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

- By:

Courtesy of IHS Markit

Part 3: Post EPA Inspection Activities

Since the Clean Air Act Amendment was enacted in 1990, facility owners and managers with HVAC and refrigeration equipment have been faced with regulations and requirements on refrigerant purchasing, usage, and disposal. EPA may take enforcement actions on anyone who fails to comply with civil fines of up to $27,500 per day, and criminal penalties of up to five years imprisonment for non-compliance; and up to two years imprisonment for intentional falsification of records. In this new environment of regulated refrigerants, accurate documentation and record keeping is half the battle to compliance.

EPA routinely conducts 'announced' and 'unannounced' site inspections to determine compliance as part of their enforcement program. It is important to realize that EPA is not only looking for suspected violators; they are also performing random inspections. Passing an EPA refrigerant inspection requires that correct refrigerant practices are being performed at your facility. All organizations using refrigerants should have a Clean Air Act Title VI Refrigerant Regulations Compliance Plan in place and be prepared for an EPA Compliance Enforcement inspection.

The Chemical Manufacturers Association Root Cause Analysis Project final report published in May 1999 identified Root Cause and Contributing Factors of environmental regulations non-compliance. The following factors were among the root causes or contributing causes:

  • Environmental aspects of facility processes and operations not identified by management
  • Unclear procedures
  • Contradictory interpretation of state or federal regulations
  • Written procedures not available to staff
  • Facility managers unaware of the applicability of a regulation
  • Insufficient compliance monitoring, specifically, a lack of checks or audits

Make Compliance Permanent and Ongoing
In order to ensure ongoing compliance, conduct regularly scheduled, minimum of once per year, compliance update training, and self-audits, or surveys. These can be performed using internal resources or contracted to professional consultants specializing in refrigerant regulations compliance management. This will also reinforce the importance of compliance and further demonstrate the organizations 'intent to comply'. A process needs to be implemented to ensure an ongoing stream of any new compliance updates, changes, and information is collected and distributed to affected employees. This is also necessary to modify the program as required, to keep it current and accurate.

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

The following information will prepare you for what to do after an EPA inspection takes place.

After an EPA inspection, your organization should send a follow up letter to the inspector, appropriate agency program or enforcement office explaining your willingness to cooperate with the program. It is important to be positive and convey your interest in complying with the requirements without volunteering any additional information. This is also a good time to express management's commitment to organizational compliance and your intent to comply.

It is important to show your intent, because these factors are taken into consideration when the EPA is evaluating your organization for penalties. One example of this is the EPA's Policy on Compliance Incentives for Small Businesses. It allows the EPA to waive the imposition of all or a portion of a penalty when the violation is corrected within a time period appropriate to the violation in question. This exception applies only where there has been a good faith effort to comply with applicable regulations and the violation does not involve criminal wrongdoing or significant threat to health, safety or the environment.

Another example of this is in the EPA Civil Penalty Policy on Refrigerant Violations (Appendix X: Clean Air Act Civil Penalty Policy For Violations of 40 C.F.R. 82, Subpart F: Maintenance, Service, Repair, and Disposal of Appliances Containing Refrigerant).

The policy states that penalty assessment factors are taken into account in determining an appropriate penalty including good faith efforts to comply.

If you are found to be in non-compliance, you won't be able to escape enforcement penalties, however you may be able to reduce them by showing your organization has made 'good faith efforts to comply'.

After an inspection, you may receive an informal or statutory letter from the EPA that requests additional information concerning specific records or samples obtained from the inspection. In certain instances, you may also receive a notice of violation or penalty letter outlining any violations and a proposed penalty. In any case like this, it is well advised to retain counsel to review your inspection notes, photographs, records, samples, and any follow up correspondence before responding to the agency.

In summary, a facility inspection can be the beginning or the end of the EPA enforcement process. 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. Accordingly, it is essential that a company do everything possible to be prepared and responsive before, during and after an EPA inspection.

Have You Completed These 10 Steps to Successful Refrigerant Management?

  1. Form a Refrigerant Compliance Management Team (form at individual sites or at the corporate level).
  2. Designate a site Refrigerant Compliance Manager and/or a corporate Refrigerant Compliance Manager.
  3. Develop a compliance checklist and audit site performance.
  4. Determine actions required based on audit results.
  5. Develop written procedures and policies for refrigerants.
  6. Standardize an EPA record keeping system.
  7. Inventory all equipment that contains refrigerant.
  8. Determine the equipment's total charge. (under 50 pounds, or over 50 pounds for comfort or process refrigeration)
  9. Implement procedures and train all affected personnel.
  10. Follow up with regularly scheduled audits or surveys.

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

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