Recent events have reminded me (Tom) of my days as a solid waste inspector with the Pennsylvania Department of Environmental Protection (PADEP) and how I was trained to conduct inspections. Without getting into case specifics, recent events have led me to wonder how things may have been different had the regulatory agency conducted its inspections differently and had the regulated entity been a little bit more informed of what to do in the event of a regulatory inspection. This prompted me to write this article to try to set forth a brief outline for a regulated entity to follow to prevent misunderstandings that might lead to costly corrective actions.
When I worked at PADEP, I was instructed that the goal of every inspection was compliance with the law and regulations. Therefore, how an inspector conducted the inspection and how an inspector documented the inspection results was critical. To achieve the goal of compliance, PADEP instructed me how and when to enter a property and when to leave the property. I received training on how to write reports, how to document violations, how to communicate with the responsible party, and how to work with the responsible party to achieve compliance. PADEP personnel, including regional counsel, and U.S. Environmental Agency personnel conducted most, if not all of my training. In addition, I received about three months of on the job training from experienced inspectors before conducting inspections by myself.
In general, PADEP instructed me to identify myself, identity the purpose of my inspection, discuss the issues or concerns resulting from the inspection, and inform the person what, if anything, should be done to achieve compliance. I prepared a report on site or mailed a report of my inspection soon after the inspection. Aside from informing the responsible party of what violations existed, my training allowed me to develop the best evidence to support an enforcement action should the responsible party fail to achieve compliance.
To assist inspectors in tracking outstanding violations, PADEP maintained a database to track inspections and violations. About every three or six months, my supervisor provided me report containing unresolved violations and I was instructed to conduct follow up inspections to “close out” the case.
During my time at PADEP, I observed that the pervasively regulated industries instructed their employees how to handle inspection by regulatory agencies. For the most part, pervasively regulated industries handle regulatory inspections the same way. In general, they want to know who is conducting the inspection, why the inspection is being conducted, what the inspection revealed, and what needs to be done.
I also observed that small business owners tended to be less informed about regulatory requirements. In such instances, I spent more time explaining PADEP, the program in which I worked, the purpose of my inspection, the law and regulations, what constituted a violation, and what needed to be done to resolve any issue.
As result of my training, my inspections proceeded smoothly and the regulated entity knew what constituted a violation and how to address the violation. I recall only one case in my two years as an inspector that required an enforcement action.
Unfortunately, not every regulatory agency provides its inspectors training to the extent that I received. Some agencies do not require that the inspector notify a property owner that they are on the property or that they had inspected the property. Some agencies do not require that the inspector provide the regulated entity a written report of the inspection, unless the regulated entity asks for a written report. Such practices do nothing to achieve compliance with environmental laws and regulations, leave regulated entities uninformed, promote misunderstandings or miscommunications, and make enforcement actions much more difficult for the regulatory agency and responsible party. In some instances, the regulatory agency’s failure to conduct an inspection properly, document the inspection, and communicate violations or potential violations issues to the responsible party may increase costs to correct the violation significantly, and may result in penalties or higher penalties. Depending on the regulatory agency, the jurisdiction, and the issue, the regulatory agency may seek to hold the business owners, property owners, or even employees responsible for the violation. Personal liability is a consequence that most business owners, property owners, or employees would want to avoid.
A small business may prevent expensive corrective actions and litigation costs if the business is prepared for a regulatory inspection. A few proactive steps can reduce the chance of a costly misunderstanding arising from ill advised regulatory inspection practices, poorly trained inspectors, or an uninformed employee. These measures include, but are not limited to, the following:
- Control access to the property;
- Identify the inspector by credentials;
- Identify the purpose of the inspection;
- Accompany the inspector at all times during the inspection;
- Ask the inspector questions about observations, issues and concerns during the inspection;
- Take notes during the inspection;
- Have a post-inspection meeting with the inspector to discuss observations, issues, and concerns;
- Request copy of the inspection report, photographs, and sample results at the end of the meeting;
- Schedule a reminder to be sure you receive a copy of the inspection report, photographs, and sample results;
- Follow up in writing describing corrective actions taken; and
- Consult an attorney when issues or concerns arise.
Next week I will discuss the first item, “control your property,” in more detail. Have a great holiday!
