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September 25, 2014
Is the right person certifying environmental compliance in your organization?
By Amanda Czepiel, JD, Senior Managing Editor

When submitting permit applications and reports, environmental compliance certifications are often required by environmental professionals and organization heads. Environmental regulations have strict guidelines as to who may certify the truthfulness, accuracy, and completeness of applications and reports. Understanding this regulatory framework for these responsible official (RO) certifications is key to staying in compliance and avoiding civil and criminal penalties.

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Although the term “responsible official” has a similar definition across major statutory programs, it’s important to know the differences. With all ROs, it is up to the facility to make the determination regarding who meets the regulatory definition requirements.

What are the certifying RO’s duties?

The RO that makes an environmental compliance certification has the duty to verify and document the information submitted as compliant. Different environmental programs have established similar but slightly different certification requirements.

Be sure to check the applicable statutory requirement to determine specific certification requirements. Some states, such as South Carolina, have released guidance concerning these requirements and have also established certification forms for annual submissions, so it is best to make sure to know exactly what is necessary to meet regulatory requirements. By certifying environmental compliance, the RO signs as a representative of the corporation, but may also be individually liable under environmental criminal provisions.

Who can certify to environmental compliance?

Title V. For Title V permits and reports, the RO can be either a corporate officer or a person who is responsible for the overall operation of the permitted facility who has received written delegation from a corporate officer and either supervises 250 or more persons or is in charge of $25 million or more in sales or expenditures or receives permission from the permitting agency before signing as an RO. This person would be known as a “duly authorized representative.” A corporate officer is a person in charge of a principal business function such as a president, vice president, secretary or treasurer, or any other person who performs similar policy or decision-making functions for the corporation.

Permit applications submitted under the Clean Water Act (CWA) must be certified by a “responsible corporate officer” (RCO), while all reports required by permits must be signed by an RCO or by a duly authorized representative. An “RCO” is defined as a corporate officer, any other person who performs corporate officer functions, or a manager, if such manager has decision-making authority for operations, including the duty of making major capital investment recommendations and directing compliance measures, can ensure necessary systems are established, and has been delegated authority to sign documents.

Under the CWA, a “duly authorized representative” has been authorized in writing to certify (by either name or position) by the corporation and has received written authorization to certify by the applicable regulatory agency.

RCRA. Similar to CWA certification requirements, RCRA permit applications must be signed by an RCO, while all reports required by permits must be signed by an RCO or by a duly authorized representative. Under RCRA, the RCO can be a corporate officer, any other person who performs similar policy or decision-making function for the corporation, or a duly authorized representative, if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities and either supervises 250 or more persons or is in charge of $25 million or more in sales or expenditures or receives permission from the permitting agency before signing as an RO.

As with the CWA, a duly authorized representative has been authorized in writing to certify (by either name or position) by the corporation and has received written authorization to certify by the applicable regulatory agency.

SARA/EPCRA. EPCRA requires two types of reporting: Tier I and Tier II chemical inventory reporting and Toxics Release Inventory (TRI) reporting.

Tier I and Tier II report certification must be made by an owner or operator or an officially designated representative. TRI forms require the signature of a "senior management official," which is defined as "an official with management responsibility for the person or persons completing the report, or the manager of environmental programs for the facility or establishments, or for the corporation owning or operating the facility or establishments responsible for certifying similar reports under other environmental regulatory requirements."

How do you avoid certification headaches?

The process of ensuring compliant environmental compliance certification can be simple by following a few steps. First, confirm that the document being submitted (permit application, monitoring report, etc.) requires certification. If certification is not required by law, there is no reason to include it and open up any liability issues.

For those documents that do require certification by an RO, have a formal, documented certification process in place. This process should include a written reasonable inquiry procedure based on checklists and subcertifications. The process should be audited appropriately to ensure that it is still operating correctly.

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