# 73 FR 58388: Revisions to: The Requirements for Transboundary Shipments of Wastes Between OECD Countries, the Requirements for Export Shipments of Spent Lead-Acid Batteries, the Requirements on Submitting Exception Reports for Export Shipments of Hazardous Wastes, and the Requirements for Imports of Hazardous Wastes

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_E8-22536

## Section

- **Citation:** 73 FR 58388
- **Heading:** Revisions to: The Requirements for Transboundary Shipments of Wastes Between OECD Countries, the Requirements for Export Shipments of Spent Lead-Acid Batteries, the Requirements on Submitting Exception Reports for Export Shipments of Hazardous Wastes, and the Requirements for Imports of Hazardous Wastes
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 73 / 73 FR 58388

## Text

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 262, 264, 265, 266, and 271 [EPA-HQ-RCRA-2005-0018; FRL-8720-3] RIN 2050-AE93 Revisions to: The Requirements for Transboundary Shipments of Wastes Between OECD Countries, the Requirements for Export Shipments of Spent Lead-Acid Batteries, the Requirements on Submitting Exception Reports for Export Shipments of Hazardous Wastes, and the Requirements for Imports of Hazardous Wastes AGENCY:
Environmental Protection Agency.

ACTION:
Proposed rule.

SUMMARY:
This rule proposes to amend certain existing regulations promulgated under the hazardous waste provisions of the Resource Conservation and Recovery Act (RCRA) regarding the export and import of hazardous wastes from and into the United States. Specifically, we are proposing to modify: The requirements to implement the OECD framework concerning the transboundary movement of hazardous waste among countries belonging to the Organization for Economic Cooperation and Development (OECD), including reducing the number of control levels, exempting qualifying shipments sent for laboratory analyses from certain paperwork requirements, requiring recovery facilities to submit a certificate of recovery, adding provisions for the return or re-export of wastes subject to the Amber control procedures, and clarifying certain existing provisions that were identified as potentially ambiguous to the regulated community; the regulations regarding the management of spent lead-acid batteries being reclaimed to require appropriate notice and consent for those batteries intended for reclamation in a foreign country; the exception reporting requirements for hazardous waste exports to specify that all exception reports submitted to EPA be sent to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC rather than to the Administrator; and the hazardous waste import requirements such that U.S
nd consent for those batteries intended for reclamation in a foreign country; the exception reporting requirements for hazardous waste exports to specify that all exception reports submitted to EPA be sent to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC rather than to the Administrator; and the hazardous waste import requirements such that U.S. importers would give the initial transporter a copy of the EPA-provided documentation confirming EPA's consent to the import when they provide the RCRA hazardous waste manifest, and that the documentation would be submitted by the U.S. receiving facility to EPA along with the RCRA hazardous waste manifest within thirty days of import shipment delivery. Finally, separate from this proposed rule, EPA is publishing in http://www.epa.gov/epawaste/hazard/international/oecd-slab-rule.htm a draft guidance document on how U.S. receiving facilities may request EPA to identify them as pre-approved facilities to receive hazardous waste from OECD Member countries.

DATES:
Comments must be received on or before December 5, 2008. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before November 5, 2008.

ADDRESSES:
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2005-0018, by one of the following methods:
• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: rcra-docket@epa.gov, Attention Docket No. EPA-HQ-RCRA-2005-0018.
• Fax: (202) 566-9744, Attention Docket No. EPA-HQ-RCRA-2005-0018.
• Mail: RCRA Docket No. EPA-HQ-RCRA-2005-0018, Environmental Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of 2 copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St
RCRA Docket No. EPA-HQ-RCRA-2005-0018, Environmental Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of 2 copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503.
• Hand Delivery: RCRA Docket No. EPA-HQ-RCRA-2005-0018, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2005-0018. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit
directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the RCRA Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT:
Laura Coughlan, Hazardous Waste Identification Division, Office of Solid Waste (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (703) 308-0005; fax number: (703) 308-0514; e-mail: coughlan.laura@epa.gov .

SUPPLEMENTARY INFORMATION:
The information presented in this preamble is organized as follows:
I. General Information A. List of Acronyms Used in This Proposed Rule B. What are the statutory authorities for this proposed rule? C
ction Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (703) 308-0005; fax number: (703) 308-0514; e-mail: coughlan.laura@epa.gov .

SUPPLEMENTARY INFORMATION:
The information presented in this preamble is organized as follows:
I. General Information A. List of Acronyms Used in This Proposed Rule B. What are the statutory authorities for this proposed rule? C. Does this proposed rule apply to me? D. What is the purpose of this proposed rule? II. Background A. OECD Revisions B. SLAB Revisions C. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262 D. Import Revisions III. Summary of This Proposed Rule and Changes A. Changes to 40 CFR Part 262, Subpart E B. Changes to 40 CFR 262.60(e), Subpart F C. Changes to 40 CFR Part 262, Subpart H D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2) E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3) F. Changes to 40 CFR 266.80(a) G. Changes to 40 CFR 271.1 IV. Costs and Benefits of the Proposed Rule A. Introduction B. Analytical Scope C. Cost Impacts D. Benefits V. State Authorization A. Applicability of Rules in Authorized States B. Effect on State Authorization VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information
A
r 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information
A. List of Acronyms Used in This Proposed Rule
Acronym Meaning BCI Battery Council International CBI Confidential Business Information CERCLA Comprehensive Environmental Response, Compensation, and Liability Act CFR Code of Federal Regulations EPA U.S. Environmental Protection Agency FR Federal Register HSWA Hazardous and Solid Waste Amendments LAB Lead-Acid Battery NAICS North American Industrial Classification System NTTAA National Technology Transfer and Advancement Act NAFTA North American Free Trade Agreement OECD Organization for Economic Cooperation and Development OMB Office of Management and Budget OSWER Office of Solid Waste and Emergency Response RCRA Resource Conservation and Recovery Act RFA Regulatory Flexibility Act SIC Standard Industrial Classification SLAB Spent Lead-Acid Battery SBREFA Small Business Regulatory Enforcement Fairness Act TRI Toxics Release Inventory UMRA Unfunded Mandates Reform Act B. What are the statutory authorities for this proposed rule?
The authority to propose this rule is found in sections 1006, 1007, 2002(a), 3001-3010, 3013-3015, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6905, 6906, 6912, 6921-6930, 6934-6936, and 6938.
C. Does this proposed rule apply to me?
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es for this proposed rule?
The authority to propose this rule is found in sections 1006, 1007, 2002(a), 3001-3010, 3013-3015, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6905, 6906, 6912, 6921-6930, 6934-6936, and 6938.
C. Does this proposed rule apply to me?
1. OECD Revisions
The OECD revisions in this proposed rule affect all persons who export or import hazardous waste, export or import universal waste, or export spent lead-acid batteries (SLABs) destined for recovery operations in countries belonging to the Organization for Economic Cooperation and Development (OECD), except for Mexico and Canada. Any transboundary movement of hazardous wastes between the United States and either Mexico or Canada will continue to be regulated by their respective bilateral agreements and applicable regulations. Potentially affected entities may include, but are not limited to:
Industry sector NAICS SIC Utilities 221100 4939 Petroleum and Coal Products Manufacturing 324 29 Chemical Manufacturing 325100 28 Primary Metal Manufacturing 331 33 Fabricated Metal Product Manufacturing 332 34 Machinery Manufacturing 333 35 Computer and Electronic Product Manufacturing 334110 357 Electrical Equipment, Appliance, and Component Manufacturing 335 36 Transportation Equipment Manufacturing 336 37 Miscellaneous Manufacturing 339900 39 Scrap and Waste Materials 423930 5093 Materials Recovery Facilities 562920 4953 2. SLAB Revisions
The SLAB revisions in this proposed rule affect all persons who export SLABs for reclamation in any foreign country
Product Manufacturing 334110 357 Electrical Equipment, Appliance, and Component Manufacturing 335 36 Transportation Equipment Manufacturing 336 37 Miscellaneous Manufacturing 339900 39 Scrap and Waste Materials 423930 5093 Materials Recovery Facilities 562920 4953 2. SLAB Revisions
The SLAB revisions in this proposed rule affect all persons who export SLABs for reclamation in any foreign country. Potentially affected entities may include, but are not limited to:
Industry sector NAICS SIC Hazardous Waste Collectors 562112 4212 Recyclable Material Hauling, Long-Distance 484230 4213 Batteries, automotive, merchant wholesalers 423120 5013 Lead-acid storage batteries, manufacturing 335911 3691 Automotive Parts, Accessories, and Tire Stores 441310 5013 Tire Dealers 441320 5014 All other General Merchandise Stores 452990 5399 New Car Dealers 441110 5511 Recyclable Material Wholesaler 423930 5093 Other Waste Collection 562119 4212 Recyclable Material Collection Services, Solid Waste Collection 562111 4212 Marinas 713930 4493 General Freight Trucking, Long-Distance, TL 484121 4213 General Freight Trucking, Long-Distance, LTL 484122 4213 Specialized Freight Trucking 484200 4213 Freight Carriers (except air couriers), Air Scheduled 481112 4512 Freight Charter Services, Air 481212 4522 Freight Railways, Line-Haul 482111 4011 Freight Transportation, Deep Sea, to and from Domestic Ports 483113 4424 Freight Transportation, Deep Sea, to or from Foreign Ports 483111 4412 3. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262
The exception report change to 40 CFR part 262, subpart E and subpart H of this proposed rule affect all persons who export hazardous waste, universal waste, or SLABs to any foreign country
ion, Deep Sea, to and from Domestic Ports 483113 4424 Freight Transportation, Deep Sea, to or from Foreign Ports 483111 4412 3. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262
The exception report change to 40 CFR part 262, subpart E and subpart H of this proposed rule affect all persons who export hazardous waste, universal waste, or SLABs to any foreign country. Potentially affected entities may include, but are not limited to:
Industry sector NAICS SIC Utilities 221100 4939 Petroleum and Coal Products Manufacturing 324 29 Chemical Manufacturing 325100 28 Primary Metal Manufacturing 331 33 Fabricated Metal Product Manufacturing 332 34 Machinery Manufacturing 333 35 Computer and Electronic Product Manufacturing 334110 357 Electrical Equipment, Appliance, and Component Manufacturing 335 36 Transportation Equipment Manufacturing 336 37 Miscellaneous Manufacturing 339 39 Scrap and Waste Materials 423930 5093 4. Import Revisions
The import revisions in this proposed rule affect all persons importing hazardous waste from a foreign country that must comply with 40 CFR part 262, subpart F, and all facilities receiving imported hazardous waste from a foreign country that must comply with either 264.71(a)(3) or 265.71(a)(3). This includes those hazardous waste import shipments originating in OECD countries, as well as in non-OECD countries. Potentially affected entities may include, but are not limited to:
Industry sector NAICS SIC Hazardous Waste Collectors 562112 4212 Recyclable Material Hauling, Long-Distance 484230 4213 Recyclable Material Wholesaler 423930 5093 Other Waste Collection 562119 4212 Recyclable Material Collection Services, Solid Waste Collection 562111 4212 General Freight Trucking, Long-Distance, TL 484121 4213 Scrap and Waste Materials 423930 5093 Materials Recovery Facilities 562920 4953 The lists of potentially affected entities in the above tables may not be exhaustive
Long-Distance 484230 4213 Recyclable Material Wholesaler 423930 5093 Other Waste Collection 562119 4212 Recyclable Material Collection Services, Solid Waste Collection 562111 4212 General Freight Trucking, Long-Distance, TL 484121 4213 Scrap and Waste Materials 423930 5093 Materials Recovery Facilities 562920 4953 The lists of potentially affected entities in the above tables may not be exhaustive. The Agency's aim is to provide a guide for readers regarding those entities that potentially could be affected by this action. However, this action may affect other entities not listed in these tables. If you have questions regarding the applicability of this proposed rule to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT .
D. What is the purpose of this proposed rule?
1. OECD Revisions
This proposed rule is intended to implement the OECD's “Decision of the Council C(2001)107/FINAL, Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations, as amended by C(2004)20” (hereinafter referred to as the Amended 2001 OECD Decision), which amended the OECD Decision (1992) on the same subject. The purpose of these revisions was to encourage consistency and harmonization between the OECD and the Basel Convention, 1 which in turn, promotes economic
1 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is a comprehensive global environmental agreement on hazardous and other wastes. The Convention has 170 Member countries, also known as Parties, and aims to protect human health and the environment against the adverse effects resulting from the generation, management, transboundary movements and disposal of hazardous and other wastes. More information on the Basel Convention may be found at http://www.basel.int
sive global environmental agreement on hazardous and other wastes. The Convention has 170 Member countries, also known as Parties, and aims to protect human health and the environment against the adverse effects resulting from the generation, management, transboundary movements and disposal of hazardous and other wastes. More information on the Basel Convention may be found at http://www.basel.int.
The Amended 2001 OECD Decision was supported by the United States and imposes legally binding commitments on the United States pursuant to Articles 5(a) and 6 of the OECD Convention. By consenting to the Decision, the United States Government has agreed to promulgate regulations necessary to ensure that the United States can uphold the agreement.
Further, this proposed rule clarifies certain regulations to articulate more explicitly EPA's original intent in those regulations and to eliminate any confusion on the part of the regulated community.
2. SLAB Revisions
EPA also proposes to amend the RCRA hazardous waste regulations for SLABs specified in 40 CFR part 266, subpart G by requiring notification and consent for the export of SLABs in order to ensure that SLABs are sent to reclamation facilities in countries that can manage them in an environmentally sound manner. The notification and consent requirements are intended to: (1) Reduce potential risk to human health and the environment, including potential risk from the transboundary movement of pollution from other countries to the U.S., and (2) harmonize the notice and consent procedures with international practice (see II.B.4) and with the RCRA universal waste regulations for the export of SLABs, resulting in a more uniform practice for notification and consent for SLABs.
Notification of potential exports of hazardous waste destined for recovery in another country is a key component of multilateral environmental systems for appropriate governmental oversight to ensure proper management of the waste
actice (see II.B.4) and with the RCRA universal waste regulations for the export of SLABs, resulting in a more uniform practice for notification and consent for SLABs.
Notification of potential exports of hazardous waste destined for recovery in another country is a key component of multilateral environmental systems for appropriate governmental oversight to ensure proper management of the waste. The notification mechanism allows for all concerned countries (i.e., exporting, importing, and transit) to determine whether the hazardous waste can be handled safely based on the requirements of their waste management systems. Specifically, the importing country has the opportunity to confirm that the particular facility that is designated to receive the waste is qualified to manage it in a safe and environmentally sound manner, and has all appropriate approvals, permits, or licenses. Furthermore, the notice and consent process is the fundamental tool that is employed in transboundary waste arrangements to provide business certainty for legitimate trade.
Risks to human health and the environment derived from improper SLAB recycling techniques are of major concern internationally. The Basel Convention has developed two guidance documents 2 3 to assist governments, transporters, and recyclers to achieve environmentally sound management of SLABs. Indeed, the Basel Convention considers transboundary movement of SLABs to be “illegal traffic” if it occurs without prior notification. Similar guidance was developed by the Commission for Environmental Cooperation 4 (CEC) for use by North American countries to promote sound management of SLABs. 5 A 1996 OECD Ministerial Declaration on risk reduction from lead called on Member countries to take domestic and international action to reduce human exposure to lead from a variety of sources. 6 Further, the Report of the Special Rapporteur of the U.N
ce was developed by the Commission for Environmental Cooperation 4 (CEC) for use by North American countries to promote sound management of SLABs. 5 A 1996 OECD Ministerial Declaration on risk reduction from lead called on Member countries to take domestic and international action to reduce human exposure to lead from a variety of sources. 6 Further, the Report of the Special Rapporteur of the U.N. Commission on Human Rights 7 expressed concerns that “the United States system does not impose export regulations on SLABs destined for recycling,” and suggests that “the recycling of lead-acid batteries is one of the greatest potential sources of risk, especially for exposed workers in the informal sector in many developing countries.”
2 Basel Convention Training Manual: National Management Plans for Used Lead Acid Batteries , SBC No. 2004/5, 2004.
3 Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries , SBC No. 2003/9, 2003.
4 The Commission for Environmental Cooperation is an international organization created by Canada, Mexico and the United States under the North American Agreement on Environmental Cooperation (NAAEC). The CEC was established to address regional environmental concerns, help prevent potential trade and environmental conflicts, and to promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade Agreement (NAFTA).
5 Practices and Options for Environmentally Sound Management of Spent Lead-acid Batteries within North America , Commission for Environmental Cooperation, December 2007.
6 The Global Pursuit of the Sound Management of Chemicals , The World Bank, February 2004.
7 Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights , U.N. Commission on Human Rights, Economic and Social Council, E/CN.4/2003/56/Add.1, 10 January 2003, p. 17
America , Commission for Environmental Cooperation, December 2007.
6 The Global Pursuit of the Sound Management of Chemicals , The World Bank, February 2004.
7 Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights , U.N. Commission on Human Rights, Economic and Social Council, E/CN.4/2003/56/Add.1, 10 January 2003, p. 17.
For economic and efficiency reasons, some highly industrialized countries may ship their SLABs to less industrialized countries for SLAB breaking, draining, component separation, slag generation and lead refining. Human health and environmental risk issues can arise when these recycling processes are performed with insufficient human health or environmental safety controls. The results could include: (1) Significant increases in elevated blood lead levels in facility workers and their families; (2) increases in uncontrolled releases of lead-laden slag to soil, surface water and ground water sources; and (3) lead air-emissions from lead smelting without the proper air-emissions controls.
EPA would like to focus on the use of preventative measures to decrease the proportionate risks to human health and the global environment. There are inherent human health and environmental hazards associated with a significant amount of SLABs being exported across borders without the knowledge and consent of receiving countries and/or SLABs being exported to countries with substandard smelting infrastructures. Amending the current RCRA hazardous waste regulations to include the notification and consent requirements would help ensure that SLABs are exported to countries with the capacity to handle them in an environmentally sound manner and to aid countries with tracking the movements and life-cycle management of SLABs inside their borders
exported to countries with substandard smelting infrastructures. Amending the current RCRA hazardous waste regulations to include the notification and consent requirements would help ensure that SLABs are exported to countries with the capacity to handle them in an environmentally sound manner and to aid countries with tracking the movements and life-cycle management of SLABs inside their borders. EPA believes that the notification and consent approach is an effective way of preventing the export of SLABs to countries and to facilities that do not have the capability of safely managing the SLABs by providing the receiving country with the necessary information about the proposed shipment and requiring its consent before the export can proceed. In addition, by providing the receiving country with this information, they can monitor and track the export and the facility's management of the SLABs for safe management. The purpose of the notification and consent requirements for SLABs destined for reclamation in this proposed rule is consistent with the purpose of the notification and consent requirements in RCRA section 3017. Congress, in enacting section 3017, considered it important to require notification and consent for exports of hazardous wastes. The legislative history for section 3017 indicates that Congress felt that prior notification of an export to the receiving country would allow that country to make an informed decision as to whether it would accept the waste and, if so, how it would safely manage that waste. Congress noted that problems, such as harm to human health and the environment arise when wastes are sent to countries that do not want to receive them, or lack sufficient information to manage them properly.
EPA believes that the potential reduction in risk to human health and the environment with this proposed modification will outweigh the incremental increase in burden to SLAB exporters. Moreover, because the
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oblems, such as harm to human health and the environment arise when wastes are sent to countries that do not want to receive them, or lack sufficient information to manage them properly.
EPA believes that the potential reduction in risk to human health and the environment with this proposed modification will outweigh the incremental increase in burden to SLAB exporters. Moreover, because the
3. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262
EPA proposes to amend the exception reporting requirements in 40 CFR part 262, subparts E and H, to specify that all exception reports be submitted to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC rather than to the Administrator. 8 The Agency proposes this change because it believes that a more specific address should assist in proper delivery of the exception report to the appropriate EPA office. The more general requirement in the existing regulation to send this report to the “Administrator” may have not provided sufficiently specific instruction for those exporters trying to notify EPA of returned shipments, which could reduce EPA's ability to provide oversight on such exports. Directing that all exception reports submitted to EPA pursuant to the requirements in 40 CFR part 262, subparts E and H, be sent to a specific address should ensure better oversight of (1) return shipments into the U.S. and (2) compliance with the exception report requirements without additional regulatory burden.
8 The Office of Enforcement and Compliance Assurance is the office within EPA that implements the notice and consent scheme for hazardous waste transboundary shipments.
4. Import Revisions
Finally, EPA proposes to amend the import requirements specified in 40 CFR part 262, subpart F. This change would require that the U.S. importer provide the transporter with a copy of documentation provided by EPA, confirming EPA's consent to the hazardous waste import under a specific notice
lements the notice and consent scheme for hazardous waste transboundary shipments.
4. Import Revisions
Finally, EPA proposes to amend the import requirements specified in 40 CFR part 262, subpart F. This change would require that the U.S. importer provide the transporter with a copy of documentation provided by EPA, confirming EPA's consent to the hazardous waste import under a specific notice. This documentation would then accompany each RCRA hazardous waste manifested import shipment and be submitted by the receiving facility in the U.S. to EPA along with the RCRA hazardous waste manifest in accordance with §§ 264.71(a)(3) and 265.71(a)(3). While EPA currently requires that receiving facilities in the U.S. submit a copy of the hazardous waste manifest to EPA to document individual import shipments, it has been difficult for EPA to match an individual manifest for a hazardous waste import shipment with the related notice of intent to export from a foreign country for which EPA has provided consent. One major reason for this difficulty is because a given destination facility in the U.S. could be receiving the same hazardous waste from the same foreign exporter under more than one notice. Adding this requirement will enable EPA to better match the individual import shipments against the related notice from the foreign exporting country for which EPA has provided consent, and facilitate our oversight of such imports.
II. Background
A. OECD Revisions
1. What is the OECD?
The OECD is an international organization established in 1960 to assist Member countries in achieving sustainable economic growth, employment, and an increased standard of living, while simultaneously ensuring the protection of human health and the environment. OECD Member countries are concerned with a host of international socio-economic and political issues, including environmental issues
CD?
The OECD is an international organization established in 1960 to assist Member countries in achieving sustainable economic growth, employment, and an increased standard of living, while simultaneously ensuring the protection of human health and the environment. OECD Member countries are concerned with a host of international socio-economic and political issues, including environmental issues. To address these issues, the OECD Council may negotiate Council Decisions, which are international agreements that create binding commitments on the United States under the terms of the OECD Convention, unless otherwise provided in the Articles of the 1960 Convention. One such Council Decision addresses the transboundary movement of waste, which is the subject of this proposed rule. There are currently thirty OECD Member countries: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, South Korea, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. The OECD country Web site for each Member country may be found at http://www.oecd.org/infobycountry/ .
2. What OECD Decision formed the basis for the existing regulations in 40 CFR part 262, subpart H?
On March 30, 1992, the OECD Council adopted the “Decision of the Council C(92)39/FINAL Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery” (hereinafter referred to as the 1992 Decision), which applied to the transboundary movements of wastes destined for recovery operations between OECD Member countries. The 1992 Decision provided a framework for OECD Member countries to control the transboundary movement of recoverable wastes in an environmentally sound and economically efficient manner.
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ovements of Wastes Destined for Recovery” (hereinafter referred to as the 1992 Decision), which applied to the transboundary movements of wastes destined for recovery operations between OECD Member countries. The 1992 Decision provided a framework for OECD Member countries to control the transboundary movement of recoverable wastes in an environmentally sound and economically efficient manner.
3. Why did EPA establish the existing regulations in 40 CFR part 262, subpart H?
Due to the legally binding nature of the 1992 Decision, the United States, as an OECD Member country, was required to implement the terms of the decision in accordance with Articles 5(a) and 6 of the OECD Convention. (A copy of the OECD Convention is included in the docket to this proposed rule.) In order to implement the specific provisions of the 1992 Decision, EPA published a final rule in the Federal Register entitled, “Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision C(92)39 Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations” (61 FR 16289, April 12, 1996)(hereafter referred to as EPA's OECD rule). These regulations appear primarily in 40 CFR part 262, subpart H.
4. What OECD Decisions form the basis of the revisions in this proposed rule?
On June 14, 2001, the OECD Council amended the 1992 Decision by passing “Revision of Decision C(92)30/FINAL on the Control of Transboundary Movement of Wastes Destined for Recovery Operations” (hereafter referred to as the 2001 OECD Decision). The goal of the 2001 OECD Decision was to harmonize the procedures and requirements of the OECD with those of the Basel Convention and to eliminate duplicative activities between the two international organizations as much as practical
referred to as the Amended 2001 OECD Decision. This proposed rule also seeks to clarify certain existing regulatory provisions that have been identified as potentially ambiguous to the regulated community.
As noted previously, OECD Council Decisions are international agreements that create binding commitments on the United States, unless otherwise provided in the Articles to the 1960 Convention. Therefore, by consenting to the Amended 2001 OECD Decision, the United States Government has agreed to establish legal measures necessary to ensure that the United States can uphold the agreement. EPA believes that RCRA contains adequate authority to promulgate the requirements of the Amended 2001 OECD Decision.
It is important to recognize that the OECD Decision allows a Member country to determine if a waste on an OECD list is hazardous based on its “national procedures.” EPA has determined that a waste is hazardous under U.S. “national procedures”—and therefore subject to the OECD provisions of Subpart H—if the waste meets the following requirements under RCRA: (a) Meets the Federal definition of hazardous waste in 40 CFR 261.3; and (b) is subject to either the Federal hazardous waste manifesting requirements in 40 CFR 262, or to the universal waste management standards of 40 CFR part 273, or to State requirements analogous to Part 273. This determination was set forth in § 262.89(a), and additional discussion on how this provision impacts transboundary movements of wastes subject to RCRA exemptions, exclusions and recycling provisions can be found in the April 12, 1996, preamble to the original OECD rule (61 FR 16290-16316).
6. How does EPA propose to implement future OECD revisions?
State requirements analogous to Part 273. This determination was set forth in § 262.89(a), and additional discussion on how this provision impacts transboundary movements of wastes subject to RCRA exemptions, exclusions and recycling provisions can be found in the April 12, 1996, preamble to the original OECD rule (61 FR 16290-16316).
6. How does EPA propose to implement future OECD revisions?
(a) Changes to OECD Member Country List
Qualified countries may be invited to accede to the OECD Convention as new Members. The OECD Convention defines qualified countries as those that have demonstrated the basic values shared by all Members: An open market economy, democratic pluralism, and respect for human rights. Any decision to invite a new country to become a Member of the OECD must be unanimous, although abstentions may be allowed. Thus, no new Member may be admitted over the objection of the United States (or any other Member).
In order to accommodate changes in OECD membership as quickly as possible, EPA intends to publish in the Federal Register any future amendments to the list of OECD Member countries set forth in § 262.58(a)(1), as the OECD adds new Member countries or otherwise amends its list in the future. EPA intends to publish notices of these future amendments to § 262.58(a)(1) as a final rule without prior notice and opportunity for comment. EPA believes that the Agency would be able to make a “good cause” finding under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) to make these future amendments without prior notice and comment. EPA believes notice and an opportunity for comment on future amendments to § 262.58(a)(1) to reflect the updates to the OECD list of Member countries would be unnecessary, because the United States, as an OECD Member country, is legally obligated to implement OECD Decisions with respect to all OECD Member countries.
. 553(b)(3)(B)) to make these future amendments without prior notice and comment. EPA believes notice and an opportunity for comment on future amendments to § 262.58(a)(1) to reflect the updates to the OECD list of Member countries would be unnecessary, because the United States, as an OECD Member country, is legally obligated to implement OECD Decisions with respect to all OECD Member countries.
(b) Changes to OECD Waste List
The OECD waste list is incorporated by reference and cited in § 262.89(d). If the OECD amends its waste list in the future by decision of the OECD Council (with the concurrence of the United States), EPA intends to publish notices of these amendments in the Federal Register as a final rule without prior notice and an opportunity for comment. EPA believes that the Agency would be able to make a “good cause” finding under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) to make these future amendments without prior notice and comment because the purpose of § 262.89(d) is solely informational—to provide an up-to-date reference of the OECD list. Public comment on such updates is unnecessary, as EPA would have no discretion to modify the OECD list. As discussed above, U.S. national procedures, rather than the OECD list, ultimately determine the applicability of Subpart H, recognizing that the OECD list will be relevant for exports to other OECD members.
B. SLAB Revisions
1. What are SLABs?
Lead-acid batteries are secondary, wet cell batteries that contain liquid and can be recharged for many uses. They are the most widely used rechargeable batteries in the world and are mainly used as starting, lighting, and ignition (SLI) power batteries found in automobiles and other vehicles. A rechargeable SLAB is spent if it no longer performs effectively and cannot be recharged. Battery failure is most commonly attributed to water loss and grid corrosion during normal use
n be recharged for many uses. They are the most widely used rechargeable batteries in the world and are mainly used as starting, lighting, and ignition (SLI) power batteries found in automobiles and other vehicles. A rechargeable SLAB is spent if it no longer performs effectively and cannot be recharged. Battery failure is most commonly attributed to water loss and grid corrosion during normal use. SLABs are considered both solid and hazardous wastes under Subtitle C of RCRA, because they are classified as spent materials that exhibit the toxicity characteristic for lead, and the corrosivity characteristic for the sulfuric acid electrolyte in the battery.
Lead-acid batteries are typically composed of an outside plastic casing and six inner cells containing lead strips and positive and negative lead terminals. Each cell is made up of two lead frameworks, the positive plate being lead dioxide and the negative plate being spongy lead (a metallic lead in a high-surface-area porous structure). Each cell is filled with sulfuric acid as the electrolyte. When the battery is in use, the spongy lead, sulphuric acid, and lead dioxide react to produce an electrical current. Both electrodes are converted to lead sulfate, a process which is reversed during recharge.
2. How are SLABs currently managed?
Currently, SLABs are either reclaimed for their lead value or disposed of. The Battery Council International (BCI) reported a 99.2 percent domestic SLAB reclamation rate for the years 1999-2003, making lead-acid batteries one of the most recycled consumer products. When a SLAB is collected, it is sent to a reclaimer where the SLABs are cracked through various means, such as
Lead is a highly toxic heavy metal naturally occurring in the environment. For this reason, proper management of lead and lead-containing products is essential to the protection of human health and the environment
3, making lead-acid batteries one of the most recycled consumer products. When a SLAB is collected, it is sent to a reclaimer where the SLABs are cracked through various means, such as
Lead is a highly toxic heavy metal naturally occurring in the environment. For this reason, proper management of lead and lead-containing products is essential to the protection of human health and the environment. In the U.S., the Occupational Safety and Health Administration (OSHA) has developed standards to address and minimize workplace exposure to lead (29 CFR § 1910.1025). These standards establish permissible exposure limits; exposure monitoring, respiratory protection and safety procedures; and proper warning and sign-age requirements for facilities processing lead. Proper ventilation, training and safety procedures also are necessary. In less developed countries, these precautions may be overlooked, leading to dangerous conditions. (See “A Study of the Lead-Acid Battery Industry and Spent Lead-Acid Battery Exports,” June 2003, a copy of which is included in the RCRA docket established for this proposed rule.)
Recent data show that the primary factors influencing decisions to export SLABs from the United States include the price of scrap lead, worldwide supply and demand for lead, and the relative price of virgin lead compared to the price of scrap lead. BCI estimates that in 1995, approximately 1,078,674 tons of recoverable lead was available from batteries consumed domestically. BCI also reports that, based on Department of Commerce data, approximately 104,614 tons of battery scrap lead were exported in 1995. In contrast, approximately 269,171 metric tons of SLABs were exported in 2006 based on more recent data from the International Trade Commission, Environment Canada, and Secretaria de Medio Ambiente y Recursos Naturales (SEMARNAT). Such a large increase in exports may be in large part due to recent increases in the domestic and international price of lead
f battery scrap lead were exported in 1995. In contrast, approximately 269,171 metric tons of SLABs were exported in 2006 based on more recent data from the International Trade Commission, Environment Canada, and Secretaria de Medio Ambiente y Recursos Naturales (SEMARNAT). Such a large increase in exports may be in large part due to recent increases in the domestic and international price of lead.
According to the annual “Mineral Commodity Summaries” published by the U.S. Geological Survey (USGS), the average price of lead for North American producers increased by 77% from 43.7 cents/pound in 1999 to 77.8 cents/pound in 2006. The average price as reported on the London Metal Exchange increased by 154% during those same years from 22.8 cents/pound to 58.0 cents/pound. In addition, while export shipments destined for locations in many countries are subject to duties or tariffs on any exported SLABs, Canadian and Mexican importers are allowed, under the conditions of the North American Free Trade Agreement (NAFTA), to import SLABs without the usual surcharge. Indeed, data show that Canada and Mexico are the major destination countries to which U.S. SLABs have been exported in recent years. For example, in 2006 U.S. SLAB exports to Mexico and Canada were estimated to be 199,000 metric tons and 66,000 metric tons, respectively (based on data from Mexican and Canadian government sources). Comparing this information to data from the U.S. International Trade Commission, it is estimated that only 1.8% of SLAB exports are destined for countries other than Mexico or Canada. (See the EPA Cost Assessment 9 prepared in support of this proposed action.)
9 Cost Assessment for the Proposed Rule on Exports and Imports of Hazardous Waste Destined for Recovery Among OECD Countries and Exports of Spent Lead-Acid Batteries from the U.S.
3
S. International Trade Commission, it is estimated that only 1.8% of SLAB exports are destined for countries other than Mexico or Canada. (See the EPA Cost Assessment 9 prepared in support of this proposed action.)
9 Cost Assessment for the Proposed Rule on Exports and Imports of Hazardous Waste Destined for Recovery Among OECD Countries and Exports of Spent Lead-Acid Batteries from the U.S.
3. How are SLABs currently regulated in the United States?
Under the current Federal hazardous waste regulations established pursuant to RCRA, SLABs are hazardous wastes if the batteries exhibit one or more of the characteristics of hazardous waste provided in 40 CFR 261, subpart C (e.g., corrosivity (D001), or toxicity for lead (D008)). SLABs typically exhibit the toxicity characteristic for lead and, therefore, are defined as hazardous wastes.
(a) SLABs Sent for Disposal Within the United States
If a generator disposes, rather than reclaims, SLABs, the SLABs would need to be managed in compliance with the Subtitle C hazardous waste management regulations, which could include the part 273 universal waste rules. However, in all instances, SLABs that are disposed of must be managed at a RCRA Subtitle C disposal facility and are subject to the Land Disposal Restriction requirements of 40 CFR part 268.
The universal waste regulations, promulgated on May 11, 1995, were created to provide a streamlined set of management regulations governing the collection and management of certain widely generated hazardous wastes, such as spent batteries. For the purposes of the universal waste regulations, the definition of “battery” includes SLABs. While SLABs managed as universal waste may be drained of sulphuric acid, the battery casings must be intact. SLABs that have partially or wholly crushed casings cannot be managed as universal waste.
A universal waste handler is required to ensure that the SLABs do not spill or leak and that they are stored in a structurally sound container
regulations, the definition of “battery” includes SLABs. While SLABs managed as universal waste may be drained of sulphuric acid, the battery casings must be intact. SLABs that have partially or wholly crushed casings cannot be managed as universal waste.
A universal waste handler is required to ensure that the SLABs do not spill or leak and that they are stored in a structurally sound container. In addition, depending upon the amount of SLABs that are accumulated, a battery handler may be required to track shipments of the SLABs sent off-site for reclamation or other management. Universal waste handlers are not allowed to treat their waste; however, they can conduct certain activities (e.g., sorting, regeneration 10 , etc.) provided the battery casings remain intact.
10 Regeneration under 40 CFR part 266, subpart G, includes only replacing drained electrolyte fluids and replacing “bad” battery cells. (See 48 FR at 14496.)
Other general provisions to which all universal waste handlers are subject include labeling/marking, accumulation time limits, employee training, and response to releases of hazardous waste. Off-site shipments of universal wastes do not require a hazardous waste manifest, provided they are sent to another universal waste handler or a specified destination facility, and are shipped by an authorized universal waste transporter.
(b) SLABs Sent for Reclamation Within the United States
When reclaimed, SLABs are exempt from most of the RCRA Subtitle C hazardous waste regulations, but are subject to the regulations in part 266, subpart G. (See 40 CFR § 261.6(a)(2)(iv).) Alternatively, they can also be managed as a universal waste and subject to the universal waste regulations in 40 CFR part 273
niversal waste transporter.
(b) SLABs Sent for Reclamation Within the United States
When reclaimed, SLABs are exempt from most of the RCRA Subtitle C hazardous waste regulations, but are subject to the regulations in part 266, subpart G. (See 40 CFR § 261.6(a)(2)(iv).) Alternatively, they can also be managed as a universal waste and subject to the universal waste regulations in 40 CFR part 273. Thus, generators that send SLABs off-site for reclamation may choose to manage their SLABs either as a universal waste, in accordance with
Under the provisions of 40 CFR part 266, subpart G, persons who generate, collect, transport, or store SLABs for direct regeneration or reclamation are exempt from the bulk of the RCRA hazardous waste regulations (40 CFR parts 262 through 266, 270, 124 and the EPA notification and identification number requirements). However, 40 CFR part 266, subpart G imposes certain requirements on reclaimers of SLABs who do not store prior to reclamation, and on facilities that store SLABs destined for reclamation, but do not conduct any reclamation. In addition, owners or operators of facilities that both store and reclaim SLABs are required to comply with the EPA notification and identification number requirements and all applicable hazardous waste management facility provisions in parts 264/265, 270, and 124, and are subject to 40 CFR parts 261, § 262.11, and applicable provisions under part 268.
4. What international agreements apply to the export of SLABs?
There are two major international agreements that expressly address the export of SLABs: (1) The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention); and (2) the Amended 2001 OECD Decision (see II.A.4 for more information). This proposal would harmonize the EPA SLAB export requirements with both of these international agreements
s?
There are two major international agreements that expressly address the export of SLABs: (1) The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention); and (2) the Amended 2001 OECD Decision (see II.A.4 for more information). This proposal would harmonize the EPA SLAB export requirements with both of these international agreements.
As noted in footnote 1, the Basel Convention is a multilateral international agreement governing the transboundary movements of hazardous wastes. Among other things, the Basel Convention includes a requirement for notice and written consent for transboundary movements of hazardous waste between trading countries. SLABs are covered under the Basel Convention as a hazardous waste and are thus subject to the notice and consent requirements of the Basel Convention. The United States is a signatory to the Convention, but has not yet ratified it and is therefore not legally bound to its requirements.
The Amended 2001 OECD Decision regulates the transboundary movements of hazardous wastes (e.g. wastes subject to Amber control procedures) destined for recovery within OECD Member countries. The Amended 2001 OECD Decision lists SLABs, whether whole or crushed, as subject to the Amber control procedures.
Currently, under the RCRA hazardous waste regulations, SLABs can be managed either in accordance with the special regulations under 40 CFR part 266, subpart G or in accordance with the universal waste regulations, as discussed above. Under part 266, subpart G, SLABs that are destined for reclamation are currently exempt from the RCRA export requirements in 40 CFR part 262, subpart E and subpart H (including the notice and consent requirements)
ations, SLABs can be managed either in accordance with the special regulations under 40 CFR part 266, subpart G or in accordance with the universal waste regulations, as discussed above. Under part 266, subpart G, SLABs that are destined for reclamation are currently exempt from the RCRA export requirements in 40 CFR part 262, subpart E and subpart H (including the notice and consent requirements).
On the other hand, under the universal waste regulations, exporters of SLABs for reclamation are subject to the export requirements in 40 CFR part 273 (including the notice and consent requirements) or, if the SLABs will be exported to an OECD Member country for recovery, the export requirements (including notice and consent) in 40 CFR part 262, subpart H, apply. In addition, even in situations where U.S. exporters are not subject to the notice and consent requirements, U.S. exporters may still be required to notify the importing OECD Member country of their intention to export batteries, pursuant to contracts with foreign consignees. This is because SLABs, identified by the Amended 2001 OECD Decision as wastes subject to Amber control procedures, are generally considered to be hazardous waste under the national procedures of the importing Member countries.
5. How does EPA propose to revise the SLAB regulations under 40 CFR part 266, subpart G?
EPA proposes to amend the SLAB regulations under 40 CFR part 266, subpart G, to require that exporters and transporters handling SLABs destined for reclamation in a foreign country to comply with the same requirements specified in the universal waste regulations under 40 CFR part 273. Specifically, an exporter who sends the SLABs to a foreign destination other than to those OECD countries specified in 40 CFR 262.58(a)(1) would have to:
ns under 40 CFR part 266, subpart G, to require that exporters and transporters handling SLABs destined for reclamation in a foreign country to comply with the same requirements specified in the universal waste regulations under 40 CFR part 273. Specifically, an exporter who sends the SLABs to a foreign destination other than to those OECD countries specified in 40 CFR 262.58(a)(1) would have to:
(a) Comply with the requirements applicable to a primary exporter in 40 CFR 262.53, 262.56(a) (1) through (4), (6), 262.56(b) and 262.57; (b) export such SLABs only upon consent of the receiving country and in conformance with the EPA Acknowledgement of Consent as defined in subpart E of 40 CFR part 262 of this chapter; and (c) provide a copy of the EPA Acknowledgment of Consent for the shipment to the transporter transporting the shipment for export. In addition, a transporter transporting a shipment of SLABs to a foreign destination other than to those OECD countries specified in 40 CFR 262.58(a)(1) would not be able to accept a shipment if the transporter knew the shipment does not conform to the EPA Acknowledgment of Consent, and would have to ensure that: (a) a copy of the EPA Acknowledgment of Consent accompanies the SLAB export shipment; and (b) the shipment is delivered to the facility designated by the person initiating the SLAB export shipment.
For SLABs destined for reclamation in OECD countries specified in 40 CFR 262.58(a)(1), exporters and transporters would be subject to the requirements of 40 CFR part 262, subpart H, the requirements governing hazardous waste shipments to OECD countries.
C. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262
EPA proposes to replace “EPA Administrator” with “the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division (2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460” in both § 262.55 and in § 262.87(b)
ries.
C. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262
EPA proposes to replace “EPA Administrator” with “the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division (2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460” in both § 262.55 and in § 262.87(b).
By providing a specific address for the submission of all exception reports required by 40 CFR part 262, subparts E and H, EPA can ensure better oversight of (1) return shipments to the U.S. and (2) compliance with the exception reporting requirements without any additional regulatory burden for U.S. exporters. In this proposed rule, EPA is making very clear that submission of these export exception reports must be to the same specific EPA address that receives all export notifications and export annual reports, and with no substitution for comparable State agencies. States that are interested in receiving a parallel copy of the exception report will still be able to require the submission of a copy to their State Director in addition to sending it to the above federal address.
D. Import Revisions
EPA proposes to amend the import requirements specified in § 262.60(e) to require that the U.S. importer provide the transporter with a copy of the documentation confirming EPA's consent to the hazardous waste import, specified under a notice submitted by the competent authority of the country of export. This documentation must accompany each RCRA hazardous waste shipment and be submitted by the U.S. receiving facility to EPA along with the RCRA hazardous waste manifest as
While EPA currently requires that U.S. receiving facilities submit a copy of the hazardous waste manifest to EPA to document individual hazardous waste import shipments, it has proved difficult to match individual hazardous waste import shipments against a given approved notice of intent to export from a foreign country
S. receiving facility to EPA along with the RCRA hazardous waste manifest as
While EPA currently requires that U.S. receiving facilities submit a copy of the hazardous waste manifest to EPA to document individual hazardous waste import shipments, it has proved difficult to match individual hazardous waste import shipments against a given approved notice of intent to export from a foreign country. In part, this is because a given destination facility in the United States could be receiving the same hazardous waste from the same foreign exporter under more than one approved notice. Adding this requirement will enable EPA to match the submitted RCRA hazardous waste manifests for individual import shipments against the approved import notice that typically covers the twelve months of imports. Being able to do so will enable EPA to determine when any import shipments claiming coverage under that specific notice would or would not be in accordance with the terms of the approved notice, thus improving our oversight of such imports.
EPA currently responds to specific notices of intent to export hazardous waste from a foreign country into the United States with either a written response (e.g., written consent or objection) or a tacit consent. Tacit consents are allowable for imports subject to EPA's OECD regulations, as specified in 40 CFR part 262, subpart H. For such imports, the exporting country may assume tacit consent to the proposed shipments by EPA if no written response from EPA has been received by the exporting country thirty working days from the date EPA sends the exporting country a letter acknowledging receipt of the notice. Because EPA's consents are currently either tacit or sent in writing only to the competent authority of the exporting country, EPA will need to provide or otherwise make available to U.S. importers documentation confirming the Agency's consent
A has been received by the exporting country thirty working days from the date EPA sends the exporting country a letter acknowledging receipt of the notice. Because EPA's consents are currently either tacit or sent in writing only to the competent authority of the exporting country, EPA will need to provide or otherwise make available to U.S. importers documentation confirming the Agency's consent. EPA is considering and soliciting comments on what would provide adequate documentation of the Agency's written or tacit consent to a specific notice, and how best to provide that information to U.S. importers.
III. Summary of This Proposed Rule and Changes
A. Changes to 40 CFR Part 262, Subpart E
This proposed rule amends the exception reporting requirements in § 262.55 to specify that all exception reports be submitted to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC, rather than to the Administrator. In addition, the proposal also updates § 262.58(a) to reflect that export shipments of SLABs being managed under 40 CFR part 266, subpart G that are destined for recovery in one of the OECD Member countries listed in § 262.58(a)(1) are subject to the requirements of subpart H. Finally, the proposal adds language in § 262.58(b) of subpart E to clarify that hazardous waste exports subject to subpart E and hazardous waste imports subject to subpart F are not subject to subpart H in order to reduce confusion for U.S. exporters and importers.
B. Changes to 40 CFR 262.60(e), Subpart F
This proposed rule includes the requirement that a U.S. importer provide the transporter a copy of the documentation confirming EPA's consent to the import of hazardous waste when the importer provides the transporter with an additional copy of the manifest.
C. Changes to 40 CFR Part 262, Subpart H
All but the last three changes listed below are necessary to conform to the revisions in the Amended 2001 OECD Decision
udes the requirement that a U.S. importer provide the transporter a copy of the documentation confirming EPA's consent to the import of hazardous waste when the importer provides the transporter with an additional copy of the manifest.
C. Changes to 40 CFR Part 262, Subpart H
All but the last three changes listed below are necessary to conform to the revisions in the Amended 2001 OECD Decision. These changes range from substantive revisions and amendments to changes in terminology to simple editorial changes. Collectively, these changes serve to implement the Amended 2001 OECD Decision, as well as clarify certain sections that were previously ambiguous to the regulated community. Changes to 40 CFR part 262, subpart H include:
1. Changes in Terminology
In the Amended 2001 OECD Decision, the OECD Council updated several terms and definitions used in the 1992 Decision. EPA believes that these changes do not result in substantive changes to the intent of the requirements, but merely bring them in line with current terminology used in practice and in other international agreements. To limit any unnecessary confusion between the U.S. regulations and those of other OECD Member countries and to promote consistency with the Amended 2001 OECD Decision, this proposed rule adopts these changes in terminology. Thus, EPA proposes to change the following terminology:
(a) “Transfrontier” to “transboundary”;
(b) “Tracking document” to “movement document”;
(c) “Amber-list controls” to “Amber control procedures”;
(d) “Notifier” to “exporter”; and
those of other OECD Member countries and to promote consistency with the Amended 2001 OECD Decision, this proposed rule adopts these changes in terminology. Thus, EPA proposes to change the following terminology:
(a) “Transfrontier” to “transboundary”;
(b) “Tracking document” to “movement document”;
(c) “Amber-list controls” to “Amber control procedures”;
(d) “Notifier” to “exporter”; and
(e) “Consignee” to “importer.” 11
11 The change from “consignee” to “importer” is only being made in 40 CFR part 262 subpart H, and does not affect the use of consignee in 40 CFR part 262 subpart E.
2. The Number of Different Levels of Control Is Reduced From Three (Green, Amber, and Red) to Two (Green and Amber) and the Waste Lists Have Been Updated
The 2001 OECD Decision replaced the OECD three-tier waste list (Green, Amber, Red) system with a two-tiered system (Green and Amber) to conform to the Basel Convention waste lists more closely. Further, the revised OECD waste lists, as provided by the 2004 OECD Amendment, better correspond to those of the Basel Convention. Accordingly, we are proposing to make these same conforming changes to EPA's OECD rule.
Wastes subject to the Green control procedures are those wastes listed in Parts I and II of Appendix 3 to the Amended 2001 OECD Decision. Part I contains wastes listed in Annex IX of the Basel Convention, to which the OECD has made and noted adjustments, as appropriate. Part II contains additional wastes subject to the Green control procedures, which the OECD has assessed as not posing any risk to human health or the environment under its risk criteria.
Wastes subject to the Amber control procedures are those wastes listed in Parts I and II of Appendix 4 to the Amended 2001 OECD Decision. Part I contains wastes listed in Annexes II and VIII of the Basel Convention, to which the OECD has made and noted adjustments, as appropriate
dures, which the OECD has assessed as not posing any risk to human health or the environment under its risk criteria.
Wastes subject to the Amber control procedures are those wastes listed in Parts I and II of Appendix 4 to the Amended 2001 OECD Decision. Part I contains wastes listed in Annexes II and VIII of the Basel Convention, to which the OECD has made and noted adjustments, as appropriate. Part II contains additional wastes subject to the Amber control procedures, which the OECD has assessed as posing a risk to human health or the environment under its risk criteria. Further, all wastes formerly appearing on the Red list would be subject to the Amber control procedures.
U.S. importers and exporters of hazardous waste subject to the subpart H requirements of 40 CFR part 262 should be aware that wastes listed in Part I of both the new OECD Amber and Green waste lists have not retained their OECD waste codes. Consequently, the relevant Basel waste codes should be used instead. However, wastes listed in Part II of both the new OECD Amber and Green waste lists do retain their original OECD waste codes, as listed in the 1992 Decision. This two-part system is
Both the Green waste list and the Amber waste list are cited in § 262.89. This rule proposes to amend § 262.89(d) to incorporate by reference the most current OECD waste lists from the Amended 2001 OECD Decision. Further, the elimination of the Red list allows for the consolidation of the provisions currently found in § 262.89(b) and (c), which appears in the new proposed § 262.89(b).
3. References to Unlisted Wastes Have Been Eliminated in Favor of “Wastes Not Covered in Appendices 3 and 4 of the OECD Decision”
Section 262.83(d) currently addresses the general notification requirements for unlisted wastes. This rule first proposes to renumber this section to § 262.83(c) since the current § 262.83(c) addresses “red-list wastes” and is no longer needed
proposed § 262.89(b).
3. References to Unlisted Wastes Have Been Eliminated in Favor of “Wastes Not Covered in Appendices 3 and 4 of the OECD Decision”
Section 262.83(d) currently addresses the general notification requirements for unlisted wastes. This rule first proposes to renumber this section to § 262.83(c) since the current § 262.83(c) addresses “red-list wastes” and is no longer needed. This proposal also replaces the term “unlisted wastes” with “wastes not covered in Appendices 3 and 4 of the OECD Decision, 12 ” so that wastes not on these lists are not automatically subject to the Amber control procedures. Rather, “wastes not covered in Appendices 3 and 4 of the OECD Decision” will be subject to the domestic rules and regulations of the countries of concern.
12 Section 262.81(j) in the proposed revisions to the regulatory text in 40 CFR part 262, subpart H defines “OECD Decision” as “Decision of the Council C(2001)107/FINAL, Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations, as Amended by C(2004)20” for the purposes of the subpart.
4. Transboundary Movements May Now Qualify for a Laboratory Analysis Exemption
The 1992 Decision and EPA's OECD rule did not include a provision that would exempt waste samples destined for laboratory analyses. The Amended 2001 OECD Decision, however, would allow Member countries to decide through their domestic laws and regulations that waste samples normally subject to the Amber control procedures will only be subject to the Green control procedures if such samples are destined for laboratory analyses to assess its physical or chemical characteristics, or to determine its suitability for recovery operations. Therefore, we are proposing that if the waste sample is destined for laboratory analyses and meets certain specified conditions, then the waste is subject to the Green control procedures (e.g., the existing controls normally applied in commercial transactions)
stined for laboratory analyses to assess its physical or chemical characteristics, or to determine its suitability for recovery operations. Therefore, we are proposing that if the waste sample is destined for laboratory analyses and meets certain specified conditions, then the waste is subject to the Green control procedures (e.g., the existing controls normally applied in commercial transactions).
The Amended 2001 OECD Decision provides that the amount of waste qualifying for this exemption shall not be more than the minimum quantity reasonably needed to perform the analyses adequately in each particular case, but can never exceed twenty-five kilograms (25 kg /55 lbs). Analytical samples also must be appropriately packaged and labeled and must be carried out under the terms of all applicable international transport agreements. Furthermore, any transboundary movement of such samples through non-OECD Member countries shall be subject to international law and to all applicable national laws and regulations. Thus, the proposed rule allows for waste samples that are sent for laboratory analyses to be exempt from the Amber control procedures provided they meet the same conditions as set forth in the Amended 2001 OECD Decision.
Information on exemptions and any other national requirements concerning movements of waste for laboratory analyses is available to the public via a Web site with information compiled by the OECD Environment Directorate, which can be accessed at http://www.oecd.org/env/waste/ .
U.S. exporters should also be aware that even if their shipments qualify for the laboratory analyses exemption, some Member countries may elect to apply the Amber control procedures to such shipments, requiring the exporter of a waste sample for laboratory analyses to inform the competent authorities of such a movement. U.S
t Directorate, which can be accessed at http://www.oecd.org/env/waste/ .
U.S. exporters should also be aware that even if their shipments qualify for the laboratory analyses exemption, some Member countries may elect to apply the Amber control procedures to such shipments, requiring the exporter of a waste sample for laboratory analyses to inform the competent authorities of such a movement. U.S. exporters should check with the competent authorities of each country to find out if they require the Amber control procedures for a sample that would qualify for the laboratory analyses exemption.
5. Recovery Facilities Must Submit a Certificate of Recovery
This proposed rule would implement the Amended 2001 OECD Decision's requirement that a duly authorized representative of the recovery facility submit a certificate of recovery to all interested parties (e.g., exporter, country of export, country of import), ensuring recovery of the waste has been completed. A valid certificate of recovery is defined as a written and dated statement that affirms that the waste materials were recovered and that any residuals generated from the recovery operation have been disposed of in the manner agreed to by the parties to the contract. 13 This proposed rule also requires, as does the Amended 2001 OECD Decision, that the recovery facility send the certificate of recovery as soon as possible, but no later than thirty (30) days after the completion of recovery and no later than one (1) calendar year following the receipt of waste by the recovery facility. Finally, this proposed rule requires that the recovery facility must send copies of the certificate of recovery to the exporter and competent authorities of the countries of export and import by mail, e-mail followed by mail, or fax followed by mail. This proposed rule incorporates the certificate of recovery provisions of the Amended 2001 OECD Decision in § 262.83(e)
ste by the recovery facility. Finally, this proposed rule requires that the recovery facility must send copies of the certificate of recovery to the exporter and competent authorities of the countries of export and import by mail, e-mail followed by mail, or fax followed by mail. This proposed rule incorporates the certificate of recovery provisions of the Amended 2001 OECD Decision in § 262.83(e).
13 Under both the 1992 Decision and the Amended 2001 OECD Decision, transboundary movements of wastes subject to the Amber control procedures may only occur under the terms of a valid written contract, or chain of contracts, or equivalent arrangements between facilities controlled by the same legal entity, starting with the exporter and terminating at the recovery facility. The contracts must: (a) Clearly identify the generator of each type of waste, each person who shall have legal control of the wastes and the recovery facility; (b) provide that relevant requirements of the OECD Decisions are taken into account and binding on all parties; and (c) specify which party to the contract shall assume responsibility for ensuring alternative management of the wastes including, if necessary, the return of the wastes.
The Amended 2001 OECD Decision states that the completion of block 18 of the OECD movement document, and the submission of signed copies to the exporter and relevant competent authorities, fulfils the certificate of recovery requirement. Although the OECD movement document is recommended, the Amended 2001 OECD Decision does not require recovery facilities to use it.
While some recovery facilities may not be subject to the import and other requirements because they are not handling RCRA hazardous waste, these entities should be aware that the competent authorities of the exporting Member countries may still impose the conditions outlined in the OECD Council Decisions before the transactions can be completed
ion does not require recovery facilities to use it.
While some recovery facilities may not be subject to the import and other requirements because they are not handling RCRA hazardous waste, these entities should be aware that the competent authorities of the exporting Member countries may still impose the conditions outlined in the OECD Council Decisions before the transactions can be completed. Thus, if the waste is considered non-hazardous in the United States, EPA would not require a certificate of recovery from a facility. However, the competent authority of the country of export may require a certificate of recovery, and may require that the exporter include such a requirement in the contract between the exporter and importer.
6. Amendments to Notification Requirements
The Amended 2001 OECD Decision introduced a series of notification requirements that require EPA to make conforming amendments to its OECD regulations. Specifically, this proposed rule would amend § 262.83(e) (which would be renumbered as § 262.83(d)) by incorporating several new items that must be included in the notification, including:
(a) Exporter and importing recovery facility e-mail address;
(b) E-mail address for importer (if different from the importing recovery facility);
(c) Address, telephone, fax, and e-mail of intended transporter(s);
(d) Means of transport envisioned; and
(e) Specification of the type of recovery operation(s) that will be used.
7. Amendments to Procedures for Exports to Pre-Approved Facilities
Under the Amended 2001 OECD Decision, a pre-approved recovery facility (also known as a pre-consented recovery facility) is one that has been identified in advance by the competent authority having jurisdiction over that facility as acceptable for receiving hazardous waste imports. For these facilities, the competent authority must inform the OECD secretariat that the facility is pre-approved, and the waste types that are acceptable for recovery
ved recovery facility (also known as a pre-consented recovery facility) is one that has been identified in advance by the competent authority having jurisdiction over that facility as acceptable for receiving hazardous waste imports. For these facilities, the competent authority must inform the OECD secretariat that the facility is pre-approved, and the waste types that are acceptable for recovery. This allows for simplified and accelerated notification procedures. Pre-approval may be granted for a specific time frame and may be revoked at any time by the relevant competent authority.
The Amended 2001 OECD Decision established a consideration period for objection to transboundary movements to pre-approved facilities and lengthened the allowable coverage period for notifications. Specifically, the Decision established a consideration period of seven (7) working days during which time relevant competent authorities may object to transboundary movements of waste to pre-approved facilities. The Decision also established that the allowable coverage period for general notifications may extend up to three (3) years. Today's proposed rule amends the current regulations to incorporate these changes in § 262.83(b)(2)(ii) to reflect the seven (7) day consideration period and in § 262.83(b)(2)(i) to reflect the allowable coverage period for notifications.
8. New Procedures for the Pretreatment of Hazardous Wastes at R12/R13 Recovery Facilities
The Amended 2001 OECD Decision imposed new requirements for R12 and R13 recovery facilities, which we are proposing to incorporate in this proposal. R12 and R13 recovery facilities are transfer and storage facilities, respectively, that do not recover the wastes themselves
verage period for notifications.
8. New Procedures for the Pretreatment of Hazardous Wastes at R12/R13 Recovery Facilities
The Amended 2001 OECD Decision imposed new requirements for R12 and R13 recovery facilities, which we are proposing to incorporate in this proposal. R12 and R13 recovery facilities are transfer and storage facilities, respectively, that do not recover the wastes themselves. Because hazardous wastes destined for recovery may have to undergo treatment before a R1-R11 14 recovery facility actually recovers them, the OECD considers R12 and R13 facilities as “intermediate or temporary operations.” The primary reason for the new requirements is to ensure that the subsequent R1-R11 recovery operation receives the waste and completes its recovery in an environmentally sound manner.
14 Recovery operations R1 through R11 are defined as the following: R1, use as a fuel (other than in direct incineration) or other means to generate energy; R2, solvent reclamation/regeneration; R3, recycling/reclamation of organic substances which are not used as solvents; R4, recycling/reclamation of metals and metal compounds; R5, recycling/reclamation of other inorganic materials; R6, regeneration of acids or bases; R7, recovery of components used for pollution abatement; R8, recovery of components used from catalysts; R9, used oil re-refining or other reuses of previously used oil; R10, land treatment resulting in benefit to agriculture or ecological improvement; and, R11, uses of residual materials obtained from any of the operations numbered R1-R10.
When the notification document lists an R12/R13 recovery facility, we are proposing that the exporter must indicate in the same notification document the recovery facility or facilities where the subsequent R1-R11 recovery operation takes place or may take place
fit to agriculture or ecological improvement; and, R11, uses of residual materials obtained from any of the operations numbered R1-R10.
When the notification document lists an R12/R13 recovery facility, we are proposing that the exporter must indicate in the same notification document the recovery facility or facilities where the subsequent R1-R11 recovery operation takes place or may take place.
The R12/R13 recovery facility shall certify the receipt of the hazardous waste by sending a copy of the duly completed movement document within three (3) working days of the receipt of such wastes to the exporter and all competent authorities concerned. In addition, the R12/R13 recovery facility must retain the original movement document for three (3) years. Similarly, the R12/R13 recovery facility has to certify the completion of the R12/R13 recovery operation by submitting a certificate of recovery as soon as possible, but no later than thirty (30) days after the completion of the R12/R13 recovery operation at that facility and no later than one (1) calendar year following the receipt of the waste by the R12/R13 recovery facility. The R12/R13 recovery facility must send the certificate of recovery to the exporter and to the competent authorities of the countries of export and import by either mail, e-mail followed by mail, or by fax followed by mail.
The control procedures applied to transboundary movements of hazardous waste from an R12/R13 recovery facility to a subsequent R1-R11 recovery facility vary depending on whether these facilities are located within the same Member country or in a different Member country.
When the subsequent R1-R11 recovery facility is located within the same country, we are proposing that the R12/R13 recovery facility must obtain from the subsequent R1-R11 recovery facility a certification that the “final” recovery of the hazardous waste at that facility has been completed within one (1) calendar year following the delivery of the hazardous waste to the R1-R11 facility
country.
When the subsequent R1-R11 recovery facility is located within the same country, we are proposing that the R12/R13 recovery facility must obtain from the subsequent R1-R11 recovery facility a certification that the “final” recovery of the hazardous waste at that facility has been completed within one (1) calendar year following the delivery of the hazardous waste to the R1-R11 facility. The format of the certification of recovery is not fixed, but it must, at a minimum, identify the code number of the notification document and serial number of the movement documents to which it pertains. The R12/R13 recovery facility must then transmit the certification document prepared by the R1-R11 recovery facility to the competent authorities of the countries of import and export as soon as possible, but no later than one (1) calendar year following the delivery of the hazardous waste to the R1-R11 recovery facility.
When the subsequent R1-R11 facility is not located in the same Member country as the R12/R13 facility, we are proposing that a new notification must be made for the transboundary movement of hazardous waste by the R12/R13 recovery facility. The applicable procedures differ, however, depending upon the country where the final recovery operation occurs. In particular, if the final R1-R11 recovery facility is located in the initial country of export, then the normal Amber control procedures shall apply. In this case, the R12/R13 facility must submit a new notification document to its competent authority and obtain consent from its competent authority and from the initial country of export to the export of the hazardous waste back to that country for final recovery. If, however, the final R1-R11 recovery facility is located in a country different from the initial country of export, then the Amber control procedures shall also apply, but the movement will in effect be treated as a “re-export” of waste to a third country
m its competent authority and from the initial country of export to the export of the hazardous waste back to that country for final recovery. If, however, the final R1-R11 recovery facility is located in a country different from the initial country of export, then the Amber control procedures shall also apply, but the movement will in effect be treated as a “re-export” of waste to a third country. In this case, not only is a new notification document required, but the competent authority of the initial country of export must also be notified of the transboundary movement, and consent must be obtained from the original country of export and the new countries of import,
This proposed rule incorporates all of these requirements in § 262.82(f).
9. New Provisions Regarding Mixtures of Hazardous Wastes
The Amended 2001 OECD Decision contains controls and provisions related to the mixture of hazardous waste. Specifically, the Amended 2001 OECD Decision defines a mixture of hazardous waste as one that results from the intentional or unintentional mixing of two or more different hazardous wastes. However, under the Amended 2001 OECD Decision, a single shipment of hazardous wastes, consisting of two or more wastes, where each is separated, is not considered a mixture of hazardous waste.
The Amended 2001 OECD Decision also provides that:
• A mixture of two or more Green wastes should be subject to the Green control procedures. However, the regulated community should be aware that some OECD Member countries may require, by domestic law, that mixtures of different Green wastes be subject to the Amber control procedures.
• A mixture consisting of a Green waste and more than a “de minimis” amount of Amber waste is subject to the Amber control procedures. In the absence of internationally accepted criteria, the term “de minimis” should be defined according to national regulations and procedures.
• A mixture containing two or more Amber wastes is subject to the Amber control procedures
e Amber control procedures.
• A mixture consisting of a Green waste and more than a “de minimis” amount of Amber waste is subject to the Amber control procedures. In the absence of internationally accepted criteria, the term “de minimis” should be defined according to national regulations and procedures.
• A mixture containing two or more Amber wastes is subject to the Amber control procedures.
In this proposed rule, EPA has revised the text in § 262.82(a) to clarify that only those wastes and waste mixtures considered hazardous under U.S. national regulations will be subject to the Amber control procedures within the United States. This is consistent with longstanding EPA policy, and should minimize confusion for the regulated community. For example, under the existing RCRA hazardous waste regulations, any mixture of an Amber waste that exhibits one or more of the hazardous characteristics of ignitability, corrosivity, reactivity, or toxicity under RCRA with a Green waste shall be considered an Amber waste if the mixture still exhibits one or more of the RCRA hazardous waste characteristics and, thus, be subject to the Amber control procedures. Conversely, if the resulting mixture no longer exhibits one or more of the RCRA hazardous characteristics, it will instead be considered a Green waste, and be subject to the Green control procedures.
Because other OECD Member countries may require that the mixtures listed above (that the U.S. sometimes considers subject to the Green control procedures) be subject to Amber control procedures, the proposed rule includes notes stating that other OECD Member countries may subject such mixtures to the Amber control procedures. In such cases, U.S. importers and exporters should be prepared to follow the Amber control procedures within those OECD Member countries
s listed above (that the U.S. sometimes considers subject to the Green control procedures) be subject to Amber control procedures, the proposed rule includes notes stating that other OECD Member countries may subject such mixtures to the Amber control procedures. In such cases, U.S. importers and exporters should be prepared to follow the Amber control procedures within those OECD Member countries.
Finally, the Amended 2001 OECD Decision requires that notification for a transboundary movement of a mixture of hazardous wastes falling under the Amber control procedures should be made by the person performing the mixing activity (the generator of the mixture) or any other person acting as an exporter in place of the person performing the mixing activity. In the notification, relevant information on each fraction of the waste, including its code numbers, has to be given in order of importance. This proposed rule would impose these requirements.
10. New Provisions Regarding the Return and Re-Export of Hazardous Wastes Subject to the Amber Control Procedures
This proposed rule proposes to adopt the Amended 2001 OECD Decision's more precise provisions (than the earlier 1992 Decision) on measures to be taken in case a transboundary movement of hazardous waste that is subject to the Amber control procedures cannot be completed as intended (e.g., not in accordance with the notification, consents given by the competent authorities, or the terms of the contract). There may be a number of reasons for this non-completion, for example, an accident during the transport of the waste, improper notification, or any illegal action taken by someone involved with the movement of the hazardous waste.
The Amended 2001 OECD Decision provides that if this uncompleted movement of hazardous waste (hereafter referred to as the “incident”), takes place in the country of import, the competent authority of that country shall immediately inform the competent authority of the country of export
proper notification, or any illegal action taken by someone involved with the movement of the hazardous waste.
The Amended 2001 OECD Decision provides that if this uncompleted movement of hazardous waste (hereafter referred to as the “incident”), takes place in the country of import, the competent authority of that country shall immediately inform the competent authority of the country of export. The competent authorities of the concerned countries are to cooperate in resolving the incident by making all necessary arrangements to ensure the best alternative management of the hazardous waste. If alternative arrangements cannot be made to recover these wastes in an environmentally sound manner in the country of import, the hazardous waste must be returned to the country of export or re-exported to a third country.
(a) Return of Hazardous Waste to Country of Export
Under the Amended 2001 OECD Decision, the return of the hazardous waste to the country of export is to take place within ninety (90) days from the time when the country of export was informed of the incident, or such other period of time to which all concerned countries agree. The competent authorities of both countries of export and transit (if applicable) are to be informed about the return of the hazardous waste and the reasons for its return. These authorities are prohibited from opposing or preventing the return of the hazardous waste to the country of export, so long as the movement complies with the requirements set out by the country of export's domestic law. If the waste is returned through a new country of transit, the competent authority of that country is to be notified and consent obtained in accordance with the normal Amber control procedures.
re prohibited from opposing or preventing the return of the hazardous waste to the country of export, so long as the movement complies with the requirements set out by the country of export's domestic law. If the waste is returned through a new country of transit, the competent authority of that country is to be notified and consent obtained in accordance with the normal Amber control procedures.
(b) Re-Export of Hazardous Waste From the Country of Import to a Third Country
Under the Amended 2001 OECD Decision, the re-export from the country of import to a third country is considered a new transboundary movement of hazardous waste. As a result, the Amber control procedures are applicable. The initial importer becomes the new exporter and, consequently, assumes all responsibilities as an exporter. In addition, the notification must also include the competent authority of the initial country of export who, in accordance with the Amber control procedures, may object to the re-export if the movement does not comply with the requirements set out by its domestic law.
(c) Return of Hazardous Waste From Country of Transit to Country of Export
If the incident takes place in the country of transit, the exporter should make arrangements so that the hazardous waste still can be recovered in an environmentally sound manner in the recovery facility of the importing country to where it was originally
11. SLABs Are Now Covered by EPA's OECD Rule
This proposed rule updates § 262.80(a) to reflect that export shipments of SLABs being managed under 40 CFR part 266, subpart G that are destined for recovery in one of the OECD countries listed in § 262.58(a)(1) are subject to 40 CFR part 262, subpart H.
12. Technical Corrections to EPA's OECD Rule
This proposed rule makes several technical corrections to EPA's current OECD rule, including corrections to capitalization, syntax, and punctuation errors
rt shipments of SLABs being managed under 40 CFR part 266, subpart G that are destined for recovery in one of the OECD countries listed in § 262.58(a)(1) are subject to 40 CFR part 262, subpart H.
12. Technical Corrections to EPA's OECD Rule
This proposed rule makes several technical corrections to EPA's current OECD rule, including corrections to capitalization, syntax, and punctuation errors. In these changes, EPA is not making any substantive revisions, but is seeking to eliminate any confusion on the part of the regulated community by striving for consistency both within the regulations and with the terms of the Amended 2001 OECD Decision. Some prevalent examples of these types of revisions include changing “Subpart” to “subpart,” “OECD member” to “OECD Member,” and “thirty days” to “thirty (30) days.”
13. Change to the Submittal Address for Exception Reports
This proposed rule amends the exception reporting requirements in § 262.87(b) to specify that all exception reports are to be submitted to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC rather than the Administrator.
D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)
This proposed rule also amends §§ 264.12(a)(2) and 265.12(a)(2) by, among other things, requiring owners or operators of recovery facilities to submit a certificate of recovery as soon as possible after the recovery is completed, but no later than thirty (30) days after the completion of recovery and no later than one (1) calendar year following the receipt of the hazardous waste.
E
5.12(a)(2)
This proposed rule also amends §§ 264.12(a)(2) and 265.12(a)(2) by, among other things, requiring owners or operators of recovery facilities to submit a certificate of recovery as soon as possible after the recovery is completed, but no later than thirty (30) days after the completion of recovery and no later than one (1) calendar year following the receipt of the hazardous waste.
E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)
This proposed rule also amends §§ 264.71(a)(3) and 265.71(a)(3) by requiring owners or operators of facilities receiving imported hazardous wastes to submit to EPA the written documentation of EPA's consent to the import along with a copy of the RCRA hazardous waste manifest for the shipment that they are currently required to submit to EPA within thirty (30) days of shipment delivery. This will enable EPA to match the individual shipment manifest to the consent for an annual notice from a foreign exporter.
F. Changes to 40 CFR 266.80(a)
The existing regulations at 40 CFR part 266, subpart G, “Spent Lead-Acid Batteries Being Reclaimed,” exempt exporters of SLABs destined for reclamation from the export requirements of 40 CFR part 262. EPA proposes to amend the table located at 40 CFR 266.80 by including two additional rows to the current table. These additional rows will effectively require that exporters and transporters of SLABs being sent to a foreign country for reclamation will need to meet the universal waste requirements concerning the export of SLABs for reclamation
ation from the export requirements of 40 CFR part 262. EPA proposes to amend the table located at 40 CFR 266.80 by including two additional rows to the current table. These additional rows will effectively require that exporters and transporters of SLABs being sent to a foreign country for reclamation will need to meet the universal waste requirements concerning the export of SLABs for reclamation.
Specifically, exporters would need to either comply with the requirements in 40 CFR part 262, subpart H when the shipments are destined to one of the OECD Member countries listed in § 262.58(a)(1), or with the following requirements when the shipments are destined for any country not listed in § 262.58(a)(1):
• Comply with the requirements applicable to a primary exporter in 40 CFR 262.53, 262.56(a)(1) through (4), (6), and (b) and 262.57;
• Export such SLABs only upon consent of the receiving country and in conformance with the EPA Acknowledgement of Consent as defined in subpart E of 40 CFR part 262 of this chapter; and
• Provide a copy of the EPA Acknowledgment of Consent for the shipment to the transporter transporting the shipment for export.
The transporter of SLABs being sent to a foreign country for reclamation would need to comply with the applicable requirements in 40 CFR part 262, subpart H when the shipments are destined to one of the OECD Member countries listed in § 262.58(a)(1). For export shipments of SLABs not destined for one of the OECD Member countries listed in § 262.58(a)(1), the transporter would not be able to accept a shipment if the transporter knows the shipment does not conform to the EPA Acknowledgment of Consent, and would have to ensure that:
• A copy of the EPA Acknowledgment of Consent accompanies the shipment; and
• The shipment is delivered to the foreign facility designated by the person initiating the shipment
mber countries listed in § 262.58(a)(1), the transporter would not be able to accept a shipment if the transporter knows the shipment does not conform to the EPA Acknowledgment of Consent, and would have to ensure that:
• A copy of the EPA Acknowledgment of Consent accompanies the shipment; and
• The shipment is delivered to the foreign facility designated by the person initiating the shipment.
EPA proposes to amend the table located at 40 CFR 266.80 in order to ensure greater protection of human health and the environment through notification, tracking, and management of SLABs. In addition to harmonizing the RCRA hazardous waste regulations for SLABs with the notification and consent requirements in the RCRA universal waste rules, today's proposed rule would harmonize the export requirements for SLABs with the Amended 2001 OECD Decision and the Basel Convention. (Note that the exemption from the manifest requirements for exporters and transporters of SLABs for reclamation will continue to remain in effect.)
The table located at 40 CFR 266.80 describes the various kinds of SLAB handlers and their respective legal requirements. Some SLAB handlers may find that more than one description located in the table applies to their SLAB management activities. It is the SLAB handler's responsibility to read all seven descriptions and carefully consider any and all requirements which may apply.
1. Export Shipments of SLABs to OECD Member Countries
We are proposing that exporters and transporters of SLABs destined for reclamation in one of the OECD Member countries listed in § 262.58(a)(1) would have to comply with all applicable sections of 40 CFR part 262, subpart H for wastes subject to the Amber control procedures. For a complete listing of the proposed requirements, exporters and transporters should consult the regulatory text for 40 CFR part 262, subpart H in this proposal. In addition
SLABs destined for reclamation in one of the OECD Member countries listed in § 262.58(a)(1) would have to comply with all applicable sections of 40 CFR part 262, subpart H for wastes subject to the Amber control procedures. For a complete listing of the proposed requirements, exporters and transporters should consult the regulatory text for 40 CFR part 262, subpart H in this proposal. In addition
(a) Notification of Intent To Export
Exporters of SLABs destined for reclamation would be required to comply with the Amber control procedures in § 262.83. Under the Amber control procedures, an exporter must submit a complete notification of its intent to export to EPA at least 45 days before the export is scheduled to leave the United States (or at least ten days if the shipment is going to a pre-approved facility in the country of import). The notification can cover export activities spanning a period of up to and including 12 months (or up to three years if the shipment is going to a pre-approved facility in the country of import).
A complete notification includes, but is not limited to:
• Contact information and EPA ID number (if applicable) for the exporter;
• Point of departure from country of export;
• A waste description and quantity of the hazardous waste being exported;
• The RCRA waste code(s) (if applicable), United Nations number, and OECD waste code for the hazardous waste (SLABs are classified as Amber waste A1160 under the Amended 2001 OECD Decision);
• Planned mode(s) of transportation;
• Contact information for all intended transporters;
• Contact information and the OECD recovery operation code(s) (e.g., R1-R13) for both the importer and the final recovery facility (if different sites);
• The requested period of exportation;
• A list of all transit countries, along with points of entry and departure, through which the hazardous waste will be sent, and
• A certification by the exporter that a contract or chain of contracts or equivalent arrangements among all parties to the pr
code(s) (e.g., R1-R13) for both the importer and the final recovery facility (if different sites);
• The requested period of exportation;
• A list of all transit countries, along with points of entry and departure, through which the hazardous waste will be sent, and
• A certification by the exporter that a contract or chain of contracts or equivalent arrangements among all parties to the proposed shipment are in place and are legally enforceable in all concerned countries.
If the notification is complete, EPA will forward it to the importing country and any transit country(ies). Within three working days of receiving the notification, the importing country must send either an Acknowledgement of Receipt or a list of items that the notification lacks directly to U.S. EPA, to the exporter, and to any countries of transit. The countries of import and transit have thirty (30) days from the date on the Acknowledgement of Receipt (seven days for shipments going to pre-approved facilities) to object or consent explicitly to the proposed shipment. Any explicit objection or consent by the country of import or transit will be sent simultaneously to U.S. EPA, the exporter, and any other interested country (e.g., of import or transit). If no objections are submitted within the thirty day (30) period (seven days for shipments going to pre-approved facilities), under the provisions of the Amended 2001 OECD Decision, tacit (or implied) consent is assumed and the movement of the hazardous wastes may commence.
ransit will be sent simultaneously to U.S. EPA, the exporter, and any other interested country (e.g., of import or transit). If no objections are submitted within the thirty day (30) period (seven days for shipments going to pre-approved facilities), under the provisions of the Amended 2001 OECD Decision, tacit (or implied) consent is assumed and the movement of the hazardous wastes may commence.
(b) Shipment Tracking
Under § 262.84, export shipments of SLABs must be accompanied by a movement document from the initiation of the shipment until it reaches the final recovery facility. Exporters must provide the initial transporter with the movement document. Transporters are prohibited from accepting a shipment of SLABs without such a movement document, and are required to ensure that the movement document accompanies the shipment from the initiation of the shipment until it reaches the final recovery facility. The movement document must include all the information from the notification and the following:
• Date movement commenced;
• Name (if not the exporter), address, telephone and fax numbers, and e-mail of person originating the movement document (Note that this person is equivalent to the primary exporter under 40 CFR part 262, subpart E);
• Company name and EPA ID number (if applicable) of all transporters;
• Identification (license, registered name or registration number) of means of transport, including types of packaging envisaged;
• Any special precautions to be taken by transporter(s) during transportation;
• Certification/declaration signed by the exporter that no objection to the shipment has been lodged; and
• Appropriate signatures for each custody transfer (e.g., transporter, importer, and owner or operator of the recovery facility).
tration number) of means of transport, including types of packaging envisaged;
• Any special precautions to be taken by transporter(s) during transportation;
• Certification/declaration signed by the exporter that no objection to the shipment has been lodged; and
• Appropriate signatures for each custody transfer (e.g., transporter, importer, and owner or operator of the recovery facility).
(c) Annual Reporting
Under § 262.87(a), any person exporting SLABs who meets the definition of primary exporter in § 262.51 or who initiates the movement documentation under § 262.84 will have to submit to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC, an annual report summarizing the types, quantities, frequency, and ultimate destination of all SLABs exported during the previous calendar year. Reports are due by March 1st of every year.
(d) Exception Reporting
Under § 262.87(b), any person exporting SLABs who meets the definition of primary exporter in § 262.51 or who initiates the movement documentation under § 262.84 must file an exception report with the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division (2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, if any of the following occurs:
• He has not received a copy of the RCRA hazardous waste manifest signed by the transporter and noting the date and point of departure of the waste from the United States, within forty-five (45) days from the date it was accepted by the initial transporter;
• Within ninety (90) days from the date the waste was accepted by the initial transporter, the exporter has not received written confirmation from the recovery facility that the hazardous waste was received;
• The waste is returned to the United States.
point of departure of the waste from the United States, within forty-five (45) days from the date it was accepted by the initial transporter;
• Within ninety (90) days from the date the waste was accepted by the initial transporter, the exporter has not received written confirmation from the recovery facility that the hazardous waste was received;
• The waste is returned to the United States.
(e) Recordkeeping
Under § 262.87(c), any person exporting SLABs who meets the definition of primary exporter in § 262.51 or who initiates the movement documentation under § 262.84 must keep the following records:
• A copy of each notification of intent to export and all written consents obtained from the competent authorities of countries concerned (e.g., export, transit, and import) for a period of at least three (3) years from the date the hazardous waste was accepted by the initial transporter;
• A copy of each annual report for a period of at least three (3) years from the due date of the report;
• A copy of any exception reports and a copy of each confirmation of delivery (i.e., movement documentation) sent by the recovery facility to the exporter for at least three (3) years from the date the hazardous waste was accepted by the initial transporter or received by the recovery facility, whichever is applicable; and
• A copy of each confirmation of recovery sent by the recovery facility to the exporter for at least three (3) years from the date that the recovery facility completed the processing of the SLAB shipment.
2. Export Shipments of SLABs to Countries Not Listed in § 262.58(a)(1)
ardous waste was accepted by the initial transporter or received by the recovery facility, whichever is applicable; and
• A copy of each confirmation of recovery sent by the recovery facility to the exporter for at least three (3) years from the date that the recovery facility completed the processing of the SLAB shipment.
2. Export Shipments of SLABs to Countries Not Listed in § 262.58(a)(1)
(a) Notification of Intent To Export
We are proposing that exporters of SLABs destined for reclamation in countries not listed in § 262.58(a)(1) would be required to comply with the primary exporter notification requirements in § 262.53, and export the SLABs only upon consent of the receiving country and in conformance with the EPA Acknowledgement of Consent, as defined in 40 CFR part 262, subpart E. Specifically, the exporter would have to submit a complete notification of its intent to export to EPA at least 60 days before the export is scheduled to leave the United States. The notification can cover export activities spanning a period of up to and including 12 months. This complete notification contains:
• Contact information and EPA ID number (if applicable) for the primary exporter;
• A description and quantity of the SLABs to be exported;
• The RCRA waste code(s) (if applicable), U.S. DOT proper shipping name, hazard class, and United Nations number as identified in 49 CFR parts 171 through 177;
• Planned mode(s) of transportation and type(s) of containers;
• A description of the manner in which the SLABs will be treated, stored, or disposed of (including recovery) in the receiving country;
• The planned frequency and time period of exportation;
• A list of all transit countries through which the SLABs will be sent, and a description of the approximate length of time the hazardous waste will remain in each country and the nature of its handling while there;
• All points of entry to and departure from each foreign country through which the SLABs will pass; and
• The name and site address of the
equency and time period of exportation;
• A list of all transit countries through which the SLABs will be sent, and a description of the approximate length of time the hazardous waste will remain in each country and the nature of its handling while there;
• All points of entry to and departure from each foreign country through which the SLABs will pass; and
• The name and site address of the consignee 15 and any alternate consignee.
15 As noted previously, this is equivalent to “importer” in the proposed revisions to 40 CFR part 262, subpart H.
If after proper notification, the receiving country consents to the receipt of the hazardous waste, EPA will forward an EPA Acknowledgment of Consent to the exporter. If, on the other hand, the receiving country objects to the receipt of the hazardous waste or withdraws a prior consent, EPA will notify the exporter in writing. EPA will also notify the exporter of any responses from transit countries.
(b) Shipment Documentation and Tracking
We are proposing that exporters of SLABs must provide a copy of the EPA Acknowledgment of Consent for the SLAB shipment to the transporter transporting the shipment for export. Transporters are prohibited from accepting a SLAB export shipment if the transporter knows the shipment does not conform to the EPA Acknowledgment of Consent. In addition the transporter must ensure that:
• A copy of the EPA Acknowledgment of Consent accompanies the SLAB export shipment; and
• The SLAB export shipment is delivered to the facility designated by the person initiating the shipment.
Unlike SLAB export shipments that must comply with 40 CFR part 262, subpart H, SLAB export shipments destined for countries not listed in § 252.58(a)(1) do not have any shipment tracking documentation requirements or exception reporting requirements because SLAB shipments are exempt from the RCRA hazardous waste manifest requirements.
e facility designated by the person initiating the shipment.
Unlike SLAB export shipments that must comply with 40 CFR part 262, subpart H, SLAB export shipments destined for countries not listed in § 252.58(a)(1) do not have any shipment tracking documentation requirements or exception reporting requirements because SLAB shipments are exempt from the RCRA hazardous waste manifest requirements.
(c) Annual Reporting
We are proposing that exporters of SLABs must follow the requirements applicable to a primary exporter detailed in § 262.56 “Annual reports” (a)(1) through (4), (6), and (b). Specifically, exporters will have to file with the EPA Administrator an annual report summarizing the types, quantities, frequency, and ultimate destination of all SLABs exported during the previous calendar year. Reports are due by March 1st of every year.
(d) Recordkeeping
Under § 262.57, we are proposing that exporters of SLABs must keep the following records:
• A copy of each notification of intent to export for at least three years from the date the SLAB export shipment was accepted by the initial transporter;
• A copy of each EPA Acknowledgment of Consent for at least three years from the date the SLAB export shipment was accepted by the initial transporter;
• A copy of each confirmation of delivery of the SLAB shipment from the consignee for at least three years from the date the SLAB export shipment was accepted by the initial transporter; and
• A copy of each annual report for at least three years from the due date of the report.
G. Changes to 40 CFR 271.1
This proposed rule amends Table 1 and Table 2 of § 271.1 by adding references to the revisions which amend 40 CFR part 262, subpart E to reflect that subpart E implements the Hazardous and Solid Waste Amendments of 1984.
IV. Costs and Benefits of the Proposed Rule
A. Introduction
The value of any regulatory action is traditionally measured by the net change in social welfare that it generates
his proposed rule amends Table 1 and Table 2 of § 271.1 by adding references to the revisions which amend 40 CFR part 262, subpart E to reflect that subpart E implements the Hazardous and Solid Waste Amendments of 1984.
IV. Costs and Benefits of the Proposed Rule
A. Introduction
The value of any regulatory action is traditionally measured by the net change in social welfare that it generates. The Agency's economic assessment conducted in support of this proposed action evaluates costs, cost savings, benefits, and other impacts, such as environmental justice, children's health, unfunded mandates, regulatory takings, and small entity impacts. To conduct this analysis, we developed and implemented a methodology for examining impacts, and followed appropriate guidelines and procedures for examining equity considerations, children's health, and other impacts.
B. Analytical Scope
This analysis assesses the proposed integration of various OECD Council Decisions into existing U.S. regulations governing shipments (export/import/transit) of hazardous wastes destined for recovery between the U.S. and other OECD Member countries. In addition, we assess the newly proposed export regulations for SLABs to OECD and non-OECD countries. Also incorporated into the analysis is the proposed requirements that importers of hazardous waste subject to 40 CFR part 262, subpart F, provide to the initial transporter documentation necessary to confirm EPA's consent to the import to accompany such manifested import shipments, and that the receiving facility submit to EPA a copy of that documentation when it submits to EPA the RCRA hazardous waste manifest for the import shipment. Finally, this action proposes a revision to the current language in §§ 262.55 and 262.87(b) that will require exception reports to be submitted directly to the Director, International Compliance and Assurance Divisi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_E8-22536. Check the current official text before relying on it. Not legal advice.