XIV Handling an Enforcement Inspection
| Library | Illinois Environmental Law for Non-Environmental Lawyers (2017 Ed.) |
The purpose of this chapter is to provide a general practitioner with an overview of the regulatory inspection process and provide an outline that details the procedures to follow in the event of an environmental regulatory inspection at a client's facility.
A. Introduction
Various federal, state and municipal agencies have been granted the authority to conduct inspections of sites, facilities and workplaces and bring enforcement actions against owners and operators found to be in violation of federal and state environmental, health and safety laws. These inspections may be announced or unannounced. Many of these agencies have broad investigative authority and often conduct the bulk of their litigation "discovery" during these on-site inspections. It is critical that attorneys know how to properly advise their clients in the event of an on-site inspection. A properly educated attorney can ensure that their client will know how to prepare prior to an inspection, how to react when inspectors make unannounced site visits, how and when to assert their rights and how to manage the flow of information during inspections.
B. Government's Right to Access
The government's right to gain access to a facility is typically contained within the general information-gathering sections of environmental statutes, regulations and ordinances.1 Laws which grant the government access to certain premises and records often share common elements:
1. Access limited to "authorized representatives;"
2. Representative must show credentials;
3. Inspection must be done at a reasonable time, often during regular business hours, unless an emergency situation exists;
4. Administrative search warrant required if no consent to site access;
5. Inspections must be completed promptly;
6. Regarding the government's right to sample:
a. Receipts should be given for all samples;7. The government generally has the authority to review and copy records.
b. Split samples should be given if requested; and
c. Results of lab testing conducted on samples should be presented promptly;
8. In some circumstances, failure to grant access can lead to civil and criminal penalties as well as permit revocation.
Most inspections will be limited to a single media, such as water, air, waste storage or disposal, etc. However, some agencies, such as the United States Environmental Protection Agency ("USEPA"), may perform multimedia inspections at larger, more heavily regulated facilities. Attorneys should also keep in mind that many inspections may be coupled with "official" information requests. Some inspections may also involve some form of informal follow-up to gather additional or missing information.
The inspection authority under various federal and Illinois environmental laws is summarized below.
1. Federal Statutes
a. Clean Air Act ("CAA") § 114, 42 U.S.C. 7414
i. Who is Granted Access
The CAA grants access to the USEPA Administrator or his authorized representative (usually a USEPA inspector or agent) upon showing of credentials.2
ii. Purpose of Access
a) assisting in the development of any implementation plan, any standard of performance, any emission standard, or any regulation of solid waste combustion, or any regulation relating to solid waste combustion;
b) determining whether any person is in violation of any such standard or any requirement of such a plan; or
c) carrying out any provision of the CAA.3
iii. Premises Subject to Access
Inspector has the right of entry to, upon, or through any premises of any person:
a) who owns or operates any emission source, who manufactures emission control equipment or process equipment;
b) who the Administrator believes may have information necessary for the purposes set forth in this subsection;
c) or who is subject to any requirement of the CAA or in which any records required to be maintained under the CAA are located;4
iv. Copying of Records
Inspector may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under the CAA.5
v. Sampling
Inspector may sample any emissions which are required to be sampled under the CAA.6
b. Clean Water Act ("CWA") § 308, 33 U.S.C.A. 1318
i. Who is Granted Access
The CWA grants access to the USEPA Administrator or his authorized representative, usually a USEPA inspector or agent, upon showing of credentials.7Unlike the CAA, it has been established that "authorized representative" under the CWA includes an authorized contractor acting as a representative of the USEPA Administrator.8
ii. Purpose of Access
Access is "required to carry out the objectives" of the CWA, including but not limited to:
a) assisting in the development of any effluent limitation, prohibition and various standards; and
b) determining whether any person is in violation of the requirements of the CWA.9
iii. Premises Subject to Access
Inspector has the right of entry to, upon, or through any premises:
a) in which an effluent source is located; or
b) in which any records required to be maintained under the CWA are located.10
iv. Copying of Records
Inspector may at reasonable times have access to and copy any records and inspect any monitoring equipment or method required under the CWA.11
v. Sampling
Inspector has the right to take samples.12
c. Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") § 9604, 42 U.S.C.A. § 9604
The access granted by CERCLA is more limited than that granted by the CAA and CWA. CERCLA grants access to "any officer, employee, or representative of the President, duly designated by the President" ("President's designee") or "any duly designated officer, employee, or representative of a State or political subdivision under a contract or cooperative agreement under [21 U.S.C.A. § 9604 (d)(1)]."13
The access granted to the President's designee is divided into three categories: (1) access to information; (2) entry to the site; and (3) and inspection and sampling. The right to access information applies at any time. The right to site entry and inspection and sampling may be exercised only if there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or contaminant. The authority of these subsections may be exercised only for the purposes of determining the need for response, or choosing or taking any response action under this subchapter, or otherwise enforcing the provisions of CERCLA.
i. Access to Information:
The President's designee may require any person who has or may have information relevant to any of the following to furnish, upon reasonable notice, information or documents relating to such matter:
a) the identification, nature, and quantity of materials which have been or are generated, treated, stored, or disposed of at a vessel or facility or transported to a vessel or facility;
b) the nature or extent of a release or threatened release of a hazardous substance or pollutant or contaminant at or from a vessel or facility; or
c) information relating to the ability of a person to pay for or to perform a cleanup.
In addition, upon reasonable notice, such person either (1) shall grant any such President's designee access at all reasonable times to any vessel, facility, establishment, place, property, or location to inspect and copy all documents or records relating to such matters or (2) shall copy and furnish to the President's designee all such documents or records, at the option and expense of such person.14
ii. Site Entry
If there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or contaminant, the President's designee is authorized to enter at reasonable times any of the following:
a) any vessel, facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from;
b) any vessel, facility, establishment, or other place or property from which or to which a hazardous substance or pollutant or contaminant has been or may have been released;
c) any vessel, facility, establishment, or other place or property where such release is or may be threatened; or
d) any vessel, facility, establishment, or other place or property where entry is needed to determine the need for response or the appropriate response or to effectuate a response action under this subchapter.15
iii. Inspection and Samples
If there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or contaminant, the President's designee is authorized to:
a) inspect and obtain samples from any vessel, facility, establishment, or other place or property or from any location of any suspected hazardous substance or pollutant or contaminant; and
b) inspect and obtain samples of any containers or labeling for suspected hazardous substances or pollutants or contaminants.
Each such inspection shall be completed with reasonable promptness.16
If the President's designee obtains any samples, before leaving the premises he shall give to the owner, operator, tenant or other person in charge of the place from which the samples were obtained a receipt describing the sample obtained and, if requested, a portion of each such sample ("split sample"). A copy of the results of any analysis made of such samples shall be furnished promptly to the owner, operator, tenant or other person in charge, if such person can be located.17
iv. Compliance Order
In the event that the President's designee is denied access to property or documents (as outlined above), the President may issue an order directing compliance with the request. The order may be issued after such notice and opportunity for consultation as is reasonably...
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