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Knock, Knock! The Inspector is at Your Door
By Lawrence B. Burke and Britney Colton
[January 2006]
If your business generates hazardous waste, you need to understand how it is impacted by one of the most complex and convoluted environmental acts, the Resource Conservation and Recovery Act (RCRA). The consequences of failing to comply with RCRA can severely damage a company’s reputation, financial position, debt and lending options, and negotiating ability. Civil penalties may be imposed up to $27,500 per day per violation and may include permit suspension or revocation. Criminal sanctions may be imposed for “knowing” violations, including federal prison and penalties up to $50,000 per day per violation for a first offense. It is not unusual for the government to seek the maximum total possible penalty, which can reach into the millions.
The following essential tasks will help protect you and the environment, and send the inspector on their way without penalties pending:
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Implement a good tracking system. Keep an inventory sheet and a log sheet, both electronically and on paper. On the inventory sheet list:
a. Materials produced;
b. Material production rate;
c. Type of waste generated;
d. Amount of waste generated; and
e. Disposal site of the waste.
On the log sheet note the daily, weekly, or monthly inspections (regularity will vary depending on your business and the nature and extent of your hazardous waste). Include the name of the employee designated to track the items listed on the inventory sheet, the time the inspection is made, and have the employee date and sign each entry. An additional person, such as a supervisor or environmental consultant, should review the log sheet for any inconsistencies and perform any necessary follow-up on a regular, routine basis. |
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Provide thorough training to all employees. Train employees on:
a. Spill response;
b. Hazardous material transportation; and
c. Facility operating procedures.
RCRA and OSHA require all generators to train employees in these areas, including provision of training in other languages, if employees are not fluent in English.
Periodically test your employees as part of refresher training. Oregon OSHA has a hazard communication program that provides online training and no-fee workshops and conferences in the handling, storage, and treatment of hazardous materials as well as training on how to complete the MSDS paperwork. Further information can be found at: www.orosha.org or by calling 503-378-3272. For a nominal fee, the University of Washington provides a hazardous materials refresher course to facilities located in Washington, Oregon, Idaho, and Alaska. Information on this program as well as a listing of other organizations offering training is located at: http://yosemite.epa.gov/r10/omp.nsf/webpage/oregon. |
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Maintain accurate and complete documentation. Keep all documents, files, and notebooks evidencing compliance. The compliance documents include:
a. Waste designations(including the waste codes and the underlying characteristics of the waste);
b. Completed manifests and land disposal restrictions (LDRs) for the past 3 years;
c. Evidence of training;
d. Spill notifications;
e. Results of prior inspections;
f. Any corrective actions taken; and
g. Audits of your disposal facilities.
Include in these materials any other documents demonstrating that you have thoroughly looked at your waste stream, determined which type of generator you are, and which requirements you fall under. The more precise, organized, and focused your documentation, the more assurance the inspector will have that you recognize and understand your compliance responsibilities. |
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To protect yourself from liability for wastes leaving your property, get an audit package of your transportation, storage, and/or disposal facility (TSDF) or recycler. Many industry groups pay a share to get audits of various TSDFs. The DEQ also performs annual inspections of TSDFs and these inspection reports are public records available for review. In the Portland area, call 503-229-5263 and set up an appointment to review a file. The EPA takes audits into account in determining whether to target you in an enforcement action or to allow you an early out should a TSDF that you use become the target of a cleanup action. Keep all prior information in your permanent compliance file. |
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Prepare an inspection kit and practice the inspection. Keep a kit containing:
a. A camera (to take pictures of anything questioned by the inspector);
b. A map of the facility;
c. A tour route;
d. Necessary safety gear; and
e. Your documentation.
Designate employees who are trained and prepared to lead the inspection. Whoever is designated needs to be trained to stay in charge of the inspection and to not do anything that leads the inspector to explore areas he or she did not originally intend to visit.
Although the DEQ usually gives notice and may even make an appointment, the EPA has asked DEQ to perform more unannounced visits. For this reason, you should conduct your own random, internal inspections on a periodic basis. For further assurance, the DEQ provides free compliance audits through the hazardous waste technical assistance group. To set up an appointment, contact Dave Kunz at (503) 229-5336. Although these inspections and audits may not be as detailed as one provided through a private agency, they will give you a general overview of your compliance responsibilities as well as encourage a more communicative relationship with the DEQ. |
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Do not be passive if you get a negative inspection report. RCRA is complex and regulatory agencies can make mistakes. In the exit interview, ask the inspector which regulation the inspector is basing his or her findings. Make sure the inspector distinguishes between best management practices (BMPs) and statutory requirements. Be sure and pin down the precise regulation and make sure you understand the inspector’s position. Asking lots of questions can narrow issues, but be careful not to get into an argument. If there are issues to be resolved, Davis Wright Tremaine can assist you in obtaining the best possible result
Remember, you will get inspected; it is only a matter of when. A clear understanding of your compliance responsibilities, company-wide training and education, and thorough preparation are key to turning an unexpected inspection into just another routine, workday activity. |
For more information, please contact:
This Environmental Law Advisory is a
publication of the Environmental Law Department of Davis Wright
Tremaine LLP. Our purpose in publishing this Advisory is to
inform our clients and friends of recent developments in environmental
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may only be given
in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright
Tremaine LLP.
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