By Paul S. Farber

R. A. Kerley Ink Engineers

Broadview, Illinois

E. Lynn Grayson

Jenner & Block

Chicago, Illinois

Abstract: Over the last several years, new regulations and policies have given the United States Environmental Protection Agency ("USEPA") tools such as multi-media inspections, the credible evidence rule, and the compliance assurance monitoring rule to enforce environmental laws into the 21st century. Multi-media inspections, in particular, can prove to be a hurdle many companies are not expecting or are ready to face. Now, instead of a single inspector arriving at a facility to determine compliance in one media, a team of regulatory officials can come to verify compliance in a multi-media fashion, inspecting air, water, and waste concerns at the same time. In some cases, such inspections may extend beyond EPA’s authority to include OSHA’s health and safety issues. How well a company understands these inspections, how to prepare for them, and how to comply with them, can reduce their compliance costs and save unneeded turmoil and legal problems.

Introduction -- Multi-media inspections, by the USEPA, are coordinated by the Office of Enforcement and Compliance Assurance ("OECA"). Industries to be the focus of these inspection teams are decided upon yearly based on federal, state, and regional priorities. The National OECA Sector Priorities have remained fairly constant over the last 2-3 years and include the following industry sectors:

Iron/Steel;

Industrial Organic Chemicals (SIC 2869);

Chemical Preparations (2899) -- blending/mixing to produce formulas;

Industrial Inorganic Chemicals;

Petroleum Refineries;

Non-Ferrous Metals; and

Coal-fired Power Plants.

The USEPA regions also have their own "sector" priorities as well as area concerns within the Region. For example, in USEPA Region V, these priorities and areas are:

Reducing Toxics, esp. mercury;

Promoting Sustainable Urban Development & Reuse of Brownfields;

Cleaning Up Sediments;

Protecting and Restoring Critical Ecosystems;

Protecting People at Risk; and

Priority Areas -- Greater Chicago, NW Indiana, SE Michigan, East St. Louis, Greater Cleveland, Great Lakes and Upper Mississippi River.

Each state within an USEPA region can also input into the decision process problem/priority areas or industrial sectors within that state.

Other factors that the USEPA considers in determining the candidates for Multi-Media inspections can include:

Compliance History -- Has this site or area been inspected before and found to have had compliance problems? Has the site obtained its permits (Some companies still haven’t applied for all of their permits)? Are there permit violations on record?

Environmental Risk -- Are there areas which are particularly environmentally sensitive, are there areas where endangered plants or animals are known to exist?

Community Concerns -- Have citizens, community groups, or public interest groups expressed concern or complained about a particular company in their area? Is there a plant that is close by to a school, hospital, or nursing home?

When all of these factors are reviewed and prioritized each USEPA region then develops a list of companies/sites who will be the subject of the multi-media inspections. The number of these inspections is increasing with 6 having been performed in Region V in 1996, and 22 performed in 1997.

Inspection Categories -- All multi-media inspections can be grouped into two categories of increasing complexity:

Category 1: Several concurrent and coordinated program-specific compliance investigations conducted by a team of investigators representing two or more program offices (Air, RCRA, Water, etc.). The team, which is headed by a team leader, conducts a detailed compliance evaluation for each of the target programs. This category of multi-media investigations has more compliance issues to address than a simple single environmental media inspection and are generally more appropriate for intermediate to large facilities that are subject to a variety of environmental laws. The objective of this type of multi-media inspection is to determine compliance for several targeted program-specific areas. Reports on obvious, key indicators of possible noncompliance in other environmental program areas are also made.

Category 2: This type of multi-media inspection is a comprehensive facility evaluation and addresses not only compliance in targeted program specific regulations, but also will try to identify environmental problems that might otherwise be overlooked. The initial focus is normally on facility processes to identify activities (e.g., new chemical manufacturing) and byproducts/waste streams potentially subject to regulation. The byproducts/waste streams are often traced to final disposition (on-site or off-site treatment, storage, and/or disposal). When regulated activities or waste streams are identified, a compliance evaluation is made with respect to applicable requirements.

In many cases, these multi-media inspections will be done with the active cooperation of state and local regulatory agencies who have specific information and interest in the facility being investigated.

Inspection Objectives -- Knowing the objectives of a multi-media inspection can help a company prepare for the day when they might become the subject of such an investigation. In general, unless some specific suspected violations are the target of the inspection, the general goals and objectives of an inspection team include:

• Determine compliance status with applicable laws, regulations, permits, and consent decrees;

• Determine ability of a facility to achieve compliance across all environmental areas;

• Identify need for remedial measures and enforcement action(s) to correct the causes of violations;

• Evaluate a facility’s waste producing, treatment, management, and pollution control practices and equipment;

• Evaluate facility self-monitoring capability;

• Evaluate facility recordkeeping practices;

• Evaluate facility waste minimization/pollution prevention programs; and

• Obtain appropriate samples.

An excellent source of guidance for companies trying to understand the objectives of any multi-media inspection is a thorough evaluation of USEPA’s Multi-Media Checklist. This guidance provides an overview of the areas commonly inspected by USEPA and provides companies with useful insight into USEPA’s expectations during such an inspection.

Preparing For The Inspection -- Companies who feel that they might become the target of a multi-media inspection and enforcement action can take several "active and pro-active" steps to minimize the impact when the inspection occurs. These steps should be developed to address the goals and objectives that the regulatory authorities use in the inspection.

Determining Compliance Status -- Know the regulations (state and local, as well as federal) which cover the operation of your facility. Meet with your attorney and your environmental staff and review these regulations as well as your existing permits. What conditions do these permits and regulations impose on the plant operation, and are you in full compliance? When was the last time an environmental audit was conducted at the facility?

Identification of Remedial Areas Which Might Subject the Plant to a Compliance Action -- What, if any, faults did the latest environmental audit uncover and have they been corrected? Are these faults merely areas in which the facility could do better or are they violations of permit conditions? If these are violations of a permit condition has this been reported to the Agency as a voluntary compliance action? You should develop a schedule for the correction of any environmental deficiencies and be prepared to review this schedule with the Agency if requested.

Evaluation of the Facility’s Environmental Management Practices -- How are emissions and wastes handled at the site? If wastes are disposed of off-site has someone from the plant or the corporate environmental staff confirmed that the final treatment of wastes is being handled in a responsible manner in full accordance with the regulations? Have all of the certifications of waste disposals been received at the plant, and can these be matched up with waste manifests? Have all processes at the plant been properly characterized with regard to their wastes either with engineering calculations or waste stream analyses?

Evaluate Facility Recordkeeping and Self-Monitoring Practices -- A review of the facility’s recordkeeping practices should be performed to ensure that all data and information required by permits and regulations is being collected and stored as required. Permits require that compliance data be stored for a period of time and it is important to make sure that this data is complete and that copies are available either at the plant or at some corporate location.

Evaluate the Facility’s Pollution Prevention Programs -- Review the plant’s inspection and maintenance programs to verify that they are complete and up-to-date. This is especially important in such cases as a valve and flange leak detection program for the reduction of VOC emissions, as this may be tied into an overall VOC emission limit for the plant. What other programs are in place to reduce emissions from the facility, and are they properly documented so that the company’s pro-active stance to reduce emissions can be demonstrated to the Agency.

Preparing Facility Staff For The Inspection -- Make sure that all plant staff, both administrative and production, have clear guidelines on the procedures to be followed in the event of an inspection. Some of the procedures that are recommended include:

• Ask all inspectors to show proper identification and record the names and affiliations of all members of the inspection team;

• Immediately notify corporate management, especially the corporate counsel, about the inspection;

• Discuss the scope of the inspection with the inspector, in advance if possible, and the work to keep the inspection limited to the scope discussed (Most multi-media inspections will begin with advance written notification and an information request to targeted companies);

• Ensure that all members of the inspection team are briefed on site health and safety procedures prior to the inspection (this should be a standard procedure for any visitor to the plant who will be out of the immediate office area);

• Inspectors should be escorted through the plant by a member of plant or corporate management and/or the corporate attorney;

• Do not impede the inspection in any way although you can restrict entry to areas deemed unsafe without special training and/or equipment. While it is unwise to attempt to prevent the inspectors from speaking to an employee, you can have a representative present at any such discussions. (Most companies prefer to instruct the inspector that the company escort is the best source of information and that all inquiries should be directed to that representative);

• If inspectors take photographs of anything at the plant, a duplicate photograph should be taken by the escort;

• Request splits of any samples taken by inspectors during the inspection. If the inspectors refuse to split samples, then the facility management should ensure that a duplicate sample is taken at the same time;

• Insist upon the confidentiality of all documents reviewed, observations made and photographs taken;

• Request an exit interview with the inspector and seek to obtain a list of violations identified, if any, and any recommendations for facility improvements; and

• Ask that a copy of the final inspection report be provided to your company and determine the anticipated completion date of any such report.

In Conclusion -- Multi-media inspection and enforcement actions are becoming more common-place with regulatory agencies. It is in a company’s own self-interest to be prepared for a possible inspection of this sort and be able to present its’ best side to the inspection team. Some of the procedures that should be followed to prepare for a multi-media inspection are also good operating practices that should be followed on a routine basis for a well-operated environmentally compliant company.

copyright„, 1999, from “A Survival Guide to Multimedia Inspections,” published in Environmental Protection Magazine, Vol. 10, No. 1 (January 1999), by Stevens Publishing Corporation, all rights reserved by Stevens Publishing Corporation, reprinted with permission.