NCC-ACHMM October 22, 1998 Dinner Meeting Highlights

Our October Dinner Meeting was a joint meeting with the National Academy Board. The Board was holding its quarterly meeting in San Francisco.

Speaker: James L. Meeder, Esq. Beveridge & Diamond LLP

Meeting Summary by John Wondolleck, CHMM

Mr. Meeder presented and discussed a series of court cases related to the use and admissibility of environmental data in a court of law. The cases related to use of data by regulatory agencies to support an enforcement action and by an industrial entity as a defense in a criminal action.

Mr. Meeder emphasized four points related to environmental testing:

• First, there is much still to learn about the accuracy, reliability, and meaning of the numbers we generate in environmental testing;
• Second, our courts, especially our criminal courts, are at least an imperfect mechanism for determining the accuracy, reliability, and meaning of environmental test results;
• Third, once a number is written in a lab report, it takes on a life of its own and it becomes very difficult if not impossible to correct.
• Finally, under the rules of evidence which govern the admissibility of all environmental test results in court, if the error is harmless the test result will in all likelihood be admissible in spite what statute and regulations may say.

Some basic rules of evidence applied to environmental law (California):

The General Rule: "Except as otherwise provided by statute, all relevant evidence is admissible." (Calif. Evidence Code, section 351)

And the General Qualified:

"Where a statute . . . . does not specifically provide that evidence shall be excluded with said statute . . . such evidence is not inadmissible. Statutory compliance or noncompliance merely goes to the weight of the evidence."

For example, the State of California, by regulations, requires that the testing of wastes for hazardous waste determination be performed by a laboratory certified by the State to perform the analysis. Does this mean that in a court of law, if you use a non-certified laboratory, are the results not admissible to demonstrate that you are not generating a hazardous waste? The answer can be yes or no, depending on the circumstances.

The Qualified General Rule applicable to laboratory test results:

"Non compliance goes merely to the weight of the evidence. The regulations are an express standard of a competency of the test results; in effect, they are a simplified method of admitting the results of evidence. . . . Under the present rule, if the test procedure does not comply with the regulations, the defendant is protected, as the prosecution then must qualify the personnel involved in the test, the accuracy of the equipment used and the reliability of the method followed before the results can be admitted."

The intent of the California hazardous waste regulations certifying the analytical laboratory was to prevent the situation where the regulatory entity (DTSC) was required to question the analytical data received in terms of adherence to proper test procedure. This would prevent the generators from becoming "innovative" while testing their wastes. This does not prevent a generator from using a non-certified laboratory, however. In a case on this issue (People v. Sangani (1994) 22 Cal. Appl 4th 1120) the court ruled:

"As the People put it, the purpose of the certification requirement is to force ‘those who must characterize their own waste to submit lab results in which the regulator can have confidence.' Or as the trial court put it more colorfully, the purpose for having certified laboratory requirements is to ‘prevent people with their little home pH kit from doing their own analysis and declaring [that material is not hazardous]'" Id. at 1136

"Although the People's argument may have merit we need not decide that the issue in this case because we conclude the evidence would have been admissible even if certification were required. Failure to follow precise regulatory or statutory requirements for laboratory tests generally does not render the test inadmissible, but instead goes to the weight accorded the evidence." Id. at 1136-37.

If the test procedure followed does not comply with the statute or regulation, the test results will still be admissible if can be established that (1) the test procedures followed reliable results, the test equipment used produces accurate results, and (3) the person conducting the test was qualified to do so."

In another case, during the investigation of a generator who placed hazardous waste in a municipal waste dumpster, the regulator sampled the waste after it was placed in a garbage truck using non-decontaminated equipment, based on a non-existent sampling plan, and analyzed the samples not following SW-846 procedures. In People v. Hale (1994) 29 Cal. Appl 730 the court ruled:

"We first address Hale's point that because the scientist had blundered the toxic dumper must necessarily go free. We discern no per se rule which automatically precludes the introduction of evidence of disposal of hazardous waste just because the gathering of the sample does not follow every jot and title of the EPA manual."

In another case, a generator of calcium hydroxide waste was cited for a storm-water release of the chemical because the storm water tested at a pH greater than 12.5. However, the regulations for testing of pH specify a temperature of 25 degrees Celsius, at which the pH of calcium hydroxide is slightly less than 12.5. The judge ultimately ruled against the regulators because the pH chemistry test was not performed at the temperature specified in the regulations. This decision was made after significant legal effort was made in the case.

In the OJ Case: "Errors in the sampling and testing procedures even if harmless can be exploited."

Basically, the courts will assess the admissibility of environmental test data on a case-by-case basis. Although through the collection and analysis of data following the most current and accepted methods the environmental data are most likely to be accepted in a court of law, data produced using out dated, "innovative", or improper methods may also be admissible depending on other factors. Use of the most recent edition of SW-846, current agency guidance, or adhering to the letter of the regulations specified in 40 CFR to Title 27 is not a legal requirement for the admissibility of the data. Courts will consider many other factors including the intent of the discharger and other evidence provided by the regulator in accepting the data.

[Successfully withstanding a charge by a regulator of an illegal discharge will be dependent on many factors. Although having data collected and tested following current and accepted procedures is important, your status in the environmental community, the intent of the discharge, the knowledge of the judge (or your attorney's ability to educate the judge), and the efforts by your attorney ( read attorney fees) can also affect your chances.]

Mr. Meeder's concluding remark is very important for those of involved in the collection and analysis of environmental data: "Numbers matter. Once written down, they are hard to erase. Be right."

[One concern that a property owner and buyer may have regarding the improvement in sampling and analytical technologies for the detection of chemicals released in the environment is the reopening of closed sites by the regulators. Although the regulator's current position is that closed cases will not be reopened just because methods have been improved, there is no total assurance that a site may be reopened anyway. For example, a later discharge of a hazardous substance from the property or the detection of groundwater contamination not present during the earlier site investigation may be cause for site reopening and resampling using better detection methods. Individuals involved in property transfer issues should be aware that the older methods of sampling/analysis for volatiles may have resulted in the production of significant false negative results. The property may be contaminated but the contamination not detected due to the use of older, inadequate methods.]