credentials also protects the inspectors, as will be discussed in Chapter 6. Failure of an inspector to present credentials may give a court grounds for dismissing a judicial enforcement case.

An inspector, on entering a facility, should try to gain consent to inspect the facility from a company official authorized to give the consent. As with showing credentials on entry, this must be done to ensure that the data collected are admissible in court. Chapter 6 discusses procedures to ensure "consent" before an inspection is conducted without a warrant.

It should be noted at the outset that State law or the industry's own procedures may hamper entry to the facility. For example, the State may require a warrant to enter and inspect the facility if the permittee's consent cannot be obtained, or the industry may ask the inspector to sign a "hold harmless" or other certification statement before admitting him/her to the premises. Both of these procedures ensure that the permittee's Fifth Amendment right against self-incrimination will not be violated. The inspector should, of course, abide by State law and procedures and seek the appropriate search warrant or consent. Under no circumstances, however, should he/she sign a "hold harmless" waiver of liability prior to entering the facility. If entry is prevented by the permittee without such a waiver, a search warrant should be sought and secured so that evidence of violations can be used in later court proceedings. The procedure for obtaining a warrant is summarized in Chapter 7 of this module.

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3. PERSONS SUBJECT TO INSPECTIONS

Before conducting an inspection, it is important to identify those persons subject to EPA's legal inspection authority. The scope of those persons covered by EPA's authority can be found in the Act itself (particularly in Sections 301, 308, 402, and 502). Section 301 prohibits all discharges of pollutants by any "person" ("person" including individuals, partnerships, corporations, States, and municipalities, as defined in Section 502 of the Act) except as otherwise specifically exempted. Under Section 402 of the Act, the Administrator can issue a permit for the discharge of any pollutant, or combination of pollutants, that meets the requirements of Sections 301, 302, 306, 307, 308, and 403 of the Act or such other conditions that the Administrator determines are necessary to carry out the provisions of this Act. Section 308 of the Act allows the Agency to obtain information necessary to carry out its provisions. To the inspector, these different sections of the Act provide legal basis for conducting an inspection whenever there is an existing permit or, if no permit has been issued, a discharge exists or is likely to exist and additional information to regulate the discharge is necessary. Appendix A of this module contains sections of the Act relevant to inspections and enforcement.

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4. PREINSPECTION LEGALITIES

Before conducting an inspection, the legal issues affecting an inspection must be clearly understood. Among others, these issues involve the selection of sites for conducting an inspection and entry to a facility (308 letter and confidentiality).

4.1 NEUTRAL INSPECTION PLAN

Compliance inspections can be divided into two general categories: (1) those inspections targeted using routine factors (i.e., using the Neutral Inspection Plan); and (2) inspections targeted because of probable cause (e.g., based on specific evidence of an existing violation). An inspector should be aware of the Neutral Inspection Plan for compliance inspections. The Neutral Inspection Plan was developed for targeting routine compliance inspections. The plan targets facilities objectively and provides a rationale for obtaining an administrative warrant if an owner or operator denies right-of-entry to inspect a facility and if probable cause is absent. The plan's purpose is to eliminate any bias in targeting inspections by using routine factors, rather than probable cause, as the criteria for inspection. Appendix B of this module outlines these criteria for neutral selection of NPDES compliance inspection candidates.

In brief, only two factors--the time that has passed since the last inspection and the geographical grouping of the permittees--may be considered when establishing a Neutral Inspection Plan. Other information, such as data from DMRs which indicated apparent violations, is not used in establishing the plan because this would constitute probable cause under the civil standard. However, the existence of such data would not preclude the facility from being considered, using the above criteria, for a routine inspection if the neutral plan is followed during the selection process. The inspector should note that permittees in current litigation with EPA should not be targeted for routine inspections because of the difficulty in demonstrating that the litigation did not influence the inspection determination. However,

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this concern will not affect the scheduling of routine EPA inspections of permittees in current State litigation.

The second category of inspections is based on prior knowledge of apparent or probable permit violations. Sources for evidence of specific violations are: (1) Discharge Monitoring Reports (DMRs); (2) citizen complaints; (3) observations during emergency situations; (4) follow-up to previous inspections which indicate violations and potential violations; and (5) specific inspections for enforcement case support.

4.2 308 LETTERS

In preparing for an inspection, a 308 letter may be sent to the permittee. A 308 letter cites Section 308 of the Act as the authority to inspect a facility (sample 308 letters appear in Appendix C of this module). In lieu of sending the 308 letter in advance of an inspection, a phone call may be made to arrange for appropriate officials to consent to the inspection and finalize arrangements.

The purpose of the 308 letter is to advise a permittee that an inspection is scheduled for its facility within the next 6 months. This forewarns the permittee that an inspection is imminent. The 308 letter usually requests information regarding onsite safety regulations to avoid problems concerning lack of necessary safety equipment at the time of the inspection. The 308 letter may also specify the exact date of the inspection (if surprise is not necessary). Coordination with the permittee is required, such as may occur with a PAI. A 308 letter, however, may not be necessary in instances where the permittee is aware of the general time frame or frequency of an inspector's visits. Finally, the 308 letter is used to inform the facility of its right to assert a claim of confidentiality.

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