Agency Inspections, Part 1
There is a continued emphasis on enforcement activity begun in the 1980’s by the United States Environmental Protection Agency (“EPA”) and by the Occupational Safety and Health Administration (“OSHA”). It seems that each fiscal year new records are being set for levied fines and returned indictments. The Department of Justice always seems to have a conviction rate in environmental crimes cases that exceed 95%. Typically, OSHA also has very successful years. Since enforcement budgets for these administrative agencies are determined by enforcement initiative (read dollars collected in fines), the more enforcement activity, the larger the budget. As a result, the regulators are stepping up both civil and criminal enforcement activities with greater emphasis being placed on criminal enforcement. As one commentator has observed, often times the only difference between the civil and a criminal investigation depends on who get to your door first, the civil inspector or the criminal inspector. Current Developments, BNA 1255, Nov. 2. 1990.
Congress is also actively involved, redefining and strengthening environmental crimes, introducing new environmental crimes bills, establishing the United States Sentencing Commission to establish sentencing guidelines in criminal enforcement actions, through the reauthorization of various acts (the Clean Air Act and the Resource Conservation Recovery Act) and through criticism of the EPA and OSHA for being too lenient in negotiating reductions in civil fines. The Comprehensive Crime Control Act of 1984 established the United States Sentencing Commission. For an example of the harsh application of the sentencing guidelines in an environmental crimes case see United States v. Pozsgai, 897 F.2d 524 (3rd Cir.), cert. denied, ____ U.S. ____, 111 S.Ct. 48 (1990). Additionally, the community is becoming more environmentally aware and active. There is an increased environmental awareness in the community and as a result of this “greening” of the community, more questions are being asked and will be asked and greater scrutiny will now be given to all operational phases which may impact on the environment. All of this activity outside of the agencies is not lost on the investigators and all bear on the enforcement initiatives for both the EPA and the OSHA.
So what do you do when the inspector shows up at your facility and tells you that he has had a complaint filed by the “friends of dear Mother Earth” that your facility is pumping hundreds of thousands of pounds of pollutants into the atmosphere and that he wants to inspect your facility? What do you do when the investigator shows up at your facility at 5:00 p.m. on Friday afternoon, unannounced and without a warrant, and wants to conduct an inspection of your facility? What do you do when an investigator shows up at your facility at 3:00 p.m. on Tuesday afternoon with a search warrant and wants to seize all records of the facility? What do you do when an investigator, during an inspection, pulls out a video camera and begins making a videotape of the facility? What do you do when an investigator, during an inspection, demands to talk to all of your employees? What do you do when an investigator takes water, soil and air samples? What do you do when an investigator has hired a company to fly over your facility to take aerial photographs as part of their investigation? What do you do when an investigator has been monitoring activity at your facility from across the street? What do you do when a private contractor appears at your door and wants to inspect your facility? What do you do?
There are steps that can be taken to protect individual and corporate rights in an administrative investigation and there are steps that can be taken to minimize any inconvenience to individuals, corporate operations and even the agency investigator. It is a fact of life in the regulated industries that inspections will occur. In order to protect individual and corporate rights and minimize any inconveniences, preparation for the inspections is required. No longer will ignorance be tolerated; knowledge of the policies and procedures utilized by the administrative agencies in conducting inspections and the agency perspective for the reasons behind audits and inspections is a necessity. Knowledge and understanding of the statutory authority for the inspections and the limits on that statutory authority along with the procedures agencies use in implementing the statutory authority is an absolute necessity. Knowledge of agency policy and procedure will help minimize the risk of audits through preparation and training. Knowing your rights will allow better preparation, reaction and interaction with the inspectors during the inspection process.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii