Multi-media inspections: What every business needs to know
|...But I only filed our permit application two days late!
The U.S. Environmental Protection Agency (EPA) increasingly relies upon the use of multi-media inspections to assess an operation's compliance status. Multi-media inspections allow the agency to focus its enforcement efforts not only on business sector priorities, but also to target the most important regional regulatory issues. EPA is accomplishing this by using multi-media inspection teams to target enforcement against nationwide companies with violations at multiple facilities, revising agency guidance documents, such as the supplemental environmental projects (SEP) policy, and improving coordination of penalty policies across different media programs. This includes using a coordinated and integrated approach to identify environmental violations and to develop and implement remedies for them across multiple media or environmental statutes.
If targeted for a multi-media inspection, a facility must understand the process followed by EPA in order to effectively respond to agency demands. To accomplish this task, environmental managers should be familiar with key multi-media guidance available from EPA, particularly the Multi-Media Investigation Manual.
The Multi-Media Investigation Manual is published by the National Enforcement Investigations Center (NEIC) in cooperation with EPA. It serves as a guide for investigators who conduct multi-media environmental compliance inspections. While other media-specific guidance exists, this manual provides the framework for conducting inspections on a multi-media basis.
Multi-media inspections may or may not be conducted with pre-notification to the company. If the agency suspects that violations exist, and that the company may attempt a cover-up of these violations, then the first indication of an inspection would be the inspectors' arrival at the company's front door. On the other hand, notifying a company that an inspection is scheduled ensures that the appropriate personnel will be available, processes of interest are operating, and that critical documents will have been assembled for review.
If the agency notifies your company about the inspection, you should expect a formal notification letter in the mail, or a notification form that will be served by inspectors when entering the facility. If a letter is received, it should cite the appropriate inspection authorities, the general areas to be covered and special informational needs and requests. By citing broad EPA authorities, the agency attempts to give itself a wide enough scope so that its investigation will not be restricted if investigators need to pursue additional areas, based on field observations. The letter should be reviewed with your legal counsel, so that he or she may alert you if a broad-brush investigation is the object of the investigation team's visit.
The agency's usual objectives in conducting a multi-media field inspection are to determine if a facility is complying with environmental regulations, permits, etc., and to determine if facility activities are creating environmental problems. The investigation team will be checking to see if the facility has environmental management controls in place to maintain regulatory compliance, and whether the controls are working. Prior to the actual investigation, the agency will also perform a background information review and inspection reconnaissance. The background review is usually done by examination of existing permits filed with the state, even if the agency does not invite the state environmental authority to join it in the inspection. In the event that the EPA uses state files for a background review, it will generally caution the state agency not to leak any information about the upcoming investigation.
At the beginning of the investigation, the team will arrive at the site and the team leader will notify the guard or receptionist that he or she wants to meet with the designated facility environmental contact. At that time, the company employee should request to see the teams' credentials and ensure that the proper site personnel are notified. The site management may wish to notify their legal counsel about the inspection and determine if the counsel wishes to be present during the investigation. The inspection team should be asked to sign a visitors' log in order to provide a written list of the inspectors. However, agency personnel may not be willing to sign such a log if there is a waiver of liability or restriction of inspection statement on the sheet. Once the proper site contact is notified, the team should be escorted to a conference room, where credentials are officially presented.
After presenting their credentials, the investigators should review the objectives, logistics and scheduling of the inspection activities. Prior to coming to the site for the investigation, EPA will have developed a project plan with its investigation objectives. In most cases, this is considered an EPA internal document, and traditionally, the agency will not be available to you. It is therefore important that the company ask the investigators to restrict their inspection time to the hours that the appropriate site personnel (site manager, environmental manager, etc.) will be available, so that the team does not "roam" the site unescorted. This will also help to ensure that photographs and samples are not taken without the knowledge of site management.
Additionally, try to have the agency investigators identify the specific documents that they wish to view, and only present these documents when requested. A company is not required to duplicate requested documents for the investigators, even if offered reimbursement for the duplication, and can request that EPA supply its own copier at the site.
All agency personnel should be given the same site safety orientation that is given to all visitors who will be out in the plant area. A company should ensure that the agency staff are informed about emergency signals, means of egress from an area, and any protective equipment (hard hats, ear protection, etc.) that is required in all or part of the facility.
The agency uses photographs to prepare its investigation report, as possible evidence in enforcement proceedings and to explain conditions found at the plant. The facility, however, may object to the use of cameras on its property, depending upon the nature of the operations. Site management should also request that photographs taken during the visit be considered confidential. EPA is obliged to comply, unless its attorneys can present a legal reason why confidentiality is not valid. A facility may refuse permission for photographs to be taken unless they are provided copies of the final images. One possible solution for this is to offer to develop and print the film for EPA. In this way, the company can ensure that it retains copies of prints sent to the inspection team.
Often, the inspection team will wish to be split into smaller groups so as to simultaneously investigate such areas as production, laboratory, waste management and record-keeping. Site management should ensure that there are sufficient facility representatives available to accompany all of these sub-teams. During these inspections, the investigators will be asking probing questions to uncover any violations. Often, the investigator will rephrase questions and ask them many times until he or she gets a satisfactory and consistent answer. It may be prudent for a company to train its key personnel in mock interrogations, especially since the agency has instructed its investigators to observe body language for clues that the person being questioned is hedging, or that the investigator is starting to key in on a particularly sensitive subject.
Sampling philosophy is similar to that of photographs; i.e. any samples taken by the agency should be split with the inspected facility. The facility should ensure that the agency is familiar with the permit limits in effect for the samples being taken, and especially whether limits are set on "absolute" or grab sample values versus time-averaged or composite samples. Additionally, the investigators should be made aware of the approved analytical procedures being used for sample analysis, as well as the pertinent quality assurance procedures.
After the investigators have completed their inspection, the facility should insist upon a closing conference, to provide an opportunity for the investigators to discuss preliminary findings with site and company representatives, including any potential violations or problems uncovered during the investigation. The site representatives should make sure that they have a way to contact the investigation team leader, as well as specific information on how to obtain a copy of the final report.
Future agency enforcement trends
Multi-media inspections remain an effective enforcement tool for EPA. Heavy manufacturing operations, steel mills and oil refineries will continue to be prime targets for multi-media inspections. In addition, air quality inspections will more frequently be part of multi-media investigations.
Under Section 114 of the Clean Air Act, EPA and NEIC inspectors have broad authority to request information prior to an inspection. The air quality information requested may include permitting activity summaries; compliance histories; actual and potential emission rates; capital expenditure and construction records; flare monitoring records and stack test data. Often, the accuracy and timeliness of the information submitted to the agency can form the basis of the inspector/company relationship.
By involving not only federal, but state and local enforcement agencies in its inspections and enforcement operations EPA has broadened its ability to address environmental problems and health risks. At the same time, it has increased the regulatory burden on industry by subjecting it to inspections with possible enforcement actions across media lines. The most effective means to defend against a multi-media inspection is to be educated about the process and to be prepared.
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This article appeared in the February 2000 issue of Environmental Protection magazine, Vol. 11, No. 2, p. 22. Image courtesy of Eddie Eddings.
This article originally appeared in the 02/01/2000 issue of Environmental Protection.