Santo Manicone is president of Facility Support Services LLC, a national environmental and safety engineering consulting firm with offices in Connecticut and Illinois. He has worked and assisted higher education facilities for over 16 years achieving federal and local compliance. He can be reached at support@snet.net.

Higher education facilities directors are well aware that complying with the government's environmental regulations is practically a full-time job for two employees. In addition to maintaining proper environmental records, training, reporting, disposal, and spills or releases of oil and hazardous substances, it is essential that facilities which produce, store, dispose of, and otherwise handle hazardous substances be prepared in the event that government officials conduct a site inspection of their operations. As we have all heard through the e-mail grapevine, the U.S. Environmental Protection Agency (EPA) is expected to enforce educational facilities through inspections as a means of getting into compliance by this aggressive program.

Well, is your facility ready for a minimum eight-hour EPA inspection? The best ways to answer this is by asking yourself these basic questions as honestly as possible.

• Do you have some documentation on the AMOUNTS and KINDS of hazardous waste you generate and on how you determined that they are hazardous?
• What is your U.S. EPA Identification Number?
• Do you ship hazardous waste off-site?
• If so, by which transporter and to which designated hazardous waste facility?
• Do you have copies of MANIFESTS and Land Disposal Restriction Notifications used to ship your hazardous waste off site?
• Are they filled out correctly?
• Have the manifests been signed by all the transporters and the designated facility?
• Is your hazardous waste accumulated in the PROPER CONTAINERS?
• Are the containers properly DATED and MARKED?
• Have you designated an EMERGENCY COORDINATOR?
• Have you posted EMERGENCY TELEPHONE NUMBERS and the location of EMERGENCY EQUIPMENT?
• Are your EMPLOYEES trained and thoroughly FAMILIAR with proper waste handling and emergency procedures?
• Do you understand when you may need to contact the NATIONAL RESPONSE CENTER?

How did you score? For a number of us these questions, it will take some time and review to answer. In the case of an inspection, you do not have the time to look for these items; in fact you are responsible to make all these documents available for review during the inspection. If you hesitate to respond to these basic questions, then expect a long day of "inspector hell."

This edition of The Regulatory Reporter will try to assist you in preparing for an EPA inspection with some quick topics that will smooth the process. There are no assurances that you will pass all that the EPA asks, but I will expect that you will be prepared at least for the basics.

Benefits of the Inspections

As we are aware of, federal law provides the EPA with authority to inspect your site to evaluate your compliance with the hazardous waste regulations. It is important to cooperate with the EPA and use this unpleasant visit by an inspector as an opportunity to identify and correct problems (if needed). Accompanying inspectors on a tour of your facility will enable you to ask any questions you may have on more effective ways of handling your hazardous products and wastes.

In addition, guiding the inspectors through your facility and explaining your operations may help them to be more sensitive to the particular problems or needs of your business. Inspectors can also serve as a valuable source of information on record keeping, manifests, and safety requirements specific to your facility and can provide you with information that will help you reduce the amount of waste you generate.

Good Morning, I am an EPA Inspector

Government officials often provide prior notice of their intention to conduct an environmental inspection at the site. If prior warning is given, it is wise to request, in advance, that the inspector or inspection team provide you with a copy of any inspection checklists that will be used. This information will help you determine which areas of your facility will be inspected and what records the inspector will need to review for regulatory compliance. Regardless of whether advance notice is given, your facility should nevertheless have corporate policies and procedures in place to address various concerns about environmental inspections, including:

• Who should be involved in the inspection?
• Under what circumstances should access be denied?
• Whether opening and closing conferences should be required
• Whether the facility should give out copies of information
• Documents to be produced
• Sampling protocols
• Confidentiality issues
• Inspector's use of photographic equipment while on the premises

Each of these considerations should be thought out well in advance so that the facility is not taken by surprise, can exercise some level of control over the process, and ensure that its employees don't panic. In order to develop a good plan of action and corporate policy for handling environmental inspections, a facility must know its legal rights in regard to the government's inspection authority. Remember it is important to designate a director to greet government inspectors upon arrival on the premises. I have always asked these EPA officials to show identification, business cards and credentials, as well as have them sign a visitor's logbook.

First Tip: Avoiding Common Mistakes

The EPA has been conducting inspections on hazardous waste generators for facilities well over 15 years. Even today, inspectors frequently find that hazardous waste generators are often failing to comply with very similar requirements. Unfortunately, failing to comply with the hazardous waste requirements has resulted in financial penalties and legal notices. To avoid this type of enforcement response, hazardous waste generators can learn from the common mistakes and pay extra close attention to complying with these requirements.

Determine if your waste is hazardous waste

Federal regulations require that you determine if your waste is hazardous waste using knowledge and/or testing (see 40 C.F.R. 262.11). This responsibility is fundamental to achieving compliance with other requirements. Inspectors will look closely at your facility to assure you have determined if all your wastes are hazardous or not.

Also, because your wastes need to be managed properly at all times even while you may be awaiting laboratory analysis, you must make this determination immediately upon generation of the waste. You can use process or historical knowledge to make this initial hazardous waste determination. You may also use simple test methods (litmus paper, flash point, etc.) while you await further laboratory analysis. It is okay to change your initial waste characterization to make it right. It is not okay to wait to make this determination. And don't forget to save the records used to make your determination.

Label and accumulate your waste properly

State and federal regulations require that large and small quantity generators label containers and tanks holding hazardous waste with the words "Hazardous Waste." You must also ensure that you do not exceed the accumulation times allowed for your generator category. Remember that generators may accumulate hazardous waste on-site without first obtaining a permit provided they comply with the labeling and accumulation requirements. If you fail to meet these accumulation and labeling requirements, you may be subject to an enforcement action based upon your failure to first obtain a permit — this is a very serious violation of the requirements. (See 40 C.F.R. 262.34. Please note that 40 C.F.R. 262.34 references many other regulations. It is very important that you comply with these referenced regulations.)

Pollution Prevention can help in your Audit

Pollution prevention means eliminating or reducing at the source the use, generation, or release of toxic chemicals, hazardous materials, or solid waste. It requires a review of business activities from start to finish, in order to make changes that avoid the creation of waste, rather than managing waste after it has been generated. Pollution prevention is not the same as pollution control. Pollution control means reducing waste after it has been created, rather than avoiding its creation in the first place. Pollution prevention can increase operational efficiency. An emphasis on pollution prevention shows EPA officials that you run an efficient facility.

Improved Housekeeping

A preventive maintenance program that is written and has documentation will assist your facilities credibility with the inspector as having control. Preventive maintenance schedules should be reviewed periodically and incorporate a schedule to ensure that equipment is being maintained.

Examples of improved housekeeping procedures include the following actions:

• Inspect and maintain equipment routinely
• Perform preventive maintenance routinely
• Written or documented schedules

Hazardous Material Management

Hazardous waste storage areas are overlooked by a number of facilities. These areas are one of the first areas that the inspectors review. This entire room can set a major example on how the rest of the inspection will be performed. Good materials management practices include:

• Space rows of drums appropriately to allow for easy transfer and inspection for damage or leaks
• Stack containers according to manufacturer's instructions to reduce tipping, puncturing, or other damage
• Segregate each toxic substance, hazardous waste and non-hazardous waste to avoid cross-contamination, mixing of incompatible materials, and unwanted reactions and to facilitate materials exchange, recycling, or reclamation
• Store containers on pallets to prevent corrosion, which can result from containers making contact with concrete floors
• Add containment berms to capture and contain leaks or spills
• Keep aisles free of obstructions
• Clearly label containers with information on contents, handling, storage, expiration dates, and health and safety hazards

Written Spill and Leak Prevention

In the opening review of the EPA inspection a request to review your facilities spill plan will be needed. It is important that the spill plan be certified and that it has some of the basic topics. Such as:

• The location of storage tanks and vessels
• Emergency equipment location and description
• Contact names of responsible parties
• Emergency and spill contractors phone numbers
• Evacuation routes
• Employee training certification
• Inspection records

Denying Entry

If prior notification has not been provided, and the inspector shows up without a warning, the facility must determine whether it is worth giving the inspector a difficult time by denying entry since the inspector is certain to come back soon with the necessary warrant. Keep in mind that the inspector will surely be less congenial upon his return. As I hear from a legal standpoint, denial of access to inspectors based solely on the lack of a warrant will not result in assessment of any civil or criminal penalties as long as an emergency situation does not exist. Access may also be denied for other reasons, including:

• The inspector lacks necessary safety equipment or has not undergone training required under OSHA or other federal laws
• The inspector is seeking entry other than during the working hours of the facility

If access is denied for one of these reasons, it is important that the inspector be told that access will be allowed upon compliance with the facility's objection. Access may not be denied for any of the following reasons:

• The inspector's use of cameras or video recorders
• Strikes or shutdowns
• The inspector's refusal to sign a waiver restricting liability or obligations of the facility owner or operator

On the other hand, if an inspector presents a valid search warrant upon arrival, and access is denied, the facility may be subject to criminal penalties. Therefore, it is crucial that designated personnel ask for a copy of the warrant and read it. Determine the scope and limits of the warrant.

To the extent that the warrant is limited to certain portions of the facility, the company may deny access to the remaining parts. Further, it is important to verify that 1) a magistrate or judge has signed the warrant and 2) the warrant authorizes entry by the agents who have appeared at the facility to conduct the inspection.

Other Tips

Overseeing the inspector's activities. It is important to keep a watchful eye on the inspector. The inspector should not be given carte blanche to peruse the facility and company files. Company personnel should maintain a reasonable degree of control over the inspection process. The inspector should have an employee escort at all times so that the inspector does not go beyond the scope of the inspection as agreed upon in advance or provided by the terms of the inspection warrant.

Sampling and split sample requests. The inspection authority of most environmental laws permits the inspecting agency to perform sampling. If samples are collected, it is important to ensure that representative samples are taken and collected properly. The facility should always request a split sample and perform an independent sampling analysis to verify the accuracy of the government's sampling analysis. Under most environmental laws, inspectors are not required to provide split samples unless a specific request is made. When requesting a split sample, first make sure that the split sample is equal in weight and volume. The following additional information should also be obtained:

• Written receipts that describe the samples
• Description of the tests to be performed on the sample
• Government test results

Conclusion

Following completion of the inspection, the facility should request copies of all photographs and videotapes taken by the inspector, as well as receipts for samples and a document inventory. If documents are seized pursuant to a valid search warrant, the company is entitled to an inventory of the documents and the inspecting agency must file a copy of it with the court that issued the warrant.

The best way to be prepared for inspection is to perform your own compliance audits and "mock" EPA inspection program. Get started.