Displaying items by tag:Environmental Law

Companies and others subject to environmental and land use laws regularly treat agency inspections too casually. Environmental enforcement is on the upswing, well-funded, and will not go away. Government agencies plan to increase inspections, not only for ascertaining routine compliance but also for spotting violators and gaining information for enforcement.

Agency inspectors should and will use every lawful means to investigate and sue or prosecute violators. At the same time, businesses and landowners should and are becoming aware of their rights and duties regarding inspections. In most situations, it is best to understand and accommodate inspections.

Even then, it is important to plan ahead, control the visit, minimize confrontation, push back where warranted, memorialize any violations found and curative actions promised, involve your higher ups, and keep a record of compliance and any permanent changes you make.

Consequently, it makes sense for all regulated entities to be prepared to deal with expected and legitimate inspections, even while knowing how to protect against unfair or illegal searches.

Here are some practical tips for handling agency inspections in a businesslike way: This is not legal advice, but rather merely what sophisticated businesses and landowner do:

• Designate a manager (and backup) to handle inspections. Instruct the receptionist to notify this person of any inspection by any government entity, local, state or federal.
• Be alert to out-of-the ordinary, non-routine inspections, especially by a team of agency personnel whom you do not know. This can have more serious consequences.
• Request the inspector's and team’s credentials and copy, scan, copy, or photograph them. Obtain at least business cards, read any badges, and of course read and keep any warrant.
• Know whether to invoke your right to insist on a search warrant (issued by an agency or court). Understand this right and what to do and say before you do this.
• Ask what is the purpose of the inspection. Repeat what they say to confirm. Determine for what parts of the property such access is sought and who intends to go there.
• Ask if the inspection will be outside or inside buildings, and will it include viewing documents on the site or in the office. Require safety measures for dangerous areas.
• Learn if the inspection is based on a complaint to the agency, when it was made, and by whom (if they will divulge) about what specifically described incidents or observations.
• Notify your executive and manager in charge of the site or operation being inspected. If you know the date and time ahead, notify your environmental attorney and consultant.
• Record on a sign-in sheet the names of all persons conducting or attending the inspection, including your own people. Make sure you have full names, agency, addresses, and titles.
• Discourage video recordings by the inspectors, and disallow photos of proprietary or other confidential areas, equipment, and processes. Leave your security cameras on.
• Duplicate any photos and sampling done by the inspectors (eg. take split samples) at the same time and label them. If not possible, get assurance to receive duplicates and results.
• If possible, trace the route of inspection on a map or diagram, or ideally with GPS or other location-identifying technology.
• Restrict the inspection to the stated purposes, property area, and legally-required reports and files. Remind the inspector of their originally stated purpose and limitations.
• Protect trade secrets and other proprietary information by a letter agreement before disclosure. Put away such information normally left out and visible.
• Inquire at the end if any violations or deficiencies have been found by the inspector. Repeat them back to confirm. Say you will deal with them.
• Request a copy of the inspection form and the final report when prepared. Ask if and when you will receive them. Confirm your address and the expected date.
• Prepare your own internal inspection report for your record. Write to the agency to acknowledge any findings of the inspector and your promised changes or actions.
• Watch the mail for receipt of violation notices, cease & desist orders, enforcement orders, or citations (aka tickets) as a result of the inspection.
• Act on the inspection results and any reports or notices, or at least reply, to prevent the matter escalating to a lawsuit or criminal prosecution. Be aware of your rights to appeal.
• If you receive a violation notice, citation with or without penalties, enforcement order, permit suspension, or legal document, know how to appeal it to avoid it becoming final.
• Confirm in your business files the progress of all enforcement actions, steps taken, compliance reached, and any final resolution so you have a permanent record.

This Lunch & Learn virtual event is sponsored by MACC and is FREE and OPEN to all — MACC members and non-members alike! Learn how recent developments in environmental, land use, real estate, municipal, energy, climate, and constitutional law affect your work.

In an interesting coincidence a U.S. District Court issued a ruling that the Department of Energy (DOE) violated federal law in issuing its proposed rulemaking to repeal the Environmental Protection Agency’s (EPA) endangerment finding for greenhouse gases. Two weeks later, the Administration repealed the finding, anyway, on its own. 

On May 29, 2025, the U.S. Supreme Court significantly impacted how agencies comply with NEPA, and how courts review compliance, in its decision Seven County Infrastructure Coalition v. Eagle County et al, 605 U.S. (No. 23-975, May 29, 2025). 

A. National Environmental Policy Act

Congress enacted the National Environmental Policy Act (NEPA) to declare a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and [to] fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a).

Perhaps surprisingly, only after the fourth time Massachusetts enacted legislation extending the life of most land use and environmental permits, there is now an appellate-level court decision ruling that such extensions are added onto, rather than run concurrently with, the time period set by the law under which the permit was granted.  

Firm founder and senior partner Gregor McGregor this year has prepared his annual survey of environmental law developments in PowerPoint form. It will be further updated throughout the current year. It covers federal, Massachusetts, and municipal court cases, laws, regulations, policies, and enforcement.

The Town of Brookline smoking ban case has favorable implications for local environmental laws.

On the state level, the new Massachusetts Climate Law, An Act Creating a Next-generation Roadmap for Massachusetts Climate Policy, set ambitious statewide limits on emissions to achieve net zero by 2050. With interim emissions reduction goals, this new statute should revitalize the need for quick climate solutions and collaborative processes across all sectors.

EPA in April listed two ubiquitous “forever” PFAS chemicals -PFOA and PFOS- as hazardous substances under Superfund (CERCLA), triggering reporting, testing, cleanup, and monitoring responsibilities for arrangers, transporters, treaters, disposers and other Potentially Responsible Parties (PRPs), including manufacturers, users, and property owners under Superfund’s strict, joint and several, and retroactive liability.