How to Survive An EPA Clean Air Act Title VI - Refrigerant Regulations Compliance Inspection

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Courtesy of IHS Markit

Part 2: During An Inspection

Since the amendments of the Clean Air Act of 1990 were enacted, facility owners and managers have been faced with the monumental task of establishing and maintaining records of refrigerant usage and service. The Environmental Protection Agency (EPA) requires these professionals to keep extensive records and submit detailed reports of refrigerant usage, service maintenance and disposal - even if contractors are used. In the cool world of refrigerants, documentation and record keeping are half the battle to compliance. The EPA may fine, up to $27,500 per day, and imprison, for up to five years, anyone who fails to comply with regulations. Improper record keeping or falsification of records can bring up to two years imprisonment.

In fact, the nine EPA regions have budgets for on-site inspections of suspected refrigerant violations. Passing a refrigerant inspection, or preventing one from taking place requires that you instantly and consistently demonstrate good refrigerant management practices. It is important to realize that the EPA is not looking for organizations they know will pass an inspection easily - they are looking for violators. Keeping detailed records is the fastest way to account for every ounce of refrigerant, and is much cheaper than risking the results of a discovered violation. However, should you be inspected, there are things you can do to protect yourself. This article presents how facility managers can prepare for an EPA Compliance Enforcement inspection.

Develop an EPA 'Unannounced' Title VI Inspection Plan
First, develop an inspection plan to use when EPA personnel show up unannounced at your facility. The plan should include a list of all requirements to be maintained under all applicable laws, regulations and requirements. It should identify any specific requirements applicable to your organization. The plan should specify the location of any required information or item including refrigerant inventories; appliances; recovery and recycling equipment and documentation and records. The plan should include the name and phone number of the employee responsible for maintaining the required information or item. The plan should also include guidance for how all employees should act during an inspection.

During an Inspection
Congress has provided the EPA with authority to perform an inspection without advance notice to the facility. These are typically called 'unannounced' or 'surprise' inspections.

Generally, organizations should never deny entry to an EPA inspector. Denying an inspector the permission to enter, in certain instances, is a prohibited act subject to a $27,500 fine. It is reasonable, however, to request respectfully that inspectors show their enforcement credentials. Under some state statutes, an inspector must present his or her credentials to be authorized to perform inspections. Discuss any specific issues or questions relating to your organization with legal counsel. Bear in mind however, that it is wise to admit inspectors once they have shown their enforcement credentials.

Once inspectors are admitted, you may request that they sign in at the facility; however, inspectors cannot be asked to sign waiver language or restriction of inspection statements. Do not keep the inspector waiting long for your assistance or directions. It is also reasonable to offer the inspector refreshment. Once an inspection begins, a company representative should accompany the inspector at all times until the inspection is complete, and the inspector has left the premises.

It is important to note, an inspection is performed by a real person, which makes it a subjective process. With that in mind, it is essential that you are as respectful and responsive as possible to the inspector. However, respectful and responsive does not mean that you need do anything more than what is asked of you during the inspection. You do not have to volunteer any additional samples, documents, information or conversation than what is requested or reasonably required of you.

It is advised, if EPA does not hold one, that you request an opening conference before an inspection begins. An opening conference allows the EPA to inform the organization's personnel about the details, logistics and schedules an inspection. It gives you an opportunity to present an initial cooperative attitude toward the inspectors. You should appear calm and positive during the conference.

A typical opening conference should reveal a brief description of the inspectors' intentions, the estimated length of time an inspection will take, the schedule for arranged site tours and the taking of photographs, and the availability of staff to copy documents. You may also require the inspector to attend any required safety briefings. During this conference, knowledgeable staff could take a brief walk-through the premises in preparation for the inspection.

You should take notes throughout the entire inspection. The notes should include the date, time, complete description of the inspection, and any suggestions, objections or conclusions made by you or the inspector.

Most state statutes provide a broad authority to the EPA to review and copy documents. Although you are not required to cover the cost of EPA copying documents during an inspection, your refusal to provide documents or to allow copying may, in certain instances, may be treated the same as an offense for denial of entry. Normally, investigators review business files and documents to determine whether: (1) all required documents are maintained; (2) all the documents are properly filled out; (3) the documents are prepared at the time required; (4) the documents are distributed to all necessary parties; and (5) document information is consistent when compared against information recorded on more than one document. To help inspectors in the process, provide a separate empty office to review the documents.

The EPA inspector will have a checklist to record results of a document review. It may be worth your time to request a copy of such a document from the appropriate EPA office to include in your inspection plan materials.

You may also request a closing conference at the end of the inspection. While EPA inspectors are cautioned to state clearly that any information provided is preliminary and may change as a result of additional review, a closing conference can be very helpful in obtaining information from the inspectors. You also may request how and when a copy of the final inspection report can be obtained.

Based on the events and evidence of the inspection, the EPA will decide if further investigation is necessary to determine whether an enforcement action is appropriate. It is essential that a company do everything possible to be prepared and responsive before, during and after an EPA inspection.

(This article is part two of a three part series.)

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