bullet proof data sets for environmental litigation

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.

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

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Not an approved sample container!


Sampling is the easiest thing for a legal case to attack.

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

Pro

gres

sion

of I

nves

tigat

ion


•  Data quality is the foundation of all environmental investigations


Responses to Data Quality


•  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)


Investigation Road Map

Field Event

Sampling Design

Reporting

DQOs

QAPP

Laboratory Analysis

Data Review

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6P Rule

Prior Planning Prevents Piss Poor Performance


“If you fail to plan, you are planning to fail!” Benjamin Franklin


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

5 6

7 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)


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


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


Reference/background sampling very important to establish if impacts occurred.


Sampling Strategy

•  Composite or discrete •  Statistical / Judgmental / Opportunistic

Hotspot < 100m2 Define Average Conc. 95% Confident

not Contaminated

Systematic grid Systematic grid Random


Click this link to view a case study with legal sampling and systematic grid sampling.

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


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

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Chemistry Matters Inc.

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.


Sample Containers

Plaintiffs •  Used water bottles, cut in

half and taped together with duct tape

Defendants •  EPA approved glass,

certified clean sample jars


Convenience cannot override science and proper sample preservation.


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


Sampling Locations

Plaintiffs •  Collected dust from

normally inaccessible attic spaces

Defendants •  Sampled carpet in

living areas of the homes


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?


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


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)


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


Company Case Name

Company Logo

Address


Documentation

Sampling Forms Field Notes COCs Maps •  Pictures, videos •  GPS coordinates of sampling points and site characteristics 22 www.chemistry-matters.com

Company LOGO

Company LOGO

Company LOGO


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


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


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


Legal Chain of Custody


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


Chain of Custody

•  Should be filled out in completion

•  All samples accounted for –  Lab issues –  Loss of

custody •  COC used for

future reference


Company LOGO


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


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

Tem

pera

ture

(° C

)

Samples collected

Samples moved to freezer

Samples moved to shipping cooler

Samples received


Tracks and documents temperature of samples once collected.


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


% Recoveries Told the Story Minimum and Maximum PAH Standard Recoveries

100

300

500

700

900

Rec

over

y (%

)

Soil Attic Dust

House Dust

146%

965%

138%

65% 44%

EPA Maximum Recovery 150%

EPA Minimum Recovery 25% 0%

PLAIN

TIFF DATA


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)


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

% V

aria

bilit

y

0

10

20

30

40

50

RPD for Sampling Duplicates

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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

Inst

rum

ent V

aria

bilit

y

Inst

rum

ent V

aria

bilit

y +

mat

rix

Mat

rix

Met

hod

Varia

bilit

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Sam

plin

g, M

atrix

and

M

etho

d Va

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Mat

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ffect

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Duplicate samples can identify where the variability is in your study.

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


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.


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


Questions? Contact Info: Chemistry Matters Inc. Court Sandau Email: [email protected] 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.


bullet proof data sets for environmental litigation

Environment

analytical data data

project data

data flow

question data

validity of data

data quality assurance

data quality precision

laboratory analytical