Preparing for a Visit by the Department of Environmental Protection Inspector Visits

Inspections may occur as part of the regular Plant visits of the Department of Environmental Protection. These visits are designed to ensure general compliance with environmental legislation. Inspections may also be made following a complaint or when matters of noncompliance have been reported to the Department of Environmental Protection by the person who holds the license ("Approval") necessary to operate the Plant.

Procedures should be in place to ensure that inspections are dealt with in a consistent and logical manner. Ideally, a Compliance Manual, including a section dealing with inspections, should be available. The Manual should deal with the following matters:

  1. Ensure that all employees are aware of the inspectors' rights and their rights to counsel;
  2. Identify one contact person to deal with the inspectors and to ensure that at least two plant personnel are present at meetings;
  3. Keep legal counsel informed, in particular if the purpose of the visit is not routine;
  4. Consider having legal counsel attend any meetings that are part of a non-routine inspection;
  5. Ensure that the inspector is accompanied throughout the plant and that concurrent readings and samples are taken for your review and analysis;
  6. Ensure that the contact person records the relevant points of each visit including who attended, what was said and by whom;
  7. Be careful in answering questions and answer the question directly without providing unnecessary background information;
  8. Be co-operative but cognizant of your rights at all times; and
  9. Summarizes the legal authority for and your response to the presentation of a search warrant for Environmental Protection.

Search Warrants

The Criminal Code deals with the reach and scope of search warrants. Alberta's Provincial Offences Procedure Act specifically adopts Part XV of the Criminal Code. Section 487 of the Code authorizes the seizure of anything which "will afford evidence with respect to the commission of an offence." The Supreme Court of Canada has held that the section's scope is wide enough to authorize seizure of "due diligence" evidence such as audits or other studies. Although this power would only be used following receipt of a complaint or the occurrence of another event not authorized by your Approval, your Compliance Manual should deal with the issue. Legal counsel should be called immediately. In addition, you should review your circumstances and design a system which would support an argument that solicitor-client privilege is available to protect due diligence or other reports. In certain circumstances privilege may attach to reports and other documentation obtained as part of the process of providing legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.