Agency Inspections, Part 2
Various statutes provide the authority that the Occupational Safety and Health Administration and the United States Environmental Protection Agency utilize in conducting inspections. The statutory provisions are similar and are as follows:
Occupational Safety and Health Act (“OSHA”): Under OSHA, the inspector may enter “without delay at reasonable times” to inspect and investigate. 29 U.S. C. § 657 (1982). The inspector must show proper credentials and the entry may take place only during regular business hours or other reasonable times. Id.
Clean Water Act (“CWA”): The CWA gives the inspector or an authorized contractor the right to enter. 33 U.S.C. § 1318 (1982). The CWA does not restrict entry to reasonable times but does restrict access to documents to reasonable times. Id. Again, proper credentials must be presented. Id.
Resource Conservation and Recovery Act (“RCRA”): Under RCRA, the inspector, upon presenting the requisite credentials may enter the facility, inspect the facility and take samples. 42 U.S.C. § 6927 (a). The entry must be at a reasonable time and must be “commenced and completed with reasonable promptness.” Id. The reasonable promptness provision is unique to RCRA; however, as a practical matter, agencies will attempt to be prompt. Similar reasonable promptness language is also found in the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”); 42 U.S.C. § 9604 (e) (4).
Clean Air Act (“CAA”): The CAA is similar to the CWA in that the inspector may enter upon presentation of his credentials but 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.” 42 U.S.C. § 7414(a) (2).
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”): CERCLA allows entry to facilities at reasonable times to conduct inspection and to determine if an inspection is necessary and CERCLA, like RCRA, has a reasonable promptness requirement. 42 U.S.C. § 9604 (e) (3) and (4).
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
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