Inspection Protection

Ed Callaway and Shelby Sheffield Waller Landsen Dortch and Davis Nashville, Tenn.

WHEN EPA OR STATE inspectors come knocking at a hazardous waste facility's door, site operators should know their rights before they answer. The Resource Conservation and Recovery Act (RCRA) grants state and U.S. Environmental Protection Agency (EPA), Washington, D.C., inspectors broad authority to conduct inspections at hazardous waste (hazwaste) facilities. While inspectors have leeway to conduct thorough facility inspections, facilities and those holding hazardous waste permits have rights to protect themselves as well.

Advanced notification of an inspection is not required, but once onsite, an inspector always should present proper identification. Prior to granting an inspector access to the facility, the owner or agent in charge during the inspection also must give consent to the inspector to evaluate the premises. A facility operator is only required to grant access to a duly designated officer, employee or representative of the EPA or the state agency.

In some situations, the inspector will want to proceed immediately with the inspection to observe a facility's conditions before they can be altered. The inspector should first outline what will be inspected and the reasons for conducting the inspection.

Inspectors have the authority to: enter any area where hazardous wastes are stored, generated, transported, treated or disposed; obtain samples for the inspection of any such wastes; and access and copy all records relating to hazardous wastes.

All inspections must be conducted at a reasonable time, and they must be completed quickly and efficiently. This means that inspections generally occur during the facility's normal operating hours.

Sometimes, a facility operator may deny access to an inspector or withdraw consent during the course of an inspection because the inspector did not have the proper safety equipment or the inspector failed to follow Occupational Safety and Health Administration (OSHA), Washington, D.C., regulations during the process.

In these situations, the inspector must secure a warrant before beginning or completing the inspection. A facility is not responsible for providing the inspector with necessary equipment but should not allow the inspector to proceed without it.

Under a warrant, inspection procedures will vary from typical protocol. Primarily, the facility operator should ensure that the inspection is conducted in strict accordance with the warrant, which includes any facility or records restrictions. However, even without a facility operator's consent, an inspector still is authorized to observe and report on anything in plain view.

During a site evaluation, inspectors usually will review records, which managers should immediately claim as confidential if they include information about trade secrets or processes. This is imperative because records become public when the inspector photocopies them and makes them a part of the inspection file. Asserting a confidentiality claim after records have been made public is extremely difficult.

The operator should have a reasonable amount of time to comply with documentation requests. If inspectors request easily obtained information, such as training records, then a facility is expected to produce them during the inspection. If the request involves compiled data or voluminous records that must be culled from files, a facility often may provide those records after the inspection.

Inspectors may photograph certain parts of the facility during an inspection. If a facility's processes are confidential or proprietary, the operator should note at the time, then follow up later in writing, that the photos taken should be considered confidential business information. Although most inspectors say photographs are indispensable inspection documentation, site-specific considerations may provide operators with a way to withdraw consent to photograph.

For example, using flash photography in a facility that contains volatile, flammable solvents may cause problems. Arguably, a facility is justified in refusing to allow an inspector to take a flash photo in this situation. Additionally, certain facilities may refuse photography because of national security concerns. This is an evolving area of law. For example, the Tennessee Department of Environment and Conservation (TDEC), Nashville, is currently considering the circumstances under which a facility may refuse to allow photography at federal facilities in Oak Ridge National Laboratory.

If sampling is included in an inspection, the operator should request to split the samples the inspectors obtain to validate laboratory analysis. If any other property is taken from the premises, inspectors are required to provide receipts and to maintain an inventory of all removed items.

When the site evaluation is complete, inspectors should hold a closing interview with the operator to discuss findings. If a meeting is not offered, the operator has the right to request one. During the closing interview, keep in mind that all inspection findings are preliminary until reviewed by the inspector's supervisor. RCRA gives the EPA and state inspectors considerable power to scrutinize and evaluate hazwaste operations. But facility owners have rights, too. Knowing how to exercise them appropriately can ensure a smooth, orderly and balanced inspection.