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Enforcement

Resource Conservation and Recovery Act (RCRA) and Federal Facilities

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Summary

The Resource Conservation and Recovery Act (RCRA) gives EPA the authority to control hazardous waste from the "cradle-to-grave." This includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also set forth a framework for the management of non-hazardous solid wastes. The 1986 amendments to RCRA enabled EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances.
 
The Federal Hazardous and Solid Waste Amendments (HSWA) are the 1984 amendments to RCRA that focus on waste minimization and phasing out land disposal of hazardous waste as well as corrective action for releases. Some of the other mandates of this law include increased enforcement authority for EPA, more stringent hazardous waste management standards, and a comprehensive underground storage tank program.
 

Key Federal Facility Responsibilities Under RCRA 

Federal facilities are required to comply with all Federal, State, interstate, and local solid and hazardous waste requirements (including statutes, regulations, permits, reporting requirements, and administrative and judicial orders and injunctions). Section 6001 of RCRA subjects Federal facilities to civil penalties and confirms that Federal employees are personally liable for RCRA criminal violations. Federal agencies also must reimburse EPA for the costs of Treatment, Storage, and Disposal Facility (TSDF) inspections at their facilities, comply with procurement requirements, and cooperate with EPA by making available information on their agency waste management practices and hazardous waste facilities. Federal facilities are also required to comply with all Federal, State, interstate, and local Underground Storage Tank (UST) requirements, both substantive and procedural. Section 9007 subjects Federal facilities to civil penalties and subjects Federal employees to criminal sanctions. 
 
The Federal Facility Compliance Act (FFCA), enacted in 1992, had four key impacts:
 
  1. Subjected Federal agencies to RCRA civil penalties by expanding the waiver of sovereign immunity. 
  2. Provided that Federal employees can be held personally liable for RCRA criminal violations. 
  3. Provided new management and reporting requirements with respect to the Department of Energy’s (DOE’s) radioactive mixed waste. 
  4. Identified a process under which conventional and chemical military munitions are or are not considered to be a waste for regulatory purposes under RCRA.
Although Federal facilities were subject to RCRA provisions prior to the 1992 amendment, the FFCA clarified that Federal facilities are subject to penalties and EPA administrative enforcement orders under Subtitles C and I. Congress intended the FFCA to confirm the Federal government’s obligation to comply with all solid and hazardous waste provisions at all sites and to ensure Federal facility compliance with all Federal, State, interstate, and local solid and hazardous waste requirements. 
 
The Energy Policy Act of 2005, amended Subtitle I and reaffirmed that Federal facilities must comply with state and federal requirements for USTs to the same extent as private entities. It established statutory requirements specifically designed to improve the environmental management of Federal facility USTs. It also provided a clear and express waiver of sovereign immunity which clarified that state agencies can bring enforcement actions against federal facilities for violations of UST requirements. 
 

Basics of RCRA

RCRA established three distinct, yet interrelated, regulatory programs:
 
  1. Hazardous Waste Management Program (RCRA Subtitle C): Sets national standards for: 
  • hazardous waste management
  • provides for EPA authorization and oversight of state implementation of RCRA
  • includes corrective action authorities to address releases to the environment
  1. Solid Waste Management Program (RCRA Subtitle D): Sets national standards for the management of solid waste. 
  2. Underground Storage Tank Program (RCRA Subtitle I):
  • Protects groundwater from leaking underground storage tanks
  • Requires owners and operators of new tanks and tanks already in the ground to prevent, detect, and clean up releases
  • Banned the installation of unprotected steel tanks and piping
RCRA provides “cradle-to-grave” control of solid and hazardous waste by establishing management requirements for generators and transporters of hazardous waste and for owners and operators of hazardous waste treatment, storage, and disposal facilities (TSDFs). RCRA has been amended by the Hazardous and Solid Waste Amendments (HSWA), the FFCA and the Energy Policy Act of 2005.
 
RCRA mainly applies to active facilities, although, through §7003, it can address the serious problem of abandoned and inactive facilities. These abandoned facilities also may be covered under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (Find RCRA at 42 U.S.C. §6901 et seq. and its implementing regulations at 40 CFR Parts 240-282.) 
 
RCRA Subtitle I provides a comprehensive regulatory program USTs storing petroleum or certain hazardous substances. 
 
Subtitle C of RCRA was enacted in 1976, replacing the Solid Waste Disposal Act and the Resource Recovery Act. Subtitle C (RCRA §§3001-3023) establishes the national hazardous waste management program. This includes the identification and listing of hazardous wastes; standards applicable to generators and transporters and to owners and operators of TSDFs; and provisions for permitting, inspections, and enforcement. Most States have been authorized to implement some or all of the RCRA Subtitle C program. State RCRA programs must be at least as stringent as the federal program, but States also can adopt more stringent requirements. 
 
In 1984, Congress enacted HSWA, which, among other things, added Subtitle I to RCRA. Subtitle I (RCRA §§9001-9010) was enacted to address leaking USTs and required EPA to establish standards for tanks installed both prior to and after passage of the new requirements. These standards cover UST design, operation, cleanup, administration, and closure. The authority to administer the UST program has been delegated to approximately 25 States; many of which have issued their own UST standards, often exceeding the Federal minimum and containing more stringent requirements and penalties. (Find RCRA UST provisions at 42 U.S.C. §6991 et seq. and in 40 CFR Parts 280-282.) 
 

RCRA Subtitles C and D Summary

RCRA, specifically Subtitle C and D, is the primary Federal statute regulating the generation, transportation, treatment, storage and disposal of solid and hazardous waste.
 
The term “hazardous waste” is defined in the statute as any waste material – solid, liquid, or gaseous – that “because of its quantity, concentration, or physical, chemical or infectious characteristic may cause or significantly contribute to an increase in mortality, serious irreversible illness, or incapacitating reversible illness; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.”
 
Hazardous wastes are classified as:
 
  • “characteristic” waste exhibits hazardous characteristics (i.e., corrosivity, reactivity, ignitability, or toxicity)
  • “acutely hazardous” waste is fatal to humans at low doses, lethal in animal studies at particular doses, or otherwise capable of causing or significantly contributing to an increase in serious illness.
  • “listed as hazardous” by EPA if they contain hazardous constituents identified in 40 CFR Part 261 and if the agency concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly managed.
RCRA’s principal objectives are to:
 
  • protect human health and the environment from potential adverse effects of improper solid and hazardous waste management
  • conserve material and energy resources through waste recycling and recovery
  • reduce or eliminate the generation of hazardous waste as expeditiously as possible
To achieve these objectives, RCRA authorizes EPA to regulate the generation, transportation, treatment, storage, and disposal of hazardous waste (also referred to as “cradle-to-grave management”) and the management of solid waste. 
 
Generators of RCRA-regulated waste must comply with the recordkeeping, reporting, labeling, exporting, and container requirements set forth in 40 CFR Part 262. Generators also are responsible for tracking waste through a manifest system. The manifest system creates a written record of the chain-of-custody from the time a waste leaves a generator until it reaches its final disposal site.
 
Transporters of RCRA-regulated waste are subject to labeling requirements, container standards, and recordkeeping requirements of the manifest system set forth in 40 CFR Part 263. Transporters of hazardous waste also are subject to Department of Transportation (DOT) regulations.
 
Treatment, Storage, and Disposal Facilities (TSDFs) are subject to recordkeeping and reporting requirements, permitting, and technical standards covering the treatment, storage, disposal location, construction, and operation of TSDFs as set forth in 40 CFR Parts 264 and 265.
 
Land Disposal Restrictions apply to both generators and TSDFs. Generators and TSDFs may be required to treat wastes before land disposal as set forth in 40 CFR Part 268.
 
The Military Munitions Rule  (effective date of August 12, 1997) - establishes the regulatory definition of solid waste as it applies to military munitions in three specific categories:
 
  1. unused munitions 
  2. munitions being used for their intended purpose
  3. used or fired munitions 
The rule states that unused munitions become waste when they are/have been: 
 
  • abandoned 
  • removed from storage for the purpose of being disposed of, burned, incinerated, or treated prior to disposal 
  • deteriorated or damaged beyond repair, recycling, or reuse; or 
  • declared a waste by an authorized military official
Mixed waste is defined as a waste mixture that contains both radioactive materials subject to the Atomic Energy Act (AEA) and a hazardous waste component regulated under RCRA. The U.S. Nuclear Regulatory Commission (NRC), NRC Agreement States, or the DOE regulate the radioactive wastes. NRC or NRC Agreement States regulate radioactive waste at commercial and non-DOE Federal facilities. DOE currently self-regulates under AEA.
 
In 1992, RCRA was amended by the FFCA to require DOE to take a number of actions to manage mixed waste handled at its facilities. Most notably DOE facilities that generate or store mixed waste, which were not already subject to a permit or to an existing agreement including the State as a party that governed the treatment of such wastes, were required to prepare and submit, by October 1995, plans for developing treatment capacities and technologies to treat all of the mixed waste in compliance with the land disposal restriction requirements of §3004 of RCRA to the authorized State or to EPA, if the State was not authorized. The States and EPA have approved such plans and incorporated them into appropriate orders or agreements which now address the storage, treatment and disposal of mixed wastes at the DOE facilities.
 

RCRA Subtitle I Summary

An underground storage tank system (UST) is a tank and any underground piping connected to the tank that has at least 10 percent of its combined volume underground. The federal UST regulations apply only to underground tanks and piping storing either petroleum or certain hazardous substances.
 
Until the mid-1980s, most USTs were made of bare steel, which is likely to corrode over time and allow UST contents to leak into the environment. Faulty installation or inadequate operating and maintenance procedures also can cause USTs to release their contents into the environment.
 
The greatest potential hazard from a leaking UST is that the petroleum or other hazardous substance can seep into the soil and contaminate groundwater, the source of drinking water for nearly half of all Americans. A leaking UST can present other health and environmental risks, including the potential for fire and explosion.
 
In 1984, Congress responded to the increasing threat to groundwater posed by leaking USTs by adding Subtitle I to the Solid Waste Disposal Act. Subtitle I required EPA to develop a comprehensive regulatory program for USTs storing petroleum or certain hazardous substances.
 
In 1988, EPA issued UST regulations including technical requirements, financial assurance, and state program approval objectives. EPA's technical regulations for USTs are designed to reduce the chance of releases from USTs, detect leaks and spills when they do occur, and secure a prompt cleanup. UST owners and operators are responsible for reporting and cleaning up any releases. 
 
The Energy Policy Act of 2005 amended Subtitle I of the Solid Waste Disposal Act. The UST provisions of the Energy Policy Act focus on preventing releases. It expands the use of the LUST Trust Fund and includes provisions regarding inspections, operator training, delivery prohibition, secondary containment and financial responsibility, and cleanup of releases that contain oxygenated fuel additives. The inspection provision, § 9005(c)(1), required that EPA and States that receive funding under RCRA Subtitle I inspect all regulated USTs that have not been inspected since December 22, 1998, by August of 2007. Thereafter, all covered tanks are to be inspected once every three years. 
 

Application to Federal Facilities

 

§3002(b): Waste Minimization

Generators of hazardous wastes must certify on manifest, as required in §3002(a)(5), that a program is in place to reduce the volume or quantity and toxicity of their hazardous waste to the degree determined by the generator to be economically practicable. Additionally, the proposed method of treatment, storage, or disposal is the practicable method currently available to the generator that minimizes the present and future threat to human health and the environment.
 

§3004(u) and (v): Permit Corrective Action Authorities

The corrective action program provides for the cleanup of contamination of RCRA facilities. §3004(u) of RCRA requires EPA or a state to require corrective action for all releases of hazardous wastes or constituents from a solid waste management unit (SWMU) at a TSDF seeking a permit. §3004(v) provides for corrective action beyond the TSDF boundary.
 

§3004(y): Munitions (FFCA §107)

FFCA §107 amended RCRA to require EPA, after consulting with the DoD and appropriate State officials, to issue a rule identifying when conventional and chemical military munitions become hazardous waste subject to Subtitle C of RCRA providing for the safe storage and transportation of such wastes.
 

§3005: Permits for TSDFs

This authority requires that each person owning or operating an existing facility or planning to construct a new facility for the treatment, storage or disposal of hazardous waste have a permit issued pursuant to §3005.
 

§3007: Inspections and Information Gathering

EPA is required to conduct annual RCRA inspections of Federal TSDFs. Authorized States also may conduct inspections. In general, inspections may be conducted by either EPA or a State and may be done jointly or separately. TSDFs, generators, handlers, or transporters of hazardous waste must, upon request of EPA or the State, furnish information relating to such waste and must, at all reasonable times, allow EPA/State access to and a copy of all records relating to such waste.
 

§3008(a): Compliance Orders

Whenever on the basis of any information the Administrator determines that any person has violated or is in violation of any requirement of Subtitle C of RCRA, the Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both.
 

§3008(h): Interim Status Corrective Action

Whenever, on the basis of any information available, the EPA Administrator determines that there is or has been a release of hazardous waste into the environment from a facility operating under §3005(e) of RCRA, the Administrator may issue an order requiring corrective action or other such response measures to protect human health or the environment. Also, the Administrator may commence a civil action in the district where the facility is located for appropriate relief, including a temporary or permanent injunction.
 

§3013: Monitoring, Analysis and Testing Action

If the Administrator determines, upon receipt of any information, that the presence of any hazardous waste at a facility or site or that the release of any such waste from a facility or site may present a substantial hazard to human health or the environment, the Administrator may issue an order requiring monitoring, testing, analysis, and reporting to determine the nature and extent of the hazard.
 

§3016: Inventory of Federal Agency Hazardous Waste Facilities

Federal agencies are required to compile, publish, and submit to EPA and authorized States an inventory of all facilities that they currently own or operate or have previously owned or operated at which hazardous waste is stored, treated, or disposed of, or was disposed of at any time. This inventory must be submitted every 2 years. This inventory includes a description of the location of each TSDF and the amount, nature, and toxicity of the hazardous waste at those sites. Information on the known extent of environmental contamination and the current status of the site also must be submitted.
 

§3023: Federally-Owned Treatment Works (FOTWS) (FFCA §108)

Under §3023, FOTWs are defined as Federally-owned and operated wastewater treatment works that: 
 
  • have an NPDES permit; and
  • treat influent that is composed of a majority of domestic sewage.

Section 3023 extends to FOTWs the so-called Domestic Sewage Exclusion (DSE) from the definition of “solid waste,” provided the FOTW meets all the conditions set forth in §3023. The DSE under RCRA allows POTWs to receive discharges of hazardous wastes from industrial sites as long as they are:

  • mixed with domestic sewage as it goes to a POTW for treatment and
  • in compliance with requirements of the Clean Water Act (CWA) National Pretreatment program before entering the treatment works.

If the FOTW does not meet the conditions of §3023, then the DSE does not apply and the FOTW is required to manage the entire waste collection and treatment system as a RCRA hazardous waste treatment facility subject to all RCRA regulatory requirements.

§6001: Application of Federal, State, Interstate, and Local Laws to Federal Facilities (FFCA §102)

Congress has expressly waived sovereign immunity for Federal facilities with respect to any substantive or procedural requirements regarding the control, abatement, or management of solid or hazardous waste. FFCA amended RCRA §6001 by confirming that the waiver of immunity subjects Federal facilities to the full range of available enforcement tools (e.g., administrative orders, civil fines, and penalties) to ensure compliance and penalize violations. The section clarifies that Federal agents, employees, and officers are not personally liable for civil penalties arising from acts or omissions within the scope of their official duties; however, Federal employees are subject to criminal fines and imprisonment. Federal agencies cannot be held criminally liable.
 

§6002: Recycling and Procurement

Federal agencies must develop a procurement program to purchase recycled products to the maximum extent practicable and must recycle their wastes. Procurement programs, at a minimum, must include:

  • a recovered materials preference program,
  • promotion of their preference program,
  • estimates of total percentage of recovered material in performance of a contract, and
  • an annual review and monitoring of the procurement program.

In the case of paper products, the maximum use of postconsumer-recovered materials is required.

§6003: Cooperation with EPA

Federal agencies must assist EPA in implementing RCRA and shall promptly provide requested information.
 

§6004: Contractors

Federal agencies must ensure that their contractors comply with RCRA.
 

§7003: Imminent Hazard

Upon receipt of any evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on the behalf of the United States against any person who has contributed or is contributing to such handling, storage, treatment, transportation or disposal. The Administrator must provide notice to the affected State. The Administrator, after giving notice, may take other action necessary to protect public health and the environment, including issuing such orders as may be necessary. §9005: Inspections and Information Gathering for USTs
 
This provision requires any owner or operator of an UST to provide information, upon request by a designated EPA or state employee, relating to such tanks and associated equipment. This provision also allows EPA and states to conduct UST inspections. §9006:
 
Section 9006 provides that EPA may issue compliance orders or initiate civil enforcement actions for noncompliance. EPA must first give notice to appropriate states for enforcement actions involving noncompliance with EPA-approved state regulations. Federal facilities may also be subject to penalty actions per tank for each day of violation. Subject violations include failure to comply with EPA or state tank notification requirements, release detection, prevention, and correction regulations, and various delivery prohibitions. Section 9007: Underground Storage Tanks
 
The Energy Policy Act of 2005 explicitly waived the Federal government’s sovereign immunity from federal and state law suits, and provided states with the authority to assess penalties against federal agencies for UST violations. Therefore, Federal facilities are subject to all administrative orders and all civil and administrative penalties and fines (including reasonable service charges), regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent, or continuing violations. 
 

EPA Enforcement

The FFCA clarified that EPA may assess civil penalties against Federal facilities for violations of the solid and hazardous waste and UST requirements. The penalties that may be assessed against Federal facilities as of August 2011 are provided below. However, the civil monetary penalties listed have been, and may continue to be, adjusted pursuant to the Debt Collection Improvement Act of 1996 
 

§3008(a)(3): Compliance Orders

Any penalty assessed in the order may not exceed $37,500 per day of noncompliance for each violation of a Subtitle C requirement.
 

§3008(c): Violation of Compliance Orders

If a violator fails to take corrective action within the time specified in a compliance order, the Administrator may assess a civil penalty of not more than $37,500 for each day of continued noncompliance with the order. In addition, the EPA Administrator may suspend or revoke any permit issued to the violator (whether issued by the Administrator or the State).
 

§3008(g): Civil Penalty

Any person who violates any requirement of Subtitle C will be liable to the United States for a civil penalty of not more than $37,500 for each such violation. Each day of violation constitutes a separate violation.
 

§3008(h)(2): Interim Status Corrective Action Orders

Any person named in an interim status corrective action order who fails to comply with the order may be assessed a civil penalty not to exceed $37,500 for each day of noncompliance with the order by the EPA Administrator and will be liable to the United States for payment of such penalty.
 

§9006(a)(3): Compliance Orders

If a violator fails to comply with a compliance order issued under RCRA §9006 of Subtitle I within the time specified in the order, the violator will be liable for a civil penalty of not more than $37,500 for each day of continued noncompliance.
 

§9006(d)(1): Civil Penalties

Any owner who knowingly fails to notify or submits false information pursuant to RCRA §9002(a) of Subtitle I will be subject to a civil penalty of not more than $16,000 for each tank for which notification is not given or for which false information is submitted.
 

§9006(d)(2): Civil Penalties

Any owner or operator of an UST who fails to comply with any requirement or standard promulgated under §9003 and §9004 or under the provisions of §9003(g) of Subtitle I will be subject to a civil penalty of not more than $16,000 for each tank for each day of violation.
 
In addition to the civil penalties listed above, EPA inspectors may issue field citations with penalties against Federal agencies for UST violations. 
 

Criminal Enforcement

In addition to issuing and negotiating compliance orders and assessing civil penalties, sanctions may be sought against individual employees of Federal facilities for criminal violations of RCRA. Criminal fines may be imposed under RCRA §3008. Enforcement of criminal violations is authorized under RCRA §3008 for knowing violations and for knowing endangerments. Fines and penalties under RCRA for several types of criminal violations are specified below. 
 
§3008(d): Criminal Penalties - Any knowing violation of any material condition or requirement of a permit or of any applicable regulations or standards under Subtitle C may be subject to a fine of not more than $50,000 per day of violation and/or imprisonment not to exceed 2 years. The maximum punishment authorized by this section may be doubled with respect to both fine and imprisonment for a second conviction.
 
§3008(e): Knowing Endangerment - Any person who knowingly places another person in imminent danger of death or serious bodily injury under Subtitle C will, upon conviction, be subject to a fine of not more than $250,000 and/or imprisonment not to exceed 15 years.
 

Emergency Authority

According to RCRA §7003(a), the EPA Administrator, upon receipt of evidence, may bring suit in district court against any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste that may present an imminent and substantial endangerment to health or the environment. The Administrator may bring suit in district court to restrain such person from such handling, storage, treatment, transportation, or disposal, and/or order such person to take such other action as may be necessary. The Administrator also may take other action including, but not limited to, issuing orders necessary to protect public health and the environment. Any person who willfully violates, fails, or refuses to comply with any order of the Administrator under §7003(a) in an action brought in a district court to enforce such order may be fined not more than $7,500 for each day in which said violation occurs or such failure to comply continues.
 

State Enforcement

RCRA §3006 and §9004 allows States to be authorized to administer RCRA hazardous waste programs and the UST programs if certain conditions are met. Determining whether EPA or the State will take the enforcement lead in an authorized State depends on a number of factors, including whether the State is authorized to enforce the applicable provisions.
 
However, EPA has the authority to independently enforce an authorized State’s regulations. RCRA §6001(c) requires that all funds collected by a State from the Federal government for violations must be used by the State only for projects designed to improve or protect the environment or to defray the costs of environmental protection or enforcement unless the State constitution or existing State laws prohibit it.
 

Tribal Enforcement

RCRA does not contain provisions which provide for federally recognized Tribes to receive authorization for the RCRA program since RCRA defines Tribes as “Municipalities.” However, a tribe may use its own authorities to develop solid waste and hazardous waste programs under tribal law. Tribes may, to the extent of their authorities, administer and enforce these tribal law programs for federal facilities in their Indian country. (Read more: Other Regulators: Response to Environmental Compoliance Violations at Federal Facilities
 

Citizen Enforcement

RCRA §7002(a) allows citizens to file a civil action (citizen suit) against a Federal agency that:
 
  1. is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order; or
  2. has contributed to or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste that may present an imminent and substantial endangerment to health or the environment.

In addition, RCRA §7002(a) allows citizens to file a civil action against the EPA Administrator for alleged failure to perform any non- discretionary act or duty.

RCRA §7002(b) excludes citizens from filing a civil action if the EPA Administrator or State has filed and is diligently prosecuting a civil or criminal action to require compliance with a permit, standard, regulation, condition, requirement, prohibition, or order. In addition, RCRA §7002(b) precludes citizens from filing a suit until notification is given to the Administrator, the State in which the alleged violation occurred, and the facility alleged to be in violation of a permit, standard, regulation, condition, requirement, prohibition, or order. Additional conditions and requirements pertaining to citizen suits are set forth in RCRA §7002(a) through §7002(g).
 

EPA RCRA Regulations

Regulatory standards for RCRA are covered in 40 CFR Parts 240-282. (Reference look-up: e-CFR)
 

Key Guidance, Policies and Resources for Federal Facilities