Client Alert

EPA Reduces RCRA Reporting Requirements


The Environmental Protection Agency (EPA) recently published a new rule to reduce recordkeeping, reporting, and inspection requirements imposed on businesses, states, and members of the public regulated under federal hazardous waste laws. The new rule, which became effective May 4, 2006, is intended to reduce the paperwork burden imposed under the Resource Conservation and Recovery Act (RCRA). Industries affected by the new rule include manufacturing, transportation, waste treatment, utility and mineral processing operations. EPA estimates the new rule will lead to an annual hour savings of 22,000 to 37,500 hours, with an annual cost savings ranging from $2 million to $3 million.

Although paperwork reduction is one of the major aspects of the new rule, the new regulation will significantly alter the way many affected businesses conduct their operations. It also will make compliance with many RCRA requirements less onerous. However, recordkeeping, reporting and inspection requirements that may seem very simple often lead to significant non-compliance issues when not followed very carefully. To take full advantage of the benefits of the new rule, the requirements (as discussed below) must be thoroughly understood and followed.

Records Retention

RCRA requires that certain records for permitted facilities that treat, store or dispose of hazardous waste (TSD facilities) be retained for the life of the facility. The new rule reduces the length of time waste handlers must retain certain records onsite to three years, or five years in the case of hazardous waste incinerators, boilers, and industrial furnaces. The reduced retention time applies to waste analyses, certain monitoring, testing and analytical data, waste determinations, selected certifications and notifications. Facilities will still have to maintain records with the greatest potential to affect protection of human health and the environment for the life of the facility, such as those regarding the type and quantity of waste received, the location of hazardous waste and closure estimates. Facilities also will have to maintain records pertaining to groundwater monitoring and cleanup until closure of the facility.

Professional Engineer Certification

The new rule also changes the requirements regarding certification by a professional engineer of certain documents for generators of hazardous waste and TSD facilities. Previously, the regulations required that facilities retain engineers who are independent, qualified, registered, and professional. The new rule deletes the terms "independent" and "registered" and requires only that engineers be qualified to perform the task and professional (e.g., registered or licensed by the state and following a code of ethics, with the potential of losing that license for negligence). EPA has modified the certification requirements for permitted and interim status TSD facilities, including those for closure and post-closure, to reflect the revised engineer qualifications.

These changes mean that businesses may use their own in‑house engineers to make any required certifications, provided the engineers are both qualified and professional. In-house engineers are generally more familiar with the operations at the facility and thus are in a better position to provide on-site review and make the necessary certifications than outside engineers.

Contingency Plan

RCRA currently requires owners and operators of hazardous waste TSD facilities to have a contingency plan covering their hazardous waste operations. Certain other statutes and regulations also require contingency plans with somewhat different requirements than those under RCRA. Under the new rule, facilities will have the option of developing one contingency plan per facility, provided that the plan follows the National Response Team’s Integrated Contingency Plan Guidance (known as One Plan). The One Plan was developed in 1996 by EPA in consultation with the Department of Transportation, Department of the Interior, and Department of Labor, each of which has requirements for contingency plans.

EPA anticipates that giving facilities this flexibility will eliminate confusion for facilities that must decide which contingency plan applies to a particular emergency. EPA also expects that using a single plan will enable first responders, such as firefighters, to comply with multiple regulatory requirements. Having one contingency plan also will ease the burden of coordinating with local emergency planning committees.

Emergency Response Training

Both EPA and the Department of Labor’s Occupational Safety and Health Administration (OSHA) have regulations governing worker activities and training at hazardous waste facilities. Once the new rule becomes effective, waste handlers will have the option of complying with requirements of either RCRA or OSHA regulations for training employees in emergency response procedures. (Facilities not subject to OSHA training requirements will still have to comply with the RCRA training requirements.)

Decreased Inspection Frequency

Existing rules require daily self-inspections of certain hazardous waste facilities. The new rule permits waste handlers to reduce required facility and equipment self-inspections for hazardous waste tank systems from daily to weekly, provided certain conditions are met. Tank owners and operators must either have leak detection equipment or use "established workplace practices" (such as an existing Environmental Management System) to ensure that leaks and spills are promptly identified and remediated. EPA recommends that a facility document which option it chooses in the facility’s operating record. If the facility chooses the workplace practices option, EPA also recommends that the specific practices be documented in the facility’s operating record.

Small-quantity waste generator tank system owners and operators also may reduce inspection frequency if tank systems have secondary containment with either leak detection equipment or established workplace practices that ensure prompt detection of releases. EPA also recommends that small-quantity generators document their choice of method in the facility as operating record.

Facilities that are members of the National Environmental Performance Track Program also are eligible for reduced inspections on a case-by-case basis for tank systems, container storage areas, and containment buildings. Such facilities must apply to EPA for a Class 1 permit modification with prior approval.

Records Retention and Decreased Document Submission Requirements

Under the new rule, waste handlers who previously both had to keep certain records onsite and submit them to EPA now only need to keep the records onsite. The new requirements will apply to, among other things, the submission of groundwater monitoring plans and assessment reports. It also applies to the submission of response action plans for surface impoundments, waste piles and landfills when the leakage rate in the leak detection system has been exceeded. Facilities now will only be required to keep these plans on site.

Another provision of the new rule eliminates a requirement that facilities submit a tank system certification of completion for major repairs. The new rule also requires recyclers to prepare and maintain notifications and certifications only with their initial shipments of waste. New documentation is required only when the waste, the treatment process, or the receiving facility changes. Information will be kept in the treating or recycling facility’s onsite files and must be available for inspection. EPA also is eliminating the requirement that a facility submit a land disposal restriction notification and certification. This information now need only be kept in the facility’s files.

Semi-Annual Reporting

Finally, EPA is changing the semi-annual reporting requirements for certain reports to an annual reporting requirement. This change will affect reports on the effectiveness and progress of a corrective action program. Previously, EPA required submission of these reports on a semi-annual basis. EPA has determined that there will be no impact to human health or the environment by having annual rather than semi-annual reporting for corrective action programs.

Implementation in Authorized States

States that operate a RCRA program in lieu of the federal program generally are not required to formally adopt federal regulations that are less stringent than previous federal regulations. For states with an approved RCRA program, such as California, the new rulemaking will not become effective until the state adopts the changes and seeks EPA authorization. It will be important that facilities ensure their particular state has adopted the new rules and is authorized by EPA before modifying any of their current recordkeeping, reporting, or inspection requirements.



71 Fed. Reg. 16,862 (Apr. 4, 2006)

61 Fed. Reg. 28,641 (June 5, 1996)




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