The "Routine" Inspection

Walter D. James III
walter.james@strasburger.com
Strasburger & Price, L.L.P.
Dallas, Texas

What do you do when the inspector shows up at your facility for that annual "routine" inspection? There are many steps that can be taken minimize the inconvenience and intrusion to the individuals involved, the ongoing corporate operations and even the agency inspector. It is a fact of life in the regulated industries that inspections will occur. Preparation for the inspections is absolutely necessary. Ignorance is not acceptable; knowledge of the policies and procedures utilized by the administrative agencies in conducting inspections and the agency perspective for the reasons behind the inspection is a necessity. You should know and understand the statutory authority for the inspections and the limits on that statutory authority, along with the procedures agencies use in implementing the statutory authority. Knowledge of agency policy and procedure will help in the process through preparation and training.

Several federal statutory provisions allow for the administrative inspection of facilities under the federal environmental laws. They include the Clean Water Act, 33 U.S.C. § 1318; the Resource Conservation and Recovery Act, 42 U.S.C. § 6927; the Clean Air Act, 42 U.S.C. § 7414; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9604; and the Toxic Substance Control Act, 15 U.S.C. § 2610. They all have several common elements. Each statute provides the agency inspector (or authorized independent contractor) the right to enter the facility upon presentation of appropriate credentials. Each statute provides authority for access to records and monitoring equipment. Each statute authorizes the investigator to take samples as desired. Additionally, the EPA has policy memorandums covering various aspects of inspections.

Inspections are performed for a number of purposes which include routine assessment of statutory and regulatory compliance, review of facility activity and status with respect to a previously filed administrative enforcement action, review of the facility's compliance with its permits and permit deadlines within the regulatory scheme, and as a response to tips from neighbors of the facility, disgruntled employees at the facility or even former employees.

Since most, if not all, inspections are unannounced, preparation is paramount. There should be a written policy and procedure covering corporate protocol and conduct as to the inspection. Upon arrival at the facility, proper identification should be requested of and presented by the inspector, the proper corporate people responding should be located and notified, and the date, time, name and title of the inspector written down in a log book. After presentation of proper identification and credentials, you may provide the consent to enter the facility to conduct the inspection. It is appropriate and proper to ask the inspector to give you a statement regarding what he wants to accomplish, whom he wishes to speak with and what he wants to obtain in regard to records and documents. Agreement, preferably written agreement, should be reached covering witness interview schedules, documents to be produced, sampling protocols, confidentiality issues, and return of documents (if necessary).

While each inspection is unique, all have some common elements. The inspector may do one or more of the following: walk the facility, ask lots of questions, take lots of notes, take formal statements (which may be tape recorded), take samples, review documents/permits, take photographs/videotape, and prepare inspection checklists.

There are certain things you must absolutely do during the inspection. You should accompany the inspector at all times. If the inspector talks to employees, insist on being present (if you are denied that right, schedule separate interviews to find out what was discussed). Take notes during the inspection. Videotape the entire inspection and the inspectors. If the inspector takes videotapes or pictures, ask for copies. If samples are collected make sure that they are collected properly; you should even take your own samples. Always request a sample split and have your own analysis done. You do not have an absolute right to split samples; however, EPA policy is to provide a split sample when a request is made. Specifically, ask for a split sample equal in weight and volume, a written receipt describing the sample, a description of the tests to be performed on the sample and the test results. If documents are requested by the inspector, request a written list of documents sought as you can provide documents at a later date after they have been reviewed for privilege and/or confidentiality.

At the close of the inspection, the inspector should provide receipts for samples. The inspector may also discuss preliminary findings; however, do not be disappointed if no preliminary findings are discussed. The inspector should also advise you on the availability of the sample analysis. The inspector will not, however, discuss your compliance status, the legal effects of the inspection or enforcement consequences. The inspector will not recommend consultants. The inspection may result in a deficiency notice or notice of violation.

Back at the office, the inspector will the take information and samples collected and fill out their report and will follow-up as necessary with any coordinating agencies. You should also conduct some follow-up. Make a written request for copies of photographs taken, videotapes made, sample analysis, and the field report filed by inspector. Be persistent. If major or even minor problems are found seek legal assistance and move to correct the problems. If there is no non-compliance you will probably not hear a thing; however, if you do not hear a thing do not assume no action is being taken.

If you have not already prepared for the inspection process, start now. Train your employees (environmental and safety training must include all personnel with special emphasis on operations personnel). Get to know the regulators. Conduct your own audits. Make sure facility records are in order. Establish written procedures for document retention and facility access by agency personnel. As a part of the training process, make sure personnel (security guards, environmental compliance personnel, facility managers and field/operations personnel) know how to react. Buy a handheld video camera and videotape all inspections. Make sure you have an environmental employee compliance policy and follow it and enforce it. Designate a point person for inspections.

Remember, oftentimes the only difference between a criminal and civil offense depends on who discovers the problem first. With proper preparation, training and follow-up, you should find yourself on the right side of the law.