Vedder Thinking | Articles The EPA is at my door. Now what?
Few things do more to strike fear into businesses than a surprise inspection from the U.S. Environmental Protection Agency (EPA) or state environmental inspector. Armed with a few guidelines and the right strategy, your company can get through the process unscathed.
Does the EPA have the authority to show up at our facility and conduct an unannounced inspection?
Yes. If your facility is regulated by any federal or state environmental program(s), the EPA and state environmental agencies have broad power to inspect your facility.
What do I do when the EPA shows up at my facility?
We offer the following guidelines and strategies to not only help you survive the inspection process but also to put your company in the best possible position with the regulators.
When the EPA inspector arrives, request his/her credentials and try to determine the reason(s) for the inspection. After you have elicited the basic information from the regulators, contact your attorney and have your attorney available by phone to field any questions or issues that may come up during the inspection. Always treat inspectors like any other visitor; offer basic safety training before walking the site with the regulators.
If criminal inspectors are part of the group, contact counsel immediately.
Determine what prompted the inspection and its scope. Is the inspection routine or based on a complaint? Try to determine on which areas of the facility the inspection will be focused and in which documents the regulators are interested. Determine if the regulators will be taking samples. Regulators are not allowed to wander your facility unaccompanied by facility personnel.
Accompany the inspector during the inspection. Appoint a facility representative to be the company’s point of contact. This is usually the plant manager. One additional person should accompany the inspectors and facility representative. This second person will serve as a witness to the communications during the inspection and notetaker to document the events of the inspection. Apart from these two facility employees, everyone else should go about their regular jobs.
Communications with the inspectors. If possible, have the facility contact person field any questions from the inspectors. If the contact person is not sure of the answer to an inspector’s question, the contact person should not guess. It is entirely acceptable to respond to the inspector later with a follow-up answer. A quick but erroneous answer will be interpreted unfavorably by the inspectors.
This rule applies to facility employees who are asked questions by the regulators. If employees are not certain of their answers, they should not speculate. Although the government may not like it, from the facility’s viewpoint accuracy is more important than timeliness. Similar to preparing employees for depositions, the employee need only answer the specific question asked. Do not volunteer information. You can ask the inspector to put the question in writing and send it to company counsel.
Photographs, video, sampling during the inspection. If the inspectors plan on taking photographs or video of your facility during the inspection, you should inform the inspectors of any trade secret or confidential business information so it can be protected from public disclosure. Take your own photographs or video of the items captured by the inspectors. If the inspectors take samples, request a split sample or have your sampling kit ready to replicate the samples obtained by the inspectors. Ensuring a complete and well-documented record of the inspection, including photographs, video or samples, can help resolve potential disputes between the company and the regulators.
Closing conference at the end of the inspection. At the end of the inspection, request a closing conference with the inspectors. Ask the inspectors to identify any violations that they have observed. Do not admit to any violations. Keep a copy of any records the inspectors take with them. Do not provide attorney-client-privileged documents. Be sure to identify and label as “Business Confidential” any records or documents that contain confidential business information.
Follow-up inspection activities. Contact counsel to provide a debriefing and to prepare for the consequences of the inspection. Prepare a memorandum of the visit as soon as the inspectors leave. Suspend routine document destruction and implement a document hold for documents and information related to the inspectors’ questions or area(s) of inquiry. These tasks will reduce the risk of spoliation of evidence as the facility responds to the inspection.
Violations. If the inspectors reveal during the closing conference that any violations have been found, verify whether the facility is in violation and correct any violations as soon as possible. Document any corrections and inform the inspectors in writing of any such corrections—do not wait for a violation notice from the EPA.
Your facility’s relationship with the EPA. Most inspectors are assigned a division (air, water, hazardous waste, etc.) and a commensurate geographic area. Therefore, your facility is likely to see the same division inspector again and again at your facility. Developing a good reputation with your assigned inspector may lead to additional flexibility when addressing EPA issues.
Facility Environmental Inspection Checklist
1. Does your facility have a written protocol on how to respond to an inspection?
2. Have you identified your Agency point of contact?
3. Does your facility have complete copies of all its required permits, regulatory submissions and forms?
4. Have you separated privileged and confidential documents from normal facility documents?