March/April 1998
Inspections from local, state, and federal environmental protection agencies are an unavoidable part of doing business in the scrap industry today. Keep your anxiety and liability to a minimum with this advice.
By Eileen Zagone
Eileen Zagone is an associate editor of Scrap.
An environmental inspection.
Just the words may be enough to send shivers down your spine, as you imagine an environmental inspector prowling around your facility, scrutinizing every last inch of the property, and poring over your written environmental compliance policy to check that all your i’s are dotted and your t’s crossed.
Then there’s the potential cost of any violations found. Last year, the EPA levied more than $260 million in fines and penalties for compliance problems—a record for the agency. Plus, the companies charged in these violations shelled out an additional $1.98 billion on required cleanups and corrections. And that’s just at the federal level.
While these are frightening figures, panic need not—and should not—be your response to an environmental inspection. Armed with an up-to-date compliance program and an understanding of the inspection process (and what is and isn’t allowed), you will survive an inspection. In fact, if you’ve done your homework, an inspection can be a fairly painless part of doing business—“more bothersome than a hangnail, but not as bad as a root canal,” as one scrap recycler puts it, based on his most recent state environmental inspection.
Putting Your House in Order
Part of the fear-inspiring power of environmental inspections is that they’re usually surprises. Whether your business is inspected on a completely random lottery basis or the inspection is prompted by a citizen or employee complaint, chances are you won’t be given advance notice. Even when you know an inspection is inevitable—say, as a follow-up to a previous inspection that revealed problems or when an environmental agency is checking out all the businesses in your particular area to identify the cause of nearby contamination—it’s unlikely that you’ll know just when the inspector will arrive.
Because of this element of surprise, it’s imperative that you take steps to prepare starting today, if you haven’t already, emphasizes
Tracy Mattson, ISRI’s director of environmental compliance. If you wait until a more convenient time, it may be too late.
Know the Laws. As a starting point in preparing for an inspection, be sure you’re familiar with each and every environmental regulation that applies to your facility, Mattson suggests. In addition, she recommends, assign a company attorney and/or some other staff person to become your firm’s resident expert on environmental compliance and to keep on top of the ever-changing regulatory landscape.
This can be a daunting assignment, given the bewildering array of federal, state, and local environmental laws and regulations affecting the scrap recycling industry. However, there are several resources available that can help. ISRI’s Environmental Operating Guidelines manual, for instance, covers applicable federal statutes, including RCRA, CERCLA, the Clean Air Act, and the Clean Water Act. In addition, you should be able to get copies of the checklists and guidelines local, state, and federal inspectors follow during an environmental inspection.
Understanding these rules and regulations can help you prepare for an inspection in several ways. First, armed with the knowledge of what an inspector is likely to look for, you and/or your staff experts can conduct regular environmental self-audits of your plant to identify potential problems—and correct them—before an actual inspection. Second, if and whenever you are inspected, you’ll be able to demonstrate that you’re knowledgeable of what’s required of you—and that can go a long way toward pleasing an inspector. And third, and most important, once you understand the regulations, you’ll be better equipped to meet them.
Make Compliance a Priority. That brings us to the next step in preparing for an environmental inspection: making compliance a priority. Of course, unless your company is the smallest of operations, that’s not something you can do alone. Compliance is a daily effort, so it’s absolutely essential that all employees understand your compliance requirements, what’s expected of them, and the potential costs and liabilities of noncompliance, Mattson says.
That means conducting regular training and review sessions on your firm’s best management practices (BMPs), particularly those related to proper inspection procedures, identification of potential problem materials and areas of the plant, material handling and storage procedures, and procedures for proper management of spills or leaks. And as regulatory requirements change and you revise your facility’s BMPs, be sure you update your employees on the new rules and compliance procedures through regular environmental meetings.
Something to keep in mind in this regard, Mattson notes, is that it’s the employer’s responsibility to make sure every employee understands the company’s environmental compliance policies, regardless of language barriers or literacy. Thus, it may be appropriate for you to hire a translator to help out at environmental sessions, have your written environmental guidelines translated, and/or use posters and other visual aids to ensure that all staff understand the compliance information.
In addition to teaching employees about compliance, it’s vital that you secure their commitment to it as well. The key here, Mattson says, is to be certain you and your management team demonstrate the commitment yourselves. You can further encourage employees to buy into your compliance program by seeking their participation—asking them for compliance ideas and solutions, and perhaps even offering them incentives for identifying potential environmental problems or passing inspections.
Back on the management level, your compliance efforts should include making sure your facility’s environmental permit and reporting documentation is up-to-date, easily accessible, and in proper order, Mattson says. Toward this end, you may find it useful to compile an environmental summary sheet or notebook that outlines pertinent permit information—such as permit numbers, issuing agencies, and the scope of each permit—as well as environmental monitoring records, sampling details, and the facility’s compliance history.
Getting Through the Inspection
OK, so you know what environmental rules apply to your operation and you’ve made ongoing compliance a top priority throughout the company. The next thing you know, there’s an environmental inspector at your door, asking to take a look around. What do you do now?
Request an Appointment. Stalling is an understandable initial reaction. But a better approach, says Mattson, is to ask the inspector if you can set an appointment to conduct the inspection in the next few days but not more than a week hence, giving you time to ensure that your attorney or other critical personnel can be on hand.
Keep in mind, however, that just because you request an appointment doesn’t mean the inspector will agree to postpone the visit. If this is the case, it may not be worth pushing the issue, Mattson advises. In doing so, you may risk alienating the inspector, which could hurt you in the long run through stiffer fines for any violations or increased scrutiny, she says.
You may think that citing your Fourth Amendment protection from search and seizure and demanding a warrant will buy you some time, but don’t count on it. Many statutes give environmental agencies the right to inspect a facility (within a specific scope) without obtaining a warrant. Furthermore, inspection warrants are easy and quick to obtain. Typically, all the inspector needs to get a warrant is proof that the inspection is part of a general inspection plan.
Indeed, says Mattson, if inspectors want to get in, they will—and there’s usually little benefit to being uncooperative.
Go Over the Details. Whether you end up going ahead with the inspection on the spot or rescheduling it, the process should begin with an initial inspection conference, preferably conducted in a private area of your offices.
Because there’s no overarching statute that allows a general inspection of your entire facility, begin the conference by asking about the inspection’s nature, scope, and purpose, Mattson suggests. (If requested, this information must be provided in writing before the inspection begins.) Make sure you understand what specific compliance issue or issues the inspection is designed to check before moving on, since the inspector may be precluded from using evidence of violations that are beyond the scope of the inspection, unless they’re readily apparent, she adds. This is also a good time to ask whether the inspection’s purpose is to investigate potential criminal violations.
If you want records produced during the inspection kept confidential, request so now. While you may not be able to place restrictions on those documents generally made available to the public, if you don’t ask for confidentiality, you may be waiving the right to keep any of the inspection records private.
The inspector will also want some information from you during the initial conference. It’s important that you cooperate and provide the records and documents requested, but it’s equally important that you avoid giving the inspector access to documents that aren’t requested or contain privileged information, Mattson says. To help in this regard, she suggests bringing the required records to the inspector rather than allowing him or her to look through your files. In addition, she recommends keeping a list or photocopies of all documents the inspector requests and providing the inspector with a copy—rather than the original—of these documents.
Don’t Forget Safety. Before heading out into your plant, outfit yourself, the inspector, and any other personnel involved in the inspection with appropriate safety equipment, such as hard hats and ear and eye protection.
Pay Careful Attention. When it’s time to begin the physical inspection of your facility, don’t offer a tour of your entire plant, regardless of how confident you are of your compliance. Instead, Mattson suggests, guide the inspector on the most direct route to the particular area or areas covered by the inspection, and stick with him or her through the entire visit to be certain the inspection is limited to the areas identified in the initial conference.
Take note of everything the inspector examines, asks, or tests—and any positive or negative comments. It’s also a good idea to perform the same tests as the inspector at the time of the inspection so you can compare results, Mattson notes. You may even be able to split samples of equal weight and volume of soil, water, air emissions, and similar materials with the inspector, depending on the inspector’s preference and the rights granted you under specific statutes. Regardless of whether you take your own samples, request that the inspector’s results be sent to you as soon as they’re available.
Unless your company has strict rules about not allowing photographs, the inspector is generally permitted to take photos or videotape during the inspection. But, again, these should be limited to the areas covered by the scope of the inspection, so make sure that photos are taken only of those areas and that a video camera isn’t rolling while the inspector is walking through other parts of your plant. And, as with testing, if the inspector takes photos, take some of your own, especially if you suspect the inspector’s photo only focuses on a potentially problematic area. In addition, you can ask the inspector to send you a second set of his or her photos and/or a copy of the video.
Watch Your Words. While it’s important to be cordial throughout the inspection, it’s wise not to be chatty and to try to limit the inspector’s conversations with employees, Mattson says. In addition, if the inspector asks a question you don’t know the answer to, don’t speculate as this could come back to haunt you, especially if you’re admitting fault. Instead, Mattson suggests, admit you’re unsure of the answer but will find it as soon as possible, preferably before the inspection is over for the day.
Review the Findings. Once the inspection of the required documents and your plant is complete, sit down with the inspector for a debriefing exit conference. This is the time to ask about any noted violations or compliance problems and to seek suggestions or recommendations. In doing so, however, be sure not to admit any wrongdoing, Mattson emphasizes.
Before the inspector leaves, ask that a copy of the final inspection report be sent to you as soon as it’s available and follow up with a written letter requesting the same.
Finally, as soon after the inspection as possible, get together with your attorney to draw up your own inspection report incorporating the notes, samples, and photos you took during the inspection, as well as your impression of how the inspection went.
When All Is Said and Done
While your stress level may rise during an environmental inspection, you can help keep it to a minimum if you try to understand the inspection process in advance and are prepared with an effective compliance program.
This preparation can also go a long way toward limiting you liability should an inspector discover a potential violation. Sure, you’ll have to correct the problem and perhaps pay a fine, but you may wind up being granted more time to get in compliance and be subject to lower fines than if you hadn’t prepared. •
Editor’s note: ReMA offers a variety of publications and other resources designed to help scrap recyclers with environmental compliance, including the Environmental Operating Guidelines manual, a storm water guidance manual, a storm water BMP poster, and pollution prevention and monitoring videos. For more information and ordering details, call 202/737-1770.•