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

At any 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.

As 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.

Be 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

will be more likely to end with a good result.

Environmental 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 attorney.

1. BEFORE THE INSPECTOR ARRIVES:

1. Designate 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.

2. Begin your pre‑inspection preparation by reviewing any prior inspection reports and correcting any previously identified items that have not already been corrected.

3. Evaluate the general housekeeping of your site or  facility and correct any problems that are found.

4. Designate 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.

2. WHEN THE INSPECTOR ARRIVES:

1. Ask the inspector to present his or her agency credentials and at least one other form of picture identification.

2. Verify and record the inspector's name and ask the inspector to sign your register book, if you have one.

3. Ensure that the inspector has all necessary safety equipment and provide any equipment that the inspector needs, but has failed to bring.

4. Ask 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.

3. DURING THE INSPECTION:

1. The designated employee should remain with the inspector at all times and should take detailed notes.

2. If 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.

3. If 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 sample containers.

4. The 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.

5. The 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.

4. AFTER THE INSPECTION:

1. Meet 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.

2. Remind the inspector of any confidential or trade secret information that must he treated as confidential.

3. "Debrief' 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.

4. If 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.

In dealing 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.