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 presents some simple suggestions that will help you protect your legal interests and properly respond to environmental inspections, and describes a tool available to you from the Washington Department of Ecology to help identify potential environmental issues, before they become issues that might result in an environmental enforcement action.
Why is the Department of Ecology on my jobsite?
All of the major environmental statutes contain provisions granting EPA and/or the Washington Department of Ecology the authority to conduct regulatory inspections, during which the agency will evaluate compliance with environmental laws and regulations as well as specific terms and conditions of environmental permits.
If you perform clearing, grading, or excavation activities; build roads, golf courses, playing fields, homes, or buildings; are involved in demolition activities or tunnel or pipeline projects; or discharge dredged or fill material to a waterway or wetland, you will more than likely, eventually, encounter an environmental inspector on your job site.
How to handle environmental inspections
The following principles should be carefully considered for any job site subject to environmental enforcement inspections:
1. Designate a team of individuals at the job site 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.
2. Anticipate environmental inspections by properly organizing pertinent plans (like your Stormwater Pollution Prevention Plan) and records (like your sampling data). Records that are not normally subject to inspection (e.g., environmental audit reports, internal memoranda, communications with lawyers that are privileged) should be physically separated from other environmental compliance documents.
3. When environmental inspectors arrive at the job site, notify an appropriate company representative. The company should designate a person who will act as the company’s primary contact with the inspectors.
4. Insist on an opening conference with the environmental inspection team and discuss the following items:
a) 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.
b) Determine how many environmental inspectors will be on the job site. Ensure that each inspector or inspection team is accompanied by a company representative.
c) Explain to the inspector the document production system if the inspector wants to take copies of documents away from the job site – 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 allows the company to track what documents the agency has and should be followed as to all documents provided to the inspector. The company should keep a full set of copies of all documents given to the agency.
d) Arrange to receive copies of any photographs taken by the inspector or take identical photographs at the same time.
e) Determine whether any compliance sampling will be done. If so, tell the inspector that the company intends to duplicate all measurements and sampling.
f) Discuss with the inspectors procedures for identifying and protecting trade secrets or business confidential information.
5. 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 job site 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:
a) Attempt to reach agreement with the inspector regarding the scope of the inspection.
b) Involve legal counsel.
c) Take detailed notes regarding the activities that go beyond the scope of the inspection.
d) 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.
6. Request a closing conference with the inspectors before they leave the job site. 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.
How to handle an environmental criminal investigation
Criminal investigations of environmental violations are rare occurrences. If an inspection officer arrives at a job site and announces a criminal investigation, the company 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 company should deny access to the job site 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 company 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 company is not required to give consent to search areas of the job site 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 of environmental laws 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.
Ecology can help you avoid fines and penalties – no, really!
One of the services Ecology provides to achieve voluntary compliance with state and federal environmental laws and regulations is technical assistance. This is required by the legislature, in recognition that a cooperative partnership between agencies and regulated parties that emphasizes education and assistance before imposing fines and penalties will achieve greater compliance with the law.
Technical assistance is provided through various methods, including site visits, meetings and training events, industry-specific assistance, and publications. Compliance technical assistance visits are distinguished from compliance inspections. Some job site visits are either requested by the company, or announced as technical assistance visits by the inspector. Compliance staff sometimes initiate special projects that are intended to provide technical assistance, such as visits to job sites that have never been inspected.
If Ecology identifies a violation during a technical assistance visit, the inspector must give the company a reasonable amount of time to correct the violation, before imposing any fine or penalty. However, if the company has previously been subject to an enforcement action for the same or similar type of violation, or has previously been given notice of the same or similar type of violation, the inspector can issue a civil penalty during a technical assistance visit. And, an inspector can always issue a civil penalty, no matter why he or she is on the job site, if a violation could place a person in danger of death or bodily harm, has a probability of causing more than minor environmental harm, or has a probability of causing physical damage to the property of another in an amount exceeding one thousand dollars.
If you would like to learn more about preparing your job site for an environmental inspection, or about Ecology’s technical assistance program, please email Connie Sue Martin, a member of the AGC Environmental Committee and an environmental attorney at Schwabe, Williamson & Wyatt in Seattle. She can also be reached at 206.407.1556.