Federal, state and local governments routinely inspect facilities that design, manufacture, or otherwise utilize plastics. The Environmental Protection Agency's relatively new enforcement technique, multimedia inspections, is designed to assist EPA in its goal of reducing pollution at its source. Companies must be prepared for close scrutiny of their manufacturing operations and the possibility of unannounced inspections.
How a company handles an inspection may bear a direct relationship on whether and what sort of enforcement action is taken. Like a big game or title match, inspection preparation can mean the difference between winning and losing — in this case, losing millions in remediation costs and penalties.
The first step is to designate who will respond to an inspection. Manufacturers of plastic products and related industries face a myriad of regulatory issues: the Occupational Safety and Health Administration; the Comprehensive Environmental Reponse, Compensation and Liability Act; waste water; and air permitting — to name a few. Team members should be familiar with each relevant environmental statute, the facility's permits and compliance status, current status of administrative orders or other regulatory actions and the location of all documents the company is required to keep. The team also should know the applicable environmental statutes authorizing inspections to determine what may be exercised.
The inspection group should be two to three. Name a leader and authorize him to act on the firm's behalf. It is always preferable to prepare more than one person to respond to an inspection.
Establish guidelines in the event an inspector shows up at the site. At a minimum, require inspectors to display their credentials and sign in upon arrival. Tell guards and receptionists not to admit an inspector beyond the reception area until the inspection group is notified. Determine possible routes for an inspection.
The team should always accompany the inspector. Assign someone to take detailed notes. Carefully record the inspector's questions and the responses given. These notes may be invaluable in defending against a citation. Unless subpoenaed, never give a copy of the notes to the inspector.
Failing to identify the scope of the inspection may increase a company's liability. Inspections must be limited to the locations, equipment and information that directly relate to the regulated equipment or process. Most advance notices of federal environmental inspections describe the inspection's scope. If it doesn't, request the scope in writing.
Even if the inspection is unannounced, find out what is to be inspected before beginning. If the inspection is conducted pursuant to a search warrant, it should be read to determine its depth. Identify to the inspector any confidential or trade secret information, otherwise it can be made public.
It is important to set up opening conference procedures before the inspection. Unlike OSHA, EPA procedures do not provide for such a procedure, but the employer can create one by politely asking the inspector to describe the purpose of the inspection.
The representative should ask if cameras, video cameras or tape recorders will be used. A group member should record the same events or request copies.
If sampling will be done, ask for specifics on how it will be done and that, if possible, any samples taken be split.
If the sampling is done pursuant to Resource Conservation and Recovery Act or CERCLA regulations, facility operators have a right, upon request, for split samples. Obtaining a split sample will permit comparison with the regulating agency's results and alert the company before action is taken. If split sampling is not possible, the firm should take its own samples and request the results of the inspector's samples.
The note taker should record the sampling equipment and methods the inspector uses. Such notes are crucial when a violation hinges on an inspector's samples.
If the inspector asks to see files, provide only those documents the inspector is legally entitled to see. Always keep the originals unless seized or subpoenaed. Also, ask that all appropriate documents be marked confidential.
Admit nothing. The inspector wants general information, but may seek specific admissions. The team shouldn't misrepresent facts or lie. To do so is a federal offense.
After the inspection, request an exit conference. Ask the inspector to disclose details of any adverse findings so the firm can decide how to respond. Always ask for a copy of the final inspection report. The team should meet immediately after an inspection for evaluation and begin a response.
Effective inspection planning can be the difference between a smooth inspection and millions of dollars.
Environmental lawyers Heather A. Wyman and R. Henry Moore are shareholders with the law firm of Buchanan Ingersoll of Pittsburgh.