Enforcement and Inspection, Regulatory Developments

On-Site EPA Civil Inspection Rule Rescinded

Effective immediately, the EPA rescinded its March 2, 2020, final rule on the Agency’s procedures for conducting on-site civil inspections on behalf of the EPA.  Because the EPA classifies this rulemaking as procedural rather than substantive, there is no required public comment period.

The rescinded rule, promulgated in response to the Trump administration’s Executive Order (EO) ‘‘Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,’’ stated, “Within 120 days of the date of this order, each agency that conducts civil administrative inspections shall publish a rule of agency procedure governing such inspections, if such a rule does not already exist. Section 1, Policy, of EO 13892 implied that there was a need for a rule of Agency procedure, due to a perceived lack of transparency on how EPA conducts onsite civil administrative inspections,” says the EPA published rescission document.

In response to EO 13892, on March 2, 2020, the EPA published a final rule describing the EPA procedures that governed how Agency personnel were to conduct on-site civil inspections.

President Joseph R. Biden revoked EO 13892 on January 20, 2021, with the issuance of EO 13992. That EO states the Biden administration’s policy is “to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID–19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals.”

The previous administration’s policy required the EPA to promulgate a rule for these types of inspections, which removed the flexibility the Agency previously had employed for on-site civil inspection procedures.

“The procedures for inspections must be adaptable to the site-specific conditions that the Agency faces in conducting its investigations. By rescinding the 2020 inspection rule, EPA is restoring the flexibility needed when carrying out civil inspections under a myriad of circumstances,” states the rescission document.  “Further, the EPA has concluded that the 2020 rule on civil inspections is unnecessary, since procedures described in this rule already exist in inspection guidances and manuals, which are accessible to the public through EPA’s website.”

The EPA notes that it will continue to employ public transparency in the procedures it utilizes for on-site civil inspections.

Additionally, the EPA “states it has met and will meet all statutory obligations pertaining to posting documents for public accessibility,” reports a JD Supra article by law firm Bergeson & Campbell P.C. “To the extent that concerns arise regarding Agency guidance, a person may — consistent with the Administrative Procedure Act — petition EPA, including a request to issue, amend, or repeal EPA guidance, by contacting the EPA program office or regional office that is responsible for administering the area of stakeholder interest.”