2020 Environmental Real Estate IssuesWith the March 2, 2020 publication of a procedural rule in the Federal Register, EPA’s On-Site Civil Inspection Procedures became effective.  EPA promulgated the rule to meet the requirements of President Trump’s October 9, 2019 Executive Order “Promoting the Rule of Law through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.”  Section 7 of the Administrative Order requires administrative agencies that conduct civil administrative investigations to publish procedural rules governing their inspections.  Once published, agency investigations must be done in compliance with their procedural rules.

Review EPA’s Procedures when Forming/Updating Facility Procedures
All facilities that may be subject to investigations by environmental agencies should have written procedures for its employees and contractors to follow in preparation for, during, and after an investigation.  Those procedures should reflect knowledge and understanding of EPA’s procedures, as announced in this rule.

Different Rules Apply to Different Agencies
For almost every facility that may be subject to an EPA investigation, state and local agencies also are potential investigators, as are other federal agencies.  Facility management should appreciate that the rule governing EPA’s investigations may not apply to other federal agencies or to state or local agencies.  Thus, the facility’s written procedures must reflect the different agency rules or policies that may apply.

As an example, the rule’s supplementary information indicates that, where possible, EPA will seek the owner’s consent to enter a facility and seek a warrant if permission is not given.  In contrast, some state laws specifically allow investigators to enter even if the owner does not grant permission, without the need to obtain a warrant.  Facility managers must appreciate that different rules apply to different agencies.

To see the rule and its supplementary information as published in the federal register https://www.epa.gov/sites/production/files/2020-02/documents/civilinspectionsrule.pdf