Compliance Corner

The RCRA Biennial Report

Large quantity generators (LQGs) that ship hazardous waste to an offsite TSD facility located in the United States are required to submit a biennial report to their state and/or regional EPA office by March 1 of each even-numbered year, covering their hazardous waste management activities for the previous odd-numbered calendar year. For example, the biennial report submitted by March 1, 2010 will detail each LQG’s hazardous waste management activities during the 2009 calendar year. The information that LQGs must report biennially is given in §262.41.

Although EPA requires the biennial report to be submitted on EPA Form 8700-13A/B, available at http://www.epa.gov/osw/inforesources/data/biennialreport/index.htm, some states require use of a modified version of the EPA report and others (e.g., Arkansas, Illinois, Ohio) have their own instructions and forms for fulfilling the reporting requirements.

Per §262.41(b), any generator who also is a TSD facility that treats, stores, or disposes hazardous waste onsite must submit a TSD facility biennial report covering those waste management activities. The TSD facility biennial reporting requirements are in §§264.75, 265.75, 267.75, and 270.30(l)(9). EPA has clarified in RO 12165 what wastes should be entered on one or both forms.

LQGs are required to keep copies of biennial reports in their files for three years from the due date of the report. However, nothing in §262.40(b) specifies that copies of biennial reports must be kept at the site of generation; instead, copies can be maintained at corporate headquarters or some other centralized location. Even so, RCRA Section 3007(a) requires that a generator must provide EPA or state personnel reasonable access to records regarding waste management activities during their inspections. [RO 12199]

Wastes to be included

A site required to file the biennial report must submit Form GM (Waste Generation and Management) if the site generated RCRA hazardous waste that was accumulated onsite; managed onsite in a treatment, storage, or disposal unit; and/or shipped offsite for management, consistent with the applicability requirements noted in the instructions. Typical questions about which hazardous wastes must be included on Form GM of biennial reports are addressed in the following EPA guidance:

• Some hazardous wastes are not counted when determining a facility’s generator status. For example, hazardous wastes that are generated and then managed in RCRA permit-exempt units (e.g., wastewater treatment units, elementary neutralization units, totally enclosed treatment facilities) without prior storage or accumulation are not included in generator-status calculations. EPA has decided that it does not want generators to report these hazardous wastes on the biennial report either. The latest biennial report form instructions that we have (from 2009) note that the following wastes are not to be reported on Form GM: “Wastes managed immediately upon generation only in onsite elementary neutralization units, wastewater treatment units, or totally enclosed treatment facilities as defined in 40 CFR 260.10. (40 CFR 261.5(c)(2)) Any hazardous waste residues generated from these units, however, must be reported on Form GM.” [Emphasis in original.] See also RO 14487.
• When entering hazardous waste codes on the biennial report, one question that often crops up is “Do I list the same codes on the biennial report as I did on the manifest?” EPA has noted the following in response: “the federal biennial reporting requirement is not contingent upon which waste codes happen to appear on the hazardous waste manifest, but on which hazardous wastes are generated by the reporter during the reporting period.” [RO 11741] The agency noted in RO 13455 that, for the purposes of biennial reporting, a generator is not required to determine if listed wastes also exhibit characteristics (although they do need to do this for purposes of completing LDR notifications). In other words, a LQG must put all applicable listed waste codes on biennial reports but not necessarily any characteristic codes associated with those listed wastes. For example, if unused chloroform was disposed, the U044 code is required on the biennial report, but not the D022 code.
• Radioactive mixed wastes generated at a site must be included in biennial reports. [RO 13535]
• Material shipped to a laboratory or testing facility as part of a treatability study must be included in a generator's biennial report [§261.4(e)(2)(vi)], even though these treatability samples are not included (counted) when making generator status determinations. [§261.5(c)(1)]
• On March 24, 1986 [51 FR 10160], the agency noted that “episodic generators must comply with the biennial report requirements for those months in which they are ‘large quantity generators’; that is, they must submit reports on their hazardous waste activities for those months in which their generator activities have changed and as long as the fully regulated waste remains onsite.”
• EPA was asked, “[d]oes a large quantity generator who generates a hazardous waste in December of a non-reporting year but ships it in January of the reporting year need to include that waste in their hazardous waste report?” The agency’s answer was: “No. The LGQ does not need to report the waste on their GM form, but the TSDF who received the waste does need to report it on their WR form.” [http://www.epa.gov/waste/inforesources/data/biennialreport/faq.pdf]

Weight designation

When entering waste quantities on the biennial report, the agency has clarified that the weight of the container does not have to be included (i.e., the container itself is not considered a hazardous waste—only the waste within it). However, it is customary to include the total weight (weight plus container) on manifests, since transporters often charge on the basis of total weight shipped. [RO 12151]

The biennial report instructions say that, when reporting quantities for lab packs, 1) include the weight of the containers if they are disposed (e.g., landfilled) or treated (e.g., incinerated) with the waste; but 2) exclude the weight of the containers if the waste is removed from the containers before treatment or disposal.

Waste minimization efforts must be included

Sections §262.41(a)(6) and (7) require biennial reports completed by LQGs to include waste minimization information. LQGs must describe their efforts undertaken to achieve waste minimization and the actual changes in the volume and toxicity achieved relative to other years. [RO 13747] This came out of a HSWA requirement promoting a national policy of reducing or eliminating the generation of hazardous waste as expeditiously as possible. [RO 12932]

Generator certification

Section 262.41(a)(8) requires the generator or its authorized representative to sign a certification associated with the biennial report. In EPA Form 8700-13A/B, the certification statement says:

“I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”

Thus, the language allows the generator or its authorized representative to certify to the truth, accuracy, or completeness of the report based on the signer’s personal familiarity with the information and upon its personal inquiry of those responsible for obtaining the information. [RO 11199]

State-specific requirements

States may impose biennial reporting requirements above and beyond the federal provisions. In those states, additional information will generally be required on the federal form. Alternatively, some states (e.g., Arkansas, Illinois, Ohio) require use of their own instructions and forms for fulfilling the reporting requirements.

Some states may require an annual, as opposed to biennial, report to be submitted. Additionally, small quantity generators may be required to submit an annual or biennial report per more-stringent state regulations.