Columnist Robert Johnson explains how to survive an EPA compliance inspection.

The fines and penalties for violating Clean Air Act Title VI refrigerant regulations are severe. Civil penalties include $27,500 per day of violation. Criminal penalties include up to five years federal imprisonment for knowing or willful violations and two years imprisonment for submitting false records.

The Environmental Protection Agency (EPA) routinely conducts surprise and unannounced inspections to verify compliance. In addition, under its Citizen Award Program, EPA pays rewards up to $10,000 to individuals reporting violations that result in successful court cases or convictions.

EPA increased Clean Air Act Title VI refrigerant regulations compliance enforcement action in 1999. These inspections focus on identifying facilities and industries that are not following required Section 608 and 609 refrigerant service practices and record-keeping requirements. This concentrated effort includes inspections targeted on facilities selected from EPA's industry database as well as violation tips.

With this in mind, it is prudent business practice to take all reasonable measures to be aware of and comply with applicable regulations. Organizations should have a Clean Air Act Title VI refrigerant regulations compliance plan in place and be prepared for a surprise EPA compliance enforcement inspection.

Prior to Inspection

Be prepared and prioritize your preparation according to the following three steps.

Designate a Facility Refrigerant Compliance Manager
Within your organization, identify an inspection lead person, who will be the main point of direct communication with the inspectors. This person should have an in-depth knowledge of the facility; applicable CAA Title VI requirements, including Section 608 and 609; the organization's current refrigerant-handling processes and procedures; and the organization's compliance history and status. The lead person also should posses the ability to deal successfully with people in potentially adverse or uncomfortable situations.

Document Compliance and Keep Records
Because Clean Air Act Title VI refrigerant regulations compliance is enforced primarily through record-keeping and reporting requirements, compile accurate records and organize a filing system. This should be a formal record-keeping program requiring everyone in the organization to follow the same procedures.

Records should be maintained on refrigerant handling from point of purchase through final usage or disposal. Records also should be kept for all service work performed on equipment containing refrigerant, regardless of size or refrigerant quantity. Although EPA only requires specific service records on appliances containing more than 50 lb of refrigerant, many other EPA requirements - technician certification levels, recovery units used, evacuation levels, and recovery, recycle and reclaim procedures - are difficult to prove without specific compliance records.

Another reason to maintain detailed records for all appliances is to ensure accurate refrigerant inventory management. Reliable refrigerant inventory tracking, auditing and accountability cannot be maintained without complete refrigerant usage tracking. Finally, tracking all refrigerant usage will provide consistent and uniform procedures and processes that will reduce the chances of human error and subsequent violations.

Documentation and record-keeping can be accomplished manually through a detailed paper-based tracking system. Software programs also are available to automate and simplify refrigerant record-keeping requirements.

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

During an Inspection

Congress provides the EPA with the authority to perform an inspection without notifying a facility in advance. Generally, organizations should not deny entry to an EPA inspector. In certain instances, an entry refusal is a prohibited act subject to a $27,500 fine. It is reasonable, however, to respectfully request that the inspector show enforcement credentials. Under some statutes, the inspector must present his or her credentials to be authorized to perform the inspection. Discuss any specific issues or questions relating to your organization with legal counsel.

Upon entry, you may request that the inspector sign in at the facility. The inspectors may not, however, be asked to sign waiver language or restriction of inspection statements. Do not keep the inspector waiting long for assistance or directions. A company representative should accompany the inspector at all times until the inspection is complete and the inspector has left the premises. Inspection should be limited to necessary areas.

Remember, the inspection is performed by real people, thereby making it a somewhat subjective process. With that in mind, it is essential that you are as respectful and responsive as possible. However, respectful and responsive do not mean that you need do anything more than is asked of you during the inspection. You do not have to volunteer any more samples, documents or information than is requested or reasonably required.

If EPA does not hold an opening conference, it is advised that you request one. An opening conference allows the EPA to inform the organization's personnel of inspection details, logistics and schedules. It provides an opportunity to present an initial cooperative attitude toward the inspectors. A typical opening conference should reveal a brief description of the inspector's intentions and the estimated length of inspection as well as provide a time to arrange site tours, photograph-taking, and the availability of documents for copying. You also may ask the inspector to attend required safety briefings. During this conference, knowledgeable staff can take a brief walk through the premises in preparation for the inspection.

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

Most statutes provide a broad authority for EPA document review and copying. Although you are not required to cover the cost of the copies the inspectors may make, your refusal to provide documents or to allow copying may be considered similar to a denial of entry. Normally, investigators review business files and documents to determine if the following is true:

  • All required documents are maintained.
  • All documents are filled out properly.
  • Documents are prepared at the required time.
  • Documents are distributed to all necessary parties.
  • Document information is consistent when compared against information recorded on more than one document.

Provide the inspector a separate empty office to review any documents. The EPA inspector will have a checklist to record document review results. Request a copy of this document from the appropriate EPA office and include it in your emergency plan materials.

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

Post-Inspection Activities

Send a followup letter to the inspector, appropriate agency program or enforcement office stating 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.

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 also may receive a notice of violation or penalty letter outlining violations and proposed penalty. It is advised to retain legal counsel to review your inspection notes, photographs, records, samples and any followup correspondence before responding to the EPA.

A facility inspection can be either 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 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.

Senior management's visible commitment will have a significant impact on the success of the refrigerant regulations compliance program. Congress recognized this when it designated senior-level management as responsible in criminal enforcement resulting from violations of the 1990 Clean Air Act amendments. This responsibility cannot be delegated away, but management's defensible position can be strengthened by demonstrating intent to comply.