UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
EPA-330/9-78-001-RP
NEIC POLICIES AND PROCEDURES
May 1978
[Revised June 1985]
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
Denver, Colorado
The NEIC Policies and Procedures Manual,
EPA-330-78-001-R (revised August 1991) was retired
by the USEPA National Enforcement Investigations
Center on November 29, 2000.
This document has not been superseded by a new
manual
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UPDATE
FOR
NEIC POLICIES AND PROCEDURES
The NEIC Policies and Procedures Manual was issued
in May 1978 and revised in 1979, 1980, 1981, 1983 and
1984. This 1985 revision replaces the manual in its
entirety.
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FOREWORD
As part of the Environmental Protection Agency, the National Enforce-
ment Investigations Center provides the Office of Enforcement and Compliance
Monitoring with technical information and evidence in support of EPA legal
actions. This function makes the standard operating procedures described
in this manual important to every employee.
This manual discusses NEIC project phases, then presents policies and
procedures which employees are responsible for knowing and following. These
procedures assure that work performed by NEIC will be admissible during any
subsequent enforcement action. Substantially equivalent procedures or
activities that are not covered in this manual must be coordinated through
supervisory personnel and the Enforcement Specialist Office and, when appro-
priate, will be incorporated in future revisions of this manual or a speci-
fic program procedures manual. Witness Guidelines are appended to this
manual to assist employees called to testify as government witnesses. By
adhering to the Center's policies and procedures, employees protect both
their professional integrity and that of the NEIC.
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OTHER NEIC MANUALS:
Safety Manual
NEIC Pesticide Product Laboratory Procedures Manual
NEIC Pesticide Sampling Manual
NEIC Procedures Manual for the Evidence Audit by
Contractor Evidence Audit Teams
NEIC Manual for Groundwater/Subsurface Investigations
Hazardous Waste Sites
NEIC Multi-Media Compliance Audit Inspection Manual
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I. NEIC PROJECT PHASES
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I NEIC PROJECT PHASES
INTRODUCTION
The projects undertaken by NEIC span a wide variety of activities
ranging from one employee performing technical, supportive or administrative
tasks to numerous employees from diverse disciplines working as a team to
accomplish a series of complex tasks. Most of the Center's projects consist
of these phases:
Project Request
Background Review
Project Plan
Project Activities
Report
Followup
This section of the manual discusses the items in each phase which are
common to most projects and outlines NEIC policies pertinent to each phase.
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PROJECT REQUEST
All NEIC projects are preceded by requests to the Director for work to
be performed. Many requests received by NEIC for technical assistance
involve projects which require extensive field work on pollution problems
in more than one medium. Others include, for example, a technical and/or
legal review of an abatement proposal or analytical support for a Regional
enforcement case.
The content of the project request is essential to the success of the
project. To assure that NEIC is as responsive as possible, it will consider
informal requests from sources within the Agency. However, the official
requester must follow up with a specific written request detailing the objec
tives, relating those objectives to an enforcement action, and identifying
the requester's contact. A written, in addition to a verbal, request
assures NEIC of administrative accountability and clarity of project defini-
tion, as well as allowing management to adequately coordinate and schedule
the Center's workload.
Official requests for technical assistance will be received only from
the following:
Administrator
Deputy Administrator
Assistant Administrator for
Enforcement and Compliance Monitoring
Associate Enforcement Counsels
General Counsel
Assistant Administrators
Inspector General
Headquarters Office Directors
Headquarters Division Directors
Department of Justice, Headquarters
Regional Administrators
Deputy Regional Administrators
Regional Counsel
Regional Division Directors
U.S. Attorney's Offices
State and Local Program Directors
with the knowledge and
concurrence of the
Assistant Administrator
with the knowledge and
concurrence of the
Regional Counsel
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Receipt of an official request will be acknowledged in an NEIC
memorandum to the Assistant Administrator or the appropriate Regional Coun-
sel and copies are sent to individuals identified by the requester. The
acceptance will include a tentative schedule for completing the work and is
usually sent before any work begins. It designates specific NEIC employees
as contacts for technical work and legal coordination and seeks access to
all files related to the work. In some cases (for example, requests for
technical support or review of an abatement proposal), the acknowledgment
memorandum can provide a sufficient outline of work activity.
To accomplish the objectives of a request efficiently and effectively,
a Project Coordinator is usually named. The selection of this individual
is generally determined by the type of investigation or assistance requested,
such as: a multi-media evaluation with or without sampling; case prepara-
tion; performance audit; pesticide use investigation; or control technology
assessment. In some instances, a technical assistance request may involve
only one individual — for example, a detailed control technology assessment;
or may involve only analytical support--such as pesticide analyses for
Regional investigations; or may require support from several branches within
NEIC.
The scope of the request determines which NEIC organizational elements
will be required to support the proposed study. Operations, Laboratory
Services, Criminal Investigation or the Technical Evaluation Staff may
assign individuals to the project. The Project Coordinator is designated
and is then responsible for assuring that all aspects of the project are
carried out. This individual will have demonstrated through past perform-
ance as Project Coordinator, or as an assistant, the ability to perform the
extensive administrative and technical responsibilities of the Project Coor-
dinator (as described in Section II).
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BACKGROUND REVIEW
Review of the available background information applicable to a specific
project is a logical and essential first step in providing technical assist-
ance. Scope and duration of the background review are related to the pro-
ject objectives and vary with the complexity of the project request. Back-
ground information is available at the Center through the in-house and
affiliated libraries and the NEIC computerized data retrieval systems.
However, many projects require visits to EPA headquarters, Regional offices
and/or State and local agencies to review and obtain copies of pertinent
files. Where necessary, a reconnaissance visit to the project site provides
background verification or updating. Examples of information obtained dur-
ing a background review include: the applicable laws and regulations, the
status of current and pending litigation related to the project, Regional
office legal strategy and how the NEIC study relates to the strategy, spec-
ific descriptions of process and pollution control systems that may affect
the environment, copies of relevant source permits and compliance schedules,
past self-monitoring data, prior Government or facility studies, available
alternative technology, and availability of approved analytical methods.
The primary purpose of a review is to familiarize NEIC personnel with
the background of the work request so that a comprehensive project plan can
be developed. Moreover, information obtained during the review will often
be used during project performance and report preparation. Therefore, it
is important to conduct as thorough a review as possible early in the pro-
ject development. The background review may continue throughout the project
as needed information is obtained.
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PROJECT PLAN
A general project outline is included with NEIC acceptance of an
official request. After sufficient background information has been
obtained and evaluated, a comprehensive project plan is usually prepared
based on the specific objectives and tasks in the project request. For
projects that are small in scope, the acceptance memorandum may serve as
the project plan. Projects such as complex pollution control evaluations,
permit compliance evaluations, air pollution source surveys, ambient air
and/or receiving water quality surveys, pesticide use investigations, and
solid/ hazardous waste disposal evaluations normally require a detailed
project plan.
The Project Coordinator prepares the project plan detailing the pro-
ject's scope, logistics and schedules. Items usually addressed in the
project plan are:
1. Objectives
2. Background information, including a summary of process(es),
applicable regulations or permit conditions, etc.
3. Survey methods, including sampling locations, schedules and
procedures, analytical requirements, quality control program,
etc.
4. Process data to be collected
5. Personnel and equipment requirements
6. Safety program and equipment
7. Custody procedures
8. Report schedules
9. Followup plans (when necessary)
The Project Coordinator works closely with the appropriate NEIC staff
to determine items such as equipment and logistical requirements, analytical
capabilities and personnel availability. The Project Coordinator also
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communicates with the requester or designated representative to ensure that
the plan being developed addresses the tasks requested and focuses on the
objectives.
The plan approximates an agreement between the requesting party and
those individuals performing the work. Manpower, equipment needs and logis-
tics can be forecast and scheduled. Additional equipment, contract ser-
vices or personnel can be secured expeditiously with the advance determina-
tion of needs.
The project plan should be provided by NEIC to the requester and the
survey team at least 2 weeks before any specific field, laboratory or con-
sultant activity is undertaken. If no comments on the plan are received
from the requester during this period, it is assumed that the plan is
acceptable. Changes made to the project plan will be coordinated with the
requester and the Deputy Director or Assistant Director. If necessary, a
meeting will be held between the appropriate NEIC personnel and the requester
to discuss any differences and modifications. Once all concerned parties
agree to the project plan, it serves as a reference document for the project.
However, during the conduct of the project, some modifications to the plan
may be deemed necessary by NEIC personnel when unforeseen circumstances
arise.* After the commencement of project activities, requests for signi-
ficant changes will be directed to the NEIC Director. Requested changes
will be discussed with the appropriate management and supervisory staff and
with the Project Coordinator. The significant agreed-upon changes will be
documented.
* The plan will contain a statement that it is subject to change.
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DOCUMENT TRANSMITTAL
NEIC investigative activities are associated with potential enforcement
actions. Premature or inadvertent disclosure of the information gathered
during an investigation could adversely affect the action or injure a poten-
tial party. All data, technical findings, draft and final reports, and
related litigation documents for enforcement actions will be transmitted by
the Chief of the Enforcement Specialist Office to the requester or the
designated representative.
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PROJECT ACTIVITIES
Technical duties such as legal and technical information searches,
inspections, evaluations, sampling surveys, observations, data gathering
and analytical testing are performed by the applicable established proce-
dures. When new methods or modifications to existing procedures are
required, they must be documented as expeditiously as possible. Because of
the close scrutiny that may be given to NEIC-gathered data during litiga-
tion, all samples are identified, maintained under chain-of-custody proce-
dures, and accounted for by a document control program. NEIC procedures
are routinely audited to ensure the quality and admissibility of generated
data. (Evidence Audit and Quality Assurance are described in Section II )
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REPORT
The final report details the results of the project efforts, and it
can be the requester's basis for enforcement actions. (Report writing and
the control of reports is described in Section II.) Because the report may
be introduced as evidence in legal proceedings, it must be accurate and
legally admissible.
The overall responsibility for preparing the final report is that of
the Project Coordinator, who, along with the management of NEIC, bears the
burden for the accuracy and admissibility of the report and its conclusions.
Achieving this goal requires that project participants assure the accuracy
of their individual contributions to the report.
The form of the final report will vary with the type and complexity of
the project. Some projects can be presented adequately in a memorandum,
while other more complex projects will require extensive data and informa-
tion presentation and discussion.
A color code has been adopted for bound reports prepared at NEIC. A
black cover is reserved for a report specifically targeted for enforcement
case preparation. The black cover NEIC enforcement reports are also
assigned EPA publication numbers containing a standard prefix followed by a
designation of the year that it was submitted for publication and the chron-
ological submission number; for example: EPA-330/2-81-014. A burgundy
cover indicates a professional paper, special project with general applica-
tion, or technical information not directly related to enforcement action.
The green cover is used for unique types of publications, particularly NEIC
manuals. Other miscellaneous reports have tan covers. All white-cover
reports are draft copies of the above categories and each page is marked
DRAFT. Specific details for document control procedures related to draft
copies of reports are covered in Section II.
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The NEIC library maintains a set of the Center's bound reports for
reference use. Most reports are also available either as microfiche or
paper copy from the library supply. Other short-form reports are available
in the various Division files, as well as the Evidentiary File (described
in Section II). Each employee is encouraged to become familiar with the
various forms of NEIC reports.
Public disclosure of NEIC records will be made to the fullest extent
possible when it will not reveal matters that are privileged or confidential.
External distribution of reports supporting pending enforcement actions
must be authorized through the Chief of the Enforcement Specialist Office.
Extra copies of pending case reports will be maintained in a secure area of
the library. Report distribution restrictions normally terminate upon reso-
lution of the case; however, a log is maintained of the enforcement reports
distributed by NEIC.
Distribution is also restricted for reports that contain confidential
information. When a request for confidential treatment covers information
submitted for use in a report, the title page and every page containing
that information is marked CONFIDENTIAL. The report author prepares a log
of the confidential information used in each portion of the report. All
reports containing confidential information will be kept in secure areas
until restrictions are removed. These reports are not available in the
library and must be logged out by the Document Control Officer, who also
receives a copy of every memorandum subsequently transmitting that report.
Questions concerning restricted report availability will be directed to the
Enforcement Specialist Office. A summary of the strict procedures for han-
dling Toxic Substances Control Act Confidential Business Information begins
on page 11-34.
Copies of NEIC bound reports may receive public distribution through
the National Technical Information Service (NTIS). This includes reports
with burgundy, green, or tan covers and those black-covered reports for
which enforcement actions have been resolved. Their availability to the
public is announced through the NTIS publication "Government Reports
Announcement" and a fee is set by NTIS for their reproduction and distribu-
tion in either paper or microfiche form.
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FOLLOWUP
Completion and transmittal of the project report do not necessarily
signify the end of NEIC's involvement with a project. Continuing involve-
ment may include technical consultation on monitoring programs and remedial
measures. NEIC personnel will continue to follow up project involvement in
subsequent legal proceedings. In such cases, NEIC personnel may be involved
in enforcement case preparation and serve as, or be deposed as, witnesses.
(Appendix A gives witness guidelines for preparing testimony as an expert
witness.) Other reports may affect EPA policies or serve as forerunners
for additional enforcement studies.
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NEIC OPERATING POLICIES AND PROCEDURES
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II. NEIC OPERATING POLICIES AND PROCEDURES
EMPLOYEE CONDUCT
EPA employees are required to perform their duties in a professional
and responsible manner and to refrain from any use of official position for
private gain. NEIC employees are also required to collect and report the
facts of an investigation completely, accurately and objectively. They
must also conduct themselves at all times in accordance with the regula-
tions prescribed in the EPA handbook, RESPONSIBILITIES AND CONDUCT FOR EPA
EMPLOYEES. The following paragraphs review some topics in the handbook
especially applicable to NEIC work.
Employees shall avoid conflicts of interest through outside employment
or other private interests. A conflict of interest may exist whenever an
EPA employee has a personal or private interest in a matter which is related
to his official duties and responsibilities. It is important to avoid even
the appearance of a conflict of interest because the appearance of a con-
flict damages the integrity of the Agency and its employees in the eyes of
the public. All employees must, therefore, avoid situations which are, or
give the appearance of, conflicts of interest when dealing with others in
or outside the Government.
Good public relations and common sense dictate that employees dress
appropriately and with proper safety equipment for the activity in which
engaged. When in the laboratory, field, or facility, employees should con-
sult their supervisor and the NEIC SAFETY MANUAL relative to proper attire
and safety requirements. Enhanced safety procedures may be specified for
individual programs such as laser safety for lidar operators or handling
procedures for samples of hazardous substances.
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It is important that cooperation be obtained and good working relations
established when working with the public. This can best be accomplished by
using diplomacy, tact and persuasion. Employees should not speak of any
person, other regulatory agency, or facility in a derogatory manner and
should use discretion when asked to give a professional opinion on specific
products or projects. All information acquired during an employee's duties
is for official use only.
An employee is forbidden to solicit or accept any gift, gratuity,
entertainment, favor, loan, or any other thing of monetary value from any
person, corporation or group which has a contractual or financial relation-
ship with EPA, which has interests that may be substantially affected by
such employee's official actions, or which conducts operations regulated by
EPA. Responsibility for individual actions rests with the employee where
circumstances make it inappropriate to decline a nominally valued gratuity,
such as lunch in a company cafeteria where no payment mechanism is provided.
ENTERING A FACILITY
Authority
Various Federal environmental statutes grant EPA enforcement personnel
authority to enter and inspect facilities. The authority granted in each
statute is similar to that stated below, 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. . .."
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TABLE OF AUTHORITY
Air Water Superfund Pesticides Solid Waste Drinking Water Toxics
Inspection CAA 114 CWA 308, 402 CERCLA 104 FIFRA 8.9 RCRA 3007, 9005 SDWA 1445 T5CA 11 717 17,
Authority 40 CFR 80 4, 40 CFR 122 41 40 CFR 160 15, 40 CFR 270.30 40 CFR 144.51, 40 CFR 792 15
86* 233 7 169.3 142 34
Recordkeeping CAA 114, 208 CWA 308, 402 CERCLA 103 FIFRA 4,8 RCRA 3002, SDWA 1445 TSCA 8
Authority 311 3003, 3004
40 CFR 51, 40 CFR 1?2 41, 40 CFR 160 63, 40 CFR 262 40, 40 CFR 144 51, 40 CFR 704. 710,
60, 79** 122 48, 233 7. 160 185-195, 263 22. 264 74, 144 54, 717 5, 720 78,
233 11 169, 171 11 264 279, 264 309 141.31-33 761, 761 180,
265 74, 265.94, 762 60. 763 144,
265 279, 265.309, 792 185-195
9003, 270 30,
270 31
Confidential CAA 208, 307 CWA 308 CERCLA 104 FIFRA 7,10 RCRA 3007,9005 SOWA 1445 TSCA 14
Information 40 CFR 2 301. 40 CFR 2 302 40 CFR 2.307 40 CFR 2.305, 40 CFR 2 304, 40 CFR 2 306,
(40 CFR 2 201-2 215) 53,57,80 122 7, 233 18 260 2, 270.12 144.5 704 7, 707 75,
710.7, 712 15.
717 19,
720 85-9b,
750 16. 750 36,
762 60, 763 74
Emergency CAA 303 CWA 504 CERCLA 104, 106 FIFRA 27 RCRA 7003 SDWA 1431 TSCA 7
Authority 40 CFR 233.38 40 CFR 164, 40 CFR 122.7 40 CFR 144 34
166
Employee
Protection
CAA
322
CWA 507
CERCLA
110
RCRA 7001
SDWA 1450
TSCA 23
Penal ties
CAA
113
CWA 309
40 CFR 233 28
CERCLA
103
FIFRA 14,15
RCRA 3008,
9006
SOWA 1423,
1424, 1431, 1441
TSCA 15, 16
* 86 077-7, 36.070-7, 86.44J-78, 86 606, 86.1006 89.
** 51.320- 323, 57.105, 57¦JOS, 57.404, SB, 60.7, 61.JO, 61.24, 61.69-71, 79.5, £5.407, 85.J806, 85.1906, 86 077-7, 86 084-39 £ 40,
86.144-76 thru 82, 86.542-78, 86 609, 86 JO09-84.
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For the specific requirements on conducting inspections and collecting
data pursuant to other particular Acts, see: Section 114 of the Clean Air
Act; Sections 8 and 9 of the Federal Insecticide, Fungicide, and Rodenticide
Act; Section 3007 of the Resource Conservation and Recovery Act; Sections 8
and 11 of the Toxic Substances Control Act; Section 1445 of the Safe Drink-
ing Water Act; and Section 104 of the Comprehensive Environmental Response,
Compensation and Liability Act.
Unreasonable Search and Seizure
EPA authority under the various Acts is subject to the provisions of
the Fourth Amendment of the Constitution which prohibits unreasonable
searches and seizures. Consent to document an onsite investigation with
photographs should be obtained before any photographs are taken by the
inspector. While a consensual entry may not be necessary for entering a
public area or for acting under emergency conditions, no forcible entry is
permitted without due process of law when entry has been denied.
Consent means the intentional foregoing of right to privacy which is
not the result of either fear, ignorance or trickery. When obtaining con-
sent, do not suggest that civil or criminal consequences will result from
entry denial. If the element of surprise is critical to the inspection,
the site is unoccupied, or prior behavior indicates that entry will be
denied, the Enforcement Specialist Office should be notified before the
inspection is attempted.
Consent to enter may be revoked by a facility prior to the completion
of an inspection. If that should occur, all work performed during the con-
sensual entry should remain in the possession of the inspection team. When
a withdrawal of consent occurs, the inspection team shall leave the area
and follow the procedures for denial of entry as detailed below.
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To comply with statutory authority and avoid any "unreasonable search"
and procedural problems, a facility should be entered in the following
manner:
1. The plant premises should be entered through the main gate or
through the entrance designated by the facility in its response
to an inspection notification letter.
2. The employees should introduce themselves in a dignified, cour-
teous manner to a responsible plant official and briefly describe
the purpose of the visit. Identification credentials should
always be shown. A responsible plant official may be the owner,
operator, officer or agent-in-charge of the facility, including
the plant environmental engineer.
3. If there is only a guard present at the entrance, the employee
should present his credentials and suggest that the guard call
his superior or the responsible official when the name is known.
4. If the Company provides a blank sign-in sheet, log or visitors'
register, it is acceptable to sign it. NEIC employees shall not
sign a release of liability (waiver) when entering a facility
under the authority of Federal law.
5. If entry is refused, the employee should not contest the issue
with the facility representative, but immediately do the following:
a. Obtain the name and title of the individual denying entry
and record the date and time.
b. Cite the appropriate EPA-administered legislation, ask if
he/she heard and understood the reason for your presence,
and record the answer and any reasons given for denial of
entry.
c. Leave the premises.
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After leaving the facility, the employee should, at the earliest
possible moment, inform the NEIC supervisory personnel and Enforcement
Specialist Office of the events which took place.
CRIMINAL INVESTIGATIONS
Special Agents in the NEIC Office of Criminal Investigations (OCI) are
experienced law enforcement officers. Each agent is responsible for pro-
viding specific directions when investigatory procedures vary from proce-
dures described in this manual. More severe penalties may be imposed on
individuals convicted of violating the criminal provisions of environmental
or other statutes. This severity functions to deter harmful activities and
to punish offenders. Correspondingly, there are greater constitutional
safeguards to protect individuals from criminal prosecution. NEIC inves-
tigations and EPA enforcement activities are required to meet these higher
standards from the moment an investigation begins to focus on a suspect
until the defendent receives the verdict. The special emphasis on these
NEIC investigations results from the potential defendant's desire to con-
ceal their criminal activities and, when detected, their frequent challenges
to the investigative procedures that were used to apprehend them.
These challenges are encouraged by the "Exclusionary Rule". This rule
prohibits the use of evidence during the prosecution of a defendant whose
constitutional rights were violated by the procedures used to collect that
evidence. The "Fruit of the Poisonous Tree Doctrine" further excludes from
that prosecution any information subsequently derived from that improperly
collected evidence. Following the procedures in this manual assures pro-
tection for the potential defendant's constitutional rights and leaves a
paper trail of the investigation supporting admission of the resulting evi-
dence into a prosecution.
Another procedural challenge frequently occurs when a suspect provides
a statement to a law enforcement officer. The Agent is responsible for
issuing the "Miranda" warning if it is required.
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The Chief, Enforcement Specialist Office, should be consulted when
aspects of criminal activity become apparent during a routine investiga-
tion. Special Agents from the OCI are trained criminal investigators and
when an Agent is assigned to direct the case, all parts of the criminal
investigation must be completely separated from any concurrent or planned
civil investigations. Agents maintain separate case files following the
document control procedures implemented by OCI.
REQUESTING INFORMATION
The environmental statutes authorize EPA reporting and recordkeeping
requirements and also protect trade secrets and confidential information.
As a general policy, EPA is extremely reluctant to accept this type of
information unless it is necessary for carrying out Agency functions under
these Acts.
In compliance with EPA regulations, a request* for Company informa-
tion, pursuant to statutory authority, will contain a statement allowing
the facility to designate all or part of the information requested by the
Agency as confidential by marking it according to Title 40 of the Code of
Federal Regulations (CFR), Part 2, Subpart B, Sections 2.201-2.309 [41
Federal Register (FR) 36902, Sept. 1, 1976, as amended in 43 FR 39997,
September 8, 1978] In addition to citing the appropriate regulation(s),
the request should state that:
1. The business may, if it desires, assert a business confidential-
ity 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 those regulations; and
2. If no such claim accompanies the information when it is received
by EPA, it may be made available to the public by EPA without
further notice to the business.
Written requests are generally sent through the Regional Counsel.
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When conducting a plant evaluation, inspection, or reconnaissance, NEIC
personnel should not accept confidential information unless it is essential
in performing NEIC responsibilities. When inspectors expect to obtain or
observe confidential information, they should maintain a separate logbook.
When confidential information is entered into an inspector's logbook, the
entire book and the portions containing the confidential information are
marked. The Evidence Audit Unit will provide the inspectors with adhesive
labels to mark information submittals or observations for which a business
wishes to assert a claim of confidentiality. In those limited situations,
the Company should be requested to provide NEIC with a written statement
identifying the material which is entitled to confidential treatment. In
addition, reasons must be given to substantiate the claim, including any
supportive technical data or legal authority. By statute, effluent and
emission data are not confidential. Any confidential information received
in the mail or hand-delivered shall be marked Confidential and handled
appropriately as outlined in the document control program (see page 11-32).
DISCLOSURE QF OFFICIAL INFORMATION
It is EPA policy to make information about EPA and its work available,
freely and equally, to all individuals, groups and organizations. This
policy, however, does not extend to confidential information or investiga-
tory information and evidence relating to the suspected violation of Federal
environmental laws. The transmittal by the Chief of the Enforcement Special-
ist Office identifies the sensitive nature of documents supporting pending
enforcement actions to prevent their inadvertent or premature disclosure.
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Any NEIC employee who receives a request, written or oral, for
inspection or disclosure of NEIC investigatory records or confidential
information, even those made under judicial discovery procedures or the
Freedom of Information Act, shall immediately advise the Chief, Enforcement
Specialist Office, and obtain approval and guidance for the release of
information. Other information disseminated outside the Agency will be
directed through the appropriate Regional office or Headquarters.
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PROJECT COORDINATOR RESPONSIBILITIES AND AUTHORITY
The Project Coordinator is the primary contact for a specific, assigned
project. All communications with the Regional, State, local, and Company
officials, the public, and the news media (press, radio, TV, etc.) need to
be coordinated through this individual. All requests for comments or con-
clusions must be referred to the appropriate case attorney.
PROJECT PLAN
The Project Coordinator is responsible for preparing the project plan.
This will involve obtaining the necessary background information from the
requester (Region, Headquarters, etc.), all affected NEIC branches, the
legal staff, the safety officer, the administrative staff, and the Evidence
Audit Unit (EAU). A draft plan (marked DRAFT REPORT FOR AGENCY REVIEW ONLY,
00 NOT DUPLICATE) will be provided for internal review to Branch Chiefs and
other affected parties. The Coordinator is responsible for disseminating
the draft project plan for review and accounting for all draft copies.
After comments have been incorporated into the final project plan, all
drafts will be disposed of and a revised copy will be sent to the Region or
other EPA organization requesting the work. As a general rule, the final
plan should be sent to the requester and given to project participants at
least 2 weeks before any field work begins.
A briefing on the plan will be held prior to beginning any field work.
At that time, those aspects of the study such as test methods, chain-of-
custody procedures, legal aspects, safety requirements, document control
and related activities will be discussed with all project participants and
EAU. Each participant is expected to read the project plan and be aware of
the required procedures. (Section I discusses changes to the project plan
once it has been transmitted to the requester.)
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11-11
(6/85)
ADMINISTRATIVE MATTERS
Petty Cash and Procurement Requests
Prior to the survey, the respective NEIC Branches are expected to submit
purchase requisitions for survey needs in a timely fashion to avoid emer-
gency requests. The Project Coordinator is responsible for determining
petty cash needs for the study and designating those individuals who will
receive petty cash. Proper receipts are necessary to receive credit for
petty cash expenditures. When appropriate, the Project Coordinator will
arrange to use purchase orders in the field. For example, ice is often
required in large quantities during a survey; thus, a purchase requisition
is often appropriate.
Timekeeping
The Project Coordinator is expected to certify as correct the Time
Reports used by field personnel to report regular time, overtime and com-
pensatory hours. It is expected that Project Coordinators and Branch Chiefs
be familiar with the Fair Labor Standards Act and the EPA Pay Administration
Manual as it pertains to overtime, holiday and hazardous-duty pay, and com-
pensatory hours. As appropriate, the Coordinator will be provided a packet
containing the necessary pay manuals, policy statements and forms. Instruc-
tions for the completion and submission of time records will be provided by
the respective Branch Chiefs.
FIELD ACTIVITIES
The Project Coordinator shall have the overall responsibility for deter-
mining that all field activities are performed expeditiously and that the
project objectives are met. Branch Chiefs are expected to assign personnel
capable of performing the Branch responsibility associated with a particular
study; these personnel are expected to understand and follow the procedures
relative to their assignments
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11-12
(6/85)
The necessity for change from the project plan not affecting the
objectives or overall scope of the study--such as addition or deletion of
sampling points, modifications to schedules or frequencies, or changes in
analytical load—will be coordinated through and approved by the Project
Coordinator. This includes any support work being conducted in Denver.
Transportation needs in the field will be determined during the plan-
ning stage. GSA vehicles will be used whenever available. The Project
Coordinator will be responsible for assuring that vehicles and mobile labor-
atories transported from Denver generally travel in convoy, and it is imper-
ative that the Project Coordinator be notified immediately of any delays
that occur enroute. It is also expected that the rolling stock (mobile
laboratories, lidar, vehicles, boats, monitoring equipment) be kept in a
state of readiness. If equipment is returned from the field needing repair,
maintenance, or overhaul, it shall be accomplished expeditiously by the
appropriate Branch.
During the field study, the Project Coordinator or designee is respons-
ible for seeing that all chain-of-custody and quality control procedures
for sampling, flow monitoring, analyses, recordkeeping, etc. are followed.
The field personnel are, however, expected to understand and follow the
custody procedures relative to their assignments. Following completion of
the field activities and before returning to NEIC, the Project Coordinator
or designee shall account for all field documentation--such as field log-
books, sample tags, Chain-of-Custody Records—and verify that it is complete.
The Project Coordinator is responsible and has the authority for assur-
ing that all field work is conducted safely and that required safety equip-
ment is used. All participants are required to read and adhere to the NEIC
SAFETY MANUAL.
REPORT WRITING
The Project Coordinator, in cooperation with other personnel, will
develop an outline and determine the writing assignments for a project
report.
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11-13
(6/85)
To facilitate readability by the diverse audiences from technical,
administrative and judicial fields, the NEIC enforcement report* may be
structured in two major sections: the Executive Summary and the Technical
Analysis. The Executive Summary clearly states study objectives and pre-
sents conclusions supported by pertinent findings; recommendations are made
if appropriate. The Technical Analysis more comprehensively describes the
study, giving specific details about the facility, legal case facts, NEIC
data collection and analysis, and other pertinent aspects of the field work
It is important that findings in the Technical Analysis be correlated to
the conclusions as stated in the Executive Summary so that the report pre-
sents a uniform analysis.
The Project Coordinator is responsible for assembling the report and
circulating copies for peer review; all reports are dated. Draft reports
are numbered and each page is marked DRAFT. All reports are transmitted by
the Chief, Enforcement Specialist Office. The Coordinator shall specify
the review period and make every attempt to ensure that all draft copies
are returned and that all appropriate comments are incorporated. These
draft reports are disposed of upon completion of the final report.
The quality of a report's content, and the ability to substantiate and
defend it, are foremost. The Project Coordinator, NEIC management, and
supervisory personnel are responsible for assuring that al 1 NEIC reports
achieve this goal.
A black cover report prepared to support an ongoing or potential
enforcement action. The format described above is also recommended
for other appropriate NEIC reports.
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11-14
(6/85)
SAMPLE CONTROL
A sample is physical evidence collected from a facility or the
environment. An essential part of all NEIC enforcement investigations is
the control of the evidence gathered. To accomplish this, the following
sample identification and chain-of-custody procedures have been established
Any other procedures specific to a program must be documented and approved
by the Chief of the Enforcement Specialist Office.
SAMPLE IDENTIFICATION
The method of identification of a sample depends on the type of mea-
surement or analyses performed. When in-situ measurements are made, the
data are recorded directly in logbooks* or Field Data Records (FDRs), with
identifying information (project code, station number, station location,
date, time, samplers), field observations and remarks. Examples of in-situ
measurements include pH, temperature, conductivity, flow measurement, con-
tinuous air monitoring and stack gas analysis.
Samples, other than in-situ measurements, are identified by a sample
tag (page 11-15) or other appropriate identification (hereinafter referred
to as a sample tag).
These samples are removed and transported from the sample location to
a laboratory or other location for analysis. Before removal, however, a
sample is often separated into portions depending upon the analyses to be
performed. Each portion is preserved in accordance with applicable proce-
dures and the sample container is identified by a sample tag. The informa-
tion recorded on the sample tag includes:
Project Code - A three-alpha-numeric digit assigned by NEIC
Station Number - A two-digit number assigned by the Project
Coordi nator
For purposes of this manual, the term "logbook" includes remote sensing
imagery and data recorded on magnetic tape.
-------
11-15
(F/85)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
Building 53, Box 25227, Denver Federal Center
Denver, Colorado 80225
&EPA
Protect Code
Station No
Montn Oay'Vear
Time
Designate
•
Como
Grab
Tag No Lab Sample No
N- 1301
Station Location
Samoiers (Signatures!
Remarks
Bacteriology
s
G
QJ
-------
11-16
(6/85)
Date
A six-digit number indicating the month,
day and year of collection - for example:
031784 is March 17, 1984
T ime
A four-digit number indicating the 24-hour
time of collection - for example: 0954 is
9:54 am and 1629 is 4:29 pm
Station Location -
The sampling station description as specified
by the Project Coordinator
Samplers
Remarks
The samplers record pertinent observations
Each sampler signs the tag
Lab Sample No. - May be completed by the receiving laboratory
The sample tag contains an appropriate place for designating the sam-
ple as a grab or a composite and identifying the type of sample collected
for analysis. When used for air samples, the sampler may use the remarks
section to designate the sequence number and identify the sample type. The
Project Coordinator will detail procedures for completing tags used for
soil, sediment, and biotic or other samples. The sample tags are attached
to each sample or container.
After collection, separation, identification and preservation, the
sample is maintained under chain-of-custody procedures discussed below. If
the composite or grab sample is to be split, it is aliquoted into similar
sample containers. Identical information is completed on the tag attached
to each split and one is marked " Split"*. In a similar fashion, tags
will be marked for "Blank" or "Duplicate" samples.
CHAIN-OF-CUSTODY PROCEDURES
Due to the evidentiary nature of samples collected during enforcement
investigations, possession must be traceable from the time the samples are
collected until they or their derived data are introduced as evidence in
legal proceedings. To maintain and document sample possession, chain-of-
custody procedures are followed.
The blank is completed to identify the split sample for the appropriate
government agency, facility, laboratory or company.
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11-17
(6/85)
Sample Custody
A sample is under custody if:
1. It is in your possession, or
2. It is in your view, after being in your possession, or
3. It was in your possession and you locked it up, or
4. It is in a designated secure area.
Field Custody Procedures
1. Collect only the number of samples needed to represent the media
being sampled. To the extent possible, determine the quantity
and types of samples and sample locations prior to the actual
field work. As few people as possible should handle samples.
2. The field sampler is personally responsible for the care and cus-
tody of the samples collected until they are properly transferred
or dispatched.
3. Sample tags shall be completed for each sample, using waterproof
ink unless prohibited by weather conditions. For example, a log-
book notation would explain that a pencil was used to fill out
the sample tag because a ballpoint pen would not function in
freezing weather
4. The Project Coordinator determines whether proper custody proce-
dures were followed during the field work and decides if addi-
tional samples are required.
Transfer of Custody and Shipment
1. Samples are accompanied by a Chain-of-Custody Record (see page
11-20). When transferring the possession of samples, the indivi-
duals relinquishing and receiving will sign, date, and note the
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11-18
(6/85)
time on the record This record documents sample custody transfer
from the sampler, often through another person, to the analyst in
a mobile laboratory or at the NEIC laboratory in Denver.
2. Samples will be packaged* properly for shipment and dispatched to
the appropriate NEIC laboratory** for analysis, with a separate
custody record accompanying each shipment (e.g., one for each
field laboratory, one for samples shipped, driven, or otherwise
transported to NEIC). Shipping containers*** will be padlocked
or sealed for shipment to the laboratory. The method of ship-
ment, courier name(s), and other pertinent information is entered
in the "Remarks" section on the custody record.
3. Whenever samples are split with a source or Government agency, a
separate Receipt for Samples form (see page 11-22) is prepared
for those samples and marked to indicate with whom the samples
are being split. The person relinquishing the samples to the
facility or agency should request the signature of a representa-
tive of the appropriate party acknowledging receipt of the sam-
ples. If a representative is unavailable or refuses to sign,
this is noted in the "Received by" space. When appropriate, as
in the case where the representative is unavailable, the custody
record should contain a statement that the samples were delivered
to the designated location at the designated time.
4. All shipments will be accompanied by the Chain-of-Custody Record
identifying its contents. The original record will accompany the
shipment, and the copy will be retained by the Project Coordinator.
* See Appendix B.
** See Appendix C for Safety Precautions when Accepting Samples from Out-
side Sources.
*** Lidar data magnetic tapes are transported in secure magneticsafe metal
containers.
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11-19
(6/85)
5. If sent by mail, the package will be registered with return
receipt requested. If sent by common carrier, petty cash will be
used for expenditures of less than $100, otherwise a Government
Bill of Lading will be used. Air freight shipments are sent col-
lect. Freight bills, post office receipts and Bills of Lading
will be retained as part of the permanent documentation
-------
ENVIRONMENTAL PROTECTION AGENCY NATIONAL ENFORCEMENT INVESTIGATIONS CENTE H
OMice of Enforcement Building 53. Box 25227. Denver Federal Center
CHAIN OF CUSTODY RECORD Denver, Colorado80225
PROJ NO
PROJECT NAME
NO
OF
CON-
TAINERS
REMARKS
SAMPLERS tSignaiu/et
STA NO
DATE
TIME
COMP
CD
<
cc
IS
STATION LOCATION
„
Relinquished by ISigntiure!
Date
'Time
Received by /Signature 1
Relinquished by ISignttural
Date
Time
Received by (Signjturel
Relinquished by ISignatura)
Date
Time
Received by (Signeiurtl
Relinquished by ISigntturtl
Date
Time
Received by (Signmturel
Relinquished by fSifniture)
Date
Time
Received for Laboratory by
iStgnstur*!
Date
fTime
Remarks
OituiUuiion Original Accoinpamn Shipment Copy 10 Cuordmaior Field Files
N 1232
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11-21
(6/85)
Receipt for Samples Form
Section 3007(a)(2) of the Resources Conservation and Recovery Act
(RCRA) states . .If the officer, employee or representative obtains any
samples, prior to leaving the premises, he shall give to the owner, oper-
ator, or agent-in-charge a receipt describing the samples obtained and, if
requested, a portion of each such sample equal in volume or weight to the
portion retained". Section 104 of the Comprehensive Environmental Response,
Compensation and Liability Act contains identical requirements.
A completed Receipt for Samples form (see page 11-22) complies with
these requirements and is used whenever splits are provided. This form
must be completed and a copy given to the owner, operator or agent-in-charge
even if the offer for split samples is declined. The original is retained
for the Project Coordinator.
Laboratory Custody Procedures
1. A designated sample custodian accepts custody of the shipped sam-
ples and verifies that the information on the sample tags matches
that on the Chain-of-Custody Records. Pertinent information as
to shipment, pickup, courier, etc. is entered in the "Remarks"
section. The custodian then enters the sample tag data into a
bound logbook which is arranged by project code and station number.
The laboratory custodian will use the sample tag number or assign
a unique laboratory number to each sample tag and assure that all
samples are transferred to the proper analyst or stored in the
appropriate secure area.
2. The custodian distributes samples to the appropriate analysts.
Laboratory personnel are responsible for the care and custody of
samples from the time they are received until the sample is
exhausted or returned to the custodian.
-------
ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement
RECEIPT FOR SAMPLES
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
Building 53, Box 25227, Denver Federal Center
Denver. Colorado 80225
PROJ NO
PROJECT NAME
Name of Facility
SAMPLERS (Signature)
Facility Location
Spiti Samples Offered
( ) Accepted ( ) Declined
SI A NO
DAI E
TIME
a
2
O
u
GRAB
SPLIT
SAMPLES
TAG NUMBERS
STATION DESCRIPTION
NO OF
CON-
TAINERS
REMARKS
Transferred by (Signature)
Received by (Signature) Telephone
Dale Time
Title Date Time
Distribution Original to Coordinator Field Files. Copy to Facility
N 842
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11-23
(6/85)
3. When sample analyses and necessary quality assurance checks have
been completed in the field laboratory, the unused portion of the
sample must be disposed of properly. All identifying tags, data
sheets, and laboratory records shall be retained as part of the
permanent documentation. Samples received by the Denver labora-
tory will be retained until after analyses and quality assurance
checks are completed. When investigative documents are requested
by the Evidence Audit Unit for the evidentiary file, all identi-
fying tags are removed for retention in the permanent documenta-
tion. Sample containers and remaining sample material should be
disposed of appropriately. The Chief of the Enforcement Special-
ist Office must authorize disposal of samples and remaining sample
portions that support criminal investigations.
4. Samples of materials which have been associated with high hazard
levels are received in a specialized Regulated Laboratory. This
laboratory reduces the hazardous characteristics of these samples
and prepares them for routine analysis. To avoid potential con-
tamination, tags from samples received by the Regulated Labora-
tory are not considered permanent documents and will not be incor-
porated into the evidentiary file. The Regulated Laboratory will
verify that the information on arriving sample tags is accurately
recorded on the appropriate Chain-of-Custody Records and notify
the Evidence Audit Unit of any discrepancies. The sample tag
number is entered on the Chain-of-Custody Record in the "Comments"
column. Regulated laboratory personnel will initial the entry
after verifying sample tag data or resolving a discrepancy.
5. The Regulated Laboratory will submit a memorandum to EAU when the
project documents are assembled. The memorandum, to be retained
in the evidentiary file, certifies that the sample tags have been
appropriately disposed of together with the sample containers and
any remaining portions.
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11-24
(6/85)
6. Lidar data magnetic tapes will be copied into the appropriate
NEIC minicomputer disc files. The original tapes will then be
stored and the disc data will be used for computer data
processing.
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11-25
(6/85)
DOCUMENT CONTROL
The goal of the NEIC Document Control Program is to assure that all
project documents issued to or generated by NEIC personnel will be accounted
for when the project is completed. This program includes a serialized docu-
ment system, a document inventory procedure and an evidentiary filing sys-
tem, all operated and controlled by the Evidence Audit Unit (EAU). The
Document Control Officer maintains separate locked files for confidential
information and a secure file for project documents supporting a criminal
investigation.
Accountable documents used or generated by NEIC employees include log-
books, field data records, correspondence, sample tags, graphs, Chain-of-
Custody Records, bench sheets, and photographic prints (see page 11-32 for
a more complete list). Each document is listed in a project inventory as-
sembled by the appropriate Branch or Division at the project's completion.
Unused serialized documents returned to the EAU may be disposed of or re-
issued. Unless prohibited by weather, waterproof ink is used to record all
data on serialized accountable documents.
SERIALIZED DOCUMENTS
The Project Coordinator designates the person to receive all serial-
ized NEIC documents for the field activities. The EAU is responsible for
assigning all field logbooks, field data records, sample tags, Chain-of-
Custody Records, Receipt for Samples forms, and custody locks and keys to
this person. The Project Coordinator is responsible for ensuring that a
sufficient supply of documents is obtained for an investigation and that
these documents are properly distributed to the appropriate personnel. The
EAU provides the Project Coordinator with a list of the serialized project
documents that were issued to personnel for that project.
PROJECT LOGBOOKS
The Project Coordinator is responsible for the transfer of logbooks to
the individuals who have been designated to perform specific tasks on the
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11-26
(6/85)
survey. Individuals sign their logbooks* upon receipt and use them to
record all pertinent information until the project is completed. Observa-
tions made into a recording device must be promptly transcribed. The
inspector verifies the accuracy of the transcription and signs it. The
original recording of the data is retained for the evidentiary files.
Logbook entries should be dated, legible, and contain accurate and
inclusive documentation of an individual's project activities. Because the
logbook forms the basis for the later written reports, it must contain only
facts and observations. Language should be objective, factual and free of
personal feelings or other terminology which might prove inappropriate.
Entries made by individuals other than the person to whom the logbook was
assigned are dated and signed by the individual making the entry.
Field analysts who conduct their assigned project analyses in a mobile
laboratory are assigned a logbook by the appropriate Branch. In addition
to information documenting the analyses performed, field analysts document
in their logbooks or on bench sheets the date and results of any calibra-
tion of mobile laboratory equipment. A record is also kept of any inci-
dents related to the survey; for example, the electricity going off in the
laboratory, tampering with Government vehicles or equipment, etc. Appro-
priate notations of visitors to the mobile laboratory, such as facility
personnel, are entered in the logbook.
All project logbooks are the property of NEIC and are to be returned
to the Project Coordinator when a survey assignment has been concluded.
FIELD DATA RECORDS
Where appropriate, serialized Field Data Records (in the form of indi-
vidual sheets or bound logbooks) are maintained for each survey sampling
station or location and the project code and station number are usually
recorded on each page. All m-situ measurements and field observations are
recorded in the FDRs with all pertinent information necessary to explain
Or the label for remote sensing or data recorded on magnetic tape
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11-27
(6/85)
and reconstruct sampling operations Each page of a Field Data Record is
dated and signed by all individuals making entries on that page. The Coor-
dinator and the field team on duty are responsible for ensuring that FDRs
are present during all monitoring activities and are stored safely to avoid
possible tampering. Any lost, damaged or voided FORs are reported to the
Project Coordinator.
SAMPLE IDENTIFICATION DOCUMENTS
All necessary serialized sample tags are distributed to field person-
nel by the Project Coordinator (or designated project participant) and must
be accounted for upon completion of the project. Individuals are responsi-
ble for each tag assigned to them. A tag is considered in their possession
until it has been filled out, attached to a sample, and transferred to
another individual with the corresponding Chain-of-Custody Record. Sample
tags contaminated with a hazardous substance are disposed of properly with
any other hazardous wastes. These and lost tags are noted in the appro-
priate Field Data Record, logbook, or Chain-of-Custody Record immediately
upon discovery and the Project Coordinator is notified. At the completion
of the field investigation activities, all unused, voided or damaged sample
tags are returned to the designated individual. The Receipt for Samples
form is used to account for those tags attached to samples split with the
source or another Government agency.
CHAIN-OF-CUSTODY RECORDS
Serialized Chain-of-Custody Records are distributed in a manner simi-
lar to that used for sample tags When samples are transferred to mobile
laboratory personnel, the analyst, after signing, retains the white (origi-
nal) custody record and files it in a safe place. The courier returns a
copy of the custody record to the Project Coordinator. A similar procedure
is followed when dispatching samples via common carrier, mail, etc., so
that the original accompanies the shipment and is signed and retained by
the receiving laboratory sample custodian while the copy retained for the
Project Coordinator is returned from the dispatch point.
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11-28
(6/85)
When samples are split with the source or another Government agency,
this is documented by the Receipt for Samples form (see page 11-22). The
tag serial numbers from all splits are recorded on the form and a copy of
the receipt will be provided for the source or agency. The white originals
are returned to the Project Coordinator.
OTHER CONTROLLED DOCUMENTS
The logbooks and data sheets that are used for various purposes such
as chemical, bacteriological and biological analyses; equipment calibra-
tion; etc. within the NEIC laboratories are neither serialized nor distri-
buted by the EAU. These documents are accountable by the procedures dis-
cussed in the following paragraphs.
The computer printouts of lidar data analyses, opacity calculations
and verification results are retained, uniquely numbered and submitted to
EAU with the branch files.
Bench sheets and other similar documents will be numbered. Each docu-
ment will show the project number, dates, name(s) of analyst(s) and other
pertinent information. Instrument printouts and other separate documents,
except laboratory logbooks, will be labeled in a similar manner. These
documents will be sent to the evidentiary file when requested.
Laboratory observations and calculations not recorded on numbered bench
sheets, instrument graph printouts, etc. are entered in numbered logbooks
assigned by a branch custodian or other designated individual. Each num-
bered page of the logbook actually consists of two pages - an original and
a copy.* The original is perforated so that it can be removed from the
logbook when project files are compiled for the evidentiary file. When
this type of logbook is unavailable, duplicates of individual pages will be
identified.
The original page requires no carbon paper. The logbook is referred to
as an NCR logbook.
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11-29
(6/85)
The logbook needs to contain information sufficient to recall and
describe succinctly each step of the analysis performed because it may be
necessary for the analyst to testify in subsequent enforcement proceedings.
Moreover, sufficient detail is necessary to enable others to reconstruct
the procedures followed should the original analyst be unavailable for tes-
timony. Any irregularities observed during the testing process need to be
noted. If, in the technical judgment of the analyst, it is necessary to
deviate from a particular analytical method, the deviation shall be justi-
fied and properly documented.
The numbered logbook assigned to an individual can be used for more
than one project. However, only one project is discussed on each page.
That page is labeled with the project code, dated, and signed by the indi-
vidual. The custodian closes out each completed laboratory logbook and may
retain it or return it to the analyst for reference purposes.
Where applicable, the branch file custodian issues a numbered instru-
ment logbook in which all information relating to calibration and mainten-
ance of a particular laboratory instrument is recorded.
PHOTOGRAPHS
When movies, slides or photographs are taken which visually show the
effluent or emission source and/or any monitoring locations, they are num-
bered to correspond to logbook entries. The name of the photographer, date,
time, site location and site description are entered sequentially in the
logbook as photos are taken. A series entry may be used for rapid sequence
photographs. The photographer is not required to record the aperture set-
tings and shutter speeds for photographs taken within the normal automatic
exposure range. Special lenses, films, filters or other image enhancement
techniques must be noted in the logbook. Chain-of-custody procedures depend
upon the subject matter, type of film and the processing it requires. Film
used for aerial photography, confidential information or criminal investi-
gations require chain-of-custody procedures. Adequate logbook notations
and receipts may be used to account for routine film processing. Once
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11-30
(6/85)
developed, the slides or photographic prints shall be serially numbered
corresponding to the logbook descriptions and may be labeled.
CORRECTIONS TO DOCUMENTATION
As previously noted, unless prohibited by weather conditions, all ori-
ginal data recorded in logbooks, FDRs, sample tags, custody records and
other data sheet entries are written with waterproof ink. None of the
accountable serialized documents listed above are to be destroyed or thrown
away even if they are illegible or contain inaccuracies which required a
replacement document.
If an error is made on an accountable document assigned to one indivi-
dual, that individual may make contemporaneous corrections simply by cross-
ing a line through the error and entering the correct information. Any
subsequent error discovered on an accountable document should be corrected
by the person who made the entry. All subsequent corrections must be ini-
tialed and dated.
If a sample tag is lost in shipment, or a tag was never prepared for a
sample(s), or a properly tagged sample was not transferred with a formal
NEIC Chain-of-Custody Record, the following procedure applies:
A written statement is prepared detailing how the sample
was collected, air-dispatched, or hand-transferred to the
field or NEIC laboratory. The statement should include
all pertinent information, such as entries in field log-
books regarding the sample, whether the sample was in the
sample collector's physical possession or in a locked com-
partment until hand-transferred to the laboratory, etc.
Copies of the statement are distributed to the Project Coordinator and
the appropriate branch project files.
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11-31
(6/85)
CONSISTENCY OF DOCUMENTATION
Usually before the release of a final project report, each branch or
division assembles its documents and cross-checks information on correspond-
ing sample tags, custody records, bench sheets, analyst logbooks and other
logbooks to ensure that data pertaining to each particular sample is com-
plete and consistent throughout the record. The Project Coordinator concur-
rently performs a cross-check of field documents (FDRs, logbooks, custody
records, etc.) to ensure that the information recorded corresponds with
that of the NEIC laboratories and is consistent throughout the project rec-
ord. An inventory accounting for all project evidentiary data accompanies
the transfer of the assembled branch file to the EAU.
The EAU is responsible for correlating accountable documents for a
project when there has been a change in the project number.
DOCUMENT NUMBERING SYSTEM AND INVENTORY PROCEDURE
To provide document accountability to the appropriate individuals,
each of the document categories discussed above features a unique serial-
ized number for each item within the category. Logbooks, FDRs, sample tags,
custody records and receipts for samples are serially numbered by the EAU
before assignment to project personnel. The logbooks and FDRs are usually
given a five-digit number, with the project code as the first three digits
followed by a two-digit document number. Sample tags, custody records, and
receipts for samples are labeled with the prefix "N", a four-digit document
number and the project code.
All project documentation (such as analyst's logbooks, graph paper,
data calculation sheets, memoranda, correspondence, photos, etc.) which are
generated during a project are uniquely identified with the project code,
the branch initials, and a sequential number (e.g., A49-CIB-01), usually at
the time the branch file is assembled.
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(6/85)
BRANCH OR DIVISION FILES
After a branch has completed its work for a particular investigation,
all documents generated from that project should be assembled in the branch
or division file. Individuals may retain clean (no handwritten comments)
copies of documents for their personal files but only after personally
verifying that the original or similar copy is in the file. Each Branch
Chief is responsible for assuring the collection, assembly, and inventory
of all documents relative to a particular project at the time the project
objectives are completed. The file then becomes accountable. Any records
leaving the file must be signed out by the agent or coordinator developing
the case.
EVIDENTIARY FILE
When NEIC has completed the project objectives, all inventoried branch
and division file documents are reviewed and submitted to the Evidence Audit
Unit. By this time each document will have been labeled with a unique number
as specified above. The format of the evidentiary file is to arrange each
project by branch documents and includes the following document classes:
A. Project Plan
B. Project logbooks
C. Field Data Records
D. Sample identification documents
E. Chain-of-Custody Records
F. Analytical logbooks, lab data, calculations, bench cards,
graphs, etc.
6. Correspondence
1. Intra-office
2. EPA
3. Facility
4. Record of confidential material
H. Report notes, calculations, etc.
I. References, literature
J. Sample (on-hand) inventory
K. Check-out logs
L. Litigation documents
M. Miscellaneous - photos, maps, drawings, etc.
N. Final report
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Once deposited in the evidentiary file, documents may only be checked
out through the EAU or designated representative. Investigatory files main-
tained by Special Agents follow the format established by the Office of
Criminal Investigations.
REPORTS
All draft reports are dated and numbered in red, and each page is
marked DRAFT. The author is responsible for disseminating draft reports
for internal NEIC peer review and preparing the appropriate transmittal
memorandum to the requester from the Chief of the Enforcement Specialist
Office. All draft copies of the report are to be returned to the author at
the end of the specified review period. Once comments have been incorporated
and the final report has been prepared, the author disposes of all draft
copies. However, Regional Offices may retain a copy of the draft report
with their comments until they receive the final report at which time the
draft will be returned to the NEIC for disposal. The author must account
for all draft copies when the files are submitted to EAU.
LITIGATION DOCUMENTS
Any litigation reports, letters, memoranda, draft court documents,
etc. from the Enforcement Specialist Office or other Government attorney
which discuss legal matters or strategies should be separately identified
in individual branch and division files. These documents will be marked by
the Enforcement Specialist Office to identify the privileged nature of their
contents. All NEIC materials prepared at the request of the case attorney
will be transmitted by the Chief of the Enforcement Specialist Office.
Internal distribution is limited to the appropriate project participants
and the yellow "rainbow" copy for the Central Files.
CONFIDENTIAL INFORMATION
Any information received by NEIC with a request for confidentiality is
handled as "confidential " A separate, locked file is maintained by the
Evidence Audit Unit for the segregation and storage of all confidential and
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trade-secret information Upon receipt by NEIC, this information is
directed to and recorded in the Confidential Inventory Log by the Document
Control Officer (DCO). The information is then made available to NEIC per-
sonnel, but only after it has been logged out. The information should be
returned to the locked file at the conclusion of each working day unless
the employee can guarantee its security. Confidential information may not
be reproduced except upon approval by and under the supervision of the DCO.
Any reproduction should be kept to an absolute minimum. The DCO will enter
all copies into the document control system and apply the same requirements
as for the original. In addition, this information may not be entered into
any computer or data handling system. Confidential documents may not be
destroyed except upon approval by and under the supervision of the Chief,
Enforcement Specialist Office. The Project Coordinator will be notified
prior to destruction of confidential information. The DCO shall remove and
retain the cover page of any confidential information disposed of for 1 year
and shall keep a record of the destruction in the Confidential Inventory
Log.
All analytical work on confidential samples will be separately per-
formed in a secure matter. The resulting documentation will be isolated
from the branch or division files when the records are called in by the
EAU. Specific procedures for handling confidential information collected
under authority of the Toxic Substances Control Act are discussed in the
next section.
Toxic Substances Control Act (TSCA)
Confidential Business Information (CBI)
Provisions of the Toxic Substances Control Act (TSCA) allow a company
to make a claim of confidentiality for any or all information collected by
EPA during an inspection if the material meets al1 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.
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2. The information is not, and has not been, reasonably obtainable
without the company's consent by other persons (other than Govern-
ment 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.
4. Disclosure of the information would cause substantial harm to the
company's competitive position.
Once confidentiality is claimed, there are stringent procedures that
must be followed. Only persons who have been granted special clearance may
have access to the material in the files.
Obtaining Clearance
1. The supervisor of the individual to be cleared contacts the Docu-
ment Control Officer (OCO) or Document Control Assistant (DCA).
The DCO/DCA will complete the "Authorization for Access to TSCA
Confidential Business Information (CBI)" form.
2. The DCO/DCA will check with the Personnel Office to determine if
the individual to be cleared has had the National Agency Check
and Inquiries (NACI). If the individual has not had an NACI,
those forms must be completed and forwarded to the Security and
Inspection Division in Washington before clearance can be granted.
3. The individual to be cleared accepts the employee responsibili-
ties when signing the Confidentiality Agreement.
4. The NEIC Director signs as authorizing official.
5. The authorization form is forwarded to Washington, D.C. and the
individual is placed on the authorized access list.
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6. If an employee no longer needs access to TSCA information or has
terminated his/her employment, a "Confidentiality Agreement for
United States Employees Upon Termination or Transfer" must be
completed.
Handling TSCA CBI
1. Documents must be checked out from and returned to the DCO/DCA.
Documents must be returned each day unless user has approved TSCA
document storage facilities.
2. TSCA CBI can be discussed only with authorized persons.
3. Information must be safeguarded when in use by keeping it under
constant surveillance by covering it or placing material face
down when unauthorized persons enter the area. It must be returned
to approved storage containers when not in use.
4. TSCA CBI may not be reproduced. Copies must be obtained from the
DCO/DCA.
5. TSCA CBI cannot be destroyed except upon approval by and under
the supervision of the DCO.
6. TSCA CBI cannot be discussed over the telephone without prior
written approval.
7. If TSCA CBI must be sent to another authorized individual, the
transmittal is accomplished through the respective Document Con-
trol Officers.
The penalties for violating the required procedures are severe. A
"violation" is the failure to comply with any provision in the TSCA Confi-
dential Business Information Security Manual, whether or not such failure
leads to actual unauthorized disclosure of TSCA Confidential Business
Information.
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Violators of these procedures may be removed from the authorized access
list and be subject to disciplinary action with penalties up to and includ-
ing dismissal.
Willful unauthorized disclosure of TSCA Confidential Business Informa-
tion may subject the discloser to a fine of not more than $5,000 or impris-
onment for not more than 1 year, or both.
It is essential that personnel be familiar with and abide by these
requirements. TSCA confidential files are subject to inspections by person-
nel from the EPA Security and Inspection Division, as well as personnel
from the Office of the Inspector General.
While on the road, the routine TSCA CBI security measures in the manual
specify that documents are to be placed in double envelopes and locked in a
briefcase that remains in the sight of the inspector. The manual recom-
mends that this information be mailed, shipped or hand delivered to an
authorized person as soon as possible.
The briefcase may not be checked as luggage nor left unattended in a
hotel room. It may be stored in a key-locked area for which the inspector
has the only key or in the hotel safe.
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EVIDENCE AUDIT
The Evidence Audit Unit (EAU) provides an evaluation of enforcement
investigation activities for evidentiary requirements. This evaluation
addresses document control, chain-of-custody, file assembly and evidence
securi ty.
The eight primary functions of the EAU are:
Maintaining the evidence audit file for each project
Issuing accountable documents to project coordinators
Conducting evidence audits of field investigation activities
Conducting evidence audits of laboratory investigation activities
Conducting evidence audits of document files
Assembling and storing evidentiary files
Maintaining confidential files
Certifying completeness of evidentiary files
EVIDENCE AUDIT FILE
An evidence audit file is maintained for each project. It contains
checkout logs, document return logs, memoranda, audit logbook and file
certification.
ACCOUNTABLE DOCUMENTS
The NEIC document control program requires the use of serialized
accountable documents for field investigations. These documents include,
but are not limited to, logbooks, field data records, sample tags, Chain-of-
Custody Records and Receipt for Samples forms. These items are issued to
the Project Coordinator's designee by the EAU.
EVIDENCE AUDIT OF FIELD ACTIVITIES
The audit of field activities is the evaluation of sampling operations
and data recording. The evaluation is. based on the project plan, this manual,
instructions by the Coordinator to field personnel, and standard procedures
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instituted by each branch. The auditor contacts the Coordinator and
discusses the various activities described in the project plan and sched-
ules the audit activities pertaining to each field team. The auditor peri-
odically accompanies the team on their regular tour and evaluates sampling
and measurement procedures.
The auditor works closely with the Project Coordinator during the
entire audit process. If deviations from standard procedures occur, the
Coordinator is notified immediately.
EVIDENCE AUDIT OF LABORATORY ACTIVITIES
The laboratory activities audit is the evaluation of sample custody,
laboratory procedures, quality assurance and documentation. The evaluation
is based on the project plan, this manual, and standard procedures instituted
by each branch. The audit covers each parameter or task described in the
project plan.
EVIDENCE AUDITS OF DOCUMENT FILES
The EAU requires submission of all records for inclusion in the evi-
dentiary file at the completion of a project. The review of these files
consists of checking document accountability to assure that all documents
issued are returned or accounted for. The individual branch files are
checked for completeness against the inventory. The case record is checked
for completeness and consistency throughout and any discrepancies are
brought to the attention of the Project Coordinator.
ASSEMBLING AND STORING EVIDENTIARY FILES
Evidentiary files are assembled by each NEIC organizational unit
according to the outline on Page 11-32 of this manual. They are stored in
a secure area and may be checked out as needed by NEIC personnel. Records
are periodically sent to the Federal Records Center for storage as project
files become inactive.
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CONFIDENTIAL FILES
A separate file is maintained for information when a company has made
a claim of confidentiality. These records are labeled confidential, stored
in EAU locked filing cabinets, and may be checked out to NEIC employees on
a need-to-know basis. All incoming confidential information is submitted
to the EAU for log-in and distribution.
Confidential Business Information (CBI) received under the Toxic Sub-
stances Control Act (TSCA) requires strict adherence to procedures outlined
in the TSCA Confidential Business Information Security Manual. Access to
material in these files is restricted to those who have received special
clearance.
CERTIFICATION OF COMPLETENESS OF EVIDENTIARY FILE
A memorandum certifying the completeness of the evidentiary file is
prepared for the Chief, Enforcement Specialist Office. This memorandum
addresses adherence to or deviations from NEIC policies and procedures for
chain-of-custody, document control and evidence security.
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QUALITY ASSURANCE
A Quality Assurance (QA) program is established at NEIC to assure that
data produced are of known and documented quality. The authority and
responsibility for directing QA activities within NEIC are delegated to the
QA Officer (QAO). QA direction and guidance are specified in the NEIC QA
Program Plan. QA program requirements cover all measurement activities
performed, supported or required by NEIC.
QA PROGRAM PLAN
The NEIC QA Program Plan provides policy and guidance for QA activi-
ties. The plan specifies measurement activities requiring QA documentation
and data quality assessment for precision, accuracy, representativeness,
comparability and completeness. It provides for a line of communication of
the progress and deficiencies of QA to NEIC management. The plan is the
basis for conducting system audits and determining adherence to NEIC QA
requirements.
QA PERSONNEL
The Quality Assurance Officer's responsibilities include development,
evaluation and documentation of QA policies and procedures at NEIC. The
QAO is assisted by QA division representatives from the Operations and Lab-
oratory Services Divisions in implementing and coordinating the QA program.
Other personnel involved in measurement activities are responsible for
carrying out quality assurance requirements in accordance with the QA Pro-
gram Plan and NEIC Standard Operating Procedures and for informing the QAO
or division representatives of the need for corrective actions.
The QAO develops and conducts system audits to monitor the QA program
and is available to consult with and recommend to the NEIC staff appropriate
and necessary QA methods and plans for assuring the quality of data produced.
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DATA GENERATION
QA is applied throughout the entire monitoring process to assure that
the data produced are of known and acceptable quality. The QA elements
included in the monitoring activities are described in project plans or
Standard Operating Procedures (SOPs) which are prepared for measurement
activities conducted by NEIC. Routine tasks are specified in SOPs. These
include:
Sampling and analytical methodology
Sample holding times and preservation
Federal reference, equivalent and alternate test procedures
Instrumentation selection and use
Calibration and standardization
Preventive and remedial maintenance
Replicate sampling and analysis
Blind and spiked samples
Data handling, evaluation, and storage procedures
Measurement procedures will be in accordance with EPA regulations and
guidelines and NEIC Standard Operating Procedures. Deviations must be jus-
tified and documented. Adherence to approved procedures will be determined
during internal systems audits.
DATA PROCESSING
To prevent introducing errors or losing or misinterpreting the data,
adequate precautions must be taken during the reduction and storage of data.
A. Checks will be made at data handling points between the analysts
determining the data values and the individual entering the data into
the data storage system.
All data must be recorded clearly and accurately in field
logbooks or on laboratory data sheets.
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All data must be transferred and reduced from field logbooks
and bench sheets completely and accurately.
All field and bench records will be retained in permanent
files.
Whenever possible, data will be organized into standard
formats.
B. A data storage and information system will be capable of:
Receiving all entered data
Screening and validating data to identify and reject out-
liers or errors
Preparing, sorting, and entering all data into the data stor-
age files (which are either computerized or manual)
Providing stored data points with associated QA/QC "labels"
which can indicate the level of confidence or quality of the
data. These labels should possess the capability of:
Indicating what QA/QC activities were included in the
major steps of the monitoring process
Quantitatively describing the precision/accuracy of the
analysis
Making data available to users, as required. Specific
requirements and procedures for the above aspects of
data processing will be described in Standard Operating
Procedures.
DATA QUALITY ASSESSMENT
The quality of measurement data generated and processed will be assessed
for precision, accuracy, representativeness, comparability and completeness
based on Standard Operating Procedures and available external measures of
quality (e.g., audit materials).
EPA-approved and/or best available methodology will be used for data
quality assessment. For many measurements of the NEIC, suitable methodology
must be developed and verified.
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Aspects of data quality which will be addressed are
Precision - Standard Operating Procedures will contain a mechanism for
demonstrating the reproducibility of each measurement process. Exam-
ples of activities to assess precision are: replicate samples,
colocated monitors and instrument checks.
Accuracy - Standard Operating Procedures will contain mechanisms for
demonstrating the relationship of the reported data compared to the
"true" value(s).
Traceability of Instrumentation - Each measurement device will be
assigned a unique identification number. Documentation shall
identify the specific measurement device, where and when used,
maintenance performed, and the equipment and standards used for
calibration.
Traceability of Standards - Standards and each measurement device
will be calibrated against a standard of known or higher accuracy
when possible. Calibration standards will be traceable to avail-
able standards of the National Bureau of Standards (NBS). If NBS
standards are not available, other available validated (primary)
standards will be used.
Traceabi1lty of Data - Data will be documented to allow complete
reconstruction from initial field records through data storage
system retrieval.
Methodology - If available, Federal reference, equivalent or
approved alternate test methods will be used. Other methodology
must be fully documented and justified.
Reference or Spiked Samples : Recoveries shall be within predeter-
mined acceptance limits. Unacceptable recoveries are identified
and documented.
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Performance Audits - NEIC will participate in the EPA Performance
Audit Programs.
Representativeness, Comparability, Completeness - Where appropriate,
statements on representativeness, comparability and completeness will
be included.
DEFINITIONS
ACCURACY - the degree of agreement of a measurement with an accepted refer-
ence or true value. Accuracy is expressed as (1) the difference between
the two values, (2) a percentage of the reference or true value, or
(3) a ratio of the two values.
AUDIT - a systematic check to determine the quality of operation of some
function or activity. Audits may be of two basic types: (1) perform-
ance audits in which quantitative or qualitative data are independently
obtained for comparison with routinely obtained data in a measurement
system, or (2) systems audits of a qualitative nature that consist of
an onsite review of a laboratory's quality assurance system and physical
facilities for sampling, calibration and measurement.
COMPARABILITY - a measure of the confidence with which one data set can be
compared to another
COMPLETENESS - a measure of the amount of valid data obtained from a mea-
surement system compared to the amount that was expected to be obtained
under normal circumstances
PRECISION - the degree of agreement between repeated measurements of one
property using the same method or technique
QUALITY ASSURANCE - the total integrated program for assuring the relia-
bility of monitoring and measurement data
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QUALITY ASSURANCE PROGRAM PLAN - an orderly assembly of management policies,
objectives, principles, and general procedures by which an agency
or laboratory outlines how it intends to produce quality data
QUALITY CONTROL - the routine application of procedures for obtaining pre-
scribed standards of performance in the monitoring and measurement
process
REPRESENTATIVENESS - the degree to which data accurately and precisely rep-
resent a characteristic of a population, parameter variations at a sam-
pling point or an environmental condition
STANDARD OPERATING PROCEDURE - an operation, analysis, or action whose
mechanics are thoroughly prescribed and documented and which is com-
monly accepted as the usual or normal method for performing certain
routine or repetitive tasks
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APDENDICES
A WITNESS GUIDELINES
B PROCEDURES FOR AIR SHIPMENT OF
ENVIRONMENTAL LABORATORY SAMPLES
C SAFETY PRECAUTIONS WHEN ACCEPTING
SAMPLES FROM OUTSIDE SOURCES
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APPENDIX A
WITNESS GUIDELINES
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WITNESS GUIDELINES
The following suggestions are made for prospective witnesses in order
to lessen the fears and apprehensions which almost everyone has when first
testifying before a board, commission, hearing officer or in court. Even
those who have testified previously encounter a certain anxiety when called
for a repeat performance. When a witness is properly prepared, both with
regard to the subject matter of testimony and conduct on the witness stand,
there should be little fear about testifying.
It is of utmost importance that the witness be thoroughly prepared as
to the subject matter of his testimony. Only the witness can recall what
occurred in the field and/or laboratory and why. Since many cases are tried
substantially after field and laboratory activities are conducted, it is
imperative that adequate documentation be originally prepared in order that
a witness1 memory may be refreshed. A thorough and detailed review of all
survey documents is the only way prospective witnesses can be adequately
prepared.
In order to assist witnesses on how they should conduct themselves the
following suggestions are given.
The witness will be required to take an oath to tell nothing but the
truth. The important point is to remember that there are two ways to tell
the truth—one is a halting, stumbling, hesitant manner, which makes the
board member, hearing officer, judge or jury doubt that the witness is tell-
ing 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 timeproven hints and aids
are provided below.
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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 inspec-
tion, close your eyes and try to picture the item and recall, if you can,
the important points of your testimony. Repeat the test until you have
thoroughly familiarized yourself with the 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 surround-
ings 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 then answers calmly and
directly in a sincere manner. The facts should be well known so they can
be communicated. Testimony in this manner applies to crossexamination 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.
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.
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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 satisfac-
tory 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
testi fy.
During your direct examination, you may elaborate and respond more
fully than is advisable on crossexamination. 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 mono-
logue. 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 addi-
tion, 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
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the verbatim record of your testimony is able to hear you and record what
you actually say. The case will be decided entirely on the words that are
finally reported as having been the testimony given at the hearing or trial.
Always make sure that you give a complete statement in a complete sentence.
Half statements or incomplete sentences may convey your thought in the con-
text of the hearing, but may be unintelligible when read from the cold
record many months later.
CROSS EXAMINATION
Concerning crossexamination, 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 per-
mission to explain your answer. Don't worry about the effect an
answer may have. Don't worry about being bulldozed or embar-
rassed; 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 crossexamination is to be brief,
absolutely accurate, and entirely calm.
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.
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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 crossexamination, 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 with-
out 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 askednot the question that you think the
examiner (particularly the crossexaminer) intended to ask. The printed
record shows only the question asked, not what was in the examiner's mind
and a nonresponsive answer may be very detrimental to your side's case.
This situation exists when the witness thinks "I know what he is after but
he hasn't asked for it." Answer only what is asked.
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.
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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.
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. Tes-
tifying 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 crossexamination 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. Do not ask the presiding
officer, judge or board member for advice
Do not look at your attorney or at the judge, hearing officer or board
member for help in answering a question. You are on your own. If the ques-
tion is an improper one, your attorney will object. If the judge, hearing
officer or board member then says to answer it, do so.
Do not hedge or argue with the opposing attorney.
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There are several questions which are known as "trick questions."
That is, if you answer them the way the opposing attorney hopes you will,
he can make your answer sound bad. Here are two of them:
"Have you talked to anybody about this matter?" If you say "no," the
hearing officer or board member, or a seasoned jury, will know that is not
right because good lawyers always talk to the witnesses before they testify.
If you say "yes," the lawyer may try to imply that you were told what to
say. The best thing to say is that you have talked to Mr. ,
your lawyer, to the appellant, etc., and that you were just asked what the
facts were. All we want you to do is simply tell the truth.
"Are you getting paid to testify in this appeal?" The lawyer 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 some-
thing like "No, I am not getting paid to testify; I am only getting compen-
sation 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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APPENDIX B
PROCEDURES FOR AIR SHIPMENT OF
ENVIRONMENTAL LABORATORY SAMPLES
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PROCEDURES FOR AIR SHIPMENT OF
ENVIRONMENTAL LABORATORY SAMPLES
Many NEIC surveys require shipment of environmental samples by air from
field locations to NEIC-Denver laboratories to meet required EPA holding
times. Environmental samples collected during water surveys are categorized
as: drinking water, ambient water, effluent, biological sediment, sludge,
and other environmental laboratory samples. Unless noted, the following
NEIC procedures comply with Department of Transportation (DOT) regulations
for packaging and shipping.
1. Unpreserved drinking water, ambient water, effluent, biological
sediment and sludge samples.
Normal unpreserved environmental samples collected by EPA employ-
ees are not regulated under DOT Hazardous Transporation Regula-
tions and may be shipped using NEIC packaging and handling proce-
dures for shipment of non-hazardous samples.
2. Preserved drinking water, ambient water, effluent, biological
sediment and sludge samples.
Table 1 lists the common preservatives and preservation techniques
used by EPA and listed in the Hazardous Material Table, 49 CFR
4172.101. Samples preserved in the recommended manner may be
shipped using current NEIC packaging and handling procedures for
shipment of non-hazardous samples.
3. Reagents
Reagents which are designated as hazardous by DOT's Hazardous
Material Table, 49, CFR £172.101, shall be shipped pursuant to
the appropriate DOT regulations. The shipper (NEIC) is required
to determine if an individually shipped reagent is likely to be
classified as a hazardous material when it is not listed in the
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TABLE 1
STANDARD PRESERVATIVES LISTED IN THE HAZARDOUS MATERIALS
TABLE (19 CFR £172 101) USED BY EPA FOR PRESERVATION OF WATER,
EFI LUENT , BIOLOGICAL SEDIMENT AND SLUDGE SAMPLES
Preservative
Sample Type/
Parameter
pH
Recommendation
Quantity of Weight % of
Preservative Added Preservation Hazard Class Label
Packaging
Exceptions
(49 CFR) Specific
Requirements
HC1
HgCl2
HN03
H2S0„
NaOH
H2P0<
Freezing
0°C
Organic Carbon
Nitrogen Species
*Metals, Hardness
Nitrogen Species
COD, OiI & Grease
P (hydrolyzable)
Organic Carbon
Cyanides
Phenolics
Biological -
F i sh & ShelI f l sh
<2 (rl 9)
N A.
<2(~1 6)
<2(~1 15)
2 ml of 1- 1
40 mg
3 ml of 1 1
2 ml of 36N
>12 (~12 3) 2 ml of ION
<4
N A
Sufficient to
yield desired pH
N A
0.04*
0 004%
0 15%
0 35%
0 080%
N A
Corrosive
Material
Poison B
Oxidizer,
Corrosive
Material
Corrosive
Material
Corrosive
Ha ten al
Corrosive
Material
ORM-A
Corrosive
Poison
Oxidizer and
Corrosive, 0
& Poison,
Corrosive
Corrosive
Corrosive
Corrosive
None
173 244
173 364
None
173 244
173 244
173 244
None
(Dry Ice) Tissue*
173 263
173 372
173 268
173 272
173.248
173.245(b)
173. 249
173 245
173 615
If sample must be shipped by passenger aircraft or railcar, the sample may be initially preserved by icing and immediately shipping it to the
laboratory Upon receipt in t/ie laboratory, the sample must bo acidif led with c one, UNO 3 to pH 2 At time of analysis, sample container should
be thoroughly rinsed wiUi 11 HNOj, was/ungs should be added to sample.
Dry ice is classiflad as a ORM-A hazard by DOT. There is no labeling requirements for samples preserved vith dry ice, but samples must be
packaged in accordance vith the requirements of 49 CFR 173 615 and advance arrangements must be made between the shipper and the air carrier
XI U3
\ 1
co ro
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8-3
(6-85)
DOT Table. Nitric acid in any concentration is forbidden on
passenger-carrying aircraft or railcar.
For investigations where nitric acid must be used for metals pres-
ervation, means other than transport by passenger-carrying aircraft
or railcar must be used to transport the acid to the site of
investigation.
4. Other Samples
Some environmental samples collected by EPA employees, such as
leachates, untreated process materials or samples from spill
investigations, may contain concentrations of contaminants in ex-
cess of those normally encountered in preserved drinking water,
ambient water, effluent, biological sediment and sludge samples.
If such samples are collected and shipped by air, and the technical
name of a sample contaminant material is known, and if the contam-
inant material is designated in the Hazardous Materials Table, it
must be shipped pursuant to applicable DOT Hazardous Materials
regulations. If the technical name of the sample contaminant
material is not known, the DOT regulations place 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 a
laboratory for analysis, it is assumed that the shipper would
have some information concerning the sample, and based on that
information, be able to make a reasonable determination whether
the sample is likely to be classified a hazardous material. When
a reasonable doubt exists as to whether a sample is subject to
DOT regulations, the shipper should consult the Hazardous Mate-
rials Transportation Coordinator as to the appropriate procedures
to follow in the shipment of the sample.
When a sample is not listed in DOT's Hazardous Materials Table,
40 CFR £172.101, it is necessary for a shipper to make a reason-
able determination whether the sample is likely to be classified
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B-4
(6-85)
as a hazardous material. The following classes of hazardous
materials must be considered and they are listed below in the
order of greatest concern, 40 CFR 4173.3
Radioactive material
Poison A
Flammable gas
Non-flammable 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,
ODT, dieldrin, formaldehyde, lindane, malathion, naptha-
lene, vinyl acetate)
Combustible liquid (in containers having capacities of
110 gallons or less)
The above hazards likely to be applicable to NEIC survey samples as
defined by DOT regulations are as follows:
Poison A (49 CFR 173 326) - Poisonous gases or liquids of such nature
that a very small amount of gas, or vapor of the liquid mixed with air
is dangerous to life. This class include the following:
Bromacetone
Cyanogen
Cyanogen chloride containing less than 0.9% water
Diphosgene
Ethyldichlorarsine
Hydrocyanic acid
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B-5
(6-85)
Methyldichloratsine
Nitrogen peroxide (tetroxide)
Phosgene (diphosgene)
Nitrogen tetroxide - nitric oxide
Mixtures containing up to 33.2%
weight nitric oxide
Flammable liquid [49 CFR 173.115(a)] - "Any liquid having a flash point*
below 100°C (37.8°F) ... " Some of the flammable liquids listed in
DOT's Hazardous Materials are acetone, alcohol n.o.s. (not otherwise
specified), benzene, cyclopentane, hexane, ink, methyl alcohol, methyl
ethyl ketone, toluene, and xylene.
Oxidizer (49 CFR 173.151) - "A substance such as a chlorate, permanga-
nate, inorganic peroxide, nitro carbo nitrate, or a nitrate that yields
oxygen readily to stimulate the combustion of organic matter."
Corrosive materials (49 CFR 173.240) - "A liquid ... that causes vis-
ible destruction or irreversible alterations in human skin tissue at
the site of contact, or in the case of leakage from its packaging, ...
that has a severe corrosion rate of steel."
Poison B (49 CFR 173.343) - "Those substances, liquid or solid (includ-
ing pastes and semisolids), other than Class A poisons or Irritating
Materials, which are known to be so toxic to man as to afford a hazard
to health during transporation; or which, in the absence of adequate
data on human toxicity, are presumed to be toxic to man because they
fall within any one of the following categories when tested on labora-
tory animals:
Oral toxicity . .
Toxicity on inhalation
Toxicity by skin absorption
Flash point means the minimum temperature at which a substance gives
off vapors which m contact with spark or flame will ignite, 49 CFR
171.8.
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B-6
(6-85)
Examples taken from DOT's Hazardous Material Table include aldrin,
copper cyanide, mecuric acetate, nitroani1ine, thiophosgene and zinc
arsenate. The foregoing categories shall not apply if the "physical
characteristics or the probable hazards to humans as shown b^/ experience
indicate that the substances wi11 not cause serious sickness or death."
Irritating Material (49 CFR 173.381) - "A liquid or solid substance
which upon contact with fire or when exposed to air gives off dangerous
or intensely irritating fumes, such as brombenzylcyanide, chloraceto-
phenone, diphenylaminechlorarsine, and diphenylchlorarsine, but not
including any poisonous material, Class A."
Combustible liquids [49 CFR 173.115(b)] - Any liquid that .... has a
flash point at or above 100°F (37.8°C) and below 200°F (93.3°C) ..."
Examples of combustible liquids include alcohol-n.o.s., benzaldehyde,
camphor oil, chlordane-1iquid, creosote-coal tar, fuel oil, pine oil,
road oil, and wax-liquid.
Etiological agent (49 CFR 173.386) - a viable microorganism or its
toxin, which causes or may cause human disease. A "diagnostic specimen"
means any human or animal material including, but not limited to,
excreta, secreta, blood, and its components, tissue, and tissue fluids
being shipped for purposes of diagnosis. The list of etiological
agents in the Department of Health, Education and Welfare (HEW) regula-
tions, 42 CFR 72.25(c), includes bacterial, fungal, and viral agents
and would cover organisms found in sewage, human and animal waste.
Diagnostic specimens of etiological agents are excepted from DOT haz-
ardous materials regulations but HEW requires an etiological agent
label to be affixed to all packages which contain etiological agents.
However, so long as the shipper does not have reason to believe that
viable disease-causing organisms are present in a sample based on the
company's NPDES permit and DMR data, then the sample will not be con-
sidered an etiological agent. Therefore, the sample will not require
an HEW etiological label and may be shipped pursuant to NEIC packing
and handling procedures for shipment of non-hazardous samples.
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B-7
(6-85)
The Clean Water Act (Section 311(b)(2)) requires the identification of
hazardous substances which present an imminent and substantial danger to
the public health and welfare. DOT has proposed that any substances not
previously listed in the Hazardous Material Table be classified as ORM-E.
The EPA Safety Manual for Hazardous Waste Site Investigations* details pro-
cedures for transporting unknown hazardous waste materials samples.
NEIC Packaging and Handling Procedures for Shipment of Non-Hazardous Samples
The basic guidelines for NEIC packaging procedures meet DOT standard
requirements for all packages as specified in 49 CFR 173.24, e.g.:
Each package ... 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 ... materials to the
environment.
the effectiveness of the packaging will not be substantially
reduced; and
there will be no mixture of gases or vapors in the package which
could, through any credible spontaneous increase of heat or pres-
sure, or through an explosion, significantly reduce the effective-
ness of the packaging.
In addition, shipments by air must meet the requirements at 49 CFR Section
173.6:
Each package ... 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 ... materials to the environment.
* In DkAFT circulation at time of this printing.
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B-8
(6-85)
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 packagings must be capable of withstanding a
4-foot drop on 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°F.
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, arr internal absolute
pressure of no less than 26 lbs/sq inch or no less than the sum
of the absolute vapor pressure of the contents at 130°F (55°C)
and,
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 or any inside
plastic packaging must be secured to prevent the closure from
loosening due to vibration or substantial changes in temperature.
Present NEIC custody procedures require samples to be placed in locked
metal picnic coolers with hard plastic liners. EPA analytical methods
recommend that samples be preserved with ice or below a temperature of 4°C.
These must be adhered to in addition to the following packaging procedures
based on the above DOT guidelines.
Samples in quart-size and smaller glass bottles should be enclosed in
styrofoam packaging and sealed with filament reinforced tape. In the case
of the 1 - gal 1 on bottles used for non-preserved organic samples, carved
styrofoam sheets at the top and bottom will be used to hold the bottle in
place. A picnic cooler containing plastic 16-ounce bottles and ice was
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B-9
(6-85)
dropped three times from a distance of four feet and did not experience any
leakage nor damage to the inside bottles. This indicates that it affords
the type of sturdy protection which is the goal of 49 CFR 173.24 and 173.6.
Therefore, 16 ounce polyethylene bottles will be used for samples containing
acid preservatives and the bottles will not require additional styrofoam
enclosures. The caps will be tightly screwed on before being placed in the
cooler. Small volatile organics glass bottle samples will be placed inside
quart cubic containers to prevent breakage. Plastic containers and quart-
size glass bottles (enclosed in styrofoam containers) will be put into large
heavy-duty plastic bags inside the cooler, ice will be placed around the
samples and the bags will be tightly closed. The cooler drainage hole must
be secured to prevent leakage. All sides of the cooler will have arrows
which indicate the proper upward position of the cooler and a "THIS SIDE
UP" sticker will be placed on top. Following these packaging procedures,
will minimize to the greatest degree presently possible, any harm which
could occur from transportation of NEIC environmental samples in commerce.
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APPENDIX C
SAFETY PRECAUTIONS WHEN ACCEPTING
SAMPLES FROM OUTSIDE SOURCES
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SAFETY PRECAUTIONS WHEN ACCEPTING
SAMPLES FROM OUTSIDE SOURCES
In order to minimize hazards to NEIC analytical personnel and to prevent
laboratory contamination, procedures for collection and transportation of
samples for analysis by the NEIC laboratory are as follows:
1. NEIC will accept potentially dangerous samples only in cases where
there has been active participation in the planning and execution
of the sampling program by a designated NEIC staff member.* Such
active participation must include full sharing of knowledge rela-
tive to process, previous analytical data, and other information
relative to the characteristics of the material to be sampled.
2. Samples from municipal sewage treatment plants or the ambient
environment will be accepted only after detailed discussion and
agreement between the Regional project coodinator and the NEIC
Chemistry Branch Chief or his representative. This exchange of
information must include a positive sample identification scheme,
full discussion of known characteristics of the material sampled,
and sample preservation and shipment procedures. Except in emer-
gency situations such agreement will be confirmed in writing by
NEIC prior to sampling.
3. Submission of unusual or non-routine kinds of samples, i.e., bag
samples of gaseous emissions, core samples from landfills, etc.,
will be governed by procedures similar to those in item 2 above.
However, if there is a possibility of toxic exposure, the proce-
dures in item 1 will be followed.
In an emergency precluding participation of NEIC personnel, procedures
can be worked out by a telcon.
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