Revisions to the Requirements for: Transboundary Shipments of Hazardous Wastes Between OECD Member Countries, Export Shipments of Spent Lead-Acid Batteries, Submitting Exception Reports for Export Shipments of Hazardous Wastes, and Imports of Hazardous Wastes, 1236-1262 [E9-31081]
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Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations
EPA has established a
docket for this action under Docket ID
No. EPA–HQ–RCRA–2005–0018. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the RCRA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution
Ave., 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, Materials Recovery and
Waste Management Division, Office of
Resource Conservation and Recovery
(5304P), Environmental Protection
Agency, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460; telephone
number: (703) 308–0005; fax number:
(703) 308–0514; e-mail address:
coughlan.laura@epa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 262, 263, 264, 265, 266,
and 271
[EPA–HQ–RCRA–2005–0018; FRL–9098–7]
RIN 2050–AE93
Revisions to the Requirements for:
Transboundary Shipments of
Hazardous Wastes Between OECD
Member Countries, Export Shipments
of Spent Lead-Acid Batteries,
Submitting Exception Reports for
Export Shipments of Hazardous
Wastes, and Imports of Hazardous
Wastes
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule amends certain
existing regulations promulgated under
the hazardous waste provisions of the
Resource Conservation and Recovery
Act (RCRA) regarding hazardous waste
exports from and imports into the
United States. Specifically, the
amendments implement recent changes
to the agreements concerning the
transboundary movement of hazardous
waste among countries belonging to the
Organization for Economic Cooperation
and Development (OECD), establish
notice and consent requirements for
spent lead-acid batteries intended for
reclamation in a foreign country, specify
that all exception reports concerning
hazardous waste exports be sent to the
International Compliance and
Assurance Division in the Office of
Enforcement and Compliance
Assurance’s Office of Federal Activities
in Washington, DC, and require U.S.
receiving facilities to match EPAprovided import consent documentation
to incoming hazardous waste import
shipments and to submit to EPA a copy
of the matched import consent
documentation and RCRA hazardous
waste manifest for each import
shipment.
DATES: This final rule is effective July 7,
2010. The incorporation by reference of
certain publications listed in the rule is
approved by the Director of the Federal
Register as of July 7, 2010.
I. General Information
A. Does This Final Rule Apply to Me?
B. List of Acronyms Used in This Final
Rule
C. What are the Statutory Authorities for
This Final Rule?
II. Background
A. OECD Revisions
B. SLAB Revisions
C. Exception Reports for Hazardous Waste
Exports
D. Documenting Hazardous Waste Import
Shipments
E. Proposed Rule
III. Summary of the Final Rule
A. Changes to 40 CFR 262.10(d)
B. Changes to 40 CFR Part 262, Subpart E
C. Changes to 40 CFR Part 262, Subpart H
D. Changes to 40 CFR 263.10(d)
E. Changes to 40 CFR 264.12(a)(2) and 40
CFR 265.12(a)(2)
F. Changes to 40 CFR 264.71(a)(3) and 40
CFR 265.71(a)(3)
G. Changes to 40 CFR 266.80(a)
H. Changes to 40 CFR 271.1
IV. Discussion of Comments Received in
Response to the Proposed Rulemaking
and the Agency’s Responses
A. OECD Revisions
B. SLAB Revisions
C. Export Exception Report Technical
Correction and Import Revisions
V. Future Rulemaking
VI. Costs and Benefits of the Final Rule
A. Introduction
B. Analytical Scope
C. Cost Impacts
D. Benefits
VII. State Authorization
A. Applicability of Rules in Authorized
States
B. Effect on State Authorization
VIII. 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
K. Congressional Review Act
I. General Information
A. Does This Final Rule Apply to Me?
1. OECD Revisions
The revisions regarding the OECD in
this final 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
OECD Member countries, except for
Mexico and Canada. Any transboundary
movement of hazardous wastes between
the United States and either Mexico or
Canada will continue to be governed (or
addressed) by their respective bilateral
agreements and applicable regulations.
Potentially affected entities may
include, but are not limited to:
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Industry sector
NAICS
Utilities .....................................................................................................................................................................................
Petroleum and Coal Products Manufacturing .........................................................................................................................
Chemical Manufacturing ..........................................................................................................................................................
Primary Metal Manufacturing ...................................................................................................................................................
Fabricated Metal Product Manufacturing ................................................................................................................................
Machinery Manufacturing ........................................................................................................................................................
Computer and Electronic Product Manufacturing ...................................................................................................................
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Industry sector
NAICS
Electrical Equipment, Appliance, and Component Manufacturing ..........................................................................................
Transportation Equipment Manufacturing ...............................................................................................................................
Miscellaneous Manufacturing ..................................................................................................................................................
Scrap and Waste Materials .....................................................................................................................................................
Material Recovery Facilities .....................................................................................................................................................
2. SLAB Revisions
The revisions regarding SLABs in this
final rule affect all persons who export
NAICS
Hazardous Waste Collectors ...................................................................................................................................................
Recyclable Material Hauling, Long-Distance ...........................................................................................................................
Batteries, Automotive, Merchant Wholesalers ........................................................................................................................
Lead-acid Storage Batteries, Manufacturing ...........................................................................................................................
Automotive Parts, Accessories, and Tire Stores .....................................................................................................................
Tire Dealers .............................................................................................................................................................................
All other General Merchandise Stores ....................................................................................................................................
New Car Dealers .....................................................................................................................................................................
Recyclable Material Wholesaler ..............................................................................................................................................
Other Waste Collection ............................................................................................................................................................
Recyclable Material Collection ................................................................................................................................................
Services, Solid Waste Collection Marinas ...............................................................................................................................
General Freight Trucking, Long-Distance, TL .........................................................................................................................
General Freight Trucking, Long-Distance, LTL .......................................................................................................................
Specialized Freight Trucking ...................................................................................................................................................
Freight Carriers (except air couriers), Air Scheduled ..............................................................................................................
Freight Charter Services, Air ...................................................................................................................................................
Freight Railways, Line-Haul .....................................................................................................................................................
Freight Transportation, Deep Sea, to and from Domestic Ports ............................................................................................
Freight Transportation, Deep Sea, to or from Foreign Ports ..................................................................................................
The exception report change to 40
CFR part 262, subpart E and subpart H
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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
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NAICS
Hazardous Waste Collectors ...................................................................................................................................................
Recyclable Material Wholesaler ..............................................................................................................................................
Other Waste Collection ............................................................................................................................................................
Recyclable Material Collection Services, Solid Waste Collection ...........................................................................................
Scrap and Waste Materials .....................................................................................................................................................
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Member countries, as well as in nonOECD countries. Potentially affected
entities may include, but are not limited
to:
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NAICS
Utilities .....................................................................................................................................................................................
Petroleum and Coal Products Manufacturing .........................................................................................................................
Chemical Manufacturing ..........................................................................................................................................................
Primary Metal Manufacturing ...................................................................................................................................................
Fabricated Metal Product Manufacturing ................................................................................................................................
Machinery Manufacturing ........................................................................................................................................................
Computer and Electronic Product Manufacturing ...................................................................................................................
Electrical Equipment, Appliance, and Component Manufacturing ..........................................................................................
Transportation Equipment Manufacturing ...............................................................................................................................
Miscellaneous Manufacturing ..................................................................................................................................................
Scrap and Waste Materials .....................................................................................................................................................
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of this final 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
4. Import Revisions
The revisions regarding imports in
this final rule affect all facilities
receiving imported hazardous waste
SIC
SLABs for reclamation in any foreign
country. Potentially affected entities
may include, but are not limited to:
Industry sector
3. Exception Report Revisions for
Exports Under Subparts E and H of 40
CFR Part 262
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336
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Industry sector
NAICS
Material Recovery Facilities .....................................................................................................................................................
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 final rule to a particular entity,
4953
consult the person listed in the
preceding section entitled FOR FURTHER
INFORMATION CONTACT.
B. List of Acronyms Used in This Final
Rule
Acronym
Meaning
BCI ........................................................
CBI ........................................................
CERCLA ...............................................
CFR ......................................................
EPA ......................................................
FR .........................................................
HSWA ...................................................
LAB .......................................................
NAICS ...................................................
NTTAA ..................................................
NAFTA ..................................................
OECD ...................................................
OMB .....................................................
OSWER ................................................
RCRA ...................................................
RFA ......................................................
SIC ........................................................
SLAB ....................................................
SBREFA ...............................................
TRI ........................................................
UMRA ...................................................
Battery Council International.
Confidential Business Information.
Comprehensive Environmental Response, Compensation, and Liability Act.
Code of Federal Regulations.
U.S. Environmental Protection Agency.
Federal Register.
Hazardous and Solid Waste Amendments.
Lead-Acid Battery.
North American Industrial Classification System.
National Technology Transfer and Advancement Act.
North American Free Trade Agreement.
Organization for Economic Cooperation and Development.
Office of Management and Budget.
Office of Solid Waste and Emergency Response.
Resource Conservation and Recovery Act.
Regulatory Flexibility Act.
Standard Industrial Classification.
Spent Lead-Acid Battery.
Small Business Regulatory Enforcement Fairness Act.
Toxics Release Inventory.
Unfunded Mandates Reform Act.
C. What Are the Statutory Authorities
for This Final Rule?
The authority to promulgate this rule
is found in sections 1006, 2002(a),
3001–3010, 3013, 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, 6912,
6921–6930, 6934, and 6938.
II. Background
A. OECD Revisions
1. What Is the OECD?
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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
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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 final 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 https://
www.oecd.org/infobycountry/.
2. What OECD Decisions Form the Basis
of the OECD Revisions in This Final
Rule?
The current RCRA regulations
regarding waste shipments destined for
recovery within the OECD are found in
40 CFR part 262, subpart H. These
regulations are based on the March 30,
1992, ‘‘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) that
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EPA then promulgated as a final rule
under RCRA on April 12, 1996 (61 FR
16289). Since that time, the OECD has
made a number of changes to the waste
shipment regime, necessitating changes
to the RCRA regulations.
On June 14, 2001, the OECD Council
amended the ‘‘Decision of the Council
C(92)39/FINAL Concerning the Control
of Transfrontier Movements of Wastes
Destined for Recovery’’ by adopting
‘‘Revision of Decision C(92)39/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 1 and to eliminate
duplicative activities between the two
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 172 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. A copy of the
convention text has been placed in the docket
established for this rulemaking. More information
on the Basel Convention may be found at https://
www.basel.int.
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international organizations as much as
practical. These changes include
revisions to the original established
framework (such as reducing the levels
of control from a three-tiered system to
a two-tiered system), while also adding
entirely new provisions (for example,
the new certificate of recovery
requirement). Subsequent to the 2001
OECD Decision, an addendum,
C(2001)107/ADD1 (hereafter referred to
as the 2001 OECD Addendum), which
consists of revised versions of the
notification and movement documents
and the instructions to complete them,
was adopted by the OECD Council on
February 28, 2002. The addendum was
incorporated into the 2001 OECD
Decision as section C of Appendix 8,
and the combined version was issued in
May 2002 as C(2001)107/FINAL. The
appendices of Decision C(2001)107/
Final were amended three times by
C(2004)20, C(2005)141, and
C(2008)156.2 The Decision, ‘‘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; C(2005)141 and
C(2008)156,’’ is hereinafter referred to as
the Amended 2001 OECD Decision.
B. SLAB Revisions
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1. What are SLABs?
Lead-acid batteries (LABs) 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.
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 (e.g., D008), and
the corrosivity characteristic for the
sulfuric acid electrolyte in the battery
(e.g., D001). For a full discussion of
SLAB composition and how SLABs are
managed, please see Sections II.B.1 and
II.B.2 of the proposed rule (73 FR
58393).
2. How Must a Business Manage SLABs
Intended for Domestic Recycling or
Disposal?
Businesses subject to the RCRA
hazardous waste regulations may choose
2 Copies of these amendments have been placed
in the docket established for this rulemaking.
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from three options for managing
hazardous waste spent lead-acid
batteries. They may manage the batteries
under the streamlined standards
specifically for SLABs found in 40 CFR
part 266, subpart G, the streamlined
Universal Wastes standards for all
hazardous waste batteries found in 40
CFR part 273, or the full Subtitle C
hazardous waste management
regulations found in 40 CFR parts 262–
265, 267, 268, and 270. For the complete
discussion of what these requirements
entail for disposal or recycling within
the United States, please see Section
II.B.3 of the proposed rule (73 FR
58394).
3. What Does a Business Have To Do
When Exporting SLABs for Recycling?
A company seeking to export SLABs
may choose from the same three
regulatory options described above. If
they choose to follow 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 are to be
exported to an OECD Member country
for recovery, the export requirements
(including notice and consent) in 40
CFR part 262, subpart H. The second
option would be for the export to follow
the full subtitle C hazardous waste
export regulations in 40 CFR part 262,
subparts E or H. Most likely, SLAB
exporters will choose to follow the
regulatory provisions specific to SLABs
in 40 CFR part 266, subpart G. Prior to
today’s rule, under part 266, SLABs that
were destined for reclamation were
exempt from the RCRA export
requirements in 40 CFR part 262,
subparts E and H (including the notice
and consent requirements). Today’s rule
adds export requirements to part 266
that mirror those that apply to universal
waste, as described later in this
preamble.
C. Exception Reports for Hazardous
Waste Exports
Prior to this final rule, under 40 CFR
part 262, subparts E and H, exception
reports were required to be submitted by
the exporter to the EPA Administrator if
any of the following occurred:
(1) The exporter did not receive a
copy of the RCRA hazardous waste
manifest (if applicable) signed by the
transporter identifying the 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;
(2) Within ninety (90) days from the
date the hazardous waste was accepted
by the initial transporter, the exporter
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did not receive written confirmation
from the recovery facility that the
hazardous waste was received;
(3) The hazardous waste was returned
to the United States.
D. Documenting Hazardous Waste
Import Shipments
Prior to this final rule, under
§§ 264.71(a)(3) and 265.71(a)(3), U.S.
receiving treatment, storage, and
disposal facilities (TSDFs) had to submit
a copy of the hazardous waste manifest
to EPA to document individual
hazardous waste import shipments
within 30 days of shipment delivery.
E. Proposed Rule
On October 6, 2008, EPA published a
Federal Register notice seeking
comment on proposed revisions to the
requirements regarding the export and
import of hazardous wastes from and
into the United States (see 73 FR 58388
and following pages). First, we proposed
to modify the requirements concerning
the transboundary movement of
hazardous waste destined for recovery
among Member countries to the OECD
in order to implement the Amended
2001 OECD Decision. The changes,
largely in 40 CFR part 262, subpart H,
included 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. Second, we
proposed to amend the regulations in 40
CFR part 266, subpart G regarding the
management of SLABs being reclaimed
to require notice and consent for those
batteries intended for reclamation in a
foreign country, mirroring the existing
export requirements for exports of
RCRA universal waste batteries, to
create a more uniform practice for
exporting SLABs for recovery under
RCRA. Third, we proposed a technical
correction in the exception reporting
requirements of §§ 262.55 and 262.87(b)
for hazardous waste exports to specify
that all exception reports submitted to
EPA be sent to the International
Compliance and Assurance Division in
the Office of Enforcement and
Compliance Assurance’s Office of
Federal Activities in Washington, DC
rather than to the Administrator to
ensure better oversight of return
shipments to the U.S. and compliance
with the exception reporting
requirements without any additional
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regulatory burden for U.S. exporters.
Fourth and last, we proposed to amend:
the hazardous waste import
requirements in 40 CFR part 262,
subpart F to require that U.S. importers
give the initial transporter a copy of the
EPA-provided documentation
confirming EPA’s consent to the import
of the hazardous waste when they
provide the RCRA hazardous waste
manifest; and, the import shipment
document submittal requirements in
§§ 264.71(a)(3) and 265.71(a)(3) to
require that the U.S. receiving facility
submit to EPA a copy of the EPA
consent documentation along with the
RCRA hazardous waste manifest within
thirty days of import shipment delivery.
Both proposed amendments were
intended to improve EPA’s oversight of
such imports. For a more detailed
description of the proposed revisions, as
well as the intended benefits of each
revision, please see Section I.D of the
proposed rule (73 FR 58390 and
following pages).
The Agency received four sets of
comments in response to its October 6,
2008 proposal. The more significant
comments on this proposal are
addressed later in this preamble, but all
are addressed in background documents
for today’s final rule, which are in the
docket. After considering all comments,
we are finalizing the revisions
substantially as proposed, with one
modification.
III. Summary of the Final Rule
A. Changes to 40 CFR 262.10(d)
This final rule updates § 262.10(d) to
reflect that export shipments of SLABs
being managed under 40 CFR part 266,
subpart G that are destined for recovery
in any of the OECD Member countries
listed in § 262.58(a)(1) are now subject
to 40 CFR part 262, subpart H. This
change is necessary to conform with the
scope in the updated § 262.80(a).
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B. Changes to 40 CFR Part 262,
Subpart E
This final rule amends the exception
reporting requirements in § 262.55 to
specify that all exception reports be
submitted to the International
Compliance and Assurance Division in
the Office of Enforcement and
Compliance Assurance’s Office of
Federal Activities in Washington, DC
rather than to the Administrator. In
addition, this rule 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 any of the
OECD Member countries listed in
§ 262.58(a)(1) are subject to the
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requirements of subpart H. Finally, this
rule 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.
C. Changes to 40 CFR Part 262,
Subpart H
All but the last three changes
discussed 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 final rule adopts the
following changes in terminology:
• ‘‘Transfrontier’’ to ‘‘transboundary’’;
• ‘‘Tracking document’’ to ‘‘movement
document’’;
• ‘‘Amber-list controls’’ to ‘‘Amber
control procedures’’;
• ‘‘Notifier’’ to ‘‘exporter’’; and
• ‘‘Consignee’’ to ‘‘importer.’’ 3
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-tiered waste list (Green,
Amber, and Red) system with a twotiered 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
3 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.
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Convention. Accordingly, we are
making 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. 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 are
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 when implementing the export and
import procedures. 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 twopart system is necessary to ensure that
wastes not yet explicitly listed under
the Basel Convention will continue to
have the same level of control applied
to them when destined for recovery
under the Amended 2001 OECD
Decision.
Both the Green waste list and the
Amber waste list are cited in § 262.89.
This rule amends § 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 new final § 262.89(b).
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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) previously
addressed the general notification
requirements for unlisted wastes.
Today’s rule renumbers this section as
§ 262.83(c) since the previous
§ 262.83(c) addressed ‘‘Red-list wastes,’’
which is no longer included in the final
rule. Today’s rule also replaces the term
‘‘unlisted wastes’’ with the phrase
‘‘wastes not covered in Appendices 3
and 4 of the OECD Decision,’’ 4 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.
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4. Transboundary Movements May Now
Qualify for a Laboratory Analysis
Exemption
The Amended 2001 OECD Decision
allows 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 (e.g., the existing controls
normally applied in commercial
transactions) if such samples are
destined for laboratory analyses to
assess its physical or chemical
characteristics, or to determine its
suitability for recovery operations, and
providing that the amount of the waste
samples qualifying for this exemption
are not more than the minimum
quantity reasonably needed to perform
the analyses adequately in each
particular case up to a maximum of
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.
This final rule allows waste samples
that are sent for laboratory analyses to
be controlled under the Green control
procedures, as opposed to the Amber
control procedures, provided they meet
4 Section 262.81 in the final 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;
C(2005)141 and C(2008)156’’ for the purposes of the
subpart.
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the same conditions as set forth in the
Amended 2001 OECD Decision.
U.S. exporters should be aware,
however, that even if their shipments
qualify for the laboratory analyses
exemption under U.S. domestic law,
some Member countries may elect to
still 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. Therefore, we recommend
that U.S. exporters 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 final rule implements 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 (i.e., exporter, country
of export, country of import),
documenting that recovery of the waste
has been completed. A valid certificate
of recovery is defined as a signed,
written and dated statement that affirms
that the waste was recovered in the
manner agreed to by the parties to the
contract.5 This final 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 the waste by the
recovery facility 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 final rule incorporates the
certificate of recovery provisions of the
Amended 2001 OECD Decision in
§ 262.83(e).
The Amended 2001 OECD Decision
states that the completion of block 19 of
the OECD movement document, and the
5 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.
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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
importing 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 Amended
2001 OECD Decision 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
U.S. 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 the Notification
Requirements
The Amended 2001 OECD Decision
introduced a series of notification
requirements that oblige EPA to make
conforming amendments to its
hazardous waste regulations.
Specifically, this final rule amends
§ 262.83(e) (which has been renumbered
as § 262.83(d)) by incorporating several
new items that must be included in the
notification, including:
• Exporter and importing recovery
facility e-mail address;
• E-mail address for importer (if
different from the importing recovery
facility);
• Address, telephone, fax, and e-mail
of intended transporter(s);
• Means of transport envisioned; and
• 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 and its predecessor, a preapproved 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 certain
hazardous waste imports under
simplified and accelerated notification
procedures. For these facilities, the
competent authority must inform the
OECD secretariat that the facility is preapproved, and the waste types that are
acceptable for recovery. Pre-approval
may be granted for a specific time frame
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and may be revoked at any time by the
relevant competent authority.
The Amended 2001 OECD Decision
established a time period for objection
to transboundary movements to preapproved facilities and lengthened the
allowable coverage period for
notifications. Specifically, the Decision
established a time period of seven (7)
working days during which the relevant
competent authorities may object to the
transboundary movements of waste to
pre-approved facilities. The Decision
also established that the allowable
coverage period for general notifications
(or the period of time for which consent
may be granted) may extend up to three
(3) years. Today’s final rule amends the
current regulations to incorporate these
changes in § 262.83(b)(2)(ii) to reflect
the seven (7) day time period and in
§ 262.83(b)(2)(i) to reflect the allowable
coverage period of up to three (3) years
for notifications.
8. New Procedures for the Pretreatment
of Hazardous Wastes at R12/R13
Recovery Facilities
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The final rule incorporates the
Amended 2001 OECD Decision’s new
requirements for R12 and R13 recovery
facilities. R12 and R13 recovery
facilities are transfer and storage/
accumulation facilities, respectively,
that do not recover the wastes
themselves. Because hazardous wastes
destined for recovery may have to
undergo treatment before a R1–R11 6
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 hazardous waste and
completes its recovery in an
environmentally sound manner.
Specifically, when the notification
document lists an R12/R13 recovery
facility, 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. In
6 Recovery operations R1 through R11 are defined
as follows: 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.
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addition, 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;
• Retain the original movement
document for three (3) years;
• 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; and
• 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 the
transboundary movement 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 Member country, the R12/R13
recovery facility must obtain from the
subsequent R1–R11 recovery facility a
certificate 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 certificate of recovery is not fixed,
but it must, at a minimum, identify the
code number of the notification
document and the 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, a new
notification must be made for the
transboundary movement of hazardous
waste by the R12/R13 recovery facility.
In addition, the applicable procedures
differ 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
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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
apply, but also 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,
export, and transit. For example, if a
hazardous waste is exported from the
United States to a R12/R13 facility in
France, and then will be sent to a
subsequent R1–R11 recovery facility in
Germany, the R12/R13 facility in France
must submit a notification to and obtain
consent from France (the new country of
export), the United States (the original
country of export) and Germany (the
new country of import for final
recovery).
The final 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
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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 final 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 the Amber
control procedures, the final 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 final rule imposes
these requirements in 40 CFR
262.82(a)(3).
10. New Provisions Regarding the
Return and Re-Export of Hazardous
Wastes Subject to the Amber Control
Procedures
This final rule adopts the Amended
2001 OECD Decision’s more precise
provisions (than the earlier 1992
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Decision) on measures to be taken in
case a transboundary movement of
hazardous waste is subject to the Amber
control procedures and 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
hazardous 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. 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 the
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, unless the
concerned countries agree to another
period of time. 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
country of transit, the competent
authority of that country is to be
notified and consent obtained in
accordance with the normal Amber
control procedures.
When the incident occurs in the
United States, the U.S. importer must
inform EPA of the need to return the
shipment. EPA will then inform the
countries of export and transit, citing
the reason(s) for returning the waste,
and request written consent to the
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return by any transit country as needed.
If the return shipment will cross any
transit country, the return shipment
may only occur after EPA provides a
copy of the transit country’s consent to
the U.S. importer. The U.S. importer
must complete the return within ninety
(90) days from the time EPA informs the
country of export of the need to return
the waste unless otherwise informed by
EPA in writing of an alternate timeframe
for the return.
When the incident involves an export
shipment from the United States, the
U.S. exporter must provide for the
return of the hazardous waste shipment
within ninety (90) days from the time
the country of import informs EPA of
the need to return the shipment unless
otherwise informed by EPA in writing of
an alternate timeframe for the return.
The U.S. exporter must also submit an
exception report to EPA.
(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 exporter of the hazardous waste 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. Re-export of a hazardous waste
shipment from the United States to a
third country may therefore only occur
after the importer (acting as the new
exporter) submits a notification to EPA
in compliance with the notice and
consent procedures of § 262.83 and
obtains consent from the original
country of export, the new country of
import, and any transit countries.
(c) Return of Hazardous Waste From the
Country of Transit to the 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
destined. The competent authority of
the country of transit is to immediately
inform the competent authorities of the
countries of export and import and any
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other countries of transit. If the exporter
is unable to arrange for the recovery of
the hazardous waste in an
environmentally sound manner at the
recovery facility to where it was
originally destined, the hazardous waste
should be returned, adhering to
subsection (a) above, to the country of
export within ninety (90) days from the
time when the country of export was
informed of the incident or such other
period of time as the concerned
countries agree. The competent
authorities of the country of export and
the countries of transit are to be
informed of the return, but they are
prohibited from opposing or preventing
the return of the hazardous wastes to the
country of export, so long as the
movement complies with the
requirements set out by the country of
export’s domestic law.
When the United States is the transit
country where the incident occurs, the
U.S. transporter must inform EPA of the
need to return the shipment. EPA will
then inform the country of export, citing
the reason(s) for returning the waste.
The U.S. transporter must then
complete the return within ninety (90)
days from the time EPA informs the
country of export of the need to return
the waste unless otherwise informed by
EPA in writing of an alternate timeframe
for the return.
When the waste shipment from the
incident originated in the United States,
the U.S. exporter must provide for the
return of the hazardous waste shipment
within ninety (90) days from the time
the country of transit informs EPA of the
need to return the shipment unless
otherwise informed by EPA in writing of
an alternate timeframe for the return.
The U.S. exporter must also submit an
exception report to EPA.
This final rule sets forth these reexport and return provisions of the
Amended 2001 OECD Decision in
§§ 262.82(c), 262.82(d), and 262.82(e).
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11. SLABs Are Now Covered by EPA’s
OECD Rule
This final rule updates § 262.80(a) and
§ 262.89(a) to reflect that export
shipments of SLABs being managed
under 40 CFR part 266, subpart G that
are destined for recovery in any of the
OECD Member 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 final 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
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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
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 final rule amends the exception
reporting requirements in § 262.87(b) to
specify that all exception reports are to
be submitted to the International
Compliance and Assurance Division in
the Office of Enforcement and
Compliance Assurance’s Office of
Federal Activities in Washington, DC
rather than the Administrator.
D. Changes to 40 CFR 263.10(d)
This final rule updates § 263.10(d) to
reflect that export shipments of SLABs
being managed under 40 CFR part 266,
subpart G that are destined for recovery
in any of the OECD Member countries
listed in § 262.58(a)(1) are now subject
to 40 CFR part 262, subpart H. This
change is necessary to conform with the
scope in the updated § 262.80(a).
E. Changes to 40 CFR 264.12(a)(2) and
40 CFR 265.12(a)(2)
This final rule 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. This change is
necessary to conform to the Amended
2001 OECD Decision.
F. Changes to 40 CFR 264.71(a)(3) and
40 CFR 265.71(a)(3)
This final rule 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 a
copy of the relevant written
documentation of EPA’s consent to the
import along with a copy of the RCRA
hazardous waste manifest for the
incoming shipment 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.
G. Changes to 40 CFR 266.80(a)
EPA is amending the table located at
40 CFR 266.80 by including two
additional rows to the current table.
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These additional rows contain the new
provisions that require exporters and
transporters of SLABs being sent to a
foreign country for reclamation to meet
the universal waste requirements
concerning the export of SLABs for
reclamation.
Specifically, exporters will need to
either comply with the requirements in
40 CFR part 262, subpart H when the
shipments are destined to any 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 will
need to comply with the applicable
requirements in 40 CFR part 262,
subpart H when the shipments are
destined to any of the OECD Member
countries listed in § 262.58(a)(1). For
export shipments of SLABs destined for
a country not listed in § 262.58(a)(1),
such as Canada or Mexico, the
transporter will not be able to accept a
shipment if the transporter knows the
shipment does not conform to the EPA
Acknowledgment of Consent, and will
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.
The new requirements at 40 CFR
266.80 will 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 final rule harmonizes the export
requirements for SLABs with the
Amended 2001 OECD Decision. (Note
that the exemption from the RCRA
hazardous waste manifest requirements
for exporters and transporters of SLABs
for reclamation will continue to remain
in effect, although SLAB shipments for
recovery to any of the OECD Member
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countries listed in § 262.58(a)(1) must be
accompanied by a movement document
per § 262.84 that is separate from the
RCRA hazardous waste manifest.)
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.
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1. Export Shipments of SLABs to OECD
Member Countries Listed in
§ 262.58(a)(1)
Exporters and transporters of SLABs
destined for reclamation in any of the
OECD Member countries listed in
§ 262.58(a)(1) will 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 final OECD
requirements, exporters and transporters
should consult the regulatory text for 40
CFR part 262, subpart H in this final
rule. In addition to the changes in
subpart H discussed in earlier sections,
the applicable Amber control
procedures include, but are not limited
to, the following:
(a) Notification of Intent To Export
Exporters of SLABs destined for
reclamation are required to comply with
the Amber control procedures in
§ 262.83. Under the Amber control
procedures, an exporter must submit a
complete notification to EPA of its
intent to export 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, depending on the procedures of
the importing country, if the shipment
is going to a pre-approved facility in the
country of import). Exporters may use
the OECD Notification form in
Appendix 8 of the Amended 2001 OECD
Decision, or whatever notification form
may be required by the country of
import, but are not required by EPA to
do so.
A complete notification includes, but
is not limited to:
• Contact information and the 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;
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• 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 the 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 final 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 preapproved 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.
The subsequent SLAB shipments
must be in accordance with the
information from the notification that
was reviewed and approved by the
receiving country in its consent. Any
changes to the information listed in the
notification, such as changes to
proposed total amounts to be exported
or the ports of entry to be used, would
require renotification and shipments
could not take place until either tacit or
written consent was obtained.
(b) Shipment Tracking
Under § 262.84, shipments of SLABs
that are exported must be accompanied
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1245
by a movement document from the
initiation of the shipment until it
reaches the final recovery facility. This
movement document is described in
§ 262.84 and is different from the RCRA
hazardous waste manifest. Exporters
may use the OECD Movement form in
Appendix 8 of the Amended 2001 OECD
Decision, or whatever movement form
may be required by the country of
import, but are not required by EPA to
use any particular form. 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, as
well as 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).
(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
document under § 262.84 will have to
submit to the International Compliance
and Assurance Division in 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
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document under § 262.84 must file an
exception report with the International
Compliance and Assurance Division in
the Office of Enforcement and
Compliance Assurance’s Office of
Federal Activities in Washington, DC, if
either of the following occurs:
• Within ninety (90) days from the
date the SLAB shipment was accepted
by the initial transporter, the exporter
has not received written confirmation
from the recovery facility that the SLAB
shipment was received; or
• The SLAB shipment 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
document 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
SLAB shipment 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 document) sent by the
recovery facility to the exporter for at
least three (3) years from the date the
SLAB shipment 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)
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(a) Notification of Intent To Export
Exporters of SLABs destined for
reclamation in countries not listed in
§ 262.58(a)(1), such as Canada or
Mexico, are required to comply with the
primary exporter notification
requirements in § 262.53, and may
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 has 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
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Jkt 220001
States. The notification can cover export
activities spanning a period of up to and
including 12 months. This complete
notification contains:
• Contact information and the 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
consignee 7 and any alternate consignee.
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.
The subsequent SLAB shipments
must be in accordance with the
information from the notification that
was reviewed and approved by the
receiving country in its consent. Any
changes to the information listed in the
notification (with the exception of
changes to the primary exporter’s
telephone number, the listed means of
transportation, or a decrease in the total
amount to be exported) would require
renotification and shipments could not
take place until the exporter received an
EPA Acknowledgement of Consent for
the renotification.
(b) Shipment Documentation and
Tracking
Exporters of SLABs must provide a
copy of the EPA Acknowledgment of
Consent for the SLAB shipment to the
7 As noted previously, this is equivalent to the
‘‘importer’’ in the final revisions to 40 CFR part 262,
subpart H.
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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 to
countries listed in § 262.58(a)(1) 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 they are exempt from the RCRA
hazardous waste manifest requirements
and are not required to comply with the
movement document requirements in
§ 262.84.
(c) Annual Reporting
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, 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; and
• A copy of each annual report for at
least three years from the due date of the
report.
H. Changes to 40 CFR 271.1
This final 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.
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IV. Discussion of Comments Received
in Response to the Proposed
Rulemaking and the Agency’s
Responses
The Agency received comments from
four entities: the Basel Action Network
(BAN), a nongovernmental organization
focused on the Basel Convention and in
particular on the issue of illegal trade in
hazardous wastes to developing
countries; the Association of Battery
Recyclers (ABR), a national trade
association representing the lead
recycling industry; Johnson Controls,
Inc. (JCI), a global supplier of batteries
to the automotive aftermarket and
original equipment manufacturers; and
Dow Chemical Company (DOW), a
global chemical manufacturer. The
comments were focused on specific
issues or provisions in the proposed
rule. To the extent that comments were
not submitted on various aspects or
provisions of the proposal, the Agency
is finalizing those portions of the
proposal, as-is, except in one case. That
exception is discussed in section C
below.
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A. OECD Revisions
BAN argued that EPA should subject
all wastes on the OECD amber list to
amber control procedures when being
exported regardless of whether the
materials are RCRA hazardous wastes.
This comment is outside the scope of
this rulemaking, as EPA did not propose
any changes to the fundamental
regulatory framework regarding the
applicability of the OECD provisions in
40 CFR part 262, subpart H (see Section
II.A.5 of the proposed rule at 73 FR
58393). Moreover, it is important to
recognize that the Amended 2001 OECD
Decision and its predecessor have long
recognized and allowed a Member
country to determine if a waste on an
OECD list is hazardous based on its
‘‘national procedures’’ (see Annex I,
Section II.4 of the ‘‘Decision of the
Council C(92)39/FINAL Concerning the
Control of Transfrontier Movements of
Wastes Destined for Recovery’’ and
Chapter II, Section B.4 of the Amended
2001 Decision). Discussion on how
RCRA implementation of ‘‘national
procedures’’ impacts transboundary
movements of wastes subject to the
RCRA exemptions, exclusions and
recycling provisions can be found in the
April 12, 1996, preamble to the original
OECD rule (61 FR 16290–16316). EPA is
therefore finalizing the scope of the
OECD provisions in subpart H, as
proposed.
BAN also commented that EPA
should prohibit all exports of OECD
amber listed wastes to non-OECD
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countries for any reason. ABR similarly
commented that EPA should prohibit all
exports of SLABs to non-OECD
countries. EPA cannot grant this request
since the statute does not give EPA the
legal authority to implement an outright
ban on hazardous waste exports.
Specifically, RCRA section 3017
prohibits exports of hazardous waste
unless either: (1) The shipments are
covered under and conform to the terms
specified in an agreement between the
U.S. and the receiving country; or (2)
the exporter has submitted written
notification to EPA, obtained written
consent from the receiving country via
EPA, attached a copy of the written
consent to the RCRA hazardous waste
manifest for each shipment, and ensures
that the shipments comply with the
terms of the receiving country’s consent.
Moreover, section 3017 directs the State
Department, on behalf of EPA, to
forward a copy of the notification to the
intended country of import within 30
days of EPA receiving a complete
notification concerning a proposed
waste export that would not be covered
under the terms of an existing
international agreement. Therefore, an
outright ban regarding all exports of any
individual hazardous waste (e.g. SLABs)
or all hazardous wastes to non-OECD
countries would require changes to the
statutory language and is outside the
scope of this regulatory action.
In practice, EPA has rarely received
inquiries for hazardous waste exports to
non-OECD countries. When approached
by potential exporters who ask about
exporting hazardous wastes to nonOECD countries that are, however,
parties to the Basel Convention, it is
EPA’s practice to actively discourage
such exports by informing them of the
Basel Convention prohibition on
transboundary shipments of hazardous
waste between Basel Parties and a nonParty like the United States in the
absence of a formal agreement per
Article 11 of the Basel Convention (e.g.,
the U.S.-Canada bilateral agreement, the
U.S.-Mexico bilateral agreement, or the
OECD multilateral agreement). The
United States has no agreement with a
non-OECD country for exports of RCRA
hazardous wastes. A review of
hazardous waste export notices between
1995–2007 indicates no approved or
even proposed exports of RCRA
hazardous waste to a non-OECD
country. In the interest of transparency,
however, EPA intends to post online at
https://www.epa.gov/epawaste/hazard/
international/hazard/index.htm
summary information for all future
notices we receive concerning a
proposed export of RCRA hazardous
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waste to a non-OECD country. The
online information will list the exporter
name, exporter address, waste text
description, proposed receiving country,
and consent status (e.g., notice
submitted to foreign country, whether
the foreign country consents or objects).
Moreover, EPA’s cover letters for notices
concerning exports to non-OECD
countries will remind the countries,
when appropriate, of the relevant Basel
hazardous waste listing and the Basel
Convention prohibition on
transboundary shipments of hazardous
waste between Basel Parties and a nonParty like the United States.
In another comment, BAN asserted
that EPA has not yet implemented the
1986 OECD Council DecisionRecommendation C(86)64(final) 8 (‘‘1986
OECD Decision-Recommendation’’), and
should do so immediately. This
comment is outside the scope of this
rulemaking, as EPA proposed revisions
to the OECD provisions to implement
the Amended 2001 OECD Decision.
Finally, BAN suggested that the U.S.
should simultaneously ratify the Basel
Convention and the Basel Ban
Amendment. However, ratification of
the Basel Convention, with or without
the Basel Ban Amendment, would
require Congressional action to provide
EPA the legislative authority to
implement either of these, and thus, is
outside the scope of this rulemaking.
Dow stated that it supported EPA
revising the existing regulations to
implement the Amended 2001 OECD
Decision, and that the revisions will
clarify and streamline the import and
export process among OECD Member
countries.
B. SLAB Revisions
Three of the commenters recognized
the need to require notification and
consent for SLABs being exported for
reclamation in a foreign country, and all
four commenters supported EPA
establishing the notice and consent
export requirements.
As part of ABR’s comment suggesting
that EPA ban all exports of SLABs to
non-OECD countries (which is
discussed in the previous section), ABR
submitted data that analyzed export
shipments of SLABs and other lead
scrap based on the harmonized tariff
code classifications between 2006–2008.
The data indicated shipments of lead
scrap and/or SLABs to non-OECD
8 ‘‘Decision-Recommendation of the Council on
Exports of Hazardous Wastes from the OECD area,’’
issued June 5, 1986. This document is available
online at https://webdomino1.oecd.org/horizontal/
oecdacts.nsf/linkto/C(86)64, and a copy has been
placed in the docket established for this
rulemaking.
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countries (e.g., China and India). ABR
asserted that this data demonstrates that
many exporters were mislabeling their
SLAB shipments as non-battery scrap,
and that EPA might be underestimating
the amount of SLABs that were exported
for reclamation between 2006–2008.
However, after reviewing the analysis
conducted by ABR, who generally
supports the proposed rule, we do not
believe that ABR’s data would lead to a
significantly different answer, and cause
EPA to reconsider its position. In
particular, ABR’s data indicated total
exports of SLABs and lead scrap were
approximately 220,000 metric tons in
2006 and approximately 250,000 metric
tons in 2007, with about 8% of the total
exports in 2006 going to non-OECD
countries. In comparison, EPA’s data on
SLAB exports estimated that 269,171
metric tons were exported in 2006, and
that 1.77% went to non-OECD
countries. Because the maximum annual
amount of SLABs exported between
2006–2007 based on ABR’s data is less
than the annual amount based on EPA’s
data, the Agency believes it most
appropriate that the data used in the
economic analysis for the proposed rule
should continue to be used, and not
revised to include the ABR data in the
economic analysis for the final rule. As
a general note, if anyone has specific
knowledge pertaining to specific export
shipments that they believe are in
violation of the RCRA hazardous waste
regulations, we encourage them to
submit it using EPA’s Web site at https://
www.epa.gov/compliance/complaints/
index.html.
ABR further commented that adding
export requirements to 40 CFR part 266,
subpart G that reference the 40 CFR part
262 requirements was confusing, and
instead recommended that EPA simply
require that all SLABs destined for
export to be managed as Universal
Waste batteries under 40 CFR part 273.
EPA does not agree that requiring all
SLABs that will be exported in the
future be managed under 40 CFR part
273 would be easier or less confusing.
EPA’s policy has long allowed collectors
and managers of SLABs destined for
recycling to choose either Part 273 or
Part 266 (see Section IV.B.2.b of the
1995 Final Universal Waste Rule at 60
FR 25504 and following pages). We
believe that having the same export
requirements for SLAB exports in 40
CFR part 273 and 40 CFR part 266,
subpart G is the most straightforward
approach to ensuring that SLAB exports
for reclamation are appropriately
controlled, and the references to
requirements in 40 CFR part 262 should
be no more confusing than the
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previously established references to 40
CFR parts 261 and 268. EPA is therefore
finalizing the 40 CFR part 266, subpart
G requirements as proposed.
JCI commented that a three-year time
period for notice and consent of exports
(as opposed to a one-year time period)
would reduce the burden on U.S.
exporters while still providing sufficient
notification to the importing country of
proposed shipments. While the
Amended 2001 OECD Decision does
allow importing countries to issue
extended consents that last for up to
three years when the proposed
shipment is destined for a facility that
the importing country has ‘‘preapproved’’ for such imports, OECD
countries are neither required to preapprove facilities nor to issue such
extended consents. The international
agreements covering exports from the
United States that are in place with
Canada, Mexico, and the OECD all
specify a one-year time period as the
standard maximum length of time that
a notification and consent can cover.
Consistent with those agreements and
with all other RCRA export regulatory
requirements in 40 CFR parts 261, 262
and 273, EPA is therefore retaining the
one-year time period for SLABs being
exported under 40 CFR part 266,
subpart G.
Dow made a general comment of
support for the revisions to the SLAB
regulations.
C. Export Exception Report Technical
Correction and Import Revisions
BAN and Dow both made a general
comment of support for the proposed
technical corrections regarding export
exception reports and import consent
documentation submissions, as
proposed. Therefore, EPA is finalizing
the technical corrections as proposed.
The final rule however, does not
include the proposed requirement in 40
CFR part 262, subpart F that RCRA
hazardous waste importers give a copy
of the EPA-provided import consent
documentation to the initial transporter
along with the RCRA hazardous waste
manifest.
According to longstanding EPA
policy, any party who helped arrange
for the importation (e.g., a broker, a
transporter, or the waste management
facility), may be considered an
importer.9 Because EPA’s consents are
currently communicated only to the
9 See June 25, 1985, memo from John H. Skinner,
Director of the Office of Solid Waste to Harry
Seraydarian, Director, Toxics and Waste
Management Division, EPA Region IX,
‘‘Determining Who Assumes Generator
Responsibilities for Importations of Hazardous
Waste.’’
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competent authority of the exporting
country, the proposal stated that EPA
would need to provide or otherwise
make available to U.S. importers the
documentation confirming the Agency’s
consent. We asked for comment in the
proposed rule on how best to provide
the consent documentation to the RCRA
importer, but received no comments on
this issue. Foreign notices we receive
regarding proposed imports of
hazardous waste do not generally
identify the party acting as the importer
under the RCRA regulations, but the
notices always have to list the foreign
generator, the waste to be imported, the
intended management of the waste, and
the U.S. TSDF that will dispose of or
recover the imported hazardous waste.
Since we should be able to reliably
identify the TSDF, and the TSDF should
have enough knowledge of their
individual customers and contracts to
match up the incoming shipment
manifests with the EPA-provided import
consent documentation, we have
decided to provide the import consent
documentation directly to the TSDF
listed on each consent document and
require each TSDF receiving hazardous
waste from a foreign source to send back
a copy of the relevant import consent
documentation along with a signed copy
of the RCRA hazardous waste manifest
within 30 days of delivery. Because
receiving facilities would have received
the consent documentation directly
under the proposal for those instances
when they were acting as the RCRA
importer of record, making this change
is a logical outgrowth of the proposal
and does not require a supplemental
notice.
V. Future Rulemaking
1. 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
country).
In order to accommodate changes in
OECD membership as quickly as
possible, EPA will publish in the
Federal Register any future
amendments to the list of OECD
Member countries set forth in
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§ 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.
2. 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 will publish a notice 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 waste list. Public
comment on such updates is
unnecessary, as EPA would have no
discretion to modify this list.
VI. Costs and Benefits of the Final 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
final 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 the impacts, and followed
appropriate guidelines and procedures
for examining equity considerations,
children’s health, and other impacts.
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B. Analytical Scope
This analysis assesses the final
integration of the Amended 2001 OECD
Decision into the existing U.S.
regulations governing shipments
(export/import/transit) of hazardous
wastes destined for recovery between
the U.S. and other OECD Member
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countries. In addition, we assess the
newly final export regulations for
SLABs to OECD and non-OECD
countries. Also incorporated into the
analysis is the requirement that a
receiving facility subject to 40 CFR parts
264 or 265 submit to EPA a copy of the
documentation confirming EPA’s
consent to the import when it submits
to EPA the RCRA hazardous waste
manifest for the import shipment of
hazardous waste. Finally, this action
revises the current language in §§ 262.55
and 262.87(b) to require exception
reports to be submitted directly to the
International Compliance and
Assurance Division in the Office of
Enforcement and Compliance
Assurance’s Office of Federal Activities
in Washington, DC, rather than to the
EPA Administrator. There is no
discernable cost impact associated with
this final requirement for exception
reports to be submitted directly to the
Director.
First, we assessed potential cost
impacts (positive and negative) of the
final revisions to the OECD rule,
including:
• Exemptions for wastes destined for
laboratory analyses,
• The requirement to provide a
certificate of recovery,
• Information collection requirements
associated with the exchange and
accumulation recovery operations, and
• The notification requirements
related to the return of wastes.
Next, we assessed potential cost
impacts (positive and negative) of the
final revisions to the SLAB regulations,
including:
• Notification requirements for SLAB
exporters,
• The renotification requirements
associated with any changes to the
original SLAB export notification,
• The annual reporting requirements,
• Additional reporting requirements
(if requested by EPA), and
• SLAB exporter recordkeeping
requirements.
Finally, we analyzed the final
requirements that a receiving facility
subject to 40 CFR parts 264 or 265
submit to EPA a copy of the
documentation confirming EPA’s
consent to the import when it submits
to EPA the RCRA hazardous waste
manifest for the import shipment of
hazardous waste.
We also included an estimate for
potentially affected entities to read the
regulation, which is, by default, a
necessary requirement for
understanding the regulation. Cost
impacts associated with reading the
regulation are assessed for exporters,
importers, and transporters.
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1249
C. Cost Impacts
The total incremental cost for the
OECD portion of the final rule during
the first year of implementation,
including reading the rule, is estimated
to be $14,494. This is a net impact
estimate that includes a total net
incremental cost increase to the
regulated community of $13,656, and a
total net cost increase to EPA of $838.
The total incremental annual net cost
for the OECD portion after the first year
of implementation, excluding reading
the rule, is estimated to be $9,700.
The total incremental cost for the
SLAB portion of the final rule during
the first year of implementation,
including reading the rule, is estimated
at $850,000. The first year total
incremental cost is expected to be about
$780,000 for the affected U.S. industry
and about $71,000 for EPA. The total
incremental annual cost after the first
year of implementation, excluding
reading the rule, is estimated to be
$400,000.
The combined total cost of the final
rule (OECD portion, plus SLAB portion,
plus import consent documentation
portion) is estimated at $910,000 for the
first year. Approximately 93% of this
total is attributable to the SLAB portion
of the rule, followed by the EPA import
consent documentation requirements
representing about 5% of the total. The
OECD portion accounts for less than 2%
of the total first year cost of the rule.
After the first year, the total incremental
cost of the final rulemaking is estimated
at $460,000.
Cost estimates presented in this
section are based on our estimates for
the number of potentially affected
importers, exporters, and transporters.
Numerous data sources were used in the
derivation of these estimates, including:
RCRAInfo, the Waste International
Tracking System (WITS), industry
consultations, the Biennial Report, the
International Trade Commission (ITC),
Environment Canada, and
SEMARNAT 10 data. A full explanation
of the data sources, analytical
methodology, assumptions, and
limitations associated with the findings
presented above is presented in our Cost
Assessment 11 document prepared in
support of this final action. This
document is available in the docket to
today’s rule.
10 Secretarıa de Medio Ambiente y Recursos
´
Naturales (SEMARNAT).
11 Cost Assessment for the Final Rule on Exports
and Imports of Hazardous Waste Destined for
Recovery Among OECD Countries, Exports of Spent
Lead-Acid Batteries from the U.S., and Import
Consent Documentation.
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D. Benefits
We have prepared a qualitative
assessment of the benefits anticipated
from this action. Overall, this action is
expected to result in improved
regulatory efficiency of the affected
materials, while ensuring improved data
collection and enhanced enforcement
capabilities. Specific benefits include
the following:
• Increasing regulatory efficiency by
implementing provisions in the
Amended 2001 OECD Decision that
were meant to clarify the scope of
control and make the control procedures
more precise;
• Helping to improve market
efficiency by allowing exporters to ship
wastes more quickly and store for
shorter periods of time;
• Encouraging the environmentally
sound recovery of hazardous wastes,
thereby reducing the risks associated
with treatment and disposal; and
• Providing for the improved ability
to acquire information regarding the
quantities of SLABs exported from the
U.S. and the destination facilities to
which the SLABs are exported.
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VII. State Authorization
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer their own hazardous waste
programs in lieu of the Federal program
within the State. Following
authorization, EPA retains enforcement
authority under sections 3008, 3013,
and 7003 of RCRA, although authorized
States have primary enforcement
responsibility. The standards and
requirements for State authorization are
found at 40 CFR part 271.
Prior to enactment of the Hazardous
and Solid Waste Amendments of 1984
(HSWA), a State with final RCRA
authorization administered its
hazardous waste program entirely in
lieu of EPA administering the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities in that
State, since only the State was
authorized to issue RCRA permits.
When new, more stringent Federal
requirements were promulgated, the
State was obligated to enact equivalent
authorities within specified time frames.
However, the new Federal requirements
did not take effect in an authorized State
until the State adopted the Federal
requirements as State law.
In contrast, under RCRA section
3006(g) (42 U.S.C. 6926(g)), which was
added by HSWA, new requirements and
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prohibitions imposed under HSWA
authority take effect in authorized States
at the same time that they take effect in
unauthorized States. EPA is directed by
the statute to implement these
requirements and prohibitions in
authorized States, including the
issuance of permits, until the State is
granted authorization to do so. While
States must still adopt more stringent
HSWA related provisions as State law to
retain final authorization, EPA
implements the HSWA provisions in
authorized States until the States do so.
Authorized States are required to
modify their programs only when EPA
enacts Federal requirements that are
more stringent than existing Federal
requirements. RCRA section 3009
allows the States to impose standards
more stringent than those in the Federal
program (see also 40 CFR 271.1).
Therefore, authorized States may, but
are not required to, adopt Federal
regulations, both HSWA and nonHSWA, that are considered less
stringent than previous Federal
regulations.
B. Effect on State Authorization
Because of the Federal government’s
special role in matters of foreign policy,
EPA does not authorize States to
administer Federal import/export
functions in any section of the RCRA
hazardous waste regulations. This
promotes national coordination,
uniformity and the expeditious
transmission of information between the
United States and foreign countries.
Although States do not receive
authorization to administer the Federal
government’s export functions in 40
CFR part 262, subpart E, import
functions in 40 CFR part 262, subpart F,
import/export functions in 40 CFR part
262, subpart H, or the import/export
related functions in any other section of
the RCRA hazardous waste regulations,
State programs are still required to
adopt those provisions in today’s rule
that are more stringent than existing
Federal requirements to maintain their
equivalency with the Federal program
(see for example, 40 CFR 271.10(e)).
Today’s rule contains many
amendments to 40 CFR part 262,
subpart H, a number of which are more
stringent. The rule also contains
amendments to § 262.10, § 262.55,
§ 262.58, § 263.10(d), § 264.12(a)(2),
§ 264.71, § 265.12(a)(2), and § 265.71,
almost all of which are more stringent.
The States that have adopted 40 CFR
part 262, subparts E and H, 40 CFR part
263, 40 CFR part 264 or 40 CFR part 265
must adopt the provisions listed above
that are more stringent. In addition,
States that have adopted management
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standards for spent lead-acid batteries
analogous to 40 CFR part 266, subpart
G must adopt the changes in today’s
rule which are more stringent.
States are not required to adopt the
amendments in this rule that are not
more stringent. However, EPA strongly
encourages States to incorporate all the
import and export related requirements
into their regulations for the
convenience of the regulated
community and for completeness,
particularly where a State has already
incorporated 40 CFR part 262, subparts
E, and H, the import/export manifest
and OECD movement document related
requirements in § 263.10(d), the import
manifest and OECD movement
document submittal requirements in
§§ 264.12(a)(2), 264.71, 265.12(a)(2), and
265.71, or the management provisions
for SLABs in 40 CFR part 266, subpart
G. When a State adopts the import/
export provisions in this final rule, care
should be taken not to replace Federal
or international references with State
terms.
The provisions of today’s notice take
effect in all States on July 7, 2010, since
these import and export requirements
will be administered by the Federal
government as a foreign policy matter,
and will not be administered by States.
VIII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order (EO) 12866
(58 FR 51735, October 4, 1993), this
action is a ‘‘significant regulatory
action.’’ This action may raise novel
legal or policy issues [3(f)(4)] arising out
of legal mandates, although it is not
economically significant. Accordingly,
EPA submitted this action to the Office
of Management and Budget (OMB) for
review under EO 12866. Any changes
made in response to OMB’s
recommendations have been
documented in the docket for this
action.
This final rule is projected to result in
a net increase in costs to certain
importers, exporters, and transporters of
affected hazardous wastes. Increased
costs are also projected for the Federal
government. The total net cost of this
rule is estimated to be $910,000 during
the first year following rule
implementation. Exporters are projected
to account for approximately 69 percent
of this total. Benefits of this action
include increased regulatory efficiency,
reduced risks associated with the
treatment and disposal of hazardous
wastes, and improved data collection.
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The total net cost estimate for this
rule is significantly below the $100
million threshold 12 established under
part 3(f)(1) of the Order. Thus, this rule
is not considered to be an economically
significant action. However, in an effort
to comply with the spirit of the Order,
we have prepared an economic
assessment 13 in support of this final
rule. The RCRA docket established for
today’s rulemaking contains a copy of
this document.
B. Paperwork Reduction Act
The information collection
requirements in this rule have been
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. The information collection
requirements are not enforceable until
OMB approves them. The Information
Collection Request (ICR) document
prepared by EPA has been assigned EPA
ICR number 2308.02.
The final rule requires that the
affected sources submit the following:
• Under the final OECD revisions:
U.S. recovery facilities will have to
submit a certificate of recovery to the
foreign exporter, and to the competent
authority of the country of export and
EPA, 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
receipt of the waste; U.S. facilities that
exchange or accumulate waste
shipments (e.g., R12/R13 facilities)
before final recovery at another facility
(e.g., R1–R11 facilities) will have to
prepare and provide a certificate of
recovery for the R12/R13 recovery
operations, and provide and maintain a
copy of the certificate of recovery for the
subsequent R1–R11 recovery operations;
U.S. recovery facilities, including R12/
R13 facilities, that must re-export or
otherwise return the hazardous waste
shipment will have to submit new
notification documents and comply
with the associated Amber control
procedures; and U.S. exporters will
have to keep records of the additional
certifications of recovery and any R12/
R13 certifications they receive from
recovery facilities in other OECD
Member countries.
• Under the final SLAB revisions:
SLAB exporters will have to comply
with the full subpart H requirements if
going to the OECD Member countries
12 This $100 million threshold applies to both
costs, and cost savings.
13 Cost Assessment for the Final Rule on Exports
and Imports of Hazardous Waste Destined for
Recovery Among OECD Countries, Exports of Spent
Lead-Acid Batteries from the U.S., and Import
Consent Documentation (Cost Assessment).
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listed in § 262.58(a)(1) (e.g., submitting
notices, originating a movement
document for each shipment, keeping
records of all confirmations of receipt
and recovery they receive, submitting
exception reports and annual reports,
and recordkeeping); and comply with
portions of the subpart E requirements
if going elsewhere (e.g., submitting
notices, providing a copy of EPA’s
Acknowledgement of Consent for each
shipment, submitting annual reports
and recordkeeping).
• Under the final import
documentation revisions: U.S. receiving
facilities will have to submit to EPA
copies of the documentation confirming
EPA’s consent to the import each time
they submit to EPA a copy of the RCRA
hazardous waste manifest for each
hazardous waste import shipment
within thirty (30) days of shipment
delivery.
All affected sources will have to
retain records of this paperwork for a
period of three (3) years, which is
consistent with the RCRA hazardous
waste requirements of §§ 262.53, 262.56,
262.57, 262.83, 262.87, 264.71 and
265.71. The collection of the requested
information is mandatory, as it is
needed by EPA as a part of its overall
compliance and enforcement program
for the protection of human health and
the environment.
The estimated annual public reporting
burden for the new paperwork
requirements in the final rule is 4.63
hours/year per respondent under the
final OECD revisions; 20.74 hours/year
per respondent under the final SLAB
revisions; and 8.44 hours/year per
respondent under the final import
consent documentation. The annual
public recordkeeping burden is
estimated to average 10.20 hours/year
per respondent under the final OECD
revisions, and 0.25 hours/year per
respondent under the final SLAB
revisions. The total annual public
burden is estimated to be 14,854 hours
at a cost of $832,400 during the first
year of implementation, and 8,799 hours
at a cost of $381,400 after the first year.
The capital and start-up costs plus total
operation and maintenance costs are
expected to be negligible. Burden is
defined at 5 CFR 1320.3(b).
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9. When
this ICR is approved by OMB, the
Agency will publish a technical
amendment to 40 CFR part 9 in the
Federal Register to display the OMB
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1251
control number for the approved
information collection requirements
contained in this final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
We have determined that a substantial
number of potentially affected small
businesses (importers, exporters, and
transporters) will not experience
significant negative economic impacts.
For the purpose of our impact analyses,
small business is defined either by the
number of employees or by the dollar
amount of sales. The level at which a
business is considered small is
determined for each North American
Industrial Classification System
(NAICS) code by the Small Business
Administration. No small governmental
jurisdiction or small not-for-profit
organizations are expected to be affected
by this action.
While a significant number of
exporters may be small businesses, the
results of our analysis indicate that the
cost to individual small entities in each
potentially affected sector (as identified
by NAICS codes) is likely to be
insignificant. This determination was
made by comparing annual compliance
costs under the rule to the average
annual sales of small business in the
industry sectors likely affected by the
rule. According to the U.S. Small
Business Administration’s small
business size standards, firms in most of
these industry sectors are classified as a
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‘‘small business’’ if they have fewer than
750 employees. For purposes of this
analysis, the Agency examined a subset
of small entities expected to face the
largest relative impacts as measured by
cost to sales ratios. The average annual
gross sales of the potentially impacted
small companies within this subset with
fewer than 20 employees were found to
range from $0.4 million to $4.1 million,
depending upon the NAICS sector. The
annual compliance costs for these
companies, as a percentage of average
annual gross sales, was found to range
from 0.01 percent to 0.08 percent. The
regulatory flexibility screening analysis
prepared in support of this
determination is incorporated into the
Cost Assessment, which is available in
the docket established for this rule.
D. Unfunded Mandates Reform Act of
1995
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or Tribal
governments or the private sector.
UMRA does not apply to rules that are
necessary for the national security or the
ratification or implementation of
international treaty obligations (e.g., the
Amended 2001 OECD Decision, the
U.S.-Canada bilateral waste agreement).
Therefore, this action is not subject to
the requirements of sections 202 or 205
of the UMRA. Finally, this action is also
not subject to the requirements of
section 203 of UMRA because it
contains no regulatory requirements that
might significantly or uniquely affect
small governments. As explained
previously, EPA does not authorize
States to administer Federal import/
export functions in any section of the
RCRA hazardous waste regulations
because of the Federal government’s
special role in matters of foreign policy.
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E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Specifically,
this final rule does not have Federalism
implications because the State and local
governments do not administer the
export and import requirements under
RCRA. Thus, Executive Order 13132
does not apply to this action.
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F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This final rule does not have Tribal
implications, as specified in Executive
Order 13175. No Tribal governments are
known to own or operate businesses
that may be affected by this rule. Thus,
Executive Order 13175 does not apply
to this final rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to EO 13045
(62 FR 19885, April 23, 1997) because
it is not economically significant as
defined in Executive Order 12866, and
because the Agency does not believe the
environmental health or safety risks
addressed by this action present a
disproportionate risk to children
residing in the United States. This rule
is intended to improve regulatory
efficiency, enhance waste tracking
procedures, and increase accountability
among all parties associated with
international shipments, and does not
directly affect the level of protection
provided to human health or the
environment in the United States.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (66 FR 28355 (May 22,
2001)) because it is not a significant
regulatory action under Executive Order
12866. This rule will not seriously
disrupt energy supply, distribution
patterns, prices, imports or exports. In
fact, this rule is designed to improve
regulatory efficiency and improve
information collection, in part by
implementing revisions and
clarifications to the existing regulations.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTAA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
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not to use available and applicable
voluntary consensus standards.
This final rulemaking does not
involve technical standards. Therefore,
EPA did not consider the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this final
rule will not have disproportionately
high and/or adverse human health or
environmental effects on minority or
low-income populations because it does
not directly affect the level of protection
provided to human health or the
environment in the United States. This
rule is intended to improve regulatory
efficiency, enhance waste tracking
procedures, and increase accountability
among all parties associated with
international shipments.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective July 7, 2010.
List of Subjects
40 CFR Part 262
Environmental protection, Exports,
Hazardous materials transportation,
Hazardous waste, Imports,
Incorporation by reference, International
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organizations, Labeling, Packaging and
containers, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 263
Environmental protection, Hazardous
materials transportation, Hazardous
waste, Imports.
40 CFR Part 264
Environmental protection, Hazardous
waste, Imports, Packaging and
containers, Reporting and recordkeeping
requirements.
40 CFR Part 265
Environmental protection, Hazardous
waste, Imports, Packaging and
containers, Reporting and recordkeeping
requirements.
40 CFR Part 266
Environmental protection, Exports,
Spent lead-acid batteries, Recycling,
Waste treatment and disposal.
40 CFR Part 271
Environmental protection,
Administrative practice and procedure,
Hazardous materials transportation,
Hazardous waste, Intergovernmental
relations, Penalties, Reporting and
recordkeeping requirements.
Dated: December 23, 2009.
Lisa P. Jackson,
Administrator.
For the reasons stated in the
preamble, title 40, chapter 1 of the Code
of Federal Regulations is amended as
follows.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
1. The authority citation for part 262
continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922–
6925, 6937, and 6938.
2. Section 262.10(d) is amended by
revising paragraph (d) to read as
follows:
§ 262.10
Purpose, scope, and applicability.
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*
*
*
*
*
(d) Any person who exports or
imports wastes that are considered
hazardous under U.S. national
procedures to or from the countries
listed in § 262.58(a)(1) for recovery must
comply with subpart H of this part. A
waste is considered hazardous under
U.S. national procedures if the waste
meets the Federal definition of
hazardous waste in 40 CFR 261.3 and is
subject to either the Federal RCRA
manifesting requirements at 40 CFR part
262, subpart B, the universal waste
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management standards of 40 CFR part
273, State requirements analogous to 40
CFR part 273, the export requirements
in the spent lead-acid battery
management standards of 40 CFR part
266, subpart G, or State requirements
analogous to the export requirements in
40 CFR part 266, subpart G.
*
*
*
*
*
3. 262.55 is amended by revising the
introductory text to read as follows:
§ 262.55
Exception reports.
In lieu of the requirements of
§ 262.42, a primary exporter 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:
*
*
*
*
*
4. Section 262.58 is revised to read as
follows:
§ 262.58
International agreements.
(a) Any person who exports or
imports wastes that are considered
hazardous under U.S. national
procedures to or from designated
Member countries of the Organization
for Economic Cooperation and
Development (OECD) as defined in
paragraph (a)(1) of this section for
purposes of recovery is subject to
subpart H of this part. The requirements
of subparts E and F of this part do not
apply to such exports and imports. A
waste is considered hazardous under
U.S. national procedures if the waste
meets the Federal definition of
hazardous waste in 40 CFR 261.3 and is
subject to either the Federal RCRA
manifesting requirements at 40 CFR part
262, subpart B, the universal waste
management standards of 40 CFR part
273, State requirements analogous to 40
CFR part 273, the export requirements
in the spent lead-acid battery
management standards of 40 CFR part
266, subpart G, or State requirements
analogous to the export requirements in
40 CFR part 266, subpart G.
(1) For the purposes of subpart H, the
designated OECD Member countries
consist of Australia, Austria, Belgium,
the Czech Republic, Denmark, Finland,
France, Germany, Greece, Hungary,
Iceland, Ireland, Italy, Japan,
Luxembourg, the Netherlands, New
Zealand, Norway, Poland, Portugal, the
Republic of Korea, the Slovak Republic,
Spain, Sweden, Switzerland, Turkey,
the United Kingdom, and the United
States.
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(2) For the purposes of subpart H of
this part, Canada and Mexico are
considered OECD Member countries
only for the purpose of transit.
(b) Any person who exports
hazardous waste to or imports
hazardous waste from: A designated
OECD Member country for purposes
other than recovery (e.g., incineration,
disposal), Mexico (for any purpose), or
Canada (for any purpose) remains
subject to the requirements of subparts
E and F of this part, and is not subject
to the requirements of subpart H of this
part.
5. Subpart H is revised to read as
follows:
Subpart H—Transboundary Movements of
Hazardous Waste for Recovery Within the
OECD
Sec.
262.80 Applicability.
262.81 Definitions.
262.82 General conditions.
262.83 Notification and consent.
262.84 Movement document.
262.85 Contracts.
262.86 Provisions relating to recognized
traders.
262.87 Reporting and recordkeeping.
262.88 Pre-approval for U.S. recovery
facilities [Reserved].
262.89 OECD waste lists.
Subpart H—Transboundary
Movements of Hazardous Waste for
Recovery Within the OECD
§ 262.80
Applicability.
(a) The requirements of this subpart
apply to imports and exports of wastes
that are considered hazardous under
U.S. national procedures and are
destined for recovery operations in the
countries listed in § 262.58(a)(1). A
waste is considered hazardous under
U.S. national procedures if the waste:
(1) Meets the Federal definition of
hazardous waste in 40 CFR 261.3; and
(2) Is subject to either the Federal
RCRA manifesting requirements at 40
CFR part 262, subpart B, the universal
waste management standards of 40 CFR
part 273, State requirements analogous
to 40 CFR part 273, the export
requirements in the spent lead-acid
battery management standards of 40
CFR part 266, subpart G, or State
requirements analogous to the export
requirements in 40 CFR part 266,
subpart G.
(b) Any person (exporter, importer, or
recovery facility operator) who mixes
two or more wastes (including
hazardous and non-hazardous wastes)
or otherwise subjects two or more
wastes (including hazardous and nonhazardous wastes) to physical or
chemical transformation operations, and
thereby creates a new hazardous waste,
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becomes a generator and assumes all
subsequent generator duties under
RCRA and any exporter duties, if
applicable, under this subpart.
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§ 262.81
Definitions.
The following definitions apply to
this subpart.
Competent authority means the
regulatory authority or authorities of
concerned countries having jurisdiction
over transboundary movements of
wastes destined for recovery operations.
Countries concerned means the OECD
Member countries of export or import
and any OECD Member countries of
transit.
Country of export means any
designated OECD Member country
listed in § 262.58(a)(1) from which a
transboundary movement of hazardous
wastes is planned to be initiated or is
initiated.
Country of import means any
designated OECD Member country
listed in § 262.58(a)(1) to which a
transboundary movement of hazardous
wastes is planned or takes place for the
purpose of submitting the wastes to
recovery operations therein.
Country of transit means any
designated OECD Member country
listed in § 262.58(a)(1) and (a)(2) other
than the country of export or country of
import across which a transboundary
movement of hazardous wastes is
planned or takes place.
Exporter means the person under the
jurisdiction of the country of export
who has, or will have at the time the
planned transboundary movement
commences, possession or other forms
of legal control of the wastes and who
proposes transboundary movement of
the hazardous wastes for the ultimate
purpose of submitting them to recovery
operations. When the United States
(U.S.) is the country of export, exporter
is interpreted to mean a person
domiciled in the United States.
Importer means the person to whom
possession or other form of legal control
of the waste is assigned at the time the
waste is received in the country of
import.
OECD area means all land or marine
areas under the national jurisdiction of
any OECD Member country listed in
§ 262.58. When the regulations refer to
shipments to or from an OECD Member
country, this means OECD area.
OECD means the Organization for
Economic Cooperation and
Development.
Recognized trader means a person
who, with appropriate authorization of
countries concerned, acts in the role of
principal to purchase and subsequently
sell wastes; this person has legal control
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of such wastes from time of purchase to
time of sale; such a person may act to
arrange and facilitate transboundary
movements of wastes destined for
recovery operations.
Recovery facility means a facility
which, under applicable domestic law,
is operating or is authorized to operate
in the country of import to receive
wastes and to perform recovery
operations on them.
Recovery operations means activities
leading to resource recovery, recycling,
reclamation, direct re-use or alternative
uses, which include:
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.
R11 Uses of residual materials
obtained from any of the operations
numbered R1–R10.
R12 Exchange of wastes for
submission to any of the operations
numbered R1–R11.
R13 Accumulation of material
intended for any operation
numbered R1–R12.
Transboundary movement means any
movement of wastes from an area under
the national jurisdiction of one OECD
Member country to an area under the
national jurisdiction of another OECD
Member country.
§ 262.82
General conditions.
(a) Scope. The level of control for
exports and imports of waste is
indicated by assignment of the waste to
either a list of wastes subject to the
Green control procedures or a list of
wastes subject to the Amber control
procedures and by the national
procedures of the United States, as
defined in § 262.80(a). The OECD Green
and Amber lists are incorporated by
reference in § 262.89(d).
(1) Listed wastes subject to the Green
control procedures.
(i) Green wastes that are not
considered hazardous under U.S.
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national procedures as defined in
§ 262.80(a) are subject to existing
controls normally applied to
commercial transactions.
(ii) Green wastes that are considered
hazardous under U.S. national
procedures as defined in § 262.80(a) are
subject to the Amber control procedures
set forth in this subpart.
(2) Listed wastes subject to the Amber
control procedures.
(i) Amber wastes that are considered
hazardous under U.S. national
procedures as defined in § 262.80(a) are
subject to the Amber control procedures
set forth in this subpart.
(ii) Amber wastes that are considered
hazardous under U.S. national
procedures as defined in § 262.80(a), are
subject to the Amber control procedures
in the United States, even if they are
imported to or exported from a
designated OECD Member country
listed in § 262.58(a)(1) that does not
consider the waste to be hazardous. In
such an event, the responsibilities of the
Amber control procedures shift as
provided:
(A) For U.S. exports, the United States
shall issue an acknowledgement of
receipt and assume other
responsibilities of the competent
authority of the country of import.
(B) For U.S. imports, the U.S. recovery
facility/importer and the United States
shall assume the obligations associated
with the Amber control procedures that
normally apply to the exporter and
country of export, respectively.
(iii) Amber wastes that are not
considered hazardous under U.S.
national procedures as defined in
§ 262.80(a), but are considered
hazardous by an OECD Member country
are subject to the Amber control
procedures in the OECD Member
country that considers the waste
hazardous. All responsibilities of the
U.S. importer/exporter shift to the
importer/exporter of the OECD Member
country that considers the waste
hazardous unless the parties make other
arrangements through contracts.
Note to Paragraph (a)(2): Some wastes
subject to the Amber control procedures are
not listed or otherwise identified as
hazardous under RCRA, and therefore are not
subject to the Amber control procedures of
this subpart. Regardless of the status of the
waste under RCRA, however, other Federal
environmental statutes (e.g., the Toxic
Substances Control Act) restrict certain waste
imports or exports. Such restrictions
continue to apply with regard to this subpart.
(3) Procedures for mixtures of wastes.
(i) A Green waste that is mixed with
one or more other Green wastes such
that the resulting mixture is not
considered hazardous under U.S.
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national procedures as defined in
§ 262.80(a) shall be subject to the Green
control procedures, provided the
composition of this mixture does not
impair its environmentally sound
recovery.
Note to Paragraph (a)(3)(i): The regulated
community should note that some OECD
Member countries may require, by domestic
law, that mixtures of different Green wastes
be subject to the Amber control procedures.
(ii) A Green waste that is mixed with
one or more Amber wastes, in any
amount, de minimis or otherwise, or a
mixture of two or more Amber wastes,
such that the resulting waste mixture is
considered hazardous under U.S.
national procedures as defined in
§ 262.80(a) are subject to the Amber
control procedures, provided the
composition of this mixture does not
impair its environmentally sound
recovery.
Note to Paragraph (a)(3)(ii): The regulated
community should note that some OECD
Member countries may require, by domestic
law, that a mixture of a Green waste and
more than a de minimis amount of an Amber
waste or a mixture of two or more Amber
wastes be subject to the Amber control
procedures.
(4) Wastes not yet assigned to an
OECD waste list are eligible for
transboundary movements, as follows:
(i) If such wastes are considered
hazardous under U.S. national
procedures as defined in § 262.80(a),
such wastes are subject to the Amber
control procedures.
(ii) If such wastes are not considered
hazardous under U.S. national
procedures as defined in § 262.80(a),
such wastes are subject to the Green
control procedures.
(b) General conditions applicable to
transboundary movements of hazardous
waste: (1) The waste must be destined
for recovery operations at a facility that,
under applicable domestic law, is
operating or is authorized to operate in
the importing country;
(2) The transboundary movement
must be in compliance with applicable
international transport agreements; and
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Note to Paragraph (b)(2): These
international agreements include, but are not
limited to, the Chicago Convention (1944),
ADR (1957), ADNR (1970), MARPOL
Convention (1973/1978), SOLAS Convention
(1974), IMDG Code (1985), COTIF (1985), and
RID (1985).
(3) Any transit of waste through a
non-OECD Member country must be
conducted in compliance with all
applicable international and national
laws and regulations.
(c) Provisions relating to re-export for
recovery to a third country: (1) Re-
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export of wastes subject to the Amber
control procedures from the United
States, as the country of import, to a
third country listed in § 262.58(a)(1)
may occur only after an exporter in the
United States provides notification to
and obtains consent from the competent
authorities in the third country, the
original country of export, and any
transit countries. The notification must
comply with the notice and consent
procedures in § 262.83 for all countries
concerned and the original country of
export. The competent authorities of the
original country of export, as well as the
competent authorities of all other
countries concerned have thirty (30)
days to object to the proposed
movement.
(i) The thirty (30) day period begins
once the competent authorities of both
the initial country of export and new
country of import issue
Acknowledgements of Receipt of the
notification.
(ii) The transboundary movement may
commence if no objection has been
lodged after the thirty (30) day period
has passed or immediately after written
consent is received from all relevant
OECD importing and transit countries.
(2) In the case of re-export of Amber
wastes to a country other than those
listed in § 262.58(a)(1), notification to
and consent of the competent
authorities of the original OECD
Member country of export and any
OECD Member countries of transit is
required as specified in paragraph (c)(1)
of this section, in addition to
compliance with all international
agreements and arrangements to which
the first importing OECD Member
country is a party and all applicable
regulatory requirements for exports from
the first country of import.
(d) Duty to return or re-export wastes
subject to the Amber control procedures.
When a transboundary movement of
wastes subject to the Amber control
procedures cannot be completed in
accordance with the terms of the
contract or the consent(s) and
alternative arrangements cannot be
made to recover the waste in an
environmentally sound manner in the
country of import, the waste must be
returned to the country of export or reexported to a third country. The
provisions of paragraph (c) of this
section apply to any shipments to be reexported to a third country. The
following provisions apply to shipments
to be returned to the country of export
as appropriate:
(1) Return from the United States to
the country of export: The U.S. importer
must inform EPA at the specified
address in § 262.83(b)(1)(i) of the need
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to return the shipment. EPA will then
inform the competent authorities of the
countries of export and transit, citing
the reason(s) for returning the waste.
The U.S. importer must complete the
return within ninety (90) days from the
time EPA informs the country of export
of the need to return the waste, unless
informed in writing by EPA of another
timeframe agreed to by the concerned
Member countries. If the return
shipment will cross any transit country,
the return shipment may only occur
after EPA provides notification to and
obtains consent from the competent
authority of the country of transit, and
provides a copy of that consent to the
U.S. importer.
(2) Return from the country of import
to the United States: The U.S. exporter
must provide for the return of the
hazardous waste shipment within
ninety (90) days from the time the
country of import informs EPA of the
need to return the waste or such other
period of time as the concerned Member
countries agree. The U.S. exporter must
submit an exception report to EPA in
accordance with § 262.87(b).
(e) Duty to return wastes subject to the
Amber control procedures from a
country of transit. When a
transboundary movement of wastes
subject to the Amber control procedures
does not comply with the requirements
of the notification and movement
documents or otherwise constitutes
illegal shipment, and if alternative
arrangements cannot be made to recover
these wastes in an environmentally
sound manner, the waste must be
returned to the country of export. The
following provisions apply as
appropriate:
(1) Return from the United States (as
country of transit) to the country of
export: The U.S. transporter must
inform EPA at the specified address in
§ 262.83(b)(1)(i) of the need to return the
shipment. EPA will then inform the
competent authority of the country of
export, citing the reason(s) for returning
the waste. The U.S. transporter must
complete the return within ninety (90)
days from the time EPA informs the
country of export of the need to return
the waste, unless informed in writing by
EPA of another timeframe agreed to by
the concerned Member countries.
(2) Return from the country of transit
to the United States (as country of
export): The U.S. exporter must provide
for the return of the hazardous waste
shipment within ninety (90) days from
the time the competent authority of the
country of transit informs EPA of the
need to return the waste or such other
period of time as the concerned Member
countries agree. The U.S. exporter must
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submit an exception report to EPA in
accordance with § 262.87(b).
(f) Requirements for wastes destined
for and received by R12 and R13
facilities. The transboundary movement
of wastes destined for R12 and R13
operations must comply with all Amber
control procedures for notification and
consent as set forth in § 262.83 and for
the movement document as set forth in
§ 262.84. Additional responsibilities of
R12/R13 facilities include:
(1) Indicating in the notification
document the foreseen recovery facility
or facilities where the subsequent R1–
R11 recovery operation takes place or
may take place.
(2) Within three (3) days of the receipt
of the wastes by the R12/R13 recovery
facility or facilities, the facility(ies) shall
return a signed copy of the movement
document to the exporter and to the
competent authorities of the countries of
export and import. The facility(ies) shall
retain the original of the movement
document for three (3) years.
(3) As soon as possible, but no later
than thirty (30) days after the
completion of the R12/R13 recovery
operation and no later than one (1)
calendar year following the receipt of
the waste, the R12 or R13 facility(ies)
shall send a certificate of recovery to the
foreign exporter and to the competent
authority of the country of export and to
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, by mail, email without digital signature followed
by mail, or fax followed by mail.
(4) When an R12/R13 recovery facility
delivers wastes for recovery to an R1–
R11 recovery facility located in the
country of import, it shall obtain as soon
as possible, but no later than one (1)
calendar year following delivery of the
waste, a certification from the R1–R11
facility that recovery of the wastes at
that facility has been completed. The
R12/R13 facility must promptly transmit
the applicable certification to the
competent authorities of the countries of
import and export, identifying the
transboundary movements to which the
certification pertain.
(5) When an R12/R13 recovery facility
delivers wastes for recovery to an R1–
R11 recovery facility located:
(i) In the initial country of export,
Amber control procedures apply,
including a new notification;
(ii) In a third country other than the
initial country of export, Amber control
procedures apply, with the additional
provision that the competent authority
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of the initial country of export shall also
be notified of the transboundary
movement.
(g) Laboratory analysis exemption.
The transboundary movement of an
Amber waste is exempt from the Amber
control procedures if it is in certain
quantities and destined for laboratory
analysis to assess its physical or
chemical characteristics, or to determine
its suitability for recovery operations.
The quantity of such waste shall be
determined by the minimum quantity
reasonably needed to perform the
analysis in each particular case
adequately, but in no case exceed
twenty-five kilograms (25 kg). Waste
destined for laboratory analysis must
still be appropriately packaged and
labeled.
§ 262.83
Notification and consent.
(a) Applicability. Consent must be
obtained from the competent authorities
of the relevant OECD countries of
import and transit prior to exporting
hazardous waste destined for recovery
operations subject to this subpart.
Hazardous wastes subject to the Amber
control procedures are subject to the
requirements of paragraph (b) of this
section; and wastes not identified on
any list are subject to the requirements
of paragraph (c) of this section.
(b) Amber wastes. Exports of
hazardous wastes from the United States
as described in § 262.80(a) that are
subject to the Amber control procedures
are prohibited unless the notification
and consent requirements of paragraph
(b)(1) or paragraph (b)(2) of this section
are met.
(1) Transactions requiring specific
consent:
(i) Notification. At least forty-five (45)
days prior to commencement of each
transboundary movement, the exporter
must provide written notification in
English of the proposed transboundary
movement to 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, with the
words ‘‘Attention: OECD Export
Notification’’ prominently displayed on
the envelope. This notification must
include all of the information identified
in paragraph (d) of this section. In cases
where wastes having similar physical
and chemical characteristics, the same
United Nations classification, the same
RCRA waste codes, and are to be sent
periodically to the same recovery
facility by the same exporter, the
exporter may submit one general
notification of intent to export these
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wastes in multiple shipments during a
period of up to one (1) year. Even when
a general notification is used for
multiple shipments, each shipment still
must be accompanied by its own
movement document pursuant to
§ 262.84.
(ii) Tacit consent. If no objection has
been lodged by any countries concerned
(i.e., exporting, importing, or transit) to
a notification provided pursuant to
paragraph (b)(1)(i) of this section within
thirty (30) days after the date of issuance
of the Acknowledgement of Receipt of
notification by the competent authority
of the country of import, the
transboundary movement may
commence. Tacit consent expires one
(1) calendar year after the close of the
thirty (30) day period; renotification and
renewal of all consents is required for
exports after that date.
(iii) Written consent. If the competent
authorities of all the relevant OECD
importing and transit countries provide
written consent in a period less than
thirty (30) days, the transboundary
movement may commence immediately
after all necessary consents are received.
Written consent expires for each
relevant OECD importing and transit
country one (1) calendar year after the
date of that country’s consent unless
otherwise specified; renotification and
renewal of each expired consent is
required for exports after that date.
(2) Transboundary movements to
facilities pre-approved by the competent
authorities of the importing countries to
accept specific wastes for recovery:
(i) Notification. The exporter must
provide EPA a notification that contains
all the information identified in
paragraph (d) of this section in English,
at least ten (10) days in advance of
commencing shipment to a preapproved facility. The notification must
indicate that the recovery facility is preapproved, and may apply to a single
specific shipment or to multiple
shipments as described in paragraph
(b)(1)(i) of this section. This information
must be sent to 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,
with the words ‘‘OECD Export
Notification—Pre-approved Facility’’
prominently displayed on the envelope.
General notifications that cover multiple
shipments as described in paragraph
(b)(1)(i) of this section may cover a
period of up to three (3) years. Even
when a general notification is used for
multiple shipments, each shipment still
must be accompanied by its own
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Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations
movement document pursuant to
§ 262.84.
(ii) Exports to pre-approved facilities
may take place after the elapse of seven
(7) working days from the issuance of an
Acknowledgement of Receipt of the
notification by the competent authority
of the country of import unless the
exporter has received information
indicating that the competent authority
of any countries concerned objects to
the shipment.
(c) Wastes not covered in the OECD
Green and Amber lists. Wastes destined
for recovery operations, that have not
been assigned to the OECD Green and
Amber lists, incorporated by reference
in § 262.89(d), but which are considered
hazardous under U.S. national
procedures as defined in § 262.80(a), are
subject to the notification and consent
requirements established for the Amber
control procedures in accordance with
paragraph (b) of this section. Wastes
destined for recovery operations, that
have not been assigned to the OECD
Green and Amber lists incorporated by
reference in § 262.89(d), and are not
considered hazardous under U.S.
national procedures as defined by
§ 262.80(a) are subject to the Green
control procedures.
(d) Notifications submitted under this
section must include the information
specified in paragraphs (d)(1) through
(d)(14) of this section: (1) Serial number
or other accepted identifier of the
notification document;
(2) Exporter name and EPA
identification number (if applicable),
address, telephone, fax numbers, and email address;
(3) Importing recovery facility name,
address, telephone, fax numbers, e-mail
address, and technologies employed;
(4) Importer name (if not the owner or
operator of the recovery facility),
address, telephone, fax numbers, and email address; whether the importer will
engage in waste exchange recovery
operation R12 or waste accumulation
recovery operation R13 prior to
delivering the waste to the final
recovery facility and identification of
recovery operations to be employed at
the final recovery facility;
(5) Intended transporter(s) and/or
their agent(s); address, telephone, fax,
and e-mail address;
(6) Country of export and relevant
competent authority, and point of
departure;
(7) Countries of transit and relevant
competent authorities and points of
entry and departure;
(8) Country of import and relevant
competent authority, and point of entry;
(9) Statement of whether the
notification is a single notification or a
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1257
general notification. If general, include
period of validity requested;
(10) Date(s) foreseen for
commencement of transboundary
movement(s);
(11) Means of transport envisaged;
(12) Designation of waste type(s) from
the appropriate OECD list incorporated
by reference in § 262.89(d),
description(s) of each waste type,
estimated total quantity of each, RCRA
waste code, and the United Nations
number for each waste type;
(13) Specification of the recovery
operation(s) as defined in § 262.81.
(14) Certification/Declaration signed
by the exporter that states:
(bulk shipments only), the generator
must forward the movement document
with the manifest to the last water (bulk
shipment) transporter to handle the
waste in the United States if exported by
water, (in accordance with the manifest
routing procedures at § 262.23(c)).
(2) For rail shipments of hazardous
waste within the United States which
originate at the site of generation, the
generator must forward the movement
document with the manifest (in
accordance with the routing procedures
for the manifest in § 262.23(d)) to the
next non-rail transporter, if any, or the
last rail transporter to handle the waste
in the United States if exported by rail.
I certify that the above information is
(b) The movement document must
complete and correct to the best of my
include all information required under
knowledge. I also certify that legally§ 262.83 (for notification), as well as the
enforceable written contractual obligations
following paragraphs (b)(1) through
have been entered into, and that any
(b)(7) of this section:
applicable insurance or other financial
(1) Date movement commenced;
guarantees are or shall be in force covering
(2) Name (if not exporter), address,
the transboundary movement.
Name: lllllllllllllllll telephone, fax numbers, and e-mail of
Signature: llllllllllllllll primary exporter;
Date: llllllllllllllllll
(3) Company name and EPA ID
number of all transporters;
Note to Paragraph (d)(14): The United
(4) Identification (license, registered
States does not currently require financial
name or registration number) of means
assurance for these waste shipments.
However, U.S. exporters may be asked by
of transport, including types of
other governments to provide and certify to
packaging envisaged;
such assurance as a condition of obtaining
(5) Any special precautions to be
consent to a proposed movement.
taken by transporter(s);
(e) Certificate of Recovery. As soon as
(6) Certification/declaration signed by
possible, but no later than thirty (30)
the exporter that no objection to the
days after the completion of recovery
shipment has been lodged, as follows:
and no later than one (1) calendar year
I certify that the above information is
following receipt of the waste, the U.S.
complete and correct to the best of my
recovery facility shall send a certificate
knowledge. I also certify that legallyof recovery to the exporter and to the
enforceable written contractual obligations
competent authorities of the countries of have been entered into, that any applicable
insurance or other financial guarantees are or
export and import by mail, e-mail
shall be in force covering the transboundary
without a digital signature followed by
movement, and that:
mail, or fax followed by mail. The
1. All necessary consents have been
certificate of recovery shall include a
received; OR
signed, written and dated statement that
2. The shipment is directed to a recovery
affirms that the waste materials were
facility within the OECD area and no
recovered in the manner agreed to by
objection has been received from any of the
the parties to the contract required
countries concerned within the thirty (30)
day tacit consent period; OR
under § 262.85.
§ 262.84
Movement document.
(a) All U.S. parties subject to the
contract provisions of § 262.85 must
ensure that a movement document
meeting the conditions of paragraph (b)
of this section accompanies each
transboundary movement of wastes
subject to the Amber control procedures
from the initiation of the shipment until
it reaches the final recovery facility,
including cases in which the waste is
stored and/or sorted by the importer
prior to shipment to the final recovery
facility, except as provided in
paragraphs (a)(1) and (2) of this section.
(1) For shipments of hazardous waste
within the United States solely by water
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3. The shipment is directed to a recovery
facility pre-approved for that type of waste
within the OECD area; such an authorization
has not been revoked, and no objection has
been received from any of the countries
concerned.
(Delete sentences that are not applicable)
Name: lllllllllllllllll
Signature: llllllllllllllll
Date: llllllllllllllllll
(7) Appropriate signatures for each
custody transfer (e.g., transporter,
importer, and owner or operator of the
recovery facility).
(c) Exporters also must comply with
the special manifest requirements of 40
CFR 262.54(a), (b), (c), (e), and (i) and
importers must comply with the import
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requirements of 40 CFR part 262,
subpart F.
(d) Each U.S. person that has physical
custody of the waste from the time the
movement commences until it arrives at
the recovery facility must sign the
movement document (e.g., transporter,
importer, and owner or operator of the
recovery facility).
(e) Within three (3) working days of
the receipt of imports subject to this
subpart, the owner or operator of the
U.S. recovery facility must send signed
copies of the movement document to
the exporter, to 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,
and to the competent authorities of the
countries of export and transit. If the
concerned U.S. recovery facility is a
R12/R13 recovery facility as defined
under § 262.81, the facility shall retain
the original of the movement document
for three (3) years.
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§ 262.85
Contracts.
(a) Transboundary movements of
hazardous wastes subject to the Amber
control procedures are prohibited unless
they occur under the terms of a valid
written contract, chain of contracts, or
equivalent arrangements (when the
movement occurs between parties
controlled by the same corporate or
legal entity). Such contracts or
equivalent arrangements must be
executed by the exporter and the owner
or operator of the recovery facility, and
must specify responsibilities for each.
Contracts or equivalent arrangements
are valid for the purposes of this section
only if persons assuming obligations
under the contracts or equivalent
arrangements have appropriate legal
status to conduct the operations
specified in the contract or equivalent
arrangements.
(b) Contracts or equivalent
arrangements must specify the name
and EPA ID number, where available, of
paragraph (b)(1) through (b)(4) of this
section:
(1) The generator of each type of
waste;
(2) Each person who will have
physical custody of the wastes;
(3) Each person who will have legal
control of the wastes; and
(4) The recovery facility.
(c) Contracts or equivalent
arrangements must specify which party
to the contract will assume
responsibility for alternate management
of the wastes if their disposition cannot
be carried out as described in the
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Jkt 220001
notification of intent to export. In such
cases, contracts must specify that:
(1) The person having actual
possession or physical control over the
wastes will immediately inform the
exporter and the competent authorities
of the countries of export and import
and, if the wastes are located in a
country of transit, the competent
authorities of that country; and
(2) The person specified in the
contract will assume responsibility for
the adequate management of the wastes
in compliance with applicable laws and
regulations including, if necessary,
arranging the return of wastes and, as
the case may be, shall provide the
notification for re-export.
(d) Contracts must specify that the
importer will provide the notification
required in § 262.82(c) prior to the reexport of controlled wastes to a third
country.
(e) Contracts or equivalent
arrangements must include provisions
for financial guarantees, if required by
the competent authorities of any
countries concerned, in accordance with
applicable national or international law
requirements.
Note to Paragraph (e): Financial guarantees
so required are intended to provide for
alternate recycling, disposal or other means
of sound management of the wastes in cases
where arrangements for the shipment and the
recovery operations cannot be carried out as
foreseen. The United States does not require
such financial guarantees at this time;
however, some OECD Member countries do.
It is the responsibility of the exporter to
ascertain and comply with such
requirements; in some cases, transporters or
importers may refuse to enter into the
necessary contracts absent specific references
or certifications to financial guarantees.
(f) Contracts or equivalent
arrangements must contain provisions
requiring each contracting party to
comply with all applicable requirements
of this subpart.
(g) Upon request by EPA, U.S.
exporters, importers, or recovery
facilities must submit to EPA copies of
contracts, chain of contracts, or
equivalent arrangements (when the
movement occurs between parties
controlled by the same corporate or
legal entity). Information contained in
the contracts or equivalent arrangements
for which a claim of confidentiality is
asserted in accordance with 40 CFR
2.203(b) will be treated as confidential
and will be disclosed by EPA only as
provided in 40 CFR 260.2.
Note to Paragraph (g): Although the United
States does not require routine submission of
contracts at this time, the OECD Decision
allows Member countries to impose such
requirements. When other OECD Member
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countries require submission of partial or
complete copies of the contract as a
condition to granting consent to proposed
movements, EPA will request the required
information; absent submission of such
information, some OECD Member countries
may deny consent for the proposed
movement.
§ 262.86
traders.
Provisions relating to recognized
(a) A recognized trader who takes
physical custody of a waste and
conducts recovery operations (including
storage prior to recovery) is acting as the
owner or operator of a recovery facility
and must be so authorized in
accordance with all applicable Federal
laws.
(b) A recognized trader acting as an
exporter or importer for transboundary
shipments of waste must comply with
all the requirements of this subpart
associated with being an exporter or
importer.
§ 262.87
Reporting and recordkeeping.
(a) Annual reports. For all waste
movements subject to this subpart,
persons (e.g., exporters, recognized
traders) who meet the definition of
primary exporter in § 262.51 or who
initiate the movement documentation
under § 262.84 shall file an annual
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, no later
than March 1 of each year summarizing
the types, quantities, frequency, and
ultimate destination of all such
hazardous waste exported during the
previous calendar year. (If the primary
exporter or the person who initiates the
movement document under § 262.84 is
required to file an annual report for
waste exports that are not covered under
this subpart, he may include all export
information in one report provided the
following information on exports of
waste destined for recovery within the
designated OECD Member countries is
contained in a separate section.) Such
reports shall include all of the following
paragraphs (a)(1) through (a)(6) of this
section specified as follows:
(1) The EPA identification number,
name, and mailing and site address of
the exporter filing the report;
(2) The calendar year covered by the
report;
(3) The name and site address of each
final recovery facility;
(4) By final recovery facility, for each
hazardous waste exported, a description
of the hazardous waste, the EPA
hazardous waste number (from 40 CFR
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part 261, subpart C or D), designation of
waste type(s) and applicable waste
code(s) from the appropriate OECD
waste list incorporated by reference in
§ 262.89(d), DOT hazard class, the name
and U.S. EPA identification number
(where applicable) for each transporter
used, the total amount of hazardous
waste shipped pursuant to this subpart,
and number of shipments pursuant to
each notification;
(5) In even numbered years, for each
hazardous waste exported, except for
hazardous waste produced by exporters
of greater than 100kg but less than
1,000kg in a calendar month, and except
for hazardous waste for which
information was already provided
pursuant to § 262.41:
(i) A description of the efforts
undertaken during the year to reduce
the volume and toxicity of the waste
generated; and
(ii) A description of the changes in
volume and toxicity of the waste
actually achieved during the year in
comparison to previous years to the
extent such information is available for
years prior to 1984; and
(6) A certification signed by the
person acting as primary exporter or
initiator of the movement document
under § 262.84 that states:
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I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this and all
attached documents, and that based on my
inquiry of those individuals immediately
responsible for obtaining the information, I
believe that the submitted information is
true, accurate, and complete. I am aware that
there are significant penalties for submitting
false information including the possibility of
fine and imprisonment.
(b) Exception reports. Any person
who meets the definition of primary
exporter in § 262.51 or who initiates the
movement document under § 262.84
must file an exception report in lieu of
the requirements of § 262.42 (if
applicable) 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:
(1) He has not received a copy of the
RCRA hazardous waste manifest (if
applicable) signed by the transporter
identifying the 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;
(2) Within ninety (90) days from the
date the waste was accepted by the
initial transporter, the exporter has not
received written confirmation from the
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recovery facility that the hazardous
waste was received;
(3) The waste is returned to the
United States.
(c) Recordkeeping. (1) Persons who
meet the definition of primary exporter
in § 262.51 or who initiate the
movement document under § 262.84
shall keep the following records in
paragraphs (c)(1)(i) through (c)(1)(iv) of
this section:
(i) A copy of each notification of
intent to export and all written consents
obtained from the competent authorities
of countries concerned for a period of at
least three (3) years from the date the
hazardous waste was accepted by the
initial transporter;
(ii) A copy of each annual report for
a period of at least three (3) years from
the due date of the report;
(iii) A copy of any exception reports
and a copy of each confirmation of
delivery (i.e., movement document) 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
(iv) A copy of each certificate of
recovery sent by the recovery facility to
the exporter for at least three (3) years
from the date that the recovery facility
completed processing the waste
shipment.
(2) The periods of retention referred to
in this section are extended
automatically during the course of any
unresolved enforcement action
regarding the regulated activity or as
requested by the Administrator.
§ 262.88 Pre-approval for U.S. recovery
facilities [Reserved].
§ 262.89
OECD waste lists.
(a) General. For the purposes of this
subpart, a waste is considered
hazardous under U.S. national
procedures, and hence subject to this
subpart, if the waste:
(1) Meets the Federal definition of
hazardous waste in 40 CFR 261.3; and
(2) Is subject to either the Federal
RCRA manifesting requirements at 40
CFR part 262, subpart B, the universal
waste management standards of 40 CFR
part 273, State requirements analogous
to 40 CFR part 273, the export
requirements in the spent lead-acid
battery management standards of 40
CFR part 266, subpart G, or State
requirements analogous to the export
requirements in 40 CFR part 266,
subpart G.
(b) If a waste is hazardous under
paragraph (a) of this section, it is subject
to the Amber control procedures,
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1259
regardless of whether it appears in
Appendix 4 of the OECD Decision, as
defined in § 262.81.
(c) The appropriate control
procedures for hazardous wastes and
hazardous waste mixtures are addressed
in § 262.82.
(d) The OECD waste lists, as set forth
in Annex B (‘‘Green List’’) and Annex C
(‘‘Amber List’’) (collectively ‘‘OECD
waste lists’’) of the 2009 ‘‘Guidance
Manual for the Implementation of
Council Decision C(2001)107/FINAL, as
Amended, on the Control of
Transboundary Movements of Wastes
Destined for Recovery Operations,’’ are
incorporated by reference. This
incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. This material
is incorporated as it exists on the date
of the approval and a notice of any
change in these materials will be
published in the Federal Register. The
materials are available for inspection at:
the U.S. Environmental Protection
Agency, Docket Center Public Reading
Room, EPA West, Room 3334, 1301
Constitution Avenue NW., Washington,
DC 20004 (Docket # EPA–HQ–RCRA–
2005–0018) or at the National Archives
and Records Administration (NARA),
and may be obtained from the
Organization for Economic Cooperation
and Development, Environment
´
Directorate, 2 rue Andre Pascal, F–
75775 Paris Cedex 16, France. For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal-register/cfr/ibr-locations.html.
To contact the EPA Docket Center
Public Reading Room, call (202) 566–
1744. To contact the OECD, call +33 (0)
1 45 24 81 67.
PART 263—STANDARDS APPLICABLE
TO TRANSPORTERS OF HAZARDOUS
WASTE
The authority citation for part 263
continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922–
6925, 6937, and 6938.
Section 263.10(d) is amended by
revising paragraph (d) to read as
follows:
§ 263.10
Scope.
*
*
*
*
*
(d) A transporter of hazardous waste
subject to the Federal manifesting
requirements of 40 CFR part 262, or
subject to the waste management
standards of 40 CFR part 273, or subject
to State requirements analogous to 40
CFR part 273, that is being imported
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from or exported to any of the countries
listed in 40 CFR 262.58(a)(1) for
purposes of recovery is subject to this
Subpart and to all other relevant
requirements of subpart H of 40 CFR
part 262, including, but not limited to,
40 CFR 262.84 for movement
documents.
*
*
*
*
*
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
8. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924,
and 6925.
9. Section 264.12 is amended by
revising paragraph (a)(2) to read as
follows:
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§ 264.12
Required notices.
(a) * * *
(2) The owner or operator of a
recovery facility that has arranged to
receive hazardous waste subject to 40
CFR part 262, subpart H must provide
a copy of the movement document
bearing all required signatures to the
foreign exporter; to 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;
and to the competent authorities of all
other countries concerned within three
(3) working days of receipt of the
shipment. The original of the signed
movement document must be
maintained at the facility for at least
three (3) years. In addition, such owner
or operator shall, 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 the hazardous waste, send a
certificate of recovery to the foreign
exporter and to the competent authority
of the country of export and to EPA’s
Office of Enforcement and Compliance
Assurance at the above address by mail,
e-mail without a digital signature
followed by mail, or fax followed by
mail.
*
*
*
*
*
10. Section 264.71 is amended by
revising paragraphs (a)(3) and (d) to read
as follows:
§ 264.71
Use of manifest system.
(a) * * *
(3) If a facility receives hazardous
waste imported from a foreign source,
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the receiving facility must mail a copy
of the manifest and documentation
confirming EPA’s consent to the import
of hazardous waste to the following
address within thirty (30) days of
delivery: 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.
*
*
*
*
*
(d) Within three (3) working days of
the receipt of a shipment subject to 40
CFR part 262, subpart H, the owner or
operator of a facility must provide a
copy of the movement document
bearing all required signatures to the
exporter, to 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, and to
competent authorities of all other
concerned countries. The original copy
of the movement document must be
maintained at the facility for at least
three (3) years from the date of
signature.
*
*
*
*
*
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
11. The authority citation for part 265
continues to read as follows:
Authority: 42 U.S.C. 6905, 6906, 6912,
6922, 6923, 6924, 6925, 6935, 6936, and
6937.
12. Section 265.12 is amended by
revising paragraph (a)(2) to read as
follows:
§ 265.12
Required notices.
(a) * * *
(2) The owner or operator of a
recovery facility that has arranged to
receive hazardous waste subject to 40
CFR part 262, subpart H must provide
a copy of the movement document
bearing all required signatures to the
foreign exporter; to 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;
and to the competent authorities of all
other countries concerned within three
(3) working days of receipt of the
shipment. The original of the signed
movement document must be
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maintained at the facility for at least
three (3) years. In addition, such owner
or operator shall, 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 the hazardous waste, send a
certificate of recovery to the foreign
exporter and to the competent authority
of the country of export and to EPA’s
Office of Enforcement and Compliance
Assurance at the above address by mail,
e-mail without a digital signature
followed by mail, or fax followed by
mail.
*
*
*
*
*
13. Section 265.71 is amended by
revising paragraphs (a)(3) and (d) to read
as follows:
§ 265.71
Use of manifest system.
(a) * * *
(3) If a facility receives hazardous
waste imported from a foreign source,
the receiving facility must mail a copy
of the manifest and documentation
confirming EPA’s consent to the import
of hazardous waste to the following
address within thirty (30) days of
delivery: 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.
*
*
*
*
*
(d) Within three (3) working days of
the receipt of a shipment subject to 40
CFR part 262, subpart H, the owner or
operator of a facility must provide a
copy of the movement document
bearing all required signatures to the
exporter, to 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, and to
competent authorities of all other
countries concerned. The original copy
of the movement document must be
maintained at the facility for at least
three (3) years from the date of
signature.
*
*
*
*
*
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
14. The authority citation for part 266
is revised to read as follows:
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08JAR4
Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations
Authority: 42 U.S.C. 1006, 2002(a), 3001–
3009, 3014, 3017, 6905, 6906, 6912, 6921,
6922, 6924–6927, 6934, and 6937.
15. In § 266.80(a) the table is revised
to read as follows:
§ 266.80
1261
Applicability and requirements.
(a) * * *
And if you . . .
Then you . . .
And you . . .
(1) Will be reclaimed through regeneration (such as by electrolyte replacement).
.......................................................
generate, collect, and/or transport
these batteries.
(3) Will be reclaimed other than
through regeneration.
store these batteries but you
aren’t the reclaimer.
(4) Will be reclaimed other than
through regeneration.
store these batteries before you
reclaim them.
(5) Will be reclaimed other than
through regeneration.
don’t store these batteries before
you reclaim them.
(6) Will be reclaimed through regeneration or any other means.
export these batteries for reclamation in a foreign country.
are exempt from 40 CFR parts
262 (except for § 262.11), 263,
264, 265, 266, 268, 270, 124 of
this chapter, and the notification
requirements at section 3010 of
RCRA.
are exempt from 40 CFR parts
262 (except for § 262.11), 263,
264, 265, 266, 270, 124 of this
chapter, and the notification requirements at section 3010 of
RCRA.
are exempt from 40 CFR parts
262 (except for § 262.11), 263,
264, 265, 266, 270, 124 of this
chapter, and the notification requirements at section 3010 of
RCRA.
must comply with 40 CFR
266.80(b) and as appropriate
other regulatory provisions described in 266.80(b).
are exempt from 40 CFR parts
262 (except for § 262.11), 263,
264, 265, 266, 270, 124 of this
chapter, and the notification requirements at section 3010 of
RCRA.
are exempt from 40 CFR parts
263, 264, 265, 266, 268, 270,
124 of this chapter, and the notification requirements at section 3010 of RCRA. You are
also exempt from part 262, except for 262.11, and except for
the applicable requirements in
either: (1) 40 CFR part 262
subpart H; or (2) 262.53 ‘‘Notification of Intent to Export,
262.56(a)(1) through (4)(6) and
(b) ‘‘Annual Reports,’’ and
262.57 ‘‘Recordkeeping’’.
are subject to 40 CFR parts 261
and § 262.11 of this chapter.
(2) Will be reclaimed other than
through regeneration.
(7) Will be reclaimed through regeneration or any other means.
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are exempt from 40 CFR parts
263, 264, 265, 266, 268, 270,
124 of this chapter, and the notification requirements at section 3010 of RCRA.
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are subject to 40 CFR parts 261
and § 262.11, and applicable
provisions under part 268.
are subject to 40 CFR parts 261,
§ 262.11, and applicable provisions under part 268.
are subject to 40 CFR parts 261,
§ 262.11, and applicable provisions under part 268.
are subject to 40 CFR parts 261,
§ 262.11, and applicable provisions under part 268.
are subject to 40 CFR part 261
and § 262.11, and either must
comply with 40 CFR part 262,
subpart H (if shipping to one of
the OECD countries specified in
40 CFR 262.58(a)(1)), or must:
(a) 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; and
(b) Export these batteries
only upon consent of the
receiving country and in
conformance with the EPA
Acknowledgement of Consent as defined in subpart
E of 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.
must comply with applicable requirements in 40 CFR part 262,
subpart H (if shipping to one of
the OECD countries specified in
40 CFR 262.58(a)(1)), or must
comply with the following:
(a) you may not accept a
shipment if you know the
shipment does not conform
to the EPA Acknowledgment of Consent;
(b) you must ensure that a
copy of the EPA Acknowledgment of Consent accompanies the shipment;
and
08JAR4
1262
Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations
If your batteries . . .
And if you . . .
Then you . . .
And you . . .
(c) you must ensure that the
shipment is delivered to the
facility designated by the
person initiating the shipment.
*
*
*
*
Authority: 42 U.S.C. 6905, 6912(a), and
6926.
*
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
16. The authority citation for part 271
continues to read as follows:
§ 271.1
*
17. Section 271.1(j) is amended by
adding the following entry to Table 1
and Table 2 in chronological order by
date of publication in the FEDERAL
REGISTER, to read as follows:
Purpose and scope.
*
*
(j) * * *
*
*
TABLE 1—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Promulgation date
Title of regulation
Federal Register reference
Effective date
*
*
Jan. 8, 2010 .............................................
*
*
Exports of hazardous waste ....................
*
*
[Insert FR page numbers] ........................
*
July 7, 2010.
*
*
*
*
*
TABLE 2—SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
RCRA citation
Effective date
Self-implementing provision
*
*
July 7, 2010 ...............................................
*
*
Exports of hazardous waste .....................
*
*
*
*
*
3017(a)
Federal Register reference
*
*
[Insert Federal Register reference for
publication of final rule].
*
[FR Doc. E9–31081 Filed 1–7–10; 8:45 am]
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08JAR4
Agencies
[Federal Register Volume 75, Number 5 (Friday, January 8, 2010)]
[Rules and Regulations]
[Pages 1236-1262]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31081]
[[Page 1235]]
-----------------------------------------------------------------------
Part IV
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 262, 263, 264, et al.
Revisions to the Requirements for: Transboundary Shipments of Hazardous
Wastes Between OECD Member Countries, Export Shipments of Spent Lead-
Acid Batteries, Submitting Exception Reports for Export Shipments of
Hazardous Wastes, and Imports of Hazardous Wastes; Final Rule
Federal Register / Vol. 75 , No. 5 / Friday, January 8, 2010 / Rules
and Regulations
[[Page 1236]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 262, 263, 264, 265, 266, and 271
[EPA-HQ-RCRA-2005-0018; FRL-9098-7]
RIN 2050-AE93
Revisions to the Requirements for: Transboundary Shipments of
Hazardous Wastes Between OECD Member Countries, Export Shipments of
Spent Lead-Acid Batteries, Submitting Exception Reports for Export
Shipments of Hazardous Wastes, and Imports of Hazardous Wastes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends certain existing regulations promulgated
under the hazardous waste provisions of the Resource Conservation and
Recovery Act (RCRA) regarding hazardous waste exports from and imports
into the United States. Specifically, the amendments implement recent
changes to the agreements concerning the transboundary movement of
hazardous waste among countries belonging to the Organization for
Economic Cooperation and Development (OECD), establish notice and
consent requirements for spent lead-acid batteries intended for
reclamation in a foreign country, specify that all exception reports
concerning hazardous waste exports be sent to the International
Compliance and Assurance Division in the Office of Enforcement and
Compliance Assurance's Office of Federal Activities in Washington, DC,
and require U.S. receiving facilities to match EPA-provided import
consent documentation to incoming hazardous waste import shipments and
to submit to EPA a copy of the matched import consent documentation and
RCRA hazardous waste manifest for each import shipment.
DATES: This final rule is effective July 7, 2010. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of July 7, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-RCRA-2005-0018. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through https://www.regulations.gov or in hard copy at
the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
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, Materials Recovery and
Waste Management Division, Office of Resource Conservation and Recovery
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460; telephone number: (703) 308-0005; fax
number: (703) 308-0514; e-mail address: coughlan.laura@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Final Rule Apply to Me?
B. List of Acronyms Used in This Final Rule
C. What are the Statutory Authorities for This Final Rule?
II. Background
A. OECD Revisions
B. SLAB Revisions
C. Exception Reports for Hazardous Waste Exports
D. Documenting Hazardous Waste Import Shipments
E. Proposed Rule
III. Summary of the Final Rule
A. Changes to 40 CFR 262.10(d)
B. Changes to 40 CFR Part 262, Subpart E
C. Changes to 40 CFR Part 262, Subpart H
D. Changes to 40 CFR 263.10(d)
E. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)
F. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)
G. Changes to 40 CFR 266.80(a)
H. Changes to 40 CFR 271.1
IV. Discussion of Comments Received in Response to the Proposed
Rulemaking and the Agency's Responses
A. OECD Revisions
B. SLAB Revisions
C. Export Exception Report Technical Correction and Import
Revisions
V. Future Rulemaking
VI. Costs and Benefits of the Final Rule
A. Introduction
B. Analytical Scope
C. Cost Impacts
D. Benefits
VII. State Authorization
A. Applicability of Rules in Authorized States
B. Effect on State Authorization
VIII. 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
K. Congressional Review Act
I. General Information
A. Does This Final Rule Apply to Me?
1. OECD Revisions
The revisions regarding the OECD in this final 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 OECD Member countries, except for Mexico and
Canada. Any transboundary movement of hazardous wastes between the
United States and either Mexico or Canada will continue to be governed
(or addressed) 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
[[Page 1237]]
Electrical Equipment, Appliance, and Component 335 36
Manufacturing....................................
Transportation Equipment Manufacturing............ 336 37
Miscellaneous Manufacturing....................... 339900 39
Scrap and Waste Materials......................... 423930 5093
Material Recovery Facilities...................... 562920 4953
------------------------------------------------------------------------
2. SLAB Revisions
The revisions regarding SLABs in this final 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.................... 562111 4212
Services, Solid Waste Collection 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 481112 4512
Scheduled........................................
Freight Charter Services, Air..................... 481212 4522
Freight Railways, Line-Haul....................... 482111 4011
Freight Transportation, Deep Sea, to and from 483113 4424
Domestic Ports...................................
Freight Transportation, Deep Sea, to or from 483111 4412
Foreign Ports....................................
------------------------------------------------------------------------
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 final 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 335 36
Manufacturing....................................
Transportation Equipment Manufacturing............ 336 37
Miscellaneous Manufacturing....................... 339900 39
Scrap and Waste Materials......................... 423930 5093
------------------------------------------------------------------------
4. Import Revisions
The revisions regarding imports in this final rule affect 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
Member 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 Wholesaler.................... 423930 5093
Other Waste Collection............................ 562119 4212
Recyclable Material Collection Services, Solid 562111 4212
Waste Collection.................................
Scrap and Waste Materials......................... 423930 5093
[[Page 1238]]
Material 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
final rule to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
B. List of Acronyms Used in This Final 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.
------------------------------------------------------------------------
C. What Are the Statutory Authorities for This Final Rule?
The authority to promulgate this rule is found in sections 1006,
2002(a), 3001-3010, 3013, 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,
6912, 6921-6930, 6934, and 6938.
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. 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 final 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 https://www.oecd.org/infobycountry/.
2. What OECD Decisions Form the Basis of the OECD Revisions in This
Final Rule?
The current RCRA regulations regarding waste shipments destined for
recovery within the OECD are found in 40 CFR part 262, subpart H. These
regulations are based on the March 30, 1992, ``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) that EPA then promulgated as a final rule under RCRA on April
12, 1996 (61 FR 16289). Since that time, the OECD has made a number of
changes to the waste shipment regime, necessitating changes to the RCRA
regulations.
On June 14, 2001, the OECD Council amended the ``Decision of the
Council C(92)39/FINAL Concerning the Control of Transfrontier Movements
of Wastes Destined for Recovery'' by adopting ``Revision of Decision
C(92)39/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 \1\ and to eliminate duplicative activities between the two
[[Page 1239]]
international organizations as much as practical. These changes include
revisions to the original established framework (such as reducing the
levels of control from a three-tiered system to a two-tiered system),
while also adding entirely new provisions (for example, the new
certificate of recovery requirement). Subsequent to the 2001 OECD
Decision, an addendum, C(2001)107/ADD1 (hereafter referred to as the
2001 OECD Addendum), which consists of revised versions of the
notification and movement documents and the instructions to complete
them, was adopted by the OECD Council on February 28, 2002. The
addendum was incorporated into the 2001 OECD Decision as section C of
Appendix 8, and the combined version was issued in May 2002 as
C(2001)107/FINAL. The appendices of Decision C(2001)107/Final were
amended three times by C(2004)20, C(2005)141, and C(2008)156.\2\ The
Decision, ``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; C(2005)141 and C(2008)156,'' is
hereinafter referred to as the Amended 2001 OECD Decision.
---------------------------------------------------------------------------
\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 172 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. A copy of the
convention text has been placed in the docket established for this
rulemaking. More information on the Basel Convention may be found at
https://www.basel.int.
\2\ Copies of these amendments have been placed in the docket
established for this rulemaking.
---------------------------------------------------------------------------
B. SLAB Revisions
1. What are SLABs?
Lead-acid batteries (LABs) 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. 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 (e.g., D008), and the
corrosivity characteristic for the sulfuric acid electrolyte in the
battery (e.g., D001). For a full discussion of SLAB composition and how
SLABs are managed, please see Sections II.B.1 and II.B.2 of the
proposed rule (73 FR 58393).
2. How Must a Business Manage SLABs Intended for Domestic Recycling or
Disposal?
Businesses subject to the RCRA hazardous waste regulations may
choose from three options for managing hazardous waste spent lead-acid
batteries. They may manage the batteries under the streamlined
standards specifically for SLABs found in 40 CFR part 266, subpart G,
the streamlined Universal Wastes standards for all hazardous waste
batteries found in 40 CFR part 273, or the full Subtitle C hazardous
waste management regulations found in 40 CFR parts 262-265, 267, 268,
and 270. For the complete discussion of what these requirements entail
for disposal or recycling within the United States, please see Section
II.B.3 of the proposed rule (73 FR 58394).
3. What Does a Business Have To Do When Exporting SLABs for Recycling?
A company seeking to export SLABs may choose from the same three
regulatory options described above. If they choose to follow 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 are to be exported to
an OECD Member country for recovery, the export requirements (including
notice and consent) in 40 CFR part 262, subpart H. The second option
would be for the export to follow the full subtitle C hazardous waste
export regulations in 40 CFR part 262, subparts E or H. Most likely,
SLAB exporters will choose to follow the regulatory provisions specific
to SLABs in 40 CFR part 266, subpart G. Prior to today's rule, under
part 266, SLABs that were destined for reclamation were exempt from the
RCRA export requirements in 40 CFR part 262, subparts E and H
(including the notice and consent requirements). Today's rule adds
export requirements to part 266 that mirror those that apply to
universal waste, as described later in this preamble.
C. Exception Reports for Hazardous Waste Exports
Prior to this final rule, under 40 CFR part 262, subparts E and H,
exception reports were required to be submitted by the exporter to the
EPA Administrator if any of the following occurred:
(1) The exporter did not receive a copy of the RCRA hazardous waste
manifest (if applicable) signed by the transporter identifying the
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;
(2) Within ninety (90) days from the date the hazardous waste was
accepted by the initial transporter, the exporter did not receive
written confirmation from the recovery facility that the hazardous
waste was received;
(3) The hazardous waste was returned to the United States.
D. Documenting Hazardous Waste Import Shipments
Prior to this final rule, under Sec. Sec. 264.71(a)(3) and
265.71(a)(3), U.S. receiving treatment, storage, and disposal
facilities (TSDFs) had to submit a copy of the hazardous waste manifest
to EPA to document individual hazardous waste import shipments within
30 days of shipment delivery.
E. Proposed Rule
On October 6, 2008, EPA published a Federal Register notice seeking
comment on proposed revisions to the requirements regarding the export
and import of hazardous wastes from and into the United States (see 73
FR 58388 and following pages). First, we proposed to modify the
requirements concerning the transboundary movement of hazardous waste
destined for recovery among Member countries to the OECD in order to
implement the Amended 2001 OECD Decision. The changes, largely in 40
CFR part 262, subpart H, included 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. Second, we proposed
to amend the regulations in 40 CFR part 266, subpart G regarding the
management of SLABs being reclaimed to require notice and consent for
those batteries intended for reclamation in a foreign country,
mirroring the existing export requirements for exports of RCRA
universal waste batteries, to create a more uniform practice for
exporting SLABs for recovery under RCRA. Third, we proposed a technical
correction in the exception reporting requirements of Sec. Sec. 262.55
and 262.87(b) for hazardous waste exports to specify that all exception
reports submitted to EPA be sent to the International Compliance and
Assurance Division in the Office of Enforcement and Compliance
Assurance's Office of Federal Activities in Washington, DC rather than
to the Administrator to ensure better oversight of return shipments to
the U.S. and compliance with the exception reporting requirements
without any additional
[[Page 1240]]
regulatory burden for U.S. exporters. Fourth and last, we proposed to
amend: the hazardous waste import requirements in 40 CFR part 262,
subpart F to require that U.S. importers give the initial transporter a
copy of the EPA-provided documentation confirming EPA's consent to the
import of the hazardous waste when they provide the RCRA hazardous
waste manifest; and, the import shipment document submittal
requirements in Sec. Sec. 264.71(a)(3) and 265.71(a)(3) to require
that the U.S. receiving facility submit to EPA a copy of the EPA
consent documentation along with the RCRA hazardous waste manifest
within thirty days of import shipment delivery. Both proposed
amendments were intended to improve EPA's oversight of such imports.
For a more detailed description of the proposed revisions, as well as
the intended benefits of each revision, please see Section I.D of the
proposed rule (73 FR 58390 and following pages).
The Agency received four sets of comments in response to its
October 6, 2008 proposal. The more significant comments on this
proposal are addressed later in this preamble, but all are addressed in
background documents for today's final rule, which are in the docket.
After considering all comments, we are finalizing the revisions
substantially as proposed, with one modification.
III. Summary of the Final Rule
A. Changes to 40 CFR 262.10(d)
This final rule updates Sec. 262.10(d) to reflect that export
shipments of SLABs being managed under 40 CFR part 266, subpart G that
are destined for recovery in any of the OECD Member countries listed in
Sec. 262.58(a)(1) are now subject to 40 CFR part 262, subpart H. This
change is necessary to conform with the scope in the updated Sec.
262.80(a).
B. Changes to 40 CFR Part 262, Subpart E
This final rule amends the exception reporting requirements in
Sec. 262.55 to specify that all exception reports be submitted to the
International Compliance and Assurance Division in the Office of
Enforcement and Compliance Assurance's Office of Federal Activities in
Washington, DC rather than to the Administrator. In addition, this rule
also updates Sec. 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 any of the OECD Member countries listed in Sec.
262.58(a)(1) are subject to the requirements of subpart H. Finally,
this rule adds language in Sec. 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.
C. Changes to 40 CFR Part 262, Subpart H
All but the last three changes discussed 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 final rule adopts the following changes in
terminology:
``Transfrontier'' to ``transboundary'';
``Tracking document'' to ``movement document'';
``Amber-list controls'' to ``Amber control procedures'';
``Notifier'' to ``exporter''; and
``Consignee'' to ``importer.'' \3\
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\3\ 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.
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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-tiered waste list
(Green, Amber, and 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 making 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. 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 are 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 when implementing the export and import
procedures. 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 necessary to
ensure that wastes not yet explicitly listed under the Basel Convention
will continue to have the same level of control applied to them when
destined for recovery under the Amended 2001 OECD Decision.
Both the Green waste list and the Amber waste list are cited in
Sec. 262.89. This rule amends Sec. 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 Sec. 262.89(b) and
(c), which appears in new final Sec. 262.89(b).
[[Page 1241]]
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) previously addressed the general notification
requirements for unlisted wastes. Today's rule renumbers this section
as Sec. 262.83(c) since the previous Sec. 262.83(c) addressed ``Red-
list wastes,'' which is no longer included in the final rule. Today's
rule also replaces the term ``unlisted wastes'' with the phrase
``wastes not covered in Appendices 3 and 4 of the OECD Decision,'' \4\
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.
---------------------------------------------------------------------------
\4\ Section 262.81 in the final 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; C(2005)141 and C(2008)156'' for
the purposes of the subpart.
---------------------------------------------------------------------------
4. Transboundary Movements May Now Qualify for a Laboratory Analysis
Exemption
The Amended 2001 OECD Decision allows 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 (e.g., the existing controls normally applied
in commercial transactions) if such samples are destined for laboratory
analyses to assess its physical or chemical characteristics, or to
determine its suitability for recovery operations, and providing that
the amount of the waste samples qualifying for this exemption are not
more than the minimum quantity reasonably needed to perform the
analyses adequately in each particular case up to a maximum of 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.
This final rule allows waste samples that are sent for laboratory
analyses to be controlled under the Green control procedures, as
opposed to the Amber control procedures, provided they meet the same
conditions as set forth in the Amended 2001 OECD Decision.
U.S. exporters should be aware, however, that even if their
shipments qualify for the laboratory analyses exemption under U.S.
domestic law, some Member countries may elect to still 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. Therefore, we recommend that U.S. exporters 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 final rule implements 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
(i.e., exporter, country of export, country of import), documenting
that recovery of the waste has been completed. A valid certificate of
recovery is defined as a signed, written and dated statement that
affirms that the waste was recovered in the manner agreed to by the
parties to the contract.\5\ This final 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 the waste by the recovery
facility 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 final rule incorporates the certificate of recovery
provisions of the Amended 2001 OECD Decision in Sec. 262.83(e).
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\5\ 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
19 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 importing 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 Amended 2001 OECD Decision 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 U.S.
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 the Notification Requirements
The Amended 2001 OECD Decision introduced a series of notification
requirements that oblige EPA to make conforming amendments to its
hazardous waste regulations. Specifically, this final rule amends Sec.
262.83(e) (which has been renumbered as Sec. 262.83(d)) by
incorporating several new items that must be included in the
notification, including:
Exporter and importing recovery facility e-mail address;
E-mail address for importer (if different from the
importing recovery facility);
Address, telephone, fax, and e-mail of intended
transporter(s);
Means of transport envisioned; and
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 and its predecessor, 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 certain hazardous waste imports under simplified and
accelerated notification procedures. 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.
Pre-approval may be granted for a specific time frame
[[Page 1242]]
and may be revoked at any time by the relevant competent authority.
The Amended 2001 OECD Decision established a time period for
objection to transboundary movements to pre-approved facilities and
lengthened the allowable coverage period for notifications.
Specifically, the Decision established a time period of seven (7)
working days during which the relevant competent authorities may object
to the transboundary movements of waste to pre-approved facilities. The
Decision also established that the allowable coverage period for
general notifications (or the period of time for which consent may be
granted) may extend up to three (3) years. Today's final rule amends
the current regulations to incorporate these changes in Sec.
262.83(b)(2)(ii) to reflect the seven (7) day time period and in Sec.
262.83(b)(2)(i) to reflect the allowable coverage period of up to three
(3) years for notifications.
8. New Procedures for the Pretreatment of Hazardous Wastes at R12/R13
Recovery Facilities
The final rule incorporates the Amended 2001 OECD Decision's new
requirements for R12 and R13 recovery facilities. R12 and R13 recovery
facilities are transfer and storage/accumulation facilities,
respectively, that do not recover the wastes themselves. Because
hazardous wastes destined for recovery may have to undergo treatment
before a R1-R11 \6\ 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 hazardous
waste and completes its recovery in an environmentally sound manner.
---------------------------------------------------------------------------
\6\ Recovery operations R1 through R11 are defined as follows:
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.
---------------------------------------------------------------------------
Specifically, when the notification document lists an R12/R13
recovery facility, 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. In addition, 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;
Retain the original movement document for three (3) years;
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; and
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 the transboundary movement 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 Member country, the R12/R13 recovery facility must obtain from the
subsequent R1-R11 recovery facility a certificate 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 certificate of recovery
is not fixed, but it must, at a minimum, identify the code number of
the notification document and the 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, a new notification must be made
for the transboundary movement of hazardous waste by the R12/R13
recovery facility. In addition, the applicable procedures differ
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 apply, but also 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, export, and transit.
For example, if a hazardous waste is exported from the United States to
a R12/R13 facility in France, and then will be sent to a subsequent R1-
R11 recovery facility in Germany, the R12/R13 facility in France must
submit a notification to and obtain consent from France (the new
country of export), the United States (the original country of export)
and Germany (the new country of import for final recovery).
The final rule incorporates all of these requirements in Sec.
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
[[Page 1243]]
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 final rule, EPA has revised the text in Sec. 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 the Amber control procedures, the
final 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 final rule imposes these requirements in 40
CFR 262.82(a)(3).
10. New Provisions Regarding the Return and Re-Export of Hazardous
Wastes Subject to the Amber Control Procedures
This final rule adopts 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 is subject to
the Amber control procedures and 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 hazardous 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. 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 the 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,
unless the concerned countries agree to another period of time. 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 country of transit, the competent authority of that country
is to be notified and consent obtained in accordance with the normal
Amber control procedures.
When the incident occurs in the United States, the U.S. importer
must inform EPA of the need to return the shipment. EPA will then
inform the countries of export and transit, citing the reason(s) for
returning the waste, and request written consent to the return by any
transit country as needed. If the return shipment will cross any
transit country, the return shipment may only occur after EPA provides
a copy of the transit country's consent to the U.S. importer. The U.S.
importer must complete the return within ninety (90) days from the time
EPA informs the country of export of the need to return the waste
unless otherwise informed by EPA in writing of an alternate timeframe
for the return.
When the incident involves an export shipment from the United
States, the U.S. exporter must provide for the return of the hazardous
waste shipment within ninety (90) days from the time the country of
import informs EPA of the need to return the shipment unless otherwise
informed by EPA in writing of an alternate timeframe for the return.
The U.S. exporter must also submit an exception report to EPA.
(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 exporter of the
hazardous waste 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. Re-
export of a hazardous waste shipment from the United States to a third
country may therefore only occur after the importer (acting as the new
exporter) submits a notification to EPA in compliance with the notice
and consent procedures of Sec. 262.83 and obtains consent from the
original country of export, the new country of import, and any transit
countries.
(c) Return of Hazardous Waste From the Country of Transit to the
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 destined. The
competent authority of the country of transit is to immediately inform
the competent authorities of the countries of export and import and any
[[Page 1244]]
other countries of transit. If the exporter is unable to arrange for
the recovery of the hazardous waste in an environmentally sound manner
at the recovery facility to where it was originally destined, the
hazardous waste should be returned, adhering to subsection (a) above,
to the country of export within ninety (90) days from the time when the
country of export was informed of the incident or such other period of
time as the concerned countries agree. The competent authorities of the
country of export and the countries of transit are to be informed of
the return, but they are prohibited from opposing or preventing the
return of the hazardous wastes to the country of export, so long as the
movement complies with the requirements set out by the country of
export's domestic law.
When the United States is the transit country where the incident
occurs, the U.S. transporter must inform EPA of the need to return the
shipment. EPA will then inform the country of export, citing the
reason(s) for returning the waste. The U.S. transporter must then
complete the return within ninety (90) days from the time EPA informs
the country of export of the need to return the waste unless otherwise
informed by EPA in writing of an alternate timeframe for the return.
When the waste shipment from the incident originated in the United
States, the U.S. exporter must provide for the return of the hazardous
waste shipment within ninety (90) days from the time the country of
transit informs EPA of the need to return the shipment unless otherwise
informed by EPA in writing of an alternate timeframe for the return.
The U.S. exporter must also submit an exception report to EPA.
This final rule sets forth these re-export and return provisions of
the Amended 2001 OECD Decision in Sec. Sec. 262.82(c), 262.82(d), and
262.82(e).
11. SLABs Are Now Covered by EPA's OECD Rule
This final rule updates Sec. 262.80(a) and Sec. 262.89(a) to
reflect that export shipments of SLABs being managed under 40 CFR part
266, subpart G that are destined for recovery in any of the OECD Member
countries listed in Sec. 262.58(a)(1) are subject to 40 CFR part 262,
subpart H.
12. Technical Corrections to EPA's OECD Rule
This final 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
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 final rule amends the exception reporting requirements in
Sec. 262.87(b) to specify that all exception reports are to be
submitted to the International Compliance and Assurance Division in the
Office of Enforcement and Compliance Assurance's Office of Federal
Activities in Washington, DC rather than the Administrator.
D. Changes to 40 CFR 263.10(d)
This final rule updates Sec. 263.10(d) to reflect that export
shipments of SLABs being managed under 40 CFR part 266, subpart G that
are destined for recovery in any of the OECD Member countries listed in
Sec. 262.58(a)(1) are now subject to 40 CFR part 262, subpart H. This
change is necessary to conform with the scope in the updated Sec.
262.80(a).
E. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)
This final rule amends Sec. Sec. 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. This change is
necessary to conform to the Amended 2001 OECD Decision.
F. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)
This final rule amends Sec. Sec. 264.71(a)(3) and 265.71(a)(3) by
requiring owners or operators of facilities receiving imported
hazardous wastes to submit to EPA a copy of the relevant written
documentation of EPA's consent to the import along with a copy of the
RCRA hazardous waste manifest for the incoming shipment 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.
G. Changes to 40 CFR 266.80(a)
EPA is amending the table located at 40 CFR 266.80 by including two
additional rows to the current table. These additional rows contain the
new provisions that require exporters and transporters of SLABs being
sent to a foreign country for reclamation to meet the universal waste
requirements concerning the export of SLABs for reclamation.
Specifically, exporters will need to either comply with the
requirements in 40 CFR part 262, subpart H when the shipments are
destined to any of the OECD Member countries listed in Sec.
262.58(a)(1), or with the following requirements when the shipments are
destined for any country not listed in Sec. 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 will need to comply with the applicable requirements in 40
CFR part 262, subpart H when the shipments are destined to any of the
OECD Member countries listed in Sec. 262.58(a)(1). For export
shipments of SLABs destined for a country not listed in Sec.
262.58(a)(1), such as Canada or Mexico, the transporter will not be
able to accept a shipment if the transporter knows the shipment does
not conform to the EPA Acknowledgment of Consent, and will have to
ensure that:
A copy of the EPA Acknowledgment of Consent accompanies
the shipment; and
The shipment is delivered to the foreign facility
desi