How to handle an environmental inspection
The initial and most critical phase of an environmental enforcement action is the agency inspection of the event or facility. Although state environmental agencies and the federal Environmental Protection Agency (EPA) have broad inspection authority, companies are often at a loss regarding how to handle an environmental inspection and consequently allow inspectors to go far beyond their legal authority. This article briefly summarizes the inspection authority of federal and state environmental agencies and presents some simple suggestions that will help you protect your legal interests and properly respond to environmental inspections.
Federal Inspection Authority
All of the major federal environmental statutes contain provisions granting EPA authority to conduct regulatory inspections. These statutory inspection and entry provisions are briefly summarized as follows:
Clean Air Act
Section 114 of the Clean Air Act outlines EPA's authority to enter facilities and conduct inspections to determine compliance with the requirements of the Clean Air Act. 42 U.S.C. § 7414.
Section 114(a) provides that EPA or its authorized representative, upon presentation of proper credentials, is authorized to enter a facility subject to the Act to conduct an inspection. These inspectors can sample any air emissions for which the facility is regulated, obtain copies of records which the facility is required to keep and inspect any required monitoring equipment or method.
Clean Water Act
Section 308 of the Clean Water Act provides that EPA or its authorized representative (including an authorized contractor acting as a representative of EPA), upon presentation of proper credentials, may conduct inspections of facilities subject to the Clean Water Act. 33 U.S.C. § 1318.
The Clean Water Act allows inspectors to copy records relating to any applicable effluent limitations, toxic, pretreatment or new source performance standards. The inspector also is authorized to inspect any monitoring equipment or methods used to sample the effluent and monitor the operation of the facility.
Section 3007 of the Resource Conservation and Recovery Act (RCRA) authorizes any officer, employee or representative of EPA to conduct inspections of any person or company who generates, stores, treats, transports, disposes of, or otherwise handles hazardous waste. 42 U.S.C. § 6927. Under RCRA, inspectors are allowed to inspect any facilities, equipment, practices or operations regulated or required by a RCRA permit. The inspector can monitor or obtain samples of any hazardous waste or any waste containers. If the inspector takes any samples, he must give a receipt describing the samples.
There are no provisions in the Emergency Planning & Community Right-to-Know Act (EPCRA) specifically authorizing EPA to conduct regulatory inspections regarding the Act. EPA can, in connection with its procedures for issuing administrative penalties, issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books or documents. 42 U.S.C. § 11045(f)(2).
Toxic Substances Control Act
Section 11 of the Toxic Substances Control Act (TSCA) authorizes EPA and any duly designated representative to inspect any facility that is subject to the requirements of TSCA. 15 U.S.C. § 2610. Such an inspection may only be made upon the presentation of appropriate credentials and a written notice to the owner or operator of the facility. A TSCA inspection can address all compliance matters involving chemical substances and mixtures within the facility.
How To Handle Regulatory Inspections
The following principles should be carefully considered by any facility subject to environmental enforcement inspections:
Designate a team of individuals within the facility who will be responsible for handling environmental inspections. Team members should be familiar with the basic elements of the applicable environmental laws and the procedures followed by environmental inspectors. Legal counsel should be included on the team and should be directly involved in any inspection regarding particularly sensitive issues or any criminal investigation.
Anticipate environmental inspections by properly organizing pertinent records. Records that are not normally subject to inspection (e.g., environmental audit reports, internal memoranda, privileged communications) should be physically separated from other environmental compliance documents.
When environmental inspectors arrive at the facility, notify an appropriate company representative. The company should designate a person who will act as the company's primary contact with the inspectors.
Insist on an opening conference with the environmental inspection team and discuss the following items:
1. Determine what kind of inspection is to be done and define the scope of the inspection. If the inspectors are conducting a criminal investigation, legal counsel should be contacted immediately.
2. Determine how many environmental inspectors will be in the facility. Ensure that each inspector or inspection team is accompanied by a company representative.
3. Explain to the inspector the facility's document production system - that any requests for documents are to be in writing and given to a designated individual who will log the request, obtain the documents, screen them for applicable privileges (e.g., attorney-client privilege) and provide the information to the inspector. This procedure should be followed as to all documents provided to the inspector and the facility should keep a full set of copies of all documents given to the agency.
4. Arrange to receive copies of any photographs taken by the inspector or take identical photographs at the same time.
5. Determine whether any compliance sampling will be done. If so, tell the inspector that the company intends to duplicate all measurements and sampling.
6. Discuss with the inspectors procedures for identifying and protecting trade secrets or business confidential information.
During the actual inspection, cooperate with the inspectors and answer specific questions but do not volunteer any information. Take detailed notes regarding what the inspectors saw and said and the employees who were interviewed. Accompany the inspectors at all times. Do not allow an inspector to wander through the facility unescorted. Remember to select inspection routes that will take the inspector past as few work areas as possible. Try to limit the inspectors to the scope of the inspection. If the inspector goes beyond the scope of the inspection, consider the following options:
< Attempt to reach agreement with the inspector regarding the scope of the inspection.
< Involve legal counsel.
< Take detailed notes regarding the activities that go beyond the scope of the inspection.
If a pattern of violations is observed by the inspector, you should try to correct those violations in other areas of the facility before the inspector visits the area.
Request a closing conference with the inspectors before they leave the facility. A closing conference can be used to correct errors relating to the inspection and learn whether the agency intends to issue any formal citation. If the agency announces its intention to initiate an enforcement action, the client should contact legal counsel and discuss how best to proceed.
Multi-media compliance inspections are designed to determine a facility's compliance with regard to all applicable environmental laws, regulations and permits. Members of EPA's National Enforcement Investigations Center ("NEIC") team in Denver, Colorado, often are involved in EPA multi-media inspections. Representatives from the appropriate EPA region, state environmental agency and local environmental authority also may serve as members of the inspection team. The primary objective of the NEIC is to provide expertise and resources for development and support of civil and criminal environmental enforcement cases. NEIC has established detailed procedures and protocols for conducting multi-media inspections that are published in the NEIC Multi-Media Inspection Manual.
Multi-media inspections typically entail a team of inspectors spending several days at a facility. During the inspection, the inspectors will tour the facility, question facility personnel, review environmental records and conduct environmental sampling
How To Handle An Environmental Criminal Investigation
Criminal investigations of environmental violations are rare occurrences. If an inspection officer arrives at a facility and announces a criminal investigation, the facility should call legal counsel immediately and ask the inspector to wait until the counsel arrives at the scene. If the inspector does not have a search warrant, the facility should deny access and tell the inspector he must obtain a warrant. If the inspector already has a criminal warrant and will not wait for legal counsel to arrive, the facility should allow the inspector to conduct the search.
Once the criminal investigation begins, follow the inspector during the search and record all places searched and all items seized. The facility is not required to give consent to search areas beyond those allowed by the warrant and it is prudent to review the warrant carefully to understand the scope of the search. Finally, and most importantly, company representatives should be mindful of their constitutional right to remain silent. Criminal prosecutions may be brought against individuals as well as companies and any information provided to a criminal investigator can be used against either individual managers or the company in subsequent legal proceedings.