Bullet proof data sets for environmental litigation
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The document discusses the critical importance of data quality in environmental investigations and litigation, emphasizing proper sampling techniques, documentation, and quality assurance controls. It contrasts approaches taken by plaintiffs and defendants in a specific case, highlighting deficiencies in data handling and procedures which can weaken legal arguments. A well-structured sampling plan, adherence to standard operating procedures, and thorough record-keeping are essential to uphold the integrity of environmental data used in legal contexts.
Bullet proof data sets for environmental litigation
- 1. Providing Bullet Proof Data Sets for Litigation Matters Court Sandau, PhD, PChem Presented on January 21, 2011 Exova Environmental Seminar – Calgary © 2015 Chemistry Matters Inc.
- 2. Easiest thing to Attack is Data Quality • Occam's razor - the simplest explanation or strategy tends to be the best one Franciscan friar, William of Ockham 2www.chemistry-matters.com Not an approved sample container! © 2015 Chemistry Matters Inc. Sampling is the easiest thing for a legal case to attack.
- 3. The Foundation of All Environmental Investigations Litigation Remediation & Risk Assessment Site Investigation Phase I, II, III Data Quality Precision, Accuracy, Reproducibility, Comparability, Representative, Collected Properly, Documented, COC ProgressionofInvestigation 3www.chemistry-matters.com • Data quality is the foundation of all environmental investigations © 2015 Chemistry Matters Inc.
- 4. Responses to Data Quality 4www.chemistry-matters.com • Data quality assurance and quality control (QA-QC) is this least ‘sexy’ part of the investigation • Rarely completed – usually just trust the laboratory results as reported • If completed, done after the interpretation – Should be completed before interpretation and immediately after data is received (in case there is an issue with the data) © 2015 Chemistry Matters Inc.
- 5. Investigation Road Map Field Event Sampling Design Reporting DQOs QAPP Laboratory Analysis Data Review 5www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 6. 6P Rule Prior Planning Prevents Piss Poor Performance 6www.chemistry-matters.com “If you fail to plan, you are planning to fail!” Benjamin Franklin © 2015 Chemistry Matters Inc.
- 7. Data Flow for Environmental Investigations Data Generation and Review Quality Assurance Project Plan (QAPP) Requirements Identified External Parties Validation of the Laboratory Analytical Data (Not the Lab) Project Scope Defined Field Activities Laboratory Analysis Data Quality Assessment Data Usability Data Repository e.g., Database (General or Project) Data may support future project needs QAPP Analytical requirements sent to lab Samples + COC info Analytical Data Package Validated Analytical Data Data on Sample Location Field Logs Information Project Decision(s) + Supporting Data 1 2 3 4 56 78 7www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 8. Science Experiment • All environmental investigations should be treated as a science experiment: Design (hypothesis, to answer a question) Data (correct, enough) Controls (to know validity of data and uncertainty) 8www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 9. Case Background • Local residents alleged exposure to contaminants from local wood treatment facility • They initiated a class action lawsuit • PAHs, dioxins/furans, metals – main chemicals of concern • Representing the defendant • Both plaintiffs and defendants collect their own data 9www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 10. Choice of Sampling Locations Plaintiffs • Sampled oldest houses in the town • Sampled homes closest to plant Defendants • Sampled homes of all ages and areas of town, including “background” locations 10www.chemistry-matters.com Reference/background sampling very important to establish if impacts occurred. © 2015 Chemistry Matters Inc.
- 11. Sampling Strategy • Composite or discrete • Statistical / Judgmental / Opportunistic Hotspot < 100m2 Define Average Conc. 95% Confident not Contaminated Systematic grid Systematic grid Random 11www.chemistry-matters.com © 2015 Chemistry Matters Inc. Click this link to view a case study with legal sampling and systematic grid sampling.
- 12. Sampling Strategy • Best to have strategy before heading to site • Non-biased, statistical sampling is best • If judgmental sampling – Is the person qualified to make the judgments – Are the judgments being documented – reasons why? • Data will be used years later as legal cases do not move quickly – Remember that one person’s judgment may be different than another • Must be able to defend choices 12www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 13. Choice of Sampling Technique Plaintiffs - Vacuum bought at local store then rigged up to collect samples Defendants - Used US-EPA developed vacuum design - Followed ASTM Method D5438–05 protocol for sampling 13www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 14. Sampling Procedures • Always use standardized or validated sampling (operating) procedures • Always have an SOP written and at the site • Have staff read and sign they have read and understood the SOP • Check to make sure staff are following the SOPs • Video the sampling of contentious sites – valuable for documenting procedures in court. 14www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 15. Sample Containers Plaintiffs • Used water bottles, cut in half and taped together with duct tape Defendants • EPA approved glass, certified clean sample jars 15www.chemistry-matters.com Convenience cannot override science and proper sample preservation. © 2015 Chemistry Matters Inc.
- 16. Sample Containers • Never use water bottles to collect a sample • Use appropriate containers – Selected based on contaminant being analyzed • Is preservative necessary? • How full does container need to be? – Headspace, no headspace – Will sample be frozen • Tamper proof seal to demonstrate sample integrity 16www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 17. Sampling Locations Plaintiffs • Collected dust from normally inaccessible attic spaces Defendants • Sampled carpet in living areas of the homes 17www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 18. Sampling • Why are you taking the sample? • What are the CoCs? • What is your conceptual site model? – What exposure are you worried about or trying to represent? • Is the sampling technique appropriate for the model/ guideline? 18www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 19. Sample Pre/Post-Treatment Plaintiffs • Sample was submitted as is. Contained debris not related to matrix being sampled (dust). Defendants • Need to represent human exposure which is <120 um particles • Sieved to ASTM standard 422-63 19www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 20. Sample Pre/Post-Treatment • Does sample require preservative? • Does sample need to be sieved prior to putting in sample bottle? Sieved by lab? – Remove rocks – Remove organic matter (roots/grass) 20www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 21. Documentation Plaintiffs • Little documentation, no SOPs, legal chain of custody not followed Defendants • Lots of picture • Great field notes • SOPs written and followed • Sampling plan developed before site visit • Legal chain of custody followed 21www.chemistry-matters.com Company Case Name Company Logo Address © 2015 Chemistry Matters Inc.
- 22. Documentation Sampling FormsField Notes COCs Maps • Pictures, videos • GPS coordinates of sampling points and site characteristics 22www.chemistry-matters.com Company LOGO Company LOGO Company LOGO © 2015 Chemistry Matters Inc.
- 23. Field investigation of groundwater well showed toluene present in the residential water sample. Field notes documented electrical tape on water pump and pictures showed tape present. Conducted laboratory experiment to prove glue from electrical tape contains toluene. • Good field notes • Observations from experiment • Can track issues noted in an assessment Field Notes & Documentation 23www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 24. Field Notes and Forms - Completeness • No empty fields • Completeness/thoroughness is key • Data blanks make it look incomplete or careless • Questioning whether procedures were followed • Sloppiness (e.g. wrong number of samples on COC) is unacceptable • Data used months to years after the fact – Sometimes new consultant needs to use the data 24www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 25. Field Work • Completeness and thoroughness takes time • Cannot rush – easy to forget or miss something • Developing SOPs and checklists for on-site activities is a good way to develop a “system” • Systems, once in place, provide efficiencies and long term consistency 25www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 26. Legal Chain of Custody 26www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 27. Maintaining Custody From a legal perspective, a sample is under custody if: • the sample is in a person’s possession • the sample is in a person’s view after being in possession • the sample was in the person’s possession and then was locked up to prevent tampering • the sample is in a designated secure area 27www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 28. Chain of Custody • Should be filled out in completion • All samples accounted for – Lab issues – Loss of custody • COC used for future reference 28www.chemistry-matters.com Company LOGO © 2015 Chemistry Matters Inc.
- 29. Item Yes If no.... Are samples properly contained and chemically preserved? Correct Are samples properly labeled? Correct Initials of collector, time, date of collection? Correct Are samples properly sealed? Correct Is necessary preservative present, i.e. ice? Correct Has chain of custody form been completed? Correct Does chain of custody information match sample labels? Correct Copy of chain of custody form taped to cooler lid and maintained inside cooler in whirlpack bag? Correct Samples properly packaged to withstand breakage? Correct Are coolers custody sealed? Correct Was storage temperature maintained between sample collection and lab receipt May require resampling Sample Packaging: Cooler Check List 29www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 30. Thermochron -30 -20 -10 0 10 20 30 40 24-Nov-08 25-Nov-08 26-Nov-08 27-Nov-08 28-Nov-08 29-Nov-08 30-Nov-08 1-Dec-08 2-Dec-08 3-Dec-08 Date Temperature(°C) Samples collected Samples moved to freezer Samples moved to shipping cooler Samples received 30www.chemistry-matters.com Tracks and documents temperature of samples once collected. © 2015 Chemistry Matters Inc.
- 31. Relinquishing COC • Each person that handles samples until (including) receipt at lab must sign/date COC • Best to have samples sorted for laboratory receipt • Best practices should have samples grouped by analysis being requested – Don’t need sorting issue to be a problem after all the effort put into collecting samples 31www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 32. % Recoveries Told the Story Minimum and Maximum PAH Standard Recoveries 100 300 500 700 900 Recovery(%) Soil Attic Dust House Dust 146% 965% 138% 65% 44% EPA Maximum Recovery 150% EPA Minimum Recovery 25%0% PLAINTIFFDATA 32www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 33. What About QA-QC Samples? • Do you need trip and/or field blanks? – Submit as blind samples • Do you need a duplicate? – Submit as a blind duplicate • Do you need to understand analytical variability? – Lab duplicate, injection duplicate? • Do you need to prove accuracy? – Reference materials (certified or secondary) 33www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 34. Precision Measured with duplicate samples • Field duplicates – measures sampling, extraction, analytical error • Laboratory duplicates – measures extraction, analytical error • Injection duplicates – measures analytical/instrument error Injection RM Field Laboratory A 15.8% 10.2% 24.4% Laboratory B 1.4% 23.7% 9.4% Injection Duplicate Lab Duplicate Field Duplicate %Variability 0 10 20 30 40 50 RPD for Sampling Duplicates 34 www.chemistry-matters.com © 2015 Chemistry Matters Inc.
- 35. Types of Duplicates What do they tell you? 0% 5% 10% 15% 20% 25% 30% Injection Duplicate Standard RM Duplicate Field Duplicate Injection Duplicate Sample InstrumentVariability InstrumentVariability+ matrix Matrix MethodVariability Sampling,Matrixand MethodVariability MatrixEffects 35www.chemistry-matters.com© 2015 Chemistry Matters Inc. Duplicate samples can identify where the variability is in your study.
- 36. Data Validation Terminology To help minimize ambiguity and increase consistency, USEPA has put forth the following terminology regarding data verification and validation: Stage 1 Validation • Completeness check and compliance of sample receipt conditions Stage 2A Validation • Stage 1 + sample related QA-QC checks Stage 2B Validation • Stage 2A + instrument QA-QC checks Stage 3 Validation • Stage 2B + recalculation checks Stage 4 Validation • Stage 3 + review of actual instrument outputs 36www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 37. Responsibility of Legal Sampling • Samples should be collected, handled, packaged, and tested in accordance with a checklist of procedures contained in a sampling plan – Part of a QAPP • You may be required to identify the sample collected and to explain the sampling procedures that were followed. • Mistakes or deficiencies in procedures may damage the evidence/data presented. • If a mistake in procedure has been made: – the mistake should be recorded and a fresh start at sampling should be initiated • If a mistake has occurred, under no circumstances should you attempt to cover up the mistake or continue with your sampling procedures in the hope that the mistake will not be noticed. 37www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 38. Investigation Road Map Field Event Sampling Design Reporting DQOs QAPP Laboratory Analysis Data Review Data Quality - How to control? - Why check? -3rd Party review -implications of data quality 38www.chemistry-matters.com© 2015 Chemistry Matters Inc.
- 39. Questions? Contact Info: Chemistry Matters Inc. Court Sandau Email: csandau@chemistry-matters.com Twitter: @Chem_Matters Slideshare: www.slideshare.net/csandau Please visit our website for related information, case studies and blogs. www.chemistry-matters.com Got a question, post it to our website, HERE. © 2015 Chemistry Matters Inc.