BASIC INSPECTOR TRAINING COURSE
FUNDAMENTALS OF ENVIRONMENTAL
      COMPLIANCE INSPECTIONS
                   LEGAL
                  TECHNICAL
                ADMINISTRATION
                COMMUNICATIONS
       Office of Enforcement and Compliance Monitoring
          U.S. Environmental Protection Agency

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               BASIC TRAINING COURSE
      FOR EPA INSPECTORS/FIELD INVESTIGATORS
                  FUNDAMENTALS OF
ENVIRONMENTAL COMPLIANCE MONITORING INSPECTIONS
           Compliance Policy and Planning Branch
       Office of Enforcement and Compliance Monitoring
           U.S. Environmental Protection Agency
                         2/89

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                                      RESERVATION
The policies and procedures set forth herein and the internal office  procedures adopted pursuant
hereto are  intended  solely for the  guidance of United States Environmental Protection Agency
personnel.  These policies and procedures are not intended to be relied upon to create a right or
benefit (substantive or procedural) enforceable at law by a party to litigation with the United States
Environmental Protection Agency. The Agency reserves the right to take any action that is alleged
to be at variance with these policies and procedures or that is not in compliance with internal office
procedures.
                                                11

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                                        PREFACE
This "Fundamentals of Environmental Compliance Inspections" text is designed for use with the
classroom training course that inspectors employed by the U.S. Environmental Protection Agency
(EPA) must complete to satisfy the basic training requirements of EPA Order 3500.1, Training and
Development for Compliance Inspectors/Field Investigators. The terms "compliance inspector" and
"field investigator" include all personnel who conduct field activities that may lead to or support
enforcement actions.

The  "Fundamentals" text covers  legal,  technical, administrative, and  communications aspects  of
performing inspection work under all statutes administered by EPA. The related classroom course
is designed to reinforce materials in the text through a combination of lectures, group participation
exercises, and discussions.  Inspectors  must complete the basic inspector  training course before
leading or independently conducting an environmental compliance inspection.

The "Fundamentals" text and classroom course do not cover the specialized skills and information an
inspector needs with respect to a specific environmental program such as water pollution control,
hazardous substances, and the like.  Each environmental program is responsible for developing and
implementing inspector training programs that will enable inspectors to satisfy the program-specific
training requirements before performing field work.

Comments and suggestions about the "Fundamentals" text are welcome  and should be addressed  to:
Compliance Policy and Planning Branch (Mailcode LE-133), OECM/OCAPO, U.S. Environmental
Protection Agency, 401 M Street, S.W.,  Washington, DC  20460.
                                            in

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IV

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                                ACKNOWLEDGEMENTS

This text is the product of contributions from many individuals and offices throughout EPA, who
shared their experience and knowledge generously. Although these contributors are far too numerous
to acknowledge individually, some who have had sustained  roles in developing the text deserve to
be singled out for recognition.

EPA's Regional  offices  have contributed the core material used in  this text.  Members of  the
Environmental  Services  Divisions in the  Regions  have  given  of their  long  experience   in
environmental compliance inspections. Attorneys from the Office of Regional Counsel in several
Regions have also contributed.  Regions II, IV, V, VII, and X  have been especially active  in
developing this text.

The course itself stems  from  a recommendation by  Region V and  the  Environmental  Services
Divisions, later endorsed by the Agency-wide Work Group on Inspector Training and Development.
The basic concepts of the course  were developed by a work group chaired by Pat A. Alberico,
Deputy Director of the Office of Compliance Analysis and Program Operations.  This work group
also assembled the fundamental materials and technical guidance that became the basis of this text.
The members of the  work group were: Ralph R. Bauer, Carol Finch, Thomas P.  Gallagher, Bob
Harp, Reed Park Haney, James Merrill, James R. Moore, Jim  Prange, Anne Randolph, David A.
Ullrich, Carroll  Wills,  and  A.R.  Winklhofer.   The work group  effort  was supported by two
contractors, American Management Systems, Inc., and Chelsea  International  Corporation.

This  text  was developed  under the  direction  of Donna A.  Fletcher, Program  Analyst in  the
Compliance Policy and Planning Branch, Office  of Compliance Analysis and Program Operations,
Office of Enforcement  and Compliance  Monitoring.   Professional support was  provided  by
George Alderson, Rebecca Barclay, Lee Braem, Peter Rosenberg, and Cheryl Wasserman. Contractor
support was provided by  Technical Resources, Inc., with Joel A. Todd, Charles M. Knapp, and  Shelli
Rossman as principal staff.  Especially helpful  contributions were made by A.R. Winklhofer  of
Region V, Billy J. Fairless of Region VII, and William Schmidt and David Dabroski of Region  X.

The major contributors to particular parts of the text were the  following:

Administration:  Special  assistance was given by  Paul Boys (Region X), William Gillespie (NEIC),
Patricia Gore (OARM), Timothy McProuty (OARM), Edward Murphy (OARM), Donnell Nantkes
(OGC), Joseph Nernargut (OARM), and Charles  Smith (OARM).

Legal: Materials were provided by EPA's  Associate  Enforcement Counsels,  Office  of Criminal
Enforcement  Counsel, National Enforcement Investigation Center, Office of Water, Office of Air
and Radiation, and the Federal Law Enforcement Training Center in Glynco, Georgia. Contributions
were made by Regional Counsel  attorneys in Regions  II and X,  criminal enforcement staff at
Headquarters and in  Region X, and technical enforcement staff in Regions V, VII, and X.  Three
Regional Counsel attorneys provided especially helpful material: Walter Mugdan, Deputy Regional
Counsel,  Region  II, provided extensive  teaching notes  on  civil judicial  and  administrative
enforcement  that became the  basis for the text's  content on  this  subject.  John  Hamill, Senior
Associate  Regional Counsel, Region X, provided a paper on subpoenas, orders, and requests that
became the source for the text on information-gathering tools. David Dabroski, Associate Regional
Counsel, Region X, took the time to dictate and have transcribed a summary version of the training
he conducts for Region X inspectors, which served not only  as a major source of material for  much
of the text, but also as a general framework for its legal sections.

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Technical: This text draws from material in the NPDES Compliance Inspection Manual; the Air
Compliance Inspection Manual; the TSCA Inspection Manual; various NEIC procedures documents;
the Operations and Quality Control Manual of the Analytical Support Branch, Environmental Services
Division, Region IV; and the Standard Operating Procedures and Quality Assurance Manual of the
Engineering Support Branch, Environmental Services Division, Region IV.

Communications:  Contributions were made by Michael O'Reilly (EPA Institute),  Renelle Rae
(OECM), Charles Swevis (NEIC), Robert Jacobsen (Region X), Cheryl Wasserman (OECM), and
A.R. Winklhofer (Region V).
                                          VI

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      FUNDAMENTALS OF ENVIRONMENTAL COMPLIANCE INSPECTIONS
                            TABLE OF CONTENTS
PART I:  EPA'S COMPLIANCE AND ENFORCEMENT PROGRAM        Page

1:    INTRODUCTION TO ENVIRONMENTAL COMPLIANCE	  1-1

     Motivation for Compliance	  1-2
     The Role of Enforcement in Achieving Compliance   	  1-3

2:    SUMMARY OF EPA STATUTES	  2-1

     2A:   Clean Air Act	  2-3
             Purpose	  2-3
             Major Regulatory Provisions   	  2-3
             Enforcement Authorities   	  2-7
             Other Enforcement Mechanisms	  2-10
     2B:   Clean Water Act	  2-11
             Purpose	  2-11
             Major Regulatory Provisions   	  2-11
             Enforcement Authorities   	  2-16
     2C:    Resource Conservation and Recovery Act  	  2-19
             Purposes   	  2-19
             Major Regulatory Provisions   	  2-19
             Enforcement Authorities   	  2-22
     2D:   Comprehensive Environmental Response,
             Compensation, and Liability Act (CERCLA  or Superfund)    .  2-25
             Purposes   	  2-25
             Major Regulatory Provisions   	  2-25
             Enforcement Authorities   	  2-30
     2E:   Toxic Substances Control Act (TSCA)   	  2-33
             Purposes   	  2-33
             Major Regulatory Provisions   	  2-33
             Enforcement Authorities   	  2-35
             Other Important Provisions     	  2-37
     2F:   Federal Insecticide, Fungicide and Rodenticide Act
             (FIFRA)	  2-39
             Purpose	  2-39
             Major Regulatory Provisions   	  2-39
             Enforcement Authorities   	  2-40
     2G:   Safe Drinking Water  Act (SDWA)   	  2-43
             Purposes   	  2-43
             Major Regulatory Provisions   	  2-43
             Enforcement Authorities   	  2-44
     2H:   Emergency Planning  and Community Right-to-Know	  2-47
             Purposes   	  2-47
             Major Regulatory Provisions   	  2-47
             Enforcement Authorities   	  2-49
                                       vn

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                                                                       Page

3:    COMPONENTS OF A COMPLIANCE PROGRAM    	   3-1

     3A:   Overview	   3-3
             Statutes and Regulations      	   3-4
             Compliance and Enforcement Strategy   	   3-4
             Compliance Monitoring	   3-5
             Enforcement Response to Violations     	   3-5
             Follow-up to Enforcement Actions    	   3-6
     3B:   Compliance Monitoring	   3-7
             Types of Compliance Monitoring    	   3-7
             The Functions of On-Site Inspections      	   3-8
             Reasons for Inspections: Facility Selection Schemes         .   3-10
             Levels of Inspection    	   3-12
     3C:   Enforcement Responses	   3-13
             The Goals of Enforcement    	   3-13
             Types of Enforcement Responses    	   3-13
             Enforcement Response Policies    	   3-15

4:  ORGANIZATIONAL STRUCTURE FOR
      COMPLIANCE AND ENFORCEMENT     	   4-1

     4A:   EPA Organization	   4-3
             EPA Headquarters	   4-3
             Regions	   4-4
             Role of the U.S. Department of Justice      	   4-5
               Exhibit:   U.S. EPA Organization Chart	   4-6
     4B:   The Federal-State Relationship     	   4-7
             State/EPA Enforcement Agreements	   4-7
             Assessing a Compliance Monitoring  Program    	   4-8
             Direct Federal Enforcement  in Delegated/Approved
               States    	   4-8
             EPA Inspections in Delegated/Approved States.     	   4-8
             Oversight Inspections:  Special Considerations.        ....   4-10
             Implications for the Conduct of EPA Inspections      ....   4-12

5:  ROLE OF THE INSPECTOR/FIELD INVESTIGATOR	   5-1

     5A:   Inspector Responsibilities	   5-3
             Inspector Responsibilities      	   5-3
             Inspector Training Requirements    	   5-4
     5B:   Ethics   	   5-5
             Conflict of Interest     	   5-5
             Standards of Conduct   	   5-5
             Questions Frequently Asked  About Inspections      	   5-6
             Where to Seek Advice  	   5-6
     5C:   Confidential Information    	   5-7
             Obtaining Confidential Information      	   5-7
             Security Measures	   5-8
             TSCA Confidential Business  Information (TSCA-CBI)   ...   5-9

                                        viii

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       FUNDAMENTALS OF ENVIRONMENTAL COMPLIANCE INSPECTIONS
                          TABLE OF CONTENTS (Cont.)

                                                                        Page

PART  II:  LEGAL ASPECTS OF COMPLIANCE MONITORING INSPECTIONS

6:  ENFORCEMENT LITIGATION	   6-1

     6A:   Administrative and Judicial Civil Litigation.       	6-3
             Historical Perspective on Civil Enforcement     	   6-3
             Principal Elements of Civil Litigation.      	   6-4
             Stages of Civil Litigation.	   6-5
             Administrative Enforcement	6-7
             Procurement and Assistance Listing (Debarment)      ....   6-10
     6B:   Criminal Enforcement   	   6-13
             Special Attention to Defendant's Rights     	   6-13
             Criminal Enforcement at EPA	   6-14
             Criminal Enforcement Compared to Civil Enforcement    .  .   6-15
             Criminal Investigations	   6-16
             Compliance with the Jencks Act    	   6-18
             Participation in Grand Jury Investigations.       	   6-18
             Recognizing Potential Criminal Violations      	   6-19

7:  ENTRY AND INFORMATION-GATHERING TOOLS	   7-1

     7A:   Legal Bases for Entry   	   7-3
             Statutory Authority   	   7-3
             Constitutional  Provisions     	   7-3
             Court Decisions Regarding Entry Authority    	   7-4
             EPA  Policy and Practice   	   7-4
                Exhibit:    Summary of Federal Environmental Acts
                          Regarding Right of Entry, Inspections
                          Sampling, Testing, Etc	7-7
     7B:   Consensual Entry   	   7-9
             Arrival for the Inspection.     	   7-9
             Credentials	   7-9
             Notice of Inspection    	   7-10
             Consensual Entry    	   7-10
             Denial of Consent  to Enter     	   7-12
             Withdrawal of Consent During  Inspection    	   7-13
             Conditional Consent	   7-13
             Scope of Inspection Activities      	   7-14
     7C:   Warrant Entry	   7-17
             Seeking a Warrant  in Advance of Inspection.     	   7-18
             Seeking a Warrant  for Denied Entry    	   7-18
             Securing and  Executing a Warrant	   7-18
             Challenges to the Warrant    	   7-22
             Inspections Conducted by State Personnel       	   7-22
                Exhibits:   Model Application for a Warrant   	   7-23
                          Model Affidavit	   7-24
                          Model Administrative Warrant    	   7-26
                          Return of Service   	   7-28
                          Model Affidavit of Service    	   7-29

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     7D:   Information-Gathering Tools   	   7-31
             Administrative Investigative Subpoenas.      	   7-31
             Warrants  	   7-33
             Information-Gathering Orders     	   7-34
             Requests  	   7-35
             Summary	   7-36
               Exhibits:  Summary of Information Gathering Tools    .  .   7-38
                         Sample Subpoena Cover Letter    	   7-39
                         Sample Subpoena Puces Tecum	   7-40

8:  EVIDENCE	   8-1

     8A:   Introduction to Evidence     	   8-3
             Definition and Types of Evidence     	   8-3
             Federal Rules of Evidence  - The Hurdles    	   8-4
             Illustration of Evidence Concepts      	   8-4
     8B:   Documenting Evidence	   8-7
             Federal Rules of Evidence  - The Helpers    	   8-7
             The Inspector's Written Documentation    	   8-8
             Chain of Custody  	   8-10
             Photographs and  Other Demonstrative  Evidence     	   8-14
             Statements of Individuals as Evidence	   8-14
             Documenting Records from the Inspected Facility     ....   8-15

PART III: PRE-INSPECTION ACTIVITIES

9:  PRE-INSPECTION PLANNING  AND PREPARATION	   9-1

     9A:   Responsibilities of the Inspection Team      	   9-3
             Inspector Responsibilities.      	   9-3
             Independent Inspector/Team Leader Responsibilities       .  .   9-5
     9B:   Defining Inspection Scope and Objectives      	   9-9
     9C:   Reviewing Agency  Records	   9-11
             Review Considerations:  What to Review and Why     ....   9-11
             Where  to Access  Information   	   9-14
               Exhibit: FINDS    	   9-17
     9D:   Advance Notification of Inspection.      	   9-19
             Notification of Responsible State Agency.      	   9-19
             Notification of the  Facility       	   9-19
     9E:   Preparation of the Inspection  Plan.      	   9-21
               Exhibit: Generic Elements of an Inspection Plan        .  .   9-25
     9F:   Pre-Inspection Checklist	9-27
             Inspection Equipment   .  . .	   9-27
             Inspection Documents and Forms    	   9-27
             Administrative Documents  and Forms    	   9-28
             Safety  Equipment  	   9-28
             "Ready to Go" Checklist    	   9-28

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10:   ADMINISTRATIVE CONSIDERATIONS FOR INSPECTORS	   10-1

     10A:  Travel   	   10-3
             Travel Authorization    	   10-3
             Diners Club Card   	   10-3
             Travel Advance	   10-3
             Airline Tickets   	   10-4
             Using Cash for Travel Services     	   10-5
             Hotel Reservations    	   10-5
             Use of Government Owned Vehicles	   10-6
             Use of Rental Cars    	   10-6
             Use of Government Transportation Request (GTR)    ....   10-6
             Use of Charter Planes, Helicopters, and Boats       	   10-7
             Change in Travel Plans    	   10-8
             Filing Reimbursement Vouchers	   10-8
               Exhibits:   Travel Authorization    	   10-10
                         Travel Voucher	   10-12
                         Claim for Reimbursement	   10-14
     10B:  Pay Administration   	   10-17
             Key  Definitions	   10-17
             Summary of Premium Pay	   10-18
             Standby and Hazardous Duty  	   10-18
             F'LSA Exempt and Non-Exempt  Federal Employees	   10-20
             Premium Pay During Travel and Training    	   10-20
     IOC:  Procurement	   10-23
             Advance Planning for Procurement    	   10-23
             Small Purchases and the  Imprest  Fund     	   10-23
             Preparation of the Procurement Request Form    	   10-24
             Unauthorized Procurements	   10-25
             Purchases in the Field     	   10-25
               Exhibit:   Procurement Request	   10-26

PART IV: ON-SITE ACTIVITIES

11:   GAINING ENTRY AND OPENING CONFERENCE	   11-1

     11 A:  Gaining Entry	   11-3
             Exhibit: Notice of Inspection
     11B:   Opening Conference
             The Inspector's Role During the Opening Conference
             Meeting Agenda Items	
             Mid-Course Adjustments to Inspection Plan    .  .  .
             Exercising Judgment in the Field     	
                 thibit: TSCA Inspection Confidentiality Notice
1-4
1-5
1-5
1-6
1-8
1-9
1-10
                                       XI

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                                                                       Page

12:   RECORDS REVIEW	   12-1

     12A:  Records Inspection    	   12-3
             Legal Aspects of  Records Inspection    	   12-4
             Objectives   	   12-4
             Types of Records  	   12-4
             Review Considerations	   12-4
             Targeting and Locating Records     	   12-5
             Distribution of Records   	   12-5
             Copying Records	   12-6
             Identification Procedures	   12-6
             General Considerations for Handling Records     	   12-7
             Confidentiality Considerations and Procedures      	   12-7
     12B:  Records Sampling Strategies    	   12-9
             Basic Steps in Sampling   	   12-10
             Step 1: Determine Objective  of Inspection Step        .  .  .  .   12-10
             Step 2: Identify Population for Review       	   12-10
             Step 3: Select Sampling Method      	   12-11
             Step 4: Determine Sample Size    	   12-14
             Step 5: Conduct Sampling    	   12-15
             Step 6: Document Sampling Strategy    	   12-16
               Exhibits:  Determination  of Minimum Sample Size    .  .  .   12-15
                         Random Number Table	   12-17
                         Using a Random Number Table	   12-18

13:  PHYSICAL SAMPLING	   13-1

     13A:  Policy Considerations in Sampling     	   13-3
             Samples as Evidence	   13-3
             Program-Specific Guidance on Sampling Decisions    ....   13-3
             Sampling Decisions in the Field     	   13-4
               Exhibit:   Dominant Activities in Routine
                           Inspections by Program   	   13-6
     13B:  Technical Considerations in Sampling     	   13-9
             Data Quality to Meet Sampling Objectives     	   13-9
             Standard  Operating Procedures (SOPs)     	   13-11
             Selection of Representative Sampling Points       	   13-12
             Determining Number of Samples	   13-14
             Required Sample  Volumes	   13-15
             Selection and Preparation of Sampling  Equipment     .  .  .  .   13-16
             Preventing Cross-Contamination     	   13-16
             Equipment Decontamination and Waste Disposal     	   13-17
             Split Samples:  Special Considerations        	   13-19
             Common Sampling Errors	   13-19
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     13C:   Q'uality Assurance/Quality Control    	   13-21
             Quality Assurance/Quality Control Policy      	   13-21
             Concepts in Precision and  Accuracy     	   13-22
             Quality Assurance Project  Plan     	   13-23
             Coordination on QAPP Preparation    	   13-26
             Modifications to the QAPP	   13-26
               Exhibits:  Model QAPP	   13-27
                         Model Sample Alteration Form   	   13-30
                         Model Sample Alternation  Checklist    .  .   .  .   13-31
     13D:   Sample Documentation	   13-33
             Documentation of Precision and Accuracy   	   13-33
             Chain of Custody Documentation   	   13-34
             Initiating Chain of Custody Record     	   13-36
             Field Logbook Entry	   13-36
             Sample Identification   	   13-36
             Sample Seal	   13-37
               Exhibits:  Chain of  Custody Record	   13-38
                         Field Sample Data/Chain of
                           Custody Sheet	   13-40
                         Example of Field Logbook  	   13-41
                         Example of Sample Tag	   13-47
                         Example of Sample Seal   	   13-48
     13E:   Sample Management in the Field	   13-49
             Sample Preservation   	   13-49
             Sample Holding Time	   13-50
             Importance of Sound Packing and Shipping    	   13-50
             Transportation Selection     	   13-51
             DOT Hazard Classification  	   13-51
             DOT Packaging Requirements	   13-52
             Procurement of Shipping Services for Samples       	   13-54
             Use of Government Bill of Lading for
               Shipping Samples   	   13-54
               Exhibits:  Government  Bill of Lading	   13-55
                         Packaging Procedures for (Various)
                           Samples	   13-57
     13F:   List of Protocols and SOPs    	   13-67
               Exhibit:    Inspection Protocols/Guidance
                           Selected References   	   13-68

14:  INTERVIEWS   	   14-1

     14A:   Statements as Evidence    	   14-3
             Documenting the Interview	   14-3
     14B:   Steps in Planning and Conducting Interviews     	   14-7
             Planning the Interview    	   14-7
             Conducting the Interview    	   14-8
             Documenting the Interview	   14-8
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     14C:   Questioning Techniques   	14-9
             Types of Questions    	   14-9
             Question Sequencing	   14-10
             Applying  Interviewing Techniques    	   14-12
     14D:   Creating a Productive Interview Atmosphere     	   14-15
             Attitude and Approach	   14-15
             The Interview Setting   	   14-15
             Non-Verbal Communication	   14-16
             Common Shortcomings in Interview Skills   	   14-16

15:   OBSERVATIONS AND ILLUSTRATIONS	   15-1

     15A:  Field Notes/Logbook	   15-3
             Inspector's Field  Logbook    	   15-3
             Confidential Business Information (non-TSCA)     	   15-5
             TSCA Confidential Business Information    	   15-6
     15B:   Photographs	   15-9
             Photographs as Evidence   	   15-9
             The Right to Photograph	   15-10
             Tips on Taking Photographs   	   15-11
             Documenting Photographs	   15-13
             Photographic Equipment   	   15-15
     15C:   Drawings  and Maps	   15-19
             Maps	   15-19
             Drawings  and Diagrams	   15-20
     15D:   Aerial Imagery   	   15-21
             Use in Court  	   15-21
             Requesting Services    	   15-22

16:   CLOSING CONFERENCE/TRAVEL SECURITY MEASURES   ...   16-1

     16A:  Closing Conference    	   16-3
             Responding to Questions on Inspection Results     	   16-3
             Receipt for Samples   	   16-4
             Confidentiality Claims     	   16-4
             Industry Outreach	   16-5
              Exhibits:   Receipt for Samples and Documents  	   16-6
                         Declaration of Confidential Business
                          Information	   16-8
     16B:   Security Measures While  Traveling    	   16-11
                                      XIV

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PART V:  POST-INSPECTION  ACTIVITIES

17:   REPORTS AND FILES     	   17-1

     17A:  The Inspection Report  	   17-3
             Elements of an Inspection Report     	   17-4
             Conclusions Regarding Compliance    	   17-6
             Tips for Writing an Effective Inspection Report       .  .  .  .   17-7
             Narrative Report Outline     	   17-13
             Inspection Report Evaluation Guide    	   17-16
               Exhibit:   Inspection Report Evaluation Guide     .  .  .  .   17-17
     17B:  Official Files    	   17-23
             Components of the Official Files      	   17-23
     17C:  Evidence Auditing	   17-27
               Evidence Auditing  Program	   17-27
     17D:  Office Security Measures    	   17-29

18:   LABORATORY ANALYSIS	   18-1

     18A:  Laboratory Operations  	   18-3
             Laboratory Functions   	   18-3
             Advance Scheduling	   18-3
             Relationships  with Laboratory Personnel     	   18-4
             Project Sample Analysis Time and Costs     	   18-4
             Data Quality Objectives   	   18-4
             Chain of Custody Procedures in the Lab     	   18-5
             Laboratory Analysis  	   18-6
             General Chemical Data Handling Procedures   	   18-8
             Analytical Corrective Actions    	   18-8
             Disposal of Samples or Other Physical Evidence       ....   18-9
             Laboratory Waste  Disposal Practices    	   18-9
               Exhibit:   Average Sample Analysis Times
                           and Fees	   18-10
     18B:  Laboratory Results    	   18-13
             Laboratory Results in Inspection Reports      	   18-13
             Data Evaluation	   18-14

19:   ENFORCEMENT PROCEEDINGS    	   19-1

     19A:  Appearing as a Witness    	   19-3
             Federal Rules Governing Witnesses    	   19-3
             Depositions	   19-6
             Testifying in an Enforcement Proceeding     	   19-8
             Witness Guidelines   	   19-17
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     19B:  Negotiation Techniques    	   19-23
             Introduction to Negotiations      	   19-24
             Managing Negotiations	   19-26
             Preparation	   19-27
             Managing People	   19-29
             Managing Time:  The Importance of Deadlines   	   19-32
             Managing the  Process   	   19-33
             Pointers for Conducting Negotiations      	   19-37

PART VI: COMMUNICATIONS

20:   PRESS AND PUBLIC RELATIONS   	   20-1

     20A:  Press Relations   	   20-3
             Civil Proceedings Press Policy      	   20-3
             Criminal Proceedings Press Policy     	   20-4
             EPA Press Division   	   20-6
             Dealing with the Press During Field Investigations        .  .   20-7
     20B:  Public Speaking  Guidelines    	   20-9
     20C:  Freedom  of Information Act   	   20-13

21:   COMMUNICATIONS SKILLS   	   21-1

        Leadership	   21-2
        Team Building	   21-2
        Effective Team Meetings   	   21-3
        Time Management	   21-4
        Assertiveness   	   21-5
        Stress Management   	   21-6
        Reducing Stress at Work    	   21-7
        Reducing Stress Outside of Work    	   21-8
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1 - Introduction

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                                       CHAPTER 1

                  INTRODUCTION TO ENVIRONMENTAL COMPLIANCE
Achieving  compliance with environmental  laws  and regulations  is crucial  to the success of
environmental programs. Without a high degree of compliance, the benefits envisioned by the
nation's array of laws to enhance and protect environmental quality will not be realized.  There is
virtually unanimous public support for strong Federal, State, and local enforcement of environmental
laws.

Since  its beginning in 1970, EPA's enforcement authorities have increased steadily, both through
strong enforcement provisions in newer environmental legislation and amendments  that provide
greater enforcement  powers under the older laws.  This steady growth in enforcement  authority
reflects a firm desire on the part of Congress -- and  of the public Congress represents --to see that
the Agency has effective tools for assuring compliance with  the nation's environmental laws.

Particularly  valuable  authorities  under several of  EPA's statutes enable the  Agency  to  issue
administrative orders compelling violators to come  into compliance, clean  up any contamination
they caused, and/or to pay civil penalties. Under most of EPA's major statutes now, the Agency may
litigate cases internally through an administrative litigation system presided over by EPA's own
administrative law judges  (or hearing officers); this  administrative system provides  a prompt
mechanism for  resolving violations. The  Agency can also refer cases to the U.S. Department of
Justice for civil or criminal prosecution in the U.S. Court system.

EPA and States under delegated or approved programs carry out comprehensive programs to foster
high levels of compliance using three main  approaches: promoting compliance  by  the  regulated
community as a whole; conducting compliance monitoring activities (including inspections) to detect
violations; and taking firm  but fair enforcement action against violators to correct violations and
create a strong enforcement presence.  Inspectors are a crucial link in this effort.

This chapter describes factors which motivate regulated industries to comply with environmental
requirements and the role of enforcement in achieving  compliance.
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Motivation for Compliance
What motivates a person or corporation to comply with an environmental law? There may be several
forces at work. Some of them, the "natural" motivating forces, occur without any help from EPA.
These forces alone seldom achieve high compliance levels.  But when other motivating forces are
added by environmental agencies, high levels of compliance can be achieved.

Natural Motivivating Forces	
These are inherent factors that influence a person to comply, whether that  person is a private
individual or a corporate employee or officer.  These forces generally fall in three categories:

     •  Societal/Moral Factors.  Among these are  (1) a fundamental sense  of social responsibility
        to obey the laws, and (2) a belief that protection of the environment is  a civic and personal
        duty. Both of these examples reflect widely held values in the United States today.

     •  Short-Run Economic Factors.  These include economic advantages  of compliance that will
        be realized immediately, such as reduced insurance premiums (not significant to date) or
        reduced materials costs  as a result of recycling.  Some companies have publicized their
        anti-pollution programs as an effort to "make pollution pay."

     •  Long-Run Economic Factors.  These involve economic advantages  of compliance that will
        not be realized until future  years, such as avoiding future liability caused by hazardous
        wastes seeping into a drinking water source, or avoiding bad publicity  that could hurt a
        company's sales or its stock  prices.

Natural Disincentives	
Working against  the  above  motivating  factors are several  disincentives,  or  factors  favoring
noncompliance. A few examples are:

     •  Concern for Individual Property Rights.  Some people view environmental regulations as
        an intrusion on their right to enjoyment of their private property.

     •  Economic Advantages of Noncompliance.  A company not only may save  money by  not
        installing the required pollution-control equipment; it may gain a competitive edge over
        competitors that did install the equipment.

     •  Fear of Change. There is a prevalent, unconscious belief that known and familiar  practices
        are safe, while new and unfamiliar things are risky and possibly harmful.
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Motivating Forces Added bv Environmental Agencies
These are factors systematically added by environmental agencies to the natural motivating forces
described above to  help  achieve  fuller compliance.   These  added  forces involve two broad
approaches:

     •   Compliance Promotion. This involves all efforts to lead people to comply. Some compliance
         promotion efforts may focus on strengthening natural motivating factors, while others work
         to counteract natural disincentives.

         Among the many efforts in this field are: (1) training and technical assistance provided to
         many industries that must meet new environmental requirements, and (2) public information
         materials and television spot announcements to counteract misinformation about unleaded
         gasoline.

     •   Enforcement.  Enforcement consists of actions intended to compel people to comply and
         to create fear of the consequences of noncompliance. Enforcement actions take place only
         after a violation has occurred.  The EPA or an  environmental  agency  is  taking an
         enforcement response when it  responds  to a specific violation by invoking one of  the
         various forms of sanction or punishment. As will be discussed below,  enforcement also
         creates a deterrent effect  that motivates  people to comply.  This effect depends upon a
         potential violator's fear that noncompliance will be detected and that harmful consequences
         will follow, such as economic harm or imprisonment.  In  a  sense,  much "voluntary"
         compliance is actually a result of this deterrent effect.

The Role of Enforcement  in Achieving Compliance	

Enforcement is a paradox. Specific enforcement actions are taken against relatively few violators
at specific sites where inspections have revealed violations. But these actions are capable of fostering
compliance by am entire industry at  facilities all over the country.  Enforcement casts a wide shadow
of deterrence which dissuades people from violating the laws.

Enforcement is the essential driving force  that makes environmental laws  work.   Without
enforcement, these laws would be largely words on paper, because there are powerful disincentives
working  against compliance.  Enforcement evens the scales by adding a powerful incentive in favor
of compliance.

Enforcement stays the hand of the  would-be violator and encourages the person  who really wants
to comply.  It achieves these results chiefly through the fear of detection and  the  assurance of
fairness.  Both elements are highly  pertinent to the work of the inspector.

     •   Fear of Detection. A facility manager fears being caught in noncompliance by an inspection
         and suffering the consequences. The  manager may fear that the  company will lose money
         through a penalty or fine, that bad publicity will harm the company's sales, or that company
         managers will  have to serve a prison sentence. The manager may also  fear a salary cut or
         loss of his or her job as a result of an enforcement action.  Enforcement enhances these
         influences; lack of enforcement eliminates them.
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     •  Assurance of Fairness.  A manager who is willing to  comply  with the law wants  an
        assurance that competitors  will not be free to ignore the law and thereby keep their prices
        lower or accumulate more profit.  If enforcement is applied fairly and consistently, it gives
        this assurance of fairness (or "equity") to the cooperative  manager. Without enforcement,
        the manager who complies  could be making an uncalled-for sacrifice at the expense of the
        company and its stockholders, a result that was not intended by the law.

To create  these two  elements of deterrence, environmental agencies strive to  maintain a credible
enforcement presence. Four principal elements are involved  in creating deterrence for a credible
enforcement presence:

     •  Credible likelihood of detection.  The managers of a facility believe detection is likely if
        they know inspectors are active in visiting similar facilities.

     •  Serious consequences of detection. Facility managers believe detection will lead to serious
        consequences if they know that inspections of similar facilities have resulted in enforcement
        actions involving heavy penalties or jail sentences.

     •  Swift and sure response.  When facility managers see that EPA or State response to detection
        of a violation is quick and  inevitable, they know they cannot escape the consequences  by
        giving excuses or gaining time through lengthy bargaining.

     •  Fair and consistent response.  When facility managers see that EPA and State inspections
        and enforcement actions are fair and consistent, they perceive the assurance of fairness
        they need.   Also,  it  tells  them  the enforcement process is not open to favoritism  or
        bargaining for special  treatment.

A credible enforcement presence  gives facility managers a substantial incentive to comply.  Many
managers have concluded that it is good business strategy to comply with environmental regulations
and take the credit for good community citizenship.  Better that than fall  into  noncompliance and
get a black eye through  the unfavorable publicity that attaches to  violations. And although this is
considered by some as voluntary compliance, it owes much to enforcement, because the managers'
decision to comply is influenced partly by the knowledge that noncompliance involves serious risks.

An effective enforcement program begins with individual inspections and the specific enforcement
responses to violations detected by those inspections. If those inspections and enforcement responses
are done well, their effect is multiplied many-fold, so that many regulated parties are deterred from
violating the law.
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2 - Environmental Laws

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                                       CHAPTER 2

                              SUMMARY OF EPA STATUTES
There is no Federal, generic environmental statute.  Rather, a series of laws has been enacted by
Congress to  address environmental issues  as they have arisen and  been recognized  as requiring
national legislative and regulatory action. The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) was passed in 1946; the Clean Air  Act (CAA) and the Federal Water Pollution Control Act
(FWPCA, but now the Clean Water Act - CWA) were passed in the 1960s; the Safe Drinking Water
Act (SDWA),  the Toxic Substances  Control Act (TSCA), and  the Resource Conservation and
Recovery Act (RCRA) were enacted in the  1970s; and the Comprehensive Environmental Response,
Compensation  and Liability Act (CERCLA) became law in 1980.

Initially, several  different  agencies were  responsible for implementing environmental statutes.
FIFRA was administered by the Department of Agriculture, the CAA by the Department of Health,
Education, and Welfare, and the FWPCA by the Department  of the Interior.  The Environmental
Protection Agency was created by Presidential executive order in December, 1970, and principal
responsibility for administering FIFRA, the CAA, and the FWPCA  was vested in EPA to provide
focus to Federal regulatory efforts.  Responsibility for administering the other acts cited above was
vested directly in EPA by the Congress.

There are other statutes which apply  to environmental matters which are administered by other
governmental entities. For example, the transportation of hazardous waste is regulated principally
by the Department  of Transportation, surface mining by  the Office of Surface Mining, fish and
wildlife matters by  the Fish and Wildlife Service, oil spills by the Coast Guard, and dredging or
filling  of wetlands  by  the  Army Corps  of Engineers.   Where  there  is shared or  correlated
responsibility between EPA and these other agencies in carrying out their  legislative mandates,
memoranda of understanding and cooperative agreements  of various kinds generally have been or
are being developed to provide coordination and cooperation.

There are a number  of aspects that environmental laws administered by EPA generally share. Some
of them are:

     •  There generally are national  standards regulating the handling, emission, discharge, and
        disposal of harmful substances.

     •  The statutes are applied either through general rules at the State or Federal level,  through
        permits;, or both.

     •  States  are  given implementing  responsibility for most  programs (EPA authorizes  State
        program enforcement).

     •  There usually are  specific entry  and inspection  provisions in  addition to  authority for
        information requests and demands, monitoring, testing, and reporting.

     •  EPA generally is given the authority to issue notices  of violation and compliance orders.
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     •  The Agency usually is able  to seek injunctive relief through civil courts or impose it
        administratively.

     •  EPA usually can seek administrative penalties or civil or criminal remedies.

     •  The statutes generally provide emergency authority.

     •  The statutes generally enable EPA to eliminate, through assessment of financial penalties,
        any economic  advantage gained by a non-complying source as  a result  of its  non-
        compliance.

     •  Most statutes require their substantive requirements (although enforcement is  different
        than for private facilities).

     •  States may take enforcement action under applicable State law, however EPA may also
        pursue Federal enforcement action.

Following are summaries of the major provisions  of each of the laws administered by EPA.  The
summaries do not constitute  interpretations of  the  various acts,  but rather  are intended for
descriptive purposes only.
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                                    2A  CLEAN AIR ACT
Purpose
The Clean Air Act is intended to foster the protection and enhancement of the nation's air quality,
and to safeguard public health and welfare and the productive capacity of the population.  The Act
is divided into three titles.

     •  Title I deals with control  of pollution from stationary sources;

     •  Title II deals with control of pollution from mobile sources; and

     •  Title III addresses general and administrative matters.

The Act requires EPA to promulgate national ambient air quality standards (NAAQS) for certain
pollutants to protect the public health (primary NAAQS) and protect the public welfare (secondary
NAAQS).

Each State is required to adopt a  plan, called a State Implementation Plan (SIP), that limits emissions
from air pollution sources to the degree necessary to achieve and maintain the NAAQS.  The SIP
provides emission limitations, schedules and timetables for compliance by stationary sources.  The
Act focuses on "major" stationary sources or major modifications of existing sources. Major sources
are defined as sources which emit, or  have the potential to emit, more than a prescribed amount of
a designated pollutant.

States are also required to adopt measures to prevent significant deterioration of air quality (PSD)
in "clean air areas."  When a SIP is approved  by the Administrator, it is enforceable by both the
Federal and State governments.

In addition to the SIP regulatory scheme,  the Act establishes two  other major regulatory programs
for stationary sources. The New Source Performance Standards (NSPS) program establishes stringent
emissions limitations for "new" sources in designated industrial categories regardless of the State in
which the source is located or the  air  quality associated  with the area.

The second  program, the National Emissions  Standards for Hazardous Air Pollutants (NESHAP),
regulates emissions of  pollutants for which no NAAQS is applicable but which cause increases in
mortality or serious illnesses.
Major Regulatory Provisions	

     •   National Ambient Air Quality Standards/State Implementation Plans. For existing sources,
         Section 109 of the Act requires that EPA adopt and establish "National Ambient Air Quality
         Standards" for criteria pollutants (currently  paniculate  matter, sulfur dioxide, carbon
         monoxide, ozone, nitrogen dioxide, and lead) to protect public health and welfare.
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   The human health-related standards are designated "primary" ambient air quality standards,
   and the welfare-related standards are designated "secondary" ambient air quality standards.

   Section 110  of  the Act  requires each State to  submit  to  EPA for approval a  "State
   Implementation  Plan" for "implementation,  maintenance, and  enforcement"  of these
   standards in each air quality control region (or portion thereof) within the State. Each plan
   must include source-specific emission limitations, and such  other measures necessary to
   insure attainment and maintenance of primary or secondary standards.

   EPA  has designated all areas of the country as either "attainment" or "non-attainment" for
   each of the criteria pollutants.  SIPs must assure attainment of NAAQS by prescribed dates.
   SIPs must meet Federal requirements, but each State may choose  its own mix of emission
   controls for sources to meet the NAAQS. Controls may include stationary and mobile source
   emission  limits;  transportation  plans;  pre-construction review  of new sources;  Non-
   Attainment Area  (NAA)  and  Prevention of  Significant  Deterioration (PSD) permits for
   construction  of  new  sources; monitoring; and inspection and testing of vehicles.   Other
   measures may include  emission charges,  closing and  relocation of plants, changes in
   operations, and ways to reduce vehicular traffic including taxes, staggered work hours, and
   mass transportation.  The CAA prescribes that no SIP will be adopted without a public
   hearing, and sources affected by the SIP are entitled to participate.

•  New Source Performance  Standards (NSPS). For new or modified stationary sources of air
   pollution, the Act requires EPA to promulgate uniform Federal New Source Performance
   Standards (NSPS) for specific pollutants in industrial categories based  upon  adequately
   demonstrated control technology. Rather than tying control levels  to National Ambient Air
   Quality Standards, Congress required EPA to base these uniform emission standards on
   strictly technological considerations.

   The owner or operator of a new or modified source must demonstrate compliance with an
   applicable new  source performance standard within 180 days of initial start-up of the
   facility, and  at other times as required by EPA.

   EPA has primary authority for enforcement of Federal New Source Performance Standards
   unless authority is delegated to States.  In such cases, EPA and the States have concurrent
   enforcement authority.

•  Prevention of Significant  Deterioration (PSD). Part C of Title I, "Prevention of Significant
   Deterioration of Air Quality," applies in all  areas which are attaining the National  Ambient
   Air Quality Standards where a major source or modification is proposed to be constructed.
   Its purpose is to prevent the air quality in relatively clean areas from becoming significantly
   dirtier. A clean air area  is one  where the  air quality is attaining the ambient  primary or
   secondary standard. Designation is pollutant-specific so that an area can be non-attainment
   for one pollutant, but clean for another. It  establishes three classifications of geographical
   areas for  proposed emitters of sulfur dioxide and particulate  matter.

       Class  I -- only minor  air quality degradation  allowed;
       Class  II -- moderate degradation allowed; and
       Class  III  -- substantial degradation allowed.
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In no case would PSD allow air quality to deteriorate below secondary air quality standards.
"Baseline" is the existing air quality for the area at the time the first PSD is applied for.
"Increments" are the maximum amount of deterioration that can occur in an attainment area
over baseline.  Increments in Class I  areas are smaller  than  for  Class II, and Class II
increments  are smaller than for Class III areas.

For purposes of PSD, a major emitting source is one of  26 designated categories which
emits or has the potential to emit 100 tons/year of the designated air pollutant. A source
that  is not  within  26  designated categories is a  major source  if it emits more than 250
tons/year.

Any proposed major  new source or major  modification is subject to pre-construction
review by EPA, by a State  to whom the program is delegated or  by a State which has
adopted PSD requirements in its SIP, so that a permit for increases will not be exceeded.
The  permit describes the level of control to be applied and what portion of the increment
may be made available to that source by the State (CAA, Part C). Where EPA has delegated
such review,  EPA  and the State have concurrent  enforcement authority.

Non-Attainment Areas (NAA).   Non-attainment  areas are  those which are  not  in
compliance with national air quality standards.  For a proposed source which will emit a
criteria pollutant in an  area  where the standards are presently being exceeded for that
pollutant, even more stringent pre-construction review requirements apply.  This  review
is the primary responsibility of the State where  the source is proposed to be constructed,
with overview authority vested in EPA.

New construction of major sources or major modifications in an NAA is prohibited unless
the SIP provides for the following:

-  The new source will meet an emission limitation for the non-attainment pollutant which
   reflects the lowest achievable emission rate (LAER);

   All other sources within the State owned by the subject company are in compliance;

-  The proposed  emissions  of the  non-attainment  pollutant  are  more  than offset by
   enforceable reductions of emissions from existing sources in the  non-attainment areas;
   and

   The emissions offsets will provide a  positive net air quality benefit in the affected area.

The applying source in an NAA must, therefore, obtain a greater than 1:1 reduction of the
pollutant or pollutants for which the area has been designated non-attainment. Emission
offsets from existing sources may need to be obtained, especially  if the new source will have
emissions that would exceed  the allowance for the NAA.  In these situations, the  source
would need to obtain enforceable agreements from other sources in  the NAA, or from its
own plants  in the NAA.
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National Emissions Standards for Hazardous Air Pollutants (NESHAPs).  Section 112 of
the CAA defines hazardous air pollutants as those for which no air quality standard is
applicable  but  which  are  judged  to  increase  mortality  or  serious irreversible or
incapacitating illness. NESHAP standards are based on health effects with strong reliance
on technological capabilities. They apply to both existing and new stationary sources.  The
NESHAP program can be delegated to any qualifying State (CAA, Section 112).

The four hazardous pollutants currently  regulated are asbestos, beryllium, mercury, and
vinyl chloride. See 40 CFR Part 61.

Under NESHAPs, no person may construct any new source unless  EPA determines that
the source will not cause violations of the standard. For existing sources, a standard does
not apply until  90 days after its effective  date.  However,   EPA may grant a waiver
permitting an existing source up to two (2) years after the effective date to comply with
the standard, if EPA finds that  time is necessary for installation of controls and that steps
will be taken to  prevent endangerment of human health in the interim.

Motor  Vehicle Emission Control.  Title II of the Clean Air Act  established  the Federal
motor  vehicle emission control  program which is designed to regulate and  control the
emissions from all classes of motor vehicles and engines throughout their useful life. Under
Section 202 of the Act, EPA establishes standards for various pollutants by model year for
classes of motorcycles, passenger vehicles, trucks and truck  engines (as determined by gross
weight) which must be met for a prescribed "useful life" period. The Agency then exercises
its  oversight and enforcement  authorities to ensure  that  new vehicles and  engines are
designed and built to comply with the applicable standards (Section 206, new vehicle testing)
and continue to do so throughout their useful life (Section 207, recalls and warranties).  The
Agency also ensures that other regulated parties are in appropriate compliance so as not to
degrade such emissions performance.

The Administrator has authority under Section 211  to regulate  fuels and  fuel additives
which would contribute to air pollution or impair motor vehicle emissions performance.

In-use compliance tests are to be administered through State or local emissions inspection
and maintenance (I/M) programs.  Since Title I of the Act requires I/M  for any area that
could not meet the NAAQS for CO or ozone by 1987, there  are a number of States and
local areas that are administering these tests.

Prohibited Acts  for Motor Vehicle Manufacturing and Sale.  Section 203(a)(l) prohibits
the sale or introduction into commerce of any vehicle which is not covered by a certificate
of conformity. Section 203(a)(l) further prohibits manufacturers, importers-for-resale and
individuals from importing nonconforming  vehicles, whether  for resale or personal use,
except as provided by EPA regulations.  Section 203(a)(2)  prohibits any person to fail or
refuse  to permit access to or copying of records  or  to fail to make reports or provide
information as required under Title II or for any person to fail or refuse to permit entry,
testing, or inspection authorized under Title II.
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        Section 203(a)(3)(A)  prohibits manufacturers and dealers from removing or rendering
        inoperative emission control devices either prior to or after sale and delivery to the vehicle
        purchaser.  Section 203(a)(3)(B) prohibits persons engaged in vehicle repair, servicing,
        selling, leasing or trading motor vehicles and fleet operators from "removing or rendering
        inoperative" as well.  Section 203(a) prohibits anyone from "causing" tampering.  The Act
        does not at this time authorize EPA to enforce these prohibitions against individual vehicle
        owners. Since use  of leaded fuel in vehicles with catalytic converters requiring unleaded
        fuel does render the emission control system inoperative by poisoning the catalyst, "fuel
        switching," as well  as "tampering" is deemed to be prohibited under this section.

        Regulation of Fuels.  Under Section 211(c)(l)(A), EPA may regulate any fuel or  fuel
        additive for use in motor vehicles if  the resulting emission would cause or contribute to
        air pollution which may reasonably be anticipated to endanger public health or welfare,
        or if the emission products would significantly impair any emission control device or system
        in general use. EPA has issued regulations for the lead content in both  leaded and unleaded
        gasoline and prohibited fuels switching by certain parties as well under this authority.

        Under Section 211 (a), (b), and (e), EPA has established regulations requiring the registration
        of new fuels and fuel additives. Section 21 l(f)(l) prohibits any manufacturer of fuel or fuel
        additive from first introducing into commerce, or increasing the concentration in use of,
        any fuel or additive  for general use  in post-1974 model year automobiles which is not
        "substantially similar" to fuels or additives used in certifying such vehicles. This prohibition
        may be waived under Section 211(f)(4) if the manufacturer establishes that  the fuel or
        additive and its emission products will not cause or contribute to the failure of any emission
        control system to meet emission standards over its useful life.  A number of fuels, such as
        ethanol and other alcohol blends, have been granted such waivers under this provision.
Enforcement Authorities	

The rest of CAA. is discussed as bullets under this paragraph.  However, they do not all apply to
Section 113.  Section 113 of the Clean Air Act provides the basic  enforcement mechanisms for
stationary source violations.

     •   Administrative Orders. Administrative orders under Section 113(a)(l) are generally only
         available for requiring new or existing sources to comply within a period of less than 30
         days from receipt of the  order (e.g., by prompt alteration or cessation of operations).
         Delayed compliance orders under Section 113(d)(l) are available only for an existing source
         which can comply with State Implementation  Plan requirements by July 1, 1979, or three
         years after the statutory attainment date, whichever is later. (The statutory attainment date
         has  not yet been passed in all instances.)  Where available, these orders are highly sought
         after by violating sources  since, once effective, they insulate a source  from Federal  and
         State civil and criminal liability as well as citizen suits under Section 304, 42 U.S.C. 7604,
         as long as the source remains in compliance with the requirements of the order.

         Delayed compliance orders can be  issued by either EPA or the States.  If issued  by a State,
         a delayed compliance order for a major source must be approved by EPA in order to be
         effective. Upon approval by EPA, the order becomes part of the SIP, and thus enforceable
         by EPA and  the State.
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Delayed compliance orders are subject to the following criteria:

        -   The source must be currently unable to comply;

            Notice and opportunity for a public hearing must be provided;

        -   The order must include a schedule for compliance;

        -   The order must require compliance with applicable interim controls;

        -   The order must include reasonable requirements  for monitoring and reporting;

        -   The order must require final compliance as expeditkmsly as practicable, but no later
            than July 1, 1979, or three years after the date specified in the SIP, whichever is later;
            and

            If the order is issued  to a "major source,"  it must notify  the source of its possible
            liability for non-compliance penalties under Section 120.

     •  Civil Action.  Section 113(b) provides that EPA shall commence a civil action against any
        person who is  the owner or operator  of a major stationary source, for a permanent or
        temporary injunction, or assess and recover a civil penalty of not more than $25,000 per
        day of violation, or both,  for the below violations.   EPA may in the case of any other
        person, commence a similar civil action.  Violations  subject to the section are:

            Violations of administrative orders issued under  Section 113(a);

            Violations of  SIP requirements (including the  requirements of delayed compliance
            orders issued and/or approved under Section 113(d)(l));

        -   Violations of Federal NSPS;

        -   Violations of NESHAPs;

            Violations  of coal  conversion  requirements imposed under  authority  of former
            Section 119(g) or the current Section  113(d)(5):

            Violations of Section 324 relating to the cost of certain vapor recovery;

            Violations of current Section  119 relating to smelter orders;

            Violations of any ozone regulation  under  Part B  of Title I;

            Failure or refusal to comply with Section 114 information requests; and

            Illegal construction or modification of any major  stationary source in a non-attainment
            area or violation of PSD regulations.
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   Sections 205 and 211 provide civil enforcement authority for violations of the motor vehicle
   emission control program.   Section 205 authorizes penalties  for  violations  of Section
   203(a)(l)(2) and (4) of not more than $10,000.  Any person, manufacturer or dealer, who
   violates Section 203(a)(3) is subject to a penalty of not more than $2,500.  Section 211(d)
   authorizes  civil penalties of $10,000 for violations of fuel regulation and registration
   requirements.  Title II enforcement, unlike other air  programs, is run  out of EPA
   Headquarters or Ann Arbor,  MI.

•  Criminal Prosecution.  Criminal prosecutions may be initiated against any person who
   "knowingly":

   -   Violates a SIP requirement;

       Violates any  administrative  orders issued  under Section 113(a)  or (d) or Section 119
       (relating to nonferrous smelters);

       Violates Federal New Source Performance Standards or National Emissions Standards
       for Hazardous Pollutants;

       Violates  any  coal conversion requirements  imposed under the authority  of former
       Section 119(g);

   -   Fails to pay a non-compliance penalty under Section 120; or

       Violates any requirement of Title I, Part B of the Act, relating to ozone protection.

   Such knowing violations are punishable by fines of up  to $25,000 per day of violation, or
   imprisonment for up to one year, or both. Second convictions are punishable by fines of
   up to $50,000  per day of violation, or imprisonment  for up to two years or  both.  For
   purposes of criminal violations the term "person" also  includes  any  responsible corporate
   officer.

•  Administratively Assessed Non-compliance Penalties.  Regulations promulgated pursuant
   to  Section  120 impose  administratively assessed "non-compliance penalties"  for non-
   compliance with  the following:

       Emission limitations, emission standards,  or compliance schedules established under
       SIPs;

   -   Federal NSPS or NESHAPs;

       Extensions, orders, suspensions, or Federal or State consent decrees issued to enforce
       SIPs, NSPS, or NESHAPs; and

       Interim emission control requirements under administrative orders for non-ferrous
       smelters.

   These administrative penalties are in addition to any civil or criminal penalties that may
   be imposed judicially under the Act or under State or local law.   They are designed to
   remove any  economic benefit inuring to the violator  as a  result of the violator's non-
   compliance.
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Other Enforcement Mechanisms
        Citizen Suits.  Section 304 of the Act allows citizens  to commence civil actions against
        sources violating emission limitations or standards, or Federal or State administrative orders.
        In addition, a citizen may  sue  EPA  when it fails to perform  a non-discretionary act.
        Finally, a citizen may sue to prohibit construction of new or modified sources without the
        permit required under Part C of Title I (Prevention of Significant Deterioration), or Part
        D of Title I (relating to non-attainment areas).

        Emergency  Provisions.  Section 303 of the Act permits  EPA to commence a civil action to
        restrain any  person from  causing or  contributing  to  an  imminent  and  substantial
        endangerment to human health by the emission of air  pollutants.  In addition, if prompt
        protection of human health cannot be assured by commencement of such civil actions, EPA
        may issue administrative orders  to accomplish the same result in the interim until a civil
        action is commenced within that 24 hour period, in which case  the effective period is
        extended to 48 hours. Violations of any such order are punishable by fines of up to $5,000
        per day of violation.

        Inelieibilitv from Federal Procurement. Under Section 306, no Federal agency may enter
        into a contract with a  person convicted  of an offense under Section  113(c)(l) for  the
        procurement  of  any  goods,  materials, or  services  at  a facility  which gave  rise to  the
        conviction.  In addition, Executive Order  11738 and EPA  regulations (40 CFR Part 15),
        which were issued pursuant to this section, establish procedures whereby violating facilities
        may be rendered potentially ineligible for Federal contracts, grants or loans, on the basis
        of any administrative or judicial determination of non-compliance.

        Information Requests. Section 114 of the Act contains broad inspection and right of entry
        authority permitting EPA to request monitoring reports and other data and to enter into
        premises of an emission source.  Section  208 requires motor vehicle manufacturers  to
        provide information on compliance with Title II requirements.
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                                 2B  CLEAN WATER ACT
Purpose
The purpose of the Clean Water Act is to assure that the nation's waters are safe to the public and
support fish and other stream life. These objectives, contained in the statute and commonly known
as the "fishable and swimmable" provisions of the Act, were to be achieved by 1985.

Through the 1950s and 1960s, water pollution control enforcement emphasis was centered primarily
on the States' ability to set ambient water quality standards, develop plans to achieve those standards,
and enforce the plans.

In 1972,  the  Federal  Water Pollution Control Act (FWPCA)  was significantly amended.  Those
changes initiated  a new  regulatory and enforcement approach to  cleaning up the nation's waters,
combining  the setting of State water quality standards based on desired water use  objectives (such
as cold water fishery) with establishment of individual facility effluent limitations. The amendments
called for compliance by all point-source dischargers with technology-based standards implemented
through discharge permits.  Also, they added Section 404 which established a new permit program
to control the discharge  of dredged material into water of the United States, including wetlands.

A strong Federal  enforcement program was created, and substantial monies were made available
($56 billion over the decade between 1972 and 1982) for construction of municipal sewage treatment
plants (known as POTWs — publicly owned treatment works) to assist municipalities in coming into
compliance. The Federal Water Pollution Control Act was amended several times in 1977 to, among
other things, enhance the State role in management of the construction grants program and to exempt
from the Section 404 permit requirement certain activities believed to have minimal impacts; in 1981
by lowering the Federal  share of the cost of the construction grant program from 75% to 55%; and
again in 1987 to add toxic and non-point control provisions, and to provide for the establishment of
State Revolving Loan Programs (SRF).  The Act is commonly known as the Clean Water Act.
Major Regulatory Provisions	

     •  State Water Quality Standards and Water Quality Management Plans.  Section 303 of the
        CWA authorized the States to establish ambient water quality standards and water quality
        management plans.  If implementation of national technology standards are not sufficient
        to attain desired stream water quality, States are required to determine  maximum daily
        allowable pollutant  loads for  those waters.  The States must then develop effluent limits
        and compliance schedules for point source dischargers (wasteload allocation plans) to assure
        the attainment of the desired  water quality.
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The National Pollutant Discharge  Elimination  System (NPDES).   This program was
established by Section 402 of the CWA and, under it, EPA and approved States have issued
more than 60,000 NPDES permits. Permits are required for all point sources from which
pollutants are discharged to navigable waters. An NPDES permit is required for any direct
discharge from new or existing sources.  Indirect  discharges through POTWs are regulated
under a separate program.

The NPDES permit is issued by EPA or an EPA-authorized State to include those applicable
provisions described previously.  It  is the specific document that provides the reference
point for enforcing Federal and  State effluent limitations for any  particular industrial
facility, including:

    Limits based on effluent guidelines;

    New Source Performance Standards;

-   Toxic effluent standards; and

    Limits based on State water quality standards under Section 303 of the  CWA, if any
    are applicable.

Permit elements include the amount of pollutants  permitted to be discharged, expressed in
terms of average  monthly  and  maximum  daily level, or  concentrations; compliance
schedules, if applicable standards cannot be met now; and monitoring,  testing and reporting
requirements.

In 1979 and 1980, the permit program was revised and one of the new features was the use
of Best Management Practices (BMPs) on a case-by-case basis to minimize the introduction
of toxic and hazardous substances into  surface waters.  BMPs are industry practices used
to reduce secondary pollution (e.g., raw material storage piles shall be covered and protected
against rain and runoff). BMPs do not have numerical limits and, therefore, are different
from effluent limits.

Effluent Guidelines.  Section 304 of the CWA authorizes EPA to set  restrictions on the
amount of pollutants discharged at industrial plant outfalls. Amounts are usually expressed
as weight per volume of discharge  (e.g., 30 mg/liter) or as weight per unit of product (e.g.,
0.5 lb/1,000  Ib product manufactured). The standards are different  for each industry.
Effluent guidelines are applied  to individual plants through the NPDES permit program.
There are three levels of technology for existing industrial sources:

-   Best Practicable Control Technology (BPT),

    Best Conventional Technology (BCT), and

    Best Available Technology  Economically Achievable (BAT).
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   BPT  was previously  intended  to  be in  place  by industry  in  1977,  and BAT in  1983.
   Amendments to the CWA modified  this  schedule whereby a very limited BPT extension
   was granted to 1979,  and the BAT standard is to be met "as  expeditiously as practicable,"
   but no later than March 31, 1989.   The amendments divided all pollutants into  three
   categories:

   -   "Conventional" pollutants, which were to meet BCT limitations by July  1984;

   -   "Toxic" pollutants, which were to achieve BAT criteria by July 1987; and

   -   Other pollutants,  which are to comply with limitations no later than three years after
       limitations are established, but not later than March 1989.

•  New Source Performance Standards.  New Source Performance Standards (NSPS) are closely
   related to BAT for existing sources, but are not quite the same. NSPS are different for each
   industrial category.   These  standards must  be  achieved when  the new industrial source
   begins to discharge.  NSPS permits will be effective for a period of 10 years, as compared
   to 5 years or less for the BPT and BAT-type permits. This 10-year protection insulates
   against change in BCT or BAT requirements, but does not hold against Section 307(a) toxic
   pollutant standards or against "surrogate" pollutants that are used to control hazardous or
   toxic pollutants.

   A permit application  must be made.  Adequate information  must be submitted, including
   basic facility descriptions; SIC codes; regulated activities; lists  of current environmental
   permits; descriptions  of all outfalls; drawings; flows; treatment; production; compliance
   schedules; effluent characteristics; use of toxins; potential discharges; and bio-assay toxicity
   tests performed.

   Applicants  must conduct analytical testing for pollutants  for  BOD,  COD, TOC, TSS,
   ammonia, temperature and pH.  The applicant, if included within any of the 34 "primary
   industry" categories,  must sample  for all toxic  metals, cyanide,  and phenols listed in  the
   application, and for specified organic toxic  pollutant fractions.

   The applicant must list hazardous substances believed to be present at the facility.  Testing
   is not required, but analytical results must be provided, if available.

•  Municipal and Industrial Stormwater  Permits. The 1987 amendments added Section 402(p),
   which requires EPA to establish the Stormwater permit program.  Cities with a population
   greater than 250,000  must file permit applications by February 1990, and cities with a
   population greater than 100,000, but less than 250,000 must  file applications by February
   1991. Industries with  Stormwater discharges must file permit applications by February 1990.
   The  permits  issued  must  reduce  pollutants  to  the  maximum extent  practicable  for
   municipalities, or to technology-based requirements for industry.

   Immediate corrective actions must be taken  when  a discharge contributes to a violation of
   a water quality standard, or  is a significant contributor of pollutants to the nation's waters.
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•   Permittee Reporting. The Discharge Monitoring Report (DMR), submitted regularly by
    the permittee, provides a summary of the discharger's records on a monthly or quarterly
    basis for effluent discharge levels.  Non-compliance reports must be submitted quarterly
    on the cause of non-complying discharges, period of non-compliance, expected return to
    compliance, and  plans to minimize or eliminate recurrence of incident.

    EPA shall also be notified within 24 hours of non-compliance involving discharge of toxic
    pollutants, threat to drinking water, or injury to human health.

    Non-compliance  due to intentional diversion of waste ("by-pass") shall be reported promptly
    to the permitting agency, and may  be permissible if essential to prevent loss of life or
    serious property  damage.

    Temporary non-compliance due to factors beyond the reasonable control of the permittee
    ("upset") shall be  promptly reported to the Agency.

•   Pretreatment Standards for Indirect Discharges to Publicly-Owned Treatment Works. New
    and existing industrial users who discharge to POTWs are subject to general and categorical
    pretreatment standards. The categorical standards are primarily directed toward control of
    toxic pollutants in  specific industries and to prevent interference  with effective sewage
    treatment by the  POTW.

    General Pretreatment Standards prohibit interference, pass-through,  fire or explosion
    hazards, corrosivity, solid or viscous obstructions, "slug" discharges, and heat sufficient to
    inhibit biological activity at POTWs.

    Categorical Standards are to be expressed as concentration limits or mass  weight per unit
    of production.  Sources must also  be in compliance 3 years  after promulgation of the
    standards.  Variances can be obtained for fundamentally different factors, or if industrial
    pollutants are consistently being removed by the POTW.

    Users must provide to  the appropriate agency (EPA, State or POTWs having approved
    pretreatment programs) basic information, SIC code, average and maximum daily discharge,
    characteristics of pollutants, applicable standards, and certification whether standards are
    being met and, if not, what pretreatment  is necessary, and a compliance schedule.  Reports
    and information  are to be submitted at 6-month intervals.

    POTWs of a certain size or character  are  required to  develop and implement  local
    pretreatment programs to control  the discharges of local  industrial facilities  into the
    treatment works.  These programs are to be designed to prevent interference, pass-throughs,
    or improper sludge make-up.

•   Non-Point Source Pollution Control. Sections 208 and 319 of the CWA provide for control
    of non-point source pollution, and direct States to establish planning bodies to formulate
    area-wide  pollution control plans and prepare an assessment which identifies waters which
    are unlikely to comply with the State standards without additional non-point source controls.
    NPDES permits cannot be issued where the permit may conflict with an approved Section
    208  plan.
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Dredge or Fill Discharge Permit Program.  Section 404 of the Clean Water Act regulates
discharges of dredged or fill material into waters of the United States, including wetlands.
Wetlands are mostly semi-aquatic lands that are either inundated or saturated by water for
varying periods of time during the growing season (The regulatory definition of "wetlands"
is at 40 CFR Part 230.3(t)).

The Section 404 program is co-administered by the U.S. Army Corps of Engineers and
EPA.  The Corps  bears the day-to-day administrative responsibilities for the program,
which includes reviewing permit applications and determining whether to issue or deny
applications for dredge or fill permits.  EPA also has extensive authority for determining
how the  404 program is implemented.  It develops, in conjunction with the  Corps,  the
Section 404(b)(l) Guidelines, the environmental standards that the Corps must apply when
evaluating permit applications.  Under Section 404(c), EPA has discretionary authority to
veto or restrict  discharges  if it determines that the proposed^ discharge will have an
"unacceptable adverse  effect" on  stated  resource areas.    EPA's  other  Section 404
responsibilities include:  determining and defining the geographic scope of Section 404;
reviewing permit  applications and providing recommendations to the Corps  regarding
permit issuance,  restriction, or denial; defining activities  that may be  exempt from
permitting under Section 404(f); and approving and overseeing State assumption of the 404
program; thus, unlike most other EPA programs, the Federal government continues to be
responsible for most 404 enforcement.

EPA and the Corps also share 404 enforcement responsibility. Pursuant to Section 309 of
the CWA, EPA has  explicit authority to act against persons discharging dredged or  fill
material without a Corps- or State-issued 404 permit, and to enforce against violations of
State-issued permits. Section 404(s)  gives the Corps explicit authority to enforce against
violations of Corps-issued permits.  Also, EPA has implicit authority to enforce against
violations of Corps-issued permits. Given the Corps' much larger field presence and since
it is the  permitting  authority, the EPA Regions have  in practice  utilized their limited
resources to identify and take action against unauthorized discharges, with the Corps taking
the lead on enforcing against noncompliance with the terms  of  Corps-issued permits.

The geographic scope of the Section 404 program extends to all "waters of the United States"
(the regulatory definition of "waters of the United States" is at 40 CFR Part 230.3(s)). This
phrase includes waters that are currently used, were used in the past, or may be susceptible
to use in interstate or foreign commerce, such as:  all waters subject to tidal  influence;
interstate waters and wetlands; isolated  waters and wetlands, if their use, degradation, or
destruction could affect interstate commerce; tributaries to any such waters or wetlands; and
wetlands adjacent  to any such waters.

Section 404 applies to  "discharges"  of dredged  or fill material, which  are  commonly
associated with projects such as channel construction and maintenance, port development,
fills to create development sites, and water  resource projects.  Other kinds of activities,
such as channelization and landclearing, are regulated as Section 404 discharges if they
involve more than very minor and incidental discharge of soil  into waters of the United
States. Many other activities that can adversely affect and even destroy wetlands, such as
drainage  and groundwater pumping,  are often conducted without discharging dredged or
fill material into waters of the United States and in those circumstances are not regulated
under Section 404.
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        Most Section 404 permits are issued on an individual or case-by-case basis. However, the
        Corps can forego review of individual activities  by issuing general permits on a state,
        regional, or national basis. General permits can be issued for categories of activities that
        are similar in nature and that will cause only minimal environmental effects individually
        and cumulatively.  Such permits may be modified or revoked  if the permitted activities
        are found to have an adverse environmental impact.  Moreover, on a case-by-case basis,
        the Corps may invoke discretionary authority and require a discharger who would otherwise
        be covered by a general  permit to apply for an individual permit.

        Discharge of Oil and  Hazardous Substances. Section 311  of the CWA prohibits discharges
        of oil or hazardous substances in quantities that may be  harmful to waters of the United
        States.  The  appropriate Federal agency must be  immediately  notified of any spill of a
        "reportable quantity." Section 311 provides for cleanup of spills and requires plans for
        preparation of Spill Prevention, Control and Countermeasures (SPCC plans).

        Over 300 substances have been defined as hazardous under Section 311, and each of these
        substances has a "reportable quantity" (40 CFR Parts 116 and 117, 1980).

        A person or corporation  who properly notifies the Agency of the discharge of a reportable
        quantity of oil or hazardous substance is immune from criminal prosecution, but is liable
        for civil penalties. Additionally, those who cause the spill are liable for the costs of cleanup
        and removal.  If the Federal government must clean up the spill, the discharger of the spill
        is liable for cleanup costs. There are maximum liability limits, depending upon  the type
        of  facility and  spill.   These  limits do not apply  if the discharge resulted from willful
        negligence or misconduct of the owner.

        Certain discharges of oil and hazardous material  that flow  from  a point source may  be
        excluded from Section 311 liability if, during preparation of the NPDES permit covering
        that facility, conditions are added to the permit to avoid the occurrence of a spill.
Enforcement Authorities	

The  Clean  Water Act  authorizes States  to  be the first-line enforcers,  although EPA  retains
independent authority to take enforcement action in both authorized and unauthorized States.

     •  Administrative Compliance Orders.  Section 309(a) allows EPA to  order persons violating
        the Act to comply with the Act and to set a reasonable schedule for doing so.  There is no
        required hearing process associated with these orders.

     •  Administrative Penalties.  Section 309(g) allows EPA separately to assess administrative
        penalties (after consultation with the State). The administrative penalties are of two classes:

            Class I, with an informal hearing process, which can carry penalties up to $25,000;  and

            Class II, which involves formal Administrative Procedure Act hearings, with penalties
            up to $125,000.

        Actions  under this section can  preclude other  civil penalty action or a  citizen suit.
        Interested parties can comment on proposed penalty assessments.

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•  Civil Penalties.  Sections 309(b) and (d) and 404 provide for appropriate injunctive relief
   and civil penalties of up to $25,000 per day  for each  violation  of the  Act or permit
   limitations.

•  Criminal Penalties. Section 309(c) of the Act provides for criminal penalties of a fine of
   $2,500 to $25,000 per day, or up to 1 year imprisonment, or both, for negligent violations
   of  the  Act. (For subsequent  convictions, fines  up  to $50,000  per day,  or  2 years
   imprisonment, or both, may be called for.)

   Knowing violations are punishable by a fine of $5,000 to $50,000 per day, or up to 3 years
   of imprisonment, or both. (Subsequent convictions call for a fine up to $100,000  per day,
   or 6 years  imprisonment, or both.)

   Any person who violates the Act, and knows other persons are placed in imminent danger
   of  death or serious  bodily injury,  is subject  to a fine  up to  $250,000 or  15 years
   imprisonment, or both.  Organizations convicted are subject to  a  fine up to $1,000,000.
   The punishment is doubled for subsequent convictions.

•  Sewer Bans.  Under  Section 402(h), EPA may pursue in  court an order restricting or
   precluding new  sewer hookups to POTWs  violating permit limits.

•  CWA Enforceable Provisions.  Violations of the Act may be primarily categorized into the
   following areas:

       Direict  discharges other than those complying with an NPDES or  dredge and fill permit;

       Indirect discharges in violation of national pretreatment requirements;

       Failure to perform wastewater monitoring, sampling, or test result reporting which are
       established by national requirements;

   -  Improper discharge or disposal of sewage sludge;

       Violations of administrative orders; and

       Noncompliance with Section 308 information request letters.

•  Inspection and  Information-Gathering  Authority.  The CWA contains broad inspection
   authority (under Section 308),  including the right of entry for access to records, inspection
   of monitoring equipment, and  taking samples. Inspections may be made by EPA,  State, or
   contractor personnel authorized by EPA pursuant to the 1987 CWA amendments.  EPA also
   may  require owners  and operators  of point sources to maintain  records, conducting
   sampling,  make reports, and provide other relevant information.

•  Inelieibilitv from Federal Procurement and Assistance.  Under  Section 508, no Federal
   agency may enter into a contract with a person convicted of an offense under Section 309(c)
   for the procurement of any goods, materials, or services at a facility which gave rise to the
   conviction.  In  addition,  pursuant  to Section  508, Executive  Order 11738 and  EPA
   regulations (40 CFR Part 15) were issued rendering violating facilities potentially ineligible
   for  Federal  contracts,  grants  or loans, on the basis of any administrative or judicial
   determination of non-compliance.
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                  2C RESOURCE CONSERVATION AND RECOVERY ACT
Purposes
RCRA was signed on October 21, 1976, and subsequently amended in 1980 and 1984. Its major
purposes are  to provide "cradle to grave" management of hazardous wastes, management of solid
wastes, and regulation of underground storage tanks containing chemical and petroleum products.

Hazardous wastes; are subject to regulation in their generation, transport, treatment,  storage and
disposal under Subtitle  C.  Subtitle C authorizes a comprehensive Federal program  to  regulate
hazardous wastes from generation to ultimate disposal. A waste is hazardous under Subtitle C if it
exhibits hazardous characteristics (corrosivity,  reactivity, ignitability and/or extraction procedure
toxicity), or if specifically listed by EPA.  There are special management provisions for hazardous
wastes created by small generators and hazardous wastes that are intended to be reused  or recycled.
Wastes excluded from regulation as hazardous wastes are household waste; crop or animal waste;
mining overburden; wastes from processing and bonification of ores and minerals; flyash; bottom ash
waste; slag waste; flue gas emission control waste; and drilling fluids from energy development.

Solid  wastes, if land disposed, are regulated through State programs under Subtitle D.  Solid waste
includes garbage; refuse and sludge; and other solid, liquid, semi-solid or contained gaseous material
which is discarded, has  served its intended purpose, or is a mining or manufacturing by-product.
Most  industrial and commercial by-products qualify as a solid waste.  Exclusions from solid waste
include domestic sewage, irrigation return flow, material defined by the Atomic Energy Act, in situ
mining waste, and NPDES point sources.

The  1984 amendments  to RCRA, among  other  things, added Subtitle I, which enables  national
regulation of underground storage tanks for the first time.  Underground storage tanks subject to
Title I are those containing chemical and petroleum products; underground storage tanks containing
hazardous wastes are regulated under Subtitle C.
Major Regulatory Provisions	

     •   Hazardous Waste.  Subtitle C establishes the statutory framework for the comprehensive
         Federal and State regulation of hazardous waste. The significant provisions are:

            Waste  Identification  and  Listing.   Section 3001  requires  EPA  to  identify  the
            characteristics of hazardous wastes and  to list particular hazardous wastes.

         -   Generators. Section 3002 requires EPA to promulgate standards applicable to generators
            of hazardous waste.  The 1984 amendments added subsection  (b) which requires that
            each manifest include a certification by generators that they have a program of waste
            minimization, and that the proposed method of treatment, storage or disposal minimizes
            the present and future threat to human  health and the  environment.
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Transporters.   Section  3003  requires EPA  to promulgate  standards  applicable  to
transporters of hazardous  waste.  Subsection  (c),  added in  1984,  requires EPA  to
establish standards for transporters of fuel produced from hazardous waste.

Facility Standards.  Section 3004 requires EPA to promulgate standards applicable to
owners  and operators of hazardous waste treatment, storage, and disposal facilities.
The 1984 amendments added  several  significant  provisions  to this section, including
subsection (c) which bans  liquids in landfills;  subsection (q)  which requires EPA  to
establish standards applicable to owners and operators of facilities which produce fuel
from hazardous waste; subsection (t) which provides for direct action against guarantors
under certain circumstances; subsection (u) which requires corrective action at permitted
facilities; and subsection (v) which requires corrective action beyond facility boundaries.

Permits for Facilities.  Section 3005 requires EPA to promulgate regulations establishing
a permit program  for  hazardous waste  treatment, storage,  and disposal facilities.
Subsection (e)(2) was added in 1984 to provide that interim status facilities would lose
their interim status 12 months after enactment  (November 8,  1985),  unless the  owner
or operator submitted a final Part B permit application and certified that the facility
was in compliance with applicable and financial responsibility requirements.

State Programs.  Section 3006 provides for EPA to authorize State hazardous waste
programs to operate in lieu of the Federal program, and requires EPA to  promulgate
guidelines to assist States in developing such programs.

State Authority. Section 3009 requires that any State or local requirements respecting
hazardous waste management  be at  least  as stringent as any Federal  regulations prior
to the State receiving authorization.

Effective Date.  Section 3010 requires persons generating or transporting hazardous
waste,  or owning  or  operating  a facility for the treatment,  storage, or  disposal  of
hazardous waste, to notify the Agency of such activities, and provides that regulations
promulgated  under Subtitle C become effective six  months  from  the date of their
promulgation.

Assistance to States. Section 3011 authorizes the  appropriation of funds to the States
for purposes  of assisting them in the  development and implementation of authorized
State hazardous waste programs, and provides guidelines for the allocation of such
funds.

State Inventory. Section 3012 requires each State to submit to the Agency an inventory
describing the location of each site within the State at which hazardous waste has, at any
time, been stored  or disposed.  (The  provisions of Section  3012 which required the
promulgation of regulations establishing standards for the protection of public  health
and the environment from hazards associated with recycled oil have been redesignated
as Subsection 3014(a).)
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-  Restrictions on Recycled Oil.  Section 3014 requires EPA to establish standards and
   other requirements as  necessary to protect public  health and the environment  from
   hazards associated with recycled oil. The 1984 amendments added subsection (b) which
   required EPA to propose, not later than 12 months after enactment (November 8, 1985),
   whether to list or identify used automobile and truck crankcase oil as hazardous waste,
   and not later than 24 months after enactment, to make a final determination whether
   to list or identify such oil; and subsection (c) which requires EPA to establish standards
   regarding the generation and transportation of used oil which is recycled as may be
   necessary to protect human health and the environment.

-  Export of Hazardous Waste.  Section 3017 prohibits the export of any hazardous waste
   unless the person exporting such waste provides notification to the Administrator; the
   receiving country has consented to accept such waste; the consent is attached to the
   manifest; and the shipment conforms  to the terms of the consent, or the U.S. and the
   receiving country have entered into an agreement  and the shipment conforms to the
   terms of such agreement. The section also requires that EPA promulgate implementing
   regulations not later than 12 months after enactment (November 8, 1985).

Solid Wastes. The  second  major part of RCRA, Subtitle D, provides for developing and
encouraging methods for the disposal of solid wastes which are environmentally sound and
conserve valuable resources.  To fulfill these goals, Subtitle D:

   Directs the promulgation of guidelines and criteria  for the management of solid waste
   (Sections 1008 and 4004);

   Provides for technical and financial assistance to States and local governments for the
   development of  solid  waste management  plans (Sections 4002,  4003,  4006, 4007,
   and 4008); and

   Prohibits future open dumping on land, and requires the  conversion of existing  open
   dumps to non-hazardous facilities (Section 4005).

Underground Storage Tanks.  The 1984 amendments added Subtitle  I to the existing
provisions of RCRA.  Subtitle I provides for the regulations of underground storage tanks
containing chemical  and  petroleum products.   Underground  storage  tanks  containing
hazardous waste are  regulated under  Subtitle C.  The major provisions of the Subtitle
include:

-  Notification.  Section  9002  requires each owner of an underground storage  tank to
   notify the State or local agency of its  existence within 18  months after enactment.

-  Release.  Detection. Prevention, and Correction.   Section 9003  requires  EPA to
   promulgate release, detection,  prevention, and correction  regulations applicable to all
   owners and operators of underground storage tanks, as may be necessary to protect
   human health and the environment. The section also provides that, until  the effective
   date of standards promulgated by  EPA, no person  may install such tanks unless they
   meet certain technical requirements.
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     •  Other Provisions.  In  addition to the Subtitle C, D, and  I provisions of RCRA, other
        important sections of RCRA include:

        -   Control of Hazardous Waste Injection.  Section 7010 prohibits underground injection
            of hazardous waste into or above any formation which contain an underground source
            of drinking  water within 1/4 mile of the injection well. The provision is enforceable
            under Sections 7002 and 7003, and under the Safe Drinking Water Act.

        -   Technical Assistance.  Section 2003 provides technical assistance to Federal, State and
            local governments  on solid waste management and resource recovery.

        -   Conservation and Recovery.  Sections 2003,  2004, 6002, and Subtitle E direct various
            activities to promote the conservation and recovery  of valuable material and  energy
            resources.

        -   Training. Research, and Application.  Subtitle H provides training grants in occupations
            involving  the design, operation,  and maintenance  of solid  waste  disposal  systems;
            promotes  a  national research and development program  for improved solid  waste
            management and resource conservation  techniques;  and promotes the demonstration,
            construction and application of solid waste management, resource recovery and resource
            conservation systems which  preserve and enhance the quality of air, water, and land
            resources.
Enforcement Authorities	

     •  Hazardous Wastes.

        -   Inspections and Reporting.  Section 3007 provides the authority to enter, inspect, copy
            records of,  and obtain samples from  facilities  which handle hazardous  waste.   In
            addition, it gives EPA the authority to require persons to furnish information regarding
            hazardous waste they have handled, and delineates the availability of such information
            to the public.  The 1984 amendments added subsection (c) which provides that EPA
            shall, or an authorized State may, inspect Federal facilities on an annual basis; subsection
            (d) which requires EPA to inspect facilities operated by a State or local government; and
            subsection (e) which requires that EPA or an authorized State commence a program that
            provides for inspection of permitted facilities at  least every 2 years.

        -   Federal Enforcement.  Section  3008 provides EPA the authority to issue compliance
            orders, initiate civil litigation for injunctive relief, and assess penalties for violations
            of Subtitle C requirements, provides  for criminal penalties for  specified  violations.
            The 1984 amendments added subsection (a)(3) which clarifies EPA's authority to assess
            penalties in Administrative actions; subsection (d) which expanded the list of criminal
            violations, and raised  criminal penalties to $50,000 per day and a maximum two years
            imprisonment (five years for certain violations);  and subsection (h) which authorizes
            EPA to issue administrative orders or commence civil actions for corrective action at
            interim status facilities.
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-   Monitoring.  Testing,  and Analysis.   Section  3013 provides the authority to issue
    administrative orders requiring owners and operators of hazardous waste facilities to
    undertake monitoring, testing, analysis, and reporting regarding their facility whenever
    EPA determines that the release of any hazardous waste from such facility may present
    a substantial hazard to human health or the environment.  It also provides authority for
    EPA to conduct its own studies, issue administrative orders requiring reimbursement
    for the cost  of certain monitoring and testing, initiate civil actions to enforce such
    orders, and collect penalties for non-compliance.

Solid/Hazardous Wastes.

-   Imminent Hazard.  Section 7003 authorizes  the Administrator to bring suit against or
    issue orders to any person contributing to the handling, storing, treating, transporting,
    or disposing of any solid or hazardous waste  in a manner that may present an imminent
    or substantial endangerment  to human health or the environment.

Underground Storage Tanks.

-   Inspections. Monitoring, and  Testing.  Section 9005 provides that any owner or operator
    of an underground storage tank, upon request by a duly authorized representative of
    EPA or a State which has an approved program, shall furnish information relating to
    such tanks and their contents, and conduct testing and monitoring and grant reasonable
    access to  such representatives.

-   Federal Enforcement.  Section 9006 provides for administrative or judicial enforcement
    actions and the imposition of civil penalties for failure to comply with notification and
    other regulatory requirements of the Subtitle.

Citizen Suits.  Section 7002 allows citizen suits against any person, including the United
States, who is alleged to be in violation of any  permit, standard, or regulation which  has
become effective pursuant to RCRA;  or against any person, including the United States,
who has contributed  or is  contributing to the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous waste which may present an imminent
and substantial endangerment to health or the environment; or against the Administrator
where there is alleged a failure of the Administrator to perform any act or duty under this
Act which is not discretionary with the Administrator. The section also delineates a number
of limitations on such suits.
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         2D  COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
                    AND LIABILITY ACT (CERCLA OR SUPERFUND)
Purposes	

CERCLA was enacted December 11, 1980, and amended October 17, 1986.  It authorizes the Federal
government to clean up hazardous substances at closed and abandoned hazardous waste sites, and to
recover the cost of cleanup as well as associated damages from the responsible  parties.  Cleanup
monies come from a "superfund" created by taxes on chemicals and hazardous wastes.  CERCLA also
authorizes the Federal government to take enforcement action against responsible parties to compel
them to clean up sites.
Major Regulatory Provisions	

     •   Cleanup Response

        -   Cleanup.  Section 104(a) is the central response mechanism contained in CERCLA.  It
            grants authority to the Administrator to both eliminate the current danger posed by the
            release of a hazardous substance, and to provide long-term solutions to prevent future
            threats.

            Under Section 104(a), the Administrator can act to remove, arrange for removal, provide
            for remedial action, or "take any other response measure consistent with  the national
            contingency plan which the Administrator deems necessary to protect the public health
            or welfare or the environment" if:

            —  A hazardous substance is released;

            --  There  is substantial threat that a  hazardous  substance will be
               released;

            --  A pollutant or contaminant is released, and such a release  "may
               present an imminent and  substantial danger to the public health
               or welfare;" or

            --  There is a substantial threat that a pollutant or contaminant may
               be released, and such a release "may present an imminent and
               substantial danger to the public  health or welfare."

            The section also provides that the Administrator may respond to a  release unless the
            Administrator determines that response will be properly carried out by a responsible
            party.
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-  Termination of Cleanup.  Responses under Section 104(a) must be terminated after
   either 12 months have passed or $2 million has been spent.  (Section 104(c)(l)(A)).
   This limitation has two exceptions. The first is contained in Section 104(c)(l)(A), under
   which the Administrator can continue a Section  104(a) response if he determines that:

   --  Continued response actions are immediately required to prevent or  mitigate an
       emergency;

   —  There is an imminent risk to the public health, welfare, or the
       environment; and

   --  Such assistance will not be otherwise provided on a timely basis.

   The other exception to the Section 104(c)(l)(A) termination rule is applicable when the
   cleanup is a remedial action. For remedial actions, however, the Administrator must
   both  "consult with the affected  state  or states  before determining any  appropriate
   remedial  action,"  and  enter into an  agreement  with the affected  state(s) before
   providing remedial action.  Even after  such an agreement  has been reached, the
   Administrator still has the power to select the "appropriate remedial actions."  (Section
   104(c)(4)).

Investigatory Response. Section 104(b) authorizes the Administrator to use investigations,
monitoring,  surveys,  testing,  and  other information gathering  that  may  be needed  to
determine the source and the extent of  danger from hazardous substances, pollutants  or
contaminants. The Administrator can initiate this investigatory response whenever he can
act under Section 104(a).

Moreover, an investigation can be initiated in circumstances when a Section 104(a) cleanup
would not be allowed. The Administrator can act under Section 104(b) when he has "reason
to believe" that:

   A release has occurred;

   A release is about to occur; or

   Illness, disease, or complaints may be attributable to exposure to a hazardous substance,
   pollutant or contaminant, and that a release may have occurred or may be occurring.

Federal Facilities. Section 120 confirms that CERCLA is applicable to Federal facilities,
and defines the process by which Federal agencies are required to undertake  remedial
action at their facilities.

-  Selection of Remedy.  Section 120 provides for joint EPA/Federal agency  selection  of
   the remedy, or selection by EPA, if EPA and the Federal agency are unable to reach
   agreement.

-  Docket.   EPA is  required to establish  a special docket listing all Federal agency
   hazardous waste facilities. The docket is open to the public.
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-  Schedule for  Response Activities.  The  section establishes a schedule for response
   actions at Federal facilities, and requires  EPA to:

   --  Assure that a preliminary assessment  is conducted at each Federal facility on
       the docket within 18 months of enactment;

   —  Where appropriate, evaluate Federal  facilities for possible inclusion on the
       National Priorities List within 30 months of enactment; and

   --  Review results of Federal agency remedial investigations and feasibility studies
       upon completion.

-  State Role.  Section 120 requires EPA to  consult with  State and local  officials, to
   provide opportunity for State and local planning and formulation  of remedies, and to
   consider their views in selecting remedies at Federal facilities. In addition, certain of
   the  requirements for State involvement  in determining cleanup standards apply to
   Federal facilities as well.

Cleanup Standards. Section 121 establishes a variety of requirements  relating to the level
of cleanup for remedial actions under CERCLA. This section codifies many of the existing
requirements under the National Contingency Plan (NCP), and also establishes additional
directives regarding remedy selection, meeting State requirements, and formalizing the role
of the States in the cleanup process.

-  Basic Requirements. Section 121 requires the President to select remedial actions that
   are:

   --  Protective of human health and the environment;

   --  Cost-effective;

   --  In accordance with the section; and

   --  In accordance with the NCP.

-  Permanent  Solutions.  Section 121 requires the President to  select, to the  maximum
   extent  practicable, remedial actions that  utilize permanent solutions  and alternative
   treatment technologies or resource recovery technologies.

   It also  requires the President, in evaluating various alternatives, to assess permanent
   solutions and alternative treatment technologies that will result in a  permanent and
   significant decrease in the toxicity, mobility, or volume of the hazardous substance or
   pollutant or contaminant.  In conducting  the assessment, the  President is required to
   address the long-term effectiveness of various actions taking the following into account;

   —  Long-term uncertainties of land disposal;

   --  Goals and requirements of the Solid Waste Disposal Act;

   --  Persistence, toxicity, mobility and bioaccumulation;

   --  Short and long-term potential for adverse human health effects;

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-- Long-term maintenance costs;

-- Potential for future remedial action costs if the remedy fails; and

-- Potential threat to human  health and the environment from the excavation,
   transportation, and  redisposal,  or  containment of hazardous  substances or
   pollutants or contaminants.

Further, Section 121 establishes a preference for remedial actions that utilize treatment
to permanently and significantly reduce the volume, toxicity, or mobility of hazardous
substances.  Off-site transport and  disposal  without treatment is the least preferred
option where practicable treatment technologies are available.  If the selected remedy
does not achieve the preference for  treatment, the President is required to publish an
explanation.

Finally, Section 121 authorizes  the selection of permanent remedies whether or not the
remedy has been achieved  in practice at any other facility with similar characteristics.

Compliance With Other Laws.  Section 121 requires remedial actions to attain a degree
of cleanup and control of  further release  which  protects  human health and the
environment. It requires these remedial actions to comply with applicable or relevant
and appropriate requirements (ARARs) under the circumstances.

-- On-Site Actions. For  on-site actions, Section 121  requires remedial actions  to at
   least  attain  legally  applicable  or  relevant  and appropriate Federal  and  State
   standards,  requirements, criteria,  or limitations,  unless such  requirements are
   waived.

   —    Federal Requirements. The requirement to attain ARARs applies to Federal
           requirements under the  Toxic Substances Control Act  (TSCA), the Safe
           Drinking Water  Act (SDWA), the  Clean  Air Act (CAA),  the Marine
           Protection, Research, and Sanctuaries Act (MPRSA), and the Solid Waste
           Disposal Act (SWDA), among others.

           Remedial actions must consider recommended maximum containment levels
           (RMCLs) and water quality  criteria under the Clean Water Act where such
           requirements are relevant and appropriate under the circumstances.

           Use of Alternate Concentration Limits (ACLs) is prohibited in establishing
           standards if  the process  assumes a point of human exposure beyond the
           boundary of the facility  unless —

           	    There  are  known  and  projected  points  of  entry  of  the
                   contaminated groundwater into surface water;

           	    The remedial action includes  enforceable measures to preclude
                   human exposure between the facility boundary and points of entry
                   into the surface water.
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    —    State Requirements.  The requirement to attain  ARARs applies  to any
          promulgated State requirement under a State environmental or facility citing
          law that is more stringent than any Federal requirement, and that has been
          identified to EPA in a timely manner.

    —    Waivers.  Section 121 authorizes the President to  select a remedial action
          that protects human health and the environment, but does not meet ARARs
          for on-site actions, if:

          	     The remedial action is an interim measure where the final remedy
                    will attain the ARAR upon completion;

          	     Compliance will result in greater risk to human health and the
                    environment than other options;

          	     Compliance is technically impracticable;

          	     An alternative remedial action will attain the equivalent of the
                    ARAR;

          	     For State requirements, the State has not consistently applied the
                    State requirement in similar circumstances; or

          	     For Section 104 remedial actions, compliance with the ARAR will
                    not provide a balance between protecting public health, welfare,
                    and the environment at the facility with the availability of Fund
                    money for response at other facilities (Fund-balancing).

--  Off-Site Actions.

    —    General Requirements.   Section 121 allows the  transfer of  hazardous
          substances or pollutants or contaminants off-site only to a facility operating
          in  compliance with RCRA (or in compliance with TSCA or other Federal
          laws where applicable) and all applicable State requirements.

    —    Transfer to Land Disposal Facility.   Section 121  authorizes transfer  of
          hazardous substances or  pollutants  or  contaminants to an off-site  land
          disposal facility only if --

          	     The unit to which  the materials are being taken is not releasing
                    hazardous waste into surface or  ground water  or soil; and

          	     Releases from other units at that facility are controlled through
                    RCRA Subtitle C corrective action.

Permits.  Federal, State, and local permits  are not required for the  portion of any
removal or remedial action conducted entirely on-site.
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Enforcement Authorities
         Access and Information Gathering.  Section 104 confirms and expands  the President's
         authority to obtain certain information and to gain access to sites to take or determine the
         need for taking a response or enforcement action under CERCLA.

         -   Authority for Access and Information Gathering. Section 104(e) authorizes a designated
            representative of the President or a State or  political subdivision  under contract or
            cooperative agreement  to obtain information and gain access to sites and adjacent
            property to determine the need for response, to choose or take a response, or to enforce
            any provision of CERCLA where there is a reasonable basis to believe  there may be a
            release or threat of release of a hazardous substance.

            --  Access to Information. Upon reasonable notice, Section 104(e) requires persons to
                provide relevant information to the designated official concerning:

                —    Identification, nature, and quantity of materials generated, treated, stored,
                       or disposed at the facility;

                —    The nature and extent of release or threatened release; and

                —    Information on ability to pay or perform cleanup.

            Also upon notice, Section 104(e) requires persons to grant access to a facility to inspect
            or copy documents, or at their option to  provide copies.

            --  Entry.  Section 104(e) authorizes designated representatives to enter at reasonable
                times:

                —    Any facility where hazardous substances  have been generated, treated,
                       stored, disposed, or  transported from;

                —    Any facility where a hazardous substance has been or may be released; and

                —    Any facility where entry is necessary to determine the need for response
                       or appropriate response or to  conduct a response.

            --  Inspection and Samples. Section 104(e) authorizes a designated official  to obtain
                samples from any facility.  If samples are taken, the designated official is required
                to give the owner a receipt describing the sample(s), and (if requested) a portion of
                the sample(s). The designated official also is required to provide any analysis of the
                sample(s) to the facility owner.
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--  Compliance Orders.  If the request for access to information entry onto the facility,
    or the taking of samples is denied, Section 104(e) authorizes:

    —     Issuance of  an  order for compliance after notice and opportunity  for
           consultation;

    —     Civil action to compel compliance with either a request or an order directing
           compliance with the request;

    —     If there is reasonable basis to believe there is or may be a release, court
           orders to enjoin interference or direct compliance with the order unless the
           order was arbitrary and capricious; and

    —     Civil penalties up to $25,000/day for failure to comply with the order.

--  Other Authority.  Section 104(e) preserves the right to obtain access in any other
    lawful manner (which includes warrants).

Information Entitled to Confidential Treatment. In accordance with Section 104(e)(7),
no  person required to  provide  information  under CERCLA  may claim  that such
information is entitled to protection unless the person shows each of the following:

--  The person has not disclosed the information to any other person (other than a local
    emergency planning  committee under Title III, an officer or employee of the United
    States or a State or local government,  an employee of  the person, or a person who
    is bound by a confidentiality agreement), and such person has taken reasonable
    measures to protect  the confidentiality of such information;

—  The information is  not required to be disclosed  or made available to the public
    under another Federal or State law;

--  Disclosure is likely to cause substantial competitive harm; and

--  The specific chemical identity, if sought to be protected, is not readily discoverable
    through reverse engineering.

The following information  on hazardous substances is not entitled to protection:

--  Trade name, common name, or generic class or category;

—  Physical properties;

--  Hazards to health and  the environment including physical  hazards and potential
    acute  and chronic health hazards;

--  Potential routes of human exposure;

--  Location of waste stream disposal;

--  Monitoring data or analysis on disposal activities;

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       --  Hydrogeologic or geologic data; and

       --  Ground water monitoring data.

•   Abatement Action.  If the  Administrator determines that there "may be an imminent and
    substantial endangerment to the public health or welfare or the environment," he has two
    options under Section 106(a):

    -   The Administrator can  require the Attorney General to  seek the necessary relief in the
       Federal district court where the threat occurs.  The district court is given jurisdiction
       to grant relief that the  public interest and the equities of the case may require; or

       The Administrator can  act on his own by taking other action such as issuing orders that
       may be necessary to protect public health and welfare and the environment.

    A successful Section 106(a) action, whether it involves a court order or an order from the
    Administrator, forces a responsible party to clean up a site.  This is fundamentally different
    from Section 104(a).  There,  the government itself performs the clean up, and then seeks
    court-imposed liability on  responsible parties for response  costs under Section 107.

•   Settlements.  Section 122 sets out  procedures for negotiating settlements with potentially
    responsible parties  (PRPs) for conducting  response actions.   This section essentially
    formalizes the settlement process which has already  been established under EPA's existing
    settlement policy.

       Authorization for Agreements.  Section 122 authorizes  the  President to enter into
       agreements with PRPs  to conduct response actions.  However, nothing in the section
       prohibits the  President  from undertaking a response or  enforcement action during the
       negotiation period  when  there  is  a  significant threat  to  public  health or  the
       environment.

    -   De Minimis Settlements.  Section 122(g) authorizes the President, when practicable and
       in the public interest, to reach a settlement with PRPs if  the settlement involves a minor
       portion of the response costs, and the amount and toxicity are minimal; or if the PRP
       is  the owner of the site but did not conduct or  permit  the generation, transportation,
       storage, treatment or disposal  of hazardous substances, and did not contribute to the
       release. De minimis settlements can be administrative orders or consent decrees.

    -   Cost Recovery.   Section  122  authorizes the head of  any  agency with authority  to
       respond under CERCLA to settle a claim for cost recovery under Section 107 if the
       claim is for less than $500,000 and has not been referred to the Attorney General.  The
       head  of an agency can settle a claim that is  greater  than $500,000 only  with the
       concurrence of the Attorney General.  If the person fails to pay the claim, the section
       authorizes the Attorney General upon request to bring  civil action.
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                     2E TOXIC SUBSTANCES CONTROL ACT (TSCA)
Purposes
The Toxic Substances Control Act (TSCA), signed into law in October  1976, provides EPA with
broad authority  to regulate  chemicals and chemical  substances whose  manufacture, processing,
distribution in commerce, use or disposal may present an unreasonable risk of injury to health or
the environment. The Act was enacted to keep harmful chemicals out of the environment and to fill
the gaps in existing environmental laws in the areas of toxic substances.

The Act deals with all toxic chemicals  planned  for production,  produced, imported, or exported
from the country. TSCA applies primarily to manufacturers, distributors, processors, and importers
of chemicals. The  only exceptions to this authority are:

     •  Pesticides (as defined in FIFRA as a pesticide);

     •  Tobacco or tobacco products;

     •  Source material by-products or special nuclear material  as defined by the Atomic Energy
        Act; and

     •  Food, food additives, drugs, and  cosmetics under the Federal Food, Drug and  Cosmetic
        Act.
Major Regulatory Provisions	

     •   Inventory and Pre-Manufacture Notification.  If EPA determines that a new chemical
        substance poses a risk  to  health or  the  environment,  it can  prohibit or regulate  its
        manufacture.

        EPA has published an inventory of existing chemicals.  Substances not on that  list are
        considered "new," and require Pre-manufacture Notifications (PMN) to be submitted to
        EPA. Before manufacturing or importing new chemicals, or processing existing chemicals
        for significant new uses, notice must  be submitted at  least 90 days before manufacture,
        processing, shipping or sales (TSCA, Section 5).  If EPA does not make a declaration within
        90 days to restrict the product, then full marketing can begin, and the chemical is added
        to the inventory. Conversely, EPA may review  the product data for an additional 90 days;
        negotiate  for  suitable data;  prohibit  manufacture  or distribution  until risk  data  are
        available;  reject the PMN for insufficient data; or, pending  development of a Section 6
        rule, completely ban the product from the market.

     •   Testing.  Under TSCA, Section 4, EPA can require product testing of any substance which
        "may present an unreasonable risk of injury to health or to the environment." Some testing
        standards are proposed, but no testing requirements for specific chemicals are yet in effect.
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Reporting and Recordkeeping.  Section 8(a) deals with general reporting.  The "first tier"
rule  now in effect is a short form seeking production and exposure data on over  2,300
existing chemicals.   A "second tier"  rule is expected to obtain more detailed data on a
relatively small group of chemicals that may become priority candidates for regulation.
Section 8(c) calls for records of significant adverse effects of toxic substances on human
health and  the environment.  It requires that  records of alleged adverse reaction be kept
for a minimum of 5  years.  Section  8(d) allows EPA  to  require that manufacturers,
processors, and distributors of certain listed chemicals (designated under 40 CFR Part
716.13) submit to the EPA lists of health and safety studies conducted by, known to, or
ascertainable by them. Studies include individual files, medical records, certain  daily
monitoring reports, etc.

Section 8(e) requires action upon discovery of certain data. Any person who manufactures,
processes or  distributes a  chemical  substance  or mixture,  or  who  obtains data which
reasonably  supports the conclusion that a chemical presents a substantial risk of injury to
health or to the environment, is required to notify EPA immediately.

Regulation of Hazardous Chemical Substances.  EPA can impose a Section 6 rule if  there
is  reason to believe that the manufacture, processing, distributing, use or disposal of a
chemical substance or mixture causes, or  may  cause, an unreasonable risk of  injury to
health or to the environment. Section 6 rules  are currently in effect for several chemicals
including PCBs.  A Section 6  rule requires informal rulemaking, a hearing, and  a  cost-
benefit analysis.

EPA may ban, prohibit or restrict the manufacture, processing,  distribution in commerce
or use of chemicals or chemical substances. Regulation of chemicals may be done by:

   Regulating concentrations;

   Limiting amounts which can be manufactured;

   Requiring specific markings or warnings;

   Requiring production/quality controls;

   Requiring use recordkeeping;

   Imposing specific use restrictions; and

   Requiring specific disposal requirements.

PCBs are the only chemical identified by Congress by name for direct regulation: "within
6 months EPA shall promulgate rules for" disposal of PCBs, and marking of PCBs.
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     •  Imminent Hazard. Imminent hazard is defined as a chemical substance or mixture causing
        an  imminent  and unreasonable risk  of  serious or widespread  injury  to health or the
        environment.  When such a condition prevails,  EPA is authorized by TSCA, Section 7  to
        bring action in U.S. District Court. Remedies include:

        -   Seizure of the chemical or any article containing such chemical;

            Notice of risk to the affected population; or

            Recall, replacement or repurchase of the substance.


Enforcement Authority	

     •  EPA Inspection Authority.  Under Section 11,  EPA "and duly designated representatives
        of the Administrator" may inspect any establishment, facility, or other premises in which
        chemical substances are manufactured, processed,  stored,  or used  before or after  their
        distribution in commerce, and any conveyance being used to transport chemical substances,
        mixtures, or such articles in connection with  distribution in commerce.

        An  inspection shall extend to all  things within the  premises  or  conveyance inspected
        (including records, files, papers, processes, controls and facilities) bearing on whether the
        requirements  of TSCA applicable  to the chemical substances  or  mixtures  within  such
        premises  or conveyance  have  been complied  with.   The  only exceptions  are that no
        inspection shall extend to financial data,  or research data (other than data required under
        TSCA or regulations),  unless  the  nature  and  extent  of  such  data are described  with
        reasonable specificity in the notice of inspection.

        Inspections  are to  be  commenced and  completed with  "reasonable  promptness,"  and
        conducted at "reasonable times," within "reasonable limits," and  in a "reasonable manner."
        Inspection may only be made upon:

            Presentation of proper credentials;

            Presentation of a written notice of inspection to the owner, operator or agent in charge
            of the premises or conveyance;  and

            Separate notice for "each such inspection," but a notice shall not be required  for each
            entry made during the period covered by the inspection.

     •  Subpoena Authority.  EPA may require the attendance and testimony of witnesses under
        oath, and/or the production of documents. Subpoenas do not have to be issued by a Court,
        and can be used to investigate any activity TSCA prohibits.

     •  Authority to Regulate Imports. EPA has authority to ensure that imported chemicals at a
        facility have the proper import documents. U.S. customs inspectors may refuse entry into
        the United States of foreign chemicals that fail  to meet TSCA requirements.
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Prohibited Acts.  Section 15 of TSCA specifically prohibits the following  actions by
manufacturers:

    Failure or refusal to comply with any rules, orders, or requirements of Section 4
    (testing), Section 5 (processing or manufacture  notices),  or Section 6 (regulation of
    hazardous chemicals, i.e., PCBs, asbestos);

    Use  for  commercial  purposes of  a chemical substance or  mixture   which the
    manufacturer "knew or had reason to know was manufactured, processed, or  distributed
    in commerce in  violation of Sections 5 or  6 or  an order  under Section 7  (Imminent
    hazards);

    Failure or refusal to establish or maintain records; submit reports, notices or other
    information;  or  permit access  to or copying of records as  required by TSCA or
    regulations; and

    Failure or refusal to permit entry for inspection  as authorized  by Section 11.

Civil Penalties. Civil penalties may be assessed against any person who violates  a provision
of Section 15. That person shall  be liable for a civil penalty not to exceed $25,000 for each
such violation. Each day such violation continues shall constitute a separate violation of
TSCA.

Civil penalties are assessed by the  Administrator of EPA, (not the district courts), after
written notice of the proposed penalty and an opportunity for hearing.

In determining the penalty, EPA must consider the:

    Nature of the violation;

    Circumstances of the violation;

    Extent of the violation;

-   Gravity of the violation;

    Ability to pay a  fine;

    Effect of a fine on the ability to continue in  business;

    Degree of culpability; and

    Other factors as justice may require.

Criminal Penalties.  Criminal penalties may be assessed against any person who  knowingly
or willfully violates any provision of Section 15. In addition to civil penalties, that person
shall be subject,  upon conviction, to a fine of not  more than $25,000 per day for each
violation, and to imprisonment for not more than one year.
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     •  Enforcement and Seizure Authority. Section 17 provides specific enforcement and seizure
        authority to EPA through the U.S. District Courts.  District Courts may:

        -   Restrain (by injunction) any violation of  TSCA (e.g.,  the sale of PCB contaminated
            oil);

        -   Restrain persons from taking actions prohibited by Section 5 or 6 or rules promulgated
            thereunder (i.e., PCB rules);

        -   Order  environmental  clean  up  required  under TSCA (e.g.,  excavation  of  PCB
            contaminated soils); and

            Direct manufacturers or processors of chemicals to notify distributors in commerce of
            the chemical substance, including persons in  possession of the substance  or those
            potentially exposed to the substance (e.g.,  PCBs that were accidentally added to paint
            prepared for residential users).
Other Important Provisions	

     •  Confidential Business Information (CBI).  Section 14 provides for disclosure of data by
        manufacturers.  However, strict trade secret and confidentiality provisions are imposed on
        EPA.  EPA may require disclosure of information, but must protect all data whenever data
        is designated as CBI under TSCA. Confidential data may be disclosed to contractors if the
        information is necessary for the proper performance of the contract, and may be disclosed
        to protect health or the environment from unreasonable risks. Wrongful disclosure of CBI
        carries personal criminal penalties of up to $5,000 and imprisonment.

     •  Preemption of State Laws. Nothing in TSCA shall affect the authority of States or political
        subdivisions of States to establish or continue regulation of any chemical substance, mixture
        or article containing a chemical substance or mixture, except that:

            When EPA, by rule under Section 4, requires the testing of a chemical substance  or
            mixture, no State may continue to require testing for similar purposes; or

            When EPA, by rule or order under Section 5 or 6, establishes requirements for specific
            chemical substances, designed  to protect against a  risk of injury to health  or  the
            environment, no State or political subdivision may establish its own rules,  unless the
            rules:

            -- Are identical  to EPA's;

            -- Are adopted under authority of the Clean Air Act or other Federal law; and

            -- Prohibit the use of such substance or mixture within the State (or subdivision) other
               than its use in the manufacture or processing of other substances.

        Note:  Section  18 does not allow States or political subdivisions  to impose  requirements
        specifically reserved in Section 6(a)(6) which establishes requirements for  "any manner or
        method of disposal."

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       2F FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA)
Purpose	

The purpose of FIFRA is to regulate the manufacture, distribution, sale, and use of pesticides so as
to minimize risks to human health and the environment.  A pesticide is defined as any substance
intended to prevent, destroy, repel  or mitigate  pests.  FIFRA requires  the  registration  of all
pesticides;  restricts  use  of certain pesticides;  establishes  requirements for the certification of
pesticide applicators; authorizes experimental use permits; establishes the conditions for cancellation
of pesticides; requires the registration of pesticide manufacturers; and sets standards for the disposal
of pesticides.

Under FIFRA, a pesticide must be labeled, and the label must specify the  pesticide's ingredients,
uses, warnings, registration number,  and,  if applicable, special use restrictions.  A pesticide may
lawfully be used only in  accordance with its labeling.  Regulations also specify tolerance levels  for
certain pesticide  chemicals in or on agricultural commodities.  These limits apply to 310 different
compounds, and residue tolerances range from 0 to 100 ppm. A few pesticides also are regulated as
toxic  pollutants under Section 307(a) of the Clean Water Act,  and by Primary Drinking  Water
Standards under the Safe Drinking Water Act.
Major Regulatory Provisions	

     •   Registration and Classification of Pesticides.  Section 3 prohibits the distribution and sale
         of pesticides that have not been registered with  EPA, and sets out procedures and data
         requirements for registration.   The section  also  classifies pesticides  for  "general" or
         "restricted" use. "Restricted" use pesticides are those that present particular hazards to the
         applicator or the environment, and may be used only by  "certified applicators" or persons
         under their direct supervision.

     •   Use  of  Restricted  Use  Pesticides.   Section  4 establishes procedures  for  the Federal
         government and States to certify applicators of restricted  use pesticides, and delineates the
         basic requirements that State certification plans must meet.

         Section 4 also requires that, to become a certified applicator and thereby authorized to use
         or supervise the use of  restricted use  pesticides,  a person  "must be determined to be
         competent with respect to the use and handling of pesticides..." In accordance with Section
         4 and Section 11, separate certification  standards are established for "private applicators"
         (e.g., farmers and homeowners), and "commercial applicators" (e.g., pest control operator
         employees, aerial applicators, and government employees who apply pesticides as part of
         their employment).

     •   Experimental Use Permits. Section 5 allows experimental  use of a pesticide, under a permit
         issued by EPA or  an  authorized State, to  enable  a  manufacturer  to  develop the data
         necessary to register the pesticide under Section 3.
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        Cancellation of Pesticides.  Section 6 provides that a pesticide's registration be cancelled
        automatically if the registrant does not request re-registration and submit supporting data
        required by regulation. Section 6 also provides that a pesticide's registration be cancelled,
        or  its use classification changed, if the Agency determines, after  public  hearings  and
        scientific  review,  that the  pesticide "generally  causes unreasonable effects  on  the
        environment."

        Registration of Establishments.  Section 7 requires pesticide manufacturers to register with
        EPA.  Manufacturers also are required to submit a report annually, specifying the types and
        amount of pesticides currently  produced,  produced during the past year, and sold or
        distributed during the past year.

        Disposal  of  Pesticides.   Section 19 requires the  Agency  to  establish procedures  and
        regulations for the storage and disposal of pesticide containers and unused pesticides. The
        section also  requires the Agency to provide advice and assistance to the Department of
        Transportation with regard to the transport of pesticides.

        State Primary Enforcement Responsibility.  Section 26 provides that a State is  to have
        primary  enforcement responsibility for pesticide use violations if  the Administrator
        determines that the State (a) has adopted adequate  pesticide use laws and  regulations; (b)
        has adopted  and is implementing adequate  procedures  for the enforcement  of such State
        laws and  regulations; and (c) will keep records and  make reports showing compliance with
        the requirements of a and b.
Enforcement Authorities	

     •   Access to Books and Records. Section 8 requires pesticide producers, distributors, carriers,
         and dealers to keep records showing the identity and  quantity of pesticides delivered,
         moved, or held; the date  of shipment and receipt; and the  name of  the consignor  and
         consignee. Data relating to finances, sales, prices, and research are exempt and may not be
         examined as part of an inspection.  Inspectors are  authorized to have access to and copy
         these records  "at all reasonable times" upon presentation of appropriate credentials and a
         written statement as to the reason for the inspection.

     •   Inspection of Establishments.  Section 9 authorizes entry into any place where pesticides
         are held for distribution or  sale for the purpose of inspecting and obtaining samples of
         pesticides and their containers and labels.  As  with Section  8, credentials  and a written
         notice explaining the reasons for the inspection  must be  presented to the person in charge
         of the facility prior to the inspection.  If pesticide samples are taken, the inspector must
         give a receipt to the establishment owner or operator, provide a split sample if requested,
         and promptly provide a copy of the results of any analysis subsequently performed.  The
         section also authorizes warrants (see section on warrants) for purposes of entry, inspection
         and reproduction of required records, and seizure of any pesticide which is in violation of
         the Act.
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Unlawful Acts.  Section 12 enumerates 22 unlawful acts, the most significant of which (in
summary form)  are acts to:

-   Distribute or sell unregistered, adulterated, or misbranded pesticides;

-   Detach, alter, deface, or destroy a pesticide's labeling;

-   Refuse  to keep or allow  inspection of required records, or to  allow  the  taking  of
    samples;

    Make available for use, or use, a restricted use pesticide except in accordance with the
    requirements of the Act;

    Use any registered pesticide in a manner inconsistent with its labeling;

    Violate  any  cancellation or suspension order; and

    Knowingly falsify any required  application, record, or report.

Stop Sale. Use, or Removal Orders and Seizure.  Section  13 authorizes the  Administrator
to issue an administrative order to  stop the sale, use, or removal of  any pesticide that is
reasonably believed to be  in violation of the Act; has been, or is intended to be, distributed
or sold in violation  of the Act;  or  has  been cancelled or suspended.  The  section also
authorizes seizure  of any  pesticide that has been adulterated or misbranded; has not been
registered; bears inadequate or improper labeling; has  not been  colored or discolored (if
required); differs  in  its  claims or  use  directions compared to  those in the registration
application; or  causes unreasonable adverse environmental effects  even  when  used  in
accordance  with applicable requirements and restrictions.

Penalties.   Section 14 authorizes the imposition  of  civil administrative  penalties and
criminal sanctions. Criminal sanctions may be imposed on anyone  who "knowingly violates"
any provision of the Act, or who,  with intent  to defraud, uses or reveals  information
relative  to  formulas  of  products acquired under registration authorities.   Registrants,
commercial applicators, wholesalers, dealers, and other distributors  are  subject to more
stringent civil and criminal penalties than are private applicators  or anyone else who does
not fall into the first group.

Judicial  Enforcement and  Review.  Section  16 vests in  the U.S.  District Courts  the
jurisdiction to issue warrants and provide injunctive relief.  Appeals of Agency orders are
heard by U.S. Courts of  Appeal, which may affirm or set aside all  or part of an order.
Decisions of the Courts of Appeal are required by Section 16 to be based  solely on review
of EPA's administrative record of the case.
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                        2G SAFE DRINKING WATER ACT (SDWA)
Purposes
The Safe Drinking Water Act became law in 1974. It protects drinking water sources by regulating
persons who inject fluids into the ground, and public drinking water consumers by regulating the
quality of water distributed by public water systems.  Both surface and underground public drinking
water sources are thereby protected by the SDWA.

EPA regulations establish "at-the-tap" primary and secondary drinking water standards for public
drinking water systems.  National Interim Primary  Drinking Water Regulations  were adopted in
1975 to protect public health (40 CFR Part 141).  Regulations covering radionuclides were added
in 1976. Primary regulations for total  thrihalomethanes were promulgated in 1979.   Secondary
regulations were established in 1979 as guidelines to States to protect the non-health-related qualities
of drinking water.

The SDWA also provides for protection of underground sources of drinking water.  Final regulations
have been issued whereby States are to establish Underground Injection Control (UIC) programs to
prevent endangerment of any underground sources  of drinking water (USDW).  Federal program
regulations apply where States  have not taken this  action.  Injection wells are divided into five
classes  for regulatory  purposes.   Construction and disposal standards  are  established  for the
permitting  of Class I wells (hazardous, non-hazardous, and  municipal  waste wells injecting below
underground sources of drinking  water), Class II wells (oil and gas), and Class III wells (mineral
extraction). Class I and Class IV wells are subject to RCRA  requirements. Class IV wells are those
used by generators of hazardous or radioactive wastes to dispose of hazardous wastes into formations
within one-quarter mile of  an underground  source of drinking water.   New Class IV wells are
prohibited, and  existing Class  IV  wells  must be phased out within 6 months after approval or
promulgation of a UIC program in the State.  EPA has not yet developed a regulatory program for
Class V wells (all other wells).
Major Regulatory Provisions	

     •   Public Water Systems (PWS). Part B of the SDWA imposes requirements on  persons who
         own or operate a system which has at least 15 service connections or 25 consumers, and
         provides piped water for human consumption.  The regulations which implement these
         requirements to "protect health to the extent feasible" are titled  the National Primary
         Drinking Water Regulations (NPDWR).

         The regulations control the presence of unhealthful substances in public water systems  by
         defining "maximum contaminant levels" (MCLs) for various substances. All water suppliers
         must periodically sample the water delivered to users and record and report their findings
         to EPA or  the State, whichever is appropriate. If there has been a failure by the supplier
         to meet all MCLs, or a failure to sample or report,  the supplier must publicly notify his
         consumers.    Variances  or exemptions  are available   for  systems  meeting certain
         qualifications.


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        Maximum  contaminant levels  have been established  for  certain organic and organic
        chemicals,  coliform  bacteria, turbidity, and  radioactivity.   EPA is  required  under the
        amended SDWA to promulgate  over 60 new MCLs in the next three  years, and establish
        filtration and disinfection requirements, for  systems using surface water as their water
        source.  EPA currently administers the SDWA public water system program in only two
        States (Indiana and Wyoming); in all others EPA oversees State implementation, but retains
        independent enforcement authority.

        Underground Injection Control  (UIC) Program.   Subpart C  of  the  SDWA  imposes
        requirements on any person who owns or operates a facility which injects fluids below the
        surface of the ground.  The Agency administers this program directly in some 22 States and
        oversees State primacy programs in the remaining jurisdictions.

        The Agency's underground  injection control (UIC)  regulations  control the presence  of
        contaminants  in groundwater  sources of drinking water  (aquifers)  by  prohibiting the
        movement  of fluids from injection wells into a USDW,  and by imposing appropriate
        technical requirements on well operators either through regulations or an operating permit.
        The regulations set different requirements for the different classes of injection wells. For
        example, the regulations ban certain hazardous waste injection wells; require permits or
        inventory information of other well operators; and impose  sampling,  recordkeeping and
        reporting requirements on all operators. The  regulations also require  corrective action to
        be  taken when  necessary, and control the plugging and abandonment of inactive and
        abandoned wells.
Enforcement Authorities	

     •  General Inspection and Information-Gathering Authority. Inspection authority is provided
        by Section 1445 of the SWDA for both the PWS and UIC programs.  An inspector duly
        designated by the Administrator may inspect each public water supplier or other person
        subject to a national primary drinking water regulation, applicable UIC program, or any
        requirement under the SDWA to monitor an unregulated contaminant.  The inspector may
        enter to inspect "records, files, papers, processes, controls, and facilities, or in order to test
        any feature of a public water system, including its raw water source." Prior notice to States
        with primary enforcement responsibility is required for inspection of public water systems.
        State objection must be taken into account by EPA in determining whether to conduct the
        inspection. Section 1445 also requires PWS and UIC facilities to establish records, conduct
        monitoring, or provide reports or other relevant information as the Administrator prescribes
        by regulation.

     •  Public Water Systems.  Until recently, EPA's authority to enforce against violations of the
        NPDWR was limited to bringing civil suit for injunctive relief and civil penalties of up to
        $5,000 per day of violation. EPA  also was required to go through a  number of procedural
        steps before it could take action in a primacy State.  In cases of imminent and substantial
        endangerment to a public water system, EPA could pursue "emergency" administrative or
        judicial enforcement.
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The  June 1986  SDWA  amendments added  to  EPA's  authorities the  ability  to  issue
administrative compliance orders,  assess  administrative penalties  of up to $5,000 for
compliance order violations, and seek civil penalties of up to $25,000 per day of violation.
The amendments also added civil and criminal penalties for persons who tamper or attempt
to tamper with public water systems with the intention of harming persons. The criminal
penalty includes  imprisonment up to 5 years, fines in accordance with Title 18, or  both.
A civil penalty of up to $50,000 can be imposed.

The amendments also streamlined enforcement procedures in primacy States by authorizing
EPA enforcement if a primacy State has not  taken appropriate action within 30 days of
notice from EPA. The amendments strongly suggest that EPA enforcement is mandatory
in the absence of State action.

Underground Injection Control Program. EPA's U1C enforcement authorities prior to the
1986 SDWA  amendments paralleled the  public  water system authorities.   The  1986
amendments added  to EPA's authorities the ability  to  issue administrative  compliance
orders, a.nd assess administrative penalties of up to $125,000 for UIC violations.

The  1986 amendments also increased civil penalty authority up to $25,000 per day of
violation; streamlined Federal enforcement in primacy States along the lines of the public
water system enforcement program; and established  felony-level sanctions for  criminal
violations.  As with the PWS program, the amendments suggest that EPA enforcement is
mandatory in the absence of State action.
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           2H EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
Purposes	

The Superfund Amendments and Reauthorization Act (SARA) of 1986 was  enacted into law on
October 17, 1986.   An important component of the  SARA provisions is Title III:  Emergency
Planning and Community Right-to-Know Act  of  1986.  Title  III  establishes requirements for
Federal, State and local governments and industry regarding emergency planning and "community
right-to-know" reporting on hazardous and toxic chemicals.  This legislation builds upon EPA's
Chemical Emergency Preparedness Program (CEPP)  and numerous State and local programs aimed
at  helping  communities  to better  meet  their responsibilities in regard  to  potential  chemical
emergencies. The community right-to-know provisions will help to increase the public's knowledge
and access to information on the presence of hazardous chemicals in their communities and releases
of these chemicals into the environment. States and communities, working with facilities, will be
better able to improve chemical safety and protect public health and  the environment.

The emergency  planning and  community right-to-know provisions  have four  major sections:
emergency planning (Sections 301-303), emergency releases notification (Section 304), community
right-to-know reporting  requirements (Sections  311,  312),  and toxic  chemical release  reporting
emissions inventory (Section 313).  Information from  these four reporting  requirements will help
States and communities develop a broad perspective  of chemical hazards for the entire community
as  well as for individual facilities.
Major Regulatory Provisions
Emergency Planning
Sections 301-303 of the law mandate that the Governor of each State organize a State Emergency
Response Commission (SERC) which in turn  designates  Local  Emergency Planning Committees
(LEPC). The local committees are responsible for evaluating the available resources and developing
emergency response plans for their communities.

Emergency Notification     	
Under Section 304, facilities must immediately notify the Local Emergency Planning Committees
and the State Emergency Response Commissions  likely to be affected if there is a release into the
environment of a listed hazardous substance that exceeds the reportable quantity for that substance.
Substances subject to this requirement are those on the list of 366 extremely hazardous  substances
as published  in the Federal Register (40 CFR 355) or on a list of 721  substances subject to the
emergency notification requirements under CERCLA Section 103(a) 40 CFR 302.4). Some chemicals
are common to both lists.
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Community Right-to-Know Reporting Requirements

There are two community right-to-know reporting requirements within the Emergency Planning and
Community Right-to-Know Act.  Section 311 requires facilities that must prepare material safety
data sheets (MSDS) under the Occupational  Safety and Health Administration (OSHA) regulations
to submit either copies of their MSDSs or a list of MSDS chemicals to the Local Emergency Planning
Committee, the State Emergency Response Commission, and the local fire department.  Reporting
under Section 312 requires a facility to submit an emergency and hazardous chemical inventory form
to the Local Emergency Planning Committee, the State Emergency Response Commission,  and the
local fire department.  Hazardous chemicals covered by Section 312 are those for which facilities are
required to prepare or have available an MSDS under OSHA's Hazard Communication Standard and
that were  present  at the facility at any time during  the  previous  calendar year above specified
thresholds.

Toxic Chemical Release Reporting	
Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 requires EPA
to establish  an inventory of routine toxic chemical emissions from certain facilities.  Facilities
subject to this reporting requirement are required to complete a Toxic Chemical Release Form (Form
R) for specified chemicals. The form must be submitted to EPA and those State officials designated
by the governor, on or before July 1, 1988, and annually thereafter on July 1.

These reports should reflect releases during the preceding calendar year.

The purpose of this reporting requirement is to inform the public  and government officials about
routine  releases  of  toxic chemicals to the environment.  It will  also  assist in  research and  the
development of regulations, guidelines, and standards.

The reporting requirement applies to owners  and operators of facilities that have 10 or more full-
time employees, that are in Standard  Industrial Classification (SIC) codes 20  through 39 (i.e.,
manufacturing facilities) and that manufacture (including importing), process, or otherwise use a
listed toxic chemical in excess of specified threshold quantities.

Facilities manufacturing or processing any of these chemicals in excess  of 75,000 pounds in 1987
must report  by July 1, 1988. Facilities manufacturing  or processing in excess of 50,000 pounds in
1988 must report by July 1, 1989; thereafter, facilities manufacturing or processing more than 25,000
pounds in a  year are required to submit the form.  Facilities  otherwise using listed toxic chemicals
in quantities over 10,000 pounds in a calendar year  are required to submit toxic chemical release
forms by July 1 of the following year.  EPA can revise these threshold quantities and covered SIC
codes.

The list of toxic chemicals  subject to reporting consisted initially of chemicals  listed  for similar
reporting purposes by the States of New Jersey and Maryland.  There are over 300 chemicals and
categories on these lists. Through rulemaking, EPA can modify this combined list.
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Enforcement Authorities
Section 325 of the Emergency Planning and Community Right-to-Know Act addresses the penalties
for failure to comply with the requirements of this law. Civil and administrative penalties ranging
from up to $10,000 - $75,000 per violation can be assessed to facilities that fail to comply with the
emergency planning (Section 302), emergency notification (Section 304), community right-to-know
(Sections 311 and 312), toxic chemical release (Section 313) and trade secret (Sections 322 and 323)
reporting requirements.

Criminal penalties up  to $50,000 or five  years in prison may also be given to  any person who
knowingly and willfully fails to provide emergency release notification. Penalties of not more than
$20,000 and/or up to one year in prison may be given to  any person who knowingly and willfully
discloses any information entitled to protection as a trade secret.  In addition, Section 326 allows
citizens to initiate civil actions against EPA, State Emergency Rsponse Commissions, and/or the
owner or operator of a facility for failure to meet the requirements of the emergency planning and
community right-to-know provisions.  A State Emergency Response Commission, Local Emergency
Planning Committee, State or local government may institute actions against facility owner/operators
for failure to provide trade secret information.
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3 - Compliance Program

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                                      CHAPTER 3

                     COMPONENTS OF A COMPLIANCE PROGRAM
For each environmental law and regulatory program, EPA has developed a systematic program to
achieve  high  compliance  levels.  Such a compliance and  enforcement program makes  use  of
appropriate strategies and tools to influence the regulated community to comply with the law. Each
program is different, taking advantage of the unique opportunities presented by the nature of the
regulated community and the provisions of the law.
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                                      3A  OVERVIEW
People tend to think of compliance and enforcement in very simple terms:  the government performs
an inspection, and if a violation of an environmental requirement is discovered, the government takes
an enforcement action  to  make the company  comply and perhaps pay a penalty.  While this
perception captures  the essence of a compliance and enforcement program, it is important to
understand the  context within which such individual actions to detect and correct violations take
place.

Designing and implementing a compliance and enforcement program involves a great many decisions.
It  begins with how a new  law or regulation is written; enforcement staff are often involved in
reviewing or drafting portions of regulations or permits to help assure that they are written in a
clearly enforceable way.

A  compliance and enforcement strategy is then developed for each regulatory program which spells
out how the  Agency will use the various tools  it  has  available  to achieve compliance by various
segments of the regulated community.  One element of  the strategy is a compliance monitoring plan
setting  out the priorities  and rationale for conducting on-site inspections  and  other  types  of
compliance monitoring  at  different categories  of regulated  facilities.  Another  element is  the
enforcement  response policy which  sets out a hierarchy showing how seriously the Agency views
the many ways in which a regulation can be violated and the appropriate level of enforcement action
and/or sanction associated with each.

At the individual activity level, there are still more decisions to be made once a  facility is scheduled
for inspection.  Inspections serve many functions.  Each facility is likely to be subject to  literally
hundreds of requirements.  What is (are) the specific purpose(s) of this particular inspection? How
detailed an inspection will  be conducted?  Assuming that  a violation was found by an inspector,
additional decisions must be made by the attorneys. What level of action should be taken given the
seriousness of the violation and other factors such as compliance history of the facility?  What if the
facility  is a Federal facility?  What if a contractor runs a Federal facility?  When should litigation
be pursued?  Should the Agency settle? Then, once the enforcement action is completed  (that  is,
there is some agreement or order requiring the facility to come  into compliance), what follow-up
steps should be  taken to ensure that  the facility does what it is required to do?

This  overview section contains a general discussion of these components of a  compliance and
enforcement  program.  Because they  are the  central elements of the  program,  more detailed
discussions of Compliance  Monitoring  and Enforcement Response are contained  in Sections 3B
and 3C, respectively.
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Statutes and Regulations
EPA's environmental regulatory programs begin with statutes, the laws which are enacted by the
U.S. Congress.  The power to enact such laws was granted to Congress in the Constitution.  The
statutes  direct EPA to  deal with specific environmental problems by  regulating  the activities of
industries and other segments of the public that contribute to those problems.   In some statutes
Congress has given only broad guidance to EPA as to the regulatory approach to be used.  In others
Congress has been much more specific, sometimes even including standards and deadlines to be met
by regulated industries.

Overall, these laws give general authority and prescribe broadly drawn requirements and standards.
To  put  the  statutes into effect, EPA issues regulations which interpret the statutes and tell  the
regulated community precisely what standards they are required to meet  under the law, and by what
date.  The environmental regulations are assembled in Title 40 of the Code of Federal Regulations.

When a statute has left out the specifics, it is EPA's  job to fill this gap, calling upon  technical
experts who know how the regulated industries operate and are able  to propose regulations that are
clear  to industry managers and recognize existing conditions in the industry.   Public comment
preceding final regulations allows EPA to make the requirements clearer.

A well written regulation helps to answer an industry manager's questions, such as:  Is my facility
subject  to this law? What would be acceptable performance under this law?  What  would be a
violation? What sort of actions should I take to bring my facility into compliance? Am I required
to submit any documents to EPA?  When are they due, what should be included in them, and to
whom do I send them?

The same information in a regulation becomes the basis for inspections, because the inspector can
compare the facility's performance against the standards prescribed in the regulation.
Compliance and Enforcement Strategy	

A compliance and enforcement strategy is a plan for deploying EPA's resources in ways that will
achieve the highest  possible compliance with a given law and its implementing regulations.  The
"strategy" is not usually one document, but rather the combination of program guidances, outreach
plans, compliance monitoring plans, and enforcement  policies which together form the Agency's
strategy  for  achieving  compliance.    These  policies  and  documents  are  assembled  in  a
"Compliance/Enforcement Policy Compendium" for each program.  A "Federal Facility Compliance
Strategy" deals specifically with Federal facility compliance, inspection, and  enforcement issues
under all statutes.

In developing a compliance and enforcement strategy for a given statute or regulation, EPA considers
the  whole range of  tools that might be used to influence the behavior of the specific regulated
community involved.  These tools span a  wide  range  from  education and  technical assistance to
compliance monitoring and enforcement actions. By first identifying the regulated community and
analyzing  its  characteristics, EPA  can tailor a strategy  which focuses appropriate  compliance
activities on the various  segments of the regulated  community.
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For example, some regulations affect literally hundreds of thousands of small businesses.  Since it
would be impossible to inspect more than a small fraction of these facilities, the compliance strategy
might place a heavy emphasis on compliance promotion, such as educational efforts to inform facility
owners about the requirements and how they can comply. By contrast, the compliance strategy for
a regulation affecting a relatively  small number of large  facilities might emphasize  frequent
inspections of all facilities.

Usually, regulations affect a variety of facility types and sizes, and the compliance strategy sets out
plans for using several approaches to gain compliance. The most intensive compliance monitoring
and enforcement efforts are generally directed at those segments of the regulated community most
likely to  be  in noncompliance and/or  whose compliance  is  most necessary to achieving  the
environmental benefits envisioned by the law or regulation.
Compliance Momitoring	

Compliance monitoring encompasses all of the means used to determine the compliance status of a
facility or site (e.g., applicable to the CWA, Section 404 program and Superfund), ranging from in-
office  screening of self-monitor ing reports to on-site facility inspections.  On-site inspections are
the main tool used. Such inspections fulfill the following objectives:

     •   Observe the facility  and identify specific environmental  problems,  if any exist.   This
         information will enable EPA to determine whether the facility is  in compliance.

     •   Provide EPA  with facts about a facility's or site's  compliance status and/or about certain
         problems.

     •   Collect and preserve evidence of any specific problems that appear to be violations.

     •   "Show the flag" -- the inspection itself creates a credible presence of the interest and power
         of government in the environmental compliance status of the inspected facility and other
         similar facilities.

Every  inspection serves all four objectives to some extent, although the design of a given inspection
will reflect the relative importance of each objective in that instance.

Compliance monitoring and the functions of on-site inspections are discussed in more detail in
Chapter 3B.
Enforcement Response to Violations	

It  is EPA's policy to  make a timely and appropriate enforcement response to any violations that
have been identified by an inspection. There is a range of possible responses, representing different
levels of seriousness and effort, and each EPA program has considered which types are appropriate
to given classes of violations.  Specific time frames have been set for each program  as formal
enforcement  goals for at least the most significant violators.
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The broad categories of enforcement responses are these four "levels of action":

     •   Informal administrative responses, such as a notice of violation.

     •   Formal administrative responses, such as an administrative complaint assessing a penalty.

     •   Civil judicial responses, such as an injunctive action in district court against the violating
         facility seeking a penalty and a court order to compel compliance.

     •   Criminal judicial responses, such as a criminal prosecution against a knowing and willful
         violator seeking a fine and imprisonment.

The unique aspects of an enforcement response to violations at a Federal facility, e.g., consent orders
and interagency agreements, are discussed in the "Federal Facility Compliance Strategy."  The goals
of enforcement and enforcement responses are discussed in more detail in Chapter 3C.
Follow-up to Enforcement Actions
After an enforcement action has been taken, the next question is whether the facility actually has
complied with the terms imposed by the enforcement action, as well as with the law or regulation.
EPA establishes this in two ways:

     •  Scrutiny of reports, records, or plans the  facility is required to submit to EPA.   Many
        enforcement agreements include schedules  by which specific activities must be completed
        and the particular documentation that the facility must  submit to demonstrate and report
        on their progress.  Such reporting would  be in addition to any other reporting already
        required by statutes and regulations.

     •  Inspection. This may include a specific follow-up inspection,  earlier scheduling of the
        next routine inspection, or focusing the next routine inspection on the problems associated
        with the violation.

If the facility is  found not to be in compliance, EPA will step up  its enforcement action to a higher
level of action.  For instance, if a facility has not complied with an administrative order, the next
step may be to initiate a lawsuit. Failure to comply is taken seriously by EPA, and more serious
sanctions will be sought.
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                             3B  COMPLIANCE MONITORING
Literally thousands of facilities are subject to the environmental laws administered by EPA. Since
each facility is likely to be regulated under several EPA statutes, and each regulation may include
numerous requirements, it is virtually impossible for EPA and  States  to continuously check for
compliance with every requirement at each facility. Therefore, one of the most challenging aspects
of compliance arid enforcement programs is developing strategies to make the most effective uses of
limited resource:? to achieve Agency objectives.

To meet this challenge, EPA employs a planning process to establish compliance priorities.  Priorities
established during a planning process form the basis for compliance monitoring plans, which set out
how the  Agency's compliance monitoring tools will  be  used  to  assess  the compliance of various
segments of the regulated community.  Compliance monitoring activities take three basic forms:

     •   In-office review and  screening of data submissions of source self-monitoring reports.

     •   Telephone or written  requests for information.

     •   On-site inspections of various types.

Most programs rely heavily on  inspections as  a  first-hand means  for determining compliance,
detecting violations, and identifying priority compliance problems.


Types of Compliance Monitoring	

There are three basic types of compliance monitoring, and their  use varies among the major EPA
environmental programs depending upon the nature of the regulated substances, the types of sources
involved, and other factors.  Overall, the first  two types of compliance monitoring listed  below
(source self-monitoring and inspections) are the most important.

Source Self-Monitoring	
A fundamental principal of U.S. environmental policy is that regulated parties should keep track
of their own compliance status and report all or part  of the resulting  data  to  the  responsible
environmental agency.  These requirements are based, in part, on the assumption that the obligation
to collect and report this information will result in more attention from high-level corporate officials
to preventing and correcting pollution problems.

Self-monitoring and reporting  requirements  are also an important tool for enforcement.  Self-
monitoring reports identify potential violations, help the Agency schedule on-site inspections more
effectively, and give inspectors a more complete  picture of the compliance behavior of a given
source than could be gained on  a one-time visit.

While required self-monitoring  and submission of reports are key features of many EPA programs,
regulated sources also receive periodic on-site  inspections. Part of the on-site inspection is a review
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of the source's  self-monitoring, recordkeeping, and reporting  practices;  sources  who submit
incomplete, inaccurate, or false information are subject to civil or criminal sanctions.

Inspections	
Although self-monitoring has attained major importance, inspections are the backbone of EPA's
compliance monitoring programs.  They are the government's main tool  for  officially assessing
compliance. Inspections are vital to assuring the credibility of self-monitoring programs because the
regulated community knows there  will be a periodic assessment of the quality of the data that is
submitted.

An inspection is an examination into the environmental affairs of a single  regulated facility.  The
principal purpose is to assess the performance of the facility to see  whether it is in compliance with
applicable environmental requirements.  Findings from the inspection form the basis for a variety
of actions the Agency might take to bring a noncomplying facility into compliance.

Area Monitoring	
Less used than the self-monitoring and inspections for direct compliance monitoring purposes, area
monitoring consists of methods of monitoring environmental conditions in the vicinity of a facility
or over a larger area.  Methods used include ambient monitoring, remote sensing, and  overflights.
Area monitoring is used to assess progress in meeting legislated goals and standards, assess impacts
of various activities, assess trends, and provide data useful in assessing risks and health  impacts.
It is also a useful screening device for identifying potential violations and areas where compliance
problems may be found.
The Functions of On-Site Inspections	

On-site inspections serve several functions in support of the Agency's broad goal of ensuring that
environmental requirements are being implemented effectively.

With respect to compliance monitoring, inspections may serve the following functions:

     •  Assessment of compliance status and documentation of violations for enforcement action.
        Inspections permit EPA to collect information that will illuminate whether or not a facility
        is in compliance with requirements, as well as determine if source self-monitoring and
        reporting is being performed in accordance  with established protocols.

        A principal function of an inspection is detecting and documenting violations at the facility.
        Evidence collected during the inspection supports the resulting enforcement action that will
        bring the facility into compliance with EPA regulations.

        In addition to information on noncompliance, the Agency also needs to know in what ways
        facilities are in compliance.  Information that  documents compliance is useful for future
        inspections of the same facility.  It is also crucial to the development of an understanding
        of compliance patterns across the regulated  community. Knowing how various segments
        of the regulated universe are likely and not likely to be  in  compliance with the various
        requirements is essential for planning,  evaluating, and refining compliance strategies. In
        addition, the accumulation of such information assists EPA's internal communication and

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        communication with  the public, regarding progress made in achieving the goals of the
        program, as well as problems remaining to be addressed.

     •  Oversight  of State  inspection  programs.    EPA  establishes  national  standards  and
        requirements under the various Federal environmental statutes.  Although there are some
        exceptions,  operating  responsibility   for  most  environmental   programs,  including
        responsibility for compliance monitoring and enforcement, has been delegated to the States
        through  a formal State program approval  process.  States that demonstrate they have the
        necessary authority and capacity operate the programs in lieu of EPA. Nevertheless, EPA
        retains  ultimate responsibility  for  program  success  and retains  parallel enforcement
        authority.  As part of the exercise of this responsibility, therefore, oversight inspections are
        conducted  by EPA to review the overall effectiveness of the States' efforts at maintaining
        compliance. Oversight inspections may be conducted jointly with State personnel; EPA may
        observe a State inspection; or EPA may conduct its own inspection and then compare the
        results against the  State's inspection.

In addition to these compliance monitoring functions, on-site inspections may serve several other
functions, such as:

     •  Gather data as part of area/industry-wide inspections and assess  the adequacy of need for
        additional  controls.

     •  Promote voluntary compliance through the provision of information and technology transfer.
        Inspections provide an opportunity for EPA to communicate program requirements to the
        regulated industry. Using inspections as a  precursor to providing information is beneficial
        since policy tends to evolve even after a regulation has been in place, and new requirements
        are often added.  EPA's  on-site presence can also  be applied  to meeting the informal
        consulting  or technical assistance needs of facilities,  especially for Federal  facilities, thus
        enhancing  their abilities to meet EPA program requirements. At the same time, inspections
        offer a chance for  the regulated community to inform EPA of any difficulties encountered
        or creative solutions applied to satisfy program requirements.

     •  Establish a Federal enforcement presence  to promote compliance.  Inspections serve as a
        visible manifestation  of the regulatory process. As such, they provide the opportunity to
        "show the flag," while displaying an overt enforcement presence.  For example, inspections
        lend credibility to source self-monitoring programs by providing a vehicle for independent
        evaluation  by the  government of a facility's compliance status.  In addition, inspections
        serve as enforcement mechanisms for the detection and verification of violations. Violations
        documented  during  the inspection  process can  result in penalties  or other actions that
        adversely affect a  source.  Therefore, the  likelihood of inspection and, by  extension, the
        real risk of being found in violation can act as  a powerful deterrent to noncompliance (or,
        as a powerful inducement for compliance).

     •  Support the permit issuance process.  For some EPA programs, the Agency has responsibility
        for issuance of a permit.  States also may  be responsible for permitting and enforcement.
        EPA (and/or the State) may conduct inspections to gather data  in support of the permit
        issuance process.   In addition, data collected during an inspection can be used to support
        the process of setting standards.
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        Train  EPA/State staff.  Inspections may  be employed as training vehicles.  Inspector
        personnel may be sent on-site to gain experience in new programs or to become  familiar
        with new types of processes or facilities.   Similarly,  States may request EPA technical
        assistance in training their personnel or in alleviating an  identified inspection program
        weakness; in such cases, the on-site inspection may serve as a training mechanism for State
        personnel.
Reasons for Inspections; Facility Selection Schemes	

As part of its mission, EPA conducts on-site inspections for the purpose of determining a facility's
compliance with regulations associated with specific legislation.  However,  since no program has
the virtually limitless resources that would be required to  inspect all facilities  subject to these
regulations, programs develop strategies allocating inspections to various segments of the regulated
community.

Essentially, there are four categories of inspections:

     •  Routine.  Routine inspections are conducted at facilities that are members of a class or
        segment of the regulated universe targeted under a neutral administrative inspection scheme
        (see discussion below). The Agency  has no indication that the facility is in violation in
        advance of a routine inspection; the inspections are conducted to determine compliance with
        all (or a priority portion) of the program's requirements. The largest  number of inspections
        are routine inspections.

     •  For cause.  If  a facility is selected to be inspected "for cause," there is some reason to
        suspect that an actual violation exists based upon a tip, a complaint, source self-monitoring
        report, other information,  or a referral from another agency.  Under these circumstances,
        EPA may perform an inspection to confirm noncompliance. An emergency may also evoke
        a  "for cause" inspection if the  situation  may  cause harm in the absence of immediate
        remedial  action.  One of the  principal  distinctions  between  "for  cause" and routine
        inspections is that in "for cause" inspections, the inspector will know in advance what he
        or she is looking for.

     •  Case development support. Sometimes evidence in addition to that  collected on an initial
        inspection is needed for continued case development and/or to support prosecutions.  On
        such inspections, inspectors collect evidence in  accord  with the requirements specified by
        the case development or litigation  team.

     •  Follow-up.  Follow-up inspections are performed to determine whether a  facility found
        to be in violation  during  a prior inspection is  now in compliance  with the terms of the
        resultant enforcement action, such as an EPA consent decree or administrative order. Each
        program allocates a percentage of  its  inspection resource to follow-up inspections.  Such
        inspections help to ensure the integrity of the enforcement program;  if the facility is found
        still out of compliance, EPA will usually step up to a stronger enforcement action.
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Overall Inspection Scheme
The overall inspection schemes developed by each program allocate a proportion of inspections to
the categories described above based upon the Agency's identified enforcement priorities and the
program's Operating Year Guidance and Annual Implementation Plan documents. These are also
stated in an annual summary of enforcement priorities published by the Office of Enforcement and
Compliance Monitoring.

Each program has a somewhat different approach to establishing goals and priorities.  However,
three factors  ar« central to determining the thrust of compliance and enforcement efforts:

     •  The likelihood that a violation in a class or segment of sources will present a significant
        risk to human health and the environment.

     •  The likelihood  that a class  or  segment of  sources will violate environmental laws  or
        regulations.

     •  The likelihood that inspections of a class or segment of sources will contribute significantly
        to ensuring a credible  enforcement presence.

In a high-priority class, every member might be inspected. In lower-priority classes,  only a small
percentage sample would be inspected.

Each EPA program has developed a "neutral" administrative inspection scheme setting out how the
regulated  community  is  divided  into  classes or segments for  routine  and follow-up inspection
targeting purposes.   Typical criteria for  these segments include type  of industry, size of facility,
and amount of pollutants handled.

Although under the neutral scheme, classes or segments of the regulated community may be targeted
for inspection, the specific sites within each class or segment must be selected in a non-biased way
for inspection.  If sites to be inspected are chosed under a pre-existing general administrative plan,
this is consistent  with  the findings of the Supreme Court's decision in Marshall vs. Barlow's. Inc..
436 U.S. 307  (1978). Note that actual inspection scheduling also takes into account factors such as
geographic and seasonal considerations.

Allocation of Inspections	
The bulk of inspections are typically assigned to the category of routine inspections.  A significant
portion is assigned to follow-up inspections, since such inspections are essential to the integrity of
an enforcement program (i.e.,  violators must  know  that failure to correct violations in a timely
manner will result in further penalty). Nevertheless, limitations on resources do not permit follow-
up  of  every  action.   Therefore,  planning  for follow-up  inspections  also  involves neutral
administrative selection schemes, similar to those employed  for routine inspections.  Finally, with
respect to "for cause" inspections, not all tips or complaints trigger an inspection.  Such information
must be evaluated against program priorities and goals to determine whether an immediate on-site
inspection is warranted, or whether some other follow-up action (e.g., a phone call or other request
for information) is the most appropriate initial response. When an inspection is determined to be the
appropriate  response, it may alter the administratively pre-determined balance among the inspection
categories. In that event, typically, it is the lower priority routine inspections that are postponed or
deleted from the inspection schedule.


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While the information in this text primarily focuses on routine inspections, it is always important
for inspectors to understand the reasons for inspection and how a facility  came to be included in
the schedule  because  these factors impact inspection objectives and definition of the scope of the
inspection, as discussed in Chapter 10.
Levels of Inspection	

The intensity and scope of an inspection can range from a quick walk-through inspection that takes
less than half a day to an inspection with extensive sample collection that takes up to several weeks
to complete.  Each program has its own approach to categorizing the different types or levels of
inspections that can be conducted; the  time involved  in each will also vary depending upon the
complexity of  the  facility and  of the  particular  requirement(s) for which compliance is being
assessed. Nonetheless, any situation could lead to an enforcement action and to litigation. Therefore,
everything an inspector does and says may be subject to courtroom inquiry.

While there is  a variety of approaches to categorizing inspections, it is possible to state  typical
features of general  categories.

     •  A "walk-through" level of  inspection would  generally be limited to  walking  through a
        facility, checking only  for the existence of control equipment, observing work practices
        and housekeeping, and  checking if there is a records repository. Such inspections  help to
        establish an enforcement  presence, and can also be a screening tool to identify facilities
        for more intensive inspection at a later time.

     •  A "compliance evaluation inspection" is the most common form of inspection.  Depending
        on the program and  the  scope of inspection determined  for the specific  facility being
        inspected, it might include:  visual observations  as in  the "walk-through," review and
        evaluation of records,  interviews with facility personnel, and other evidence collection
        activities (including physical sampling in some cases). It might also include detailed review
        and critique of source monitoring methods  and data as well as probing for details about
        process and control devices that are in place.

     •  A "sampling inspection" can include some or all of the activities described above, but would
        always involve pre-planned sample collection.  The sample collection  might be done to
        duplicate the source's own sampling and laboratory analysis procedures to  double-check
        actual pollution emission or discharge rates, or the sampling might be done to document the
        extent of a contaminated area or environmental damages. Sampling inspections are the most
        resource-intensive since they involve extensive advance planning as well as use of laboratory
        analytic services after the inspection.
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                             3C  ENFORCEMENT RESPONSES
An enforcement action is a response to something a person or company has done in violation of a
law or regulation. The violator started the chain of events that led to enforcement action; the Agency
gets involved to correct the situation.  It is EPA's policy that every instance of noncompliance is
responded to in some way, with the type of response commensurate with the seriousness and
circumstances of the violation.

EPA  has a  range  of options  when contemplating  an  enforcement response against a violator,
determined by authorities of each statute.  These options range from informal actions that take little
effort to formal ones involving large  commitments of time  and  money.  EPA views these as its
enforcement arsenal, from which the  most appropriate tool may be selected for the job at hand.
The unique  situations for enforcement at Federal facilities, whether run by an agency directly or
through a contractor, are addressed in the "Federal Facility Compliance Strategy."
The Goals of Enforcement	

In choosing the appropriate enforcement response to a given violation, EPA tries to achieve several
goals:

     •  Correction of the violation as quickly as possible.  In many cases an environmental problem
        or threat has been created by a violation.  It is the Agency's goal to resolve that problem
        or threat quickly.

     •  Deterrence of future violations by the same party or by other parties.

     •  Equitable treatment of the regulated community through use of a uniform approach to
        selecting enforcement responses (i.e. similar violations are treated similarly).

     •  Punishment of serious, willful  wrongdoing by imposition of criminal sanctions, such as
        fines and jail time.

     •  Effective use of enforcement resources by using the enforcement response that achieves
        the environmental and health goals at the least expenditure in money and staff time.
Types of Enforcement Responses	

A broad array of possible enforcement responses  is available under the environmental laws EPA
administers. The Agency usually has room to exercise judgment in selecting the response to a given
noncompliance situation, including asking for additional data through its information gathering tools.
The broad spectrum of responses reflects four "levels of action," differing in severity and in the scale
of Agency resources required. Inspectors play a role in each type of response.  They may help in
drafting informal responses or even formal complaints; they are often key witnesses in cases which
are litigated.
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A given violation may be addressed by actions at more than one level.  It is EPA's policy to escalate
its enforcement response in a given case, if a lower-level response fails to achieve satisfactory results
in  a timely manner.

The four levels of action are described here in order of increasing severity:

     •  Informal responses are administrative  actions, such  as  a notice of noncompliance or a
        warning letter, that are advisory  in nature.  In these actions,  EPA advises the manager of
        a facility what violation was found, what corrective action is needed, and by what deadline
        the violation should be corrected. Generally, informal actions are used for lower priority
        violations and for first-time violators.  Although informal actions  carry no penalties nor
        power to compel action, the  record of informal actions  can be used later to support more
        severe actions of the types discussed below.

     •  Formal administrative responses are formal, legal actions that result in an order requiring
        the violating  facility to correct the violation and, in most cases,  to pay a civil penalty
        amount commensurate with the seriousness  and the circumstances of the violation.  These
        administrative actions are strong enforcement tools; if  a person  violates the terms of an
        administrative order,  EPA  may  obtain U.S. Court action  to force compliance with the
        order.

        Because they are generally the most expedient means of requiring correction, administrative
        actions are used  heavily by most programs that have the authority for them. Administrative
        actions also include more rarely  used options such as revoking or  suspending  permits or
        removing violating products from commerce.

        Administrative actions in several programs are taken  under EPA's internal administrative
        litigation system, which is comparable to any court system, except that it is presided over
        by EPA's own  administrative law judges (ALJs).  All administrative actions have the
        potential to be challenged in  the U.S. Court system, so conduct of these actions is governed
        by an extensive set of procedural  rules designed to  provide due  process to the alleged
        violator  and ensure the integrity of the system.   Violating firms may appeal the  initial
        rulings of the ALJ to the EPA Administrator and may appeal the Administrator's final
        decision to the U.S. Courts.

     •  Civil judicial responses are  formal actions taken in  the U.S. Court  system  by the U.S.
        Department of Justice (DOJ) at the request of EPA.  Typically they are used against the
        more serious or  recalcitrant violators of environmental laws, and to seek prompt correction
        of imminent hazard  situations  posing an immediate  threat to  human  health  or the
        environment. Preparation of civil judicial cases is resource-intensive, both because of DOJ
        involvement and  the  more  formalized  procedures required  for court actions than for
        administrative actions. Sometimes  judicial  litigation  may take several years  to complete.
        For these reasons, EPA often addresses violations through  administrative mechanisms, if
        possible.

        Civil judicial cases often result in  penalties and court orders requiring correction of the
        violation and requiring specific actions (such as specialized monitoring) to prevent future
        noncompliance.
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        Criminal  judicial responses  are  taken  when  a person or company has  knowingly  and
        willfully committed a violation of the law.  In a criminal case, the Department of Justice
        prosecutes an alleged violator in the U.S. Court system, seeking criminal sanctions, usually
        including fines and incarceration.  Criminal  actions are taken for flagrant, intentional
        disregard for environmental laws (such as midnight dumping) and deliberate falsification
        of documents or records.  Criminal cases are usually  brought by DOJ at the request of
        EPA, but DOJ also can initiate them on its own.

        Criminal  cases are the  most  difficult to pursue.  They require  special investigation  and
        case development procedures, and they involve the highest standard of proof, including
        proof of the intent of the violator to commit the violation.
Enforcement Response Policies	

Nearly all EPA programs have issued penalty policies based on an Agency-wide framework that
sets out the principles and rationale for determining the seriousness (or "gravity") of various types
of violations as a factor in assessing penalty amounts.1 Some programs  have also issued broader
enforcement  response policies  indicating the level of enforcement  action that is appropriate to
different violation and  compliance history situations.  Some program policies  also set out which
individual violations would be grouped together in a formal enforcement action and counted as one
charge (with one penalty assessed), and other types of violations that would normally be considered
"other lesser charges" (no penalty assessment).  Each program's "Compliance/ Enforcement Policy
Compendium" contains its current response policies, penalty policies, and associated guidance.

Ideally, every potential  violation observed by the inspector would be fully documented, including
collection of physical samples  as  appropriate.   However, when multiple potential violations are
observed, time and logistical constraints sometimes require decisions to be made in the field about
the extent of documentation that should be collected.

While there are no hard and fast rules  for making these judgments, the inspector can prepare for
them by being familiar with  the particular program's enforcement priorities and how serious the
Agency considers various categories of violations.

As  a  quick  guideline  when  choices  must  be made in  the  field, inspectors should increase
documentation in proportion  to the seriousness of the violation.  This is because, stated generally,
the likelihood that the Agency will pursue a formal enforcement action -- and the size of the civil
penalty assessment, when appropriate -- increases with the seriousness of the violation. The standard
of proof required to prove that a  violation occurred also increases  with  the level of enforcement
action  taken  (informal, administrative, judicial).  Likewise, the likelihood  of  a challenge to the
Agency's action increases with the level of enforcement action and size of penalty assessment.
1 Factors other than gravity (e.g., economic benefit, compliance history, recalcitrance, culpability,
 ability to pay, litigation considerations) are also considered in determining penalty amounts. The
 gravity factor, however, is the most relevant to the inspector.

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Factors Affecting Gravity of Violations	

In a penalty policy, categories of  violations are often ranked  according to their seriousness,
considering the following factors:

     •   Actual or possible harm. This factor focuses on whether the activity of the violator actually
         resulted or was likely to result in a discharge or exposure which the regulatory scheme was
         designed to prevent.

     •   Importance to the regulatory scheme.   This factor  focuses on the importance of the
         requirement to achieving the goal of the statute or regulation.  For example, if labeling is
         the only method used to  prevent dangerous  exposure  to a chemical, then failure to  label
         should result in  a relatively high penalty.  By  contrast,  a warning sign  that was visibly
         posted but was smaller than the required size would not ordinarily be considered as serious.

     •   Availability of data from other sources. The violation of any recordkeeping or reporting
         requirement is a very serious matter. But if the involved requirement is the only source
         of information, the  violation is far more  serious.  By  contrast, if the Agency has another
         readily  available and cheap  source  for the necessary information, the  violation is less
         serious.

Beyond the hierarchy of categories of violations within a program, the facts of a particular violation
distinguish its seriousness among violations within  the category. The factors considered are usually
quantifiable, and the information (e.g., data,  samples,  observations) necessary  to support the
calculations would ordinarily be collected as part of the inspection. Such factors include:

     •   Amount of pollutant.  The seriousness of the violation may vary according the amount
         and/or concentration of the  pollutant involved in the  violation.

     •   Toxicitv of the pollutant.  Violations involving highly toxic  pollutants are more serious.

     •   Sensitivity of the environment.  This factor  focuses on the location where the  violation
         was committed. For example, improper discharge into waters near a drinking water intake
         or recreational beach is usually more serious than discharges not near any such use.

     •   Length  of  time  a violation  continues.   In most circumstances, the longer a  violation
         continues uncorrected, the greater the risk of harm.

Significant Noncompliance	
Each program has defined what is considered to be significant noncompliance with requirements.
As a means to assure that significant noncompliance is addressed in a timely and appropriate manner,
the programs have also established goals and time frames for action in these (and some other) cases;
progress is closely tracked.
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4 - Organizational
    Structure

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                                     CHAPTER 4

                         ORGANIZATIONAL STRUCTURE FOR
                          COMPLIANCE AND ENFORCEMENT
Environmental compliance and enforcement activities take place within a complex organizational
structure involving many offices in EPA Headquarters and the Regions, the U.S. Department of
Justice,  and State environmental agencies.  This chapter contains  a summary of the role of the
principal EPA offices involved and a discussion of the Federal-State relationship in compliance and
enforcement efforts.
                                         4-1

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NOTES
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                                4A EPA ORGANIZATION
Because inspections are pivotal in EPA's regulatory efforts, inspectors cooperate with many units
of the Agency.  Those with which inspectors work most often are described below. Together, these
constitute the organizational structure for EPA's compliance and enforcement activities.
EPA Headquarters	

The Headquarters offices develop national policy guidance and regulations for all programs and
prepare EPA's annual Budget and Operating Year Guidance.

     •  Office of Air and Radiation, which addresses stationary sources, mobile  sources, and
        radiation.

     •  Office of Water, which addresses municipal pollution control, National Pollutant Discharge
        Elimination System (NPDES), wetlands, marine and estuarine protection, ground water,
        and drinking water.

     •  Office of Solid Waste and Emergency Response, which addresses emergency and remedial
        response (known as Superfund), hazardous and solid waste, and underground storage tanks.

     •  Office of Pesticides and Toxic Substances, which addresses pesticides and toxic substances.

     •  Office of Enforcement and  Compliance Monitoring (OECM).  This office advises the
        program offices on enforcement and manages EPA's litigation program. The principal units
        in OECM of concern to inspectors are:

        -   Deputy Assistant Administrator for Civil Envorcement/ Associate Enforcement Counsels
            (AEC).  There are four AECs, each assigned to one of the four major media programs
            and parallelling the program offices listed above. Each AEC has a staff of attorneys
            specializing in enforcement for the assigned program.

        -   Office of Compliance Analysis and Program Operators. This office is responsible for
            oversight of the Agency's compliance and enforcement in all media.  Its functions
            include  overall program  management  and support;  strategic planning,  enforcement
            policy, and evaluation; program  accountability  and  analysis;  contractor  listing; and
            training.

        -   National Enforcement Investigations Center (NEIC).  NEIC is a national technical
            resource and investigative unit for EPA civil and criminal enforcement.  Within NEIC
            is the Office of Criminal Investigation (OCI), which maintains a staff of trained criminal
            investigators who are deputized U.S. Marshals. There are OCI investigators in each EPA
            Region  who work  closely  with  the Regional Counsel's office and Assistant U.S.
            Attorneys in investigating and prosecuting environmental criminal cases.  NEIC also
            maintains expertise on the adequacy and validity of scientific and technical evidence,
            including data collection and analysis. Although it is based in Denver, NEIC is part of
            EPA Headquarters.
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        -   Deputy  Assistant  Administrator for  Criminal  Enforcement/Office  of  Criminal
            Enforcement Counsel (OCEC). This office provides legal support to the program offices
            and OCI regarding criminal investigations, it provides support to the Department of
            Justice on environmental criminal cases, and it advises  EPA Headquarters offices on
            criminal enforcement aspects of regulations and statutes.

        Office of Administrative Law Judges. Officially a part of the Administrator's office, this
        unit contains the administrative law judges (ALJs) who rule on administrative enforcement
        cases.  ALJs are located at Regional and Headquarters offices.

        Office of Research and Development. This office provides a wide range of research and
        development support to the regulatory standard setting and enforcement functions of the
        Agency. The EPA laboratories that analyze samples from inspections are part of this office.
Regions	

EPA's ten Regional offices manage EPA programs in the field. Where a program has been delegated
to the  State, the Region oversees the State's performance  to  assure consistency with the law.
Programs not delegated to the State are operated by the Region directly.  Three organizational units
in each Region are especially relevant to inspections:

     •   Program Divisions. These carry out their assigned specific media programs at the Regional
        level.  They conduct inspections and initiate administrative enforcement actions.  While
        Regional organization varies somewhat, a typical structure would include:

        -   Air Management Division:  air, radiation, pesticides and toxic substances (sometimes
            also waste management, where no separate division exists).

            Waste Management Division:  hazardous waste and Superfund.

            Water Management Division:  all water  programs.

     •   Environmental Services Division.  This unit supports the work of the program divisions
        by  collecting  and evaluating  environmental quality data, conducting  inspections, and
        performing supporting laboratory work. It also carries out emergency response activities
        for hazardous substances.

     •   Regional Counsel.  This office gives legal  advice to the Regional program divisions  on
        enforcement cases and other matters, and it conducts litigation.  One important function
        of the Regional Counsel is preparing cases for referral to the Department of Justice, when
        EPA is recommending litigation in the U.S. Courts. The office also assists program divisions
        in drafting permits,  administrative orders, and notices of violation.
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        Location of EPA Regional Offices.

        Region I -- Boston, MA
            Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont

        Region II — New York, NY
            New Jersey, New York, Puerto Rico, Virgin Islands

        Region HI -- Philadelphia, PA
            Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia

        Region IV -- Atlanta, GA
            Alabama, Florida, Georgia, Kentucky,  Mississippi, North Carolina, South Carolina,
            Tennessee

        Region V -- Chicago, IL
            Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin

        Region VI -- Dallas, TX
            Arkansas, Louisiana, New Mexico, Oklahoma, Texas

        Region VII -- Kansas City, KS
            Iowa, Kansas, Missouri, Nebraska

        Region VIII -- Denver, CO
            Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming

        Region IX -- San Francisco, CA
            Arizona, California, Hawaii, Nevada,  American Samoa,  Guam Trust Territories  of
            Pacific Islands, Wake Island

        Region X -- Seattle, WA
            Alaska, Idaho, Oregon, Washington
Role of the U.S. Department of Justice	

Although not a part of EPA, the U.S. Department of Justice (DOJ) plays a crucial role in EPA's
enforcement activities. When EPA wishes to pursue a civil or criminal action under the U.S. Court
system, EPA  refers the case to the DOJ, recommending  litigation.  This recommendation  is  then
considered by DOJ attorneys specializing in environmental litigation, and DOJ makes a decision
whether or not to litigate the case. While in such litigation, DOJ legally represents EPA; EPA  legal
and technical staff (including inspectors) also remain actively involved in the case.  In addition, it
is through the U.S. attorneys that EPA obtains warrants for entry when required.
                                           4-5

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                       4B THE FEDERAL-STATE RELATIONSHIP
Virtually every environmental statute provides for EPA delegation to or approval of State (and in
some cases local) programs to implement national standards and regulations through State-specific
rules, permits, and enforcement activities.

Enforcement is perhaps the most complex and sensitive aspect  of EPA's relationship with State
governments, given that EPA retains parallel and overall responsibility -- including enforcement
responsibility -- even when a program is delegated or approved. This means that while States have
primary responsibility for compliance and enforcement actions within delegated or approved States,
EPA  retains overall  responsibility  for ensuring  fair and effective  enforcement  of Federal
requirements and a credible national deterrent to noncompliance.

An effective State/Federal  partnership is critical to accomplishing the shared goals of achieving
and maintaining a  high level of compliance with environmental laws and regulations.  However,
the partnership is  particularly  difficult given the understandable desire by States to run their
programs as  independently as they can from EPA.  On occasion there are differences in philosophy
and perspectives as to what is needed to achieve compliance.

At this  time, States conduct some  80% to  90% of all compliance inspections under delegated or
approved programs.  EPA may also conduct inspections in a delegated or approved program State.
An agreement between EPA and the State sets the protocols for EPA conduct of inspections in the
State, covering inspections in which both EPA and the State participate and inspections which EPA
conducts independently.

The EPA inspector plays an  important role in the EPA/State relationship.  Effective communication
between the EPA inspector and the State fosters cooperation, promotes technology transfer, and
improves the overall enforcement effort at both  Federal and State levels.  This section discusses
aspects of the Federal/State partnership of  particular interest to inspectors.
State/EPA Enforcement Agreements	

To establish a more effective partnership in enforcement, EPA and the States have developed State-
specific enforcement agreements reflecting the criteria and standards EPA will use in its oversight
of State programs (or EPA Regions where they administer the program). The agreements also reflect
EPA's  criteria for direct enforcement in delegated States, protocols for advance notification and
consultation and specify the data the State will report to EPA.

EPA's  policy on these agreements was issued in a document inspectors should be familiar with -the
"Revised Policy Framework for State/EPA Enforcement Agreements" (1986). It can be obtained from
Regional program managers or  from the  Office of Enforcement and Compliance Monitoring in
Headquarters.

The Policy Framework spells out basic criteria to be used in developing  the State/EPA Enforcement
Agreements. Several of these criteria are directly relevant to inspections and are summarized below.
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It is important to note that there is no single document called a "State/EPA Enforcement Agreement."
Rather, each Region and program was encouraged to embody the principles and substance in existing
documents and processes already  in use. Program managers in each Region should be able to explain
protocols and others aspects of the agreement for each State and program.
Assessing a Compliance Monitoring Program	

One of the criteria for defining good performance establishes standards both EPA and the States
should strive to achieve for accurate and reliable compliance monitoring.

The two factors used in assessing the success of a compliance monitoring program are coverage and
quality.  Some of the principal components of these factors relevant to inspections are:

     •  Coverage - Each program's strategy should strike  a balance  between: (1)  breadth, to
        substantiate the  reliability of compliance  statistics and establish  a Federal or  State
        enforcement presence, and (2) targeting, to check those facilities most likely to be out of
        compliance or those violations presenting the greatest environmental or human health risk.
        States and/or EPA Regions should have a written inspection strategy, reviewed and updated
        regularly, addressing how the inspections will most effectively reach priority concerns and
        potential noncompliers.   The  strategy  will be assessed on  whether  it embodies the
        appropriate mix of categories of inspections, frequency and level of detail.

     •  Quality  -  Inspectors  should be  able to determine accurately the nature and extent of
        violations, and their documentation of inspection findings should be timely, complete, and
        able  to  support later  enforcement responses.   Each program should define minimum
        standards for  quality  assurance of compliance  monitoring  data  including essential lab
        analysis  and chain of custody issues.
Direct Federal Enforcement in Delegated/Approved States	

The  Policy  Framework document cites several  factors EPA will consider  before  taking  direct
enforcement action in a delegated State. Generally, EPA might directly enforce cases in which:

     •  A State requests EPA action;

     •  State enforcement response is not timely and/or appropriate;

     •  There are national legal or program precedents involved;  or

     •  There is a violation of an EPA order or consent decree.

Each program has adopted a definition of what  constitutes "timely and appropriate" enforcement
response, and these may be adapted to State-specific considerations in the State/EPA Enforcement
Agreements.
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Other factors which EPA considers before taking direct enforcement action in a delegated State are:

     •  Cases specifically designated as nationally significant (e.g., significant noncompliers, explicit
        national or Regional priorities);

     •  Significant environmental or  public health damage or risk involved;

     •  Significant economic benefit  gained by a violator;

     •  Interstate issues (multiple States or Regions); and

     •  Repeat patterns of violations  and violators.

In addition  to the nationally defined  priorities, there are State-specific  environmental  problems
deserving  of State and  Federal enforcement priority.  The State-EPA Enforcement Agreements
identify these priorities and any need  for coordinated and targeted enforcement  response.


EPA Inspection!; in Delegated/Approved States	

As  discussed above, EPA would not  ordinarily conduct routine inspections in a State with an
approved  or delegated program.  EPA might join the State on  a routine compliance assessment
inspection, on an information-gathering inspection in support of the permit issuance process, or on
an inspection to collect additional evidence for EPA's own enforcement case development.   The
State  might also request EPA  to perform an independent inspection for  any  of these reasons.
Sometimes an independent EPA inspection is needed to support a particular Federal enforcement
or permit  action.  In some situations, both Federal and State enforcement actions  are contemplated,
so both EPA and the State need to be  involved in  the inspection.

Routine Inspections to Assess Compliance Status	

Routine inspections would be the primary responsibility of the administering agency, in this  case
the State.  There would  be little reason for EPA to conduct such inspections unless requested to do
so by the  State.

Case Development  	
In any of the instances in which EPA may take direct enforcement action in a delegated or approved
State, EPA inspections may be required to develop EPA's enforcement action.

Follow-up Inspections to Prior EPA Enforcement Actions

EPA inspectors may need to confirm compliance with EPA administrative or judicial consent decrees
and orders where State inspections cannot be relied upon to do so.
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Oversight Inspections
One reason that EPA may conduct inspections in a delegated or approved State is to carry out the
Agency's responsibility for oversight of the quality and effectiveness of the State program.  The
purpose of oversight inspections is to identify needs and opportunities for strengthening the State's
capability in conducting compliance monitoring activities. Oversight inspections are used to evaluate
how effectively States are identifying violations, using approved inspection and sampling techniques,
and providing for overall quality control.

Oversight inspections can take one of three basic forms:  (1) EPA and State personnel conduct a
joint inspection, with each carrying out aspects of the inspection; (2) EPA may observe -- but not
be an active participant in -- a State inspection, or (3) EPA may conduct its own inspection and
compare results with the results of a recent State  inspection.

Federal Enforcement Presence	
Some programs,  such as NPDES,  require  Federal  inspections at approximately  20%  of major
permittees each year to establish a Federal presence in the national program (once in the 5-year life
of the permit). These inspections also serve the purpose of oversight inspections.

Training of EPA/State Staff	
One of the key reasons that EPA might be involved in inspections in a delegated or approved State
is to receive or provide training.

For EPA personnel, sometimes an EPA manager will send a new EPA  inspector into  the field  to
provide training.  When new regulations are issued, or a new type of process or facility is being
regulated, more experienced EPA inspectors might go into the field for training purposes.

Sometimes, EPA's oversight of a State program identifies deficiencies in the quality of  inspections.
Often, States specifically request training for their inspectors from EPA.  In these situations, EPA
participates in State inspections for training and technology  transfer  purposes.
Oversight Inspections: Special Considerations	

Oversight inspections are defined as those inspections for which EPA is evaluating State program
performance.  They are  undertaken for the purpose of evaluating the quality of State inspection
activities, identifying both strengths and weaknesses and identifying together steps that can be taken
to improve any weaknesses on the part of an individual inspector and an entire program. Given the
sensitivity of the Federal-State relationship, success in carrying out oversight inspections depends
largely on the quality of  communications between EPA and the State.

Establishing Clear EPA and State Expectations	

     •   Selecting candidates for oversight inspections. Advance understanding of what situations
         will be selected for oversight inspections  is  important if the State is to fully utilize the
         information to improve its  program. The State and EPA should discuss specific inspection
         types, industries, and settings which are critical to the success of the State program and try
         to pursue oversight inspections in those areas.


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     •  Establishing roles and responsibilities. Oversight inspections can take many forms: joint
        inspections; EPA observation while the State conducts an inspection; or State observation
        during or following an EPA inspection after which EPA compares its findings to State
        inspection reports.  Therefore,  the State and EPA need to decide in advance:

        -   Who conducts the inspection;

            Who writes the inspection report;

            Who follows up with enforcement response;

        -   How deficiencies will be identified, corrected, and follow-up action undertaken.

Creating a Constructive Environment	

The  Policy Framework also prescribes basic  principles for  EPA's oversight  procedures,  with
particular reference to oversight inspections.  Among them are these points particularly important
to inspectors:

     •  Positive oversight findings should be stressed as well as negative ones.

     •  Positive steps that can be taken to build the inspection capability of State programs should
        be emphasized.  This should be done by providing technical assistance and training --by
        EPA staff to the  extent possible.

     •  Inspection feedback between the States and EPA should be  a two-way street.  The States
        should be given an opportunity to comment on EPA's performance.

     •  EPA should use the oversight process as a means of transferring successful Regional  and
        State inspection approaches from one Region or State to  another.

     •  To the extent possible, inspection files to be audited should be identified in advance, with
        some provisions for random review of a percentage of other files if necessary.

     •  Experienced inspection personnel should  be used to conduct oversight inspections. EPA
        staff should be used to the extent possible to build relationships and expertise.

     •  EPA should  hold  an exit  interview  with  State staff,  provide ample  opportunity  for
        discussion of findings, and allow States to comment on and identify corrective steps based
        upon a review draft of the written report.

     •  Opportunity should be made for the staffs which interact on enforcement cases and oversee
        State performance to meet personally rather than rely solely upon formal communications.
        This applies to both technical and legal staffs.
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Implications for the Conduct of EPA Inspections
The State/EPA enforcement relationship has several implications for the conduct of an inspection
by EPA, and for conduct of oversight inspections in particular.

Given the complex and sometimes sensitive relationship between EPA and the States  with regard
to compliance and enforcement matters, it is essential that EPA consult and coordinate with State
personnel before conducting an inspection in a delegated or approved State.

Protocols for  advance notification and consultation are a part of  the State-EPA Enforcement
Agreement.

A policy of "no surprises" is the centerpiece of EPA's effort to ensure the productive use of limited
Federal and State resources and an effective working partnership.  Enforcement Agreements unique
to each State  and program  define protocols  for advance notification and  consultation  on both
intended EPA inspections and enforcement actions.  This includes:

     •   Who should be notified of proposed/planned Federal inspections;

     •   How the State will be notified (e.g., sharing of lists, phone calls, etc.); and

     •   When they will be notified (i.e., at what point in the process).

The Policy  Framework sets a high standard for consultation and sharing with States the  information
derived from EPA inspections. The timing and form of notification and consultation should enable
State and Federal agencies to properly coordinate and schedule site inspections where appropriate,
whether or not a particular State program is officially delegated or approved.

The Enforcement Agreements also set forth a  process to share, as  soon as practicable, inspection
results, monitoring reports, and evidence (including testimony) where  applicable for Federal and/or
State enforcement proceedings.

Preparation for Inspections	
In preparing for an inspection, the EPA inspector should:

     •  Know the delegation or approval status of the State program;

     •  Know the effect of State laws and requirements on Federally enforceable requirements;

     •  Know the results of prior State inspections and compliance monitoring;

     •  Plan and consult with the State prior to conducting the inspection, and in most instances,
        offer an opportunity for the State to join the inspection; and

     •  Know the purpose of the inspection and communicate the purpose to the State.
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Follow-up	

Follow-up is key to achieving positive benefits from the oversight inspection. In the exit interview,
and during the sharing of draft reports on the results of the oversight inspection, the EPA inspector
should distinguish strengths and weaknesses of the performance of the particular inspector from those
which may represent strengths or weaknesses in the State inspection program as a whole.  It is also
important to distinguish the important  from the unimportant.  Finally,  for  identified  areas  of
weaknesses, it is important to reach agreement with the State as to what they are and to identify
options for correcting them (e.g., such as training or altering procedures).

Ultimately,  it is a strong relationship of mutual respect among peers that will enhance the conduct
of both State and Federal inspections.  There is much to learn from both perspectives, particularly
since State inspectors are closest to the source and most familiar with plant operations.
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NOTES
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5 - Role of Inspector

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                                       CHAPTER 5

                   ROLE OF THE INSPECTOR/FIELD INVESTIGATOR1
While EPA  and States have thousands of employees working in various ways to carry out the
environmental laws, the inspector is the keystone of the entire effort.  All the Agency's efforts in
studying environmental problems and developing policies and regulations would be pointless if there
were no inspectors in the field to check compliance. And there could be no enforcement actions
against violators without the information and evidence collected by inspectors.

The inspector is a guardian of the public.  Without the inspector on the scene, practices that violate
environmental regulations would continue to release substances jeopardizing human health and the
environment. The inspector observes such violations, enabling EPA or State officials to halt them.

The inspector is the  only person who regularly appears on behalf of EPA at regulated facilities.
The inspector's presence dramatically symbolizes EPA's role as a public agency looking over the
shoulder of the facility  manager.   The knowledge that  an inspection could occur  at any time
encourages managers to  keep their operations in compliance.

EPA's staff of  enforcement  specialists depends on  the  inspector's work.  Action to get violations
corrected  begins upon submission of the  inspector's report and the  evidence he or she collected.
The inspector's  work must meet the highest standards for ultimate success in an enforcement action.
An inspector's failure to substantiate what he or she saw may  mean that EPA cannot take the case
to court and win a large penalty, instead settling for a lesser action that has little impact on the
violator.  When  the inspector's work is done well, it can mean victory in court and penalties that will
deter many other potential violators.
1As used in this text, the term "inspector" includes all field personnel who collect information that
may lead to or support an enforcement action.  While the focus of the text is on the conduct of
compliance inspections at facilities and sites subject to EPA  requirements, the majority of the
material is also relevant to other types of compliance/enforcement investigations.
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                           5A INSPECTOR RESPONSIBILITIES
Inspector Responsibilities
The inspector's fundamental mission is to examine the environmental affairs of a single regulated
source.  This involves the following responsibilities:

     •  Official Representative.  The inspector is a representative of EPA and is  often the only
        Agency official the plant manager and facility workers will ever see in person. In dealing
        with these facility employees, the inspector must be dignified, tactful, courteous,  and
        diplomatic.  The inspector's technical competence and know-how reinforce the credibility
        of EPA.  Equally important is the manner in which the inspector explains  the purpose of
        the visit, what the requirements are, and why the facility should comply with them.

     •  Fact-Finder.  The inspector assesses whether the facility is in compliance with the laws
        and regulations and with any relevant environmental permits. The inspector  must be skilled
        in obtaining the critical information that is necessary  for EPA to determine compliance or
        noncompliance. Often the key pieces of information are not easy to see and go beyond the
        standard data from stack tests, effluent samples, temperature readings, and the like.  A
        skilled inspector has developed the ability to  obtain significant information through
        conversation with  facility employees and knows how  to follow up on these  leads.  When a
        facility is found  to be not in compliance, the inspector  may also be responsible for
        identifying the cause of the problem.

     •  Enforcement  Case  Developer.    The  inspector  collects  and  preserves evidence  of
        noncompliance for use in enforcement actions. The inspection is usually the primary basis
        for the government's case both in  administrative and judicial enforcement actions. The
        documentation in  the inspection report and the inspector's field notes can  make or break
        a  case.  The  same is true of samples  taken  during  the inspection.   Without good
        documentation by the inspector, even  the most thorough inspection may  be useless for
        enforcement purposes.  But an expertly  prepared inspection report with  its associated
        samples can be highly persuasive to a judge, a jury, or an administrative law judge. The
        inspector is often the key witness for the government in an enforcement proceeding.

     •  Enforcement Presence. The inspector "shows the flag," creating a visible, credible presence
        of the interest and power of government in the eyes of particular managers at a particular
        site.  More important, the inspector's presence casts  a wide shadow over other regulated
        facilities,  whose managers are deterred from violating  the environmental requirements
        because they know that an inspector  may visit  their  facility, too.   Enforcement, as
        personified in the inspector, is the underlying motivator for those managers who would not
        otherwise be concerned about keeping their facilities in compliance.
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        Technical Educator.  The inspector serves as  a  source of regulatory information,  and
        tactfully provides technical assistance  to facility managers by directing them  to useful
        sources of information relevant to problems observed at the facility.  The inspector may
        discuss remedial actions that might be explored and may refer questions and problems to
        other EPA or State personnel with pertinent expertise. However, the inspector does not give
        advice, as this could jeopardize future enforcement action.

        Technical Authority. Inspectors are frequently called upon to help  the Agency interpret
        regulatory requirements, assess the adequacy of control measures, interpret technical data,
        and assess environmental impacts.
Inspector Training Requirements	

EPA inspectors are subject to the training requirements embodied in EPA Order 3500.1, Training
and Development for Compliance Inspectors/Field Investigators.  The Order establishes an Agency-
wide training program designed to prepare inspectors, first-line supervisors, and contractors for
conduct of technically and legally sound  inspections  for compliance  and  enforcement purposes.
Inspectors must complete training in basic curricula and minimum program-specific curricula before
performing  independently or leading an  inspection.   Inspectors  are  also  subject  to  training
requirements under the occupational safety and health orders as  described below.

Basic Training  Course	
This text covers legal,  technical,  administrative,  and communications  topics associated  with
conducting compliance inspections in all EPA programs.  The text supports a classroom training
program. The basic curricula for inspectors also encompasses training required in health and safety
procedures and  respiratory  protection under EPA  Orders 1440.2 and 1440.3, described below.
Completion of these courses will satisfy the basic training curriculum  requirement.

Program-Specific Training	
The program-specific minimum curriculum for each major environmental program covers legal,
technical, and programmatic subjects necessary to prepare an inspector/investigator to lead specific
types of inspections, to recognize violations, and to properly obtain information and evidence. The
following programs have or will develop such curricula: Air-Stationary Sources, Air-Mobile Sources,
CERCLA, NPDES, Pesticides, Toxics, PWSS, RCRA, UIC, and Wetlands. Some programs have or
plan to develop more specialized training.

Occupational Safety and Health	
All EPA employees who do field work are subject to EPA Order 1440.2 which establishes  basic,
intermediate, advanced, and refresher requirements  for occupational health and safety training.
The specific training requirements that apply depend on the degree of anticipated hazard, but must
be completed before going into the field.  In addition, EPA compliance inspectors/field investigators
must meet requirements, where these apply, of EPA Order 1440.3 for respiratory protection.
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                                       SB ETHICS
The integrity and professional impartiality of an inspector are crucial, because any of the inspector's
findings that identify problems can be subject to challenge by the regulated party.  Enforcement
actions based upon the inspector's work may represent a major commitment of the Agency's funds
and time, yet success  before an administrative law judge or a  U.S. Court may  hinge  upon the
inspector's freedom from bias or even apparent bias.   This  gives the  highest importance  to the
inspector's compliance with regulations governing conflict of interest and ethics.

Inspectors should familiarize themselves with the laws and regulations concerning conflict of interest
and ethics. Helpful material has been published by EPA's Designated Agency Ethics Official, in the
Office of General Counsel.  Each  EPA office has a  designated  Deputy Ethics Official, who  is
available to discuss confidentially any questions an employee may have as to how these regulations
apply to his or her situation.
Conflict of Interest	

The Federal  law 18 U.S.C. Section 208(a)  bars a  Federal  employee from participating  in  any
proceeding in which the employee (or spouse or minor child or others with whom the employee has
specified relationships) has a financial interest, regardless of size.  The penalties for violating this
law may be as  much as $10,000 fine and two years imprisonment.  The prohibited relationships
include certain  roles in nonprofit organizations and relationships with potential employers, as well
as ownership of stocks, bonds, etc.
Standards of Conduct	

EPA's regulations at 40 CFR Part 3 set forth restrictions and requirements concerning actions that
create an appearance of  impropriety, outside  employment,  and similar matters.  Under these
regulations, employees must avoid any action that might result in or create the appearance of:

     •   Using public office for private gain.

     •   Giving preferential treatment to anyone.

     •   Impeding Government efficiency or economy.

     •   Losing independence or impartiality.

     •   Making a Government decision outside official channels.

     •   Adversely affecting public confidence in the integrity of the Government or of EPA.
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Questions Frequently Asked About Inspections
Topics concerning conflict of interest and ethics that are often raised in connection with inspections
are the following:

     •   Gifts. Favors. Luncheons.   Inspectors must avoid accepting favors or benefits  under
         circumstances that might be  construed as influencing the performance of official duties.
         EPA regulations provide an exemption  whereby  an inspector  could accept food  and
         refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon
         or dinner meeting or other meeting, or during an inspection tour. Inspectors should use this
         exemption only when absolutely necessary, such as at remote locations where public eating
         places are not available.

     •   Use of Information. All information acquired in the course of an inspector's duties is for
         official use only and cannot be mentioned to those  outside the Agency. Information that
         has not been made available  to the general public (even if it would be made available on
         request) cannot be used to further a private interest.  Inspectors should not speak of any
         product, manufacturer, or person in a derogatory manner.

     •   Vehicles.  Motor vehicles owned, leased,  or rented by the Government may not be used
         for non-official purposes.

Where to Seek Advice	

Guidance on the ethics laws and regulations is available from EPA's ethics officials. Almost every
situation that could arise in an inspector's work has already been considered by these officials in
response to earlier inquiries from inspectors, so they are prepared to answer most questions promptly.
To seek advice, an inspector should do either of the following:

     •   Consult the Deputy Ethics Official for the inspector's duty unit. This would be the Office
         Director, Staff Office Director, Laboratory  Director, Regional Administrator, or Deputy
         Regional Administrator. The Regional Counsels serve as Deputy Ethics Officials for their
         offices.

     •   Call the Office of General Counsel or Office of  Regional Counsel  for  legal advice or
         referral to the Designated Agency Ethics Official or Alternate Agency Ethics Official.
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                           5C CONFIDENTIAL INFORMATION
The very nature of inspections involves inspectors gaining access to and collection of information
that companies would not ordinarily make available to outsiders.  It is the inspector's responsibility
to follow proper security measures in handling inspection data both while on the road  and in the
office.  Unauthorized disclosure of confidential information could result in disciplinary action or
even criminal sanctions.

The environmental statutes require regulated parties to keep reports and  records.  The statutes also
require EPA to protect the trade secrets and confidential information of the regulated community.
During the course of inspection, inspectors will encounter information  which may  be  entitled to
confidential treatment under provisions of the various EPA statutes and regulations at 40 CFR Part
2, Subpart B.

Confidential information includes such information as process, formulation, sales, and production
data that could damage a company's competitive position if it became publicly known.  By statute,
effluent data  and emissions  data  are  not  confidential.  There are procedures and criteria for
challenging a  company's claim that  a  particular  piece of information is entitled to confidential
treatment.  Even when it is unlikely that a confidentiality claim will be upheld (e.g., effluent or
emissions data), it is considered prudent to treat any information claimed confidential as such until
a determination can be made by the Regional Counsel (or General Counsel) as to its entitlement to
such treatment.

Information collected during an inspection would be made available in  response to  a Freedom of
Information Act (FOIA) request unless the information were determined  to be exempt from release
under strict FOIA criteria. However, if the data have been claimed confidential by the company,
EPA would follow certain procedural steps prior to  release of the information and the data would
not be released at all if it was determined to be entitled to confidential treatment.

Because of the additional security measures involved in handling confidential information as well
as the  potential risks  of accidental disclosure, EPA's general policy  is not to accept confidential
information unless it is necessary for carrying out Agency functions.
Obtaining Confidential Information	

EPA statutes and regulations require that companies be informed of their right to claim information
requested by the Agency as confidential.  A request for  company information must contain a
statement allowing the facility to designate all or part of the information requested as confidential
by marking it according to 40 CFR Part 2, Subpart B.
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In addition to citing appropriate regulation(s), the request should state that:

     The business may, if it desires, assert a business confidentiality claim covering part or all of
     the information in the manner described by 40 CFR 2.203(b), and that information covered by
     such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set
     forth in these regulations; and

     If no such claim accompanies the information when it is received by EPA, it may be made
     available to the public by EPA without further notice to the business.

In accord  with the policy stated above, an inspector should  generally not accept  confidential
information unless it is important to the purposes of the inspection.

If a company makes a confidentiality claim during an inspection that appears to be unfounded, the
inspector may try to convince the company to drop the claim.  If they do  not do so, however, the
inspector must  treat the information as confidential until  the Regional Counsel or General Counsel
advises otherwise.

In cases where confidential information is obtained, company officials should be requested to mark
the document to identify the specific material which they claim is entitled to confidential treatment.
Confidentiality claims which cover portions of otherwise non-confidential documents should be
clearly identified by company officials.

When an inspector expects to obtain or observe confidential information, he or she should maintain
a separate  notebook.  When confidential information is  entered into an inspector's logbook, the
entire  logbook  must be treated as  confidential; the  cover and all  pages  containing  confidential
information must be marked "Confidentiality Claim."

Security Measures	

Security measures must be taken to protect all inspection data (including documents, samples, field
notes,  and other documentation) collected by the inspector.  The  information must be protected
because:

     •  The very nature of an enforcement investigation assumes  the possibility  that some legal
        action might result.

     •  Any inspection involves the collection of information that a firm would not ordinarily
        make available to  outsiders.

Security measures while on travel and in the office are discussed in detail in Chapters 18B and  19B,
respectively.  Their intent is summarized below.

     •  Routine  Security Measures.  Routine security measures will help ensure  that reasonable
        precautions  are  taken  to  prevent  unauthorized  persons  from  viewing  confidential
        information.  When practical circumstances prohibit  the  inspector from following  the
        procedures exactly, the inspector is expected to take steps for protection of the information
        that will achieve this objective.
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        Confidential Information Security Measures. In addition to the routine security measures
        which are  always  taken  with regard  to  inspection data,  the declaration  of certain
        information as confidential imposes a further layer of security procedures designed  to
        control access to the information within the Agency.

        All confidential information must be marked as such and placed  in a locked filing cabinet
        or a safe immediately following the completion of  the inspection.   A  chain  of custody
        record must be maintained for all confidential information.

        While Regional and  office policies  may  vary  with regard to who  can provide the
        authorization  (e.g., Regional  Administrator,  Division  Director,  Branch  Chief), only
        authorized persons can have access to confidential information.
TSCA Confidential Business Information (TSCA-CBI)	

While each of EPA's statutes requires EPA to protect confidential information, Section 14 of TSCA
and implementing regulations require the Agency to take special steps to limit access to information
claimed TSCA-CBI.   Only  persons with explicit authorization and who  have signed a "TSCA
Confidentiality Agreement" may view TSCA-CBI.  In addition, special inspection procedures have
been developed to assure that facilities are fully aware of their right to make confidentiality claims
and to facilitate protection of this information. Inspectors who expect to conduct inspections under
TSCA authority should see the TSCA-CBI Security Manual and TSCA Base Inspection Manual for
details.
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NOTES
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6 - Enforcement Litigation

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                                       CHAPTER 6

                              ENFORCEMENT LITIGATION
EPA has the authority to pursue administrative, civil, and criminal enforcement actions under each
of the major statutes administered by the Agency. As described in the discussion of Enforcement
Response in Chapter 3C, the degree of rigor involved in developing a case and the standard of proof
for a successful government case increases with the severity of the type of action taken.

The bulk of EPA's formal enforcement actions are administrative, that is, they are handled through
the Agency's  own administrative  judicial  system.   EPA  develops and refers  more  serious
noncompliance cases to the Department of Justice for civil litigation through the U.S. Court system.
Chapter 6A contains a detailed discussion of the elements of a civil case and the stages  of civil
litigation in both administrative and judicial settings.

In recent years, there has been a steady increase  in the number of criminal cases investigated and
pursued  by EPA  through the Department of  Justice.   Chapter 6B explains  EPA's  criminal
enforcement program, the special considerations involved in carrying out criminal investigations, and
the potential role of EPA inspectors in this effort.
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                6A ADMINISTRATIVE AND JUDICIAL CIVIL LITIGATION
While there are many procedural differences between civil administrative and civil judicial litigation,
they are substantively similar. The principal procedural difference is the setting in which they occur:
administrative cases  are heard by the Agency's own administrative law judges;  civil judicial cases
are tried in the U.S. court system. Administrative cases can be appealed to the United States courts.
The types of remedies that can be sought are also similar: under most EPA statutes, the Agency can
seek to require correction  of the noncompliance as well as civil penalties ("fines") using either
administrative or judicial enforcement authorities.

This section explains basic  elements  involved in pursuing cases under the Agency's administrative
and civil  judicial enforcement authorities.  It was adapted from materials developed  by Walter
Mugdon, an EPA attorney in Region II.

In civil actions, the case must be proven by  a "preponderance" of the evidence (i.e., by the greater
weight of the credible evidence); and judgments can include fines and/or injunctive relief.  Because
criminal investigations and prosecutions involve special considerations, they are  covered separately
in Chapter 6B.
Historical Perspective on Civil Enforcement
Iniunctive Relief
Originally, civil cases could only result in monetary judgments. Past civil cases were usually among
citizens, and did  not involve the government (e.g.,  contract disputes).  Over time, the concept of
"injunctive relief evolved,  which allowed the courts to stop  undesirable activities (e.g., stop an
inconsiderate citizen from throwing his garbage over the fence into his neighbor's yard). Injunctive
relief eventually expanded to require desirable activities to be undertaken (e.g., a homeowner could
be ordered to clean the ice off his sidewalk within 24 hours).

Modern government has found in civil cases a good means of influencing citizens to do, or to stop
doing, whatever the government wants done, or stopped. Environmental lawsuits are good examples.
The government will request a court to order,  via injunctive relief, a  factory to stop discharging
pollutants into the river or to acquire pollution control equipment, or a landowner to remove dredge
fill material and restore a wetland area which has been adversely effected by the landowner's illegal
activity.

Civil Penalties	    	
The concept of civil penalties also is a relatively new development.  Civil penalties are like criminal
fines in that they may be imposed for breaking the law, but are less difficult to pursue because of
the lighter burden of proof.

In sum, civil  injunctive relief cases and  civil penalty cases are  tailor-made  for enforcing EPA
regulations.  Criminal cases are used as well, but only for the more harmful violations,  such as
intentional and/or dangerous acts.


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Administrative Enforcement
Enforcement of the law through civil judicial litigation is slow, cumbersome, and costly.  Moreover,
when the issue is enforcement of environmental requirements, there  is substantial scientific or
economic complexity. Often judges who handle a variety of cases are not sufficiently familiar with
the issues to preside over an environmental case effectively.

In the early 1930s, Congress began giving to the Executive Branch of the government --  that is, the
departments and  agencies that answer to the President -- authority to directly enforce laws and
regulations.   Agencies  do this through  civil "administrative" enforcement.   Essentially, the
government has created a judicial system within the Executive Branch of the government, outside
of the Judicial Branch.

Administrative enforcement cases may result in the imposition of administrative penalties, just as
in civil court, and compliance directives that have the same effect as injunctive relief obtained
through civil court (e.g., require correction of a problem).
Principal Elements of Civil Litigation
The Theory of the Case
A lawsuit generally consists of three ingredients:  (1) facts of violation; (2) the legal duty; and (3)
some breach of duty resulting in harm to a person or thing.  When these ingredients come together,
they create --or can create --a cause of action.  The theory of the case is the succinct answer to
the question "What is this case all about?"  It is the attorney's opening statement in 25 words or less.
It is the program person's statement to  the newspaper in 25  words or less.

The theory of the case is that evolving blend of the facts and law from the time that the case begins
to be investigated, to the time  that the facts are  presented at trial (if trial is reached).   It is the
linchpin around which the discussions between the attorney and the inspector revolve during their
teamwork and communication on the case.

As the case develops and the issues become narrowed, the fabric of the theory of the case acquires
strength, a pattern arises out of the complexity, and a certain persuasiveness develops.  It is a simple
concept, but constructing the theory of the case requires substantial time and communication among
members of the litigation team, and is essential to successful prosecution of the case.

The Burden of Proof	
The burden of proof is distinguished from the standards of proof (discussed below). The burden may
be best explained by asking the question "Which side has the affirmative duty of persuading and
proving something?" Who must "prove or lose" is the question.

The burden, and who has it, depends on the issue.  Different parties can have different burdens at
different points in the same lawsuit. For example, the company accused of a violation may have  the
burden of proof pursuant to its motion to suppress certain evidence (i.e., to show "why" the evidence
should be suppressed).
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The Standards of Proof
The standards of proof simply indicate how well each side must meet its burden on any given issue.
The four basic standards of proof are:  (1) credible evidence; (2) preponderance of evidence; (3)
clear, cogent, and convincing evidence; and (4) evidence beyond a reasonable doubt. These standards
are in order of increasing difficulty, and each could apply to different points in  the litigation
process.

The simplest standard,  "credible evidence," merely requires that  there be believable evidence to
support the judgment. To meet the "preponderance of evidence" standard, one must present not only
credible evidence, but the greater weight of such evidence (i.e., "tip the scales").

The third standard -- "clear, cogent, and convincing evidence" -- is clear on its face, but subject to
many different definitions. Suffice it to say  that it is greater than a preponderance of evidence.
Finally, the most difficult standard is "beyond a reasonable doubt." It is not beyond all doubt, but
does require the trier of fact to have a reason  for any  doubt.

With  all of  these standards of  proof, the trier of fact (judge or jury) must not be speculative or
swayed by sympathy or prejudice, and must base the decision on all of the facts in the case.
Stages of Civil Litigation
Conception and Preparation
The potential for litigation begins when the inspector walks through the gate or otherwise initiates
inspection activity. The inspector must be aware of this potential at all times. It is at the conception
and preparation stage that legal and factual investigation and research merge, and the "theory of the
case" begins to form.

Pleadings	
Pleadings are "letters to the judge."   They include  the first legal  documents  which  find the
appropriate court, name of the court, establish that the court has jurisdiction, name the parties, set
forth the allegations and the claims, state what the claim is (i.e., why the court should take action),
and begin to set forth the theory of the case.

In civil cases, the government's first pleading is called the "complaint;" the other side's response is
the "answer."  In civil cases,  providing enough information to inform  the other side what law has
been violated, and a succinct statement as to how, is sufficient for notice pleading.  (For criminal
complaints, factual detail amounting to probable cause is necessary.)

Pleadings are the first opportunity for each side to stake out  positions.  Pleadings can be in the
alternative, and  can be inconsistent.
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Discovery	

A further expansion of the case occurs during the discovery phase.  Discovery has three basic goals:

     •   To gather further information and avoid trial by surprise;

     •   To pin down witnesses and parties on the record through written responses or statements;
         and

     •   To evaluate the other side's evidence and tactics (including not only what the other side has
         to say and produce, but also the chemistry between the other side's witnesses and attorneys).

Discovery is perhaps the most important time of litigation,  because what happens at this point can
control the outcome of the case. It  is the time during  which each side works at obtaining the facts
and at understanding the theory of the case of the other side.  It is also the beginning of the contest
between  the two side's attorneys, and a prelude of things to come.

While there can be  considerable strategizing on both sides during this time, it is not unlike  poker
with hands  up, because information,  unless exempted (e.g.,  through attorney/client  privilege)  is
available to  both sides. Discovery includes each side sending out documents such as interrogatories
and requests for production of documents and samples, and obtaining depositions from key witnesses.

Through interrogatories, which are written questions  to which written answers must be provided,
each side is able to  get the basics from the other side.

Requests for production of documents and samples are  not unlike requests to and responses from the
government under the Freedom of Information Act, except they are between parties to the litigation.

Depositions are the  most powerful tool in the discovery process.  The witnesses are under oath, and
on the record.  The trial teams begin to face each other for the first time, and, unlike other  forms
of discovery, follow-up questions may be asked by respective counsel in response to the answer just
given by the  person  being  deposed.   (Chapter 19A  contains  guidance for  inspectors to use in
preparing for depositions.)

Teamwork  among government legal, enforcement, and technical staff is crucial  during discovery.
The inspector plays a major role in  the process, not only  in helping draft the  discovery documents
that  are  sent to the other side seeking information,  but also  in assessing information  which  is
returned.

As discovery expands, the desire of one or both sides  to settle may become even  stronger.  Factors
influencing  the desire to settle include the cost of continuing to pursue litigation, the risk of  losing
the case, and the fact that one side's position on the case might prove weak as more elements of its
case are discovered.

Motion Practice	  	
Motion practice is the time when each side attempts to narrow the case to the real issues. During
this process, each side continues to size up the other, apply leverage, and further push the other to
settle.  Motions are governed by the Federal Rules of Civil Procedure and can range from attempts
to exclude certain factual evidence, to deciding  whole  issues of law  applicable to the case (e.g.,
through a motion for summary judgment). As with discovery, the inspector plays an important role
during motion practice, and may be faced with multiple affidavits.

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Trial	

Trial is the time during which the two sides present the facts to the trier-of-fact as each side views
them.  Generally, in civil trials the judge is the trier-of-fact; in criminal trials this can be either
judge or jury depending on the desire of the defendant.

The inspector should keep in  mind that most litigation work takes place before trial, and that most
cases are settled before trial is reached.  What is important is that the inspector has done his or her
job well, and a satisfactory result has been obtained. The inspector should not be disappointed in
not going to trial, because the inspector's work is what makes bringing the other side to settlement
possible.

Post-Trial and Appeal	
There are post-trial and appeal rights for all sides. At this point in the process, however, only legal
issues remain. The facts have been decided.  The side that has lost on the facts at the trial level has
lost on the facts probably forever.  The attorney can, however, argue that the basis for the verdict
was flawed (e.g., improperly admitted evidence), and ask the appellate court to overturn the  trial
court's judgment.
Administrative Enforcement	

As  discussed  earlier,  the bulk  of EPA's formal  enforcement  actions  are handled  through
administrative enforcement mechanisms.  They are generally governed by Sections 554 and 556 of
the Administrative Procedures Act and EPA's Consolidated Rules of Practice under 40 CFR Part 22
depending on the degree of  formality and  sanction.   Administrative enforcement can take two
different  forms:  adjudicatory and non-adjudicatory,  but there are many shades of grey between
these two extremes.

Adiudicatorv Proceedings	
The word "adjuclicatory" comes from the same root as the word "judge." Adjudicatory proceedings
are all characterized by the fact that there is a judge --although he or she may be called by many
different  names or titles — who listens to evidence  and  testimony, and  then makes a decision.
Adjudicatory proceedings range from very formal to quite informal, but all involve a hearing, or
"factual inquiry," of some sort.

     •  Formal Adiudicatorv Proceedings. An Administrative Law Judge (ALJ) presides over the
        hearing  in  a  formal  adjudicatory case.   At EPA, ALJs are within the Office of the
        Administrator. EPA pays their salaries, operational costs, and travel and per diem expenses,
        there  aire  limitations  on  firings and  performance  evaluation.   ALJs  are  full-time,
        professional judges.  They must have at least five years of litigation  experience to be
        eligible to be  hired.

        The formal hearing is in  every  respect a "trial."  It  is governed by  detailed  rules of
        procedure.  The judge is addressed  as "Your Honor," and  attorneys examine and cross-
        examine witnesses who testify under oath.  Briefs may be submitted, and attorneys make
        motion;! and arguments.  A verbatim  transcript is maintained, and the Administrative Law
        Judge renders a recommended decision based on the evidence presented.

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     •  Informal Adiudicatorv Proceedings.  Instead of an Administrative Law Judge, informal
        cases are heard by a Hearing Officer or Presiding Officer. The Officer does not have to
        be a professional judge, but often must be an attorney.  In other cases, the Officer can be
        any agency employee, whether or not he or she has legal training.

        Typically, there are fewer and less detailed rules of procedures governing informal hearings;
        and  the hearing  itself may  be conducted  less  formally,  sometimes even  by mail.
        Nevertheless, the Officer still renders a recommended decision based on the evidence.

Common Elements of Formal and Informal Adiudicatorv Proceedings

In most cases, the decision of the Administrative Law Judge or Officer is a "recommended decision,"
which is a recommendation to the  EPA Administrator.  The recommended decision becomes the
final decision unless it is overturned.

The recommended decision can be appealed by either party within a particular period.   If there is
an appeal, the Administrator -- or, in practice, his or her Judicial Officer -- decides to accept or
modify the recommended decision.  It is important to remember,  however, that in any adjudicatory
proceeding,  the  presiding  official (by whatever  name he  or she may be called) does  make a
substantive decision.  That is why it is called an "adjudicatory" proceeding.

Anytime the government wants to impose an administrative penalty on or revoke the permit of a
violator, it must use an adjudicatory proceeding which is governed by EPA's Consolidated Rules of
Practice 40 CFR Part 22.  Before someone has to pay a fine, he or she has the right to  a hearing.
Whether the hearing is formal or informal is determined by statute or the EPA regulations.

     •  Key Procedural Steps.  In virtually all adjudicatory  proceedings,  there will be five  key
        procedural steps:

        -   Complaint -- the "accusation". The government has to issue a document (often called
            a Complaint) which sets out the alleged violations, proposes the imposition of a penalty
            (if any), states what injunctive relief the government is seeking, notifies the recipient
            of the right to a hearing, and indicates how to exercise that right.

        -   Answer -- the "denial" and/or "excuse". The Respondent, or recipient of the Complaint,
            must file a written response (often called an Answer). In the response, the Respondent
            must specifically admit or deny each allegation made in the Complaint, and set out any
            defenses he may wish to make.

            Motions.  These are written requests for  relief  of an order  accompanied by such
            documents as an affidavit. The other party is given a chance to respond to  motions.

        -   Hearing.  If the case is not  settled, a hearing is held.  There  may be a preheating
            conference.

        -   Order.  After the hearing, the initial decision is  rendered.  After any appeal of the
            initial decision to the Administrator is  completed, a final  order will be  issued,
            concluding  the case.

        -   Settlement.  A case can be settled at any time in the adjudicatory proceeding process.
            Typically,  settlement documents will include a Consent Agreement and Final Order
            which become binding on both the government and  the violator.


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Non-Adiudicatorv Proceedings
Non-adjudicatory proceedings are characterized by the fact that there is no judge.  There may or
may not be a hearing, but there is no  judge.  Non-adjudicatory proceedings are  only  used  for
directed relief, that is, to force a person to do something or to stop doing something; they cannot be
used to seek a penalty.

Non-adjudicato;ry proceedings can be divided into those that require a hearing and those that do not.

     •   With a Hearing. The purpose of a hearing is for the ultimate decision-maker (usually  the
         head of the agency)  to hear the arguments and viewpoints of concerned individuals.  The
         presiding Hearing Officer is simply a traffic cop whose job it is to gather the evidence in
         an orderly fashion and hand it over to the head of the  agency for a decision.

         Non-adjudicatory hearings are  not  at  all like  a trial.  Rather,  they  are  similar to
         Congressional hearings  or town council hearings to consider a new  ordinance or citizen
         complaint. For this reason, non-adjudicatory hearings are sometimes known as "legislative-
         type" hearings.

         Witnesses are not usually under oath. There is usually no cross-examination, nor are lawyers
         typically involved, at least not as direct participants. There are generally few formal rules
         designed to keep witnesses' statements "to the point."

         The purpose of these proceedings is not to allow a judge to render a  decision, but merely
         to bring to the attention of the ultimate decision-maker the concerns and views of affected
         individuals, and perhaps the general public as well.

         In most cases, the process involves (1) issuance of a proposed order, (2) notification to  the
         respondent of the right  to a hearing, (3) a  hearing, if requested by the respondent, and (4)
         issuance of a non-adjudicative order.

     •   Without a Hearing.  In some administrative enforcement cases, no hearing at all is required.
         The agency decision-maker can simply issue an administrative order "commanding" someone
         to do something, and that person does not have a right to an administrative hearing.

         Often, this type of enforcement is authorized in emergency cases, where speed is extremely
         important.  The point is that,  in these cases, the public's right to be protected from a
         dangerous situation outweighs an individual's right to a hearing.

         As a matter of policy, even where the law  allows issuance of an administrative compliance
         order without a hearing, EPA generally tries to afford the recipient an opportunity to confer
         informally with Agency personnel about the basis and terms of the order.  Sometimes  the
         law  itself requires that opportunity for an informal conference be provided.  The effective
         date of the order may be set at several days after the date of the order's issuance to give
         time for such a  conference.
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Appeals of Administrative Orders
All final administrative orders can be appealed to the U.S. courts. Whether the appeal is properly
brought in the Federal District Courts, which are  trial  courts, or the  Federal Circuit Courts of
Appeal, depends on the terms of the authorizing statute.

What the court is supposed to do in deciding an appeal also varies by statute, whether or not there
was  as an adjudicatory hearing in  the agency, how  formal the hearing was, and  the  kind of
administrative record the agency compiled before making  a final decision (even in non-adjudicatory
cases).

In some cases, the court rehears the facts of the case and renders its own, independent decision. This
is called de novo review.  In other instances, the court is  restricted to reviewing the administrative
record which the agency compiled and used as the basis for making its final decision.  Only if the
record shows that the agency decision was arbitrary and capricious can the court change the agency's
ruling in non-adjudicatory cases. In adjudicatory cases, the agency's formal record must, as a whole,
show "substantial evidence" supporting the decision.
Procurement and Assistance Listing (Debarment)	

Under Section 306 of the Clean Air Act, Section 508 of the Clean Water Act, and Executive Order
11738, EPA  was directed to establish a program  to prevent all Federal agencies from  awarding
contracts or granting assistance to facilities that are a source of violations of either of those statutes.

This mandate is implemented through EPA's Contractor Listing Program.   Under this  program,
facilities found to be violating the named laws may  be placed on the EPA List of Violating Facilities
(the List).  Once placed on the List, a facility is  ineligible to  receive any non-exempt contract,
subcontract, grant, subgrant, loan, or subloan.

A facility may be placed on  the List as a result of two separate processes:  mandatory listing and
discretionary listing.

Mandatory (Automatic) Listing	
EPA is required to place a facility on the List automatically if it is owned, operated, or supervised
by a person who is convicted of certain criminal violations of the Clean Air Act or Clean Water Act.
Once listed, a facility remains on the List until EPA has determined that the conditions which gave
rise to the listing have been corrected.  This will normally require an inspection of the facility to
verify that the condition has been corrected prior to granting the facility's request for removal from
the List.
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Discretionary Listing
Under the regulations governing the listing program, a facility may be recommended for listing if
it has been a source of continuing or recurring violations of the Clean Air Act or Clean Water Act
in spite of a previous enforcement action.  A recommendation to list may be filed by specific EPA,
or State officials or by any member of the public.

Once a recommendation to list has been filed, EPA must determine whether listing is appropriate.
When  EPA  is the recommending person, evidence of the violations  may be  supplied  through
inspection reports. The facility is given an opportunity to present its arguments opposing the listing
action at a listing proceeding.

Delisting. Depending on the basis for listing, a facility can be removed from the List: (1) after one
year, provided that it is not the source of a listable offense during that period; (2) if  the facility
submits a plan for compliance that is approved by EPA; or (3) if the facility corrects the condition
that gave rise to listing. Compliance inspections of the facility may be sought if the facility requests
removal from the List on the basis of carrying out a plan for compliance or correcting the condition
that gave rise to listing.
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                              6B CRIMINAL ENFORCEMENT
Over the past several years, EPA's criminal enforcement program has become a significant tool in
the enforcement of environmental requirements. Its success has increased incentives for voluntary
compliance by the regulated community.  EPA's criminal investigations are handled by the criminal
investigator staff of the Office of Criminal Enforcement (OCE).

While EPA inspectors do not routinely become  involved in criminal investigations, the  distinction
between  civil  and criminal enforcement is  often unclear and inspectors may  find  themselves
associated directly or indirectly with a criminal investigation.  Sometimes, the Agency pursues both
civil and criminal actions at the same facility. An inspector may notice something during a routine
inspection that suggests the possibility of criminal activity; these should be referred to the criminal
investigation staff. In  some  cases, inspectors may be asked to accompany criminal investigators to
aid in the collection of evidence.

Special training for inspectors (and other EPA  technical personnel) who are involved in criminal
investigations is  provided bv the  Federal Law Enforcement Training Center (FLETC)  in Glvnco.
Georgia.  The purpose of this chapter  is to heighten  inspectors'  awareness  of EPA's criminal
enforcement program and the  role they can play in it. In addition to the overview in this section,
special considerations related to criminal investigations are noted where appropriate throughout the
rest of the text.
Special Attention to Defendant's Rights	

Investigations of alleged criminal activities place even greater responsibilities on the participants
involved.  Because more severe penalties may be imposed on individuals convicted of violating the
criminal provisions of environmental laws or other statutes, there are greater constitutional safeguards
to protect their  rights.   Thus,  it is of critical importance  that  all participants in  criminal
investigations be fully aware of these safeguards and conduct themselves accordingly. Special Agents
of the Office of  Criminal Enforcement provide  the necessary instructions and directions  to the
investigation team on these matters.

From the  beginning of a criminal investigation until it is completed, the constitutional rights of
defendants must be fully protected and established investigation procedures must be followed.  The
special emphasis given to these matters results from the potential defendant's desire to conceal their
criminal activities and, when detected, their frequent challenges to the procedures used to apprehend
them.

These challenges  to  the government's case principally stem from the "Exclusionary Rule"  which
prohibits the use of evidence during the prosecution of a defendant whose constitutional rights were
violated by the procedures used  to  collect  that evidence.  Also excluded  is any information
subsequently derived from improperly collected  evidence. The procedures used by EPA's Office of
Criminal Enforcement are designed to assure protection for the defendant's rights and leave a paper
trail of the investigation that will support admission of  the resulting evidence into a prosecution.
Another frequent procedural challenge  occurs when  a  suspect provides statements  to  a  law
enforcement officer, after being taken into custody.  The Special Agent must first issue "Miranda
warning" if the statements are to be admissible evidence. Defendants also have a right against self-
incrimination.  This  means that a defendant can be silent and make the government prove its case.

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Criminal Enforcement at EPA
As early as June 16, 1976, the United States Environmental Protection Agency recognized the need
to be more vigorous in its pursuit of criminal sanctions, at least with respect to violations of the
Clean Air Act.  On that day, the first extensive guidelines  for proceeding in criminal cases  were
issued by the Agency's Assistant Administrator for Enforcement.  From that time until late 1980, the
few  substantial criminal cases referred to the Department  of Justice were  handled by the then-
existing Office of Enforcement, without the benefit of a trained investigation staff.  The need for
criminal investigators was soon recognized.

On January 5, 1981, the  Deputy Administrator directed the creation of the Office of Criminal
Enforcement in Washington, D.C., and the hiring of a trained investigative staff to be located in the
Regions and at the National Enforcement Investigations Center in Denver.  Also in January 1981,
the Attorney General of the United States confirmed the authority of EPA to initiate, or assist in,
investigations into potential violations of the criminal provisions of the environmental statutes that
the Agency administers,  noting EPA's efforts to supplement its existing enforcement  staff  with
trained criminal investigators.

The first director  of  OCE was appointed  by the end of that year.  Among  the  program's
responsibilities were supervision of all Regional case  development and referrals, development of
Agency-wide training and policy, coordination of the Agency's joint investigative program with the
Federal Bureau of Investigation (FBI), and liaison with  the Department of Justice  (DOJ) and outside
law enforcement agencies.

Beginning in the fall of  1982, the criminal enforcement program hired an in-house staff of 23
experienced criminal investigators formerly with such  law enforcement agencies as the FBI, Drug
Enforcement Administration, Bureau of Alcohol, Tobacco and Firearms, and the Internal Revenue
Service.  Each agent had at least eight years of experience in the field of law enforcement.

That summer,  the agents were  deputized by DOJ as Special  Deputy United States Marshals, giving
them full power as law enforcement officers -- authorized to execute search warrants, make arrests,
and  carry firearms.  As of May 1988, the investigative staff included 44 agents.

The  criminal investigative staff is a part of the National Enforcement Investigations Center (NEIC)
in Denver, with agents operating out of field units at  Regional offices and  at EPA Headquarters.
In addition, EPA technical personnel, such as engineers and field inspectors, have received  special
training to assist the criminal investigative staff when  needed.

The  Agency has a staff of attorneys experienced in both criminal and environmental law who work
with the investigators  and DOJ in the actual  prosecution of criminal cases.  Located at  EPA
Headquarters within the Office of Criminal  Enforcement, they provide legal policy guidance and
general advice to the investigators and  the Agency in  criminal enforcement matters.  They, along
with designated Regional attorneys, also act as the  primary  source of expertise in the Agency for
criminal cases.
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Criminal Enforcement Compared to Civil Enforcement
This text focuses on procedures and techniques for collecting evidence that may ultimately lead to
a form of administrative or judicial civil action. Generally, these same procedures and techniques
are employed in criminal investigations as well. There are several exceptions, however, the most
important of which are in the areas of search and seizure and compelling testimony. Because of the
unique sensitivities and legal issues involved, inspectors assisting in criminal investigations should
always follow instructions of the Special Agent (and enforcement attorney).

Searches	
Investigators may search a person or the person's property seeking evidence of alleged criminal
activity only: (1) with the consent of the person; or (2) after obtaining a warrant based upon sworn
testimony demonstrating that there is "probable cause" to believe that a crime has been committed
and that the search  is necessary to obtain evidence of the crime. The probable cause standard for
obtaining  a warrant in a criminal investigation is far more stringent than for a warrant in a civil
enforcement case.

EPA's criminal investigation staff seek and execute criminal warrants, but EPA inspectors may
sometimes accompany criminal investigators to aid in the investigation. In such cases, instructions
of the criminal  investigator  must be strictly  followed  since any  evidence collected outside the
authority  of the search warrant would be illegally obtained.

It is important to point out, however, that evidence of a crime discovered through civil enforcement
activity is generally admissable in court to prove the crime.  For example, information collected by
an EPA inspector during a routine inspection (with consent or under an administrative warrant) could
be admitted as evidence in a criminal case because it  was lawfully obtained. Similarly, evidence of
a crime obtained in accordance with the "open field" doctrine (e.g., an observation of illegal dumping
from  a public road) would also be admissable.

Inspectors frequently ask how the reading of "Miranda rights" applies to the facility staff they
interview, particularly if the interviewee's answers to questions begin to suggest that there may be
criminal activity.  Miranda rights only apply when a person is in custody, that is, once he or she has
been arrested. Information provided in routine interviews is lawfully obtained evidence.

Compelling Information	
In addition to obtaining evidence through a search warrant, the prosecutor may subpoena witnesses
to provide information through testimony to a grand jury. Although a person  may be subpoenaed
to require a person to provide information in a civil proceeding, the prosecutor's ability to compel
information in a criminal investigation is more powerful: a witness who fails to appear in response
to a subpoena is subject to  immediate arrest; an uncooperative  witness can be forced to provide
information through an enforceable court order; and testimony  provided  to a grand jury is  secret,
with severe penalties for anyone who violates that secrecy. This contrasts with  persons subpoenaed
for a civil proceeding: if a witness fails to comply with a subpoena, penalties can only be obtained
after a hearing (a process that can take weeks).  In addition, the information provided by the witness
cannot be kept confidential if it falls within the scope of the other side's  discovery requests.
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Charging the Commission of a Crime	

Unlike in a civil judicial case where an agency files suit, or a civil administrative case where an
agency issues an administrative order, it is the grand jury or U.S. Attorney who charges persons or
corporations with  crimes.   A grand jury brings a charge  by  returning an  "indictment," which
generally is issued for felonies (e.g., crimes subject to punishment by imprisonment for longer than
one year).  The U.S. Attorney brings a charge by filing an "information," which generally is used
in connection with misdemeanors (i.e., crimes subject to punishment by imprisonment for one year
or less).

Discovery	
The general rule in criminal cases is that there is no discovery permitted by the defendant. There
are exceptions to the rule. For example, case law requires a prosecutor to give to the defendant
before the trial any exculpatory evidence  (evidence  that may show innocence)  known to  the
prosecutor.  A number of rules like  this have been the basis for a few prosecutors to adopt an open
file policy.  It allows counsel for the defendant to access the entire prosecutor's file.  However,
defendants in criminal cases cannot file interrogatories or request for admissions, or take depositions
of witnesses, as they can in civil cases.

Burden of Proof	
Because criminal sanctions can be severe, the burden of proof is greater in a criminal prosecution
than it is in a  civil  enforcement case.  To prove a  violation  in  a civil enforcement case  the
enforcement attorney is required only to show that a "preponderance of the evidence" is on his or her
side (sometimes described as needing 50 percent of the material evidence on the government's side).
To prove a criminal violation, a prosecutor must prove his or her case "beyond a reasonable doubt."
If a reasonable doubt exists in the trier's mind about the defendant's guilt after the conclusion of a
criminal case, the defendant is to be acquitted.

Penalties	
A person convicted of criminally violating an environmental statute may be imprisoned and/or fined.
A person found through civil enforcement action to have committed a violation is subject only to
injunctive relief orders, and/or to financial penalties.
Criminal Investigations
Initiating an Investigation
An "initial lead," or allegation of potential criminal activity, may come to the Agency from any of
several sources, including State agencies, routine compliance  inspection, citizens, and disgruntled
company employees. Regardless of the source of the tip, whoever receives the tip should notify the
Special-Agent-in-Charge (SAIC) and/or Resident-Agent-in-Charge (RAIC) immediately. The SAIC
or RAIC will evaluate the lead and, if necessary, assign a Special Agent for follow-up, assign a case
number,  and open an investigative file.
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If the  reliability of the  lead is unclear, the special agent will conduct a preliminary inquiry to
determine the credibility of the allegation and make an initial assessment for the need of a more
thorough investigation.  This initial inquiry  is brief  and involves no extensive commitment of
resources or  time.  The  purpose is to reach an initial determination of  the need  for a complete
investigation. The Criminal Enforcement Division is consulted if this determination concerns legal
issues of criminal liability.

During the course of a routine inspection, EPA inspectors are in a unique position to follow such
leads.  Inspectors should be  alert to possible criminal activities such as falsified  information in
records and reports and illegal disposal. Facility staff may also volunteer information to inspectors
about possible criminal activities.

Conducting an Investigation	
If after the preliminary inquiry a decision is made to pursue a thorough investigation, the Special
Agent contacts the Office of Regional Counsel and other appropriate offices to determine whether
any civil enforcement action is pending or contemplated against the investigative target. If technical
support for the investigation is needed, the Special Agent asks the appropriate  Regional Program
Division Director(s) to designate specific individuals to work on the investigation.  All these activities
are carried out in consultation with NEIC.

The Special Agent manages the investigation,  under the supervision of the RAIC or SAIC.  The
Special Agent is responsible for determining the basic investigative approach; leading the conduct
of  interviews, assembling  and  reviewing records,  and  planning  and  executing  surveillances;
coordinating  with the U.S. Attorney's office and other Federal,  State,  and local law enforcement
agencies; communicating with informants; contacting other witnesses; performing other investigative
functions;  completing all  required  reports; and  carrying out  11 coordination and  notification
requirements.  Inspectors assigned to assist work under the direction of the Special Agent.

Security of Criminal  Investigations	
Information on criminal investigations must be provided only on a "need  to know" basis.  Active
criminal investigations must not be discussed with personnel outside of the Agency  except as is
necessary to pursue the investigation and to prosecute the case.

Agency policy is  to neither confirm nor deny the existence of a  criminal investigation.  If an
inspector  receives  a request for information from the news media, it must be referred to the Special
Agent,  who will  determine  the response  in  consultation with  other Agency  offices.  If  a
Congressional inquiry is received, the Assistant Administrator for Enforcement works  with  the
Congressional Liaison Officer prior  to releasing any information or making any public statements.

Written materials pertaining to the investigation must receive special care and attention. The NEIC
criminal investigative offices and Compliance Enforcement Division offices are equipped with secure
office space, filing  cabinets, and evidence  vaults.  Similar security measures must  be used by
Regional staff assigned to an investigation.
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Compliance with the Jencks Act
The purpose of the Jencks Act is to allow the defendant in a criminal prosecution to  have, for
impeachment purposes, all of the relevant and competent statements of a governmental witness.  If
the defense's ability to cross-examine a witness is impeded because Jencks Act material has been lost
by the government -- either deliberately or inadvertently -- the court may decide not to allow the
witness to testify at all or to strike the witness' entire testimony.  Needless to say, the effect of
excluding a government witness' testimony could be significant.  Courts expect law enforcement
agencies, including  EPA, to have procedures to preserve potential  Jencks Act material.

Essentially, the Jencks Act provides that the relevant notes, records, and reports of a witness who
has testified for the government in a criminal prosecution must be turned over to the  defense if the
defense requests them through the court.  The request can only be made after  direct examination
of the witness, and  material that does not  relate to the subject matter of the testimony  is exempt.
The effect is limited, after-the-fact discovery. (In civil cases, discovery processes give the other side
almost unlimited access to government information on the case prior to trial.)

For the inspector, the  principal effect of the Jencks Act is to underscore one of  the major points of
this handbook -- that  accurate and complete notes, records,  and reports are not  only good practice,
but essential.  Further, notes and records should be factual, containing no opinions or biases of the
inspector.  Finally,  to avoid any potential appearance that Jencks Act material has  been lost, the
inspector should throw nothing away -- not even a scrap of paper with rough calculations on it. All
materials associated with a criminal investigation should be stored  in accordance  with security
procedures.

For a more detailed discussion of Agency  procedures for compliance  with  the Jencks Act, see the
November 21, 1983 memorandum from Courtney Price, Assistant Administrator for Compliance and
Enforcement,  on the subject "Guidance Concerning Compliance With the Jencks Act." Copies are
available from the Regional Counsels and the Office of Enforcement and Compliance Monitoring.
Participation in Grand Jury Investigations	

With rare exception, Federal grand juries are used to develop EPA's criminal cases following referral
to the Department of Justice (DOJ).  Frequently, EPA employees -- including inspectors, attorneys,
and technical personnel -- assist in these grand jury investigations under DOJ supervision.

The conduct of Agency employees is frequently subjected to close judicial scrutiny, since defense
attorneys routinely challenge aspects of the grand jury presentation  during motions filed after an
indictment.  Accordingly, Agency employees who assist DOJ during grand jury investigations must
be familiar with, and abide by, the rules of conduct established by case law and the Federal Rules
of Criminal Procedures.

When involved in grand jury investigations, EPA employees must follow the "Agency Guidelines for
Participation in Grand Jury Investigations." Copies are available from the Regional Counsels and the
Office of Enforcement and Compliance Monitoring.
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Recognizing Potential Criminal Violations
It is neither expected nor desired that civil inspectors and investigators be able to define or even that
they attempt an in-depth legal or investigatory analysis of whether criminal conduct has occurred
or is occurring at regulated sources. The issues are complex and even the highly trained Special
Agents in the Office of Criminal Investigations will do that with the help of attorneys in the Office
of Criminal Enforcement Counsel, the Office of Regional Counsel, and the Environmental Crimes
Section of the Department of Justice.  Nevertheless, it is important  that all acts of the regulated
community exhibiting actual or suspected environmental criminal conduct be referred to the Office
of Criminal Investigations for review and possible investigation.

The  problem is, how does  one go about recognizing those actions that may potentially constitute
criminal  violations?

     •   Knowing or willful behavior—defined as criminal under all Federal statutes.

     •   Negligent actions—defined under the Clean Water Act as criminal behavior.

     •   Fraudulent reporting—defined under all statutes and the U.S. code as criminal behavior.

Evidence of criminal wrongdoing is seldom blatant, and usually is quite subtle. The inspector should
try to learn as much as he or she can when one of the types of findings listed below puts up a red
flag  of the  possibility  of criminal actions, and  the OCI should be consulted.  The following  is
exemplary only:

     •   Conflicting data: two sets of books, inconsistent monitoring reports on the same incident;

     •   Conflicting stories: when  an inspector is led to believe one thing and sees something quite
         different in records or through observation;

     •   Unsubstantiated data: monitoring or other recordkeeping and reporting information which
         lacks any record or information to support reported information should raise suspicion;

     •   Deliberate actions: when an employee says he was told to do something the inspector knows
         is illegal; or

     •   Claims of ignorance about requirements: copies displaying knowledge are discovered in the
         records, or others  make statements during interviews of knowledge.

If any of these problems are in evidence, or others are present that make the inspector suspicious,
he or she should attempt to obtain further information through interviews, observations, and  records
reviews and consult with the OCI about such findings.
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Case Studies
The  following are  examples of  how inspectors'  findings  have led  to  subsequent  criminal
investigations.

     •  CWA Case.  An EPA  inspector investigating  possible RCRA  hazardous  waste storage
        violations of a drum recycling operation noted  excessive oil stains in a loading dock and
        roadway located at the facility. Further observations by the inspector revealed a large area
        of stained vegetation in  an adjacent low-lying area on private property.  Subsequently, the
        inspector questioned the landowner about the source of the stained area.  The landowner
        indicated the stain was caused by oil draining onto his property during heavy rain storms
        and stated  that the source of the oil was the drum recycling operation.  He  further stated
        that in the  spring during a period of abnormally heavy rainfall, a small pond located on his
        property was covered with a thick oil slick. After the landowner complained several times
        to the plant foreman, a laborer was directed to dig a channel from the pond  to an adjacent
        creak thus  allowing the oil to drain.  The inspector photographed the channel and obtained
        soil samples which, when  analyzed, were found contaminated  with various  oils.  This
        evidence along with corroborating witness  testimony  ultimately resulted in a felony
        conviction under the Clean Water Act for willful and knowing discharge of pollutants into
        navigable waters of the United States.

     •  RCRA Case. A State inspector received a telephone call about a large number of 55-gallon
        drums being accumulated in a local warehouse.  Acting on this information, the inspector
        discovered that the warehouse contained in excess of 400 55-gallon drums, most of which
        bore hazardous waste labels.   The inspector noted that a number of different companies
        were listed as the waste  generators.  Additionally, it was noted that the accumulation dates
        were between six and eight months old.

        When the owner of the property was located, he stated that the drums contained primarily
        plating wastes destined for recycling for their metal content. The property owner showed
        the  inspector that he did in fact have most of the equipment required  for a recycling
        operation and explained that as  soon as additional electrical installation were completed,
        the  waste  would be  processed  into a saleable  non-hazardous product.   The inspector
        periodically observed warehouse operations for the next four months. During this time, he
        noted additional deliveries of 55-gallon drums.  However, there was no indication that the
        waste material was being processed.   On the  basis  of these  assessments,  the inspector
        notified  the NEIC Office of  Criminal Investigations  of what appeared to be deliberate
        violations of the RCRA  regulations dealing with the hazardous waste storage. Based on the
        information the State inspector provided,  a Federal criminal search warrant was obtained
        to inspect  and sample the drummed material.  As a result of  the criminal  investigation,
        the president and vice president of the corporation were indicted on charges of illegally
        transporting and storing hazardous waste material.
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7 - Entry

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                                        CHAPTER 7

                    ENTRY AND INFORMATION-GATHERING TOOLS
EPA's ability to determine the compliance status of regulated facilities stems from its authority to
enter premises  and conduct inspections as well as other information-gathering tools or reporting
requirements that can be used to obtain compliance information.

Proper,  lawful entry into an inspection site is critical, for failure to adhere to the requirements for
exercising the Agency's entry authority could jeopardize any enforcement action. Evidence that was
collected could  be  ruled inadmissible because it was unlawfully obtained.

This chapter discusses the legal bases for entry and the Agency's policy and practice to enter with
the consent of facility officials. The chapter also includes entry and entry documentation procedures
designed to assure  that the legality of the inspection will not be challengeable as well as procedures
for seeking and inspecting with a warrant. Finally, the other information-gathering tools that can
be used to support compliance and enforcement  efforts are described.  The chapter  is based on
materials developed by Region X attorneys David Dabroski and John Hamill.
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                              7A LEGAL BASES FOR ENTRY
Statutory Authority
The legal basis for entry starts with the statutory authority to enter, whether expressly stated, or
implied through the authority to enforce the statute or to compel compliance and/or impose sanctions
on  violators.  Each of the  statutes  administered by EPA grants authority to enter and  inspect
facilities, as presented in Exhibit 7-1. The authority granted in each statute is similar to that stated
below, from Section 308 of the Clean Water Act:

     "(a)(B)  the Administrator or his authorized representative,  upon presentation of his
     credentials --

     (i)  shall have a right of entry  to, upon, or  through any premises in which  an effluent
     source is located or in which any records required to be maintained...are located, and

     (ii) may at reasonable times have access to and copy any records, inspect any monitoring
     equipment or method required..., and sample any effluents which the owner or operator
     of such source is required to sample...."
Constitutional Provisions	

Two Constitutional provisions have bearing on the authority-to-enter issue, as follows:

     •   Article III of the Constitution empowers the court to issue orders confirming the substantive
         entry powers granted by the legislature through statute. As such, Article III is the source
         of power for the judiciary to issue warrants. However, it is important to understand that
         this Constitutional provision does not grant entry powers; rather,  it establishes the basis for
         enforcing the pre-existing statutory  authority to enter.

     •   The Fourth Amendment to the Constitution protects persons from unauthorized  entry.
         Specifically, it states:

            "The right of the people to be secure in their person, houses, papers, and  effects,
            against unreasonable searches and seizures, shall not be violated, and no Warrants
            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."

         It is important to note that this Constitutional provision does not prohibit searches, it only
         forbids unreasonable searches.  Furthermore,  while the Fourth Amendment  limits and
         controls government activity by means of a warrant procedure, it is not the primary source
         of p>ower to issue warrants.  The power to  issue  warrants is derived from Article III, as
         stated above.
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Court Decisions Regarding Entry Authority
Statutory and Constitutional provisions regarding authorized entry and protection against unlawful
entry by the government have been the subject of numerous court challenges and appeals during the
past two hundred years. Court decision-making has defined the applicability and scope of statutory
and Constitutional provisions in particular terms; i.e., the law as it applies to the facts of the specific
case.  This is the foundation for case law.  Several recent court decisions, pertaining to entry rights
and the use of warrants, have bearing on the EPA inspection process, and are discussed below.

In Marshall  v. Barlow's. 436 U.S. 307 (1978), the U.S. Supreme Court addressed the need for an
administrative warrant when an Occupational Health and Safety Administration  (OSHA) inspector
sought entry into a workplace where consent for the inspection was not voluntarily given by the
owner.  The company had  challenged the constitutionality of the statute authorizing OSHA to enter.
The court upheld the statute, but was concerned that it not be interpreted so as to permit OSHA
inspectors to proceed without warrants after consent to enter has been denied. The court held that
an OSHA inspector was not entitled to enter the non-public portions of a worksite without either the
owner's consent or a warrant.

At  the  same time,  the court established two  standards or  bases for  the  issuance of civil or
administrative warrants:  (i) reasonable cause to believe that a circumstance  (e.g., a violation)
addressed by statute  had  occurred  or was occurring at the facility of (ii) that  the  facility to be
entered was identified and selected by the Agency based on a pre-existing administrative plan or
scheme for entries.  The "plan" or  "scheme" was not itself required to be "neutral" or random, but the
basis for the plan was required to be neutral, thereby precluding selection of sites by individuals in
the field who were malevolently motivated. The  Barlow's court message, in  this respect, was simply
that the government  (through its field  agents or otherwise) cannot  "pick  on" people with subtle
harassing techniques or through the exercise of entry, search, inspection, investigation, information-
gathering, or correctional  rights or powers.

Post-Barlow's case law has provided a context for EPA policies and procedures. Most of the EPA-
administered statutes have provisions  expressly authorizing the  EPA  Administrator and his
"authorized representatives" to enter a facility and perform various activities after entry. To  date,
the EPA-administered statutes have not been successfully challenged on  the constitutional  issue
raised in Marshall v. Barlow's. Thus, whether (and when, if at all) EPA is constitutionally required
to obtain court-issued warrants (or  orders) to gain non-consensual entry into the non-public  areas
of a facility is an issue yet to be litigated authoritatively.
EPA Policy and Practice	

In practice, EPA conducts its affairs as if the rules announced in the Barlow's case also applied in
all instances to EPA under all the environmental statutes.  While EPA  has not conceded that the
Barlow's decision is controlling with regard to EPA's rights of entry under the statutes it administers,
EPA policy to obtain a warrant when owner consent to enter a facility has been denied, is based on
the understanding that it is less resource consumptive in the long  run  to  take the precautionary
action of obtaining a warrant, than it would be to litigate under each of the different statutes.  In
short, EPA probably does not need a warrant to enter a facility in the absence of owner consent, but
EPA policy is to inspect with consent: therefore, when consent is lacking, EPA obtains a warrant to
"validate,"  "confirm,"  and "credentialize" its statutory authority to  enter.   The warrant  serves as
judicial confirmation of  EPA entry authority.
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While EPA officials may not be constitutionally required to obtain warrants, they clearly have the
right to obtain a warrant as provided for in the Barlow's decision. This "right to a warrant" exists
regardless of whether the application of the Fourth Amendment to a particular situation does or does
not require a warrant.  However, contrary to the requirements existing for criminal warrants, it is
now clear that an Agency must first have substantive rights to enter onto premises before the use or
the issuance of an administrative warrant is proper. In Bunker Hill Co. v. EPA. 658 F2d 1280 (9th
Cir., 1981), the court upheld that EPA's statutorily expressed right of entry was sufficient basis for
EPA using, and the magistrate issuing, an administrative warrant.  Further, there is no necessity for
the Agency  to have "implementing regulations" in order to obtain warrants, but it must have and
show statutory rights of entry onto premises.

The right to obtain a warrant  is particularly important to government officials, in general, and
inspection personnel, more specifically.  In addition to credentializing  government  officials, a
warrant affords substantial legal protection to an inspector from private suits for  damages.  A valid
warrant gives an official absolute immunity from liability for activity conducted in conformity with
the warrant.  In  that respect, the warrant spares the official the very real injustice of undergoing
prolonged litigation of some claim asserted by a premises possessor.

Despite the Barlow's decision, there are some areas where a right of warrantless entry still exists, as
discussed below:

     •   Emergency situations, such as  potential imminent hazard situations, as  well as situations
         where there  is potential destruction of or where evidence of a suspected violation may
         disappear if time is permitted to elapse. In an emergency, when there is insufficient time
         to obtain a warrant, a warrantless inspection is permissible. In Camara v. Municipal Court.
         387 U.S. 523 (1967), the U.S. Supreme Court stated, "nothing we say  today is  intended to
         foreclose prompt inspections, even without a warrant, that the law has traditionally upheld
         in emergency situations."  Nothing in the Barlow's decision suggested the court intended to
         retreat from  this position.

         The Regions will always have to exercise considerable judgment as to whether a  warrant
         should be served when dealing with an emergency situation.  However, if entry is refused
         during; an emergency,  the Agency would need the assistance of the U.S. Marshal  to gain
         entry.   During  the time necessary  to secure the Marshal's  assistance, a  warrant could
         probably be obtained.

     •   Pervasively regulated industries.  The Barlow's rules do not apply to areas that have been
         subject to a longstanding and pervasive history of government regulation.  There are some
         grounds for interpreting FIFRA inspections as legitimately falling within this category. An
         EPA administrative law judge recently held 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 and Co..  Inc.. I.F. & R Docket No. III-121C (July 27,
         1978)].  Nevertheless, EPA policy holds that FIFRA inspections should be conducted under
         the  same  requirements  as  the  other compliance  monitoring/enforcement programs.
         Therefore, it is  prudent to obtain a warrant when owner consent is not forthcoming.
                                            7-5

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"Open Fields" and "In Plain View" situations. Observation by inspectors of things that are
in plain view (i.e., that are able to be seen by anyone in a lawful position or place to make
such observations) do not require a warrant.  For example, an inspector's observations from
the public area of a facility or even from certain private property not closed to the public
are admissible.  In addition, observations made even before the presentation of credentials
while on private property, which is not normally closed to the public, are also proper and
valid. Further, even during the execution of a warrant, those matters outside the warrant's
scope are considered "in plain view" so long as the warrant permits the inspector to be
where he is.
                                    7-6

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                                                      EXHIBIT 7-1

                                SUMMARY  OF   FEDERAL  ENVIRONMENTAL  ACTS
             REGARDING RIGHT  OF    ENTRY,  INSPECTIONS,  SAMPLING,  TESTING,  ETC.
Oesignai.eH Presentation
Act/Section Representative Credentials
Clean Water Yes, authorized
Act/ 3081 a) by Administrator



lirRA/8(b) Yes. designated
(Rooks & by Administrator
Records)


°(,i) (Inspections Yes. designated
of by Administrator
establishments)

Clean Air Act/ Yes. authorized
Il4(a) by Administrator


RCRA/3007(a) Yes. designated
WOSIa) by Administrator
— 1
1
^ SPWA/H45(b) Yes. designated
by Administrator






TSCA/ 1 1 (a.b) Yes. designated
by Administrator









Required




Required




Required



Required



Not required



Required







Required










Notice of
Inspection
Not required




Written notice
required with
reason and sus-
pected violation
note
Written notice
required with
reasons for in-
spection
Not required
except notify
Slate for SIP
sources
Not required



Written notice
required, must
also notify State
with reasons for
entry if State
has primary en-
forcement re-
sponsibility
Written notice
required









Sampling Inspection
Permitted of Records
Yes (effluents Yes
which the
owner is
required to
sample)
No Yes




Yes See 8



Yes Yes



Yes Yes



Yes Yes







(The Act does Yes
not mention
samples or sam-
pling in this
section. It
does state an
inspection shall
eitend to all
things within
the premise of
conveyance.)
Receipt Rclnrn ,if
Sample for Agency's Analytical
Splits Samples Results
Not required Not required Not required




N/A N/A N/A




Required, if Required Required.
requested promptly


Not required Not required Not required



Required, if Required Required
requested promptly


Not required Not required Not required







N/A Required N/A










CERCLA/104    Yes. designated   Not required
             by President
Not required
             Yes
                         Yes
                                     Required, if    Required
                                     requested
Required
promptly

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NOTES
  7-i

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                                 7B  CONSENSUAL ENTRY
Arrival for the Inspection
To comply with statutory authority and to avoid any "unreasonable search" and procedural problems,
a facility should be entered in the following manner:

     •  Arrival  at  the  facility  should occur during  normal working hours, unless mitigating
        circumstances, such as an emergency, require immediate response during off-hours.

     •  The facility should be  entered  through the main  gate; except where a facility,  in  its
        response to an inspection notification letter, has designated another entrance.

     •  The facility owner or agent-in-charge  should be located  as soon as the inspector  or
        inspection team arrives on the premises.

            If there is only a  guard present at the entrance, the inspector should present his
            credentials and suggest that the guard call his superior or the responsible facility agent.

        -  Locating the proper facility officials may  take some time and require contact with
            several receptionists or secretaries. Inspectors should be careful to keep their official
            credentials in sight at all times during  this process.   Business cards (which may  be
            available at inspector cost through the Regional offices) may be used for introductory
            purposes, but do not replace official credentials for identification.

     •  If the facility provides a sign-in sheet, log,  or visitor's register, it is acceptable to sign it
        provided there is no restrictive language associated with it.  However, inspectors should not
        sign a release of liability (waiver) when  entering a facility under the authority of Federal
        law, since under the Federal Employee's Compensation Act, Federal employees have  no
        authority to sign documents that  may adversely affect the government's subrogation  rights
        in the event that these become an issue.
Credentials	

When the proper facility officials have been located, the inspector should introduce himself as an
EPA inspector and present the proper EPA credentials. These credentials indicate that the holder
is a lawful representative of the Administrator of EPA and is authorized to perform inspections
under EPA regulations.  Five statutes require the display of credentials, while two statutes do not
make this a requirement, as  shown in Exhibit 7-1.  In those  programs where the statutes require
display of credentials, the credentials must be presented whether or not identification is requested.
In practice, Agency policy is that even where not required by statute, inspectors should present their
credentials to authenticate the representation that they are Federal officials who have the authority
to conduct inspections.
                                             7-9

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After facility officials have  scrutinized the credentials, they may wish  to  telephone the EPA
Regional office for verification of the inspector's identification.  This  is acceptable; however,
credentials should never leave the  sight of the inspector.  Make a  note in the field logbook that
credentials were presented.
Notice of Inspection	

Three statutes (FIFRA, SDWA, and TSCA) require that a written Notice of Inspection be presented
to the  facility, while four statutes do not contain that requirement as shown in Exhibit 7-1.  It
should be noted that while three statutes require a written Notice of Inspection prior to entry, it is
not necessary under these acts to provide advance notice of an intent to inspect; such notice can be
presented after arrival on site.

Once inspector  identification has been established, the  written Notice  of Inspection should be
presented to facility officials as required by statute.  The Notice should be dated, and the time of
inspection should be entered as proof that entry was requested at a reasonable hour.  In addition, if
records ordinarily exempt from inspection (e.g.,  financial,  sales, pricing,  personnel, or research
data) are specifically listed on the Notice, facility officials should be verbally informed of the intent
to inspect these records. Make a note in the field logbook regarding presentation of the Notice and
keep a copy of the Notice as part of the inspection file as proof of proper entry.
Consensual Entry	

Despite the statutory authority to enter a regulated  facility, EPA's  policy is to obtain access by
consent.  EPA solicits consent as a matter of courtesy; it is not required to do so as a matter of law
since it has statutory rights of entry, search, inspection, sampling, etc.

Consent  means  the  intentional foregoing of right to privacy that  has not resulted from  fear,
ignorance, or trickery.  In other words, consent to enter must be  given knowingly and freely.
Express  consent  is not necessary; absence  of express denial constitutes  consent.  Therefore, in
circumstances where the facility owner/ operator complains about the entry, or otherwise expresses
anger with EPA or the government, the entry is still consensual unless:  (i) the inspector has been
asked to leave and/or (ii) the inspector has used  coercion  to obtain entry.   For example,  if an
inspector suggests that failure to permit entry will result in civil or criminal consequences,  then the
subsequent  entry might not be considered consensual since  the "threat" of negative consequences
could be perceived as coercion.

Consent  must be given by the "possessor" of the premises, or some other person with authority to
give consent, at the time of the inspection.  (An "owner," i.e., a landlord,  sometimes lacks current
possessory rights). In the absence of the possessor, the inspector must make a good faith effort to
determine who is in charge of the establishment, or is otherwise in a position to consent to the entry.
The inspector should present his credentials to that individual. Note the name and title of the person
giving consent in the field logbook.
                                            7-10

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In most instances obtaining  consensual  entry will be a simple, straightforward  procedure upon
presentation of credentials.  However, two circumstances bear special consideration:

     •  Reluctance to  give  consent.  The receptiveness of facility officials  toward inspectors is
        likely to vary from  facility to facility.  If consent to enter is flatly denied, the inspector
        should follow the Denial of Entry procedures discussed below. However,  in some cases,
        entry is not flatly denied, but officials  may be  reluctant to give entry consent  due to
        misunderstandings of responsibilities, inconvenience to a firm's schedule, or other reasons
        that may be resolved by diplomacy and discussion.

        Whenever there is difficulty in gaining consent to enter, inspectors may tactfully probe the
        reasons and try to resolve the obstacles (provided they do not agree to any restrictions that
        compromise their authority to  inspect or the actual scope of the inspection activities).
        While as a practical  matter, EPA personnel often attempt to "work something out," the law
        does not require such "negotiating" as that would require EPA to forgo its statutory "rights."
        In all such instances, care should be taken to avoid threats of any kind, inflammatory
        discussions, or deepening the misunderstandings.  If the situation is beyond the authority
        or ability of the inspector, the Regional office should be contacted for guidance.

     •  Uncredentialed persons accompanying an inspector.  The consent of the  owner or agent-
        in-charge must be obtained for the entry of persons accompanying the inspector if such
        individuals do not have specific authorization.  If consent  is  not voluntarily given, these
        persons may not enter the premises.

     •  Access to Federal  facilities requiring security  clearances.   Certain  Federal facilities,
        including those with military, intelligence, nuclear-related, and law enforcement functions,
        may have special security or access requirements necessitated by the facility's mission. As
        stated in EPA's "Federal Facilities Compliance Strategy" issued in September 1988, it is
        EPA's policy to meet these special entry requirements to the maximum extent possible since
        these requirements  generally do not conflict with  the goals of EPA's  environmental
        compliance responsibilities.   Where necessary, EPA  or State  inspectors  must obtain the
        appropriate clearance for access to national security information, facilities, or restricted
        data at Federal facilities.  Where information has been classified, restricted, or protected
        for  national security, law enforcement or other similar reasons, all such information  is to
        be maintained in accordance with the originating  agency's requirements.

        EPA has programs for personnel security, document security, and protection of confidential
        business information.  Protection of information  from  release has not adversely affected
        EPA's environmental mission to date and  EPA staff with these responsibilities can provide
        assistance to inspection and compliance  personnel in meeting special access or security
        requirements if such access is allowed by the specific statute. EPA inspectors or other
        personnel in need of security clearances  for inspections or other compliance monitoring
        activities should contact the Personnel  Security Staff at  EPA Headquarters  to  obtain
        information on how to obtain necessary security clearances.  State inspectors should  first
        contact  the  Federal agency regarding  procedures to  be  followed to  obtain  required
        clearances. If problems or  inordinate delays are encountered, they  should ask  the EPA
        Regional Federal Facility Coordinator for assistance in obtaining needed  clearances.

        It is also recommended that  during the  annual EPA and State inspection planning process
        each media program check  to ensure that at least one inspector has the proper security
        clearances. Obtaining  top level clearances can take up  to one year,  so advance  planning
        should help to avoid unnecessary delays.

                                            7-11

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Denial of Consent to Enter
If an inspector is refused  entry into a facility for the purpose of an inspection under an EPA-
administered statute, certain procedural steps must be followed, as detailed below.

     •   Arrival and Presentation of Credentials/Notices. Make certain that arrival activities were
         properly conducted, including that all credentials and notices have been properly presented
         to the facility owner or agent-in-charge.

     •   Tactfully Discuss the Reason for Denial. If entry is not granted, courteously ask why.
         Diplomatically  probe the   reason  for  the  denial  to   see   if  obstacles  (such  as
         misunderstandings) can be resolved. If resolution is beyond the inspector's authority, he
         or she may suggest that facility officials seek advice from their attorneys on clarification
         of EPA's inspectional authority.

     •   Carefully Record Observations in the Field  Logbook.  All observations pertaining to the
         denial should be carefully noted in  the field logbook. Specifically, record the following:

            Facility name and exact address.

            Name, title, and authority of the person  who refused entry.

            Name, address, and telephone number of the facility's attorney (if readily available).

            Date and time of refusal.

            Reason for denial.

            Facility appearance.

            Any reasonable suspicions that  refusal was based on a desire to cover up  regulatory
            violations, etc.

         All such information will  be  helpful should a warrant be sought.

     •   Avoid Threatening or Inflammatory Statements.   Under  no circumstances should the
         inspector discuss  potential penalties or do anything that may be construed as coercive or
         threatening. For  example, the Barlow's decision clearly established that the possessor has
         the right to ask for a warrant under normal circumstances.  Therefore, refusal to permit
         entry for inspection purposes is not likely to lead to civil or  criminal penalties, providing
         the refusal is based on the inspector's lack of a warrant, and one of the conditions discussed
         earlier with respect to warrantless entry does not apply.  If the inspector were allowed to
         enter the facility in response to a  threat of enforcement liability, it is likely that any
         evidence obtained through such an inspection would be challenged as inadmissible.
                                            7-12

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        An inspector may, however, inform the facility representative that he intends to seek a
        warrant to  compel the inspection.  The inspector must be careful in phrasing such a
        statement.  Do not state: "I will get a warrant."  A later reviewing court may feel that
        statement usurped its authority to authorize a warrant and therefore may deny the warrant.
        Alternatively, even if the company later consents, following a statement that the inspector
        "will get" a  warrant, there may be an issue as to whether the consent was coerced.

        If the inspector decides to make a statement with regard to a warrant, it should be phrased
        along the lines of:  "I intend to seek (or apply for) a warrant."

        Leave Premises and Contact Supervisor.  If entry is still denied  after attempting to resolve
        obstacles, the inspector should withdraw from the premises immediately after obtaining the
        information noted above  in the field logbook.  In such circumstances,  if a written Notice
        of Inspection was required, a copy of the Notice should be  left with facility officials to
        show that proper procedures were followed.

        The inspector should telephone his or her supervisor immediately after leaving the premises.
        The supervisor will confer with the designated Regional Attorney to discuss the desirability
        of obtaining an administrative warrant. The Regional Enforcement Attorney generally will
        seek to discuss the matter by phone with the facility representative to resolve the issues
        immediately, thereby allowing the inspection to proceed without further delay. Failing this,
        the Regional Enforcement Attorney typically will contact  the U.S. Attorney's Office for the
        district in which the facility is located, and  explain the  need for  a  warrant to conduct a
        particular inspection.

        The Regional Attorney generally will arrange for an Assistant U.S. Attorney to meet with
        the inspector as soon as possible.  The inspector should take copies of the appropriate draft
        warrant and affidavits to the meeting. (Warrants and affidavits are  discussed below.)
Withdrawal of Consent During Inspection	

Occasionally,  a facility may consent to an  inspection and later  withdraw the consent while the
inspection is in progress.  Consent to the inspection may be withdrawn at any time after entry has
been made.  Agency policy regards withdrawal of consent as tantamount to a refusal to permit entry.
Therefore, the inspector should follow the procedures cited above under "Denial of Consent" unless
the inspection has progressed far enough to accomplish its purposes such that it is unnecessary to
attempt to regain consent.

All activities  and evidence obtained prior  to  the withdrawal of consent  are valid.  Therefore,
evidence obtained by the inspector before consent was withdrawn would be usable in any subsequent
enforcement actions and should be retained.
Conditional Consent     	

Conditional consent refers to the attempts by some facilities to restrict EPA's post-entry activities
by imposing one or more requirements or restrictions on the inspector as a condition of entry.  In
essence, facilities attempt to co-opt inspectors or "hamstring" their activities.
                                            7-13

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Conditional consent most often takes the form of efforts to impose:

     •   Waivers, indemnity agreements, or releases.

     •   Confidentiality or secrecy conditions or agreements.

     •   Photographic restrictions.

     •   Extra safety gear training.

     •   Duplication of the inspector's notes for facility review.

As a general rule, any request, requirement, or restriction that would necessitate deviation from
standard procedures should be interpreted as an effort to impose conditions.  EPA rejects all such
efforts. Conditions to entry are not acceptable and the inspector should not agree to them.  Efforts
to impose conditions  should be considered a denial of consent, and the  inspector should respond
accordingly.  However, a request that  the inspector wear a visitor's badge or that EPA personnel
comply with reasonable procedures (e.g., wearing a  hard  hat or safety eyeglasses) should not
generally be considered "conditions" of entry.

Even when entry has  been obtained without any effort to impose conditions, the inspector must be
sensitive to efforts that may be made during the inspection.  If this occurs, the inspection should
regard it as a revocation of consent,  and proceed in the same manner as  if  consent had been
withdrawn.


Scone of Inspection Activities	

The fundamental rule is that the language of the statute straightforwardly determines the nature and
extent  of EPA's  authorized post-entry activities. In general, each of the statutes includes the word
"inspect" or "inspecting" or "inspection," which has been interpreted as including  the prerogative of
recording by means of a sample,  photographically,  by tape recording,  graphically by electronic
devices with a visual taped readout, or by any other method whatever matters were "inspected".

Court cases have tested the scope of activities authorized by EPA statutes.  For example, one case,
Mobile Oil Co. v. EPA, resulted in a ruling that the  sampling of in-house, as opposed to end-of-
pipe, process effluent was within EPA's inspection and sampling rights. Another case, In Re Bunker
Hill Co.. supra,  explicitly ruled that EPA's right to inspect included the  right to take photographs
(although these may be subjected to claims of confidentiality under some statutes).

Regulated  facilities frequently make attempts to restrict EPA's  post-entry activities by asking
inspectors to sign passes, logs with  restrictive language, waivers, indemnity agreements, releases, or
other such items. The Department  of Justice does not permit EPA inspectors to sign or agree to any
such conditional restrictions. Further, EPA representatives have both the right and the responsibility
to refuse to sign any  agreement (confidentiality or secrecy)  to the effect  that what is observed or
discovered  during an investigation  will not be released in documentary form. (However, inspectors
may  facilitate a source's claim for business confidentiality under some  regulations.)  Any such
attempts to circumscribe EPA inspection activities should be regarded as a refusal of consent and
dealt with accordingly.
                                            7-14

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Some regulated facilities attempt to limit EPA activities in terms of the use of mechanical sensor or
other recording devices. EPA has the complete authority to use photography, as noted above; it also
has the right to utilize aerial overflights, LIDAR (a form of radar used to detect and measure distant
air  emissions of particulate matter), and  other aerial or  ground surveillance sense enhancement
devices.  If a source places a restriction on any such on-site use of recordation devices, this should
be viewed and handled as refusal of consent.

As mentioned previously, EPA representatives are typically encouraged by Agency policy to use the
same safety gear that is actually used by facility employees. However,  EPA  inspectors are not
required to submit to undergoing the facility's safety training program.  If the facility makes such
demands, the inspector should refuse and  should treat the situation as a refusal of consent.

Inspector Judgment	
Because the Agency's statutory authorities for entry are broad, it is the Agency's policy to handle
as a denial of consent, any attempts to restrict or place conditions on the scope of the inspection.
The inspector should never sign anything that would compromise his or her rights or the rights of
the government. The right of the government to take photographs or electronic recordings is clear.

As is  true for many situations faced by inspectors, however, there are  judgment calls to be made.
The question is to what extent a limitation will inhibit the inspector's ability to conduct a complete
inspection (or compromise a right of the inspector and/or the government).  If the inspector leaves
the premises without conducting the inspection at all, there are costs involved. At a minimum, there
will be a delay in performing the inspection while a warrant is sought  and obtained. The Agency
may decide it is not worth keeping the inspector on the road longer or sending an inspector out again
later,  so the inspection may never be performed.

Experienced inspectors find that they can often  negotiate a compromise with facility managers to
get around apparent stumbling blocks to gaining consent to enter. The examples below suggest some
of the ways inspectors  have actually handled situations that might have been considered denials of
entry. Remember that these are judgment calls, and as such, there  are risks  involved.  If the
inspector is in doubt, he or she should consult with Regional attorneys regarding the appropriateness
of a potential solution in a given fact situation. The inspector always has the option  of leaving and
seeking a warrant, before or after the inspection has begun.

     •  Restrictive language in sign-in book or form:  Inspectors have simply crossed out offensive
        language  before signing, obtained a  photocopy, and  made  a  note  in their field  logbook
        about it.

     •  Photographs:  When facility managers express that they do not want photographs taken, the
        inspector can  proceed with the inspection --  and raise the issue again only if a particular
        photograph(s) is essential to completion  of the inspection.  If still denied, a warrant can be
        sought.

     •  Safety training: Inspectors cannot be required to take the facility's safety training course
        prior to entry. However, if the company has a relatively short  safety briefing that will not
        interfere  with the  inspector's ability  to complete  the planned  inspection,  it  may  be
        worthwhile to sit through it. Inspectors sometimes find that they can learn  the layout and
        other facts about the facility through such briefings.
                                            7-15

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NOTES
 7-16

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                                   1C  WARRANT ENTRY
A  warrant is  a  judicial authorization for an appropriate official (e.g., an  EPA inspector, U.S.
Marshal, or other Federal officer) to enter a specifically described location and perform specifically
described inspection functions.   An  administrative warrant can be obtained:  (i) in advance of
inspection, (ii) when facility officials have denied entry to an inspector, or  (iii) when consent to
inspect has been withdrawn during an inspection.

Warrants are applied for and obtained ex oarte. that is, without  the knowledge of the other side.
Past experience demonstrates that if the other side (the facility) is aware of the effort to obtain a
warrant, EPA will find itself bogged down in court motions and other delaying tactics.  For that
reason, it is also inappropriate to give  a facility advance notification of an inspection that will occur
under a warrant. It can be a criminal violation for anyone to disclose the existence of a warrant
prior to its execution.

The Agency must draft three documents to  obtain a warrant:  an application  for  a  warrant; an
accompanying affidavit; and the warrant itself.  Each document is captioned with the District Court
of jurisdiction, l:he title of the action, and the title of the particular document. Sample documents
are provided as  exhibits at the end of this section.  (Occasionally, a Memorandum of Points and
Authorities in Support of Warrant Application also will be filed.  This is essentially a legal brief,
explaining to the magistrate why he or she can do  what is being asked.)

The inspector plays a significant role in the process of seeking a warrant. His or her knowledge and
experience relating to the circumstances are crucial  to the drafting of warrant documents. Inspectors
are responsible for:

     •   Obtaining  information that  will permit very specific description of the premises to be
         inspected.

     •   Providing specificity regarding the items  to be searched and/or seized.

     •   Helping determine what laws/regulations/requirements apply or may have been violated.

     •   Providing the information amounting to "reasonable" cause or, alternatively, supplying the
         predetermined inspection schedule, which selected the site for inspection, if "reasonable"
         cause was not the issue.

Regarding all of the items, the inspector should help "cast  a  wide net,"  but one  that is  still
legitimately founded on  the  facts and  the  applicable law.   Drafting warrant documents is a
particularly important area where attorneys and inspectors must work together as a team.
                                            7-17

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Seeking a Warrant in Advance of Inspection
A warrant may be obtained during the pre-inspection preparation phase, prior to going on-site.  A
denial of entry is not a prerequisite to obtaining a warrant. The Barlow's decision recognized that
an agency may wish, on occasion, to obtain a warrant to conduct an inspection even before there has
been any refusal to allow entry. A pre-inspection warrant may be sought at the discretion of the
Regional office if:

     •  A violation is  suspected  that could be covered up  during  the time needed to secure a
        warrant once the inspectors have arrived on-site.

     •  Prior correspondence or other contact (e.g., review of Agency records) with the facility  to
        be inspected provides reason to believe that entry will be denied  when the inspector arrives.

     •  The facility is unusually remote from  the Regional office or a  U.S. District Court so that
        a necessity to obtain a warrant  at a later phase of  the inspection process  would be
        inconvenient to the government.
Seeking a Warrant for Denied Entry	

It is EPA policy to seek a warrant when all other efforts to gain lawful entry have been exhausted,
and the inspector has carefully followed established entry/denial of entry procedures.  Determination
to  secure a warrant will be made by the Regional program office in concert  with other cognizant
EPA officials.   Usually,  the Regional program  office will consult  with Regional enforcement
attorneys and with Headquarters in accordance with established policy.  For example, Headquarters
monitors refusals  and  Regional success  in obtaining warrants  in order to evaluate the need for
improved procedures, as well as to assess the impact  of the  Barlow's decision on Agency compliance
monitoring programs.
Securing and Executing a Warrant	

Once it has been determined that a warrant should be secured, there are precise procedures for
obtaining and executing a warrant, as detailed below.

Contact the U.S. Attorney	
After a decision has been made to obtain the warrant, the designated Regional official will contact
the U.S.  Attorney of the district in which the property is located.  The Agency assists the U.S.
Attorney in the preparation of the warrant and necessary affidavits.

Apply for the Warrant
The  application for a warrant identifies the statutes and regulations under which  the  Agency is
seeking the warrant. The name and location of the site or establishment to be inspected should be
clearly identified and, if possible, the owner and/or operator should be named.  The application can
be a one- or two-page document if all factual background for seeking the warrant is stated in the
affidavit, and the application so states. The application is generally signed by the U.S. Attorney or
by the Assistant U.S. Attorney.  The application for a warrant should be made as soon as possible
after the denial of entry or withdrawal of consent. (See Exhibit 7-2.)

                                            7-18

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Prepare the Affidavits
The affidavits are crucial documents in support of a warrant application.  Each affidavit consists of
consecutively numbered paragraphs that describe all of the facts in support of warrant issuance.  If
the warrant is sought  in the absence of "reasonable" cause, the affidavit should incorporate the
neutral administrative  scheme that is the basis for inspecting that particular facility.

The inspector plays a crucial role in preparing the affidavit. As indicated earlier, the inspector must
help prepare in  detail  the  description of the premises and the  items to be seized.  Detail of the
premises includes:   address  (lot and  range number or longitude and  latitude,  if appropriate),
description of surrounding area, position on the block,  number of buildings and relation to one
another, description of each building (including color, height, construction material), signs and other
unique identifying characteristics.

The affidavit is signed by a person with  first-hand knowledge of all the facts  stated, although
"hearsay" or "second-hand" knowledge can be  used.  In cases, where entry has been denied, the
inspector who was denied  entry usually will be the person to sign the affidavit.  An affidavit is a
sworn statement that must  be notarized or  sworn to before the magistrate.  (See Exhibit 7-3.)

Prepare the Warrant for Signature	
The warrant is a direction to an appropriate official to enter a specifically described location and
perform specifically described inspection functions. The warrant also includes a "return of service,"
a "return" and an "inventory" of the items seized. Since the inspection is limited by the terms of the
warrant, it is important to specify to the broadest  extent possible the areas that are intended to be
inspected, any records to be inspected, any samples to be taken, 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.

The draft warrant should  be ready for the magistrate's signature.  Once signed, it is an enforceable
document.  Either following the magistrate's signature, or on a separate page, the warrant will
contain a  "return of service," which is used to report that the warrant was executed. This part of the
warrant is to be dated and signed by the inspector after execution of the warrant and completion of
the inspection.

Inspectors should accompany the attorneys to the judge if possible.  Often questions  arise which
might allow the judge to swear in the inspector in order to take additional information to supplement
the affidavit.  (See Exhibit 7-4.)

Execute the Warrant	
Warrants are executed by a physical entry onto the premises.  Local law or court rules may also
require handing a copy of the warrant to someone in  possession, ownership, or control, or that a
copy of the warrant be displayed in a prominent place. The original warrant should never be given
up because it must be returned to the court. In the "return of service," whoever executes the warrant
must certify to the court that service or notice was accomplished.

Once the  warrant has been issued  by the magistrate or judge,  the inspector  may proceed to the
facility to begin or continue the inspection.  The warrant should be executed without undue delay
and  within the number of days stated (standard is 10 days).  Further, the warrant will usually direct
that  it be  executed during daylight  hours.
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The  inspector should  be accompanied by a  U.S.  Marshal when executing a  warrant.   This is
particularly true when there is a possibility that entry will be refused even with the warrant or
where there is a likelihood of threats of violence.  For reasons of personal safety and liability, the
inspector should not attempt forcible entry of a facility on his or her own initiative.

If the facility representative refuses entry to an inspector holding a warrant, but not accompanied
by a Marshal, the inspector should leave the premises, and inform the Assistant U.S. Attorney and
the designated Regional official of the circumstances.  They will take appropriate action, such as:
(1) sending the inspector back to the facility accompanied by a Marshal, or (2) seeking a citation for
contempt.

When the inspector is accompanied by a Marshal, the Marshal is principally charged with executing
the warrant.  If a  refusal or threat to  refuse occurs, the inspector should abide  by the Marshal's
decision to leave, seek forcible  entry, or take other action.

Inspecting  with the Warrant	
The inspector should conduct the inspection in strict accordance with the warrant; the inspector is
only authorized to seize, sample, or copy as authorized by the warrant, which in turn is affected by
the substantive statutory language.  If  the statute requires that split samples must  be offered or
produced, or that records may only be copied and not taken, then these same restrictions will apply
under the warrant. In any event, the inspector must keep a complete list of items taken or copied
because this will be included in inventory returned with the warrant.

There are several points that inspectors should keep in mind when conducting an inspection with a
warrant

     •   If questions arise in the field about the scope of the warrant, call the Regional attorneys.
         If the inspector  discovers items which  should have been  included in the scope of the
         warrant but are not, the attorneys may be able to coordinate getting the judge to amend the
         warrant by telephone.  If a few items are taken that are later found to be beyond the scope
         of the warrant, they will have to be returned. This will not normally affect the items taken
         pursuant  to the warrant. However, if too many items are taken, it could result in voiding
         the entire warrant or suppression of all evidence.

     •   Apply the "plain view" doctrine,  which means essentially that  if a piece of evidence  is
         where it could be seen by anyone in a lawful position or place to make such an observation,
         the information can be included as evidence.

     •   Keep an eye open for evidence  of other wrongdoing.  Such evidence is generally admissible
         as long as the inspector had lawful authority to be in a position  to see it.

     •   As with  all  inspections,  interview  as  many  individuals as possible  and  reasonable to
         accomplish inspection objectives.  There are no restrictions  on asking questions, although
         there is no obligation for  the facility's representatives or other employees to respond.
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        As  indicated,  some  EPA  information-gathering  statutory  provisions  [e.g.,  CWA
        308(a)(4)(B)(ii), 33 U.S.C.  1318 (a)(4)(B)(iii)] appear to authorize EPA only to copy, and
        never to seize, records.  In such situations, make provisions for copying or photographing
        the document on-site.

        If an inspector reasonably fears that a destruction or "sanitization" of records may  occur
        during the time EPA is attempting to copy records on-site, then EPA on-site seizure and
        sequestration  (restricting  access to the records  by anyone) is probably authorized.   In
        extreme situations (e.g., where there is a real concern that documents will be destroyed if
        left on-site), documents should be seized if they  are essential to the investigation.  In such
        a case,  it is better to run the risk of having the court rule that the documents must  be
        returned to the possessor than it is to suffer their certain loss.
Return to the Warrant
The "return" made on a warrant is a written report informing the court when and where the warrant
was executed, who participated, generally what was done,  what items (if any) were carried away
from the premises, and whether a copy of the warrant was given to someone (listing the person's
name and addresis).  The "return" includes a "return of service" indicating with whom a copy of the
warrant was left or where it was posted; the "return" itself indicating when the inspection pursuant
to the warrant was completed; and the "inventory" or list of items seized or copied. The inventory
not only allows  the court to help determine whether the inspection was within the scope  of the
warrant, but it also serves as the official record of items taken or copied.

After the inspection has been completed, the warrant must be returned to  the magistrate.  A  return
of the warrant, within  the time restrictions required by the  court, is essential.  Magistrates usually
impose a time limit in the warrant  that is estimated to be  long enough to complete the proposed
activities. If the activities are not completed during the allowed time period, usually the warrant can
be renewed or a new one issued based upon updated information.

Whoever executes the warrant (i.e., whoever performs the inspection or the U.S. Marshal) must sign
the return form, and give it and the  warrant to the U.S. Attorney.  The U.S.  Attorney will formally
send the documents to the  issuing  magistrate or judge.  As  noted  earlier, if anything has been
physically taken from the premises,  such as records or samples, an inventory of such items must be
included in the return, and the inspector must be present to certify that the  inventory is accurate and
complete. (See Exhibits 7-5 and 7-6.)
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Challenges to the Warrant
There is always the potential that a facility representative will challenge a warrant and the evidence
obtained during an inspection performed under such circumstances.  The warrant and all evidence
gathered pursuant to it,  or portions of evidence obtained in an otherwise  valid warrant, can be
overturned by  the courts.  Some of the typical bases for challenges  (whether or not they are
successful) to a warrant or evidence are listed below:

     •   Insufficient cause for issuance of the warrant.
     •   Insufficient affidavit supporting the warrant.
     •   Inaccurate information in the supporting affidavit.
     •   Insufficient description of the premises or of the items to be seized.
     •   Searches beyond the scope of the warrant.
     •   Failure to follow appropriate procedures executing or returning the warrant.

For a warrant or evidence obtained under it to  be successfully  challenged, in whole or in part,
usually someone must make  a prejudicial mistake at some point in the warrant process.   If the
mistake is sufficiently serious, an entire case  could be lost.

The procedures for obtaining, executing, and returning a warrant are generally well-defined and
established. These procedures must be followed as closely as possible.
Inspections Conducted bv State Personnel	

The Barlow's holding applies to inspections conducted by State personnel and to joint Federal/State
inspections.  Because some EPA programs are largely implemented through the States, it is essential
that the Regions ensure that State-conducted inspections are conducted in compliance with Barlow's.
State inspectors should be encouraged to consult with their legal advisors when there is a refusal to
allow entry for inspection purposes.  State personnel should be urged to contact the EPA Regional
enforcement office when any questions concerning 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 forcible entry  without  a warrant or penalize an  owner for insisting upon a
warrant; and (2) the State legal system should explicitly  provide a mechanism for issuance of civil
administrative inspection warrants.

     •  If a State is enforcing an EPA program through a State statute, the warrant process should
        be conducted throughout the State judicial system.

     •  Where a State inspector is acting as a contractor  to EPA, any refusal to allow entry should
        be handled as would a refusal to an  EPA inspector.

     •  Where a State inspector is acting  as a State  employee with both  Federal  and State
        credentials, he or she should utilize State procedures unless the  Federal warrant procedures
        are more advantageous.

The Regions should also assure that  all States which enforce  EPA programs report any  denials of
entry to the appropriate EPA enforcement attorney.


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                              EXHIBIT 7-2

              Model Application for Administrative Warrant
                      UNITED STATES DISTRICT COURT

                               DISTRICT OF
IN THE MATTER OF:         )          Docket No.
                          )
                          )          Case No.
                          )          Application for an
                          )          Administrative Warrant
     NOW COMES a duly designated representative of the Administrator of
the United States Environmental Protection Agency, by and through
      (name)      , United States Attorney for the        District of
        and applies for an administrative warrant of entry, inspection,
reproduction of records, photography, and sampling to determine
compliance with the Toxic Substances Control Act, 15 U.S.C. 12601 e£
aeq., and as authorized by Section 11 of the Act, 15 U.S.C. 12610, of
the premises at   (description of the premises)  in the possession,
custody, or control of the   (name of company or owner).  In support of
this application, the duly designated representative of the
Administrator respectfully submits an affidavit and a proposed warrant.

                                      Respectfully submitted,
                                        (Signature of U.S. Attorney)
                                      United States Attorney  for  the
                                               District  of
     (Pate)
                                7-23

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                              EXHIBIT  7-3
                     Model Affidavit ia Support of
               Application for an Administrative Warrant
                      UNITBD STATES DISTRICT COURT

                               DISTRICT OF
IN THE MATTER OF:
Docket No.

Cast No.
                                     Affidavit in Support of
                                     Application for an
                                     Administrative Warrant
State of
County of
(Name of Affiant)
          , being duly sworn upon
hls(her) oath, according to law, depoaea and says:

    1.  I am compliance/enforcement officer with the    (diviaion)
United States Environmental Protection Agency, Region	, and a
duly designated representative of the Administrator of tha United States
Environmental Protection Agency for the purpose of conducting InspectIons
pursuant to Section 11 of the Toxic Substancea Control Act, IS U.S.C.
$2601 e£ seq.  I hereby apply for an administrative warrant of entry,
inspection, reproduction of records, photography, and sampling of the
premises in the possession, custody, or control of the (name of company
or owner).
       2.  (Name of establishment, premises, or conveyance) la a
(describe business) that the undersigned compliance officer of the United
Statea Environmental Protection Agency has reaaon to believe la in
violation of the Toxic Subatancea Control Act*  This belief is baaed upon
the following facts and information:  (Describe with particularity the
reasons why a violation is suspected and the specific facta that give
rise to probable cause or summarise the neutral administrative inspec-
tion scheme used to select the premises for inspection*)
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                        EXHIBIT 7-3 (Continued)
  3.  Th« entry, Inspection,  reproduction of  records, photography, and
sampling will be carried out  with reasonable  promptness, and « copy of
the results of analyses performed on any samples  or material collected
will be furnished to the owner or operator of the subject premises.

    4.  The compliance/enforcement officer may be accompanied by one or
more compliance officers of the United States Environmental
Protection Agency.

    5.  A return will be made to the court at the completion of Che
Inspection, reproduction of records, photography, and sampling.
                                   (Signature  of  Affiant)
                                   (Title
                                   (Division)
                                   Region ( )
                                   United States Environmental
                                   Protection Agency
   Before me, * notary public of the State of
County of 	, on this	day of     	
19	, personally appeared	, and upon oath stated
that th« facts set forth in this application are true to hls(her)
knowledge and belief.

                                   (Signature of Notary)
                                   A Notary Public of
                                   My Commission Expires
                                7-25

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                              EXHIBIT 7-4

                     Model Administrative Warrant
                       UNITED  STATES  DISTRICT COURT

                       	DISTRICT OK
 IN THE MATTER OF:
                          Docket No.

                               No.
                                     Warrant of Entry,  Inspection,
                                     Reproduction of  Record*,
                                     Photography, and Saapling
   To
(na«e)
(title)
,  United Statee
Environmental Protection Agency, Region       , and  any  other  duly desig-
nated representatives of the Administrator of  the United  Statee
Environmental Protection Agency:

   Application having been made by  the United  States  Attorney on  behalf
of the United States Environsjental  Protection  Agency  (EPA)  for a  warrant
of entry, inspection, reproduction  of records, photography, and saapling
to determine coapliance with regulations under the  Toxic  Substances
Control Act, 15 U.S.C. 12601 et^see.; and, the court  being  satisfied
that there has been a sufficient showing that  reasonsble  legislative  or
administrative standards for conducting an inspection and investigation
have been satisfied;

   IT IS HEREBY ORDERED that EPA through its duly designated  represen-
tatives      (naaes of representatives)             is hereby  entitled
and authorised to have entry upon the following  described premises:

                          (Describe premises.)

   IT IS FURTHER ORDERED that entry, Inspection, reproduction of
records, photography, and sampling  shall be conducted during  regular
working hours or at other reaaonable times, within  reasonable limits, and
in a reasonable manner.
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                         EXHIBIT 7-4  (Continued)
    IT IS FURTHER ORDERED that Che warrant shall be for the purpose of
 conducting an entry, Inspection, reproduction of records, photography,
 and sampling pursuant to 15 U.S.C. 12610 consisting of the following
 activities:

              (Describe specific activities.  For example:

                 (•  Entry to, upon, or through the above-described
                     premises including all buildings, structures,
                     equipment, machines, devices, materials, and sites to
                     inspect, sample, monitor, and investigate the said
                     premises.

                 (•  Access to and reproduction of all records
                     pertaining to or relating to the use, storage,
                     handling, and disposal of polychlorinated
                     biphenyls (PCBs).

                 (e  Inspection, including photographing, of any
                     equipment, methods, or sites used to store,
                     or dispose of PCBs at the facility.)

     IT IS FURTHER ORDERED that, if any property is aeiced, the duly
 designated representative or representative* shall leave a receipt for
 the property taken and prepare a written Inventory of the property
 aelzed and return this warrant with the written inventory before me
 within 10 days from the date of the Inspection.

    IT IS FURTHER ORDERED that this warrant 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
 author!red and directed to assist the representatives of the United
 Statea Environmental Protection Agency In such manner aa may be reason-
 able, necessary, and required.

                                       (Signature of Magistrate)	

	(Date)	
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                             EXHIBIT 7-5
                            RETURN OF SERVICE

  hereby certify that a copy of  the within warrant  was served by presen-
 Ing a copy of sane to (facility owner or agent)  on    (date)     at
     (location of establishment  or place).
(Signature of person making service)
(Official title)	

                                  RETURN
Inspection of the establishment described In this warrant was completed
on      (date)  .
(Signature of person conducting the inspection)
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                              EXHIBIT 7-6

                      Model Affidavit of Service
                          AFFIDAVIT OK SERVICE
                        UNITED STATES OF AMERICA
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify chat being a person over 18 years of age, I served a
copy of Che within subpoena:

(check one)  ( ) In person
             ( ) by registered mail, return receipt requested
             ( ) by leaving the copy at principal place of business,
                 which is
             ( ) (vrite in other aethod. such as leering it at duelling,
                 serving registered agent of corporation, etc.)

on the person named in the subpoena on (aonth, day, and year).
                                    (Signature of person aaking service)


                                    (Naae of person Baking service)	


                                    (Title, if any)	
                                  7-29

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NOTES
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                         7D  INFORMATION-GATHERING TOOLS
A wide range of tools is available to EPA for use in gathering information about facility compliance
with environmental  requirements.  Most directly related to the conduct of inspections are those
authorities involving a physical intrusion  onto premises, such as the Agency's  right to enter and
inspect premises and to obtain warrants for entry.  These authorities are discussed in the previous
sections of this chapter.

Compliance information can also be gathered through the use of other investigative tools that do not
necessarily involve a physical intrusion upon someone's premises. The four principal  mechanisms
are subpoenas, warrants, orders, and requests.  The Agency sometimes uses these authorities to gain
information in advance of or in connection with an  inspection or enforcement investigation.

Authority to obtain (compel persons to provide) information through subpoenas and warrants exists
for the most part in  general criminal  and  civil law, although specific provisions may  also exist in
particular environmental statutes.   Authority to compel information through orders and requests is
derived from the specific environmental statute, provided that Congress included such provision(s).
This unit briefly discusses these four major means of compelling information.  A matrix identifying
these authorities contained in environmental statutes  appears at the end of the chapter (Exhibit 7-7).
Administrative Investigative Subpoenas	

An administrative investigative subpoena (referred to in the remainder of this section as "AIS") is a
non-adjudicative command issued by an agency to compel the production of tangible information
(e.g.,  records  or  documents) or the appearance of  a  person for the  purpose of obtaining oral
information.  An AIS is "non-adjudicative" by definition; that is, it is issued in connection with an
agency's inspection or investigative activities prior to or separate from an adjudicatory proceeding.
A subpoena issued in connection with adjudicatory  proceedings  is called an "adjunct" subpoena.
Since this section deals with obtaining information in relation to inspections, adjunct subpoenas are
not discussed further, although there are occasional references to them  in relation to AIS.

Beginning with the Interstate Commerce Commission and the Federal Trade Commission, Congress
has given  to various Federal agencies one or both types of subpoena powers.  Frequently, powers to
use both types of subpoena are conferred by a single statutory phrase such as "...in carrying out the
provisions of this Act ...," or  the words "...in connection with a proceeding under this section ...."

Permissible addressees of AIS are typically any person who may have relevant information.  In short,
the range  of persons  subject to AIS is typically equally as extensive as the range of persons subject
to discovery  under the Rules of Civil  Procedure.   Some arguments have  been made  that  only
"regulatees"  are  subject  to AIS.   However,  it may  be said  that  unless the statute is otherwise
restrictive, an  AIS  is addressable to any person who  is genuinely  believed  to  have  relevant
information.
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Rules and Restrictions Regarding AIS	

Some traditional rules and restrictions have been developed by the courts governing "subpoenas" by
name, but without any careful distinction between adjunct subpoenas and AIS. They do not apply
in every respect to AIS, but they are  described here to provide a general understanding of the
boundaries of subpoenas.  Traditionally, a subpoena may properly and lawfully command any one
or combination of the following  -- and no more:

     •   Future attendance of a human (as an individual addressee or as an addressee organization's
         representative) at a stated time and place, including remaining in attendance until excused
         by the subpoena issuer;

     •   The taking of an oath at such time and place stating that only truthful answers will be given
         to questions put there;

     •   The giving of oral (but not written) answers under oath to any lawful questions put at such
         time and place; and/or

     •   The delivery of pre-segregated and sorted tangible items, within the addressee's possession
         or control, such as records or documents, that pre-existed the service of the subpoena.

"Excursions" beyond the foregoing commands are likely to be treated rather suspiciously by the
courts.  For example, a subpoena requiring appearance "forthwith" rather than "in  the near future"
generally is  regarded as "impolite" by the courts; such subpoenas  leave little time for the addressee
to seek counsel.   Nevertheless,  there  does not appear  to be  a  constitutional bar to "forthwith"
subpoenas (whether  AIS or adjunct subpoenas), particularly  where there is a concern that the
subpoenaed  person might leave the area and be difficult to locate. Another excursion example would
be a subpoena  requiring the  addressee to bring a "sample" of  pre-existing fungible or replicated
materials.  A final excursion example would be a  subpoena  requiring the  addressee to bring a
"summary" of a pre-existing record. Each of these slight "excursions" beyond familiar practices may
raise legal challenges. However,  it should be noted that the court  in EEOC v. Maryland Cup Corp..
785 F.2nd 471, 478-479 (4th Cir.  1986) held that a request for a respondent to create a document not
previously existing is not unduly burdensome.

AIS also may be used  in certain circumstances in criminal cases. Under statutes  where EPA has
power to enforce both criminal and civil liabilities, if that statute  also confers AIS issuance powers,
it  is  not a valid objection  that EPA  is using the AIS  to inquire into matters that may constitute
criminal activity.

Judicial Enforcement of AIS	    	
The act of issuing an AIS is "agency action" under the Administrative Procedures Act, the validity
of which  is  tested under the "arbitrary, capricious, or abuse of discretion"  standard  of 5 U.S.C.
Section 706(2)(A).
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Consistent with .'> U.S.C. Section 706(2)(A), courts have developed a specialized application of that
standard for AIS.  Generally, an administrative investigative subpoena will be judicially enforced
to the extent that it appears that:

     •   The investigation is legitimate;

     •   The subpoena is not needlessly broad; and

     •   The records sought are reasonably relevant.

Limitations of AIS	
There are shortcomings inherent in subpoenas when using them to obtain destructible or alterable
items such as records and documents. Their advance notice feature enables a subpoena respondent
to shred,  destroy, hide,  or otherwise sanitize such items while he engages in delaying litigation
trying to nullify or to  restrict the subpoena.  How frequently this occurs is not known, but it has
happened, despite the  fact that a respondent has a legal duty to keep the subpoenaed items safe
until all litigation concerning them has been resolved.

Computer technology has immeasurably enhanced the sanitizing ability respondents have when an
AIS is served.  With  the  press of  a finger  on a keyboard, information can  be  electronically
transferred to other locations with minimum risk of detection.

Therefore, the AIS as an investigative tool to uncover tangible items  is becoming increasingly less,
not more, useful.   Warrants,  on  the other  hand, partially  disable a possessor from sanitizing
subpoenaed items because officials with warrants simply show up, enter,  peruse, and copy or carry
away the records or documents or tangible items before sanitization can occur.

(See Exhibit 7-8.)
Warrants	

Warrants usually are thought of in terms of their use to gain entry to a facility or site. However,
government officials are beginning to rely increasingly on warrants for the purposes of obtaining
tangible objects, records, and documents.  This increased use arises from concern over the potential
loss or destruction of not only subpoenaed items, but also of information sought under administrative
orders or requests.  A search warrant may also be obtained to gain entry to a wetlands site to verify
that CWA Section 404 jurisdiction applies to the site.

Rules and Restrictions Regarding Warrants	

Warrants in non-criminal inspections and investigations are governed  mainly by the  same legal
principles as criminal warrants.  The major difference is  that criminal warrants operate under
established court rules  (Federal Rules of Criminal Procedure  Rule 41),  while the use of civil
warrants and their procedures essentially have evolved through case law.  Civil warrants also may
carry an easier  or different  burden of proof than in criminal  cases (e.g., a  standard inspection
scheme vs. probable cause to believe that a crime has been committed).   (Chapter 7C discusses
warrants in greater detail.)
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Judicial Enforcement of Warrants
Warrants for the purpose of obtaining tangible items, records, and documents are issued by a court.
As such, they are enforceable by the court.

Limitations of Warrants	
Warrants are superior to AIS and administrative orders and requests in that they can prevent, or at
least minimize, the loss or destruction of desired information.  In addition, the specificity required
to obtain a warrant generally eliminates any ambiguity about what is being sought.  However, the
fact that a warrant must be obtained through the court and served in person limits its efficient use
to those instances  where significant violations are suspected  and there  is reason  to  believe that
valuable information might be  lost or destroyed in the  absence of warrant  action.   In addition,
warrants may not be used to compel written or oral statements.
Information-Gathering Orders	

Subpoenas and warrants are clearly insufficient as the sole compulsory means of obtaining all the
investigative information needed by a modern regulatory agency such as EPA. Therefore, Congress
empowered EPA to issue information-gathering orders which are far more  broad than subpoenas
regarding what they may direct to be done, but which are sometimes more narrow than subpoenas
in regard to who may be the  addressee of such a command.  These information-gathering orders
(often referred to in the remainder of this unit simply as  "orders"), like AIS,  are non-adjudicative,
administratively-issued government commands.

The  extent of what may be commanded through an order generally is greater than what may be
commanded under  an AIS.  For example, CWA Section 308 enables EPA to command that samples
be taken and monitoring be performed, and that the order recipient "provide information."  In a
general sense, an information-gathering order does as much as an AIS, but also can do much more.
For example, EPA  has long used such orders under CWA Section  308 and CAA Section 114 to
require the addressee to give written answers to written questions, provide originals or true copies
of records and documents, and provide narrative descriptions of, and explanations for, previous
events. Since statutory language authorizing information-gathering orders usually does not mention
"testimony," it is debatable whether these orders can command responses "under oath."  If not,  then
in that regard, these orders are theoretically less coercive than AIS. However, submission of a false
answer may nevertheless subject the respondent to criminal penalties.

It may be possible to use information-gathering orders to compel and obtain oral interviews, that is,
to command unsworn oral  answers to oral  questions put by EPA.  Certainly, the giving of oral
answers is "providing information," and EPA has the authority to require the respondent to interview
its employees and agents who may have knowledge of the information sought and incorporate those
persons' replies into the formal response. However, EPA has seldom  used orders for the purpose of
directly obtaining oral interviews, and the issue has not been litigated.

Rules and Restrictions Regarding Orders	
In U.S. v. Tivian Laboratories. Inc.. 589 F2d 49 (1st Cir. 1978) the Court of Appeals turned to AIS
cases for rules with which to determine the propriety and enforceability of an information-gathering
order where it is used in a manner very similar to an AIS.  The similarity of such an order to an AIS
was apparent to the court. The orders in this case were issued in 1975 by EPA pursuant to CWA
Section 308 and CAA Section 114.

                                           7-34

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While noting thait penalty possibilities were present for the orders, the Court nonetheless ruled that
the orders were valid under rules which were applicable explicitly to AIS. Consequently, the orders
were enforced.

It is possible, however, that a court may overlook the fact that an information-gathering order in a
particular instance is commanding essentially no more than an AIS would have, and apply the pre-
issuance  administrative record  rules  applicable  to other  types  of administrative orders  (e.g.,
corrective action orders). Given that an information-gathering order in certain circumstances may
be issued before an administrative record appropriately would be created, such a stance by  a court
would render the information-gathering order invalid and unenforceable in those cases.

Nevertheless, it seems clear that an information-gathering order is governed by AIS rules when the
order does no  more than command activities which an AIS could command.

Judicial Enforcement of Information-Gathering Orders

See above discussion "Rules and  Restrictions Regarding Orders."

Limitations of Information-Gathering Orders	

As discussed previously, it is questionable whether orders may be used to obtain oral information.
Unlike warrants, orders also have little,  if any, power to prevent the recipient from destroying
information.   Nor can they  prevent the recipient from withholding information that the Agency
does not already know -- or may not be able  to know otherwise -- is in the recipient's possession.

While orders are inherently more powerful  than  AIS as to "what may be commanded," they are
frequently addressable to fewer persons than are AIS. The order powers of EPA frequently cannot
be exercised ubiquitously (as AIS powers frequently may be).  Instead, some orders powers are so
restricted  by statutory language that orders can be issued only to certain persons. For example, they
may be limited to "regulatees" (i.e., persons subject to one or more of the requirements of the statute
involved).  The language in  CWA Section 308 restricts EPA's issuance of orders under the  section
to an addressee who is an "owner or operator of any point source." Only CERCLA Section 104(e)(2)
authorizes issuance of information-gathering orders to a group of addressees equally as broad as the
typical group of permissible addressees for AIS.
Requests	

Another mechanism through which information  may be obtained from a person or facility is the
statutory device explicitly named a "request."  For example, RCRA Sections 3007 and 9005 contain
such authority.

The term  "request" is  misleading.   In  legal effect,  the statute authorizes  a "demand"  to  be
communicated to an addressee by EPA.  The "demand"  triggers a statutory duty on the addressee's
part to comply, and anyone who fails without sufficient cause to comply with a request ("demand")
can be subject to significant and substantial civil penalties.
                                           7-35

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The fundamental difference between requests and AIS is that conceptually, the request is only a
trigger of a legal duty directly imposed bv the statute on the request respondent, while an AIS (and
also an information-gathering order) itself is regarded as imposing the legal duty.  The distinction
is at least abstract, and may or may not have pragmatic consequences.

Requests have been used to obtain records, documents, reports, and explanations.  As with orders,
however, there have been few occasions as yet for EPA to use requests to obtain oral statements or
oral answers to questions.

Rules and Restrictions Regarding Requests	

The same rules and restrictions apply to requests as to orders.

Judicial Enforcement of Requests	

The same provisions for judicial enforcement apply to requests as to orders.

Limitations of Requests	

The same limitations apply to requests as to orders with respect to their ability to obtain oral
information, and their inability to prevent destruction or withholding of information.

Similarly, the range of permissible addressees for requests is typically narrower than the range of
addressees for AIS. Under RCRA Section 3007, the group of permissible addressees is any person
"...who generates, stores, treats, transports, disposes or otherwise handles or has handled  hazardous
wastes...." While that group is rather large,  it is not as large as the typical group of addressees to
whom AIS may be addressed.  AIS addressees typically include anyone believed to hold  relevant
information or  tangible items.


Summary	

Among EPA administrative investigative tools, AIS and orders are  the most readily interchangeable
and overlapping so that one can properly substitute partially for the other.  The request is a unique
device, but it has nearly the same legal effect and equivalent substitutional value as an order.

Both orders and requests typically carry pre-suit monetary civil penalties for disobedience.  An AIS
typically does not carry pre-suit penalties  for disobedience.

When an order or request commands more than what an AIS may traditionally command, then it is
more  likely that an enforcing  court may inquire into EPA's pre-issuance administrative record to
satisfy itself that the matters commanded in the order or request are not arbitrary, capricious, or an
abuse of discretion.

However, when an order or request commands nothing more than what an AIS could command of
the respondent, then the traditional AIS enforcement rules will be applied to enforce the order or
request.
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Forcible or non-consensual entry onto premises may not lawfully be made when a warrant  is
required, even if the premises possessor is presented with an AIS, order, or request commanding the
possessor to allow such an entry.

While a civil warrant may serve as  a partial substitute for an AIS, order, or request in limited
circumstances (e.g., in obtaining  possession of pre-existing items), no AIS, order, or request can
properly substitute fully for a civil warrant. The warrant is judicially issued on specified showings
and  it "confirms." "validates," and "credentializes," but  it does not command a possessor  to do
something, whereas the AIS and order both "command," and the request creates a "demand."
                                            7-37

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                               EXHIBIT 7-7

                 SUMMARY OF INFORMATION GATHERING TOOLS
LAW
Clean Air Act
Clean Water Act
Toxic Substances
Control Act
Resource
Conservation and
Recovery Act
Safe Drinking
Water Act
Comprehensive
Environmental
Response,
Compensation, and
Liability Act
Federal
Insecticide
Fungicide
Rodenticide Act
SUBPOENAS
CAA 321(c)
42 USC 762 l(c)
CWA 507(e)
33 USC 1367(e)
TSCA ll(c)
15 USC 2610(c)
RCRA 3008(b)
9006(b)
700 l(e)
42 USC 6928(b)
6991(e)(b)
697 l(e)
SDWA 1423(C)(8)
42 USC 300h-2(c)(8)
CERCLA
122(e)(3)(B)
42 USC
9622(e)(3XB)
None
ORDERS REQUESTS
CAA 114 303 CAA208
42 USC 7414 114
7603
CWA 308 504 CWA 308
33 USC 1318
1364
None None
RCRA 30 13 RCRA 3007
7003 9006
42 USC 6934 42 USC 6927
6973 6991 d
SDWA 1431 SDWA 1445
42 USC 300i 42 USC 300J-4
CERCLA 104(e) QUERY
(2)
106
42 USC
9604(e)(2)
9606
None None
ENTRY
RIGHTS OR
WARRANTS
CAA 114
42 USC 7414
CWA 308
33 USC 1318
TSCA 11 (a)
15 USC 2610(a)
RCRA 3007
3013
9006
42 USC 6927
6934
699 Id
SDWA 1445
42 USC 300
J-4
CERCLA
104(e)(4)
104(e)(6)
42 USC
9604(e)(4)
9604(E)(6)
FIFRA 9(a)
9(b)
7 USC 136g(a)
136g(b)
Noise Control Act  NCA  16(d)
                33 USC 4915(d)
None
None
None
                                   7-38

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                               EXHIBIT 7-8

                          Sample Cover Letter
                             UNITED STATES
                    ENVIRONMENTAL PROTECTION AGENCY
               Office of Pesticides and Toxic Substance*
                        Washington, D.C.  20460
Hr. T. K. H. Ptretog, Jr.
President
Flretog Industries, Inc.
36 Sunshine Drive
Clark, MA  02856

Dear Mr. Ptretog:

   An FYI submission filed by Flretog Industries, lac.  (dated October 31,
1982) to F.PA concerning toxiclty data on your product,  Heathergard LF-1,
raises * number of questions regarding Plretog Industries'  compliance
with Section 8(e) of the Toxic Substances Control Ace (TSCA).  To aid in
our investigation, we have enclosed a subpoena ducea tecum with this
letter.  This subpoena requirea submitting certain documents and
answering a number of question* concerning whether Plretog Industries,
Inc., has complied with Section 8(e) of TSCA.

   The enclosed subpoena doe* not require your attendance- at this time,
provided that the documents, and other Information requested, are pro-
duced at or before the date required by the subpoena.
                                    Sincerely,
                                    Joe A. Doe
                                    Assistant Administrator for
                                      Pesticides and Toxic Substances

Enclosure
                               7-39

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                             EXHIBIT 7-9

                      Saaple Subpoena Puces Tmcam
                          SUBPOENA PUCES TECUM

                        UNITED STATES OF AMERICA

                  U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. T. K. H. PI retog, Jr.
President
Flrtcog Industrie*. Inc.
36 Sunshine Drive
Clark, MA  02856

   To further the Environmental Protection Agency's  investigation of  your
company's compliance with Section 8(e)  of Che Toxic  Substances  Control
Act (TSCA), 7 U.S.C. i2607(e), you are  hereby required  to appear before
che Assistant Administrator for Pesticides and Toxic Substances in room
	, 401 M St., S.W., Washington, D.C., on 	,  at 	, and
co bring with you the reports, papers,  documents,  answers to  questions,
and other information requested in che  attached Specifications.

   If you so desire, you may have your  representative produce,  at the
time and place aforesaid** the items or  Information requested  in the
Specifications.

   If you consider any of the documents or other information  that you
submit in response to chit subpoena to  be confidential  business
Information, please mark each page containing such confidential business
information.  The mark may be che word  "confidential,"  or Che phrase
"proprietary information," or other similar marking.  If you  vlsh co  make
a claim of confidentiality for this information, you must do  so at this
time.  Any documents or other information not marked confidential will  be
available to the public.  That portion  of your response to the  subpoena
marked as confidential will be handled  In accordance with EPA'a public
information regulations (40 C.P.R. Part 2).

   Issued under the authority of IS U.S.C. f26LO(c), this 	day of
         19
                                      United States Environmental
                                        Protection Agency, by
                                      John A. Doe
                                      Assistant Administrator for
                                        Pesticides and Toxic Substances
Enclosure
                               7-40

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                          EXHIBIT 7-9  (Continued)
                             SPECIFICATIONS
I.  Instruction*

   I.  This subpoena covers all documents described below in the posses-
sion of Firetog Industries, Inc., and subject to its control or custody.

   2.  For the purpose of complying with this subpoena, the word "docu-
ment" means the original or a true, correct, and complete copy and all
nonidentical copies of any report, paper, note, letter, correspondence,
memorandum, study, data compilation, circular, work sheet, minutes, test
result, laboratory note or memorandum, analytic or other transcription
of information, whether written, typed, printed, recorded on tape, micro-
film, or other device, regardless of whether circulated within the com-
pany or to outsiders, regardless of whether generated within or without
the company, and regardless of whether in the possession of your company
or any agent acting in its behalf.

   3.  Each document submitted shall be clearly and precisely Identified
as to  Its title, author, date of preparation, and subject matter.

   4.  If neither the original nor a copy of any requested document is
currently in the possession or control of your company for any reason,
identify the document by date, title, subject matter, the name of indivi-
duals who prepared and received it and the name and address of the person
who currently has possession or control of that document.  If the docu-
ment no longer exists, explain why.  If the document has been destroyed,
identify the name of the individual who ordered it destroyed, when the
order was issued, and why.

   5.  The authority under which this subpoena is Issued, IS U.S.C.
S2610(c), authorises the Administrator to require answers to questions
as well ais the submittal of documents.  Answer all questions completely.
Where necessary, documents may be submitted to answer all or part of  any
questions asked In these Specifications.

II.  Information and Documents •aguested

   1.  With respect to Exhibits A, B, C, D,  and E, state:

       a)  When each of the reports was  received by Firetog
           Induatrlea, Inc.;

       b)  The individual  (or individuals) within Piretog
           Industries, Inc., who reviewed each of the  reports;

       c)  The title and primary responsibilities of  the
           individuals listed in l(b) as of the date when
           they reviewed the reports;
                                7-41

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                       EXHIBIT 7-9  (Continued)
    d)   The current title and primary responsibilities of the
        Individuals Hated in l(b); and

    e)   The dates when those Individuals listed in l(b) reviewed
        each of the exhibits.

2.  Submit any documents prepared or received by Firetog Industries,
    Inc., concerning Exhibits A, B, C, D, and E, or the subject
    matter of those reports.
                             7-42

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8 - Evidence

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                                        CHAPTER 8

                                        EVIDENCE
Collecting and documenting the evidence needed  to substantiate suspected violations  is a core
inspection activity.  Evidence is used to support the development of an enforcement case  as well as
to help the inspector prepare for and give testimony when required. This chapter focuses on assuring
that  the evidence collected  on an inspection will be admissible in a judicial proceeding.  Other
chapters in this guide address techniques for assessing compliance and provide detailed procedures
for evidence documentation.

Of course, not every inspection results in an enforcement case in which the inspector is called upon
to testify.  However, an understanding of the rules governing admissibility of evidence and the kind
of testimony the inspector might be expected to give will help to explain the need for adherence to
proper procedures in collecting and handling evidence. These procedures, described generally in the
second part  of this chapter and discussed in detail in Chapters  12, 13, 14, and 15, are designed to
assure the admissibility  of  evidence and  facilitate the  inspector's  ability  to testify  about it if
necessary. By following these procedures as a routine matter, the inspector ensures that the Agency's
options for  taking  the appropriate  enforcement action  against a violator  are  not limited  by a
procedural weakness. In  the event that litigation ensues, the Agency will be assured that important
evidence will not be excluded from consideration.

This chapter underscores the point made in Chapter 6 that the potential for enforcement through
litigation should be uppermost  in  the inspector's  mind in all inspection activities.  Where the
considerations and procedures set out in this chapter are applied, the inspector can be  relatively
certain that  the evidence obtained will stand up to the most rigorous  tests of  validity.  This is
important not only for administrative, civil, and criminal actions; this evidence may also be the basis
on which EPA undertakes further investigation,  issues other information-gathering documents, or
issues orders.
                                            8-1

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NOTES
  8-2

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                            8A  INTRODUCTION TO EVIDENCE
Definition and Types of Evidence
Evidence is the means or process by which any matter of fact that is being investigated (e.g., the
existence of a violation) may be established or disproved. It is also any information, or proof, which
clarifies or helps establish the truth of the fact or point in issue. The law of evidence embraces those
rules which determine which evidence is to be admitted or rejected in a hearing or trial and what
weight is to be given to evidence which is admitted.

There are five types of evidence:

     •   Testimonial - A person's reported sense impressions  and  the opinions the person formed
         based on them (e.g., the inspector's testimony).

     •   Real - The object, item or thing itself (e.g., contaminated dirt).

     •   Documentary - A "document" having significance and  effect due to its content (e.g., reports
         messages, logs, accounting ledgers, computer printouts, manuals, guidance, tape recordings).

     •   Demonstrative - Something other than the above which is  prepared or selected  to illustrate
         or otherwise make some relevant fact clearer or easier to understand (e.g., photographs,
         diagrams, maps, summaries, video tapes, models).

     •   Judicially noticed - Matters about which there could be no dispute and become evidence
         by virtue of their being so noticed by a judge (e.g., scientifically accepted testing devices,
         geographic  locations, matters of common knowledge).

During  the course of an inspection, inspectors may  make observations, conduct interviews, obtain
statements, review and copy records, take  physical  samples, take photographs, and write notes in
field logbooks.  The testimony of the inspector, the samples and photographs, the notes and reports,
and the  sample tags and chain-of-custody forms, may all become evidence, as described  by the first
four types of evidence above. It is primarily through  the testimony of the inspector that all of the
other types of evidence will be properly identified,  discussed,  and  introduced into evidence.

Though not necessarily associated with a specific violation, inspectors  also document information
relevant to establishing the legality of the inspection itself.  Field logbook notes  regarding entry
procedures, signed items such as required notices, entry warrants, etc., are evidence that the inspector
conducted a lawful inspection and had the  authority to collect the  evidence supporting  the alleged
violation(s). These matters are more thoroughly discussed in Chapter 7.

And as discussed in Chapter 6, inspectors should bear in mind that virtually every piece  of paper --
including field logbooks and notes -- associated with the inspection is likely to be seen  by the
opposing side as part of the discovery process. They will be used to prepare the defense and, if flaws
are found, may be used as evidence against the government's case. For this reason, it is essential that
such materials contain  facts only; no personal opinions or conclusions of law should be  included in
inspector notes or reports.
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Federal Rules of Evidence - The Hurdles
In Federal civil and criminal judicial proceedings, the admissibility of evidence is governed by the
Federal Rules of Evidence (FRE). While they apply only by analogy to administrative hearings, such
as those conducted by EPA administrative law judges, the concepts they represent  are basic and
helpful to the inspector's understanding of the evidentiary hurdles he or she must help surmount  in
order to get the products of the inspection admitted. One EPA attorney describes the  Federal Rules
of Evidence as "quality assurance for Truth."

The most general and principal tests which must be met for the admission of all types of evidence
are:  (1) authenticity; (2) relevance; and (3) foundation.

     •  Authenticity or identification means that the evidence must  be demonstrated to be what it
        is claimed to be (e.g.,  the sample taken during the inspection) (FRE Series 900).

     •  Relevance means essentially that the evidence must pertain to the fact in question (e.g., the
        violation), tending to make the existence of the fact either more or less probable than would
        be the case without the evidence (FRE Series 400).

     •  Foundation means essentially that preliminary evidence must  be presented first in sufficient
        detail to sustain a finding that the additional evidence is what the proponent says it is (e.g.,
        a witness' testimony clearly showing personal knowledge of the matter being testified to)
        (Rule 602).

Chapter 17B contains  a detailed discussion on preparing for and appearing as a witness.   The
remainder of this chapter focuses on issues associated with establishing the admissibility of all types
of evidence collected by the inspector.
Illustration of Evidence Concents	

The concepts of authenticity, relevance, and foundation can be illustrated by answering a question
such as:

     "Who cares if what you are holding is contaminated  dirt unless  you can  show  that
     particular dirt came from the particular site involved in this case, and not from somewhere
     else?"

     In the illustration, it is admissibility of the "gunk" in the sampling container that is at
     issue. Subject to their connection with the "gunk" all other evidence (e.g., the "gunk" test
     results) are then admissible.

The areas covered in admitting the evidence would not necessarily be presented in the exact order
of this illustration during testimony.
                                            8-4

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Discovery Conditions and Surroundings	

This might be a narrative about what activities were performed at the site, how the item in question
(e.g., the "gunk") was discovered, and the appearances of physical objects  in the immediate vicinity.
Aiding would be notations in the field logbook.

Discovery Location of the Item	
The item was collected at a particular place at a particular time.  Aiding would be photographs of
the area and exact sample site, complete description of the area and conditions (as noted in logbook).

     The inspector testifies that the container of "gunk" was picked up on the relevant date at
     the relevant site about 50 paces southwest of the office door, and that he has a photograph
     of the area taken at the time.  He also testifies that the "gunk" was oozing out of a large
     electrical capacitor which he also has a photograph of.

General Identity or Sameness	
The item has the same characteristics as the item the inspector  collected.   Aiding in positive
identification are some routine documentation procedures such as sample tags with the inspector's
signature and date; notations in field logbook regarding color, consistency, other sensory perceptions
about the sample.

     The inspector testifies that the initials and the date on the sample bottle are his and that
     he  put  them there;  he  notes  that the color and consistency  of the "gunk"  inside the
     container being offered as evidence are the same as he remembers from when he collected
     the sample. He testifies that there is less "gunk" in the container than he put in there,
     however.

Precautions to Assure Identity	
This would include a description of any measures, other than those already mentioned, that were
taken at the time to ensure later identification of the item. This might include such information as
a description of initiation of chain-of-custody procedures.

     The inspector testifies that after filling the container and initiating chain-of-custody, he
     kept it in his custody and carried and protected the sample, and gave it to the lab person
     later that day.  The inspector did not see the sample again until just before the hearing.

Present Conditions or Features Which Vary	

This would answer whether  there are any features or conditions about the item being offered as
evidence that vary from what was collected.

     As indicated, the inspector testifies that the exhibit appears to be the same container of
     "gunk" he collected  at the site on the  relevant date, but  that the amount of "gunk"  is
     presently less than what he put in the container.
                                             8-5

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Representativeness of Item
Establishes the relationship of the item offered as evidence to other items.  This testimony might
include a discussion of the sampling strategy employed to select the particular sample(s).

     The inspector testifies that there were 88 other large electrical capacitors at the same site
     on the relevant date which were also oozing "gunk" of the same color, viscosity, and odor.
     He took the same type of sample of the same amount of "gunk" from each using the same
     identifying precautions and marking procedures.

Connecting UP -- The Chain  of Custody	
This includes the meticulous process of showing the succession of persons who handled and/or had
access to the exhibit.

     The lab person testifies about how she received the previously admitted container from
     the inspector at the laboratory, and she, as an experienced chemist, used all  the EPA
     approved and other authoritative techniques to analyze the missing portion of the "gunk."
     She then describes how she took raw data notes of her analysis work, the printouts from
     the various machines she used (all initialed), and with the  "gunk"-filled container,  she
     locked them in her safe.  Only she has a key to the safe.

     She authenticates her notes and printouts properly and they are offered into evidence.
     Because the connection  of the  "gunk" to  the site has already been  established,  her
     testimony and documents regarding the test results are relevant and admissible as well.
     The Court is satisfied.

     If the Government has not  done so already, the photographs will be admitted as well as
     long as the inspector testified that they did "fairly and accurately" reflect what the "gunk"
     looked like on the date  in question  (thus  authenticating,  laying  the foundation, and
     showing the relevancy of these pieces of evidence as well).
                                            8-6

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                             8B DOCUMENTING EVIDENCE
The  preceding discussion explained the concept of authenticating evidence, demonstrating the
relevance of and laying the  foundation for  evidence, and  the  role that various documentation
procedures can play in assuring that evidence collected will be admissible in court. Through the
years,  EPA offices  have developed  standard  procedures  for  documenting  evidence collection
activities such as sample collection and handling, taking statements from facility personnel, copying
records, and taking photographs.

The general documentation procedures below  contain the basic elements that are needed to be able
to trace each particular piece  of evidence back to the relevant site, date, and conditions where and
when it was collected; the discussion also includes references to the relevant Rule under the Federal
Rules of Evidence.  More  specific procedures  are contained in  the chapters covering individual
aspects of the inspection (Chapter 12, Records Review; Chapter 13, Physical Samples; Chapter 14,
Interviews; Chapter 15, Observations and Illustrations).

There may be slight variations by EPA Region and/or program in how  particular steps in these
procedures are carried out, but the intent represented by each  step remains.  Understanding the
purpose behind  these procedures will aid inspectors in determining  how  to document  types of
evidence not covered here  and to acceptably  document evidence when, for some reason, routine
procedures cannot be followed exactly.
Federal Rules of Evidence - The Helpers	

The Federal Rules of Evidence (FRE) treat all evidence, other than real evidence (the "gunk"), as
statements, whether they be verbal (e.g., the testimony of the inspector), written (all documents,
reports, sample  tags, etc.),  or nonverbal conduct (gestures).   The  FRE  define "hearsay" as "a
statement, other than one made by the declarant while testifying at the trial or hearing,  offered in
evidence to prove the truth of the matter asserted." (FRE 801).   (In laymans's terms, Webster's
Dictionary defines hearsay evidence as:  "Evidence based not on a witness' personal knowledge but
on matters told him  by another.") The Rules then say that all hearsay is  not admissible;  and by
definition make prior statements of a witness or admissions by a party-opponent not hearsay. Were
the rules to stop there, virtually everything would be inadmissible.  As with many rules, it is the
exceptions to the rule which are, in effect, the rule.

The inspector's work product in  any given  case includes all written documentation  (field notes,
logbook, sample tags, chain-of-custody  forms, receipts,  reports), all items  taken from the  facility
inspected (including samples and documents), all recorded items (including photographs,  video, and
aural recordings), and the inspector's memory of the incident.  The following discussion explains
some of the hearsay exceptions which help the inspector tell his or her story through testimony and
documented evidence at trial.
                                            8-7

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The Inspector's Written Documentation
In order to ensure that the documents they create in the course of an inspection are admissible as
evidence later, the inspector must create  them routinely and contemporaneously with the events
being described.

Field Loebook	
The inspector's notes in field, preferably contained in a bound logbook, are the core of all inspection
activities. The logbook contains entry information (which demonstrates lawful entry) as well as notes
on  every aspect of the inspection correlated with evidence gathered at  the site such as physical
samples, interviews, photographs, and copies of documents.  (See also Chapter 15A.)

While the logbook should be a comprehensive roadmap to all that occurred during the inspection, it
need not duplicate all that is already contained on the sample tags or the chain-of-custody form, for
example. The entries should be concise but detailed enough to allow the inspector to remember what
was meant by the notation shortly thereafter when creating a narrative report, or months later when
the matter  may come  to trial.   As with inspection  reports, the entries  need to  be accurate and
objective, with no legal conclusions drawn.  The inspector should avoid noting his or her personal
opinions on matters not relevant to the inspection.

Inspection Report	
In the broadest terms, the inspection "report" includes all of the documents described above which
comprise the inspector's work product.  The "report" as used in the context  of this immediate
discussion is the narrative summary which expands on the details noted in the logbook and adds the
other relevant and important details which the inspector further remembers.

The report should be written as soon as possible after an inspection and be as thorough as possible.
As with logbooks, all information should be accurate, objective, relevant, and cover all major items.
The other documents of the inspection (e.g., photographs, chain-of-custody forms, notices, receipts)
should be  referenced (see  also Chapter  17A).   The  information should  be  based on first-hand
knowledge, or note specifically who or what  is the source of that information.  While it is advisable
to retain all the notes on which  the report is based, it is not  fatal to fail to do so except in some
criminal cases, and then depending on the nature of the information recorded. Certainly, logbooks
should be retained, if only  to bolster the  inspector's credibility and ability to recall accurately any
given point.

To the extent that the  inspector is expected  to draw conclusions about the compliance status of a
facility, it is recommended that these be set forth on a separate page from the report and addressed
to either the  Office of Regional Counsel or  the  inspector's supervisor, thus making it possible to
invoke the attorney-client or deliberative  process privileges in  an attempt to protect such documents
from disclosure.  Where possible, it is  important to maintain the inspector's duties to  include
detection, gathering, and documentation of the facts, rather than  making decisions about compliance
status or violations.  As explained in Chapter 19A,  the neutral, detached inspector has greater
credibility.
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The above recommendations are made regarding the inspector's documentation because some of the
most applicable  evidentiary rules require it.   The inspector  will review and  refresh his or  her
recollection with the case file in preparation for depositions or his or her testimony. If the case  file
is used in this way, the other side is entitled to obtain all that the inspector reviewed (FRE 612).
The other side can also introduce portions of these documents which relate to the  testimony of
the inspector, move to excise any portion not so related, and even cross-examine  the inspector about
the contents without necessarily showing the document to the inspector beforehand (FRE (613(a))).
Obviously, the inspector must bear these eventualities in mind when creating the documents.

Frequently,  the  inspector will  not  have a present recollection about the inspection even after
refreshing his or her recollection with the documents.  The logbook and report  themselves may be
admitted into  evidence in lieu of the inspector's testimony even if the inspector is present as long
as the proper foundation is laid.  FRE 803(5), Recorded Recollection, has the following criteria:

     •  The witness now has insufficient recollection;

     •  The document was made or adopted by the witness;

     •  The document was made when the witness' memory was fresh; and

     •  The document reflects knowledge correctly.

As the rule indicates, not only must  the information be accurate, it must also have been committed
to writing when the  inspector's memory was fresh  (which ensured accuracy).   The inspection
documents must  be created contemporaneously with, or shortly after the inspection.

Note that this rule allows for the documents to be "adopted." This means that the inspector, while
testifying, can rely on the documents others have created, as long as the above requirements are met.
Frequently,  this  is necessary when there are a number of inspectors involved in an inspection and
each one is responsible for only some of the documents.  To allow this aspect of the rule to be used,
the inspectors should  review for accuracy and affirm each  others' documents near in time to  the
events described.

Other hearsay exceptions helpful for admitting the  inspector's documentation is the Record of
Regulatory Conducted Activity, FRE 803(5), and the Business Record Exception,  FRE 803(6). These
rules allow admission of a document if it was:

     •  Made at or near the time;

     •  Made by, or from information transmitted by, a person with knowledge;

     •  Kept in the course of regularly conducted business activity; and

     •  The regular practice of that business to make such a document.

As with the "recorded recollection" exception, contemporaneous creation of the document is essential
and the document can be based on information provided by someone else. Unique to this rule is that
the documents must be kept in the regular course of the agency activity and it must be the regular
practice of the agency to create such logbooks and reports.  The inspector's own habits, agency
policy, and this and other training efforts would certainly help to meet these latter elements.

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In brief summary, in order to ensure that the inspector's documentation, including notes, logbooks,
and reports, is admissible, these documents should be accurate and based on someone's first-hand
knowledge.  They should be created contemporaneously with the inspection and as part of a routine
practice.  Deviation from  these guidelines is not fatal, but such deviation should be noted  and
explained as to why it does not make a difference.
Chain of Custody	

The purpose of chain of custody procedures is to be able to trace possession of a physical sample or
other physical evidence from the time it was obtained until it is introduced  into evidence in legal
proceedings.  Enforcement personnel must be able to demonstrate that none of the physical samples
involved has been tampered with or contaminated during collection, transit, storage, or analysis. As
discussed above, EPA must also show  that the sample is authentic and relevant.  While not essential
from  a  legal  standpoint, it is prudent to follow chain of custody procedures  for other physical
evidence, such as records and photographs.

To  document chain of custody, an  accurate  written record  must be  maintained  to trace the
possessions of each piece of evidence from the moment of collection to its introduction into evidence.
Elements of Custody
A sample or other evidence is in "custody" if:

     •   It is in the actual possession, control, and presence of the inspector;

     •   It is in his or her view;

     •   It is not in the inspector's presence, but is in a place of storage where only the inspector has
         access; or

     •   It is not in the inspector's  physical presence, but is in  a place of storage  and only the
         inspector and identified others have access.

If the integrity of the sample container sealing tags remain unbroken, it is not necessary to call every
individual with "custody" of the sample to demonstrate that it was not tampered with or contaminated
(unless, of course, certain methods of preservation, such as refrigeration, are necessary for analysis
of the sample).  The inspector's custody documents should reflect who was present during the various
stages in the chain in  order to call  as witnesses these other individuals, if necessary.
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Documenting Physical Samples for Evidence	

In order to create adequate documentation for a chain of custody, the following documents are
essential:

     •   Sample tag. The identifying tag should, at a minimum, include a sample number, the date,
         and the; sampler's signature or initials.

     •   Field logbook entry.  The inspector should note the time, location, and reasons for taking
         the sample, any identification number assigned;  any deviations from standard chain of
         custody or sampling procedures; observations about the sample that would aid identification.

     •   Chain of custody  record.  The chain of custody  record identifies each person who had
         custody of the sample from the time of the inspection until the enforcement proceeding.
         It includes bills of lading or other shipping receipts as appropriate.

     •   Receipt for samples. When as a program requirement or custom the facility owner/operator
         is given a receipt  for samples, the inspector's copy of the  receipt can aid in  sample
         authentication.

(See also Chapter 13.)

Overview of Chain of Custody Procedures	
While specific procedures may vary by Region and/or program, there are several basic procedures
involved in initiating and maintaining chain of custody. They are summarized below; more detailed
instructions are contained in chapters covering relevant inspection activities.

     1.  Establishing  Custody.   The inspector establishes sample (or other evidence) custody by
         sealing it with a seal that will readily show if it has been broken. The inspector writes his
         signature and the date on the sample seal in waterproof ink.

     2.  Preparing Sample (Evidence) Documentation. A major aspect of the chain of custody is the
         preparation and maintenance of written information describing the collection, shipment,
         and storage of the sample (evidence). Documentation includes the entries in the inspector's
         field logbook,  the seal, the chain of custody record, field sample data forms, shipping
         records, and any other relevant materials. The inspector prepares the initial documentation
         in the field and must ensure that the relationship between each physical sample and  the
         related documentation is clear, complete, and accurate.  Field logbook entries should include
         sample identification numbers and information about the collection of each sample so that
         any specifics can be traced back to the particular sample.

     3.  Ensuring Custody during Transit.  At a minimum, the chain  of custody record should
         reflect each person in custody of the sample and where it is stored while in  their custody.
         The logbook should be used to note any relevant additional information such as special care
         in storage (e.g., refrigeration) or any deviations from the custodian's  usual practices in
         handling samples in transit.
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        At any point that anyone in the chain notices that the seal is broken or that there is an
        irregularity with the accompanying documentation, that person should specifically note the
        problem on the custody forms and immediately contact those prior custodians to remedy
        the problem or determine whether the sample needs to be retaken.

        Upon arrival at the lab, the custodian should relinquish the samples to the lab technician
        and obtain their initials or name on the chain of custody form as receiving the samples, just
        as with anyone else in the chain.  If the lab assigns different numbers to each sample, these
        new corresponding numbers should be noted as well.

     4.  Special Considerations for Shipping. When shipping samples to the laboratory, the following
        procedures will assure that the chain of custody is maintained:

        •   Samples must be accompanied by the chain of custody record.  The originator (e.g., the
            inspector) should  keep a copy.

        •   If sent by common carrier, obtain a bill of lading.

        •   Include all receipts and shipping documents with the chain of custody documentation.

Applicable Rules of Evidence	

The two rules already discussed -- Recorded Recollection, FRE 803(5), and the Business Record
Exception, FRE 803(6) -- apply equally to the sample tags, chain of custody forms, and  any other
related documents, as they do to logbooks and reports. All of the previous discussion regarding what
not to put in the inspector's notes and reports and the need to  create the documents routinely and
contemporaneously applies here with equal force.  If the proper foundation is laid, the tags and chain
forms will be able to be used by all those involved in the chain to testify about where and how the
sample was taken, how it was sealed, the details of how it was stored and transported to the lab, and
finally when and to whom it was delivered  at the lab.  The lab personnel will pick up the story
from there.  If the requirements of the evidentiary rules are met, the inspector will be able to testify
about all of this detail  using the documents without necessarily having any present recollection of
the details and events described. Create the documents with this in mind.

One additional rule which is particularly applicable to sampling and chain of custody, is FRE 406,
Habit: Routine Practice. This rule will allow an inspector to testify about the habits of an inspector
or of the routine practice of an organization in order to  prove  that conduct of the inspector or
organization at a particular time was in conformity with the habit or practice.  This rule allows the
evidence of habit to be admitted without having to have an eyewitness to an inspection testify as to
how the inspection  was conducted.

The elements of  this rule more firmly establish the need for each inspector to perform functions and
create  documents  routinely.   This  inspector training effort,  other  training  and experience the
inspector has had, and Agency policy help  define what the "routine practice" of this  Agency  is
regarding taking samples and establishing chains of custody. How each inspector digests this material
and conducts him-  or herself in the field defines the "habit" or routine practice of that inspector.
Sampling and creating  documents routinely and  noting when there  are deviations from  the usual
practice will ensure the admissibility of this type of evidence.
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While testifying the inspector will be asked, for example, how he or she took the sample in question.
Given the time lapse and the number of samples and number of inspections performed between the
sampling in question and the testifying, the inspector probably will not have a present memory of
taking the particular sample. The inspector will testify about his or her other training, experience,
and habits in taking the water or wipe sample in question according  to standard procedures, with
details about where within the medium the sample was taken  and why.  In the absence of any
notations to the contrary, the inspector can say, even though he or she cannot remember specifically,
that standard procedures must have been followed  because had there  been deviations, there would
have been  notations to that effect.  If there were such notations,  then the inspector would testify
about the different method  as his/her memory has been refreshed by the note or as  that note is
admissible pursuant to FRE 803(5) or (6).  Details about location, consistency, odor, etc., should be
in the logbook or report and would also either refresh the recollection, or be admitted as a past
recollection recorded or regular business record exception.

As stated before, deviations  from the  prescribed methods will not damage the case as long as they
are still technically sound and justifiable. What  can be fatal  is not to do things routinely and
contemporaneously  and to not specifically note where  there are any deviations.

Other Suggestions Regarding Chain of Custody

The suggestions  which follow  will help to assure that  sampling  and chain of custody activities go
smoothly and result in admissible evidence.

     •  Only as many physical samples as are actually needed should be collected.  Preferably, the
        quantity and location  of samples to be taken should be established in advance as part of the
        inspection plan.

     •  If a team of inspectors is taking samples at a site, it is essential that an individual inspector
        is clearly  tied to taking a particular  sample.  If possible, assignments for taking samples
        should be made in advance and each member should  stay with that assignment, unless the
        field notes specifically indicate a change in assignment.  There can be nothing worse than
        having several inspectors testify that they  know that one of the inspection team must have
        taken the  sample, but they cannot remember,  and the records do not reflect, who that
        person is.

     •  If there are any errors in  the forms, cross-outs should  be made by a single line and then
        initialed and dated.

     •  The inspector should be sure to obtain the  signature of the next person in the chain, on the
        appropriate line, before relinquishing custody.  Only the person actually involved in that
        part of the chain should sign.  As indicated earlier, each person in the chain should check
        the integrity of the seal and cross-check the accompanying documents.

     •  The number of people in  a custody chain  should be minimized.
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Photographs and Other Demonstrative Evidence
Chain of custody procedures do not apply to photographs (unless the camera is activated and captures
an image without anyone present to view the scene being photographed). All that the inspector must
say to lay the appropriate foundation for the relevance and admissibility of a photograph is that it
does "fairly and accurately" represent the scene on the data in question. This is true whether or not
that inspector testifying actually held the camera.

In order to ensure that this is possible, the inspector should create entries in the field logbook,
including an identifying number  for each picture, what is seen,  the  date and time, the specific
location on the premises, and other descriptive information. Use of databack cameras can help with
this documentation.  The photos should be processed quickly and immediately viewed in order to
correlate the entries in the logbook with the individual photos.  Failure to correlate the photos near
in time to their exposure could affect the inspector's ability to lay the proper foundation later. The
front of the photograph should not be defaced; all information should be written on the back or in
attached documents.

Other demonstrative  evidence, for example,  maps and diagrams,  is admissible with the  same
foundation as photographs: "Does this  fairly and accurately  reflect what you saw at the facility?"
The efforts and  imagination of both the lawyer and  the inspector should combine to create such
demonstrative evidence in order to help  recreate in the courtroom what happened at the facility. The
inspector  should gather and document evidence  in the field with the possible use of  it  as
demonstrative  evidence in mind.

Where the evidence in a case is particularly complex or tediously voluminous, the inspector may be
called upon to create and testify about a chart, calculation, or summary of the evidence as provided
for by FRE 1006, Summaries.  The inspector would be called upon to testify about the foundation
material he or she examined, how it was  summarized,  and then identify and explain the  exhibit
offered  in evidence which is the  summary.  Again, the possibility that  the inspector can present
information in summary should be considered by the inspector in the field, as it may affect how
certain evidence is gathered and documented.
Statements of Individuals as Evidence	

The details of how to document statements is covered in Chapter 14; this section emphasizes the
importance of statements as evidence against the regulated entity.  Statements carry as much weight
and are as persuasive (if not more so) as the samples and documents gathered at the facility.

The primary rule regarding statements, Admission by Party-Opponent,  FRE 801(d)(2),  is not an
exception to hearsay, but actually defines the following as not hearsay:

     The statement is offered against a party and is:

     •  The party's own statement;

     •  The party has manifested an adoption or belief in its truth;

     •  By a person authorized by the party concerning the subject;

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     •  By the party's agent concerning a matter within the scope of the agency or employment,
        made during the existence of the relationship; or

     •  By a co-conspirator of a party during the course and in furtherance of the conspiracy.

In short, almost anything said by anyone associated with the facility being inspected is admissible
evidence against that individual or the facility in an action by EPA against either.  As the details of
the rule indicate, it is important for the inspector to gather enough information from or about the
person speaking in order to establish the person's relationship with the facility.

If the statement made by someone is so against that person's interest, either pecuniary or proprietary,
that it tends to expose the speaker to civil or criminal liability, and is such that a reasonable person
would not have made such a statement unless they believed it to be true, that statement is admissible
against the individual or the facility without more needing to be shown. (FRE 804(b)(3), Statement
Against Interest.)

Even if statements documented by the inspector are not directly  admissible as evidence, they are
important for locking the speaker into a position on any given subject.  Should the declarant later
testify at  odds with what was said to the  inspector, the declarant can be impeached (credibility
challenged) by being questioned about what was said to the inspector and then have the inspector
take the stand and testify regarding what was said.  (FRE 613, Prior Statements of Witnesses.)

Finally, if oral statements are not used as evidence, they are extremely useful in developing leads and
making cases.  In sum, ask questions and get as much information as  possible from individuals
associated with the facility.
Documenting Records from the Inspected Facility	

"Records" can include documents, reports, receipts, messages, notes, phone logs, printed manuals,
monitoring  and  inspection  logs,  accounting  ledgers,  computer  printouts,  tape  recordings,
photographs, etc.  All of these,  under the  rules of evidence, can be "statements" and therefore
admissible under the rules just  discussed.   (FRE 801(d)(2), 804(b)(3), and 613.)   If  a proper
foundation is laid, they may also be admissible under the business record exception (FRE 803(6)).
Finally, the absence of records that should be present is what may be most important, and that fact
is admissible under FRE 803(7).

The subject of records review is more thoroughly discussed in Chapter 12.  Suffice it to say here that
the inspector may take, copy, seize, take photographs of, or dictate the  contents of the facility's
records as authorized by the  statute(s) under  which the inspection is being conducted.  If the
inspector feels that particularly incriminating records are about to be destroyed, the inspector should
seize them and the Agency will worry about their admissibility at a later date.

To  authenticate such evidence, the inspector will need to be able to show, at a minimum, that the
evidence in question was gathered during the particular inspection and demonstrate the  records'
authorship, location, and distribution.
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If one recalls the discussion regarding statements (and therefore documents as statements), the ability
of the inspector to gather evidence  about who authored the document, where copies of it were
located within the facility,  and to whom it was distributed, cannot  be overemphasized.  Where
questions of personal liability arise in a given case, particularly criminal, being able to show intent
and knowledge through the facility's own documents could be essential.

Ideally, the inspector will also be able to demonstrate the integrity of the evidence, that is, that steps
were taken to safeguard it between the time of the inspection and the enforcement proceeding.

     •  All evidence tvoes. The logbook should always contain notes describing the exact source
        of the evidence (e.g., the second file cabinet left of the door, third drawer from the top)
        and the reason it was collected. Any identifying numbers or marks that the inspector placed
        on the materials should also be noted so they can be traced back.  (See also Chapter 15A.)

     •  Copies of records. "Copies" of records include photocopies, close-up photographs of records
        or computer screens, or "hard copies" of computerized information.  They should be dated
        and initialed by the inspector and assigned an identifying number that is noted in the field
        logbook.   The facility may be given a  receipt for  the  copies; this can also help
        authentication. Inspectors can also place documents in an envelope, seal the envelope with
        an official seal, and prepare a chain of  custody form to begin chain of custody procedures.
        (See also Chapter 12A.)
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9 - Inspection Planning

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                                        CHAPTER 9

                    PRE-INSPECTION PLANNING AND PREPARATION
A good inspection begins with planning.  Indeed, more time should generally be spent on planning
the inspection than on conducting it.  Planning is the thought process by which the inspector
identifies all activities relating to the inspection from its objective (purpose) through execution
(actual conduct) and follow-through.  By knowing "why" the facility is being inspected, "what" should
be looked for and how it will be found, and "where" attention should be focused, the inspector will
make the most efficient use of field time and ensure that the appropriate information for  subsequent
compliance or enforcement purposes is collected.

By the time the inspector gets to the field, he or she should:

     •   Have a clear objective of what accomplishments are expected from the inspection so that
         any contingencies once in the field are readily adapted to.

     •   Know the applicable program regulations, compliance history, and physical site layout in
         order to clearly define the scope of activities the inspector will undertake at the facility.

     •   Know the Standard Operating Procedures (SOPs) for the type of inspection activities to be
         conducted, and have the right equipment and material for conducting the inspection and
         collecting, preserving, and documenting samples and other evidence.

     •   Know the safety plan for protecting  all members of the inspection team from potential
         hazards or harmful exposures on site.

This chapter will describe the elements and procedures that go into pre-inspection planning, both
those related to general field activity and the facilities inspection itself.  It will concentrate on  the
"why" and "what" of pre-inspection planning; detailed discussion of the "how to's" of some of the key
elements of planning (e.g., how to develop a quality assurance plan for samples) will be found in
specific chapters on these  subjects.

EPA inspections are generally carried out either by personnel assigned to Regional program divisions
or to Environmental Services Divisions (ESDs); some inspections are also carried out  by Headquarters
personnel. The program division/ESD mix varies from Region to Region; as a result, procedures for
preparing for inspections also vary. The material in this chapter has been developed to  be  broadly
applicable. Inspectors should, however, familiarize themselves with the specific procedures relevant
to their organizations.

Pre-inspection preparation is an essential element of conducting high-quality inspections.  Proper
planning and  preparation are necessary  to  ensure that  an inspection  is conducted  smoothly,
efficiently, and professionally.
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Thorough pre-inspection planning should accomplish the following purposes:

     •   Ensure that the inspection is properly focused.

     •   Provide a systematic framework for comparing a facility's practices against applicable EPA
         standards.

     •   Develop the most efficient and effective approach for inspection efforts given available
         resources (e.g., manpower, time, etc.).

     •   Identify the protocols for the inspection (i.e., technical, including quality assurance and
         safety).

     •   Determine the team task assignments in the field when more than one inspector will be on-
         site, and/or delineate and coordinate the role of the EPA inspector vis-a-vis the State
         inspection team during an oversight inspection.

     •   Ensure the availability and preparedness of equipment and documents necessary  for on-
         site activities.

The  remainder of this chapter details (1) responsibilities of the inspection team; (2) planning the
inspection, including identifying the objectives and scope, reviewing records, advance  notification
of facilities, and the tasks associated with the development of a written Inspection Plan; and (3) the
equipment and document  preparation that should occur prior to going on site.
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                   9A RESPONSIBILITIES OF THE INSPECTION TEAM
The primary role of an inspector is to gather information that can be used to determine compliance
with permit conditions, applicable regulations, and other requirements. The inspector also has a role
in enforcement case development and  litigation support, and in permit development efforts.  To
fulfill these multiple roles, inspection  personnel must know and abide by  the legal  requirements
governing inspections, procedures for effective inspection and collection of evidence, accepted safety
practices, and quality assurance standards.

This section first discusses the responsibilities  of all  inspectors, whether they are performing an
inspection independently, serving as a member  of an inspection team, or are leading an inspection
team.  This is followed  by a discussion of the specific tasks that an inspection  team leader or
inspector conducting an inspection independently must perform.
Inspector Responsibilities
Legal Requirements
Since inspectors directly represent the Agency to members of a regulated community, it is essential
that EPA personnel carefully abide  by the legal and regulatory requirements determining program
operations. Inspectors should be familiar with and observe all of the regulations associated with their
respective  inspection protocols.  Further, inspectors must know and uphold the specific legal
requirements that have been established for inspections, including:

     •   Presentation of proper credentials.

     •   Presentation of required notices and receipts.

     •   Proper handling of confidential business information.

Evidence Gathering	

Inspectors must be familiar with general evidence gathering techniques. Since the government's case
in a civil or criminal prosecution depends on  the evidence collected during  an inspection, it is
imperative that each inspector keep detailed records in a field logbook for each inspection. These
data will serve as an  aid in preparing the  Inspection Report,  in  determining the appropriate
enforcement response, and in giving testimony in an enforcement case.
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In particular, inspectors must know how to:

     •  Substantiate facts with items of evidence, including samples, photographs, document copies,
        statements from witnesses, and personal observations.

     •  Evaluate  what  evidence  is  necessary  to establish  compliance  or,  in the  event  of
        noncompliance, to support enforcement actions.

     •  Preserve the chain of custody.

     •  Collect and preserve evidence in a manner that will be incontestable in legal proceedings.

     •  Write clear, objective, and informative Inspection Reports.

     •  Testify in court and administrative hearings.

Safety	

The inspection of environmentally regulated facilities always poses a certain degree of risk. To avoid
unnecessary health and safety  risks, the inspector  and his  or  her first-line supervisor should  be
familiar with all safety guidance and practices.  The inspector must have completed the EPA health
and safety training requirements that are in place for all EPA personnel performing inspections. As
a general rule, however, EPA should employ safety precautions that are used by the facility personnel
at a minimum, but always follow EPA safety requirements if they are  more stringent.

In addition, inspectors should:

     •  Use safety equipment in accordance with guidance received and labeling  instructions.

     •  Maintain safety equipment in good condition  and proper working order.

     •  Dress appropriately for the particular  activity, and wear appropriate protective clothing.

     •  Use any safety equipment customary in the establishment being inspected (e.g., hard hat
        or safety  glasses).

Quality Assurance	
The inspector must understand the basic elements of the Agency's quality assurance policy and must
assume primary responsibility for ensuring the quality of compliance inspection data.  While other
organizational units play an important role in quality assurance, it is the inspector who must ensure
that all data introduced into an inspection file are complete, accurate, and representative of existing
conditions.  To help the inspector meet these responsibilities,  Regional offices have established
quality assurance plans that identify individual responsibilities and document detailed procedures.

The objective of a quality assurance plan is to establish standards that will guarantee that inspection
data meet the requirements of all users.  Many elements of quality assurance plans are incorporated
directly into the basic  inspection procedures and may  not be specifically identified as  quality
assurance techniques.
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 The inspector must be  aware that following  established inspection procedures is critical  to the
 inspection program. These procedures have been developed to reflect the following quality assurance
 elements.  These elements will be discussed in more detail in Chapter 13, "Physical Sampling."

      •  Valid data collection.

      •  Use of approved standard methods.

      •  Control of service, equipment, and supplies.

      •  Quality analytical techniques.

      •  Standard data handling and reporting.


 Independent Inspector/Team Leader Responsibilities	

 Depending on the scope and complexity of the  inspection,  a single inspector may be assigned  to
 conduct the inspection independently or an inspection team  involving two or more inspectors may
 conduct the inspection.  In the latter case, one person should be assigned the responsibility of team
 leader.

 While a team leaider must perform additional coordinating responsibilities, the independent inspector
 and team leader have comparable responsibilities. Each serves as the primary contact for a specific
 assigned inspection and has overall responsibility for the successful conduct of the inspection, for
 analyzing  and presenting the findings of the inspection in the inspection report, and for defending
. the findings.

 The  independent inspector or team  leader must exercise leadership in  four interrelated areas:
 coordination, communications,  planning, and administrative  matters.   While not  all of these
 responsibilities come into play prior to going on-site, they are included here for conceptual clarity
 and to provide an overview of the responsibilities  of those who lead or independently conduct
 inspections.

 Coordination	
 The independent inspector or team leader is responsible for assuring that the inspection is properly
 coordinated.

      •   Internal coordination of EPA inspection team. The extent of available manpower impacts
          the  on-site activities  that are  realistically achievable in a given  period  of  time and,
          therefore, is critical information for effectively shaping the inspection plan.  Although
          many inspections are performed by  a single inspector, if the inspection is a team effort,
          team leadership entails management decision-making with respect to task assignments. Such
          delegation of responsibility is crucial to ensuring that  each individual  inspector has a
          specific field responsibility and that, taken together, making task assignments addresses all
          of the inspection objectives.  Once tasks have been assigned, the team leader should hold
          a briefing with all team members.  At that time, general aspects  of the inspection (e.g., test
          methods,  chain of custody procedures, legal aspects, safety requirements, document control,
          etc.) can  be presented, together with individual  task assignments. This will provide each
          individual with an understanding of  his or her role, as compared to the roles of other team
          members, and will contribute  to an efficiently coordinated group effort.

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         Other coordination. Depending on the purpose, scope, and complexity of the inspection,
         coordination may also be needed with the Regional Counsel, program personnel contractors,
         EPA or contractor laboratory personnel, State  and local agency personnel,  and/or the
         Department of Justice.

         External  coordination for  oversight  inspections.    For an  oversight  inspection,  the
         independent inspector or team leader should coordinate with participating State personnel
         to establish what role each  entity will play.  At a minimum, such coordination should
         determine whether EPA inspector personnel will (a) serve as observers to a State inspection;
         (b) jointly participate  in conducting inspection activities, and if so, which activities EPA
         personnel will undertake; or (c) conduct an inspection independent of State personnel.
Communication
In addition to the communication required for effective coordination of inspection participants, all
other communications with Regional, State, and local authorities; facility officials;  the public; and
the news media (i.e., press, radio, television, etc.) are coordinated by the independent inspector or
team  leader.  Requests for information relating to an enforcement investigation that are received
from  facility officials  or third parties are also to be  referred to the independent inspector or  team
leader or an assistant designated by the leader.

Planning	
The independent inspector or team leader has overall responsibility for planning the inspection and
for preparation of the  written inspection plan.  A detailed discussion of the inspection plan is
presented in Chapter 9E; additional planning requirements for sampling inspections are discussed
in Chapter 13.  An overview of the relevant tasks follows:

     •   Determining the scope/objectives of the inspection and obtaining the necessary background
         information from the requestor (Regional program office,  Headquarters, etc.) and other
         relevant technical, legal,  safety, and/or administrative staff.

     •   Reviewing the applicable Agency records.

     •   Handling administrative and logistical matters.

     •   Detailing the inspection activities and field techniques.

     •   Preparing required sampling and QA/QC plans and safety plans.

The independent inspector or team leader is responsible for ensuring that draft inspection plans are
provided  for review in accordance with his  or her organizational peer  review policy and that
information copies are distributed to all relevant offices (e.g., Regional program staff, laboratory,
State regulatory agency).
                                             9-6

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Field Activities
The independent inspector or team leader has overall responsibility for determining that all field
activities are performed expeditiously and that inspection objectives are met.  While on-site, he or
she is responsible for seeing that all activities described in the inspection plan, as well as any others
required to fully perform a high-quality, safe inspection (such as use of appropriate safety equipment
and of chain of custody and document control procedures for sampling, flow monitoring, analyses,
recordkeeping, etc.) are carried out. Following completion of the field activities, he or she should
account for all field  documentation, such as field logbooks, sample  tags,  and chain of custody
records. These should be verified as complete to ensure that, in the event that an inspection results
in an enforcement action, the Agency's options against a violator will not be limited by a procedural
weakness.

Report Writing	
The independent inspector prepares the inspection report.  The team leader, in cooperation with
other personnel, will develop an outline and determine writing assignments for the Inspection Report.
Quality,  content, and  the ability to substantiate and defend inspection findings are the critical
requirements for report preparation, which is described in detail in Chapter 17A. Team leaders are
responsible for ensuring that all reports from their team satisfy these objectives.

Administrative Matters	
Administrative responsibilities include seeing that resource  requirements are estimated and that
necessary action documents, such as petty cash and procurement requests, and timekeeping records,
as described below, are completed.  (See also Chapter 10.)

     •   Petty  cash  and procurement requests.  In order to avoid emergency  requests,  offices
         participating  in  an inspection should submit required purchase requisitions, allowing
         sufficient time for approval/action prior to fieldwork.  The independent inspector or team
         leader is responsible for determining petty cash needs for the inspection and also for
         ensuring that proper receipts are retained as necessary for receiving credit for petty cash
         expenditures.  In  the  case  of a team  inspection,  the project leader  designates  those
         individuals who will receive petty cash.  When appropriate, the independent inspector or
         team leader may also arrange to use purchase orders in the field.

     •   Travel.   The independent inspector or  team leader is responsible  for ensuring that all
         necessary travel arrangements are made.

     •   Timekeeping.  The team leader is expected to instruct personnel on the procedures for
         completion and submission  of time  records. The  leader should also certify that  Time
         Reports  completed by field  personnel  correctly  report regular  time, overtime, and
         compensatory  hours.   Familiarity  with the Fair  Labor Standards Act  and  the  EPA
         Administration Manual, as it pertains to overtime, holiday and hazardous duty pay, and
         compensatory hours, will prepare project leaders for this responsibility.
                                            9-7

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NOTES
  9-8

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                  9B DEFINING INSPECTION SCOPE AND OBJECTIVES
An initial step in developing an effective plan for an inspection is to identify  the purpose and
objectives (including data quality objectives) of the effort.  Inspectors need to know "why" they are
performing an inspection in order to properly focus their on-site activities.

Cognizant EPA personnel should be able to inform the inspector  as to the  reason  for inspection:
routine, "for cause," case development support, or follow-up. Knowing the reason for inspection will
permit the independent inspector or team leader to properly define its scope. For example, if it is
a "for cause" inspection, the scope of the inspection should focus around the suspected violations and
associated areas.   It is important for inspectors  to probe, if  necessary, to  clarify the  scope and
objectives. Inspections will be most productive if those who wish the inspection to be performed
have  fully communicated their  needs and expectations in advance so that  the inspector and the
requester understand each other.

Specific inspection objectives can be determined through discussion with program managers and/or
legal personnel.  If the purpose of the inspection is to collect evidence for a case, consultation with
case attorneys is essential.

Once  the  inspection  objectives  have been identified so that the inspector  can state  what the
inspection is to accomplish and how the information is to be used, a general definition of the scope
can be defined as a "working" understanding of the boundaries/limits of inspection activities.  The
statement  of the scope can be further refined and included as part of the written Inspection  Plan,
but it is useful to have a "working" definition of the inspection scope for undertaking a focused
review of Agency records/files.

Since  each facility may  be subject to multiple regulations, it is virtually impossible to assess its
compliance with the total range of applicable requirements.  Even the specific requirements of a
single regulation  may number in the hundreds.  Therefore,  it is necessary to  make reasonable
judgments about what can actually be accomplished on-site. A clear definition of scope pinpoints
exactly what areas are to be included, and therefore enhances the success of  the inspection process
by providing the focus for other planning activities (e.g., Agency record review and preparation of
relevant field equipment) and for on-site activities.

The first step in  developing  an  effective definition of scope  for an inspection is to identify the
functional areas; to be covered.  Typically,  this can be accomplished  through a restatement of
program objectives and annual priorities, together with the reason  the facility was included in the
inspection schedule (i.e., routine, "for cause," case development support, or follow-up).  In making
a determination of the functional areas to be included in the scope, it is important to clearly define
the terms and to specifically delimit the boundaries or levels of inspection, as follows:

     •  Definition of terms. State the terms as explicitly as possible, so that they actually serve as
        "directional signals" or "operational descriptions" of what needs to be  addressed.   For
        example, if the scope will include solid and hazardous waste management,  define exactly
        what that entails. Do you intend to include non-hazardous solid waste?  Do  you mean
        hazardous waste, or are you really focusing on hazardous materials and  waste? Will the
        scope cover all statutes including hazardous waste requirements, or only those requirements
        subsumed under the Resource Conservation and Recovery Act (RCRA)?
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     •  Delimit the boundaries.  When a facility is selected for an inspection (regardless of the
        reason), the degree of complexity of the inspection must be determined.  Inspections can
        address different levels of detail, ranging from a "records review only" to a walk-through
        to a more detailed assessment, including observation and some sampling, or a very thorough
        effort, including observations, records review, interviews, and extensive sampling.

        The degree of complexity or level of inspection should reflect both the objectives of the
        inspection and the complexity of the facility and its compliance history, as well as time and
        manpower resources  available for  performing on-site activities.  Determination  of the
        boundaries of the inspection should also distinguish between on-site and off-site activities.
        For example,  if hazardous waste management is an included functional area, how far will
        the inspection extend in  determining the disposition of the facility's hazardous waste?

Once the scope has  been defined,  the next step is to identify the specific assessment topics that the
inspection will include within each functional area.  Frequently such topics  can be characterized as
the major regulatory requirements.  For example:

     •  Within the area of hazardous waste management, assessment topics might include:

            Manifest system.
        -   Contingency plan and emergency  procedures.
            Waste characterization.

     •  Within the area of toxic  substance management, assessment topics  might include:

            Recordkeeping system.
            PCB control system.
        -   Employee training.

     •  Within the area of wastewater management, assessment topics might include:

        -   Control and treatment system.
        -   Self-monitoring laboratory procedures.
            Best Management Practices (BMP) plan.

     •  Within the area of air pollution management, assessment topics might include:

            Operating conditions.
            Source compliance testing.
            Maintenance procedures.

At  this stage, keep an open mind and list all of the potentially significant topics that may be
applicable given the scope. Note that a specific item identified as a relevant topic early  on may not
be justified for inclusion throughout the inspection process.  For example, as planning proceeds,
methodological considerations  might shift the focus, or once on-site, a finding in the  field might
dictate exclusion of an originally  considered topic.

Identification of the assessment topics should identify 10 or 12 subjects upon which planning efforts
can focus.  The key to successful  planning is to turn the assessment topics into questions and then
to determine the most efficient and effective approaches for investigating those questions.

                                            9-10

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                           9C REVIEWING AGENCY RECORDS
A focused reviesw of records in the Agency's files relating to a facility is essential to pre-inspection
preparation and to the overall success of compliance inspection efforts.  Such a review will save time
and minimize inconvenience during an inspection by not requiring examination of information that
has previously been  made available.   The review  will also acquaint the  inspector with  the
requirements that apply to the site, as well as important background information, such as facility
operations and compliance history.   Information relevant  to the upcoming inspection can be
abstracted from these files and  may be documented  in the written Inspection Plan.  While this
chapter will concentrate on written material available in the files, the review process should also
include interviewing Agency/Regional personnel who are familiar with the facility to be inspected.

In general, review of Agency records will enable inspectors to:

     •   Become familiar  with the facility type, size, and operations.

     «   Discover inadequacies, inconsistencies, or voids in the information, thus determining the
         need to request additional information from the facility.

     «   Minimize inconvenience to the facility personnel or unnecessary use of on-site time by not
         requesting information already provided  to the Agency.

     •   Clarify technical and legal issues before entry.

     •   Develop an appropriate Inspection Plan that documents this information and applies it to
         shaping a methodological design for the most efficient use of inspection time and manpower
         resources.
Review Considerations;  What to Review and Why	

The following documents and types of information can be found in Agency/Regional files and may
be useful in planning time and resource allocation, selecting  appropriate field techniques, and
preparing documents and equipment.

     •   General Facility Information. General facility information may include:

            Maps  showing facility location, geographic features, and relationship to surrounding
            areas.

            /serial photographs.

            Names, titles, and phone  numbers of responsible officials or facility representatives.

            Any special entry requirements.

            Past, present, and future  process operations and production levels.

                                           9-11

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        -   Safety equipment requirements.

        -   Control and other relevant equipment.

        -   Descriptions of the facility's recordkeeping and filing systems.

This type of information is relevant for addressing several issues, for example:

        -   The   facility  location  has  a  bearing   on  time  scheduling  and  transportation
            arrangements/costs for the inspection.

            Geographical features may help determine physical sampling plans.

            Personnel and associated responsibilities can be used to determine who to interview with
            respect  to certain issues; e.g.,  who is responsible for training employees or for self-
            monitoring data/reports?

            Entry requirements or prior history of refusal to allow entry need  to be handled before
            going on-site; e.g., do you need to get a warrant?

        -   Other information shapes the inspection, such as what safety equipment EPA inspectors
            must use on-site or what kinds of equipment and recordkeeping systems are in use that
            might be inspected.

     •  Permits. Permit Applications, and Special Exemptions from Requirements. Permits provide
        information, on the limitations, requirements, and restrictions applicable to discharges,
        emissions, and operations; compliance schedules; and monitoring, analytical, and reporting
        requirements.  Applications provide technical information on facility  size, layout, and
        location  of pollutant sources;  treatment  and control  practices;  contingency  plans and
        emergency procedures; and pollutant characterization types, amounts, and points/locations
        of discharge or emission. Special exemptions from requirements may have been granted by
        EPA (or  the State);  in granting  the exemption,  EPA (or the State) may have  placed
        additional requirements on the facility.  Be certain that the permit is  the most current one
        for the facility.

        This information is critical to orienting the inspector to what to look for on-site, given the
        priorities  established within  the  scope of  the  inspection;  for identifying  the major
        requirements against which the inspector should review the facility's operations; and for
        planning the most effective use of time and manpower resources.

     •  Prior Inspection Records and Reports on Enforcement Proceedings.  The following types
        of information may be available:

            Compliance history, including reports, follow-up studies, findings, and remedial action.

            Past conditions of noncompliance.

            Previous enforcement actions.
                                           9-12

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            Pending enforcement actions, compliance schedules, and/or variances.

        Special note should be made of pending enforcement actions, compliance schedules, and any
        violations observed  in  previous inspections so  the  facility can be  checked for current
        compliance in those  areas where a history of noncompliance has been documented.

     •  Self-Monitoring, and Other Reports Prepared bv the Facility. Inspectors should review
        these documents and note any discrepancies with inspection records  and reports, permits,
        or other information. If information is not clearly presented or if any discrepancies exist,
        the inspector may decide to request additional information from the facility or may pay
        particular attention to such items during the upcoming inspection as a means of clarifying
        the information.

     •  Correspondence. Correspondence between the facility and EPA (or the State) may contain
        particularly important  information for inspectors.  Sometimes, an  agency's response to
        correspondence from the facility can affect the requirements that are applicable to the
        facility, permit notwithstanding; the inspector needs to know about this before conducting
        an inspection.

Aside from the documents referred  to above, which are specific to a given facility and are likely to
be found in Regional files, other items of a more generalized nature may be of assistance to the
inspector. Included in this category are:

     •  Laws  and Regulations.   The various underlying  environmental  statutes  and  related
        regulations establish standards, procedures, controls, and other requirements that may be
        applicable.   Inspectors may  use  this information  to familiarize themselves with the
        applicable rules.  It is useful for inspectors to take copies of the laws and regulations to the
        inspection site to show  and/or distribute to facility officials, if requested.

     •  Technical Reports. Documents, and References. This includes a range of books, journals,
        and other publications  that provide generic information on industrial process operations,
        as  well as  specific  data on  advantages, disadvantages,  and limitations  of application
        associated with  available treatment/control techniques. An inspector's  knowledge of the
        process(es) and the associated control equipment at a facility significantly contributes to the
        success of an inspection, particularly in  the area of diagnosis of control problems.  It is
        therefore important  to use  technical resources to acquire knowledge of specific  processes,
        operations, and  maintenance of all types of control equipment, and inspection procedures
        for various types of  control equipment and industrial processes.

     •  Commercial Data Systems.  If there are  no or  limited Agency files  on the facility to be
        inspected, the inspector may consult Dun & Bradstreet or other commercial data systems
        to learn such information as type of business and size.
                                            9-13

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Where to Access Information
A summary of compliance program data systems follows.

                          PROGRAM INFORMATION SYSTEMS
     Media Program

     Water/NPDES
     Water/SDWA
     Hazardous
     Waste/CERCLA
     Hazardous
     Waste/RCRA
Information System

Permit Compliance System (PCS):  PCS tracks public and
private parties and Federal facilities which have either an
NPDES permit or have applied for one. It contains general
information on all major and minor permits and tracks the
compliance status for all major and selected minor sources.  It
can identify effluent, compliance schedule, and DMR
reporting violations and generate a Limit Summary Report
listing discharge  limits by facility for each NPDES parameter.

Federal Underground Injection Control Reporting System
(FURS):  FURS is an inventory system used to identify well
locations.  It identifies wells by State, type of well, operating
status, and whether they are on Federal or Indian land.

Federal Report Data System (FRDS): FRDS contains inventory
and compliance status information for all active Public Water
Supply Systems (PWSS), including  the type and disposition of
violations and summaries of all enforcement actions, and
highlights those which have not been resolved.

Comprehensive Environmental Response. Compensation, and
Liability Information System (CERCLIS):  CERCLIS is an
inventory of all abandoned, inactive, or uncontrolled sites
(including Federal facilities) known to  EPA. It contains site
identification data, financial expenditure data, and site task
plans. CERCLIS also includes some enforcement data on
milestones and PRP cleanup schedules.

Case Management System (CMS):  CMS files contain site
enforcement information on administrative orders, civil
actions, and settlements for CERCLA sites, and compliance
histories. Data on Federal facilities are obtained from the
States, Regions, and Headquarters  and consolidated into a
separate file.

Hazardous Waste Data  Management System (HWDMS):
HWDMS contains the inventory of RCRA-regulated facilities.
It contains information on permitting, waste capacity,  closure
and post-closure  requirements. It also contains information on
compliance history, inspections, types of violations, and
informal and formal enforcement actions.
                                          9-14

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                PROGRAM INFORMATION SYSTEMS (continued)

Media Program           Information System
Air/CAA
Pesticides & Toxic
Substances
(FIFRA/TSCA)
Pesticides Subsystem
Toxic Substances/
TSCA
Title III  313/
Emergency Planning
and Community Right-
to-Know
Compliance Data Systems (CDS):  CDS contains information on
the compliance status and enforcement activities at all major
and many minor stationary sources subject to Federal and State
air emissions regulations for New Source Performance
Standards (NSPS), State Implementation  Plans (SIPs), and
National  Emission Standards for Hazardous Air Pollutants
(NESHAPs). CDS has the capability to produce reports
summarizing the compliance status, inspections and
enforcement actions for selected facilities as well as separate
elements  to track continuous emissions self-monitoring data.

National  Emission Data System (NEDS):  NEDS contains
emissions of criteria pollutants by major and minor stationary
sources of air pollution.

FIFRA and TSCA Tracking System (FTTS):  This  new system
expands and replaces all but one of the FATES subsystems (see
below).  FTTS contains compliance history and other related
information records on inspections, import reviews, samples,
case reviews, enforcement actions, and referrals. The  system
also can produce standard and ad hoc reports on compliance/
enforcement data.

The remaining FATES subsystem provides Establishment
Registration and Pesticide Product Reporting Information to
monitor and enforce Section 7 of FIFRA.

Chemicals in Commerce Information System (CICIS):   CICIS is
a computerized database of public  and confidential information
on all available chemicals in the TSCA chemical inventory.
CICIS identifies the chemical, case number, manufacturer,
volume and confidentiality.

Toxic Release Inventory System (TRIS):  This new system
provides  multi-media information about releases of listed  toxic
chemicals above threshold amounts which are manufactured,
imported, used, or processed by applicable manufacturing
facilities. Data include the maximum quantity of the chemical
on-site during the year and separate estimates of the total
quantity of the chemical released during the year -- including
both accidental spills and routine emissions --  to air, water,
and land. Data may provide an overall "profile" of a facility
which is  useful for inspection  planning.
                                     9-15

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                PROGRAM INFORMATION SYSTEMS (continued)

Media Program           Information System

General Enforcement     The Docket:  This is a computer information system used by
Data/All Programs        OECM to track civil enforcement litigation.  The information
                         contained in the system includes compliance  history, case filing
                         dates and other case tracking milestones, types of statute-
                         specific violations identified for each referral, and the type of
                         relief sought by the civil  litigation.

State Program            State programs' data systems generally contain inventories of
Information Systems       minor facilities as well as compliance status information.
                                      9-16

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                                            9-17

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NOTES
 9-18

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                     9D ADVANCE NOTIFICATION OF INSPECTION
Notification of Responsible State Agency
Policies and practices vary among programs regarding notifying State agencies of impending EPA
inspections that will take place within their State.  Some programs (e.g., the air program) require
notification of State and/or  local agencies at  least  five days in  advance of the inspection. Since
notification requirements vary, inspectors should consult State/EPA Memoranda of Agreement for
the specific requirements that apply.

General plans for EPA oversight of state inspections  are usually specified in annual grant agreements
and work plans; actual scheduling of these inspections is done in consultation with the State.
Notification of the Facility	

EPA is not required by law to provide advance notice of inspection. However, EPA program policies
vary with respect to providing a facility with advance  notification of  an on-site  inspection.
Depending on the type of inspection and program policy, a facility may be notified in writing or by
telephone that an inspection is imminent.  The  potential advantages and disadvantages associated
with both unannounced and announced inspections are presented below.

Unannounced Inspection	
The potential advantages of the unannounced inspection include:


     •  The opportunity to observe the source under its normal operating conditions, since the
        source does not have time to prepare for the inspection.

     •  Given unannounced inspections, the regulated community is never sure when, or if, their
        facility will be inspected.  To the extent that the perceived risk of detection of violations
        serves as a deterrent to noncompliance, the spectre of unannounced inspections may induce
        a  source  to monitor its  compliance  status to minimize its exposure  to  detection of
        noncompliance and ensuing enforcement actions.

     •  Unannounced inspections may  be interpreted by the regulated community  as a stronger
        surveillance and enforcement posture than announced inspections  since they take  place
        without advance warning.

The potential negative aspects of performing unannounced inspections are:

     •  The source may not be operating or key plant personnel may not be available.

     •  There could be an adverse impact on EPA/State or EPA/source relations.
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However, it has been demonstrated by Regional offices which already use unannounced inspections
that, in the majority of cases, these drawbacks can be overcome.

When advance notification is not  being  given, an  alternative  to  arriving at the source totally
unannounced is to contact the facility shortly before the scheduled inspection time. This is left to
the discretion of the Regional office and/or the inspector, and must be done so as not to alter the
representativeness of the source operation.  The amount of advance notice given should then be noted
in the Inspection Report.

Announced Inspections	
Announced inspections are performed by EPA and its authorized representatives when some specific
purpose  is served by  providing  such  notice.  Situations where announced inspections  mav  be
appropriate are:

     •   When specific information  is  sought  that must be prepared by the source, or  where the
         source must make significant accommodations for the inspector to gather the information.

     •   To ensure the availability of specified facility personnel when their assistance is necessary
         for the successful performance of the  inspections, i.e., the information they provide cannot
         be obtained from other on-duty plant personnel or by a follow-up information request.

     •   When inspecting government  facilities  or sources operating under government contract
         where entry is restricted due to classified operations.

     •   When inspecting unmanned or extremely remote sources.

In general, notification is not recommended when a facility is  suspected of improper recordkeeping
or illegal discharges and/or emissions;  the concern that advance  notification might contribute to
destruction of  records or to actions  that alter physical conditions prior to inspection justifies  an
unannounced  inspection.  In such circumstances, and depending upon the  requirements of the
underlying statute, written or verbal notification can be presented at the time of the unannounced
inspection.

Notification Letters	
A "114 Letter" is sometimes used for notification if there is a need to request facility information
prior to an  inspection conducted under the Clean  Air Act (CAA).   The facility representatives
notified should  have  authority to release data and  samples and to arrange  for access to  specific
processes. In addition, when notifying a facility  of an inspection, information should be requested
in regard to on-site safety regulations. This will avoid problems concerning safety equipment at the
time of the inspection.

In  the NPDES program, the permittee is sometimes  notified by a "308 Letter" that the facility is
scheduled for an inspection. The 308 Letter advises the permittee that an inspection is imminent,
and usually requests information regarding on-site safety regulations to avoid problems concerning
safety equipment at the time of inspection. The 308 Letter may also specify the exact date of the
inspection if coordination with the permittee is required. It is also used to inform the permittee of
the right to assert a claim of confidentiality.
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                      9E  PREPARATION OF THE INSPECTION PLAN
The development of a sound inspection plan prior  to going on-site is as important to the total
compliance  monitoring  and enforcement process as the generation of a high-quality,  well-
documented inspection report.  While plans should be flexible enough to adapt to unanticipated
situations encountered at the site, the inspection plan should be designed as an organized approach
to guide the conduct of the inspection.  Its basic purpose is to provide the inspector or  inspection
team with a step-by-step guide to collecting relevant evidence about a facility's procedures and
practices that have been included in the scope of the inspection.

The inspection plan serves several purposes:

     •   States the reason for inspection:  a brief history of why the inspection is taking place and
         the inspection objectives (i.e., what is  to be accomplished).

     •   Records the scope of the inspection:  identifies the functional areas, assessment topics, and
         level of inspection.

     •   Specifies inspection procedures and  associated  rationales:   which field  and  analytic
         techniques will  be  used to collect what information; what recordkeeping systems will be
         reviewed; which personnel will be interviewed;  which samples will  be collected; and for
         each step, why.

     •   Permits clear definition of team task assignments and time scheduling, based upon overall
         inspection objectives and methodology.

     •   Details iresource requirements (costs) based upon planned activities and time allocations.

     •   Provides clear guidance for what kinds of evidence should be collected and documented in
         field  logbooks.

     •   Includes a Quality Assurance Project Plan, where required.

     •   Identifies a safety contingency plan, where required.

The investment of time required to produce a quality inspection plan is worth the effort because it
constitutes a "walk-through" that should save time and resources during the actual inspection. The
inspector  must  assess precisely what questions are appropriate to  address  in  a short planning
document. However, general guidelines for developing the inspection plan  are included here. Most
programs  have developed standard operating procedures  and/or inspection checklists that can be
incorporated as part of the inspection plan.  It is still important, however, to be clear as to which
elements will be the focus of the inspection.

The determination of the objectives and scope of the inspection (including the identification of j.ey
assessment topics/questions  and level of inspection) essentially defines "what" the inspection will
focus on; the next step is to define "how" the  inspection will be conducted.  To plan  "how" the
inspection should proceed,  consider the  following issues, as adapted from the "Environmental


                                           9-21

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Auditing Skills and Techniques Workbook" prepared by Arthur D. Little, Inc., for the Edison Electric
Institute:

     •   "Some" versus  "all".  To ensure a  consistent inspection approach  that is supportive  of
         program goals, it is particularly important to make a preliminary determination of whether
         the inspector should examine all or merely a sample of  relevant documents, activities, or
         equipment. For example, if the inspector is expected to determine whether the facility has
         properly identified and characterized all water discharge sources, determine how he or she
         can  reach  that conclusion.  Would it be acceptable, for instance,  to have the  inspector
         physically observe only a portion of the facility boundary?  If the inspector is expected to
         "walk  the  property line,"  it may be desirable  for the  Inspection Plan  to so  state the
         instruction.

     •   Type of field  technique.  Where appropriate,  provide some guidance to the  inspector
         regarding the type  and level of techniques (e.g., interview, recordkeeping system review,
         observation, and/or testing) to use for each  topic.  For example, consider the differences
         between these two steps:  "Determine the adequacy of the RCRA training program," and an
         alternate step, "Through discussions with facility personnel and review of training records,
         determine whether the facility has a written RCRA training program with job titles, job
         descriptions, and records  of  employees  trained.   Select a sample of employees  from
         personnel records and verify that they have received training during the past year."

     •   Define the minimum approach.  In annotating the inspection plan to provide guidance  on
         how each topic is to be addressed, do not try to identify the range of potentially appropriate
         data-gathering techniques. Instead, define the minimum acceptable  approach necessary to
         conduct a  high-quality inspection.

The Elements of a Written Inspection Plan	

While the length and complexity of the plan will vary, the inspection plan should include at a
minimum:

     •   Objectives/background history of the inspection.

     •   Scope  and assessment topics.

     •   Inspection activities and field techniques.

     •   Sampling plan  (Quality Assurance  Project Plan).

     •   Safety plan.

     •   Administrative requirements.

Inspection protocols and/or checklists have been developed for many types of  EPA  inspections,
which can serve as a principal part of the inspection plan. Even with such guidance, however, it is
useful to do advance planning about how the protocols will be applied at the particular inspection
site. Components of an inspection plan and the considerations  involved are discussed below.
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Objectives/Background History of the Inspection.  This introductory section should entail
a brief history and statement of the reason for this particular inspection (e.g., routine, "for
cause," case development, or follow-up). It should also stipulate what the investigation is
to accomplish and how the information obtained will be used, as noted earlier.

Scope and Assessment Topics.  The inspection plan  should explicitly state  the scope and
assessment topics as defined in Chapter 9B.  Each of the assessment topics should be framed
as questions to establish the actual tasks that will be performed during the inspection. For
example, given the assessment topics cited in Chapter 9B, relevant questions and associated
tasks might include:

-   Manifest  System (Hazardous Waste):

    —   Sample Questions:   What  manifest systems should  exist?  What information
        constitutes a complete manifest system? How long must copies of  each manifest
        be retained?

    -••   Sample Tasks:   Check the  generator and transporter manifests for authorized
        identification  numbers, proper wastes information, emergency  information, and
        certification that materials are packaged and  labeled for transport.  Check that
        manifests are being retained for up to three  years, as required.

-   Contingency Plan and Emergency Procedures (Hazardous Waste):

    --   Sample Questions:   What procedures are  in place  to reduce the  possibility of
        emergencies?  What plans have been made to deal with emergencies?  What are
        the training and emergency equipment requirements?

    --   Sample Tasks:  Check  the facility for adequate operator training and required
        emergency equipment for ignitable, reactive, and incompatible wastes.  Assess the
        testing  and  maintenance of emergency equipment.   Check contingency plans,
        including arrangements made beforehand with local authorities.

-   Control and Treatment Systems (Wastewater):

    --   Sample Questions:  What are the system requirements for removal of conventional,
        nonconventional, and priority pollutant substances? Is the treatment plant prepared
        for a variety of circumstances (e.g.,  low  temperature, excess stormflows,  peak
        process flows)?

    --   Sample Tasks:  Check the operating condition  of the treatment units. Assess the
        impact of stormflows, inflow,  and  infiltration on system operation.
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Inspection Activities and Field Techniques. Once the inspection tasks (derived from the
assessment topics) have been established, determination must be made as to which evidence
collection technique  (i.e.,  observation,  records  review, interview, samples)  is  most
appropriate  for each task, as follows:

-   Observation: List what activities, operations, and/or equipment will be observed (e.g.,
    control and treatment units for spills, leakages, out-of-service conditions and causes).

-   Records:  List  the  records that will be  reviewed for compliance,  along with the
    information content and retention requirements of each type of record.

-   Interviews: List the positions of key personnel with whom meetings should be held  to
    address specific assessment topics (e.g., meet with the individual responsible for training
    employees in emergency procedures).

-   Samples:  Develop a sampling  plan according to Agency policy and guidance (see
    Sampling Plan,  below).

For each of the tasks and their associated inspection activity/field technique, the inspection
plan should prioritize what must be accomplished at  a minimum, as  well as which  items
might be included if time and resources permit.

Sampling Plan. Sampling inspections also require detailed advance quality assurance and
logistical planning.  Planning for sampling inspections is discussed in detail in Chapter 13.

Other Logistical Considerations.

-   Coordination with State for oversight inspections; notification of State if an inspection
    is in a delegated or approved program State.

-   Safety requirements (including required Safety Plan).

-   Setting priorities -- how to critically review the  contemplated on-site activities and
    tailor them to match staffing, time, costs,  etc.

    Logistical planning,  resources needed,  and contingency plans for entry (e.g.,  legal
    considerations), opening and closing conferences, and applicable informational/training/
    technology transfer materials.
                                    9-24

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                                EXHIBIT 9-1

              "GENERIC" ELEMENTS OF AN INSPECTION PLAN

•  OBJECTIVES

       What is the purpose of the inspection?

   -   What is to be accomplished?

•  TASKS

       What records, files, permits, regulations will be checked?

   -   What  coordination with laboratories, other  programs,  attorneys,  State or  local
       government is required?

       What information must be collected?

•  PROCEDURES

       What specific facility processes will be inspected?

       What procedures will be used?

       Will the inspection require special procedures?

   -   Has a QA/QC plan been developed and understood?

       What equipment will be required?

   -   What are responsibilities of each member of the team?

•  RESOURCES

   -   What personnel will be  required?

   -   Has a safety plan been developed and understood?

•  SCHEDULE

       What will be the time requirements and order of inspection activities?

   -   What will be the milestones?  What must get done vs. what is optional to get done?
                                    9-25

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NOTES
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                            9F  PRE-INSPECTION CHECKLIST
No single list of documents and equipment will be appropriate for each inspection.  The lists and
descriptions below are intended only as a guide to aid inspectors in planning for supplies.

Specific needs will be determined by the requirements of the inspection, the availability of certain
equipment, conditions at the facility,  Regional policies, conditions, and whether or not advance
notice of inspection will be given. Therefore, it is important to obtain and review all pertinent file
information about the facility and its compliance status to help develop the "checklist."
Inspection Equipment	

The  kinds of  equipment that an inspector carries should be specifically  related to the  kind of
inspection to be undertaken and the inspection plan that was prepared.  The inspector is expected
to use sound judgment and rely on training and past experience in  deciding what equipment is
necessary for a particular inspection. The equipment should be well-maintained and checked to see
that  it is in good condition  prior to each inspection.
Inspection Documents and Forms	

Documents and forms necessary for the inspection should be prepared in advance of the inspection,
whenever possible. Listed below are documents/forms that may be needed. The nature of document
preparation may vary with different programs; it is the inspector's responsibility to become familiar
with the requisite documents/forms relevant to performance of each inspection.

     •   Notice of Inspection.  Under some EPA laws, written notices must be presented upon the
         inspector's arrival at the facility.  Portions of this form can be filled out in advance, but
         the time  of inspection and  name(s)  of facility  official(s)  are  entered  at the time of
         inspection.

     •   Compliance Report Form (where  appropriate).  Some programs have developed forms or
         checklists to guide inspectors in gathering relevant information.

     •   Inspection Confidentiality Notice. This form is used to inform facility officials of their
         right  to claim inspection data as confidential business information [inspections under the
         Toxic Substances Control Act (TSCA)].

     •   Sampling Documents.  The  following forms relate to physical samples and are used to
         record and control sample identification and custody. These forms include:

         -   Custody Seal(s).

         -   Chain of Custody Record.
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     •  Receipt for Samples and Documents. All samples and documents taken during an inspection
        are listed on this form.

     •  Declaration of Confidential Business Information. This form is used to list all documents
        and samples taken during an inspection that have been claimed  as confidential business
        information (TSCA only).

     •  Copies of the Appropriate Act and of Specific Regulations. Some facility officials may not
        have copies of the acts or of applicable rules and regulations.  Inspectors should have these
        available for distribution.

     •  Agency  Outreach Materials.  Inspectors  should provide current,  relevant educational
        information to facility officials.
Administrative Documents and Forms	

Travel Authorizations, telephone numbers of travel and procurement personnel who may need to be
contacted, and any forms that may be needed to secure services in the field should be carried along
to the inspection. Such documents might include Government Transportation Requests (GTRs) to
charter boats or airplanes and Government Bills of Lading for shipping samples.  (See Chapter 10.)
Safety Equipment	

Under Agency policy, no EPA employee may do field work without first completing an approved
on-site safety training program. Personnel who must use respiratory protection equipment must also
complete specialized training, which includes protective equipment selection  criteria.  Program-
specific safety training has been developed for field personnel facing particular risks.

EPA policy also requires that a safety plan must be developed for all field activities. Safety plans
for the inspection should specify the expected hazards and types of exposures to be encountered,
needed safety equipment, and an emergency evacuation plan. The safety items listed in the checklist
below are intended  as a general reminder only, and do not substitute for a tailored list of needed
equipment that should be prepared for each inspection.
"Ready to Go" Checklist	

Since each inspection is unique, no list of materials, equipment, and forms can be appropriate for
all inspections.  The checklist below is intended to provide a quick reminder of the  types of items
that might be needed on a given inspection.
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General Equipment
        Camera
        Film and flash equipment
        Pocket calculator
        Tape measure
        Clipboard
        Waterproof pens, pencils, and markers
        Locking briefcase
        "Confidential Business Information" stamp
        Stamp pad
        Pre-addressed envelopes
        (e.g., to Document Control Officer)
Plastic covers
Plain envelopes
Polyethylene bags
Disposable towels or rags
Portable typewriter
Portable copying machine
Flashlight and batteries
Pocket knife
Merck index
Sampling Equipment
Sampling equipment will vary by program and media; inspectors should follow guidance provided
in program-specific materials.  Examples of typical sampling equipment follow.  (See also Chapter
1SB on Planning for Sampling Inspections.)

     •  Standard Operating Procedures for program/media involved

        -   Crescent wrench, bung opener
        -   Siphoning equipment
        -   Weighted bottle sampler
        -   Bottom sediment sampler
        -   Liquid waste samplers (e.g., glass samplers)
        -   Auger, trowel, or core sampler
        -   Scoop sampler
        -   Sample bottles/containers (certified clean bottles with teflon-lined lids)
        -   Labeling tags, tape
        -   Storage and shipping containers with lids
        -   Ice chest
        -   Container for contaminated material
        -   Hazard labels for shipping samples
            Ambient air monitor
            Field document records
        -   DOT special 12B cartons
            Vcsrmiculite or equivalent packing
            Thermometer
        -   Colorimetric gas detection tubes
        -   pH equipment
        -   Explosimeter
                                          9-29

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Documents/Forms
        Entry Warrant, if deemed necessary
        Notice of Inspection
        Inspection Confidentiality Notice (TSCA, RCRA)
        Declaration of Confidential Business Information (TSCA)
        Receipt for Samples and Documents
        Chain of Custody Record Forms
        Official Seals
        Hazardous sample shipping labels
        Government Transportation Requests (GTR)
        Bill of Lading
        Travel Authorization
        Airbills
Safety Equipment
        Safety glasses or goggles
        Face shield
        Ear plugs
        Rubber-soled, metal-toed, non-skid shoes
        Liquid-proof gloves (disposable, if possible)
        Coveralls, long-sleeved
        Long rubber apron
        Hard hat
        Plastic shoe  covers,  disposable
        Respirators  and cartridges
        Self-contained breathing apparatus
Emergency Equipment
        Substance-specific first aid information
        Emergency telephone numbers
        First-aid kit with eyewash
        Fire extinguisher
        Soap, waterless hand cleaner, and towels
        Supply of clean water for washing
                                           9-30

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10 - Administration

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                                       CHAPTER 10

                 ADMINISTRATIVE CONSIDERATIONS FOR INSPECTORS
Because their work takes place in the field and sometimes involves unforeseen needs, inspectors must
deal with a wide range of administrative procedures on such matters as procurement, shipping, and
travel. In addition, inspectors may be entitled to special pay for overtime or hazardous duty.

The purpose of  this chapter  is to familiarize the inspector with  the  various  administrative
requirements and entitlements needed for factoring cost estimates into inspection planning.  Each
inspector should become familiar with the specific administrative procedures used in his or her
organization to assure that procurement requests, travel authorizations, and vouchers are processed
smoothly.  It i:; important to know which administrative documents need to be prepared, whose
signature(s) is needed on the various forms, and what the request originator's (e.g., the inspector's)
responsibility is for obtaining them. Failure to follow proper procedures can result in failure  to be
reimbursed for expenses.

This chapter contains a general discussion of common administrative issues that inspectors face and
should not be considered a substitute for the detailed manuals covering administrative topics that
are available from EPA's financial management and  personnel division.  The person who handles
administrative matters (often called the administrative assistant) in the inspector's unit should also
have  these procedural manuals. Specific Regional procedures will be covered in  the classroom
training course.

The importance of ore-inspection planning cannot be emphasized too strongly.  It  is far easier to
comply with administrative procedures if needs for tickets, equipment, sample shipping, boat rentals,
etc., are anticipated in advance. With advance planning, any necessary forms can be obtained, filled
out, and appropriate authorizing signatures secured.  Whenever there is a field procurement or change
in travel plans, there is a risk that reimbursement could be delayed or  ultimately denied.
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NOTES
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                                       10A TRAVEL
Following is a summary of key travel considerations for inspections. For detailed procedures, consult
with the administrative officer and the Resources Management Directives System (RMDS), Division
2550-B, "Travel Manual," and appendix entitled "Federal Travel Regulations with EPA Annotations."
Travel Authorization	

The first step in administrative planning for the inspection is obtaining a Travel Authorization for
each member of the inspection team. Travel orders should be prepared as soon as possible, and the
necessary signatures obtained.  A copy should be kept in the inspector's possession at all times while
on the road. The authorization must anticipate trip needs such as common carrier transportation, per
diem, car rental, and Government Transportation Requests (GTR) for special transport needs. An
estimate of total costs for the trip is included.
Diners Club Card	

Each EPA employee who is expected to travel as part of his or her job is issued an official Diners
Club card for use in paying for travel expenses such as airline tickets, hotels, meals, and rental cars.
The  Diners Club card can also be used to pay for other incurred costs, such as for sample shipping,
if the employee has the procurement authority.
Travel Advance	

If a Diners Club card has been issued to the employee, he or she may request a travel advance of up
to $15 a day plus cash for miscellaneous expenses. If the hotel where the employee will be staying
does not accept the Diners Club card, an advance of up to the daily limit at that destination may be
obtained.  If there are unusual circumstances about the trip,  include a statement under "Remarks"
on the travel authorization.

Request the smallest advance necessary to accomplish the mission.

Requests for travel advances should be submitted sufficiently in advance of departure to allow the
financial office to process the check through Treasury (about 10 days).

Policy varies by Region, but in an emergency,  a limited amount of funds  (e.g., up to $250) can be
obtained  quickly from Imprest Funds.
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Airline Tickets
The U.S. Government has contract arrangements with several air carriers; contract flights must be
used by EPA employees.  Contract flights are listed in the Federal Travel Directory.  The Directory
also contains a list of the exceptions that are acceptable for not using a contract carrier.  The
employee should use a Travel Management Center (TMC) to procure airline tickets.

Teleticketine	
Identify the contract carrier serving the destination. Choose flights, call the airline, and arrange for
a teleticket according to the appropriate office procedures. When tickets arrive (where they are sent
varies by Region) check them immediately to see that the flight numbers are correct as well as the
time and date of departure. Make sure that the price is correct; once the ticket is used the Agency
is committed to the fare. Save the ticket coupon and submit it with the travel voucher.

Travel Management Center (TMC)	
Many EPA  Regions and Headquarters use an authorized Travel Management  Center (TMC) for
making travel arrangements. These centers are authorized to choose contract airline flights and will
do so unless the traveler specifies why those flights will not be suitable for the mission.

Airline  Ticket Office	
Use the Diners Club card to purchase tickets directly from the airline or  from the TMC; this is
particularly useful when itinerary changes in mid-trip. The card entitles the employee to contract
fares, and the employee should request it. Always save the ticket coupon  and  submit it with the
travel voucher.  A  GTR (see below)  may also be used to purchase tickets from an airline  ticket
office.

Refunds	
Unused tickets should be guarded well and returned for a refund. The method of refund depends
on how the tickets were purchased,  involving either a refund or credit to the Agency's account or,
if a Diners Club card was used, a credit to the employee's account.

Lost or Unused Tickets	
If travel plans change during the trip, use the official Diners Club card to buy a new ticket from the
airline.  If the original ticket can  be re-written, of course, this would be preferred.  If there is an
additional charge, use the Diners Club card.   Save all ticket coupons and attach  to  the travel
voucher.  Note on the voucher that unused  tickets (if purchased  with  a GTR) are  attached  and
provide sufficient details about the trip to explain why there were  unused tickets.

If a  ticket is lost, the  employee pays for it.   If lost tickets originated  through teleticketing,  the
financial office will apply for a refund and repay the employee when the refund is received from
the airline.  If the ticket was  charged to Diners Club, the employee must apply for a  refund.
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Usine Cash for Travel Services
The term "cash" includes not only greenbacks and coins, but also personal credit cards. (Diners Club
cards are "official" credit cards.)

When Cash Can Be Used	
Cash is used to pay for:

     •   Travel services costing $10 or less;
     •   Excess baggage costs of $15 or less; and
     •   Travel services of up to $100 when advantageous to the government.

In case of an emergency, cash may be used to pay for travel services costing more than $100. Written
approval should be obtained from an authorizing official prior to departure. Only the Office of the
Comptroller can authorize travelers to exceed the $100 limit.

If pre-departure approval is  not possible, obtain written authorization from the Office of the
Comptroller immediately upon return.

When Cash Should Not Be Used	
Do not use cash to purchase tickets or travel services costing more than $100 in a non-emergency
situation.  Reimbursement requires the approval of the Office of the Comptroller and an exemption
from GSA.  The traveler's convenience is not a cause for approval. This means it will take a long
time to be reimbursed.

The $100 cash limitation does not apply if either the government Diners Club card or a GTR is used.
Hotel Reservations	

Travel regulations establish procedures for reimbursing  government travelers.   Travelers are
reimbursed for the cost of the hotel, plus a per diem rate for food based on destination.  There are
several classes;  of per diem, ranging from about $26  up to about $36  per day for meals and
incidentals.  The traveler is responsible for selecting a hotel which provides a government rate. The
travel rules spell out limitations on cost of hotels depending on the location.  The traveler should try
to select one that is considered acceptable within the "prudent traveler" rule.

Travelers  should  select  hotels exercising  the  same care  in incurring travel  expenses  for the
government as if traveling on personal business.  Ideally, the hotel should be close to the work site,
thus reducing overall  travel expense.

When making reservations, provide the reservation clerk with the Diners Club card number to reserve
the room.  If late arrival is anticipated -- after 6:00 p.m. -- tell the clerk. The room will be held all
night if necessary, and the traveler is responsible for the cost whether he or she arrives or not.  If
travel plans change, the reservation can  be cancelled if a call  is placed before 6:00 p.m.
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Some communities have an ordinance exempting Federal employees from paying the local hotel tax.
Inquire when making reservations, and ask which documents are needed.  It may be necessary to
provide a copy of your travel orders or a letter on EPA letterhead which indicates your name and
the fact that you are a government traveler on official business. There are no guarantees that you
will be given the exemption; some clerks are unaware of the ordinance.  If the exemption is not
allowed for some reason, it will be reimbursed.
Use of Government Owned Vehicles (GOV)	

Using appropriate procedures, request a Government Owned Vehicle (GOV) sufficiently in advance
to assure that a car is available.

Before departure, make sure that a government credit card is in the vehicle to pay for fuel. Some
service stations do not accept the government credit card; try to find one that does. If cash is paid,
be sure to get a signed receipt.

If an accident or breakdown occurs while in the inspector's possession, contact GSA at once before
having the car towed or repaired.  Otherwise, the inspector will be responsible for the cost.

The GOVs assigned to Regional offices are generally  for short-term use -- one or two days. If a
vehicle is needed for a longer period, follow procedures for  obtaining a leased vehicle well in
advance of the need.
Use of Rental Cars	

Rental cars must be authorized and justified on the travel authorization.  Reservations should be
made in advance of departure, always requesting the government rate.  Most major rental agencies
have agreements with GSA to provide suitable cars at considerable savings; EPA can only reimburse
from  the government rate schedule.

Payment for the rental car may be made by Diners Club card or in cash. The rental receipt, marked
"paid," must be submitted with the travel voucher. A signed statement on the rental receipt stating
that the car was used for official business must be attached to the travel voucher. Indicate whether
any mileage was used for personal transportation (not official business); only official business usage
will be reimbursed. Insurance purchased for rental cars will not be reimbursed.  Refer to the Federal
Travel Directory for more particulars about using rental car agencies.
Use of Government Transportation Request (GTR)	

The use of Government Transportation Requests (GTRs) has been reduced since EPA employees have
been issued Diners Club cards.

GTRs can be used to purchase airline tickets directly from the airlines; to charter helicopters, planes,
buses, and boats; and for train  fare. GTR may not be used for rental cars.

GTRs are accountable forms and must be safeguarded.  If one should be lost, it must be reported
immediately to the office that issued it (the office responsible for finance).

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If a GTR will be needed for a trip, make sure there is a statement of justification on the Travel
Authorization. Complete accounting information must be transcribed legibly on the GTR, including
account number, document control number, object class, Travel Authorization number, your name
and Social Security number, and the travel purpose code. The needed numbers can be found on the
Travel Authorization.

If chartering a vehicle, include a statement on the back  which specifies what is being agreed to (see
sample language under "Use of Charter Planes" below).

If a GTR is not used,  it  should be returned to the office that issued it.

The charter company will retain the blue original of the  GTR and will use it to bill EPA for the cost.
The buff copy goes to the issuing office for recording the obligation.  Be sure that the amount is
legible on the buff copy.
Use of Charter Planes. Helicopters, and Boats
Helicopters (and Airplanes)
Helicopter services are usually procured annually through large-dollar Interagency Agreements which
spell out the hourly charges for various locations and conditions. Since helicopters can cost hundreds
of dollars each day to lease and fuel can be extra, inspectors are responsible for prudent use of these
services. The inspector is responsible for recording and reporting usage to the person in the Region
who tracks and monitors usage.  Know the terms and conditions of the contract before  departure.
Ask the pilot for each flight's log. Report usage by date, location, names of passengers,  hours flown,
fuel purchased, and description of activities. (The same information should be reported when charter
planes or boats are used.)

Chartering bv Use of  a Government Transportation Request (GTR)

If there is no Interagency Agreement for helicopter or private plane service (such an Interagency
Agreement is  currently in  place Agency-wide), make arrangements  in advance with  a  charter
company and take one or more Government Transportation Requests (GTRs) with you. The Travel
Authorization  must specify that GTR will be used.  Know and follow procedures for securing  and
processing GTRs (see  discussion above).

To charter a helicopter or plane, prepare a GTR with the charter company. On the face of the GTR,
provide detailed accounting data,  name of carrier, and  amount.   The accounting data  will be
specified in your travel orders.

On the back of the GTR, write a statement which specifies what is being agreed to.  The statement
could read as follows,  but will differ according to circumstances:

     "Charter to transport	persons with equipment and samples, from (point A) to (point
     B) and return. In-flight cost $	/hr.; standby cost $	/hr.; fuel $	/gal.; other
     cost $	.  Will  cover dates	through	.  Type of equipment	
     	. Copy of flight log will be provided."

Agreed:	              	
             (EPA employee)                (Charter Company Rep.)             (Date)


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Leasing a Boat
With as much lead time as possible before departure, prepare a Procurement Request (PR) for
procuring a boat which will suit the needs of the mission.  Indicate the size, capacity, length of time
needed, and suggested charter companies which can supply an appropriate boat. Obtain all required
signatures.

A GTR can be used for chartering a boat, just as it can for an airplane.  If the need  for a boat is
learned after arrival in the field, contact a charter boat company and ask if they will accept a GTR.
If not, call the office to obtain necessary documents and have arrangements made.  Be sure to get
a receipt before leaving the dock. Keep records of boat usage, condition, and any other services
which  may affect the  cost. Report  this data to the administrative assistant (or other designated
person).
Change in Travel Plans	

Frequently,  an inspector may be asked to change his or her itinerary and proceed to a different
location from that specified in the travel orders.  Should that occur, the inspector may need to handle
all the logistics of changing tickets, making (and cancelling) hotel reservations, and perhaps renting
a car at the new destination.

Airline tickets should be re-written at the ticket counter. Always request the government contract
fare.  If there is a price differential, pay by Diners Club card.  If there are unused tickets, return
them  for a refund. (See airline procedures.)

When there  are changes in  a trip, be sure that an amended Travel Authorization is sent to the
appropriate  finance office for recording the obligation.  File a reimbursement voucher within 10
days of returning home and obtain post approval from the supervisor for additional days in the field.
Keep records and receipts of all expenditures.
Filing Reimbursement Vouchers	

Prepare the reimbursement voucher promptly, and file with the finance office within 10 days of
returning to the office.

     •   Account for all expenses, indicating time of departure and return.

     •   Attach all receipts. A receipt is required for:

            Any expense exceeding $25            - Registration fee
            Excess baggage checking              - Common carrier costs
            Lodging (an original is required)       - Telephone calls
            Car rentals                           - Rental of equipment

     •   List costs for which receipts are not required.
                                            10-8

-------
     •  Reimbursable items include: hotels, limos, taxis, buses, rental cars, airline tickets purchased
        through Diners Club, official phone calls, meals, mileage to and from  the airport, and
        parking.

     •  Considered part of the per diem but reimbursable within the daily limit are: laundry, tips
        for meals, and baggage handling.

     •  Repay any excess advance  by attaching a check to the voucher, made payable to  the
        Environmental Protection Agency.

     •  Sign the voucher.

     •  Obtain approval by an authorizing official such as the Branch Chief or Division  Director.

Post approval is needed for a rental car not approved on the Travel Authorization or if the trip was
extended beyond the approved ending date.

If the trip was for site-specific Superfund travel, attach a copy of the  timesheet to  the voucher to
account for those hours charged to Superfund.

Depending on the amount and Regional policies, employees will receive reimbursement checks at
work or in the mail directly  from the U.S. Treasury.

Outstanding travel advance balances must be paid within  10 days of completion of travel; they are
submitted with the travel voucher. If the owed amount is overdue by  more than  30 days (policies
may vary by Region), it can be deducted from the employee's salary plus  interest, penalty, and
handling charges. If payroll  deduction is required, the traveler will be suspended from entitlement
to receive travel  advances  for one year.
                                           10-9

-------
    TRAVEL AUTHORIZATION

      IPliate nod inttruettont on rtuene)
                             T   221197
                                                                         2. SOCIAL. SECURITY NO.
                                                                                                   3. TRAVEL AUTHORIZATION CODE
4. TRAVEL AUTHORIZATION TYPE
   DOMESTIC
                                   5. TYPE OP TRAVEL BY NON-EPA TRAVELER
                                      INVITATIONAL
                                      INTERGOVERNMENTAL PERSONNEL ACT |IPA)   7. APPLICABLE REGULATIONS: D SdfffS D JTR'S
                                                                         (I. TITLE
• A. OFFICIAL STATION
                                                                         >B. ORGANIZATION
 10. TRIP INFORMATION
                                                                                             11. ACCOUNTING INFORMATION
                                                                                              I. ACCOUNT NUMBER
                                                                                                                       C. SERVICING
                                                                                                                          FINANCE
                                                                                                                          OFFICE CODE
 D. ITINERARY, PURPOSE, ANO OTHER DETAILS
                              MQPITiti-. »| i r»iA/A»i.-j«
                                                    NOT TO EXCEED
                                                                                                            TOTAL COST ESTIMATES »Y
                                                                                                                          -AMOUNT
          1. ACTUAL SUBSISTENCE NOT TO EXCEED
            ACTUAL SUBSISTENCE GSA HRGA
                                                                                                           |A)Illl
                                               (OTHER ALLOWANCES)
         II. COMMON CARRIER • AIR
         91. COMMON CARRIER - TRAIN, BUS. SHIP
         • 1. FIRST CLASS • COMMON CARRIER
         • 4. EXCESS BAGGAGE
                                             LBS
                                                                                                           (•)2111
         El. INTRACITY TRANSPORTATION iToxi, llmoutine, but. POV) AND OTHER INCIDENTAL COST*
                                                                                                           |C| 2117
         91. PRIVATELY-OWNED VEHICLE
          'OVI fAuto. Plan*. etc.J           >
                                                  Centi per mile)
                                                  caUnni
ID) 2114
         El. GSA CONTRACT RENTAL- BO AC »-
                                                                     ID INTERCITY D TEMPORARY DUTY
          2. COMMERCIAL CAR RENTAL
                                                                      D INTERCITY O TEMPORARY DUTY  (E)211I
          1. GOVERNMENT-OWNED (CSA) RENTAL-

         SI. REGISTRATION FEES
                                                                     |O INTERCITY O TEMPORARY DUTY
                                 (PERMANENT CMANOE-OF-STATION ALLOWANCES)

         HI. TRANSPORTATION OF FAMILY

         HZ. RESIDENCE HUNTING
         II. TEMPORARY QUARTERS

         12. REAL ESTATE EXPENSES

         II. MISCELLANEOUS MOVING EXPENSES
         11  SHIPMENT OF HOUSEHOLD GOODS
         K1. STORAGE OF HOUSEHOLD GOODS
13. ADVANCE OF FUNDS APPLICATION (Note: Quit landing advance* mutt be liquidated within 10 dayi of completion of trip.  When travel it canceled or
ndeflnitely postponed, the full amount of any outttandtns advance! miut be repaid Immediately. Unliquidated advance* are lubject to automatic payroll
teductloni.)
A. TYPE

  O ORDINARY

  0 CONTINUING
B. METHOD OF
   5AYMENT
    CASH

  D CHECK
                                   C. MAIL CHECK TO:  D OFFICE UHOME
                                                                                             OFFICE PHONE
                                                             SIGNATURE (And reaion for ditapproual. If eo checked)
r. CASH RECEIVED BY
                                   G. DATE CASH RECEIVED
                                                             14. TO BE COMPLETED BY SERVICING FINANCE OFFICE
   A^^J1Q£J2ATJ££
                                   OFFICER
                                                                                              PITIM^ f»rri
1AME AND TITLE I
                                                             Authority ii granted to travel and incur such expanias at may be neceuary for thit auth
                                                             orization In accordance with EPA policy and applicable regulation!. I certify that thit
                                                             trip it euential to the Aoencv't minion.	
IIGNATURE
                                                             NAME ANO TITLE (Typed)
                                                             SIGNATURE
EPA Form 2610-1 (Rev. 10-81) Pravloui edition Ii obsolete.
                                                                                                                   TRAVELER
                                                           10-10

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                                                           INSTRUCTIONS
GENERAL: This form is to be used for all temporary  duty travel on official business and to request an advance of funds to cover re-
lated travel expenses. Please type or print so all copies are legible. Distribution of copies should be in accordance with Chapter 2 of the
EPA Travel Manual.
ITEM                              ENTRY

1     Thit preprinted lerial  number may not be changed unless travel
      plant are cancelnd or emended. If a trip it amended or canceled or
      an additional advance ii requested for a previously authorized trip,
      cross out this  number and enter the preprinted seriel number of
      the original traviil authorization.

2     Enter the travelings Social Security Number.

3     -Check the appropriate travel authorization code.

4     Check the domiistlc box if the trip is wholly within the 50 States,
      the District of Columbia, or territorial areas under the jurisdiction
      of the United States. Check the foreign box if the trip is to, from,
      or within pointi outside of these areas.

5     Check the appropriate boxes regarding the type of travel to be per-
      formed by a non-EPA traveler. See Chapters 11 and IS of the EPA
      Travel Manual.

6     Enter the date the travel authorization is prepared.

7     Cheek the SGTR's (Standard Government Trevel Regulations) box
      if the traveler ii either a Federal or non-Federal employee. Check
      the JTR'i (Joint Travel Regulations) box if the traveler is a Com-
      missioned Officer.

8A   Enter the traveler's name.

8B   Enter the traveler's  position or job title. If the traveler is a Com-
      missioned Off icer, enter her/his rank; if not a Federal employee,
      enter the wordl "Private Citizen"; if employed by another Federal
      Agency, enter the  name of that agency.

9A   Enter the namo of the city and State in which the traveler's organ-
      ization is located. If the traveler is a private citizen operating out
      of her/his homo or business, enter that address.

9B   Enter the nenvn of  the office and division in which the traveler is
      employed.  If the traveler is not a  Federal employee, leave this box
      blank.

10A  Enter the actual starting and ending dates for the period spent at
      each temporary duty station on the trip. For PCS travel, enter the
      approximate dates of the move. If additional space is required, use
      full sheets of paper approximately the same size as this form. Type
      on each sheet the traveler's name, Social Security Number, travel
      authorization number, and the applicable trip information. Attach
      all sheets to this form.

10B  For each temporary duty station, enter the standard two-letter US
      Postal Service code  for the SO Stetes, the District of Columbia, or
      territorial aregs under the jurisdiction of the United States; or the
      standard two-letter Federel Information Processing Standards  Pub-
      lication No. 10 (FIPS 10) code  for foreign countries in the first
      two boxes.  Enter the first ten letters of the city  name in the re-
      maining boxei. For PCS travel, enter  the new duty nation. Ex-
ITEM                           ENTRY

      elude blanks, commas, periods, etc. between two-word cities. E.g.,
      San Francisco, California, would be entered as CASANFRANCIS.
      (Exclude cities that are merely stopovers in travel to a temporary
      duty nation.)

IOC   Enter the appropriate purpose code for each portion of the trip
      from Chapter  15, Appendix B, of the Financial Management Man-
      ual or Chapter 2 of the EPA Travel Manual.

10D   Enter the name of the location from which travel nans end "re-
      turn," if appropriate. Enter any remarks which mey be limiting or
      pertinent to the trips. If annual leave is granted e traveler while in
      travel natus, enter the (unification for the leeve and attach a copy
      of SF-71, Application for Leave, to the back of this form.

11A   Enter the account  number applicable to  the  traveler's  program
      office.

11b   bnter the Document Control  Number (DCN)  obtained from the
      Document Control Reginer Clerk.

11C   Enter the appropriate servicing finance office code listed  in Chap-
      ter 16, Appendix C of the Financial Management Manual.

12    Check the  appropriate boxes regarding the type of allowances
      authorized.  See the  EPA Travel Manual for guidance. If the box
      for  privately owned vehicle or commereial car rental is checked,
      provide  a justification in Item 10D. Enter the animated con for
      each object class and the grind total  in the amount blocks.

13A   Check the appropriate type-of-advance box. See Chapter 3 of the
      EPA Travel  Manual.

13B   Check the appropriate method-of-payment box.

13C   Check the eppropriate box regarding where check is to be mailed
      and enter the traveler's office or home address. Enter the traveler's
      office telephone number.

13D   Enter the amount requested.

13E   The traveler signs in this block.

13F   The traveler or the  person the traveler designates to pick up the
      cash signs'in this block. (Note:  Only the Administrator, Deputy
      Administrator, Associate Administrators, and Assistant Adminis-
      trators may designate individuals other than themselves to pick up
      their cash advances.)

13G   The person who signs in block 13F enters the date the cash was re-
      ceived.

14    Leave this block blank.
15
      Type in the name end title of the recommending officer end the
      authorizing officer. Refer form to them for signatures.
                                                       PRIVACY ACT STATEMENT

GENERAL: This inlormetion is provided pursuant to Public Law 93-579 (Privacy Act of 1974), December 31, 1974, for individuals performing travel for
the Federal Government.

AUTHORITY:  Title 5, U.S.C.  I 5701. 5702, et saq.; and 5 U.S.C. Chapter 57 as implemented by the Federal Travel Reguletions (FPMR 101-7), E.O.
11609 of July 22, 15)71, E.O. 11012 of March 27.1962, and E.O. 9397 of November 22, 1943.

PURPOSE: The primary purpose of the information is to serve as a key identifier of travelers so that proper credit is given to the individual traveler where
there are more than one traveler with the same name.

USE: This information will be used internally  to monitor travel advance balances in the computerized accounting system. It will be used  externally to
respond to Congressional inquiries regarding Federal travel.

INFORMATION REGARDING YOUR SOCIAL SECURITY NUMBER:  Disclosure by you of your Social Security Number (SSN) is for the purposes of
correct identification and clearances for travel advances and claims, and is voluntary. Nondisclosure of your SSN will causa a delay in the processing of
your travel advance and travel cleims.


EPA Form 2810-1 (Rev. 1041) Reverae
                                                              10-11

-------
  TRAVEL VOUCHER

    IRead the Privacy Act
   Statement on the back)
                            1  DEPARTMENT OR ESTABLISHMENT.
                               BUREAU DIVISION OR OFFICE
                                 2. TYPE OF TRAVEL

                                 Q  TEMPORARY DUTY

                                      PERMANENT CHANGE
                                                                         D
                                                                             OF STATION
                                                                                                    3.  VOUCHER NO.
                                                                                                   4. SCHEDULE NO.
     a. NAME /List, first, middle inititll
                                                                         b.  SOCIAL SECURITY NO.
                                                                                                    6.  PERIOD OF TRAVEL
                                                                                                    •  FROM
                                                                                                                     b. TO
     c. MAILING ADDRESS (Include ZIP Code)
                                                                         a.  OFFICE TELEPHONE NO.
                                                                                                    7. TRAVEL AUTHORIZATION
                                                                                                      NUMBER(S)    b. OATEIS)
     t  PRESENT DUTV STATION
                                                  (  RESIDENCE ICity and State)
                                                                                                    10. CHECK NO.
 8.  TRAVEL ADVANCE
 • .  Outstanding
 b.  Amount to b« applied
    Amount dut Government
    I Attached:  Q Crlee*  Q Cathl
 D.  Bill
                                                 9. CASH PAYMENT RECEIPT
                                                 •  DATE RECEIVED
                                                                                                   11.  PAID BY
                                                                         b. AMOUNT RECEIVED
                                                                           $
                                                 c.  PAYEE'S SIGNATURE
12. GOVERNMMlT
   TRArtWOtWATtON
          ITS. OH
          «*TA«BN
          S. IFJBtV
          ft iHsiiW^AM
    REOOMTS. OH
    TR
    TICKETS
    CHAM*
    (L/it by nui
    end attach^,	 .
    coupon; if catn it uieel
    show claim on ravene
    tide. I
                        I htrtbv assign 10 the United Statet any right I may have against any parties in connection with reimbursable
                        transportation charges described below, purchased under cash payment procedures (FPMR 101-7)
                                                                                                                     Trsveier't Inititt/t
                           AGENT'S
                         VALUATION
                          OF TICKET

                             It)
ISSUING
 CAR-
 RIER

llnititls)

   (b)
   MODE,
 CLASS OF
  SERVICE
AND ACCOM-
MODATIONS
    Id
                                                                 DATE
                                                                 ISSUED
                   Id)
                                                                                                POINTS OF TRAVEL
                                                                                      FROM


                                                                                        le)
TO

 III
 13.  I certify that this voucher is true and correct to the best of my knowledge and belief, and that payment or credit has not been
     received by me. Wtien applicable, per diem claimed is based on the average cost of lodging incurred during the period covered by
     this voucher.
 TRAVELER^                                                              .DATE                AMOUNT .
 SIGN HERE ^	CLAIMED^
 NOTE:  Ftltifidtion olan iorrt in in fxptntt mount worltl » forfeiture of d»im 128 U.S.C. 2514) ind mty result in I line ol not more
        thtn 110,000 or impritonment for not more thin 5 yean or both 118 U.S.C. 287; i.d. 10011.
     This voucher is approved.  Long distance telephone calls, it any, are certified as
     necessary in the interest of the Government. INOTE: If long distance telephone calls
     an included, the approving official mult />«*• oten authorittd in writing by thi
     head of the department or agency to to certify 131 U.S.C. 680al.l
 APPROVING
 OFFICIAL
 SIGN HERE
                                                            DATE
                                                                             17.  FOR FINANCE OFFICE USE ONL Y
                                                                             	COMPUTATION	
                                                                               DIFFER--
                                                                               ENCES.
                                                                               IF ANY "
                                                                               /Explain .
                                                                               and show
                                                                               amount) -
15.  LAST PRECEDING VOUCHER PAID UNDER SAME TRAVEL AUTHORIZATION
 I. VOUCHER NO.
                            b. DO. SYMBOL
                                                            c.  MONTH
                                                               YEAR
                                                                             p.  TOTAL VERIFIED CORRECT FOR
                                                                                CHARGE TO APPROPRIATION
                                                                                Certitier's initials:
                                                                             :.  APPLIED TO TRAV
     THIS VOUCHER IS CERTIFIED CORRECT AND PROPER FOR PAYMENT


                                                           I DATE
AUTHORIZED
CERTIFYING
OFFICIAL   ,.
SIGN HERE
                                                                                   	  ,    WELADVANCE
                                                                               /Appropriation symbol):
                                                                                          NET TO TRAVELER
     ACCOUNTING CLASSIFICATION
  ID 12-116
                                                    75«0-00-63*-»180
                                                                                              STANDARD FORM 1012 (REV. 10-77)
                                                                                          Prescribed by GSA, FPMR (41 CFR) ior-7
                                                       10-12

-------
O
 I
SCHEDULE
OF
EXPENSES
AND
AMOUNTS
CLAIMED
DATE
1Q
(•I












TIME
(Hour
and
am/pml
(bl












INSTRUCTIONS TO TRAVELER (Unlistt
Col Id II the voucher includes Com-
pet drem allowances for pletf
members of employee's only
immediate lamily, show for
members' names, ages, actual
and relationship to em. expense
ployee and marital status rrare/
ol children (unless infor-
mation is shown on the
travel authorization 1
DESCRIPTION
(Departure/arrival city, per diem
computation, or other explanations
ol enpenstl
Id












"rf items are sell explanatory)
~Col. Idl \ Show amount incurred lor each
thru fgt ] meal co»t
Iht Show expenses, such as laundry
portefs. etc. (other than for mea
tit Complete for per diem and aclua
ft) Show total subsistence expense
(ml Show per diem amount, limited
the lesser ot the amouni iruni to
fnt Show expenses, such as laxi/lim
long distance telephone calls lor
subsistence, etc.
meal, including
. cleaning and f>
si
1 expense travel
ncurred for actu
o maximum rat
ousme lares, air
Government bu
ax and tips . and dsiiv total
essing ol clothes, tips to bellboys.
al expense travel.
e. or if travel on actual expen
m fate.
fare dl purchased with cash)
smess. car rental, relocation o
ITEMIZED SUBSISTENCE EXPENSES
MEALS
BREAK
FAST
Idl











I
LUNCH
M
!
t
i
i
i
i
i
i
i
i
t
i
i
i
i
i
i
i
i
DINNER
III












TOTAL
Igl
1
1










1
MISCEL
LAN ECUS
SUBSIS
TENCE
Ihl
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
I
LODGING
(•I











1
I
II additional space is required, continue on another SF 1012- A BACK, leaving the Iron! blank.
In compliance with the Privacy Act of 1974. the following information it pro
vidert Solicitation of the information on thit form it authori/ed by 5 U S.C.
Chap 67 at implemented bv the Federal Travel negulationt (FPMR 1O1 7)
f 0 I16O9 of July 73. 1971. E o 11O12 of March 77. 1962. If O 9397 of
November 27. 1943. and 26 U S C 6Ot Ifbl and 61O9 The primary purpote
eligible individual! for allowable travel and/or relocation expentet incurred
criminal, or regulatory investigations or protecut
requirement by thu agency m connection with
TOTAL
SUBSISTENCE
EXPENSE
III
1
I
1









1
MILEAGE
«
NO. OF
MILES
ft/












SUBTOTALS *•
TOTALS *

the htring or firing of an
formance of official duty while m Government tervice. Your Social Security

se. show
local or
ther than
Con
info
if th
con
shet
iplea this PAGE
rmation
tinuatton Of
'• PAGES
TRAVEL AUTHORIZATION NO.
TRAVELERS LAST NAME
AMOUNT CLAIMED
MILEAGE
(ft
1















SUBSISTENCE
(ml
1
1
1
1
1
|
1
I
1
1
I
1
1
1
1
1
I
1
1
1
I
1
I
1
1
OTHER
M
1
1













Enter grand toff/ of columns (It, (mt mnd
(nf, below and in item 13 on the front of
this form.
TOTAL
AMOUNT
CLAIMED »
             U.S. GOVBRHMHIT PRINTING OFFICE  : 1983 O - 421-526 (9151)
                                                                                                                                       STANDARD FORM 1012 BACK (10-77)

-------
    CLAIM FOR REIMBURSEMENT
         FOR EXPENDITURES
        ON OFFICIAL BUSINESS
                                          1. DEPARTMENT OB ESTABLISHMENT. BUREAU. DIVISION OR OFFICE
                                                                                         2. VOUCHER NUMBER
3. SCHEDULE NUMBER
                     Raad tha Privacy Act Sttttmant on tha bac* of this torn.
     «. NAME ILUl im
     c. MAILING ADDRESS imuOt fP Cam
8. PAID iY
                                                                    b. SOCIAL SECURITY NO.
                                                                  a OFFICE TELEPHONE NUMBER
6. EXPENDITURES (If lara elaimad in col. (g) axoaadt ehanja lor on* parton show in col. (h) tha numb* of additional panjont which teoompantad tha
                claimant.)
DATE
19 	
IV




















C
?
KM










9>o* •Pfntmt catt n eel »
A— Local traval
»— Tetaphona or tatograph, or
^^^Dthar Ej^anaas fttatnind)
ttwmn •**ra*rm ft **o*c nut.)
tcl FROM










It additional tpaca is requrad continua on tha bac*.
WTO










SUBTOTALS CARMBD FOUWARO FRO* TMi
BACK
7. AMOUNT CLAIMED (Total of cola. (f). (g) and (i).)t $
6. TNa claim is approvad. Long diatanea taiaphona caKa, H shown, ara carttflad
Mnaca»«aryinthaintaraBto«lhaQoyanTniantr/VlB>jrffvdlittrtci»callr
thahaadoftha
OFFICIAL ft
SKIN HEM F
dapartmant or agancy » so canny (3t U
Sign Original Only
9. This daim is carttfiad corraet and prepar lor paymant
Sign Original Only
AUTHORIZED k
CERTIFTINO \
OFFICER W
SMNNERI *
S.G aoajj
OATI
OATI
TOTALS

"SKS"
t
NO. OF
MILES
W












AMOUNT CLAIMED
MUAOI
a


















i
i
i


i
FARE
OR TOLL
(a








1
1














10. I cartify that thla dafen ia trua and con act to tha baat ol m
bataf and that paymant or cradM haa not baan racaivad
Sign Ohgrtal Only
AOO.
PER-
SONS












TIPS AND
a






i












i
i
y knowtadga and
by ma.
DATE
11. CASH PAflaWT RECENT



0. DATE RCOEMEO
C. AMOUNT
t
12 PAYMENT MADE
SY CHECK NO.
ACCOUNTING CLASSIFICATION
 1164-210
                                                                                              STANDAJID FORM 1164  (Htv. II-7T)
                                                                                              PraKitod by OSA. FPMR (CFR 41) 101-'
                                                         10-14

-------
6. EXKMDfTURES-Coflftntw*
	 5»ri —
ii 	


phofW or tDtogrtph, or
C-CWw EIPWMN pwnfetcp


« mow














































row ••




WTO














































*i count «n* «r«r an fotont mttol* •» ^

MtlEAOt
NATt
«


W















































A
MlCAOE


fl







































i
i
i
i
!
!
i
!
MOUNT CUU
fHflf
OflTOU.

tai















































HED
AOO
SONS

w
















































TIPS AND
LANEOUS

^














































i
 F«dmlTrat«IFtogul«lon((FPMR 101-7).E.G. ueWrt July 22.19T1.E.0.11012otlMreti27,19«2.E.O.8»7o«Nonvntar22. l»43,»n<)jeU.3.C.a01l(b)«nd6108.Tl»prtnwy
 pupOM at V» raquMlid tntomntai to to d»Hrmira pcynvnl or nimburnnniii » (llgM* MMduM tor iJoninbH Mvd and/or oOwr iip»n«»i incurred undv
                                                        •t*rm+1ot»Qm*rm^T^*tanT*lon^t*\Mrtfyr*)rt»9tKi&xjn*a*'i**^*to*'~
                                                                         >oapp«c«»»>iF«dar*SU»»,loc*otta>^ao*nc^.»t^f«^«n»ioc^corrw*.
                                                                .   .                    .     _  anamploywtotoauano»olaaacur«yc»aarane*,ar
 lri»a«tiojltotool^par>Bniwie«oloMelaidu»ii>nia»c»ion nunMn dhdoaur* to MANDATORY on vouchm oWmng
 paymant or raknomamiM wher, to. or may ba. taxattt Mooma. Otoctoaura of your SSN and o«iar raquaaMd mtumaaon to •aJuntary In al otiar Maraaat ho»»»ar. taaura to pro«W*
 *• Momwaon (othar inn SSN) mqulrad to aupport t» oMm may raau* ki oatoy or toaa of
                                              e.f.o.  i tii-n i • sii/ii ii
                                                                                                      STANDAKD FORM MM B*ck (lUv.il-TT)
                                                                10-15

-------
NOTES
 10-16

-------
                               10B  PAY ADMINISTRATION
A detailed discussion of rules and regulations regarding time-keeping and pay is beyond the scope
of this guide. Anyone wishing an in-depth understanding should consult with his or her personnel
office, and  the  Resources Management Directives System  (RMDS),  Division 2550-A,  Part  1,
"Timekeeping," and EPA's Pay Administration Manual.

In this section, the discussion focuses  on issues of particular  concern to inspectors, who travel
frequently and may in some cases be entitled to overtime or hazardous  duty pay.
Key Definitions	

Basic  pay is the rate of pay  fixed by law or administrative action for the position held by  the
employee before any deductions (such as taxes) and any additional pay (such as overtime).

Premium pay is additional pay authorized for overtime, night, holiday, or Sunday work, and  for
standby duty or administratively uncontrollable work.

Overtime pay is pay earned for work in excess of 8 hours per day or 40 hours in an administrative
workweek. It includes regular overtime work and irregular or occasional overtime work. It may be
paid to full-time and part-time, permanent and temporary employees.

Sunday work and holiday work is non-overtime work performed during a regularly scheduled daily
tour of duty which falls on a Sunday or a Federal holiday, respectively.

Standby duty is work performed in addition to the normal 40-hour workweek whereby the employee
is officially ordered and required to stand by at, or within the confines of,  the work station. While
not performing actual work, the employee is in readiness to answer any call for his or her services
(e.g., emergency response teams).  Other specific criteria must also be met for a position to include
standby duty.

Hazardous duty, or duty involving physical hardship or hazard,  is irregular or intermittent duty
involving unusual physical hardship  or hazard to employees.

Administratively uncontrollable work is hours of irregular or occasional overtime  work  found in a
position in which the  hours of duty cannot be controlled administratively, and is inherent in  the
nature of the job (e.g., a criminal investigator who must  perform surveillance).
                                          10-17

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Summary of Premium Pay
Following is a summary of premium pay for General Schedule (GS) employees.

                                         Annual salary divided by 2087 hours
Computation of hourly
rate of basic pay:

Overtime hourly rate
of pay:
Holiday pay:
  Day off:

  Work on holiday:
Maximum limit on
premium pay:

Hazard pay:
Compensatory time off:

Sunday pay:
Night pay/differential:
Administrative uncon-
trollable work pay:
                                         GS-10 Step 1 and below:
                                         1-1/2 x hourly rate of basic pay

                                         GS-10 Step 2 and above:
                                         1-1/2 x hourly rate of GS-10/1
                                         Basic pay

                                         Basic pay + 100% basic pay (no less than 2 or more
                                         than 8 hours); holiday overtime is paid at the same
                                         rate as overtime paid on another day

                                         Not to exceed pay for GS-15/10 in
                                         biweekly pay period

                                         Basic pay = (not to exceed 25% of employee's basic
                                         pay);  not subject to aggregate salary limitation

                                         Hour for hour for irregular  overtime work

                                         Basic pay + 25% of basic pay; Sunday overtime is
                                         paid at same rate as overtime performed on another
                                         day

                                         10% for hours worked between 6 p.m. and 6  a.m.
                                         Basic pay = (not less than 10% or more than  25%
                                         of that portion of basic pay  which does not exceed
                                         GS-10/1)
Standby and Hazardous Duty
Standby Duty
In standby duty, the employee's whereabouts are narrowly limited  and his or her activities are
substantially limited. The employee is required to remain at his or her living quarters or post of duty,
and must remain in a state of readiness to answer calls for his or her services. Standby scale ranges
from 5% to 25% of basic pay; the percentage paid depends on tour category and number of hours per
week required to be in standby status.
                                          10-18

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Hazardous Duty
An employee receives hazardous duty pay if he or she is assigned to perform irregular or occasional
hazardous duty, but the hazardous duty is not a part of regular duties. Hazardous duty pay does not
apply in a  position where the hardship or hazard  is already factored into the classification.
Hazardous duty pay is only paid when the employee is assigned to perform hazardous duty or duty
involving physical hardship and is not paid to a volunteer (e.g., someone who undertakes the task
without authorization either expressed or implied).

Duty involving physical hardship is duty causing extreme physical discomfort or distress that is not
adequately alleviated by protective or mechanical devices.  Examples include exposure to extreme
temperatures for a long period of  time; arduous physical exertion (e.g.,  cramped conditions);
exposure to  fumes, dust, or noise which causes nausea, skin, eye, ear, or nose irritation.

Hazardous duty is duty performed  under circumstances in which an accident could result in serious
injury or death. Examples include  work on a high structure where protective facilities are not used
or work on  an open  structure complicated by darkness,  lightening, steady  rain,  and high wind
velocity.

EPA Safety  Policy	
EPA's safety policy is that no employee be exposed to physical hardship or hazardous duty situations
without protective safeguards.  When  adequate  safety precautions have  reduced  the risk  to  a
negligible level, no hazard pay differential is authorized.

If an emergency response, waste removal, or other situation involving hazardous conditions warrants
a Level A, B,  or C category of protection, as described in the OSWER Standard Operating Safety
Guides, then it can be considered that  no  safety  precautions can be taken which will reduce the
degree of risk to a negligible level.  In such situations, hazardous pay should be authorized, provided
all other regulatory requirements are met.

If protective clothing and respirators are  worn at  a site of unknown hazard as a  precautionary
measure only and the  situation later turns out to be non-hazardous, hazard pay may not be granted.

If protective clothing and respirators are not worn at a site, presumed to be non-hazardous, which
later turns out to be hazardous, hazard pay should be granted.

Questions as to whether a risk is negligible or not should be referred to the designated safety official
in the EPA Region or Headquarters.
                                           10-19

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FLSA Exempt and Non - Exempt Federal Employees
Some EPA employees are covered by the Fair Labor Standards Act (FLSA); these employees are
termed "non-exempt." Other EPA employees are "exempt" from coverage by the FLSA.  Generally,
an employee is either exempt or non-exempt under the following conditions and grades.

     •  Grades 1-4:                             Automatically non-exempt

     •  Grades 5-6:                             Non-exempt  if less  than  80%  of the  work
                                               performed is  executive, administrative, or
                                               professional.

     •  Grades 7-10:                            Employees are exempt if their primary (grade-
                                               controlling) duty, generally covering 50% or
                                               more of work, is executive, administrative, or
                                               professional.   Generally, employees in  two-
                                               grade interval positions are non-exempt at the
                                               grade 7 level and are exempt at the 9 level.

     •  Grades 11-15:                           These  are presumed to  be exempt unless a
                                               waiver is granted  by the Office of Personnel
                                               Management.

Pay, benefits, and leave policy for exempt employees is established by  Title 5.
Premium Pav During Travel and Training
Travel Time Outside Normal Work Hours
Whether time spent traveling outside an employee's regular duty hours may be considered duty status
for pay purposes could depend on one or more of the following: (1) the specific conditions under
which  such  travel is performed;  (2) whether the employee is covered by FLSA; and (3) if the
employee is a non- exempt FLSA employee traveling on non-work days during hours corresponding
to their usual work hours.

All employees are entitled to compensatory time or overtime pay if their travel involves one of the
following conditions:

     •   Travel involves the performance of work. This requires the prior approval of a supervisor.
        Examples include reading or working on a work product on a plane, or escorting a prisoner
        to a distant prison.

     •   Work is  incident to travel involving performance of work.  This is work which can only be
        performed  while traveling.   Examples include  a specialist who  performs in route
        surveillance, or a truck driver traveling to a point of pickup of a truck to be driven to
        another  destination.
                                          10-20

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     •   Work is performed under arduous and unusual conditions. Examples would be travel over
        unusually adverse terrain; during severe weather; or to remote areas, barely accessible by
        foot, horseback, or truck.

     •   Travel results from an event which could not be scheduled or controlled administratively.
        Examples include: an emergency requiring testimony before a Congressional subcommittee
        on Monday morning which required the employee to travel on Sunday, work which results
        from  unforeseen  circumstances such as an  equipment breakdown, or travel by  an
        investigator to render immediate technical assistance in the investigation of an air accident.

For FLSA non-exempt employees travel time and travel to training time is counted as hours of work
under the following  conditions:

     •   Day travel to temporary duty station (TDY): Travel time minus normal commute time, or
        all time if working while traveling.

     •   Overnight travel to TDY: All time "actually working," or if traveling as a passenger, only
        time traveling during "corresponding hours."

For FLSA-exempt employees travel time is counted as hours of work  only during the regularly
scheduled administrative workweek (to the maximum extent possible).

Premium Pav for Training Outside Normal Working Hours

FLSA-exempt employees are prohibited from receiving premium pay for the time period spent in
training.

A FLSA  non-exempt employee may receive premium pay for time spent outside normal  working
hours in training if directed by the Agency to attend the training, under the conditions below.

     •   The employee can receive premium pay for preparation and attendance if the training is
        required for the employee to reach an "acceptable level of competence" or to learn new skills
        or processes required for his or her current position.

     •   The employee mav not receive premium pay if the training is to bring the employee beyond
        the acceptable level of competence; to acquire new skills for reassignment or advancement
        to a higher  grade; or training in an apprenticeship, internship, or Veterans Readjustment
        Act program.
                                          10-21

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NOTES
 10-22

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                                   IOC PROCUREMENT
Regulations governing procurement are complex and voluminous. Only designated Headquarters and
Regional personnel have the authority to call vendors and place orders for supplies, equipment, or
other services. They also comparison shop to obtain the best prices. All procurement actions must
be approved bv these designated individuals, who will help EPA staff make needed purchases in
compliance with  the regulations.   The  purpose  of this section is to  provide  inspectors with
information and guidance that will help  to assure smooth and timely processing of Procurement
Requests (PRs, EPA  Form 1900-8).

A small purchase is defined as an acquisition of equipment, supplies, or nonpersonal services on the
open market  in the  amount of $25,000  or less.   (Larger  purchases are governed by different
requirements  and  are not covered here.)
Advance Planning for Procurement	

Advance planning -- identifying supplies and equipment that will be needed to carry out inspections
--is the best way to help ensure that the products and services will be acquired without disruption.
Determine the logistical needs of the inspection and prepare a Procurement Request (PR) for each
item on the list.  (For field supplies, see also the discussion of Physical Sampling in Chapter 13.)

Suggestions for advance planning are:

     •  Take and maintain an inventory of office supplies, equipment, and other needs.

     •  Establish a list of two or three sources that are capable of supplying identifiable needs.

     •  Conduct early discussions with the purchasing unit regarding any planned activities and any
        unique or proposed sole source requirements.

     •  Submit PRs early to allow sufficient time for competition.

     •  Be sure that the specifications or statement of work meets your total needs.

     o  Allow sufficient time for typing error-free and accurate PRs by staff.


Small Purchases and the Imprest Fund	

If the items needed can be picked up locally, it may be possible to obtain an advance from Imprest
Funds for the purchase. There is a dollar limit for the amount that can be obtained this way, e.g.,
$500.

Specific procedures  vary  by Region,  but in all  cases  a completed Procurement  Request with
appropriate approvals will be required. A  signed receipt for the supplies will need to be  returned
to the Agency.

                                           10-23

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Preparation of the Procurement Request Form
EPA Form 1900-8 (see Exhibit 10-1) consists of a non-shaded area that is to be filled out by the EPA
program office seeking goods or services, and a shaded area that is filled out only by the purchasing
unit.  Instructions for completing the form are provided on a cover sheet to the form.

The program office must ensure that financial data is provided in Block 12, and that the amount of
money cited is adequate to pay for the purchase of goods or services.

To avoid delays due to a need for re-typing, the program office must provide an accurate and legible
document devoid of strikeovers.  There must not be any writing or typing over the shaded areas.

In Block 26(b) entitled, "Supplies or Services," type or write only a description of supplies or services
to be acquired;  no justification or other information should be included.  All information not
required on Form 1900-8 should be provided on a separate attachment; this will significantly reduce
processing time.

The following information is usually required for a procurement:

Signatures	

     1) Originator
     2) Branch  Chief
     3) Division Director
     4) Commitment Clerk (Administrative Assistant)
     5) Property Management Officer
     6) Finance Office designee (FMO, Accountant, or Budget Analyst)
     7) Procurement Agency

Accounting Data	
     1) Appropriation
     2) Account Number
     3) Document Control Number
     4) Object Class
     5) Total Cost

Other Requirements	

     1) To whom the items should be delivered
     2) Delivery address
     3) Suggested source (if known)
     4) Complete description of item
     5) Quantity ordered
     6) Justification for the purchase
                                          10-24

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Once delivery of the items or services has been accepted, it is the receiving office's responsibility
to provide the finance office with the signed receiving report. This report is on the back of Copy
5 of the Procurement Request, which will have been returned to the originator by the procurement
agent as soon as the order was completed.  As soon as delivery is accepted, sign the form and send
it to the finance office. Regulations require that this report be in hand before payment can be made
to the vendor.
Unauthorized Procurements	

An unauthorized procurement results when an  individual who  is not  authorized  to  make  a
commitment on behalf of the government does so and causes a vendor to perform a service or to
deliver a product which creates an obligation.

Except for paid advertisements, which the EPA is not authorized to ratify, unauthorized purchases
mav be ratified bv the head of the contracting office, i.e., Washington, Cincinnati, and RTP, if it
is  determined that  the  action would have been proper had an  individual with the appropriate
delegated contracting officer's authority made the commitment.

If  the action is considered "improper" and cannot be ratified, the government has no  legal liability
to  pay it.  The employee who made the purchase might have to pay.

Procedures for consideration for ratification of an unauthorized purchase will vary by Region, but
will usually involve a division director level memorandum of explanation, an invoice, a Procurement
Request  form showing that sufficient funds are  available, and  a justification for sole source
acquisition if the purchase was for more than $1,000.

Unauthorized  actions can be  avoided with good  planning, and immediate  notification of the
purchasing office if there is an urgent or  unforeseen need for supplies or services.
Purchases in the Field	

No matter  how much advance planning has been done, there  may be a time when something is
needed that was not thought of before departure.  Procurement in the field is tricky.

The regulations require that a procurement agent approve all procurement actions.  Always call in
and report what is needed  and  why  it is needed before making  the purchase. This will  allow
preparation of the proper documentation.  In addition to contacting the procurement agent, contact
the office commitment clerk (administrative assistant) and report what items and services are being
acquired, since it is his or her responsibility to track costs and be aware in "real  time" how much
money is being spent.

By calling in, the items can be entered into the Document Control Register, the Procurement Request
can be prepared, and all approvals obtained prior to return of the inspector to the office.

Always obtain a signed receipt for any goods, supplies, or services purchased that can be presented
for reimbursement. Submit the receipt with the travel voucher, indicating that a call was made to
report the purchase.

If these simple procedures are not  followed, it may be necessary  to submit the procurement to
Headquarters for ratification, a time-consuming process which  could delay reimbursement.

                                           10-25

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  (Shaded areas are for use of procurement office only)
                                                                                                                  Page
                                                          of
 O p DA
US Environmental Protection Agency
     Washington. DC 20460
   Procurement
 Request/Order
                                                  1. Name of Originator
                                                 3. Mail Code
                                                                    4. Telephone Number
                                                                                                      2. Date of Requisition
                                    5. Date Item Required
 6. Signature of Originator
                                                                    7. Recommended Procurement Method

                                                                    I—I Competitive  I—I Other than full and open competition LJ Sole source small purchase
B. Deliver To (Project Manager)
                                      9. Address
                                                                                       10. Mail Code    11. Telephone Number
     12
   Financial
    Data
            a. Appropriation
                                               b. Servicing Finance Office Number
                     NOTE: Item 12(d) Document Type — Contract = "C,"

                            Purchase Order = "P"
             ... FMO Use ..
              (c|f73 digital
                                             Document
                                           Control Number
                                             (e) 16 digits!
Account Number
  (\)(10 digits!
                                                                        Object
                                                                        Class
                                                                      (g) /* digits!
                                                                                                                   Amount (h)
                                                                                                                  Dollars
                                                                                                                                    Cent
13. Suggested Source (Name, Address, ZIP Code. Phone/Contact)
                                                                 14. Amount of money
                                                                  committed is:

                                                                      D Original
                                                                      G Increase
                                                                      D Decrease
                                                                                       16. For Small Purchases Only: Contracting Office is autho-
                                                                                        rized to exceed the amount shown in Block 12(h) by 10% or
                                                                                        $100. whichever is less.
                                                                                         D
                                                                                           lYes
                                 DNO
                                                              16. Approvals
a. Branch/Office
                                                   Date
                                                                     d. Property Management Officer/Designee
                                                                                                                        Date
 t>. Division/Office
                                                   Date
                                                                    e. Other (Specify)
                                                                                                                        Date
c. Funds listed in Block 12 and Block 15 (if any) are
  available and reserved. (Signature of Certifying Officia,
                                                   Date
                                                                     f. Other (Specify)
                                                                                                                        Date
17. Date of Order
                          18. Order Number
  19. Comract Number (if any)
                                                                                                       20. Discount Terms
21. FOB Point
                                            22. Delivery to FOB Point by On or before (Date)
                     23. Person Taking Order/Quote and Phone No.
24. Contractor (Name, address, ZIP Code)
                                                                    25. Type of Order
                                                                    D a. Purchase
                            Reference your quote (See block 23)
                                                                      Please furnish the above on the terms specified on both sides of this order and on
                                                                      the attached sheets, if any. including delivery as indicated.
                                                                     D b. Delivery provisions on the reverse are deleted.  The delivery order  is
                                                                          subject to the terms and conditions of the contract. (See Block 19)
                                                                       C.  LJ Oral   D Written   LJ Confirming
                                                               26. Schedule
   Item
  Number
    (a)
                               Supplies or Services
                                      (b)
                                                                     Quantity
                                                                     Ordered
              Unit
              (d)
                                                                    Estimated
                                                                    Unit Price
                                                                       (e)
                                f.'' Unit
                                   Price
Amount
  (0)
Quantity
Accepted
   (h)
                                                                                                  W.'-. >•;•;
                                                                                                                       •If'
                                                                                                    Total*
R7. United States of America •:•'. • $V•'' ."•••""
|p,8y (Signature) •- -.: ••••,        ,-
                 1-      •    "•   •
                                                                    28. T\-ped Name and Title of Contracting Officer
 EPA Form 1900-8 (Rev. 9-86) Previous editions are obsolete.
                                                                    10-26
                                                                                COPY 1-PROCUREMENT RLE/CONTRACTING OFFICER

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                   Instructions for Completing EPA Form 1900-8

                                Procurement Request/Order

General:

This form is a 9-part interleaved set and is designed to be completed with an elite typewriter (12 pitch). The originating
office should complete all areas that apply. Shaded areas are reserved for Procurement use only. After completing the
form, in accordance with the instructions below, retain the copy marked for "Originator" and send the others through
required channels.

Hem:

1 thru 6       Enter the originator's name, mail code, telephone number, date of requisition, signature of originator,
              and the latest date that the items can be delivered.

7             Self explanatory. Attach a justification for other than full and open competition or for sole source small
              purchases.

8 thru 11      Enter the name, address, mail code, and telephone number. If the person is the same as the originator,
              leave blank.

12            Self explanatory.  Failure to include the appropriation number, the number of the Servicing Finance
              Office designated by the Financial Management Division for the accounting office which will record the
              commitment and obligation, document type, document control number, account number, object class, or
              dollar amount may result in the return of the request to the originator for completion of these items.
              Special care should be taken to insure that all data placed in these blocks are accurate and appear legibly
              on all copies as these data will serve to record the commitment of funds as well as to eventually obligate
              the funds on the contract document. Note: Item 12(d) should be used to denote document type (DT) code,
              i.e., C = EPA prime contract, P = EPA purchase or delivery order.

13            If more than 1 source is suggested, attach a list of the contractor's/vendor's name, address, and point of
              conteict (if known) for each  source.

14            Self explanatory.

15            For Small Purchases Only: Check one box. If "Yes" is checked.the funds certifying official must commit
              sufficient funds in the Document Control Register to cover the total potential amount of the obligation.

16            Self explanatory.

17 thru 25     For  procurement office  use only.

26(a)         Self explanatory.

26(b)         The degree of detail required will vary with the complexity of the proposed procurement. Each request
              shall contain sufficient  information on its face to process the request. If the proposed procurement is for
              nonpiersonal work or services, provide a title which specifically describes the work or  services to be
              procured and limit the title to sixty (60) positions, including the spaces between each word of the title for
              cbmputer input, and attach the documentation required  in Chapter 2 of  the Contracts Management
              Manual. In other instances, describe the article(s) requested in detail using manufacturer's  model
              numbers and descriptions, if possible, and provide specification, quantity  increment, delivery require-
              ment, and special packaging or transportation requirements.  (Use EPA Form  1900-8A, Continuation
              Sheet, if additional space is required.)

26(c) and      Self explanatory.
26(d)

26(e)         Enter the estimated price of the item

26(f) and      For Procurement  use only — Leave Blank.
26(g)
26(h)         Used for inspection and acceptance only.

27 and 28     To be completed by the contracting officer.

Note:         The contracting officer will complete the blocks marked "Invoice Address" and "ShipTo" on copy 2 when
              this form is used as a purchase order.
EPA Form 19OO-8 (Rev, 9-86) Previous editions are obsolete.
                                                  10-27

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NOTES
 10-28

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11 - Opening Conference

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                                       CHAPTER 11

                      GAINING ENTRY AND OPENING CONFERENCE
The initial face-to-face contact between the inspector and facility officials helps to set the tone of
the inspection and the degree to which the facility officials actively cooperate.

This contact begins with steps to gain entry into the facility.  Key points related to entry are
summarized in Section  11 A, and are discussed in detail in Chapter 7.   Entry is  followed by an
opening conference (Section 11B) in which the inspector explains the purpose of the inspection and
makes logistical arrangements for carrying out on-site activities.
                                            11-1

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NOTES
 11-2

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                                   11A  GAINING ENTRY
EPA's authority to conduct inspections is discussed in detail in Chapter 7, as are EPA's policy and
procedures for consensual entry and for seeking and  inspecting with a warrant.  It is essential to
follow these procedures and to document that they were followed to assure that any information
collected during the inspection cannot be challenged as being unlawfully  obtained.

Key points associated with beginning entry to a facility for inspection purposes are summarized
below; see Chapter 7C for a complete discussion of each.

     •   EPA's policy is to enter with the consent of facility officials.

     •   Arrival should be during  normal working hours and through the main gate unless special
         circumstances dictate otherwise.

     •   Credentials must be presented whether identification is requested or not.

     •   A written  Notice of  Inspection must be presented and signatures obtained  in inspecting
         under TSCA, FIFRA, or SDWA authority.

     •   EPA's inspection authority is broad. It includes authority to take samples, take photographs,
         make tape recordings, photocopy documents, or otherwise manually or electronically record
         any information at the facility.

     •   If facility officials deny consent, seek to limit the scope of the  inspection, or otherwise
         attempt to place conditions on the  inspector's conduct of  the  inspection, the inspector
         should leave the premises  immediately. The inspector should contact the appropriate EPA
         official (usually, the inspector's supervisor,  who  consults with Regional attorneys) and
         await direction on next steps to take, such as seeking a warrant.

     •   When  inspecting with  a  warrant, the inspector  must  follow  carefully the terms and
         conditions of the warrant.
                                            11-3

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w
Inspector
Inspector
^•^^ A United States
P>P*XA Environmental Protection
kil a^m Agency
NOTICE OF INSPECTION
Name and Address
'» Signature
Title
Name of Firm
Firm Address
Date Time
Name and Title of Recipient
Signature of Recipient
D
      REASON FOR INSPECTION
      Under the  authority of  Section  11  of the  Toxic  Substances  Control  Act
      For the purpose  of inspecting (including talcing samples,  photographs,
      statements,  and  other inspection activities)  an establishment,  facility,
      or other premises  in  which  chemical  substances  or  mixtures  or articles
      containing same  are manufactured,  processed or  stored,  or held  before
      or after their distribution in commerce  (including records,  files,
      papers, processes,  controls,  and facilities)  and any  conveyance being
      used to transport  chemical  substances, mixtures, or articles containing
      same in connection with their distribution  in commerce  (including records,
      files,  papers, processes, controls and facilities)  bearing  on whether the
      requirements of  the Act applicable to the chemical substances,  mixtures,
      or articles  within or associated with such  premises or  conveyance have
      been compiled with.
In addition, this inspection extends to (circle appropriate  letters)
                   (A)   Financial  data
                   (B)   Sales  data
                   (C)   Pricing data
                                        (0)   Personnel data
                                        (E)   Reserach data
      The nature  and  extent of  inspection  of  such data  specified in  A through
      E  above  as  follows:
                                        11-4

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                               11B OPENING CONFERENCE
Once credentials and required notices have been presented, the inspector can proceed to hold the
opening conference with facility officials. During this meeting, the inspector presents an overview
of the inspection plan and queries facility officials to  gain a fuller understanding of the facility's
organization, to obtain current information regarding facility operations and processes, and to clarify
any key issues or ambiguities identified during the process of planning the inspection. This section
addresses the inspector's role in conducting the opening conference, together with relevant meeting
agenda items.  This section concludes with a discussion of mid-course adjustments that may be
needed in response to information divulged during the opening conference.

The  Inspector's Role During the Opening Conference	

The opening conference establishes a forum for the exchange of information between EPA inspection
personnel (and by extension, the Agency) and facility officials. This information exchange should
focus on,  but not be limited to,  the inspection  itself. The inspector should  be aware of several
principles that can increase the effectiveness  of the opening meeting:

     •  Gain an early rapport.

     •  Start the  meeting on a positive and professional note.

     •  Prepare and use any supporting information  that will enhance the discussion; e.g., a copy
        of the Act, technology transfer materials, or  other resources.

     •  Acknowledge  that the  inspection  may disrupt  daily facility  routines, but  assert that
        reasonable efforts will be made to minimize such disruptions.

     •  Listen carefully and be willing to answer facility officials' questions.  But, do not permit
        yourself  to be maneuvered into bending EPA policies/procedures or overstepping your
        authority in an attempt to accommodate facility representatives. For example, do not give
        opinions  that are "shot from the hip" about whether facility practices, as described during
        the discussion, are acceptable and will be found in compliance.

A cooperative working relationship developed during  this opening meeting can set the tone for the
remainder of the inspection. It also can be used as the foundation for strengthening Agency-industry
relationships.  If approached properly, the opening conference provides an ideal opportunity for the
inspector to function as a public relations liaison  and educator.

From  the perspective  of  both the  Agency and  the regulated community, the  inspector is well-
positioned  to serve as  a source of regulatory information.  As such, the inspector should provide
tactful help before, during, and after the inspection.
                                            11-5

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Areas of particular concern include:

     •   Voluntary compliance.

     •   Overview of the law.

     •   Specific regulation requirements.

     •   Help with facility-specific problems.

     •   Agency outreach efforts.

     •   Other sources of assistance.
Meeting Agenda Items
The opening conference should be used to inform facility representatives of the general purpose
and scope of the inspection and the requisite logistical arrangements. At the same time, the inspector
should use the meeting to refine an understanding of the facility's operations and practices so that
an assessment can be made of the necessity to make mid-course adjustments to the Inspection Plan.

Statement of Purpose	
An outline of inspection objectives  will inform facility officials of the purpose and scope of the
inspection, and may help avoid misunderstandings. The EPA inspector should explain the anticipated
post-entry inspection activities in general terms. This discussion should avoid providing the facility
representatives with the precise focus of the inspection.  There are two reasons to emphasize the
general purposes, while avoiding the specific focus of activities:

     •   Providing facility representatives with the specifics may create a situation whereby they
         use that knowledge as essentially  advance notification, and contrive some appearance of
         compliance (or hide violations) in those areas they now know will be subject to scrutiny.

     •   The use of a general description of purposes minimizes the likelihood that facility officials,
         once having consented to the inspection as generally described, will withdraw consent based
         upon their perception that the inspection includes more than they understood and agreed
         to (or at least, did not refuse).

         Conversely, the use of specifically focused  statements of purpose may circumscribe the
         nature of a facility's consent.  That is, facility representatives may incorrectly perceive that
         they are agreeing only to those items mentioned and, by extension, onto to any others.  Such
         perceptions could contribute to misunderstandings later on.
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Understanding Facility Operations and Practices

The opening conference permits inspection personnel to query facility representatives about current
operations and practices, as well as organizational accountability and personnel, that may not have
been included (or requires clarification) in Agency records.  The key areas to address are (as adapted
from the "Environmental Auditing Skills and Techniques Workbook," Arthur D. Little, Inc. for the
Edison Electric Institute):

     •   The nature of the operations.  The inspector should, establish what activities take place
         from an  operational standpoint; what materials are used; and what the environmental
         implications are.

     •   The maior facility environmental programs. The inspector should query what programs
         are in place at  the facility,  such as effluent sampling,  analysis and reporting, training,
         inspection and maintenance of pollution control equipment, emergency response, etc.

     •   The applicability of environmental regulations. Verify that facility operations and programs
         have not changed in such a way  as to alter the regulations or requirements that apply to the
         site.  For instance, the inspector  may learn that a facility has recently obtained a new permit
         to store wastes on-site or that it no  longer has PCBs on-site. Such  information will  permit
         the inspector to review and revise the Inspection Plan, if necessary, by shifting the emphasis
         of planned activities, deleting inappropriate activities, and/or adding new activities that
         were not initially considered relevant.

     •   Key  responsibilities, authorities, and accountabilities.  The inspector should establish  who
         is responsible for: specific environmental activities, communicating the chain-of-command
         in case of emergencies, developing environmental performance measures, etc. In addition,
         it is  important to clarify what authorities have been  specifically delegated, and  how
         accountabilities are established  and maintained.

         A telephone directory or a chart showing how the facility is organized can be requested.
         The  above information will  assist the inspector in  determining which individuals  are
         knowledgeable about specific areas and who should be interviewed.

Logistical Arrangements	
Logistical requirements and arrangements should be addressed in the opening conference to minimize
delays and avoid misunderstandings.  Relevant considerations include:

     •   Accompaniment.  It may be beneficial to  encourage  a facility official to accompany the
         inspector during the inspection  (or selected parts of it) to describe the facility and its
         principal operating characteristics and,  where appropriate, to indicate which processes,
         records, etc., should be claimed as confidential business information.

     •   Safety  requirements.  The inspector  should determine what  OSHA  and facility safety
         regulations will be involved in the inspection, and should be prepared to meet these. Note,
         however, that EPA typically has its representatives use the same safety equipment that is
         actually used by employees. EPA has the  right to and does decline  to undergo the safety
         training that facilities require of their employees, with the  exception of site-specific mine
         safety training required  under EPA Order 1440.4.

                                             11-7

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     •  Order of inspection.  A discussion of the order in which operations will be inspected will
        help eliminate wasted time by allowing officials time to make records available and start
        up intermittent operations.

     •  List of records.  A list of records to be inspected will permit officials to gather and make
        them available for the inspector.  If, however, the inspector has any reason to believe that
        such "advance warning" will tempt facility representatives to "sanitize," withhold portions,
        or destroy records,  such a  list should be  prepared for inspector use only, but not for
        submission to facility officials.

     •  Meeting schedule.   Based  upon  the  planned inspection activities and  the inspector's
        understanding of facility personnel responsible for key assessment topic areas, a schedule
        of meeting times can be developed.  This will permit key personnel to clear  time to meet
        with the inspector.

     •  Duplicate samples.  For three of the EPA administered statutes (CERCLA,  FIFRA, and
        RCRA), facilities have a right to receive a duplicate of any physical sample (liquid or
        solid) collected for laboratory analysis. If these circumstances apply, the inspector should
        inform facility officials of their right to duplicate samples during the opening conference.
        Officials should indicate at  that point their desire  to  receive duplicate samples so  that
        arrangements can  be made to secure these samples during the inspection.
Mid-Course Adjustments to Inspection Plan	

After the opening conference, the inspector (or inspection team) should have sufficient information
to decide whether any fundamental changes to the inspection plan, which  was developed prior to
arriving on-site, are necessary.  If the opening conference did not uncover any information that
requires adjustment of anticipated activities,  then  the  solo inspector or team should proceed as
planned. However, if the opening meeting provided information that is critical to meeting inspection
objectives, but was not originally anticipated, then on-site activities should be adjusted accordingly.
For example, if the facility is found to be a generator of large quantities of hazardous waste (and this
was not expected  during  the planning stage), then it  may  make sense to concentrate more on
hazardous waste management activities than originally planned.

When reviewing the inspection plan,  the inspector should bear in mind that changes in the scope
of the inspection must  be accommodated within the constraints of available resources, such as time
and manpower.  Particular attention  must be  paid  to the initial  sampling  plan, as well as to the
development of an altered sampling plan, to ensure that  any unforeseen additions to the inspection
can be accomplished utilizing the sampling equipment that has been brought on-site.  Additionally,
if the sampling plan is subjected  to revision, care  should be exercised in the selection of "new"
representative sampling sites and in reviewing appropriate procedures for sample collection. If the
inspection  is being conducted as a team effort (rather  than  by a solo inspection), review of the
inspection plan should  also focus attention on:

     •  Appropriateness of Task Assignments. Given the Modifications to  Planned  Activities.
        Based upon the information gathered to date, the appropriateness of inspection assignments
        should be re-evaluated. Since each inspector will have prepared for his assigned role in the
        on-site activities, it may not  be effective to switch assignments  once on-site. However, it
                                            11-8

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        may be appropriate to shift the emphasis or to shift additional team member support to
        assessment areas that, upon review, appear understaffed.

        Confirm Time Availability. Since the team is actually assembled on-site, where first-hand
        observations of facility size, layout, and complexity are possible, it is important to re-check
        whether inspection activities can actually be completed in the allotted time and whether
        each team member's task assignments are reasonable given time and scheduling constraints.
        A review of the finalized sampling plan is essential to developing  an accurate assessment
        of such issues.
Exercising Judgment in the Field	

Ideally, on each inspection, EPA inspectors would determine compliance with every requirement
applying to the facility and every suspected violation would be fully documented. Although EPA's
goal is to come as close as possible to this ideal, the realities of time and resource constraints as well
as the practical limits on the number of physical samples that can be collected on one trip, mean that
inspectors must often make judgments about exactly what to inspect at a given facility and how
thoroughly.

The scope and objectives of an inspection should be established as part of the inspection planning
process.  Since most facilities are subject to many different requirements even  under one statute,
the inspection plan should set out in advance which requirements will be focused on in the inspection
and the activities that will be undertaken to determine compliance with them.

Once  on the site, the  inspection plan serves as a guide to the inspection.   Often, however, an
inspection turns out to be more complex than anticipated,  or multiple violations are observed, or
violative conditions that are not the original focus of the inspection are found. The inspector is then
faced with determining whether the original plan should be  followed or modified and the degree to
which each potential violation should  be documented.

While there  are no hard and fast rules for making these judgments, the inspector can prepare for
them  by being familiar with the particular program's enforcement priorities and how  serious the
Agency considers various categories of violations.  As a quick guideline when choices must be made
in the field, inspectors should most fully document the more serious violations, being sure to collect
sufficient information necessary for  determining an appropriate enforcement  response.  This is
because, stated generally, the likelihood that the Agency will pursue a formal enforcement action --
and the size of the civil penalty assessment, when appropriate -- increase with the seriousness of
the violation.  The standard of proof required to prove that a violation occurred also increases with
the level of enforcement action taken (informal, administrative, judicial).  Likewise, the likelihood
of a challenge to the Agency's action increases with the level of action and size of penalty assessment.

Program enforcement response and penalty policies, compliance  monitoring strategies, and  other
planning documents such as the Operating Year Guidance are good sources for information regarding
program priorities and the seriousness attached to various categories  of violations.  The inspector
should also  follow EPA inspection and sampling procedures prescribed  in EPA guidance.   The
inspector should document any deviation from Agency Standard Operating Procedures.
                                            11-9

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                           TSCA INSPECTION CONFIDENTIALITY NOTICE
A ^™^\JV United States
^Mfe •"P^tA Environmental Protection
^MPtil ^^ Agency
TSCA INSPECTION
CONFIDENTIALITY NOTICE
Inspector Name
Inspector Address

None of Individual to Whom Notice Given
Facility
Facility Address
Chief Executive Officer of Firm
Title

Title
It is possible  that  EPA will receive public requests
for release of  the information obtained during in-
spection of the facility  above.  Such requests will
be handled by EPA in accordance with provisions of
the freedom of  Information Act  (FOIA), 5 U.S.C. 552)
SPA regulations issued  thereunder, 40 CFR Part 2j and
the Toxic Substances Control Act, Section 14.  EPA is
required to make inspection data available in re-
sponse to FOIA  requests unless the Administrator of
the Agency determines that the data contains informa-
tion entitled to confidential treatment.

Any or all the information collected by EPA  during  the
inspection may be claimed confidential if it relates
to trade secrets or  commercial  or  financial  matters
that you consider to be confidential.  If you  make
claims of confidentiality,  EPA  will  disclose the  in-
formation only to the extent, and  by means of  the
procedures, set forth in  the  regulations  (cited above)
governing EPA's treatment of  confidential information.
Among other thinas,  the regulations  require  that  EPA
notify you in advance of  publicly  disclosing any  in-
formation you have claimed and  certified confidential.
  To Claim Confidential Information

To claim information confidential,  you must  certify
that each claimed item meets all of the following
criteria:

1.  Your company has taken measures to protect  the
    confidentiality of the information,  and  it  in-
    tonds to continue to take such  measures.

2.  The information is not, and has not been, reason-
    ably obtainable without your company's consent
    by other persons (other than governmental bodies)
    by use of legitimate means (other than discovery
    based on a showing of special need in a  judicial
    or quasi-judicial proceeding).
3.  The information is not publicly  available else-
    where .

4.  Disclosure of the information would cause sub-
    stantial harm to your company's  competitive
    position.

At the completion of the  inspection, you will be
given a receipt for all documents, samples, and other
materials collected.   At  that time,  you may make
claims that some or all of the information is con-
fidential and meets the four criteria listed above.

If you are  not authorized by your company to make
confidentiality claims, this notice  will be sent by
certified mail, along with the receipt for documents,
samples,  and other materials to the  Chief Executive
Officer of your firm within two days of this date.
The Chief Executive Officer must return a statement
specifying  any information which should receive con-
fidential treatment.

The statement from the Chief Executive Officer should
be addressed to:
and mailed by registered, return-receipt-requested
mail within seven  (7) calendar days of receipt of
this Notice.
Failure by your firm to submit a written request
that information be treated as confidential, either
at the completion  of the inspection or by the Chief
Executive Officer  within the  seven-day period, will
be treated by EPA  as a  waiver by your company of
any claims for confidentiality regarding the in-
spection data.
To be completed by facility official receiving this notice
I have received and read this Notice.
Name
Title
Signature
Date
If there is no one on the premises of the facility who is
authorized to make business confidentiality claims for the
firm, a copy of this Notice and other inspection materials
will be sent to the company's chief executive officer. If
there is another company official who should also receive
this information, please designate below.
Name
Title
Address

                                                       11-10

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TSCA Inspection Confidentiality Notice
 1. Enter Inspector's named)
    and  EPA office address (2)

 2. Enter the complete,
    official name of the
    facility being inspected
    (3)  and its complete
    street address (4).

 5. Enter the name (5), title
    (6),  and complete
    address (7) of the chief
    executive officer of  the
    firm.

 8. Enter the name (8) and
    title (9)  of the person
    receiving the Notice.

10. Enter the date of the
    Notice.

11. Enter the complete
    address of the Regional
    Document Control Officer
    authorized to receive the
    statement from the chief
    executive officer.

12. Enter the name (12) and
    title (13)  of the person
    receiving the Notice. Have
    this  person sign (14) and
    date  (15)  the Notice.

16. Enter the  name (16),
    title (17), and complete
    address  (18)  of the
    company official who, in
    addition to the chief
    executive  officer, should
    receive a  copy of the
    Notice.
                                   TSCA INSPECTION
                                   CONFIDENTIALITY lOTICi
                                                8
                 10

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                                          12
                                          13
                                          14
                                          15
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                                                        • I &«••«.•• •flfM. If >>**• II M***** I»JI»| I
         16
         17
                                                                  18
                                  11-11

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NOTES
 11-12

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12 - Records Review

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                                       CHAPTER 12

                                    RECORDS REVIEW
All of EPA's statutes and regulations include provisions requiring regulated facilities to maintain
records of various kinds.  In addition, facility files contain many other types of records that may
be useful in ascertaining the facility's compliance with other types of provisions. Examination of
records is a key part of many EPA inspections.  Inspecting records for compliance  purposes is an
art.  No  set of instructions can prepare inspectors for  the variety of records and  recordkeeping
systems they are likely to encounter.  The investigative skills involved in using records to determine
compliance are also not easily conveyed; these skills are  largely developed through experience.

The purpose of this chapter is to provide some basic information about conducting a records review.
Section 12A contains procedures for identifying documents that are copied to assure that they can
be  easily  authenticated if entered as  evidence  in  legal proceedings and  special procedures for
handling confidential data. Records Sampling Strategies (12B) explains sampling techniques that can
be used to select an appropriate portion of records to be reviewed for a given inspection purpose.
                                            12-1

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NOTES
 12-2

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                               12A  RECORDS INSPECTION
While conducting effective records inspections is an important investigative skill for EPA inspectors,
it is an art that i:s developed largely through experience and practice.  This is due to the variety and
complexity of records requirements, types of recordkeeping systems, and ways in which records can
be used to identify and document compliance problems.

As for all other aspects of an inspection, inspectors must be familiar with the records requirements
and related inspection procedures of the particular program for which the  inspection is  being
conducted.  This section discusses the considerations involved in conducting records inspections
under any  program and  the procedures for  documenting for evidence purposes the information
collected and/or copies of records obtained during the inspection.
Legal Aspects of Records Inspection
Authority
Each statute contains language concerning inspection of records. Some allow removal of records,
while others allow only copying or recording. Inspectors must know the specific provisions of the
statute under which the inspection is to be conducted. However, absence of statutory authority to
remove records can be overcome  when the inspection is conducted pursuant to a warrant that
specifically authorizes the removal.

The procedures in the remainder of this section pertain to inspections where only copying is provided
by a statute.

Records as Evidence	
Records can include tapes, phone messages, printed manuals, guidance from EPA, business records,
photographs, etc.  It is important to the admissibility of records as evidence that the  inspector
document enough information to demonstrate the records' authorship, location, and distribution.

The Rules of Evidence define the basis for introducing records as evidence.  Records are "statements"
of the defendants and admissible under Rule 801(d)(2). They also are admissible as business records
under Rule 803(6).  Finally, the absence of records is important, and that fact is admissible under
Rule 803(7).
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Objectives
The basic purpose for inspecting facility records is to determine compliance with environmental
requirements.  The primary objectives of records inspection are:

     •   To determine whether records  required by  statute  or  regulation are being adequately
         maintained.

     •   To use facility records as a means of substantiating compliance (or noncompliance) with
         other requirements.
Types of Records	

The inspector may need to examine the following types of records:

     •   Annual reports
     •   Production records
     •   Shipping records
     •   Inventory records
     •   Sales records (invoices, receiving records, etc.)
     •   Process records
     •   Quality control records
     •   Disposal records
     •   Labels and literature
     •   Permits -- State, local, and Federal
     •   Correspondence
     •   Exemptions
     •   Personnel records
     •   Self-monitoring records
     •   Operation and maintenance records.

Information Retrieval Systems. Inspectors  will encounter many electronic and visual systems for
storing information needed for an inspection. Computers, microfilm, microfiche, and other systems
will not pose retrieval problems if the inspector has carefully established inspection objectives and
knows the type of information he or she is looking for.
Review Considerations	

When reviewing  records, inspectors should enter into the field logbook the kinds of records
examined, and the reasons for examining them. Particular attention should be paid to the quality
of information being reviewed. When reviewing records, the following questions should be kept in
mind:

     •  Is the information complete?

     •  What are alternative sources for the same information?

     •  Has the facility  made an honest attempt to meet recordkeeping requirements?
                                           12-4

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In addition, inspectors should look at records in terms of the following general considerations:

     •  Compare current reports with field data or past reports for possible discrepancies or too
        much consistency which may suggest false reports.

     •  Check for completeness, accuracy, and quality of required records and reports.

     •  Ascertain compliance with record retention requirements.

     •  Compare information contained in the records with first-hand observations.

Guidelines for inspecting records under each program are covered in program-specific materials.


Targeting and Locating Records	

The specific inspection objectives will help determine exactly what records and/or information the
inspector will need to examine.  In this process, the inspector should:

     •  List the kinds of records needed for compliance, and their retention requirements.  (Refer
        to the program-specific procedures and to the related regulations for guidance.)

     •  Become  familiar with the firm's recordkeeping system.  (A field report entry about the
        system may help  with future inspections.)

     •  Establish priorities for the material to be reviewed.

     •  Request that records personnel point out pertinent files and sources.

     •  Check back-up systems and cross-filing systems which may make retrieval more efficient.

There is often more  than one route to the information needed for an inspection.  Different firms
may organize data in different ways. Inspectors should be aware of alternative approaches to data
retrieval.  For  example, a firm may consider disposal records to be a subcategory of its shipping or
transportation  file system.


Distribution of Records	

As discussed in Chapter 8, it is important for the inspector to gather as many facts which evidence
the distribution of a record in a company, i.e., who saw it and when. These facts could  include
concurrences,  location of  copies of the  document in more than one location, or other documents
which make reference to the document in question. These facts can be essential when attempting
to establish the knowledge  or intent of any individuals, either  personally or on behalf  of  the
company, in cases where these elements are relevant.
                                            12-5

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Copying Records
Records and files may be stored in a variety of information retrieval systems, including written or
printed materials, computer  or electronic systems, or visual systems such  as microfilm  and
microfiche.

When copies of records are necessary for an inspection report, storage and  retrieval methods must
be taken into consideration:

     •   Written or  printed records can generally be photocopied on-site.  Portable photocopy
         machines may  be available  to inspectors through the Regional office.  When necessary,
         however, inspectors are authorized to pay  a facility a "reasonable" price for the use of
         facility copying equipment.

         -   At a minimum, all  copies made for or by the inspector should be  initialed and dated
            for identification purposes.  (See Identification details below.)

            When photocopying is impossible or impracticable, close-up photographs may be taken
            to provide suitable  copies.

     •   Computer or electronic records may require the generation of "hard" copies for inspection
         purposes.

            Arrangements should be made during the opening conference, if  possible, for these
            copies.

         -   Photographs of computer screens may possibly provide adequate copies of records if
            other means are impossible.

     •   Visual systems (microfilm, microfiche) usually have photocopying capacity  built into the
         viewing machine which can be used to generate copies.

            Photographs of the viewing screen may provide adequate copies if "hard"  copies cannot
            be generated.
Identification Procedures	

Immediate and adequate identification of records  reviewed is essential to ensure the ability to
identify records throughout the Agency custody process and to ensure their admissibility in court.
When inspectors are called to testify in court, it is imperative that they be able to positively identify
each particular document and state its source and the reason for its collection.
                                            12-6

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Initial, date, number, and write in the facility's name on each record, and log these items in the
field logbook.

     •  Initialing/Dating.  Each inspector should develop a unique system for initialing (or coding)
        and dating records and copies of records so that he can easily verify their validity. This can
        be done by initialing each document in a similar position, or by another method, at the time
        of collection. Only the copy should be initialed, not the original document. All record
        identification notations should be made on the back of the document.

        The inspector must be able to positively identify that he so marked the document.

     •  Numbering.  Each document or set of documents substantiating a suspected violation or
        violations should be assigned an identifying number unique to that document. The number
        should be recorded on each document and in the field logbook.

     •  Logging.  Documents obtained during the inspection should be entered in the field logbook
        by a logging or coding system.  The system should include  the identifying number, date,
        and other relevant information:

        -   The source of the record  (i.e., type of file, individual who supplied record).

        -   The physical location of the record (i.e., address of the facility, building number, room
            number).

        -   The manner of collection (i.e., photocopy,  other arrangements).
General Considerations for Handling Records	

     •  Return originals to the proper personnel or to their correct location.

     •  Keep related records grouped together.

     •  Confidential business  records should be  handled according to  the  special confidential
        provisions discussed below.

     •  All copies of records are to be delivered to the case proceedings file after completion of
        the inspection.

     •  All records are to be kept under lock when not in actual use by the inspector.


Confidentiality Considerations and  Procedures	

During the examination of records, inspectors may view or copy  documents that are considered
confidential by the company.  It is  recommended that such documents be avoided unless they are
essential to the completion of the inspection.
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Preliminary Indications of Confidentiality	

Under ideal circumstances, a facility official will accompany the inspector and make preliminary
indications of the business information considered confidential.

Such information should not be entered into field logbooks; a non-confidential reference should be
made to the information, and the information should be placed either in a separate field logbook or
on separate sheets which are then to be considered documents. When the facility official is unwilling
or unable to make such preliminary indications, the inspector must exercise judgment in deciding
which information should not be entered into the regular field logbook.

Manual Copying of Records	
Only that information essential to the inspection should be copied manually from facility records.
If it is known or suspected that a business confidentiality claim might be made, either place the data
in a separate field logbook marked "confidential claim" or on a separate sheet of paper which then
becomes a document. The separate sheet can be listed on the Receipt for Samples (and  Documents).

Photocopying Documents	•
If only some information is needed from facility records to be photocopied, it is suggested that
potentially confidential portions not necessary to the inspection be shielded.

To ensure that such shielded copies will be admissible as  evidence if needed, the inspector should
obtain the signature of the facility official on the back of the photocopy under a statement which
reads:

     "I hereby acknowledge that this is a photocopy of a page from our (kind of record). A portion
     of the page was shielded and not photocopied at the company's request."

                                                                   Facility Official Signature

                                                                                       Date

For long  documents, one statement listing the relevant pages may be substituted.

Identification of Confidential Documents	

Each  page  of  each document  copied  either  manually or  by photocopy should  be stamped
"Confidential Business Information" or "Trade Secret" as soon as confidentiality is claimed.

Security  Measures	
Follow the security measures for confidential information as discussed in Chapters 16B and 17D,
and/or the special procedures for TSCA Confidential Business Information as detailed in the TSCA
Base Inspection Manual.
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                         12B  RECORDS SAMPLING STRATEGIES
Sampling techniques are commonly used as a systematic means of assessing compliance when there
is a large population of documents or items subject to regulatory requirements.  Reviewing a selected
portion will identify individual violations as well as provide an overall indicator of the extent of
compliance. If the inspector observes many violations or a particular pattern of noncompliance, this
may suggest the need for more extensive examination and/or other follow-up.  If no noncompliance
is found in the sample, the inspector can reasonably conclude that the facility is in compliance.

The ability to  develop and carry out appropriate records sampling strategies is a basic skill needed
by all  inspectors.  The purpose of the material in this section is to provide inspectors with a
foundation  in l:he  basic principles  and techniques  for sample design and selection, and  the
documentation that should be kept in the field logbook about the sampling methods used.

Applying the principles and approaches described here to select a portion of items to sample should
allow reasonable conclusions about the facility's compliance to be drawn, in circumstances when all
records, equipment, or events cannot be reviewed, investigated, or analyzed by the inspector.

Material in this section was  adapted from  the "Environmental  Auditing  Skills  and  Techniques
Workbook" prepared by Arthur D. Little, Inc., for the  Edison Electric Institute.

This section addresses  only those techniques and principles an inspector could and should use in
selecting the number and specific items (e.g., individual records, equipment, circumstances or events)
to  review, analyze, or investigate when these items are too  numerous for the  inspector to examine
all of them.

The  term  sampling as used  here should not be confused  with the physical sampling  that
environmental inspectors perform  on emissions, effluent,  and waste streams when carrying  out
certain types of inspections. Physical sampling methods are well established in program guidance.
For these activities, policy decisions often have already been made on the desired level of accuracy,
and on the cost and benefits of different levels of sampling and methods. Program-specific sampling
methods should  be followed  and take precedence.  In other situations, judgment may suffice.
However, in most circumstances the inspector must be familiar with and follow to the extent possible
the basic principles and methods of statistical sampling.
                                           12-9

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Basic Steps in Sampling
The six basic steps below are designated to help ensure that each sample selected is both appropriate
and defensible:

1.    From the inspection plan (or on-site, if unanticipated), determine the objective of the particular
     inspection step — What is the inspector trying to determine and what needs to be reviewed to
     make the determination?

2.    Identify  the population under review -- What is the  population  of records, equipment,
     employees, waste streams,  etc., to be  reviewed, and  are  any segments of that population
     particularly relevant to the inspection?

3.    Determine the sample  method to be employed -- Will  it be a judgmental or probabilistic
     sample?  If probabilistic, what type?

4.    Determine the sample size  -- How many items will be  reviewed?

5.    Conduct sampling -- What tests will be preformed on the sample chosen for review?

6.    Document the sample,  strategy, and methodology employed -- What is the rationale behind
     selecting  the sampling strategy, method, and size?

Each of these steps is  described in detail below.
Step 1:  Determine Objective of Inspection Step	

The first step in the sampling process is determining the objective to be met by the inspection step,
that is, what particular aspect  of a regulatory requirement is to be reviewed?  An example of an
objective would be: "To determine that the facility is performing the required inspections of PCB
equipment."  While this type of determination may appear to be obvious, it helps the inspector
identify clearly the boundaries of the population under review.
Step 2:  Identify Population for Review	

The  next step is to identify the actual population  of records,  equipment, documents, etc. under
review.  For example, when the objective of the protocol step is to verify that air pollution control
equipment is maintained regularly or periodically, the inspector should first identify the number of
pieces of equipment involved. Likewise, when verifying the existence of a hazardous waste training
program, the first step is  to identify all employees who potentially  should  have been trained.
Frequently,  the size of the population can be estimated  based upon review of selected documents,
a facility walk-through, and interviews with facility personnel.

As the population is being identified, pay careful attention to whether there are any major subsets
or key segments of the population that need  to be included in the review.  For  example, when
identifying the population of employees to be included in the annual hazardous waste training, pay
attention to  new hires, temporary employees, and  personnel on different shifts.   Defining these
subsets or segments enhances the selection of the most appropriate sample method.
                                           12-10

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Since the results and conclusions reached will be based only on what has been sampled, it is critical
to define the population before starting to sample.  An incorrectly defined population will adversely
affect the results. Even the most rigorous and effective sampling approach may result in improper
or inaccurate conclusions  if the population was not defined correctly.  For example, a common
mistake would  be to  approach the review of a  facility's hazardous waste  training  program  by
intuitively defining the population as "all those employees for whom training records exist."
Determine the Sampling Frame
After the population is identified, the next task is to determine the sampling frame of interest --
that is, will the sampling frame be the entire population of employees, or only a particular segment
(e.g., new employees)? If a particular segment is chosen, will the sampling frame be the entire subset
or only selected aspects of the subset (e.g., hourly employees)? The frame of interest is selected
largely based on the professional  judgment of  the inspector, the purpose of the inspection, or the
priorities of the program.

Identifying Potential Bias	
The final task in Step 2 is to identify if there is any potential bias in the sampling frame that has
been selected. The following questions should be considered:

     •   Were there any limits placed on the inspector in selecting the sampling frame?

     •   From what records or other information was the population under review identified?

     •   Are other data missing that would influence the sampling frame selection?

While it may be difficult to answer these questions based on the information available, the inspector
should recognize the potential for bias to be introduced in the sampling process.


Step 3; Select Sampling Method	

When should sampling techniques be used?

     •   When  the entire universe of events, actions, records,  waste streams, etc., will not be
         inspected;

     •   When program guidance does not otherwise dictate the  methods to be used to select the
         number and specific items to be sampled;  and

     •   When information is not available which offers clear judgments to  be made on the most
         likely items to explore to  find violations.

The choices among judgmental sampling and alternative sampling  methods are described more fully
below.
                                           12-11

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Judgmental Sampling
Judgmental sampling is frequently used when the inspector has reason to suspect that a violation or
violations may occur. Sampling is directed to the segments of the population  where problems or
deficiencies are likely to exist.  For example, the inspector may have learned during the opening
conference that in the previous three months there had been a turnover of personnel responsible for
maintaining air pollution control and monitoring equipment. Based on this information, the inspector
might decide  to focus sampling activities on those three months.

In short, judgmental sampling is used most effectively in situations where the inspector suspects a
problem.  It  is important  to note, however, that a judgmental sample cannot be  used  to draw
compliance conclusions about the  whole population.  It may, however, provide the inspector with
an indication of whether  proceeding  further with probabilistic sampling is needed to ascertain
compliance with requirements.  For example, if  recently hired, temporary employees  have  been
adequately trained, this suggests that the facility has a good training program; the inspector decides
to check no further.

Alternative Sampling Methods	
Probabilistic sampling is the most commonly used sampling method. In probabilistic sampling, data
are selected in an organized, methodical manner to represent the population that is being reviewed.
There are several different methods of statistical sampling; each is described below.

     •   Random Sampling. Random sampling is the most widely used statistical sampling method.
         In this  method, all items in a population have an equal chance of being selected; the
         objective  is to select items purely  by chance.  This method may be  preferred when the
         objective  of the review is to obtain evidence representative of the total population.

         There are two basic ways to gather a random sample.  An inspector  may pull records or
         items at random, without prejudice. Or the inspector can number the  documents, records,
         or items within the population and then use a random number table to determine which are
         to be reviewed.  (See Exhibit 12-1 for an  explanation and an example of a random number
         table.)  When reviewing  manifests, for example, the manifest number may serve as the
         numbering system. Thus, if  done properly,  the whole population has an equal chance of
         being selected.

         When using random sampling, it is important that the inspector use a random starting point
         in his or her review of records, equipment, etc., to ensure an equal probability that any
         given sample will be drawn.

     •   Block Sampling. In  block  sampling, the  objective  is to draw conclusions about the
         population by examining certain segments or clusters of data that have  been selected at
         random. Block sampling is often used when the population is so large that random sampling
         would produce too many subjects for review.
                                          12-12

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For example, the inspector wishes to verify that a facility was following its waste analysis
plan and finds that the facility analyzes 500 waste samples each week.  The inspector also
learns that laboratory staff are well-qualified and each has at least three years of experience.
Based on this information, the inspector  feels  comfortable  about staff capabilities and
concludes that drawing a random sample to  verify conformance with the waste analysis plan
would be inefficient and cumbersome. Instead, the inspector drew a block sample of waste
analyzed by selecting all samples analyzed on Mondays and Fridays during the second and
fourth weeks of January, March, June, September and December.  Note that this method
would  have been inappropriate if the inspector had learned that there were significant
differences in segments of population, e.g., the laboratory supervisor is not present during
Saturday analyses, or an unusually large number of samples were analyzed in a particular
month.

Stratification Sampling. Stratification sampling is somewhat  similar to block sampling in
design.   The objective of stratification is to arrange items by important categories  or
subsets, such as day-shift versus night-shift employees or high versus low effluent volumes.
Stratification sampling allows the  inspector  to  categorize  populations by groups.  Each
group may be reviewed for comparison purposes, or one or more groups can be tested if
the inspection's purpose is served  by focusing on key segments of the population under
review.  For example, an air inspector may learn that, although a plant operates 24 hours
a day, the highest volume of activity occurs during  the second shift.  The inspector might
decide to evaluate compliance with permit limitations by focusing mainly on the monitoring
information gathered during  the  second  shift.  This approach  would not have been
appropriate,  however, if the activities of  the unit  occurred or  were spaced  evenly
throughout the day.

Stratified random sampling is useful  when the inspector observes  wide variations in size
or characteristics of the population. Stratification has an inherent bias in that the inspector
focuses; on only a select segment(s) of the population. However, depending on the size of
the sample,  it may provide information on each group tested.

In some situations, an inspector may wish to develop a stratified Judgment sample if he or
she suspects that a certain segment of a population requires investigation or identifies a
potential problem in the population under review. For example, the  inspector might suspect
that training programs for  second-shift employees are insufficient  because  of  higher
production volumes and many new hires.  In this case, the  inspector might select second-
shift employees as  the sample group for testing of training programs.

Interval Sampling.  The purpose of interval sampling -- also known as systematic sampling
--  is to  select  samples at various intervals (e.g., every  tenth item  is reviewed).   As in
random sampling, each item must have an  equal chance of  being selected. Thus, the first
item in interval sampling must be picked at  random.  A common way to determine sampling
intervals is to divide the total population size by the desired sample size.
                                   12-13

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        For example, the inspector may be determining the facility's compliance with requirements
        for weekly RCRA self-inspections.  The inspector decides to select a sample of ten weekly
        reports for a 52-week review period. To develop an interval sample, the inspector decides
        to review every fifth report and uses a random number table to determine the random start.
        If the starting point selected was the second week, then the inspector would select the self-
        inspection report for the second week and the self-inspection reports for every fifth week
        thereafter.

        In interval sampling, it is important to know the size of the population (see Step 2) and the
        appropriate interval to avoid obtaining too small --or too large --a sample.

            If an interval sample begins to  look like it is too large, the inspector should not end
            the interval  sampling as soon as the desired  number of items has been reviewed.  If
            ended early, the sample would represent only the first part of the total population; thus,
            the inspector uses the original interval to draw the entire sample, and then reduces the
            sample by selecting an interval or random number of the items for exclusion from the
            sample.

            Alternatively,  the inspector can stop once  it  becomes obvious that the sample will be
            too large,  and select  a different interval more appropriate to the desired sample size.
            The  new interval must then be used for the entire selection.

            If the sample turned out to be smaller than the desired number, -it can be enlarged by
            obtaining  another interval sample  with a new random start.   However,  to  draw
            reasonably confident and reliable conclusions about a population, several intervals with
            different random starts should be developed.
Step 4:  Determine Sample Size	

Sample sizes can be determined either statistically or based on the inspector's judgment.  While a
statistically based sample with high confidence levels  is ideal for enforcement, it is not always
feasible.  For taking physical samples, in particular, there may be practical limitations on the number
of samples that can be collected.  As noted earlier, program priorities and evidentiary needs dictate
sampling decisions in the field.

In the absence of such  program-specific  guidance, determining an appropriate  sample size is
dependent upon the population characteristics and specific inspection objectives.  In all cases,  the
sample should be adequate enough to be representative  of the total population.

A suggested scheme of determining minimum sample size is presented below.  It is excerpted from
Military Standard 105D and is commonly used for conducting inspections.  It is intended to provide
the reader with a starting place for developing samples that can be used to draw reasonably confident
and reliable inferences about a population.
                                           12-14

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                     DETERMINATION OF MINIMUM SAMPLE SIZE

                                      Population Size                     Sample Size

                                        2-8                                 3
                                        9-15                                5
                                        16-25                               8
                                        26-50                               13
                                        51-90                               20
                                        91-150                              32
                                       151-280                              50
                                       281-500                              80
                                       501-1200                            200
                                      1201-3200                           315
                                      3201-10,000                          500

                Reference: Military Standard 105D, "Sampling Procedures and
                Tables for Inspection by Attributes," April 1963.
Step 5:  Conduct Sampling	

The inspector is now ready to conduct sampling.  The inspector should be alert to any possible bias
entering the sampling process. Independent records should be used wherever possible to develop the
sample, and records for sampling should be selected by the inspector, not facility personnel.  For
example, if the inspector is verifying hazardous waste training and obtains training records from the
training officer, the records may  show those employees who  have  been trained.   The inspector
should, therefore, obtain a complete list of all employees (e.g., from personnel or payroll records)
and select a sample  from those independent records rather than from the records that verify only
that training was given.

The time frame within which the sample was obtained is also important to sample representatives.
For example, if the period under review  was January  1, 1987 to January 1, 1988, the  records
selected for sampling  should encompass some portions of the entire review period, and not,  say,
those for December  1987 only.

The more closely the sample represents the entire population as well as the entire review time frame,
the more representative the sample becomes.
                                          12-15

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Step 6:  Document Sampling Strategy
The final step in the sampling process is documenting in the field logbook the inspector's rationale
for selecting the sample and how the sample was selected. The following can serve as a checklist for
information that should be included in the field logbook:

     •  The objective of the inspection

     •  The population, subject, or topic under review

     •  How and why that population was selected

     •  The type of sampling method employed

     •  The reasons why that sampling method was used

     •  Any potential bias in the sample selected

     •  The sample size and reasons for selecting that sample size

     •  How the sample was representative

     •  How the sample was actually selected

     •  The results of the sampling (unless physical samples that require laboratory analysis)
                                          12-16

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                           EXHIBIT 12-1


                     RANDOM NUMBER TABLE
 104   ISO  015  020  616  916  691  Ml  625  962  209  995  912  907  223
 4«S   255  153  309  891  279  531  93V  340  52*  191  396  995  241  483
 2215   972  7G.1  G4M  151  248  493  320  30ft  196  633  586  421  930  062
 616   078  163  3»4  535  713  570  008  749  977  163  373  399  818  I6fi
 061   917  604  815  496  606  141  069  012  546  779  069  MO  427  277
 534   186  70*  9W  150  219  818  443  428  993  729  564  699  988  310
 711   187  440  488  632  210  106  129  963  919  054  079  188  109  943
 568  690  600  184  849  425  323  895  143  636  102  174  161  577  843
 253   125  S86  449  053  569  854  368  333  339  530  595  388  623  081
 179   164  114  185  649  289  693  882  332  709  799  568  058  901  315
 013   855  916  781  635  409  482  034  496  694  186  726  321  208  122
905   337  903  094  939  526  927  889  334  363  176  300  082  841  271
 306  749  103  611  875  836  482  522  676  933  015  263  831  202  299
896  071  973  710  081  772  139  475  810  977  859  293  744  285  907
 510   177  518  512  774  163  607  921  494  339  709  639  756  407  023
 213  524  602  893  198  553  448  Oil  652  648  449  059  551  010  340
 333  949  312  041  185  298  715  850  511  019  927  649  521  539  463
 58S  232  145  831  987  234  643  947  177  331  337  070  976  337  099
 42*  066  769  136  318  461  889  195  256  581  486  912  838  143  091
 301  902  047  591  221  304  616  999  328  541  584  224  741  470  253
764  263  381  066  215  IJ2  *,9  443  :26  323  035  242  133  380  943
287  358  069  170  641  182  228  293  270  876  873  387  002  458  153
46!»  411  103  076  361  185  024  330  288  073  197  924  609  612  300
670  325  866  307  949  132  168  741  920  246  366  007  228  021  316
072  765  972  139  212  003  304  038  946  894  413  173  273  639  413
 491  822  241  990  478  810  649  662  804  637  832  Sll  132  303  977
350  919  001  309  986  384  878  946  397  374  673  776  443  112  711
 110  603  064  287  378  079  987  985  271  312  806  444  978  704  954
 14!)  507  354  390  675  481  029  009  481  047  212  208  929  902  124
250  Oil  986  281  680  109  100  542  064  508  654  793  538  106  218
724  779  363  559  873  696  431  003  257  008  968  306  476  231  393
 56!)  206  217  317  331  726  326  415  761  915  211  362  178  739  206
 3711  638  710  847  324  223  780  174  961  183  709  669  997  724  Oil
 4211   113  207  543  969  700  232  634  396  996  947  114  181  613  804
 900   525  020  151  185  478  002  825  720  157  438  998  104  769  259
 
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                         EXHIBIT  12-1 (Continued)
USING A RANDOM NUMBER TABLE

(Note that  many  hand calculators with statitstical capability can generate random
numbers.)

   •   Using a random number table, first pick a random place to start. This can be done
       by pointing blindly at the chart and beginning where the finger ends up, by tossing
       dice for the row and column, or other similar approach.

   •   Start in any direction from the  point of entry on the table.  Read up, down,  or
       sideways, but maintain the same system throughout the process.

   •   If a sample from numbers 0-9 is required, only one column of numbers needs  to
       be read.  If numbers go from 1-10, read two digits, ignoring 00 and numbers from
       11-99.  Pick as many numbers  as needed.  If a sample of 4 items out of 10 is
       needed, keep reading until 4 numbers from 1-10 are found.
                                  EXAMPLE

   •   A sample of 5 out of a population of 20 is needed, starting with 1.

   •   The sampler's pointed finger lands at column 7, row 17 -- so that is the starting
       point.

   •   The sampler chose to read down the chart using the first two digits:

            715 -- 71 is too large
            643 -- 64 is too large

            024 -- number 02 is selected
            168 -- number 16 is selected

            029 -- number 02 was already selected
            100 -- number K) is selected

            146 -- number )A is selected

            Now the sampler reads the next two columns over:
            69J	1.41 --  number JJ. is selected

            The sample of 5 is:  2, 10, 11, 14, and 16
                                    12-18

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13 - Physical Sampling

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                                       CHAPTER 13

                                  PHYSICAL SAMPLING
Physical  sampling plays  a  fundamental role  in EPA's enforcement  effort.    The term  physical
sampling as used here means collecting tangible, physical samples of soil, water, air, waste streams,
or other materials. Many enforcement actions are supported by the results of taking, recording, and
analyzing physical samples and the measurements of physical conditions that are taken in association
with sample correction.

Physical samples confirm the presence and concentration of contaminants or pollutants; they can also
indicate the operating conditions of key processes or equipment at a facility. In enforcement efforts,
sampling results are used for two principle purposes:  (1) as evidence to substantiate suspected
violations; and (2) to determine the extent of environmental contamination, such as might be needed
to calculate an appropriate  penalty amount.

There are three basic  types of sampling:

     •   Container sampling (e.g., samples drawn from tanks or drums)

     •   Environmental sampling (e.g., soil, water, air)

     •   Biological sampling (e.g., plants, fish)

This chapter is not intended to teach inspectors how to sample. Rather, the purpose of this chapter
is to provide inspectors with a basic understanding of the principles and procedures involved in
sampling for evidence purposes.  It provides only an overview of the considerations involved in
collecting representative samples of high quality. Specialized training on sampling procedures will
be addressed through  program-specific training.

Not all EPA inspectors actually conduct physical sampling. However, they are likely at some point
to request others (such as staff from the Environmental Services Divisions or contractors) to conduct
sampling inspections,  will need to use the results of sampling inspections  in their work, and/or will
review the results of  sampling  conducted  by the  regulated community. Consequently, inspectors
should be familiar with what goes into planning for and conducting a quality sampling effort.  This
knowledge will help inspectors:

     •   Communicate sampling needs effectively, particularly with regard to establishing sampling
         objectives  and data quality requirements.

     •   Make realistic projections of the costs and time required for carrying out sampling and
         obtaining the results, and

     •   Consider data quality limitations when interpreting and using sampling data.
                                           13-1

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Each potential sampling situation involves many decisions,  starting with  the first decision that a
sample is or is not needed. Whenever sampling is undertaken, additional decisions are made to assure
that the following three key elements  of a good sampling effort are addressed:

     •    Well-articulated objectives, and plans to meet them. The first step in a sampling effort is
         establishing its objectives, including decisions regarding the quality of data that is required
         to meet the  objectives.  To provide the Agency with data that accurately  reflects the
         relevant conditions  present at a site or facility, a comprehensive  sampling  and  sample
         analysis plan must be developed for every inspection.

     •    Observance of policy and procedures. Specific policies and procedures have been developed
         to ensure efficient and effective sampling evidence gathering.  These procedures -- which
         encompass the many detailed  components of sampling and documentation procedures -- are
         designed to  help ensure that evidence  generated by inspectors will  be admissible  and
         credible in court, balancing this need with practical and cost considerations. Inspectors are
         expected to follow these procedures.

     •    Established context  and relevance to the regulations and site conditions.  In  compliance
         inspections, the principal purpose of physical sampling is to determine if a site or  facility
         is in compliance with requirements specified by the Agency's regulatory  programs. While
         the  collection of samples of materials  may  be an  integral component of an  inspection,
         associated measurements of physical conditions (e.g., wind, temperature, pH) at the site and
         the analysis of the samples are equally important.  Without both quantitative analytical data
         and qualitative descriptions to support the physical samples collected at the site, the results
         obtained from  a sampling inspection will be  of little practical value.

Note: As used in this text, the term "physical sampling" is defined broadly to include measurements
of physical conditions such as temperature, wind conditions, and pH which are also often taken in
a sample collection effort.
                                            13-2

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                     13A:  POLICY CONSIDERATIONS IN SAMPLING
Planning and conducting an inspection involves decisions regarding whether physical samples are
needed and, if so, how the sampling should be carried out.  The policy considerations involved in
sampling focus largely on the question of whether physical samples are needed in a given inspection
situation.  Once a decision is made to take samples, other policy questions meld with technical issues
and must be resolved before sampling begins. Such policy/technical issues, covered in subsequent
sections of this chapter, include establishing the objectives of the sampling and assuring that the data
collected will be of the quality and representativeness needed to meet these objectives.

This section addresses the questions of why and when to sample.
Samples as Evidence	

The  physical samples taken during  a  compliance inspection or investigation are often the key
evidence substantiating that a violation occurred (or demonstrating that the facility is in compliance).

Depending on the regulation involved,  samples may be needed to show:

     •  That a particular regulation applied to the site or facility (e.g., that a drum contained PCBs
        and therefore should have been marked with a PCB label);

     •  That a permit  standard  has  been exceeded (e.g.,  that  a waste stream  has  a higher
        concentration of pollutants than allowed by the permit); or

     •  The extent of a contamination problem (e.g., that contamination has seeped from the soil
        under a leaking tank to the ground water).

In order for the results of physical samples to be readily accepted as evidence in court,  the samples
must be of known quality, collected following  sound technical  procedures, and representative of
conditions at the location where they were collected.
Program-Specific Guidance on Sampling Decisions	

As noted earlier, not all inspections involve collecting physical samples. Guidance established by
each EPA regulatory program provides general direction on when to sample at a site.  Inspection
protocols for the various types of inspections prescribe specific activities (records review, interviews,
observations, and/or physical sampling) that should  be conducted in order to assess and document
compliance.

Some types of inspections, such as routine sampling inspections, by definition involve collection of
physical samples. Other types of inspections might involve collection of samples only if a violation
is suspected that would need to be substantiated by sample results.  The amount of certainty that
samples are to be collected will affect, of course, the  degree to which detailed advance planning can
be done.


                                            13-3

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Exhibit 13-1 on pages 13-6 through 13-8 is a summary of the types of routine inspections for each
EPA program, indicating the dominant inspection activities for each type.

Inspections that are not routine, such as case development inspections or inspections scheduled on
the basis of a tip, may or may not involve sampling.  The decision to sample would be made on a
case-by-case basis.
Sampling Decisions In the Field	

The wide variety of field situations that will be encountered make it virtually impossible to specify
in advance in all cases whether samples should or should not be taken.  The final judgment must
be made by the inspector in the field.

As noted throughout this text, inspectors should become familiar with the priorities assigned to
various types of violations in the penalty and enforcement response policies of their programs. This
knowledge will assist them in determining sampling and other documentation needs.  The guidelines
below set out the general principles for sampling and priorities for the types of situations in which
sampling should be undertaken.

General Guidelines for Sampling

1.   Take a sample whenever one is needed to prove a violation.

     This would mean taking a sample of any material that needs to be verified as containing  the
     substance(s).

     Examples:     To show that a release should have been reported to EPA under CERCLA, there
                   must be proof that a substance subject to CERCLA was involved.

                   To show that a transformer should have borne a PCS label, there must be proof
                   that it actually contains PCBs at the regulated concentration.

                   To show that an  industrial discharger is  exceeding  the  permit limit for a
                   parameter,  there  must be  proof that the discharge actually  contains  the
                   constituent above the permitted amount.

2.   Sample only when there is reason to suspect the substance  is present.

     Unless there is some reason to believe that the regulated substance at  issue is present,  there is
     little likelihood of finding it through indiscriminate sampling.

     Example:      If there is no independent reason (e.g., a statement by a facility employee) to
                   suspect that the several stacks of drums  that are observed contain hazardous
                   waste, there is no reason to assume that they do.

     On many inspections, a very large number of samples  would have to be taken, resulting in an
     unduly long inspection and unreasonable backlog of samples to analyze.  Further, it  may be
     logistically impossible to collect and transport that many samples.  Thus, there is a third rule.
                                           13-4

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3.    Always attempt to verify the presence of the substance bv a means other than sampling.

     The most common sources of independent verification of the presence of the substance are the
     company's records, nameplate or label information, and statement by facility personnel (which
     may or may not be correct). Other sources include obtaining information on raw materials,
     process operations and waste streams.  Such sources may be contested, but experience to data
     indicates that usually they are not.  Thus, sampling may become less important when there is
     other evidence of the presence of the substance (or an amount in excess of a limit) although
     there is always the potential that  records and/or labels are erroneous or falsified.

     Examples:     A company's self-monitoring reports show levels in excess of the permit limit
                   for a given constituent or constituents.

                   A nameplate on a  transformer states that it contains PCBs.

                   A facility employee  states that waste oil is placed in the indicated drums.

These general rules would assure the best case preparation in all instances, but they are sometimes
impractical to observe.
                                           13-5

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                             EXHIBIT  13-1
    DOMINANT ACTIVITIES  IN  ROUTINE INSPECTIONS BY PROGRAM
PROGRAM/TYPE INSPECTION
TSCA
PCBs
Asbestos (AHERA)
Section 8
Section 5
Section 4
Good Laboratory Practices
FIFRA
Compliance Evaluation
(Product establishment or
marketplace) for:
Cancelled or Suspended
Products
Labeling
Recordkeeping
Illegal Pesticide Disposal
Use/Misuse Inspections
Good Laboratory Practices
Experimental Use Permits
Some State Oversight
Program Audit
SARA TITLE III
Section 313
RECORDS
REVIEW

R
R
R
R
R
R

R
R
R
R
R
R
R
R
R
INTERVIEW

R
R
R
R
R
R

R
R
R
R
R
R
R
R
R
OBSERVATION

R
R
R
R
R
R

R
R
R
R
R
R
R
R
R
PHYSICAL
SAMPLING

0
O
O
O
O
N/A

O
O
N/A
O
0
N/A
0
N/A
N/A
R=Required (R* means only cursory review)   O=Optbnal   N/A=Not Applicable
October 1988
                                 13-6

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                        EXHIBIT  13-1  (Continued)
    DOMINANT ACTIVITIES IN  ROUTINE INSPECTIONS BY  PROGRAM
PROGRAM/TYPE INSPECTION
RCRA
Compliance Evaluation
Case Development
Comprehensive Groundwater
Monitoring Evaluation
Operation & Maintenance
Lab Audits
St. Oversight Insp
CWA-NPDES
Compliance Evaluation
Compliance Sampling
Toxic Sampling
Compliance Biomonitoring
Performance Audit
Diagnostic
Pretreatment Compliance
Reconnaissance
Legal Support
CWA§404
Preliminary Investigation
(General site visit to
establish jurisdiction)
Case Development
(Detailed site evaluation as part
of formal enforcement action)
Compliance Monitoring
(Ensuring Compliance with
administratively or judicially
ordered mitigation/restoration
plan)
RECORDS
REVIEW

R
R
R
R
R
N/A

R
R
R
R*
R
R'
R
R*
R

R
R
R
INTERVIEW

R
R
R
R
R
N/A

R*
R*
R*
R'
R
R
R*
R*
R

O
O
O
OBSERVATION

R
R
R
R
R
N/A

R
R
R
R
R
R
R*
R*
R

R
R
R
PHYSICAL
SAMPLING

O
R
R
0
O
N/A

N/A
R
R
R
N/A
O
O
N/A
0

O
0
O
R=Required (R* means only cursory review)   O=Optbnal   N/A=Not Applicable

                                  13-7
October 1988

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                      EXHIBIT 13-1  (Continued)
    DOMINANT ACTIVITIES  IN ROUTINE  INSPECTIONS  BY  PROGRAM
PROGRAM/TYPE INSPECTION
PWSS
Sanitary Survey
Compliance Evaluation
(Routine & for cause)
Compliance Oversight
UIC
Emergency Inspection
Class IV Closure Verification
Citizen Complaint Investigation
(Priority 1 )
Mechanical Integrity Test
Witnessing
Enforcement Inspection
(Compliance Evaluation)
Preoperational
Plugging and Abandonment
Verification
Compliance Verification
(Compliance Oversight)
MOBILE AIR
Retail Outlet
(Fuel switching/nozzle)
Repair Facility
(Tampering)
Fleet Operator
(Tampering/Fue; switching)
Refiner/Importer
(Phasedown/banking)
STATIONARY AIR
RECORDS
REVIEW

R
R

O
R
O
R
R
R
R
R
O
R
R
R
—
INTERVIEW

R
R

O
O
R
0
O
0
O
O
R
R
R
O
—
OBSERVATION

R
N/A

R
R
R
R
R
R
R
R
R
0
O
N/A
—
PHYSICAL
SAMPLING

O
N/A

O
O
O
O
O
N/A
N/A
O
R
N/A
0
N/A
—
R=Required (R* means only cursory review)   O=Optional   N/A=Not Applicable
October 1988
                                 13-8

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                   13B:  TECHNICAL CONSIDERATIONS IN SAMPLING
Several technical issues must be considered to assure that the sampling data collected on an inspection
will be of a quality sufficient for the Agency to draw a proper conclusion about the compliance
status of a facility and  will be viewed as credible evidence substantiating the Agency's position
should an enforcement action be pursued.  This is the fundamental objective of any sampling carried
out for compliance and enforcement purposes.

While this objective is relatively straightforward, meeting the objective involves many decision and
actions regarding how samples will be collected and analyzed.  These include such decisions  as
determining:

     •   The number, location, and type  of samples and/or measurements that will be taken;

     •   The specific techniques that will be used to collect the samples;

     •   The volume of samples that will be collected; and

     •   How the samples will be managed in the field (e.g.,  sample preservation, packing and
         shipping).

As a means for ensuring that each sampling effort goes through  a careful thought process before it
is undertaken, the Agency has instituted a policy of requiring that a Quality Assurance Project Plan
(QAPP) be prepared in advance.  This planning activity is designed to make sure that each sampling
collection and analysis effort will meet its intended objectives.

This section discusses key technical considerations and choices that are made in preparing for and
conducting a sampling inspection.  Many of these choices are reflected in the Quality Assurance
Project Plan that is prepared in advance of the inspection. Other choices can only be made in the
field, once actual site conditions or potential compliance problems are known.

In addition to providing guidance on technical questions associated with sampling inspections, this
section will therefore also serve as a foundation for  the more detailed discussion of the Agency's
quality assurance policy and the preparation of a Quality Assurance Project Plan in Chapter 13C.
Data Quality to Meet Sampling Objectives	

Precision and accuracy are the data quality measures of representative field samples. Precision refers
to the variability of the measurement process when the same sample is measured more than once, and
accuracy refers to the closeness of  an observed measurement value to its  true value.  (See fuller
discussion of quality assurance and quality control in Chapter 13C.)  If the resulting data is to meet
the objectives established for the sample collection effort, precision and accuracy must be maintained
in both the field and at the laboratory.
                                            13-9

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In many cases, precision and accuracy are dependent on the type of procedure or equipment that is
chosen. Often, the procedure or equipment that provides the greatest precision and accuracy is the
most complex or expensive to use. Great care must be taken when weighing the objectives of the
inspection against the cost of the inspection.  It is important to understand what level of precision
and accuracy will meet the objectives of the QAPP. In many cases, this is specified in the SOPs used
by the Agency.  The inspector should select the appropriate SOP, equipment, or method that will
satisfy the objectives.  The sample objectives can be met by employing a variety of methods in an
inspection.

When the data resulting from the sampling becomes available, it is crucial that it be possible to assess
its quality and utility in meeting the sampling objectives.  To enable this assessment to occur, certain
information about the data should be documented.  Normally, this information would be contained
in a Quality Assurance Project  Plan or similar planning document that is prepared  for projects
involving collection of environmental data.

Preparation  of the required planning document is discussed in detail in Chapter 13C. The discussion
which follows here presents an overview of data quality considerations and technical decisions that
are involved in designing and conducting a sample collection effort to assure that the resulting data
meets the objectives of the effort.

The information essential to the  assessment process can be divided into three major groupings:

     •  Objective(s) of the data collection activity;

     •  Field measurement and sampling process; and

     •  Laboratory analytical methodology.

Objective^) of the  Data Collection Activity

A fundamental step in setting the objective(s) of a sample collection effort is clearly establishing the
ultimate use of the data that will result. This step provides the foundation for designing the sampling
plan and a means by which to compare and assess the results.

The objective may be as simple as determining if a groundwater sample obtained from a monitoring
well exceeds an established concentration limit for a specific contaminant or constituent. It may be
as complex  as  determining the spatial  and  areal extent  of contamination in  soil of specific
constituents or  contaminants resulting  from disposal practices at  a site.  Clear  objectives for the
specific site or facility involved must  be defined  in order to  determine the amount  and  type of
environmental data  needed (e.g., determination of  compliance  status of the facility, detection of a
release of a  contaminant  into the environment via a specific media, etc.).

The objective should  serve as the basis for the  design of the sampling plan (sampling locations,
sampling frequency, types of sample to be collected, parameters to be analyzed for, etc.) to obtain
the data. The sampling plan may be specified  by regulation or a regulatory agency (e.g., contained
in an  administrative order or permit), or it may have to be developed for specific activities or sites
(e.g.,  establishment  of a  monitoring  well network to detect any releases of contaminants from a
surface impoundment at a specific site).
                                           13-10

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Field Measurement and Sampling Process

This information includes the detailed procedures for collecting and handling samples, performing
field measurements, and documenting the sampling process.  (See Chapter 13D.)

Laboratory Analytical Methodology

For data assessment to be performed, the actual analytical methods used for analyzing samples for
specific constituents or groups of constituents must be known. (See Chapter 13D.)
Standard Operating Procedures (SOPs)	

Over the years, EPA has developed a series of SOPs for sampling in a variety of environmental media
and conditions. Such SOPs are contained in program-specific inspection guidance and other guidance
documents.  In some cases, SOPs are contained in regulation. Relevant procedures are contained in
program-specific materials.

SOPs should be followed carefully. Not only does a deviation from a SOP create a potential weakness
in EPA's  case,  but the integrity  of  the  SOP itself can be undermined.  SOPs have  been  used
successfully in litigation;  courts generally defer to EPA's standard procedures when challenged by
an opponent. Procedures established  through regulation have an even greater standing.

Since sampling techniques and procedures vary substantially by EPA program  and environmental
medium, a full examination of sampling methods used by EPA inspectors is beyond the scope of this
text.  Inspectors  will receive  extensive  training  on the sampling techniques  employed in  their
programs as part of their program-specific training.

Chapter 13E contains a list of protocols (SOPs) from each of the programs that can be used as a guide
to methodologies currently available for sample collection.

Tailoring	
Since each situation is unique, the appropriate SOPs are tailored to fit the requirements of individual
locations.  The SOPs are used as guidance for developing the site-specific QAPPs for each sampling
effort; many QAPPs simply reference the relevant SOPs that will be employed.  In some cases, a
generic QAPP for a particular type of inspection might be prepared that serves as the QAPP for all
inspections of l:hat type.

Deviations from the SOPs	
The SOPs should be followed carefully.  However, circumstances may be encountered in the field
that make it physically impossible to follow an SOP exactly. Such situations might include physical
restrictions on access to a sampling point or danger to the inspector. There might be problems with
equipment,  perhaps due to  temperature or wind conditions, or breakage of a container of  the
specified size.

A need to deviate from the SOP does not necessarily mean that the sampling will be deemed invalid.
but any deviations  from the SOP must be documented and the steps taken fully explained.
                                          13-11

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Selection of Renresentative Samoline Points
Proper  sampling  procedures require the  selection of  sampling  points  that  will produce a
representative sample.  A representative sample is any sample which is similar to the total population
in composition  and physical and chemical  properties.   Selection of  a  sample  that  is  truly
representative of  the  material or media being sampled provides the strongest foundation  for
demonstrating either compliance or the existence of a violation.  If a sample can be shown  to be
representative, conclusions about the compliance status of the rest of the population may also be
drawn.

Inspectors should follow program- and media-specific guidance for collecting representative samples,
particularly for specified sampling sites.

In all cases, the sampling objectives are meant to determine how and where representative samples
should be collected. Representative  sampling  plans can  be  designed to reflect  likely violations,
normal operating conditions, maximum normal operating conditions, or average conditions at  a site
or facility. The inspector must be able to modify the sampling plan to collect representative samples
based on operating conditions observed in the field. As always, modifying or adapting the sampling
plan should not compromise the sampling objectives.

Representative samples are usually considered to be a snapshot in time of operations at a site or a
facility, and can reflect conditions ranging from worst case to average.  If the sampling objectives
are to characterize worst case conditions at a site or facility, the QAPP allows for the collection of
representative samples  that reflect worst case conditions. For example, if a manufacturing  facility
is exceeding its NPDES discharge permit standards on a regular basis, one of the sampling objectives
for an inspection at this site could be to collect evidence to document this violation.  Accordingly,
a QAPP would be  designed to collect samples that are representative of the times that the  facility
exceeds its permit  standards.

There are a wide variety of factors that define a representative sample.  These factors include:

     •   Operating conditions

     •   Types of  waste

     •   Statistical considerations

     •   Temporal considerations

     •   Spatial considerations.

Operating conditions can be variable, ranging from seasonal  to  peak and  off-peak conditions.
Normal operating  conditions are those which  are consistently  maintained over time with  little
variability.  For samples to be considered representative  of  the operating conditions at a site or
facility, they must  reflect the variability, if any, present in facility operations.  Ambient conditions,
such as wind, rain, snowfall, or freezing temperatures, can also affect operating conditions at  a site
facility.
                                           13-12

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Contaminant type can affect how a representative sample is  to be  collected.  For example, the
procedures for collecting a representative sample from a stack of drums is different from collecting
a sample from a landfill or lagoon.  A representative sample of contaminants collected at a facility
has to reflect any variability in the types of contaminants generated.

Statistical considerations that  affect representative sampling include variability, frequency, and
quantity of contaminant. Variability in the samples can occur from changes in the manufacturing,
schedule, peak and off-peak production, uneven distribution of contaminants in the  waste, and
seasonal changes.

Waste generation frequency and sampling frequency can determine if a sample is truly representative.
If waste is generated or discharged on a routine or regular basis, samples  can be collected over time
that reflect any  variability in manufacturing and treatment operations.  If a waste is generated or
discharged on an irregular basis, it might be difficult to collect representative samples over time.

The quantity of waste generated can impact on  the collection of a representative sample.  If a sludge
is generated from a filter press  at the rate of five cubic yards per week into a hopper, it would not
be a difficult procedure to collect a  sufficient number of samples from the press and the hopper to
be representative of the waste. However, if  the sludge has been discharged into a twenty-acre
landfill, collecting a sufficient  number of samples to be representative of the waste in the landfill
would be a much more labor-intensive procedure.

Temporal conditions or variability over time can occur for a variety of reasons including:

     •   Process changes
            Segregation of specialized operations
            Addition or removal of operations (i.e., plating, etc.)

     •   Schedule changes
            Change from an 8-hour day to 24-hour operations

     •   Manufacturing changes (product change)
         -  Job shop operations (i.e., continuously  variable product line)
         -  Addition of new product lines

     •   Raw material changes as a  result of altering
         -  Suppliers
            Expenditures due to variable cost
            Product line

     •   Management practices
         -  Offloading of other wastes into an impoundment or disposal site

     •   System aberrations
            Variations in treatment process (e.g., pH fluctuations)
         -  General system breakdown
                                           13-13

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Seasonal changes in manufacturing demands, as well as weather changes, can have a direct impact
on waste  generation and must be considered when collecting representative  samples.  Further
considerations include the time of day the sample is collected and the length of time the sample is
collected.  Waste generated during start-up operations early in the morning, especially at the first of
the week  or after a holiday, may be different from the waste generated at the end of the day or
week, depending on work shifts and  cycles.

The  length of time needed to collect a  representative waste sample  depends on waste generation
variability. A grab sample collected during a manufacturing cycle may or may not be representative
of the waste. A series of group samples collected over a period of time may be needed to generate
a representative sample of the waste.

Spatial variability can occur in both a horizontal and vertical direction. Variability in the horizontal
direction  can result from the use of  a single discharge point, the movement of a single discharge
point, or  from  the use of multiple discharge points into an impoundment, a landfill, or body of
water.  In most cases, there could be  an  uneven horizontal distribution of waste or sludge with the
greatest concentration occurring near the discharge point. This uneven horizontal distribution can
result from: heavier particles settling out of the liquid phase first; man-made obstructions, such as
weirs or barriers within an impoundment; sloped  sides which allow for greater sludge accumulation
in the center of the impoundment;  and  the  use  of  natural  structures  such  as  quarries which,
depending on the topography of the impoundment site, allow for uneven sludge accumulation on the
bottom of an impoundment.

Variability in the vertical direction is affected by changes in the  waste over  time as well as the
accumulation of the heaviest particles of waste  near the discharge point. These two factors can
produce layers of waste within an impoundment or landfill of varying  concentration. In these cases,
the collection of representative samples must be done in such a way as to ensure that data are
collected from all parts of the sample area.
Determining Number of Samples	

There are a variety of factors that should be considered when determining how many samples should
be collected at a site or  facility.  The technical factors that  affect sample collection include the
variability of the waste and the degree of certainty desired to identify the contaminants in the waste.
If the manufacturing or treatment process that generates the waste is highly variable, the contaminant
concentrations in the waste may also be variable.  As such, a greater number of samples may need
to be collected to account for the variability.  In addition, the number of samples should provide a
statistical degree of certainty that the sample population is representative of the total population.
Too  few samples would not be statistically valid while too many would be statistically  redundant.
The  appropriate level of  confidence should be determined on  a program-specific basis.

The  logistical management of the samples is another consideration  that directly affects  how many
samples should be collected at a site or facility. The number of samples that can be safely collected,
stored, packaged and shipped with the resources available to the inspector will often determine how
many to collect at a site.
                                           13-14

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There are certain legal factors involved in sample collection that directly affect how many samples
should be collected.  These factors include the nature of the program requirements and the degree
of controversy. It is advisable to resolve any disagreements with the program staff prior to entering
the field to avoid delays and additional costs.

The cost of the sampling, both in time and resources, is something that the inspector should be aware
of constantly.  The optimal QAPP allows for a sufficient number  of samples to be collected to
adequately characterize a site or facility and meet the sampling objectives. Once again, the inspector
and the laboratory should  plan before the inspector ever enters the field.  Given that many of the
analyses are very expensive and time-consuming,  they should be  requested from  the laboratory
judiciously. However, while a well-designed sampling plan provides an optimal number of samples,
cost requirement; should not prohibit necessary  sampling at a site or facility.

If the  objective of the  inspection is to determine whether contamination is present at a site or
facility, numerous  samples from literally ever section of the site can be  collected and analyzed for
every possible contaminant. Although this would satisfy the sampling objectives, it would seriously
deplete the  available time and resources designated for the  laboratory,  as  well as raise  serious
questions about the inspector's  judgment.  A more appropriate  procedure might  be to screen the
facility and perform a detailed sample in specific areas identified by the screening analysis.

The need to collect representative samples can directly impact the number and volume of samples.
Representative sampling is dependent on a number  of conditions including operating and temporal,
as well as the optimal waste distribution.  For some cases, a minimum number of samples can be
considered representative, while for other sites a much larger number is necessary. Other factors to
consider are regulatory considerations including how to balance 7 day, 30 day, and 1 year limitations
against what is practical to do.
Required Sample Volumes	

The volume of samples obtained should be sufficient to perform all required analyses with an
additional  amount  collected  to  provide for quality control  needs,  split  samples,  or repeat
examinations.  The volume should be kept to a minimum, particularly if sampling is from hazardous
waste sites or sources which are known to be toxic.

The sample volume required for each analysis is the volume of the standard container less the ullage
(empty space) required for safe shipment of samples to the laboratory, and sample mixing in the
laboratory. Inspectors should allow a minimum 10 percent ullage in every sample container for this
purpose. The  only exceptions are samples collected for purgeable volatile organic analysis (VOA),
total organic halogen analysis (TOX), or dissolved gases such as sulfides; for such samples, containers
must be completely filled.

The specific volume of sample required by laboratories depends on the analyses to be performed.
Inspectors  should refer to program- and media-specific  sampling guidance and consult with the
laboratory  receiving  the sample for any specific volume requirements.
                                           13-15

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Quality Assurance/Quality Control Samples

The inspector may be requested to take samples or sufficient sample volumes to allow for use in
QA/QC checks of the sampling itself as well as for checks of the laboratory equipment and precision
techniques. A request for collection of these samples may come from the laboratory or from an EPA
office with responsibility for overseeing QA/QC activities.  In some cases, routine procedures have
been established regarding collection of QA/QC samples (see Quality Assurance Project Plan in
Chapter 13C).

The types of samples used for QA/QC purposes are summarized below:

     •  Replicate Samples. These are separate samples taken from the same source at the same time.
        These  provide a check of the sampling and  precision techniques,  and the laboratory
        equipment.

     •  Split Sample.  This  is a sample that has been divided into two  containers for analysis by
        separate laboratories. A split sample aids in identifying discrepancies in the laboratory's
        analytical techniques and procedures.  (Note: Facility officials have the right to receive a
        split of any physical sample collected for laboratory analysis.)

     •  Spiked Sample. This is a sample to which a known quantity of the analyte(s) of interest has
        been added. This provides a proficiency check for accuracy of the analytical procedures.

     •  Field Blanks. This is a sample of lab pure water to which the same quantity of preservative
        is added as is added to the unknowns.  This provides a  check on the contamination of
        chemical preservatives and containers.
Selection and Preparation of Sampling Equipment	

Inspectors must  be  aware of the equipment available to them through the  Regional Office, and
making arrangements for the use of this equipment is part of the planning process.  In many cases,
choices need to be made regarding the type of sampling that will be conducted at a site or facility
based on equipment availability at the Regional  Office.  Other factors  to consider include  the
accuracy and reliability of the equipment that could be used and the type of material to be sampled.
Choices should be made based on the required level of precision and accuracy, availability, and cost.

The  type of equipment  needed will vary with each inspection.  A wide variety of supplies and
equipment will routinely be needed including sample containers and collection equipment.  The
instrumentation  should be calibrated both in the office or laboratory  and then  again in the field.
All sampling equipment and containers must be properly pre-cleaned before use.
Preventing Cross-Contamination	

Preventing cross-contamination, both on-site and between sites is the responsibility of the inspector.
Great care should be taken to avoid contamination of samples collected at a site or  facility.   In
addition, all sampling equipment should be cleaned before use  to avoid contamination of samples
from previous sampling efforts.
                                           13-16

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While basic sampling procedures and techniques are designed to help prevent contamination, some
compounds can be detected in the parts-per-billion or parts-per-trillion range.  The existence of
these  minute trace amounts can ruin the validity of samples through  cross-contamination.  Once
collected, samples should be handled as infrequently as possible.  Personnel should use extreme care
to ensure that samples are not contaminated.  When trace contaminants are of concern the following
precautions are good practice for all samples:

     •   Sample; collection activities should proceed progressively from the least contaminated area
         to the most contaminated area (if this fact is known).

     •   A clean pair of new, disposable gloves (non-powdered for metals) should be worn each time
         a different location is sampled.

     •   Sample containers for source samples or samples suspected of containing high concentrations
         of contaminants should  be placed in separate plastic bags immediately after collecting,
         preserving, tagging,  etc.

     •   If possible, ambient  samples and source samples should be collected by different teams.

         -   If separate collection is not possible, all ambient samples should be collected first and
            placed in separate ice chests or shipping containers.

         -   Samples of waste or highly contaminated samples should not be placed in the same ice
            chest as environmental samples.

            It is good practice to enclose waste or highly contaminated samples in a plastic bag
            before placing them  in ice chests.

            Ice chests or shipping containers for source samples or samples suspected of containing
            hig;h concentrations of contaminants should be lined with new, clean, plastic bags.

     •   If possible, one member of the field team should take all the notes, fill out tags, etc., while
         the other  member does all of the sampling.

     •   When sampling  surface  water, the  water sample should always be collected  before the
         sediment sample is collected.
Equipment Decontamination and Waste Disposal	

Decontamination of sampling devices in the field may in some cases produce a rinsate that is or may
be regulated under RCRA. In addition, some types of disposable sampling devices and protective
clothing are routinely contaminated with regulated materials. EPA inspectors are generally advised
to properly package contaminated equipment and take it back to the Regional Office (or laboratory)
for proper decontamination and/or disposal in accordance with appropriate regulations. However,
several laboratories are now requesting that when hazardous materials are collected, arrangement be
made with the facility before sampling to return  the excess sample to the site for disposal. In several
cases, laboratories have refused to  conduct analysis because they have no way of disposing of the
sampled material (e.g., pentachlorophenol).
                                           13-17

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With the consent of the facility, contaminated disposal equipment or wastes can be disposed of on-
site if compliance  with all applicable requirements is  evident.   Disposal  on-site is generally
discouraged due to potential liabilities, unless some special arrangement has been made.

Inspectors should follow the policy and procedures of their particular organizations with regard to
equipment decontamination and waste disposal.  The summary below was adapted from procedures
used by the National Enforcement Investigations Center (NEIC).

Decontamination of Sampling  Devices

     •  Whenever possible, use disposable sampling devices when sampling hazardous waste.

        -   Once contaminated, these devices are sealed in heavy-duty plastic bags at the field site
            and brought back to  EPA for disposal.

        -   Glass thieves used to sample drummed liquid  hazardous  waste may normally be broken
            and placed in the  sampled drum at the field  site.

     •  Nonexpendable sampling devices may require decontamination at the field site before reuse,
        normally requiring aqueous or solvent washing and rinsing.

        -   Rinsate (including detergent) from aqueous washing devices used to take environmental
            samples (e.g., soil or  natural waters) is normally left at  the field site.

            Aqueous or solvent rinsate resulting from decontamination of devices used to sample
            known or suspected regulated materials are recovered, containerized, and returned to
            EPA for disposal.

            If the  facility is  a listed  generator  and  has  appropriate disposal capabilities,
            contaminated sampling devices and rinsate can be left at the facility with the facility's
            permission.

Decontamination of Protective Clothing

     •  Where necessary, contaminated disposable protective clothing is sealed in heavy-duty plastic
        bags and returned to  EPA for disposal.

     •  Nondisposable protective gear is either returned  to EPA or decontaminated on-site.

            Decontamination on-site generally consists of washing with small amounts of water and
            detergent; rinsate from such washing may be left on-site.

            If nondisposable protective gear cannot be decontaminated by washing with minimal
            amounts of water and detergent, place it in a plastic bag and return it to EPA.
                                           13-18

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Split Samples;  Special Considerations
Split samples  are samples that have  been divided into two  portions  for  analysis by  separate
laboratories.  A replicated or split sample can be divided into portions (or split) at different points
in the sampling  and analysis  process in order to obtain precision information on the  various
components of the measurement system. For example, field replicated or field split samples provide
the precision information about all the steps taken after samples have been acquired, and  include
the sample homogeneity, the effects of storage, shipment, sample preparation, analysis, and data
reduction.  A sample divided into two portions just prior to analysis, i.e., an analysis replicate,
provides information on the precision of the analytical instrumentation.

In some  cases, the sampled facility may request splits of all samples that are collected during an
inspection. In other cases, providing split samples on request may be required by law.  This issue
should be addressed by the inspector during the planning stage of the sampling inspection. The
facility and the inspector should agree  during the opening conference on the logistics of providing
split samples, including who will supply the equipment for collection and containers for the facility
splits.   Sampling protocols need to be  established  to avoid discrepancies in the  data analysis,
particularly if the sampled facility is not properly equipped to collect or manage split samples.  If
the facility provides sample containers  that are not pre-cleaned or otherwise identical to those used
by  the inspector, discrepancies  could occur.   At no time should  providing  the sample splits
compromise or interfere with the sampling objectives.

The risks associated with splitting the samples involve  generating non-representative splits that do
not reflect  the contaminant population  in the waste or waste stream. There is also the possibility of
destroying  the sample  and negating  the sampling effort.  If protocols are not established  for the
sampling and analysis, different answers may result and cast a doubt on the admissibility  of the data
as evidence.
Common Sampling Errors	

Failure to obtain reproducible and consistent data is often a result of sampling errors made during
the collection process.  Common errors related to sampling that can occur in inspections include:

         Failure to calibrate instruments (e.g., pH meter, Do meter, etc.);
         Lack of maintenance on equipment;
         Lack of QA samples to assure precision;
         Forgetting equipment or supplies;
         Sample loss or leakage during shipping and transport;
         Misreading instruments;
         Miscalculations;
         Transposition of data  in the field logbook;
         Mislabelling;
         Poor field notes.
                                            13-19

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NOTES
 13-20

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                       13C:  QUALITY ASSURANCE/QUALITY CONTROL
   The previous sections of Chapter 13 discussed key policy and technical considerations involved in
   planning for and conducting sampling as part of compliance inspections. Many of the choices made
   regarding when,, what, and how to sample will be reflected in the Quality Assurance Project Plan
   (QAPP)1  that, in accordance with Agency policy, must be written and approved in advance of any
   monitoring and measurement activity.

   All project personnel should be familiar with the policies and objectives outlined in the QAPP to
   assure proper interaction between the field operations, laboratory operations, and data management.

   Quality assurance/quality  control (QA/QC) is a  process  that should be used in all phases of the
   sampling inspection effort from the planning  stage through the final report preparation.  In order
   to meet the sampling objectives, QA/QC procedures should  be followed throughout the effort.  The
   objective of QA/QC is to produce data that meet the user's requirements and satisfy the sampling
   objectives.

   The quality assurance project planning activities described here are designed to assist in generating
   data that are complete, precise, accurate, representative, and comparable. Following these guidelines
   should enable the inspector to answer the following questions:

        •   What data are needed for evidence?

        •   Does the collected data represent the activities at a site or facility?

        •   Has the proper data  been collected?

        •   Can the collected data be defended?
   Quality Assurance/Quality Control Policy	

   As a regulatory and enforcement Agency, all data generated or used by EPA must be of known,
   defensible, and verifiable quality.  This is a matter of Agency policy, as expressed in EPA Order
   5360.1, and as such, should be viewed as an integral requirement of all data gathering activities.  A
   basic requirement which implements this Order is that a Quality Assurance Project Plan (QAPP) must
   be developed for each field sampling project, including sampling inspections.
1 The plan termed "Quality Assurance Project Plan (QAPP)" here may have a different name in some
 EPA offices. However, a plan containing the QA/QC features discussed in this section is required in
 advance for all EPA sampling efforts, including sampling  as part of compliance inspections.

                                              13-21

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Quality Control (OC) is (or should be) a normal part of good field and laboratory practice.  It is the
"built ins" included in methods to be  sure that the data generated is the data that is desired.  QC
includes all of the procedures applied to data collection and generation activities in order to achieve
and maintain a desired level of data quality as established by Agency and program managers.

     •  The desired level of data quality should be based on the intended use of the data.  The QC
        should include all of the technical controls used, such as sampling and analytical methods;
        use  of  blanks, replicate,  and duplicate samples;  inclusion of performance or  standard
        samples; and standard curves and statistics.

     •  Controls start with  the design of the data acquisition project and carry through to the
        ultimate data reporting and  completion of all of the documentation of the use of these
        controls.

Quality Assurance (OA) refers to the procedures  used by management to assure that the QC is what
is required and that it is being adhered to at any point on the project.

     •  QA  constitutes the overview and monitoring processes designed to be sure that the quality
        of the data generated meets the desired levels as established by management.

     •  These controls include establishing data quality objectives based on the intended use of the
        data, the institution of procedures for formalizing planned documents prior to the initiation
        of data collection activities, and the use of audits to identify problems in QC.

The Regional Quality Assurance Management Staff (ROAMS) works with the Headquarters Quality
Assurance Management Staff and program managers,  field  specialists, and the Office of Regional
Counsel to develop program-specific QA guidance materials.  These are intended to help Regional
monitoring programs in developing their required site-specific quality assurance project plans.

Each Region has a quality assurance coordinator who is responsible for ensuring that Regional quality
control procedures are followed and for tracking  and recording the results of specific QC programs.
The quality assurance coordinator operates the field analysis QC program, periodically checking the
equipment logbooks, and notifying appropriate officials of any observed problems.
Concepts in Precision and Accuracy	

Precision  and accuracy are  two of the fundamental data quality  measures that comprise  the
measurement process. Precision refers to the repeatability of the measurement process when the same
thing is measured at different times.  Accuracy refers to the closeness of an observed measurement
value to its true value. Given that neither the precision nor the accuracy of measured data can be
ascertained from the data itself, the use of specially planned checks for which both measures can be
estimated  is required.
                                           13-22

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As defined by EPA's Quality Assurance Policy, the quality of data is traditionally expressed in terms
of precision,  accuracy, representativeness, comparability and completeness.  A brief definition of
these terms is included below.

     •   Precision -- the reproductibility of the data.

     •   Accuracy -- the closeness of a measured  value to the true value.  Two parameters that
        indicate  data accuracy are bias and confidence levels.  Bias is the difference between the
        average value of a set of measurements of a standard and the reference value of a standard.
        The confidence level is an estimate of the  reliability of a sample value.

     •   Representativeness -- the extent to which the data characterize the environmental condition
        of the site  or operation in question.

     •   Comparability  -- the  equivalency of the data sets.

     •   Completeness -- the measurement of the confidence with which the data resulting from a
        collection activity meets the sampling objectives.
Quality Assurance Project Plan	

A Quality Assurance Project Plan (QAPP) must be prepared for each sampling inspection. This is
necessary to ensure that the data collected meets and satisfies the sampling objective.  However,
while a QAPP needs to be prepared for every sampling effort, it can  build on  the established
Standard Operating Procedures (SOPs) that have been prepared on a program-specific basis. While
the SOP is usually too generic  to be applied directly  to each sampling  effort, it  does  provide a
framework for building a QAPP. Therefore, a QAPP can be very lengthy and involved, for example
if applied to a complex field investigation, or it may  be very abbreviated, relying upon existing
procedures. However, whether it is prepared in advance, or constructed on-site, the thought process
must be the same.

The purpose of preparing a QAPP is to initiate a thought process in which the inspector thinks
through, in overall terms, the design of a sampling plan that will meet the sampling objectives.  The
QAPP must be flexible enough to allow  the  sampling objectives  to  be  met despite changes and
modifications that may occur in the field.  However, if the QAPP is modified, all of the changes
need to be documented to show that changes have not compromised the sampling objectives.

There are generally two types of QAPPs that are developed for  sampling  efforts. They are:

     •   Routine. If the Region has adopted SOPs to satisfy the required elements of the QAPP, they
         can generally be adopted by reference for each inspection, subject to modification as needed
         to accommodate any unusual circumstances.

     •   Non-Routine.  All  non-routine  project plans must  be peer  reviewed  in advance in
         accordance  with Regional procedures. All comments from reviewers must be considered
         by the inspection team  leader (project leader).  If the document receives a nonconcurrence,
         appropriate changes or corrections must be made, and the plan  resubmitted for peer review.
                                           13-23

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Elements of a Quality Assurance Project Plan

The format and outline used for quality assurance plans vary, but the content will generally include
the items discussed below.

     •  Project Description and Site Location.  This element documents the what, where, and why
        of the project being conducted.  It should include some of the history and the justification
        for the project, and deals with the physical aspects defining  the project area, space, and
        environmental concerns requiring the generation of data.

     •  Project Measurement Objectives.  This states the information  requirements of the project.
        They may be defined by regulatory specifications or may be based on enforcement needs
        requiring investigative procedures developed scientifically to address one particular site or
        type  of problem.  Ideally, this will  be  a joint decision  of both  the field inspector/
        investigator and the project manager.

     •  Sample Rationale and Network Design.  This describes the  decision process for  taking
        samples or measurements at particular sampling points.  Although such decisions (rationale)
        are site related, the mechanism of selecting the actual sampling points (network) is a mixture
        of applied statistics, regulatory requirements, enforcement needs, and common sense.

     •  Analyses  Rationale.  This is designed to  help the preparer of the QAPP document the
        required information relevant to analytical methods.  This element of the QAPP initiates
        the paper trail of physical accountability of the project.  It is here that  some of the field
        QC samples normally used are designated  as QA samples, and  so listed.

     •  Data Quality  Objectives.  This lists what elements,  compounds, classes of compounds,
        and/or  physical data are required. Tied to this is the method the  planners have chosen
        (usually from  experience, consultation with the  laboratory, or because  of regulatory
        requirement) to best generate the type of data desired and help ensure data comparability.
        The method listed usually spells out the detection limit, and should help define precision
        and accuracy for the total measurement system, or at least for the analyses specified.

        The complete information lets the planner  define the actual amount of data generated, and
        be certain that sufficient data are acquired to satisfy the plan  and its validity. It provides
        a built-in control to be sure that the actual  samples taken are analyzed and reported, or that
        their loss  results in a corrective action.  The data quality objectives are used to ensure that
        the data are representative of the actual site conditions and the results should be expressed
        in terms or units comparable with previously collected data.

     •  Sample Procedures to be Used. This section keys the planner  and the sampler to a clearer
        agreement on  the positions stated in  the  Project Measurement  Objectives and Sample
        Rationale and Network Design sections. It should result in a professional understanding of
        both  technical and management special considerations.

     •  Sample Custody and Documentation.  This is the core of the paper trail. At a minimum,
        this section should meet the recording and documentation requirements authorizing the
        specific project. It is important to remember that these procedures are designed to protect
        the sampler; he or she may be called upon  years later to testify about the sampling.
                                           13-24

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•  Calibration Procedures and Frequency. Designed mostly for physical measurements in the
   field and  laboratory,  this is generally best dealt  with by  use  of SOPs  which define
   calibration and standardization procedures, required frequency, and operational checks (zero
   and span adjustments). It is also the place to list acceptable deviations, or cite alternate
   approved methods. Field expedients are acceptable, provided they do not compromise data
   required by a regulation, are technically sound, and are completely documented.

•  Preventative Maintenance. This is an extension of the above, but more concerned with the
   instruments used and documenting their consistent condition.  This section is best satisfied
   if both laboratory and field instruments were covered in a SOP listing each manufacturer's
   operational and maintenance recommendations.

•  Laboratory Data Reduction/OA Review.  In this section, the planner can designate what
   degree of QA effort each involved element of a  project requires.

•  System and Performance Audits. Planners and their management may request or specify
   a  variety of audits.  The  Regional quality assurance  officer can provide  standard QC
   materials for project-specific performance evaluation type audits.  In-depth management
   system, technical system, and document system audits can be conducted at either the field,
   laboratory, or office level.  Alternatively, an audit may  be scheduled by other EPA offices
   interested in quality assurance.

•  QA Report to Management. Normally, the Regional quality assurance management officer
   reviews the data packages in cooperation with laboratory staff or project managers.  As a
   result of any audit performed, a complete report  to  appropriate management  must  be
   generated. In the event that corrective action is required, additional documentation of the
   solution  sought and reached or action taken must also be generated.

•  Corrective Action. Samplers have some flexibility in meeting QA/QC requirements when
   actually  conducting field operations.  If in the  sampler's professional opinion, the field
   operation cannot be performed as described in  the plan, the sampler can exercise his or her
   training, ability, and professional innovativeness in generating the data required.   The
   sampler can add or subtract samples or other activities, provided that the changes and the
   reasons for the actions are documented. The sample must justify his or her actions later on,
   but if there was sufficient cause to deviate from the plan, there should be no problem with
   addressing the issues covered in the Corrective Action  Checklist.

•  Sample Alterations. The same philosophy applies as above, but is aimed more at the actual
   measuring or analyzing protocols used both in the field and in the laboratory.  They both
   supply defensible reasons for deviations from  a plan, and track changes in the amount  of
   data generated for a specific plan.

•  Safety Plan.  This is technically a part of the QA plan,  but this element can cite Regional
   or Agency plans acceptable to the Regional Safety Officer.  Any deviation from accepted
   protocols must be defined in a separate Site or Project Safety Plan approved by the Regional
   Safety Officer.
                                      13-25

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Coordination of OAPP Preparation
During the development of the QAPP for a sampling effort, the inspector should interact with the
laboratory staff, the program staff, and the attorneys. The laboratory analysts can participate in the
development of the sampling plan and provide insight into the type of sampling that needs to be
conducted. In addition, the laboratory analysts are a resource to be used in the data interpretation
phase, particularly if data irregularities develop. Working with the program staff and the attorneys
in developing  the  QAPP can help the inspector to  understand  what evidence needs to exist for
sampling a site or facility.

Modifications  to the OAPP	

When faced with a situation during a field sampling effort that is either unexpected or unanticipated,
the inspector must decide on an appropriate response. The inspector should be able to recognize the
need to modify the QAPP based on conditions observed in the field. Spontaneous sampling can be
appropriate if the inspector  has gone through the same series of decision-making processes that went
into the original QAPP. It  is important to know just how far the QAPP can be modified without
compromising  or altering the original sample objectives.  In order to do that, the following questions
need to be  addressed:

     •   Can the original objectives still be met?

     •   Can the sampling be satisfactorily done with the existing equipment?

     •   Is it safe to sample?

Whenever a QAPP has been modified or adjusted, all  changes must be documented in the inspector's
field notebook. Included in this documentation should be the rationale for any  modifications and
what course of action, if any, was taken to modify the sampling plan.

A model QAPP is presented on pages 13-27 through 13-31.
                                           13-26

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                                   EXHIBIT  13-2

                                        MODEL
                        QUALITY  ASSURANCE PROJECT PLAN
Project Name:.
Project Managor:.

Field Operations:.
QA Office Concurrence:.

ESD Peer Review:	

Project No.:	
                 Date:,

                 Date:.
           Account No.:.
Laboratory Designated:.
.EPA
Sample Numbers Assigned:  from
.CLP

.   to.
. Private
Sample Schedule and Milestones:
   Activity/Date: _j_       j_
                I
                I
                I
                I
                I
   Reports required:
Sample Management Control Center:.

Date:	
Project Description and Site Location:
Project Measurement Objectives (Intended use of data):
Sample Rationale and Network Derivation:
                                          13-27

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                              EXHIBIT 13-2  (Continued)

                                       MODEL
                      QUALITY ASSURANCE PROJECT  PLAN

Analyses Rationale:

# of Samples   Parameter    QA Samples    Matrix    Container    Holding Time    Preservation
Data Quality Objectives:

Parameter      Method #       Detection Limits     Precision      Accuracy      Completeness
Sample Procedures to be Used:
Sample Custody and Documentation:
Calibration Procedures and Frequency:
Preventative Maintenance:
If, (or any reason, the schedules or procedures above cannot be followed, the appropriate person must
complete a "Sample Alteration Checklist" for each element changed and have it (them) verified and
reviewed by the Project Manager and the QA Officer/Peer Review. (See page 5)

                                          13-28

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                           EXHIBIT  13-2 (Continued)

                                     MODEL
                      QUALITY ASSURANCE  PROJECT  PLAN
Laboratory Data Reduction/QA Review:
Field Data Reduction/QA'Review:
Reports (as deliverable or required):
System and Performance Audits:
Scheduled:	 Conducted:.
Corrective Action: (IF YES, COMPLETE CORRECTIVE ACTION CHECKLIST AND/OR SAMPLE
ALTERATION FORMS, Appendix B.)

QA Report to Management:
                                       13-29

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                                    EXHIBIT  13-3

                                         MODEL
                              SAMPLE  ALTERATION  FORM
Project Name and Number:
Material to be Sampled:
Measurement Parameter(s):
Standard Procedure for Field Collection & Laboratory Analysis (cite reference):
Reason for Change in Field Procedure or Analysis Variation:
Variation from Field or Analytical Procedure:
Special Equipment, Materials, or Personnel Required:
Initiators Name:	  Date:
Project Approval:	  Date:
Laboratory Approval:	  Date:
QA Officer/Reciever:	  Date:
Sample Control Center:	  Date:,

                                            13-30

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                              EXHIBIT 13-3  (Continued)
                                       MODEL
                          SAMPLE ALTERATION  CHECKLIST
Project Name and Number:
Sample Dates Involved:
Measurement Parameter(s):
Acceptable Da.ta Range:
Problem Areas Requiring Corrective Action:
Measures Required to Correct Problems:
Means of Detecting Problems and Verifying Correction:
 Initiators Nama:	  Date:
 Project Approval:	  Date:
 Laboratory Approval:	  Date:,
 QA Officer/Reviewer:	  Date:
 Sample Control Center:	  Date:

                                           13-31

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NOTES
 13-32

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                             13D  SAMPLE DOCUMENTATION
Sample documentation procedures include means of establishing both chain of custody and  the
precision, accuracy, and representativeness of the samples. The procedures discussed below cover
the basic elements that should be a part of all sample documentation procedures. Inspectors should
also become familiar with any additional or different documentation procedures for their location.
The basic procedures are designed to assure that an inspector will be able to testify that a particular
sample was drawn from a particular location at a particular time, describe the procedures that were
used to obtain the sample, and explain how the integrity of the sample was secured.

The basic procedures are:

     •   Documentation of objectives and methodologies to establish precision, accuracy, and sample
         representativeness, including records of:

            Field measurement and sampling process
            Laboratory analytical methodology.

     •   Documentation procedures to establish chain of custody, including records of:

            Chain of custody initiation
         -  Sample identification
         -  Sample seal

     •   Field logbook entry and other documentation approaches.
Documentation of Precision and Accuracy	

Field Measurement and Sampling  Process

The procedures used for collecting and handling samples and performing field measurements in the
sampling process  should be documented as written procedures or by citing appropriate references
containing detailed sampling procedures. The procedures should be detailed enough to ascertain the:

        Exact location where each sample was collected
        Types of sample containers used for each parameter or group of parameters
        Sample container preparation process
        Sample collection process
        Sample preservation and  handling
        Type and frequency of calibration and maintenance of field analytical procedures
        Calibration and maintenance of field instruments
        Identification and documentation of samples
        Custody  of samples collected.
                                           13-33

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Laboratory Analytical Methodology

The  actual analytical methods used by  laboratory personnel for analyzing samples for specific
constituents or groups of constituents should be documented by written procedures or by citing
references containing detailed descriptions of the analytical methods. The procedures should include
such variables  as the laboratory's sample receiving and handling procedures, all quality control
procedures, data reduction and reporting procedures, and the equipment/instrument calibration and
maintenance requirements to ensure the generation of reliable analytical results.

As with the documentation of sampling efforts, the analytical process needs to be documented with
accurate records to substantiate the analytical data, all conclusions derived from the data, and finally,
the reliability of the analytical data reported. If alternate analytical methods are used for the analysis
of samples, there must be sufficient documented data available to demonstrate that the analytical data
obtained by the method used are comparable to data obtained by the accepted/approved analytical
method.   All  deviations  from approved  or  referenced analytical methods  should  be  approved,
documented and reported to the data users.
Chain of Custody Documentation	

The purpose of chain of custody procedures is to be able to trace possession of a sample from the
time it was collected until it is introduced as evidence in a legal proceeding.  Case proceedings
personnel should be able to demonstrate that none of the samples involved have been tampered with
or contaminated during collection, transit, storage, or analysis.  An accurate written record should
be maintained to trace  the possession  of each sample from the moment of collection through its
introduction into evidence.  For  a further discussion on chain of custody  as  it relates to the
admissibility of physical samples (and other collected materials) as evidence, please refer to Chapter 8
of this manual.

Elements of Custody	
A sample is in "custody" if:

     •   It is in one's actual physical possession.

     •   It is in one's view.

     •   It was in one's possession and it was secured so it couldn't be tampered with.

     •   It is kept in a secured area with access restricted to authorized  personnel only.

     •   It is placed  in a container sealed  with an Official Seal that  will be  broken when the
         container is opened.
                                           13-34

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Chain of Custody Procedures
The concept of custody requires the maintenance of several procedures to ensure the authentication
of the sample. These procedures begin with the identification of the sample and continue through
the laboratory analysis process.

     •  Establishing Custody.  Sample custody is initiated at the time of collection by sealing the
        sample with the Official Seal.

     •  Preparing Sample Documentation.  An important aspect of the chain  of custody  is the
        preparation and maintenance of written information describing the collection, shipment,
        and storage of the sample. Preparation of this documentation is the responsibility of the
        inspector and lab personnel. Properly maintained, this documentation will serve as a clear
        and complete account indicating that the sample offered into evidence  was the same one
        which was collected.

The documentation includes, but is not limited to, the entries in the inspector's field notebook, the
Official Seal, and the Chain of Custody Record.

     •  Coordinating sample and documentation. The inspector needs to assure that the relationship
        between the physical sample and the related documentation is clear, complete, and accurate.
        The sample number, date, and inspector's initials should appear on all documents, and the
        forms should be completed accurately and completely.

     •  Ensuring custody durin'g transit.  Shipment of samples to the laboratory should involve the
        following procedures:

            Samples must be accompanied by the Chain of Custody Record. Copies of documents
            should be retained by the originator.

            If sent by common carrier, a bill of lading should be obtained.

            All  receipts and shipping documents should be included  in the Chain of Custody
            documentation.

     •  Confidential samples.  If a sample has been declared confidential business information, the
        seal is marked "Confidential Business Information," and any analysis reports are also to be
        marked and held confidential.

It  is  important that the  inspector deliver or ship  the confidential sample to  an  individual in the
laboratory who has been  cleared for access  to confidential information.  Each person who handles
the sample and analysis report  from that point should also have confidentiality clearance.
                                           13-35

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Initiating Chain of Custody Record
Preparing the Chain of Custody Record initiates the process that controls and records access to the
sample once it has left the inspector's  possession.  The sample number relates the sample to the
Record which accompanies the sample through all the processing stages.  (See Exhibits 13-4 and
13-5, pages 13-38 through 13-41.)
Field Logbook Entry	

The inspector's entry in the field logbook is the principal reference for the sample.  The following
information should be included about each sample collected:

     •   Sample identification number

     •   Any other unique identifying marks on the container

     •   Date and time of collection

     •   Description of specific location of collection

     •   Collection method (should include collection equipment; field analytical equipment; all
         calculations, results,  and calibration data for field  sampling  analytical,  and physical
         measurement equipment.  All sampling and field analyses must be traceable to the type of
         equipment used and the inspector who did the work).

     •   Rationale for selecting the sample and representativeness considerations

     •   Description of any deviations from standard protocols

     •   A note regarding provision to the facility of duplicate or split samples, if appropriate.

An example of a field logbook entry  is included as Exhibit 13-6, pages 13-42 through  13-46.
Sample Identification
Each sample container should be tagged immediately upon collection with a standard EPA sample
tag (Exhibit  13-7,  page 13-47).  In some cases, particularly with biological samples such  as
vegetation, the tag may have to be included with or wrapped around the sample.

The EPA sample tags are sequentially pre-numbered and are accountable documents after they are
completed and attached to a sample or other physical evidence. If for some reason, a pre-numbered
tag is unusable or tags get used out of sequence, the unused tags should be saved and a note regarding
the problem made in the  field logbook.
                                           13-36

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The following information is generally included on the sample tag or on the field data sheet:

     •  Inspection number

     •  Field identification of sample station number

     •  Date and  time of sample collection

     •  Designation of the sample as a grab or composite

     •  Type of  sample (water,  wastewater, leachate, soil, sediment, etc.)  and a very brief
        description of the sampling location

     •  The signature(s) of the sampler(s)

     •  Whether the sample is preserved or unpreserved

     •  The general types of analyses to be conducted (checked on the front of the tag)

     •  Any relevant comments (such as readily detectable or identifiable odor, color, or known
        toxic properties)

     •  If the sample is known or thought to be hazardous, the tag should be so marked and contain
        information on the nature of the hazard (e.g., corrosive, flammable, poison).

The following basic considerations  govern identification of samples:

     •  One sample number is used for each sample.  One sample consisting of several subsamples
        or units is assigned only one number.

     •  Subsamples may be sealed in a single bag if they are part of one sample and if adequate
        packaging protection  is provided.

     •  Sample numbers should appear on all documentation relating to a sample:  seals, Chain of
        Custody Record, drawings, photographs, etc.


Sample Seal	

Some EPA inspectors use an official sample seal.  Once the sample has been collected and tagged,
its container  should be placed inside a  plastic bag.  The inspector should first  write his  name or
initials, and the date on the  bag and then turn the bag inside out to prevent any means of tampering
with its contents.  The sample  is  placed inside the inverted bag.  The bag is then taped closed in a
secure manner with the Official Sample Seal (EPA Form 7500-2). The sample container or wrapper
should be sealed so that  it may not be opened at any point without breaking the seal and/or the
original unit package. Not more than one sample should be sealed under one seal.  An example of
an official seal is included as Exhibit 3-8, page 13-48.

If the company declares a physical sample as confidential business information, the inspector should
mark the seal "Confidential  Business Information.  If it becomes necessary to break a seal, it should
be mounted on a piece of paper, properly initialed and dated, and submitted with sample records to
provide a  continuous history.   The sample should be  resealed with a new seal.
                                           13-37

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EXHIBIT 13-4
A CO A Unlted
32zEPAEnvlro
Agsnc
States
nmtntal Protactlon
y
Chain of Custody Record


Inspector Name and Address


Inspector Signature
Sample Number
Task Number
Inspection Number
Sample Name
Date Sample Time Duplicate Requested
( )Yes ( )No
Location of Sampling
Analysis/Testing Required
Laboratory
Date Received
Received By
Sent Via
Sample Condition
Condition of Seals
Units Received
Storage Location
Assigned By
Assigned To
Delivered By
Date Delivered
Number of Units Received
Units Analyzed
Date Seal Broken
Date Received
Reseated By
Storage Location
Date Results of Analysis
Issued to EPA





































Date Results of Analysis
Issued to Facility



















Remarks
   13-38

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                          EXHIBIT  13-4  (Continued)
      Chain of  Custody Record

   1.  Enter Inspector's name and EPA office
      address.

   2.  Sign the Chain of Custody Record.

3.-4.  Sample and Inspection numbering
      program is currently under
      development. Information
      regarding these spaces will be
      provided at a later date.

   5.  Task numbers refer to EPA
      contractors. Inspectors may disregard.

   6.  Describe the sample, including size.
      container, and contents, (e.g.  8 oz.
      bottle of PCB transformer oil.)
      List brand names if any.

7.-8.  List date (7) and time (8) sample was
      requested by facility officials.

   9.  Indicate if duplicate sample was
      requested by facility officials.

  10.  Enter name and address of firm.

  11.  List testing required for samples
      collected, (e.g. test for
      PCB concentration)
      The remaining parts of the Record
      will bo completed by personnel other
      than the inspector.
AEPASS
CM* •« CMM
•MM
1*
V »Maf«

Impaaor Nam and Addraw
1

Intpacnr Signature
Sarrpl* Numbar
3
Taak Numbar
5
napaoton Nurrbar
6
Data 8an0a lima rXpaca* Raquanad
7 8 ( )*• 9 ( (No
LooKonolSainpina
10
Analytit/Tmling Rtqumtf
11
(.•barmy
Dn> fUcai»»d
naowvad By
StrtVt*
SamptoCondMon
Condition of Saab
Unaftoomd
Strap Lacaaon
AutgnadBy
AuignadTo
D*v~dB,
DmDatwad
Numbar otUni»fWeai»ad
Unrti Analyzed
DM SM! Breton
OalaRaomad
RaaaatodBy
Storag* Loorton
Data Fta«ur» ol Analyaia
IsiiMd to EPA





































DOM RaaiM of Anafyw
laauad to FadMy



















Fta marks
                                    13-39

-------
                         EXHIBIT  13-4 (Continued)
 FIELD SAMPLE DATA AND CHAIN OF CUSTODY SHEET (FSDCOCS)
1.    Project Code & Account Number

2.    Name/Location

3.    Project Officer
4.
5.
6.
7.
8.

Notes
Samplers
Recorder
Examples
             Source Code
             Matrix
             Number of Containers
             Lab Number
             Station Number
             Date/Time
             Ending Date/Time
             Type
             Frequency
             Station Description
9.    Codes

10.   CHAIN OF CUSTODY
Obtain from designated individual

As appropriate

Name of person who should receive lab data.
Usually person collecting samples.

Check appropriate box

Use for comments

List names

Signature of person completing the FSDCOCS

See back of FSDCOCS
As appropriate
Enter number
Obtain from Joyce Crosson before sampling
Note 4 digit sequence number
STORET station number (if available)
Military time
For composite samples -- beginning --
date/time of first aliquot
Date/Time of last aliquot
See back of FSDCOCS
T = Time -- Aliquots taken at set frequency
S - Space - Grabs over an area
F = Flow - Variable time intervals
B-S&T
See back of FSDCOCS
Be specific

See back of FSDCOCS

Document POSSESSION of samples en route to
Region 10 laboratory.
If sent to another lab via common carrier, sign in
"DISPATCHED Br box.
                                    13-40

-------
                                                         EXHIBIT 13-5
                                   FIELD SAMPLE DATA AND CHAIN OF CUSTODY SHEET
     "iTT                                D Enforcement/Custody

Project Coda: TEC-O94 A Account:"^*. »O PC O Possible Toxlc/Haiardout Notes:	

Name/Location:  At>C  Xv\C t  SemiLg    Q Data Confidential        OttSE

Project Officer:  TbM  TJouctH	 D Data for Store!           SA6
                                                                            VOST
                                                                        6;   11.54
                                                                                             Reco
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     MATRIX
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                                                                    COMPOSITE ONLY
                                                                   ENDING DATE
                                         Mo  Dy   Tim*
                                                                            STATION
                                                                          DESCRIPTION
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-




MISCELLANEOUS

..
UlMOUItHID lY:il» •. .1
NIllNOUIIHf O «Y:ll» n. .<
6ii«ICHf6"lV: .j»~O., O»TI
MCIIVIO(Y:.i«__, OATf/nwi
IICirvfOBV:il*^M< DATI/TIMf
1
If CIIVID •¥:»«_. DATT/T1UI
ifcvoavMoeriiut AArrmur
rOII HIIO ANAL: ,.,~_,
'nmi |nicfivioroiitAeev:ii^_>niOATI/TIUf
MfTMOO ortmrtfttn .

-------
                                                "fob
              EXHIBIT 13-6
            Example of Field Logbook
U)

-p-
tO
                                            Lumber

                                         ^Took &w*L
                                       of ouAftl
                                             dumping
                                               . ( s«,  hotos
                                      itl
                                       "fay (of
                                              *4  /
-------
  T3
  0)
  3
  C
  •H
  4J

  O
 o
 VO
 I
 CO
X
                               I     i   MII!
                                             13-43

-------
59
  1                      EXHIBIT 13-6 (Continued)                         * ^
                                           Soanses  of
  Resource
 Mtrritf
 Co. Inc.
             ry Attorney                   river
                   >/€,                  2. &VM/I-
                                         AW

-------
                                EXHIBIT 13-6 (Continued)
          There,  is
          inM -fa-Hie
          under  dry
                   arc* ( fr
4S
Ui
          ****.).
         qo  +hnujh ^ui old
         Are*.

-------
EXHIBIT 13-6 (Continued)
                   SeitielJ  efcch* ^ee«-for Sanrpl* mft>,

-------
              EXHIBIT 13-7
          Example of Sample Tag
                        Con*.
         IB
                        i
                            m
                            CO
                9
                D
                                     o
                FRONT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
             REGION 4
        Environmental Services Division
           Cotagt Station Road
           Athens, QA 30613
     \vX
EPA
                     O
                 BACK
                 13-47

-------
                     EXHIBIT 13-8

                  Example of Sample Seal
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
INSPECTORS SEAL
3

SwnptoNo.
1
o«»
2
Signature
4
Print NOTM wd Tito
5
6
6
(1)    Insert sample number

(2)    Insert date sealed

(3)    Print location of collector's station

(4)    Signature of persons sealing the sample
        t
(5)    Print name (same as signature) and title of sealer

(6)    When a seal is broken for any purpose, initial here and enter the date-
      broken. Submit broken seal with sample records
                           13-48

-------
                       13E  SAMPLE MANAGEMENT IN THE FIELD
Samples should be handled,  stored, and shipped properly to avoid loss, contamination, danger to
handlers, and tampering. Following are general sample management considerations.

     •  Samples should always be handled in accordance with safety procedures that relate to the
        specific substance.

     •  Provisions for sample preservation (refrigeration, chemical preservation, proper packaging
        materials, etc.) should be planned in advance of actual sampling.

     •  Recommended holding times for specific samples should be determined and care taken to
        avoid delays in transit.

     •  Highly toxic substances may require special handling and such arrangements should be made
        in advance, if possible.

     •  Security provisions  should be adequate to protect both samples and documents.

     •  Samples can be delivered to the laboratory by the inspector.  When this is not feasible, they
        should be shipped by the most economical means commensurate  with the need for rapid
        handling. All shipments should be packaged and shipped in accordance  with  U.S. Postal
        Services and Department of Transportation regulations.

     •  Handling and  shipping procedures followed should be recorded to document the integrity
        of the sample.

     •  Copies of all shipping  and handling documents should be  obtained (e.g., bills of lading,
        return receipts, etc.) to become part of the official inspection  file.
Sample Preservation	

Some analyses require that steps be taken to preserve the sample immediately upon collection in the
field.  Preservatives required for routine analyses of samples are detailed in program- and media-
specific procedures and in Regional laboratory operating manuals.  Chemical preservatives used by
EPA personnel  are usually supplied to the inspector by the Regional laboratory.

Sample tags of preserved samples should clearly indicate that the sample is preserved and with what
chemical.  If the sample requirint preservation was not preserved, the field  logbook should explain
why there was a variation from the SOP.
                                           13-49

-------
The only samples that should not be immediately preserved in the field are:

     •  Samples collected within a hazardous waste site that are known or thought to be highly
        contaminated with toxic materials. Samples from barrels, drums, closed containers, spillage,
        or other sources at  hazardous waste sites should  not be preserved with chemicals. These
        samples may be preserved with ice if necessary.

     •  Samples that have extremely low or high pH, or samples that  may generate potentially
        dangerous gases if preserved using standard procedures.

     •  Well or ground-water samples that contain  visible sediment should  not be preserved with
        nitric acid if they were not filtered in the field.  These samples  should be preserved with
        ice and returned to the laboratory for additional sample  preparation.

     •  Samples for metals  analysis which are shipped by air should not be preserved with nitric
        acid in excess of the amount specified in Regional laboratory procedures.
Sample Holding Time	

Prompt analysis is the  most positive assurance against error from sample deterioration.   Samples
should be analyzed within a prescribed time frame after collection. Sample holding times for routine
samples are described  in Regional operating procedures and/or in program- and media-specific
procedures. Inspectors  should consult in advance with laboratory personnel to determine if there are
any unusual requirements for the particular substance being sampled.  Advance planning of the
inspection and analytical support helps to avoid delays in sample analysis that could affect quality.
Importance of Sound Packing and Shipping	

Because of the potential hazards and possible time delays associated with shipping samples, personal
delivery by the inspector is the  best method for transporting samples to the laboratory.  When this
is not feasible, samples are shipped by common carrier.

Shipments of known  or  suspected  hazardous materials  are  regulated  by the  Department of
Transportation (DOT).  Samples that meet DOT's hazardous materials criteria must be packed and
labeled according to the requirements set forth in 49 CFR 172.101.  Although not all EPA samples
contain hazardous materials, the Agency generally ships samples as if they do.

Samples should be packed to prevent breakage.  The shipping container should be sealed or locked
so that any evidence of tampering may be readily detected. Use of tamperproof evidence tape is
recommended.

The inspector is responsible  for properly packaging, labeling, and shipping the samples according
to DOT regulations.  Failure to  follow the regulations for packing and shipping could result in the
inspector being potentially liable if the samples leak or the shipping container opens and damage is
caused to human health or the environment.
                                           13-50

-------
In addition to concerns of health and safety, the inspector should be aware of the possibility of cross-
contamination of samples. This can occur if all the samples are packed in one shipping container and
one of the sample containers breaks.  Further complications  are likely  to occur if the samples
evaporate or volatilize. One scenario might involve one ruptured sample container whose contents
leak into the shipping container, dissolving the labels on all of the other sample containers, rendering
those  samples useless.  A worst case scenario could involve incompatible materials  coming  into
contact with one another and creating a toxic gas, fire, or explosion.  Proper packaging can avoid
a situation like this from happening.
Transportation Selection	

When selecting a common carrier for shipment of equipment and supplies to a sampling site and the
return shipment of samples back to the laboratory, it is important to be aware of the DOT regulations
as well as the different operating rules  associated with the different modes of transportation.  For
example, pressurized  cylinders cannot  be shipped  by air  freight.  Until recently, United Parcel
Service would not accept gasoline samples.  Other considerations to be aware of include the effect
of elevation on. sample size limitations and safety.
DOT Hazard Classification	

Unless known to be otherwise, samples taken during an inspection are presumed to be contaminated
and hazardous. The inspector must judge which DOT class (see below) is applicable, and then pack
and ship the samples accordingly.

For samples of an unknown nature, EPA generally uses  the flammable liquid class which is the
highest appropriate hazard class. To select a lower hazard class would mean that EPA would need
to do a flashpoint test in the field, which  would be both impractical and potentially dangerous.
Radioactive and Poison As are more hazardous than flammable liquids. However, since most Poison
As are gases or very volatile liquids, it is unlikely that they would be present at an EPA inspection
site.  Radioactivity screening requires a radiation survey meter, which is not normally a part of EPA
equipment.

Using  the word "Flammable" does  not convey that there  is certain knowledge that the sample or
group  of samples is, in fact,  flammable, or how flammable it or they  may be.  The inspector is
exercising professional judgment that this  is the  appropriate DOT hazard class for this sample.
Similarly, "Poisonous" does not  convey the  certain knowledge that a sample is poisonous, or how
poisonous it may be.  Inspectors use professional judgment in placing a sample in this hazard class.

If the technical name of the sample contaminant material is not known,  DOT places the burden on
the shipper to determine  if the sample meets the definition of a hazardous material. In the case of
samples being forwarded to the laboratory for analysis, it is assumed that the  shipper (that is, the
EPA inspector) would have some information about the sample, and, based on that  information, he
or she would be able to make a reasonable determination whether the sample is likely to be classified
as a  hazardous material.  If truly unable to make  such  a determination  in the field,  the inspector
should consult with the Hazardous Materials Transportation Coordinator in his or her organization.
                                           13-51

-------
DOT Packaging Requirements
The  requirements below for packaging hazardous material for shipment is excerpted from DOT
regulations.

Standard DOT Requirements for All Packages

"Each package used for shipping hazardous materials ... shall be so designed and constructed, and its
contents so limited, that under conditions normally incident to transportation:

     •  There will be no significant release of the hazardous material to the environment.

     •  The effectiveness of the packaging will not be substantially reduced.

     •  There will be no mixture of gases or vapors in  the  package  which could, through any
        credible spontaneous  increase of heat or pressure, or through  an explosion, significantly
        reduce the effectiveness of the packaging."

Additional DOT Requirements for Shipment by Air

"... Each package must be designed and constructed to prevent leakage that may be caused by changes
in altitude and temperature during air transportation.

Inner containers that are breakable (such as earthenware, glass, or brittle plastic) must be packaged
to prevent breakage and  leakage  under conditions normally  incident  to transportation.  These
completed packages must  be capable of withstanding  a four-foot drop onto solid concrete in  the
position most likely to cause damage.  Cushioning and absorbent materials must not be capable of
reacting dangerously with the contents....

For any packaging with a capacity of 110 gallons or less containing liquids, sufficient outage (ullage)
must be provided to prevent liquid contents from completely filling the packaging at 130  degrees F
(55  degrees  C).   The primary packaging (which may include composite packaging), for which
retention of the liquid is the basic function, must be capable of withstanding, without leakage, an
internal absolute pressure of no less than 26 Ibs./sq. in.  or no less than the sum of the absolute vapor
pressure of the contents at 130 degrees F (55 degrees C) and the atmospheric pressure at sea level,
whichever is greater.  Stoppers, corks, or other such friction-type closures must be  held securely,
tightly, and  effectively in  place with wire, tape, or other positive means.  Each screw-type closure
on any inside plastic packaging must be secured to  prevent  the closure from loosening due to
vibration or substantial changes in temperature or pressure."

EPA Packaging Procedures

Exhibit 13-10, pages 13-58 through 13-66 contains packaging and shipping procedures for various
types and  classes of samples in accordance with DOT requirements.
                                           13-52

-------
DOT Hazardous Classes
The following are DOT's classification of materials by order of hazard:

     Radioactive material
     Poison A
     Flammable gas
     Non-flamrnable gas
     Flammable liquid
     Oxidizer
     Flammable solid
     Corrosive material (liquid)
     Poison B
     Corrosive material (solid)
     Irritating materials
     Combustible liquid (in containers having capacities exceeding 110 gallons)
     ORM-B (other regulated material, i.e., barium oxide, calcium oxide, copper chloride)
     ORM-A (i.e., dry ice, carbon tetrachloride, chloroform, DDT, dieldrin, formaldehyde, lindane,
       malathion, naphthalene, vinyl acetate)
     Combustible liquid (in containers having capacities of 110 gallons or less)

Hazard Class Examples for EPA Samples

Poison A:                    Bromacetone, cyanogne, cyanogen chloride containing less than 0.9%
                             water,    diphosgene,   ethyldichlorarsine,   hydrocyanic   acid,
                             methyldichloratsine,   nitrogen  peroxide  (tetroxide),   phosgene
                             diphosgene), nitrogen tetroxide - nitric oxid, mixtures containing up
                             to 33.2% weight nitric oxide

Flammable liquid:            Acetone,  alcohol  n.o.s.  (not  otherwise  specified),   benzene,
                             cyclopentane, hexane, ink,  methyl alcohol, methyl ethyl, ketone,
                             toluene, xylene

Oxidizer:                    Chlorate, permanganate, inorganic peroxide, nitro carbo nitrate, or a
                             nitrate  that  yields oxygen readily  to stimulate the combustion of
                             organic matter

Corrosive materials:          "A liquid...that causes visible destruction or irreversible alterations in
                             human skin tissue...or in  the  case of packaging...that has a severe
                             corrosion ratio of steel"

Poison B:                    Aldrin, copper, cyanide, mercuric acetate, nitroaniline, thiophosgene,
                             zinc arsenate

Irritating materials:           "...fumes..." brombenzylcyanide, chloraceophenone, diphenylamine-
                             chlorarsine, diphenylchorarsine

Combustible liquid:           "...flashpoint at or above  100 degrees F and below 200 degrees F..."
                             alcohol n.o.s., benzaldehyde, camphor oil, chlordane-liquid, creosote-
                             coal, tar, fuel oil, pine oil, road oil, and wax-liquid


                                            13-53

-------
Procurement of Shipping Services for Samples
Advance Planning

Sample shipping needs should be identified and planned for in advance of the inspection as part of
the inspection planning process.

     •  Estimate approximately how many and what types of samples will be taken.

     •  Obtain the needed number of signed Government Bills of Lading from the Administrative
        Assistant.

     •  Locate an appropriate carrier to ship the samples; they can be found in the Yellow Pages
        of the phone book under "Trucking-Motor Freight." Note that not all carriers will accept
        hazardous material.  The Region may have a list of motor freight and air carriers that are
        frequently used.

     •  Obtain any needed account numbers, procedures, lists of airlines with which the Agency
        has an  account, and  any special procedural instructions from the Administrative Assistant.

After the Inspection

     •  Take the samples to  the nearest carrier capable of transporting to the required destination.

     •  If the cost is more than $150, use a Government Bill of Lading (GBL).  If less than $150,
        use either a Governmental Bill of Lading, a Diner's Club card, or cash. Costs will depend
        on weight and classification of material.

     •  If the material is hazardous, declare it.

     •  Always get a receipt (or keep CODV of the GBL).  Do not leave the shipping office without
        some evidence of the shipment and the cost.

     •  These receipts are part of the Chain of Custody Record
Use of Government Bill of Lading for Shipping Samples	'

A Government Bill of Lading (GBL) is used as a shipping documents. It is an accountable form and
must be safeguarded.  Usually, the administrative management unit of each EPA office is responsible
for GBLs and maintains a supply of  forms. This administrative unit will issue the needed GBL
forms to  inspectors for shipping samples in advance  of the inspection. (See Exhibit 13-9.)

Copies of the GBL should be distributed as follows:

WHITE ORIGINAL:   Give to freight agent
YELLOW:            Attach to back  of the GBL log
BLUE:               Give to consignee (the person receiving the shipment)
YELLOW:            Send to Finance

                                          13-54

-------
   EXHIBIT  13-9
                          This  is  an  Accountable   Form
U.S. GOVERNMENT BILL OF LADING
ORIGINAL «o> S- 4,846322
TRANSPORTATION.,
COMPANY k
TENDERED TO V
STOP THIS CAR OR TRUCK AT
FOR
CAR. TRUCK OR CONTAINER INITIALS
AND NO
Received by the transportation company name
on reverse hereof, the property hereinafter di
condition (contents and value unknown), to t»
company and connecting lines, there to be del
to said consignee
KIND

Regulations require Original.
Shipping Order, and Freight
Waybill Original and Carrier's
Copy lo be surrendered to
earner alter signature SF no3-
B. Memorandum Copy, rnust be
sent to consignee

d above, subiect to conditions named
•scribed, m apparent good order and
» forwarded to destination by the said
vered in like good order and condition
CAR-TRUCK-CONTAINER
ORDERED
Length-cube
FURNISHED
ROUTE ORDER/RELEASE NO
MARKED CAPACITY DATE DATC g L
OROtRED FURNISHED r"nK'l3lCD 'OGUCD
II eifra services are ordered see
Administrative Directions No 2 on reverse
FROM
(Shipping point) t
FULL NAME OF SHIPPER
 CONSIGNEE /Name, addr«ss and ZIP coat)
                                                              MARKS
DESTINATION i Name, add/ess and ZIP cod* ol installation i
                                         BILL CHARGES TO (Depl./eyency. Oureeu/ollice. mailing address and ZIP codet
VIA l Route shipment when advantageous to Me Government;
                                                              APPROPRIATION CHARGEABLE
SEAL NUMBERS
APPLIED BY:
                                FOR CARRIER'S USE ONLY - WAYBILL
                                NO. OR FREIGHT BILL NO
                                                              Contractor will return unused or canceled bills ol lading to the Government office
                                                              Iron) which received.
 PACKAGES
  NO  KIND
             DESCRIPTION OF ARTICLES IUt» earner's cltuilicttion or tariff deicrip-
             tion il posi/o/e, otherwise uu a c/ear nonltchnicel description.;
                                               NUMBERS ON
                                                PACKAGES
                  WEIGHTS'
                                                                                            FOR USe OF DCSTINATION CARRIER ONLY
                                                                                           :L«SS   HATE
                                                                                                           CHARGES
             If this shipment fully loads the car or truck used, check Q YES
                                                                     TARIFF OR SPECIAL RATE AUTHORITIES (CL. TL or Vol only)
 CARRIER FURNISHED SEFIVICE AT ORIGIN
 DP.CKUP   QTRAP-
                  'L NO.
                    -4,846822
FOR USE OF
ISSUING
OFFICE
                                                                         CONTRACT O« PURCHASE ORDER NO OK OTHER AUTMOBIl' DATED
 NAME OF
 TRANSPORTATION
 COMPANY
                                                              F OB POINT NAMED
                                         ISSUING OFFICER (Hunt am» tnlel
 DATE OF RECEIPT OF SHIPMENT
 SIGNATURE OF AGENT
                            Inmsi carrier's agent, by signature below.
                            certifies he receivM the Original Bill of Lading
                                                              ISSUING OFFICE iMame and compwre
                                            PER
                 CERTIFICATE OF CARRIER BILLING FOB CHARGES - Comlgm* rmttl not p«y any chargM on ttvlt ihlpmont
 ON /Dtte)
AT f Actual delivery point)
                                                              THE INtme ol delivering, carrier;
 Of LIVEREO THIS CONSIGNMENT COMPLETE
 AND IN APPARENT GOOD OROER EXCEPT
 AS MAT BE INDICATED HEREAFTER    )      D SHORTAGE
                                D DAMAGE
       _. CARRIER OStO
       D REPORT ATTACMED
I SERVICE FURNISHED BY CARRIER AT DESTI-
NATION
       DftLIVERY   D TRAP-CAR
                                                         13-55

-------
                                EXHIBIT 13-9 (Continued)


Instructions for Completing a GBL

Follow the steps below when filling out a GBL. (Sample GBL is presented on page 15-57).

     1) Name of transportation company.  (Full address and telephone number are necessary).

     2) From (Address from which shipment  is originating.)

     3) Full name of Shipper. (Usually same  as Step #2.  If different, then state.)

     4) Consignee. (Person/firm receiving shipment.)

     5) Destination. (Usually same as Step #4.  If different, then state.)

     6) Bill Charges.  (Billed to EPA, Finance, M/S 313.)

     7) Class, rate, and charges.  (This section is for the DCN.)

     8) Packages. (Total number of items shipped.)

     9) Description of Articles.  (Use a clear, nontechnical description,  e.g., sample containers,
        chair, computer terminal.)

     10) Number of packages.  (If more than one item is being shipped, they should be numbered,
        e.g., 1/3, 2/3/, 3/3.)

     11) Weights.  (Weight the package(s).)

     12) Name of Transportation Company. (Full name of transportation company. Address is not
        necessary.)

     13) Issuing Officer.  (Name of person filling out the GBL and his or  her title.)

     14) Signature of Agent. (When agent accepts or picks up, they must sign here.)
                                          13-56

-------
                                 EXHIBIT 13-10
          PACKAGING PROCEDURES FOR ENVIRONMENTAL SAMPLES
•   Limit the volume collected to the minimum quantity necessary to conduct the requisite
    analysis and quality control plus any required splits.

•   Identify each sample container with a tab or label at the time of collection.

•   Plastic containers should be used unless EPA-approved analytic methods require glass.

•   Plastic or glass containers should have screw-types lids.  If it is necessary to use stoppers,
    corks, or other friction-type  closures, they must  be held securely in place with wire or
    nylon-reinforced tape.

•   Glass containers:

    -   The container's  screw-type lid must be tightened  before it is placed in the shipping
       container.

       In the shipping container, glass bottles should be separated by cushioning or absorbent
       material (e.g., styrofoam,  blotting paper, or newspaper) to prevent contact with other
       hard objects and to prevent breakage.

       --  For example, a one-gallon glass bottle (organic sample) can be placed between two
           carved out styrofoam sheets which secure the bottle at the top and  bottom.  Small
           glass  bottles (volatile organic sample) can be  placed inside a  one-quart plastic
           Cubitaner with screw-type lid to minimize breakage and contain leakage.

•   Plastic containers:

    -   Polyethylene bottles or Cubitaners do  not  require  cushioning  materials to prevent
       breakage but do need to be protected from puncturing by sharp  objects.

    -   Caps  should be tightly screwed on  before  the plastic containers are  placed in the
       shipping container.

•   For samples requiring preservation with ice, containers should be placed in sturdy plastic
    bags or containers to minimize ice water leakage.

       Ice can be placed in separate plastic bags or in large mouth Cubitaners with screw-type
       lids.

       Alternatively, samples bottles and ice can be placed together in a large, sturdy plastic
       bag that serves as a waterproof liner.
                                      13-57

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   PACKAGING PROCEDURES FOR ENVIRONMENTAL SAMPLES (Continued)
•   When dry ice is used to preserve plant or animal tissue and the package is to be offered for
    transportation bv air:

    -   The packaging must be designed and constructed to permit the release of carbon dioxide
       gas.

    -   The air carrier should be notified well in advance.

    -   The  package should be  marked "carbon  dioxide, solid" or "dry ice,"  and "frozen
       diagnostic specimens," and "ORM-A" in a rectangle approximately 1/4 inch larger than
       the letters on each side.

•   After all sample containers have been carefully arranged and ice has been added, the plastic
    bag should be tightly closed with wire, tape, or other positive means.

•   Shipping Container:

       All sample containers must be placed  inside  a strong outside shipping container.  A
       metal picnic cooler (ice chest) lined inside with hard plastic complies with the DOT drop
       test requirement.

       Care must be taken to secure the  drainage hole at the bottom of the cooler so that if a
       sample container or an ice bag leaks, the contents cannot escape. The lid should try to
       fit tightly to prevent leaks should the container be accidentally  turned over.

•   Place the Chain of Custody form in the shipping container before closing  it.

•   Close and secure the shipping container with a lock, seals, and/or custody tape.

•   The shipping container must be marked "This Side Up" or "This End Up."  The name and
    address of the Agency program office must be placed on the  outside of  the cooler.

•   An inspection team member must accompany shipping container(s) to the carrier and, if
    required, open outside container(s) for  inspection.
                                      13-58

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       PACKAGING PROCEDURES FOR FLAMMABLE LIQUID OR SOLID SAMPLES
The following procedures apply to flammable liquid or solid samples, such as those that might be
collected at hazardous waste sites.

     •  Collect: the minimum volume necessary.

        -   The sample should be collected in an eight-ounce or smaller glass container with a
            nonmetallic, Teflon-lined screw cap.

        -   Allow sufficient ullage (approximately 10% by volume) so container is not full of liquid
            at 130 degrees F (55 degrees C).

        -   If a solid, net weight should not be more than one pound.

     •  Tightly close sample container, attach completed sample identification tag, and place in 2-
        ml thick (or thicker) plastic bag.

            Put only one sample in each bag.

            The sample tag should be placed where it can be read through the bag.

        -   Close the bag with a wire, reinforced tape, or other secure means.

     •  List the appropriate sample identification data on the Chain of Custody Record.

     •  Carefully place and orient the sample container inside the metal can marked with the sample
        number.

        -   Add enough   incombustible,  absorbent  cushioning  material (e.g.,  vermiculite or
            diatomaceous Fuller's earth) to completely absorb the liquid contents.

            Place only one sample in a can.

        -   Pressure  close the can and  use clips,  tape,  or  other  positive  means to hold  the lid
            securely.

     •  Place Chain of Custody Record  inside the shipping container before closing and securing.

     •  Close and secure the shipping container with a lock, seals, and/or custody tape.
                                           13-59

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PACKAGING PROCEDURES FOR FLAMMABLE LIQUID OR SOLID SAMPLES (Continued)
    •   Marking and labeling:

           Use abbreviations only where specified.  As used here, "n.o.s." means "not otherwise
           stated".

       -   Use printed stickers  or  labels to place the following  information on  the shipping
           container:

           —  Laboratory name and address

           --  "Flammable Liquid,  n.o.s., UN  1993" or, if a solid, "Flammable Solid, n.o.s., UN
               1325"

           --  Limited Quantities or "LTD. QTY."

           --  "This end up" or "This side up"  and arrows.

       -   On the outside of the container, place the following labels:

           --  "Cargo Aircraft Only"

           --  "Flammable Liquid"  or "Flammable Solid"

           —  "Dangerous When Wet" label if the solid is water reactive or has not been exposed
               to a wet environment.

    •   Shipping papers:

           Use abbreviations only as specified below.

           Complete a GBL and sign the certification statement (if the carrier does not provide
           one, use the standard industry form), with the following information in the order listed:

           --  "Flammable Liquid,  n.o.s., Flammable Liquid,  UN 1993" or "Flammable Solid,
               n.o.s., Flammable Solid, UN 1325"

           --  "Cargo Aircraft Only"

           —  "Limited Quantities"  or LTD. QTY."

           —  "Net  Weight	" or "Net Volume	"
       A team member must accompany shipping container(s) to the carrier and, if required, open
       outside container(s) for carrier inspection.
                                         13-60

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      PACKAGING PROCEDURES FOR FLAMMABLE LIQUID, CORROSIVE SAMPLES
If a flammable  liquid sample  exhibits corrosive properties, it must be  packaged and shipped
accordingly. A corrosive is defined as "a liquid or solid that causes visible destruction or irreversible
alterations in human skin tissue at the site of contact, or in the case of leakage from its packaging,
a liquid that has a severe corrosion rate on steel."  Shipping requirements for corrosives follow.

     •  Collect the minimum sample volume necessary.

        -   Collect the sample in a one-quart glass container and close it with a nonmetallic, Teflon-
            lined screw cap.

            Allow adequate ullage (about 10% by volume) so the container will not be full of liquid
            at 130 degrees F (55 degrees C).

     •  Attach a properly completed sample identification tag to the sample container.

     •  Place the quart container inside a 12B fiberboard  box with incombustible, absorbent
        cushioning material (vermiculite or diatomaceous (Fuller's) earth.

        -   Polyethylene bags are not used for quart corrosive sample bottles.

            Use tape to close the box.

     •  Marking and labeling.

            Affix, the following labels  on the box:

            --  "Flammable Liquid"

            —  "Corrosive"

            --  "Cargo Aircraft Only"

            Mark the box with this additional information:

            --  "Flammable Liquid, Corrosive, n.o.s., UN 2924"

            --  Laboratory name and  address

            --  "This side up" or "This end up" and arrows.

     •  Place  the  fiberboard  box(es),  surrounded with sufficient additional, incombustible,
        absorbent cushioning material  to absorb the contents of a broken container, into a strong
        shipping container  (e.g., metal cooler).
                                           13-61

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PACKAGING PROCEDURES FOR FLAMMABLE LIQUID, CORROSIVE SAMPLES (Continued)



     •  Mark and label the shipping container:

            Mark the same as the 12B fiberboard boxes (see above).

        -   In addition, mark "Overpack" and "Inside packages comply."

     •  Shipping papers:

            Use abbreviations only where specified.

            Complete  Bill  of  Lading and sign the certification statement with the following
            information (a single form may be used for more  than one shipping container):

            --  "Flammable Liquid, Corrosive, n.o.s., Flammable Liquid, UN 2924"

            --  "Cargo Aircraft Only"

            —  Show net quantity

            --  Write also "Overpack" on the shipping  papers.

     •  A team member must accompany the shipping  container(s) to the carrier and, if required,
        open outer container for verification of inside  packaging by the carrier's agent.
                                          13-62

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                               PACKAGING PROCEDURES
                                           FOR
                                   POISON A SAMPLES
Samples suspected of containing one of the liquids classified by DOT as Poison A must be shipped
accordingly.  Poison A liquids are "poisonous gases or liquids of such a nature  that a very small
amount of gas, or vapor of the liquid mixed with air is dangerous to life."  Some of the gases and
liquids in this class  are cyanogen, diphosgene, hydrocyanic acid, and nitrogen peroxide. Samples
suspected of containing a Poison A liquid must be shipped according to the following  procedures:

     •   Collect the minimum volume necessary.

     •   Collect the sample in a polyethylene or glass container which has an outer diameter smaller
         than the valve hole of a DOT Spec. 3A1800 or 3AA1800 metal cylinder normally used for
         pressurized gas.

            Allow sufficient  ullage (about 10% by volume) so it is not full of liquid at 130 degrees
            F (55 degrees C).

     •   Attach a properly completed Sample Identification Tag to the sample container.

     •   Using a string or flexible wire attached  to the  neck of the sample container, lower the
         container into a metal cylinder (DOT Spec. 3A1800 or 3AA1800) which has been partly
         filled with incombustible, absorbent loose packing material (vermiculite or diatomaceous
         (Fuller's) earth).

         -   Fill the cylinder to the valve hole  with more of the packing material, using care to
            assure sufficient  packing between the sample container and the sides, bottom, and top
            of the cylinder to prevent breakage.

            Drop the string or wire into the valve hole.

            Use one cylinder for each sample of Poison  A.

     •   Install the  cylinder valve securely and replace the valve protector  on the cylinder using
         Teflon tape.

     •   Marking and labeling the cylinder:

            Use abbreviations only where specified.

            Using hand printing or prepared labels, place the information below  on the side of the
            cylinder or on a  metal tag wired to the valve protector.

         -   "Poisonous2 Liquid, n.o.s., NA 1955" or "Poisonous Gas, n.o.s. NA 1955"

            Laboratory name and address.

            A "Poisonous Liquid" label may be  used even if the sample is not liquid.


                                           13-63

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                          PACKAGING PROCEDURES
                                      FOR
                        POISON A SAMPLES (Continued)
•  Cylinders mav be shipped as is. or several mav be packed in an overpack.

   -   Use the same labels and printing as on the cylinder (see above).

       In addition, mark the container:

       --  "Laboratory Sample"

       —  "Inside Package Complies with Prescribed Specifications"

       —  "This side up" or "This end up" with arrows.

•  Shipping papers:

       Use abbreviations only as indicated.

   -   Complete the following information in the order given (one form may be used for more
       than one shipping container):

       --  "Poisonous Liquid, n.o.s., Poison A, NA 1955" or "Poisonous Gas, Poison A, n.o.s.,
           NA 1955"

       —  "Limited Quantity" or "LTD. QTY."

       --  "Laboratory Samples"

       —  "Net Weight	" or "Net Volume	" (of hazardous contents) by cylinder, if more
           than one cylinder is contained in a shipping container.

       --  The net weight or net volume must be placed on the shipping papers just before
           or after the "Poisonous Liquids, n.o.s., NA 1955" or "Poisonous Gas, n.o.s., NA
           1955" marking.

•  Materials  classified and packed as Poison A mav  not be  shipped  by non-government
   aircraft.

•  Unless samples are driven to the laboratory, a team member must accompany the shipping
   container(s) to the carrier and will, if required, open the shipping container for inspection
   of the contents.
                                     13-64

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                              PACKAGING PROCEDURES
                                         FOR
                            POISON A SAMPLES (Continued)
1.    Using the word "Flammable" does not convey that there is certain knowledge that the sample
     or group of samples is, in fact, flammable, nor does it indicate how flammable it or they may
     be. The inspector is exercising professional judgment that this is the appropriate DOT hazard
     for this sample.

2.    "Poisonous" does not convey the certain knowledge that a sample is poisonous, or how poisonous
     it may  be.  Inspectors  use professional judgment in  packing  a  sample in this  hazard
     class.
                                         13-65

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NOTES
 13-66

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                          13F:  LIST OF PROTOCOLS AND SOPs
Over the years, EPA programs have developed a series of guidance documents, inspection manuals,
and other materials which may serve, in part, as the protocols and Standard Operating Procedures
(SOPs) for compliance inspections and associated activities. The following pages contain a selected
list of such documents to show what methodologies and protocols are available.  More detailed
information will be provided through program-specific training.
                                          13-67

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                                  EXHIBIT 13-11

                       INSPECTION PROTOCOLS/GUIDANCE
                              SELECTED REFERENCES

                                    October 1988
Toxic Substance Control Act (TSCA)

     TSCA (General)

     •   TSCA Inspection Manual: Volume One
        TSCA Base Manual (January 1980)

     •   TSCA Administrative Case Reporter

     •   TSCA Compliance/Enforcement Guidance Manual (1984)

     •   TSCA Confidential Business Information Security Manual (November 1985)

     •   NEIC Policies and Procedures (June 1985)


     TSCA (PCBs)

     •   TSCA Inspection Manual: Volume Two
        PCB Inspection Manual (March 1981)

     •   TSCA/PCB Compliance Program Policies 1, 2, 3, 4, 6 and 7

     •   The PCB Regulations Under TSCA:  Over 100 Questions/Answers
        June 1979/November 1983)

     •   Guidance Document on Sampling and Sampling Selection for Uncontrolled PCBs
        (November 1983)

     •   Verification of PCB Spill Cleanup by Sampling and Analysis (August 1985)

     •   Guidance Manual for Writers of PCB Disposal Permits for Alternate Technologies

     •   PCB Compliance Monitoring Strategy (May 1988)
                                       13-68

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              INSPECTION PROTOCOLS/GUIDANCE (Continued)


Asbestos (Sampling & Health & Safety)

•  Asbestos in Buildings: Simplified Sampling Scheme for Friable Surfacing Materials
   (October 1985)

•  Asbestos Exposure Assessment in Buildings Inspection Manual (October 1982)

•  A Guide to Respiratory Protection for the  Asbestos Abatement Industry (April 1986)

•  Interim Health & Safety Guidelines for EPA Asbestos Inspections (May 1987)


Asbestos Hazard Emergency Response Act (AHERA)

•  AHERA Inspection Checklist and Guidance (1988)


Asbestos Abatement Projects Rule (Worker Protection)

•  Worker Protection Inspection Checklist and Guidance (1985/1986)


Asbestos (General)

•  Asbestos Fact Book (August 1985)

•  Asbestos Waste  Management Guidance (May 1985)

•  Asbestos in Buildings:  A  National Survey  of Asbestos Containing Materials in Buildings
   (June 1985)


TSCA Sections 5 & 8

•  TSCA  Section 5 Inspection Pre-Manufacturing Notification (PMN) Inspection  Manual
   (Volume 4, September 1981)

•  TSCA  Section 5 Inspection Guidance

•  TSCA  Section 8 Inspection Guidance
                                    13-69

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                   INSPECTION PROTOCOLS/GUIDANCE (Continued)
    Good Laboratory Practices & TSCA Section 4 (TSCA/FIFRA)

    •   Good  Laboratory Practice Compliance Inspections of Laboratories Conducting Health
        Effects Studies:  Inspectors Manual

    •   Standard Operating Procedure, DA-01:  Auditing Toxicology Data in Long-Term Animal
        Studies

    •   Standard Operating Procedure,  DA-02: Auditing Chemical Data in Long-Term Animal
        Studies

    •   Standard Operating Procedure,  DA-03: Auditing Pathology Data in Long-Term Animal
        Studies
Federal Insecticide Fungicide and Rodenticide Act

     •   Pesticides Inspection Manual (1975)

     •   FIFRA Compliance/Enforcement Guidance Manual (1983)

     •   FIFRA Case Proceedings Manual (1975)

     •   FIFRA Compliance Compendium


Safe  Drinking Water Act

     Underground Injection Control

     •   Underground Injection Control Inspection Manual, U.S. EPA, Office of Drinking Water,
        February,  1988


     Public Water Supply Systems

     •   Sanitary Survey Training Manual's Student Text, 1983

     •   Water Treatment Plant Operation Volumes I and II,  1983

     •   Water Supply System Operation, 1983

     •   Groundwater Monitoring Technical Enforcement Guidance Document, 1986: Chapter 4,
        Sampling and Analysis

     •   Technical Case Development Guidance Document, June 1988, Part 3.3
                                        13-70

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                   INSPECTION PROTOCOLS/GUIDANCE (Continued)


Clean Water Act - National Pollution Discharge Elimination System (CWA-NPDES)

     •  Procedures for Compliance Sampling Inspections and Toxic Sampling Inspections are in
        Chapter V of the NPDES Compliance Inspection Manual.

     •  Procedures for Compliance Biomonitoring Inspections are in Chapter VII of the NPDES
        Inspection Manual.

     •  Inspection Procedures for all NPDES inspections are in the NPDES Compliance Inspection
        Manual, May, 1988.

     •  NPDES Compliance Flow Measurement Manual (NTIS:  PB 82131178, IRC050U)

     •  Inspections' Guide for Evaluation of Municipal Wastewater Treatment Plants (021U)

     •  Performance Audit Inspection Policy and Guidance,  December 1979

     •  Pretreatment Compliance Monitoring and Enforcement Guidance

     •  Pretreatment Compliance Inspection and Audit Manual for  Approval Authorities


Resource Conservation and Recovery Act (RCRA)

     •  SW-846: Test methods for evaluating waste, physical/chemical methods.
        (Sampling and testing methods for use  in implementing RCRA)

     •  Groundwater Monitoring Technical Enforcement Guidance Document, 1986:  Chapter 4,
        Sampling and Analysis

     •  Technical Case Development Guidance Document. June 1988, Part 3.3

     •  RCRA Inspection Manual. OSWER Directive 9938.2A

     •  Hazardous Waste Tank System Inspection Manual 9938.4

     •  Groundwater Monitoring Systems Compendium:

           RCRA Comprehensive  Groundwater Monitoring  Evaluation Document.   OSWER
           Directive 9950.2

           Operations and Maintenance Inspection Guide. OSWER Directive 9950.3

        -  RCRA Laboratory Audit Inspection Guidance Document. OSWER Directive 9950.4

     •  Land Disposal Restriction Inspection Manual. OSWER Directive 9931.1 A
                                        13-71

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                   INSPECTION PROTOCOLS/GUIDANCE (Continued)


Clean Air Act

     Stationary Source Inspection Protocols

     •  Air Compliance Inspection Manual (September, 1985) EPA 340/1-85-020

     •  The Clean Air Act:  Compliance/Enforcement Manual (Revised 1987)

     •  Guide to Effective Inspection Reports for Air Pollution Violations
        (September, 1985) EPA 340/1-85-019

     •  Air Pollution  Source Inspection Safety Procedures - Workshop Manual
        EPA 340/1-85-002a

     •  Respiratory Protection Programs Guideline EPA 340/1-85-002c

     •  Air Pollution  Source Field Inspection Notebook (in printing)
        EPA 340/1-85-88-001

     •  Inspection Techniques for Evaluation EPA of Air Pollution Control
        Techniques:  Vol. 2 - Workshop Manual 340/1-85-002b

     Visible Emission  Inspection Procedures

     •  Guidelines for Evaluation of Visible Emissions:  Certification, Field Procedures, Legal
        Aspects and Background Materials (April, 1985) EPA 340/1-75-007

     •  Quality  Assurance Handbook for Air
            Pollution Measurement Systems: Vol. Ill
            Stationary Source Specific Methods
            Section 3.12 - Method 9 Visible
            Determination of Opacity of Emissions
            from Stationary Sources  (February, 1984) EPA 600/4-77-027b

     •  Technical Assistance Document: Quality Assurance Guideline for Visible Emission Training
        Schools  (February, 1984) EPA 600/4-83-011

     •  Instructions for Use of the VE Observation  Form EPA 340/1-86-017
                                          13-72

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                   INSPECTION PROTOCOLS/GUIDANCE (Continued)


Control System Inspection

     Pollutant Capture/Exhaust Systems

     •   Performance Evaluation Guide for Large Flow Ventilization Systems EPA 340/1-84-012

     •   Guidelines on Preferred Locations and Design of Measurement Ports for Air Pollution
        Control Systems EPA 340/1-84-017

     •   Technical Manual: Hood System Capture of Progress Fugitive Paniculate Emissions (April,
        1986) EPA 600/7-86-016

     Control Equipment

     •   Operating and Maintenance Manual for Electrostatic Precipitators EPA 625/1-85-017

     •   Flue Gas Desulfurization Inspection and Performance Evaluation EPA 625/1-85-019

     •   Operation and Maintenance Manual for Fabric Filters EPA 625/1-86-020

     •   Inspection  Procedures  for  Evaluation  of  Electrostatic  Precipitator  Control  System
        Performance EPA 340/1-79-007

     •   Wet Scrubber Inspection and Evaluation EPA 340/1-83-022

     •   Fabric  Filter Inspection and Evaluation Manual (February, 1984) EPA 340/1-84-002

NESHAP Source Inspection

     Asbestos Source Inspections

     •   NESHAP Asbestos Demolition and Renovation Inspection - Workshop Manual EPA 340/1 -
        88-008

     •   NESHAPs Asbestos Demolition  and Renovation Inspector Safety-Workshop Manual EPA
        340/1-88-009

     •   EPA Demolition and Renovation Inspection Procedures Manual (Interim Draft) EPA 340/1 -
        88-010

     Other NESHAPs

     •   Inspection Manual for Vinyl Chloride EPA 340/1-78-010
                                         13-73

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                   INSPECTION PROTOCOLS/GUIDANCE (Continued)


VOC Source Inspection Records Review

     General Inspection

     •   A Guide for Surface Coating Calculations EPA 340/1-86-016 (7/86)

     •   A Guideline for Graphics Art Calculations EPA 340/1-88-004 (8/88)

     •   Recordkeeping Guidance Documents for Surface Coating and Graphics Arts Calculations
        (Draft) EPA 340/1-88-003

     •   Field Inspection Notebook for VOC Sources (Draft) EPA 340/1-86-0022

     •   Portable Instruments User's Manual for Monitoring VOC Sources EPA 340/1-86-015 (6/86)

     •   Inspection Manual for Enforcement of RACT - Degreasers EPA 340/1-79-008

     •   Inspection Manual for Control of Volatile Organic Emissions from Gasoline Marketing
        Operations EPA 340/1-80-012

     Source-Specific Manuals

     •   Inspection Manual for Vinyl Chloride EPA 340/1-78-010

     •   Petroleum Refinery Enforcement Manual EPA 340/1-80-008


     Combustion Source Inspection

     •   Coal-Fired Industrial Boiler Inspection Guide EPA 340/1-83-025

     •   Combustion Efficiency Optimization Manual for Operators of Oil and Gas-Fired Boilers
        (September, 1983) EPA 340/1-83-023

     •   Continuous Emission Monitoring Systems (CEMs) Inspection  and  Audit Procedures
                                         13-74

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              INSPECTION PROTOCOLS/GUIDANCE (Continued)


General

•  Guidelines for the Observation of Performance Specification Tests of CEMs EPA 340/1 -
   83-009

•  Handbook for the Review of Excess Reports EPA 340/1-86-008

•  Technical Guidelines on Review and Use of Excess Emission Reports (EPA) 340/1-84-
   015

•  Technical Guidance on Use of Coal Sampling and Analysis Data EPA 340/1-85-010

Opacity Pollutant Monitoring

•  Inspection Guide for Opacity CEMs (6/88) EPA 340/1-88-002

•  Technical Assistance Document: Performance Audit Procedures for Opacity Monitors EPA
   600/8-87-025 '
                                   13-75

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NOTES
 13-76

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14 - Interviews

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                                       CHAPTER 14

                                       INTERVIEWS
Interviews are a highly valuable, but often underutilized, means of gathering information during
an inspection. Oral and written statements obtained from facility personnel are usually admissible
evidence.  An inspector with good interviewing skills can elicit information and develop important
facts that might otherwise be missed.

While written materials cannot replace practical experience for learning and improving interviewing
skills, the techniques presented in this section can help shorten the training time needed to become
a successful interviewer. Many of these techniques are designed to ease the tension and anxiety that
plant  managers and employees  may experience at the  thought of  being  interviewed by an EPA
enforcement official.  Other techniques are designed to aid inspectors in composing questions that
will more effectively elicit useful information.

The section begins with a discussion of statements  as evidence, including procedures for how to
prepare a written statement. This is followed by a discussion of the steps in  planning and conducting
interviews, questioning techniques, and some  suggestions for creating an atmosphere conducive to
a productive interview.
                                           14-1

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NOTES
 14-2

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                            14A STATEMENTS AS EVIDENCE
Oral or written statements obtained during an inspection are generally admissible in court under
exceptions to the "hearsay evidence" rules.  Statements made by a company employee is an example.
Even when statements made during an inspection interview are not admissible, statements are still
useful  for cross-examination purposes or to develop leads for investigation.

     •   Criminal investigations.  While most EPA inspectors do not normally become involved in
        criminal investigations,  note  that even statements obtained at the scene of  a criminal
        investigation during the execution of a warrant are legal.  The Fifth Amendment privilege
        against self-incrimination applies only to in-custody interrogation.  It is  not necessary to
        read rights prior to asking questions of a witness who is not in custody.
Documenting the Interview	

A written record should be made of each interview. As applicable in the particular circumstances,
this may be in the form of an affidavit, a verbatim record of questions and  answers, unsworn
statements, or informal notes.  Some people are inhibited by the sight of an inspector taking notes,
while others may feel that the inspector's failure to take notes indicates a lack of interest in them
and in what they have to say. In the final analysis, the inspector must evaluate the individual in
each interview to determine the correct approach.

Notetaking	
It is important to take accurate field notes; however, it is equally important that the notetaking or
documentation process be unobtrusive and not interfere with the interview process.

If the interviewee's pace is too fast, wait for appropriate breaks in the conversation and "backtrack"
by reviewing salient  points.  Try slowing the conversation by deliberately slowing the delivery of
questions.  Experts have  found that when a strong rapport is established between two individuals
engaged  in conversation,  the pace of one influences the other.  Only  as a last resort should  the
inspector ask the interviewee to slow down a bit. Keep in mind that such a request, no matter how
reasonable, asks the interviewee to abruptly change pace and usually tends to dampen somewhat  the
enthusiasm that is causing the heightened speed of the conversation. Avoid  frequent interruptions
or asking for an answer to be repeated.

If two inspectors  are present, a useful technique is for one to ask questions and the other to take
notes.   This  approach also  avoids  any potential for  lost credibility  because of  differences in
inspectors'  notes.
                                            14-3

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Use of Tape Recorders
Inspectors frequently ask whether or not they can use tape recorders or electronic recording devices
during an interview.  There are no legal barriers to the use of tape recording equipment by the
inspector solely for the purpose of recording his/her own observations during the inspection. Also,
the ispector  may  record an interview,  if  it is  done  with the knowledge and  consent  of the
interviewee.  However, if a given investigation requires tape recording individuals without their
knowledge, the inspector must consult with the Office of Regional Counsel.  Otherwise, the inspector
may violate criminal statutes which prohibit such actions. In considering the  use of a tape recorder,
the inspector should gauge whether the interviewer is more or less likely to talk freely.

Written Statements	
If the information given by the interviewee seems especially significant, the inspector should attempt
to obtain a signed, written statement according to procedures discussed below.

Inspectors  can obtain formal written statements from persons who have  personal, first-hand
knowledge of facts pertinent to a suspected violation or have knowledge of information that a third
party known by name may be able to provide or who have information whose source is not clearly
known.  The principal  objectives  of obtaining a statement are  to record in writing,  clearly  and
concisely, relevant factual information so that it can be used to document an alleged violation. This
statement of facts is signed and dated by the person who can testify to those facts in court, and it
may be admissible as evidence.

Procedures for Obtaining Written Statements	
In taking statements, the following procedures and considerations should be applied.

     •  Determine the need for a statement.  Will it provide useful information?  Is the person
        making the statement qualified to do so by personal knowledge?

     •  Ascertain all the facts and record those which are relevant regardless of the source.

     •  In preparing a statement:

            Use a simple narrative style; avoid stilted language.

            Narrate the facts in the  words of the person making the statement.

        -   Use the first-person singular ("I am manager of....").

            Present the  facts  in   chronological  order  (unless  the  situation  calls for  other
            arrangements).

     •  Positively identify the person (name, address, position).

     •  Show why the person is qualified to make the statement.

     •  Present the pertinent facts.
                                            14-4

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Have the person read the statement and make any necessary corrections before signing.
If necessary, read the statement to the person in the presence of a witness.

-   All mistakes that are corrected must be initialed by the person making the statement.

Ask the person making the statement to write a brief concluding paragraph indicating that
he read and understood the statement.  (This safeguard will counter a later claim that the
person did  not know what he was signing.)

Have the person making the statement sign it.

If he refuses to sign the statement, elicit an acknowledgement that it is true and correct.
Ask for a statement in his own handwriting ("I have read this statement and it is true, but
I am not signing it because....").  Failing that, declare at the bottom of the statement that
the facts were recorded as revealed and that  the person read the statement and avowed it
to be true.  Attempt to have any witness to the statement sign the statement with his name
and address.

Provide a copy of the statement to the signer if requested.
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               14B STEPS IN PLANNING AND CONDUCTING INTERVIEWS
While each interview will be different because of the dynamics between the individuals involved
and the topics to be covered, there are several basic steps to an  interview.

     •   Planning.  In this step, topics to be covered and information needed from the interviews
         is decided, individuals to be interviewed identified, and time and places for the interviews
         scheduled.

     •   Conducting. This step includes introductions, discussion of the interviewee's position and
         responsibilities, more detailed questioning  on specific  points, and summarizing to assure
         accuracy.

     •   Documenting.  This step, which happens in  part concurrently with the conducting  step,
         includes notetaking, and when appropriate, obtaining a written statement.
Planning the Interview
Outline the "Unknowns"
The inspection plan sets out the objectives of  the inspection.  An outline  of  topics for which
interview information is likely to be needed will help identify individuals who should be interviewed.
An outline of questions or  topic areas should be prepared to assure that all needed information is
solicited.

Identify Interviewees	
In addition to facility managers who can describe company operations and policy, generally, it is
useful to interview directly the persons who are carrying out the various regulatory responsibilities
(e.g.,  recordkeeping, operation, and maintenance) to determine what facility practices are. Others
may also be interviewed to flesh out the details of a suspected violation. In most cases, it is desirable
to interview every person thought to have relevant information. Often, at least a preliminary list of
individuals who should be interviewed can be developed during the opening conference with facility
management.

Scheduling and Logistics	
To  the extent possible,  without subverting the purpose of the interview or the inspection, try to
schedule the interview  at a time  that is  convenient for the interviewee.  Generally, it  is most
comfortable for the interview to take place in the interviewee's own work area (e.g.,  in the plant
area rather than in a conference room).  A schedule for interviewing various facility personnel can
often be worked out during the opening conference.
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Set Objectives for the Interview
Before each interview, identify the specific reason that the individual is to be interviewed, that is,
the individual's relationship to the information being sought and what he  or she is likely to know.
Jotting down key questions in advance can help assure that the objectives of the interview are met.
Conducting the Interview
Initial Contact
The first contact between the inspector and interviewee sets the tone.  While each inspector will
develop his or her own style for establishing rapport, it  usually is helpful  to begin by explaining
the purpose of the inspection and interview.  After initial exchanges, the interview shifts to  more
specific questions.

Overview of Interviewee's Job	
Begin by asking the employee to explain his or her responsibility as it relates to the topics being
reviewed in the inspection.  These introductory questions are useful even in a very short interview
because it helps put the interviewee at ease and may trigger questions that would otherwise not have
been asked.

Gather Detailed Information	
At this stage, follow up with probes designed to answer the compliance questions raised in the
inspection plan. Questions should be specific and concrete to elicit the most useful answers.  (See
discussion on Questioning Techniques which follows.)

Summarize the Information	
After each phase of the interview, recheck to see that all the "unknowns" on the pre-interview list
have been satisfactorily explored, and that all clues of additional information have been explored.
Consider whether there is any conflicting information that deserves a request to be shown what the
interviewee means. Next, mentally rearrange the information obtained so that the details follow one
another in  a logical continuity.  Then summarize the interview by stating all important details in
proper sequence. Stop after each statement of segment or the summary and ask the interviewee to
verify the correctness  of your interpretation.  If the  interviewee indicates any disagreement, the
discrepancy should be  corrected  before proceeding.
Documenting the Interview	

As discussed in detail in the previous section, the interview should be fully documented. This is
normally done by taking careful notes; in some cases, inspectors may seek to obtain formal, written,
and signed statements.  The interview may also be tape recorded.
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                            14C QUESTIONING TECHNIQUES
Questions are the principal tools of interviewing. The quantity and quality of information obtained
from interviewees will usually be proportional to the inspector's skill in formulating and  asking
questions.

Some of the fundamental characteristics of good question construction are:

     •   Make questions short and confined to one topic.
     •   Make questions clear and easily understood.
     •   Use neutral words.
Types of Questions
The Seven "Ws"
When complete answers to the seven questions below are obtained, the issue being explored is usually
resolved satisfactorily.  These questions are basic to all interviews.

     •  What?  (What happened?)
     •  When?  (When did it happen?)
     •  Where? (Where did it happen?)
     •  Why?  (Why did it happen?)
     •  How?  (How did it happen?)
     •  Who?  (Who was involved?)
     •  Which? (Which one reviewed the records?)

The questions "Why?" and "Why not?" are the most powerful and are of great value in interviews.

Precise Questions	

The precise question is one that calls for a specific or an exact answer. It limits the requested answer
to definite items of information. Precise questions help keep the discussion and pattern of thinking
moving toward a particular goal. Usually they will extract the desired information quickly  and with
minimum effort.

The following questions are increasingly precise in ascending order:

     •  What did you do?
     •  What did you do when you were growing up?
     •  What did you do last year?
     •  What did you do yesterday afternoon?
     •  What did you do at about 3:15 yesterday afternoon?
     •  What did you do about getting home when you missed the 3:15 bus yesterday?
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Extended Answer Questions
Questions should generally be framed to require a narrative answer.  Soliciting "yes" or "no" answers
usually restricts the information that the subject may be inclined to give and usually is inadequate
to completely answer the inquiry.  Questions requiring a "yes" or "no" answer frequently are leading
or suggestive.  They may be acceptable when summarizing or verifying information, but should not
be used when seeking new information.

Leading Questions	
Leading or suggestive questions are those which suggest the desired answer, assume something to
be fact which has not been established as a fact, or embody a fact and require a simple negative or
affirmative answer.  Leading or suggestion questions tend to influence the answers given by the
interviewee and should be avoided while asking for original information and monitoring inspection.
Leading questions can be useful in getting  a particular answer or in refreshing an individual's
memory; they are frequently used in cross-examination to test or break down previous statements.

Examples of leading questions in order of their suggestiveness:

     •  Did you see a	?
     •   Didn't you see a
        Didn't you see the
        Wasn't there a	
Questions to Avoid
        Double or Triple Negative Questions. Questions or statements involving double or triple
        negatives are confusing and often suggest an answer opposite to the correct one.  They
        should never be used. Examples: Didn't he have no dinner? Couldn't you see him neither?

        Complex Questions.  Complex questions and statements are those that are too complicated
        to be easily understood, cover more than one  subject or topic, require more than one
        answer, or require a  complicated answer.  Example: Where did you get the truck and how
        did you load the drums in it?
Question Sequencing	

An issue is an occurrence, situation, or subject in an inspection that needs to be explained  or
resolved.  Issues are generally resolved by sequences of questions. As a rule, a separate sequence
is required to resolve each issue. The sequence of questions should push towards the resolution of
the issue.

General to Specific	
The most efficient means of resolving an issue is to have the questions cover it by progressing from
the GENERAL to the SPECIFIC.  Seek general information on  the setting  of  an event  before
exploring details. Determine  what was done before exploring how it was done.
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Reaching Backward
Questions will progress more logically with less risk of omissions if transition is used to connect
thought.   To do this, start with known  information  and work toward  areas  of undisclosed
information.  An efficient method of achieving this sequence is to mentally reach backward over
the known information and frame the next question as the logical continuation of the facts previously
related.

The  following illustration portrays use of the "known to unknown" sequence orientation  before
proceeding to the next question.   Statements that are enclosed in parentheses are the unspoken
thoughts  of the interviewer as he prepares to frame each new question:

     Q:  (You said earlier you sent to Mudville.) Now what means of transportation did you use?
     A:  A car.
     Q:  (If you sent in a car?) Who drove?
     A:  I did.
     Q:  (You drove a car to Mudville.) Was anyone with you?
     A:  Two guys went with me.
     Q:  (You drove a car with two passengers.) What were their names? Etc.

Estimates of  Quantities	
Interviewees rarely give the right answer the first time asked for the number or quantity of anything.
To  determine  more specifically time or quantities of space and  material, the following types  of
question sequences may be of value.

     •  Change of Reference Point.  When  descriptions of quantities are complicated or hard to
        understand, they frequently can be simplified by changing the reference point. Examples:

        An interviewee  may describe the location of an illegal discharge pipe as four miles east,
        one  and one-half miles south, and  two miles  southeast  of town.   It is difficult  to
        comprehend exactly where this  location is.  If guided,  the interviewee may be able  to
        simplify by advising that it is one-half mile downstream from the Long Lake Town Hall,
        on the river.

        It does not mean much to mention a large quantity of hazardous waste. If the interviewee
        will convert the amount to 60 barrels or a truckload, it gives a clearer picture of the
        quantity.
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        Comparison.  When descriptions of quantities are vague or indefinite, they can often be
        made more specific by comparing them with similar items of known quantity.  Examples:

            Was he taller than I am?
            Which one was the largest?
            What share of the pizza did  you get?

        In some cases where quantities  are persistently given in generalities, it is productive to
        bracket the probable amount by suggesting quantities and by enlarging or sub-dividing
        the suggested quantity to  get the interviewee to more specifically agree on an amount.
        Example:

        Q:  How far away was Smith when you first saw him?
        A:  He was a long ways down the  road.
        Q:  About how far would you say?
        A:  I don't know -- quite a ways.
        Q:  Do you know how long a mile is?
        A:  I'm a pretty good judge of distance.
        Q:  How far would you say it is from here to City Hall?
        A:  About two miles.
        Q:  That is a good estimate. Now, would you say Smith was more or less than a mile away
            when you saw him?
        A:  Much less.
        Q:  Was he more or less than a half mile away?
        A:  Less.
        Q:  Was it more or less than a quarter mile?
        A:  More, I think.
        Q:  Would you say it was closer  to a quarter mile or more nearly a  half mile?
        A:  It was closer to a quarter mile.
        Q:  Then would it be correct to say the distance was a little more than a quarter of a mile?
        A:  That would be  about right.
Applying Interviewing Techniques
Free Narrative
Free narrative is  an orderly continuous account of an event or  incident given with or without
prompting.  It is used to get a quick resume of what a person knows or  is willing to tell about a
matter.  Usually it can be initiated by requesting the individual to tell what he knows about the
matter.

Frequently, the interviewee must be kept from digressing, but use a minimum of interruption and
do not be too hasty in stopping him from wandering in  the narration.  He  will sometimes give
valuable  clues while  taking about  things that are only partially related to  the matter  under
consideration. Be careful not to erroneously interpret deviations from the anticipated narrative as
wandering.
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Systematic Questioning
Systematic questioning (termed "direct examination" in legal proceedings) is designed to bring out
a connected account  of  an event or an incident.  In an interview,  its purpose is  to elicit new
information or to fill in details omitted during free narrative. Following are tips for eliciting more
details in the interview.

     •  Begin by asking questions that are not likely to cause the interviewee to feel threatened.

     •  Ask the: questions in a manner that will develop the facts in the order of their occurrence
        or in some other systematic order.

     •  Ask only one question at a time and frame the questions so that only one answer is required
        by each question.

     •  Give the interviewee ample time to respond. Do not rush him.

     •  Try to  help him remember but do not suggest answers, and be careful not to imply any
        particular answer by facial expressions, gestures, methods of asking questions, or types of
        questions asked.

     •  Repeat or rephrase questions again and again if needed to get desired facts.

     •  If answers are not perfectly clear, have the interviewee explain  them again.

     •  Give the interviewee time to qualify  his answers.

     •  Separate facts from inferences or opinions.

     •  Recognize conflicting  information and learn when to say "show me."

     •  Get all  of the facts. Almost everyone  can provide more information that he initially recalls
        or admits knowing.

     •  After the interviewee has given a narrative account, ask questions.  Answers to little things
        will frequently  contain clues to previously unreported information of interest.

     •  After each segment of the  interview, ask the interviewee  to summarize his information
        and then follow up by a resummarization and have the interviewee verify the correctness
        of the statements.

Cross-Examination	
Cross-examination is exploratory questions designed to test the reliability of or to break down the
previous statements of interviewees.  It is generally not used by inspectors in routine inspections;
cross-examination is  mostly associated with criminal investigations.  It is used to test previous
statements for correctness, resolve conflicting information, determine completeness, fill in evaded
details, evaluate the judgment of interviewees, and undermine the confidence of those who lie.
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               14D  CREATING A PRODUCTIVE INTERVIEW ATMOSPHERE
The most productive interviews are those in which the interviewee feels comfortable and respected.
The  following suggestions were adapted  from "Environmental Auditing  Skills  and Techniques
Workbook" prepared by the Edison Electric Institute.
Attitude and Approach	

If the interviewer comes across  as  professional, courteous,  genuine, and non-threatening,  the
interviewee is  more likely to provide candid information.

     •  Be courteous.  The  interviewee is more likely to give a positive  response if he feels
        respected.  Acceptance of the interviewee's statements in a matter-of-fact way can reduce
        threat.  The inspector's choice of words can also influence the tone of the interview. For
        example, "You seem very determined," is a less threatening comment than "You are very
        stubborn."

     •  Use an appropriate voice tone and inflection.   Each  interview should be conducted in a
        tone of voice that will be perceived as soft, friendly,  and gentle.

     •  Do not Jump to conclusions. An interview can quickly turn sour if the inspector indicates
        that he or she has drawn a negative  (or positive)  conclusion.   Conclusions  regarding
        compliance status are not likely to rest solely on interview statements; further, it is Agency
        policy not to indicate inspection conclusions on-site.  Also creating a poor atmosphere is
        making a quick notation  in the field logbook accompanied by a statement such  as "Thank
        you, that's all I need." A better approach is to say, "If I understand you correctly, you are
        saying you do have a plan, but it has not been approved by a professional engineer. Is that
        correct?"
The Interview Setting	

A poor interview  setting  can  detract substantially from an effective interview.  The following
suggestions can aid in setting a comfortable atmosphere for the interview.

     •  Go to the interviewee's work area. People are most comfortable in their own work place.
        Except for the rare situation where it is completely impractical, conduct the interview in
        the interviewee's own work area.

     •  Make sure the interviewee  feels  that there is sufficient  privacy.  Only the interviewee
        knows whether he  or she feels constrained by other  employees who  may be  nearby or
        within earshot. Give  the interviewee a chance to opt for  some place more private.

     •  Make sure both people are "on equal  ground."  Both the inspector and interviewee should
        be on equal ground, that is, seated or standing together in a comparable way.
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        Try to keep it "one-on-one." Whenever possible, try to avoid having two or three inspectors
        "gang up" on an individual.  If more than one inspector is present, only one should ask the
        questions; the other(s) should take notes.

        Minimize distractions. Noise and interruptions are the most common distractions. If there
        is a high level of noise, ask if it would be all right to find a quieter place.  If there are
        constant telephone calls, explain in a polite and respectful way that uninterrupted time is
        needed and suggest that a secretary take calls.
Non-Verbal Communication	

Much of the information exchanged during an interview is done non-verbally.  Communication is
a composite of meanings, expressed through gestures, facial expressions, voice inflection, and posture
as well as through speech. Following are a few suggestions regarding non-verbal communication that
can aid in interviews.

     •  Shake hands. Start each discussion by shaking hands with the interviewee, to show respect
        and make him  or her feel more comfortable.

     •  Maintain eve contact.  Eye contact often connotes interest  in, and attention to, what the
        interviewee is  saying.  It may also aid the inspector to distinguish body  language that
        presents a different message than what is being spoken.

     •  Keep the right distance. Sit at a comfortable distance from the interviewee.  Generally,
        a distance of three to five feet is appropriate.

     •  Non-verbal statements.  Recall that  an interviewee's gestures and responses or  lack or
        response to what someone  else says can be  statements or adopted statements  by  the
        interviewee. Watch for and note these.
Common Shortcomings in Interview Skills	

The shortcomings described below are common even among experienced interviewers.  They can
interfere with and reduce the effectiveness of the interview process.

     •   Asking Leading Questions.  Inspectors often ask questions that unintentionally "lead" the
         interviewee toward a desired answer.  The form might be something like: "You do clean
         the filter after each operation, don't you?" or "You would inform the spill coordinator if
         a spill were to occur?"

         The basic task of the inspector is to gather information, and this is usually done by phrasing
         questions in a manner that produces the most information. The "Seven W" words elicit these
         best. Avoid questions that  suggest the desired answer, and avoid questions that can be
         answered by a simple "yes" or "no."
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Telegraphing.  Inspectors  sometimes unintentially "telegraph"  their evaluation of the
interviewee's response -- favorable or unfavorable -- through gestures, facial expressions,
or speech.  Examples of verbal telegraphing are: "You must be kidding," "Is that all you
do," and "Doesn't anyone important ever look at these records?". Frowns, scowls, and other
non-verbal signals can equally telegraph signs, but are harder to  control.

Fear of  Silence.   When encountering a  period of  silence during  an  interview, some
interviewers tend to rephrase the pending question, or put forth a new question, while the
interviewee is attempting to formulate his or her  reply to the first question.  Give the
interviewer adequate time to respond. Silence is rarely as long as it seems.
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15 - Observations/
   Illustrations

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                                       CHAPTER 15

                          OBSERVATIONS AND ILLUSTRATIONS
Any sense perceptions an inspector has while carrying out an inspection may be useful. They include
anything the inspector sees,  smells,  hears, or touches.  They may be captured for later use by
illustrations (such  as photographs, maps, and sketches) or by notes in a logbook.  This chapter
discusses the most  common and effective means of capturing the inspector's observations for later
use in the inspection report or in a courtroom.

Other, more specialized, types of observations are covered separately in other sections of this text,
concerning interviews, physical samples, readings from monitoring instruments, and reviews of
records.

Observations and illustrations are important for  several reasons.  They enhance the admissibility
and  credibility of  other evidence. They provide a context for other evidence, such as physical
samples.  They help a judge or jury form a mental picture of the  inspected facility or site,  so the
various pieces of evidence can be  better understood.  They may also be evidence in themselves.

Several kinds of observations can  be used to corroborate a single piece of the story.  For instance,
physical samples taken at a given site may be supported by logbook  notes describing the site, by a
sketch or map notation, and by a photograph of the sampling site.

Observations can be fruitful even  in purely procedural parts of the inspection.  For instance, if the
inspector is denied entry, notes should be entered in the logbook describing the  appearance  of the
facility and the conduct of company officials, and  a photograph of the facility entrance may be
taken.  The notes and photograph will substantiate that the inspector was actually at the site. They
paint a picture in a judge's mind of the events as they occurred.

Once the observations are captured by the means described below, it is important to preserve their
value as evidence.  In any enforcement case, EPA must  be  able to show  that  a given piece of
evidence was  gathered  during a  particular  inspection.   For this  reason, documentation of the
illustrations is important. Chain of custody procedures are  sometimes used for photographs,  so the
court can be assured  that the  pictures have not been altered or touched up.
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                              ISA FIELD NOTES/LOGBOOK
The inspector's field notes document what the inspector saw, heard, smelled, or touched.  Field
notes  serve as  evidence to corroborate  other  forms of evidence, such as physical samples or
photographs. They serve as the foundation  for preparing inspection reports  and refreshing the
inspector's memory about the inspection prior to giving testimony. They may be subject to discovery
and disclosed to the opposing side and may be entered as evidence in a trial.

Since  they may be disclosed to the opposing side in an enforcement case, field notes  must contain
just the facts.  Even if the inspector believes the inspected facility is clearly in violation, that
conclusion must be omitted.  Instead, all the observed conditions that led the inspector  to that belief
should be meticulously recorded in the notes.

Field  notes may be taken either in written form in a field logbook or in spoken form on an audio
recording device, such as a portable tape recorder or dictating machine.  (Policies on use of audio
recordings may differ among EPA offices. If  in doubt, inspectors should consult their supervisors.)
The  discussion in this  section  focuses  on  the  field   logbook  as the core  of all  inspection
documentation.
Inspector's Field Logbook	

The inspector's field logbook is the core of all inspection documentation.  It should contain accurate
and inclusive  documentation of all inspection activities.   The logbook  is used as the basis for
preparing the  inspection report and to refresh the inspector's memory regarding  the specifics of
sample collection and other inspection procedures should  the inspector  be called  upon to testify.
Logbooks are the property of EPA and become a part of the official inspection file.

Language in the logbook should be objective, factual, and free of personal feelings and conclusions
of law.   The logbooks can be provided to the opposing side during the discovery process of an
enforcement case and can be entered as evidence in court.

The Logbook	
Inspectors should use only bound field logbooks for maintaining field records, preferably with
consecutively numbered pages.  Standard field logbooks can be obtained from the General Services
Administration (Federal supply numbers 7530-00-274-5494 and 7530-00-222-3525). Other bound
logbooks such  as bound surveyors logbooks  are acceptable as long as pages cannot be removed
without tearing them out.

     •  Sampling Procedures.  Inspectors should identify  all sample collection equipment, field
        analytic equipment, and equipment utilized to make physical measurements in the logbook.
        All calculations, results, and calibration data for  field sampling, analytic, and physical
        measurement equipment should also be entered. All sampling and field analysis equipment
        must be traceable to the specific piece of equipment used and the inspector who  did the
        work.  The rationale  for taking  the particular sample, including sample selection and
        representativeness considerations, should also be noted.


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        Documents. All documents taken or prepared by the inspector should be noted and related
        to specific inspection activities. (For example, photographs taken at a sampling site should
        be listed, described, and related to the specific sample number.)

        Unusual Conditions and Problems. Unusual conditions and problems should be noted and
        described in detail.

        Interview Notes.  Names and titles of facility personnel and the activities they perform
        should be included along with notes from the statements they made.

        General  Information. Names and titles of facility officials, size of facility, description of
        operations, number of employees, and other general information, such as how the facility
        keeps its records, may be useful in case development as  well as for future inspections.

        Other Incidents. Detailed notes should also be kept about any other incidents that occurred
        during the inspection, such as an electrical power failure or tampering with government
        vehicles  or equipment.

        Administrative Data.  Entries regarding travel and fiscal data related to the inspection
        should be entered in accordance with Regional and/or program policy.
Basic Procedures
Each member of an inspection team should be issued his/her own field logbook.   Each logbook
should be dedicated to a single inspection; this assures that information from an inspection conducted
at a different facility (or different  time at even the same  facility) does not become subject  to
discovery.

Use waterproof ink in the logbook.

Inspectors sign their logbooks in ink  upon receipt and use them to record all pertinent information
until the inspection is complete.

All entries to the logbook should be  made in ink and should be legible, with the date and time  of
each logbook entry recorded.  Anyone else (other than the person to whom the logbook was assigned
to) who makes an entry to the logbook should sign and date it.

Incorrect entries should be lined out  and initialed by the inspector.

At the end of each day's activity, and at the end of an entry on a particular event, the inspector
should draw a diagonal line at the conclusion of the entry and initial it. This will facilitate review
of notes by the inspector and case development staff.
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Entries in Field Logbooks
Since an inspector may be called to testify in an enforcement proceeding long after the inspection
was  conducted,  it is imperative that each inspector keep detailed notes on every aspect of the
inspection, including interviews, visual observations, records assessments, and sample collection and
handling.

Entries in  the logbook  should correlate readily with particular samples, photographs, copies of
records, or other documentation collected by the inspectors, such as by an assigned identification
number. This will allow tracing back to the exact time, place, conditions, and procedures employed
for gathering each piece of evidence.

Types of information that should be entered in the field logbook include:

     •   Identification Numbers.  Each piece of evidence collected (document, physical sample,
         photograph) should be keyed  to an entry in the field logbook.

     •   Observations.  All conditions, practices, and other observations that will be useful in
         preparing the inspection report or will contribute to valid evidence, should be recorded.

     •   General Procedures. Inspectors should list all procedures followed involving entry, records
         inspection, and document preparation.  Such information will help avoid damage to case
         proceedings on procedural grounds.
Confidential Business Information fnon-TSCAt	

Generally, inspectors should not collect confidential information unless it is important to the purposes
of the inspection.

When an inspector expects to obtain or observe confidential information, he or she should maintain
a separate logbook for notes on it.

If confidential information  is entered into a logbook, the entire logbook must be  treated as
confidential.  The cover and  all pages containing confidential information should  be marked
"Confidentiality Claim."

Like any other confidential business information in an inspection file, access to the field logbook
with confidential data is limited to those with appropriate authorization.

The procedures which follow for TSCA-CBI may be adapted  by  inspectors when  dealing  with
confidential data  under  other statutes.
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TSCA Confidential Business Information
TSCA  provides safeguards for information claimed as TSCA  confidential  business information
(TSCA-CBI) during an inspection.

When conducting an inspection under TSCA authority, inspectors  should observe the  following
procedures to minimize problems that might arise regarding CBI entries into  the field logbook.

Minimizing CBI Entries into Logbook	
During discussions with facility officials, the inspector should avoid  topics involving  potentially
confidential information not needed for completion of the inspection.

If information claimed or suspected to be claimed confidential is obtained (either orally or copied
from facility records), such information should be referenced in a non-confidential statement in
the field notebook  and placed on separate  sheets of paper that are  then treated as documents.
Photocopied documents should be referenced in the same manner.

     •  The non-confidential statement should state generally what information has been collected
        (i.e., "information about the firm's process for making chemical x").

     •  The separate sheets should be headed by the reference statement in the field notebook and
        identified by the name of the facility, date of inspection, and inspector's signature.  The
        sheets should contain data only; no observations of extraneous notes should appear since the
        sheets will be reviewed by facility officials.

     •  The sheets are described as documents on the Receipt for Samples and Documents  which
        is given to facility officials at the closing conference.

     •  The sheets can be  reviewed  by the facility officials  during  the  closing conference and
        declared confidential, as appropriate.

It is recognized that  the inspector will not  always be able to make  a prior determination about
confidential business information before making entries into the field notebook, and that potentially
confidential data may be included in the regular field notes.  The intent here is to reduce,  to  the
extent possible, such entries so that later difficulties regarding the field notes can be avoided.  The
procedures below describe steps  to take if TSCA-CBI is entered into the field logbook.

Removing TSCA-CBI from Field Logbooks	
In the event that confidential business information does appear in the logbook, those pages should
be photocopied and  the photocopied pages logged in with the Document Control Officer.   The
confidential business information in the logbook should then be obliterated in such a manner as to
make it unreadable.
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To ensure that the photocopies of the obliterated pages can be used in an enforcement proceeding,
they must be carefully identified in the following manner:

     •  The inspector and a witness should initial and date a spot on the page that will not need
        to be obliterated.

     •  A photocopy of the logbook page should be made.  This photocopy should be logged in
        by the Document Control Officer along with a statement by the inspector which reads:

        "The undersigned certifies that this is a true copy of a page from my field notebook from
        the inspection of (facility, address) on (date).  The original notebook pages were obliterated
        by me to protect confidential  business information."

                                                     Inspector's Signature               Date
                                                     Witness' Signature                  Date

     •  Confidential  business  information  on  the  logbook pages  should be  obliterated;  the
        identifying initials  and date should remain.
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NOTES
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                                   15B PHOTOGRAPHS
Seeing is believing! Since a judge and jury cannot be present on the inspection, the best way for
them to see, and believe, what transpired is through photographs.

The  enforcement  of  environmental law is dependent  upon  the effectiveness  of inspectors  as
information-gatherers.  Increasingly, photography has played an important role in that process.
Photographs provide inspectors not only with visual documentation contributing  to  more accurate
inspection reports, but also with evidence for enforcement proceedings and objective descriptions
of conditions found at a facility.

Photographs are some of the best physical evidence,  and the easiest to authenticate and therefore
admit into evidence in court.  The test is simply that the inspector  has  to say that any given
photograph does "fairly and  accurately represent" what the inspector saw on the date in question at
the site in question.

When enlarged and  placed  in view  in the courtroom,  photographs can be the  best  means  of
duplicating what occurred months or years earlier during an inspection.  Clear photos of relevant
subjects, taken in proper light and at proper lens settings, provide an objective record of conditions
at the time of the inspection. In this respect,  photographs can be the most accurate  demonstration
of the inspector's observations.

Photographs can also be helpful to the field team during future inspections, informal meetings, and
hearings.

For all its advantages, however, photography  requires skill.  The investment of time and materials
in photography for the collection of evidence can be justified only by the quality and usefulness
of the photographs. This section will assist the inspector in achieving the best photographic results.
Photographs as Evidence
Fair and Accurate Representation
Drawings, diagrams, maps, and plans have long been used as evidence of the buildings, lands, or
machines they represent when the things themselves cannot conveniently be brought into court.
Since the development of photography, photographs have generally been received  as evidence on
the same basis as maps and diagrams. It is essential to admissibility  that the subjects which the
photographs portray be relevant  and material to the case.  However, there must also be testimony
that the photograph is a fair and accurate representation of the object or scene  which it portrays.
If the photograph is not a fair and accurate representation of the object or scene, even though the
object or scene may be relevant and material, the  photograph may not be admitted  as evidence.
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Prejudicial Photographs
The question of admissibility is determined by the judge according to rules of exclusion applicable
to other types or kinds of evidence. However, because photographs are traditionally susceptible to
subjective misinterpretations, the courts have exercised a broader discretion in disallowing them as
evidence.

Even though a photograph may be a fair and accurate representation of a  relevant and material
matter, the judge may reject it if in his or her opinion it would be misleading or would not aid the
jury in a better understanding of the facts.  Such a photograph, otherwise admissible, will be rejected
if the judge believes that it may create an  undue prejudice in the minds of the jury. For  example,
color pictures of human death or injury that show quantities  of blood  and gore can create  an
emotional reaction in the viewer  that is in excess of that warranted by the probative  value of the
evidence. Photographs may be excluded for that reason.

Authentication	
The authentication of a photograph prior to its being received in evidence may be accomplished by
any witness whose familiarity with the subject matter of the photograph allows him or her to testify
that it is a fair and accurate representation of the object or scene it portrays.  The testimony of the
person who took the picture is not necessary. If the photographer is called as a witness, it  is not
enough to simply claim to have taken the photograph.  The photographer must also be able to say
that the picture is a fair and accurate representation of the object or scene.

It  is the fairness and accuracy of the representation that is important.  Unless the processes and
techniques of picture-taking, developing, and printing are  themselves relevant to the question of
accuracy,  the judge may take judicial notice of such processes and techniques. This was not true
years ago when photographs were first offered as evidence, and judges often required the testimony
of  the photographer  as  an expert witness  to authenticate  all photographs.  Today the general
principles  of photography  are well known as  applications of the  natural laws,  and  they  are
appropriately the subject of judicial notice.  Most  courts now accept that the central issue  is the
fairness and accuracy of the representation.
The Right to Photograph	

The right  to inspect gives  rise to  the  inherent right to document the inspection  by means of
photographs. Inspectors should take photographs of anything needed to complete the objectives of
the inspection.  (Inspectors are cautioned not to  take pictures of the  inspection team  at work,
however.   All such photographs might  be subject to discovery should an enforcement action be
pursued, and could hurt the government's case if they show even a slight error.)

Attempts to Impose Conditions	  	
Photography often draws a negative reaction from  facility officials, who may seek to prevent or
limit the use of cameras on facility property.  EPA  considers such efforts to restrict the taking of
photographs as an attempt to impose unacceptable conditions on consent to enter.  If facility officials
do not withdraw these attempts voluntarily and without coercion, the inspector should consider it
a denial of consent and proceed according to pertinent guidance in the section on Consensual Entry,
Chapter 7B.


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Before concluding that the proposed restrictions on photography constitute a denial of consent, the
inspector may tactfully attempt to resolve any concerns or objections facility officials raise about the
use of cameras.  It may be prudent to go ahead with the inspection without taking  photographs,
raising the issue with facility officials again only if a particular photograph is essential to completing
the objectives of  the  inspection.   Inspectors should  be aware of  the  sensitivities involved  in
photographs, and avoid taking unnecessary photographs of facility operations. Sometimes in water
cases  it has been effective to explain to  the officials that  waste streams, receiving waters, and
wastewater treatment facilities are public information, not trade secrets. Moreover, photographs may
be taken without consent from areas generally open to the public, both outside and inside a facility.

Confidentiality	
Under some environmental statutes  (e.g., TSCA), photographs  may be subject to a claim  of
confidentiality.  To avoid difficulties arising from TSCA confidentiality claims, it is recommended
that all unnecessary background be shielded when photographs are taken, or  the subject may  be
moved to another area. In TSCA cases it is recommended that instant cameras be  used, because the
photograph can be shown to facility officials immediately.  If an  instant camera  is not used and a
confidentiality claim is made,  the film must be processed by a contractor  authorized for access to
TSCA confidential business information.

Even  where TSCA confidentiality  is not involved, inspectors may find some of these practices
helpful in resolving attempts by facility managers to restrict photography. Shielding the background,
moving the subject, and use of an instant camera are methods that may allay the managers' concern
about trade secrets.
Tips on Taking Photographs	

When taking photographs,  the  inspector should imagine  how the photographs  will look  in  a
courtroom.  Photographs should always  be  taken with a view toward how they can be  used as
evidence.  If the subject is a barrel, make sure the barrel fills up the view finder.  If the subject is
a building and grounds, then back off to allow these to fit into the viewfinder.

The  most  useful photographs are those  that convince the viewer he or she  is actually seeing the
thing the inspector saw.  A good photograph requires no explanation except the time and place it was
taken.  The viewer will gain confidence in  the photograph  if it is sharply in focus and properly
exposed. To achieve such photographs,  the inspector should learn to use camera equipment well.

Before going on an inspection, the  inspector should be sure all equipment is in good working order
and  that supplies  of  film  and  batteries are adequate.  Film  is adversely  affected  by extreme
temperatures, and care should be taken to avoid unsuitable storage conditions, such as an overheated
vehicle. A small cooler can be used to store  film on long trips. Fresh batteries are important since
the newer automatic cameras will not work without  batteries.

All photographs can be evaluated in terms  of three qualities: focus, exposure, and  composition.
Each will be discussed below.
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Focus	

Sharp focus is mandatory in any photograph to be used as visual documentation of investigative
findings.  Camera wobble or shake can blur photographs.  Therefore, carefully release  the shutter,
don't suddenly jab it.  For shutter speeds below 1/100 second, try to rest the camera against a car
or building. The subject matter of investigative photography often involves more than one relevant
item in the scene, and it is necessary for all items of importance  to be clearly represented in the
photograph. The inspector must therefore strive not only for sharp focus, but also for the maximum
depth of field.

Depth  of field is the zone of  acceptable  sharpness  of  image (e.g. from 10-12 feet  from the
photographer) in  the field of view.  It varies as a function with focus  distance and lens aperture
selected. The depth of field increases as lens aperture decreases (e.g., from f5.6 to f 11).  The depth
of field relationship to focus distance and aperture selected is shown for any lens by the depth of
field scale on the lens barrel.

To minimize problems with a narrow depth of field it may be useful to use a higher ASA film (e.g.,
400) so that a smaller lens aperture (f8-l 1) can be used.

Exposure	
The most accurate way to determine exposure is through use of a light meter. Most 35mm cameras
have built-in light meters.  Without a light meter, the photographer  must estimate the correct
exposure from the sunlight available and film speed used. The film boxes generally suggest camera
settings for various lighting conditions.  It is always a good  idea in all cases  to  take a series of
photographs, using different settings each time (bracketing exposures).

Good exposure can usually be made on the high-speed films currently available. However, it may
be necessary in certain situations to provide additional light by means of a flash. Flashbulbs or
electronic flashes are used for this purpose. Now electronic  cameras and flashes  make "fill-in" flash
relatively easy. The exposure and shutter speed for taking photographs with flash lighting (whether
at night or "fill-in" flash during the day) is determined by  referring  to the tables in the data sheet
accompanying the film, or on the flashbulb box, or in the instructions on the electronic flash unit.
Camera exposure will also  be influenced by extremes of white, black and by how much the main
subject fills the viewfinder. If you want proper exposure for a subject, it should fill the viewfinder
with little back light or other bright or dark objects to fool  the light meter.  Open the lens  aperture
1 or 25 steps (f8 to 5.6) for white objects and close the lens (5.6 to 8) for black objects.

Composition	
The effectiveness  of any photograph as evidence is strengthened by careful arrangement of the
elements in it.  Here again the inspector should imagine how the picture will  look on a final print.
The composition is effective if the picture tells its story with a minimum of explanation.
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Composition is largely a matter of personal judgment, but there are several guidelines that should
be followed:

     •  Center of Interest - There should be only one major subject or center of interest in a scene.
        When taking the photograph, the inspector should eliminate or subordinate all secondary
        elements and focus on the main element.  Be sure the subject actually fills the viewfinder.

     •  Simple Background - The background should be kept simple, so as not to distract attention
        from the main subject.

     •  Scale -  If the subject is  unknown or unfamiliar to viewers, the inspector should include
        some familiar object to indicate comparative size (e.g., a person, a car).

     •  Location or context - It  is sometimes useful to photograph a subject from a point where
        the location of the subject  will be clear in relation to other features.

     •  Motion - If action or movement is implied in the photograph, more space should be
        allocated in the direction of the action than away from it.

     •  Tones - If shooting in color, make sure the subject is tonally distinct from the background.
        The same applies to black and white, except imagine how tones will look when reduced to
        gray.
Documenting Photographs	

In order for photographs to be entered as evidence, EPA must be able to authenticate  that they
fairly and accurately represent what the inspector saw at a given facility on a given  date.  (The
inspector need not have taken the photo him- or herself, but must be able to testify that the photo
"fairly and accurately"  represents what he or she saw.)  Documentation of information  about how,
when, and where the photograph was taken will aid in the authentication process.

An effective means for documenting  photographs is keeping notes in chronological order  in the
field  logbook  a.bout  the pictures  that  are taken,   Some  inspectors  keep  a separate photo  log in
addition to notes in the logbook. Notes in the field logbook can be used to help refresh the witness'
memory prior  to testifying in court.

Even if the inspector does not remember what it is  that the picture portrays, so long as he  or she
wrote these notes and can state that they are somehow connected with the picture, that information
alone is enough to say that the picture does fairly and accurately represent what he or she saw  on the
day in question.

When an instant camera is being used, notes should be recorded on  the back of each photograph,
cross-referenced to the field logbook.
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Minimum Documentation
Documentation for each photo oj- group of related photos should include the following information:

     •  The number of each picture;
     •  The date and time;
     •  Name of the facility and specific location on the premises;
     •  Lighting and weather conditions;
     •  A brief description of the scene, if necessary;
     •  The number(s) of related physical samples (if any); and
     •  Anything unusual about the way the photo was taken (e.g., use of special filters or lenses).

The photographer is not required to record the aperture settings and shutter speeds for photographs
taken within the normal automatic exposure range.  However, special lenses, films, filters, or other
image enhancement techniques should be noted in the logbook.

Additional Documentation	
In most situations, being able to reconstruct (through notes or other means) the minimum information
stated above is sufficient documentation for photographs. However, some programs or photographs
for specific evidentiary purposes may need additional documentation. For example, photographs of
emissions for the stationary source air program require the following additional information to be
documented:

     •   Description of film used (i.e., brand and type, expiration date, ASA number, origin, etc.);
     •   Type of camera and  attachments;
     •   Focal length of the lens being used; and
     •   F-stop and shutter speed at which the camera is set.

Consult  program-specific  guidance  for   any  special  requirements  regarding  photograph
documentation.

After the Inspection	
Because photographs can be vital evidence in an enforcement case, inspectors  should document
them routinely as suggested in this chapter, and as near in time to their being taken as discussed in
Chapter 8. Chain of custody procedures are not required, even for criminal cases, unless the camera
is taking photographs automatically without a person present viewing at the same time what is being
taken.  In some cases, this may arise in some forms of aerial photography or clandestine surveillance
activity.  CBI-claimed photographs should be handled like any other CBI information.

Logbook notations and receipts may be used to account for routine film processing. Once developed,
slides or photographic prints should be numbered and  identified  corresponding to the logbook
descriptions.

Instant  photos  (such as Polaroid) should  be  immediately  identified  on  the back  with  the
corresponding photo identification number.  Photographs requiring developing and printing  should
be numbered as soon as possible. One method to ensure that all prints and negatives can be positively
identified is  to  leave prints and  negatives uncut, and photograph the  photographic log  at  the
beginning and end of each roll of film.

To aid in admissibility in court, inspectors should not deface the  front of the picture,  and any
information necessary should be entered on the back or in attached documents.


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Photographic Equipment
A  mind-boggling  array  of cameras, lenses,  filters,  and other equipment is available  to  the
photographer today.  In choosing equipment, the inspector should be guided by his or her current
knowledge of photography. The inspector who has been using the more sophisticated types of
equipment would choose different cameras and lenses than the inspector whose experience is mainly
with the simpler automatic cameras. The inspector should never use a camera that is beyond his or
her skill and technical knowledge.

Cameras	
The two key choices in selecting a camera are:

     •  Automatic vs. Adjustable - The automatic camera contains a built-in exposure meter that
        either automatically adjusts the lens aperture or shutter speed according to the light intensity
        of the scene being photographed.  (Some also set the correct focus automatically.)  The
        adjustable camera must be set by the photographer for varying light conditions and focus
        based on the reading of the light meter, e.g., match-needle systems.

     •  Instant  vs. Conventional - The  instant camera develops the film  and produces a print
        immediately after a photograph  is taken.  This feature is  useful for inspections because
        the photograph can be reviewed on the spot for intended  content,  and facility managers
        can be provided with a duplicate photograph immediately. This feature can allay managers'
        concern that confidential business information may have been photographed.  Notes can be
        taken on the back of the picture while the inspector is still on the scene.  The conventional
        camera  requires  processing of exposed film in a darkroom  or photographic lab.

The  best camera for general use on inspections is the  35mm single-lens reflex  with  automatic
exposure.

Lenses	
Most  35mm cameras have a family of lenses available which can be used interchangeably.  They
can even be changed between one photograph and the next, which gives inspectors the opportunity
to take different versions of the same scene with different-sized images of the subject.

The simple single focal-length lens of 50-55mm size is standard on most 35mm cameras. Because
its perspective most closely matches that of the human eye, lenses in this range are termed "normal
focal  length."  Lenses with focal  lengths of lower  numerical value are termed "wide angle," and
lenses with focal length of higher numerical value are termed "telephoto."

     •   Wide-angle Lens.  The wide-angle lens is suitable for site and area  overviews.  However,
         this lens distorts perspective and distance. Also, because a wide-angle lens takes in a wider
         field of view, the apparent size of everything in the picture will be reduced.  They are good
         to provide locating or context shots if you  cannot back up  very far.
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        Teleohoto Lens.  The telephoto lens offers magnification of image size with a somewhat
        compressed perspective. The magnification increases the potential for loss of sharpness
        due to camera motion.  A good rule for hand-holding a camera-telephoto lens combination
        is never to use a shutter speed slower than the inverse of the focal length of the lens e.g.,
        1/125 second for a 135mm lens.  Use of a tripod and faster films are both beneficial for
        photography with telephoto lenses. When lighting conditions are bright and camera support
        is absolutely firm, telephoto lenses that fill the frame with the image of the subject can be
        used effectively.

        Zoom Lens.  The zoom lens offers a continuous range of focal lengths in one lens.  Some
        zoom lenses run from wide-angle to normal, some from normal focal length to telephoto,
        and some zoom lenses even offer a full range from wide-angle to telephoto.
Film
The film in the camera is the inspector's image-recording tool. The inspector must select the right
type of film for the job, load it properly and expose it properly.

Films differ in speed, which refers to the film's sensitivity to light and thus its ability to  capture
images under different  light intensities.  A high-speed film can  be used effectively in dim light,
while a low-speed film  cannot.

There is a tradeoff between film speed and the film's ability to capture fine detail. The following
principles can be used in selecting the most appropriate film:

     •  Fast Film (ASA/ISO 200 or higher) - for situations where light levels are low or subjects
        are in motion.  Fast film is also effective on overcast days and when subjects are  dark in
        tone or color or if a telephoto lens is necessary. The drawbacks are that the faster the film
        speed, the less  fine detail will be captured in the photograph. However, with advances in
        film technology, films of ASA  1600 can be used with little loss in detail due to grain.

     •  Slow Film (ASA/ISO under 200) - for situations of sufficient  brightness and where  the
        subject is stationary or slow-moving.  Slow film should  be used on sunny days and when
        subjects are average or above-average in brightness  and  when detail rendition must be
        excellent.  A tripod or steady base is essential  where lower light levels  are involved,  or
        when a telephoto lens is used.

A further choice must be made between color or black-and-white film.  Black and white comes in
a range of speeds  although 400 is the most popular.   If color is  selected,  a choice must be made
between films that produce prints and those that produce transparencies (slides).  Kodak color films
can be distinguished by  the ending of the film's brand name -- those ending in "chrome" are slide
films, those ending in "color" are print films.

The best film for general  use on inspections is high-speed color print film.  "Color"  film  is more
tolerant of incorrect exposure.  High-speed films may be essential because photography under
inspection conditions is often done with available light, usually marginal at best.  Prints are favored
because they  can be shown without a projector and screen, multiple copies can be produced from
negatives, and prints can be enlarged and distributed as needed.
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It is advisable to keep in stock no more film than can be used within the recommended usage dates
on the film container.

Exposure to  x-rays, such as from airline security checkpoints (especially cumulative exposures),
can cause loss of image in unprocessed films.  If the film has  already been exposed during an
inspection, hours of work can be wasted.  The damage occurs because x-rays expose film, and the
later processed film will appear foggy, without contrast, or striated. Lead shield bags, available from
photographic suppliers, are recommended when the inspector is  carrying unprocessed film on air
travel. Hand inspection of film can be requested. If this is planned, carry film in resealable see-
through plastic containers.

Filters	
Filters are useful for the enhancement of particular parts of photographs.  Some filters reduce excess
blue color cast, such as the blue of atmospheric haze or polluted air. Others minimize reflections off
glass or water surfaces. Still others are used to help distinguish between objects, especially in black
and white photography.  The use of filters should be noted in the Logbook.
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                               ISC DRAWINGS AND MAPS
As the inspector records observations at a facility, some things prove difficult to describe in words
or photographs, yet they may be essential to the story.  These must be captured in visual notes such
as drawings, maps, charts, and schematic diagrams. Such visual notes can be important evidence in
court, and they are helpful in composing the inspection report.

Drawings and maps can provide graphic clarification of site location relative to the overall facility,
the  parameters of a spill or contamination,  the relative  height  and  size of objects, and other
information which, in combination with samples, photographs, and other documentation, can produce
an accurate, complete evidence package.

Formal maps, prepared by cartographic techniques and based on notes made in  the field, are also
required  for some purposes.

All  the forms of visual notes described here should be referenced in the field logbook at the time
they are made.  A drawing or sketch can  be entered directly into the logbook itself; this integrates
it clearly with other notes in chronological order.
Maps	

A rough map drawn during the inspection can be a valuable piece of evidence.  A judge or jury
will hear many facts during a trial and may have difficulty remembering them. A map of the site
provides a frame of reference onto which they may hang these otherwise forgettable facts.  Even if
it is necessary later to draw up a more presentable map, the original drawing corroborates what the
inspector saw at a facility.

A map also helps the judge or jury form a mental picture of the  facility through the eyes of the
inspector. The layout of a facility can be hard to grasp when a person hears it described in words.
Anyone who has tried to get around in an unfamiliar city knows the difficulty of learning a layout.
A map helps the viewer across this hurdle.

Some types of maps the inspector may make are:

     •   General map of the facility;

     •   Map showing where photos and samples were taken;

     •   Map showing where potentially noncomplying situations were observed;

     •   Map showing the layout of  a particular part of the facility  on  which the inspection focused
         major attention.

Sometimes a prepared map is used in the pre-inspection planning, to select sample sites or plan the
inspection effort.  It may be useful to take a copy of this map along on the inspection and enter notes
on it to show where samples, photos or other observations were taken.  Notes on this map should be
cross-referenced to  notes in the logbook.
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Informal maps  drawn by the  inspector should be simple and free of extraneous  details.  Basic
measurements and compass points should be included to provide a scale for interpretation.  Maps
should be signed and dated.  If drawn separately from the logbook, each map should be numbered,
signed and dated, and cross-referenced in the logbook at the appropriate point in the chronology.

Formal site maps prepared by cartographic techniques are often prepared for hazardous waste site
investigations and some other investigations that may result in enforcement actions.  The inspector
should consult with program managers about the need for such mapping in a particular situation
and about how to secure cartographic services.
Drawings and Diagrams	

Schematic drawings, diagrams, charts, and other visual notes can be used to capture features that
may not be clear in photographs.

Although not as accurate or credible as a photograph, such drawings are a good  backup method
where photography cannot do the job. Sometimes a photograph would contain so much detail that
the crucial features are not clear or would require too much explanation.  In such cases a good,
simple schematic drawing or diagram can be useful.

The drawing or diagram can be drawn in the logbook, or on a separate sheet of paper if necessary
and referenced in the logbook.  The drawing or diagram should contain notations of the approximate
dimensions of the  subject.  The level  of  accuracy  of the drawing should also  be  noted (e.g.,
"estimated" or "measured with steel tape"). All such visual notes should be referenced to show where
the subject was observed in the facility.

Sometimes a facility's own publications may provide helpful illustrations of the layout, conditions,
and  operations.   Brochures, literature,  labels,  and  other printed  matter  may be  collected  as
documentation if the inspector believes they are  relevant.  All printed matter should be identified
with the date, inspector's initials, and origin.
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                                  15D AERIAL IMAGERY
Aerial imagery is unique and distinct from the other forms of observation discussed in this chapter,
but is frequently an invaluable supplement to field inspections. It records a great deal of detail that
can provide a guide for other field measurements as well as historical documentation of conditions
at the time of acquisition.

Aerial imagery is obtained and interpreted using state-of-the-art techniques to the extent justifiable
for  the intended use.  Photographic interpretation is by its nature very subjective at times.  When
an interpretation is questionable, the opinions of several photographic analysts will be solicited.
Environmental interpretation, where natural features are slightly  modified by human influence, is
much more subjective than military interpretation, where definite,  man-made features are sought
out.  Therefore, where environmental interpretations are not clear-cut, they should be used only as
tentative findings to be further verified or modified by subsequent  field investigations.
Use in Court	

Several limitations apply to photographic missions for the specific purpose of collecting evidence
to be  used in litigation:

     •   The military services cannot be used for such purposes;

     •   In most cases, a search warrant should not be needed to perform an overflight. However,
         if there is already a court injunction against EPA, or the case is already in litigation, consult
         the Regional Counsel for a recommendation on  the need for  a search warrant.

The following more general-purpose imagery can also be  used in litigation, subject to the guidance
of the Office of Regional Counsel:

     •   Imagery or overlays prepared from imagery acquired by the  military, or anyone else, for
         other purposes (e.g., for broad-area mapping or  inventorying, routine missions clearly not
         connected with the litigation, etc.).

     •   Archival imagery  antedating the litigation in question.

     •   "Targets of opportunity," such as a  stack putting up dense smoke, an unusual discharge
         from an outfall, etc., which  are photographed while on a mission for another purpose or
         for general surveillance. (This is equivalent to stopping at the side of a road to photograph
         a suspected violation of any  law.)
                                           15-21

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Requesting Services
All requests for aerial imagery  and other remote sensing services are coordinated through the
Regional Remote Sensing Coordinator or equivalent official if there is no designated coordinator.
The  coordinator makes appropriate contacts with  the  Remote  Sensing Branch, Environmental
Monitoring and Support Laboratory, Las Vegas, Nevada; with the Environmental  Photographic
Interpretation Center (EPIC) in Warrenton, Virginia; and with others as necessary. The coordinator
will arrange for direct follow-up contacts between the requestor and the group to provide the service,
if this is desired. All Enviropod activities will be under the administrative direction of the Regional
Remote Sensing Coordinator. However, to the extent practical, efforts will be made to involve the
user of the imagery in the missions for acquiring it.

Interpretation  of photographs and other  imagery generally is the responsibility of the  individual
program, although some limited assistance may be available from the Remote Sensing  Coordinator.

In general, each program requesting remote sensing services will have to pay, from either national
or Regional funds, for  necessary flight  time,  film and processing costs, and  interpretation and
preparation  expenses.   Costs can  often  be minimized  by the Remote Sensing  Coordinator  by
combining missions, locating archival imagery, and by using limited  Office of Research and
Development funds as they are available. The Remote Sensing Coordinator will arrange for cost
estimates as needed.

The  Enviropod will be installed and operated by personnel familiar with the detailed instructions
for installation.  Mission planning should be done using appropriate nomograms supplied by EPIC
or with  the HP-97 Enviropod Program.  All flight lines should be logged on a data  sheet.  After
exposure,  film and log sheets should be promptly shipped to EPIC at Vint Hill Farms in Warrenton,
Virginia, for processing.

All film is processed using the manufacturer's recommendations for temperature, time, and density
of solutions.  At the end of each Enviropod mission approximately eight or ten frames should  be
exposed for trial development for EPIC to determine whether  adjustments  must  be made  in
processing rates or temperatures  to obtain a clear image.  These should be noted on  the log sheet
with notes on lighting and weather conditions.  Enviropod personnel at EPIC should be contacted
before each mission (or  monthly, whichever is less  frequent) to determine current experience and
recommend f-stop settings for various cloud covers and atmospheric conditions.
                                           15-22

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16 - Closing/Security

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                                       CHAPTER 16

                CLOSING CONFERENCE/TRAVEL SECURITY MEASURES
A closing meeting with facility officials, discussed in Chapter 16A, completes the on-site inspection
activities.  At thiis meeting, inspectors provide receipts, resolve remaining issues, and answer facility
officials' questions.  Because of the potential to jeopardize potential enforcement actions, inspectors
must  be extremely careful in making  any statements about what they  discovered regarding
compliance.

Once  the inspector leaves the site, he or she may be on  the road for several days before returning
to the office with  inspection data.  Chapter 16B describes the measures that should be  taken to
assure the security of this information while the inspector is traveling.
                                           16-1

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NOTES
 16-2

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                               16A  CLOSING CONFERENCE
A final meeting with facility officials will enable the inspector to "wrap up" an inspection.  During
this meeting, receipts can be prepared, questions can be answered, and information gaps can be
resolved.
Responding to Questions on Inspection Results	

Facility officials will  understandably be interested in what the inspector found out about  the
facility's compliance.  This is a sensitive area legally, so it  is critical that the inspector be very
careful in what he or she says.  Following are acceptable ways of handling two common questions
raised by facility officials.

"Did you find any violations?"	
If asked if any violations were  found, the inspector may point out various items that  facility
officials might want to re-check for compliance purposes.  However, EPA inspectors are never
authorized to  sav that "everything checks" or "there are no violations."

     •   The most that any inspector can indicate is that he thinks that he did not discover  matters
         that he personally  felt were violations of law or regulations except certain items about
         which an "institutional" EPA decision has not yet been made.

There are several reasons why the inspector should not offer seemingly final conclusions regarding
the facility's compliance status:

     •   The inspector has not had time to reflect upon  and correlate all that he  has observed.

     •   Laboratory analyses may not have been completed.

     •   The intricacies of EPA-administered statutes and regulations do not lend themselves  to
         "off the cuff assessment.

     •   The inspection findings may only represent a portion  of the enforcement case.

Additionally, should the facility  later be informed that the inspection did substantiate a  finding
of violation, facility officials are likely to  insist that the EPA  inspector stated "no violations"  at
the time he left the premises, and therefore question  the final  assessment.

[Note:  Some EPA programs are developing experimental programs in which inspectors can issue
citations for minor violations while still at  the inspection site or shortly after their return to the
office.  Follow program guidance on these matters.]
                                            16-3

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"Can I see (or COPY) your notes?"

Facility officials  may assert that they have the right to see --or copy -- notes made by EPA
inspection personnel.  Although they may submit a Freedom of Information Act (FOIA) request,
which the Agency must respond to within 10 days, Agency policy is not to permit "viewings" on-
site or in the absence of an FOIA request.
Receipt for Samples	

Some EPA statutes require  that the inspected  facility be given a receipt for  all samples taken.
Practice varies, but documents and other evidence may also be included on the  receipt.

The  receipt should describe each  item and its point of origin and  be signed and dated  by the
inspector.  To be included on the receipt are:

     •  A description of all physical  samples  taken.

     •  A description of all records,  photographs, or other property taken. This is particularly
        crucial when inspecting with  a warrant.

The  purpose of this detailed receipt is twofold:

     •  To protect the Agency by showing that facility officials knew exactly what was taken.

     •  To allow full review by facility officials of the material and information  collected so that
        confidentiality claims can be  made.
Confidentiality Claims	

Some information may have been declared confidential during the inspection  itself. These items
should be reviewed and confirmed with facility officials.

Facility officials  should then review the completed Receipt for Samples (if prepared) and make
any  further claims.   Even when no receipt is required,  inspectors should be sure that facility
officials  understand their right to make confidentiality claims.

(If the inspection was conducted under TSCA authority,  all items claimed confidential must be
listed on the Declaration of Confidential Information form.   See TSCA Base Inspection Manual
for additional procedures.)
                                            16-4

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Industry Outreach
Since the inspector is often the only contact between the Agency and the regulated industries, he
or she should be aware of opportunities to maintain and improve Agency-industry relations. The
closing conference provides an ideal opportunity to offer various kinds of help to facility officials.
The  inspector will have just completed  an inspection, and will  have first-hand knowledge  of
questions, problems, and ways to help overcome them.

In this role, the inspector should be careful, however, to  answer only those questions  that are
within his or her  ability  or authority.   The inspector  should in no case recommend that a
particular step should be taken to address a  problem.  Such advice may be  wrong, and  if the
facility  is later found to be in noncompliance,  EPA's ability to pursue an enforcement action
would be jeopardized. The inspector can offer or suggest resources that are available to facility
officials to help overcome problems (e.g., technical  publications, special services).

Inspectors should refer questions and  problems to other EPA  personnel as  needed,  and follow-
up with those personnel  when practical to see that facility  officials receive  a response.
                                            16-5

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                  United States
                  Environmental Protection
                  Agency
      RECEIPT FOR
      SAMPLES AND  DOCUMENTS
Inspector Nun
                                                   Nun of Firm
                                                   Firm Address
 Inspector Address
                                                   Name of Individual
                                                   Title
Date Collected
                 Duplicate Samples Requested and Received

                      (  ) Yes          (  ) No
                                                   Staple Numbers
The  documents and samples of chemical substances and/or mixtures described below were
collected  in connection with the administration and enforcement of the  Toxic Substances
Control Act.	
Receipt for the  document(s)  and/or sample(s) described  is hereby  acknowedged:
 Signature of Inspector
 Title
Signature of Owner, Operator, or Agent
                                                   Title
                                          16-6

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 Receipt: for S angles  and Documents
 1.   Enter Inspector's name
     (1) and EPA office
     address (2).

 3.   Enter name  (3) and
     complete address  (4)
     of the firm being
     inspected.

 5.   Enter the name  (5)
     and title (6) of the
     individual receiving
     this Receipt.

 7.   Enter the date of
     collection of the
     samples and docu-
     ments listed on the
     Receipt.

 8.   Check the appropriate
     column if duplicate
     samples were requested
     and received.

 9.   List the sample numbers
     of all samples taken.

10.   List by title or
     description all
     samples and docu-
     ments taken during the
     inspection.

11.   Sign  (11) and date  (.12)
     the Receipt.

13.   Have the facility
     official named  in  (5)
     sign  (13) the Receipt
     and list his/her title
     (14).
Sect i rr rat
    ADO DOCUMENT*
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-------
                    DECLARATION  OF CONFIDENTIAL  BUSINESS  INFORMATION
A t™OJV United States
^•^.••^••n^A Environmental Protection
^•^•Wl arm Agency
DECLARATION OF CONFIDENTIAL
BUSINESS INFORMATION
Nane of Individual
Firm Nam
EPA Regional Office Addre**
Date
Title
Firm Address
Information Designated as Confidential Business Information:
 Acknowledgment by Claimant
 The undersigned acknowledges that the information described above is designated as
 Confidential Business Information under Section 14(c) of the Toxic Substances Control
 Act.   The undersigned further acknowledges that he/she is authorized to make such
 claims for his/her firm.
 The undersigned also certifies that each item described above meets all of the
 following criteria:  (1) The company has taken measures to protect the confidentiality
 of the information and it intends to continue to take such measures;  (2) The infor-
 mation is not, and has not been reasonably attainable without the company's consent
 by other persons (other than governmental bodies) by use of legitimate means (other
 than discovery based on a showing of special need in a judicial or quasi-judicial
 proceeding); (3) The information is not publicly available elsewhere; and  (4)
 Disclosure of the information would cause substantial harm to the company's
 competitive position.
Signature (Owner, Operator, Agent)
Title
Name of Inspector Title
Inspector '• Signature
                                         16-8

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  Declaration of  Confidential Business  Information
 1.  Enter the complete EPA
     Regional  Office address.

 2.  Enter the date of  this
     declaration.

 3.  Enter the name(3), title
     (4),  official  firm name
     (5),  and  complete  firm
     address  (6) of the
     individual making  this
     declaration.

 7.  List  by title  or descrip-
     tion  all  information
     begin designated as
     confidential business
     information.

 8.  Have  the  individual
     making the declaration
     sign  (8)  and list  his/
     her title  (9).

10.  Enter the name and title
     of the Inspector

11.  Sign  the  Declaration
     (Inspector).
A
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CD A •—»«" „
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DECLARATION OF CONFIDENTIAL
BUSINESS INFODMTION
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                                         16-9

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NOTES
 16-10

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                    16B  SECURITY MEASURES WHILE TRAVELING
Security measures must be taken to protect all inspection data (including documents, samples, field
notes, and other documentation) collected by  the inspector.  The information must be protected
because:

     •  The very nature of an  enforcement investigation assumes the possibility that some legal
        action might result.

     •  Any inspection  involves the collection  of information that a firm would not ordinarily
        make available to outsiders.

In addition to the routine security measures that are always taken with regard to inspection data,
the declaration of certain information as TSCA Confidential Business Information (TSCA-CBI)
imposes a further layer of security procedures  designed to control access to the information within
the Agency.

Protecting security while traveling presents some unique problems.  Routine security measures and
the additional procedure for  TSCA-CBI while on the road  are discussed below.

The main objective of the security measures is to ensure that reasonable  precautions are taken to
prevent unauthorised  persons  from viewing the information.   When  practical  circumstances
prohibit the inspector from following the procedures  exactly, the  inspector is  expected to take
steps for protection of the information that will achieve this objective.

Routine Security Measures

The inspector may be on the road for several days while doing inspections.  It is  his responsibility
to ensure  that the information  he collects is handled securely.

     •  Documents and field notes  are  considered secure if they are in the physical possession
        of the inspector and not visible to others while in use.  For example, it is permissible to
        review documents in the privacy of  a motel room or  motor vehicle, but not acceptable
        to review them in a public place such  as a restaurant.

     •  Inspection documents  contain sensitive information  and  should be kept in a  locked
        briefcase.  If it is impractical to carry the  briefcase into a given situation, the briefcase
        may be stored in a locked area such  as a motel room or  trunk  of a motor vehicle.

     •  Physical samples should be  placed in  locked containers and stored  in a locked portion  of
        the motor vehicle.  The chain of custody procedures  provide further protection  for
        ensuring the integrity of the sample.

     •  If shipping is not feasible immediately, the samples should be stored in a locked container
        inside a locked  portion of the motor vehicle.
                                           16-11

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TSCA-CBI Security Measures
Because of the difficulties in protecting TSCA-CBI while traveling, it is recommended that such
information be mailed, shipped, or hand delivered to an authorized person as soon as possible after
the inspection.

     •  Documents and other "paper"  data  should be  mailed or hand carried  to the Regional
        Document Control Officer.

     •  Physical samples should be shipped or hand carried to an individual in the laboratory who
        is cleared  for access to confidential information.
Handling of Documents

     •   As soon  as  they are declared confidential,  documents or papers  should  be  marked
         "Confidential Business  Information"  and placed  inside  an  envelope  also   marked
         "Confidential Business Information."  This envelope is placed inside a plastic envelope
         addressed to the Regional Document Control  Officer and mailed  immediately.

     •   If mailing is not feasible immediately,  the double envelope  should  be placed  inside a
         locking briefcase. The double  envelope is  required during this interim period to  prevent
         others from  seeing  that  the inspector  is  carrying "Confidential  Business Information"
         should he open  his briefcase.

     •   The locked briefcase must be  kept in  the sight of the inspector at all times.   If  it is
         totally impractical to carry the briefcase  into a given situation,  the briefcase  may be
         stored in a key-locked area for which  the inspector has control of the only key.  The
         inspector would be expected to take the  briefcase into a restaurant, but not into  another
         facility inspection.  Briefcases  should not  be  left unattended  in a motel room.

     •   If it  is necessary for the  inspector to review the document, this can  only  be  done in
         absolute privacy because the "Confidential Business Information" marking  is likely to
         arouse curiosity.  If privacy is violated,  the documents must be shielded from view
         immediately.

Handling of Physical Samples         	
        Physical  samples  declared  confidential  should  be  marked  "Confidential  Business
        Information" on the seal and  the same mark should  be placed on  the chain of custody
        report.    The sample  and  chain  of  custody  report  should be  shipped or  delivered
        immediately to  an individual in the laboratory  who  is known by the  inspector to be
        cleared for confidential.
                                           16-12

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17 - Reports/Files

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                                       CHAPTER 17

                                   REPORTS AND FILES
The ability of the Agency to make an appropriate decision with regard to whether and what level
of enforcement  action should be taken is largely dependent on the quality and content  of  the
inspection report and the official inspection file.

Section 17A discusses the elements of a good inspection report, provides tips on writing the report,
and concludes with a generic outline that can be used in preparing a narrative inspection report.
Section 17B  discusses the  contents of the  official  inspection file  and security measures  for
safeguarding inspection data in the office.
                                            17-1

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NOTES
 17-2

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                             17 A  THE INSPECTION REPORT
The results of all work done by an inspector are finally expressed in some form of written report.
Although one  measure of an inspector's success in enforcement is the quality of his reports, many
inspectors do  not appreciate  the  importance of report writing.  Proper  documentation  of an
inspection is a key aspect of an inspector's job. Government officials and attorneys who review
the report  must have all  the  facts to make appropriate and  effective decisions.  Well-written
reports create  an impression of a well-conducted inspection, and facilitate  the report review and
decision-making  process.   As  one senior enforcement  official  stated it:  "The quality  of your
inspection reports can make or break your career."

The purpose of the inspection  report is to present a factual record of an inspection, from  the time
when the need for the inspection  is perceived through the analysis  of samples and other data
collected during the  inspection. An inspection report must be complete  and accurate, because it
will provide the basis for potential enforcement actions and may become an important  piece of
evidence in litigation.  The length and format  of inspection reports may vary based on  program
and individual office policy and practice.

The objective of an inspection report is to organize and coordinate all evidence gathered in an
inspection  in  a comprehensive,  usable manner.  To  meet  this objective,  information  in  an
inspection report must be:

     •  Accurate.   All information  must  be factual and  based on sound inspection practices.
        Observations should  be the verifiable result of first-hand  knowledge.   Enforcement
        personnel must be able to depend on  the accuracy of all information.

     •  Relevant. Information in an inspection report  should be pertinent to the subject of the
        report.   Irrelevant  facts and data will clutter  a report and may reduce its clarity  and
        usefulness.

     •  Comprehensive.  The subject of  the  report (i.e., any  suspected  violations) should  be
        substantiated  by as  much factual, relevant information as  is  feasible.   The  more
        comprehensive the evidence, the  better and easier the prosecution task.

     •  Coordinated.   All  information  pertinent to  the  subject  should  be  organized into  a
        complete package. Documentary support (photographs, statements, sample documentation,
        etc.)  accompanying the report should  be clearly referenced so that anyone reading the
        report will get a  complete, clear overview of the subject.

     •  Objective.   Information should be  objective and factual; the report should not draw
        conclusions.

     •  Clear.  The  information  in  the report should  be presented  in  a  clear, well-organized
        manner.

     •  Neat  and Legible.  Adequate time should be taken to allow the preparation of a neat,
        legible report.


                                           17-3

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Inspection reports are normally prepared by the inspection team leader, with the assistance of the
inspection team members.  After  an inspection has  been completed  there  is a  psychological
letdown. Reporting what happened during the inspection may then seem a burdensome chore, but
the inspector's Job is not finished until the report is complete and the official files are in order.
Remembering the simple rule that "no job is complete until the paperwork is finished" will assist
the team in planning and conducting  the inspection so that the report will accurately  portray the
findings of  the  inspection.  Recall also, as discussed in  Chapter 8, that unless  the report  is
prepared routinely and contemporaneously  with  the  inspection,  it may not be used  to refresh
recollection or be admissible as evidence.
Elements of an Inspection Report	

No single standard EPA inspection report format exists; the specific information needs will vary
depending  on the program and  regulatory requirements involved.  While  the format and exact
contents of the inspection report vary, the report should always contain enough  information that
the reader  can determine  the following:

     •  The specific reason for the inspection;

     •  Who participated in the inspection;

     •  That all  required notices, receipts, and  other legal  requirements were complied with;

     •  What actions were taken during the inspection, including the chronology of these actions;

     •  What statements, records, physical samples and other evidence was obtained during the
        inspection

     •  What observations were  made during the inspection; and

     •  The results  of sample analyses related to the inspection.

Although the specific information requirements  in a given inspection report will depend on the
type of inspection and what was found, most reports will contain  the same basic elements:

     •  Inspection Report Forms

     •  Narrative Report

     •  Documentary Support
                                           17-4

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Inspection  Report Forms
Individual inspection report forms, developed for most regulatory programs, are designed to collect
standard, reviewable information about an inspection. Inspection report forms are only one aspect
of a complete report and should by no means be considered to be sufficient documentation of the
inspection in themselves.  They function as guides to ensure that all basic data are being collected,
and are generally completed  as the inspection progresses.  Individual items on these forms often
need clarification and elaboration; inspectors normally use the field logbook for this information.

In cases where inspection report forms are unavailable, inappropriate, or not comprehensive, the
inspector should record pertinent information in the field logbook.  This information should be
used in the  narrative of the Inspection Report to clarify  and expand upon  the information from
the Inspection Report Forms.

Narrative Report	
The narrative portion of an inspection report should be a concise, factual summary of observations
and activities,  organized  in a  logical, legible manner, and  supported by specific  references to
accompanying  evidence (documentary support).   A work plan will simplify preparation of the
narrative and will help ensure that information is organized in a usable form. Basic steps involved
in writing the  narrative report include:

     •   Reviewing the information

     •   Organizing  the material

     •   Referencing accompanying material

     •   Writing the narrative

Reviewing the  Information.  The first step in preparing the narrative is to collect all information
gathered during the inspection.  The inspector's field  logbook and all  Inspection Report Forms
should be reviewed in detail.  All evidence  should be  reviewed  for relevancy and  completeness.
Gaps  may need to be filled by a phone call or,  in unusual circumstances, a follow-up visit.

Organizing the  Material.  Organization of the information can take many forms, depending on the
case,  but should present the material in a logical, comprehensive manner.  The narrative should
be organized so that it  will be understood easily by the reader.

Referencing  Accompanying  Material.  All evidence (e.g., copies  of  records,  analytical results,
photographs) that  accompany a narrative report should be clearly referenced  so that  the reader
will be able to  locate them easily.  All  support documents should be checked for clarity prior to
writing the report.

Writing the Narrative Report.  Once the  material has been reviewed,  organized, and referenced,
the narrative can  be written.   The purpose of the  narrative report is to  record  factually the
procedures used in, and findings resulting from, the  evidence-gathering process. In this report,
the inspector should  refer to routine  procedures and  practices  used  during the inspection, but
should describe in detail facts relating to potential violations and discrepancies.   The field logbook
is a guide for  preparing the narrative report.


                                            17-5

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If the inspector has followed the steps presented in this manual, the report can develop logically
from the organizational framework of the inspection.  In preparing the narrative, simplicity should
be a prime consideration:

     •   Use a simple writing style; avoid stilted language.

     •   Use an active, rather than passive approach (e.g., "He said that ..." rather than "It was
         said that...").

     •   Keep  paragraphs  brief and to the point.

     •   Avoid repetition.

     •   Proofread the narrative carefully.

Note  Regarding  Standard Operating  Procedures.   When the  inspector  has  followed Standard
Operating Procedures  (SOPs) precisely in gaining entry,  taking samples,  etc.,  this can be easily
noted in the report (e.g., "following standard  procedures, Joe Smith gained entry to...").  If there
were any unusual circumstances or deviations, however, these should be included in the report in
more  detail.

Confidentiality Considerations  and Procedures

All documents  and other materials that have  been declared confidential business information by
facility  officials must be  handled according to  the security  measures that have been established
for such materials.  Confidential information  includes not only  the materials themselves, but also
any reports --  such as inspection reports --  generated on the  basis  of confidential information.
Generally, this will involve limiting access to  the report to the fewest number of people  possible.

In preparing the inspection report, it may be possible to reference confidential material in a non-
confidential way, such as by providing a general description of the  information and a reference
number  to the  confidential documents.   An alternative is  to include  the information  in  the
inspection report but treat the entire report as  a confidential document.

Especially stringent security requirements apply to documents  or reports containing TSCA-CBI.
See the  TSCA Base Inspection  Manual for detailed procedures.
Conclusions Regarding Compliance	

Inspection  reports should  contain only the facts about  the  inspection.  Clearly,  however,  the
inspector's conclusions  and opinions about  the compliance  of the facility are the critical factors
(and often, the  only  factors)  in the Agency's  decision as to  whether a violation did or did  not
exist.   It  is essential, however,  that  the  inspection  report  itself  not include the inspector's
conclusions regarding compliance.

In writing  the inspection report, avoid using the word "violation," which means a  conclusion of
law has been drawn.   It is acceptable to state  facts,  such as:  "The permit limit  is  x.  I found y,
which  exceeds the limit by z."


                                            17-6

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Conclusions should be contained in a separate cover memorandum or other format that is clearly
separate'from the inspection report and passed  up the management chain along with the factual
inspection report.

The principal reason for this is that if an enforcement case is pursued, the entire inspection report
is  subject to discovery by  the  opposing side.   If conclusions of law and opinions are in the
report,  which  must  be shared, the opposing  side  might  be able to weaken  the inspector's
credibility by suggesting bias.  Or, the inspector may have been wrong about one or more counts
and the Agency did not pursue  them; this would be revealed through discovery, again weakening
the inspector's  credibility.

A  separate findings or  conclusions memorandum will  usually be protected from discovery based
on attorney-client privilege or another exception rule.

In some  programs, it may be the  inspector who determines whether a violation occurred and  if
an enforcement action is warranted. In these situations, the inspector is no longer performing an
inspector function; he or she has  actually "changed hats" into a different job  -- that  of a case
development officer.  The  line between  the two jobs should be clearly drawn, with the person
staying in a fact-finder role while carrying out inspector functions -- including inspection report
writing.
Tips for Writing an Effective Inspection Report	

This section presents guidance in preparing effective inspection reports. The style of these reports
should be clear, concise, accurate, factual, fair, complete, and logical.  Inspection reports should
not contain flowery phrases, levity, superlatives, or unnecessary verbiage.  Remember, the purpose
of an inspection report is to convey the facts determined during an inspection to a reader whose
course of action  will depend upon its  contents.  This communication is not complete until the
reader understands precisely what was intended and  is willing to take action.  To provide this
communication, a report must be readable and must inspire confidence in the reviewers.  Written
communication does not have the advantages of facial expressions, voice tones, or gestures to get
a message across and to interpret how it is being received. Therefore, the report must  be written
so as to eliminate the possibility of erroneous  conclusions, inferences,  or interpretations. It will
become part of the permanent records  for the inspected facility, along with the inspector's field
logbooks, samples, formal statements, photographs, drawings, maps, printed matter, mechanical
recordings,  electronic recordings, and copies of records.  A  well-written report will  serve as a
summary of theise other records.

In general, three rules apply to preparation of good inspection reports.

     •   Write  to express,  not to impress.  Just relate  the facts  and evidence that are  relevant to
         the compliance situation; don't tell about the inspection.

     •   Keep  it simple.  Organize complicated matters and state them in simple, direct terms.

     •   Keep  the reader in mind.  Relate your writing to the reader's experience and  use words
         that are likely to be familiar.

The following sections provide a summary of the essential elements of good reports and organizing
the writing  process.
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Essentials of Good Reports
Fairness,  accuracy,  completeness,  conciseness,  clarity,  and  organization  are  all  essential
characteristics of well-written and effective  inspection reports.  Prepare the report with these
characteristics in mind, and keep them  in mind during each phase of reviewing and rewriting.
Although, by themselves,  these  characteristics  will not ensure a  well-written report, they are
essential.

     •  Fairness.   Inspection reports must be entirely  objective, unbiased, and  unemotional.
        Avoid distortion by being aware of the emotional tone of  words.  For example, note the
        difference in implication between "planning" and "scheming."  Rumors or gossip should
        be  included  only  if it is material to  the inspection and is clearly identified  as hearsay.
        If you can quote someone exactly, do so; otherwise, paraphrase the statement as accurately
        as possible.  A report may mention a person's race, religion, or political persuasion only
        if it is relevant and material.  Never make offensive remarks or use offensive slang in
        making reference to anybody's  race, religion, or  ethnic origin.

     •  Accuracy.   Be  exact.   Say  precisely and  accurately  what you  mean  to  say in plain
        language.   Precision depends  on  diction,  phrasing,  and sentence structure.   Avoid
        exaggerations.  One small  exaggeration  may  cast doubt  on the  accuracy of other
        statements in the report.  For example, do not state that something was obvious; just state
        the facts.  Omit opinions, conclusions, and inferences.  (Opinions may be expressed in
        rare circumstances to clarify meaning, but they should be clearly identified as nonfactual
        information.  For example, "this act indicated his knowledge" is a conclusion  and should
        be clearly identified as such.) The report should present facts so clearly that there is no
        need for  conclusions or interpretations.

        State facts so that inferences can be drawn  from them, but do not let inferences replace
        facts.  For example:  If  you saw someone loading bags marked "toxic chemicals," do not
        write that you saw a person loading toxic chemicals. You only saw someone loading bags
        marked toxic chemicals. A frequent error found  in reports  is to substitute the word
        "signature," which by definition means signed by.

            Inference:  The compliance  reports were signed by John Doe.
            Fact:  The compliance reports were signed, "John Doe."

        Avoid superlatives. Any attempt to strengthen a  report in this way actually weakens it,
        as reviewers tend to doubt  its objectivity.

        Accuracy means truthfulness.  The accuracy of all findings and  computations must be
        verified before the final report  is submitted.  A typographical error in date or time may
        cast doubt on other facts in a report.

     •  Completeness. Include all information that is relevant and material. Completeness implies
        that all the known facts and details have been reported, either in the text of  the report
        or  in  an  exhibit, so that no further explanation is needed and the reviewer  will  be
        convinced that the inspection was thorough and comprehensive.  Include in the body of
        the  report only  those  parts  of exhibits that are  material to the inspection and  are
        necessary to  give the reader a complete understanding of the compliance matter involved.
        Exhibits should contain  complete statements or data.
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Source. Always report the source of evidence.  When possible, make inspection reports
interview-oriented (i.e., report statements made by interviewees).  For example, do not
say that the exhaust stack was black if you did not see it. Write, "John Jones said that
the exhaust  stack  he  saw  was  black."   Explain how  the  interviewee  acquired the
knowledge you are reporting, and tell how you obtained the  information.

Exhibits.  The report should be complete in that it is one single document.  Original or
duplicate  copies of laboratory  reports, affidavits, correspondence and other documents
should be submitted  as exhibits to the original report.   These  exhibits should  be
consecutively numbered in the order that they are mentioned in the body  of the report.
Exhibits  are  best introduced parenthetically.  For example, "J.M. Dale told me (Ex.  1,
Statement), I do not ...."

Testing Completeness.  Test the report to ensure that it answers the questions who, what,
how,  when, where, and why related  to the compliance situation.

-   The first time they are  mentioned in a report, all  individuals should be identified
    completely by  their first, middle  and last names.  If the person has no middle  name
    or initial, indicate this  by the  use of (NMN) or (NMI) between the  first and last
    names.

    The report should clearly indicate what happened and how it happened, no  more and
    no less.   The chronology of occurrences should be stated clearly. The report also
    should indicate the date and time the happening occurred or an approximation if the
    exa.ct  time is unknown.  Do not place the date or time in the middle of a sentence,
    as this causes  ambiguity.   The date and time an event occurred should be placed
    either first or  last  in a sentence,  as appropriate.

    The location  of the occurrence  should  be identified as  a definite  place, to the
    exclusion of all  other  places.  The  place should be  so  clearly  identified that  no
    confusion or misinterpretation is  possible.

-   Why a situation occurred is particularly significant  with respect to violations where
    intent is  an element of  the offense.  In such  cases, the report should set  forth the
    facts bearing on intent  with such clarity that there  is no  need  for conclusions or
    opinions  within the report.

Conciseness.  Conciseness does not mean omission.  It is  the  avoidance  of  all that  is
elaborate  or  not essential.   Conciseness is  not what  you say, but how you say it.
Conciseness means omitting unnecessary words; it does not mean omitting facts, detail
and necessary explanation.  It is not the same as brevity.  If clarity and completeness
require a  detailed  explanation, do not hesitate to use it.

Readers like  short  sentences and short paragraphs with plenty of white space in between.
Remember that all sentences in a paragraph are related  to each  other and express a unit
of thought.  Use  tables to  describe a  group of items  having similar characteristics.
Results of   sample  analyses,  observation  times,  records'  inspections,  and  similar
information should almost always be reported in table form.
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    Write  plainly.   Use active verbs whenever possible.  The active  voice  gives force to
    writing. If you write like you talk, you probably will avoid excessive use of the  passive
    voice.  Do  not write, "A low drive was hit by Eddie Murray."  Instead, use the active
    voice, like  you  talk: "Eddie Murray hit a  low drive."

    Avoid  repeating  the  same  material  in several  sections of the  report.   Also, avoid
    redundant phrases such as:  repetitive  and  redundant, approve and accept, null and void,
    part and parcel, ways and means, basic essentials,  disappear from sight, while at the same
    time, revert back, pure  and simple, and gross exaggeration.

•   Clarity.  Inspection reports must be written clearly to  avoid misinterpretations.  Clear
    writing leads to clear thinking  and vice versa.  Order your  thoughts; select those most
    useful to the reader; arrange them logically; and  select  the words that will best  convey
    your thoughts to the reader.

    Everything in the report must be relevant and essential to the main purpose of the report,
    and its relevancy and material nature must be evident  to the reader.   Each sentence,
    paragraph,  and  division  or part must  represent a unit of thought and help establish the
    main point of the report; which usually is an alleged violation of the law.  The unity of
    the report is enhanced by the use of topic headings, especially for major parts of the
    report. Such headings should succinctly describe  what is contained  in the particular part
    of the report.

    The careless use of personal  pronouns is a  frequent cause of ambiguity.  If the use of
    a pronoun may  result in ambiguity, use a  noun.  Avoid the use of the pronoun "It" and
    the word "There" as substitutes  for precise word selection.  For  example, say "We should
    do  ...", rather then "It should  be done  ...",  and "Changes  have been made  ...", rather then
    "There have been changes."

    Use specific and concrete expressions rather than general  or abstract statements.  Poor
    writing often reflects a failure to select words which paint a clear mental  picture.  If you
    write  that you took three water quality samples, the meaning  is not clear.  But if  you
    write, "I  took one effluent sample from  Station E-l,  one  groundwater sample from
    station G-l, and one sample from a nearby river  at station R-l," the reader understands
    clearly.

    Although  in English  grammar classes we  have  been taught  to use   ingenuity  and
    imagination, to  be original, and to avoid repeating the use  of the same  words  in our
    writing, inspection reports are not essays or literary works.  If necessary, repeating use
    of  a word or sentence  structure is  acceptable,  if this  uniformity  increases  clarity.
    Remember, the  purpose is to communicate clearly, not  to  entertain.

    Punctuate to make the meaning easy to understand.  For example, consider the different
    meanings  of the  following  three sentences:   The employee  said  the  foreman is  a
    blockhead.  The employee said, "The foreman  is a blockhead."  "The employee," said the
    foreman, "is a blockhead."

    In presenting a series of thoughts or actions, parallel construction helps clarify meaning.
    For example, write "collecting, depositing,  and reporting revenue", instead of "collection.
    depositing,  and  the reporting of revenue."
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     •  Organization.  An inspection report should be structured  to allow a logical order and
        coherence in the presentation of facts.  This means that the relation of each event to the
        main idea and to the events immediately preceding it in the report must be unmistakable.
        Otherwise, it is quite  likely that the reader will not understand the significance of the
        event. Since the report writer cannot insert his conclusions or lead the reader by drawing
        inferences, he must depend upon facts that are so clearly stated and so logically arranged
        that the reader  is certain to understand.  Each violation, event, or circumstance should
        be  narrated  in full before  the writer passes on to  the next facet of the report.  Most
        reports about criminal violations,  for example, begin with the gist of the crime.   Then
        they present  the pertinent evidence of the alleged violator's connection with the violation.

        Often, the events that occurred are reported in chronological order (the order in which
        they occurred).   However,  in some instances the significance of each event or  item of
        evidence may be understood better by some other  arrangement.  Usually, all evidence
        from a single source should be presented before introducing information  from  another
        source.

        In any report some facts and events are more important than others, and  the writer wants
        to emphasize them so the reader is certain to  notice them. In an inspector's report this
        cannot  be done by comments  of the writer,  but  it can  be accomplished by careful
        selection and  placement  of  words,  phrases,  and  paragraphs,  and  by priority  of
        organization. Place important words or phrases at the beginning or end of the sentence,
        and important  sentences at the beginning or end of the  paragraph. Emphasis also  can
        be  accomplished by some device which makes  the important item different from other
        items.  For example:

        -   Emphasize  a sentence by indentation or by making it a separate paragraph.

        -   Emphasize   paragraphs  by  leaving  margins  wider than those  of  the other, less
            important paragraphs.

            Emphasize  important names, words, or phrases  by capitalizing or underlining them.
            (This technique,   however, should  be used  sparingly; otherwise  the element  of
            differentness, and hence emphasis, is lost).

Organizing the Writing Process	
Preparation of the initial draft of a report is difficult without a clear idea of the objective of the
report, its subject, the methods used in the inspection, and the results of all data collection efforts.
Once this information is  all available,  however, developing the initial  draft  can  still present a
significant obsta.cle.  An  outline for  the narrative portion of the  inspection report that can  be
adapted for most situations appears at the end of this section.   The following tips for preparing
a draft are also  intended  to aid  in  preparing  the report.
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Each  writer  has  a personal  style in draft preparation.   Effective styles  allow  authors to use
POWER  in preparing reports.  The idea of POWER is simply stated  as  a  structure for writing:
Plan,  Organize, Write, Evaluate (edit), and Rewrite.

     •   Plan.  The  first step in writing is to determine  your objective.  Why are you writing?
         What is  the purpose of this report?  Have a clear understanding of the elements of the
         situation involved when you answer these questions.  Many good inspectors begin to plan
         their reports when they begin planning the investigation.  By thinking about how the
         facts must be reported to make a clear report,  they improve both the quality of  their
         reports and their inspections.

         Prepare  a detailed topic outline  with topic headings that distinguish between major
         sections  and minor topics.  Include in  the outline a brief reference to each supporting
         exhibit.  An outline not only lessens chances of omitting necessary facts, but also assists
         in recognizing irrelevant details and achieving a logical arrangement.

     •   Organize.   Most of  the facts of an  investigation are in memorandums, field notes,
         documents, etc. that were gathered during the inspection.  Arrange this material in the
         order you developed in the topic outline. From this bulk of material  you can refine the
         topic outline and then build the  body of the report.

     •   Write.   In  writing the report, remember that  the format of your  narrative  report is
         determined by its purpose and by Agency policy.  Refer to your office's directives and
         official sample reports or copies of other well-written reports  to determine the format
         of the particular type  of report you are writing.  Use the writing process to evaluate the
         information being presented.  Be  willing to revise the topic outline to improve structure
         and  clarity.

     •   Evaluate.   After  you  have written a  draft  of the report,  put it aside  for a while,
         preferably at least overnight. Then analyze the report from the viewpoint of the reviewer
         and  answer the following questions:

            What is the report trying to communicate?

            Has it fulfilled the purpose of the inspection?

            Can  supervisors and reviewers make correct  decisions based on this report?

            Does  it  answer the questions  who, what, when, where, why and how?

            Are any further inquiries necessary?

         -   Is it  readable?

         -   Is it  fair, concise,  complete, accurate and logical?

            Is any part ambiguous?
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     •  Proofread the report to check for the following problems:

        -   Inconsistency in format or style,

        -   Unnecessary repetition,

        -   Inappropriate tone,

        -   Omission of pertinent information, and

        -   Typographical errors.

        At this point,  it is  often  helpful to have  the report reviewed  by a colleague  who  has
        knowledge of the inspection or investigation. A second party can often identify problem
        areas more  readily than the primary author, who may become too close to the material
        to be an objective evaluator.

     •  Rewrite.  After evaluating the draft, rewrite or revise those portions of the narrative that
        do not respond  to the questions used in evaluation.  Upon completion of this process, the
        official draft of the inspection report will  be circulated  for official reviews and a copy
        of this; draft will be kept in the official  files.   Be certain  the report  is an  accurate
        representation  of the complete situation.


Narrative  Report Outline	

While the specific information items will vary, the  following outline for the narrative portion of
an inspection report can be adapted to most situations.

Introduction	
The introduction should briefly present all relevant background information about the conduct of
the inspection and summarize  the findings of the inspection.

     •   General Information

         -   State the purpose  of the inspection  and how the facility came to  be inspected (i.e.,
            neutral  scheme, follow-up, for cause).

            State the facts of the inspection (i.e.,  date,  time, location, name of the agent-in-
            charge,  etc.).

         -   Participants in the inspection.

     •   Summary of Findings

            Give a  brief,  factual summary of the inspection findings.
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         History of Facility

         -   List  the  status of  the  facility (i.e.,  corporation, proprietorship,  partnership, State
            agency, non-profit organization, etc., and where incorporated).

         -   Give  the size of the organization based on inspector observations or agency records.

            List any  related firms,  subsidiaries, branches, etc.

            List the type of operations performed at the facility under inspection.

            List names and titles of facility officials interviewed. List the name(s) of official(s)
            responsible for day-to-day operations at the facility.
Inspection Activities
The body of the report should present the chronology of the inspection in the same order that the
inspection was conducted.  Be certain to insert all observations when appropriate and  to cover the
following topics when appropriate.

     •   Entry/Opening Conference

            Describe  the procedures  used  at  arrival,  including presentation  of credentials and
            written Notice of Inspection, and to whom they were presented.

         -  Describe any special problems  or observations if there was reluctance on the part of
            facility officials to give consent, or if consent was withdrawn or  denied.

         -  If special  procedures  were necessary,  such  as obtaining a  warrant,  describe  the
            procedures.

         -  Summarize the topics discussed during the opening conference.

         -  Note  presentation  of  any  other  required   notices   (e.g.,  the   TSCA  Inspection
            Confidentiality Notice) and the officials to whom they were presented.

            Note  if duplicate samples were requested.

     •   Records

            List  the  types  of records reviewed,  noting  the reasons for  their  review, and
            referencing documents  that were borrowed or copied.

            Describe any inadequacies in recordkeeping procedures, or if any required information
            was unavailable or  incomplete.

            Note  if recordkeeping requirements were  being met.
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     •   Evidence Collection

        -   Note and reference any statements taken during the inspection.

        -   Describe and reference photographs taken during the inspection if they were relevant
            to possible  discrepancies.

        -   Reference any drawings, maps, charts, or other documents made or taken during the
            inspection.

     •   Physical Samples

            Describe the purpose for which samples were obtained.

            Describe the exact location from which they were obtained.

            Describe sampling techniques  used.  They may be referred to as standard operating
            procedures  (SOPs), if SOPs were followed exactly.  If there were deviations from SOPs
            explain  why and  what was done.

        -   Reference controlled identification  procedures.

        -   Describe the physical aspects of the sample (color, texture, viscosity, etc.).

            Describe chain of custody procedures  used in sample handling.

            Summarize results of laboratory analysis (include actual  data in the appendix).

     •   Closing Conference

            Note and reference receipts for samples and documents  given to facility officials.

        -   Note  procedures taken  to  confirm  claims  of  confidentiality  and  Receipts  for
            Confidential Business Information.

            Note any recommendations, referrals,  etc., made  to facility officials.

Attachments	

Supporting information  should be attached to the report, to ensure that reviewers have all of the
data needed to fully evaluate  the compliance situation.  All of these attachments should be fully
referenced in the body  of the report.

     •   List of Attachments

            Prepare a list of all documents, analytical  results, photographs, and other supporting
            information attached to the  report.   A general index list,  rather  than detailed
            descriptions will  aid case development personnel  in locating specific documents.
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         Documents

         -   Attach copies of all documents and other evidence collected during the inspection.
            All documents should be clearly identified.

            In cases where documentary support items cannot be included easily with the report,
            it may be possible to substitute descriptive information.

         Analytical Results

         -   Attach sample data and quality assurance data.  This may be presented as tables here,
            with pertinent information summarized in the  body of the report.
Inspection Report Evaluation Guide	

The organization and format of an inspection report can vary based on the practice of the office
or program, the particular circumstances of the inspection, and the individual writing style of the
report writer.   No matter  what form  the  report takes,  however,  the  report  should contain
information about  the  facility  or site inspected,  a  detailed description  of specific  inspection
activities  that were performed, and substantiating information on any suspected violations that
were  observed.

Exhibit 17-1 is an Inspection Report Evaluation Guide which contains questions that should  be
answered  by each inspection report, regardless of the organization or format the report follows.
Note that  being able to answer all of these questions is a sign of a high quality inspection, as  well.
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                                      EXHIBIT 17-1
                       INSPECTION REPORT EVALUATION GUIDE
The organization and format of an inspection report can vary based on the practice of the office
or program, the particular circumstances of the inspection, and the individual writing style of the
report writer. No matter what form the report takes, however, the report and its attachments should
contain the answers to the questions which follow.
Basic Inspection Information	

Who prepared the inspection report?

Who signed the inspection report, and on what date?

Who performed the inspection (all participants)?

What is the name and location of the  facility/site?

What is the facility/site's mailing address and  telephone number?

What is the name and title of the responsible official who was contacted?

What was the reason  for the inspection (e.g., routine, response to a complaint, for cause)?

What are the names and titles of all of the government personnel who participated in the inspection?


Entry/Opening Conference	

What are the facts  about the  entry (e.g., date,  time, entry location, agent-in-charge)?

Is there documentation that proper entry procedures were followed?

Were all required notices and credentials presented?

Is there documentation that  facility  officials  were informed of their right to claim information
confidential?

Were there any unusual circumstances about gaining consent to enter (e.g., reluctance, attempts to
limit inspection scope, attempts to place special  requirements on inspectors)?  How  were they
handled?

Who was present at the opening  conference? What topics were discussed?
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                                EXHIBIT 17-1 (Continued)
Background on the Facility/Site
What type of facility/site is it?

What types of activities and operations take  place at the facility/site?

Who owns the facility or site (e.g., corporation, proprietorship, partnership,  Federal or State
agency, non-profit organization)?

How many years has the  facility been in existence?

How many employees are there at the site?

Have any major modifications been made  to the  facility?   Are any  future  modifications  or
expansions planned?

At what level of capacity is the facility operating?  How many shifts? How many hours per day
and  days  per  week?   What relationship does this  information have to  the inspection that was
performed?

Which operations/processes/activities at the facility  were examined during  the inspection?

Which operations/processes/activities at the facility  were not examined?


Inspection Activities	

Records Inspection	
Is  there a general description of how records are kept at the  facility?

What was the purpose of reviewing records?

What facility records were reviewed?

How were the specific records selected for review (e.g., was an auditing technique  used, were all
records reviewed)?

Are  records that were photocopied or data manually copied from records adequately identified
and documented?

Were any suspected violations found? (Each should be fully documented, making sure that all of
the information required  by  the section below on suspected violations is included.)
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                                EXHIBIT 17-1 (Continued)

Physical Sampling	

What  was the inspector's sampling plan for the facility/site?

What  physical sa.mples were collected at the site?

Are the sampling techniques used adequately explained?

Are all  samples clearly tied to an  identification number, location, purpose?

Are sampling conditions and other physical aspects of the  sample (e.g., color, texture, viscosity)
described?

Were  any  deviations  from  the  sampling plan  and/or standard  operating  procedures (SOP)
adequately explained and documented?

Are chain of custody procedures documented?

Are the results of laboratory analysis clearly  presented?

How do the sample results compare  to permit limits?

Illustrations and Photographs	
Are  photographs  taken during the inspection referenced? Properly documented?

Is there some information about the inspection that could be made easier to understand through
a diagram or sketch in the inspection report?

If sketches,  diagrams, or maps are used, is the scale and/or other relationships shown clearly?

Interviews	

What are the names and  titles of facility officials and  other personnel who were interviewed?

Are  their statements clearly summarized?

What are the names and addresses of any other individuals  who  were interviewed  or who were
witnesses?

Closing Conference	
Is there documentation that required receipts for samples and documents  were provided?

Is there documentation that facility officials were given an opportunity to make confidentiality
claims?

Are statements the inspector made to facility officials regarding compliance status, recommending
actions to take, or other  matters noted?
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                                EXHIBIT  17-1 (Continued)
Documentation of Suspected Violations
The heart of the inspection report is really the documentation and substantiation of suspected
violations, which allows  the Agency to determine whether a violation occurred,  how and  why it
occurred, and its seriousness.  This  substantiating information includes all of  the evidence  of
various kinds that has been collected.  In an actual inspection report, some of the answers to the
questions on the preceding pages might be answered in the  portion of the  report which discusses
the evidence collected and other particulars regarding each suspected violation.

The inspection report should answer  the following questions for each suspected  violation.

Documentation of Suspected Violation

What regulation is suspected to have  been violated?

What information proves that the cited regulation applies to the facility/site?

Using the elements  of the regulation as a guide, what  information proves that  the  suspected
violation occurred?

What sampling methods (if appropriate) were used to  determine that the  violation occurred?  Are
any deviations from sampling methods adequately explained?

What information shows that possible exemptions to the rule do not apply?

Cause of Violation	

Note:    Not all programs require this information, but it  may be useful  even where not required
         for such purposes  as negotiating  an appropriate remedy and penalty and for planning
         future  inspections.  Causal  information must be  stated carefully  so  that it does not
         provide the  violator with an excuse for the  violation.

What information documents the possible cause of the violation (e.g., direct observations of guage
readings, production  logs, physical appearance of materials, statements by facility  personnel)?

Is there any  supporting information confirming/disapproving a possible claim of an  upset or other
exempt activity?
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                                 EXHIBIT 17-1 (Continued)
Other Mitigating and Aggravating Factors

The  level of enforcement response is based on  the  seriousness of the violation.   Civil penalty
amounts are based on the gravity and circumstances of the violation, which is usually a calculation
of the extent of the violation (e.g., amount of material involved) and the extent of the actual or
potential harm that was or could be caused by the violation.  This base  penalty can be adjusted
upward or downward based  on such factors as past  compliance history, or efforts made by the
facility  to correct the violation

The  inspection report should contain information that will support the appropriate determination
of the  seriousness and extent of the  violation  as well as other information that might be useful
in penalty calculation.

What is the seriousness of the violation (e.g., amount of emissions, length  of time of excess
emissions, nature of emissions, location of source,  perceived public impact)?

What harm resulted or  could result from  the violation?

What efforts did the facility make to correct the violation?

How difficult  will it  be to comply (e.g.,  availability of  technology, cost of complying,  time
required to correct the  violation)?

What is the facility's  past compliance history?
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                                   17B  OFFICIAL FILES
The official  files  related  to  an  inspection  or  investigation  comprise  the  Agency's  legal
documentation of its activities. All original documents, data, and evidence related to an inspection
become part of the official  records and  should be treated as potentially admissible evidence in
legal proceedings.  Further, the opposing side in an enforcement proceeding is likely to have
access  as part of the discovery process.  In criminal investigations, the Agency may turn over to
the opposing side  literally every scrap of paper with a note jotted on it  in order to comply with
the Jencks Act.

The inspector should always maintain a  diligent  and professional manner in  recording notes of
conversations, planning meetings,  interviews, inspection observations, sample  and data  collection
activities, and interactions with individuals related to the project.  These notes  should be prepared
immediately,  or as soon after  the interaction or observation as is possible, to avoid loss  of
important details.   All such records should be dated,  legible, and contain accurate and complete
documentation.  Their  language should be objective, factual, and free of personal feelings or
inappropriate information.   Avoid  recording personal or  irrelevant  information  where  this
information may become part of official records.
Components  of the Official Files
Historical Records
Historical records; related to a project are probably already contained in the official files for the
facility being  investigated.  These records  may  include  permit  applications and associated
documentation; inspection plans and reports from previous inspections; reports of laboratory data
from samples collected during previous inspections or submitted by the facility; site maps, plans,
drawings, and descriptions; and photographs, photocopied records, and other physical samples or
evidence about  the facility.  All of these  records are available to authorized inspection team
members, and should  be used  to  provide a background of knowledge about  the facility and  its
history with the  Agency.  This information will often be valuable in planning an inspection.

The Inspection File	
The inspection file normally contains all of the records associated with an inspection.  This file
is  reviewed by case development personnel as part of the evaluation of whether an enforcement
response should be made to potential violations identified during the inspection, and if so, what
type of enforcement response should be made.  A missing required inspection notice or incomplete
chain  of  custody record, for example,  could jeopardize the Agency's  ability to successfully
prosecute a violation.
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There  are  differences in statutory  requirements  as  well  as  program  and Regional  policy  and
practice, so no one list of file contents will be appropriate for all situations. The list  of contents
which  follows can serve as a guide to the types of records that should be kept in the inspection
file.

     •   Investigation requests (if issued).  If a written request was issued by another office (e.g.,
         Headquarters or Regional  program office) to conduct the inspection, a  copy should be
         included  in the file.

     •   Communications. For each inspection, communications may occur in many forms  and
         among many individuals.   Copies  of all  official correspondence, possibly including
         notifications of intent to conduct an inspection (both to the facility and to the State),
         requests for data, and informational  correspondence, should be included in  the official
         files.  Records of telephone and personal conversations also should be included.

     •   Notice of Inspection.   If  the authority in  the  statute  under which the inspection  was
         conducted requires presentation of a notice of inspection, the inspection file must contain
         evidence  that a written notice of inspection was presented.  Case development personnel
         will review it to ensure  that the inspection adhered to the terms specified in the notice.

     •   Verification of Credentials.  Some EPA  statutes  also require  that an  inspector present
         appropriate  credentials  to  the  owner, operator,  or agent in  charge  of the inspected
         premises.  Therefore, the inspection file should contain  evidence that proper credentials
         were presented.

     •   Inspection Confidentiality Notice. TSCA requires that  facility officials  be informed of
         their right to claim inspection data as  confidential business information (CBI).   For all
         TSCA inspections, the file should contain a copy of the  CBI notice.  It will be reviewed
         for proper signatures and  dates, as well as  completeness.

     •   Declaration of Confidential Business Information  and  TSCA  Confidentiality Clearance
         References.  These items are contained in the inspection file when materials have been
         claimed as confidential.  The Declaration collected during the inspection will be reviewed
         for signatures, dates, and a complete  listing of all documents and samples for which  CBI
         was claimed.   The Clearance References will be  checked to ensure that all  individuals
         who handled or will handle TSCA-CBI held the appropriate clearances.

     •   Receipt for Samples and  Documents.  A receipt must be  issued  for  all samples  and
         documents  collected during inspection under some EPA  statutes (RCRA,  CERCLA,
         TSCA); it is good practice  under aU  statutes.

     •   Inspection (Project) Plan.   The plan will be reviewed  to ensure  that it presented  the
         objectives,  scope,  logistics, and  schedules  for  the  inspection.   Inspectors should  be
         prepared  to explain the  inspection rationale  and any deviations from the plan.

     •   Narrative Inspection Report.  Generally,  a copy of both the draft and final  versions of
         the inspection  report, including attachments, should be included in the  inspection file.
         However, some programs and  Regions may have specific  procedures for  review  and
         retention of draft reports.  The final report  will  be  reviewed by  case  development
         personnel   for  factual   information,  professional   judgments,   objectivity,   and
         comprehensiveness.
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•   Inspection Report  Form.  If the program  has  an inspection form or checklist that is
    completed for each inspection, a copy should be  included in the file.

•   Other Evidence.   Other evidence that should be kept in the  official  files  includes
    photographs,  copies  of documents  and records,  statements, affidavits,  drawings and
    sketches, etc., collected during the inspection.

•   Custody Records.  There should exist a complete inventory of sample  tags and  seals,
    chain of custody records, and  related materials  that demonstrate  the traceability and
    proper identification of all samples taken during an inspection.  Chain of custody records
    include all of the following  items:

    -   Official Chain  of Custody Record forms used to record the custody  of all samples
       and other physical evidence collected during an inspection,

    -   Copies of Receipt for Samples forms (for RCRA, CERCLA, and TSCA samples) that
       were  provided  to  the owner or operator of  the facility,

    -   Copies of letters authorizing laboratories to dispose of samples related to the project,
       and

    -   Sample  tags or labels from samples that have  been destroyed by the  laboratory.

•   Laboratory Analyses.  Test results from any laboratory analyses made in connection with
    the inspection should be included in the inspection file.

•   Subpoena.  If a subpoena was issued,  a copy must be included in the inspection file.  It
    will be reviewed to ensure that it was issued properly and that there was compliance with
    the requirements of the document.

•   Warrant.   If  a warrant was issued,  a copy  of the  warrant application, warrant, and
    inventory should be  in the file.  These will be reviewed  to ensure  the warrant was
    properly  issued and that the inspection  complied  with its  terms.

•   Field Logbook. The bound field logbook used by  the inspector to record  his or her field
    activities on  the inspection  becomes  part of the  official  file (although  it may not be
    physically  located  in the  file  itself).    Once  completed,  the logbook becomes  an
    accountable document, it does not belong  to the inspector.
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NOTES
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                               17C  EVIDENCE AUDITING
Cases developed by EPA and referred to the Department of Justice for potential civil litigation
must be based  upon rigorously documented evidence and supporting data in order to minimize
delay in filing, facilitate discovery proceedings, present a convincing case for the EPA and DOJ
attorneys engaged in pre-trial negotiations, and finally, to prevail in the courtroom.  Prior to
development  of the evidence auditing program,  EPA  Headquarters  and  Regional  staffs  had
followed widely  varying approaches to the preparation of referral  packages and  supporting
documentation.

The  types and  volume of documents relating to a case are often overwhelming. For  instance, a
single  hazardous waste  case  may  involve 100,000  or  more  documents.   The  attorneys  are
confronted with difficult tasks of assembling and organizing all documents, preparing witness lists,
and extracting  information necessary  to conduct interrogatories and depositions.

Documents supporting EPA civil referrals  may originate in Regional and Headquarters program
offices, State files and/or contractors performing support services for  the Agency.  In addition,
records obtained from prospective defendants often are so voluminous and/or  disorganized that
it  is difficult for  the  EPA/DOJ case management team  to  effectively review them.  Lack of
sufficient assembly and organization of this material becomes obvious at the time of discovery or
during settlement and  negotiation discussions.

The  consequences  of  all  these factors   may  include  unknowingly exposing case  strategy,
inadvertently releasing privileged or confidential material, or being unaware of documents that
could strengthen or weaken the case. The Agency position is vulnerable to  attack if the EPA/DOJ
case management: team is not assured  of both the integrity of the supporting documentation,  and
a case file that is organized for  rapid and  efficient access.
Evidence Auditing Program	

An evidence audit includes the review, inventory and organization of the  documents that make
up  a  case  file.   The audit of a simple case may involve  only  the  assembly and handwritten
compilation of the documents present and a review of the case files to ensure that all pertinent
documents are present.  The audit of a highly complex case may involve, in addition to assembly
and inventory of documents, computerized listings and sophisticated categorization, construction
of evidence profiles, and elaborate  formatting as an aid to understanding the material content.

The evidence audit system  is designed to: (1) establish an overall case document control system,
(2)  provide quick  and complete  access to records, and  (3)  provide a  means  for  assuring
admissibility of the evidence.  The  system is  flexible  to accommodate the increase  of material as
the case progresses, and is  adaptable to changes in case strategy.
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With the advent of the hazardous waste enforcement programs and the conduct of a major portion
of the Agency's  hazardous  waste  site investigations  by contractors, the National Enforcement
Investigations Center was assigned  responsibility for making evidence audits available to Regional
and Headquarters staffs for enforcement case referrals developed as a  result of these activities.
Evidence audits  lend  a  major advantage  to the case development process by enhancing the
supportive rationale and development of legal strategy of cases; detecting flaws  in evidence with
a timeliness that permits repair; avoiding presentation of questionable evidence in the courtroom;
and perhaps most importantly, conserving the time and case handling capacities of the attorneys
and Regional and Headquarters staff.

The NEIC, through its evidence audit capability, has  developed an additional litigation support
service to assist Regional case management teams with large and complex cases.   The procedures
provide for assembling records; categorizing, marking, and inventorying documents; and making
microfiche copies.
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                           17D  OFFICE SECURITY MEASURES
Security measures must be taken to protect all inspection data (including documents, samples, field
notes, and other documentation) collected by the inspectors.  In addition to the routine security
measures that are  always taken  with  regard to  inspection  data,  the  declaration of  certain
information  as TSCA confidential business information  (TSCA-CBI) imposes a further layer of
security procedures designed  to control access to the information within the Agency.

Routine Inspection  Data	
Routine inspection documents and field notes must be kept in a locked file cabinet when not in
actual use.

Confidential Business Information	
Sometimes  facility officials  will claim data  on a non-TSCA  inspection as confidential business
information.  While Regional and office policy may vary, usually only personnel authorized by
the Regional Administrator, Division  Director, or Branch Chief are allowed  access to the  file.

An access log should be made for all transactions.

Copies of information marked  "trade secret" and/or "confidential" should not be made without
explicit authorization from one of the individuals named above.

Requests for access to confidential information by any member of the public, or by an employee
of a State,  local, or Federal  agency  are generally handled according to the procedures contained
in the  Freedom of Information Act regulations (40CFR).  All such requests are referred  to the
responsible Regional or Headquarters  organizational unit.

TSCA-CBI Secmritv Procedures	
In addition to all the routine security measures that  must be taken for any  inspection data, the
further procedures discussed below must be followed with regard to information declared TSCA
Confidential Business Information.

     •  If the inspector has confidential business  information in his or her possession from an
        inspection when he or she returns to the office, the inspector should check it in with the
        Document Control Officer (DCO) immediately upon his or her arrival.

     •  The Document Control Officer should be informed of any physical samples that were
        declared confidential.  It is the responsibility of the DCO to notify the laboratory of the
        Document Control Number (DCN) assigned to the  sample which should appear on the
        sample chain of custody and laboratory analysis reports.   If a copy of the  laboratory
        analysis is sent to  the firm, it must be sent  by registered  mail in a double envelope.

     •  After  the documents have been logged  in by the DCO,  they must then be handled in
        accordance with the  procedures detailed in the TSCA-CBI Security Manual.
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NOTES
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                                       CHAPTER 18

                                LABORATORY ANALYSIS
An inspection is not complete until samples that were taken have been analyzed and the results
reported and interpreted.  In many cases, the determination as to whether a suspected violation
really did occur cannot be made without confirming analytical results.

The first section, of this chapter provides inspectors with a general understanding of what happens
in the laboratory, guidance that will aid in projecting the costs and time involved in carrying out
sample analysis, and suggestions for when consultation and coordination with laboratory personnel
is particularly important.  The second section of this chapter discusses interpretation  of analytic
results.

To become more familiar with laboratory operations and how samples are analyzed, inspectors are
encouraged to tour Regional laboratory facilities.
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NOTES
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                            18A LABORATORY OPERATIONS
EPA samples are analyzed either by an EPA laboratory or by a laboratory under contract to EPA.
This section on laboratory operations is based on the work of the EPA's own Environmental Services
Division (ESD) laboratories located in each Region. However, much of the discussion is also relevant
to working with other laboratories which analyze samples from EPA  inspections.
Laboratory Functions	

The  EPA laboratories carry  out a variety of functions related to the conduct  of compliance
inspections as well as to other environmental monitoring projects. Sample analysis involves preparing
the samples, conducting specific analyses, calculating and verifying the data, and preparing reports.
The types of analyses performed vary in degree of complexity and therefore in the time and effort
required to perform them.  Generally speaking, the complexity of a single analysis increases with the
number of answers that can be obtained from it.

In addition  to the analysis of samples  themselves, the  laboratories must carry out many related
activities and procedures.  Examples of  related activities include maintaining quality assurance and
quality control, maintaining effective chain of custody, storing samples, disposing of samples and
waste (some of which is classified as hazardous), and keeping up with maintenance requirements on
supplies and instruments.
Advance Scheduling	

The laboratories respond to demands from multiple EPA programs.  Since the laboratory has limited
time, personnel, and equipment, advance scheduling is essential if samples collected on an inspection
are to be analyzed promptly.

Each Region and program has its own policy and procedures regarding the use of laboratory capacity.
In some cases, at least general  schedules for analysis are  worked out between Regional inspection
program managers and the laboratory on a quarterly basis, with refinements made as the actual time
grows nearer.  Depending on the needs  of a particular inspection and the Region's procedures, the
inspector (or team leader) assigned may need  to make additional,  more detailed arrangements
regarding sample analysis. In any event,  inspectors should become familiar with the Region's policies
and procedures for arranging  for sample analysis and be  sure that anticipated analytic work  is
scheduled well  in advance with the appropriate laboratory.
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Relationships with Laboratory Personnel
Laboratory personnel are technical experts who  can  be called upon to assist inspectors  with all
aspects of sampling.  They can provide technical advice on such matters as developing sampling
plans, determining  the types of samples that will provide the most  usable data, and interpreting
analytical data. Inspectors are encouraged to use laboratory staff as a resource who can help assure
that sample collection,  analysis,  and interpretation meet the objectives  that are set out for an
inspection.

Laboratory personnel should also be consulted on technical questions such as requirements for sample
preservation in the  field, holding times, and volumes  needed for various analyses. Inspectors will
also be involved in quality assurance/quality control activities coordinated through laboratory staff.
Projecting Sample Analysis Time and Costs	

Inspectors should factor both an estimate of the costs of analyzing samples and the time it will take
to receive results into their advance planning for an inspection involving sampling.  Cost estimates
will help budget the inspection, and may result in changes in the number of samples collected or the
scope of the inspection. Understanding how long it is likely to take for particular types of samples
to be analyzed will allow the inspector to make realistic projections of when results can be expected
back from the laboratory.  If quicker service is needed, such as in an emergency situation, special
arrangements may be possible under the policies and the procedures.

Exhibit  18-1  on pages  18-10 and 18-11 shows  the average times and  fees at two different
laboratories for analyzing various types of samples commonly collected by EPA. When more specific
information is not available, this data can help in making cost and time projections.
Data Quality Objectives	

One of the functions of the laboratory is to provide data from the analyses conducted on samples
collected in the field.  During the planning phase, the data user must determine the quality of data
required from the inspection. Such statements of data quality are  known as Data Quality Objectives
(DQOs) and are part of the Quality Assurance Project Plan prepared in  advance of the sampling
inspection. The DQOs are qualitative and quantitative statements of the quality of data required to
support specific decisions or regulatory actions. The laboratory is responsible for producing data of
known quality consistent with that prescribed in the DQO.
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The program office, with laboratory input, will select the analytical methods, instruments, parameter
detection limits, and other analytic requirements which are capable of producing data of the quality
required by the DQO.   The quality of a data set is defined in terms of precision, accuracy,
representativeness, completeness,  and comparability. The significance of each of these measures
differs according to their applicability to the laboratory and particular data set.

     •  Precision and Accuracy.  Precision and accuracy are quantitative measures that characterize
        the amount of variability and bias inherent in a given data set. Precision refers to the level
        of agreement among repeated measurements of the same characteristic (reproducibility).
        Accuracy refers to the different closeness of a measured value to the true value of the
        parameter  being measured.  Bias is the difference between the average value of a set of
        measurements of a standard and the reference value of a standard.  The confidence level
        is an estimate of the reliability of a sample value.

     •  Representativeness.  Representativeness refers to the degree  to which the data collected
        accurately  reflect the population, group or medium being sampled.

     •  Completeness.   Completeness refers to the amount of data that is successfully collected
        with respect to that amount intended in the study design.

     •  Comparability. Comparability refers to the ability to compare data from different sources
        with a degree of confidence.
Chain of Custody Procedures in the Lab	

Chain of custody procedures initiated by the inspector in the field are continued in the laboratory
to assure sample integrity.  A brief description of laboratory chain of custody procedures follows.

Initial Receipt and Logging	
When samples are received in the Regional laboratory, they are logged into the laboratory sample
tracking system.  It is important that the documents accompanying the samples be complete and
clear in order to expedite the log-in process.  If the documents are not complete or clear, analysis
of the samples may be delayed until the discrepancies  are resolved.

Generally, the sample custodian will:

     •   Verify  that there is a sample for every sample number on the Field Sample Data Sheet.
         The number and types of sample containers are noted and are checked to ensure the analyses
         requested are appropriate for the containers  present.  An  in-house form is  prepared to
         document this step.

     •   Document whether the individual samples, boxed or ice chests, were sealed upon receipt,
         and note in the "remarks" section of the logbook the condition (if damaged) of the sample
         container.
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     •  Sign all chain of custody records, and identify the date and time of sample receipt.

     •  Log all samples into the master logbook and computer file giving the following information:
        sample  log number; source  of  sample; station description; date and time samples were
        collected; if sealed, yes or no; date and time received; received by; received from; and any
        other pertinent remarks.

     •  Place sample numbers on all sample containers and secure samples in the locked-refrigerated
        custody room.

     •  After sample logging is completed,  provide the computer print-out sheets listing  the
        required analyses for all samples to each project chemist for placement in the project file.
        Computer data reporting sheets will be given to the appropriate project chemists.

     •  Maintain a copy  of the field custody form in the laboratory files.  The original will  be
        sent to the individual(s) responsible for the sample collection.

Project Analyst/Chemist Access  and  Control

Procedures vary, but in general, access to the locked room where samples are stored (or the "custody
room") is strictly controlled.  Analysts or chemists log samples in and out and are  responsible for
custody of the samples during analysis. Original samples are not left outside the locked custody room
during non-duty hours unless all analyses are complete and the sample is to be discarded.  If the
laboratory  does  riot have  a custody  room, appropriate procedures to maintain the security and
integrity of the samples are employed.

The  analyst  keeps a  data  logbook  documenting  the  date  of analysis, type  of analysis, and
identification  numbers.  When finished with the analyses, the analyst returns the sample to  the
custody room and completes the appropriate log. The custody room log is maintained as a permanent
file;  it is potential evidence in an enforcement case.

Custody information is also generally maintained in the master chemistry and microbiology logbooks,
master computer sample log, the  chemistry and microbiology field logbooks, and in the individual
analytical data books.
Laboratory Analysis	

Inorganic Sample Preparation and Analysis

Typical inorganic sample analysis includes field parameters such as pH, conductivity, and turbidity
measurements.  These analyses require only instrument calibration and are some of the most rapid
parameters that can be measured.  If sample preparation and calibration are included, about ten
samples of each parameter can be done per hour.  Methods that require titration techniques, such
as total alkalinity or hardness, acidity, chloride, sulfide, sulfate, and carbonate, require reagent
standardization and accurate sample measurement. They are reported fairly quickly given that for
each parameter approximately ten samples can be analyzed per hour.
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Oxygen Demand. Solids, and Nutrients

The oxygen demand analyses, Biochemical Oxygen Demand (BOD) and Chemical Oxygen Demand
(COD), require minimal equipment  to perform, but require a large amount of a chemist's time.
They are both titration techniques, using colorimetric endpoint detection.

The solids parameters require a balance (accurate to 0.0001 gm), a drying oven, and a muffle furnace
capable of achieving temperatures in excess of 400°C. Total Dissolved Solids (TDS) and Total Solids
(TS) need to be evaporated overnight, while two hours' drying time is enough for Total Suspended
Solids (TSS), Total Volatile Solids (TVS), or Total Volatile Suspended Solids (TVSS). The amount of
hands-on time needed for TDS,  TSS, and TVS for ten samples is about 1 hour; for TS, 30 minutes;
and for TVSS, 90' minutes.  Percent Total Solids needs only about 15 minutes for preparation of ten
samples, but needs to dry overnight.

Most of the nutrient parameters are  analyzed on the Technicon Auto Analyzer II (AAII). Four of
the parameters, dissolved orthophosphate, nitrate-nitrite nitrogen, nitrite nitrogen, and ammonia
nitrogen are analyzed simultaneously. Cyanide and fluoride are also analyzed after calibration on
the AAII.  Total Kjeldahl nitrogen and total phosphorus  require a digestion  step before final
determination.  Kjeldahl nitrogen is then analyzed by the AAII,  but total phosphorous  can be
determined either manually using  a spectrophotometer or by  AAII.  For  Kjeldahl  and total
phosphorous analyses, about six  hours are needed for ten water samples, due to the digestion time.

Metals	
Metals analysis involves  a great deal more preparation than any of  the previously mentioned
parameters.  A digestion stop is necessary for all metals analyses, except drinking water samples,
and that step can require a great deal of time. The samples are then diluted to a known volume
and then run on the atomic absorption spectrophotometer (AAS), or inductively coupled plasma
atomic emission spectrophotometer (ICP-AES).

Typical metal analysis would include testing for chromium lead, nickel, silver, tin, etc.  The amount
of time needed to prepare and analyze ten water samples for the priority pollutant elements, which
consists of 13 different metals, is about 66 hours. With tissue samples,  the amount of preparation
time can increase by a factor of four.  Accordingly, a set of ten fish tissues for a hazardous  waste
to meet a list of 24 metals  would probably take about two weeks to complete.

Extraction procedure toxicity (EP TOX) testing for metals in soils or sludges requires a large amount
of time for extracting the  soils and the repeated  checking of pH.  For this reason, ten EP toxicity
soil samples  require about  eight days to complete.

Organic Priority Pollutants

The organic  chemicals analyses as performed by the Gas Chromatograph (GC) or Mass Spectrometer
(GC/MS) give several parameters for each sample run.  The main limitation as to the number of
compounds  that  can be determined at one  time  is  the number of compounds in the calibrating
standard, and the quality of the resulting chromatogram. The GC/MS can be used for the analysis
of pesticides, PCBs, herbicides, and  volatile  organics analysis (VOA).

A high performance liquid Chromatograph (HPLC) can be used for  any compounds that are too
unstable to be analyzed by GC. It is also useful  for compounds that have high boiling points and


                                           18-7

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tend to degrade on a GC column during analysis. The disadvantage of the HPLC is that it is not as
sensitive as a GC, nor is it as selective as a GC/MS for PNAs.

Purgeable halocarbons and trihalomethanes are also  analyzed on a GC.  The purge and the trap
method of separation is  used,  as  with a  VOA,  but  the  detector used  is  a  Hall Electrolytic
Conductivity Detector rather than a mass spectrometer.  The Hall detector can detect compounds
with halogen atoms, but not other aromatic (benzene) or aliphatic (unsaturated carbon and hydrogen)
compounds.
General Chemical Data Handling Procedures	

All raw analytical and instrument control data generated in the laboratory are entered into bound
data books, kept as strip charts, or stored as computer hard copy or magnetic media.

Information contained in these data logbooks includes the following:  parameter, project, date of
analysis, analyst,  sample  log number,  all calibration data,  all readout data, calculation, final
concentration, and quality control data.

Final results of all analyses are transferred  to a standard computerized report form and forwarded
to the requester with a cover memorandum.
Analytical Corrective Actions	

Analytical corrective actions include, but are not necessarily limited to, re-analysis,  calculation
checks, instrument recalibration,  preparation of new standards/blanks, re-extraction/digestion,
dilution, application of another analysis method, and additional analysts training. Most frequently,
these corrective actions will be initiated by 'the analyst at the  time  of analysis.  However, some
corrective actions are initiated subsequent to analysis based on evaluations performed by quality
assurance or laboratory personnel.

Corrective action will be taken at  any time during the analytical process when deemed necessary
based on an analyst's judgment or when quality control data indicate a need for action.  Generally,
corrective action will be  triggered by such  things as poor  analysis replication,  poor recovery,
instrument calibration problems, or blank contamination.

All data corrective actions will be noted on the appropriate log, chromatogram, strip chart or data
report.
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Disposal of Samples or Other Physical Evidence
The decision to dispose of samples or other physical evidence obtained is made on a case-by-case
basis after permission is obtained from the inspector or the inspector's supervisor.  Before  any
samples analyzed by the laboratory are  disposed of, laboratory  personnel should contact the field
inspector or the inspector's supervisor in writing, requesting permission to dispose of the samples.
The samples should not be disposed of until the appropriate official (the inspector or the inspector's
supervisor) provides permission in writing.

The following general guidance is offered for the disposal of samples or other physical evidence:

     •  No  samples, physical  evidence, or  any  other document associated with  a criminal
        investigation shall be disposed of without written permission from EPA's Office of Criminal
        Investigations and/or the Office of Regional Counsel.

     •  Quality assurance samples are routinely disposed of after the analytical results are reported.

After samples are disposed of, the laboratory sends the sample tags to the field inspector.  These
sample tags must be placed into, and maintained in, official inspection and investigation files.
Laboratory Waste Disposal Practices	

Laboratory wastes must be disposed of in a manner which maximizes personnel and environmental
protection, and minimizes the  risk of adverse effects.  All disposal practices must comply with
appropriate safety, health, and environmental regulations. Every effort should be made to minimize
the amount of chemical wastes  requiring disposal.

There are three general ways of disposing of laboratory wastes:  (1) disposal through the sanitary
sewer system; (2)  evaporation in chemical fume hoods; and (3) disposal at a regulated treatment and
disposal facility.  The method of disposal is dependent upon the:

         Nature of the waste
         Hazard potential of the waste
         Amount of the waste
         Availability of acceptable waste disposal method
         Applicability of waste disposal regulations under RCRA.
                                            18-9

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                                             EXHIBIT 18-1


                 AVERAGE  SAMPLE ANALYSIS TIMES AND  FEES
        Analysis
Time
                                Lab A
        Lab B
     Cost/Sample
Lab A
Lab B
•^
Chlorinated Pesticides
PCBs (estimation of Arodors )
Orqano - Phosphates
Combination Screens (of above analyses)
PCP (Pentachlorophenol)
Vdatiles in Groundwater Scan
(EPA Methods 601 .602)
Gasoline Contamination of Groundwater
(benzene, toluene)
Metals in Groundwater
ScanbvlCP
ORGANICS BY GC: VOLATILES
EPA Methods 601, 602
EPA Method 603
Pesticides & PCBs
^ (EPA Method 608)
2-3 weeks
2-3 weeks
2-3 weeks
2-3 weeks
2-3 weeks
2 weeks
2 weeks
2 weeks
2 weeks
2 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
3 weeks
$90.00
$90.00
$90.00
$95.00-100.00
$ 85.00
$100.00
$70.00
$95.00
$150.00 -180.00
$ 50.00 - 60.00
$120.00 - 135.00
"1
$160.00 -190.00
$160.00 - 190.00
$160.00 - 190.00
$160.00
$200.00- 225.00
$225.00
$90.00
$200.00
$100
$160.00
$160.00 ^
00
I
                                                                            October 1988
          NOTE: Price range represents costs for aqueous and non-aqueous samples.

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                                         EXHIBIT 18-1 (Continued)
                   AVERAGE  SAMPLE  ANALYSIS  TIMES AND FEES
                                     (Continued)
          Analysis
                        Cost/Sample
                                Lab A
Lab B
Lab A
Lab B
r~
ORGANICS BY GC/MS
Vdatiles (EPA Method 624)
Add Extractabies (EPA Method 625)
Base Neutrals (EPA Method 625)
Add/Base Neutral Combination (EPA
Method 625)
GC/MS Lforary Search for Unknowns
appearing in 12-15 (each peak)
Dtoxin (qualitative, in addition to Base/
Neutral Analyses)
EP - TOXICITY LEACHATE
Extraction
Inorganic Analyses (Barium, Lead)
Organic Analyses (Endrin, LJndane)
PCB's
Oils
Water
Soil/Sold Waste
Metals by AA or ICP (e.g.. Chromium or lead.
Note: these are cheaper than some of the
other metals)
^

2 weeks
3 weeks
3 weeks
3 weeks
2 weeks
2-3 weeks

2-4 weeks

3 weeks
3 weeks
3 weeks
2 weeks

3 weeks
3 weeks
3 weeks
3 weeks
Donl do
Dontdo

3 weeks

2-3 weeks
3 weeks
3 weeks
3 weeks

$220.00 - $235.00
$205.00 - $230.00
$260.00 - $285.00
$400.00 - $450.00
$ 10.00-$ 10.00
$186.00 - $230.00

$100.00
$151.00
($165.00

$60.00
$60.00
$75.00
Water: $10.00 prep. chrg. +
$13.(XVmetal
Solid/Solid Waste: $11.00
moisture + $10.00 homogeniza-
tion + metals prep.$20.00 +
11300/metal
™
$225.00 - $275.00
$275.00 - Donl do
$325.00 - Donl do
$475.00 - $525.00
Donl do
Donl do

$125.00
$155.00
$280.00

$100.00
$160.00
$190.00
Water: $10.00 digestion ol
sample + $1 1 .00 per metal
SolkVSofeJ Waste: $15.00
digestion of sample - $14.00
per metal
^
oo
I
                                                                                 October 1988
         NOTE: Price range represents costs for aqueous and non-aqueous samples.

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NOTES
 18-12

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                               18B  LABORATORY RESULTS
A variety of reports can usually be generated from sample analytical results.  The formats and types
of reports available will generally depend on the computer capabilities of the laboratory performing
the  analysis.

Because of the many different ways in which analytical results may be reported, no single set of
instructions can be developed to aid inspectors in reading  and interpreting analytical results; this
can best be learned  through practical, hands-on experience.  However, the ability to read and
interpret analytical  results and incorporate them into the inspection report is a key skill  that
inspectors should have.

Inspectors should know:

     •   What routine report formats are available from the  laboratories they are most likely to
         use.

     •   What other  report format options are available and the purposes for which they are most
         useful.

     •   How to read analytical results presented in commonly used report formats.

     •   How to identify and interpret key information from an analytical report (e.g., germane to
         substantiation of a violation or of compliance).

     •   How to prepare a summary table or other graphic representations of the key data that will
         be readily understandable to case development personnel and other readers.

     •   How to incorporate salient points from the analytical results into the narrative inspection
         report, including summary tables or charts as appropriate.
Laboratory Resulits in Inspection Reports	

The results obtained by the laboratory should be incorporated by the inspector into the inspection
report.  The inspection report should be comprehensive, providing a perspective on the inspection
that takes into account engineering variables and observations as well as  data validation  and an
interpretation of the results.   The inspection report should confirm that the  sampling objectives
have been met and explain any outliers in the data.  The data results should be evaluated statistically
to determine their significance, and the results should be converted into compliance terms.
                                           18-13

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Data Evaluation
When the laboratory results have been obtained by the inspector, the data must be evaluated before
any conclusions can be drawn.  Data evaluation is usually conducted through statistical analysis.
Statistical  analysis provides methods of treating data so that the maximum information can be
obtained with a predetermined risk of drawing false conclusions. No method can draw conclusions
from experimental data with a zero risk of error.

There are a variety of statistical procedures available for analyzing data.  However, the inspector
is advised to be aware that manipulation of identical data points through alternate statistical methods
can produce different and sometimes contradictory results.

For example, the following data points have been obtained from a metals analysis for lead.  The
purpose of the data evaluation is to determine if the collected samples exceed the drinking water
standard of 0.05 mg/1 for lead.

                                Table 18-1 - Data Analysis
                   Sample Number                      Concentration (me/H

                        1                                      .020
                        2                                      .048
                        3                                      .049
                        4                                      .045
                        5                                      .049
                        6                                      .054
                        7                                      .052
                        8                                      .048
                        9                                      .080
                      10                                      .055
                      Sample mean      = 0.050 mg/1
                      Sample maximum  = 0.080 mg/1
                      Sample minimum  = 0.020 mg/1


In this case, calculation of the sample mean determined that the mean concentration did not exceed
the standard for lead in drinking water.  However, four of the samples did exceed the standard for
lead, including the sample maximum which was recorded at 0.080 mg/1. If the sample maximum is
considered an outlier (not representative of the sample population) and discarded from the analysis,
the new sample mean is 0.0467 mg/1 which does not exceed the standard.
                                          18-14

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                  Table 18-2 - Sample Maximum Considered As An Outlier


                  Sample Number               Concentration (mg/H
                       1                                .020
                       2                                .048
                       3                                .049
                       4                                .045
                       5                                .049
                       6                                .054
                       7                                .052
                       8                                .048
                       *                                 *
                     10                                .055

                         Sample mean = 0.0467 mg/1

Unfortunately, the sample minimum could  also be considered an outlier and might have  to be
discarded from the data analysis.  If the sample minimum is discarded from the sample population,
the new calculated value for the sample mean is 0.0533 mg/1.  This value does exceed the standard
for lead.

                  Table 18-3 - Sample Minimum Considered As An Outlier


                  Sample Number                Concentration (mg/1)
                      2                                .048
                      3                                .049
                      4                                .045
                      5                                .049
                      6                                .054
                      7                                .052
                      8                                .048
                      9                                .080
                     10                                .055
                         Sample mean = 0.0533 mg/1


Manipulation of the data in  the examples has produced at least three contradictory results.  The
appropriate method for statistical analysis should be selected by the inspector after discussions with
the program staff. Generally, procedures for statistical analysis have been determined on a program-
specific basis and should be followed when available.  If there is some question as to whether or not
the case of a  procedure is appropriate, interaction with the laboratory staff can help to determine
the most correct method.
                                          18-15

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NOTES
 18-16

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19 - Enforcement
  Proceedings

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                                      CHAPTER 19

                             ENFORCEMENT PROCEEDINGS
While not every inspection leads to a formal enforcement proceeding, inspectors must always be
aware that they may someday be called upon to testify about  what they did or observed.  The
procedures for documenting the various types of evidence discussed throughout this text are designed
to assure that the inspector is prepared for that day.  The civil and judicial litigation process is
discussed in detail in Chapter 6. Chapter 19A explains preparing for and appearing as a witness in
such a legal proceeding.  Because inspectors are often part of the  team involved in negotiating
settlements of enforcement cases, Chapter 19B provides techniques for negotiating effectively.
                                           19-1

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NOTES
 19-2

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                             19A APPEARING AS A WITNESS
Every inspector, at one time or another, is likely to be called upon to provide sworn testimony in an
enforcement case.  In the role of the witness in a civil or criminal enforcement proceeding,  the
inspector will  be seeking to provide testimony to support the government's case (for example, a
violation did occur, the defendant is the violator, and the evidence offered proves it).  An inspector
may also be subpoenaed for a deposition by the opposing side in advance of a trial or hearing as a
means of finding out more  about what information the government has.  When being deposed,  the
inspector answers the questions posed, but should not volunteer "extra" information not directly asked
for since that could unduly aid the opposing side's case preparation.

Serving as a witness is a difficult process,  particularly the first time.  Everyone has seen instances
in movies or television programs where a skillful opposing attorney was able to trap an unsuspecting
witness  into contradictory statements hurting the witness's credibility. Or a witness, under friendly
questioning, inadvertently reveals something helpful to the other side's case that is seized upon by
the opposing attorney and used to his or her side's advantage.

The purpose of this unit is  to provide an understanding of what it means to be a witness (or to be
deposed), and  to help the inspector prepare for when the  time comes to act in that role.  While  the
unit is primarily  oriented toward civil administrative and judicial proceedings, its principles  are
equally  useful for witnesses in criminal cases.
Federal Rules Governing Witnesses	

The Federal Rules of Evidence and Federal Rules of Civil Procedures govern the conduct of any
Federal civil proceeding. (While there may be some variations in State courts under State laws, the
principles will be comparable.)

Key rules related to witnesses in civil  proceedings are summarized below. An inspector seeking
additional details or wishing to obtain a copy of the Rules in full should consult with attorneys  in
the Regional counsel's office or, if in  Headquarters, the Office of Enforcement and Compliance
Monitoring.

Definition of Witness
A  witness is a person who gives testimony at a trial.  The witness  must testify from  personal
knowledge (Rule 602) and must give the testimony under oath or affirmation (Rule 603).
                                            19-3

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Type of Witnesses
There are four basic types of witness, as shown below. The rules of civil procedure govern whether
the information of each  of these types of witnesses can be protected from discovery, and whether
what they have to say or introduce into evidence is admissible.

     •   The Consultant.  A consultant can be protected from discovery if he or she is the behind-
         the-scenes coordinator of all of the other action in the case (Rule 26(b)(4) of FRCP).

     •   Expert Witness. An expert witness is one who has scientific, technical, or other specialized
         knowledge that would aid  the trier of fact (judge or jury) to understand the evidence or
         determine a fact at  issue. An expert witness can testify about facts, provide opinions based
         on facts not in evidence, and even present an opinion on the ultimate issue of the case
         (Rules  702,  704).   Although  not typically  directly related  to the performance  of an
         inspection, an  inspector with a particular expertise (e.g., toxicology, hydrogeology) might
         be called on to serve as an expert witness in an enforcement  case.

     •   Client or  Policy-Maker.  The client or policy-maker  for  EPA cases is  generally the
         supervisor(s) or manager(s) above the inspector (and others directly involved in the case).
         The knowledge such individuals have about a case is protected  from discovery under several
         different privileges, including:  (1) the attorney-client privilege, (2) the deliberative process
         privilege, and (3) the work-product privilege. (For an understanding of these privileges and
         whether they  might  apply to  an inspector in a particular instance, consult a Regional
         Counsel or Headquarters attorney.)

     •   Fact Witness.  A fact witness testifies as to what he or she learned through the use of his
         or her five senses (Rules 602, 701). This is the usual role for an inspector. Under the Rules
         of Evidence, a "foundation" must be laid prior to the inspector's testimony (See Chapter 8).

Competency	
Mental or moral conditions (e.g., infancy, intoxication, mental illness) do not automatically make a
witness incompetent. The trial judge makes a determination as  to witness competency on a case-
by-case basis (Rule 104(a)).  The only persons automatically excluded as a competent witness are the
presiding trial judge (Rule 605), or a jury member (Rule 606).

Credibility	
The credibility -- or worthiness of belief -- of the witness, is determined by the trier of fact (jury,
or judge if there is no jury).  Credibility  should not be confused with a witness' competency to
testify.  Competency  is determined by the judge, and credibility only becomes a factor when the
person is allowed to take the stand. After a  witness takes the stand and testifies, it is the trier of fact
who determines how much weight to give to the testimony.

Impeachment	
A principal tactic used by trial attorneys is to call into question the credibility of witness of the
opposing side.  The purpose of "impeachment" is to reduce or lessen the likelihood that the trier of
fact (judge or jury) will believe the witness' testimony.
                                            19-4

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There are no "motions to impeach" that can be offered by opposing attorneys, nor is there any formal
impeachment process.  Rather, impeachment only occurs in the mind of the trier of fact.  It is the
result of bringing out facts during cross-examination of the witnesses, or direct examination of other
witnesses, that tend to call into question the witness' credibility.

The  Federal  Rules of Evidence cover only a few of the  bases  for  impeachment;  others  have
developed  from common law  as  interpreted by  the Federal Courts.  The principal  bases  of
impeachment are:

     •   Biases or interest (e.g., family relationship, friendship, obligations, employments, debtor-
         creditor relationships, etc.)

     •   Lack of opportunity to  perceive (e.g., distance too great to observe the event).

     •   Inability to recollect (e.g., poor memory of specific details that cannot be refreshed because
         of incomplete notes and records).

     •   False testimony (e.g., the  witness testifies that he or she followed standard procedure, but
         records are produced showing otherwise).

     •   Corruption or likelihood of  false testimony (e.g.,  acceptance of bribe,  expression  of
         willingness to give  false testimony, subornation of perjury, etc.)

     •   Mental or physical incapacity, but not amounting to incompetency (e.g., drunkenness, poor
         vision, poor  hearing).

Hearsay Evidence	
"Hearsay" is an out of court statement offered in court for the truth of the matter asserted.

The  common  perception is that "hearsay"  evidence  is not admissible in court.  This perception
generally arises from the complexity of both what is and is not "hearsay," and the exceptions under
which "hearsay" evidence  can become  admissible.  In general,  the inspector should  know the
following key points:

     •   A verbal statement  made  to the witness  by the defendant,  or by  his representatives or
         employees, usually is admissible.

     •   Business records, written statements, and official reports made by someone other than the
         witness are technically "hearsay," but generally are admissible to the extent, and under the
         same exceptions to the hearsay rule, as oral  statements.
                                            19-5

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Depositions
One method used by the opposing side to obtain additional information about the Government's case
is to subpoena a key witness, such as a inspector, for a deposition.  A deposition is taken under oath
and is "on the record" for the case; a deposition may even substitute  for live testimony at the trial
in some circumstances.

When testifying in a trial setting, the  inspector will usually be brought to the witness stand by his
or her side's attorneys and undergo "friendly" questioning, at least during direct examination. At the
deposition, by contrast, the inspector is appearing in response to the other side's subpoena, and most
of the questioning will be done by the other side's attorneys in either a direct or cross-examination
mode. If the other side's attorneys are good and do their job well, their questions will be very much
like direct examination questions which do not imply the answer, but rather dig for information.

While the inspector must be honest and complete in answering questions at the deposition, it is not
the inspector's job to tell the story; the other side is responsible for trying to pull it out.  As with all
examinations, but  especially  important during deposition,  the  inspector should  not volunteer
information. In short, the inspector should not do the job of the other side's attorneys.

Receipt of a Subpoena for a Deposition	
If an inspector receives a subpoena for a deposition, he or she should contact the appropriate attorney
in the Regional Counsel's office as soon as possible. This is essential because the time frame between
the serving of the subpoena and the date of the deposition generally is short, and time is important
in either preparing for the deposition or attempting to quash the subpoena.

There are several bases on which the subpoena can be squashed, including improper service or non-
compliance with the Touhy regulation, codified at 40 CFR Part 2. The object of the regulation is
to enable EPA to avoid having its employees brought in by private litigants to act as fact witnesses
or experts where EPA is not a party to the action and the public interest does not outweigh the cost
to EPA of providing such witnesses.  If there is a basis on which to squash the  subpoena, the
Regional Counsel's office will attempt to do so. If not, then the inspector and the Regional Counsel's
office must prepare for the deposition.

Preparation for the Deposition	
Preparation for the deposition is key.  Not only must the inspector review all of the documentation
relevant  to his or her testimony,  and,  if required by the subpoena, compile and produce  such
documentation, but the inspector must also plan how to respond to the questions that the other side
is likely to ask.  It is particularly important that the  inspector and his or her attorney discuss how
the inspector is to deal with the  more difficult concepts of the testimony.

In addition, the inspector and the attorney should decide how exhibits, maps, and photographs are
to be handled at the  deposition.  If they are to be used to aid in the inspector's  testimony, or are
required  by the subpoena, they should be put in order in advance to avoid time-consuming searches
during the deposition.
                                            19-6

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Setting for the Deposition
The physical setting for a deposition is vastly different from that of the courtroom. Generally, the
deposition is taken at the office  of the  opposing counsel.   Participants  include the  inspector's
attorney(s), the attorney(s) for the other side, a court reporter, and, if appropriate, fact or expert
witnesses for the other side.

No judge is present at the deposition.  The attorneys must comply with the Rules of Civil Procedure
regarding the timing and scope of the deposition, but a judge will have  no part unless  one side is
abusing the process and the other side seeks relief from the court.

Giving the Deposition	
The most important thing for the inspector to remember is that the objective of the deposition is to
obtain information on the record. By virtue of the fact that the inspector will be asked to take an
oath,  whatever is said is in the record for the case (and other cases as well where the information
provided in the deposition is pertinent).

Not only does the deposition put the inspector on the record, but the deposition may even substitute
for live  testimony under appropriate  circumstances pursuant to  Rule 32 of  the Rules  of Civil
Procedure.  Further, either by stipulation or court order, the deposition may even be recorded on
video cassette. These possibilities underscore still more the importance of the deposition.

The inspector should be sensitive to such considerations as the clarity of his or her testimony and the
speed  of delivery.  The usual  process is  for  the  court reporter to take down the information
phonetically in the standardized court reporting system, and then dictate these phonetic notes onto
a tape which is later transcribed.

     •   The inspector must be careful with technical terms and numbers so that PCV vs. PCB,  or
         thousands vs. thousandths, come through clearly to the reporter.

     •   If  possible, the inspector should provide  a glossary of technical terms to the reporter  in
         advance of the  deposition.

There are many interruptions that can occur during a deposition. Particularly, attorneys for the two
sides  can become  involved in debates over  various aspects of the  deposition.  When interruptions
occur, the inspector should say nothing more until instructed to proceed by his or her attorney.

The inspector should be sensitive to the "eye of the record," and understand that body language and
gestures can become as much a part of the record as what he or she says. The attorney for the other
side merely has to say  "the witness  laughed before answering the last question," or "the witness
conferred with counsel before answering the last question," and those incidents are on the record.

In referring to exhibits or photographs, the inspector should  say:  "In the upper right-hand corner
we see...," rather than "Here we see...."  When a reference is not verbally clear, one of the attorneys
typically will interrupt  to explain for the record what it is  that the inspector is  holding, or what
portion of the document he or she is talking about.   If this  happens frequently, the transcript
becomes difficult to read. The inspector should always keep in mind that the record will be read by
someone else who is trying to understand the information transcribed onto the printed  page.
                                            19-7

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Another important concept to remember is that a witness is never "off the record" until the witness
and his or her attorney are out of the building and away from the deposition setting.  Inspectors
should not discuss the subject of the deposition with anyone during breaks (except his or her attorney
in private surroundings), and particularly not with, or in hearing range of, the attorney for the other
side.  Those off-hand discussions can be placed on the record merely by the attorney for the other
side asking the question "Isn't it a fact that in the hallway during the break you said ...." At this
point the  matter is "on the record," and a whole line of questioning will ensue.

As required by deposition rules, the witness has  the opportunity to read a transcript of his or her
deposition and sign it. An inspector should never waive the  reading of the transcript.  If mistakes
are not corrected at this  point in the process, the inspector's words stand as they appear on the
written page. This becomes especially important if the matter goes further, and testimony is solicited
at trial which is inconsistent with what the inspector has said at the deposition, or if the deposition
is used  in lieu of the  inspector's live testimony.

In sum, preparation is essential to a successful deposition.  If  the attorney does not request the time
to prepare, the inspector should.  Without adequate preparation, a deposition often can go poorly,
and the case  can be damaged as a result.
Testifying in an Enforcement Proceeding	

The objective of testimony is to persuade.  Key to the ability to persuade is to be prepared and
effective on the witness stand. The following sections describe in detail the elements of preparation
and effectiveness that will help the inspector be a persuasive witness.

Preparing for Testimony	
         Initial Inspection Activity.  Preparation  for testimony begins the moment  the inspector
         begins planning the inspection. From that first day, everything that an inspector sees, hears,
         reviews, samples, records, and reports is potential evidence in an enforcement action.  All
         of these comprise the ingredients of the inspector's direct testimony.

         Inspector/Attorney  Consultation.   The  inspector and his or her  attorney must spend
         considerable time preparing for testimony. The major purposes  are to:

            Review the inspector's evidence and prepare testimony within the theory of the case;

            Get to know each other and how each thinks and operates most effectively;

            Prepare the inspector for what to expect on the stand, particularly from the opposing
            side's attorneys; and

         -  To instruct the attorney on technical  aspects of case.

         Generally, the  Regional  Counsel will ask the inspector  to review  all of the inspector's
         material before the first meeting, and to  begin putting it  in order.  The  attorney will also
         review the material before the meeting.
                                            19-8

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        At the meeting,  the  attorney  usually  will  ask  the inspector  to describe his or her
        involvement in the case in his or her own words.  The purpose is to give the attorney an
        understanding of the inspector's role and knowledgeability, and a sense of the verbal style
        with which the inspector is most comfortable.  Following that, the attorney will ask specific
        questions about the case in order to begin organizing the inspector's direct testimony.

        Also during the preparation stage, the attorney should discuss with the inspector the need
        to be accurate and understood on the stand.  Given the scientific complexity of most cases,
        this often is not  easy, particularly where the judge or jury is not knowledgeable in the
        technical issues of the case. Throughout testimony there must be a conscious effort to strike
        a balance between scientific accuracy and being understood. It does little good if, in being
        absolutely accurate, the witness loses the judge or jury in the complexity of technical detail.
        However, it also  does little good if, in trying to reduce scientific issues to simple terms,
        necessary details  and distinctions are omitted.

     •  Exhibits and Graphics. Exhibits and graphics can help the inspector remember what is to
        be said.  They also are extremely effective for recreating in the courtroom what happened
        on the site in question, and for  leaving with the judge or jury a visible representation  of
        the most  important  aspects of the  inspector's  testimony.   If  an enlarged exhibit  or
        photograph is used, the inspector should be prepared to walk over to it at the appropriate
        point and continue testifying  from  there.  Doing  this serves not only to  increase the
        effectiveness of exhibits and photographs, but also helps the inspector reduce any stress that
        may have been building up. As discussed in connection with depositions, it is important
        for the  inspector to  remember to specifically identify the  portion of  the exhibit  or
        photograph pertinent to what he or she is saying. Failure to be specific will require the
        inspector's attorney to interrupt and "ask the record  to reflect...."

     •  Physical Preparation and Dress. Testifying can be tiring, both mentally and physically. The
        inspector should go about his or her normal routine, especially involving physical exercise,
        but should also get a good night's sleep and be clear-headed.  Dress considerations should
        be discussed with the attorney, and his or her advice followed.

Direct Examination	
The purpose of direct examination is to put the inspector's testimony on the record in the manner
agreed beforehand by the inspector and his or  her attorney.  Direct examination  is "friendly"
questioning by the inspector's attorney, designed to smoothly and effectively lead the inspector
through his or her testimony.

     •   General Considerations.  The most important thing for an inspector to remember is to listen
         to  the question, which  will be short and  concise.   The inspector  should pause  before
         answering, and  then respond with a concise answer that does not volunteer information.

         The inspector should keep in  mind  throughout testimony that it  is not  necessary  to
         remember everything that is to be covered on the stand. The inspector's job is to know the
         answers to the questions; the attorney's job is to ask the right questions to elicit  what the
         inspector has to say, and ensure that nothing important is omitted.

            If the preparation has been thorough, the attorney should be able to lead the inspector
            through his or her entire testimony with a well-organized, logical recitation of the facts.

            The inspector should keep in mind that if he or she can't remember the answer to a
            question, the attorney will refresh the inspector's recollection with such documents  as
            the inspector's notes, reports, or deposition.

                                            19-9

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Eve  contact with the judge or jury is important to the objective of testimony, i.e.,  to
persuade. Failure to make eye contact reduces the ability to persuade.

The inspector should be sensitive to the rhythm of the examination. In testimony, through
the short questions and the short answers, a rhythm develops; a story emerges. Attorneys
for the other side, through objections, may try to break that rhythm.  The inspector should
be ready for those breaks, and try to pick up right where he or she and  the attorney left off,
quickly re-establishing that rhythm.

Testimony should be objective and straight-forward. Bias or strong emotional attachment
to the case can be damaging. As a government witness, it is particularly important that the
inspector present himself or herself as someone  whose job it is to ferret out this sort of
information, preserve it, and later present it to a judge or jury if  necessary.

-  Conveying the image that "I'm just here doing my job" is important.

-  This is not to say that the inspector's genuine concern cannot be displayed, but the
   inspector must be careful not to appear so personally involved in the case that issues of
   stretching the evidence or other questions of credibility arise.

Style of Questioning.  A good direct examination merely introduces the subject areas, and
then through short questions elicits the evidence that the witness has to offer. The attorney
must phrase these questions so as not to suggest the answers. The questions are very much
along the line of: "What is the first thing that you did?";  "What did you do next?"; "Who did
you speak to?"; "What did he say?"; etc.   If necessary, there will be follow-up questions,
such as "Did he say anything else?"  These types of questions are designed not only to enable
succinct answers, but also to reveal the whole story through a logical progression.

Key Words and Signals. The attorney usually will discuss with the inspector before the trial
the key words that the attorney will use to suggest the subject areas of the inquiry.  While
the attorney cannot on direct examination ask questions which suggest the answer or require
a "yes" or "no" response, he or she can legitimately direct the inspector's attention  using key
words.  In addition,  the attorney should discuss the signals that he or she may use if the
testimony gets into trouble.

For example, the attorney may tell the inspector that if ever he or she asks the question "Is
there anything else?", this means that something  has been left out of the testimony and the
inspector needs to say it.  The inspector should not quickly  respond "no."  Instead, the
inspector should think about what it is that hasn't been covered and then provide it.  If
the inspector can't remember what has been left out, the attorney may risk an objection by
asking the question in an improper way.  If the  attorney does that, the inspector needs to
listen carefully; in the improper question will be the key words which should  focus the
inspector on what it is that hasn't been covered. The key words and signals are worked out
in advance so that the rhythm of testimony is maintained, and neither the witness nor the
attorney appears to be stretching the rules.

Initial Questioning.   The first few questions are  along the lines of: "What is your name?
What is your occupation?  How long have you been so employed?",  etc. The  point of these
first question  is to  give  the inspector a few minutes  to become comfortable  with the
surroundings, observe who else is  in the room, and become aware of how loudly  he or she
is speaking. Only when the attorney senses that the  inspector is ready to proceed will the
attorney move into further questioning.
                                   19-10

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    If the witness is an "expert" witness, his or her resume is introduced, or a detailed inquiry
    about his or her qualifications is undertaken. Rule 702 requires that the witness' knowledge,
    skill, experience, training, or education be explored prior to a determination that he or she
    is qualified as an expert to provide such testimony in a particular case.  An inspector may
    be called as an expert witness; an expert is not necessarily someone from outside the agency
    who  has particular academic or research credentials.  For example, an expert could be
    someone who has special expertise or knowledge as it  relates to taking samples from a
    transformer, or samples from  a stream for determining turbidity (providing, of course,
    that the area of expertise is  relevant to the case).  An expert also may be someone who has
    been the case reviewer, and is familiar with the application of the penalty policy in a way
    that no one else is.

•   Second Line of Questioning.  The second line of inquiry, after establishing the witness'
    qualifications, addresses the witness' participation in the case.  This is the laying of the
    "foundation" as discussed previously in this manual.  For a fact  witness, the questioning
    generally is a chronological, step-by-step process, establishing for the judge or jury what
    the witness did. It usually begins with questions regarding when the individual got involved
    in the case,  the first things that he or she did, what happened when he or she initially
    arrived at  the facility, etc.,  and proceeds from there. In certain instances, it may be more
    appropriate to sort out the  participation  in the case according to subject  matter.  For a
    straight-for ward fact witness, however,  the chronological approach usually is the most
    effective.  These matters usually are discussed and decided by the attorney and inspector
    during  trial preparation.

    As the fact witness is asked to describe what happened in the case, the attorney should be
    providing  exhibits as  needed,  and should not take a stack of documents or notes to the
    stand; a volume of paper can  be distracting  to the witness and difficult to handle. In
    addition,  documents  and  notes  taken  to  the  stand by the witness  are  immediately
    discoverable by the other side prior to cross-examination.  Experts generally take paperwork
    to the stand, but they must have  the papers so organized that they are not searching for
    what they need during their testimony. An appearance  of disorganization can be fatal to
    a witness'  testimony.

    Particularly with regard to the  testimony of an expert witness, there is a hierarchy of type
    of evidence as the testimony builds to the opinion, which may even address the  ultimate
    issue of the case.  Rule 704  allows experts to give such opinions on the ultimate issue. At
    the bottom of the pyramid are the assumptions, facts, and data that the expert is relying on
    in any  given case.   For each of these,  where appropriate, the  expert must know the
    methodologies used and the  QA/QC procedures followed, and must be able to speak to the
    reasonableness and creditability of these methodologies and procedures. The next step for
    the opinion is the expert's  analysis of the facts and data on which he or she is relying.
    Finally, at the top of the  pyramid is the expert's opinion.  Usually, it is a matter of
    circumstance or the attorney's preference whether to start at the base of the pyramid and
    work up to the opinion, or start with the  opinion and  then establish  its basis.
                                       19-11

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        Finally, the witness must have enough trust in his or her attorney to know that if areas are
        not followed-up, either in direct examination, or in the redirect examination that follows
        cross-examination, the attorney probably has made a conscious decision not to do so. Only
        in rare circumstances, when the witness  absolutely  knows  that the attorney has  missed
        something important,  should  the  witness attempt to  slip the necessary  information in
        somewhere during the questioning.  Ideally, it is better to discuss these matters with the
        attorney before raising them, even if only for a minute during a break in the proceedings.
        If no break conveniently occurs, the witness should consider suggesting one.

        Staving Within Limits of Expertise and Knowledge.  True for any witness, but especially
        the expert, is  that the witness should stay within his or her limits  of expertise  and
        knowledge. If preparation has been thorough, the witness' attorney should know how far
        the witness can go. However, if the witness  feels that his or her limits are being stretched,
        the witness should not feel compelled to go farther,  even at the hands of his or her own
        attorney.  It is when the witness goes beyond his or her comfortable limits that opportunities
        for an effective cross-examination are opened up.

        Handling Weaknesses in Testimony. In practically every instance, there will be a weakness
        in the government's case,  and strength in  the defendant's case, that must be dealt with in
        some manner.

        An inspector should inform  his or her attorney  of any problem in the case as early as
        possible.  The attorney will not want to be  surprised at deposition, and particularly will not
        want to hear something for the first time at trial.  Advance notice is essential to enable the
        attorney to decide whether to bring the problem out in direct examination, how to bring
        it out, how to compensate  for it through other testimony if necessary,  and how to deal with
        it if the opposing attorneys try to seize on it to their advantage.

        Similarly,  the inspector should  give some thought to  the other side's case early in trial
        preparation. To the extent that the government can diminish the effectiveness of the other
        side's case through its own case, the better its chance of winning.  Therefore, government
        attorneys need to know the strengths of the other side's  case,  and what the other side likely
        will put into issue at trial, so that they can offset or  address these strengths and  issues
        through the government's own witnesses.
Cross Examination
The purpose of cross-examination is to give each side the opportunity to diminish the strengths, and
amplify the weaknesses, in the testimony of the other side's witness through questions put directly
to the witness.  This often can be an arduous process.  However, if the witness has handled direct
examination effectively and knows what to expect, cross-examination not only can be survived,
but can be turned to the advantage of the witness' direct testimony.

     •   General Considerations. Cross-examination is a skill that is  difficult to master. Many
         attorneys inquire far too much, and generally just elicit the same information that has  been
         provided through direct examination.  The inspector should not be surprised if he or she
         is given an opportunity to say  again what he or she said during direct examination, and
         should be prepared to take advantage of the opportunity to say it still more effectively. On
         the other hand, there are attorneys who know how to go for the throat, or set up what they
         need for closing argument.  These  are the attorneys that present the greatest challenge for
         the inspector. However, if the inspector has done his or her job well from the beginning
         of the case, and remains poised and consistent, even cross-examination at the hands of these
         types of attorneys can do little  harm.

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   A witness must leave the adversarial work to the attorneys. During cross-examination, the
   inspector should continually appear to be the neutral, detached, unbiased government
   witness.  When a witness begins to advocate the case, or gets into a debate with the attorney
   for the other side, the other side usually wins points. Adversarial work is truly done by the
   attorneys during closing arguments. At that time, the attorney will  be able to take whatever
   was said and happened during direct and cross-examination of the witness, discuss it, and
   argue it  with no opportunity for the witness to say anything more.

   The inspector should not try to outdo the opposing attorney on technical issues. Not only
   may the inspector confuse the judge or jury in the process, but the opposing attorney may
   be an "expert" on the matter. A good attorney will become familiar  with the subject at hand
   before trial, and may know much more  about such  things as sampling  techniques and
   column temperatures of the gas chromatograph than the inspector may expect.

•  Witness Demeanor. The Demeanor of the witness during  cross-examination is extremely
   important.  If the opposing attorney is being combative or offensive, the inspector should
   not retaliate in kind, but realize that the attorney is only  doing a disservice to his or  her
   case.  Judges and juries tend to sympathize with a witness who is being dealt this sort of
   punishment. If the opposing attorney becomes belligerent, or matters seem to be getting
   out of hand, the inspector's own attorney will raise  objections.

•  Focus of Cross-Examination. Most cross-examination  will focus on: (1) the inspector's past
   experiences, including his or her occupation, associations, education, and training; (2) the
   inspector's observations, memory, and accuracy of recollection; and (3) any motive, bias,
   or prejudice that the inspector may have. Good preparation by  the litigation team will
   address these areas to determine whether there is room for successful cross-examination by
   the other side.

   With  regard to expert witness testimony, cross-examination generally will focus on  the
   assumption, facts and data that support the expert's opinion.  Rarely can an attorney get an
   expert to change his or her opinion; the hope usually is that the  attorney will be able to
   undermine the foundation of the opinion enough that  he or she can argue the worth of the
   opinion  during closing arguments.

•  Style of Questioning.   Cross-examination questions  generally suggest the answer, and
   attempt  to  lock  the witness into a "yes" or "no" response.   They  are often  compound
   question:;, and the inspector must listen closely to see whether a simple "yes" or "no" will
   suffice.  If  a "yes" or "no" answer is not possible,  the inspector should say  so.

   Further, the inspector may get cut off-when he or she is saying something that goes beyond
   what the opposing attorney wants to hear. The inspector  should not be concerned if this
   happens; there is redirect examination which provides the opportunity for the witness's
   attorney to  follow-up on any of the cross-examination questions that need to be expanded
   upon or clarified.
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Dealing with Cross-Examination. During cross-examination, the opposing attorney usually
will attempt to undermine the witness' poise and confidence. The advice given with regard
to direct examination generally applies here: (1) Listen carefully to the question, pause, and
answer succinctly; (2) don't volunteer any information that is not required by the question;
(3) listen for inaccuracies and correct them before answering; and (4) refresh recollection
through documents rather than respond with an inaccurate or wrong answer.

If an inspector does not understand a question, he or she should say so and ask  that it be
read back or rephrased. The most under-utilized answer by witnesses on cross-examination
is "I don't understand." Such  an admission rarely is damaging, and it often can be used to
the witness' advantage. For example, if the opposing attorney uses a term that is ambiguous
or complex, the inspector can say: "I don't understand the term (x) that you just used. What
do you mean by it?"  When the opposing attorney describes the term as he or she means it,
then the inspector will understand the context  within  which  to formulate an answer.
However, if the  opposing  attorney does not  know what the term means  and has to go
searching for a definition, the opposing attorney's lack of knowledge is exposed.  Similarly,
if the  opposing  attorney improperly defines the term, the inspector can correct the
definition, thereby not only  demonstrating the  attorney's lack of  knowledge,  but  also
further  establishing the inspector's credentials as a  knowledgeable witness.

The inspector  should be prepared for questions such as:  "Did you talk  with your attorney
prior to this questioning?"  This question usually means  that the opposing attorney wants
to try to establish that the inspector has been told or improperly coached as  to what to say,
and that the inspector's statements are not his  or her own true account.  The answer has to
be "yes," because  the inspector and his or her attorney have talked in preparation for the
trial. This  may lead to further questions such as:  "Did your attorney tell you what to say?,
or "Were you coached as to what to say?" Here, the answer should be "Yes, the truth" and
"we went over  my testimony" or "we discussed the details of my testimony in order to ensure
that it would be accurate and concise." The opposing attorney may not let the inspector get
to the "but" part.  If this happens, the inspector's own attorney will bring it out in redirect
examination if necessary. How to deal with these questions is something that the  inspector
and his  or her attorney generally will have discussed during trial preparation.

The inspector  also should be  alert to "why" questions during cross-examination.  A good
attorney will not ask "why" (e.g., why an inspector did or did not do something)  except in
belief that  the response will be helpful to the  attorney's case. If the inspector is prepared
and has a good reason "why,"  this kind of question creates an opportunity to respond with
as much detail as necessary to completely  answer the question.  The inspector's response
often can eliminate whatever  advantage  the other side may have had on the point.

There may be circumstances where an inspector needs to  leave a way out of a possible trap
in responding  to a question.  For example, if  the inspector is asked if  he or she followed
standard procedures in taking a sample, and the inspector believes that he  or she did but
cannot document  it, an absolute "yes" answer would not be appropriate  (the inspector may
not have followed standard procedures, and the other side may have evidence of that fact).
The best answer in this instance would be along the lines of "As best I recall, I did."; or "To
the best of my knowledge, I did."  Even if  it is shown later that standard procedures were
not followed, there is no  penalty that can be imposed on  the inspector for having a faulty
memory.
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        Finally, the inspector must be able to recognize the friendly attorney who tries to lull the
        inspector into not thinking, and into answering questions without really listening to them.
        This sort of "buddy-buddy" attorney can be the most devastating in that it will only be in
        closing arguments, when the inspector can say nothing further, that the damage is revealed.

        Impeachment. Of the six major bases for impeachment listed on page 21-4, the one of most
        concern  to the inspector  is  conflicting  testimony.   For  the  inspector during cross-
        examination, this means being confronted by the opposing attorney with prior statements
        made by the inspector, either on oath or not under oath,  that are contrary to what the
        inspector is now saying on the stand. Statements are not only verbal utterances; they are
        also written documents such as inspection reports and depositions.

        If a witness can be impeached by the other side, the effectiveness of all the witness'
        testimony may be lost.  This is one of the reasons that an inspector must inform his or her
        attorney of any problems in the case as early as possible. If the inspector has made a prior
        statement that will be in conflict with his or her testimony, the attorney needs to know of
        it in order to plan how to deal with it.

        There are  two key points for inspectors to  remember if confronted with a conflicting
        statement during cross-examination:  (1) If  the conflicting statement is the result  of a
        mistake by the inspector, the  mistake should be admitted;  and (2) if there is some other
        reason for  the conflicting statement, that reason should be explained (or, at least, an effort
        to explain  it should be made).
Redirect Examination
Redirect examination is limited to the issues raised during cross-examination. Its purpose is to give
the witness' own attorney an opportunity to counteract or diminish any damage that may have been
done through the witness' testimony elicited  by the opposing attorneys.

For example, during cross-examination, the inspector admitted in response to a question that he or
she had deviated from standard sampling procedures, but the opposing attorney had not asked "why."
(The attorney was content to establish  on the  record that there had  been a deviation.)  During
redirect examination, the inspector's attorney can correct that problem (assuming the inspector had
a good reason) simply  by saying "During cross-examination, you stated that you  did not follow
standard procedures in  taking the samples. Could you please explain  to the court why you did not?"
The inspector can then go into as much  detail as necessary to explain his or her actions.
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NOTES
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                                 WITNESS GUIDELINES1

The  following suggestions  are made for prospective witnesses in  order to lessen  the  fears and
apprehensions which almost everyone has when first giving a deposition or testifying before a board,
commission,  hearing officer  or  in court.  Even  those who have  given depositions or testified
previously encounter a certain anxiety when called for a  repeat performance.  When a  witness is
properly prepared, there should be little fear. The guidelines were prepared by Region X attorneys.

Deposition Hints           	

Preparation	
Set aside time well in advance (not the night before) to prepare your deposition.  You'll want to meet
with your lawyer to review the pleadings, discovery and other materials in the file.  You should plan
to discuss the theory  of the case and how your work fits in.  You might consider role playing,  with
your own lawyer "taking" your deposition to give you a feel for the real thing.  Discuss these hints;
your lawyer probably has more, or he may want to modify these.

Documents	
Review them before (and bring them with you when) you meet with your lawyer. If you know what
your documents say, you'll generally give a better deposition.   If you  examine documents while
testifying, expect the opposition to ask for copies. All requests to provide materials should be made
to your lawyer --- don't deal directly with the opposing side. Three-ring binders are a good way to
organize your material; you can easily find and remove the materials you need without  thumbing
through files (looking disorganized in the process) or handing over more than you want  to. Stock
your binder with clean copies.

Questions	
Pause before answering -- it gives you time to think about the question, makes your response seem
more considered and deliberate, and it gives your lawyer time to think and object if he wants to.

Listen to objections -- your lawyer may be trying to tell you something. If your lawyer "objects to
the form of the question," you are still required to answer but often an appropriate answer is "I don't
understand the question—could you rephrase it?"  Lawyers (usually inadvertently, but sometimes
deliberately) ask vague questions.

Look for assumptions in the question -- you may or may not agree with them.  Get clarification if
you need it.

Explain your answers. You cannot be locked  into a simple "yes" or "no" -- you have  a right to
explain  fully if you want to.

Don't volunteer — Don't Volunteer — DON'T  VOLUNTEER.
    The material in this appendix was  developed by Region X for use in its inspector training
program.

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Answers	

Be aware of the basis of and limits to your knowledge. If you know it as a fact, say so.  If it is only
an estimate, an understanding, or a rumor, say so. A very good, but seldom used answer is "I do not
know."

Avoid absolutes. "Always" and "never" are dangerous. When it's appropriate, qualify your responses:
"to the best of my knowledge" or "at this time."

Remember that  the other side  is sizing you up.  Be firm  about what you know and  think; be
forthright about what you don't know.

The Cold Record	
The transcript won't reveal a wink, a smile or the joking context of a remark; the record is cold and,
if you're not conscious of it, unforgiving.

Take Frequent Breaks	
Depositions are hard work for lawyers and court reporters, but especially so for witnesses who are
not accustomed to the process. Take breaks to relieve stress, stretch your legs, get a drink, talk with
your lawyer.  Take as many breaks as you want -- they won't proceed without you.

Dress and Manner	
Be comfortable!  If you're not, your deposition will show it. Normally, you'll want to dress in your
normal work clothes, but check with your lawyer on this point -- there are often good reasons to
depart from this general rule.

Be firmly polite to  the other side.  The other side's lawyer may attack you, your work, or your
opinions  -- don't get drawn into a fight. Remember the Cold Record -- the other side may forget.

"Did You Talk with Your Lawyer?"	
"Of course!"
"What did he or she tell you to say?"
"The truth!"

Questioning by Your Lawyer	

Depending on the circumstance of the deposition, your own lawyer may ask questions of you at the
end of your  deposition to clarify your testimony,  explain additional matters, or for some other
purpose.  This is a good point to discuss in advance.

Reading and  Signature	
After your deposition is transcribed, you'll have an opportunity to read it and make any corrections
you  believe are appropriate.   It's extra work but well worth the effort.  There are no perfect
transcripts and some (especially concerning technical matters) are absolute disasters. NEVER WAIVE
READING AND SIGNATURE!


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Testimony Hints
It is of utmost importance that a witness be thoroughly prepared as  to the subject matter of his
testimony.  Only a witness can recall what occurred in the field and/or laboratory and why.  Since
many cases are tried long after field and laboratory activities are conducted, it is imperative that
adequate documentation be  originally prepared in order that a witness' memory be refreshed.  A
thorough and detailed  review  of all documents is the only way prospective  witnesses can  be
adequately prepared.

In order to assist witnesses on how they should conduct themselves, the following suggestions are
given.

The witness will be required to take an  oath to tell the truth. The important point is to remember
that there are two ways  to tell the truth -- one is halting, stumbling, hesitant manner, which makes
the board member, hearing officer, judge or jury doubt that the witness is telling all the facts in a
truthful way; and the other way is in a confident, straightforward manner, which inspires faith in
what is being said. It is most important that the witness testify in the latter manner.  To assist a
witness in testifying in such a manner, a list of time-proven hints and aids are provided below.

General Instructions for a Witness	
If you are to be a witness in a case involving testimony concerning the appearance of an  object,
place, condition, etc., try to refresh your recollection by again inspecting the object, place, condition,
field notes and records, etc., before the hearing or trial.  While making such inspection, close your
eyes and  try to ipicture the  item and recall,  if you can, the important points of your testimony.
Repeat the test until you have  thoroughly familiarized yourself with the features of your testimony
that will be given.

Before you testify, visit a court trial or board hearing  and listen to other witnesses testifying.  This
will make you familiar with such surroundings and help you to understand some of the things you
will come up against when you testify.  At least be present at the hearing of the matter in which you
are to  testify in sufficient time  to hear other witnesses testify before you take the witness chair.
This, however, may not always be possible since, on occasion, witnesses are excluded from the court
room.

A good witness listens to the question and  answers calmly  and directly in a sincere manner.   The
facts should be well known so they can be communicated. Testimony in this manner applies to cross
examination as well as direct examination.

Wear neat, clean clothes when you are to testify.  Dress conservatively.

Do not chew gum while testifying or taking an oath.  Speak clearly and do not mumble.  You will
not be permitted to smoke while testifying.
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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.

Stand upright when taking the oath.  Pay attention and say "I do" clearly.  Do not slouch in the
witness chair.

Do not memorize what you are going to say as a witness. If you have prepared answers to possible
questions, by all means do not 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.

During your direct examination, you  may elaborate and respond more fully than is advisable on
cross-examination. However, when you volunteer information, do not ramble and do not stray from
the  main point raised in your lawyer's question.  The taking of testimony is  a dialogue, not a
monologue. If your testimony concerns a specialized technical area, the Court or hearing board will
find it easier to understand if it is  presented in the form of short answers to a logical progression of
questions. In addition, by letting your lawyer control the direction of your testimony, you will avoid
making remarks which are legally objectionable or  tactically unwise.

Be serious at all times. Avoid laughing and talking about the case in the halls,  restrooms or any place
in the building where the hearing or trial is being held.

While testifying, talk to the judge, hearing officer or jury. Look at him or them most of the time,
and speak frankly and openly  as you would to any friend or neighbor.  Do  not cover your mouth
with your hand.  Speak clearly and loudly enough so that anyone in the hearing room or courtroom
can hear  you easily. At all times make 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 testimony given at the hearing or trial.
Always make sure that you give a complete statement in a complete sentence.  Half statements or
incomplete  sentences may  convey your thought  in the  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, 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 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-examination is to be brief, absolutely accurate, and entirely calm.
                                           19-20

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The  hearing officer, board  member or jury wants only the facts, not hearsay, conclusions,  or
opinions.  You usually will not be allowed to testify about what someone else has told you.

Always be polite, even to the attorney for the opposing party.

Do not be a smart aleck or cocky witness. This will lose you the respect and objectivity of the trier
of the facts in the case.

Do not exaggerate or embroider your testimony.

Stop instantly when the judge, hearing officer or board member  interrupts, or when the other
attorney objects to what you say.  Do not try to sneak your answer in.

Do not nod your head for a "yes" or "no" answer.  Speak out clearly.  The reporter  must hear  an
answer to record it.

If the question is about distances or time and your answer is only an estimate, be certain that you
say it is only an estimate.

Listen carefully to the question asked of you.  No matter how nice the other attorney may seem  on
cross-examination, he may be trying to hurt you as a witness.  Understand the question. Have it
repeated if necessary; then give a thoughtful, considered answer. Do not give a snap answer without
thinking.  You cannot be rushed into answering, although, of course, it would look bad to take so
much time on each question that the board  member, hearing officer or jury would think that you
are making up the answers.

Answer the question that is  asked, not the  question that you think  the examiner (particularly the
cross-examiner) intended to  ask. The printed record shows only the question asked,  not what was
in the examiner's mind, and a non-responsive 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.

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 answered truthfully with a "yes" or "no," you have a right to
explain the answer.

Answer directly and simply the question asked you and then stop.  Never volunteer information.

If by chance your answer was wrong, correct it immediately; if your answer was not clear,  clarify
it immediately.

You are sworn to tell the truth. Tell  it.  Every material truth should be readily admitted, even if not
to the advantage of the party for whom you are testifying.  Do not stop to figure out  whether your
answer will help or hurt your side.  Just answer the question to the  best of your ability.

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.
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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.

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.

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. If the
judge, hearing officer or  board member then says to answer it, do so.

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.

Do not hedge or  argue with the opposing attorney.

There are several questions which are known 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:

     "Have you talked to  anybody about this matter?"  If you say "no," the hearing  officer or
     board member, or a seasoned jury, will know that is not right because good lawyers always
     talk to the witnesses  before they testify. If you say "yes," the lawyer may try to imply that
     you were told what to say.  The best thing to say is that you have talked to Mr. (blank) -
      your lawyer, to the appellant, etc., and that you were just asked what the facts  were.  All
     we want you to do is simply  tell the truth.

     "Are you getting paid to testify in this  appeal?"  The lawyer asking this hopes your answer
     will be "yes," thereby implying that you are being paid  to say what your side wants you
     to say. Your answer should be something like "No, I am not getting paid to testify; I am
     only getting compensation for my time off  from work, and the expense it is costing me
     to be here."

In addition to the above suggestions and guidelines, several additional references are available for
further background:

     Expert Witnesses and Environmental Litigation,
     J.L. Sullivan and R.J. Roberts,
     Journal of the  Air Pollution Control Assoc., April 1975, Vol. 25, No.  4.

     Environmental Litigation and the In-House Engineer,
     F. Finn; R.  C.  Heidrick: K. Thompson,
     Journal of the  Air Pollution  Control Assoc., Feb. 1977, Vol. 27, No.  2. Essentials of Cross-
     Examination, Leo R. Friedman,  CEB  1968.
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                         19B NEGOTIATION TECHNIQUES
The individual with a knowledge of negotiation techniques and strong negotiating skills is a
highly valued member of any organization, for its means that he or she has good interpersonal
as well as management skills.

The type  of negotiations most commonly associated with the enforcement process are the
formal negotiations that EPA conducts with violators in attempt to reach a  settlement
agreement in lieu of protracted litigation. In general, such negotiations cover technical issues
and monetary  penalties.

     •   Technical issues might include reaching agreement on the measures to be taken to
         bring the violating facility into compliance, the corrective action to be undertaken
         to remove any damages, how progress will be reported to and monitored by EPA,
         and timetables for completion of work.

     •   In most enforcement cases, EPA will normally propose monetary penalty amount to
         be assessed against the violator.  The gravity-based portion of the proposed penalty
         is based on the established penalty  policy for the  particular type of violation(s)
         involved.  The proposed penalty also includes, when appropriate, an  additional
         amount to remove any  economic gain the violator  might have made by being in
         violation.  The proposed penalty is also subject to negotiation, with EPA's position
         guided by Agency policy.

While the lead for enforcement  negotiations  usually rests with the  Agency's legal staff,
inspectors are  often members of or provide support to EPA's negotiating team. In addition
to their use in  formal negotiation, inspectors will find negotiation techniques useful in many
other aspects of their professional (and personal) lives.  Some examples follow.

     •   Planning  an inspection  may  involve  negotiating  to  obtain necessary  resources,
         reaching agreement with program staff and/or attorneys on a realistic  scope  and
         objectives for the inspection, and accommodating inspection team members' interests
         in making task assignments.

     •   At the site, the inspector may need  to negotiate with facility officials to obtain
         consent for entry, work out a mutually acceptable schedule for conducting  interviews
         with  key staff, or obtain permission  to use the facility's copying equipment.

     •   After the inspection, the inspector may need to negotiate with laboratory personnel
         to get an accelerated schedule for same  analysis, participate in deliberations of
         program managers and/or attorneys regarding the appropriate enforcement action
         to take, and -- last but not least -- serve as a member of EPA's negotiating team
         pursuing a settlement.

Because of their importance to EPA's overall enforcement effort, this section  focuses on
formal enforcement negotiations.  It also addresses the similar issues and considerations that
are involved in negotiations with Potentially Responsible Parties (PRPs) in CERCLA cases.


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The  material  in this  section  was  adapted from material originally  developed  by the
Environmental Law Institute (ELI), Washington, D.C., under a contract to the Office of Solid
Waste; that  Office  has granted permission for its use in this  document.  It is  based on
discussions by EPA personnel of real-world problems they have encountered in negotiating
enforcement settlements as well as on observations of practice negotiations that took place  at
more than  a  dozen  negotiations training courses.   A  fuller  text  is contained  in the
Supplemental Resource Materials, including a discussion of the communications skills useful
in negotiation.

At the end of this section, key points for conducting successful negotiations are summarized
for easy reference.
Introduction to Negotiations	

All of us negotiate  at some level every day.  Each of us brings individual  experiences,
strengths and weaknesses to the negotiating table.  As a result, some  are naturally better
negotiators than others.  Many would like to improve their negotiating skills.  But negotiation
is taught in few schools and many of the popular books on the subject contain as much hype
as anything else.  Indeed, can negotiation be learned? Can it be learned from reading?  Can
reading about negotiation serve any real purpose?

      •   Few Rules.  "Learning" negotiation, especially from books, is complicated because
         there are few hard and fast rules for successful negotiation.  Most of the rules and
         principles that do exist are discussed in this section.  Despite the relative absence of
         negotiating principles,  the negotiation process is a  complex one. But  much of the
         complexity of the process results from the infinite variety of negotiators and of
         situations in which negotiations take place. Each negotiation develops a life of its
         own from  differences in the nature and  number of issues  to be resolved, the
         strengths and character of the parties represented at the negotiating table, and yes,
         the  negotiating skills of the players at the table.

      •   No "Right"  Settlement.  Because each negotiation takes on a life of  its  own, no two
         different sets of negotiators are likely to  reach the same settlement on a matter of
         any complexity. Indeed, EPA participants consistently reached different settlements
         of  the same hazardous waste  enforcement cases in 30 to 40  practice negotiation
         sessions.  This suggests that there may be no "right" settlement for most  negotiations.
         There may  well be, however, ranges in the  desirability of various settlements from
         the  perspective of each side.  The absence of a "right" settlement and the existence
         of a range of acceptable settlements may disturb the less flexible or the advocates
         of narrow interests.  Indeed, at times there may be only one solution to a problem
         that  EPA can  accept.  When the  latter is the case, negotiation is  irrelevant—the
         solution is simply non-negotiable.

      •   Negotiating Is Not Selling Out. While neither side to a normal negotiation ultimately
         settles for all it had hoped to get before the negotiation began, this  is no indication
         that a side "sold out" on what it hoped to,  but did not, achieve.  It may  have learned
         during the course of the negotiations that its original expectations were  unwarranted
         or ill founded.  It may have traded a less desired item to get a more desired item.

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   It may have foregone an unnecessary item to secure agreement. But it should not
   give up what is essential to it.  What is essential to EPA is established by statute,
   regulation, and policy. Statutory and regulatory mandates are not negotiable by EPA
   enforcement personnel, and policy directives  are usually  not negotiable by them.
   Policy may be affected, however, by what is learned in a negotiation.  It is not the
   purpose of this discussion to identify what items,  laws, and policy may be non-
   negotiable in  one  negotiation or another.   That,  however,  is one  task  EPA's
   negotiators must perform in preparing for each negotiation.

•  Negotiation Is Not the Antithesis of Litigation. EPA sometimes threatens to file suit
   against a  violator unless a negotiated settlement is  reached by  a certain date.  To
   some this suggests that negotiation and litigation are mutually exclusive processes.
   Nothing could be further from the truth.  The overwhelming majority of filed cases
   settle prior to  a trial on  the merits—and they settle through  negotiation.  Some
   aspects of the litigation process may  help reach negotiated settlements,  e.g., getting
   all  the relevant facts  on the table  through discovery or stimulating closure  on
   settlements  by  court  imposed deadlines.  Some  things  about litigation hinder
   negotiation, e.g., the adversarial nature of litigation. But negotiation and litigation
   are not two separate processes  for settling a dispute.  Negotiation continues after
   litigation  commences, but it continues under different ground rules.

•  Negotiation May Provide the Best Solution.  In many cases negotiation has great
   advantages over administrative or judicial litigation or administrative fiat. It may
   be quicker and require devotion of less resources. It results in a solution with which
   both sides are happy or with which  they  can at least live comfortably. It enables
   them to devise a solution which best  fits their needs and the situation at hand. And
   it enables EPA to use whatever leverage it may have that would be unavailable in
   court, e.g., the power to withhold a  grant or to initiate or withhold initiation of a
   contractor debarment proceeding.  Accordingly, EPA can gain agreement from the
   other side to undertake endeavors far beyond EPA's legal authorities to demand or
   a court's to impose. And once a solution has been agreed to, it is more likely to be
   complied  with ungrudgingly and completely than  one that is imposed without
   consent.

•  Learning  from Books  and Experiences. Negotiation, like the advocacy  practiced in
   litigation, is a process, not a science or a body  of learning. Because negotiation has
   no  rule book and success in any negotiation  depends upon the dynamics of that
   negotiation, negotiating cannot  be learned from a book, only from practice.  A book
   can, however, assist the negotiator and improve his or her own skills in three very
   specific ways:

   -   It can suggest a theory of negotiation, providing a conceptual framework for
       viewing and understanding the  process and providing some  order  to  what
       otherwise might appear an unstructured happening;

   -   It can elucidate the few rules that do exist; and

   -   It can suggest a number of techniques that are employed by experienced and
       successful negotiators, illuminating their usefulness and limitations.
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     •   Establishing Trust  and  Managing  Expectations.   Establishing  trust  between
         negotiating teams is necessary before a settlement is likely to result.  Settlements are
         basically exchanges of promises--enforcement promises in an enforcement case, but
         promises nonetheless.  And you don't willingly exchange promises with people you
         don't trust. Often you don't even listen to them.  It's hard to reach agreement with
         someone to whom you won't  listen.  The relevance of trust is a little different in
         regulatory negotiations than in many other types of negotiations. The regulator may
         enter into a consent  decree with a person not wholly trusted to comply with it,
         because the regulator knows the court will enforce  it.  Nonetheless, both sides to a
         regulatory negotiation want the other side to listen to them and be influenced  by
         their words. That is more likely to happen  if they have developed trust between
         them.

     •   Creating Doubt.  The key to managing expectations is  to  create doubt as to the
         viability of the  others' expectations.  Indeed, in  many respects the job of the
         negotiator may be thought of as creating doubts in the  minds of others  as to the
         viability of their positions, assertions, and assumptions. This discussion focuses on
         where to create doubts—from the viability of agendas and  negotiating logistics to
         assertions and proposals made during  negotiating sessions. It also focuses on how to
         create doubts—from proper  preparation to  better questioning of assertions and
         proposals.

     •   Identifying All of the Negotiators.  When seeking to establish trust and manage
         expectations, it's important to identify all of the sets of negotiators where that is
         necessary.  A negotiating team not only negotiates with its opposite member across
         the table, it also negotiates with its  own vertical hierarchy.  Its vertical hierarchy is
         made up of the chain of command through which the negotiating team reports and
         which ultimately must be satisfied with and sign off on the team's results.
Managing Negotiations	

Negotiation is a process.  No process has much of a chance for successful fruition unless it is
managed.   Understanding that is a giant step  in  improving negotiating performance.
Management  falls largely on the negotiation team leaders for each side.  But all participants
must cooperate if efficient management is to be  three rough categories:  management of
people, time, and process.  Of course there  is considerable overlap between these categories,
but they at least help organize and present thoughts.  Beyond these categories, however, is the
overwhelming importance of preparation.   Preparation is inherent in all three categories of
tasks and may the single most important element in successful negotiation.
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Preparation
Importance of Preparation
If any one element is the key to successful negotiating, it is preparation.  Yet preparation is
often skimped by many negotiators. EPA enforcement personnel have often complained about
their lack of time to prepare for EPA negotiating sessions.

An unprepared team will rarely achieve as satisfactory a result in a negotiation as that of a
prepared team. Indeed, an unprepared team can achieve a settlement so  unsatisfactory that
it will be or should be  rejected by the team's vertical hierarchy. The team leader bears the
brunt of responsibility for assuring that the team is well prepared and, if necessary, for
negotiating with the vertical  hierarchy for the time and resources necessary  for  proper
preparation.

Constituting the EPA Negotiating Team
Before the team can manage or be managed, it must be constituted.  The number, experience,
and personalities of the team members must be suited to the negotiation at hand and the team
members must be able to work together.  Each major legal and technical area likely to be
subject to the negotiation should be well  known  to at least one team member.  The team
should be able to draw on others, as needed,  for expertise in particular, more narrow issues.

A team leader must be designated by the vertical hierarchy or agreed upon by the team.  The
leader need not  have substantive expertise, but should be adept at process and capable of
managing negotiations.  Attorneys  are often designated  as team  leaders because they are
trained and are often adept at process.  Others can make good team leaders as well.

Other  roles  needed to  be filled.  One  team  member must take complete notes during the
session. It  is helpful to have another be a  designated listener and observer,  noting not only
what is said, but what reactions the spoken words elicit from members of both teams and what
body language and infliction accompany the  spoken word.

Preparing the Team	
The preparation stage is where the basic work is done to manage the negotiating team and the
vertical hierarchy. The team is chosen, the team leader and other team roles are designated,
and the ground rules for team conduct (when and how to caucus, how to resolve disputes, etc.)
are established. The team works with the vertical hierarchy to provide needed support, agree
on the objectives  of the negotiation, and establish  an ongoing line of communication.
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Substantive Preparation
Substantive preparation includes research to determine what facts and laws relevant to the case
are known and unknown and what additional facts and laws, if any, must be known before
the negotiation commences or concludes. It must be determined whether such facts will be
available from the other side and, if so, whether they will be reliable, or whether they must
be gathered independently. Needed additional factual or legal research must be identified,
assigned, and completed.  The issues to be resolved must be then identified, together with the
importance of the issues to EPA and the range of resolutions to each that are acceptable to
EPA. Issues on which flexibility and compromise are most easy should be identified. Finally,
the strengths  and weaknesses  of EPA's case  must  be analyzed and  their implications
understood.

Investigating the Opposition	
Next, basic intelligence needs to be done on the opposition and its negotiating team.  Who is
the opposition?  How big is it?  How well off is it financially? How is it structured?  How
trustworthy is it?  How cooperative or litigious is it? To what pressures is it susceptible?
What leverage (enforcement tools, positive incentives, etc.) do EPA and other governmental
departments have over it and how can the leverage be used? Can EPA action interfere with
the opposition's plans in a meaningful way (its plans  to secure a loan, sell an issue of stock,
consummate a merger, etc.)?  What facts does it have?  What facts must it make known before
the negotiations can be concluded? What issues does it see and how important are they to it?
What are its underlying needs, interests and assumptions?  What are its expectations and how
can they be lowered? What is its likely opening  position?  How will it react  to various
possible EPA demands?  What are the strengths and weaknesses of its case and how can they
be exploited?

Intelligence on the other side can be gathered from many places: business literature, the news
media, SEC filings, EPA and other government agency records, etc.  But intelligence should
be gathered orally as  well, particularly on  the opponent's negotiators. If the opponent is well
known, other EPA or Department of Justice personnel will have dealt with its representatives.
The State  Attorney   General  and personnel  from  other  state  and  Federal  government
departments can supplement this information.

Moving Into the Negotiation	
Now, and only now, is the team in the position to refine its objectives, develop a strategy to
reach the objectives, and develop an opening position or offer and appropriate fall backs or
alternatives.  At this stage it is also ready to draft an agenda and determine what logistical
arrangements best suit its interests.

Preparation With the Other Team	
Preparation with the other team begins before the first negotiating session and may continue
at the commencement of the session with agreement on an agenda and negotiating rules. The
agenda may be both for the initial negotiating session and for subsequent meetings. It can
involve setting deadlines to complete different aspects of the negotiation.   The agenda is
important in a number of respects.  It should surface all of the issues and make it hard to raise
last minute concerns.  It should order the proceedings.  Issues can be ordered to address more
easily resolved ones initially, to build good feelings,  a  commitment  to  the  process, and a
momentum toward settlement.
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Managing People
The main groups the team leader must manage are:  his or her own team (both table team
members and those who  support  it such as inspectors and  experts), his  or  her vertical
hierarchy (branch chiefs,  division  directors, etc., in  the region and Headquarters from all
concerned program and enforcement offices), and outside groups that  may have an interest
in or an influence on the outcome of the negotiation (other Federal and state agencies, elected
officials, public interest groups, media).  And, of course, the whole point of the exercise is
to manage the other side to the negotiation.

Team Management	
Team management is necessary both to get the maximum benefit from the members of the
team  and to  assure that team members don't inadvertently  interfere with  the  team's
effectiveness.  Before active negotiation with the other side begins, the team leader must:

      •   Assure that each team member is thoroughly prepared in his or her particular aspect
         of the case;

      •   Assure that each team member shares his or her knowledge and experience with the
         rest of the team;

      •   Lead the team in developing  its strategy and tactics; and

      •   Establish the basic rules by which the team will govern itself during the course of
         the negotiations.

The task of establishing the basic rules for  the team warrants special emphasis.  Just as there
are few rules for negotiating, there are few rules for the conduct of team members, aside from
the necessity for rules, agreement to the rules by team members, and adherence to the rules.
Two sets of ground  rules on which the team  must agree are:

      •   How  decisions will be made within  the team; and

      •   How  communications outside the team will be handled.

Often the easiest set of rules for effective negotiation are based on the principles of decision
within the team by consensus, and communications outside the team by the team leader. As
teams grown accustomed to and comfortable functioning together, these principles may be
varied: decisions  within the  team need  not  be  by  consensus in  matters all agree  are
unimportant; different team members may be spokespeople on matters within their expertise,
etc.
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Team Decision Making and Dispute Resolution: Effective Caucusing

As close to anything as an absolute rule in negotiation is that the team must decide upon its
course of action and resolve differences between team members internally rather than before
the other  side.  This  means doing so  away  from the negotiating  table and out of the
negotiating room. It also means agreeing on when to call caucuses just after members of the
other side have made a major factual presentation, they may deduce  that some of the  facts
they presented were unknown to you are causing you to reassess your position.  This could be
of great strategic or tactical value to them. If,  when the team leader wants to caucus or gets
a signal from a team member to caucus, he or she changes the subject under discussion in the
negotiation and calls a caucus a few minutes later, the purpose of the caucus may not be
evident to the other side.

Nothing distinguishes the unprepared, amateur  negotiating team from  prepared professionals
as much as discussion  between team members to resolve  internal  team differences at the
negotiating table. That gives great advantages  to the other team: it can tell who sides with
it and who doesn't, who wants  to settle and who doesn't, and who is prepared and who  isn't.
It then can orient its tactics and presentation to support its friends on the  disordered team.
Caucusing should be done away from the table and in another room.

Caucusing is an important tool of team management and can not be used too much.  Caucuses
aren't just used to avoid displaying dirty linen at the negotiating table. Their uses are many:

      •  To regroup after a surprise;

      •  To let tempers cool;

      •  To get information or opinions from experts not at the table; and

      •  To clarify negotiating authority with  the vertical hierarchy.

Managing the EPA Vertical Hierarchy	

Among the most difficult problems encountered by EPA negotiators were those involving
their  vertical hierarchies.  All  too often these  managers were untrained and inexperienced
negotiators and unwilling  to devote the time and attention to performing their proper  roles
in negotiations. This can make it impossible for the negotiating team to perform optimally.
It may be a problem the team cannot overcome.  But it often can be overcome and can usually
at least be improved upon with sufficient effort by the team.

Managing the vertical hierarchy also begins at the preparation stage.  Initially the team leader
must  identify what vertical hierarchy is involved and how much of the vertical hierarchy is
likely to become involved in the case in any real sense. This can be difficult in EPA where
there are multiple hierarchies that may become interested in any particular matter.  Settling
a hazardous  waste  case  involving surface water contamination  and issues  of  statutory
interpretation, for instance, may require concurrence from both Regional and  Headquarters
program offices for both  RCRA  and CERCLA, Regional and Headquarters  personnel for
Enforcement and General Counsel,  and the Department of Justice.  Some cases will involve
the Administrator.  Few  negotiating team leaders will have  the organizational stature to
orchestrate such an unwieldy and potentially conflicting set of hierarchies.  But he or she can
and must identify what part of EPA's organizational structure  should be involved in a case
and are necessary to its resolution.  The  team leader can then work with his or her  own
superiors to get other vertical hierarchies involved productively.

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The vertical hierarchy must be managed in a number of respects:

     •   To assign the right team members;

     •   To agree in advance on settlement objectives

     •   To provide necessary resources;

     •   To prevent end runs to the top of the hierarchy or at least to blunt their potential
         disruption;

     •   To provide flexibility in settlement objectives as circumstances change; and

     •   To approve a recommended settlement.

In particular circumstances the vertical hierarchy must provide other support, e.g., to consider
whether an existing general policy should be modified to accommodate a specific  situation.
The better the team manages the vertical hierarchy, the more likely it is to secure the vertical
hierarchy's support and  agreement when needed.

The vertical hierarchy is managed:

     •   By communication;

     •   By keeping it informed of developments, and

     •   By gaining its  advanced concurrence for positions taken.

Managing the vertical hierarchy often requires more negotiation with it than with the other
side.  The techniques used in both sets of negotiations  are much the same. The  time and
effort spent in internal negotiations is usually more than the time spent at the negotiating table
with the other side.  If this sometimes is  discouraging, it may help to remember that this is
one of the negotiator's basic tasks and that the same thing is probably happening on the other
side.

Managing Other Plavers	
There are two types of other players that must be managed: those at the table and those not
at the table.

     •   Plavers at the Table.  Often there will be two or  more teams  at a multi-party
         negotiation that share mutual interests.  The normal negotiating partner of this type
         for EPA is a state environmental agency. When this occurs, EPA and the state may
         be viewed  together as  a loose sort of a negotiating team and managed as such.
         Managing this sort of effort is obviously more difficult than managing an effort that
         is all under one roof.  But it is doubly necessary to assure that the other side does
         not divide and conquer the two agencies.
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        The two agencies must first determine where their common ground lies and what
        differences they have, if any.  This will help them determine how  to organize
        themselves and who should be the lead during the negotiation or on  what issue
        during the negotiation.  It will also help them develop negotiating objectives that are
        mutually supportive rather than destructive.

        Plavers Not at the Table. There may be "phantom" players in a negotiation, players
        that are not directly represented at the negotiating table or in the vertical hierarchy,
        but who are nonetheless interested in  the outcome of the negotiation  and able to
        exert an influence on its outcome.  This is particularly true with many EPA cases.
        the more significant or controversial the case, the more likely and more numerous
        these phantom players will be.  They can include senators and congressmen, White
        House staff,  other Federal departments, state agencies, special interest groups, the
        media, etc. Specific strategies are necessary to deal with each,  but the first task is
        to  determine who  the phantom  players  are  likely  to  be  and  the extent of the
        influence they can  wield on the process.

        The primary management task of  the negotiating  team with  regard to phantom
        players is to make sure they know they are not parties to the negotiation and cannot
        and will not be treated as such. If appropriate, they can be listed to for their views
        and be assured that their views will be carefully considered. Indeed, they may have
        information  that will  be of value to you in  the negotiations.  Perhaps phantom
        players should be assured that they will be briefed on the outcome and told how their
        views were considered and dealt with.  But they seldom should be advised of the
        course of the negotiation as it develops or  be consulted as decisions are  made.  Few
        shadow players will really expect more. But they will take more if they can get it.
        The negotiating team must know when and how to say "no" and have managed the
        vertical hierarchy so that it will affirm the "no."
Managing Time:  The Importance of Deadlines	

There is an old lawyer's saying that 90 percent of cases settle on the court house steps.  The
saying makes two points about the timing of negotiations:  Unmanaged negotiations tend to
drag on forever; and managing negotiations includes establishing and adhering to deadlines.

Establishing and  adhering  to deadlines  is the normal  method of expediting resolution of
negotiations.  The old lawyer's saying that 90 percent of cases settle on the court house steps
is a reference to the ultimate deadline:  the commencement of a trial. Good time management
usually will aim to avoid this deadline and resolve disputes at a much earlier stage, before the
diversion of resources to discovery and trial preparation.  Setting deadlines is easy for EPA
in enforcement cases because EPA controls the timing of enforcement activities: the issuance
of orders, the filing of a complaint, the deposition of a company's CEO, etc.  Deadlines should
be set for action producing events, but for reasonable periods of time.  They should be set not
only for ultimate resolution of a dispute, but also for interim milestones along the way.
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Management of milestones during a protracted negotiation may require considerable judgment:
the threat to file a complaint if settlement is not reached on a date certain should not be
slavishly adhered to if settlement is close, good progress is being made, and there is no foot-
dragging on the other side.  Under such circumstances, filing the complaint  discourages the
other side and may result in slackening the pace of negotiations, because the other side no
longer has inducement for quick action and both sides must divert attention to litigation. At
the same time, if deadlines routinely pass with no follow through with threatened sanctions,
deadlines will soon lose their credibility and usefulness.
Managing the Process	

Management of the negotiation  process is important for a number  of reasons.  Good
management cam make the process efficient, moving a dispute along to quick settlement with
few diversions.  Good management can help the manager improve his team's position in the
settlement.

Projecting Power	
By appearing to manage the process, the manager is seen to have power over the process and
power is important in negotiations.  The side with the power should get most of what it wants.

Government usually has the most power in an enforcement negotiation. It has the power:

      •  To improve sanctions against corporations and responsible individuals;

      •  To grant, deny, or delay permits;

      •  To order monitoring, studies,  and disclosure of information;

      •  To conduct endless inspections;

      •  To make facilities ineligible for Government contracts;

      •  To cause financially damaging publicity; and

      •  To generally make life miserable for corporate management.

Projecting power require self-confident awareness of the Government's interests and its rights
and ability to protect or secure those interests. Power is projected, among other means, by
managing the negotiating process.
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Controlling Significant Functions	

Managing the negotiation process requires recognizing management functions and seizing the
initiative to perform them or assign them for performance. Many of those functions have
been discussed already. They include:

     •   Drafting an agenda;

     •   Establishing the ground rules of the negotiations;

     •   Making initial contact with the other side;

     •   Making introductions and the opening statement  at the first negotiating
         session;

     •   Establishing a schedule for the negotiations with deadlines;

     •   Appointing a team member as timekeeper;

     •   Designating a meeting place;

     •   Arranging for the logistics of the meeting; and

     •   Drafting the settlement papers.

Drafting settlement papers is often an important method of exerting control and increasing
bargaining position. It places the burden of raising, arguing  for, and justifying every change,
no matter how small, on the other side.  There may be reasons in particular cases not to do
this. It may give the other side a false sense of confidence to be the initial drafter.  The other
side may have a superlative drafter who is demonstrably fair and can hasten the process along.
On issues where  the other side has a more thorough grasp of important facts, it may save time
to have it do an  initial draft of parts of an order relevant to those facts.

Selecting the Meeting  Place	
The selection of a meeting room can help or hinder a negotiation. It is particularly important
in protracted negotiations.  It should be comfortable and conducive to good communications
and hard work. It should not have diversions, excessive noise, foot traffic, scenery, comfort,
etc. If paperwork is to be done at the meeting, it should be close to the necessary logistical
support.  It should be closed to caucusing areas with  telephones.

Location in EPA offices emphasizes the power of EPA as a negotiator. This can be enhanced
by holding the meeting at the U.S. Attorney's office.  Other consideration may be important
in particular cases.  Negotiations  at the site of  a problem may facilitate the understanding
and resolution of the problem by  the negotiators.  Meeting on the defendant's territory may
make them more comfortable and more easy to deal with.  Alternating meeting between the
territory of the two teams  lends  an  aura of fairness and  even  handedness.  If sessions are
expected to last into the evening, it may be important to  meet where after hours logistical
support is available.
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Arranging the Plavers
Do room arrangements contribute to the negotiating dynamics?  Very definitely.  Putting
teams on opposite sides of a rooms puts distance between them, causes problems with hearing
unless voices are raised, and is not conducive to building good working relationships between
the teams. Using a round table eliminates some of the adversarial atmosphere of a negotiation
and facilitates working relationships.  If there  are more than two teams involved, their
placement can facilitate "divide and conquer" tactics by separating natural allies physically or
can help co-op a team by seating  it with you.

While there  is no hard  and fast rule as to what table shape or seating configuration is best,
different arrangements will facilitate different dynamics and should therefore be considered
and arranged by the meeting host in advance  of the meeting.  Any arrangement, of course,
is subject to negotiation at the opening of the meeting.

Effective Bargaining	
On some issues in a negotiation there is an objective standard to be met or against which an
agreement can be judged, e.g., compliance with a regulatory requirement.  There can't be
much bargaining about meeting such a standard -- unless  application of  the  standard is
unclear.  But  the means of achieving the standard and  the time involved may  be open to
bargaining, as are the amount of any penalty and any agreement desired by either party that
is  not required by law.

Negotiation may often achieve better results for EPA than litigation.  One of the attractions
to EPA of negotiated settlements is the ability to use leverage and/or to secure sanctions or
concessions that are beyond those authorized by the statute being enforced.

Managing Expectations	
The importance of properly managing expectations is most clear when the consequences of
mismanaging expectations are understood.   In a number of practice negotiations by  EPA
personnel,  inexperienced negotiators often  sent mixed  signals to  the other side.   In one
exercise, when one EPA negotiation team  decided  it  needed a $50,000 penalty,  its lead
negotiators said to the other side in an almost apologetic voice, "We really would like to get
a penalty of around $50,000." The other side took this to mean the EPA team wasn't serious
about stiff penalties and had no idea of getting anything close to $50,000.  It assumed that
agreement could easily be reached in the $10,000 to $15,000 range, the limit to which it could
agree, and went on to iron out technical matters. When penalties were finally discussed again
at the end of the session, it was  shocked to find EPA unyielding at $50,000.  It thought EPA
has misled  it.  One member of the team thought the EPA spokesman had acted in bad faith.
No settlement  was  reached by the end of the session.  In  fact, some of the technical
agreements reached earlier began to unravel.
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In the normal case, the other side already has an expectation with  regard to EPA's  initial
penalty demand even before it is made:  it probably will be more than EPA is willing to settle
for in the end, probably at least twice as much. Knowing this, EPA should start out with a
demand at least  twice as high as  it is willing to accept  and be  adamant about  it  from the
beginning. The  other side will hope that it can cut EPA's demand in half, but it won't be
sure  it can because of EPA's adamant demands and justification. Indeed, it will prepare its
vertical  hierarchy for the bitter  pill of paying  close to what  EPA demands.  As EPA
eventually lets the other side whittle away at the demand  amount, the other side will be
pleased with  its  progress, appear  to its vertical hierarchy to be  doing a good job, and will
readily agree on  a penalty amount, possible higher than EPA set as a goal for itself.

If the other side's penalty expectations can be managed by EPA negotiators, as suggested
above, they can also be managed in a more general manner by EPA's enunciated policies and
public pronouncements.   EPA's penalty  policy is a significant effort to manage penalty
expectations, both in terms of the general framework by  which penalty amounts will be
determined and  of the amounts expected to be paid.  While the policy has not  created the
expectation that  EPA always will recover the economic benefits of delayed compliance  if that
benefit is measured in the millions, it has created the expectation that EPA will  seek and
secure penalties at a significantly higher level than in the  past. Negotiators may capitalize on
this to manage expectations in individual negotiations.  For instance, they can send a copy of
the policy to the other side and request that the other side furnish  in advance  of the first
negotiating session the figures needed to calculate the  benefit of delayed compliance.

Of course penalties are not the only issue  on which expectations  may or should be managed.
The  techniques  for managing expectations  are similar whatever the issue involved.   Such
techniques, however, must be devised for the negotiation at hand.  While sending  the other
side  a copy of a  relevant policy may be helpful in lowering expectation in one case, it may
raise expectation in another case by alerting the other side to loopholes in the policy or to its
inherent  weakness.

Managing Concessions	
There  are a  number of other  management techniques that  can  be used to strengthen a
negotiator's bargaining position.  They begin with inventorying the concessions that the team
can make and carefully managing when and  how they are used.  In general, a concession
should only be made when something is gained in return. Trades don't necessarily have to be
of equal value — indeed the values of concessions are often  difficult to determine and of
different values to the giver and receiver.  The value of a concession can often be enhanced
by withholding it.

Of course, there may be time when effective management of concessions will prompt making
a seemingly gratuitous concession. This often happens toward the beginning of the bargaining
phase of a negotiation. It may signal the team's willingness to bargain or be flexible. It may
establish good will.  But even in these situations concession  likely to produce the desired
result?  Is it the least concession that can be made to produce the result? Is the result worth
the concession?
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Managing Public Pronouncements
There should be only one public spokesperson for a negotiation and all inquiries must be
routed to that spokesperson. If it is not the team leader, a person in the press office who has
been trained in. the sensitivity of enforcement n matters is often the next best choice.  There
must be agreement on what can and cannot be said. Often care must be taken not to give the
other side information publicly that it has not been able to get in negotiations.

Is there a perfect negotiating style? Or one that is best for EPA officials?  There are as many
styles of negotiating as there are personalities.  Nevertheless,  a composite of key elements
from most negotiating styles can be plotted on a spectrum from cooperative  to competitive.
At one end is the cooperative wimp who concedes every point.  At the other is the obnoxious
gunslinger who no one trusts and most people avoid. Most of us are somewhere between the
two.

A study of effectiveness in attorneys' negotiating styles was conducted in Phoenix. Attorneys
were asked to rank the degree of success achieved by the opposing attorney in their latest
negotiation. They also ranked their opponents in over  100 characteristics which enable the
researchers to  place  them  on the spectrum  of negotiating  styles,  from  cooperative  to
aggressive.  Sixty-five percent of the negotiators were rated  as cooperative,  of which 58
percent  were  ranked  as effective  by their opponents.   Only 25  percent  were  rated  as
aggressive, of which only 25 percent were ranked as effective. Thus, while cooperativeness
is no guarantee of success, it may be easier to be successful in a cooperative mode than in an
aggressive mode. At the same time, when the aggressive attorneys were successful, they often
achieved betteir results for  their clients than  did their successful cooperative  colleagues.
Honest and trustworthy  behavior were found  to be primary characteristics of successful
negotiators of both styles.
Pointers for Conducting Negotiations
Before the Negotiation
      •   Constitute the negotiation team, make  role assignments, and set ground rules for
         team operation.

      •   Know what issues are to be negotiated and the range of solutions acceptable to EPA
         for each;  know which  ones are more flexible and  more readily available  for
         compromise.

      •   Get a pre-agreement on EPA's positions from your vertical hierarchy.

      •   Be sure all the relevant facts are known.
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During the Negotiation
     •   Find a common goal for the negotiation that both sides can agree on.

     •   Establish ground rules and set an agenda.

     •   Set deadlines or timetables for decisions.

     •   Present an opening position that is low enough to be plausible but high enough to
         be taken seriously.

     •   Use lists, maps, and other physical demonstrations to explain, persuade.

     •   Gauge the chance your  (current)  proposal has in  light  of the opponent's present
         thinking -- the "presently perceived choice."  What would need to change to get
         them to say yes?

         — Rephrase the proposal
         — Propose it to someone else
         — See if you can make their negative reaction less so
         --If they can say no now, construct a fading opportunity

     •   Ask why something is desired; understanding the opponent's interests -- and your
         own more clearly -- opens up the  discussion and can lead to an expanded range of
         alternatives.

     •   Remember  that  nothing in a negotiation is  "their"  problem;  everything is "our"
         problem because if you don't help them solve it, they won't help you.

     •   Never assume the other side sees the issues as you  do. Perceptions are often more
         important than facts. Sell the other side through their styles of viewing the world.
         Formulate your arguments and statements to conform to their ways of thinking.

     •   Check for understanding and summarize frequently. Restate the other side's position
         to check your understanding, and  have them do so with  your position.

     •   Never surprise the other side.

     •   If you have something to give the  other side, even  though minor, withhold it for a
         while. This will make it increase in value even if the other side  views it as minor.
         They will begin to think it has more value because you won't give it  up.

     •   Record agreements.
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     •   Don't start to give in too easily as agreement momentum builds.  Take breaks to
         review goals/interests.

     •   Use team caucuses frequently.  Never disagree internally in front of the opponent.

     •   Focus on deadlines. You can get better terms if you know the other side's deadlines.

     •   Keep information flowing to your vertical hierarchy, and keep them involved in the
         process.   This makes them part  of your team, arguing for the settlement you
         produce.

Counterpoints to  "Hard Bargaining"  or Tricky Tactics

     •   Slow down to avoid a too speedy closure.

     •   Take breaks.

     •   Don't counterattack when they attack.

     •   Ignore provocation.

     •   Physically move next to the person.

     •   Recast personal attack as one of the problems.

     •   Let them blow off steam.

     •   Agree if their anger is justified.

     •   Address the issue or tactic.

     •   Keep returning to substance.

     •   Refuse to respond to threats and state  you only negotiate on the merits.

     •   Insist on principled justification of their position.

     •   Switch points.

     •   Physically move back.

     •   Use warnings, not threats.

     •   Don't resist criticism; invite it.  Ask for their  advice.

     •   Be nice.

     •   Break off and tell them to call you when they want to continue.

     •   Look for face savers for the other side.

     •   Create a fading opportunity for an agreement.
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The Successful Negotiator
     •   The best negotiators are good listeners, not talkers.  Listening tips:

         — Ask only open-ended questions.
         — Display attentive behavior.
         — Empathize.
         — Paraphrase to communicate your understanding of the other side's statements.

     •   Successful negotiators tend to:

         -  Avoid things which irritate the other side.
         -  Avoid counter proposals.
         -  Avoid getting into the attack-defense spiral.
         -  Do not dilute arguments; they give one or two strong reasons rather than many
            weak ones.
         -  Start with reasons for disagreeing and then disagree, not vice versa.
         -  Constantly seek  more information than what's provided.
         -  Say how they're thinking or feeling; give process information.
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20 - Press/Public Relations

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                                       CHAPTER 20

                             PRESS AND PUBLIC RELATIONS
EPA inspectors should be aware that the public and press have a desire and a right to know about
EPA enforcement activities.  However, since premature release of sensitive  information  may
jeopardize the status of  an enforcement proceeding, the Agency cannot always provide unlimited
access to information or fully answer all questions.  This chapter presents EPA's press policy, a
discussion of the inspector's role in addressing inquiries received under the Freedom of Information
Act, and guidance  for  dealing effectively with  the  public.  Statements to the  "public"  include
statements made to the press, facility officials,  and third parties such as citizens.

The Agency has a.n open, "fish bowl" approach  to press and public relations which allows members
of the press to contact EPA employees directly for information.  However,  the  potential for
confusion and damage to the Agency's investigation and enforcement efforts makes it essential that
all public statements regarding a particular investigation be coordinated through one individual. In
typical cases, this person will be the inspection team leader or a designated  member of the inspection
team.

When there is substantial public and press interest, special arrangements for handling inquiries may
be made, such as assigning a staff person from the press  office to help.  In all circumstances, the
reason for having one person coordinate is to assure that the  Agency speaks with one voice  and has
knowledge of exactly what information has and has not been released publicly.
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                                 20A PRESS RELATIONS
Under EPA's open press relations policy, members of the press can contact EPA employees directly,
and EPA  employees are,  with two exceptions,  free to speak with representatives of print and
electronic media.  This policy encourages full disclosure of EPA activities and policies, making
information readily available to the press and the public.  The exceptions are  that EPA employees
are prohibited from disclosing: (1) confidential business information and (2) information surrounding
a potential or pending criminal investigation.

The EPA maintains this open press policy for the following reasons:

     •  The public is entitled to know of real or suspected health dangers,

     •  Taxpayeirs deserve to be told how their tax money  is being spent,  and

     •  Information about  specific activities should be supplied by the people who are most
        knowledgeable of those activities.

Each  EPA office has its own policies and guidelines for how specific press  and  public inquiries
should be handled by EPA staff. Inspectors should follow these guidelines as  well as the direction
of their  program  managers regarding response  to requests  for information.  EPA's Office of
Enforcement and  Compliance Monitoring has developed a general press policy for  publicizing
enforcement activities (civil proceedings press policy) and guidelines for response to media inquiries
regarding active and  freshly concluded  criminal enforcement cases (criminal  proceedings  press
policy). The following sections present the Agency's policy; inspectors  should also  become familiar
with the specific policy and  practices in their organization.


Civil Proceedings; Press Policy	

EPA's civil proceedings press policy, "EPA Policy on  Publicizing Enforcement Activities,"  is
presented below.  It is intended to improve EPA communications with the public and the regulated
community regarding the goals and activities of the Agency's  enforcement program.

It is the policy of EPA to use the publicity of enforcement activities as a  key element of the Agency's
program to deter noncompliance with the environmental laws and regulations.  Publicizing Agency
enforcement activities  on an active and  timely basis informs both the  public and the regulated
community about EPA's efforts to promote compliance.

Press  releases should be issued for judicial  and administrative enforcement actions, including
settlements and successful rulings, and other significant enforcement program activities. Further,
the Agency employs a range of methods of publicity such as press conferences and informal press
briefings, article:;, prepared statements, interviews, and appearances at seminars by knowledgeable
and authorized representatives of the Agency to inform the public of these activities. The EPA will
work closely with the States in developing publicity on joint enforcement activities and in supporting
State enforcement  efforts.
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Criminal Proceedings Press Policy
The  EPA's press  policy in the criminal enforcement program seeks  to strike a balance between
providing the public  with necessary information and  protecting the reputations of subjects  of
enforcement actions to ensure that a case is not unfairly prejudiced and the right to a fair trial is
protected. Further, accurate reporting of charges brought and convictions obtained in EPA criminal
cases is an important component of the deterrent effect that such cases are expected to have upon
unlawful conduct. EPA criminal investigations are normally handled by a Special Agent in Charge
(SAIC), Resident  Agent in Charge (RAIC), or a  Lead Special Agent  (LSA) of the  National
Enforcement Investigations Center (NEIC), Office of Criminal Investigations (OCI).  In most cases,
contact between the Agency and  the public and press will be handled directly by the SAIC, RAIC,
or LSA.  The following paragraphs summarize agencywide  press guidelines with  respect to the
criminal enforcement  program.

General Guidelines	
When Agency personnel encounter members of the  media in the course  of  active investigative
activities, they should not obstruct or prevent the media representatives  from conducting their
professional activities, so long as these activities are lawful and do not improperly interfere with the
Agency's investigative functions.  The appropriate SAIC, RAIC, LSA, or public affairs officer (after
clearance with the SAIC, RAIC or LSA) may provide a brief statement concerning the nature of the
investigative activity (e.g., "The Agency is involved in the execution of a search warrant").  Beyond
a simple statement confirming  investigative activity witnessed  by the public,  under  ordinary
circumstances no further comments should  be made by any Agency personnel.  Inquiries beyond
these limited statements should be referred either to the local United States Attorney's Office (if a
prosecutor has been assigned) or to the Environmental Crimes Unit of the Department of Justice
(DOJ) for any further comment.

The  SAIC or RAIC should notify the Office of Regional Counsel  (ORC) before any investigative
event that may generate publicity (or, in instances where pre-event secrecy  must be maintained, as
soon thereafter as is practicable).  Throughout the course of the criminal investigation, SAICs and
RAICs also are responsible for ensuring that the staff attorneys assigned to  the case from the ORC
and  the Office of Criminal Enforcement Counsel (OCEC) are supplied with copies of relevant
documents containing public information that may be necessary to respond  to media inquiries (for
example, applications for search warrants).

In some cases it may be advisable to notify the public of apparent health or environmental hazards
which also are the subject of a criminal investigation. In these cases, designated spokespersons from
the Headquarters Press Office (HPO) or Regional Office of Public Affairs (OPA) may be authorized
to provide the necessary information or to tell the public that it will be notified if the health threat
arises.

The  media may on occasion make requests under the Freedom of Information Act (FOIA), 5 U.S.C.
Section 552, which relate directly or indirectly to a criminal investigation.  It  is essential that any
responses to such requests be made only after the concurrence of the SAIC/RAIC and the appropriate
ORC attorney or criminal enforcement  contact and the appropriate OCEC attorney.  Failure to
follow this procedure may inadvertently signal the existence of a confidential criminal investigation
or might otherwise provide information which could compromise the case.
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Certain information gathered by EPA under statutory powers may become subject to mandatory
disclosure upon request, including a media inquiry.  If a request for information that might be
subject to mandatory release concerns a target of a criminal investigation, and concerns the same
basic subject matter as the investigation, information may not be released without the consent of the
SAIC  or RAIC and the appropriate ORC and OCEC attorneys (with the consultation of DOJ as
appropriate).

EPA personnel will at no time encourage or assist the media in  photographing  or televising an
accused person, any aspect of an active  investigation, or any facility involved in an  Agency
investigation.  Moreover, the Agency will not ordinarily make available photographs of an accused.
Information which is  authorized to be disclosed to the media should be provided equally  to all
members of the media, subject to any limitations imposed by law or court order.

Any conflicting opinions among Agency personnel as to what information may be disclosed to the
public or when disclosure can occur must be resolved at the Headquarters level, after Headquarters'
consultation with DOJ and the Assistant Director for Criminal Investigations of NEIC.

Response to Media Inquiries	
The existence or non-existence of any criminal investigation must never be confirmed, denied, nor
discussed. Even to acknowledge the existence of an investigation might prejudice the rights of an
individual or compromise an investigation.  When  asked, Agency personnel must  respond:  "It is
Agency policy to neither confirm nor deny the existence of a criminal investigation."  Of course,
to be effective, this response must be utilized habitually even when it is known that no criminal
investigation is planned or under way.  In the event that this response proves insufficient to quell
a particular  inquiry, Agency personnel may direct  the inquirer to the appropriate  SAIC or RAIC
(who  will generally be much  more accustomed  to handling persistent inquiries), but under no
circumstances  may Agency  personnel acknowledge the existence or nonexistence of a criminal
investigation or provide any information related to  it.

At any time  after a DOJ prosecutor has been assigned or the case has been referred to the DOJ, EPA
personnel will not respond to media inquiries or volunteer comments on the case, whether oral or
written, for  attribution or not, without the prior expressed approval of the DOJ, until the case is
concluded absolutely. Such media inquiries will normally be forwarded to the lead prosecutor, either
with the local office of the United States Attorney or the Environmental Crimes Section of the DOJ
assigned to the case.  If the  Agency wishes to issue a DOJ-authorized media release when formal
charges are made or upon the occurrence of other critical events in the prosecution, EPA will honor
DOJ policy and not issue a release without the prior approval of DOJ.

In general, the Headquarters Press Office (HPO) will have the lead responsibility for preparing media
releases.  The OCEC or ORC attorney will assist in drafting the media release as requested by HPO.
HPO is responsible for coordination with the Regional OPA and for obtaining a concurrence from
OCEC (and  ORC, where applicable). To be effective, it is essential that a media release be issued
as contemporaneously as possible with the event it is publicizing.  Therefore, it is critical that Agency
personnel involved in  the particular criminal enforcement  proceeding provide HPO (and/or the
Regional OPA) with all necessary information, as well as review and  concurrence, on an expedited
basis.
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To ensure the accuracy of responses, and to protect against inadvertent prejudice to the rights of
defendants in active cases,  media inquiries should be  directed to the most  appropriate of the
following destinations:

     •   Headquarters  Press Office
         FTS 382-4355
         E-Mail Box EPA 1704  (Washington, DC)

     •   Associate Criminal Enforcement Counsel
         FTS 475-9660
         E-Mail Box EPA 2284  (Washington, DC)

     •   Assistant Director for Criminal Investigations
         National Enforcement Investigations Center
         FTS 776-3215
         E-Mail Box EPA 2390  (Denver, CO)
EPA Press Division	

The EPA  Press Division is an important channel in disseminating information about EPA and in
deciding how best to release that information. The following section introduces the EPA Press
Division and discusses the services it provides.

The EPA Press Division is located within the Office of External Affairs, Office of Public Affairs.
It provides the media with adequate and timely information, responds to queries from the media
regarding EPA program activities, and assures that EPA's policy of openness in all information
matters, is honored in all respects. It provides a system for the EPA to educate citizens and respond
to  their concerns about environmental issues  and  guarantees  that  opportunities exist for public
involvement in the resolution of problems.

The EPA Press Division provides the principal dissemination system for EPA announcements, press
releases, press statements, speeches, congressional testimony, public hearing testimony, calendars of
principal officers, biographies of principal officers, and other documents of interest to the press.
This Division monitors nationwide  media coverage of Agency activities and policies, as well as
external events and developments of interests to the environmental community.

Both  Headquarters and Regional Offices of  the  Press Division can  provide assistance in  the
development of press releases, interviews, and  statements.  To make best use  of their services:

     •  Notify them prior to issuance of a press release.  The EPA Press Division holds a weekly
        conference  call with all Regional press offices to coordinate  the  release  of important
        information.

     •  Enlist their  assistance  in  development of public  communications.   Several  different
        alternatives  to a press release may  be used to disseminate  the  substantive information
        associated with a given investigation. The Press Division will assist in determining the best
        method of dissemination for the specific circumstances involved.

     •  Keep them informed of developments in public and press relations on a regular basis.


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The EPA Headquarters Press Division has a press specialist for each major program office.  EPA
inspectors are encouraged to contact these specialists or their counterparts in EPA Regional Offices
when they have questions, comments, or problems regarding public affairs and information releases.
Dealing with the Press During Field Investigations	

Circumstances may arise during an inspection when inspectors may be called upon to deal with the
press.   When an  inspector has  just completed  a particularly  sensitive inspection  or on-site
investigation and is met at the plant or facility gate by a local news team, it is important to know
what should and should not be said to the media. While a specific Region's press policy may differ,
the following general guidelines should help inspectors through these occasions.

     •  What Must Voluntarily Be  Made Known to  the  Press  (Except During  a  Criminal
        Investigation)

        -   Any known dangers to the public health.

            Any information that would dispel unfounded rumors about health dangers that are
            circulating in the community around the site  being investigated.

     •  What Can Be Told to the Press Voluntarily or in  Response to Questions (Except  During a
        Criminal Investigation)

        -   What EPA employees are doing.

        -   How EPA is doing it (e.g., sampling techniques, how the equipment works, how the lab
            goes about analyzing the samples).

            Why it is being done (e.g., to protect water quality, drinking water safety).

            Why  EPA employees are being so careful  (e.g., why  the  inspectors are  wearing
            respirators, "moon suits," or using special equipment).

     •  What Can Be  Said  During  a Criminal Investigation or During a  Pending  Criminal
        Enforcement Case

            EPA  employees should voluntarily provide information about real dangers to public
            health or information needed to dispel panic and fear caused by unfounded rumors of
            health dangers.

            If asked by the press or public, an EPA employee may state if a search warrant has been
            used.  Since the affidavits used to obtain the warrant are public information, they  may
            be made available to  the press.
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•   What Cannot Be Said During a Criminal Investigation or During  a Pending Criminal
    Enforcement Case

       Do  not  confirm,  deny,  or discuss  the existence  or  non-existence of  a  criminal
       investigation.

       Make no characterization of the investigation, other than what is said in the affidavits
       used to obtain the search warrant.

    -   Say nothing that would infringe upon the rights of potential or actual defendants.

    -   Say nothing that would compromise the integrity of the investigation.

       Do not respond to inquiries about a pending criminal enforcement matter without the
       express authorization of the EPA special agent in charge or the Department of Justice
       official directing the investigation or persecution.
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                          20B PUBLIC SPEAKING GUIDELINES
While most inspectors will not address large crowds (at least not as part of their inspector duties),
they may make oral presentations to their inspection team prior to conducting the inspection, brief
facility personnel, brief members of the press, or brief EPA managers on the inspection results. The
material covered in the following sections is intended to improve the effectiveness of such
presentations.

Preparation	
Before speaking in public, organize your presentation. To an experienced speaker, this may mean
jotting down a few notes.  To a less experienced one, it may mean writing detailed notes or even a
manuscript. (Preparing a manuscript takes time, but the effort can pay off by giving a  nervous
speaker the confidence that comes from knowing what he or she is going to say.)  When speaking,
try to keep your style as simple and clear as possible. Use the following suggestions to guide your
writing and speaking:

     •  Organize the presentation in three major sections: why the presentation is being made (i.e.,
        what is the problem?), what you have done or what you are going to do (i.e., what approach
        or methods were used or are going to be  used?), and  what you found out or  plan to
        investigate (i.e., what are the results or the expected types of information  that will  be
        gathered?).

     •  The best way to break unpleasant news is swiftly and directly. Give people  the toughest
        news first. Give them the details as openly and accurately as appropriate.  Focus attention
        productively on solutions rather than blame.1

     •  Never use  long words when short words will do.  A speech writer once gave President
        Franklin D. Roosevelt a weak sentence: "We are endeavoring to construct a more inclusive
        society." FDR said the same thing much more powerfully by getting  rid of the three- and
        four-syllable words:   "We are going to make a country in which no one is left out."2
1    Margaret M. Bedrosian, Speak Like a Pro. (New York:  John Wiley and Sons, Inc., 1987) p. 105.

2    Joan Detz, How to Write and Give a Speech. (New York:  St. Martin's Press, 1984), p. 50.

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•   Avoid jargon.  You risk confusing your audience.

       Jargon

       Finalize
       Impact (verb)
       Implement
       Operationa
       Output
       Viable
Plain English

Finish, complete
Affect
Carry out
Working
Results
Workable
    Don't speak in abbreviations.  Explain every abbreviation you use, at least the first time.

    Simplify phrases.3

       Avoid phrases like                              Instead, try using
       a large number of
       a sufficient number of
       a total of 42
       advance planning
       are in agreement with
       at that point in time
       at the present time
       bring the matter to the attention of
       caused damage to
       check into  the facts
       due to the fact that
       estimated at about
       for the purpose of
       have a discussion
       hold a meeting
       in the majority of instances
       in the area of
       in connection with
       in view of
       in the event of
       in order to
       in many cases
       in some cases
       in the course of
       obtain an estimate of
       of sufficient magnitude
       on the basis of
       provide assistance to
       study in depth
       subsequent to
       take action
       was in communication
       with reference to
       with the exception of
many
enough
42
planning
agree
then
now
tell
damaged
check the facts
because
estimated at
for
discuss
meet
most often, usually
approximately
on, of
because
if
to
often
sometimes
during
estimate
big enough
from
help
study
after
act
talked with
about
except
Ibid, p. 53.
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Rehearsal
Research has shown that mentally rehearsing a presentation or performance helps improve the quality
of the real  thing.   Even  better than mental rehearsal is  an actual dry  run.   Doing a dry  run
accomplishes the following:

     •  It uncovers holes in the material.  You may discover that what you thought was valid  and
        complete turns out to be shaky and incomplete, or that you don't fully know what you're
        going to say.

     •  It prepares  for  the unknown.  Since most presentations  are interactive, with listeners
        commenting and asking questions, you need to be ready for more than you are planning to
        cover. A good dry run can go far toward revealing questions  that are likely to come up.

     •  It makes a smoother, more professional appearing presentation. It  gets the bugs out of the
        mechanics of presentation.  Also, your fluency will improve significantly by one or more
        dry runs.

Conduct your dry runs well in advance so that you have time to make revisions.4

Making the  Presentation	

Nervousness is a problem every speaker, both new and experienced, must confront.  Nervousness,
if focused, is a positive force.  Here are some ways to help reduce nervousness to a healthy level  and
focus it properly:

     •  Prepare thoroughly. Nothing reduces anxiety more than the realization that you  are well-
        prepared and know what you are going to say.

     •  Recognize that you're not alone. The fear of speaking before an audience, even a small one,
        is the single  greatest fear of today's adults.

     •  Practice.  Be prepared for contingencies. Think about what could possibly go wrong  and
        prepare for it.

     •  Have the opening down pat. You are most nervous early in the presentation, and getting off
        to a good start is a great confidence builder.

     •  Gain experience.  Experience builds confidence, which is a key  to effective speaking. Most
        people find that their anxiety lessens each time they speak  before an audience.5
     Thomas Leech,  How to Prepare. Stage and  Deliver  Winning Presentations. (New  York:
     AMACOM), p. 212.

     Ibid, p. 223.

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Effective Communication
Beware of facial expressions or body language that may be perceived as threatening and therefore
may undermine your message.  What is perceived as a constant sneer, glare, or frown will make
receivers feel belittled or challenged.  Gestures such as standing with arms folded across the chest
or maintaining an aggressive posture are also seen as hostile. When delivering an unpleasant message,
try  to keep body language as non-threatening as possible.

Eye contact also is important. Look at people directly. Side glances and looking at people out of the
corner of your eye makes the audience uncomfortable. Talk to everybody in the group.  Speakers
often direct their comments and eye contact almost  exclusively to only a few  people,  often the
authority figures  in the group.  This is generally not appreciated even by those receiving all of the
attention, let alone by those left out.6

Fielding  Questions	
Listen to the entire question and make sure you understand it. A common urge is to start answering
before the questioner completes the question. This often results in answering the wrong question and
irritating the questioner. Instead of instantly blurting out an answer to a question, first figure out
what the question is and the best way to handle it. (In other words, engage brain before mouth).

Even if you listen to the entire question, you may misinterpret it.  A good idea is to repeat or restate
the question before answering it.  Resolve factual errors or misunderstandings quickly.  Often, a
question is based on facts  which the questioner misunderstood or stated incorrectly.  Often, the
question vanishes if correct information is given.6
     Thomas Leech,  How  to  Prepare.  Stage  and Deliver Winning Presentations. (New  York:
     AMACOM), pp. 311-313.

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                         20C FREEDOM OF INFORMATION ACT
This section highlights the important points of the Freedom of Information Act (FOIA) as they
pertain to inspections. For a detailed discussion of the FOIA, its provisions, who is responsible for
fulfilling them, and how EPA should respond to FOIA requests for information, refer to the Freedom
of Information A.ct Manual.

Under the FOIA, an individual can request any EPA record. A  record may include any document,
memorandum, report, photograph, sound or magnetic recording, computer tape, drawing, draft
document, or handwritten notes (except personal notes). EPA may respond to a FOIA request in one
of the following  three ways:

     •  EPA may release the document,

     •  EPA may withhold the document, or

     •  EPA may withhold part of the document.

The Administrator, Deputy Administrator, Assistant Administrators, Regional Administrators, the
General Counsel, the Inspector General, Associate Administrators, and heads of Headquarters staff
offices have the authority to determine whether to release or withhold records from an initial request.
They may delegate this authority, but only to persons occupying positions not lower than division
director or equivalent. Inspectors may be asked  to assist in compiling records for review prior to the
decision to  release or withhold them, or in preparing the records for release.

Although legitimate FOIA requests must be in writing, EPA will make a good faith attempt to
respond to oral requests for records. If the orally requested record can be released under FOIA, EPA
will release the record.  If there is any doubt whether the record should be released, the request
should be made in writing. If a request does not give enough information to identify the record,
EPA will call (or write) the requestor to obtain a more specific request. If a specific request cannot
be honored, EPA will notify the requestor in writing of its inability to honor the request and send
a copy to the appropriate Regional FOIA office.

The FOIA only deals with  requests for records,  not general requests for information. If a requestor
asks a specific question, EPA is not required to answer it under the FOIA unless the request is really
a request for a record. The FOIA also does not apply to future records. The FOIA does not require
the creation of new records in response to a request, and it does not require the Agency to put a
requestor's  name on a distribution list for records as they are  created.
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EPA must answer all written requests in a timely fashion, whether or not the request cites the
Freedom of Information Act.  Written requests must provide an adequate description of the records
sought for EPA to identify and locate them. After receiving a written request, EPA must send a
copy to the appropriate Freedom of Information Act Officer. After receiving the request, the FOIA
Officer or the responsible EPA officer has 10 days to determine whether or not to release the record.
Excluded from this period is any time the requestor spends giving additional information needed to
identify the record, or time required to receive prepayment or assurance of payment.  If the search
involves unusual circumstances (see FOIA Manual, Appendix 4, page 10), EPA may take a 10 day
extension. If EPA withholds a record, the requestor has 30 days to appeal.

If the records are published by the Federal government, but are not in EPA's possession, EPA will
tell the requestor where  the records can be obtained or transfer  the responsibility for handling the
request to the appropriate agency. EPA  will notify the requestor of the transfer.
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21 - Communications
      Skills

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                                      CHAPTER 21

                               COMMUNICATIONS SKILLS
Virtually every aspect of the inspector's job employs communications skills.  The inspector who is
adept at oral and  written communication will be  effective  both in  dealing with the regulated
community and in the planning and management aspects of leading inspections.

This chapter contains brief discussions of several types of communications skills useful to inspectors.
Topics include team building, effective meetings, leadership, assertiveness, time management, and
stress management.
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Leadership
Leadership qualities provide inspectors with the quiet confidence of an individual who is comfortable
with his role and capable of exercising legitimate power -- leadership -- when called upon to do so.

An effective leader is one who uses the right amount of the right kind of power towards the right
ends.  Effective leaders try to:

     •   Make others feel  strong; help them feel  that they can influence their future and their
         environment. When people feel strong, they enjoy their work, feel personally involved,  and
         are motivated to continue and improve work.

     •   Build others' trust in the leader.  Effective  leaders influence subordinates  by  making
         subordinates feel they are concerned and freely share their knowledge and concerns with
         subordinates.

     •   Structure cooperative rather than competitive relationships.  Effective leaders motivate
         subordinates to work with each other to accomplish the company's objectives, rather than
         against each other to accomplish their own objectives.   When a competition is created,
         invariably one party wins and one party loses.  People working together are more able to
         accomplish their personal goals than when operating alone.

     •   Confront conflicts rather than run away.  Effective leaders use their legitimate power to
         confront  conflicts with their  subordinates, and achieve a solution by using  their expert
         power to problem-solve with their subordinates,  rather than their power to  force their
         solution.

     •   Stimulate and promote goal-oriented thinking  and  behavior. People work  more diligently
         and efficiently when they have a clear idea of where  they are going.  However, they also
         need  to be able to  set their own goals.  Effective leaders enable subordinates to participate
         in goal-setting, and use them legitimately  to motivate subordinates to achieve those goals.
Team Building	

EPA inspectors are part of a team.  In the larger sense this team is made up of the EPA and other
Federal,  State, and  local officials  responsible for the  enforcement of environmental laws and
regulations. More specifically, EPA inspectors may work with State and local enforcement personnel
in the conduct of joint inspections, oversight inspections or a review of inspection and enforcement
practices. This section provides some tips for team building.

     •   The team leader operates on two levels: (1) leading the group in performing the task itself,
         in defining and solving the problem; and (2) acting as a leader when required in building
         and maintaining the cohesiveness of the group as a problem-solving unit.

     •   Roles and  responsibilities, expectations,  and schedules  should be  clearly  defined and
         understood.
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     •  The leader enhances group problem solving by:

        -   Providing continuing feedback to group members.

        -   Taking personal risks with new ideas or approaches.

        -   Taking personal responsibility for his or her own actions and actions of the group.

            Respecting and supporting group members and keeping open to their ideas.


Effective Team Meetings	

Although group members must often work  alone, many tasks are best accomplished in  a meeting.
Meetings are good for generating lots of ideas, sharing information, and making collective decisions.
Meetings are not generally  good for organizing  information, doing  detailed analysis and research,
translating ideas into coherent words or drawings, and thousands of other tasks more easily done by
individuals alone.

Careful preplanning can eliminate unnecessary difficulties during a  meeting session.  Furthermore,
it reinforces the leader's confidence and frees him to concentrate during the meeting on the actual
discussion.  Preplanning not only ensures that the meeting time is put to the most efficient use, but
it also helps foster a feeling in the group that the leader has taken a genuine interest in making the
meeting a success.  The leader should prepare an agenda in advance and  know  what should be
accomplished by the close of the meeting.

Some of the functions of meeting leadership are:

     •  Initiating -- suggesting new approaches to a problem if discussion lags.

     •  Orienting -- making sure the group knows exactly where the discussion is going and why.

     •  Clarifying  — making sure that everything that  is said and done is understood  by all
        members of the group.  Statements and actions may have to be repeated or restated before
        they become clear to everyone.

     •  Supplying information --  providing the facts that the group needs to work with.

     •  Integrating — synthesizing all the facts and all the thinking of the group to come up with
        answers that make sense to  everyone.  The idea is to find the answer that combines the best
        points made  by the entire group.

     •  Summarizing -- pulling together all the ideas that the group has been talking about while
        showing their relationship to each other and to the whole problem.

Generally, the best  way to  arrive at a group decision  is through collaborative problem solving, a
win/win method of decision-making. If consensus cannot be reached, a group  can always fall back
on a win/lose method like executive decision.  However, it is very  difficult, if not impossible, to
move from  a win/lose approach to a more collaborative one.  Even  if a group has to resort to
win/lose decision-making,  the experience  of searching collaboratively for  a win/win  solution
encourages group members  to develop an understanding of complex  issues and  gain the satisfaction
of having had an opportunity to participate in developing the best possible alternative.
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There are several steps  that a team leader can take to avoid confusion or disagreement over the
outcome of a meeting, and to give participants a greater sense of having spent their time well.

     •  Summary of accomplishments.  Restate the areas where progress has been reported so that
        everyone is clear on just what has been achieved.

     •  Planning. If there will be a series of meetings, the group should agree on a time and agenda
        for the next meeting and determine what follow-up activities are  required. Planning will
        be more effective if the group  is involved in it.

     •  Assignments. At the close of a meeting, make specific assignments for gathering further
        information, preparing reports, looking into alternative solutions, etc.

     •  Follow-up. Human memories being as fallible as they are, it is important to have a record
        of what action took place at the meeting.  The achievement summaries serve both as  a
        follow-up device for those who have  attended the  meeting and as a reference that should
        be kept on file for future questions.

     •  Self-evaluation.  Privately review and evaluate what happened at  the session.
Time Management	

Efforts expended in managing time are investments which, if successful, have payoff in greater
personal job satisfaction, increased productivity, improved interpersonal relationships, better future
direction, reduced stress, and improved personal health. The following tips should aid in improving
time management.

     •  Begin with taking stock of how your time is currently being spent.  Keep track of time in
        blocks;  track your general routine in one-half hour to one hour blocks.  Identify from this
        the time robbers  taking an inordinate amount of time.

     •  Make both long-term and daily plans. Establish objectives with specific due dates, and rank
        them in priority.   Keep a "To Do"  list. Concentrate on the  high-priority activities.

     •  Schedule effectively.  Block your time; set aside uninterrupted blocks for projects needing
        it.  Be complete;  work left unfinished is an insidious time robber due to the stopping and
        starting. Combine and group similar tasks.

     •  Become results-oriented, but recognize the trade-off between efficiency and perfection.

     •  Be flexible and plan time for breaks.  Plan time  also for the inevitable emergencies.

     •  Delegate whenever possible. Of all the managerial arts, true delegation is the most rare.
        Take time to train subordinates.   Relinquish ownership of problems that belong to  the
        person with the delegated responsibility.

     •  Break up large tasks to avoid the price of procrastination.
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     •   Use discretionary time wisely.  Get organized, act on a piece of paper only once if at all
         feasible, and reduce distractions and interruptions.

     •   Learn to say no; do not let others fritter away your time.

     •   Make efficient use of tidbits of time, such as waiting time in offices.

     •   Schedule time  to relax.  Mini-vacations are a strong deterrent to time anxiety.  These are
         selected brief interludes during the course of the day to "get away from it all." Selected
         means that these mini-vacations  should be scheduled at  specific  times.  What one does
         during the five- or ten-minutes respite is up to  the individual.  The only restrictions are
         that it not be work-related,  and that it be something one enjoys.


Assertiveness	

Assertiveness strikes a balance between aggression and non-assertion.  Assertive people do not put
themselves or others down. This leads to:

     •   Greater self-confidence:  A positive, "sound" self-regard as  opposed to "boastfulness"
         (aggression) or "hopelessness" (non-assertion).

     •   Greater confidence in others:  A healthy recognition of other's abilities and limitations as
         opposed to seeing them  as "inferior" (aggression) or  seeing  them as "superior"  (non-
         assertion).

     •   Increased self-responsibility: Take responsibility for one's own opinions, wants, and needs
         rather than blaming himself  or herself -- "I'm sorry  I made a mess of it" -- (non-assertion)
         or blaming other people -- "It's all your fault this has happened" -- (aggression).

     •   Increased self-control: Thoughts and feelings are channeled so as to produce the behavior
         wanted rather  than being controlled by events, by other people, or by feelings.

     •   A saving in time and energy:  Not preoccupied with not upsetting people (non-assertion)
         nor concerned  about losing out (aggression).  Decisions and choices are based on their merit
         (this saves time with disputes and conflict in the long run).

     •   An increased chance of win/win:  Assertiveness increases the chances that both parties will
         get theiir needs met, their ideas and opinions considered, and their abilities used in the short
         and long run.
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Tips for Practicing Assertive Behavior	

     •  Trust yourself and vour own feelings. Develop the capacity to listen to yourself and know
        your own wants and needs.

     •  Be in touch with the environment.  Understand what other people's wants and needs are.
        They often explain their behavior.

     •  Express  vour ideas and feelings and encourage  others to express theirs.   Expect your
        opinions to be given the same consideration as others.

     •  Be straightforward. Much time and emotional energy is wasted in defending and attacking.

     •  Confront issues.  Behaving assertively can be demanding. You must confront issues. You
        cannot accept "put downs" or attacks or permit yourself to be exploited. An individual who
        behaves assertively can and does argue, disagree,  and push for results.
Stress Management	

This section is provided to make EPA inspectors aware of the various forces which combine to
produce stress, inhibit job performance and lower job satisfaction.   Positive stress management
techniques can help inspectors cope with some of the situations they typically encounter including:

     •  Frequent or extended travel periods

     •  Many hours of travel

     •  Deadlines

     •  Long or unscheduled hours

     •  Hazardous situations

     •  Life-threatening situations

     •  Being outnumbered

     •  Hostility

     •  Confrontations

     •  Staying within budget.

Although  most people  perceive stress as negative,  it can have a positive side. It can be positive
when it is related to needs like acceptance, respect, achievement, and success.  Low levels of stress
act as motivators, getting you revved up and giving you the extra push necessary to get the job done.

The  goal of stress management is not to eliminate  stress.  There is no such thing as a stress-free
environment.  Rather, it is to relieve excessive responses to stressful situations, thus minimizing the
injury they can cause to your body.
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Sources of Workplace Stress
Change and Uncertainty

Although in business,  change and uncertainty are accepted and  anticipated, they are considered
major causes of stress.  Regardless of temperament and experience, even the most self-confident
person will perceive stress in a new situation in which he or she has no experience.

Lack of Control Over One's Job

Also high on the list of job stress causers is lack of control over how one performs one's job. Some
jobs with high psychological strain take the least toll on health.  The difference is that these jobs also
give employees a great deal of control.  Among these jobs are architect, forester, natural scientist,
dentist, skilled machinist, and auto repairman.

Office Distractions

There are an abundance of other,  less major stress factors in the  work environment; for example,
office  noise resulting  from  machines,  excessive conversation, and office  acoustics.   Prolonged
exposure to noise creates fatigue and agitation, and loud and uncontrolled communication between
staff members creates  confusion as well, and is a major cause of  stress. Also stressful is office
pollution created by smoking, poor maintenance, and clutter.
Reducing Stress At Work	

Manage Time Wisely

     •   Don't put off doing a distasteful task -- accept short-term stress as opposed to long-term
         anxiety and discomfort.

     •   Negotiate realistic goals on important projects. Be prepared to propose them yourself rather
         than having them imposed.

     •   Learn to say "no" when appropriate, without feeling guilty.

     •   Limit interruptions.

Develop  Good Relationships

     •   Build an effective and supportive relationship with your boss.

     •   Develop a supportive system with colleagues focusing on mutual support rather than airing
         complaints.
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Develop a Positive Attitude



     •  Don't overcomplicate things.



     •  Think of the best that can happen.




     •  Use humor.




     •  Reward yourself.



Build Stress Reducers into Your Daily Routine



     •  Make your office area attractive and calming.



     •  Take  a relaxation break each morning and afternoon.



     •  Take  a "mental-health day" every two or three months.



     •  Leave the office for lunch and short breaks.
Reducing Stress Outside of Work
Develop and Maintain a Healthy Lifestyle




     •  Eat properly.




     •  Exercise regularly.




     •  Stop smoking.




     •  Avoid drugs and alcohol.




Learn to Relax




     •  Leave work behind you when you go home.




     •  Pursue a hobby or leisure interest for diversion.




     •  Get away.
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Form Healthy Relationships

     •  Find friends who have nothing to do with your line of work.

     •  Avoid dwelling on your problems with people close to you.

     •  Help others.

Spread Maior Stressful Events Over Time

Although  people have different capacities to handle stress, everyone has only a finite amount of
energy to adapt to stress at any particular time. Therefore, to avoid illness, one should try to spread
anticipated major stressful events (e.g., marriage, divorce, home purchase, pregnancy) over time.
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NOTES
 21-10

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