ENVIRONMENTAL COMPLIANCE – What if your Operation is inspected?
Government agencies often conduct inspections of regulated facilities. These inspections may be routine or may be aggressive attempts to find and prosecute noncompliance. A courteous and cooperative approach is advisable during the inspection. Thus, planning for an inspection may favorably influence the inspection outcome. Whether its OSHA, EPA, or FDA use these helpful suggestions in planning for and participating in inspections:
Ask what the scope of the inspection includes
Typically, inspections are conducted to determine compliance with one particular set of regulations.
Identify an inspection team for your operation
This team should meet the inspector immediately upon arrival. The team should consist of at least two members; one to answer the inspector’s questions, and one to take notes. A third-party consultant would be an ideal addition to the team. If possible, the most senior person at the facility should meet the inspector. If an inspection is unscheduled or unannounced, have a discreet means of notifying individuals with a need to know that an inspection is in progress. This includes managers and foremen and may include professional consultants or legal counsel.
Establish procedures for conducting the inspection, have a plan
Organize records prior to inspection. Have all relevant documentation available for easy exhibition. Ask your third-party consultant what records are required by the relevant regulations. These may include records from previous years. Provide specifically what the inspector asks for, but do not allow the inspector free access to your records. Provide each document individually.
Alert inspectors to safety and security measures
Before the inspection, inform the inspector of your facility’s safety and biosecurity protocols and how to adhere to them on the day of the inspection. Remind them of industry standards, such as not visiting more than one poultry CAFO in a day, or disinfecting the vehicle, shoes, and other protective equipment between visiting dairies.
Identify a route for the inspector to take which presents the facility in the most favorable light. Decide beforehand the route you will take the inspector on and drive it to see if any obvious problems are able to be corrected before the inspection.
Determine how and where interviews and any inspection of files should take place
Files should be brought to the inspector in a conference room rather than allowing the inspector to peruse the files. Make sure that the files are well organized so that requested records can be found easily.
During the inspection, set a cooperative tone at the first meeting
Assure the inspector that if you cannot answer a question immediately, you will find the answer as soon as possible. Mention the facility’s commitment to compliance. Ask, in a non-threatening way, whether the inspector is familiar with the operations at this type of facility. As a part of the opening conference, inform the inspector of appropriate safety rules for your facility.
Go with the inspector everywhere and take notes on what they are seeing
If the inspector takes samples, take duplicate samples. Ask what the samples will be analyzed for. Before answering any of the inspector’s questions, rephrase the questions to make sure that you understand them completely.
Correct Problems and Follow Up
If the inspector notes a problem that can be corrected immediately, have the problem corrected, if possible, while the inspector is still on-site and ask the inspector to re-inspect the problem. At the close of the inspection, ask for the inspector’s impressions of any noncompliance and tactfully correct any misconceptions. If the inspector identifies a noncompliance, ask if the inspector expects any enforcement action.
Ask to receive a copy of the inspection report and all sample results
Ask when the report will be available. As a follow-up to the inspection, send any information the inspector requested that was not immediately available including answers to questions not answered at the time of the inspection. Describe actions taken or underway to correct any noncompliance observed at the time of the inspection. After receiving the inspection report, review it for accuracy and inform the inspector in the event of any inaccuracies in the inspection report.
In the event you receive a “Notice of Violation” or NOV, retain professional counsel
Regulatory agencies treat repeat violations more severely than first time violations. Therefore, prevent a citation if at all possible. It may be necessary to have third party consultants or legal counsel present during discussions with regulatory agencies, especially in regard to enforcement actions. Having an attorney for violations is good, however, this is not necessary as a routine procedure and may be viewed as adversarial.
Build good working relationships with regulators
They can be invaluable over the long term. To bring legal counsel to a technical meeting sometimes results in a perception on the part of regulators that the facility is positioning itself in an adversarial as opposed to a cooperative mode.