November 14th, 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.

Following up on our last blog post PART I – “TRICK OR TREAT?” — REGULATORY INSPECTIONS, we want to highlight key points for how you can prepare for a regulatory inspection.

  • Identify Response Person or Team: The person(s) should be familiar with response procedures and facility policies as well as the operations subject to the inspection and should include someone with technical expertise to observe, critique (and, if needed, duplicate) agency sampling procedures.
  • Establish Basic Policies in Advance:
  1. Determine position on search warrants

–              Requiring a search warrant in all but most adversarial context will make regulators be more adversarial so most do not require a warrant unless there is reason to believe criminal action is intended

–              Search warrants define scope of inspection (materials gathered beyond the defined scope may not be used against the facility)

–              If search warrant is offered or required, do not allow inspector to do more than what is required by search warrant

2.  Determine position on scope of “consent” to inspection

–              Allow employee interviews

–              Photographing or sampling

–              Assert “confidentiality” claims, including Attorney/Client privilege, and business confidentiality privilege (“trade secret”)

3.  Establish initial inspection procedures

–              Obtain and copy the credentials of all members of regulatory inspection team

–              Instruct receptionist (or whoever is responsible for “greeting” visitors) to notifying response person/team

–              Consider whether legal counsel should be contacted

–              Notify appropriate individual within organization responsible for overall regulatory compliance ASAP

–              Enforce any safety rules during the inspection

4.  Consent to inspection can be withdrawn at any time during the inspection

  • Preparation for Inspections (Note many organizations engage an environmental/health & safety  professional to complete this task which allows for a “fresh set of eyes” to examine operations):

1.  Assemble and preview all records and documents relevant to the regulatory programs covered by the inspection

–              Flag and do not give documents that are covered by privilege

–              Be prepared to list these documents by date and topic for inspector

2.  Pre-inspect all areas subject to the inspection and determine if corrective measures can be implemented prior to the inspection

Nixon Peabody LLP has a team of attorneys and environmental, health & safety professionals with extensive experience working with clients to perform these activities as well as assisting in identifying appropriate consultants that can provide these services.