INSPECTIONS AND SEARCHES PREPARATION AND RESPONSE Richard E. Glaze, Jr.

Balch & Bingham LLP Atlanta, GA 404-962-3566 [email protected]

AWMA August 3, 2011

Scope

   Civil vs. Criminal Enforcement Enforcement Mechanisms Response to Enforcement Investigations inspections information requests subpoenas warrants

Many cases can be civil or criminal

 Many as EPA cases could, theoretically, be either criminal or civil  In theory, very fine line between civil and criminal for many violations – very low intent or knowledge threshold

CRIMINAL PROSECUTION IS A GROWING THREAT

 Emphasis on Enforcement  Fewer Easy Cases  Substantial Resources

COMMON ENVIRONMENTAL VIOLATIONS       Hazardous Wastes (RCRA) Clean Air Act Release Reporting (CERCLA, EPCRA) Pesticide Misuse (FIFRA) Asbestos Removal (CAA) Discharges to Water or Pretreatment System (CWA)

Associated Federal Crimes

    False Statements Conspiracy Obstruction of Justice Fraud

Agency Enforcement Options

    Civil only Criminal only Parallel enforcement Consecutive

AGENTS/INSPECTORS

Agency civil inspectors have authority granted by statute – confined to Environmental Laws CID Agents have full title 18 authority –      guns warrants arrest power authority for all federal crimes Task force partners

Civil Case Development

 Inspections and Information Requests   Statutory information gathering authority via  Inspections   Self monitoring Information requests with mandatory answers (no 5 th amendment protection for corporations) Note: This information can be (and often is) used for criminal investigations/prosecutions

Authority for Civil Inspections

   “the Administrator or his authorized representative (including an authorized contractor acting as a representative of the Administrator),

upon presentation of his credentials -

(i) shall have a right of entry to, upon, or through any premises in which an emissions source is located or in which any records required to be maintained under paragraph 1 of this section are located, and (ii) may at

reasonable times

have access to and copy any records, inspect any monitoring equipment or methods required under paragraph 1 and sample any emissions which the (owner or operator of the source) is required to sample under paragraph (1).

Clean Air Act Section 114 (a) (3), 42 U.S.C. § 7413

Administrative Warrants

 When civil inspectors are rebuffed  Probable cause requirement much less burdensome: specific evidence of civil violations OR pursuant to neutral inspection scheme

Criminal Case Development     Leads:     Disgruntled Employees Citizens EPA and state agency referrals from civil Task forces Investigation (warrants, subpoenas interviews) Referral to DOJ Prosecution

Legal Basis for Criminal Warrants

FOURTH AMENDMENT to US CONSTITUTION

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable

searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

PREPARATION Compliance Keep production areas, materials and waste storage areas, and offices clean and organized Regulatory files segregated from operations files and financial files physically and electronically Document retention policy (limit paper) Strict compliance with email policies and limit emails when possible

Be Prepared, cont.

Don’t Scrimp Infrastructure Agency relationships Legal counsel

Prepare Employees

 Designate employees: To handle agency inspectors, including agents

What to do when EPA Arrives

       Check credentials Read warrant (make sure it is all there and correctly identifies the place) Accompany the agent/inspector and watch the agents carefully to protect your files Note what is inspected/searched/seized Be courteous but do not admit violations or volunteer unnecessary information Take samples of what inspector samples or request splits (CID won’t split) Offer copies of critical documents instead of originals

Employees

  Civil – go about your business Criminal – interview attempts  During search  After search

Response to Initial Contact Can Affect Enforcement Decision   Dishonesty, hiding or delaying production of information Refusal of Entry  Only in extreme circumstances   Can you fix it?

Will you have to disclose it anyway?

On their way out

- Get receipts for what was seized or copied - Ask what they are seeking and why get as much specific information as possible

after they leave

Unless inspection revealed no violations immediately assess potential violations and your response Corrective action is almost always appropriate (to avoid multi day penalties and knowing conduct) Consider reporting the corrective action before the agency makes demands

After they leave, cont.

Obtain inspection report as soon as possible Do not wait for report for corrective action, however Criminal warrant requires immediate action.

Conclusions

   Compliance Preparedness Response

Questions?

Richard Glaze, Jr.

Balch & Bingham LLP Atlanta, GA 404-962-3566 [email protected]