American Farm Bureau Federation: Checklist for Livestock Operations Facing EPA Inspections

The following suggestions may be useful to growers faced with EPA inspections. While this list is not complete, it can serve as a starting point to help growers make the most out of EPA inspections. Please note that this is not intended to serve as legal advice. EPA inspections may lead to enforcement actions and therefore growers are cautioned to seek the advice of counsel.

Prior to the Inspection:

1. Designate a Point of Contact (POC). When preparing for a potential EPA inspection, the first thing a grower should do is designate one person as the POC. It may be useful to have two POC’s as a back-up, particularly for larger farms where EPA may send more than one inspector. The POC should be an employee or family member most familiar with the farm’s environmental compliance and operations. Ideally, this person would be the environmental manager. The POC should always accompany the inspector around the farm. The farm’s main office, security gates and reception should have the names of the POC for immediate contact if an EPA inspector arrives. If possible, the POC should receive some training from counsel on how to handle EPA inspections.

2. Establish Procedures for Inspections. Develop a plan informing employees what to do when an inspector arrives. The procedures can be formally written and part of the farm’s environmental training and biosecurity programs, or more informally developed and communicated to employees. At a minimum, the procedures should inform employees what to do when an inspector arrives, whom to notify, and under what conditions the inspector should be provided access to documents and property. With the advice of counsel, the grower should determine under what circumstances the grower will require EPA to obtain a warrant before inspecting the facility and how the POC should handle the notification to EPA. Note that warrantless administrative inspections have been upheld by the courts where certain conditions are met. Farm employees should be instructed to be courteous and truthful, but not to speculate in response to an inspector’s questions. Preferably, all inspector questions should be directed to the POC and not to other employees.

3. Consider Whether Counsel Should be Present. Most farms do not have counsel readily available and do not ask for counsel to be present at routine inspections. However, in light of EPA enforcement initiatives, it may be generally advisable for counsel to be present where (a) the inspection is unannounced and not routine, (b) an EPA or state enforcement action is already threatened or pending, or (c) there are indications that EPA is investigating allegations of criminal activity. If the grower decides not to have counsel present, the grower would be well served to arrange for counsel to be available via telephone during the inspection in case questions arise as to the scope of the inspection or access to company records or employees.

4. Pump the Inspector for Information. When the inspector calls to schedule the inspection, find out as much as possible about the inspection, including: (a) the statutory authority under which the inspection will be conducted; (b) the portions of the farm that will be inspected; (c) how long the inspection will last; (d) what prompted the inspection (e.g., complaint, fish kill, water samples taken downstream); (e) whether the inspection is part of a new enforcement initiative; (f) how many inspectors will be coming; (g) which employees does the inspector intend to interview; and (h) whether the inspector intends to collect samples. If possible, document the discussion and send a confirming letter to the inspector.

5. Review Recordkeeping. CAFO regulations have strict recordkeeping requirements and recordkeeping violations are easy targets for EPA inspectors. At a minimum, the POC and other employees should refresh their recollections as to where key documents (e.g., hazardous waste manifests, spill contingency plans, permits, land application records) are kept, and be sure records are maintained in an orderly fashion. Good recordkeeping makes a very positive impression on an inspector. On the other hand, fumbling around for key documents will raise suspicions that the grower does not take environmental requirements seriously.

6. Identify and Segregate Confidential Information. Prior to the inspection is also a good time to determine which of the farm’s records will be off-limits to inspectors (such as attorney-client correspondence or environmental audits) and which will be made available to inspectors but claimed as “confidential business information” (“CBI”) (e.g., trade secrets). These materials should be segregated and properly labeled prior to the inspection. The farm’s counsel may have advice on how to segregate these documents and how to inform EPA that the documents are lawfully withheld from inspection.

7. Take Corrective Actions. When an inspection uncovers deficiencies, they should be corrected immediately. Therefore, make sure that any items noted in previous inspections have been corrected and documented. If possible, research relevant EPA inspection manuals or public information to determine areas of likely interest. Do a quick compliance check and fix what you can before the next inspection. Clean up messy operations, even if they are not violations. A pristine-looking farm makes a great impression and starts the inspection off on the right foot.

8. Define Scope of Physical Access. Decide which areas, if any, may be off limits to the EPA inspector due to safety or other requirements. Be sure to follow biosecurity, food safety and worker health and safety requirements (goggles, hard hats) where applicable.

9. Notify Employees. Inform employees of the impending inspection and remind them of the farm’s procedures for inspections.

During the Inspection:

1. Do as the Inspector Does. The POC should accompany the inspector at all If the inspector takes notes or photos, the POC or another designated person should as well. If the inspector insists on speaking with employees other than the POC, notes of the conversations should be taken. If the inspector wants a copy of certain records, make one for the farm as well. Importantly, if the inspector takes a sample, the POC should seek to obtain a split sample.   Also, the POC should obtain receipts for any samples or original documents taken off the farm. By following these steps, the grower knows exactly what information the inspector has and can dispute any discrepancies in the future.

2. Cooperate, but Don’t Speculate. Federal law prohibits knowingly and willfully falsifying or concealing material facts from, or making false or fraudulent statements of material facts to, the United States.   Accordingly, it is important to answer the inspector’s questions truthfully. However, it is equally important not to volunteer too much information or speculate. If the POC is not sure about an answer, the POC should promise to get back to the inspector, and then do so in a timely matter.

3. Employee Interviews. To the extent possible, the POC should seek to limit the inspector’s questioning of other farm employees. Hopefully the inspector identified the interviewees when asked by the POC prior to the interview. If the inspector wants to formally interview specific individuals, legal counsel should be notified immediately. The interviews are usually done for a reason and signal that EPA is building a record to be used against the grower.

4. Identify the Inspector. It is important that all employees know who the inspector is and that the person is an EPA enforcement employee evaluating the farm’s environmental compliance (and not the farm’s own auditor).

5. Claim CBI if Applicable. If EPA copies records that contain trade secrets, make sure that the POC notifies EPA that it is claiming the records as CBI. Failure to claim CBI at this point may waive the farm’s claim and subject the records to public scrutiny.

6. Request an Exit Interview. Although most inspectors will ultimately send an inspection report to the inspected farm, this may take many months and the report often contains surprises. As time passes, recollections fade making it difficult to dispute items in the report. By requesting an exit interview, the POC can learn as much as possible about the inspector’s findings in the interview. Sometimes it is possible to get the inspector to share his or her completed inspection checklist at the exit interview. Discuss the inspector’s conclusions and make sure that they are not based on inadequate information or a misunderstanding. The exit interview, coupled with records made by the POC during the inspection, will assist the grower in any future disputes.

Post Inspection Follow-up Following the inspection:

1. The farmer should correct as many violations or potential violations possible, as quickly as possible. This not only demonstrates a cooperative attitude to EPA, but cuts off additional “per day” penalties. EPA typically adds up as many “per day” penalties as possible as leverage against the farmer.

2. If additional information was promised to the inspector, provide it as promptly as possible.

3. Have the POC prepare a letter summarizing the inspection and the exit interview. The farm’s management should always be immediately informed of the results of the inspection. If possible violations were noted, counsel should be contacted to evaluate proper next steps.

4. Obtain the inspection report, either from the inspector directly or by requesting it through the Freedom of Information Act. Notify the EPA of any errors in the report, promptly and in writing.

FROM EPA http://www.agronext.iastate.edu/immag/openfeedlot/whattoexpect.html

The U.S. Environmental Protection Agency (EPA) inspects animal feeding operations to evaluate their compliance with  federal environmental laws.  Poorly managed facilities have the potential to  pollute the nation’s rivers, lakes, streams  and groundwater. The pollution can come from any number of sources including direct runoff from the feeding operations, overflows or seepage from waste retention structures or from overapplication or improper applications of liquid wastes or manure to fields and crop land.  Your state environmental agency may also inspect your facility for compliance with state regulations as well as federal requirements.  This fact sheet explains what you can expect during an EPA inspection. It tells you what a typical inspector will be looking for and what may happen afterwards. Not all inspections are the same. Yours will depend on what kind of operation you have and on EPA’s reason for doing the inspection.

Purpose of the inspection

EPA inspections at animal feeding operations are typically Compliance Evaluation Inspections, where the facility is being inspected primarily to determine if it is complying with the requirements of the Clean Water Act purchase viagra online in usa.  A second purpose of the inspection is to evaluate whether requirements of any other federal environmental laws are applicable to the facility, and if so, whether the facility is in compliance with such requirements.

Facilities are selected for inspection in two ways.  Some facilities are selected for inspection based on “probable cause”, which means that EPA has obtained some specific evidence of a possible existing violation at a facility.  EPA conducts such inspections in response to citizen complaints about a specific facility, emergency situations such as reports of ongoing spills, information about specific water quality problems or fish kills, or as a follow-up to prior inspections indicating violations at the same facility or at other facilities owned or operated by the same person.

The second way in which facilities are selected is through a “neutral inspection scheme.”  Some inspections will be conducted at facilities where EPA does not have any prior information indicating that there are existing violations.  These are routine inspections to evaluate compliance.  This does not mean that the selection of facilities is entirely random, but rather that facilities are selected based on criteria that allows EPA to evaluate compliance across the industry without bias entering into selection of facilities.   The facilities are selected based on “neutral” specific criteria such as geographical location, size, and type of operation.

Some inspections will be of permitted facilities, to evaluate the facility’s compliance with terms of its permit.  Other inspections will be at non-permitted animal feeding operations, to determine if the facility meets the basic definition of a CAFO, if the facility has or is likely to cause water pollution, and if the facility should have an NPDES  permit.

The Inspector

The person who inspects your facility will work for EPA or perhaps for  one of EPA’s contractors. In either case, he/she will show you credentials as a form of identification.  The inspector is not permitted to release their credentials or allow you to make a photocopy of them. You may ask the inspector for an EPA number to call to confirm that the visit is authorized.

The inspector will be knowledgeable about the CAFO regulations and the requirements of your permit but may nor may not have specific education and work experience in your type of animal agriculture operation.

The Inspection

Because of the unique nature of CAFOs, some additional areas need to be evaluated.  To help ensure that the inspections are complete and that they are consistent, the inspector will use a CAFO INSPECTION FORM while conducting the inspection.  This form is attached.  The inspection will require your time and participation.  However, the inspector will make every effort to conduct the inspection in a way which will have the least disruptive effect on your operation.  EPA will respect established and documented bio-security procedures of the facility.

The typical sequence of events that will occur during the inspection are an Entry Interview, a Record and Document Review, a Facility Tour, and an Exit Interview.

Entry Interview

The purpose of the entry interview is for the inspector to present you with his credentials authorizing the inspection, seek your consent to come onsite for the inspection, inform you of the scope and purpose of the inspection,  provide you with a copy of the federal regulations concerning false and misleading statements, and ascertain basic information about the facility.  Expect the inspector to be cordial and polite but remain professional.   Information and documents which the inspector may ask for include:

• Verification the name, address and telephone number of the facility
• A determination of  who is the authorized representative for the facility
• A determination of whether the facility is being leased , the names, addresses and telephone numbers of the  lessor and lessee
• Copies of specific records that you may be required to keep (as specified in your permit
• Questions concerning the history of the facility including any discharges which may have occurred
• A determination of  conditions as they exist at the time of the inspection

Since the operation of a CAFO usually involves many environmental issues beyond animal waste control, the inspector will also conduct a “multi-media screening” evaluation. This is included in the CAFO inspection form.  This may include questions about your management and control of wastes from maintenance facilities, releases of chemicals to the environment, bulk fuel storage, pesticide usage and possibly other issues.

Record and Document Review

Your permit may require you to keep certain records or to have prepared specific management plans.  The inspector will generally ask to see these records to verify that you are complying with the terms and conditions of your permit.  The inspector may ask to see all records or may just ask for a random sample to evaluate.  Typical records which you may be asked to produce include:

• Animal inventory records
• Local precipitation records
• Records of waste levels in the retention structure
• Waste disposal records such as:
  • Date(s) of application
  • Location(s) of applications
  • Land areas where wastes were applied
  • Crops that received waste
  • Soil, manure and lagoon nutrient testing results

Other documents that you may be asked to produce may include:

• NPDES Permit for the facility
• Lease(s) if the facility is not owned by you
• “Spreading Agreements” if wastes are applied on land not owned or leased by you
• Construction plans or as-built drawings of the facility
• Waste management and/or nutrient management plans

Facility Tour

After reviewing the records and documents, the inspector will ask you, or your representative, to accompany him or her on a tour of facility.  The purpose of the tour is to assess existing conditions and confirm that the facility conforms to the description in the permit.  During this phase of the inspection the inspector may want to observe the following portions of your facility to assess their structural integrity, maintenance condition and availability:

• solids sedimentation basins
• waste disposal equipment
• waste retention structures
• fuel storage areas
• staff gauges and required liquid levels
• maintenance facilities

In order to document findings of the inspection, the inspector may photograph or video aspects of your operation.  If your facility is discharging during the course of the inspection or if there is evidence that the facility had recently discharged he or she may also take samples.

During the course of the facility tour, the inspector may determine that he or she needs to see additional records or documents.  The inspector will inform you of these needs as soon as possible to facilitate your retrieving the needed information.

Exit Interview

Following the facility tour, the inspector will conduct a debriefing or exit interview with you.  This phase of the inspection is to allow both parties to follow up on the inspection or to clarify issues which arose during the inspection.  If the inspector obtained any records or documents from you during the inspection, he or she will prepare a Receipt for Documents and Samples. You will receive a copy of the receipt.  The inspector will also give you the opportunity to claim that some or all of the information you have provided is confidential business information (CBI).

To the extent possible the inspector will relay to you the basic findings of the inspection.   If the inspector needs additional information from you or some other source to complete his or her evaluation, they may not be able to provide you with a final list of their findings.

The inspector does not make the determinations of compliance or non-compliance of your facility with the regulations.  That determination is made by other EPA enforcement personnel, as described below.

After the Inspection

Once the inspector has reviewed all the information that they obtained during the inspection, he or she will prepare an inspection report.  In some cases the inspector may contact you if he or she finds that they need additional information or clarification on some issue.  The inspector will forward the inspection report to a Compliance Officer in the Region 7 Water, Wetlands, and Pesticides Division, and to an attorney in the Region 7 Office of Regional Counsel.  Those offices will review the inspection report and evaluate whether your facility is in non-compliance and what type of follow-up action by EPA, if any, is appropriate.  You will receive a copy of the inspection report, and the state environmental agency will be sent a copy of the report.  EPA responds to non-compliance in a number of different ways, depending on the nature and circumstances of the violation:

• No follow-up needed
• Letter notifying facility of violations, compliance assistance
• Administrative compliance order
• Administrative compliance order plus administrative penalty
• Civil judicial enforcement action (penalties and/or injunctive relief)
• Criminal Enforcement

If you have any questions following the inspection, EPA encourages you to contact the Agency.  The inspector can leave a contact name and phone number with you when he or she departs.