October 20th, 2014 • by Rick Marx and Elaine Enfonde
Rick Marx

Rick Marx

Rick Marx is a senior environmental engineer with the Energy and Environmental practice group at Nixon Peabody. He provides environmental, health and safety related technical/regulatory support to a wide range of firm clients including numerous industrial sectors, landowners and developers.

Elaine Enfonde

Elaine Enfonde is a senior environmental scientist for Nixon Peabody LLP. She has extensive knowledge in a broad range of environmental regulations and policies. She works with clients to develop environmental compliance plans and strategies and provides technical knowledge for due diligence transactions, site investigations and remediation, enforcement actions and environmental permits.

Did you know that EPA and OSHA inspectors are “cross-trained” to identify the other agency’s potential regulatory concerns?  This is important because a client’s facility may have an OSHA inspection and, depending on the inspector’s observations, shortly thereafter the facility may also be the recipient of an EPA inspection or vice versa.

In addition, these agencies have similar programs, such as EPA’s Risk Management Program and OSHA’s Process Safety Management Program; however, the agencies objectives are different:  EPA’s objective is to protect human health and the environment and OSHA’s is to protect worker safety.

If an OSHA or EPA inspector arrives at your facility, presents his or her credentials, and asks for your consent to conduct an inspection, what do you do?

Briefly, the general guidelines are as follows:

  • Identify response person or team
  • Follow the basic policies that were prepared in advance of an inspection
  • Determine position on search warrants
  • Determine position on scope of “consent” to inspection (e.g., employee interviews, photographs, sampling, and asserting confidentiality claims)
  • Require inspector to follow standard protocols for all visitors (e.g., sign in, badge, safety briefing)
  • Always accompany all inspectors — do not allow an inspection team to split up or access any parts of the facility unaccompanied by the response team
  • If an inspector asks a question, never speculate or guess with your answers to questions and volunteer information if a question has not been asked
  • Take detailed notes of the inspection, and if you are working with an attorney, mark every page “ATTORNEY CLIENT COMMUNICATION, PREPARED AT ATTORNEY REQUEST, PREPARATION FOR LITIGATION”
  • If any sampling is performed:

–          Obtain split sample from inspector

–          Establish chain of custody records for retained portion of samples

–          Obtain receipt for sample(s) from inspector and ask the inspector what analytical method will be applied to each sample so that duplicate analyses from an independent laboratory can be run

–          Request copies from the agency of all analytical results

–          Similarly, if inspector(s) take photos, the facility should replicate

  • If documents or records are requested ask that the requests be put in writing and directed to a single management representative
  • Request an “exit interview” with inspector(s)
  • Hold a post-inspection team meeting ASAP

A future blog will highlight how to prepare for an OSHA/EPA inspection.

Rick Marx, Senior Environmental Engineer and Elaine Enfonde, Senior Environmental Scientist.