The possibility of an enforcement inspection is a familiar consideration for any facility owner or operator subject to federal or state environmental laws and permitting. But recognizing the possibility is quite different from being prepared for and anticipating an inspection. By the time the inspector knocks on the front door, it is too late to wonder how to respond to the unusual: What do you do when an inspector shows up at your facility at 3:00 p.m. on Tuesday afternoon with a search warrant and wants to seize all records of the facility? What do you do when an inspector pulls out a video camera and begins making a videotape of the facility? What do you do when an inspector demands to talk to all of the plant’s employees? What do you do when an inspector has been monitoring activity at your facility from across the street? What do you do when a private contractor appears at your door and wants to inspect your facility on behalf of the agency? What do you do?
Well before the time an inspector shows up at your facility, you should take steps to protect individual and corporate rights and also to minimize any inconvenience to individuals, corporate operations, and even the agency inspector. You should know and understand the agency’s statutory authority for inspections (and the limits on that authority), the agency’s policies and procedures for conducting inspections, and the agency’s perspective on its audits and inspections—all before the first inspection.
Upon arrival at the facility, the inspector may not just enter and begin the inspection. Rather, according to policy, the inspector should locate the proper company official (owner, operator, or agent of the facility) as soon as possible and determine that this official has the proper authority to help. The owner/operator of the facility should identify and designate the appropriate company officials authorized to grant access for inspections well in advance. The inspector should then present identification to the proper official, even if the facility personnel do not request it, and keep this identification in plain view for others at all times. If the inspector does not offer identification, the facility personnel should require presentation of proper credentials and should consider photographic identification such as a driver’s license to confirm the inspector’s identity. The inspector should document the entry in a logbook or field notebook, noting the date, time, and names and titles of facility personnel being encountered.
You should also take a minute to notify your environmental counsel. There is no substitute for appropriate legal advice from the start.
After presentation of his credentials, the inspector should seek consent to enter the facility to conduct the inspection. The company official may withdraw the company’s consent to inspect at any time. Any segment of the inspection completed before such withdrawal remains valid. Withdrawal of consent is equivalent to a refused entry.
Consent to inspect the facility, however, is not required for an inspector to observe and report on things in plain view and includes observations made while on private property in areas not closed to the public such as parts of the facility observed while the inspector presents identification. This is the well-recognized “open field” doctrine.
You should deny access only for valid reasons such as when the inspector does not have the safety equipment required by the facility under Occupational Safety & Health Administration (federal safety) requirements or the inspection is not taking place during working hours. Remember—few valid reasons exist for not allowing access and denial of access may create the wrong impression (i.e., that something is wrong at the plant). The company official should emphasize that he/she will permit access upon the inspector’s compliance. If the inspector has a proper warrant, however, you should allow access. Denial of access will subject you to arrest for contempt of court.
Invalid reasons for denying access include: not allowing the inspector to bring in necessary equipment (e.g., camera), not allowing the inspector access to documents, strikes and/or plant shutdown, and refusal to sign a waiver or other legal document restricting the owner’s and/or operator’s liabilities or obligations.
Typically the inspector will ask the reason for denial. If the problem is beyond the inspector’s authority, the inspector may suggest that the facility representative contact an attorney to obtain legal advice. Under no circumstances should the inspector discuss potential penalties or do anything that the plant personnel might construe as threatening. If the company continues to deny access, the inspector may fill out a “Denial of Access Report” with the time, date, and names and titles of persons denying access and, if possible, obtain the signature of the facility representative. After leaving the facility, the inspector may document observations he or she made pertaining to the denial, particularly any suspicions of violations. Ultimately, the inspector might seek help from law enforcement officials in obtaining a search warrant.
If a warrant is presented, get a copy of it!! Read it. The inspector must conduct the inspection in strict accordance with the warrant. If the warrant restricts the inspection to certain areas or to certain records, for example, the inspector must adhere to these restrictions. If the warrant authorizes sampling, the inspector should carefully follow all of the procedures, including presentation of receipts for all samples taken. The facility has a right to retain a portion of the samples obtained by the inspector. If the warrant authorizes the inspector to take records or property, the inspector must provide receipts and maintain an inventory of all items removed from the premises.
Once the inspector gains access to the facility, he may or may not conduct an opening conference. The decision is left to the inspector’s discretion. The purpose of the opening conference is firmly to establish that the inspector is in control. Generally, the investigator will conduct an opening conference to set the tone for the inspection, to provide information regarding the inspection, to establish schedules for interviews, and to gather general information. With or without the conference, however, you should ask the inspector to give you a statement regarding what he wants to accomplish, to whom he wishes to talk, and what records and documents he wants to obtain. You should try to reach an agreement with the inspector on what the inspector wants to cover: witness interview schedules, documents to be produced, sampling protocols, and confidentiality issues. You should reduce this agreement to writing and provide a copy to the inspector.
While each investigation/inspection is unique, the inspector may:
You should accompany the investigator at all times and take lots of notes. If possible, video record the entire inspection and the investigator. If the inspector takes video recordings or pictures, you are entitled to copies. Similarly, if he collects samples, make sure that they are collected properly. You may even want to take your own samples. Always request a sample split and have your own analysis done. You have a right to the copies and sample splits—ask for them.
If the inspector requests documents, you should in turn request a written list of the documents so you can provide the documents at a later date after they have been reviewed for privilege and/or confidentiality.
If the inspector interviews employees (or witnesses), insist on being present and, if possible, schedule a separate interview, preferably before the inspector speaks to the employee. After the interview, find out what the employee discussed with the investigator.
You do not have to allow civil inspectors to talk freely with employees. Civil inspectors do have subpoena power, however. You cannot prevent employees from talking to the inspectors, but you can give employees the rest of the day off. Employees do not have to talk to inspectors.
When finished, the inspector may conduct a closing conference. The closing conference should be with the same people who attended the opening conference. During this conference, the inspector should provide receipts for samples and for any documents seized. The inspector should also advise you of the availability of the sample analyses. The inspector may (or may not) discuss preliminary findings. Typically, an inspector will not discuss compliance status, legal effects, or enforcement consequences. Inspectors typically will not recommend consultants or advise on the availability of the follow-up report.
The inspection may result in the issuance of a deficiency notice or notice of violation. The inspector will take information and samples and fill out a report, analyze samples, and follow-up as necessary with any coordinating agencies. In the meantime, you should make a written request for copies of photographs, videos, sample analyses, and the inspector’s field report. You should also remember to arrange for the return of seized documents. Be persistent in getting copies. Review the field report carefully. If the inspector finds major or even minor problems, you should seek legal assistance and move to correct the problems. If there is no evidence of noncompliance, you will probably not hear a thing; however, if you do not hear a thing, do not assume that the inspector is taking no action.
Yes, although the company could have problems funding the audit, securing the right people or consultants or the right mix of people, or even with securing internal authority to conduct the audit. Reviewing an audit and deciding to do nothing is better than simply doing nothing; doing nothing can and will get you in trouble and may result in criminal action.
Remember, the only difference between a criminal and civil offense depends on who discovers the problem first. With proper preparation, training, and follow-up, you should find yourself on the right side of the law. I hope.
