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Minimize Fallout From Legal Inspections

When it comes to on-site inspections, there are two types: administrative and criminal. Neither is much fun. Sooner or later, though, someone will likely show up at your bulk plant or stores for an inspection. Normally, it’s just an administrative inspection as that is the most common, so we’ll deal with those type of inspections first.

Whether it be the EPA, your state fire marshal, or simply a city code inspector, virtually all agencies are authorized to inspect. Therefore, with an administrative inspection, refusing access is rarely a good idea. What you can do, however, is limit the scope of an investigation and minimize the chances of ancillary violation discovery using this process recommended by the head of one of the country’s best environmental law firms.

1. Request an opening meeting. During this meeting, you will simply ask why the agency is there and the scope of the investigation.

2. Escort the inspector. Once the inspector has told you why they are there, and what documents will be needed, escort them to the documents. Do not let them roam your facilities unattended.

3. Be nice. It is a bad idea to be short, rude, or sarcastic with the inspector. Make yourself completely available and cooperate fully during their visit.

4. Avoid “I don’t know.”   If you are asked something you honestly don’t know, find someone who does know. You do not want to appear as if you are concealing information.

5. Avoid humor and small talk; limit answers.  If asked a question, answer it concisely. Do not volunteer extra information. Any extra information only encourages the inspector to expand the scope of their investigation.

6. Request duplicates of photos, samples and documents.  These are usually taken during the inspection. If the inspector refuses, be prepared to take your own samples and photos, at the same time, in the exact same locations. This will allow you to know potential evidence that could be used against you. In the case of soil and water samples, many inspectors will agree to split the sample with you. If an inspector insists on removing originals of any documents, make photocopies of the documents before their removal.

7. Hold an exit interview.  Request a closing conference or if appropriate, simply ask the inspector for his impressions and what is likely to happen next.

In the event an inspector finds a violation, you are normally required to correct those violations. Often you will be given 14 calendar days to do so.   Even if you cure your violations within the 14-day grace period, you may still receive written notice. It is critical that you respond in writing to any notices, even if you have already cured your violation. You may impair legal rights further down the road if you ignore deadlines or don’t respond to these written notices.

In addition, there is usually a written appeals process. In the event you want to appeal, consider engaging an attorney to help you navigate successfully through the appeals process. Even with retained counsel, however, remain self-responsible for all deadlines.

Unfortunately, violations can escalate to a formal enforcement level. If this happens to you, it is definitely time to hire a knowledgeable attorney. Any notice of enforcement usually carries with it a fine as well as a court ordered correction of violations. The worst part is that seemingly innocuous violations can lead unknowingly to criminal inspections and charges if not handled properly.

Criminal investigations need to be handled entirely differently than administrative inspections. In the event of a criminal investigation, a criminal search warrant must be presented to enter your place of business. (Your clue for discriminating criminal from administrative inspections is weapons — administrative types usually don’t wear guns but the criminal investigators do!)

If you are visited unexpectedly for a criminal investigation, according to most legal counsel, it’s almost never a good idea to consent to them coming on your property. Giving consent will usually waive any potential defense argument that evidence was obtained illegally or improperly.

When presented with a search warrant, your best strategy is to stay quiet!   During a criminal investigation, anything you say is usually recorded. By speaking, you are voluntarily providing evidence that later can be used against you. If you inadvertently find yourself in a criminal investigation, you should immediately inform the inspectors of your desire to have an attorney present.

Hopefully, you will not need this last advice and you’re only investigators will be relatively low stress state and local agency officials! By using the seven guidelines, you will quickly satisfy the inspectors and get on with your goal – making money from satisfied customers!

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