the role of the inspector in enforcement: illinois...
TRANSCRIPT
The Role Of The Inspector In Enforcement: Illinois EPA
The strength of the AG’s case depends on how the inspection was conducted
Problems with the inspection can make it difficult for the AG to prove the case in court
Defendant will challenge
The Role Of The Inspector In Enforcement: Delegated Agencies
Illinois EPA delegates its inspection authority to local governmental agencies
Illinois Constitution, Article VII, Section 10
Illinois Environmental Protection Act, Section 4(r)
Delegated agency performs inspections of permitted facilities, citizen complaints about illegal dumping, open dumps and storm water-related inspections
The Role Of The Inspector In Enforcement: Delegated
Agencies Illinois EPA gives the agency a grant
Written delegation agreement
Training and certification of delegated agency inspectors
Delegated agency stands in the shoes of Illinois EPA
Purpose of delegation: extension of Illinois EPA resources
Delegation Stats for FY 2015
For fiscal year 7/1/14 – 6/30/15, 19 local governmental units have delegation agreements with Illinois EPA
Total approximately $1.5 million in grants to delegated counties from Illinois EPA
Inspections: Some Initial
Considerations For enforcement purposes, an inspection
is more than just going out to a facility and doing a walk through
A good enforcement-focused inspection doesn’t simply happen; it’s the result of good advance planning
Pre-Inspection Steps
Some preliminary considerations before conducting an inspection: Is the inspection being done because of
specific compliance issues/concerns? How big is the facility? Is it a complicated facility? What’s the facility’s compliance history like?
Pre-Inspection Steps
What information/documents regarding the facility are available to review? Goal: Try to learn as much as possible about
the facility before you conduct the inspection Consult all possible information sources
Pre-Inspection Steps
Develop and Inspection Checklist
Why develop a checklist?
Becomes a set of SOPs for conducting the inspection
Acts as a “fail safe”
Advantages and disadvantages of us a checklist
Example: Chrome Plating Facility
Monitoring Records
O&M Plan
Plating Tanks
Pollution Control Equipment
Conducting the Inspection
Primary objective of the inspection – to determine whether facility is in compliance
Secondary objective – to determine whether the facility has the management systems in place effectively operate facility
Conducting the Inspection
Before you even enter the facility, look around, do you see this?
Conducting the Inspection
Or this?
Conducting the Inspection
Conditions outside the facility may alert you to problems on the inside
Do a perimeter search or a “drive by” before beginning your inspection
May provide you with the opportunity to witness facility employees engaged in their actual day to day waste handling, operational and housekeeping practices
The Role Of The Inspector In Enforcement: Illinois EPA
The strength of the AG’s case depends on how the inspection was conducted
Problems with the inspection can make it difficult for the AG to prove the case in court
Defendant will challenge
The Role Of The Inspector In Enforcement: Delegated Agencies
Illinois EPA delegates its inspection authority to local governmental agencies
Illinois Constitution, Article VII, Section 10
Illinois Environmental Protection Act, Section 4(r)
Delegated agency performs inspections of permitted facilities, citizen complaints about illegal dumping, open dumps and storm water-related inspections
The Role Of The Inspector In Enforcement: Delegated
Agencies Illinois EPA gives the agency a grant
Written delegation agreement
Training and certification of delegated agency inspectors
Delegated agency stands in the shoes of Illinois EPA
Purpose of delegation: extension of Illinois EPA resources
Delegation Stats for FY 2015
For fiscal year 7/1/14 – 6/30/15, 19 local governmental units have delegation agreements with Illinois EPA
Total approximately $1.5 million in grants to delegated counties from Illinois EPA
Inspections: Some Initial
Considerations For enforcement purposes, an inspection
is more than just going out to a facility and doing a walk through
A good enforcement-focused inspection doesn’t simply happen; it’s the result of good advance planning
Pre-Inspection Steps
Some preliminary considerations before conducting an inspection: Is the inspection being done because of
specific compliance issues/concerns? How big is the facility? Is it a complicated facility? What’s the facility’s compliance history like?
Pre-Inspection Steps
What information/documents regarding the facility are available to review? Goal: Try to learn as much as possible about
the facility before you conduct the inspection Consult all possible information sources
Pre-Inspection Steps
Develop and Inspection Checklist
Why develop a checklist?
Becomes a set of SOPs for conducting the inspection
Acts as a “fail safe”
Advantages and disadvantages of us a checklist
Example: Chrome Plating Facility
Monitoring Records
O&M Plan
Plating Tanks
Pollution Control Equipment
Conducting the Inspection
Primary objective of the inspection – to determine whether facility is in compliance
Secondary objective – to determine whether the facility has the management systems in place effectively operate facility
Conducting the Inspection
Before you even enter the facility, look around, do you see this?
Conducting the Inspection
Or this?
Conducting the Inspection
Conditions outside the facility may alert you to problems on the inside
Do a perimeter search or a “drive by” before beginning your inspection
May provide you with the opportunity to witness facility employees engaged in their actual day to day waste handling, operational and housekeeping practices
To announce or not to announce? That is the question. . .
To announce or not to announce? That is the question. . .
Conducting the Inspection
Ask to speak with owner/responsible person
Show your credentials
Explain the purpose of your inspection
Conduct initial conference
Make sure you know the legal scope and limits on your inspection authority
Conducting the Inspection
Next step: ask to review facility’s records
Provides you with additional information about facility’s compliance status
Maybe gives you additional ideas about what to look for during walk through?
Should you ask for copies of records?
Conducting the Inspection
Touring the facility:
Use your checklist to guide you
Use all your senses while conducting your inspection
Ask lots of questions and make sure your questions are being fully answered
But make sure you’re listening and processing everything you’re being told
But be prepared for . . .
Conducting the Inspection
Conducting the Inspection
• Four types of information you can gather during your inspection
1. Testimonial
2. Real
3. Documentary
4. Demonstrative
Conducting the Inspection
Recording your observations
Critical to conducting an inspection that will be used or relied on in any subsequent enforcement action
Make sure it’s going to be useful later
Use objective/non-judgmental language in recording your observations
Conducting the Inspection
Recording your observations/Sampling
When should you sample?
What should you do when you sample?
How should you handle your samples?
Conducting the Inspection
Recording your observations/Photographs
Raises some of the same questions as sampling
It all makes sense now, but how do you make sure it will make sense later?
What to do with your photographs after you’ve taken them? (Archiving)
Conducting the Inspection
Recording your observations/Notes
Why should you take notes anyway?
How should you take/record them?
What should you do with your notes after the inspection?
Concluding the Inspection
Conduct brief post-inspection meeting
Keep it brief
Be very careful about what you say during this meeting
And last of all: remember that everything you say or doing during the inspection is potentially something you may be called on to testify about at a later date
NARRATIVE REPORT
INTRODUCTION
GENERAL INFORMATION
SUMMARY OF FINDINGS
HISTORY OF FACILITY
NARRATIVE REPORT
INSPECTION ACTIVITIES
ENTRY/OPENING CONFERENCE
RECORD REVIEW
SITE OBSERVATIONS
EVIDENCE/SAMPLE COLLECTION
CLOSING CONFERENCE
NARRATIVE REPORT
ATTACHMENTS
DOCUMENTS
ANALYTICAL RESULTS
PHOTOGRAPHS
MAPS/SITE PLAN
YOU’VE WRITTEN YOUR INSPECTION REPORT
The Inspector’s Role After the Inspection
After you’ve written your inspection report, you may have to provide additional Support for your case by:
1. Providing an affidavit
2. Being deposed in the case
3. Testifying at trial/hearing
All three require that you know what’s in your file and your report.
Affidavits Typically given to support/oppose motions
for summary judgment or contempt proceedings
Must be based on your direct, personal knowledge
Typically drafted by attorney
Whoever drafts the affidavit, you have to be 100% comfortable with every statement that’s in it
Depositions Two types – fact witness and expert
witness
Most often, you’ll be called as a fact witness
Deposition is the opportunity for the defendant’s attorney to find out what you know about the case
Depositions
Your ASA or AAG will prepare you for your deposition to make sure you understand what you’re likely to be deposed about
It’s critical to know what’s in your case file and inspection report
Listen to the questions answered
Answer questions fully and truthfully
Don’t over explain and don’t speculate
Trial
Typically, the State will be calling you as a witness
Why are you being called as a witness?
To provide factual support for the State’s case
Counter defense claims
Trial
Remember, when you’re on the stand testifying, your credibility is being judged, therefore:
Know your facts
Be confident when testifying
Don’t argue/get defensive
Project a professional demeanor
Using Your Inspection Report at Trial
Generally, must testify based upon your recollection of events.
What if you can’t recall?
Recollection Refreshed
Recollection Recorded
Questions?