In recent months there has been an increased level of environmental enforcement activity, particularly at the State level. Often, the first step in the enforcement process is an inspection. The best way to handle an inspection is to be ready before it happens. Facility managers should plan for how to handle inspections, having in mind that steps can be taken to ensure the inspection goes smoothly while the company’s important legal rights are still protected.
Inspections may occur for a wide variety of reasons. Routine inspections are designed to check compliance with permit conditions and regulatory requirements. Some inspections occur because of a suspected problem that was identified as a result of a complaint, information contained in monitoring reports, or a referral from another agency (it is not uncommon these days for an OSHA inspection to follow soon after an EPA inspection and vice versa). Inspectors may visit a facility to gather information as part of an enforcement action. Inspections also may be intended to follow-up after an enforcement action, or to see if required changes have been made since a prior inspection.
Inspectors have wide latitude as to what they are permitted to do during an inspection, though there may be certain circumstances when their activities would be limited by a warrant. Inspectors may take measurements and document operations through photographs, tape recording, and mechanical monitoring equipment. Inspectors may also take samples of different media, check equipment, interview employees, and review and photocopy records.
Many companies prepare a written plan for how to deal with an inspection. Such plans often contain a list of primary and back-up personnel that will be responsible for handling the inspection. The planning process may also include employee training and preparation of checklists for what to do during the inspection such as, for example, procedures for asserting document confidentiality.
During the inspection, company officials should accompany the inspectors, having in mind that you do not want to interfere with their ability to conduct the inspection within applicable parameters. If employees are interviewed you will want to listen to the discussions and take notes. If the inspectors take samples of waste streams you will want to ensure that the samples are taken correctly and you should also request split samples which can be independently analyzed. If inspectors are unwilling to provide split samples, you may want to take your own contemporaneous samples. If inspectors copy or remove documents, you will want an inventory of the documents. In addition, if any of the documents contain confidential information, it is important to assert confidentiality properly at that time.
After the inspection, it is often helpful to meet with employees to debrief, discuss how the inspection went, and consider why the inspection occurred. Depending on the circumstances, it may be appropriate to include legal counsel in any such meeting to establish an attorney-client privilege. If any problems were identified, you will want to take swift action to correct them. Records of the inspection should be compiled and kept together. Follow-up correspondence to the agency should sent as soon as possible.
Thorough preparation is the key to handling inspections. Not only will it help the inspection to go more smoothly, but it may also help the company to identify problems in advance and correct them. Good planning also forces people to think about how important issues will be addressed, such as confidentiality concerns, so that mistakes are not made during the inspection.