[Federal Register Volume 85, Number 41 (Monday, March 2, 2020)]
[Rules and Regulations]
[Pages 12224-12226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03508]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 31
[FRL-10005-45-OECA]
RIN 2020-AA53
On-Site Civil Inspection Procedures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is promulgating this rule of Agency procedure to fulfill
the objectives outlined in the October 9, 2019 Executive Order (E.O.)
13892, Promoting the Rule of Law Through Transparency and Fairness in
Civil Administrative Enforcement and Adjudication. This rule describes
certain Agency procedures for conducting on-site civil inspections, as
contemplated by section 7 of E.O. 13892, Ensuring Reasonable
Administrative Inspections. This rule applies to on-site civil
inspections conducted by federally credentialed EPA civil inspectors,
federally credentialed contractors and Senior Environmental Employment
(SEE) employees conducting inspections on behalf of EPA.
DATES: This rule is effective March 2, 2020.
FOR FURTHER INFORMATION CONTACT: Chad Carbone (202-564-2523), Office
Enforcement and Compliance Assurance (2221A), U.S. Environmental
Protection Agency, Washington, DC 20460; telephone number: (202) 564-
2523; fax number: (202) 564-0050; email: [email protected].
SUPPLEMENTARY INFORMATION: The following outline is provided to assist
the reader in locating topics of interest in the rule.
Table of Contents
I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking the action?
II. Background
A. General Overview of On-Site Civil Inspections
1. Timing of Inspections and Facility Notification
2. Inspector Qualifications
3. Obtaining Consent to Enter
4. Opening Conference
5. Physical Inspection
6. Managing Confidential Business Information (CBI)
7. Interview Facility Personnel
8. Records Review
9. Sampling
10. Closing Conference
B. Inspection Report
III. Statutory and Executive Order Reviews
I. General Information
A. Does this action apply to me?
This rule applies to all federally credentialed EPA civil
inspectors, federally credentialed contractors and Senior Environmental
Employment (SEE) employees conducting inspections on behalf of EPA. As
an internal rule of Agency procedure, the rule does not apply to
federally credentialed state and tribal inspectors conducting
inspections on EPA's behalf. This rule describes 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.
B. What action is the Agency taking?
The purpose of this rulemaking is to provide direction to agency
personnel on how to conduct EPA on-site civil administrative
inspections, as required by section 7 of E.O. 13892, entitled Ensuring
Reasonable Administrative Inspections, and which states: ``Within 120
days of the date of this order, each agency that conducts civil
administrative inspections shall 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.'' This rulemaking addresses the common
elements applicable to on-site civil inspections for compliance with
all of the environmental laws that EPA implements. The specific
activities that may occur during an inspection may vary depending on
the facility and the statutory authority upon which the inspection is
based. It is also important to note that EPA inspections are only one
type of compliance monitoring activity that EPA conducts in order to
help evaluate compliance. The primary focus of inspections is on
recording observations and gathering information. As such, compliance
determinations are an independent process that rely upon a myriad of
information and are reviewed by Agency attorneys and management.
C. What is the Agency's authority for taking the action?
EPA's authority to issue this procedural rule is contained in the:
Clean Air Act (CAA): 42 U.S.C. 7414, 7525, 7542, 7603, 7621; Clean
Water Act (CWA): 33 U.S.C. 1318, 1321, 1364, 1367; Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
(Superfund): 42 U.S.C. 9604, 9606, 9622, Executive Order 12580, section
2(j)(2); Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA): 7
U.S.C. 136; Resource Conservation and Recovery Act (RCRA): 42 U.S.C.
6908, 6912, 6927, 6928, 6934, 6971, 6973, 6991, 6992; Safe Drinking
Water Act (SDWA): 42 U.S.C. 300; and the Toxic Substances Control Act
(TSCA): 15 U.S.C. 2610. EPA is also issuing this rule under its
housekeeping authority. Section 301 of Title 5 U.S.C. authorizes an
agency head to prescribe regulations governing his or her department
and the performance of its business, among other purposes. EPA gained
housekeeping authority through the Reorganization Plan No. 3 of 1970,
84 Stat. 2086 (July 9, 1970), as recognized by the U.S. Department of
Justice Office of Legal Counsel. See ``Authority of EPA to Hold
Employees Liable for Negligent Loss, Damage, or Destruction of
Government Personal Property,'' 32 O.L.C. 79, 2008 WL 4422366 at *4
(May 28, 2008). As a rule of Agency procedure this rule is exempt from
the notice and comment requirements set forth in the Administrative
Procedure Act. See 5 U.S.C. 553(b)(A).
II. Background
A. General Overview of On-Site Civil Inspections
Below is a general overview of the process for conducting on-site
civil inspections. To ensure greater transparency and clearer direction
to its inspectors, the Agency is codifying the major elements of
inspections it carries out in its civil enforcement of environmental
laws. (This rule does not apply to investigations of environmental
crimes.) This overview also provides information regarding additional
activities that may occur during the civil inspection process.
1. Timing of Inspections and Facility Notification
EPA inspectors should generally conduct inspections during the
facility's normal work hours. However, there may be circumstances which
require EPA inspectors to access, monitor, or observe specific
operations or activities at other times. Where possible, for announced
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inspections, EPA inspectors shall take reasonable steps to work with
the facility to agree on a workable schedule for accessing areas for
the inspection. EPA inspectors have the authority to conduct, and do
conduct, inspections with or without prior notice to a facility.
2. Inspector Qualifications
EPA inspectors must hold a valid credential to perform the
inspection. EPA credentials are issued to inspectors that 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.
3. Obtaining Consent To Enter
Upon arrival at a facility, EPA inspectors shall present their
valid EPA Inspector Credentials to a facility employee, describe the
authority and purpose of the inspection, and where possible seek the
facilities' consent to enter. Inspectors are required under certain
statutes to advise facility personnel that they can deny entry, but EPA
may then seek a warrant for entry.
EPA inspectors should not sign a facility release of liability
(waiver) or any statement limiting EPA's use of information. However,
the EPA inspector can sign a ``visitors log sheet,'' if there are no
limitations printed on the sheet. EPA inspectors are not authorized to
relinquish their EPA Inspector Credential. EPA inspectors are also not
authorized to relinquish their personally identifiable information
(e.g., driver's license), except in certain circumstances to obtain
Federal Facility security access. Finally, some statutes also require
the facility to sign a ``Notice of Inspection'' form at the time of
entry.
4. Opening Conference
The EPA inspector shall request an opening conference with
available facility representatives or employees, where practicable.
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 are located nearby. The opening conference will commence as
early as possible upon arrival at the facility, unless there are
specific reasons why that is not feasible or conflicts with the
inspection objectives. The EPA inspector shall discuss the overall
objectives of the inspection and establish him or herself as a
spokesperson for EPA during the inspection. EPA inspectors may request
access to/copies of facility records and request to interview facility
employees, as necessary. EPA inspectors may also ask facility personnel
for an overview of plant operations, potential site-specific health and
safety hazards, confirm whether the inspection requires access to
specific portions of the facility, and obtain a site map indicating the
locations where potentially regulated activities are conducted.
If the facility is a small business, EPA inspectors will offer a
Small Business Resources Information Sheet that provides an array of
resources to help small businesses understand and comply with federal
and state environmental laws. In addition to helping small businesses
understand their environmental obligations and improve compliance,
these resources may also help such businesses find cost-effective ways
to comply through pollution prevention techniques and innovative
technologies.
5. Physical Inspection
EPA inspectors shall 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.
6. Managing Confidential Business Information (CBI)
Pursuant to existing statutory and regulatory requirements,
inspectors shall complete appropriate, statute-specific, CBI training
before managing CBI. The EPA inspectors shall manage all CBI claims
made by a facility during an inspection in accordance with 40 CFR part
2, subpart B.
7. Interview Facility Personnel
EPA inspectors may conduct interviews of facility personnel as
appropriate. Interviews may include, but are not limited to, the
environmental contacts, process operators, contractors, maintenance
personnel, process engineers, control room operators, and other
employees working in the area(s) of interest. EPA inspectors should
document names and titles of all facility personnel interviewed
including the places and dates in which these interviews occurred.
8. Records Review
Once the records requested by the EPA inspector are assembled, the
EPA inspector shall review any records relevant to the facility
inspection/field investigation. EPA inspectors may request copies of
many different types of records (paper, electronically scanned,
downloaded or recorded through other digital storage devices), when
appropriate, and record copies of records taken from the facility. An
EPA inspector may request records before, during, or after an
inspection.
9. Sampling
EPA inspectors may take samples when appropriate. Where applicable
and practicable, during the opening conference, the inspector shall
offer facility personnel the opportunity to obtain split samples or to
collect duplicate samples.
10. Closing Conference
EPA inspectors shall offer a closing conference with available
facility employees, as practicable. A closing conference may not be
possible where, for example, an inspection is conducted at a
geographically isolated portion of the facility and no facility staff
are located nearby. If a closing conference is possible and
appropriate, EPA inspectors will discuss any outstanding questions or
missing documents and the process for follow up. EPA inspectors may
also discuss next steps and how the facility will be contacted on the
results of the inspection and identify the appropriate point of contact
for further communication and coordination. EPA inspectors may also
summarize any potential ``areas of concern'' identified in the
inspection.
B. Inspection Report
After an inspection, EPA shall share an inspection report with the
facility. The content and format of the report may vary depending on
the facility, type of the inspection, and the statutory authority upon
which the inspection is based. The inspection report may be a
narrative, form, checklist, letter, email message or other type of
document.
III. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget (OMB) because it is limited to agency organization, management
or personnel matters.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because it relates to ``agency organization, management or personnel.''
C. Paperwork Reduction Act (PRA)
This action does not contain any information collection activities
and
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therefore does not impose an information collection burden under the
PRA.
D. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA. The RFA applies only to
rules subject to notice and comment rulemaking requirements under the
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute.
This rule pertains to agency management or personnel, which the EPA
expressly exempts from notice and comment rulemaking requirements under
5 U.S.C. 553(a)(2).
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1536, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
a substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``convered regulatory action'' in section 2-202
of the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This action is not subject to Executive Order 12898 (59 Fed 7629,
Feb. 16, 1994) because it does not establish an environmental health or
safety standard.
L. Congressional Review Act (CRA)
This rule is exempt because it is a rule of agency organization,
procedure, or practice that does not substantially affect the rights or
obligations of non-agency parties.
List of Subjects in 40 CFR Part 31
Environmental protection, On-site civil inspection procedures.
Dated: February 6, 2020.
Andrew R. Wheeler,
Administrator.
0
For the reasons set forth in the preamble, EPA adds 40 CFR part 31,
consisting of Sec. 31.1, to subchapter A to read as follows:
PART 31--ON-SITE CIVIL INSPECTION PROCEDURES
Authority: Clean Air Act 42 U.S.C. 7414, 7525, 7542, 7603, 7621;
Clean Water Act 33 U.S.C. 1318, 1321, 1364, 1367; Comprehensive
Environmental Response, Compensation, and Liability Act 42 U.S.C.
9604, 9606, 9622, Executive Order 12580, section 2(j)(2); Federal
Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. 136; Resource
Conservation and Recovery Act 42 U.S.C. 6908, 6912, 6927, 6928,
6934, 6971, 6973, 6991, 6992; Safe Drinking Water Act 42 U.S.C. 300;
Toxic Substances Control Act 15 U.S.C. 2610; 5 U.S.C. 301; and
Reorganization Plan No. 3 of 1970, 84 Stat. 2086.
Sec. 31.1 Procedures conducted by EPA for on-site civil inspections.
(a) All on-site civil inspections by EPA inspectors shall be
conducted in accordance with this part. For purposes of this part, all
references throughout to ``inspection'' or ``inspections'' refer to on-
site civil inspections; this part does not apply to criminal
inspections or investigations of environmental crimes.
(b) EPA inspections shall take place at such times and in such
places as appropriate.
(c) At the beginning of an inspection, EPA inspectors shall present
their credentials to the owner, operator, or agent in charge at the
facility or site, if available. EPA inspectors shall generally explain
the nature and purpose of the inspection; offer an opening conference;
confirm any safety hazards; and indicate generally the scope of the
inspection and the records which they wish to review. However, such
designation of records shall not preclude access to additional records.
(1) During the opening conference, EPA inspectors shall, where
applicable and practicable, offer facility personnel the opportunity to
obtain split samples or to collect duplicate samples.
(2) If the facility is a small business, EPA inspectors shall offer
a Small Business Resources Information Sheet to help small businesses
understand and comply with federal and state environmental laws.
(d)(1) EPA inspectors shall document observations, and, as
appropriate, take environmental or other samples and take or obtain
photographs and copies of documents related to the purpose of the
inspection, and employ other reasonable investigative techniques.
(2) Where possible, EPA inspectors shall interview the owner,
operator, agent or employee of an establishment. Reasonable
investigative techniques include, but are not limited to, the use of
monitoring devices/equipment to measure releases to the environment.
(e) EPA inspectors shall take reasonable precautions to ensure
actions conducted during inspections will not cause hazardous
situations, and, where appropriate, wear and use appropriate protective
clothing and equipment.
(f)(1) At the conclusion of an inspection, EPA inspectors shall
offer a closing conference, where practicable, to confer with the
facility/site representative and informally advise them of any
observations, potential deficiencies and concerns discovered by the
inspection, as applicable.
(2) During such conference, the facility/site representative shall
be afforded an initial opportunity to bring to the attention of the EPA
inspector any pertinent information regarding the potential concerns
identified.
(g) After an inspection, EPA shall prepare an inspection report and
share it with the facility. The content and format of the report may
vary.
[FR Doc. 2020-03508 Filed 2-28-20; 8:45 am]
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