Ron Hester is an emeritus professor of chemistry at the University of York. In addition to his research work on a wide range of applications of vibrational spectroscopy, he has been actively involved in environmental chemistry and was a founder member of the Royal Society of Chemistry’s Environment Group. His current activities are mainly as an editor and as an external examiner and assessor on courses, individual promotions, and departmental/subject area evaluations both in the UK and abroad.

Roy Harrison OBE is Queen Elizabeth II Birmingham Centenary Professor of Environmental Health at the University of Birmingham. In 2004 he was appointed OBE for services to environmental science. Professor Harrison’s research interests lie in the field of environment and human health. His main specialism is in air pollution, from emissions through atmospheric chemical and physical transformations to exposure and effects on human health. Much of this work is designed to inform the development of policy.

Environmental Forensics

By R. E. Hester, R. M. Harrison

The Royal Society of Chemistry

Copyright © 2008 Royal Society of Chemistry
All rights reserved.
ISBN: 978-0-85404-957-8

Contents

Environmental Forensics and the Importance of Source Identification Stephen M. Mudge,
Microbial Techniques for Environmental Forensics Andrew S. Ball, Jules N. Pretty and Rakhi Mahmud,
Spatial Considerations of Stable Isotope Analyses in Environmental Forensics James R. Ehleringer, Thure E. Cerling, Jason B. West, David W. Podlesak, Lesley A. Chesson and Gabriel J. Bowen,
Diagnostic Compounds for Fingerprinting Petroleum in the Environment Scott A. Stout and Zhendi Wang,
Perchlorate – Is Nature the Main Manufacturer? Ioana G. Petrisor and James T. Wells,
Tracking Chlorinated Solvents in the Environment Ioana G. Petrisor and James T. Wells,
Groundwater Pollution: The Emerging Role of Environmental Forensics Stanley Feenstra and Michael O. Rivett,
Subject Index, 173,

CHAPTER 1

Environmental Forensics and the Importance of Source Identification

STEPHEN M. MUDGE

1 Introduction

The scientific community has been taking samples and identifying the source of the materials in those samples for many years – this is the basis of all environmental forensics, the identification and source apportionment of compounds in environmental samples. What is different, however, is that with source apportionments comes blame, and blame these days means costs.

Environmental forensics could be summarized as an investigation of what is in the environment, where it has come from and using that data to prosecute those who have contravened particular laws. There are other aspects to environmental forensics which include data mining and prediction to understand better what is going on, helping industries at the design stage to ensure they comply with relevant legislation and simply reconstructing environmental histories – who did what, when and where?

2 The Legislative Framework for Environmental Forensics

One of the key aspects of environmental forensics is the bringing together of data in order to have a successful prosecution. There are many debates as to what prosecutions are for (deterrent, punishment, revenge, etc.), but they are beyond the scope of this chapter; however, there is a considerable framework in law to enable either the State or individuals to seek redress with regard to contamination or injury due to damage to the environment.

2.1.1 National Legislation

2.1.2 UK. Most of the recent legislation protecting the environment in the UK has been derived from European Directives, which are discussed later. However, prior to 1995, there were several key pieces of legislation that have formed the basis of many prosecutions by the State through the Environment Agency or the National Rivers Authority, its precursor. The Environment Act 1995 brought the United Kingdom Environment Agency and Scottish Environment Protection Agency (SEPA) into being and outlined the requirements of a range of bodies with regard to contaminated land and abandoned mines to enhance some aspects of pollution control.

The majority of actions against environmental crimes in the UK appear to be under this Act or the Water Resources Act 1991. In this Act, there are several sections concerned with management of water resources, but a key section with regard to environmental forensics is Section 85, Offences of Polluting Controlled Waters. The subsections of this Act are the most frequently cited offences in environmental cases (N. Evans, personal communication).

(1) A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters.

(2) A person contravenes this section if he causes or knowingly permits any matter, other than trade effluent or sewage effluent, to enter controlled waters by being discharged from a drain or sewer in contravention of a prohibition imposed under section 86 below.

(3) A person contravenes this section if he causes or knowingly permits any trade effluent or sewage effluent to be discharged –

(a) into any controlled waters; or

(b) from land in England and Wales, through a pipe, into the sea outside the seaward limits of controlled waters.

(4) A person contravenes this section if he causes or knowingly permits any trade effluent or sewage effluent to be discharged, in contravention of any prohibition imposed under section 86 below, from a building or from any fixed plant –

(a) on to or into any land; or

(b) into any waters of a lake or pond which are not inland freshwaters.

(5) A person contravenes this section if he causes or knowingly permits any matter whatever to enter any inland freshwaters so as to tend (either directly or in combination with other matter which he or another person causes or permits to enter those waters) to impede the proper flow of the waters in a manner leading or likely to lead, to a substantial aggravation of –

(a) pollution due to other causes; or

(b) the consequences of such pollution.

(6) Subject to the following provisions of this Chapter, a person who contravenes this section or the conditions of any consent given under this Chapter for the purposes of this section shall be guilty of an offence and liable –

(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20 000 or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

Section 85(1) of the Water Resources Act 1991 provides the over-arching legislative power to bring a criminal prosecution against individuals or companies if they allow ‘poisonous, noxious or polluting matter’ to enter controlled waters. To bring such a prosecution, however, it would be necessary to demonstrate ‘beyond all reasonable doubt’ that a discharge had been made by a person or company to controlled waters. Notwithstanding the considerable amount of case law that has developed regarding the meaning of individual words in this section of the Act, the science required to bring a successful case must unambiguously identify the source of the contamination and also make estimates of the amount discharged to demonstrate that it exceeded an authorization to discharge.

There are other UK Acts that are used in environmental prosecutions, including the Water Industry Act 1991. Much of this Act is to do with the supply of water and provision of sewerage services, although Section 111 sets out the restrictions on the use of public sewers and specifically forbids the discharge to public sewers of items that may lead to failure of the treatment processes or lead to unauthorized discharges from the sewage treatment works.

(1) Subject to the provisions of Chapter III of this Part, no person shall throw, empty or turn or suffer or permit to be thrown or emptied or to pass, into any public sewer or into any drain or sewer communicating with a public sewer –

(a) any matter likely to injure the sewer or drain, to interfere with the free flow of its contents or to affect prejudicially the treatment and disposal of its contents; or

(b) any such chemical refuse or waste steam or any such liquid of a temperature higher than one hundred and ten degrees Fahrenheit, as by virtue of subsection (2) below is a prohibited substance; or

(c) any petroleum spirit or carbide of calcium.

(2) For the purposes of subsection (1) above, chemical refuse, waste steam or a liquid of a temperature higher than that mentioned in that subsection is a prohibited substance if (either alone or in combination with the contents of the sewer or drain in question) it is or, in the case of the liquid, is when so heated –

(a) dangerous;

(b) the cause of a nuisance; or

(c) injurious, or likely to cause injury, to health.

(3) A person who contravenes any of the provisions of this section shall be guilty of an offence and liable –

(a) on summary conviction, to a fine not exceeding the statutory maximum and to a further fine not exceeding d50 for each day on which the offence continues after conviction;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(4) For the purposes of so much of subsection (3) above as makes provision for the imposition of a daily penalty –

(a) the court by which a person is convicted of the original offence may fix a reasonable date from the date of conviction for compliance by the defendant with any directions given by the court; and

(b) where a court has fixed such a period, the daily penalty shall not be imposed in respect of any day before the end of that period.

(5) In this section the expression “petroleum spirit” means any such –

(a) crude petroleum;

(b) oil made from petroleum or from coal, shale, peat or other bituminous substances; or

(c) product of petroleum or mixture containing petroleum as, when tested in the manner prescribed by or under the [1928 c. 32.] Petroleum (Consolidation) Act 1928, gives off an inflammable vapour at a temperature of less than seventy-three degrees Fahrenheit.

This Act provides the mechanism by which Water Companies may pursue people who discharge unauthorized materials into sewers, the principal method by which waste is often removed from industrial sites. Subsection (1) sets out the general condition and the other subsections refine that clause further.

2.1.3 Regional Legislation

2.1.4 European Union Directives. In recent years, much of the environmental legislation enacted in the UK and across other European countries has been derived from EU Directives. Directives require Member States of the EU to implement legislation to achieve a particular outcome but do not specify how the law should be written. This gives the individual countries the opportunity to implement the Directive in the manner that best suits them while achieving the intended outcomes. Key environmental Directives that have been adopted or in the process of being transposed into national law include:

• (Amended) Bathing Waters (2006/7/EC)

• Shellfish Waters (79/923/EEC)

• Water Framework Directive (2000/60/EC)

• Habitats (92/43/EEC)

• Waste Incineration (2000/76/EC)

• Environmental Liability (2004/35/CE)

• Air Quality Framework Directive (96/62/EC).

Although this list is not exhaustive, it does highlight the role that these transnational Directives have in improving the legislative framework by which the environment across Europe is protected. At the heart of most of these Directives is the Precautionary Principle, the idea that in the absence of scientific consensus, caution should be applied and discharges or activities curtailed or the burden for subsequent effects is accepted by the person wishing to discharge.

The Environmental Liability Directive is new piece of legislation which promises to enhance the mechanisms by which ‘the polluter pays’ principle is enhanced. In summary, the Directive is aimed at the prevention and remedying of environmental damage – specifically, damage to habitats and species protected by EC law, damage to water resources and land contamination which presents a threat to human health. It would apply only to damage from incidents occurring after it comes into force.

Important aspects include:

1. It is based on ‘the polluter pays’ principle, i.e. polluters should bear the cost of remediating the damage they cause to the environment or of measures to prevent imminent threat of damage.

2. Polluters would meet their liability by remediating the damaged environment directly or by taking measures to prevent imminent damage or by reimbursing competent authorities who, in default, remediate the damage or take action to prevent damage.

3. Competent authorities would be responsible for enforcing the regime in the public interest, including determining remediation standards or taking action to remediate or prevent damage and recover the costs from the operator.

4. Strict liability would apply in respect of damage to land, water and biodiversity from activities regulated by specified EU legislation; fault-based liability would apply in respect of biodiversity damage from any other activity.

5. Defences would exist for damage caused by an act of armed conflict, natural phenomenon or from compliance with a permit and emissions which at the time they were authorized were not considered to be harmful according to the best available scientific and technical knowledge.

6. Where an operator is not liable, the Member State would have subsidiary responsibility for remediating that damage.

7. Individuals and others who may be directly affected by actual or possible damage and qualified entities (non-governmental organizations) may request action by a competent authority and seek judicial review of the authority’s action or inaction.

Aspects of this legislation fit well with environmental forensic investigations: identifying the source of any contamination and demonstrating harm has been caused or may be caused at a future date. It also provides for State responsibility in a manner similar to that of the USA’s CERCLA (The Comprehensive Environmental Response, Compensation and Liability Act), also known as Superfund.

2.3 US Legislation

CERCLA is funded through a tax on the chemical and oil industries in the USA and the income is used to remediate abandoned sites or sites where responsibility cannot be enforced. Where responsibility for contamination can be identified, it empowers the State to use the Environmental Protection Agency (EPA) to clean up and seek financial redress from these parties. This process has created considerable environmental forensic investigations as tens of thousands of sites have been assessed and cleaned up as appropriate.

The European approach to discharge is somewhat different to one piece of key US legislation, the Clean Water Act (2002 amended). Section 303 includes the following control mechanism for contaminant discharge:

(C) Each State shall establish for the waters identified in paragraph (1)(A) of this subsection and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 304(a)(2) as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.

States are required to establish a total maximum daily load (essentially an assimilative capacity) although a caveat regarding lack of knowledge and safety margin is also added. This allows for States to determine on the basis of the local physico-chemical conditions how much of any one particular contaminant could safely be disposed of through discharges to waters.

3 Source Identification

As can be seen in the legislative frameworks outlined above, being able to identify correctly the parties (individual or companies) responsible for contamination is fundamental to success. Part of the remit of any practitioner of environmental forensics is to identify the origin of contaminants, which may be chemical or biological in nature, and demonstrate a pathway by which those materials may have reached that location. This is not as easy a task as it first appears due to the diverse nature of the chemicals and processes that take place in the environment. The ideal scheme is shown as case 1 in Figure 1 together with some complications (cases 2–5) to that scheme.

In the first case, with a single source of the contaminant and a single process or route by which that material gets to the receptor in the environment, the job of identifying the components of the system is relatively easy. In such cases, simple presence or concentration information maybe sufficient to demonstrate where the material has come from. Cases such as this are often restricted to man-made chemicals with very few possible sources and little or no material pre-existing in the environment.

However, in the second case, with multiple potential or actual sources of the contaminant, distinguishing one source from another adds to the complexity. This scheme is further complicated by the possibility of natural or historical occurrence of the chemical in the environment independent of any contamination event. There is a wide range of methods available to assist in distinguishing between sources and includes complex chemical signatures, DNA associated with biota, stable isotopes, etc. If the potential sources produce different mixtures of materials, simple ratios between key compounds may be suitable to distinguish between each. If the sources were all of a similar nature, e.g. sewage discharges, complex signature analysis relying on relatively subtle differences would be needed to differentiate unambiguously between potentially responsible parties.

In the third case (Figure 1), one source of contamination may have several different routes by which the compounds reach the receptor sites. These may be of different path lengths or even through different media (air versus water) and if the chemical or chemicals are degradable in any way, the signature may change with time and path. It is also possible that there is a history of contamination at a site with different sources responsible at different times. Therefore, it is important to have a handle that tells us something about the age of the discharge. Differential degradation rates of components in a mixed chemical source (e.g. BTEX components in petroleum-based fuels) may be able to provide some information on the time since discharge, but environmental processes may differ between locations and it may be that only relative values may be obtainable.

(Continues…)Excerpted from Environmental Forensics by R. E. Hester, R. M. Harrison. Copyright © 2008 Royal Society of Chemistry. Excerpted by permission of The Royal Society of Chemistry.
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