March 17, 2020

New Rule Sets Procedures for Onsite Civil Inspections

EPA promulgated a rule on March 2, 2020 that establishes procedures for federally-credentialed EPA inspectors (and their contractors) when conducting civil inspections. [85 FR 12224] This action fulfills one objective of Executive Order 13892, requiring EPA (and other federal agencies) to establish a rule of agency procedure on how to conduct civil inspections. Located in new 40 CFR Part 31, EPA’s rule codifies the specific activities which may occur during such inspections. The rule does not apply to federally-credentialed state and tribal inspectors conducting inspections on EPA’s behalf. The rule also does not apply to investigations of environmental crimes.

New §31.1 lists a series of brief requirements for inspections and what actions an inspector may take:

Inspections shall take place at appropriate times and places;
Inspector credentials shall be presented and an explanation of the inspection provided;
An opening conference should be held discussing the scope of the inspection, any facility safety hazards, and records to be reviewed;
If samples will be taken, inspectors shall offer the facility split samples as applicable;
Inspectors shall offer a Small Business Resources Information Sheet to qualifying businesses;
Inspectors shall document observations, take photographs, and conduct interviews as needed;
Inspectors shall ensure their actions will not cause hazardous situations and wear personal protective equipment when appropriate;
A closing conference shall be offered to facility personnel to discuss observations, potential deficiencies, any concerns, and the facility’s initial response; and
After the inspection, inspectors shall prepare an inspection report and share it with the facility.

Preamble language

The rule’s preamble provides additional clarification on EPA civil inspection procedures. For announced inspections, inspectors should work with the facility to agree on a workable schedule. However, inspectors have the authority to conduct inspections without prior notice to a facility. Inspectors may seek a warrant for entry if denied access. Inspectors will not sign a facility waiver or any statement limiting EPA’s use of information. They also will not relinquish their credentials or any personally identifiable information such as a driver’s license.

Inspectors will manage confidential business information claims by the facility per 40 CFR Part 2, Subpart B requirements. Interviews with facility personnel will not be limited to environmental contacts but may also include process operators, contractors, maintenance personnel, process engineers, control room operators, and other employees working in the area(s) of interest. Records may be requested before or after an inspection in addition to the onsite records review. The inspection report to be shared with the facility may be a narrative, checklist, letter, email, or other type of document as appropriate.

The rule was effective on the promulgation date: March 2, 2020.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.