Basics of Environmental Inspections
(From the September/October 2000 issue of Demolition, published by the NADC)
By Bonnor E. Hudson, III, Attorney- Safran Law Offices, Raleigh, North Carolina
time, your site or facility may be subject to an environmental inspection
by federal or state inspectors. Inspections can result from routine
enforcement activities, from suspected permit violations, and from other
suspected violations of the law. Also, complaints by disgruntled employees
can result in environmental inspections. The agencies that perform these
inspections operate under laws that give them broad authority to search
and inspect. However their authority is not unlimited.
with much of life, the old Boy Scout maxim, "Be Prepared",
applies in the case of an environmental inspection. If you are prepared, a
surprise inspection will usually be a minor inconvenience. If you are
unprepared, a surprise or unexpected inspection can cause serious
problems. Also, if the inspector finds problems, this increases the
likelihood of further inspections Therefore, you should begin your
preparations now for a possible inspection.
aware that environmental inspectors are not required to give notice of an
on‑site inspection, but often do provide such notice. However, do
not count on getting advance notice of an inspection, and even if notice
is provided, that notice may be very short. As a result, you may not have
time to correct problems. If you are prepared, an unexpected inspection
be more likely to end with a good result.
inspections should be treated seriously, as an inspection can ultimately
result in substantial fines or even in criminal penalties. This article is
designed to provide some basic information regarding these inspections. IC
you have questions after reading this article, you should consult an
BEFORE THE INSPECTOR ARRIVES:
a competent person to implement and monitor your in‑house
procedures. This person should be familiar with environmental rules
and regulations and should be allowed sufficient time and resources to
institute and monitor your program.
your pre‑inspection preparation by reviewing any prior
inspection reports and correcting any previously identified items that
have not already been corrected.
the general housekeeping of your site or
facility and correct any problems that are found.
an employee to accompany the inspector (preferably, this should be the
person in charge of your in-house program) and determine whether any
restrictions should or can he placed on the inspection. The
accompanying employee should he familiar with environmental rules and
regulations and should be familiar with the results of any prior
inspections. The designated employee should be instructed to be polite
and cooperate with the inspector, but not to volunteer any
information. The employee should also be instructed to take detailed
notes of the inspector's actions, including the areas visited,
comments by the inspector, descriptions of all conversations with
employees, descriptions and locations of any samples taken, and any
problems or potential problems that the inspector identified.
WHEN THE INSPECTOR ARRIVES:
the inspector to present his or her agency credentials and at least
one other form of picture identification.
and record the inspector's name and ask the inspector to sign your
register book, if you have one.
that the inspector has all necessary safety equipment and provide any
equipment that the inspector needs, but has failed to bring.
the inspector to sit down for a short conference before the
inspection. During the pre-inspection conference, ask the inspector
the reason for the inspection, the scope of the inspection, and its
expected duration. Ask the inspector what authority he or she has for
making the inspection. Ask whether the inspection is a routine
inspection or results from other causes, such as a complaint. If you
discover that the inspection is related to a criminal investigation,
immediately contact your attorney. Ask the inspector the procedure he
or she will follow and whether samples or photographs will be taken.
If the inspector will be visiting areas that may contain trade secrets
or confidential information, let the inspector know this and discuss
procedures for protecting that information. Be
aware that the inspector will have broad authority with respect to the
scope of the inspection. However, under limited circumstances, you may
be able to require the inspector to obtain a search warrant.
If you have questions, consult your attorney before the inspectors
arrive, especially if the inspection may result in criminal charges.
Also, ask the inspector to talk to you before he or she leaves the
site after the inspection.
DURING THE INSPECTION:
designated employee should remain with the inspector at all times and
should take detailed notes.
the inspector takes photographs, the employee should take duplicate
photographs every time the inspector takes a photo. All photographs
should be marked (on the back of the picture) with identifying
information, such as the date, time, location, and a brief
description. If using a camera that requires the film to be sent off
to be developed, take notes so that the pictures can be identified
when returned from processing.
the inspector takes samples, the employee should ask the inspector to
split the sample so that you can have a sample to send to an
independent laboratory. If the inspector refuses to split a sample,
the employee should be prepared to take a duplicate sample in exactly
the same manner as the inspector's sample. Mark all samples for
identification with the dale, time, location, the sample taker's name,
and a description of the sample. Samples may need to be preserved, so
be aware of any special requirements such as refrigeration or special
designated employee should be present during all interviews of company
employees and should listen carefully to all interviews of company
employees and take notes of the interviews. If the inspector wants to
record the interview or asks for a signed written statement, tell the
inspector that company personnel are not authorized to give statements
or recorded interviews without consultation with counsel, and then
immediately contact your attorney.
inspector will probably wane to review any environmental records in
your possession. Be sure to ask the inspector to put his request for
documents in writing, specifying which documents are to be inspected.
If the inspection request appears to exceed the authorized scope of
the inspection, immediately contact your attorney before releasing
these documents. All correspondence with your attorney is potentially
privileged information and should be segregated from your records and
excluded from any inspection. Review your records for trade
secret or confidential business information and separate this from the
other business records. Identify and mark any documents that may
contain trade secrets or confidential business information and remind
the inspector of the nature of those documents. As
with oral communication, do not volunteer anything - do not give the
inspector any records except those specifically requested. Finally,
make duplicates of all records inspected or copied by the inspector
and set those aside.
AFTER THE INSPECTION:
with the inspector and ask him or her about any possible violations
and the inspector's intentions with regards to those violations. Be
polite, but try to get as much information from the inspector as
possible about the inspection. Ask the inspector for a copy of his or
her report and copies of all photographs and the results of chemical
analysts on samples taken at the silo.
the inspector of any confidential or trade secret information that
must he treated as confidential.
the employee that accompanied the inspector to find out how the
inspection went. Have the employee transcribe his or her notes to a
detailed memo describing the inspection and save that memo.
any problems were identified, begin working on solutions. Be careful
of any statements or promises that you make to the inspector. If you
make a promise, be sure you can keep it - the inspector may return to
verify compliance and recommend a fine if the problems have not been
fixed as promised.
with environmental inspections, the bottom line is preparation. If you
prepare now, you may be able to avoid fines, criminal prosecutions, or
other problems that can result from environmental inspections. Note that
this article is intended to be only a basic guide to environmental inspections
and does not constitute legal advice. Consult an attorney if you have
any questions or need further information.