Extended Degree Program
Lecture Notes

Approximate Time:

6 hours.

Key Points

Adequate and accurate information is vital to the operation of an administrative agency.¬Ý Virtually every activity in the department produces valuable information.¬Ý This is especially true with regard to an inspection program.¬Ý There are two main sources of information -- that which is obtained by the inspector through observations, sampling and testing, and that which is obtained from a regulated industry or activity through required records and reports.

A.¬Ý What Information?

From a practical point of view, the question often becomes "what information is required or necessary in the case file or record?".¬Ý Unless the enabling statute requires that certain information be kept, the answer to this question is basically an administrative one -- requiring a determination of the type, amount and form of information necessary to operate an effective regulatory program.¬Ý However, there are several areas in which legal concerns can help to define the important data which must be included in a case file.

1. Required Records/Information: ¬Ý Those items required by enabling legislation, i.e., statutes, codes and rules and regulation often specify that certain records must be maintained by a regulated industry and made available to the administrative agency.¬Ý they may also require that the administrative agency establish and maintain certain records.
2. Evidence: ¬Ý Information which may be used at some point as evidence in an administrative, criminal or civil proceeding should adhere to the Rules of Evidence.¬Ý These, plus certain legal precedents, govern not only what kind of information is needed, but also how it may be obtained and kept.¬Ý At a minimum, it is usually necessary to have the following information:
   1. Location of the Property -- identified by address, lot and block records, platting designation, or some other specific, verifiable identification;
   2. Owner of Record -- including any agents, operators, managers, executors, heirs, unrecorded purchasers, etc.;
   3. Legal Rationale for action -- either the case involves a regulated industry or activity (i.e., a routine or periodic inspection) or it is concerned with an event or situation covered by statute, regulation or common law within the jurisdiction of the agency (complaint, survey, inquiry based inspections); and
   4. Facts of the Case/Incident -- all names, dates, places, times, sample and test results, observations, inspection reports, correspondence, etc., which relate to the case (normally these are kept in chronological order).
3. Inappropriate information: ¬Ý Certain types of information may be inappropriate and should not be contained in a case file.¬Ý The "rules of evidence and relevance" may be helpful in judging whether a specific item should or should not be included.¬Ý As a rule of thumb: any information which would be clearly judged by the courts as inadmissible in a legal action probably does not belong in a case file.

B. Obtaining/Gathering Information

1. Voluntary Disclosure:¬Ý Information may be obtained in a variety of ways and still be considered voluntary.¬Ý Responses to questions asked during an inspection, information provided in personal or telephone conversations, and information provided in response to questionnaires and surveys are all ways of obtaining information, when properly recorded and documented, voluntarily.¬Ý Grad states that the voluntary disclosure of information "creates no legal problems."¬Ý There may be no legal problems with the method of obtaining the information, but there may well be legal problems concerning the use and disclosure of this information.¬Ý (This issue will be dealt with in more detail in lesson 10)
   
2. Compulsory Disclosure:¬Ý It may not be possible or practical for an agency to commit the resources necessary to continuously monitor the operation of an industry or site.¬Ý Requiring the owner/operator of the regulated activity to maintain records of key items, conditions or processes (e.g., records of chlorination, BOD levels, and food temperatures.) can be an effective way of ensuring compliance between visits.

C. Methods

1. Observations:¬Ý The principal means of identifying and documenting a problem is for the inspector to see it.¬Ý This places a considerable burden on the inspector.
   1. He/she must be able to recognize the problem (deviation from code or standard, unsafe practice, etc.).
   2. He/she must be able to describe it in terms that will later be understood by each of the parties concerned (industry, supervisor, courts, etc.).
   3. He/she must document its existence--data, time, place, circumstances and persons present (photographs can be invaluable).
      NOTE:¬Ý The procedures on recognition of various industrial hygiene and safety hazards (OSHA Field Operations Manual) should prove useful to environmental health inspectors in many other program areas.
2. Test and Samples:¬Ý Where simple observations are not sufficient to show or document the existence of a hazard, the inspector must use other means.¬Ý Time, temperature, light and noise levels are common physical factors which can be measured on site.¬Ý So can a number of situations involving chemical concentrations, e.g., CO levels, chlorine concentration in water, and certain other gases in air.¬Ý Most biological, and certain physical and chemical, problems require the collection and laboratory analysis of samples.
   1. In Situ Tests .¬Ý For tests conducted at the site of an investigation, the legal requirements include:
      • The test used be accepted -- by common sense (e.g., a thermometer for tem-perature), by testing and practice (e.g., Standard Methods for the Examination of Water and Wastewater), or by theoretically consistent design;
      • The tests must be conducted under proper circumstances;
      • Any instrumentation must be properly calibrated;
      • The tests must be carried out in accordance with accepted practice; and,
      • The results must be recorded.
        The further a test is from an obvious common sense standard, the more likely it is to be challenged, and therefore, the greater is the degree of documentation of its appropriateness, reliability and accuracy that will be required.
   2. Sample Collection and Analysis .- For sample collection and analysis, all of the above requirements are equally true.¬Ý In addition¬Ý there is a requirement that the agency must be able to demonstrate (document) that the results in the record are the results of the sample collected, and further that the sample was indeed analyzed (within the proper limits of time, temperature, accuracy, procedures, etc.) and that it was not contaminated, tampered with or otherwise made unsuitable for use as evidence.¬Ý This is known as the chain of custody requirement
3. Subpoena duces tecum: ¬Ý Another important source of information is the regulated industry.¬Ý Most regulated industries, businesses or other activities maintain records of their operation.¬Ý In some cases the administrative agency can/should require that certain records be kept and made available to it. (See below.) The subpoena duces tecum is a useful tool for obtaining necessary information that is not otherwise available.¬Ý This is a court order to produce the specified documentary material.
   1. Nature/Authority. ¬Ý The subpoena should not be considered as a routine investigatory tool.¬Ý In the first place it is usually not needed, and in the second, not all administrative agencies have the legal authority to use it.
   2. Requirements/Use .¬Ý The material covered by the subpoena must be relevant to the purpose of the agency, i.e., it can not be used as a "fishing expedition", but must be confined to certain specified data concerning an operation which the agency has specific authority to regulate.¬Ý However, note that you do not have to wait until you have filed a legal action before you can use the subpoena duces tecum.¬Ý An agency, which has the power to obtain information by subpoena duces tecum may use it to discover and produce information necessary to determine whether further legal action is warranted.
4. Industry Records:
   1. Requiring an Industry to Maintain Records .¬Ý There have been some attempts made to set aside the ability of an agency to require regulated industries to maintain and make available records.¬Ý These have usually involved an argument that such a requirement amounts to "self-incrimination", and hence is unconstitutional.¬Ý The courts, however, have generally been unsympathetic to this argument.¬Ý (See Reading #11, U.S. v. Tivian Laboratories.)
   2. Program Requirements .¬Ý A program which requires an industry to supply records demonstrating that it is taking the mandated actions to protect health and safety can be an effective and efficient method of regulation, if the agency:
      • Knows what information it needs to have reported in order to determine compliance;
      • Is able to collect it, i.e., the industry must be able to supply the data;
      • Is able to monitor the incoming reports to ascertain that all the regulated industries are reporting, and that the reports are complete and the data is reliable; and
      • Is able to verify the data through periodic inspections or other methods.
        If each of these are in place, then, the failure of an industry to file a report will serve as a trigger or alarm that will permit the agency to take immediate enforcement action.
   3. Failure to Report .¬Ý The simple act of failing to file a required report should be immediately obvious to the regulating agency and permits the agency to choose from several enforcement options, e.g., revocation of the license, obtain a search warrant, subpoena of records, etc.¬Ý Thus, the failure of a regulated industry to file the required reports is generally considered a misdemeanor.
   4. Reliability of Required Records/Reports .¬Ý A more difficult problem for the agency is identifying inaccurate or unreliable information.¬Ý This requires close scrutiny of all submitted reports, considerable experience with the regulated industry in order to know what is reasonable and what is not, and familiarity with the particular business or establishment.¬Ý Past case histories, complaints and periodic inspections are all useful sources of information which may indicate that a record or records contain false data.¬Ý Common sense and an understanding of the economic incentives for filing false reports may also provide a basis for selecting those industries/businesses which require closer scrutiny.¬Ý However, from a legal point of view, it would be wise to establish a written policy and procedure which outlines the reasons, and the criteria, for selecting such priority establishments.
      
      NOTE: ¬Ý The submission of false information is harder to detect and is more likely to present a greater health and safety hazard, than is the failure to submit a report.¬Ý It also constitutes a form of fraud and, therefore, the courts tend to take a much tougher stand on falsification of records than they do on failing to report.

    

Progress Assessment Exercise

Download the following Microsoft Word file and answer the questions. Your responses should be brief, yet contain sufficient depth to demonstrate your understanding of the issues and/or concepts involved. All progress assessment exercises should be typewritten, well organized and clearly presented. You will be evaluated on the effectiveness and organization of your responses as well as on the substance of the content. When you have finished, email your answers to the instructor. You may also send them by US mail to:

Mr. Charles D. Treser
Department of Environmental & Occupational Health Sciences
University of Washington
Campus Box 357234
Seattle, WA 98195-7234

Exercise No. 5

When you have finished you may proceed to Lesson 6 Inspections and Investigations.