On March 2, 2020, the U.S. Environmental Protection Agency (EPA) published its On-Site Civil Inspection Procedures, (beginning page 12224). This action is in response to an Executive Order issued by President Trump on October 15, 2019, requiring federal agencies to provide regulated parties with “…rules by which the Federal Government will judge their actions….” specifically with regard to civil administrative enforcement and adjudication. The Executive Order included topics such as collection of information, guidance documents, “unfair surprise”, and cooperative information sharing. The latter requires agencies to propose procedures that will “…encourage voluntary self-reporting of regulatory violations by regulated parties in exchange for reductions or waivers of civil penalties.”
The Executive Order directed agencies that conduct civil administrative inspections to publish rules and procedures governing such inspections by no later than April 12, 2020. EPA's procedures cover topics such as timing and notification of inspections, inspector qualifications, obtaining consent to enter, actions taken during an inspection, records requests, and inspection reports. Overall, there's nothing “new” in the published rule that will substantially affect how inspections will be conducted in the future. However, facility owners and operators should have a general awareness of their rights, and responsibilities, under the published rule.
Inspection Timing and Notification
EPA inspectors should generally conduct inspections during “normal” work hours, but the EPA reserves the right to observe specific operations or activities at other times if circumstances require. The rule states that inspectors “…shall take reasonable steps to…agree on a workable [inspection] schedule…” but inspectors have the authority, and will conduct, inspections with or without prior notice to a facility.
EPA inspectors must hold a valid credential to perform the inspection. The EPA states that credentials are issued to inspectors who have completed relevant training for the health and safety hazards they may encounter on an inspection.
Consent to Enter
EPA inspectors must present their valid EPA Inspector Credentials upon arrival at a facility, shall describe the authority and purpose of the inspection, and “…where possible…” ask for consent to enter a facility. Inspectors are required to advise facility personnel that entry can be denied, but EPA may then seek a warrant for entry. EPA inspectors are directed not to sign any release of liability nor any statement that limits the EPA's use of information collected as a result of inspection.
If possible, the EPA inspector shall request an opening conference to be held as early as possible upon arrival at a facility. The purpose of the opening conference is to discuss the inspection objectives, request access to or copies of facility records, and to request interviews with facility employees. The opening conference is also the time to identify potential health and safety hazards that might be encountered at the facility. For example, since inspectors generally document observations with photos, identification of areas that are unsafe for electronics use should be covered at the opening conference. Also, the EPA may take samples during the inspection. Sampling methods and obtaining split or duplicate samples should be discussed at this time.
Confidential Business Information (CBI)
Facilities can claim CBI protections and receive assurance that inspectors have been trained to manage CBI. Such claims should be made in accordance to 40 CFR Part 2, Subpart B. If CBI may be a concern for your facility, it's best to prepare for this before the inspector shows up.
Interviews with Facility Personnel
EPA may conduct interviews as appropriate, including but not limited to environmental staff, process and control room operators, contractors, maintenance personnel, and generally any employee who works in an area of interest to the inspection.
EPA may request any records deemed relevant to the inspection, before, during, or after the inspection. Records may be provided in any format: paper, scanned, downloaded, or storage device.
The EPA inspector should offer a closing conference, when possible. Discussion of outstanding questions, missing documents, and the inspection follow-up are topics that might be covered. The EPA inspector may provide a summary of “areas of concern” at this meeting, but there's no requirement to do so.
After an inspection, the EPA will share an inspection report with the facility, though the rule doesn't specify a timeframe for this requirement. The report may be provided in a variety of formats including letter, email, or other type of document.
As mentioned above, there's little that is “new” in this rule regarding inspections. However, facility operators now have a specified work flow for future EPA inspections. Developing a plan before the inspector shows up has always been, and continues to be, prudent. Trinity's EHS Performance and Risk Management (EPRM) team can help you prepare such a plan and provide support for all auditing and inspection needs. Email Jerry Skaggs or call 800.229.6655 for more information.