Responding to EPA or State Environmental Investigations

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Pullman & Comley, LLC

Preparation is key in surviving an EPA or state environmental agency inspection.  Your facility may have advance warning that the inspector will be visiting, so the disruption caused by the inspection can be minimized, but that is not always the case.

Below is a list of 20 procedures for handling governmental inspections.  Following these procedures when an inspector arrives will help ensure that the inspector receives correct information and minimizes the disruption to the facility.

1.  Establish an “Inspection Supervisor” to be responsible for all enforcement inspections.  It’s important to coordinate all inspections through one responsible individual who is familiar with the rules and comfortable asserting the company’s legal rights.

2.  Decide whether and on what terms to allow an inspector access to your facility. If the inspection is a routine matter, the company will want to consent to the inspection.  Many environmental permits REQUIRE inspectors to have access to facilities.  In those cases, inspectors MUST be granted access.  Certain situations will arise when the company will want to assert its rights and deny access to its facilities, however, these decisions should be arrived at carefully and only after full consideration of the situation.

3.  Require the inspector to provide credentials.

4.  Establish the parameters of the inspection during an opening conference with the inspector. Ask the inspector:

  • What is the purpose, cope and anticipated duration of the inspection?
  • What does the inspector want to see and why?
  • Will documents or samples be requested, and
  • Will photographs or video be taken?

5.  Never let the inspector conduct the inspection alone.

6.  Limit the inspection to those areas specifically requested by the inspector in the opening conference.

7.  Do not let the inspector talk to other employees.

8.  Do not take the inspector to areas where an upset or other emergency is in progress.

9.  Take detailed notes. The inspection supervisor should take detailed notes regarding:

  • What the inspector views;
  • The questions the inspector asks;
  • Other employees with whom the inspection supervisor consults to obtain information and what information is provided to the inspector after the consultation;
  • The date, time of day, duration and weather conditions of the inspection, and
  • The inspection supervisor's general impressions of the inspection and the inspector's demeanor.

10.  Obtain a copy of any form used by the inspector during the inspection.

11.  Answer inspectors’ questions only when 100% sure of the answer.

12Do not show the inspector any documents which are or may be privileged.  If the inspector asks to see privileged documents, the inspection supervisor should state that the documents are privileged and that the inspector must submit a written request or produce a search warrant specifically covering the documents he wishes to see.

13.  Keep records of everything given to the inspector.

14.  Obtain split samples and keep records of all samples taken by the inspector.  If the inspector plans on taking samples, the inspection supervisor should indicate that samples will be drawn only by your employees.

15.  Record all photographs taken by the inspector and obtain copies.  If the inspector takes photographs, the inspection supervisor should note the time, date, place, the subject of the photograph and the photographer’s name.

16.  If problems arise and there is a possibility of a criminal violation, stop the inspection and escort the inspector to the lobby to wait unti8l your attorney is contacted.

17.  Insist upon a closing conference.  If the inspection will continue for more than one day, a conference should be held a the end of each day to discuss the findings.

18.  Request a copy of the inspector’s report.

19.  Follow up with the inspector after the inspection.  Even if the closing conference and the follow-up verification call indicate that no enforcement action will be brought, a company should still implement reasonable suggestions made by an inspector and correct any current violations or problems that may lead to future.

20.  If a warrant is presented, notify your supervisors and the company’s attorney immediately.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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