The ways in which companies could prepare for and deal with visits from environmental management inspectors (EMIs), also known as the Green Scorpions, were addressed by law firm Bowman Gilfillan senior associate Melissa Strydom van Dyk last week at an environmental seminar held by the firm in Johannesburg.

Companies had to have a set policy or procedure dictating what had to be done should an EMI arrive at its premises. This would ensure that the correct senior personnel member was contacted immediately on the EMI’s arrival, Strydom van Dyk said.

“Legal representation during the inspection or investigation is also allowed; however, this person is not allowed to interfere with the investigation. Having the company’s legal representative present during the investigation could prove helpful should that person have to respond to compliance notices or to prepare a defence in the case of prosecution at a later stage, as that person would be aware of the context in which the investigation took place.”

Businesses should also take minutes and photos of the investigation for reference at a later stage, if needed.

It was also important to determine whether an EMI visit was a routine inspection or an investigation into a specific issue.

“We also recommend asking for the identity card, designation and the assigned authority of the inspector. It is good to know from the outset that what the person wants to assess is within his or her authority. Should something become an issue in the compliance notice that was beyond that person’s authority, it can be contested,” Strydom van Dyk said.

When answering questions during an EMI visit, employees should take care not to divulge too much information. Answers should, therefore, be kept brief and to the point and personal opinions should be avoided.

“Employees have to be careful of not providing information that is or could potentially be incriminating,” she added.

Further, interviews should be conducted formally and the interviewee should know whether he or she is being questioned as a suspect or a witness. “Employees should be made aware of this, as we often find that lower-level employees are questioned and the information they divulge is then used at a later stage as State evidence in a criminal prosecution.

“We take the view that, if you do not know what you are being questioned as, you have a right to remain silent. Assume that you are being questioned as a suspect until you have written notice to the contrary,” she explained.

Other recommendations, from a compliance- management perspective, included keeping records of the dates of the commissioning, decommissioning, starting and stopping of certain activities within a larger facility.

“Timelines are important, as the law changes and an operation that may require a permit now might not have required a permit when it was started, which means that the start-up was lawful.

“When an EMI comes to site, he or she will ask for all the relevant permits and then it is important to know, for example, whether a storage facility required a permit when it was constructed,” Strydom van Dyk explained.

The conditions contained in the licences are also important. Companies should determine whether the conditions were achievable to avoid EMIs finding noncompliance as a result of unachievable or irrelevant conditions, she said.

“If licence conditions prove to be unachievable, legal advice can be valuable in determining the appropriate procedure to address this,” she said.

Companies also needed to keep records of permit, licence or authorisation conditions compliance, audits and procedures used to ensure compliance, Strydom van Dyk concluded.