The Beginning of an Investigation

The first time the regulated community ever finds out about an investigation is when an inspection is conducted or a search warrant is executed.  Here is a brief description of the statutory requirements that set out the various agencies’ rights of entry into a facility (setting aside search warrants for a moment).  

The Occupational Safety and Health Administration (“OSHA”) has a Memorandum of Understanding with the USEPA so I have included its statutory authority here as well.  An OSHA inspector may enter “without delay at reasonable times” to inspect and investigate;  the inspector must show proper credentials and the entry may take place only during regular business hours or other reasonable times.  See 29 U.S. C. § 657.

The USEPA has several statutory programs that give it rights of entry.  Under the Clean Water Act (“CWA”) the inspector or an authorized contractor has the right to enter; the CWA does not restrict entry to reasonable times but does restrict access to documents to reasonable times and again, proper credentials must be presented.  See 33 U.S.C. § 1318.  Under the Resource Conservation and Recovery Act (“RCRA”) the inspector, upon presenting the requisite credentials may enter the facility, inspect the facility and take samples; the entry must be at a reasonable time and must be “commenced and completed with reasonable promptness” (The reasonable promptness provision is unique to RCRA; however, as a practical matter, agencies will attempt to be prompt).  See 42 U.S.C. § 6927 (a).  Under the Clean Air Act (“CAA”) (provisions of which are similar to the CWA), the inspector may enter upon presentation of his credentials but unlike the CWA entry is not necessarily restricted to reasonable times; however, like the CWA, document access is limited to reasonable times, so as a practical matter, it is very likely that entry will only be requested during “reasonable times.”  See 42 U.S.C. § 7414(a) (2).  Finally, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) allows entry to facilities at reasonable times to conduct inspection and to determine if an inspection is necessary; CERCLA, like RCRA, has a reasonable promptness requirement.  See 42 U.S.C. § 9604 (e) (3) and (4).

More later,

As always, please feel free to contact me at [email protected]

WDJiii

Comments

[Sandy Hopes]

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