Hazmat Survival Tips: Obtaining Evidence for Prosecution of Environmental Crimes

Beyond the Rule of Thumb
Survival Tip 41

First responders trained to either the Hazardous Materials Technician or Specialist levels have probably been instructed on how to obtain samples of unknown liquid or solid materials using various types of equipment. These items usually include some type of glass sampling tube and glass or plastic jars in which to place the sample. However, it is important to remember that these samples are most likely used to identify the product and its characteristics during situations involving abandoned containers. Armed with this information, first responders will then be better able to make decisions regarding the degree of hazard the material poses, the best means for its disposal, and the cleanup of any contaminated areas.

On some occasions, there may also be an interest in using this information in court as evidence to prosecute an individual charged with violating the laws regarding proper disposal of hazardous materials, otherwise known as environmental crime. Whenever this occurs, first responders must be aware that the standard of care for obtaining chemical samples to use as criminal evidence is much greater than that used to obtain samples simply for characterization and disposal.

Most importantly, first responders must be able to testify under oath that nothing they did while obtaining the samples influenced the laboratory analysis results. These influences can include the equipment used and the techniques employed. In particular, any equipment that touches the materials to be sampled, including sampling devices such as a “drum thief” or a “coliwasa” (COlumn LIquid WAste Sampling Apparatus) tube, as well as sample jars, must be certified as being clean.

Most manufacturers use established cleaning protocols, such as EPA Protocol A or EPA Protocol B, which state specifically what steps manufacturers must take in cleaning the device prior to packaging. They include steps such as washing with a biodegradable, nonphosphate detergent, rinsing with tap water and deionized water multiple times, and air drying or perhaps drying in an oven. The packages in which the sampling devices are sold include a manufacturer’s certificate of analysis stating which cleaning protocol was used and verifying that the device is “clean.”

First responders who use sampling equipment from a manufacturer’s sealed package must maintain the certificate of analysis on file in case a defense attorney asserts that the evidence used to convict his client was somehow altered by a “contaminated” container. All too often, however, a sampling equipment package may contain anywhere from 12 to 24 individual items, either jars or sampling tubes, but it is rare for first responders to use that many containers during a single incident. Unfortunately, once the manufacturer’s seal is broken on the package, first responders cannot simply reseal the box with adhesive tape. Even resealing the box with evidence tape may still provide a defense attorney with ammunition to use to persuade a judge and jury that the sample containers could have been tampered with.

To avoid this dilemma, one option for first responders is, on purchasing a package of sampling equipment, to remove the items and repackage them in smaller packages, such as plastic bags. Depending on size, two or three sample jars can be repackaged and heat-sealed for security purposes. An index card containing the lot number from the original manufacturer’s certificate of analysis can be placed in each bag and the certificate of analysis can be filed securely. Then, when the bag is opened for use on scene, the card with the lot number can be used to retrieve the appropriate certificate that can then be referenced in court to confirm that any devices used to obtain samples of criminal evidence were clean. Of course, the person who repackaged the jars in the plastic bags may also have to testify as to his actions.

However, this is far better than using a jar from an open package that has been sitting in the trunk of a battalion chief’s car for the last year. When that occurs, you will have a difficult time convincing a judge and jury that there was not some type of external influence on the lab results from the samples you collected.

In addition to testifying that the equipment used did not influence test results, first responders must also use extreme care to ensure that their sampling techniques do not introduce any outside influence. Most important is the need to avoid cross-contamination, which occurs when materials from multiple sources (such as different containers of unknown materials) become mixed. To avoid any potential for this mixing to occur, it is important to remember that any one sampling device such as a drum thief or coliwasa tube cannot be used to obtain samples from more than one source container.

In addition, whenever there is more than one source of material to sample, whether from a container or from a surface on land or water, gloves used to handle sampling devices must be changed between each source. Therefore, you can take as many samples as needed from one container or from some other source, but if you move on to sample from a different source, outer gloves must be changed. The same base glove, which for most first responders is usually a lightweight glove made of nitrile or latex, can be worn throughout the incident regardless of the number of sources that are sampled.

The exact number of samples from each source, the type of container used, and the amount of material placed in each container can influence both the laboratory results and the credibility of any subsequent investigation. Remember that even the type of sample jar used (glass, plastic, or some other material) can influence the results. For example, a sample of a chemical that is photochemically reactive, such as a pesticide, can degrade if placed into a clear glass jar. Instead, samples of this type of material should be placed into an amber jar, because the darker color of the jar will decrease the effect of light on the sample. Likewise, there may be a need for multiple samples from the same source to allow the laboratory to perform various types of tests and to provide quality control samples.

Regardless of the type of container used or the number of samples obtained, first responders are advised to first check with representatives from the laboratory that will do the analysis so that there will be no surprises when the samples arrive at the lab. Remember that to have credible evidence for use in court, good quality samples must be obtained at the scene of the crime.

Another issue that could potentially influence lab results and ultimately be used against first responders during a criminal trial is the means used to preserve evidence during transport and concerns regarding chain-of-custody of the evidence. Depending on the type of sample and the amount of time it will take to deliver it to a laboratory, there may be steps necessary to preserve the sample, such as placing it on ice.

Proper chain-of-custody procedures require the use of an approved form that includes an accurate description of each sample and the name of each person who handled the sample. Each time the sample is transferred to another individual, that person’s name must appear on the form. It is also important that any person who has had custody of the sample must be able to testify that the sample was secured during storage. This is most often accomplished by storing the sample under a lock that has limited access. The laboratory that conducts testing of the sample should be able to provide first responders with recommendations for sample preservation and copies of their chain-of-custody forms.

First responders dealing with abandoned containers of hazardous materials or incidents in which these materials have been intentionally released are responsible for protecting the public and the environment from potential adverse effects, and hence must use proper techniques to identify these chemicals’ individual characteristics. However, when they are also responsible to obtain samples for use as evidence during criminal proceedings, when prosecution is sought for violating laws governing the proper handling and disposal of hazardous materials, first responders have an even greater burden to ensure that they obtain credible evidence. Remember that successful prosecution of those responsible for environmental crimes provides first responders with not only the satisfaction of a job well done, but also the knowledge that a conviction of those responsible for these acts may deter others who may contemplate similar deeds.

Questions or comments on this or any other monthly Hazardous Materials Survival Tip can be directed to Steven De Lisi at HazMatSurvivalTip@comcast.net.

Click here for more info on Steven De Lisi’s book, Hazardous Materials Incidents: Surviving the Initial Response.

Steven M. De Lisi is employed by Tetra Tech EM Inc. as a program manager responsible for planning, training, and exercise activities related to hazardous materials response. He recently retired from the fire service following a 27-year career that included serving as the deputy chief for the Virginia Air Guard Fire Rescue and a division chief for the Virginia Department of Fire Programs (VDFP). De Lisi is a hazardous materials specialist and as an adjunct instructor for VDFP, he continues to conduct hazardous materials Awareness and Operations-level training for fire suppression and EMS personnel. De Lisi began his career in hazardous materials response in 1982 as a member of the hazmat team with the Newport News (VA) Fire Department. Since then he has also served as a hazardous materials officer for the Virginia Department of Emergency Management; in that capacity, he provided on-scene assistance to first responders dealing with hazardous materials incidents in a region that included more than 20 local jurisdictions. De Lisi holds a master’s degree in public safety leadership and is the author of the textbook entitled Hazardous Material Incidents: Surviving the Initial Response, published by PennWell.