by Krista K. McIntyre and Wade C. Foster
The mining industry is no stranger to environmental regulation and enforcement. Federal environmental laws shape mine development and regulate operations from the first drill hole to final reclamation. Despite the friendlier attitude toward mining in Washington D.C., the U.S. Environmental Protection Agency (EPA) is still inspecting mining operations and initiating enforcement actions under federal environmental laws.
To be sure, EPA’s priorities shifted after the second inauguration of President Trump. EPA recently announced that it would prioritize enforcement methods designed to achieve efficient compliance over drawn-out litigation; however, we have yet to see how EPA’s new enforcement approach is implemented in practice. Importantly, EPA is not suggesting that it will decrease enforcement activities.
This is particularly true for its “core enforcement programs,” which target hazardous air pollutants affecting human health; “high-risk” facilities handling extremely hazardous substances; hazardous wastes; and unpermitted discharges to surface waters.
This article offers guidance on preparation and practices for navigating an EPA inspection. Ultimately, the best preparation is a good compliance program that catches and corrects potential violations before EPA comes knocking.
EPA at the gate
EPA has broad statutory authority to enter a facility to evaluate compliance with environmental laws. Inspections can be announced, meaning EPA schedules them ahead of time, or unannounced, meaning EPA shows up without warning. In either scenario, EPA’s access to the site is all but guaranteed. An owner or operator can deny EPA access; however, this only delays the inevitable and is strongly discouraged.
EPA inspectors are assigned by region or industry type, so a facility may get to know their EPA inspector. EPA inspectors may arrive with familiar state regulators. Inspectors may be friendly, but they are not your friends. The inspector’s job is to ensure compliance, not to offer compliance assistance. There are a few guiding principles to follow when EPA comes knocking:
Execute a communications plan. The plan should identify (and include directions for security staff) who is the primary contact when EPA, or any other inspector, arrives. This may be the site manager, site environmental professional, or legal department. The plan should prescribe a clear chain of communication and identify an on-site point of contact who will be responsible for interacting with EPA. Clear communication is essential.
Allow EPA access. Environmental laws grant broad inspection authority to EPA. While the company can initially deny EPA inspectors access, an administrative search warrant is easily obtained. Delaying EPA offers no advantage to the company and will cause the inspectors to approach the facility with more suspicion when they return. Access is inevitable.
Treat EPA inspectors like other visitors. Collect credentials (typically business cards) and determine the reason for the visit (e.g., routine inspection, responding to a complaint, collecting data). Provide EPA inspectors with safety training provided to other visitors before entering the facility. Designate a company representative to be the “tour guide” and point of contact for questions. Answer questions truthfully and directly, providing only relevant information. Importantly, “I don’t know” is a fine response. The “tour guide” can offer to provide a response to EPA’s question following the inspection. Control the visit to ensure safety and responsiveness.
Keep an inspection journal. Note the areas visited, the questions asked, and any comments of interest. These notes will help assess risks following the inspection. Additionally, the “tour guide” can request copies of all photos and videos taken by the inspector and take the same photos and videos. If the inspector takes samples, facility staff should either request a split sample or be prepared to take their own samples. If the inspector requests documents, keep a copy of each for review after the visit. Do not provide documents labeled confidential or attorney-client privilege without review by counsel. Document the inspection with notes, photos, and copies to facilitate evaluation of risk.
Request a closing conference. A closing conference allows the facility staff and inspector to review findings before the inspector departs the facility. If there were any unanswered questions raised during inspection, the “tour guide” can review those outstanding items, request that EPA clearly restate the question, and agree on a timeline for providing a written response. Use the closing conference to gather real-time feedback. If the inspector identifies a deficiency during the inspection that can be corrected promptly, do so before the closing conference.
Debrief promptly with counsel. Organize information collected during the inspection and debrief with facility management and legal counsel while impressions and interactions are fresh. Follow-up from the inspection should involve counsel and can include: a litigation hold for potentially relevant records, preparation of responses to EPA, and a plan to correct noncompliance promptly. If the corrective action requires significant work, begin developing a plan and schedule. Act on findings with purpose and promptness.
In addition to its on-site inspection authority, EPA has the authority to send information collection requests (ICRs) to evaluate compliance with environmental laws remotely. EPA may provide a detailed ICR before or during the inspection. EPA may digest the information it collected during the inspection and send an ICR weeks or months after the inspection. Responding to an ICR is a formal legal action, and the facility should engage counsel in responding to the ICR to reduce potential liability.
Preparation enhances performance
The best inspection is the one that results in no violations, and the best penalty negotiation is the one you never have. To minimize the risk of EPA enforcement, shore up the facility’s compliance program with the following activities.
Identify the environmental laws and regulations that apply and develop a regular environmental audit program to self-police and detect gaps. Check for complete records and walk around the site to ensure the facility is physically in compliance. The audit can be conducted under attorney-client privilege to ensure that employees feel free to fully identify potential compliance gaps and to limit dissemination.
Revisit the facility’s housekeeping program. If an inspector enters a tidy, well-maintained facility, the inspector may presume the underlying requirements are also well maintained. Housekeeping is a surrogate for compliance focus. Moreover, many violations stem from delayed, deferred, or ignored maintenance. Housekeeping helps catch small deviations early.
Automate recordkeeping where possible. Deploy a practical system that prompts appropriate personnel to perform compliance tasks in a timely manner, and to document the task in a designated workflow or location on your system. Invest in compliance, education, and proactive tasks that mitigate risk and support compliance. Then, when EPA arrives, the on-site team is prepared and the facility will show well.
Recordkeeping is essential
Robust recordkeeping is the foundation for compliance assurance. EPA relies on records, or the absence of records, as evidence in enforcement actions. Records must be truthful, accurate, and complete. Records submitted to the agency are publicly available under the Freedom of Information Act, so public records can serve as the basis for a citizen suit, which is an enforcement action initiated by a concerned group or individual. Knowingly providing false information, or altering or failing to file any required records, may be a criminal violation subject to imprisonment.
Conclusion
While EPA’s enforcement priorities shift, their authorities remain constant and broad. Environmental laws apply broadly across the mining industry and require companies to comply with permitting, pollution standards, and recordkeeping tasks. Continue to invest in compliance and education to minimize the risk of enforcement and the related penalties. Engage employees and counsel, as appropriate, to prepare and to respond when EPA comes knocking.
Krista K. McIntyre represents companies in a variety of economic sectors, including mining, forest products, agribusiness, energy production, chemical processing, and general manufacturing. Clients rely on Krista for permitting, compliance assistance, compliance auditing and enforcement defense in matters involving federal, state, and local pollution control requirements. Krista’s particular expertise covers air quality, release reporting, and agency enforcement. Her practice is multi-state and across EPA Regions.
Wade C. Foster assists clients subject to federal and state environmental laws with enforcement defense, complex environmental litigation, permitting, and compliance. Wade’s substantive areas of focus include water quality, water rights, air quality and mining.