Open-ended Working Group – 3 - Welcome to Basel …archive.basel.int/meetings/oewg/oewg3/i19e.doc · Web viewUNEP /CHW/OEWG/3/INF/19 Distr.: General 25 March 2004 English only Open-ended

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UNEP/CHW/OEWG/3/INF/19

Distr.: General25 March 2004

English only

Open-ended Working Group of the Basel Conventionon the Control of Transboundary Movements ofHazardous Wastes and Their DisposalThird sessionGeneva, 26-30 April 2004Item 16 (j) of the provisional agenda

Preparation of draft decisions for consideration by theConference of the Parties at its seventh meeting:Illegal traffic

Training Manual for the Enforcement of Laws Implementing the Basel Convention: Guidance for Safe and Effective Detection, Investigation, and Prosecution of Illegal Traffic in Hazardous and other Wastes

UNEP/CHW/OEWG/3/1.

300304

For reasons of economy, this document is printed in a limited number. Delegates are kindly requested to bring their copies to meetings and not to request additional copies.


Table of Contents

EXECUTIVE SUMMARY.....................................................................................................................................4

Chapter 1: INTRODUCTION AND OVERVIEW..............................................................................................4

Chapter 2: DEFINITIONS FOR THE BASEL CONVENTION AND ILLEGAL TRAFFIC IN HAZARDOUS WASTES........................................................................................................................................6

2.1 Basel Convention Controls: Defining Illegal Waste Shipments...........................................................62.2 Basel Convention Definitions and National Legal Requirements........................................................62.3 Methodologies for Addressing Definitions in a Hazardous Waste.......................................................72.4 Defining and Identifying Hazardous Waste..........................................................................................82.5 Hazardous Materials and Hazardous Wastes........................................................................................82.6 Hazardous Waste Manifest System.......................................................................................................82.7 Hazardous Waste Transporters.............................................................................................................92.8 Summary Guide for Defining Elements of Criminal Trafficking in.....................................................92.9 Other Criminal Violations Applicable to Illegal Waste Traffickers.....................................................9

Chapter 3: TRAINING FOR CUSTOMS: Waste Crimes at the Border..........................................................9

3.1 The Role of Customs in Detecting and Investigating Traffic in Hazardous Wastes............................93.2 Customs Alert: All Hazardous Materials, Wastes, and Chemical Products merit special attention.. .103.3 Recognizing Illegal Shipments and Elements of Hazardous Waste Trafficking Crimes....................103.4 Profiles of Illegal Shipments...............................................................................................................113.5 Common Smuggling Methods............................................................................................................123.6 Areas of Concern for Hazardous Waste Shipments and Indicators of Suspect Traffic......................123.7 Hazardous Materials Identification and Response..............................................................................143.8 Confined Spaces and Recommended Actions.....................................................................................153.9 Special Considerations for Customs Investigations of Trailers with Trained Personnel....................153.10 Hazardous Waste Tanker Investigations.............................................................................................163.11 Drum-Tracing Techniques..................................................................................................................16

Chapter 4: HAZARDOUS WASTE AWARENESS TRAINING FOR POLICE...........................................18

4.1 The Role of Police in Investigating Hazardous Waste Traffickers.....................................................184.2 Hazardous Waste Investigations.........................................................................................................194.3 Definitions of terms for Police: Hazardous Materials and Wastes.....................................................194.4 Hazardous Waste Abandonment.........................................................................................................204.5 Safety First..........................................................................................................................................204.6 Evidence from the Vehicle to Identify Illegal Traffickers..................................................................214.7 Summary of Unique Aspects of Hazardous Waste Investigations......................................................224.8 Resources for Police Hazardous Waste Investigations.......................................................................234.9 Resources for Assisting Hazardous Waste Investigations that Resulted from Illegal Trafficking.....23

Chapter 5: LEGAL AND TECHNICAL ISSUES OF PROVING WASTE CRIMES FOR PROSECUTORS AND JUDGES........................................................................................................................23

5.1 Defining Elements of Criminal Trafficking in Hazardous Wastes.....................................................245.2 Other Criminal Violations Applicable to Illegal Waste Traffickers...................................................255.3 The Prosecution of Hazardous Waste Cases.......................................................................................255.4 Prosecution Legal and Technical Issues:............................................................................................265.5 Anticipated Defences..........................................................................................................................27

Chapter 6: HAZARDOUS WASTE TASK FORCES.......................................................................................28

6.1 Task Force Objectives.........................................................................................................................286.2 Multi-Agency Task Forces Focused on International Trafficking in Hazardous Wastes: Exodus Asia

296.3 Making the Most of Limited Resources in Fighting Waste Crimes Across Borders: Other Operations; Detection; Deterrence..................................................................................................................29

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Chapter 7: NEW TECHNOLOGIES TO DETECT ILLEGAL WASTE TRAFFICKERS.........................30

7.1 New tools for Customs, Police, and Environmental Agencies to Detect and Investigate Illegal Traffic across Borders.....................................................................................................................................307.2 Challenges and Opportunities for Environmental Law Enforcement in an Information Age............307.3 Remote Sensing and Global Information Systems (GIS)...................................................................31

Appendix I: Model Hazardous Waste Investigation..........................................................................................32

Appendix II: MODEL SAMPLING AND ANALYSIS OF HAZARDOUS WASTES FOR PROSECUTION OF TRAFFICKERS...............................................................................................................38

Appendix III: CASE SCENARIO...........................................................................................................................41

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EXECUTIVE SUMMARY

Training for law enforcement agencies in the detection, investigation, and prosecution of illegal traffic in hazardous wastes is an important component of implementing the Basel Convention itself. Training is critical to prevent and deter illegal shipments of hazardous wastes, as well as protect the economic viability of nations and organizations that comply with laws governing the management of wastes. For this reason, the Basel Convention Secretariat has provided this training manual as part of its Guidance for Detection, Prevention, and Control of Illegal Traffic in Hazardous Wastes.

This manual includes separate chapters with awareness training for Customs, police, other law enforcement agencies, Inspectors and Regulators, Prosecutors and Judges, as well as instruction for the formation of Hazardous Waste Task Forces and the collaborative use of new technologies to detect illegal shipments. It contains appendices which detail a model hazardous waste investigation, sampling and analysis protocols, and a case scenario.

While each chapter is tailored to the role and authorities of a specific law enforcement function, it is best that each discipline is familiar with the roles of other agencies for effective enforcement of hazardous waste laws. Successful investigation and prosecution of illegal traffickers often requires that different disciplines work together as a team, which is the subject of the chapter on task forces.

This manual is intended to provide awareness training and summaries of important principles with broad application for the enforcement of laws that implement the Basel Convention. It is a general training resource for different law enforcement agencies and others interested in detecting and investigating illegal shipments and disposal of hazardous wastes. It is not a substitute for the more detailed hazardous materials training required by many nations for conducting emergency response and hazardous investigations. Nor is it a substitute for more detailed inspector and regulator training required in many countries. Rather, this manual provides guidance in these areas focused upon practical measures and legal requirements to aid in the detection, investigation, and prosecution of illegal traffickers.

The manual has application for training general law enforcement agencies and regulatory authorities devoted to environmental compliance, including those which may not be familiar with the requirements of the criminal law. It is hoped that this manual, or more detailed versions of it, may be offered for police, as well as for training of other agencies. This training is critical for effective implementation of the Basel Convention, and its goal of preventing illegal traffic in hazardous wastes. It is also fundamental for enhancing the international capacity to safely investigate and effectively prosecute environmental crimes.

CHAPTER 1: INTRODUCTION AND OVERVIEW

The parties to the Basel Convention “consider that illegal traffic in hazardous wastes or other wastes is criminal” and shall “introduce appropriate legislation to prevent and punish illegal traffic”, as set forth in the Basel Convention Articles 4 & 9. In order to prevent and deter illegal traffic, parties must implement specific laws with criminal sanctions. Equally important, law enforcement agencies and other authorities must know the mandates of these laws and have the capacity to enforce them in practice. Otherwise, the environmental protections promised by the Basel Convention and related national laws will not be realized.

At a minimum, effective enforcement of laws governing shipments of hazardous wastes requires the capacity to detect violations, safely and effectively investigate hazardous waste crimes, and prosecute culpable individuals and organizations across national borders. Training for law enforcement agencies and regulatory authorities in a position to recognize and respond to illegal shipments and disposal of wastes at every stage of illegal trafficking is critical to developing this capacity. To be most effective, training should be tailored to the different functions within the overall compliance monitoring and law enforcement processes, focused upon the distinct role, jurisdiction, and capabilities of the different agencies involved. It should also facilitate cooperative approaches among relevant agencies at the location of an illegal dumping, between national and local authorities around border crossings and ports, and among nations along common trade routes.

For example, Customs Inspectors and Agents need training in the documentation and packaging required for lawful waste and chemical exports and imports, and methods for recognizing hazardous waste shipments that do not have required notification, consent, or manifest information. Customs officers should be aware of common schemes for mislabelling or misrepresenting hazardous waste shipments, and know how to access regulatory

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data at environmental agencies that may determine admissibility and enable agents to prevent an illegal shipment before it clears Customs.

Local police, on the other hand, need awareness training in recognizing illegal transport and disposal of hazardous wastes, appropriate response, and how to investigate violations in collaboration with environmental and other agencies. Law enforcement agencies need training in the collection and use of evidence such as chemical samples and the labelling and markings on abandoned containers to identify generators, brokers, transporters, and other potentially responsible parties.

Importantly, law enforcement agencies need awareness safety training in what to do, and what not to do, when investigating a crime scene or shipment that may contain unknown hazardous materials. Personnel from various agencies must also know enough about waste regulations to access data from other agencies relevant to establishing a violation of hazardous waste laws or proving a trans-boundary environmental crime.

Accordingly, providing awareness training and methods for accessing technical assistance for investigation is critical for the effective enforcement of laws that implement the Basel Convention. This is particularly important in the sphere of environmental crimes, where a police officer without training may not recognize a crime, or worse, may respond to a crime scene containing hazardous wastes without precautions that could save his life.

Moreover, because hazardous wastes are produced by millions of facilities around the world, most investigations of illegal dumping begin on the local level, including those that resulted from illegal trafficking. Many nations’ law enforcement agencies and criminal justice processes are quite separate from the environmental agencies that have the technical expertise and information for Basel Convention notification and consent procedures. Consequently, effective criminal enforcement of laws regulating hazardous waste movement requires the awareness and cooperation of different law enforcement agencies on the local level. It also requires cooperation with emergency responders and regulatory authorities when police confront an illegal dump or stop a truck hauling unknown hazardous substances without proper paperwork or warnings.

Tailoring practical training for hazardous waste crimes to the different functions of enforcement agencies is all the more important when considering the scarcity of dedicated environmental enforcement personnel around the world, particularly in relation to the scale of waste production and growing international trade. Without basic training, the lack of familiarity with technical, laboratory, and regulatory information needed to prove many hazardous waste violations impedes investigations and discourages police from tracing the waste back to its source. Also, the safety issues inherent in investigating a hazardous crime scene demand training. It is the police, Customs, and first responders who are most likely to encounter illegal dumping of unknown hazardous wastes, and risk serious injury or death, if they are not trained.

This training extends beyond the controls of the Basel Convention itself in recognition of the realities of how criminal investigations are initiated and conducted, and other laws that are typically violated by illegal traffickers. It has been noted that the gangster Al Capone was convicted of tax evasion, and not of the murders he committed. Similarly, for traffickers in wastes, there are environmental laws, customs and transportation regulations, tax, fraud, and false statement laws, as well as local ordinances which are violated. These violations are often more easily proved in a court of law than establishing all the elements of an illegal export or import of hazardous waste.

Conversely, enforcement of laws controlling the movement of hazardous wastes, with trained law enforcement personnel, can have a significant impact on organized crime, which has engaged in illegal trafficking in wastes in many parts of the world. In the 1990s, a law enforcement task force, including investigators trained in waste crimes, monitored phone conversations of an organized crime boss. Suspecting a phone tap, he spoke in code about most of his illegal business dealings. He freely discussed, however, shipping wastes to other states, apparently not realizing he was admitting to criminal violations of laws controlling hazardous wastes. He was prosecuted for these waste crimes and sentenced to a long prison term.

These examples illustrate why training should extend to as many law enforcement authorities as possible in order to facilitate effective enforcement of the laws that implement the Basel Convention. Trained personnel may detect or prevent illegal trafficking at different stages, including waste management at the point of generation, transportation, storage, waste brokering, customs processing, disposal or dumping, mixing with other wastes or products, and sham recycling operations. Without training, law enforcement personnel would miss violations of law at these stages.

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Customs training is also critical because illegal trafficking often proceeds in the guise of lawful commerce in chemicals, non-hazardous wastes, products, and recycling schemes. Law enforcement authorities have to be able to distinguish between lawful transport and illegal traffic, and recognize other violations committed in the course of illegal trafficking.

Because nations have different laws related to hazardous wastes, with variations in definitions, and the Basel Convention evolves with respect to definitions of wastes and categories that are subject to its controls, law enforcement authorities need to be trained broadly in the process of recognizing potential waste crimes. Then, law enforcement must have access to information to determine the status of waste shipments under national laws and international agreements, usually with the assistance of environmental agencies with expertise in these areas of regulation.

For these reasons, this manual includes a focus on distinct law enforcement functions, as well as an emphasis on approaches that apply across different agencies and regions in order to maximize the limited resources of any one agency or nation. These include the task force approach to hazardous wastes trafficking, mechanisms and resources for cooperative trans-boundary enforcement, the strategic comparison of data from different agencies and commercial sources to detect illegal shipments, and the collaborative use of new technologies to combat international environmental crime.

This manual serves as a training resource for law enforcement agencies and others that may become involved in the detection, investigation, or prosecution of illegal trafficking in hazardous wastes. It is also designed to facilitate local, regional, and international cooperation in the enforcement of laws which implement the Basel Convention. It contains appendices which provide step by step examples of hazardous waste investigations, sampling and analysis methods, and a case scenario. These models are designed to assure effective investigation and successful prosecution of illegal traffickers.

CHAPTER 2: DEFINITIONS FOR THE BASEL CONVENTION AND ILLEGAL TRAFFIC IN HAZARDOUS WASTES

2.1 Basel Convention Controls: Defining Illegal Waste Shipments

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal’s principal goal is to reduce transboundary movements of hazardous wastes consistent with their environmentally sound management. The convention sets up strict operational controls based upon prior written notification procedures.

Transboundary movement of hazardous wastes can take place only upon prior written notification to the appropriate authorities of the states of export, import and transit, and on written consent from these authorities permitting the shipment. Each shipment of hazardous waste must be accompanied by a detailed document from the point at which a transboundary movement begins to the point of disposal. Any transboundary movement of hazardous wastes without the proper documentation is considered illegal traffic.

2.2 Basel Convention Definitions and National Legal Requirements

The following definitions from the Basel Convention are fundamental to prove a case of illegal trafficking in hazardous wastes. Each of these requirements, as incorporated in nation law, constitutes elements of the offence of illegal trafficking in hazardous wastes.

Article 9 of the Basel Convention defines illegal traffic as any trans-boundary movement of hazardous wastes or other wastes:

a) without notification pursuant to provisions of this Convention to all States concerned; or

b) without the consent pursuant to the provisions of this Convention of a State concerned; or

c) with consent obtained from States concerned through falsification, misrepresentation, or fraud; or

d) that does not conform in a material way with the documents; or

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e) that results in deliberate disposal (e.g. dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law.

Various annexes and guidance documents to the Basel Convention, available from the Basel Convention Secretariat, provide the hazardous waste definitions that apply in all nations that are party to the Convention. While these definitions are useful for investigators, it is important that police and Customs have access to the current national laws and regulations defining hazardous wastes, illegal imports and exports, and unlawful disposal.

Despite variations in national laws and regulations, certain definitions and methods for determining hazardous wastes apply broadly. They are fundamental for law enforcement in recognizing “hazardous wastes”.

Initially, it is useful to define “waste” as any substance or object abandoned, discarded, or intended for disposal. “Hazardous waste” is waste that is listed as hazardous by regulatory authorities, or waste that has hazardous characteristics, such as flammability, explosiveness, corrosiveness, or toxicity.

2.3 Methodologies for Addressing Definitions in a Hazardous Waste

Investigations

For the purpose of investigating suspected violations of laws that implement the Basel Convention, it is important to maintain broad definitions for “waste”, “hazardous wastes”, “transboundary movement”, and “disposal” when opening an investigation. One reason for an inclusive approach is that in cases of illegal trafficking and disposal, it may be well into the investigation before it is determined precisely what sort of waste has been shipped or disposed. Only then will an investigator determine whether the waste is included among the Basel Convention controls and whether definitions of hazardous wastes adopted by national law and regulation have been met.

Accordingly, from an investigative standpoint, once there is evidence of illegal transportation or disposal of what appears to be a hazardous substance or waste, all precautions should be taken immediately. After safety concerns, including any emergency response, are addressed, the site should be treated as a crime scene investigation, and investigators should assume one or more laws have been violated. Subsequent investigation will determine which laws and definitions apply.

Technical and legal determinations should not delay an appropriate hazardous materials response nor impede an investigation from going forward as quickly as possible in determining who is responsible, and gathering evidence in a manner designed to be admitted as evidence in a criminal prosecution. Waiting for definitions to be established before commencing an investigation will make it more difficult to apprehend and prosecute illegal traffickers.

In November of 2001, the Basel Convention published the “National Definition of Wastes and Hazardous Wastes Used for the Purpose of Transboundary Movements”, listing the definitions used by more than one hundred countries for these purposes. (Basel Convention Series No. 01/05) In the introduction to this volume, Executive Secretary Ms. Sachiko Kuwabara-Yamamoto noted: “The definition of waste and their classification as hazardous wastes are essential tools to manage and control transboundary movement of waste. Without the knowledge of what is hazardous and what is not hazardous, the process of both managing and controlling becomes ambiguous.”

In order to enforce the Basel Convention controls using the criminal law, officials must establish that an unlawfully shipped waste meets the definition of “hazardous” under the standards of proof that apply for prosecution. Often it is after sampling and analysis of a waste that an investigator can determine with certainty which definition of hazardous waste, if any, may apply.

At other times, a hazardous waste crime may be proved without sampling or analysis of a substance that may have dissipated in the water, in the ground, in the air, or cannot be determined for other reasons. In these cases, the nature of the waste may be established by circumstantial and other evidence, such as a fish kill in waters, dead animals or vegetation on the land, or other direct or indirect effects of contamination.

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In such cases, tracing the shipment back to an industrial process, generator of hazardous wastes, and with reference to the harm or other effects of the substance in question, is critical in establishing the elements of a crime.

2.4 Defining and Identifying Hazardous Waste

The term “hazardous waste” means a solid, liquid, or gaseous waste, or combination thereof, which because of its quantity, concentration, chemical composition, infectious or toxic characteristics may pose a present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

Hazardous wastes are defined and identified in several basic ways. First, a waste may be listed as hazardous in national law or the Basel Convention Annex. These lists describe the hazardous waste as either a chemical compound or waste from a specific industrial process. Wastes on these lists are designated by codes beginning with the letters F, K, P, or U, and followed by a number, maintained by transportation and environmental regulatory agencies or ministries.

Second, a waste may be classified as hazardous if it has the hazardous characteristics of ignitability, corrosiveness, reactivity, or toxicity set forth in the Basel Convention Annex and national law or regulation. Common examples include: (1) for Ignitibility: petroleum solvents, waste paint thinners, acetones with flashpoints less than 140 degrees Fahrenheit; (2) for Corrosivity: metal plating solution wastes with a Ph between 0 and 2 or greater than 12.5; (3) for Reactivity: waste peroxides and shock sensitive materials; and (4) Toxicity: lead oxides and other wastes from metal refining are classified as hazardous if they exceed specified concentrations.

A third sub-category of hazardous waste relevant to illegal trafficking is a mixture containing a listed hazardous waste and a non-hazardous waste, unless the mixture is specifically excluded or no longer exhibits any of the characteristics of a hazardous waste.

These characteristics may be determined by analytical procedures, specified in law or regulation. These definitions may be established after an investigation into the facts and circumstances of a particular case, and the corresponding forensics work, including sampling and analysis, or from circumstantial evidence alone.

2.5 Hazardous Materials and Hazardous Wastes

Whether something is a hazardous material or waste depends on whether the material is a new or raw material or has been used and intended for disposal, for recycling, or reclamation as a by-product. Hazardous materials include unused raw materials and wastes that are considered hazardous.

A hazardous material is any substance or material that has been determined by a regulatory authority, such as a Department of Transportation, to be capable of posing risks to health, safety, and property when transported in commerce. Accordingly, from transportation or Customs perspective, hazardous waste is a sub-category of hazardous materials. They were generated as a residue or by-product of a manufacturing process or through use of hazardous chemicals. Hazardous waste includes some wastes that are transported for recycling, such as spent solvents.

2.6 Hazardous Waste Manifest System

“Manifest” means the form used for identifying the quantity, composition, and the origin, routing and destination of hazardous waste during its transportation from the point of generation to the point of proper disposal, treatment, or storage. Manifests are designed to track hazardous waste from generation to lawful disposal or recycling.

Laws require certain generators of hazardous waste to fill out a multi-part Hazardous Waste Manifest. It also lists the hazardous waste transporter’s name. The generator must keep a copy of the manifest and give the remaining copies to the transporter. Once the hazardous waste has reached its final disposal site, a copy of the manifest should be sent to the regulatory agency.

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2.7 Hazardous Waste Transporters

Transporters of hazardous wastes are the critical link between the generators and the ultimate off-site treatment, storage, or disposal of hazardous wastes. Transporters must secure all appropriate licenses, transport in compliance with transportation and environmental regulations for hazardous materials, and carry a manifest. The transporter is required to deliver the entire quantity of waste which he accepted from either the generator or another transporter to the designated facility listed on the manifest.

2.8 Summary Guide for Defining Elements of Criminal Trafficking in

Hazardous Wastes

The elements of the crime of illegally exporting hazardous waste that have to be proven are:

* A Person (an individual, group, and/or a corporation or other legal entity)

* Knowingly or Negligently (with knowledge of the acts, not necessarily that they violated laws or agreements)

* Exports or Imports a Hazardous Waste (a waste product that is listed as hazardous or has hazardous characteristics)

* Without Informed Consent and Acknowledgement of a Receiving Nation

(or in violation of other Basel Convention requirements set forth in section 2.2 or in violation of either nation’s other laws).

2.9 Other Criminal Violations Applicable to Illegal Waste Traffickers

In addition to the crime of illegal trafficking itself, most nations have adopted criminal sanctions for the following acts, consistent with Basel Convention Articles 4 and 9, as well as national environmental laws, that apply to illegal traffickers:

* Transporting waste to a non-permitted facility; * Treating, storing, or disposing of waste without a permit or in violation of a material condition of a permit or license;

* Omitting important information from, or making a false statement in a label, manifest, report, permit, or compliance document;

* Transporting without a manifest;

* Import into a nation in violation of any national environmental law;

* Transportation, disposal, or export of any hazardous waste in such a way that another person is placed in imminent danger of death or serious injury.

CHAPTER 3: TRAINING FOR CUSTOMS: WASTE CRIMES AT THE BORDER

3.1 The Role of Customs in Detecting and Investigating Traffic in Hazardous Wastes

Customs Services are in a unique position to detect illegal trafficking in wastes at border crossings. Identifying hazardous materials, including hazardous wastes, is an important part of the job for Customs inspectors and agents around the world. Yet, with faster and freer trade, and the widespread use of container shipments, there are fewer opportunities for meaningful inspection of goods crossing national borders. At many ports and border crossings, it is estimated that less than two percent of imported cargo is inspected, and less than one percent of out bound cargo. Moreover, Customs is charged with enforcing dozens of laws regulating trade at the borders, and have focused their resources on illegal narcotics, goods that produce revenue through tariffs, and security threats.

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Training for Customs in how to recognize and respond to illegal shipments of hazardous waste is critical for the effective implementation of the Basel Convention and for the safety of inspectors and agents as well. This chapter is intended to provide basic awareness training for Customs in the recognition and appropriate response to a suspected illegal shipment of hazardous waste. This is not a health and safety course. While some health and safety awareness information is provided, it is critical that Customs or other law enforcement officials undergo full health and safety training before directly handling hazardous materials or hazardous wastes.

3.2 Customs Alert: All Hazardous Materials, Wastes, and Chemical Products merit special attention.

First, considering the Basel Convention controls and other international agreements, all Customs personnel should focus upon transboundary shipments of any hazardous materials or wastes as a special concern. Unless such a shipment is appropriately packaged and accompanied by all appropriate documentation, including hazardous waste manifest, hazardous materials placards, and Acknowledgement of Consent from the receiving nation, it should be considered suspect and presumed an illegal shipment.

Second, even when accompanied by documentation for wastes, chemical products, or hazardous materials, it is important to recognize that the actual contents of the shipment must match the labels, notifications, and information on the manifest, particularly with respect to the nature of the substance and the amount. Shipments may contain illegal hazardous wastes mixed in with lawful commerce in the same container, or not consented to by the receiving nation. Therefore, it is critical for Customs to check and determine whether the contents appear to correspond to the information provided. A discrepancy, or packaging not appropriate for the type of substance declared, may be evidence of illegal trafficking.

The most common schemes for illegal traffickers in hazardous wastes include: (1) Mixing hazardous wastes with other wastes or products intended for disposal, reclamation or recycling; (2) Misrepresenting illegal hazardous waste shipments as chemical products, off-spec materials, or other goods or wastes not subject to Basel Convention controls.

Accordingly, special training for Customs in recognizing shipments that may actually contain illegal hazardous wastes is an important component of Customs efforts to detect and stop illegal smuggling operations. Recognizing various containers and classifications of wastes, and knowing proper inspection methods and the national and international controls on such shipments, are critical to distinguish illegal shipments from lawful international commerce.

Awareness training for waste crimes at the border provides benefits for other priority concerns for Customs interdiction efforts. In many parts of the world, one way to smuggle narcotics or illegal aliens (as well as illegal hazardous wastes) is to hide them in shipments of garbage or waste materials headed for recycling operations, in part, because few inspectors wanted to search such shipments thoroughly. Basic awareness training in waste crimes will help Customs better detect such schemes, as well as illegal trafficking in hazardous wastes.

3.3 Recognizing Illegal Shipments and Elements of Hazardous Waste Trafficking Crimes

Customs can best identify illegal shipments of hazardous wastes by knowing the requirements for lawful shipments of hazardous materials and wastes and awareness of schemes used by illegal traffickers in the past. The Basel Convention and national law require that transboundary movement of hazardous wastes or other wastes are restricted. Legitimate shipments must be appropriately packaged and accompanied by documentation, including hazardous waste manifest, hazardous materials placards, and Acknowledgement of Consent from the receiving nation.

Information on the Manifest or movement document should include: exporter of the waste; generators of the waste and site of generation; disposer of the waste and site of disposal; carrier of the waste; dates of transboundary movements and signature of receipt by each person who takes charge of the waste; means of transport including countries of export, transit and import and point of entry and exit where these have been designated; general description of the waste (physical state, proper UN shipping name and class, UN number, Y number and H number as applicable); information on special handling requirements and emergency provisions; type and number of packages; quantity in weight and volume; declaration by the generator or exporter that information is correct; declaration by the generator or exporter indicating consent from competent authorities of all States concerned; certification by disposer of receipt at designated facility and indication of method of disposal and of approximate date of disposal.

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The Acknowledgement of Consent contains much of this same information and should match the information on the manifest. A discrepancy between the two documents or either of these documents and Customs tariff, trade information or transportation information may be evidence of illegal trafficking and warrants further investigation.

A first step in further investigation is to check with the competent authority of the importing or exporting agency, usually the environmental agency or ministry, to see if there is consent from the receiving nation. If so, for what substance and in what amount. A misrepresentation on these documents or material nonconformance may constitute illegal trafficking hazardous wastes or other crime or Customs violation.

Illegal trafficking is defined in the Basel Convention and national laws as any transboundary movement of hazardous or other wastes: (a) without notification pursuant to provisions of this Convention to all States concerned; or (b) without the consent pursuant to the provisions of this Convention of a State concerned; or (c) with consent obtained from States concerned through falsification, misrepresentation, or fraud; or (d) that does not conform in a material way with the documents.

Accordingly, the elements of the crime of illegally exporting or importing hazardous waste that must be established are:

* A Person

* Knowingly or Negligently

* Exports or Imports a Hazardous Waste

* Without the Consent and Acknowledgement of a Receiving Nation


* Transporting waste to a non-permitted facility;

* Treating, storing, or disposing of waste without a permit or in violation of a material condition of a permit or license;

* Omitting important information from, or making a false statement in a label, manifest, report, permit, or compliance document:



* Transportation, disposal, or export of any hazardous waste in such a way that another person is placed in imminent danger of death or serious bodily injury.

3.4 Profiles of Illegal Shipments

Like most smuggling crimes, the principal motivation for illegal traffickers in hazardous waste is to save money or make money. Unlike most smuggling, however, waste crimes may cause health and safety problems for people, damage communities not equipped to manage hazardous wastes, and may harm the environment for years to come.

Cost savings provide ample motivation for illegal traffic and disposal of hazardous wastes. For example, lawfully disposing a drum of hazardous wastes may cost hundreds or sometimes thousands of dollars. The financial motivation for shipping such wastes to remote areas or regions where it can be illegally dumped is

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obvious. Too often, such wastes have been illegally shipped to developing countries, damaging the environment and putting populations at risk.

The motivation for illegal trafficking is greatest with wastes that are heavily regulated due to their hazardous nature. These hazardous wastes can be mixed in with other wastes, or large shipments of products in international trade, some of which are intended for reclamation or recycling in other nations, where they will not be easily detected or traced back to the generator.

Common types of hazardous wastes that may be exported and industries that produce them include: chemical wastes from the chemical and petrochemical industries; wastes including cadmium, lead, iron and zinc from iron and steel manufacturing; spent acids, cyanides, and waste water sludge containing metals from electroplating and metal finishing operations; spent solvents and cirucit board and wastes from the electronics and computer industries; treatment, disposal, and incinerator ash from hazardous waste incinerators; paint wastes, solvents, and used batteries; wastes from textile manufacturing, paper production, and printing; waste water sludge from cement kilns and manufacturing; waste oil with contamination; medical and laboratory wastes; scrap metals intended for recycling that may contain hazardous wastes.

While many industries, communities, and even households produce hazardous wastes, Customs should focus on shipments that appear to contain hazardous materials and where Customs data conflicts with what is declared, or the appearance of the shipment does not match what is declared or required for such shipments.

The following profiles and clues can be used to detect shipments that may be illegal. They have been drawn from actual cases of illegal trafficking in hazardous wastes.

3.5 Common Smuggling Methods

A. False Declarations and Manifests

Truck or cargo container contains material different from that listed on the shipping manifest or bills of lading. Paperwork may include: false tariff codes or fictitious importers of record, businesses, and addresses. Common misrepresentations have included claiming that illegal shipments of wastes are chemicals for commercial use, scrap metals, or returned goods.

B. Concealment, Mixture and Double Layering

Material listed on manifest is loaded close to the door of trailer or cargo container and illegal material is loaded behind it. Quantities of hazardous wastes mixed in with or concealed in larger shipments. Paperwork is correct for legal material.

C. Mislabelling of Individual Containers

Hazardous wastes are transported in tanks, drums, or canisters on which the label identifies a legal substance, as does the shipping manifest.

3.6 Areas of Concern for Hazardous Waste Shipments and Indicators of Suspect Traffic

A. Vehicles

As with other types of smuggling, vehicles can serve as a clue to illegal hazardous waste shipments. While legitimate shipments of hazardous wastes generally come in specialized waste tankers with hazardous material placards or specialized gondola cars on trains, intermodal containers may not have hazardous waste identification, just transportation markers or placards. Illegal shipments have been found in all types of vehicles such as dump trucks, rented vans, box cars, and trucks designed to carry fuels, oils, and cement. (One common scheme has been to mix hazardous wastes in with fuels that will be burned at a high temperature, such as Cement Kiln Furnaces, or illegally dumped or disposed of as used oil.)

Here are examples that should raise red flags for Customs inspectors:

* Hazardous materials and wastes may not usually be transported in rented trucks or trailers. Rented vehicles do not have hazardous waste transporter licenses as is required of hazardous waste transport vehicles. A rented

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truck or trailer, or a truck that is not specialized for the type of substance transported, could indicate an illegal shipment.

* All vehicles transporting hazardous materials and wastes must have licenses and usually plates for both countries. The absence of these could indicate a suspect shipment.

B. Placarding and Labelling

Shipments of hazardous materials and wastes must be shipped in trucks with appropriate placards for the type of hazardous substance being shipped. Customs should verify that placards are appropriate for the type of substance being shipped and correspond to the shipping documents. The absence of placards is illegal. Torn or mutilated placards or labels may indicate that the container have been changed or tampered with.

C. Drums and Containers

Drums for hazardous waste may look like drums for chemical products, sometimes oversized so they may contain a regular size drum within that may be leaking. Illegal shipments often have drums that are deteriorated, or mostly empty with hazardous waste residues. Other illegal shipments have involved five gallon pails, or laboratory and medical packaging.

Illegal shipments of hazardous wastes have been mixed in with containers filled with waste paper intended for recycling, scrap metal shipments, as well as chemicals and metals intended for recycling.

Raw materials shipped from the factory generally have their seals intact. If the seals are broken, the contents are suspect. Hazardous materials must be packaged in appropriate containers. For example, if the manifest states the material is corrosive, the container should be plastic. If the material is a solvent, the container should be metal. Review the shipping documents to be sure the container is appropriate.

Leaking containers could indicate a smuggled shipment. Transportation regulations require that hazardous substances be packaged in sealed containers for safety. Verify that containers have no leaks or visible spills. If an unsafe condition is found, it can only be remedied by re-packing. Contact the importer and have them respond to the situation.

Recently painted drums that look and smell like paint should be suspicious. Look on the sides of the containers to determine whether paint cover one or more labels or other markings on the containers. If so, the shipment is suspect. Raw materials are rarely packaged in reconditioned containers.

Dented or mishandled containers could indicate an illegally transported hazardous waste. (In order to be acceptable to a lawful consignee, raw materials must be in good condition.) If a drum is bulging it could indicate that there is a reaction occurring that is creating too much pressure in the container. BE CAREFUL. Do not open any container without proper protective gear. Bulging drums can explode or spray their contents if opened.

D. Vehicle Driver and Contents

As with all smuggling, the primary clue that a shipment may be illegal is the behaviour of the driver. For example, the driver seems nervous and pressured for time. If the following is observed, further investigation is warranted:

* Driver claims not to know the contents of the shipment. By national law and regulation, drivers must know what they are transporting, the dangers of the cargo, and emergency procedures. Lack of knowledge could indicate an illegal shipment.

* Driver is not licensed to transport hazardous materials. All drivers should have a specific license that authorizes them to transport hazardous materials. Absence of this license indicates something is wrong.

* Vehicle has no hazardous materials insurance. Any authority requesting proof of insurance should be shown a copy of the hazardous materials insurance policy.

* Documentation is disorganized. Documents should always be kept in the driver’s side pocket of the door, be filled out correctly, indicate origin, destination, and emergency procedures for the cargo.

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If an Inspector suspects a shipment for any reason, he/she should ask the driver directly: “Does this shipment contain hazardous waste?”

3.7 Hazardous Materials Identification and Response

Placards, labels, shipping papers and right to know information are all designed to assist in the identification of hazardous materials as they are transported. Shippers of hazardous materials, including wastes, must: (1) Classify the Material; (2) Select a proper shipping name; (3) Determine the packing group; (4) select an authorized package; (5) Mark and Label the Container; (6) Load and Brace Containers; (7) Placard the Vehicle; (8) Prepare the Shipping Papers; and (9) Furnish emergency information.

The classifications most relevant to shipments of hazardous wastes are as follows:

Class 1: Explosives

Class 2: Compressed gasses

Class 4: Flammable solids

Class 7: Radioactive

Class 8: Corrosive

Class 9: Hazardous Substances, Wastes, Unknown

Of course, these declared classifications are based upon legitimate companies good faith efforts to comply with requirements to appropriately identify their shipments. Observations by Customs officers may be more important than recognizing these labels in identifying illegal shipments of hazardous wastes, when they are not declared. Officers observing indications that a hazardous substance may be present should proceed on that assumption until proven otherwise.

Shapes of Containers

Tankers, drums, storage tanks and compressed gas containers are all capable of containing hazardous substances. A Customs officer approaching any of these should assume the containers do contain a hazardous substance.

Industry Sectors

Manufacturing sectors that are known to be users of hazardous substances usually generate hazardous waste. Indicators that a shipment is from a industry sector or facility that is associated with hazardous materials should be treated with caution.

Senses

The last way a Customs officer wants to find out that a hazardous substance is present is by smell, taste or other senses. If officers encounter a smell that burns their eyes, mouth, nose, or skin, they should leave the area immediately, and contact health and safety professionals. The scene should be evacuated and a perimeter established.

Response

Should a suspected hazardous substance or waste be encountered, there are four essential steps that should be followed: (1) Assess the situation; (2), Identify the hazardous substance; (3) Secure the scene; and (4) Report the incident to health, safety, and regulatory personnel, and obtain help.

Officers are taught in awareness training not to approach a scene involving hazardous materials, but to stop and assess the situation, particularly before entering a confined space. This is difficult to teach because the first response of most law enforcement personnel is to respond immediately and take whatever action is necessary. At a scene involving a hazardous substance, however, the correct action may be to take no immediate action at all.

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An officer needs to assess the situation and restrain himself/herself from entering a dangerous situation. Officers have been killed in the line of duty by entering onto scenes containing hazardous materials without appropriate precautions. Additional safety awareness training is set forth in subsequent chapters.

3.8 Confined Spaces and Recommended Actions

A confined space is defined as any space which by design has limited openings for entry and exit; and unfavourable natural ventilation which could contain or produce dangerous air contaminants. Examples of confined spaces include trailers, holds of ships, storage tanks, process vessels, all of which may be encountered by Customs officers, particularly when investigating an illegal shipment of hazardous materials or wastes.

Officers can keep themselves and others safe at a scene if they follow and do not exceed the limits of their training. Injuries and damage may have already occurred prior to the officer’s arrival. It is the officer’s responsibility to prevent further injuries or damage by keeping themselves and others safe and await assistance.

Under no circumstances should an officer without proper training and equipment enter a confined space. When encountering a suspected hazardous waste crime scene, approach from an upwind direction, and remain a reasonably safe distance away from a potential release. Stabilize the situation until someone with more training arrives and then follow their direction.

Do not take action unless you have been trained in handling hazardous substances. Improper action may have devastating health effects and compromise the investigation.

Unless you have proper training:

Do not open trailer doors of trucks suspected of containing hazardous substances;

Do not open tanks, drums, or other containers that may contain hazardous substances;

Do not presume that what is marked on a label, drum or container is what is inside. (Illegal traffickers often ‘cocktail’ or mix hazardous wastes with other materials.)

Do not enter confined spaces that may contain hazardous substances.

3.9 Special Considerations for Customs Investigations of Trailers with Trained Personnel

The proper investigation of hazardous wastes contained in trailers or other confined spaces where Customs agents will most commonly encounter them requires time, patience and planning on the part of the environmental investigator. If there is no immediate danger to personnel and/or the environment, it may be in the best interest of the investigation to secure, seal and store the trailer until the necessary resources and off-loading facilities can be obtained.

A. The Trailer Exterior

The trailer exterior, including the undercarriage, should be examined by the investigator. All obvious identifiers should be noted and eventually traced. In addition, air line and electrical line connection points should be examined for fingerprints. The interior and exterior door surfaces, at all levels, should also be examined for fingerprints.

B. The Off-Loading Operation

There are several different techniques which may be utilized when off loading hazardous waste containers from a trailer. One technique involves the use of a dual loading bay and an empty trailer. By placing the empty trailer in the bay next to the trailer containing the hazardous waste, the environmental investigator will be able to examine and sample each container as it is brought out. The hazardous waste containers may be removed by a drum dolly or a specially fitted forklift. After examination and sampling for chemical evidence, the hazardous waste containers may be placed onto the empty trailer.

Another method is to remove the hazardous waste containers and place them in a secure hazardous waste storage area. The hazardous waste containers may be examined and sampled prior to being placed into the storage area.

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Regardless of the method used, it is essential that all safety regulations, including confined space regulations, be followed carefully. This type of operation may require the continuous air monitoring of the trailer’s interior atmosphere. Once the trailer has been completely unloaded, the interior should be carefully examined for fingerprints, discarded tools, documents, trash and any other physical evidence which may be present.

3.10 Hazardous Waste Tanker Investigations

Other Customs investigations will involve tanker trucks containing hazardous waste. These cases may involve the illegal transport, storage and/or discharge of hazardous waste. When a tanker truck is suspected of having been used to for illegal trafficking, several measures should be taken before any chemical evidence can be removed from the tanker or before the cab of the vehicle can be searched for documentary evidence. These investigative steps which are important in gathering evidence of illegal trafficking include:

A. Driver Interview

This is the best source of information regarding the activities for which the tanker truck was used. The driver may be cooperative and may supply information regarding the material in the tanker. He or she may supply information regarding the source of the hazardous waste (e.g. point of generation).

B. Manifests and Permits

If the driver cannot or will not produce a proper hazardous waste transportation permit and/or a hazardous waste manifest, the investigator should note this and place this information in his or her report.

C. Placards

Transportation Departments require that vehicles transporting hazardous wastes bear placards. The lack of placards on a tanker or the presence of the wrong placards (based upon field tests) may be seen as evidence of an effort to mislead law enforcement and/or regulatory agency officials as to the tanker’s contents. Lack of proper placards on the tanker should be noted by the environmental investigator and should be used as part of the probable cause necessary for obtaining a search warrant.

D. Field Tests

In many jurisdictions, the results of the field tests used to protect the safety of the investigative entry team may also be used as evidence of illegal trafficking. Meter readings for flammable vapors, radiological meter readings and pH tests can all be conducted without removing a chemical sample from the tanker. These safety tests can be conducted on exterior surfaces, ports, exposed hoses and/or on any leaks or ground discharges. While the primary purpose of these types of field tests is to protect the health and safety of those at the crime scene, the results may indicate the presence of some form of hazardous material or hazardous waste

E. Tanker Discharges

If the tanker has discharged any of its contents, it is vital that the position of any switches or valves be noted. Many tanker trucks have the dual ability to vacuum material as well as discharge material. By noting the position of all switches and valves, the investigator may be able to prove that the tanker was discharging material and not removing it. In addition, the tanker’s manufacturer will be able to supply the investigator with information regarding the tanker’s discharge capabilities (e.g. gallons per minute). This information, combined with a known length of discharge time will help determine the actual amount of material discharged from the tanker.

3.11 Drum-Tracing Techniques

When tracing hazardous waste drums, the investigator has four areas of inquiry which he or she may pursue in an attempt to identify the suspect(s). These areas include the vehicle used to transport the hazardous waste, the person or persons who loaded the hazardous waste, other physical evidence found at the crime scene, the container and the chemical analysis of the hazardous waste. By pursuing each of these areas, the investigator may be able to develop the information necessary to identify the suspect(s).

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1. The Person or Persons

As with any other type of crime, the person or persons committing the environmental crime may have left behind physical evidence which may lead the environmental investigator to their eventual identification. Among the most valuable identifier is fingerprints left behind by the suspect(s). Particular attention should be paid to the edges and bottoms of containers. These are the areas where hands are naturally placed when moving or lifting containers.

Often, fingerprints may not be found on the hazardous waste drums. They may, however, be found on discarded empty cans, bottles, tools, cellophane wrappers and the interior of chemical gloves utilized by the suspect(s). In addition, any footprints left behind by the suspect(s) will assist the environmental investigator in the identification process. Shoe size and type of shoe worn by the suspect(s) may assist the agent at some future point in the investigation.

2. Other Physical Evidence

When hazardous waste drums are shipped, perpetrators have a tendency to abandon other items along with the waste. Items such as cash register receipts, shopping bags, computer printouts, invoices, hand tools and old pumps may also be found at the scene. Any of these items might supply information useful in identifying the suspect(s). It should also be noted that many of these items may be found in the interior of the drums. Any drums with removable tops should have their interiors’ inspected for other physical evidence. Any documents found inside the drums should be carefully packaged for future examination. These packages should also be clearly marked so that document examiners are aware of the possibility of hazardous waste contamination.

3. The Container

Information found on the exterior of the drums will come in many different forms. Information found on labels, writing on the drums and regulatory information may all assist the environmental investigator in locating the suspect(s).

Labels

As indicated earlier, labels should be recorded, photographed and removed whenever possible. Information regarding the original manufacturer, lot numbers and the type of chemical product may be listed on the label. If this information is present, the chemical manufacturer should be contacted and a list of customers obtained. By limiting the inquiry to a specific geographical area, the environmental investigator will be able to obtain a list of the product users within his or her area. These product users can then be checked for hazardous waste shipments and past regulatory agency inspections.

If the only information remaining on the label is the product name a Chemical Buyers Directory will supply the environmental investigator with a list of companies that manufacture that particular product. Each company will be likely to use a different label. By supplying these companies with photographs of the labels recovered at the environmental crime scene, the actual chemical supplier may be identified and a local customer list obtained.

Writing on the Drums

Handwritten information on drums may be of great value to the environmental investigator. Similar number codes and word patterns found at different crime scenes may link those crime scenes. In addition, a handwritten sequential numbering system found on the drums may be indicative of a prior environmental survey.

If the suspect hired a private environmental company to inventory and classify the waste, it would be a standard industry practice for the company to number the drums sequentially for chemical sample identification purposes. Once the sample analysis was completed, a copy of the results and the cost of disposal would normally be given to the suspect. This supplies the environmental investigator with two important elements of the crime. These elements are knowledge and motive. The laboratory analysis supplies the knowledge as to the existence of the hazardous waste. The fact that the generator received a price for legal disposal and then abandoned the hazardous waste is indicative of a financial motive for committing the crime.

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4. Department of Transportation Information

Many nations’ transportation departments require that information is stencilled on the sides of drums. It is also common to find this information on small labels. Departments of Transportation require the manufacturers of drums to place certain data on the drums prior to them being filled with a hazardous material.

The following designations are illustrative of the type of information on such drums:

UN = UNITED NATIONS.

1A2 = 1 (DRUM), A (STEEL), 2 (OPEN HEAD).

Y= PACKAGING FOR GROUP II & III TESTS.

1.2 = SPECIFIC GRAVITY OR MASS FOR PACKAGE DESIGN.

100 = PRESURE TEST IN KILO PACALS (HYDROSTATIC TEST).

5/96 = MONTH & YEAR OF DRUM MANUFACTURE.

US = COUNTRY OF ORIGIN.

M4709 = CODE FOR NAME AND ADDRESS OR SYMBOL OF DRUM MANUFACTURER.

The two most important pieces of information listed above are the month/year of the drum’s manufacture and the code which lists the name and address of the drum manufacturer. These two items alone may assist the investigator in both isolating and eliminating suspects.

The month and year of the drum’s manufacture is vital for the simple fact that it eliminates suspects. When the original chemical supplier and chemical name is known, the environmental investigator may limit his or her list of suspects to those companies that purchased that particular chemical product after the printed date found on the container. Any company that has made its only purchase(s) of that particular chemical product, prior to the date, is eliminated as a suspect.

The code listing the drum manufacturer’s name and address can also assist. Many drums are manufactured with particular colour schemes (e.g. blue drums with yellow tops). A chemical manufacturer may order only one drum colour scheme from the drum manufacturer. Once the drum manufacturer has been located, they should be shown a photograph of the suspect hazardous waste drum. If there are any distinguishing features on the drum the drum manufacturer may be able to identify the raw chemical product manufacturer that purchased the drum.

CHAPTER 4: HAZARDOUS WASTE AWARENESS TRAINING FOR POLICE

4.1 The Role of Police in Investigating Hazardous Waste Traffickers

Police and other general law enforcement agencies such as highway patrol, sheriffs, marine police, park service, are the first line of defence in any community. They are essential partners in any effort to detect, investigate, and deter environmental crimes, particularly those involving illegal transport or dumping of wastes. Most cases of illegal trafficking are discovered only after shipments have cleared Customs controls, and usually after hazardous wastes have been illegally dumped. It is critical that police be able to recognize illegal transportation and disposal of hazardous wastes as a crime, respond appropriately to illegal dumping that may be the end result of illegal trafficking, and be able to investigate back to exporters, brokers, and generators that are responsible for environmental crimes in their jurisdiction.

Police are the eyes and ears closest to the ground and in the greatest number to detect illegal traffickers, particularly near roads, waterways, and other common points for illegal disposal. Citizen complaints are addressed to police or other local officials in the first instance. Most nations have relatively few dedicated environmental enforcement officials, and fewer still who specialize in the criminal enforcement of

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environmental laws. On the other hand, every nation has thousands of police officers. For this reason, basic awareness training in hazardous waste crimes for as many general law enforcement officers as possible is among the best ways to detect and deter illegal traffickers.

Some nations and police departments have developed special programs to enlist the police in pro-active surveillance for environmental crimes. These programs involve awareness training particularly in the requirements for hazardous waste management, shipping, and disposal as well as common schemes for illegal shipment and disposal of wastes. They also solicit community involvement to inform the police of suspicious activity that may involve the illegal transportation and disposal of hazardous wastes. The Basel Convention Secretariat can provide information on these training and surveillance programs to interested parties.

At a minimum, police need to be aware of environmental laws and the requirements of managing and transporting hazardous materials and wastes so that they recognize environmental crimes, including illegal trafficking and disposal of hazardous wastes, and respond appropriately. This includes assuring the safety of the police and others, and setting the stage for an investigation that will identify responsible persons.

4.2 Hazardous Waste Investigations

Hazardous waste investigations offer unique challenges to police. The most common form of this type of crime involves the illegal shipment and abandonment of small containers and 55-gallon drums in a remote area, on the roadside or behind buildings. These crimes may also involve the abandonment of other wastes, asbestos, petroleum products, discharges from tankers and entire trailer loads of drums.

At other times, Police may encounter an illegal shipment of hazardous wastes in route during a traffic stop of a vehicle. It is important for police to be aware that all trucks carrying hazardous materials, including wastes, are required to have placards, warnings, and hazardous waste manifests for transporters of hazardous wastes. A transporter of wastes or containers designed for chemical storage or hazardous wastes without all appropriate documents and licenses is suspect.

Any truck that is discharging substances while moving, while stopped by the side of the road or a waterway using hoses, or off-loading in a remote area is also suspect. Trucks or vans claiming to be shipping new chemicals or raw product using drums or containers which are in bad condition or leaking are always suspect. All precautions should be taken immediately and an investigation should proceed as to whether a “hazardous waste” is being illegally transported or disposed.

4.3 Definitions of terms for Police: Hazardous Materials and Wastes

A hazardous material is any substance or material that has been determined by a regulatory authority, such as a Department of Transportation, to be capable of posing risks to health, safety, and property when transported in commerce. Accordingly, hazardous waste is a sub-category of hazardous materials that have been generated as a residue or by-product of a manufacturing process or through use of hazardous chemicals. Hazardous waste includes some wastes that are transported for recycling, such as spent solvents.

Hazardous Waste Manifest System

“Manifest” means the form used for identifying the quantity, composition, and the origin, routing and destination of hazardous waste during its transportation from the point of generation to the point of proper disposal, treatment, or storage. This system is designed to track hazardous waste from generation to lawful disposal or recycling. Laws require certain generators of hazardous waste to fill out a multi-part Hazardous Waste Manifest. It also lists the hazardous waste transporter’s name. The generator must keep a copy of the manifest and give the remaining copies to the transporter. Once the hazardous waste has reached its final disposal site, a copy of the manifest should be sent to the regulatory agency.

Hazardous Waste Transporters

Transporters of hazardous wastes are the critical link between the generators and the ultimate off-site treatment, storage, or disposal of hazardous wastes. Transporters must secure all appropriate licenses, transport in compliance with transportation and environmental regulations for hazardous materials, and carry a manifest. The transporter is required to deliver the entire quantity of waste which he accepted from either the generator or another transporter to the designated facility listed on the manifest.

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Any hazardous waste transported without these required documents is evidence of a crime. As with any other type of crime, the success of the investigation and prosecution may depend on the evidence-gathering procedures utilized at the crime scene. When approaching a hazardous waste crime scene, environmental investigators must recognize that environmental crime is no different from any other crime, with the exception that the evidence you gather may kill you.

4.4 Hazardous Waste Abandonment

One of the most difficult tasks that police will face is the establishment of a proper notification procedure for hazardous waste abandonment crimes. It is common for law enforcement authorities to learn of these incidents hours or even days after the discovery of the hazardous waste. On occasion, the environmental investigator will learn that the hazardous waste has already been removed from the scene, by order of a regulatory agency, and is now at a Treatment, Storage or Disposal facility. It is essential that the environmental investigator establish procedures that will allow for the immediate notification of law enforcement authorities whenever abandoned hazardous waste has been discovered.

Even proper and immediate notification will not guarantee the integrity of an environmental crime scene. Hazardous waste abandonment cases typically involve responses by such groups as volunteer firemen, civilian fire marshals, local hazardous material response team members, health officials and environmental regulatory agency personnel. Each of these individuals and agencies may have a specific function to perform at these types of environmental incidents and may not be aware of the need to preserve the integrity of the crime scene. However, with good education, training and communications each of these groups, in conjunction with law enforcement, will be able to accomplish their tasks successfully.

Once the environmental investigator has received notification of a hazardous waste abandonment scene, he or she must immediately request that the scene be sealed. Barring any immediate threat to life and/or property, the first-responders should treat the scene as a crime scene and restrict all entry until qualified criminal investigative personnel arrive. In addition, the environmental investigator should establish a procedure for the immediate notification of criminal investigative support personnel such as forensic chemists, sample team members and backup team personnel.

4.5 Safety First

Today’s police must be prepared to respond and investigate many types of criminal activity, including those related to the transport, release, and abandonment of hazardous wastes. All of these situations present the potential for an exposure to unknown chemical substances that could result in serious injury or death.

This section is designed to provide police with a basic knowledge of fundamental procedures to be followed to safely respond to most hazardous waste investigations. It is not designed to take the place of training offered by organizations tailored to particular types of chemicals and wastes, required by regulation in many nations for hazardous materials response and investigation. Rather, this section is offered solely as an awareness of how to recognize and respond to a hazardous waste crime scene in a safe manner.

This section will discuss how chemical agents can enter the body. Levels of protection commonly utilized by trained personnel will be described. The dangers of entry into confined spaces where wastes may be stored or disposed will also be discussed. The section will summarize common sense approaches in confronting and environmental crime scene.

A. Dangers to Law Enforcement and the Public in Confronting a Crime Scene Containing Hazardous Wastes

Investigations involving hazardous substances present particular dangers because they can enter the body in four ways: inhalation, absorption, ingestion, and injection. Of the four methods of entry, inhalation provides the most rapid route for substances to enter the body. Once inhaled, chemicals may be either exhaled through the respiratory process, or deposited or absorbed in the respiratory tract. Ingestion results from hand to mouth contact, including eating or drinking contaminated food and water. Absorption occurs with certain substances that can pass directly through the skin into the bloodstream. Injection occurs when cuts or puncture wounds from contaminated jagged metal and broken glass introduce the substance directly into the bloodstream. Officers must be trained to respond safely and effectively to these risks.

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B. What to do and what not to do when confronting a crime scene with potential hazardous wastes

Should a suspected hazardous substance or waste be encountered, there are four essential steps that should be followed: (1) Assess the situation; (2), Identify the hazardous substance; (3) Secure the scene; and (4) Report the incident to health, safety, and regulatory personnel, and obtain help.

Police should not to approach a scene involving hazardous materials, but stop and assess the situation, particularly before entering a confined space. This is difficult to teach because the first response of most law enforcement personnel is to respond immediately and take whatever action is necessary. At a scene involving a hazardous substance, however, the correct action may be to take no immediate action at all. An officer needs to assess the situation and restrain himself/herself from entering a dangerous situation. Police officers have been killed in the line of duty by entering crime scenes containing hazardous materials without appropriate precautions.

Police should keep themselves and others safe at a scene if they follow and do not exceed the limits of their training. Injuries and damage may have already occurred prior to the officer’s arrival. It is the officer’s responsibility to prevent further injuries or damage by keeping themselves and others safe and await assistance.

Under no circumstances should an officer without proper training and equipment enter a confined space. When encountering a suspected hazardous waste crime scene, approach from an upwind direction, and remain a reasonably safe distance away from a potential release. Stabilize the situation until someone with more training arrives and then follow their direction.

If a responding police officer find himself at a hazardous waste site before realizing there is a problem:

Do not take deep breaths to determine what it smells like;

Do not walk into a hazardous substance. Police should avoid a hazardous substance site like a minefield.

Do not disturb or move any drums or containers;

Do secure the crime scene and request assistance from other agencies with expertise in hazardous materials response.

4.6 Evidence from the Vehicle to Identify Illegal Traffickers

While the details of managing a hazardous waste investigation for police and investigators follow in subsequent chapters, the following types of evidence that may be developed from the crime scene and the vehicle used may be instrumental to identifying illegal traffickers.

A. The Vehicle

Hazardous waste trafficking always involves the use of some form of motor vehicle to transport the material. In attempting to identify this vehicle, the environmental investigator should take the following steps:

Witnesses

The area in which the material was abandoned should be canvassed for witnesses. This may involve interviewing local residents and business owners. If an approximate disposal time can be determined, the environmental investigator should return to the abandonment scene on several different days (or nights), at the approximate disposal time. Any individuals travelling through this area should be stopped and interviewed.

Tire Tracks

Tire tracks should be measured, photographed and cast. If the type and size of the tire can be determined, the environmental investigator may be able to identify the types of vehicles that utilize that particular model of tire.

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Vehicle Size

Even without the aid of tire-track identification, information regarding the approximate size of the vehicle may be determined by the weight and volume of the hazardous waste. Depending on the actual density of the waste, one 55-gallon drum may weigh anywhere between 300 and 650 pounds (i.e. chemical density of 1.4 = 11.676 lb. per gallon x 55 gallons = 642.18 lb. per drum). Ten full drums of hazardous waste may weigh between 3,000 and 6,420 pounds. The laboratory utilized for the hazardous waste analysis will be able to provide the various densities for the chemical samples removed during the evidence-gathering operation. In addition, ten upright drums of hazardous waste will take up approximately 35 square feet of space (i.e. drum diameter = 1.875 ft.; 1.8752 = 3.51 sq. ft. x 10 drums = 35.1 sq. ft.). In this case, the environmental investigator will know that, based upon a chemical density of 1.4, with a total of ten 55 gallon drums, he or she will be searching for a vehicle that can carry 6,420 pounds, with a storage capacity of at least 35 square feet. The drum weights and drum volumes should assist the environmental investigator in narrowing the list of possible vehicle models used in the crime.

In addition to the above, a careful examination of the environmental crime scene may determine whether or not a vehicle lift gate was used to unload the hazardous waste drums. Many trucks come equipped with a lift that will allow the drums to be slowly lowered to the ground. Marks and/or indentations on the surface of the ground made by the weight of the drums and marks left behind by a lift gate resting on the ground may indicate the use of such a device. If it is suspected that the vehicle was equipped with such a lift gate device, it will further narrow the list of possible vehicle models used to transport the hazardous waste to the crime scene.

Vehicle Contamination

If a lift gate was not used and the hazardous waste drums were dumped off the back of a vehicle, some hazardous waste spillage may have occurred. This may be caused by loose bungs and/or drum lids. It may also be caused if the drums rupture upon hitting the ground. When this type of spillage occurs, some interior and/or exterior vehicle contamination may result. If this is the case and the suspect vehicle is eventually located, trace chemical samples from the suspect vehicle can be compared with the sample analysis conducted on the hazardous waste at the crime scene.

In addition to the chemical analysis comparisons, the environmental investigator should note that hazardous waste contamination, due to spillage, may leave behind a distinctive odour. Many solvents, herbicides and pesticides will seep into the walls and floor of the vehicle and may leave a distinctive odour. This distinctive odour may last for several days or weeks. When a suspected vehicle has been located and spillage is suspected, the vehicle should be checked for chemical odours.

4.7 Summary of Unique Aspects of Hazardous Waste Investigations

Forensics – Representative samples of hazardous waste may be analyzed in special laboratories having analytical equipment and skilled personnel. The results may be presented as scientific evidence in a court of law.

Managing hazardous waste as evidence – Preserving large quantities of physical evidence, such as a truckload of suspected hazardous waste, is not practical. This evidence is collected in the form of representative samples. Trained forensic experts following strict evidence collection protocol must be employed when taking samples for evidence at a hazardous waste crime scene. These samples are then transported to a laboratory for analysis using a formal chain of custody format.

Proving a substance is a waste and is hazardous – Jurisdictional laws and regulations coupled with the investigation into how, where and by whom the substances was generated will determine if it is a waste. Laboratory analysis conducted under accepted forensic procedures will determine if the waste is hazardous. In some cases, a waste will be hazardous by virtue of the process in which it was generated.

Anticipated defences – It can be expected in any hazardous waste criminal defence, that the credibility of the physical evidence will be attacked. This is true because hazardous waste evidence is vulnerable in some areas. The defence will claim poor sampling techniques, contaminated containers, breach in the chain of custody, poor laboratory analysis procedures and lack of personnel training. Other anticipated defences in a hazardous waste prosecution will be focused on culpability. Intentional or wilful acts can be difficult to prove. Defence will normally equate reckless or criminal negligent behaviour as merely accidental.

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4.8 Resources for Police Hazardous Waste Investigations

A successful environmental policing program should develop and employ multiple resources for detecting and investigating violations. Hazardous waste regulatory programs within the environmental agencies at all government levels are primary resources for information and become important factors in any hazardous waste investigation. These agencies may act as the initial complainant or corroborate and document certain facts, activities or non-activities of a target in furtherance of an investigation. Other resources may include but are not limited to, local fire inspectors, highway patrol, Haz/Mat or spill response units, past and present employees, insurance companies and news media.

Hazardous waste is regulated at various degrees around the world. In most jurisdictions, hazardous waste management documentation is required of generators, transporters, disposal facilities and their respective regulating agencies. When such regulations apply, an abundance of information will be available. This information may include: government compliance inspection and waste stream identification reports; hazardous waste manifest reports; transporter, disposal facility and waste water treatment plant reports, to name a few. Analyzing and compiling this data can assist in identifying suspect enterprises by creating regulatory profiles based on their activity or inactivity. This intelligence may be very useful during hazardous waste investigations, or even highway or border inspections. In some cases, this information may provide enough evidence to pursue actions for other crimes. Factors that influence illegal trafficking in hazardous wastes include avoiding operating costs and/or increasing profits. Unreported income is an end product of many waste management enterprises that illegally ship and dispose of wastes.

During the initial stages and any emergency hazardous waste response, the hazardous waste investigator should communicate to other responding agencies that a criminal investigation is underway. Although very important, the criminal investigation will be subordinate to public safety and health issues and initial site remediation to prevent immediate environmental degradation. It is incumbent upon the investigator to insure that the crime scene be treated as such especially during the emergency phase of the incident. They should attempt to identify and preserve evidence and conduct the investigation without disrupting the emergency response.

If some form of incident command is invoked, it will be to the advantage of the hazardous waste criminal investigator to have a prominent position in that system. Valuable information and evidence may be collected by the other responding entities at the scene. The investigator must document all who responded and seek to examine their files at a later date. When the emergency phase of the incident has ended, the investigator should declare the site a crime scene and resume normal investigative activity.

4.9 Resources for Assisting Hazardous Waste Investigations that Resulted from Illegal Trafficking

There is a wealth of information available to investigators of hazardous waste crimes stemming from illegal shipments from other countries. As will be discussed in Chapter 9, information is now available over the Internet which can help police trace shipments, using information on trailers, drums, or shipping documents and comparing that to trade and transportation data stored by Customs agencies and environmental agencies in other countries. For example, investigators can determine whether there was required Notification and Consent for hazardous waste shipments from the competent authority of the countries in question this way or by other forms of telecommunication.

Interpol and the World Customs Organization (WCO) have assigned high priority to assisting in international investigations of illegal trafficking in hazardous wastes. Information is available through the National Central Bureaus of Interpol and the WCO. Interpol’s system of international law enforcement communication is available for trafficking in wastes, and provides a mechanism for police to request compliance and law enforcement information relevant to suspected illegal shipments. Other information relevant to international shipments of hazardous wastes, and how to access them, is available from the Basel Convention Secretariat.

CHAPTER 5: LEGAL AND TECHNICAL ISSUES OF PROVING WASTE CRIMES FOR PROSECUTORS AND JUDGES

The success of the Basel Convention ultimately depends on the legal and judicial institutions that uphold the rule of law. Effective apprehension and deterrence of traffickers requires prosecution and adjudication of hazardous waste crimes in courts of law. Prosecutors and judges should be aware of certain technical and scientific aspects of proof for environmental crimes, and the attendant legal issues. As the Judicial Conference at the World

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Summit for Sustainable Development noted, such training is fundamental to achieving widespread compliance with the environmental laws that implement international agreements Prosecutors and Judges need to understand the criminal provisions of environmental laws and enough of the technical requirements and environmental science to prove violations of law governing hazardous wastes. Without training for prosecutors and judges, lack of experience with environmental laws and with their technical aspects may present obstacles and cause delays within the criminal justice system that can diminish the deterrence and impact of the environmental laws. Prosecutors and Judges need to process environmental crimes like other serious crimes.

As an initial matter, for Prosecutors and Judges to devote scarce resources to hazardous waste offences, it is critical that deliberate violations of laws that implement the Basel Convention be classified as felony crimes with serious sanctions in a criminal code, consistent with Article 4 of the Basel Convention. Otherwise, Prosecutors and Judges are unlikely to devote much time or resources to adjudicating such cases, considering all the other crimes before them. Assuring that these environmental offences are properly classified as crimes also enables international law enforcement cooperation to apprehend traffickers that is not generally available for civil or administrative offences.

5.1 Defining Elements of Criminal Trafficking in Hazardous Wastes

The following definitions from the Basel Convention are fundamental to proving a case of illegal trafficking in hazardous wastes. These requirements, as incorporated in nation law, constitute elements of the offence of illegal trafficking in hazardous wastes, and other crimes.

Article 9 of the Basel Convention defines illegal traffic as any transboundary movement of hazardous wastes or other wastes:

a) Without notification pursuant to provisions of this Convention to all States concerned; or

b) Without the consent pursuant to the provisions of this Convention of a State concerned; or

c) With consent obtained from States concerned through falsification, misrepresentation, or fraud; or

d) That does not conform in a material way with the documents; or

e) That results in deliberate disposal (e.g. dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law.

Various annexes and guidance documents to the Basel Convention, available from the Basel Convention Secretariat, define the hazardous waste definitions that apply in the nations that are party to the Convention. While these definitions are useful in a broad sense for investigators, prosecutors must have access to the current national laws and regulations defining hazardous and other wastes, illegal disposal, and illegal imports and exports.

Despite variations in national laws and regulations, certain definitions and methods for determining hazardous wastes have broad application, and are relevant for law general law enforcement. Initially, it is useful to define “waste” as any substance or object abandoned, discarded, or intended for disposal. “Hazardous waste” is waste that is listed as hazardous by regulatory authorities, or waste that has hazardous characteristics, such as flammability, explosiveness, corrosiveness, or toxicity.

Accordingly, the elements of the crime of illegally exporting or importing hazardous waste that have to be established are:

* A Person (an individual, group, and/or a corporation or other legal entity)

* Knowingly or Negligently (with knowledge of the acts, not necessarily that they violated laws or agreements)

* Exports or Imports a Hazardous Waste (a waste product that is listed as hazardous or has hazardous characteristics)

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*Without Informed Consent and Acknowledgement of a Receiving Nation (or in violation of other Basel Convention requirements set forth above or another agreement regarding the export or import of waste, or in violation of either nation’s other laws)

5.2 Other Criminal Violations Applicable to Illegal Waste Traffickers


* Transporting waste to a non-permitted facility;

* Treating, storing, or disposing of waste without a permit or in violation of a material condition of a permit or license;

* Omitting important information from, or making a false statement in a label, manifest, report, permit, or compliance document:



* Transportation, disposal, or export of any hazardous waste in such a way that another person is placed in imminent danger of death or serious bodily injury.

Other crimes that Prosecutors can commonly charge based on the acts of illegal trafficking include: making false statements to the government or Customs; conspiracy; strict liability offences for crimes against the environment in some jurisdictions; criminal vandalism or damage to property; theft by deception; forgery; and tax evasion. It is important to include these offences where appropriate as they are often easier to prove than all the elements of illegally trafficking in hazardous wastes.

5.3 The Prosecution of Hazardous Waste Cases

The prosecution of hazardous waste offences presents many of the same issues as white-collar crimes. The cases are complicated, however, by the technical and industrial context in which they originate. Problems in scientific understanding are created for investigators, attorneys, and fact finders - whether judge or jury.

The criminal prosecution of otherwise legitimate business persons for crimes arising from their business operation is a relatively recent phenomenon. Each case presents legal and technical issues. Corporate versus individual liability, problems of circumstantial evidence, statutes of limitation; and case presentation are complicated by the scientific aspects and fact finder unfamiliarity with the issues presented. Expert qualification and direct examination may be first-time experiences for many prosecutors.

In order to obtain a criminal conviction, prosecutors must prove that an unlawfully shipped waste meets the definition of “hazardous” under the standards of proof that apply. Often it is after sampling and analysis of a waste that an investigator determines which definition of hazardous waste, if any, applies. In these cases, testimony and expert witnesses with respect to sampling and analysis, with an adequate chain of custody, must be offered.

At other times, it is important to note, hazardous waste crimes may be proved without sampling or analysis of a substance that may have dissipated in the water, in the ground, or in the air. In these cases, the nature of the waste may be established by circumstantial and other evidence, such as a fish kill in waters, dead animals or vegetation on the land, or other direct or indirect effects of contamination. In such cases, tracing the shipment back to an industrial process, generator of hazardous wastes, and with reference to the harm or other effects of the substance in question, is critical in proving the elements of a hazardous waste crime. Also, expert witness testimony can be used to establish the elements of a hazardous waste crime based upon his or her analysis of the circumstantial evidence of contamination.

In most criminal prosecutions, the government must prove each element of each offence beyond a reasonable doubt, or other standard that may apply. The evidence the government chooses to use to meet this burden is left

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to the prosecutor’s discretion, subject to relevancy requirements. Prosecution of laws regulating hazardous wastes poses issues because of the need to prove identity of pollutants, and because of the need for experts (laboratory and sampling technicians, environmental engineers) to establish aspects of the government’s case.

By considering such issues of proof before evidence is collected, the government may assure that violations discovered can be proved if the case goes to trial. Indeed, in some jurisdictions prosecutors play active roles in hazardous waste task forces, and serve as the coordination point for the various other agencies involved, such as customs, environmental agency investigators, police, health and fire departments. In this setting, the prosecutor provides guidance on how the investigation should proceed to meet proof requirements for sampling and analysis, and chain of custody for evidence taken.

Generally, prosecutors must become involved if a search warrant application is sought. In these cases, the prosecutor can establish parameters for what evidence is seized, and how that is done, designed to meet legal requirements and anticipated defences, such as that the sample was not representative, was contaminated by investigators, or that the substance does not constitute a hazardous waste as defined by law or regulation.

In every case, a determination of what evidence should be taken, how it is to be taken and how much should be taken must be done. A general principal is to take representative samples and refer clean up problems to civil or administrative personnel. See appendices for more detail and generally accepted methods to do this, preserve the evidence, and establishing a chain of custody designed for admissibility in court.

5.4 Prosecution Legal and Technical Issues:

A. The Corporation as a Defendant

The decision to file charges against a business entity, individuals, or both depends upon the specific facts of the case and the remedy desired. The prosecutor should consider the right of discovery against a corporate entity, relative to the more limited discovery available against individuals charged with a crime, which may produce information that results in additional evidence and charges against individuals and other business entities.

In most jurisdictions, a corporation or other organization may be criminally liable as a person under environmental laws and responsible for the acts of its agents. While the acts of high-managerial officials generally create liability for a corporation for a criminal violation, the acts and intent of lower-level employees are less imputable to the corporation. The corporation may be held liable criminally for the conduct of an agent on its behalf and within the scope of his employment. Unincorporated associates are likewise covered, reflecting the current trend in regulatory legislation whereby the definition of “person” is used to include individuals, partnerships, corporations, and associates.

Generally corporate crime is imputed in one of two ways. A corporation will certainly be held criminally liable for the illegal acts of its president or other officers. Second, the acts and intent of lower-level employees are also generally imputable to the corporation without regard to that employee’s position in the corporate hierarchy. Limitations of liability have, at times, been imposed on the acts of lower-level employees where conspiracy has been charged. The crime of conspiracy requires a specific showing of intent, as well as acts in furtherance of the conspiracy.

Cases have held corporations liable for specific intent crimes committed by subordinate employees. This is, in fact, the most prevalent form of corporate crime. The most common instance in hazardous waste prosecutions is where company officials make a decision that corporate interests will best be served by false reporting.

In addition to the prosecution showing that the corporate agent was acting within the scope of his authority, there should be a showing that the criminal act was intended to benefit the corporation. Thus, if the employee and a third person reap the benefits of a crime, the corporation may escape liability. An example may be where a waste generator pays the going rate for hazardous waste disposal and, unknown to him; his employees reap the gain from cheaper, illegal dumping.

It should also be noted that an employee’s illegal acts done in violation of company policy do not necessarily provide a defence. A line of cases has rejected the due diligence defence and imposed criminal jeopardy. It should be noted, however, that some case law does provide a defence if the defendant (corporation) proves that the high managerial agent having supervisory responsibility over the subject matter of the offence employed due

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diligence to prevent its commission. There is even some case law to indicate that a corporation’s liability for criminal acts may survive a merger or other change of identity.

Although it is of prime importance that the individuals responsible for corporate criminal behaviour do not escape, the public benefits to be derived from criminal prosecution of corporations are also considerable. Punishing the corporation creates publicity, retrieves illegally obtained profits, and alerts shareholders to the acts of their corporate officers. Successful prosecution may result in the suspension of licenses, permits, and the ability to obtain government contracts.

B. Hazardous Waste Forensic Evidence – Representative samples of hazardous waste will be analysed in special laboratories having analytical equipment and skilled personnel. The results must be presented as scientific evidence in a court of law. Preserving large quantities of physical evidence, such as a truckload of suspected hazardous waste, is not practical. This evidence is collected in the form of representative samples. Trained forensic experts following strict evidence collection protocol must be employed when taking samples for evidence at a hazardous waste crime scene. These samples are then transported to a laboratory for analysis using a formal chain of custody format.

C. Proving a substance is a waste and is hazardous – Jurisdictional laws and regulations coupled with the investigation into how, where and by whom the substances was generated will determine if it is a waste. Laboratory analysis conducted under accepted forensic procedures will determine if the waste is hazardous. In some cases, a waste will be hazardous by virtue of the process in which it was generated.

In other cases, where the hazardous waste may have dissipated or cannot be sampled or analysed, the prosecution may rely on circumstantial evidence to prove that what was illegally shipped or dumped was a hazardous waste. In such cases, tracing the shipment back to an industrial process, generator of hazardous wastes, with reference to the harm or other effects of the substance in question, is important in proving the hazardous waste crime.

Other circumstantial evidence that can be useful proving the case includes: odour or other observable properties of the waste; symptoms of toxicity experienced by people or vegetation coming in contact with the substance; covert disposal such as at night, in sewers, or burying in the ground; a suspect’s knowledge of waste; regulatory to commercial documentation, manifests, or their absence. Also, expert witness testimony may be used to establish the elements of a hazardous waste crime based upon his or her analysis of the circumstantial evidence of contamination.

5.5 Anticipated Defences

The defences raised to a charge of environmental crime include: (1) It was not “hazardous”; or (2) it was not a “waste”; or (3) “I did not know it was hazardous or a crime.” These and other defences fall into two broad categories of attacking the physical and scientific evidence and challenging the Mens Rea or culpability requirement.

A. Challenges to Physical and Scientific Evidence

It can be expected in any hazardous waste criminal defence, that the credibility of the physical evidence will be attacked. The defence will claim poor sampling techniques, contaminated containers, breach in the chain of custody, poor laboratory analysis procedures and lack of personnel training.

More specifically, the defence may contend that any deviation from protocols established by standards, regulation, or guidance, no matter how slight, disqualifies test results showing that a waste is hazardous. Test areas that are likely to be challenged include the following: whether or not the samples taken were “representative”; proper decontamination of equipment before sampling; storage temperature of samples; holding time between collecting and testing samples; preparation of samples for testing; calibration of testing equipment; testing methodology.

The proper method for investigators to address these issues are described in greater detail in the appendices. A prosecutor at trial should avoid spending to much time on these issues, and respond to them only when they are raised by the defence. The defence is likely to make the testing seem very complex. The best response is to use a technical expert to explain quickly why the collection and testing were reliable.

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B. Intent or State of Mind

The issue of knowledge in hazardous waste cases can be raised by the defence in three different contexts: (1) knowledge of the law or regulation; (2) knowledge of the permit status, and (3) knowledge of the underlying material facts. Because hazardous waste crimes implementing the Basel Convention are statutory, without common law origins, the state of mind which must be proven is in the statute itself. Such language falls into three broad categories: (1) strict liability; (2) negligence; (3) knowledge, wilfulness, or knowing endangerment.

Ignorance of the law is not a defence

Hazardous waste crimes are generally considered ‘public welfare’ and ‘malum prohibitum’ offences. They are not bound by the general rule that acts committed without bad intent or culpable negligence are not criminal in nature. Accordingly, ignorance of laws or regulations governing hazardous waste shipments and disposal are not a defence. The “knowing” requirement does, however, require proof of the defendant’s knowledge of certain underlying facts.

CHAPTER 6: HAZARDOUS WASTE TASK FORCES

The Task Force approach is an effective and efficient method for targeting and investigating suspected criminal activity in a specific geographical area, region, or border crossing. Generally, a task force is composed of a team of people from different agencies with a common goal. The strategy is to coordinate several agencies with information, expertise, and jurisdiction that correspond to the priorities of a particular task force.

A Hazardous Waste Task Force may be composed of representatives from customs (agents, inspectors, trade information specialists), environmental agencies, police agencies on the national, regional, and local levels, as well as persons with hazardous waste regulatory and prosecution backgrounds, and others with relevant information or authority over aspects of waste shipments. If possible, specialists in electronic surveillance, forensics, tax, computer and data processing from one or more of the agencies should be included for special task force operations and investigations.

The agencies involved are stakeholders who agree to form in a cooperative effort focusing on a specific set of task force objectives. Hazardous waste task force members may represent countries, states and local jurisdictions in which hazardous waste is generated, transported through, disposed of, or abandoned in.

The structure of the task force should be simple, composed of at least one member representing each agency and a task force leader. Because each agency involved expects some benefit from the work of the task force, it is the leader’s responsibility to be familiar with the needs and interests of all the agencies. The task force members may be appointed by their respective agencies. The task force members or their agencies choose the task force leader. The entire task force should meet, with an agenda, at least once per month.

The objectives listed below are general in nature and ought to be included in any hazardous waste task force. Circumstances may dictate the need for additional objectives. They should be attainable and supported by all stakeholders represented in the task force.

6.1 Task Force Objectives

The principal objective of a Hazardous Waste Task Force is to develop and share information among agencies which leads to the detection and investigation of many more cases of illegal trafficking than any one agency could identify alone. After identifying suspect shipments or illegal dumping, the Task Force collectively has far more resources, jurisdiction, capacity, and personnel from various agencies to pursue an investigation than any one agency alone. This is especially important for transboundary investigations and in regions where there are scarce resources for environmental investigations.

Task Forces have detected illegal trafficking by compiling and collating information and intelligence from customs and comparing that with information from environmental agencies, police, fire departments, and others. They identify enforcement targets and prioritize according to seriousness of offences, frequency of occurrence and needs of stakeholders. They may develop a database of commercial information and intelligence regarding known generators, transporters and disposal sites, as well as cases of illegal trafficking and other hazardous waste crimes.

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In this way, task forces can document trends in illegal activity, determine patterns of trafficking, share information on common schemes, and effectively train other agencies in the collaborative detection, investigation and prevention of hazardous waste trafficking. Task forces also assist in the subsequent investigation, execution of search warrants based upon task force investigations, and supporting the prosecution of responsible individuals and organizations.

6.2 Multi-Agency Task Forces Focused on International Trafficking in Hazardous Wastes: Exodus Asia

The most important asset of any multi-agency task force is the convergence of the diverse expertise in one operational unit from both sides of a border. Each task force member brings to the table his or her agency’s expertise and jurisdiction. Intelligence gathering from multiple jurisdictions is especially beneficial in a multi-agency border task force dealing with transboundary movement of hazardous waste. The ability to comprehend, coordinate and enforce waste laws across borders is a critical to detect and prosecute traffickers.

Illegal traffickers tend to exploit the usual absence of regular communication between agencies across borders. Intelligence and information exchanges coupled with operations and investigations can tip the scales to the advantage of the task force and expose violators to prosecutions on both sides of a border, or between ports that are thousands of miles apart.

In recent years, several international task forces focused on illegal waste shipments were formed in response to cases of illegal trafficking. For example, Chinese authorities prosecuted an individual for illegal import of hazardous wastes that was mixed with waste paper from the United States that was intended for recycling in China. U.S. environmental law enforcement authorities cooperated with the investigation of this individual (a citizen of the U.S.) and his business, based in California and exporting goods to China.

Much of the communication between Chinese and U.S. law enforcement authorities proceeded through Interpol, using its channels for police to police communication between nations. Other information was shared directly between national and local law enforcement agencies. The individual was prosecuted by Chinese authorities and received a sentence of ten years in prison.

238 metric tons of waste that were falsely labelled as scrap paper were returned to California. The international publicity surrounding this case, and the criminal sanctions, served as a deterrent throughout the industry. Traders in waste paper took additional measures to assure that their shipments complied with environmental protection laws. Chinese authorities reported that after this case, waste exporters took more care with the quality of their China-bound waste. They reported that after this prosecution, less than one per cent of foreign waste imported failed to meet standards, based on random inspection by Customs’ agents.

As a result of this case, authorities in the U.S. recognized the need to better coordinate the state, local, and federal agencies involved in the enforcement of laws governing wastes and the export of wastes intended for recycling, particularly those wastes destined for recycling in China and other parts of Asia. They established a task force named Exodus Asia with Customs agents, Inspectors, and information specialists, EPA criminal investigators, and state and local waste regulatory authorities and inspectors, and a network of communication with law enforcement and customs at ports in Asia.

There are many other examples of successful hazardous waste task forces around the world. Many of them are focused on border crossings and common trade routes for wastes and other contraband around the world. More cooperative law enforcement focus on imports and exports and Regional networks across borders will enhance the international capacity to detect, respond to, and therefore deter illegal shipments.

6.3 Making the Most of Limited Resources in Fighting Waste Crimes Across Borders: Other Operations; Detection; Deterrence

In addition to information sharing, inter-agency coordination, and collaborative investigations, task forces may come together to cooperate in practical exercises that also serve to detect and deter illegal traffic as well as build capacity for transboundary environmental enforcement. These include joint operations to inspect containers at border crossings, ports, or at traffic stops on trucking routes. These operations may be conducted clandestinely or with widespread publicity designed to deter and train shippers in compliance with waste laws and those governing the transport of hazardous materials.

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Such operations also serve to train members of the task force in inspections, compliance with hazardous materials transportation laws, detection of illegal traffic, and in how to work together across the different agencies and functions. Joint inspections conducted by task forces at border crossings have detected significant quantities of hazardous wastes before they illegally crossed national borders. They have also trained thousands of investigators, police, and waste regulators in compliance requirements and how to work together as a team. In this way, task forces themselves serve to build transboundary capacity to detect, deter, investigate, and prosecute illegal traffickers.

CHAPTER 7: NEW TECHNOLOGIES TO DETECT ILLEGAL WASTE TRAFFICKERS

7.1 New tools for Customs, Police, and Environmental Agencies to Detect and Investigate Illegal Traffic across Borders

Access to electronic data over the internet and other technologies offer new tools to detect illegal shipments of hazardous wastes and facilitate international investigations of traffickers. The Internet alone offers investigators access to data from around the world, including commercial trade data, environmental compliance data, and law enforcement information that allows Customs, police, or regulators to identify a potential illegal shipment, or track a shipment that may be suspected already. Some agencies and ports around the world have come to use these tools proactively, providing Internet links between Customs and other law enforcement agencies between ports.

Hong Kong—Rotterdam Connection

For example, Chinese authorities and Hong Kong’s port have assigned a high priority to detecting illegal traffickers of hazardous and other wastes, in part, because of a series of cases over the last decade of illegal shipments of hazardous wastes from other countries through several ports into the mainland of China. Recognizing the need for additional information and intelligence to identify suspect shipments among the tens of thousands that pass through their port every day, Chinese Customs and Environmental Agency Officials set up a direct internet connection with their counterparts in the Port of Rotterdam.

Authorities in Rotterdam, another of the world’s largest ports, recognized that they could only stop, open, and inspect a small per cent of outbound container shipments, including shipments that may be suspicious based upon the bad condition of a container or an unusual odour. They agreed to send the identifying information about suspect containers, including a picture of the container with its markings, to the port authorities in Hong Kong, so they could assign a priority to identifying that shipment before it arrived in port, and inspect containers so identified with the greater resources assigned to inspection and control of incoming cargo at most ports.

In recent years, Hong Kong authorities have offered to set up such a connection with other nations and port authorities around the world. This is one example of how new technologies can supplement more traditional forms of international communication between law enforcement authorities, and facilitate cooperative approaches to detect and deter illegal traffickers in wastes in a time frame consistent with the expanding pace of international trade.

7.2 Challenges and Opportunities for Environmental Law Enforcement in an Information Age

Information technology widely used by governments and the private sector is available to compile relevant information across agencies and nations to better determine threats as they cross national borders. It is imperative that agencies and international organizations that have designed and are administering regulatory processes, or are developing new ones, structure them to take full advantage of these tools, especially electronic reporting, and design their administrative processes to be compatible with other agencies’ information systems, particularly customs automated data systems.

Some agencies have not fully implemented electronic reporting and record keeping, which is the most effective way to facilitate comparison with customs data and other agencies’ law enforcement information to detect illegal imports. Efforts to implement bar-coded electronic manifests, and to render compliance data in secure and harmonized electronic form will improve the ability of law enforcement to detect and track illegal shipments and other violations of international agreements. If trucking and shipping lines can track their cargo using global information systems, and grocery stores can track their inventory using bar codes and electronic systems,

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government agencies charged with detecting illegal traffickers in wastes should also be capable of using this technology to detect and track shipments that pose threats to the environmental, human health, and national security.

Unless law enforcement agencies at international borders have systematic access to regulatory information about shipments before they clear Customs, nations cannot realistically expect to achieve widespread compliance with international agreements designed to control the trade in hazardous wastes. Yet, in many places agreements such as the Basel Convention still rely on the environmental agency from the exporting nation faxing notification and consent forms to the environmental agency of the importing nation, with no direct connection to customs agencies and their largely automated data systems for tracking trade. Moreover, the regulatory classification systems for hazardous wastes, chemicals and pesticides bear little resemblance to the tariff codes and other nomenclature used by customs services to track goods in international commerce.

Revisions to the Basel Convention should facilitate the exchange of compatible data between regulatory agencies and customs services, through electronic reporting harmonized with the automated data processes governing international trade and customs’ clearance processes. Unless nations implement administrative notification and consent regimes using electronic reporting with internet connection to customs trade data and inspection and control functions, an opportunity will be lost to use the best available technologies to provide a greater measure of international environmental security.

Trade agreements and customs agreements that implement technical exchange of information between nations provide other avenues for the data integration required to better detect and deter illegal traffickers. While trade agreements have become increasingly sophisticated in their use of technologies, and customs electronic data systems have facilitated faster trade with expedited clearance processes, trade agreements do not adequately interface with the administration of laws which implement international hazardous waste regulations. Parties to the Basel Convention and others involved in international law enforcement should continue to press for greater integration of these systems.

7.3 Remote Sensing and Global Information Systems (GIS)

Advances in remote sensing and global information systems offer dramatic new tools to detect and apprehend illegal traffickers. Satellite monitoring of shipping lanes at sea, and attaching small GIS monitors to suspect container shipments in international trade have detected illegal traffickers and those that have illegally dumped wastes in international waters. These technologies have recently been made widely available to the public, and structured for international law enforcement purposes.

Access to much of this technology costs less than ever before. Some satellite image providers have linked their data transmission to Coast Guard units at no cost in the service of international task forces designed to detect illegal dumping at sea. Other technology providers have donated equipment that can detect illegal shipments of chemicals and hazardous wastes to Customs services. Many ports are being equipped with advanced scanners and remote sensing tools to detect contraband inside containers. Those concerned with illegally trafficking in waste should take steps to assure that these new technologies are configured to detect illegal shipments of hazardous wastes as well as the other security threats.

International traffickers, including organized crime and terrorist networks, have long made use of new technologies, particularly in telecommunications to facilitate international trafficking and avoid detection. They have benefited from a lack of coordination among environmental regulators, customs services, and the different levels of law enforcement within nations. They have profited further from even less coordination among nations.

Unless international law enforcement efforts keep up with the pace and methods of international trade, as well as the technologies available to illegal traffickers in hazardous wastes, nations cannot not reasonably expect to attain widespread compliance with laws implementing the Basel Convention.

Nations should make full use of new methods for communication and integrated compliance monitoring, and deploy them in regional and transboundary collaboration networks, to detect and deter illegal traffickers.

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APPENDIX I: MODEL HAZARDOUS WASTE INVESTIGATION

1. Multidisciplinary Approach to Hazardous Waste Investigations

Successful investigation and prosecution of illegal traffickers in hazardous waste often require the application of several different disciplines. The environmental investigator must bring basic police skills such as interviewing and interrogation, surveillance, and experience in the proper handling of criminal evidence to the investigation. In addition, they must bring a team trained and equipped to gather physical evidence at an environmental crime scene, in a safe and proper fashion. This requires expertise in the handling of hazardous materials and an understanding of the appropriate environmental laws, supporting regulations and hazardous waste sampling and analysis protocols. Officers must approach all potential hazardous waste sites with caution. Individuals without proper training in dealing with hazardous wastes should not enter the site.

2. Arrival at the Hazardous Waste Crime Scene

Upon arrival at the crime scene, the environmental investigator should locate the individual in charge and gather as much information as possible regarding the incident. In many situations, the individual in charge will be the incident coordinator. The environmental investigator should obtain any information regarding the initial reporting of the incident, names of possible witnesses and a listing of those individuals who may have had physical contact with the crime scene. It may become necessary to obtain samples of these same individuals’ footprints, fingerprints and/or vehicle tire tracks. These samples can then be compared to any physical evidence left behind by the suspect(s). Any evidence identified as belonging to a first-responder can then be eliminated.

The first-responders may have conducted initial field tests on the chemical evidence. If any initial field testing has been completed prior to the arrival of the environmental investigator, the results and methods must be obtained. The results of any initial field tests may help the environmental investigator determine the types of analysis that will eventually need to be conducted on the chemical evidence. In addition, the environmental investigator must determine if the initial field-testing methods caused any possible cross-contamination of the chemical evidence.

The successful gathering of criminal evidence at a hazardous waste crime scene will depend on the training and experience of those individuals involved. Each team member must be properly trained within their discipline. The amount of personnel and equipment needed at a hazardous waste abandonment crime scene will depend on the volume and types of hazardous wastes involved. However, certain minimum requirements for personnel and equipment may be required.

3. Crime Scene Coordinator

The Crime scene coordinator is the primary environmental investigator assigned to the criminal investigation. The crime-scene coordinator and his or her partner should complete the following tasks:

a. Receive a full briefing from the first responder.

b. Interview all witnesses present at the crime scene.

c. Conduct a briefing of all team personnel prior to any evidence-gathering activities being conducted in the hot zone.

d. Control the paperwork at the crime scene.

e. Enter the hot zone and conduct a criminal investigation.

f. Conduct a post-search briefing prior to the chemical evidence gathering operation.

g. Determine what types of analysis are to be done on the chemical evidence removed.

4. The Safety Officer

A safety officer must be present during any chemical evidence gathering operation involving hazardous waste. All issues regarding personnel safety are the responsibility of the safety officer. A Hazardous Materials team, the medical team and the decontamination team should report directly to the safety officer. This individual will also determine the level of personal protective equipment to be worn by those individuals entering any designated hot zone. In addition, the safety officer will determine what decontamination procedures are to be followed. The

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collection of chemical evidence should not begin without the safety officer’s knowledge and approval. It is essential that the safety officer and crime-scene coordinator be in continuous communication with each other throughout all evidence-gathering activities.

5. Hazardous Materials Team

The Hazardous Materials or “HazMat” team acts as support and emergency rescue for the investigative team and the sample team working within the designated hot zone, confined space or both. If the investigative team and/or sample team consists of two individuals working within one of the above described areas, there must be at least two individuals acting as their backup team.

6. Decontamination

Hazardous waste abandonment crime scenes may involve chemical, biological and/or radiological hazards. An evaluation of these hazards may require that a predetermined decontamination procedure be followed by those individuals exiting a designated hot zone. The specific decontamination procedure, based upon the hazards involved, will be determined by the safety officer. This procedure may include a simple removal and bagging of contaminated clothing. However, it may be necessary for all personnel exiting the hot zone to go through a multiple wash-down procedure. This type of decontamination procedure may produce contaminated wastewater. It is recommended that this material be pumped into a recovery drum. The contaminated wastewater should then be sampled and arrangements made for its proper disposal.

7. Emergency Medical Assistance

Whether or not to have a HazMat-certified medical team at a hazardous waste abandonment crime scene will depend on several factors. The evaluation of the hazard(s) involved the location of the nearest medical facility and weather conditions will impact on this decision. However, if the chemical hazard(s) present at the crime scene require the use of fully encapsulated chemical suits (Level “A”), it is recommended that a HazMat-certified medical team be present during all evidence-gathering activities.

8. The Sample Team

This is the most difficult and dangerous activity conducted at any hazardous waste abandonment crime scene. The proper gathering of chemical evidence goes far beyond collecting liquid (or solid) samples and placing them into containers. These individuals must be concerned with such issues as personal safety, evidence cross-contamination, proper sampling methodology and maintaining the chain-of-custody for the chemical evidence. The sample team should be fully briefed by the crime-scene coordinator as to which hazardous waste containers are to be sampled and what types of analyses that will be conducted on the chemical evidence.

9. The Laboratory Team

Many jurisdictions may lack the resources necessary to have a laboratory team respond to a hazardous waste abandonment crime scene. It may be necessary for the environmental investigator to rely on the expertise of the sample team when dealing with such issues as equipment sterilization and the proper recording of sampling methodologies. However, if a Laboratory team is available, it should consist of at least one qualified forensic chemist. The laboratory team’s responsibilities will begin long before they enter a hazardous waste abandonment crime scene. Each piece of equipment that is to be used for the gathering of chemical evidence must be thoroughly inspected and sterilized prior to it being utilized at the crime scene.

A full record of the sterilization procedure should be maintained by the laboratory team. Once at the crime scene, the laboratory team will maintain a record of the samples that have been taken, what scientific field tests have been conducted and the results of these tests. In addition, they will maintain a log of the sampling methodology utilized by the sample team. The laboratory team should maintain the integrity of the evidence by following procedures that will rule out any possibility of cross-contamination and/or outside contamination of the chemical evidence. At the closure of the crime scene this team will take custody of the chemical evidence and transport it to a laboratory or chemical evidence storage area. These individuals must be trained in the handling of criminal evidence and hazardous materials.

When conducting an investigation at a hazardous waste abandonment crime scene, it is recommended that a qualified individual be appointed site science officer. This individual may assist the environmental investigator

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in the identification of various chemical waste products. He or she may also assist the environmental investigator in determining the proper sampling and analytical methodologies required based upon any field-test results and in the identification of a particular chemical compound.

10. Gathering Evidence in the Hot Zone

Once all the personnel at the crime scene have been fully briefed and the safety protocols established, the crime-scene coordinator and his or her partner will enter the hot zone and commence the evidence gathering operation. To safely and efficiently complete this task, the environmental investigators must have the proper equipment with them when entering the hot zone. For a typical hazardous waste abandonment crime scene involving abandoned drums, this equipment should include:

a. Appropriate chemical clothing based upon the suspected chemical hazard.

b. Steel-toed, chemical-proof boots.

c. Appropriate chemical gloves based upon the suspected chemical hazard.

d. Several pairs of surgical gloves.

e. A Self-Contained Breathing Apparatus with a full 60-minute air bottle.

f. An aluminium (non-sparking) clipboard.

g. A pen for crime-scene notes.

h. A bold marker for filling in sample-point identification information on the sampling placards.

i. Several pre-printed placards for sample point identification.

j. Duct Tape, magnetic clips or suction cup clips for attaching sampling placards to the hazardous waste containers.

k. An L.E.L./O2 meter for atmosphere flammability readings.

l. A radiological meter capable of determining the presence of Alpha particles, Beta particles and/or Gamma rays.

m. pH paper and pH chart.

n. A waterproof auto-focus camera with sealed electronic flash.

o. Evidence bags of assorted sizes.

p. A beryllium (spark proof) bung wrench which is capable of opening various types of hazardous waste containers.

q. A knife capable of cutting tape. This item should be taped to the calf of the environmental investigator and may be used under emergency conditions to cut away and remove a severely contaminated chemical suit.

r. A fingerprint kit equipped with various dusting powders, brushes and fingerprint lifting tape.

s. A stethoscope for the audio monitoring of any container which appears to be swollen.

t. Communication equipment which will allow for hands-free operation and direct communication with the safety officer and other individual working within the hot zone.

While inside the hot zone, the investigative team should attempt to complete the following evidence gathering tasks:

a. Photograph the entire undisturbed crime scene from all angles.

b. Complete a radiological survey of the entire crime scene. The radiological survey should begin at the outermost perimeter, with continuous readings being made up to the surface areas of all hazardous waste containers.

c. Complete a meter reading to determine if any potentially flammable gases are present.

d. Determine if the material has been spilled or is leaking from the hazard waste containers.

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e. Determine if any of the hazardous waste containers appear to be swollen. This may be an indication that the material inside the containers may be under extreme pressure.

f. Determine if any of the hazardous waste containers are making noise. Such noises may be pings or pops. These sounds may be spaced several seconds apart. If they should become more rapid, the hot zone should be evacuated immediately. This may be an indication that the metal container is stretching due to extreme interior pressure and that the container may be on the verge of catastrophic failure. This audio examination may be accomplished through the use of a stethoscope. Any interior container noise should be reported to the safety officer immediately.

g. Determine if there are any signs of waste crystallization. This may be indicative of explosive peroxides or sodium cyanide. Any signs of product crystallization should be reported to the safety officer immediately.

h. Note, photograph and cast, any footprints and/or tire tracks present.

i. Note, photograph and lift any fingerprints on the hazardous waste containers. Special attention should be paid the to bottom surfaces of any drums and/or cans. These are the natural gripping areas used to lift these types of containers. If the suspect(s) lifted theses containers without gloves, the bottom surfaces will be the most likely areas in which fingerprints may be found.

j. Photograph and record any Department of Transportation information on the drums.

k. Photograph and record all other markings on the hazardous waste containers.

l. Photograph and record all label information on the containers. If the label is legible and can be removed intact, it should be recovered and placed into an evidence bag. Many labels may have illegible, yet potentially valuable, information on them. If they cannot be removed intact, the metal area surrounding the label should be carefully cut out after the chemical evidence has been removed. This procedure will require that the hazardous waste be transferred into a recovery drum. It may also require numerous rinses which will produce contaminated waste water. It is essential that this contaminated waste water be contained and disposed of properly. This type of evidence recovery is difficult and should be done only under the supervision of qualified chemists and hazardous material trained personnel. In addition, every effort should be made to identify the chemical waste and its characteristics prior to attempting this type of evidence recovery. At the completion of this operation, the cut piece of metal and the attached illegible label should be sent to the documents department of a crime lab. Information on faded labels may be raised using document enhancement techniques, such as infrared and infrared fluorescence.

m. The surrounding ground area should be carefully searched for any other form of physical evidence. Any closed hazardous waste containers should be lifted and/or tilted so that their undersides, and the ground area underneath the containers, may be examined for possible physical evidence.

n. A sketch should be made of the entire crime scene including the position and location of each hazardous waste container. The crime scene sketch should also include the location of any other physical evidence recovered.

o. The investigative team should open each drum and repeat the L.E.L. and radiological tests. The L.E.L. reading should be taken directly over the exposed hazardous waste. This will assist the environmental investigator in determining if any flammable vapours are being produced by the hazardous waste. A radiological reading should be taken directly over the exposed hazardous waste. Radioactive Alpha particles and Beta particles may be shielded by the plastic or metal which makes up the hazardous waste container’s construction.

p. If the hazardous waste containers have removable lids, the lids should be removed and the interiors of the containers examined. The interiors of these containers may contain other physical evidence, such as trash and smaller containers.

q. A field pH test should be conducted on the hazardous waste. This field test may assist the environmental investigator in determining the types of chemical analysis which will be needed to further the investigation

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r. The hazardous waste should be physically examined through the use of a Colliwasa Tube . This will supply a visual perspective of the waste column and may assist the environmental investigator in determining analytical needs

s. Each hazardous waste container that has been selected for sampling should be placarded and photographed. The sampling placard should contain at a minimum agency information, the current date and the field sample number.

11. Post-Search Briefing

After exiting the hot zone, the environmental investigators must meet with the sample team, Hazardous Materials team, science officer and safety officer. During this post-search briefing, the site hazards, sampling protocols, sampling parameters and analytical requirements will be discussed.

In most instances, the chemical evidence gathering operation will be the only opportunity to gather chemical evidence. Normally, at the conclusion of a hazardous waste abandonment crime scene, the hazardous waste is removed by a licensed hazardous waste transporter. It is then taken to a facility for safe treatment and/or eventual disposal. Due to the limited amount of time that the chemical evidence is available, it is essential that the proper analytical requirements be determined at the crime scene. All of the available information must be evaluated in making the determination as to what types of analyses will be required to further the investigation and meet the requirements of any criminal statutes. The environmental investigator may require analyses for metals, volatile organic compounds, flammable liquids, acids, caustics, pesticides, herbicides and other compounds which may fall under the regulations and/or criminal statutes which were violated by abandonment of the hazardous waste.

12. Chemical Evidence Gathering

This is the most critical part of the evidence gathering at a hazardous waste abandonment crime scene. Due to the complexities involved with chemical evidence gathering, the potential for error is high. The crime-scene coordinator, safety officer and site science officer should, if possible, witness the sampling operation from outside the hot zone. Through the use of radio communication, simple reminders and corrections can be relayed to the sample team if necessary. In addition, the sample team may identify evidence overlooked by the Investigative team and may determine that additional analytical parameters are required.

The sample team should also determine the volume of material present in each hazardous waste container sampled. Each measurement should correspond to a particular sample point (i.e.: Field Sample # 1SD 3/21/97 = 27 inches of liquid). A full description of the hazardous waste container(s) and a record of any hazardous waste measurements made by the sample team should be maintained by the crime-scene coordinator.

At the completion of all evidence gathering activities, the chemical evidence should be properly sealed, stored and transported to a laboratory or chemical evidence holding area. A proper chain-of-custody must be maintained at all times.

13. Equipment

The well-trained criminal environmental investigator should also be well-equipped. Most successful criminal investigations, be they burglaries, arsons or homicides, depend upon the investigator’s ability to examine and gather physical evidence. Even in situations where evidence technicians are gathering the physical evidence, it is normally done under the direct supervision of the criminal investigator. This same basic investigative principal also applies to criminal environmental investigations. The criminal environmental investigator must be equipped with the proper crime-scene, safety and field monitoring equipment to allow for a safe and proper examination of any physical evidence found at an environmental crime scene. The following is a listing of some of the items that may be utilized by the environmental investigator at a crime scene:

Chemical boots Surgical gloves Cartridge Respirator

Fully encapsulating suit Chemical suits Chemical gloves

pH Paper Duct tape Measuring tape

Steel toed boots Overalls Dosimeter

Goggles Geiger Counter Chemical dictionary

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Binoculars First Aid Kit Bold markers

Flashlight Bung wrench Spark-proof clipboard

Knife Trash bags Sterilized sample bottles

L.E.L./O2 meter Compass Communications equipment

35mm Auto focus camera Emergency Response book Self-contained breathing apparatus

Spare 60 minute air bottle

14. Standard Operating Procedures

In addition to obtaining the proper training and equipment, there may be requirements to establish standard operating procedures. These standard operating procedures must address the issues of health and safety for the environmental investigators working in areas which may contain hazardous substances hazardous materials and biological hazards.

These procedures should address such topics as organizational work plan, site evaluation, site control, monitoring, personal protective equipment, communications and decontamination procedures. In addition, it is recommended that standard evidence gathering procedures be incorporated into the standard operating procedures. Such topics as note taking, removal of fingerprints, tire track and footprint castings, the crime scene sketch, crime scene photography and evidence chain-of-custody procedures should be addressed within the standard operating procedure.

15. Locating and Utilizing Resources

One of the most difficult challenges facing the environmental investigator is locating and utilizing the resources necessary to effectively gather evidence at an environmental crime scene. Safety and chemical sampling protocols clearly establish the need for additional personnel with special training.

a. Safety Resources

Whenever the presence of hazardous substances, hazardous materials and/or biological hazards is suspected at an environmental crime scene, a qualified safety officer, a backup team and decontamination facilities are needed. The first step in locating the resources necessary to fulfil these requirements is the identification of any local Hazardous Material Response team (HazMat). These emergency plans include the requirement for a local hazardous materials response team. In some jurisdictions, the HazMat team may fall under the control of the local fire department, while in others it may be a function of the local police department. The environmental investigator should locate this team and make every effort to utilize its resources for any environmental crime scene. The environmental investigator may be surprised to find willing and cooperative emergency response personnel. There is a mutual benefit in having HazMat trained criminal investigators and HazMat team emergency responders working and training together. Most HazMat teams are designed to mitigate dangerous situations involving the release or potential release of hazardous chemicals. The HazMat response plan might not have any provisions established to affix culpability on those individuals responsible for the chemical release. When criminal negligence or criminal intent is suspected, the HazMat team should have a qualified environmental investigator available. In addition, environmental crime scenes offer the HazMat team an opportunity to work and train under less than life-threatening situations.

b. Sampling Resources

The proper gathering of chemical evidence is crucial to the success of any criminal environmental investigation. The personnel utilized for this procedure must be highly trained in safety, hazardous waste sampling and the handling of criminal evidence. Sometimes, local and state regulatory agencies have such individuals available to assist the environmental investigator. The environmental investigator should contact these groups and establish protocols in which their resources may be utilized.

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APPENDIX II: MODEL SAMPLING AND ANALYSIS OF HAZARDOUS WASTES FOR PROSECUTION OF TRAFFICKERS

The proper collection of samples at environmental crime scenes requires preparation and planning. The proper selection and preparation of sampling equipment, methods of sample collection, types of analyses required, site contamination control, chain-of-custody and evidence storage are critical to a successful investigation and prosecution. The environmental investigator has a responsibility to insure that the chemical evidence is collected and maintained properly. To fulfill this responsibility one must have adequate knowledge of accepted sampling protocols and analytical methods approved by local, state or national agencies.

This appendix is designed to acquaint the environmental investigator with a few of the approved equipment-preparation and sampling protocols utilized in evidence collection, specifically the methods and protocols prescribed by environmental agencies. These methods and protocols are intended to supply information regarding sampling and analysis as they are related to hazardous waste laws and regulations. It is imperative that the environmental investigator review all sampling regulations and/or requirements within his or her own jurisdiction.

1. The Sampling Plan

The primary objectives of a sampling plan for a solid waste (includes hazardous waste) are twofold: namely, to collect samples that will allow measurements of the chemical properties of the waste that are both accurate and precise. In order to insure that sampling objectives are met, the environmental investigator must meet with the other members of the team and develop a sampling plan that will provide the criminal evidence necessary to further the investigation and, at the same time, satisfy the sample collection criteria of the approved analytical method used for the analysis of the evidence.

The sampling plan will generally indicate the types of chemical analysis required (based upon prior knowledge of the waste stream and/or information developed during the search), sample point location, sampling equipment requirements, cross contamination and outside contamination control samples, chain-of-custody procedures, personal protective equipment and other safety issues.

2. Sample Bottle Identification and Preparation

There are numerous types of sample collection containers available today. The sample containers listed below are those commonly used for the collection of chemical evidence at environmental crime scenes. The following selection is by no means an all-inclusive list. However, each sampling container, regardless of its intended use, will require some form of preparation prior to utilization. The environmental investigator must insure that the proper preparation procedures have been followed, prior to any evidence-gathering operation. In addition, he or she must insure that documentation exists which clearly indicates the name of the individual who prepared the sampling containers, the methodology used and the date on which they were prepared. Court challenges based on possible sample contamination due to pre-existing container contamination will be prevented by documenting and utilizing the proper preparation procedures.

A. Volatile Organic Compound Bottle

The sampling containers used for volatile organic compound collection are standard 40 ml glass, screw-cap bottles with Teflon-lined silicon septa. These sampling containers may be used for both liquids and solids. The vials and septa should be washed with a detergent, rinsed with tap and distilled water and dried in an oven for 1 hour at 105C before use.

B. Semi-Volatile Organic Compound Bottle

The sampling containers used for collecting semi-volatile organic compounds (including herbicides and pesticides) should be composed of glass or Teflon and have screw-caps with Teflon-lined septa. The vials should be washed with detergent, rinsed with tap water, rinsed with distilled water and then rinsed with methanol (or isopropanol).

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C. Inorganic Compound Bottle

The sampling containers used for inorganic compounds (including total metals and T.C.L.P metals) should be composed of linear polyethylene, polypropylene, borosilicate glass or Teflon. The containers should be prepared using the following steps: detergent wash, tap water rinse, 1:1 nitric acid rinse, tap water rinse, 1:1 hydrochloric acid rinse, tap-water rinse and a metal-free water rinse.

D. Ignitability Bottle

Sampling containers used for the determination of ignitability should be standard glass, screw-cap bottles, with Teflon-lined silicon septa’s. These sample containers may be used for both liquids and solids. The vials and septa should be washed with a detergent, rinsed with tap water and distilled water and dried in an oven for 1 hour at 105C before use.

E. Cyanide Bottle

Cyanide samples may be collected in glass or plastic bottles. These containers should be cleaned and rinsed thoroughly.

E. Oil and Grease/Total Petroleum Hydrocarbons Bottle

These sample collection containers should be made of glass, approximately 1 liter in size, with a PTFE-lined screw-cap. The sampling containers should be prepared by using a detergent wash, tap-water rinse and baked at 200-250C for a minimum of 1 hour. After cooling, the mouth of the bottle should be covered with aluminium foil and a screw-cap placed onto the bottle. A solvent wash may be used in place of baking.

F. Phenols and Polychlorinated Biphenyl Bottle

Sampling containers used for determining phenols and polychlorinated biphenyls should be standard glass, screw-cap bottles, with Teflon-lined silicon septa. The vials and septa should be washed with a detergent, rinsed with distilled or de-ionized water and dried in an oven at 105C for approximately 1 hour.

3. Sample Device Identification and Preparation

The sampling devices listed below are just a few of the items which may be used for chemical evidence collection at an environmental crime scene. Each sampling device listed below has a specific use depending upon the location and type of the material being sampled.

Coliwasa Tube Extension Auger Ponar Grab Sampler

Weighted Sampler Dipper Bailer

Shovels Spoons Back hoe

Ideally, a separate sampling device should be prepared for each sample point. The preparation should be based upon the analysis method that will be utilized in the laboratory. However, this would require the purchase and preparation of numerous duplicate items. While coliwasa tubes may be inexpensive and disposable, other sampling devices such as stainless steel extension augers and Ponar grab samplers are not. Normally, only one or two of these expensive sampling devices would be available to the environmentally investigator at a crime scene. Therefore, in order to maintain the integrity of the chemical evidence, it may become necessary to clean and prepare, for reuse, certain sampling devices while at the environmental crime scene. The integrity of the chemical evidence may be maintained by basic cleaning and preparation techniques. This includes the washing of the sampling device with a detergent. The device should then be rinsed with tap water and then rinsed again with distilled water.

4. Types of Analysis

Perhaps the most difficult decision facing the environmental investigator at an environmental crime scene is choosing the correct analysis to be performed on the chemical evidence about to be seized. Due to the different sampling container requirements described above, these decisions must normally be made before any chemical evidence is gathered.

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Many factors must be taken into account when making this decision. These factors include the type of industry, the physical appearance of the waste product, information developed at the scene and any statutory requirements which may exist. The environmental investigator must know what needs to be proven under the applicable statute and which chemical analyses should be employed. This should be accomplished by determining what is required by the criminal statute(s) and what is needed to further the investigation (e.g., trace amounts of chemicals found for forensic connections). The following is a list of some of the more common analytical parameters which may be tested at a hazardous waste crime scene:

Volatile Organic Compounds Semi-Volatile Organic Compounds Metals Analysis Total Characteristic Leaching Procedure EP Toxicity Total Petroleum Hydrocarbons Cyanide Polychlorinated Biphenyls Ignitability pH Radiation Asbestos Corrosivity Fecal Coliform

5. Field Tests

The utilization of field tests, at an environmental crime scene, will assist the environmental investigator in determining the investigation’s analytical needs. These field tests should be completely documented, indicating the type of test, equipment utilized, test results and the name of the individual conducting the test. The following is a partial listing of the various field tests which may be utilized at an environmental crime scene:

a. pH

This simple field test will help determine the presence of acids or caustics. In addition, if the environmental investigator suspects the presence of plating waste, a high pH may be indicative of the presence of cyanide.

b. L.E.L./O2

L.E.L. (Lower Explosive Limit) and O2 (Oxygen) meters are essential equipment at any environmental crime scene. The L.E.L. meter, when placed over a sampling point, will produce a scaled, positive reading if flammable substances are present in the air. A positive reading on this device may indicate to the environmental investigator that a sample should be collected and subjected to an ignitability test in the laboratory.

The O2 meter will indicate how much oxygen is present in the atmosphere. A lower then normal reading may indicate that an unknown substance has displaced the oxygen. This is especially useful in confined areas where the discharge of hazardous waste is suspected. It is also of critical importance to the safety of the sampling team and may dictate whether self-contained breathing apparatus will be required.

c. Radiological

a. Asbestos.

b. Phenols.

c. PCBs.

d. T.C.L.P.

e. Other.

5. Backup team requirements.

6. Decontamination requirements.

7. Gallon age measurements.

8. Communications.

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Upon completion of the briefing, and prior to the collection of chemical evidence, the crime-scene coordinator will re-examine the site to assure that all appropriate sample points have been designated.

6. Chemical Evidence Collection

During the sampling procedures the crime-scene coordinator, safety officer and science officer shall remain together. The crime-scene coordinator will note each sample point and volumes in the crime scene records and complete a crime scene sketch. The safety officer must give final approval for all activities conducted in any declared hot zone. At the completion of the chemical evidence collection, the sample team leader will maintain the chain-of-custody for all chemical evidence. The crime-scene coordinator is to insure that the evidence chain-of-custody is kept in accordance with standard evidence collection procedures.

7. Employee Identification

Investigators will attempt to identify as many employees as possible through personal interviews and the recording of employee license plate numbers. Names, addresses, dates of birth, job descriptions and length of employment are to be determined.

8. Site Clean-up

The crime-scene coordinator and safety officer will insure that all contaminated equipment and clothing is bagged and removed from the search warrant scene. He or she will also insure that all pools, tanks and drums have been properly resealed and/or covered.

9. Closing the Crime Scene

The crime-scene coordinator will receive, from the sample team leader, an inventory of all chemical evidence collected at the site. The crime-scene coordinator will issue a receipt for evidence removed (carbon copy made) to a representative of the facility. If no representative is available, the receipt shall be securely taped to an exterior door of the building. The crime-scene coordinator shall take custody of all film and photographs made during the execution of the search.

The crime-scene coordinator is to insure that all search-warrant team personnel are accounted for and have exited the search-warrant site. He or she is to note the time that the crime scene is closed. The crime-scene coordinator shall maintain this investigation through its conclusion.

APPENDIX III: CASE SCENARIO

1. Hazardous Waste Abandonment by Traffickers Scenario

A large trailer has been abandoned in an industrial area surrounding a large port city. The license plate on the trailer was removed prior to the trailer being abandoned in front of a business. After several days, the business owner decides to take a closer look at the trailer. Before looking inside, he notes that the exterior surfaces of the trailer had been stained with an unusually high amount of seagull dropping. When the business owner opens the unlocked doors, he can see that the trailer contains in excess of one hundred of 55-gallon drums. The drums are on pallets and are stacked double high. Many of the drums appear to be dented, rusted, and old.

The business owner notes that each drum has a different handwritten number that appears to have been made by a grease pen. He also notes that many of the drums have stickers on them and that the stickers contain various international symbols for flammable products, acids, and poisons.* An additional observation made by the business owner is that many of the drums have a series of stencilled numbers visible on the side surfaces of the drums. He also notes a heavy chemical odor in the air. The business owner spends approximately six minutes inside of the trailer. Upon exiting he notes that his throat is sore, his eyes are watering, and that he is experiencing nausea. The presence of the chemical drums, as well as his physical condition, concerns the local business owner and he immediately contacts the police.

A local police officer responds to the incident location and conducts a detailed interview of the local business owner. The local business owner’s symptoms begin to subside and he declines any medical treatment. The interview takes place in the street, and downwind from the trailer.

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At the conclusion of this interview, the police officer has several courses of action. The level of environmental crimes awareness training the individual police officer has received, however, will determine the course of action chosen.

An officer lacking any environmental crimes awareness training may repeat the actions taken by the local business owner. This police officer will also continue to conduct the interview in a downwind location from the trailer. This police officer may also include a personal examination of the contents of the trailer in order to confirm the observations made by the business owner. In taking these actions, the police officer risks possible chemical exposure from any acid fumes, cyanide vapours and/or volatizing organic chemical compounds present in, or leaking from, the interior of the trailer. Actions such as these may result in serious injury or death to the responding police officer.

A police officer with a limited amount of environmental crimes training will recognize the potential danger to the surrounding community that is associated with 55-gallon drums containing hazardous chemicals. This police officer will immediately move the interview to a location located upwind of the trailer. The police officer’s course of action will be to safeguard life within the immediate area (i.e. evacuation of nearby businesses) and to contact the local fire brigade or other emergency response authority.

A police officer with a high level of environmental crimes awareness training will also move the interview to a safer location, and make the appropriate notification to emergency response personnel. This police officer, however, will recognize this incident as something more than a public safety and health issue. In reviewing the statements of the local business owner and taking into account the fact that the trailer has been abandoned, this officer will recognize this event as a potential environmental crime and in doing so will classify the trailer, its contents, and surrounding area as a crime scene.

The advanced environmental crime awareness training that this police officer has received has made him (or her) aware for the need to protect any forensic evidence that may be present and for the need to protect the chemical evidence from inadvertent cross contamination by emergency responders. In the absence of any immediate threat of fire, explosion, or toxic release, the police officer will seal the crime scene until properly trained and equipped environmental crime investigators arrive.

When the environmental crime investigators arrive at the scene their first priority is to receive a briefing from the first responding police officer. The next step in the investigative process is to re-interview the local business owner. Overall crime scene photographs should be taken, from a distance, of the exterior of the trailer. An investigator should then be dispatched to interview any other potential witnesses from the surrounding neighbourhood area.

Once all witness data has been obtained, preparations must be made for a closer examination of the trailer (interior and exterior) and its hazardous contents. This examination will be conducted by two members of a hot zone forensic evidence collection team utilizing all necessary safety protocols. During this examination they will photograph the crime scene, sketch the crime scene, collect traditional evidence (i.e. fingerprints), note and record all markings and labels, and mark various 55-gallon drums for sampling. After this initial site investigation, a chemical evidence collection plan (i.e. sample plan) will be established. The chemical evidence collection team will then enter the trailer for the purposes of collecting the chemical evidence. At the conclusion of this evidence collection process, the chemical evidence samples will be labelled, sealed, and stored properly. At the conclusion of the evidence gathering operations, the crime scene will be closed. Criminal environmental investigative personnel will work with the proper authorities to insure that the hazardous contents of the trailer are properly disposed off.

A good source for these symbols is the UN/North American Emergency Guide book/disk published by the DOT.

2. Model Investigative Team and Techniques

The safe, effective, and proper investigation of this type of hazardous waste abandonment case requires the commitment of specially trained individuals. Multiple disciplines, from multiple agencies, may be required to conduct a successful criminal investigation. The crime scene investigation team should include, at a minimum, two environmental investigators, two individuals trained in obtaining chemical evidence samples, a crime scene safety officer, an emergency backup safety team, and a science officer. For safety reasons, the buddy system

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should be utilized whenever an approach to the hazardous waste is made (i.e. environmental investigators and sample team). The science officer position should be held by an individual with a strong chemical background (i.e. forensic chemist). This type of team formulation brings together the criminal analytical, sampling, safety, and science disciplines that are required to properly conduct this type of hazardous waste abandonment investigation.

A. Arrival Procedures

Upon arrival at the crime scene, the environmental investigator must locate the individual in charge and gather as much information as possible regarding the incident. This individual may be a fire chief, police officer, or a representative from a regulatory agency. The environmental investigator should obtain any information regarding the initial reporting of the incident, names of all possible witnesses, and a listing of those individuals (i.e. first responders) who may have had physical contact with the crime scene. These individuals may have inadvertently contaminated the crime scene and it may become necessary to obtain samples of these individuals’ footprints, fingerprints, and/or vehicle tire tracks. These samples can then be compared to any physical evidence left behind by the suspect(s).

The first-responders may have conducted initial field tests on the hazardous waste (i.e. pH, L.E.L, radiological). If any initial field-testing has been completed prior to the arrival of the environmental investigator, the results and methods must be obtained. The results of these initial field tests may help the environmental investigator determine the types of analysis that will eventually be needed to properly identify the chemical evidence. In addition, the environmental investigator must determine if the initial field-testing methods caused any possible cross-contamination of the chemical evidence.

The next step in the investigation of the abandoned trailer is to examine the exterior of the trailer very carefully. A careful examination of the trailer for fingerprints is essential. Close attention should be paid to natural gripping areas such as the exterior and interior door surfaces, roof and sides, electrical connection points, and tire rims. Any soil found in the treads of the tires should be collected as evidence. This may assist in determining where the trailer had been located prior to its abandonment. A search should be made for any vehicle identification number. If none can be located, the trailer’s manufacturer should be immediately contacted so that the exact location of the identification number can be made.

A safe and efficient method for the removal and examination of the chemical waste drums from the trailer must be established. There are several different techniques that may be utilized when off loading hazardous waste containers from a trailer. One technique involves the use of a dual loading bay and an empty trailer. By placing the empty trailer in the bay next to the trailer containing the hazardous waste, the environmental investigator will be able to examine and sample each container as it is brought out. A drum dolly or a specially fitted forklift may be used to remove the hazardous waste containers.

After examination and sampling for chemical evidence, the hazardous waste containers may be placed into the empty trailer. Another method is to remove the hazardous waste containers and place them in a secure hazardous waste storage area. The hazardous waste containers may be examined and sampled prior to being placed into the storage area. Regardless of the method used, it is essential that all safety protocols, including confined space protocols, be followed carefully. This type of operation will require the continuous air monitoring of the trailer’s interior atmosphere. The air should be monitored for any increase in the presence of volatile and semi-volatile chemical compounds, flammable gases, and oxygen depletion.

B. Equipment Preparation

The type and scope of the chemical hazard(s) will dictate the equipment requirements for the crime scene investigation team. However, there are many basic forensic investigative tools that will be used at most environmental crime scenes. It is essential that this equipment be properly inventoried and tested prior to entry into the trailer. This should include a complete battery change for all portable electronic equipment including field-test devices, cameras, camera flash units, video cameras, and communications equipment. Field-testing devices should be calibrated and tested prior to entry into the trailer. All safety equipment should be examined carefully. If respirators are going to be used the cartridges should be new and designed for respiratory protection based upon the hazard present. If self contained breathing apparatus (SCBA) is to be used, all air tanks should be completely filled. There should be enough safety and sampling gloves available to allow for a three-layer system. This will allow for the outer layer to be changed after handling contaminated evidence inside of the trailer. The crime scene investigation team must make every effort not to the spread contamination or cross

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contaminate items and areas. This type of cross contamination may skew future analytical results and will affect the overall quality of the chemical evidence collection and analytical process.

Each individual piece of equipment should be laid out onto a large tarp. This will assist in protecting the equipment from dirt and ground moisture. These preparation procedures are essential due to the simple fact that a nonfunctional or missing piece of equipment will have to be replaced. This will, in all likelihood, require the entire crime scene investigation team to exit the trailer and receive a full decontamination. This type of poor planning and preparation costs time, energy and valuable resources.

Sampling placards may be pre-numbered prior to the entry into the trailer. Extra blank placards may be taken into the trailer, however a permanent marker should not be used in the presence of chemical evidence. This is due to the chemical makeup of permanent marking pens. Many of these marking instruments contain volatile organic compounds (i.e. 2-ethoxyethanol: CAS# 110-80-5, 2-methoxyethano: CAS#109-86-4) which may, inadvertently, act as an interferent during the sampling and analytical process.

The crime scene investigation team must locate, placard (label), and photograph each 55-gallon drum. The sampling placard, containing the sample number, should be affixed to each drum chosen for sampling. There are many different items available that can be used to secure the placards in place. These include tape, magnets, and suction cup devices. The simple act of securing the sample placards in their positions can become a difficult, time consuming, and frustrating task when faced with a stiff draft or greasy surface. The placing and securing of these placards at each sample point will assist the sample team in locating the exact location of each sample point.

C. Trailer Entry

The main tasks of the crime scene investigation team are to identify and collect traditional evidence and the placarding of those containers that are to be sampled. The actual amount of containers that will be sampled will depend upon a number of factors. However, two of the main concerns will be budgetary limitations and statutory requirements. The crime scene investigation team should not enter the trailer until all equipment and safety protocols have been satisfied. A safety backup team should be standing by to assist them in case of an emergency.

Once inside the trailer, a communications check should be made. The crime scene investigation team should have direct radio communication with each other and any safety personnel. A large impervious tarp should be spread out on a flat surface area near the entrance to the trailer. This will serve as a temporary equipment storage area for the crime scene equipment that will be used during the course of the environmental investigation. Immediately following this, the environmental investigators must conduct a complete radiological survey of the entire crime scene. The survey instrument must be capable, at a minimum, of detecting alpha, beta, and gamma radiation. The radiological survey should begin outside of the open trailer door, with continuous readings being made up to the surface areas of the chemical drums or to the point at which a 2mr (Millirem) reading is obtained. Each drum should be opened and survey probe should then be placed near or at the opening of each container. The reason for this is that alpha and beta particles may be shielded from detection by the container’s composition. A simple mailing envelope will shield alpha particles and a metal container may shield beta particles. The drum should be resealed prior to the opening of another drum for examination. The survey instrument’s readings, including negative readings, must be recorded and maintained. It is an acceptable practice to transmit this type of information to another individual located outside of the contaminated area. He or she can then make the appropriate entries into the crime scene records thereby reducing the amount of tasks required by the crime scene investigation team.

An L.E.L./O2 reading should also be conducted within the confines of the trailer. This will determine if any potentially flammable gases are present. As with the radiological readings, the probe or sensor unit on the L.E.L. meter should be placed at or near the opening of any suspected containers. An oxygen (O2) measurement should be conducted immediately after the L.E.L. reading. The O2 meter should be kept on at all times and the automatic audible alarms should be set for both high and low readings. A high oxygen reading (>21%) may pose a significant fire hazard. A low oxygen reading may be an indication that an unknown chemical substance has displaced the oxygen. The results of the initial L.E.L./O2 monitoring event, including any negative results, should be recorded in the crime scene record.

The next step in the investigative process is to obtain overall photographs and videotape footage of the trailer crime scene. The photographs and videotapes will depict the crime scene as it was when entered by the crime

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scene investigation team. They will not, in all likelihood, depict an undisturbed crime scene. This is due to the fact that emergency response personnel may have previously entered into the crime scene. The purpose of still photography and videotaping is to record the crime scene and any evidence it may contain. It is not done to record the activities of a crime scene investigation team or sample team. Under no circumstances should the actions of these groups be recorded on film. The written record contained within the crime scene notes should accurately recreate the actions of the crime scene investigation team and sample teams.

At this point in the environmental investigation, traditional evidence should be searched for, photographed, and collected. This may include footprints, fingerprints, trash, and any other item determined to be of evidentiary value. If footprints are found within the trailer, it may be difficult to differentiate between those that may have been made by a suspect and those that may have been created my emergency responders. One method of dealing with this issue is to identify the emergency responders who had previously entered the trailer. Investigative law enforcement personnel should make every effort to locate these emergency responders before they leave the scene. Footprint impressions of their footwear should be taken and photographed. They can later be compared to all footprint evidence found near and/or inside the trailer. Should it be decided that footprint or tire track castings are to be taken, every effort must be made to protect these items from the elements and accidental destruction.

Each 55-gallon drum should be examined for metal stress. A visual inspection may indicate that the top and/or sides of the container are swollen. This is indicative of a chemical reaction occurring inside of the container. The build up of internal gasses will normally force an expansion of the top and/or sides of a metal drum. This type of container is extremely dangerous and remote opening options should be explored. A metal container which indicates an expansion on the top and bottom areas is indicative of a prior freezing of the containers contents. This observation may be very valuable in determining the history of these types of containers.

Locating and lifting fingerprints while wearing the required safety equipment can be an extremely difficult task. This is especially true when wearing level “A” protective equipment. Due to the reduced visibility and dexterity associated with the wearing of PPE, there is a very good chance that the fingerprint(s) may be destroyed during the lifting process. It is essential that any fingerprints found within the trailer be photographed with a 1 to 1 camera prior to their removal. The collection of fingerprint evidence is just one of the many disciplines involved with environmental forensics that must be continually practiced by investigative law enforcement personnel.

Other forms of traditional evidence, such as soda cans, empty cigarette packs, or documentation may be contaminated from spills or leaks inside of the trailer. These items should be photographed and placed into a 3-layer evidence containment system. The crime scene sketch should clearly indicate where each of the items were found. There are specific surface areas on 55-gallon drums that are normally used for gripping, lifting, and moving (i.e. near top and bottom rims). These areas must be searched thoroughly for fingerprints. Each container should also be searched for any numbers that may identify the container’s manufacturer. This information, along with any other labels or markings, may be critical to the investigation and must be recorded into the crime scene record and photographed. If a legible label is found it should be removed and placed into an evidence bag. Most labels are affixed to the container with some type of glue. Applying heat to the label may soften the glue thereby making the label easier to remove. Heat may be applied through the use of an intrinsically safe, portable hair dryer. However, this technique should not be used if the chemical evidence inside of the containers is thermal reactive or if the chemicals are producing flammable vapours. The location of the removed labels and any container manufacturer information should be placed onto a sketch of the container. Each 55-gallon drum should be lifted and tilted so that their undersides examined for possible physical evidence.

Hazardous chemical waste that is packaged in 55-gallon containers will normally have one or two small entry ports on the top of the container. This is commonly referred to as a bunghole. Some of these containers may also have lids that are completely removable. Should a chemical waste container have a lid design such as this, the lid should be removed and the interior of the container searched for physical evidence. The search must include any areas below any existing liquid surface. This type of search can be accomplished through the use of a probe. However, the probe may only be used on one container and must not be reused. The reuse of such an item will cause a cross contamination of the chemical evidence. The crime scene investigation team can visually examine the chemical waste in these types of containers. This can be accomplished through the use of a composite liquid waste sampling tube (i.e. coliwasa tube). This device will allow for a visual inspection of the chemical layering that may occur in these types of containers. The results of this visual inspection should be recorded into the crime scene record and should be discussed with the sample team.

In addition to the visual examination of the actual chemical waste, two other methods should be employed to help in determining which containers should be sampled. An examination of any hazard labels (i.e. flammable,

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corrosive, etc) may assist in determining the characteristics of the chemical waste. However, a label such as this is indicative of the type of chemical that was originally in the container and may not have any bearing on the type of chemical that is currently present. To better characterize the chemical waste, field-testing instruments may be used.

D. Field Testing

General or non-substance specific detection equipment may be very useful to the environmental investigator. These instruments can assist in evaluating the degree of hazard associated with the working environment and may assist in determining which containers should be placarded for chemical sampling.

A simple pH field test will help determine the presence of acids or caustics. This is vital information for both the sample team and analytical personnel. An extremely high or low pH will make the evidence collection process more difficult and time consuming. Hazardous waste with a high or low pH can affect the sampling technique, safety equipment degradation rates and breakthrough times, sampling containers, and sampling tools. It is also a useful tool in the locating of sample points. Any liquid with a pH reading outside of a normal range (i.e. 6.5 – 8.5) should be deemed suspicious and marked as a sample point by the crime scene investigation team. Environmental investigators should also be cognizant of the fact that laboratory personnel will require this information prior to the loading of these samples into sensitive analytical equipment.

The pH readings can be obtained by using simple pH strips or the readings can be taken electronically through the use of a portable pH meter. The pH strips may be difficult to handle and read while conducting an environmental investigation. This may be due to reduced visibility and dexterity caused by the wearing of required safety equipment. Attaching the pH strips to the sleeve of a protective garment can solve some handling problems. However, this method should not be used if there is a suspected airborne volatilization of the chemical waste. Prior exposure to this type of airborne contamination may affect the accuracy of the strips reading. Used strips should not be saved and should be placed into the crime scene’s hazardous waste stream.

Normally, the pH strips will fade and change colour over time. This fading and colour change will make future readings of the contaminated strips virtually impossible thereby producing little or no future evidentiary value. However, a recording of the reading must be made and maintained in the crime scene records. Normally, the portable pH meter is easy to operate and will produce a more accurate reading then the pH strips. If a portable pH meter is going to be used, it must be properly charged and calibrated prior to the entry into the crime scene. In addition, a record should be maintained as to the name of the individual completing the calibration, the calibration method, and the date and time it was completed.

L.E.L. (lower explosive limit) and O2 (oxygen) meters are essential equipment at any hazardous waste abandonment crime scene. The L.E.L. meter is also known as a combustible gas indicator and produces its findings in real time. It is designed to detect explosive levels of combustible gases that are present in a specific area. Because these instruments are used in potentially explosive atmospheres, they must be certified as intrinsically safe. Investigative law enforcement personnel should insure that the meter is calibrated and tested immediately prior to use. A complete record of this procedure must be maintained. The meter may be tested by introducing a combustible gas (i.e. unlit butane lighter) to the sensor. This test must be conducted in a safe area and away from the hazardous waste. Although these types of instruments cannot identify a specific compound present, they will alert the environmental investigator to the presence of an unknown substance that is producing a combustible vapour. However, caution must be exhibited in interpreting the detection instrument’s results. Any combustible vapour will be detected. This includes many common household products such as nail polish remover, rubbing alcohol, and certain alcoholic beverages.

The instrument should be placed over a suspected chemical waste and held there for several seconds. The readings on this instrument are scaled and even an extremely low reading is an indication of possible chemical volatization taking place. A positive reading of this type may indicate to the crime scene investigation team that the liquid hazardous waste that is being examined should be placarded as a sample point. The results of these types of readings must be recorded and reported to the sample team. The sample team may determine that, in addition to standard analytical methods, the sample should be subjected to an ignitability test in the laboratory. In addition to the above, a positive L.E.L. reading is a safety concern and will have a definitive impact on safety protocols, sampling methodology, and sampling tool selection.

Many of these instruments depend on the presence of oxygen to function properly. They are normally calibrated within a standard atmosphere. Therefore, the level of oxygen present in the sample area may have a profound

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effect upon the instrument’s readings. If the oxygen level within the sample area is too low to support combustion, a negative reading may be obtained. Elevated oxygen levels may also affect the instrument’s reading. In addition, should high concentrations of a combustible gas displace the available oxygen, the instrument may become overloaded causing the meter to peg at the highest reading and then return to zero. Clearly, caution must be exhibited by investigative law enforcement personnel when attempting to rely upon the results produced from this type of instrument.

The O2 meter will indicate how much oxygen is present in the atmosphere. A lower then normal reading may indicate that an unknown substance has displaced the oxygen. This type of reading is more common in interior building areas, cargo areas, and other confined space areas. The displacement of the oxygen near the opening of a hazardous waste container should be of particular interest to the crime scene investigation team. This is a forensic indication that there is an unknown chemical substance present. A higher than normal oxygen reading should be considered a fire hazarded and must be acted upon accordingly. Due to these concerns, it may be the best policy to have continuous L.E.L./ O2 reading conducted throughout the crime scene investigation process.

The flame ionization detector (FID) is an excellent instrument for determining chemical sample point locations. It can detect organic chemical compounds in the air, soil, and liquids. The FID is essentially a stainless steel burner in which hydrogen is mixed with the incoming sample in the base of the unit; combustion air or oxygen is fed in and diffused around the jet through which the hydrogen gas mixture flows to the cathode tip where ignition occurs. This device has been in use by law enforcement for many years. It is commonly used in arson cases to locate chemical accelerants. The instrument does require a warm-up period that can take several minutes. It is also sensitive to background hydrocarbons such as vehicle exhausts. When using this instrument to screen an unknown liquid as a possible chemical sampling point, every effort must be made not to let the instrument come into direct contact with the suspected material. If a liquid is drawn into the probe, the instrument will not function properly. Most FIDs will give a digital readout in the parts-per-million (ppm) range. This instrument can be described as an electronic bloodhound and has the ability to backtrack certain hydrocarbons and chlorinated hydrocarbons to their concentrated point-of-origin. This may be extremely useful to the environmental investigator when attempting to locate a concentrated chemical sample point. When searching for possible sampling points the instrument should be held over the suspect area for several seconds. If a digital reading occurs, the instrument should be moved away from the suspected area and allowed to stabilize. The suspected area should then be checked again. If the second screening again produces a positive reading, the area should be placarded for sampling, photographed, and its location noted on the crime scene sketch.

The photo-ionization device (PID) is also known as the total ionizables present monitor. Most organic compounds and some inorganic compounds can be ionized when they are subjected to ultraviolet (UV) light. The PID converts the concentration of ionizable chemicals in a sample to an electric signal. The amount of current produced is proportional to the amount of organic compound present. The detection limit on this instrument is in the low ppm range. The PID is very sensitive to aromatic compounds, some chlorinated compounds and a limited amount of inorganic compounds such as nitric oxide and ammonia. High humidity may affect the PID by slowing down its response times. When using this instrument to locate potential sample points it should be held close to, but not touching, the suspected area. The instrument should be then moved away from the potential sample point and allowed to read the ambient air. Once the instrument has “zeroed” it should again be placed over the sample area. If a second reading is obtained, the sample point should be placarded, photographed, and its location noted on the crime scene sketch.

E. Post Site Investigation Briefing

After the crime scene investigation team has collected all of the existing traditional evidence, placarded the appropriate containers for sampling, and photographed the entire crime scene, they should exit the crime scene area and proceed to the decontamination area. When working with a limited air supply (i.e. SCBA), the environmental investigators may find that several entries into the crime scene may be required to complete all of the above describe investigative tasks. Investigative law enforcement personnel must avoid any policy that allows a single team to complete the traditional evidence collection and collect chemical evidence samples. The multitude of investigative tasks, the complexity of sampling, and the inherent hazards associated with hazardous chemical evidence collection activities clearly makes this a poor policy.

After completing the appropriate decontamination protocol, the crime scene investigation team should reconfirm that all evidence that has been removed from the crime scene has been properly labelled and secured. This must include any sketches, film, digital media, and/or video recordings. At the completion of these activities, the crime scene investigation team should conduct a post search briefing.

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The post search briefing is a crucial element of the crime scene investigation. The safety officer, science officer, safety team, and the sample team should attend the briefing. This will allow the entire investigative law enforcement team to be brought together in an effort to establish specific team assignments and to prepare a plan of action that will insure that the chemical evidence is collected in a safe, efficient, a legally acceptable manner.

The post search briefing will provide the opportunity for the crime scene investigation team to relay to the others their observations and actions that were taken during the initial search. In support of this effort, each member of the team must be given an opportunity to review any sketches, photographs, and/or videotapes. They must also be provided with data from any field-tests results.

The information obtained during the post search briefing will assist the safety officer in establishing the appropriate safety plan that should be established before the sample team can begin the sampling operation. The safety plan must address such issues as emergency evacuation procedures, emergency medical care, communications, PPE requirements, allowable working times, specialized safety equipment (i.e. confined space), expected weather conditions, and decontamination requirements. The post search briefing will also serve to establish the sample team. This should include the identification of the lead sampler and the assistant sampler. Additionally, the sample team must be advised as to the location and description (i.e. location, matrix, volume, etc.) of each sample point so that the appropriate sample plan can be created. The review of the information obtained during the initial crime scene investigation, when combined with the safety and sample plans, will form the basis of the operations plan that will be utilized during the next critical stage of the crime scene investigation.

F. Sample Plan

The sampling plan should be established based upon the current and expected environmental conditions (i.e. weather) and the type of substance to be sampled (i.e. liquid chemical waste). Other factors, such as safety equipment degradation and permeation rates, sample point location, and expected lighting conditions must be considered when prioritization the sample collection order. When ever possible, the most difficult samples should be scheduled to be collected first. Samples such as these may require the wearing of level “A” protective suits or require the use of remote sampling devices due to the suspected toxicity and/or reactivity of the chemical waste.

The sample plan must also address the various types of sampling tools, sampling media, and sampling containers that are going to be utilized during the chemical forensic evidence collection process. The proper preparation and selection of these items is critical.

In most instances, sampling equipment will have been sterilized, sealed, and stored in response vehicles prior to any response to an environmental crime scene. It is essential that a record be maintained as to the equipment preparation protocol.

Careful attention must be given to the selection of the sampling equipment. Choosing the wrong item for a sampling task will have a major impact upon the quality and reliability of any future chemical forensic analysis. This is especially true when choosing sampling containers. Should the chemical waste sampled (i.e. volatile and semi volatile compounds) be placed into a plastic sampling container, there exists the possibility of a chemical reaction between the sample and the hydrocarbons within the plastic.

The sampling plan must address the issue of sample documentation. Proper sample sheets must be prepared and maintained throughout the course of the sampling event. These sample sheets will also travel with the samples throughout the analytical process. When triple sample containment is utilized for packaging and transportation purposes, the sample sheets may be placed between the second and third containment barriers. The sample sheets must contain at a minimum, the sample number (must match sampling placard) date, time, ambient temperature, location of the sample, description of the sample (i.e. matrix, colour, and volume), sampling equipment and media used, and the names of the lead and assistant samplers. The sample sheets may also contain chain-of-custody information. The sample plan must also assign responsibility for record keeping. This should include the proper labelling of all sample containers. The sample plan must also address the procedures that will be used for sample container labelling. Sample container labelling should be completed prior to the entry into the crime scene. A sampling container label should contain the sample number, date, and name of the lead sampler. Caution should be exhibited when labelling sampling containers to be used in cases involving chemical waste products. In cases such as these, permanent markers should not be used. As stated earlier, permanent markers are

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known to contain the various volatile organic compounds (VOCs). Exposing a chemical sampling container to VOCs may impact upon the analytical process and jeopardize the integrity of the chemical evidence.

Other items that must be addressed in the sampling plan are the preparation and use of trip blanks (field blanks) and equipment blanks. The trip blank is required to prove that no outside contamination has affected the chemical evidence. The types and amount of trip blanks will depend upon the type of substance being sampled, its matrix, and the amount of samples expected to be collected. The trip blanks should be prepared outside of the crime scene and there should be at least 2 trip blank prepared for each 10 samples expected to be collected. The trip blanks should be labelled as samples and should accompany the sampling containers into the crime scene. Separate sample sheets should be prepared for each trip blank. When triple sample containment is used, the sample sheets may be placed between the second and third containment barriers.

The use of equipment blanks may become necessary during the course of the chemical evidence collection process. It may become necessary to “reuse” a contaminated sampling tool during the evidence collection process. Should this situation occur, the sampling plan should provide the necessary procedure for this type of activity. In most cases, the contaminated item should be cleaned and rinsed several times. At the end of this cleaning process, distilled water will be run over the sampling item. This liquid rinse should then be collected as an equipment blank. This sample should be labelled and sealed in the same manner as the above-described samples. An analysis of the equipment blank will prove that the reused sampling item was free of contamination at the time of its use.

The sample plan must also consider such items as waste management, sample carrying trays, and the non-reusable surface barriers (i.e. impervious black plastic sheet) that must be unitized to protect the sampling equipment from ground and surface contamination. The plan must also address chemical evidence preservation.

The sampling plan should also include the maintaining of a sample log. This log should be maintained throughout the sampling event. The heading in the sample log must indicate the exact crime scene location, the current date, weather conditions, and names of the designated lead and assistant samplers. Each hazardous waste drum sampled and any supporting information must be recorded. The supporting information must include the time of day (for each sample), field test data, descriptions of sampling equipment used, descriptions of sample containers used, description of each 55-gallon drum, and potential analytical parameters.

The sampling plan been should be thoroughly reviewed by the entire crime scene investigation team. Once this has been completed the sampling team may begin to prepare themselves for the crime scene entry. With the proper safety and sampling protocols in place, the sampling team may begin the processes of chemical evidence collection.

G. Sampling Liquid Hazardous Waste

As the sample team approaches the hazardous waste containers to be sampled they should first look for the sampling placard posted by the crime scene investigation team. This will help insure that that the correct container(s) will be sampled. An impervious barrier (i.e. tarp) should be spread out near the sample point. It should not be located in such an area that will require any member of the sample team to step on it during the sampling event. The tarp should not be reused at any subsequent sample point. The sampling tools and containers that are going to be used at this sample point should be removed from their carry trays and placed onto the imperious barrier. The sampling equipment that will be required for this type of sampling event should include a bung wrench, paper towels, blunt end scissors, waste bag, wooden yard stick, brightly coloured push pins, extra sampling gloves, a sterilized and sealed drum thief or coliwasa tube, a sealed trip blank, sturdy evidence containment bags, an ink pen, non-sparking clip board, sample sheets, sterilized sample containers, and evidence seals. The sample containers should be made of borosilicate glass and have a wide-mouth opening and may range in size from 40ml to 250ml. The coliwasa tube or drum thief may be constructed of Teflon or glass. The body of this type of sampling device must be translucent. This will allow the sample team to visually inspect the sampled material and to note any immiscible layers.

Once the sampling equipment has been laid out in an orderly fashion, the sampling operation may begin. The first step is to gently and slowly loosen the bung plug. Under no circumstances should the face of the lead or assistant sampler be placed over or near the bunghole. During this container opening process, there is the possibility of the release of highly concentrated and potentially harmful vapours that may have formed over the liquid’s surface. This high-pressure release has the potential for severally contaminating the facemask and protective clothing worn by the sample team. Once the bung plug has been removed, it should be left on the

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surface of the container until the completion of the sampling event. The lead and assistant sampler should then remove new sampling gloves from their sealed container and place them over their outer chemical resistant gloves. With these freshly gloved hands, the sample team may now begin to handle the sampling equipment. The coliwasa tube or drum thief should be removed from its sealed packaging. The blunt end scissors may be used for this purpose.

When using a coliwasa tube, the interior stopper should be in the open position as it is slowly inserted into the drum by the lead sampler. When a drum thief is used, the lead samplers thumb should be kept away from the top of the tube as the tube is slowly inserted into the drum. This slow insertion will allow the chemical(s) being sampled to slowly fill the tube in its original stratified position with the least amount of disturbance and mixing. The stratification or layering of chemicals is a common phenomenon associated with 55-gallon drums of hazardous waste. This effect can be caused by product degradation, the settling of the chemicals, or the presence of chemicals with different specific gravities. Each chemical layer is a separate piece of chemical forensic evidence that must be collected and analysed properly. Once the stratified sample has filled the tube, it should be withdrawn from the drum. For coliwasa tubes, the interior stoppers should be in the closed position during withdrawal. When using a drum thief, the lead sampler’s thumb should be placed over the tube’s opening. The assistant sampler should open a sterilized sample container and hold it, with both hands, over the drum. The lead sampler should place the tip of the tube all the way into the sample container. The chemical sample should then be slowly released into the sample container. This will diminish the possibility of a back splash that may cause the assistant samplers gloves to become contaminated with a concentrated chemical waste product. This method will also reduce the amount of trace volatile organic compounds (VOC) that may be driven off.

As a general rule, at least two 40mls evidence samples should be collected from each 55-gallon drum. Each sample container should be filled to the top and there should be no existing headspace (i.e. air pocket) in the sample container. Once the sample container has been filled to its proper level, the assistant should screw on a Teflon lined silica septa lid. This sample should not be placed near or next to any unused sampling equipment. Bulk liquid sampling can be a messy process and there will be, in all likelihood, some contamination present on the exterior of the sample container. The entire process should then be repeated so that a duplicate sample may be obtained. The duplicate sample is an evidence safeguard. Should one of the samples containers rupture or break during the sampling, transportation, or analytical process; an additional sample will be available for analysis.

Once the samples at a particular hazardous waste container have been collected, the sample containers should be sealed using some form of gummed evidence seal. The seal should be placed all the way around the sample container lid. Under no circumstances should the evidence seal be placed over the septa.

At the completion of the chemical evidence sealing process, each sample container should be placed into a sealable plastic bag. This plastic bag is considered the second level of containment. This plastic bag and the completed sample sheet should then be placed into another sealable plastic bag. This type of packaging will create three layers of containment thereby further protecting the chemical evidence and offers additional protection for those individuals who will be transporting the hazardous chemical evidence. The trip blank should be sealed and packaged in the same manner as described above. The sealed chemical evidence should not be placed into the same carry tray as any unused sampling equipment. A separate carry tray or cooler should be used.

When sampling hazardous waste containers, it is essential for the sample team to determine how much liquid volume is actually present. Notes and/or observations that simply state that a container was half full are insufficient for a criminal investigation and prosecution. These accurate liquid volume measurements must be made after the completion of the sampling event. The crime scene notes should reflect the measurement data and the name of the sample team member making the measurements.

To determine the volume of a 55-gallon drum or other container, the height of the liquid and the internal radius of the container must be obtained. To measure the height of liquid, a disposable wooden measuring stick should be inserted into the container until it reaches the bottom. The following mathematical formula can be used to determine the volume of liquid chemical present in various sized containers: Volume = ( ) x (radius) 2 x ( height) . This formula, depending upon the size of the container, will provide a volume in cubic feet or cubic inches. To convert this information into gallons, the following mathematical conversions can be used: 0.13368 ft. 3 = 1 gallon or 231 in. 3 = 1 gallon . When attempting to determine a 55-gallon drum measurement, the height of liquid may also be compared to a standard 55-gallon drum chart. This chart converts known inches of liquid, in a 55-gallon drum, into gallons.

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When the wooden measuring stick is withdrawn from the container, a brightly coloured pin should be inserted into the stick at the appropriate inch/liquid level mark. This data should then be recorded into the crime scene notes. The measuring stick should be placed next to the sampling placard and photographed.

H. Chemical Evidence: Preservation and Storage

The chemical evidence should be photographed at the completion of the labelling and sealing process. These photographs may be taken with the seized sample(s) next to the drum from which it was removed. However, in order to cut down on possible personnel exposure time, the photographs of the samples may be taken once the evidence has been removed from the crime scene.

In order to maintain the integrity of the chemical evidence, a proper chain-of-custody must exist. The chain-of-custody should be traceable through documentation. The documentation should indicate who had custody of the chemical evidence from the time it was collected all the way through the analytical process. The signature of each individual taking custody of the evidence should appear on the documentation. The crime scene investigation team’s responsibility for evidence integrity does not end with the shipping of the chemical evidence to a laboratory. The laboratory should be contacted and their chain-of-custody procedures reviewed prior to the shipment of any chemical evidence.

Most chemical evidence is best preserved by refrigerating the samples at 4C. However, individual analytical methodologies should be consulted directly for holding times and preservation requirements for individual chemical compounds. The refrigeration unit should be secured in such a way as to prevent it from being damaged during transportation. The chemical evidence should be delivered to the laboratory for analysis as soon as practicable.

I. Chemical Evidence Transportation

The environmental investigator must examine the hazardous materials transportation requirements for his or her individual country. In most instances, hazardous waste chemical samples will fall under the legal designation of a hazardous material. The international shipment of these types of materials is governed by several different entities. Air transport shipments of hazardous evidence are regulated by either the International Civil Aviation Organization’s (ICAO) Technical Instructions for the Safe Transportation of Dangerous Goods by Air or the International Air Transport Association (IATA). Maritime shipment of hazardous evidence is regulated by the International Maritime Organization’s International Maritime Dangerous Goods (IMDG) code. It is the responsibility of the environmental investigator to insure that any chemical evidence that is shipped meets all national and international hazardous material transportation requirements.

J. Post Crime Scene Investigation

The post crime scene investigation of this abandoned trainer will begin with a focus in four specific areas. These areas include an examination of witness statements, tracing of the trailer, the analysis traditional evidence, and the examination of the chemical analytical reports.

Each witness should be interviewed at least twice and their statements should be fully examined for any additional investigative leads. Traditional law enforcement techniques should be used in an attempt to trace the trailer to the point of its original ownership and prior location. Traditional evidence such as fingerprints, trash, labels, and markings on the 55-gallon drums should also be reviewed for additional investigative leads. The handwritten sequential number system found on these drums is critical to this investigation due to the fact that it is indicative of a prior environmental inventory and survey. Normally, when hazardous waste containers are marked in this fashion, it is an indication that the material had been previously sampled and analysed. This may provide the key criminal elements of knowledge and motive. The possibility of “knowledge” on the part of the suspect is based upon the probable existence of analytical reports that indicate the hazardous nature of the chemical waste. The “motive” (i.e. financial) is based upon the probable estimated cost, to the suspect, for the proper disposal of this form of hazardous waste.

Finally, the chemical analytical reports should be reviewed carefully. These will assist the environmental investigator in determining the type of industry that generated this hazardous chemical waste. Each type of manufacturing process (i.e. circuit boards, printing operations, plating operations, clandestine narcotics manufacture) utilizes different raw hazardous materials in their manufacturing process. By examining the

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analytical reports, a determination can be made regarding the type of industry that generated this hazardous waste.

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