The Environmental Protection Agency (EPA) recently announced a new rule describing how the agency will conduct on-site civil inspections. The new rule, effective as of March 2, 2020, aims to give fair notice to business owners subject to EPA on-site inspections. Here are the main takeaways business owners should be aware of:
• Scope – The rule applies to all federally credentialed EPA civil inspectors as well as contractors and employees performing inspections for the EPA. The rule does not apply to state inspectors acting on EPA’s behalf. The rule covers inspections for the civil enforcement of environmental laws but does not cover investigations of crimes.
• Timing and Notification – The rule states that EPA inspectors “should generally conduct inspections during the facility’s normal work hours” and “take reasonable steps to work with the facility to agree on a workable schedule for accessing areas for the inspection.” But the rule reserves the authority of EPA inspectors to conduct inspections with or without prior notice.
• Obtaining Consent to Enter – The rule requires EPA inspectors to present their credentials, describe the authority and purpose of the inspection, and seek the facility’s consent to enter. Certain statutes require inspectors to advise facility personnel that they can deny entry, but EPA may then seek a warrant for entry. The rule also clarifies that inspectors may not sign a facility waiver or any statement restricting the EPA’s use of information, but inspectors may sign a “visitor’s log sheet.” Additionally, inspectors may not relinquish their credentials or any personally identifiable information (such as a driver’s license).
• Opening and Closing Conferences – The rule requires EPA inspectors to request both opening and closing conferences with available personnel, where practicable. During the opening conference, the inspector shall discuss overall objectives of the inspection and may request records and other documents necessary to conduct the inspection. For small businesses, EPA inspectors are required to offer a Small Business Resources Information Sheet to help small businesses understand and comply with the law. During the closing conference, inspectors shall discuss any outstanding questions and may discuss possible next steps and any “areas of concern.”
• During the Inspection – The rule states that EPA inspectors shall conduct physical inspections of the facility and may document the inspection with photos and notes. Inspectors are also authorized to take samples when appropriate. Inspectors may also interview facility personnel. Finally, inspectors are authorized to request relevant records before, during, or after an inspection.
Employers with questions can contact the NFIB Small Business Legal Center at 800-NFIB-NOW.
This alert is for informational purposes only and does not constitute legal advice.