ILMA Compoundings July 2018 - 40

COUNSEL COMPOUND

When the Government
Inspector Knocks
G
By Jeff Leiter

overnment enforcement activities, including unannounced
inspections, are a fact of life
for the regulated community. Federal,
state and local governments routinely
conduct on-site inspections under
environmental, workplace safety,
immigration, transportation and
other statutes. At April's Management
Forum, ILMA members talked about
recent on-site visits by Department of
Homeland Security and Department
of Transportation inspectors.
While the topic is worthy of a more
detailed session at a future ILMA
meeting, I wanted to share some of
my thoughts on how to deal effectively
and professionally with an inspection.
How a company handles an inspection
affects whether an enforcement action
is taken, what sort of action is taken
and potential penalties.
As an initial matter, inspections
present an opportunity to develop a
rapport with the agency's representative. Show courtesy to the inspector.
There is no substitute for having a firm
knowledge of what is expected from
both the facility and the inspection.
The statutes authorizing inspections differ significantly, with some
requiring written notice, along with
a statement of the reasons for the
inspection, before the agency can enter
the facility. Other laws contain no
notice provisions. These statutes also
differ as to whether the agency can use
"representatives," such as consultants,
to enter a facility or review records.

40

JULY 2018

| COMPOUNDINGS | ILMA.ORG

As an initial matter, inspections present
an opportunity to develop a rapport with
the agency's representative."

While most agencies have the ability
to inspect facilities, they are subject
to Fourth Amendment constraints,
including the requirement to obtain
a search warrant. While there are
exceptions to Fourth Amendment
protections, such as the "plain view"
doctrine, one should consult with
counsel before refusing to consent
to an inspection and making the
inspector obtain a search warrant. The
potential advantage to denying access
is that it provides an opportunity to
correct problems. But, denial of access
may lead the inspector to assume that
the facility has something to hide.
If access is permitted, the facility
in many circumstances can "manage"
the inspection, such as agreeing to the
areas to be visited, discussing whether
certain documents should be produced
or having time to produce documents.
Obviously, this leads to having a plan
in place before an inspector is in the
lobby of the plant, facility or office. An
inspection should not be handled on
an ad hoc basis. At a minimum, the
company should have guidelines that
apply when an inspector arrives, such as
notifying guards and receptionists not
to admit them beyond reception or gate
areas until the inspector is accompanied
by appropriate personnel.

Agencies have different procedures
as to whether there is a formal opening
conference before an inspection.
However, the facility can essentially
create such a conference by asking the
inspector if cameras, video cameras or
tape recorders will be used, and - if
sampling will be done - asking for
the specifics of how it will be done and
whether split samples can be collected.
The facility should inform the inspector if any areas contain or might reveal
trade secrets or expose the inspector to
safety or health hazards.
There is the "balancing act" of
trying to be helpful and make a good
impression, while being careful not to
admit anything. Keep in mind that it
can be a criminal offense to misrepresent facts or lie to the inspector.
I usually recommend that at least
two people accompany the inspector,
with one person taking detailed notes
of what the inspector saw and asked,
especially if the inspector visibly or
verbally reacts to something. If notes
are taken, a copy should not be given
to the inspector. During the walkaround, one representative should
always be with the inspector. However,
the representative should try to say
very little, because even an innocuous comment may be used in later
enforcement proceedings.


http://www.ILMA.ORG

ILMA Compoundings July 2018

Table of Contents for the Digital Edition of ILMA Compoundings July 2018

LETTER FROM THE CEO
INSIDE ILMA
WHAT’S COMING UP
INDUSTRY RUNDOWN
In the Know
International Insight
Market Report
HIGHER RATES, TIGHTER CAPACITY
BEARING FRUIT IN THE FOOD-GRADE LUBRICANTS MARKET
ACHIEVING PEAK PERFORMANCE
BUSINESS HUB
COUNSEL COMPOUND
WASHINGTON LANDSCAPE
IN NETWORK
Member Connections
Cross Connections
PORTRAIT
ILMA Compoundings July 2018 - Cover1
ILMA Compoundings July 2018 - Cover2
ILMA Compoundings July 2018 - 1
ILMA Compoundings July 2018 - 2
ILMA Compoundings July 2018 - LETTER FROM THE CEO
ILMA Compoundings July 2018 - INSIDE ILMA
ILMA Compoundings July 2018 - 5
ILMA Compoundings July 2018 - 6
ILMA Compoundings July 2018 - 7
ILMA Compoundings July 2018 - 8
ILMA Compoundings July 2018 - 9
ILMA Compoundings July 2018 - WHAT’S COMING UP
ILMA Compoundings July 2018 - 11
ILMA Compoundings July 2018 - INDUSTRY RUNDOWN
ILMA Compoundings July 2018 - 13
ILMA Compoundings July 2018 - 14
ILMA Compoundings July 2018 - In the Know
ILMA Compoundings July 2018 - International Insight
ILMA Compoundings July 2018 - 17
ILMA Compoundings July 2018 - Market Report
ILMA Compoundings July 2018 - 19
ILMA Compoundings July 2018 - HIGHER RATES, TIGHTER CAPACITY
ILMA Compoundings July 2018 - 21
ILMA Compoundings July 2018 - 22
ILMA Compoundings July 2018 - 23
ILMA Compoundings July 2018 - 24
ILMA Compoundings July 2018 - 25
ILMA Compoundings July 2018 - 26
ILMA Compoundings July 2018 - 27
ILMA Compoundings July 2018 - BEARING FRUIT IN THE FOOD-GRADE LUBRICANTS MARKET
ILMA Compoundings July 2018 - 29
ILMA Compoundings July 2018 - 30
ILMA Compoundings July 2018 - 31
ILMA Compoundings July 2018 - 32
ILMA Compoundings July 2018 - 33
ILMA Compoundings July 2018 - ACHIEVING PEAK PERFORMANCE
ILMA Compoundings July 2018 - 35
ILMA Compoundings July 2018 - 36
ILMA Compoundings July 2018 - 37
ILMA Compoundings July 2018 - BUSINESS HUB
ILMA Compoundings July 2018 - 39
ILMA Compoundings July 2018 - COUNSEL COMPOUND
ILMA Compoundings July 2018 - 41
ILMA Compoundings July 2018 - 42
ILMA Compoundings July 2018 - WASHINGTON LANDSCAPE
ILMA Compoundings July 2018 - Member Connections
ILMA Compoundings July 2018 - 45
ILMA Compoundings July 2018 - Cross Connections
ILMA Compoundings July 2018 - 47
ILMA Compoundings July 2018 - PORTRAIT
ILMA Compoundings July 2018 - Cover3
ILMA Compoundings July 2018 - Cover4
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