Federal officials have taken recent actions to improve the process for conducting environmental inspections. This is good news for regulated entities who can experience major disruptions to their operations as a result of often unannounced and sometimes intrusive inspections.
One such action is the United States Environmental Protection Agency’s (EPA’s) promulgation of the On-Site Civil Inspection Procedures Rule. The rule is meant to fulfill the objectives of the President’s October 9, 2019 Executive Order (E.O.) 13892, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication. According to E.O. 13892, these objectives are as follows:
Agencies shall act transparently and fairly with respect to all affected parties, as outlined in this order, when engaged in civil administrative enforcement or adjudication. 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. 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. Agencies shall afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose.
As contemplated by section 7 of this order, Ensuring Reasonable Administrative Inspections, EPA’s new rule describes certain agency procedures for conducting on-site civil inspections. In general, the rule calls for the following: (1) inspections to be conducted during the facility’s normal work hours; (2) EPA inspectors to hold valid credentials to perform inspections; and (3) cooperation between EPA inspectors and facility employees to better plan inspections (including seeking consent to enter and requesting opening and closing conferences). The rule also seeks to define what records EPA inspectors may request (“any records relevant to the facility inspection/field investigation”) and when EPA inspectors may take samples (“when appropriate”).
The rule became effective on March 2, 2020.