The EPA has promulgated a final rule listing the general procedures (that is, procedures that are applicable under all federal statutes implemented by the EPA) Agency personnel must follow when conducting on-site civil inspections. The procedures are virtually identical to those EPA inspectors have used for many years. Traditionally, the Agency has documented those procedures in guidance documents. However, in October 2019, President Donald Trump issued Executive Order (EO) 13892, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication. Section 7 of the EO states that each executive branch agency that conducts civil administrative inspections must publish a rule of agency procedure governing such inspections if such a rule does not already exist.

“Once published, an agency must conduct inspections of regulated parties in compliance with the rule,” states the EO.

Need for a rule

The EO emerged to address a concern that inspectors with some federal agencies were violating the amended Freedom of Information Act by conducting inspections that adversely affect persons through “a rule or policy” that has not been published in the Federal Register. Additionally, states the EO, some agency practices with respect to enforcement actions and adjudications undermine the Administrative Procedure Act’s goals of promoting accountability and ensuring fairness.

“No person should be subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct,” states the EO. “Moreover, the Federal Government should, where feasible, foster greater private-sector cooperation in enforcement, promote information sharing with the private sector, and establish predictable outcomes for private conduct.”

Ten-part process

EPA civil inspections are conducted by federally credentialed EPA civil inspectors, federally credentialed contractors, and Senior Environmental Employment (SEE) employees acting on behalf of the Agency. The rule comprises “certain important aspects” of the Agency’s process of conducting on-site civil inspections and does not alter the rights or interests of parties or any person or entity outside the EPA. Also, the rule and procedures do not apply to investigations of alleged environmental crimes. Effective March 2, 2020, the civil inspection process is entered into the Code of Federal Regulations at 40 CFR Part 31. The process comprises ten parts.

• Timing of inspections and facility notification. EPA inspectors generally conduct inspections during the facility’s normal work hours. Circumstances may dictate the need for off-hour inspections. EPA inspectors have the authority to conduct, and do conduct, inspections with or without prior notice to a facility.
• Inspector qualifications. EPA inspectors must hold a valid credential to perform the inspection. Credentials are issued to inspectors who have completed training relevant to the statutory programs under which they will inspect and training for health and safety hazards they may encounter or experience while conducting inspections.
• Obtaining consent to enter. Upon arrival at a facility, EPA inspectors must present their valid EPA inspector credentials to a facility employee. Inspectors are required under certain statutes to advise facility personnel that they can deny entry, but the EPA may then seek a warrant for entry.
• Opening conference. Where practicable, the inspector requests an opening conference with available facility representatives or employees. This may not be possible, for example, where facility personnel are not on-site or where the site is geographically isolated and no facility or staff members are located nearby.
• Physical inspection. EPA inspectors must inspect the areas, units, sources, and processes relevant to the scope of the inspection. The inspectors will generally document their observations with photos and notes.
• Managing confidential business information (CBI). Inspectors will manage all CBI claims made by a facility during an inspection in accordance with 40 CFR Part 2, Subpart B.
• Interview facility personnel. Interviews are not required but may include discussions with the environmental contacts, process operators, contractors, maintenance personnel, process engineers, control room operators, and other employees working in the area(s) of interest.
• Records review. Once the records requested by the inspector are assembled, the inspector must review any records relevant to the facility inspection/field investigation.
• Sampling. EPA inspectors may take samples when appropriate. Where applicable and practicable, during the opening conference, the inspector must offer facility personnel the opportunity to obtain split samples or to collect duplicate samples.
• Closing conference. Closing conferences are not always possible. When they do occur, the inspector will discuss any outstanding questions or missing documents and the process for follow-up.

Program-specific guidance

As noted, the rule consists of the broad inspection template that is consistent under all federal environmental statutes. The EPA has issued many documents that provide inspectors with a comprehensive list of specific actions that must be taken under federal programs. These include, for example, SPCC Guidance for Regional Inspectors; Worker Protection Standard Inspection Manual; and Guidance for Conducting Risk Management Program Inspections under Clean Air Act Section 112(r).