Under the Obama Administration, the environmental regulatory community is expecting an uptick in enforcement efforts. President Obama's budget proposal for 2010 includes a striking 35% increase in funding for the U.S. Environmental Protection Agency. Regulators frequently mail a request for information or some other notice that your business has been targeted for enforcement. It is possible, however, that your first notice of enforcement efforts will be a knock at the door and an unannounced inspection. Every business that must account for its environmental practices should have procedures in place to cover the possibility of an unannounced inspection and responsible managers should ensure that relevant employees know what they are supposed to do—and not do. If you already have a plan, this is a good time to review it with those who are responsible for implementing the plan and to make changes if necessary. If you do not have a plan, there is no better time to prepare one. A good plan will include clear instructions that will be easy to remember when the pressure is on. Here are a few suggestions:
- See the bona fides. Before allowing an inspection, check the inspectors' credentials and ask for a Notice of Inspection.
- Get their game plan. You have a right to know what the inspectors are looking for. What parts of the facility do they want to inspect and why? How long do they expect to be there?
- Use the designated chaperone. An owner or responsible employee should accompany the inspectors at all times. Your plan should identify the preferred chaperone and one or more alternates. Of course, the designated persons should be trustworthy and loyal and have very good judgment.
- Listen, don't talk. Don't volunteer information, but do take notes. Pay attention to what the inspectors look at and what they say. Ask for duplicate copies of any photographs that the inspectors take. After the inspection, ask what the inspectors anticipate for next steps.
- Keep the shredder off. Hiding or destroying evidence may escalate potential charges into criminal territory.
A good plan also will include other instructions—some that are applicable to all businesses and others that are specific to your business. Leonard, Street and Deinard can help you tailor a set of procedures to your situation. Attorneys in our Environmental Law practice group have represented businesses of all kinds in environmental enforcement efforts. We have counseled clients in responding to initial notices and at all steps in the enforcement process. In some cases, our efforts have resulted in complete withdrawal by the regulators. In others, where penalties were unavoidable, we have been able to negotiate significant reductions in those penalties.