EPA takes Landmark Action Authorizing Worker Participation in Agency Inspections

On February 11, 2011, the US Environmental Protection Agency announced its policy for engaging workers and their union representatives during Risk Management Program Inspections under the Clean Air Act, Section 112(r). This policy supersedes their interim policy issued on April 2, 2010 and is effective immediately. The document clearly lays out the obligation of EPA (and employers) to afford workers and union representatives the opportunity to participate during EPA inspections and audits at approximately 13,000 facilities using high hazard chemicals.

Led by the efforts of the New Jersey Work Environment Council, in coordination with more than 100 labor (including CWA), public health , and environmental organizations, the policy change and new document provide important opportunities for input from local union leaders and occupational safety and health activists. This is a landmark new policy that can help local union leaders and occupational safety and health activists point out hazards, assist EPA inspectors, and protect communities and the environment.

The announcement memo and the new "Guidance for Conducting Risk Management Program Inspections under Clean Air Act Section 112(r)", a lengthy document last issued in 1999, are available at http://www.epa.gov/emergencies/guidance.htm#rmp .

Excerpts from the Guidance follow below.

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• CAA Section 112(r)(6)(L) provides facility employees and employee representatives with the same rights to participate in the physical inspection of any workplace conducted pursuant to CAA Section 112(r) as provided in the Occupational Safety and Health (OSH) Act (29 CFR 1903.8). Therefore, if there is advance notification of the site visit, the notification should be provided to both the owner/operator and facility employees/employee representative(s).
• If advanced written notification to the owner/operator is provided (e.g., Notice of Inspection (NOI) Letter) it should reference the statutory right for employees and employee representatives to participate in Section 112(r) inspections. The notification also should instruct the owner/operator to notify, upon receipt of the notification, the employee representative(s), if any, of the date and time of the on-site inspection and make arrangement for their participation. The owner/operator should be instructed to provide a copy of the notification to the employee representative(s). » The owner/operator also should be instructed to post the notification, upon receipt, in the area subject to the inspection.
• If the name and contact information of the employee representative(s) is readily available to the lead inspector, a copy of the notification should be sent to the employee representative(s) concurrently with the notification being sent to the owner/operator.

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In addition to presenting official credentials, the lead inspector may also present a Notice of Inspection to provide further clarification to the facility that the purpose of the inspection is to determine compliance with CAA Section 112(r) as well as with CERCLA Section 103(e) and EPCRA Sections 302 -312.

Once credentials have been presented and entry gained, the lead inspector should advise the owner/operator that CAA Section 112(r) requires employee representatives be given an opportunity to participate in the physical inspection of the facility (as referenced in the NOI if advance notification had been provided). As soon as practicable after entering the facility, the lead inspector should determine whether the facility employees are represented and, if so, offer the employee representative(s) an opportunity to participate in the on-site inspection.

If employees are not represented by an authorized representative or employees have not chosen a representative for the Section 112(r) inspection (e.g., chosen by employees at large or through an established employee safety committee), the lead inspector should determine, if able, the employee(s) who may serve as employee representative(s) for purposes of the inspection. If the lead inspector is unable to make such a determination, the inspector(s) should interview during the course of the inspection a reasonable number of employees the inspector(s) deems necessary to conduct the inspection.

Pursuant to CAA Section 112(r)(6)(L) and the OSH Act, the employee representative is to be an employee of the employer. Having an employee who works at the facility and has knowledge of the Risk Management Program participate in the inspection may assist the inspector(s) in evaluating compliance with CAA Section 112(r) requirements. However, if the inspector(s) determines that good cause has been shown why accompaniment by a third party who is not an employee of the employer is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the inspector(s) during the inspection. The determination to include a third party is at the discretion of the inspector(s). The lead inspector should document in the inspection report the offer to employees and employee representatives the opportunity to participate in the Section 112(r) inspection.

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If management personnel attempt to interfere with participation by employees and employee representatives in the inspection, the lead inspector should advise management that such participation, as indicated in the NOI letter, is a statutory right pursuant to CAA Section 112(r)(6)(L). Any attempt by management to interfere in such participation should be documented in the inspection report. Depending upon the nature and scope of the management interference, the lead inspector may determine the interference to be a refusal to permit the inspection.

The inspector(s) should conduct a joint opening meeting with management personnel (e.g., plant manager, superintendents of safety and operations, legal counsel, corporate representative) and the employee representative(s). The lead inspector should clearly explain the purpose and objectives of the inspection.

• If either management personnel or the employee representatives object to a joint opening meeting, the inspector(s) should conduct separate opening meetings.

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While collecting information, and in order to aid the inspection without causing interference to the conduct of the inspection, the inspector(s), as provided by Section 112(r)(6)(L), may determine the following is appropriate:

• To permit additional employer and employee representatives to participate in the inspection.
• To permit different employer and employee representatives to participate in the inspection as the inspector(s) visits different areas of the workplace. For example,
  • Provide for participation of employees who have familiarity with specific work areas or have expertise with certain process units.
  • Address issues concerning workplace areas containing confidential business information or trade secrets by including employees in the inspection who are authorized to have access to those areas.

To provide for an effective inspection and to assist in the collection and analysis of information, the inspector(s) may interview employees. As statutorily provided, such employee interviews may be conducted privately. Consent by management personnel to conduct private employee interviews is not necessary. Any interference by management personnel with the ability of the inspector(s) to conduct private interviews should be documented in the inspection report. Such interference includes attempts by management to be present during private interviews.

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The inspector(s) should conduct the closing conference with management personnel (e.g., plant manager, superintendents of safety and operations, legal counsel, corporate representative) and the employee representative(s). Other employees who participated in the inspection should also be invited to the closing conference.

• If either management personnel or the employees/employee representatives object to a joint closing conference, the inspector(s) should conduct separate closing conferences.

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When finalized, a copy of the report may be provided, consistent with Regional practice, to facility owners/operators; employee representatives; the State Emergency Response Commission; the Local Emergency Planning Committee in whose area the facility is located; and/or other federal, state, and local agencies as appropriate.