1) Handling of Hazardous Materials
2) Manifests
3) Logs
4) Labeling
5) Emergency Phone Contacts and Numbers
6) Bilge Water Management
7) Stormwater Permitting & Management
8) Pressure Wash Water Handling & Management

• Department of Environmental Protection: http://www.mass.gov.dep/
• MA Office of Coastal Zone Management: http://www.mass.gov/czm/
• MA Clean Marina Guide: http://www.mass.gov/czm/marinas/guide/macleanmarinaguide.htm
• NE EPA Marina Program: http://www.epa.gov/NE/marinas/marinatopics.html

1. Be ready with a policy known to and understood by all employees regarding official government visits, as well as being as prepared as possible to be in full compliance. All employees should know if your facility policy is to allow a government visitor to enter and proceed as he or she wishes (bad policy), or if your policy is to have them wait until you can have a particular, knowledgeable person from your facility present (good policy). In my opinion, a lawyer is usually not beneficial at most initial government visits, so long as the owner or operator has an appropriate policy in place and follows it. Facility owners and operators do have the right to deny entry for a government visit without a warrant, but many officials deeply resent being reminded of this fact, so the practical thing to do is usually to allow the visit to happen, subject to your own, reasonable conditions.

Reasonable conditions for government visits and inspections include: only in the company of a knowledgeable facility officer or designated representative; only when safe, in relation to other ongoing operations; only for periods of time which will not unfairly destabilize your regular operations; and only if “split samples” are provided for any samples taken, to be sure the facility can have independent lab tests done on all samples taken. Copies of all photographs and notes taken are also a highly desirable and fair condition of the visit. It is very important not to sign any “Consent for Entry” forms provided to you by the government without adding these conditions and deleting any of the approval provisions they have listed which conflict with these conditions.

2. Be ready with easily accessible copies of all relevant permits and approvals, so the government visitor and you can both be aware of and confirm compliance with all express requirements for your facility.

If you are aware of a regulatory program which you are subject to, but which does not have facility-specific permits, also have handy the generally applicable requirements to indicate the seriousness with which you take the subject of the government visitor’s daily work. If your facility is not in full compliance, it will not help you to express the opinion that the regulatory program is nonsensical in your reality so that is why you aren’t in compliance. Much like the state trooper who asks “do you know how fast you were going”, environmental inspectors like to know that you are aware of your responsibilities under the laws they enforce, that you have a good reason for not being in full compliance at this time, and (most important) that you are working towards compliance and that you welcome their guidance on how to accomplish compliance. Feigning ignorance is rarely beneficial.

By contrast, if you truly are unaware of a requirement which the government official says is applicable to your facility, do not pretend you are aware of it or argue that it shouldn’t matter whether you comply now that it has been called to your attention. Instead, listen, take notes, and ask for their help in how to get into compliance. Later, you can evaluate whether they are correct.

3. Establish (politely) the exact name, title and general area of authority and interest of the government person visiting.

Many state, federal and local agencies have similar sounding agency names and overlapping areas of responsibility, yet they do not speak for each other and they usually cannot “waive” each others requirements and standards. Any visit from any government representative is important, no matter what their title or appearance. The person visiting may be their to “learn on the job” or the person could be a career inspector gathering facts to support a new enforcement initiative from the “home office.” Either way, he or she can discover facts which are used later by many other government representatives who have not been to your facility and do not care how well you and your employee’s treated the original inspector. The person conducting the visit may also be overruled back at their office by more senior policy staff who desire a different outcome than “your “ visitor. Finally, treat every government visitor with as much overt respect as possible, because many inspectors respond to disrespect with a greater willingness to make discretionary calls with a heavier hand.

4. If at all possible, have two people accompany the government official at all times.

One person should be responsible solely for taking notes of all that is said and photographs of all areas of interest to the official; the other person interacts with the official. The “note taker” does not have to be knowledgeable about the details of environmental compliance, just a good note taker. You’d be surprised how memories can differ as to what actually occurred when one person is both answering questions and trying to track what happens.

5. Do not volunteer unasked-for information.

What you say may seem like harmless friendly conversation, such as “so glad you came today instead of tomorrow, when we’re getting a new generator installed.” Actually, that type of conversation can trigger some government inspectors to think of new areas they need to look into at your facility, or to consider whether your new equipment triggers a new regulatory threshold.

6. Do not guess.

Only provide answers you know are correct and do be prepared to say “I’ll look into that and get back to you” rather than risk an uncertain reply. There is no shame in needing to check.

7. Always follow up a promise, even on the smallest commitment.

As with anyone, reliability matters to environmental regulators. Making the effort to follow up with them without being reminded goes a long way when they have discretion on what to do next. “Waiting to see if they do anything” is usually a really bad strategy.

8. Put all understandings in writing.

Even if you do a “memo to file” for your own use instead of a confirming letter to the government representative, be sure to write down anything you are relying on regarding the visit. For example, if you are told “you can wait ‘til next weeks to have that stuff picked up”, write it down. Consider sending a confirmation letter to follow up the visit if you think the person will respond well to written clarity. If you think they were “cutting you a break” and will feel cornered into denying it if you send a confirmation letter, at least put it in writing in your own file.

9. Do not conclude the visit without an express understanding with the government visitor of what they expect of you for next steps and what you can expect of them.

Every true inspection is supposed to conclude with this discussion, usually in written form. With “voluntary” visits that are not billed as formal inspections, the parties may not think it is necessary to be so formal. For self-protective purposes, however, it is crucial for a facility owner or operator to be sure he or she understands exactly what is right and what is wrong according to the official visitor’s point of view. It could be weeks or even months before some visits result in the issuance of a compliance document, or one could never issue. Find out what to expect next.

10. Consult environmentally experienced legal counsel if you receive a written enforcement document or are unsure of the seriousness with which the government is treating alleged non-compliance.

You should not need a lawyer as a result of many government visits. In general, most environmental officials would rather show you how to comply and give you the opportunity to do so than to spend time fighting over what the penalty should be for the non-compliance. The times when this general rule is not true are when the official believes you have accomplished some economic gain from not complying, in which case they may well seek to penalize for what they calculate as that economic gain. Also, if they perceive actual environmental harm from your alleged non-compliance, they will require restoration of the harm.

As soon as you become aware of a government regulator’s interest in issuing an enforcement document containing penalties, and not simply notice of what you need to do differently and by when, it is prudent to at least consult experienced legal counsel. An experienced environmental lawyer should be able to outline for you right away if you have any options to minimize negative outcomes, based on your facility’s goals and priorities. For example, some facilities would rather pay a fine immediately than incur adverse publicity or jeopardize an impending loan refinancing by arguing whether a particular exception to the law applies. Other facilities might prefer to prioritize negotiating a compliance schedule in order to avoid absorbing capital improvement expenses all at one time. In any case, environmental regulations can be arcane and the enforcement process can be like learning a foreign language. When the result is important and in doubt, consults an experienced environmental lawyer to be your “interpreter” and your advocate.

• Banner Ads are only available to MMTA members at the incredible low cost of $100 per month.
  
  
• Over 250,000 pages visited during the first four months of 2005!
  
  
• BoatMA.com is THE boating site for Massachusetts and New England.