The Inspection – Part 2
Should you deny access? You should deny access only for valid reasons such as: a) The inspector does not have the safety equipment required by the facility under OSHA or NIOSH requirements; or b) The inspection is not taking place during working hours. Remember, not many valid reasons exist for not allowing access. Make sure you let them know access will be permitted upon compliance.
Invalid reasons for denying access include: a) Not allowing the inspector to bring in necessary equipment (e.g., camera); b) Not allowing the inspector access to documents; c) Strikes and/or plant shutdowns; d) The inspector refuses to sign a waiver or other legal document restricting the owner/operators liabilities or obligations.
When access is denied, the inspector will: a) Ask the reason for denial; b) If the problem is beyond the inspector’s authority, suggest that the official contact an attorney to obtain legal advice on his/her responsibility under § 3007 of RCRA; c) Under no circumstances should the inspector discuss potential penalties or do anything that might be construed as threatening; d) If access is still denied, fill out a “Denial of Access Report” (Exhibit 4.1) with the time, date, and names and titles of persons denying access. Obtain the signature of the facility representative if possible; e) Leave the premises and document any observations made pertaining to the denial, particularly any suspicions of violations; f) Report all aspects of denial of access to the appropriate Regional or State enforcement division to determine appropriate action to be taken and to get help in obtaining a search warrant.
If access is denied, the inspector will get a search warrant. Once the inspector gains a search warrant to conduct the inspection: a) The inspection must be conducted in strict accordance with the warrant (if the warrant restricts the inspection to certain areas or to certain records, the inspector must adhere to these restrictions); b) If sampling is authorized, all procedures must be carefully followed, including presentation of receipts for all samples taken (the facility should also be informed of its right to retain a portion of the samples obtained by the inspector); c) If records or property are authorized to be taken, the inspector must provide receipts and maintain an inventory of all items removed from the premises.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii