EPA Formalizes RCRA Inspection Procedures
On March 2, 2020 EPA published a final rule formalizing the procedures that its inspectors must follow while conducting civil inspections under RCRA. The rule is consistent with long-standing practice. The rule codifies the inspection into 10 steps described below. I have provided best practice “tips” under each step.
1. Timing – generally inspections are to be performed during business hours, but EPA retains the right to inspect at other times when circumstances require.
Tip: EPA has the right to conduct announced and unannounced inspections. Regulated entities should be prepared for an inspection at any time. However, in most cases regulated entities will have an opportunity to work with EPA on scheduling to avoid potential inefficiencies. For example, if a facility’s environmental manager is not present at the time of the inspection, EPA may be amenable to rescheduling the inspection so that the person responsible for RCRA compliance is there to answer questions.
2. Credentials – inspectors must have valid credentials.
Tip: Regulated entities should always request credentials of inspectors and should not consent to any inspection by persons lacking current credentials.
3. Consent – inspectors must have consent to enter a facility and may sign a visitor log, but may not sign a waiver of liability and may not relinquish their credentials or personal ID.
Tip: RCRA, like most environmental laws, grants EPA a statutory right to inspect facilities. However, the constitutional protections against warrantless searches under the 4th Amendment always apply. Regulated entities should understand the scope of their right to refuse consent and understand the limited circumstances when such refusal is advisable.
4. Opening Conference – this is the meeting that begins the inspection and the inspector should discuss the objectives of the inspection and request relevant records.
Tip: Regulated entities should have a plan for where the opening conference will take place – ideally in a conference room. Use the opening conference as an opportunity to clarify the scope of the inspection and to agree on what process units will be inspected.
5. Physical Inspection – Inspectors shall inspect the areas, units, sources and processes relevant to the scope of the inspection.
Tip: Company personnel should always accompany EPA inspectors and walk with them through the physical inspection. The inspection should be limited to the areas relevant to the inspection.
6. Confidential Business Information – Inspectors are required to be trained how to handle confidential business information.
Tip: Regulated entities should review and understand EPA’s CBI regulations before the investigation. Documents and records should be maintained so that confidential information is clearly identified as such. If any confidential records are requested by an EPA inspector, the company should assert its claim of confidentiality at the time those records are produced.
7. Interviews – EPA inspectors may conduct interviews of “facility personnel as appropriate.”
Tip: The regulated entity has the right to determine which employees may be interviewed. Open-ended interviews with general facility personnel should be discouraged, and the environmental manager should be the primary conduit through which information is provided to EPA.
8. Records Review - Once the records requested by the EPA inspector are assembled, the EPA inspector shall review any records relevant to the facility inspection.
Tip: The importance of maintaining required environmental records in an organized system cannot be over-emphasized. The time to do this is before the inspection takes place.
9. Sampling – EPA inspectors may take samples when appropriate. Where applicable and practicable, during the opening conference, the inspector shall offer facility personnel the opportunity to obtain split samples or to collect duplicate samples.
Tip: If EPA takes samples, the facilty should always take split or duplicate samples. To be prepared to do this, the facility should always keep sampling supplies on-site.
10. Closing Conference - EPA inspectors shall offer a closing conference “as practicable.” In the closing conference EPA inspectors may discuss the next steps in the investigation and summarize any potential ‘‘areas of concern’’ identified in the inspection.
Tip: The Closing Conference is an opportunity for the facility to learn about the inspector’s preliminary conclusions. In general, this is not a time to comment or argue about any alleged violations. The facility will have an opportunity to submit a written response to any alleged violations.
Inspection Report - The rule also clarifies that after the inspection the inspector is required to prepare a written inspection report and share that document with the facility. If an inspection report identifies areas of concerns or alleged violations, the facility should promptly consult with legal counsel to prepare a response.
Overall, this rule is helpful in that it provides formal guidelines for how RCRA civil inspections are to take place. Regulated entities subject to RCRA should review these guidelines and internal procedures to ensure that the facility is prepared for an inspection.