An EPA inspector shows up at your facility unannounced and requests access to inspect your facility. Do you have to let them in? If you deny access, how likely is it that EPA will quickly gain access? What is the downside of making EPA go through the step of legally gaining access by obtaining a search warrant?
In responding to the questions above, we are assuming this is an administrative inspection, not a criminal. Typically, the EPA will have already secured a criminal search warrant before showing up on your property. Less common, EPA could request your consent to perform a criminal search of your facility. Under either circumstance, due to the serious nature of criminal inspections, you should contact your attorney immediately.
Here are some things you should do in addition to immediately contacting your attorney:
- Do not answer any questions without your attorney present;
- Employees may, but are not required to answer questions of the inspectors, they have the right to the presence of their own attorney during any interview (the rights of employees during a criminal search warrant is a complicated issue that you should discuss with your attorney);
- Request a copy of the search warrant as well as the inventory of seized items (if any);
- Do not consent to the the search of an area or the seizure of materials not identified in the search warrant;
- Do not interfere with the government agents if a search warrant is provided;
- If the warrant allows sampling, request a split sample of any material tested; and
- Listen to what the inspectors are saying and take notes.
EPA, as an administrative agency, is authorized by law to conduct inspections of any property or facility under their jurisdiction.
Can you deny EPA access for an administrative inspection?
Generally speaking, unless the inspector has obtained an administrative search warrant, you have the right to refuse the inspection and ask the inspector to leave. The inspector can either try and negotiate a more convenient time to perform the inspection or obtain an administrative search warrant from a court.
While generally you have the right to refuse access when the EPA inspector does not have an administrative search warrant, the standard for obtaining such warrant is not that high. When EPA is enforcing laws with health, safety, or welfare standards, or enforcing regulatory schemes, EPA only need demonstrate their inspection is supported by "reasonable legislative or administrative standards" (i.e. administrative probable cause). See, U.S. v. M/V Sanctuary, 540 F.3d 295, 299 (4th Cir. 2008).
Here are some of EPA's specific statutory inspection authority that provides the agency the right to obtain an administrative search warrant:
- CERCLA- EPA is authorized to enter at reasonable times any property where hazardous substances may be or has been generated, stored, treated, disposed of, or transported from. Even properties where a release is only threatened. EPA has the authority to collect samples, but must provide the results to the owner. See, 42 U.S.C. Section 9604(e)
- RCRA- Similar to EPA authority under CERCLA, EPA may perform inspections at reasonable times and collect samples of any facility where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from. See, 42 U.S.C. Section 6927(a)
- Clean Water Act- Relative to NDPES permitting, EPA has the right to enter any facility which is an effluent source or which is required to maintain records under the Act. EPA can enter at reasonable time and get access to and copy any records, inspect any monitoring equipment or any other compliance method. They also can sample effluent. See, 33 U.S.C. Section 308
- Clean Air Act- If you own or operate an air emissions source regulated under the Clean Air Act, EPA has broad authority to inspect the facility, monitoring equipment and records. EPA can also sample emissions. See, 42 U.S.C. Section 7414
- TSCA- Regulates "chemical substances." A typical chemical substance subject to regulation under TSCA are PCBs. EPA has broad inspection authority of any facility that is subject to regulation under TSCA. EPA may inspect any establishment, facility, or other premises in which chemical substances, mixtures, or products subject to TSCA regulation are manufactured, processed, stored, or held. See, 15 U.S.C. Section 2610
Note: Courts have found limited exceptions when EPA can perform a warrantless administrative search with regard to enforcement of environmental regulations. As an example, the New Jersey Supreme Court held the State EPA did not need a warrant before inspecting a property that was subject to the terms of a wetland permit. See, New Jersey Department of Environmental Protection v. Robert and Michelle Huber
Should you deny access if the EPA inspector does not have an administrative search warrant?
It depends, it is always worth consulting with your attorney to review the particulars of the situation. Also, when the inspector arrives try and gain more information as to the purpose of the inspection. Before contacting your attorney, you should ask the inspector:
- What they are seeking to inspect or issues are they concerned with?
- What program are they from? (hazardous waste, air, water or multi-media inspections)
- Did they receive a complaint or is this a routine inspection?
As discussed above, the EPA will generally be able to secure a warrant from court to perform an administrative search. Therefore, if you simply deny access without discussing the situation with your attorney, you run the risk the inspector will conclude you have something to hide.
When the inspector secures the warrant, they could be inclined to perform a more intense inspection of your facility. Furthermore, it is more than likely that the EPA inspector requesting access is assigned to your facility and will visit again in the future. It is important to try and maintain a good working relationship with your inspector.
In conclusion, inspections are routine with regard to environmental regulation. An inspection can simply confirm your facility is in compliance or it can be the first step in a lengthy and costly enforcement action. If you are subject to an inspection, it is important to talk with your attorney.