide. At trial, the discharger's attorney
carefully examined each witness who had custody of the sample and
discovered the above facts. During a lengthy (and unpleasant) cross-
examination "J" was forced to admit that: (a) "Someone" could have
added cyanide or switched sample bags on the bottle during the
weekend; (b) he could not testify "with absolute certainty" that the
bottle he tested on Monday was the same one he left on Friday since
"all sample containers look pretty much the same," though the infor-
mation on the tag was identical; (c) "J" knew that he should have
returned the bottle to the custodian before leaving the lab;
(d) cleaning personnel had access to the lab over the weekend, and
(e) he really didn't know what, if anything, had happened to the
sample over the 48 hours it sat unattended on the lab table.
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THE FIFTH AMENDMENT RIGHT
AGAINST SELF INCRIMINATION
Problem
The Fifth Amendment of the United States Consitution provides
in part that no person shall be compelled in any criminal case to be a
witness against himself. This section discusses the scope of the
protection afforded by the Fifth Amendment as applied to discussions.
and interviews with the officers or employees of a discharger.
Discussion
The 1889 Refuse Act is a criminal statute providing for fines
up to $2500.00 and prison sentences of up to one year. Therefore,
whenever you are involved in the investigation of a Refuse Act
criminal case, the possibility of a Fifth Amendment problem is always
present. However, the right against self incrimination may not be
claimed by a corporation and is not available in civil cases. Therefore
the followed suggested procedure is limited solely to the investigation
of criminal cases against individuals, proprietorships (an unincorpo-
rated business owned by one man) or partnerships (a business owned
by two or more men which is not incorporated). (See the attached
"Guidelines," section 2.e., for the description of a typical criminal
case under the Refuse Act.)
If you find that you are involved in the investigation of a
Refuse Act criminal case against either a proprietorship, partnership
or an individual person, do not attempt to discuss any aspect of the
case with the individual or any employee of the proprietorship or
partnership unless:
(a) the regional enforcement officer or a number of his
staff is present, or
(b) you have discussed the matter in advance with the regional
enforcement officer and have received instructions as to scope and
content of the interview. In all other situations, you need not be
concerned about a "Fifth Amendment" problem, and may conduct sampling,
etc., in the manner described in other portions of the manual.
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THE FOURTH AMENDMENT PROTECTION AGAINST
UNREASONABLE SEARCHES AND SEIZURES
Problem
The Fourth Amendment of the United States Constitution
provides that the people should be secure in their persons, houses,
papers and effects from "unreasonable searches and seizures." In
the event that you obtain samples or other evidence of a violation
by means of an "unreasonable" search, this evidence cannot be
introduced at trial.
Discussion
Any time that you enter private property without the consent
of the owner in order to gather any evidence of a violation, you run
the risk that the discharger may claim that information obtained in
this manner was the result of an "unreasonable search and seizure"
and cannot be admitted in evidence against him. Unlike the Fith
Amendment right against self incrimination, both individuals and
corporations may claim the benefit of the Fourth Amendment in either
a civil or a criminal case. Therefore, if at any time you find it
necessary to enter a discharger's plant to inspect the facility,
examine records, cross onto his property to obtain a sample, or in
any way enter privately owned property during the course of an
investigation, you must obtain the consent of the property owner or
the person in charge. To obtain a valid consent follow these five
steps:
1. Locate the owner, plant manager or otfyer responsible
plant official who states to your satisfaction that he has authority
to allow you to enter the premises.
2. Tell this person that you are from EPA and show him
your credentials.
3. Explain that you wish to obtain a sample from his coking
plant, inspect his records, locate an outfall, etc.
4. Request that he give his consent on behalf of the Company
for you to take the sample, inspect, etc.
To ensure that there is no misunderstanding, at least one other
EPA employee should be present when the above facts are explained and
the consent obtained. For purposes of future testimony in court, each
of you should prepare and retain notes covering the above five points,
and also including:
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1. The name and.title of the person from whom the consent
was obtained.
2. The date, time and place when the consent was obtained.
The law requires that any consent given must be "informed" and
"voluntary." This means that any consent obtained by threats,
misleading information, or other questionable methods may not be
admissible in evidence. Therefore, be frank and open with the Company's
representative as to the reason for your visit and attempt to answer
his questions fully. In the event that you do not obtain a consent
after you have discussed the matter, leave the premises immediately
and contact your regional enforcement officer and ask if he will
assist you in obtaining a search warrant.
Examples
1. EPA personnel called on "X" plant requesting permission
to enter and sample the Company's effluent which was discharged rom
an outfall located on Company property. They talked with Mr. Johnson
who identified himself as a custodian and said "none of the big bosses
are around, but you can look if you want to." Since Mr. Johnson, as
a custodian, may be merely a cleaning man who has no authority to
consent to a search, the EPA personnel should either (a) make certain
that he does, in fact, have the authority and, if not (b) find someone
who does and attempt to obtain his consent.
2. On August 30, 1971, "J", an EPA employee, was sampling on
the Chlorine River in a rowboat when he noticed an outfall pipe on
the shore about five feet from the edge of the water. "J" climbed
a low fence which had a sign on it "Property of Jones Company",
filled a sample container and returned to the boat. He was only on
Jones property for 30 seconds, did not disturb anything and spoke
to no one. On returning to the office, "J" did not mention to his
supervisor how he had obtained the sample. Testing of the sample
disclosed high concentrations of phenol, cyanide and ammonia and,
since the Jones Company had failed to apply for a Refuse Act permit,
a civil suit was commended to enjoin the Company from further dis-
charges. In the process of preparing for trial, the Company's
attorney took "J's" deposition (statement under oath), discovered
the above facts and immediately filed a Motion to Supress the sampling
results on the basis that the evidence was obtained by means of an
unreasonable search and seizure in violation of the Fourth Amendment
of the U.S. Constitution. Although the judge has not yet ruled on
:04
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the Motion, the case has been delayed for two months while the attorneys
filed briefs, and the Jones Company has continued to discharge. The
United States Attorney has privately indicated to "J's" supervisor
that he expects to lose the pending Motion and if this occurs, -it will
be necessary to obtain new samples and begin the case again.
Mr. Thomas H. Truitt
Legal Support Division
Office for General Counsel
Environmental Protection Agency
Room 809, Crystal Mall #2
Washington, B.C. 20460
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D-6
APPEARANCE AS WITNESS
U. S. Environmental Protection Agency
Pesticides Inspection Manual
June 1975
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APPEARANCE AS WITNESS
A OBJECTIVE
To make the employee a better witness in the event he is called
upon to testify in civil and criminal proceedings pursuant to the
Federal Insecticide, Fungicide, and Rodenticide Act, as amended.
B PERSONAL APPEARANCE
A well groomed, neatly attired witness makes a more favorable
impression in the courtroom.
C GENERAL CONDUCT IN COURTROOM AND VICINITY
See Exhibit 22A, A Guide to Deportment in the Courtroom for more
detailed information regarding appearance as a witness.
1. Your conduct should reflect the solemn nature of the judicial
, proceedings.
2. Don't discuss the case with the defendant or his attorney.
3. Do not whisper or talk to another person, or cause any
disturbances in the courtroom.
4. Do not talk to the jurors or discuss the case within their hearing.
5. Do not sit within the enclosure unless instructed to do so.
6. Do not bring magazines or newspapers into the courtroom.
7. Show no incredulity or surprise at any testimony given from the
witness stand or at statements made by the defense attorney.
8. Be on time when court opens and be available immediately when
called to testify.
D PROPER TECHNIQUE ON THE WITNESS STAND
1. When called to the witness stand, unless previously sworn,
go directly to the desk of the clerk of the court to be sworn.
2. Take the oath in a solemn manner. Then proceed to the
witness chair. If you have a long or difficult name, give a
card or paper with the correct spelling to the court steno-
grapher .
3. Assume and maintain proper posture, bearing and demeanor.
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Appearance As Witness
a. Sit erectly, but don't appear stiff or tense.
b. Always be courteous, say "Yes Sir/Mam" and "No Sir/
Mam."
c. Speak in a clear, distinct and well modulated voice.
d. Look at and speak distinctly to the jury. Speak plainly
enough so the farthest juror can hear you.
e. Do not speak to the judge unless he asks you a question.
f. Be factual.
g. Do not show hostility toward the defendant.
h. Do not use idioms or language peculiar to your profession.
i. Be well poised and under self control.
j. In your effort to appear impartial and unbiased, do not
become listless or "dead pan. " Be natural, candid, frank,
and "alive."
k. Do not appear impatient or overly anxious to testify.
1. Do not have anything in your mouth. This includes gum,
toothpicki tobacco, candy or food.
m. Keep your hands away from your mouth, face and head.
n. Attempt to minimize nervous tendencies, such as, arranging
clothes, tie, etc.
E THE DIRECT EXAMINATION
The following guidelines are applicable to both direct and re-direct
examination.
1. Laying the Foundation For Your Testimony
a. Questions pertaining to your identification, occupation and
qualifications are usually asked first.
b. The next questions are usually asked to indicate the scope and
relevancy of your testimony.
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Appearance As Witness
2. Your Testimony
a. Always tell the truth.
b. Answer only the question asked. Do not volunteer additional
information.
c. Do not be afraid to say, "I don't know, " if indeed you do not
know the answer. This answer should never be used to
be evasive.
d. Do not give personal opinions.
e. Do not be hesitant about using your contemporaneous notes
to refresh your memory and you should do so in cases of
complicated figures, dates, etc.
f. If you do refresh your memory from notes, the defense has
the right to examine them and make them an exhibit in the.
case.
g. If the defense objects to a question, do not try to get in an>>
answer before the judge has ruled on the objection.
F CROSS EXAMINATION
The following guidelines are applicable to both cross and re-cross
examination.
1. A. through g. under 22E2. are equally important when testifying
under cross examination.
2. Under cross examination you may be subjected to more vigorous
questioning than you were under direct examination.
3. The defense attorney may attempt to intimidate you by attacking;
your veracity and integrity or by uncomplimentary references ta
your qualifications or length of service or by emphasizing errors1
you have made. If this occurs, you should remain calm and
answer the question asked unless an objection is raised by the
attorney and sustained by the the judge.
4. If the cross examiner attempts to confuse you with rapid questiotis''
you should:
a. Answer him deliberately and at a comfortable pace.,
b. Ask him to repeat or restate any unclear or confusing question.
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Appearance As Witness
5. Do not attempt to be argumentative with the cross-examiner
if he interrupts your testimony. The U. S. or EPA Attorney
should make an objection to the judge if the interruption is
not warranted.
6. He may ask a double or two pronged question. Ask him to
restate it or carefully answer each part separately.
7. Beware of questions to which he demands a "Yes" or "No"
answer if the question cannot be properly answered with a
yes or no9
8.
answering the question.
9. If you make an error while testifying, correct it at the first
opportunity. If you discover the error after you have com-
pleted your testimony and have been dismissed, you should
discuss the matter with the U0 S. Attorney. If you are caught
in an error, admit it and explain it if possible.
G PROPER CONDUCT AFTER TRIAL
After the trial is completed you should continue to conduct your-
self in a manner to bring credit on yourself and the Agency. You
should make no public display of elation or disappointment over
the outcome of the case.
If there is an occasion to speak to the defendants you should be
courteous regardless of their demeanor.
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Appearance As Witness
A Guide to Deportment in the Courtroom
Court contests are often won by the side mustering the most impressive
witnesses. An impressive witness is not necessarily one endowed with
spellbinding powers of speech nor one possessed of profound knowledge.
He is usually one who in testifying impresses his listeners with his
honesty, straightforwardness, knowledge, and truthfulness.
There are, of course, the "brilliant witnesses" - those who display the
happy faculty of stating facts, no matter how complex, in simple under-
standable language; who in cross-examination turn every opportunity to
their advantage, thoroughly routing the opposing legal forces. This
guide will not make of you any such superb witness; nor is that its
purpose. Rather we think that by enunciating some of the principles
growing out of our experiences in the courtroom, we may be able to help
you to become a somewhat better witness. Some of these principles you
have heard before and some are so obvious as to be almost unnecessary.
But we think we can all benefit by their restatement.
Naturally, a witness, to be effective, must make his statements under-
standable and must have them accepted as truth by the judge and jury.
It is not enough that he tell the truth; he must also give the impression
of telling the truth. The effectiveness of his testimony is determined
not by the statements he makes but by .those the judge and jury understand
and believe. As the lawyers would put it, it is a question of his clarity
and his credibility.
The credibility of a witness is the product of a multitude of factors, not
the least important of which are seemingly insignificant personal traits
of the witness. Whether a witness is to be believed is a personal deter-
mination for the judge and each of the 12 on the jury, all of whom, it
should be remembered, are only men and women, subject to human whim
and frailty. Try as they will to achieve that perfection in objectivity and
fairness which is the goal of our courts, they will almost invariably
evaluate a witness principally on the basis of their own personal and
subjective standards. It is not surprising, therefore, that intangible
and unreasoned elements often shape their appraisal of witnesses. Often
these elements have their origin in the appearance and general demeanor
of the witness; his attire, how he walks, his posture, how he sits on
the stand, how he answers questions, the inflection to his voice, the
emphasis in his speech, his facial expressions, his gestures. These and
other qualities begin to operate in subtle ways in shaping the jury's
appraisal of the witness from the moment he steps up in response to the
call of his name. The effect and weight of his testimony will be largely
determined by that appraisal.
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Appearance As Witness
Besides being truthful and honest, making a favorable impression upon
the judge and jury should be the first aim of the witness. It is axiomatic
that you can't please everyone. It is equally true that you do not have
much control over certain attributes such as face, figure, quality of
voice, etc., that nature has bestowed upon you, some of which may not
always be appreciated by others of the human race. But there are things
we can all do, and many which we should not do, to enable us to make a
better impression. The principles enumerated below, set forth as do's
and don'ts are the results of our observation in court of some of the
things that witnesses have done which redounded to their discredit, and
of some of the things, in our opinion, they should have done to make
more effective their appearance on the stand and presentation of their
testimony. Some may sound a bit farfetched to you and perhaps ridicu-
lous but all are based upon actual court occurrences.
1. While sitting in the courtroom, either as a prospective witness or as
an assistant to one of the members of the Administration, United States
Attorney, or General Counsel's Office, make yourself as inconspicuous
as possible. Facial grimaces at testimony thought adverse to the Govern-
ment's case, or nods of approbation or approval at testimony particularly
favoring the case should be avoided. They could result in censure from
the court if observed. Attracting attention to yourself by talking in the
courtroom during the proceedings; reading reports, newspapers, and the
like; passing notes; rustling papers; passing comments, jokes, or snide
remarks about the judge or this or that juryman, or witness, has its
perils. You may impress some but with others you may be less fortuns
You cannot prejudice yourself or the Government if you fail to focus atten-
tion upon yourselfo JDo not sit in groups of more than two or three. Do
not engage in conversation. Spread out in the courtroom.
2. Your dress is important. Dress neatly and conservatively. Save your
"loud" clothes for a more suitable occasion. The cliche "clothes make
the man" was never more applicable than to the witness in the courtroom.
3. Don't be an "impetuous prompter. " An impetuous prompter is a person
who sits in the courtroom and hears testimony which he believes erroneous
and refutable and who rushes through the rail to the United States Attorney,
the General Counsel's representative, or the Environmental Protection
Agency representative at counsel table to convey his thoughts on the erro-
neous testimony. While you may have a contribution to make, hold your
suggestions until recess or for some other suitable, time to transmit them.
Even at recess, wait until judge and jury have left before approaching
counsel. Remember that if you have found flaws in the opposing case, our
lawyers most likely have found them too. It is disconcerting to those at
counsel table to have interruptions by witnesses and others in the courtroom
who bombard them with suggestions on strategy, etc. In addition to making
you conspicuous, it shows you are strongly partisan and does not contribute
to the building of a good impression. Jot your ideas down so you will not
forget them when you have an opportunity to confer with the U. S. Attorney,
member of General Counsel's Office, or others who are directing the case.
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Appearance As Witness
4. Avoid conversations with principals of or witnesses for the opposing
side during trial,, You never can predict when your statements will be
distorted to your disadvantage and perhaps the Government's too. If you
cannot avoid conversation with them, confine your remarks to matters
other than the trial.
5. During periods of recess keep your guard up. Don't engage in horse-
play, wisecracking, or loud conversation, especially about the case. You
never know when you are under the observation of the judge or members
of the jury. Many a Government witness has found himself embarrassed
after making an indiscreet remark in the halls of the courthouse, or in
the elevator, or in a nearby lunchroom, or men's room, to learn that the
judge or a juryman or opposing counsel has been in the same hall, elevator,
or lunchroom and had seen and heard him. Save your wisecracks for a
time and place where the humor in them can be enjoyed without threat of
embarrassment to you or the Government. Do not hold loud conversations
in the corridor outside of the courtroom while court is in session.
6. Do not rush up to congratulate a Government witness when he steps down
from the witness stand. Wait until court has adjourned. Avoid expressing
any approval or disapproval of his testimony by glance-, nod, or otherwise
until leaving the courtroom. If you are an inspector designated to trans-
port a witness to and from the courtroom, be especially careful to meet
the witness outside the courtroom, not as he leaves the stand.
70 Avoid legal arguments with the United States Attorney and with General
Counsel's representative in presence of the United States Attorney. Save
your suggestions on legal points involved until they can be informally
discussed with General Counsel representative or with the United States
Attorney if no General Counsel representative is on the case. While you
may be 100% right as to the law, your suggestions will be more favorably
received if not stated as dicta, and if suggested rather than propounded.
8. Don't lose your patience or temper while testifying. A cross-examining
attorney often deliberately baits an irascible witness to anger him. Don't
let it happen to you. Keep calm and unruffled. Neither your thinking nor
your appearance improves with rising ire. Be polite and courteous to
everyone, including opposing counsel even if he is insulting.
9. Attorneys questioning you on cross-examination will often try to force
a categorical answer out of you, i.e., a "yes" °r "no" answer. There is
some justification for such attempts because the cross-examiner is per-
mitted to ask "leading questions. " If a simple "yes" or "no" answer does
not bring out the whole truth, it is your duty to inform the cross-examiner
that the question can't be answered "yes" or "no". If you do this, the
court may insist on a "yes" or "no" but invariably will allow you to make
any needed explanation. You are sworn to give the truth and the whole
truth and if a yes" or "no" answer doesn't do just that, the court will
afford protection when it understands the situation because it would not
have you violate the oath you took.
215.
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Appearance As Witness
10. Do not insist on sitting at counsel table or inside rail. Wait to be
asked. While everyone having knowledge of case could probably be of
assistance during trial, the extent of such assistance must be weighed
against the impression created by five or six persons sitting and work-
ing at the Government's table while only the defendant and his counsel
are at the defendant's table.
11. Don't be an "eager beaver",, Don't appear to be over-anxious to
get something into the evidence that the attorney has not asked for. To
do that may suggest that you have a stake in the outcome of the trial.
12. Don't be afraid to admit that you discussed your testimony with
representatives of the U. S. Attorney's Office, the General Counsel's
Office, or the Environmental Protection Agency. If you are asked the
question, state the truth. There is nothing improper in a practical
discussion of your testimony with the U. S. Attorney or his Assistant
handling the case. Remember that the attorney ordinarily asks the
question hoping to catch you swearing falsely.
13. Don't spar with the questioning attorney. Answer his questions
frankly, factually, and confidently. Don't engage in a wit-matching
contest. Sparring by a witness may suggest that he is evading the
question and often detracts from his credibility.
14. Wait for the question to be asked in entirety before you reply. Make
certain that you understand it, never attempt to answer a question that
you do not fully understand. To do otherwise may lead to trouble, and
embarrassment. If-the witness does not understand all or any part of a
question, he may do one or both of the following. He may state, in
substance, as follows:
(a) I am sorry, but I do not understand - or, I am not sure that
I understand the question, could you rephrase it?
or.
(b) If you mean - state what you think the question is, - then my
answer is. . .
or
combine (a) and (b) as
(c) I am sorry, but I am not sure that I understand the question,
but if you mean. . . then my answer is. . .
15. Don't be afraid or ashamed to admit "I don't know., " If you don't know
the answer to a question, say so. Don't try to cover up ignorance of some
fact or set of facts. If you do, it may suggest evasion on your part.
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16. Wait several seconds before you answer a question put to you in cross
examination in order to give the U. S. Attorney an opportunity to object if
he regards the question as improper. But avoid undue delays in replying.
These delays, particularly with side glances at the U. S0 Attorney, may
give the impression you are being evasive. Try to speak with the same
speed and use the same phraseology on cross examination as on direct.
17. Don't answer any question objected to by either side until the court
has ruled on the objection. If the witness has started his answer, he is to
stop if any objection is raised by either side and is not to continue until the
judge or either counsel indicates that it is proper to continue his response.
18. Don't chew gum while testifying. While chewing may serve to unlimber
your tongue, what you say may not go over with intended effect. Remember
too, that the jury may have one or more old-fashioned persons in it who
think that exercising the jaws in practice chewing should be done in private.
19. Answer each question by spoken words. Don't nod assent or shake
your head in dissent. The court reporter is not watching you but is con-
centrating on his shorthand and notebook. He cannot hear a nod or a
gesture. The record of your testimony may be incomplete unless you
answer each question with spoken words.
20. Speak as clearly and distinctly as you can. Use simple language.
Remember you defeat your purpose if you are not understood, so don't
try to impress anyone with a vocabulary of infrequently used words. If
the subject is technical and scientific, reduce the terminology you use
to an understandable level. If technical words must be used or are used
for any reason, the witness should define them as he uses them.
21. Don't hesitate to ask permission to refer to your notes to refresh
your recollection in testifying, provided your notes were made at the time
of or immediately after the event about which you are testifying. The
fact that you cannot recall exact details without notes should not be
embarrassing, and, in fact, can be used to the advantage of the Govern-
ment when it is shown that the opposing party does not have a written
record of the transaction. Do not read verbatim long passages from
your notes.
22. Come into the courtroom prepared. Know your facts. All pertinent
dates and time should be checked. Arrange all documents and exhibits in
order so that the testimony will be presented without fumbling.
23. Testify only as to facts about which you have first-hand knowledge.
In most instances you cannot testify about what someone told you. That
would be hearsay. You can testify about what the defendant told you, if
what he told you is relevant to the case.
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Appearance As Witness
24. In testifying, keep your voice up. Too often judges have to admon'
witnesses to speak upa Save him the trouble by striving to have the JUQ,.,
and the whole jury hear what you have to say.
25. Answer only the question asked, but answer it fully and to the point.
Don't volunteer unnecesary information. Remember the more you say
unnecessarily, the more you suggest to opposing counsel for cross-
examination „
26. Unless you are testifying as an expert, don't express opinions or
conclusionSo State only facts. Don't assume expert knowledge in a field
unless you are in fact an expert by reason of your training and experience.
Reading an article on a subject does not make you an expert in that subject.
If you are questioned on a subject that you have only superficial knowledge
of, admit at the first pertinent question that the subject is outside of your
field or knowledge.
27. Don't exaggerate. State the facts accurately and don't embellish them.
Don't be disappointed if the facts about which you are to testify are not as
dramatic as you would like to have them. The court and jury are interested
only in getting the unvarnished truth-, so give them only that.
28. Be careful when the opposing lawyer reads from a book or document
and questions you about what he read. Before answering, ask to see the
document he read from. He might be engaging in such deceptive practice
as misquoting or only partially quoting.
29. Never bring to. the stand notes, files, diaries» or other material for
help in your testimony unless you are willing to have the opposing side see
them. He has a right to see them.
30. In cross-examination opposing counsel may use the oft employed
technique of asking you whether you regard certain persons in the field
about which you are testifying as recognized authorities. This is pre-
paratory to asking you whether you agree with certain statements which
those authorities made in writings, etc. If your answer is no--that you
don't recognize them as authorities, that line of cross-examination cannot
be pursued. Unless you definitely have heard of the named persons and
are familiar with their works and do recognize them as authorities, don't
expose your self by saying that you so recognize them.
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Table of Contents
Page No,
Section E. Environmental Litigation and Industry
E-l. Environmental Litigation and the In-House Engineer, 221
Frank Finn and Clarke Heidrick, Jr., Presented at the
69th Annual Meeting of APCA, June 27 - July 1, 1976.
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E-l
ENVIRONMENTAL LITIGATION AND
THE IN-HOUSE ENGINEER
Frank Finn and Clarke Heidrick, Jr.
Copyright©1976 by the Air Pollution Control Association.
Reprinted with permission from the paper presented at the
69th Annual Meeting of APCA, June 27-July 1, 1976.
221
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Environmental Litigation And The
In-House Engineer
Environmental litigation is not entirely new to
the engineering profession. In the Middle Ages an English
engineer was hung for creating a nuisance by burning soft
coal in the wrong place at the wrong time. The nuisance
concept has served as a tool for the abatement of air pollu-
tion ever since.
But, the time-worn nuisance action is being eclipsed
in importance by the myriad of new statutes and regulations
designed to facilitate air control management. The prolifera-
tion of specific governmental regulations in the last decade
has created a new world for the engineer. Not only must he
turn his attention from the telos of efficient production in
order to incorporate substantive environmental concerns, he,
most significantly, is faced continuously with the immediate
prospect of litigation. For not only do the various state
and federal "clean air acts" provide for the promulgation of
detailed regulations governing air quality, they provide the
mechanism by means of which the agency may swiftly sanction
violators through judicial action.
The role of the in-house environmental engineer in
the litigation process is an important if not determinative
one. The ability of the engineer to acquaint the lawyer
with the facts, to assemble those facts in a presentable
fashion, and to aid in their presentation is often the
touchstone of success or failure in the litigation. Con-
versely, in order for the engineer to understand this task,
it is essential that he understand the judicial setting, and
the process into which he will be drawn.
The Factor Mix
Litigation is simply the process of presenting for
judicial determination the legal rights and obligations of
the parties before the court. From the standpoint of an
industrial source, environmental litigation may take a
variety of different shapes depending upon the party com-
plaining, the legal injury asserted by the plaintiff, the
nature of the conduct complained of, and the form of remedy
sought. The gallery of prospective plaintiffs includes
every governmental agency, whether state, federal, or local,
with jurisdiction over the defendant's activities, every
private citizen affected by the activities of the defendant,
and, in some instances, private citizens who are not affected
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directly by the defendant. (The "standing" of private
citizens to sue on behalf of the public interest has been
expanded by recent judicial decisions.) The nature of the
legal injury which may be asserted by the plaintiff ranges
from the specific—personal injuries and property damage, to
the general—the nuisance action for unreasonable interfer-
ence with the right of the plaintiff to use and enjoy his
property, to the etherial—the public interest asserted by
the governmental agency. The activity complained of may be
a chronic emissions problem or a momentary plant upset. The
arsenal of prospective judicial remedies includes money
judgments for damages actually sustained by the plaintiff,
punitive damages and statutory penalties, as well as injunc-
tions and criminal citations.
The Legal Issues
Obviously, the legal and factual issues for determi-
nation by the judge or jury will differ depending upon the
"factor mix" discussed above. In a suit brought by a private
citizen for damage sustained by his crops as a result of a
momentary eruption, the issues are whether the eruption was
the result of negligence on the part of the defendant plant,
whether the resulting emissions were the proximate cause of
the crop damage, and the monetary value of the crops lost.
In an enforcement proceeding brought by a governmental
agency, the probable sole issue is whether emissions were or
are in excess of applicable standards, without regard to the
question of the defendant's negligence in causing the viola-
tion or in failing to prevent it. Because of the increasing
importance of agency regulation, and the proportionate share
of environmental litigation attributable to governmental
enforcement actions, this presentation will focus upon the
role of the environmental engineer with respect to such
proceedings. Many of the observations made here are equally
applicable, however, to "private" litigation.
The Engineer And The Lawyer
Before advising the engineer of the role he is to
play in the litigation process, it is essential to touch upon
the general relationship between the engineer and the lawyer.
There is no doubt that engineers have at times viewed the
vageries and unpredictabilities of the legal profession with
repugnance. There is no doubt that the insertion of the lawyer
and corresponding procedural quagmire into the domain of the
engineer is dispossessing. The engineer who once spent his
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time as the quarterback—fine tuning the process for maximum.
efficiency, is converted into a lineman—supplying the
lawyer with ammunition. If the change of direction is
unwelcome then so be it—but the engineer must remember that
he has not the lawyer to thank but the regulatory climate
which necessitates the lawyer. The engineer must understand
that though the facts may be viewed from his perspective as
either black or white, the judicial process operates in
shades of gray. If the cooperative venture between the
lawyer and the engineer is to operate efficiently, each must
recognize the domain of the other with the end of presenting
the best possible case constantly in sight.
Before The Beginning
Every environmental lawsuit begins before suit
papers are filed with the court or served on the defendant.
Particularly when the complaining party is the governmental
agency, and when the nature of the complaint is chronic,
environmental "jawboning" by the agency is the familiar
tactic. The agency is in a position to monitor compliance
with applicable standards and to demand abatement measures
as an alternative to litigation. It is at this point that
the attorney should be consulted. Too often the first reac-
tion of the engineer upon receiving notice of violation is
analogous to that of a motorist who pleads with the patrol-
man for a warning ticket. He admits his guilt and says he is
sorry. No matter how good the working relationship between
the engineer and the agency, conciliation is largely unavail-
ing at this point and admissions by the engineer will be
devastating to the company when the case is tried.
Once the attorney has been consulted, the prompt
evaluation of prospective legal consequences is crucial, and
implicit within that evaluation is an engineering analysis
of the evidence of violation. If the agency is relying upon
its own measurements as opposed to the self-monitoring
records of the defendant, the validity of the agency test
must be determined by the engineer and any weaknesses or
inconsistencies communicated to the agency. On more than
one occasion the agency has been persuaded to back off when
convinced by the company that the positioning of the agency's
high-vol sampler did not produce valid property line samples.
Interim Relief
In the event that the lawyer and engineer are
unable to persuade the agency staff that the company is in
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compliance, but are unwilling to accept abatement measures
requested 'by the agency, there is one other avenue left open
as an alternative to court action. Often the lawyer will
attempt to forestall court action by or on behalf of the
agency by requesting a formal proceeding before the agency
itself. Many of the state clean air statutes authorize such
formal proceedings for the purpose of determining either .(1)
whether the source is in fact in violation of the applicable
standard, or (2) whether special circumstances exist which
warrant a "variance" or "exception" which in effect relieves
the source, at least temporarily, from the standard of
compliance which it is allegedly violating. Typically, the
agency may grant to individual sources a "variance" whenever
the agency finds the enforcement of the statute or regula-
tion will operate to close a business or take property
arbitrarily without the corresponding benefit contemplated
by the statute. In the past variances have been most fre-
quently granted shortly after the promulgation of new and
more restrictive regulations in order to give the plant an
opportunity to get into compliance, or in the instance of
unanticipated equipment malfunctions which the plant is
seeking in good faith to rectify. Although recent judicial
decisions have made variances more difficult to obtain, there
are still circumstances which justify the issuance of vari-
ances upon proper request.
Compliance -and variance proceedings are generally
conducted via public hearings before the agency hearing
examiner who then recommends action to the agency or board
itself. The company, generally, may be opposed at the
hearing by any interested person, as well as the staff of
the agency itself. The testimony of the engineer is the
substance of the company's presentation at the hearing.
Typically, the state agency hearing will be less formal than
a judicial proceeding, with few, if any, evidentiary restric-
tions imposed. (At least one state agency, the Texas Air
Control Board, has, however, recently adopted procedural
rules requiring adherence to the rules of evidence followed
in the state courts.)
The ultimate decision of the board or agency upon
the matters in issue at the hearing is largely within its
own discretion, and thus, judicial review of agency action
is frequently extremely limited. The usefulness of the
formal administrative proceeding is also limited by a second
element of discretion customarily placed in the hands of the
agency by statute. Generally the right to administrative
hearing prior to the filing of a lawsuit against the company
is solely within the discretion of the agency. In many
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cases the executive director of the board or agency may
conclude from the data collected by his staff that the
formal agency proceedings requested by the company are not
necessary, and elect to pursue the matter directly in the
courts. Even if the agency grants a variance, in most cases
that variance will operate only prospectively, and thus the
agency is free to proceed in the courts to recover statutory
penalties for violations of applicable standards prior to
the granting of the variance.
Suit Is Filed
In the event that the agency and the company are
unable to.resolve their problems either through negotiation
or formal agency proceeding, a lawsuit can be expected.
Usually the legislation authorizing the state agency with
jurisdiction over air pollution matters to file suit requires
that suit be brought either in the county where the defen-
dant company has its principal place of business, or in the
county in which the specific violation with which the
defendant is charged has occurred. Suit is initiated simply
by filing the suit papers with the appropriate court ("plead-
ings") and by having the 'sheriff of the county in which the
defendant company resides serve the papers personally upon
the proper officer of the defendant company. The agency is
required to set forth in the pleadings the precise nature of
the complaint against the defendant including the particular
statute or regulation violated, the particular action on the
part of the defendant which violated the statute or regula-
tion, and the specific relief which the agency is requesting
from the court. On receipt of the suit papers, if the
lawyer has not been consulted already, he should be immedi-
ately consulted. No communications should be ventured on
the part of the defendant without the advice of counsel.
From the date upon which the suit papers are
served upon the company it generally has a period of twenty
to thirty days to file its own pleading in response-its
answer. In many states, the responsive pleading need only
include a general denial of all of the allegations in the
agency's pleading in order to put each in issue at trial.
(The Federal Rules of Civil Procedure require the defendant
to specifically admit or deny each of the allegations con-
tained in the agency's complaint, and provide that allega-
tions not specifically denied will be deemed by the court
to be admitted.) Generally, however, the defendant will
want to raise as soon as possible, either in its original
answer, or by amendment to that answer, all of the defenses
which it may have to the lawsuit filed against it by the
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agency. These defenses may .include, aside from the specific •
denial of violation, that the regulation, the violation of
which is charged, is not authorized by the clean air statute,
or, if authorized by the statute, is violative of the state
or federal constitution. (In the past year, at least two
opacity regulations have been attacked in this way, but
without success.)
Similarly, the defendant may raise as technical
defenses that the agency has failed to comply with its own
rules and regulations with respect to certification of the
lawsuit to the state attorney general, or that it has failed
to properly notify the defendant or consider the violation
administratively prior to certification. While these tech-
nical defenses will not affect the ultimate outcome of the
lawsuit, when timely and properly raised by the defendant,
the court may "abate" the lawsuit until the agency has
properly complied with its own regulations. The delay
caused thereby may be extremely valuable to the defendant
from the standpoint of allowing it time to discover the
cause of its emissions problems and correct them, or, more
importantly, may postpone the agency's access to the most
potent enforcement weapon available to it-the preliminary
injunction.
The Preliminary Inn unction
Upon trial of the lawsuit on its merits, in the
event of a finding by the court or by the jury that the
defendant is or was in violation of applicable standards,
the relief which may be awarded in favor of the agency is
substantial. The civil penalties provided for under clean
air statutes may amount to hundreds of thousands, if not
millions, of dollars. The court may enjoin the defendant
from further violating the standard found to be applicable
and require it to implement abatement measures which may
again cost the company a considerable sum. However, the
ultimate trial of the case on its merits may, depending upon
the docket of the court in which the case is pending and the
statutory authority of the agency to obtain an early ("pref-
erential") setting, occur months, if not years, after the
case is initially filed. Because of the delay inherent in
the judicial process, the most debilitating relief available
to the agency is the temporary or preliminary injunction.
Typically the agency will, in the initial pleading, request
the court to grant a preliminary injunction, and ask that
the court hold a hearing on the issue of the preliminary
injunction immediately. In some instances the hearing is
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held within a week of the filing of the petition, and in the
event the agency prevails, the court will order the defen-
dant to discontinue violation pending a full determination
of the case at trial. Where the defendant is experiencing
frequent mechanical upsets which cause it to be in violation
of pollution standards, and is unable to ascertain the cause
of the upsets or to correct them, it must choose between
shutting down the plant completely or continuing to operate
with the substantial possibility of further upsets and thus
being in contempt of the court's order. Because contempt
citations may have the unpalatable effect of landing the
plant manager and other responsible corporate officers in
jail, the usual result is the complete cessation of the
operations at the plant.
The issues for determination at the preliminary
injunction hearing are essentially whether or not the plain-
tiff agency can make a prima facie showing of past violation
coupled with a showing of probable future violation. An
interesting legal question, which is still a matter of
controversy in the courts, is whether the court must addi-
tionally consider the public benefit to be derived from the
continued operation of the plant in ruling upon the tempo-
rary injunction. The agency will almost always take the
position that no "balancing of the equities" is required for
the temporary injunction to be entered. The defendant, on
the other hand, may attempt to present to the court evidence
of its economic benefit to the community in terms of the
number of the persons which it employs, the taxes which it
pays to local government, and the effect of a plant shutdown
on those who consume its product.
While the engineer is not directly involved in the
"balancing of the equities" from the standpoint of develop-
ing evidence demonstrating the economic benefits of the
plant to the community, the role of the engineer in develop-
ing evidence rebutting the agency's case with respect to
violation itself is crucial. The engineer must prepare
within the extremely short period prior to the temporary
injunction hearing his own evidence with respect to com-
pliance. It may be necessary for the engineer to employ in
the interim an independent consultant in order to lend
credibility to the figures which will be produced at the
hearing on the part of the company and to their interpreta-
tion. Relevant evidence would include not only figures
which demonstrate that the company is not in violation of
applicable pollution standards, but also evidence showing
that even if the company was in violation of pollution
standards, that violation was caused by a specific malfunc-
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tion which has now been cured, or which is unlikely to occur
again. One of the most effective methods for demonstrating
the small likelihood of future occurrence is to present to
the court at the hearing a detailed plan formulated by the
company and calculated to prohibit major upsets in the
future.
Discovery And Preparation
After the suit has been filed and the defendant
has answered, the litigation enters its second, and perhaps
the most important, phase—discovery. Discovery, in the
strict sense of the word, is the process provided under the
procedural rules by means of which the parties may obtain
from each other relevant evidence. From the standpoint of
the defendant source this process is logically divisible
into two functions--the protective function, and the of-
fensive function.
The protective function is one of guarded compli-
ance with applicable law in supplying the agency with the
evidence it is entitled to discover. The agency may be
expected to utilize the methods available under the pro-
cedural rules to obtain every stick of evidence in the
possession of the defendant which might be useful to it in
the presentation of its case. These methods include onsite
visits, written interrogatories to the defendant, written
requests that the defendant admit certain facts to be true,
the oral depositions of various employees and officers of
the defendant, and requests that the defendant produce
various documents and tangible evidence for examination.
Generally, parties to a lawsuit may discover
through the various procedural devices, any material or
information in the possession, custody, or control of the
other party which is relevant to the subject matter of the
lawsuit. However, there are some basic limitations gov-
erning the bounds of discovery with which the engineer
should be familiar. The most important such limitation from
the standpoint of the defendant protects from discovery
materials prepared in anticipation of litigation by the
party, its employees, its attorney, consultants, or insurers.
The underlying rationale for this rule is that a party would
be seriously hampered in preparing for trial if its employ-
ees, lawyers, and other representatives could not commit to
writing summaries of witnesses1' statements, legal briefs,
and organizational materials and evidence gathered in antici-
pation of trial without fear of having the other side obtain
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copies by court order. Without the work product rule, one .
party to the lawsuit could allow the other to run all the
tests, get all the witnesses' statements, and hire all the
consultants, and do no discovery of its own other than to
obtain copies of its opponent's work. (The rules applied by
the federal courts permit discovery of work product by a
party showing to the court that it has a substantial need
for the evidence, and that it is unable to obtain the equivalent
by its own efforts.)
From the standpoint of the environmental defendant
the work product rule will usually protect the results of
testing done after suit has been filed, and the opinion and
reports of both in-house and consultant experts based on
those tests. There is, in effect, an exception to the work
product exception which permits the discovery of reports
prepared by experts who will testify at trial and all of the
facts and information underlying those reports. Because,
however, it is unlikely that an expert, whether he be in-
house or consultant, who produces an unfavorable finding
will be called as an expert witness at trial, it is often
possible to protect unfavorable test results from discovery
by the agency. (Of course, where the applicable statute
requires that the company regularly monitor its own emis-
sions and report to the agency, such reports are not pre-
pared in anticipation of litigation, and must be continued
notwithstanding the-advent of litigation.)
Another limitation upon the judicial policy of
liberal discovery is the attorney/client privilege. The
privilege is similar to the work product exception in that
it protects communication of a confidential nature between
the attorney and his client from discovery, but differs from
the work product rule in application. The work product ex-
ception applies to communications between employees or other
representatives of a party whether they be legal counsel or
otherwise, so long as they relate to the litigation. The
privilege applies only to the communications of a confidential
nature by the party or its employees with the lawyer, but
applies even if those communications are not specifically
related to the litigation or if they are made prior to the
occurrence of the facts or circumstances giving rise to the
litigation.
For example, a letter from the in-house engineer
in the home office to the attorney on March 1, 1976 indicat-
ing that the electrostatic precipitator is malfunctioning
and that the plant was in violation of applicable pollution
standards would in all probability not fall within the work
product exception if suit is not filed until April 1, 1976
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and if the agency does not seek relief for violations occur-•
ring in March. The letter would, however, fall within the
attorney/client privilege.
On the other hand, the letter from the home office
engineer to the vice president of April 5, 1976 advising
that the engineer has run his own test for the purpose of
rebutting the violations alleged in the agency's pleading
but is unable to confirm compliance will in all probability
be work product. The letter would not come within the
attorney/client privilege. (If the lawyer is copied on
such correspondence however there is a good chance that the
attorney/client privilege might be invoked as an additional
ground in order to protect the letter from discovery.)
It is with these basic limitations in mind that
the lawyer and the engineer will facilitate the response of
the defendant to the various discovery devices employed by
the agency and its counsel. Customarily the agency will
initially employ written interrogatories to the defendant
calculated to ascertain the basic position which the defen-
dant will take at trial, the names of the expert witnesses
who will be employed by the defendant at trial, and other
general information about the defendant's plant and record
keeping. The agency may next be expected to request a court
order directing the defendant to turn over all of the docu-
ments, records, and correspondence relevant to the lawsuit,
followed by the depositions of the employees of the defendant
and its declared experts.
"Protective discovery" generally takes the form of
an initial assimilation by the engineer of all of the evi-
dence and information even arguably responsive to the in-
quiries of the agency. The lawyer will then review the
engineer's suggested responses to interrogatories and requests
for production from the standpoint of legal protectability.
It is thus easy to see why "protective" discovery from the
standpoint of the engineer is less than appetizing. The
impact of the agency's utilization of the various discovery
techniques is to impose upon the engineer a mountain of
tedious paperwork, all of which is subject to review by the
lawyer.
While the function of the engineer in responding
to agency discovery probes after suit is filed is not likely
to appeal to his creative instincts, he can learn from the
experience valuable lessons about the impact of his com-
pany's record keeping system and communication procedures
upon subsequent litigation. Clearly, almost all of the
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records kept by the engineer in the course of his day to day
operations will be discoverable within the limitations
discussed above. Similarly, even if the company and the
agency are on friendly terms, it should be noted that all
written communication by the company with the agency may
be available not only to the agency but to private litigants
under open record statutes whether or not there is subsequent
litigation.
In light of the above principles, the engineer
might keep in mind three basic rules. First, the records
and communications which are likely to end up in the hands
of the agency must be accurately phrased and should contain
nothing other than what is necessary to accomplish the
business purpose. Often it is not the measurements or
technical data in the company's records which hurt it at
trial. Rather, the unscientific notation on the back of the
engineer's report stating "she was blowing and going-and
dust all over six counties" may disintegrate the case.
Second, whenever possible written communications should be
phrased in a manner which will bring them within the "work
product" exception. If a letter bears upon a matter which
is, or may subsequently be, the subject of litigation, it
should be addressed to that prospect, and not merely take
the form of another daily record. Third, the engineer
should see that his company's compliance with applicable
pollution regulations is fully documented in the company's
records. Too often, even though the company is in compliance
a majority of the time, its records will reflect only upsets
and violations, and the true picture will not be presented
to the court.
Turning from the records and documents of the
defendant which are discoverable by the agency, obviously
the defendant company will conduct its own "offensive dis-
covery" simultaneously with that of the agency. The purpose
of the defendant's discovery is to carefully define and to
delimit the position for the agency at trial, and to deter-
mine exactly what data and analysis it will rely upon. The
engineer can be of great help to the attorney in formulating
interrogatories and requests for admission calculated to
perform this function. Similarly, the agency will have in
its possession a large amount of data relevant to the law-
suit. The engineer will be familiar with the information
and records kept by the agency, and will be able to help the
lawyer in formulating his requests for production of docu-
ments by the agency.
Once the defendant has obtained all of the relevant
data underlying the contentions of the agency, and the .
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opinions and underlying analysis of each of the experts who •
will testify at trial against the defendant, then it is the
task of the engineer to analyze the agency's position and to
aid the lawyer in the preparation of the defendant's evidence,
This task will occupy the bulk of the time spent by the
engineer on the case.
The preparation of the defendant's case includes
not only an analysis of the plaintiff's evidence, so that
the attorney may effectively cross-examine the plaintiff's
witnesses, but also the assimilation of rebuttal evidence
including independent tests, and outside analysis by various
experts. Depending upon the size and complexity of the
lawsuit expert testimony will be required on the issues of
the impact of the various contaminants upon the general
health of the community, upon vegetation, upon houses, upon
automobiles, and upon real estate values. Expert testimony
may also be required with respect to the operation of the
defendant's plant, its abatement equipment, and basic oper-
ating procedures, as well as the economic and social benefits
of the plant to the community. In most cases it will be the
task of the in-house engineer to seek out qualified experts
where necessary and to coordinate their efforts in preparing
for trial. Ultimately the engineer must be thoroughly
familiar with the knowledge and capabilities of each expert
so that he may advise the lawyer at trial.
Similarly, the engineer will be responsible for
developing the most effective method by means of which the
defendant's technical data may be presented to the judge or
jury. Often graphs, tables, or photographs are most suitable
for this purpose, and it may.be necessary for the engineer
to employ a graphics company to prepare the data in the form
which lends itself most readily to comprehension by the
layman.
Further, once the agency or its counsel have made
known to the defendants the experts will testify at trial,
the task of investigating that expert befalls the engineer.
Often articles written by the expert prior to the lawsuit,
or testimony given by the expert in previous lawsuits, may
be used by defense counsel during cross-examination to
undercut his opinion.
Trial Of The Environmental Lawsuit
Generally the trial of an environmental lawsuit
commences soon if not immediately after the completion of
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discovery. The clean air statutes of some states permit the
agency to seek a "preferential setting" from the court. The
actual trial of the lawsuit may last, depending upon its
complexity from one day to literally months. Usually the
trial will consist of a battle between the agency's data and
the defendant's data as interpreted by the expert witnesses.
The agency, being the party with the burden of
proof, will present its case first. Generally, the first
witnesses presented by the state will be "fact" witnesses—
those persons who have firsthand knowledge of the defendant's
conduct. These witnesses will include the agency personnel
who ran the test and collected data upon which the state
will rely, and, depending upon the issues at trial, perhaps
surrounding landowners and residents who can testify to the
effect of the defendant's emissions on their houses, cars,
crops, bodies, land values, etc. The agency will introduce
into evidence the data which its employees have collected
after the employees have laid a proper foundation for its
admission through testimony relating to the manner in which
the data was collected, recorded, and transmitted into the
form in which it appears in the courtroom. When the defense
attorney is given the opportunity to cross-examine, if he
has been prepared properly by the engineer, he will obtain
admissions from the agency witnesses concerning the manner
in which their tests were run which will later undermine the
opinion of the agency's expert with respect to the validity
of the data as evidence of violation and which will support
the theory of his own expert as the invalidity of that data.
After the state has put on its fact witnesses, it
will present the testimony of its expert witnesses -(almost
invariably another agency employee). The state's experts
will testify that in their opinion, based upon the facts as
stated by the fact witness, the data collected by the agency
is valid, and that, based upon that data, they are of the
opinion that the defendant was in violation of the applicable
standards on the occasion in question. The defendant's
attorney will, on a cross-examination, possibly build upon
his earlier cross-examination the state's fact witness and
attempt to narrow the opinion of the expert by narrowing the
facts upon which it is based. He may also attempt to obtain
an admission from the expert that the data which the defendants
will subsequently introduce into evidence would lead that
expert to the opinion that the defendant was not in violation
at the times in question. Whatever be the tack of the
defense counsel, however, he will need the technical support
throughout of the engineer. It is often helpful for the
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engineer as he listens to the testimony of an agency witness
to write appropriate questions for cross-examination, which
the lawyer can consider.
When the state has completed its case, the defense
will then put on its own fact witnesses and experts to rebut
the state's evidence. Frequently the order in which the
defendant's witnesses testify, and indeed which witnesses
will testify and which will not, is not determined until
after the state has put on its case. The evaluation by the
engineer of the strengths and weaknesses of potential defense
witnesses is often determinative of these questions. Once
the defendant's witnesses have testified, and the argument
of counsel concluded, the case is of course submitted to the
jury or judge for decision.
Conclusion
It is impossible to depict in an overview the
"average" environmental lawsuit. It is hoped that this
overview from the standpoint of the engineer serves to
identify areas appropriate for cooperation between the
engineer and the lawyer, and that it will serve as a start-
ing point for the uninitiated.
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