[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Proposed Rules]
[Pages 58388-58416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22536]
[[Page 58387]]
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Part V
Environmental Protection Agency
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40 CFR Parts 262, 264, et al.
Revisions to: The Requirements for Transboundary Shipments of Wastes
Between OECD Countries, the Requirements for Export Shipments of Spent
Lead-Acid Batteries, the Requirements on Submitting Exception Reports
for Export Shipments of Hazardous Wastes, and the Requirements for
Imports of Hazardous Wastes; Proposed Rule
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 /
Proposed Rules
[[Page 58388]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 262, 264, 265, 266, and 271
[EPA-HQ-RCRA-2005-0018; FRL-8720-3]
RIN 2050-AE93
Revisions to: The Requirements for Transboundary Shipments of
Wastes Between OECD Countries, the Requirements for Export Shipments of
Spent Lead-Acid Batteries, the Requirements on Submitting Exception
Reports for Export Shipments of Hazardous Wastes, and the Requirements
for Imports of Hazardous Wastes
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend certain existing regulations
promulgated under the hazardous waste provisions of the Resource
Conservation and Recovery Act (RCRA) regarding the export and import of
hazardous wastes from and into the United States. Specifically, we are
proposing to modify: The requirements to implement the OECD framework
concerning the transboundary movement of hazardous waste among
countries belonging to the Organization for Economic Cooperation and
Development (OECD), including reducing the number of control levels,
exempting qualifying shipments sent for laboratory analyses from
certain paperwork requirements, requiring recovery facilities to submit
a certificate of recovery, adding provisions for the return or re-
export of wastes subject to the Amber control procedures, and
clarifying certain existing provisions that were identified as
potentially ambiguous to the regulated community; the regulations
regarding the management of spent lead-acid batteries being reclaimed
to require appropriate notice and consent for those batteries intended
for reclamation in a foreign country; the exception reporting
requirements for hazardous waste exports to specify that all exception
reports submitted to EPA be sent to the Office of Enforcement and
Compliance Assurance's Office of Federal Activities in Washington, DC
rather than to the Administrator; and the hazardous waste import
requirements such that U.S. importers would give the initial
transporter a copy of the EPA-provided documentation confirming EPA's
consent to the import when they provide the RCRA hazardous waste
manifest, and that the documentation would be submitted by the U.S.
receiving facility to EPA along with the RCRA hazardous waste manifest
within thirty days of import shipment delivery. Finally, separate from
this proposed rule, EPA is publishing in http://www.epa.gov/epawaste/hazard/international/oecd-slab-rule.htm a draft guidance document on
how U.S. receiving facilities may request EPA to identify them as pre-
approved facilities to receive hazardous waste from OECD Member
countries.
DATES: Comments must be received on or before December 5, 2008. Under
the Paperwork Reduction Act, comments on the information collection
provisions must be received by OMB on or before November 5, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2005-0018, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected], Attention Docket No. EPA-HQ-
RCRA-2005-0018.
Fax: (202) 566-9744, Attention Docket No. EPA-HQ-RCRA-
2005-0018.
Mail: RCRA Docket No. EPA-HQ-RCRA-2005-0018, Environmental
Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460. Please include a total of 2 copies. In addition,
please mail a copy of your comments on the information collection
provisions to the Office of Information and Regulatory Affairs, Office
of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th
St. NW., Washington, DC 20503.
Hand Delivery: RCRA Docket No. EPA-HQ-RCRA-2005-0018, EPA
West Building, Room 3334, 1301 Constitution Ave., NW., Washington DC
20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2005-0018. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744 and the telephone number for the
RCRA Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: Laura Coughlan, Hazardous Waste
Identification Division, Office of Solid Waste (5304P), Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
telephone number: (703) 308-0005; fax number: (703) 308-0514; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. General Information
A. List of Acronyms Used in This Proposed Rule
B. What are the statutory authorities for this proposed rule?
C. Does this proposed rule apply to me?
D. What is the purpose of this proposed rule?
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II. Background
A. OECD Revisions
B. SLAB Revisions
C. Exception Report Revisions for Exports Under Subparts E and H
of 40 CFR Part 262
D. Import Revisions
III. Summary of This Proposed Rule and Changes
A. Changes to 40 CFR Part 262, Subpart E
B. Changes to 40 CFR 262.60(e), Subpart F
C. Changes to 40 CFR Part 262, Subpart H
D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)
E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)
F. Changes to 40 CFR 266.80(a)
G. Changes to 40 CFR 271.1
IV. Costs and Benefits of the Proposed Rule
A. Introduction
B. Analytical Scope
C. Cost Impacts
D. Benefits
V. State Authorization
A. Applicability of Rules in Authorized States
B. Effect on State Authorization
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. List of Acronyms Used in This Proposed Rule
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Acronym Meaning
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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
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B. What are the statutory authorities for this proposed rule?
The authority to propose this rule is found in sections 1006, 1007,
2002(a), 3001-3010, 3013-3015, and 3017 of the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act (RCRA),
and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C.
6905, 6906, 6912, 6921-6930, 6934-6936, and 6938.
C. Does this proposed rule apply to me?
1. OECD Revisions
The OECD revisions in this proposed rule affect all persons who
export or import hazardous waste, export or import universal waste, or
export spent lead-acid batteries (SLABs) destined for recovery
operations in countries belonging to the Organization for Economic
Cooperation and Development (OECD), except for Mexico and Canada. Any
transboundary movement of hazardous wastes between the United States
and either Mexico or Canada will continue to be regulated by their
respective bilateral agreements and applicable regulations. Potentially
affected entities may include, but are not limited to:
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Industry sector NAICS SIC
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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
Materials Recovery Facilities................. 562920 4953
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2. SLAB Revisions
The SLAB revisions in this proposed rule affect all persons who
export SLABs for reclamation in any foreign country. Potentially
affected entities may include, but are not limited to:
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Industry sector NAICS SIC
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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
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Recyclable Material Wholesaler................ 423930 5093
Other Waste Collection........................ 562119 4212
Recyclable Material Collection Services, Solid 562111 4212
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................................
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3. Exception Report Revisions for Exports Under Subparts E and H of 40
CFR Part 262
The exception report change to 40 CFR part 262, subpart E and
subpart H of this proposed rule affect all persons who export hazardous
waste, universal waste, or SLABs to any foreign country. Potentially
affected entities may include, but are not limited to:
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Industry sector NAICS SIC
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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................... 339 39
Scrap and Waste Materials..................... 423930 5093
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4. Import Revisions
The import revisions in this proposed rule affect all persons
importing hazardous waste from a foreign country that must comply with
40 CFR part 262, subpart F, and all facilities receiving imported
hazardous waste from a foreign country that must comply with either
264.71(a)(3) or 265.71(a)(3). This includes those hazardous waste
import shipments originating in OECD countries, as well as in non-OECD
countries. Potentially affected entities may include, but are not
limited to:
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Industry sector NAICS SIC
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Hazardous Waste Collectors.................... 562112 4212
Recyclable Material Hauling, Long-Distance.... 484230 4213
Recyclable Material Wholesaler................ 423930 5093
Other Waste Collection........................ 562119 4212
Recyclable Material Collection Services, Solid 562111 4212
Waste Collection.............................
General Freight Trucking, Long-Distance, TL... 484121 4213
Scrap and Waste Materials..................... 423930 5093
Materials Recovery Facilities................. 562920 4953
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The lists of potentially affected entities in the above tables may
not be exhaustive. The Agency's aim is to provide a guide for readers
regarding those entities that potentially could be affected by this
action. However, this action may affect other entities not listed in
these tables. If you have questions regarding the applicability of this
proposed rule to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
D. What is the purpose of this proposed rule?
1. OECD Revisions
This proposed rule is intended to implement the OECD's ``Decision
of the Council C(2001)107/FINAL, Concerning the Control of
Transboundary Movements of Wastes Destined for Recovery Operations, as
amended by C(2004)20'' (hereinafter referred to as the Amended 2001
OECD Decision), which amended the OECD Decision (1992) on the same
subject. The purpose of these revisions was to encourage consistency
and harmonization between the OECD and the Basel Convention,\1\ which
in turn, promotes economic
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efficiency and the recovery of waste in an environmentally sound
manner.
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\1\ The Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal is a comprehensive
global environmental agreement on hazardous and other wastes. The
Convention has 170 Member countries, also known as Parties, and aims
to protect human health and the environment against the adverse
effects resulting from the generation, management, transboundary
movements and disposal of hazardous and other wastes. More
information on the Basel Convention may be found at http://www.basel.int.
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The Amended 2001 OECD Decision was supported by the United States
and imposes legally binding commitments on the United States pursuant
to Articles 5(a) and 6 of the OECD Convention. By consenting to the
Decision, the United States Government has agreed to promulgate
regulations necessary to ensure that the United States can uphold the
agreement.
Further, this proposed rule clarifies certain regulations to
articulate more explicitly EPA's original intent in those regulations
and to eliminate any confusion on the part of the regulated community.
2. SLAB Revisions
EPA also proposes to amend the RCRA hazardous waste regulations for
SLABs specified in 40 CFR part 266, subpart G by requiring notification
and consent for the export of SLABs in order to ensure that SLABs are
sent to reclamation facilities in countries that can manage them in an
environmentally sound manner. The notification and consent requirements
are intended to: (1) Reduce potential risk to human health and the
environment, including potential risk from the transboundary movement
of pollution from other countries to the U.S., and (2) harmonize the
notice and consent procedures with international practice (see II.B.4)
and with the RCRA universal waste regulations for the export of SLABs,
resulting in a more uniform practice for notification and consent for
SLABs.
Notification of potential exports of hazardous waste destined for
recovery in another country is a key component of multilateral
environmental systems for appropriate governmental oversight to ensure
proper management of the waste. The notification mechanism allows for
all concerned countries (i.e., exporting, importing, and transit) to
determine whether the hazardous waste can be handled safely based on
the requirements of their waste management systems. Specifically, the
importing country has the opportunity to confirm that the particular
facility that is designated to receive the waste is qualified to manage
it in a safe and environmentally sound manner, and has all appropriate
approvals, permits, or licenses. Furthermore, the notice and consent
process is the fundamental tool that is employed in transboundary waste
arrangements to provide business certainty for legitimate trade.
Risks to human health and the environment derived from improper
SLAB recycling techniques are of major concern internationally. The
Basel Convention has developed two guidance documents 2 3 to
assist governments, transporters, and recyclers to achieve
environmentally sound management of SLABs. Indeed, the Basel Convention
considers transboundary movement of SLABs to be ``illegal traffic'' if
it occurs without prior notification. Similar guidance was developed by
the Commission for Environmental Cooperation \4\ (CEC) for use by North
American countries to promote sound management of SLABs.\5\ A 1996 OECD
Ministerial Declaration on risk reduction from lead called on Member
countries to take domestic and international action to reduce human
exposure to lead from a variety of sources.\6\ Further, the Report of
the Special Rapporteur of the U.N. Commission on Human Rights \7\
expressed concerns that ``the United States system does not impose
export regulations on SLABs destined for recycling,'' and suggests that
``the recycling of lead-acid batteries is one of the greatest potential
sources of risk, especially for exposed workers in the informal sector
in many developing countries.''
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\2\ Basel Convention Training Manual: National Management Plans
for Used Lead Acid Batteries, SBC No. 2004/5, 2004.
\3\ Technical Guidelines for the Environmentally Sound
Management of Waste Lead-acid Batteries, SBC No. 2003/9, 2003.
\4\ The Commission for Environmental Cooperation is an
international organization created by Canada, Mexico and the United
States under the North American Agreement on Environmental
Cooperation (NAAEC). The CEC was established to address regional
environmental concerns, help prevent potential trade and
environmental conflicts, and to promote the effective enforcement of
environmental law. The Agreement complements the environmental
provisions of the North American Free Trade Agreement (NAFTA).
\5\ Practices and Options for Environmentally Sound Management
of Spent Lead-acid Batteries within North America, Commission for
Environmental Cooperation, December 2007.
\6\ The Global Pursuit of the Sound Management of Chemicals, The
World Bank, February 2004.
\7\ Adverse effects of the illicit movement and dumping of toxic
and dangerous products and wastes on the enjoyment of human rights,
U.N. Commission on Human Rights, Economic and Social Council, E/
CN.4/2003/56/Add.1, 10 January 2003, p. 17.
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For economic and efficiency reasons, some highly industrialized
countries may ship their SLABs to less industrialized countries for
SLAB breaking, draining, component separation, slag generation and lead
refining. Human health and environmental risk issues can arise when
these recycling processes are performed with insufficient human health
or environmental safety controls. The results could include: (1)
Significant increases in elevated blood lead levels in facility workers
and their families; (2) increases in uncontrolled releases of lead-
laden slag to soil, surface water and ground water sources; and (3)
lead air-emissions from lead smelting without the proper air-emissions
controls.
EPA would like to focus on the use of preventative measures to
decrease the proportionate risks to human health and the global
environment. There are inherent human health and environmental hazards
associated with a significant amount of SLABs being exported across
borders without the knowledge and consent of receiving countries and/or
SLABs being exported to countries with substandard smelting
infrastructures. Amending the current RCRA hazardous waste regulations
to include the notification and consent requirements would help ensure
that SLABs are exported to countries with the capacity to handle them
in an environmentally sound manner and to aid countries with tracking
the movements and life-cycle management of SLABs inside their borders.
EPA believes that the notification and consent approach is an effective
way of preventing the export of SLABs to countries and to facilities
that do not have the capability of safely managing the SLABs by
providing the receiving country with the necessary information about
the proposed shipment and requiring its consent before the export can
proceed. In addition, by providing the receiving country with this
information, they can monitor and track the export and the facility's
management of the SLABs for safe management. The purpose of the
notification and consent requirements for SLABs destined for
reclamation in this proposed rule is consistent with the purpose of the
notification and consent requirements in RCRA section 3017. Congress,
in enacting section 3017, considered it important to require
notification and consent for exports of hazardous wastes. The
legislative history for section 3017 indicates that Congress felt that
prior notification of an export to the receiving country would allow
that country to make an informed decision as to whether it would accept
the waste and, if so, how it would safely manage that waste. Congress
noted that problems, such as harm to human health and the environment
arise when wastes are sent to countries that do not want to receive
them, or lack sufficient information to manage them properly.
EPA believes that the potential reduction in risk to human health
and the environment with this proposed modification will outweigh the
incremental increase in burden to SLAB exporters. Moreover, because the
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notification and consent requirements are intended to ensure that the
receiving country has the necessary advance knowledge of a proposed
shipment of SLABs to a facility in that country, the country can
properly consent (or object) to this shipment based on its knowledge of
the capabilities of the particular facility and its ability to manage
the batteries in a safe and environmentally sound manner.
3. Exception Report Revisions for Exports Under Subparts E and H of 40
CFR Part 262
EPA proposes to amend the exception reporting requirements in 40
CFR part 262, subparts E and H, to specify that all exception reports
be submitted to the Office of Enforcement and Compliance Assurance's
Office of Federal Activities in Washington, DC rather than to the
Administrator.\8\ The Agency proposes this change because it believes
that a more specific address should assist in proper delivery of the
exception report to the appropriate EPA office. The more general
requirement in the existing regulation to send this report to the
``Administrator'' may have not provided sufficiently specific
instruction for those exporters trying to notify EPA of returned
shipments, which could reduce EPA's ability to provide oversight on
such exports. Directing that all exception reports submitted to EPA
pursuant to the requirements in 40 CFR part 262, subparts E and H, be
sent to a specific address should ensure better oversight of (1) return
shipments into the U.S. and (2) compliance with the exception report
requirements without additional regulatory burden.
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\8\ The Office of Enforcement and Compliance Assurance is the
office within EPA that implements the notice and consent scheme for
hazardous waste transboundary shipments.
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4. Import Revisions
Finally, EPA proposes to amend the import requirements specified in
40 CFR part 262, subpart F. This change would require that the U.S.
importer provide the transporter with a copy of documentation provided
by EPA, confirming EPA's consent to the hazardous waste import under a
specific notice. This documentation would then accompany each RCRA
hazardous waste manifested import shipment and be submitted by the
receiving facility in the U.S. to EPA along with the RCRA hazardous
waste manifest in accordance with Sec. Sec. 264.71(a)(3) and
265.71(a)(3). While EPA currently requires that receiving facilities in
the U.S. submit a copy of the hazardous waste manifest to EPA to
document individual import shipments, it has been difficult for EPA to
match an individual manifest for a hazardous waste import shipment with
the related notice of intent to export from a foreign country for which
EPA has provided consent. One major reason for this difficulty is
because a given destination facility in the U.S. could be receiving the
same hazardous waste from the same foreign exporter under more than one
notice. Adding this requirement will enable EPA to better match the
individual import shipments against the related notice from the foreign
exporting country for which EPA has provided consent, and facilitate
our oversight of such imports.
II. Background
A. OECD Revisions
1. What is the OECD?
The OECD is an international organization established in 1960 to
assist Member countries in achieving sustainable economic growth,
employment, and an increased standard of living, while simultaneously
ensuring the protection of human health and the environment. OECD
Member countries are concerned with a host of international socio-
economic and political issues, including environmental issues. To
address these issues, the OECD Council may negotiate Council Decisions,
which are international agreements that create binding commitments on
the United States under the terms of the OECD Convention, unless
otherwise provided in the Articles of the 1960 Convention. One such
Council Decision addresses the transboundary movement of waste, which
is the subject of this proposed rule. There are currently thirty OECD
Member countries: Australia, Austria, Belgium, Canada, the Czech
Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland,
Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, New
Zealand, Norway, Poland, Portugal, the Slovak Republic, South Korea,
Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United
States. The OECD country Web site for each Member country may be found
at http://www.oecd.org/infobycountry/.
2. What OECD Decision formed the basis for the existing regulations in
40 CFR part 262, subpart H?
On March 30, 1992, the OECD Council adopted the ``Decision of the
Council C(92)39/FINAL Concerning the Control of Transfrontier Movements
of Wastes Destined for Recovery'' (hereinafter referred to as the 1992
Decision), which applied to the transboundary movements of wastes
destined for recovery operations between OECD Member countries. The
1992 Decision provided a framework for OECD Member countries to control
the transboundary movement of recoverable wastes in an environmentally
sound and economically efficient manner.
3. Why did EPA establish the existing regulations in 40 CFR part 262,
subpart H?
Due to the legally binding nature of the 1992 Decision, the United
States, as an OECD Member country, was required to implement the terms
of the decision in accordance with Articles 5(a) and 6 of the OECD
Convention. (A copy of the OECD Convention is included in the docket to
this proposed rule.) In order to implement the specific provisions of
the 1992 Decision, EPA published a final rule in the Federal Register
entitled, ``Imports and Exports of Hazardous Waste: Implementation of
OECD Council Decision C(92)39 Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations'' (61 FR 16289,
April 12, 1996)(hereafter referred to as EPA's OECD rule). These
regulations appear primarily in 40 CFR part 262, subpart H.
4. What OECD Decisions form the basis of the revisions in this proposed
rule?
On June 14, 2001, the OECD Council amended the 1992 Decision by
passing ``Revision of Decision C(92)30/FINAL on the Control of
Transboundary Movement of Wastes Destined for Recovery Operations''
(hereafter referred to as the 2001 OECD Decision). The goal of the 2001
OECD Decision was to harmonize the procedures and requirements of the
OECD with those of the Basel Convention and to eliminate duplicative
activities between the two international organizations as much as
practical. These changes include significant 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
[[Page 58393]]
May 2002 as C(2001)107/FINAL. Finally, on March 30, 2004, the OECD
Council adopted C(2004)20 (hereafter referred to as the 2004 OECD
Amendment), which updated the OECD waste lists, entitled ``Appendix 3:
List of Wastes Subject to the Green Control Procedure'' (hereafter
referred to as the Green list) and ``Appendix 4: List of Wastes Subject
to the Amber Control Procedure'' (hereafter referred to as the Amber
List). To the extent possible, the Green and Amber Lists were revised
based on the amendments made to Annexes II, VIII, and IX of the Basel
Convention in November 2003. The OECD Council decisions are
collectively referred to as the Amended 2001 OECD Decision.
5. How does EPA propose to revise the existing regulations to implement
the latest OECD Decisions?
This rule proposes to amend EPA's OECD rule to reflect the
procedural and substantive amendments in the 2001 OECD Decision, the
applicable changes to the new notification and movement documents
presented in the 2001 OECD Addendum, and the changes to the OECD waste
lists as presented in the 2004 OECD Amendment, collectively referred to
as the Amended 2001 OECD Decision. This proposed rule also seeks to
clarify certain existing regulatory provisions that have been
identified as potentially ambiguous to the regulated community.
As noted previously, OECD Council Decisions are international
agreements that create binding commitments on the United States, unless
otherwise provided in the Articles to the 1960 Convention. Therefore,
by consenting to the Amended 2001 OECD Decision, the United States
Government has agreed to establish legal measures necessary to ensure
that the United States can uphold the agreement. EPA believes that RCRA
contains adequate authority to promulgate the requirements of the
Amended 2001 OECD Decision.
It is important to recognize that the OECD Decision allows a Member
country to determine if a waste on an OECD list is hazardous based on
its ``national procedures.'' EPA has determined that a waste is
hazardous under U.S. ``national procedures''--and therefore subject to
the OECD provisions of Subpart H--if the waste meets the following
requirements under RCRA: (a) Meets the Federal definition of hazardous
waste in 40 CFR 261.3; and (b) is subject to either the Federal
hazardous waste manifesting requirements in 40 CFR 262, or to the
universal waste management standards of 40 CFR part 273, or to State
requirements analogous to Part 273. This determination was set forth in
Sec. 262.89(a), and additional discussion on how this provision
impacts transboundary movements of wastes subject to RCRA exemptions,
exclusions and recycling provisions can be found in the April 12, 1996,
preamble to the original OECD rule (61 FR 16290-16316).
6. How does EPA propose to implement future OECD revisions?
(a) Changes to OECD Member Country List
Qualified countries may be invited to accede to the OECD Convention
as new Members. The OECD Convention defines qualified countries as
those that have demonstrated the basic values shared by all Members: An
open market economy, democratic pluralism, and respect for human
rights. Any decision to invite a new country to become a Member of the
OECD must be unanimous, although abstentions may be allowed. Thus, no
new Member may be admitted over the objection of the United States (or
any other Member).
In order to accommodate changes in OECD membership as quickly as
possible, EPA intends to publish in the Federal Register any future
amendments to the list of OECD Member countries set forth in Sec.
262.58(a)(1), as the OECD adds new Member countries or otherwise amends
its list in the future. EPA intends to publish notices of these future
amendments to Sec. 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 Sec. 262.58(a)(1) to reflect the
updates to the OECD list of Member countries would be unnecessary,
because the United States, as an OECD Member country, is legally
obligated to implement OECD Decisions with respect to all OECD Member
countries.
(b) Changes to OECD Waste List
The OECD waste list is incorporated by reference and cited in Sec.
262.89(d). If the OECD amends its waste list in the future by decision
of the OECD Council (with the concurrence of the United States), EPA
intends to publish notices of these amendments in the Federal Register
as a final rule without prior notice and an opportunity for comment.
EPA believes that the Agency would be able to make a ``good cause''
finding under the Administrative Procedure Act (APA) (5 U.S.C.
553(b)(3)(B)) to make these future amendments without prior notice and
comment because the purpose of Sec. 262.89(d) is solely
informational--to provide an up-to-date reference of the OECD list.
Public comment on such updates is unnecessary, as EPA would have no
discretion to modify the OECD list. As discussed above, U.S. national
procedures, rather than the OECD list, ultimately determine the
applicability of Subpart H, recognizing that the OECD list will be
relevant for exports to other OECD members.
B. SLAB Revisions
1. What are SLABs?
Lead-acid batteries are secondary, wet cell batteries that contain
liquid and can be recharged for many uses. They are the most widely
used rechargeable batteries in the world and are mainly used as
starting, lighting, and ignition (SLI) power batteries found in
automobiles and other vehicles. A rechargeable SLAB is spent if it no
longer performs effectively and cannot be recharged. Battery failure is
most commonly attributed to water loss and grid corrosion during normal
use. SLABs are considered both solid and hazardous wastes under
Subtitle C of RCRA, because they are classified as spent materials that
exhibit the toxicity characteristic for lead, and the corrosivity
characteristic for the sulfuric acid electrolyte in the battery.
Lead-acid batteries are typically composed of an outside plastic
casing and six inner cells containing lead strips and positive and
negative lead terminals. Each cell is made up of two lead frameworks,
the positive plate being lead dioxide and the negative plate being
spongy lead (a metallic lead in a high-surface-area porous structure).
Each cell is filled with sulfuric acid as the electrolyte. When the
battery is in use, the spongy lead, sulphuric acid, and lead dioxide
react to produce an electrical current. Both electrodes are converted
to lead sulfate, a process which is reversed during recharge.
2. How are SLABs currently managed?
Currently, SLABs are either reclaimed for their lead value or
disposed of. The Battery Council International (BCI) reported a 99.2
percent domestic SLAB reclamation rate for the years 1999-2003, making
lead-acid batteries one of the most recycled consumer products. When a
SLAB is collected, it is sent to a reclaimer where the SLABs are
cracked through various means, such as
[[Page 58394]]
a hammermill in order to separate out the lead, battery casing, plate
separators, and sulfuric acid components into recycling streams and
disposal streams. Specifically, the lead plates, lead oxide paste and
other lead parts are cleaned and then melted together in smelting
furnaces to produce lead ingots along with residual lead dross and
slag. The residual lead dross and slag may be reclaimed further or
disposed of in a landfill. Used sulphuric acid can be (1) Sent for acid
regeneration, where the acid is cleaned for re-use as electrolyte in
the battery manufacturing process, (2) neutralized and released into a
public sewer system once it meets Clean Water Act standards, or (3)
converted into sodium sulfate, an odorless white powder that's used in
laundry detergent, glass and textile manufacturing. If it is a plastic-
cased battery, the plastic is either cleaned and recycled as new
battery casings or disposed of at a landfill. If the battery casing is
made of rubber or other materials, it can be used as a fuel at the
smelter. Other materials from batteries are either recycled or disposed
of in a landfill.
Lead is a highly toxic heavy metal naturally occurring in the
environment. For this reason, proper management of lead and lead-
containing products is essential to the protection of human health and
the environment. In the U.S., the Occupational Safety and Health
Administration (OSHA) has developed standards to address and minimize
workplace exposure to lead (29 CFR Sec. 1910.1025). These standards
establish permissible exposure limits; exposure monitoring, respiratory
protection and safety procedures; and proper warning and sign-age
requirements for facilities processing lead. Proper ventilation,
training and safety procedures also are necessary. In less developed
countries, these precautions may be overlooked, leading to dangerous
conditions. (See ``A Study of the Lead-Acid Battery Industry and Spent
Lead-Acid Battery Exports,'' June 2003, a copy of which is included in
the RCRA docket established for this proposed rule.)
Recent data show that the primary factors influencing decisions to
export SLABs from the United States include the price of scrap lead,
worldwide supply and demand for lead, and the relative price of virgin
lead compared to the price of scrap lead. BCI estimates that in 1995,
approximately 1,078,674 tons of recoverable lead was available from
batteries consumed domestically. BCI also reports that, based on
Department of Commerce data, approximately 104,614 tons of battery
scrap lead were exported in 1995. In contrast, approximately 269,171
metric tons of SLABs were exported in 2006 based on more recent data
from the International Trade Commission, Environment Canada, and
Secretaria de Medio Ambiente y Recursos Naturales (SEMARNAT). Such a
large increase in exports may be in large part due to recent increases
in the domestic and international price of lead.
According to the annual ``Mineral Commodity Summaries'' published
by the U.S. Geological Survey (USGS), the average price of lead for
North American producers increased by 77% from 43.7 cents/pound in 1999
to 77.8 cents/pound in 2006. The average price as reported on the
London Metal Exchange increased by 154% during those same years from
22.8 cents/pound to 58.0 cents/pound. In addition, while export
shipments destined for locations in many countries are subject to
duties or tariffs on any exported SLABs, Canadian and Mexican importers
are allowed, under the conditions of the North American Free Trade
Agreement (NAFTA), to import SLABs without the usual surcharge. Indeed,
data show that Canada and Mexico are the major destination countries to
which U.S. SLABs have been exported in recent years. For example, in
2006 U.S. SLAB exports to Mexico and Canada were estimated to be
199,000 metric tons and 66,000 metric tons, respectively (based on data
from Mexican and Canadian government sources). Comparing this
information to data from the U.S. International Trade Commission, it is
estimated that only 1.8% of SLAB exports are destined for countries
other than Mexico or Canada. (See the EPA Cost Assessment \9\ prepared
in support of this proposed action.)
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\9\ Cost Assessment for the Proposed Rule on Exports and Imports
of Hazardous Waste Destined for Recovery Among OECD Countries and
Exports of Spent Lead-Acid Batteries from the U.S.
---------------------------------------------------------------------------
3. How are SLABs currently regulated in the United States?
Under the current Federal hazardous waste regulations established
pursuant to RCRA, SLABs are hazardous wastes if the batteries exhibit
one or more of the characteristics of hazardous waste provided in 40
CFR 261, subpart C (e.g., corrosivity (D001), or toxicity for lead
(D008)). SLABs typically exhibit the toxicity characteristic for lead
and, therefore, are defined as hazardous wastes.
(a) SLABs Sent for Disposal Within the United States
If a generator disposes, rather than reclaims, SLABs, the SLABs
would need to be managed in compliance with the Subtitle C hazardous
waste management regulations, which could include the part 273
universal waste rules. However, in all instances, SLABs that are
disposed of must be managed at a RCRA Subtitle C disposal facility and
are subject to the Land Disposal Restriction requirements of 40 CFR
part 268.
The universal waste regulations, promulgated on May 11, 1995, were
created to provide a streamlined set of management regulations
governing the collection and management of certain widely generated
hazardous wastes, such as spent batteries. For the purposes of the
universal waste regulations, the definition of ``battery'' includes
SLABs. While SLABs managed as universal waste may be drained of
sulphuric acid, the battery casings must be intact. SLABs that have
partially or wholly crushed casings cannot be managed as universal
waste.
A universal waste handler is required to ensure that the SLABs do
not spill or leak and that they are stored in a structurally sound
container. In addition, depending upon the amount of SLABs that are
accumulated, a battery handler may be required to track shipments of
the SLABs sent off-site for reclamation or other management. Universal
waste handlers are not allowed to treat their waste; however, they can
conduct certain activities (e.g., sorting, regeneration \10\, etc.)
provided the battery casings remain intact.
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\10\ Regeneration under 40 CFR part 266, subpart G, includes
only replacing drained electrolyte fluids and replacing ``bad''
battery cells. (See 48 FR at 14496.)
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Other general provisions to which all universal waste handlers are
subject include labeling/marking, accumulation time limits, employee
training, and response to releases of hazardous waste. Off-site
shipments of universal wastes do not require a hazardous waste
manifest, provided they are sent to another universal waste handler or
a specified destination facility, and are shipped by an authorized
universal waste transporter.
(b) SLABs Sent for Reclamation Within the United States
When reclaimed, SLABs are exempt from most of the RCRA Subtitle C
hazardous waste regulations, but are subject to the regulations in part
266, subpart G. (See 40 CFR Sec. 261.6(a)(2)(iv).) Alternatively, they
can also be managed as a universal waste and subject to the universal
waste regulations in 40 CFR part 273. Thus, generators that send SLABs
off-site for reclamation may choose to manage their SLABs either as a
universal waste, in accordance with
[[Page 58395]]
the management standards in 40 CFR part 273, or in accordance with the
management standards in 40 CFR part 266, subpart G.
Under the provisions of 40 CFR part 266, subpart G, persons who
generate, collect, transport, or store SLABs for direct regeneration or
reclamation are exempt from the bulk of the RCRA hazardous waste
regulations (40 CFR parts 262 through 266, 270, 124 and the EPA
notification and identification number requirements). However, 40 CFR
part 266, subpart G imposes certain requirements on reclaimers of SLABs
who do not store prior to reclamation, and on facilities that store
SLABs destined for reclamation, but do not conduct any reclamation. In
addition, owners or operators of facilities that both store and reclaim
SLABs are required to comply with the EPA notification and
identification number requirements and all applicable hazardous waste
management facility provisions in parts 264/265, 270, and 124, and are
subject to 40 CFR parts 261, Sec. 262.11, and applicable provisions
under part 268.
4. What international agreements apply to the export of SLABs?
There are two major international agreements that expressly address
the export of SLABs: (1) The Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal (Basel
Convention); and (2) the Amended 2001 OECD Decision (see II.A.4 for
more information). This proposal would harmonize the EPA SLAB export
requirements with both of these international agreements.
As noted in footnote 1, the Basel Convention is a multilateral
international agreement governing the transboundary movements of
hazardous wastes. Among other things, the Basel Convention includes a
requirement for notice and written consent for transboundary movements
of hazardous waste between trading countries. SLABs are covered under
the Basel Convention as a hazardous waste and are thus subject to the
notice and consent requirements of the Basel Convention. The United
States is a signatory to the Convention, but has not yet ratified it
and is therefore not legally bound to its requirements.
The Amended 2001 OECD Decision regulates the transboundary
movements of hazardous wastes (e.g. wastes subject to Amber control
procedures) destined for recovery within OECD Member countries. The
Amended 2001 OECD Decision lists SLABs, whether whole or crushed, as
subject to the Amber control procedures.
Currently, under the RCRA hazardous waste regulations, SLABs can be
managed either in accordance with the special regulations under 40 CFR
part 266, subpart G or in accordance with the universal waste
regulations, as discussed above. Under part 266, subpart G, SLABs that
are destined for reclamation are currently exempt from the RCRA export
requirements in 40 CFR part 262, subpart E and subpart H (including the
notice and consent requirements).
On the other hand, under the universal waste regulations, exporters
of SLABs for reclamation are subject to the export requirements in 40
CFR part 273 (including the notice and consent requirements) or, if the
SLABs will be exported to an OECD Member country for recovery, the
export requirements (including notice and consent) in 40 CFR part 262,
subpart H, apply. In addition, even in situations where U.S. exporters
are not subject to the notice and consent requirements, U.S. exporters
may still be required to notify the importing OECD Member country of
their intention to export batteries, pursuant to contracts with foreign
consignees. This is because SLABs, identified by the Amended 2001 OECD
Decision as wastes subject to Amber control procedures, are generally
considered to be hazardous waste under the national procedures of the
importing Member countries.
5. How does EPA propose to revise the SLAB regulations under 40 CFR
part 266, subpart G?
EPA proposes to amend the SLAB regulations under 40 CFR part 266,
subpart G, to require that exporters and transporters handling SLABs
destined for reclamation in a foreign country to comply with the same
requirements specified in the universal waste regulations under 40 CFR
part 273. Specifically, an exporter who sends the SLABs to a foreign
destination other than to those OECD countries specified in 40 CFR
262.58(a)(1) would have to:
(a) Comply with the requirements applicable to a primary exporter
in 40 CFR 262.53, 262.56(a) (1) through (4), (6), 262.56(b) and 262.57;
(b) export such SLABs only upon consent of the receiving country and in
conformance with the EPA Acknowledgement of Consent as defined in
subpart E of 40 CFR part 262 of this chapter; and (c) provide a copy of
the EPA Acknowledgment of Consent for the shipment to the transporter
transporting the shipment for export. In addition, a transporter
transporting a shipment of SLABs to a foreign destination other than to
those OECD countries specified in 40 CFR 262.58(a)(1) would not be able
to accept a shipment if the transporter knew the shipment does not
conform to the EPA Acknowledgment of Consent, and would have to ensure
that: (a) a copy of the EPA Acknowledgment of Consent accompanies the
SLAB export shipment; and (b) the shipment is delivered to the facility
designated by the person initiating the SLAB export shipment.
For SLABs destined for reclamation in OECD countries specified in
40 CFR 262.58(a)(1), exporters and transporters would be subject to the
requirements of 40 CFR part 262, subpart H, the requirements governing
hazardous waste shipments to OECD countries.
C. Exception Report Revisions for Exports Under Subparts E and H of 40
CFR Part 262
EPA proposes to replace ``EPA Administrator'' with ``the Office of
Enforcement and Compliance Assurance, Office of Federal Activities,
International Compliance Assurance Division (2254A), Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC
20460'' in both Sec. 262.55 and in Sec. 262.87(b).
By providing a specific address for the submission of all exception
reports required by 40 CFR part 262, subparts E and H, EPA can ensure
better oversight of (1) return shipments to the U.S. and (2) compliance
with the exception reporting requirements without any additional
regulatory burden for U.S. exporters. In this proposed rule, EPA is
making very clear that submission of these export exception reports
must be to the same specific EPA address that receives all export
notifications and export annual reports, and with no substitution for
comparable State agencies. States that are interested in receiving a
parallel copy of the exception report will still be able to require the
submission of a copy to their State Director in addition to sending it
to the above federal address.
D. Import Revisions
EPA proposes to amend the import requirements specified in Sec.
262.60(e) to require that the U.S. importer provide the transporter
with a copy of the documentation confirming EPA's consent to the
hazardous waste import, specified under a notice submitted by the
competent authority of the country of export. This documentation must
accompany each RCRA hazardous waste shipment and be submitted by the
U.S. receiving facility to EPA along with the RCRA hazardous waste
manifest as
[[Page 58396]]
required under Sec. Sec. 264.71(a)(3) and 265.71(a)(3).
While EPA currently requires that U.S. receiving facilities submit
a copy of the hazardous waste manifest to EPA to document individual
hazardous waste import shipments, it has proved difficult to match
individual hazardous waste import shipments against a given approved
notice of intent to export from a foreign country. In part, this is
because a given destination facility in the United States could be
receiving the same hazardous waste from the same foreign exporter under
more than one approved notice. Adding this requirement will enable EPA
to match the submitted RCRA hazardous waste manifests for individual
import shipments against the approved import notice that typically
covers the twelve months of imports. Being able to do so will enable
EPA to determine when any import shipments claiming coverage under that
specific notice would or would not be in accordance with the terms of
the approved notice, thus improving our oversight of such imports.
EPA currently responds to specific notices of intent to export
hazardous waste from a foreign country into the United States with
either a written response (e.g., written consent or objection) or a
tacit consent. Tacit consents are allowable for imports subject to
EPA's OECD regulations, as specified in 40 CFR part 262, subpart H. For
such imports, the exporting country may assume tacit consent to the
proposed shipments by EPA if no written response from EPA has been
received by the exporting country thirty working days from the date EPA
sends the exporting country a letter acknowledging receipt of the
notice. Because EPA's consents are currently either tacit or sent in
writing only to the competent authority of the exporting country, EPA
will need to provide or otherwise make available to U.S. importers
documentation confirming the Agency's consent. EPA is considering and
soliciting comments on what would provide adequate documentation of the
Agency's written or tacit consent to a specific notice, and how best to
provide that information to U.S. importers.
III. Summary of This Proposed Rule and Changes
A. Changes to 40 CFR Part 262, Subpart E
This proposed rule amends the exception reporting requirements in
Sec. 262.55 to specify that all exception reports be submitted to the
Office of Enforcement and Compliance Assurance's Office of Federal
Activities in Washington, DC, rather than to the Administrator. In
addition, the proposal also updates 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 one of the OECD Member countries
listed in Sec. 262.58(a)(1) are subject to the requirements of subpart
H. Finally, the proposal 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.
B. Changes to 40 CFR 262.60(e), Subpart F
This proposed rule includes the requirement that a U.S. importer
provide the transporter a copy of the documentation confirming EPA's
consent to the import of hazardous waste when the importer provides the
transporter with an additional copy of the manifest.
C. Changes to 40 CFR Part 262, Subpart H
All but the last three changes listed below are necessary to
conform to the revisions in the Amended 2001 OECD Decision. These
changes range from substantive revisions and amendments to changes in
terminology to simple editorial changes. Collectively, these changes
serve to implement the Amended 2001 OECD Decision, as well as clarify
certain sections that were previously ambiguous to the regulated
community. Changes to 40 CFR part 262, subpart H include:
1. Changes in Terminology
In the Amended 2001 OECD Decision, the OECD Council updated several
terms and definitions used in the 1992 Decision. EPA believes that
these changes do not result in substantive changes to the intent of the
requirements, but merely bring them in line with current terminology
used in practice and in other international agreements. To limit any
unnecessary confusion between the U.S. regulations and those of other
OECD Member countries and to promote consistency with the Amended 2001
OECD Decision, this proposed rule adopts these changes in terminology.
Thus, EPA proposes to change the following terminology:
(a) ``Transfrontier'' to ``transboundary'';
(b) ``Tracking document'' to ``movement document'';
(c) ``Amber-list controls'' to ``Amber control procedures'';
(d) ``Notifier'' to ``exporter''; and
(e) ``Consignee'' to ``importer.'' \11\
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\11\ The change from ``consignee'' to ``importer'' is only being
made in 40 CFR part 262 subpart H, and does not affect the use of
consignee in 40 CFR part 262 subpart E.
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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-tier waste list
(Green, Amber, Red) system with a two-tiered system (Green and Amber)
to conform to the Basel Convention waste lists more closely. Further,
the revised OECD waste lists, as provided by the 2004 OECD Amendment,
better correspond to those of the Basel Convention. Accordingly, we are
proposing to make these same conforming changes to EPA's OECD rule.
Wastes subject to the Green control procedures are those wastes
listed in Parts I and II of Appendix 3 to the Amended 2001 OECD
Decision. Part I contains wastes listed in Annex IX of the Basel
Convention, to which the OECD has made and noted adjustments, as
appropriate. Part II contains additional wastes subject to the Green
control procedures, which the OECD has assessed as not posing any risk
to human health or the environment under its risk criteria.
Wastes subject to the Amber control procedures are those wastes
listed in Parts I and II of Appendix 4 to the Amended 2001 OECD
Decision. Part I contains wastes listed in Annexes II and VIII of the
Basel Convention, to which the OECD has made and noted adjustments, as
appropriate. Part II contains additional wastes subject to the Amber
control procedures, which the OECD has assessed as posing a risk to
human health or the environment under its risk criteria. Further, all
wastes formerly appearing on the Red list would be subject to the Amber
control procedures.
U.S. importers and exporters of hazardous waste subject to the
subpart H requirements of 40 CFR part 262 should be aware that wastes
listed in Part I of both the new OECD Amber and Green waste lists have
not retained their OECD waste codes. Consequently, the relevant Basel
waste codes should be used instead. However, wastes listed in Part II
of both the new OECD Amber and Green waste lists do retain their
original OECD waste codes, as listed in the 1992 Decision. This two-
part system is
[[Page 58397]]
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 proposes to amend 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 the new proposed Sec. 262.89(b).
3. References to Unlisted Wastes Have Been Eliminated in Favor of
``Wastes Not Covered in Appendices 3 and 4 of the OECD Decision''
Section 262.83(d) currently addresses the general notification
requirements for unlisted wastes. This rule first proposes to renumber
this section to Sec. 262.83(c) since the current Sec. 262.83(c)
addresses ``red-list wastes'' and is no longer needed. This proposal
also replaces the term ``unlisted wastes'' with ``wastes not covered in
Appendices 3 and 4 of the OECD Decision, \12\'' so that wastes not on
these lists are not automatically subject to the Amber control
procedures. Rather, ``wastes not covered in Appendices 3 and 4 of the
OECD Decision'' will be subject to the domestic rules and regulations
of the countries of concern.
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\12\ Section 262.81(j) in the proposed revisions to the
regulatory text in 40 CFR part 262, subpart H defines ``OECD
Decision'' as ``Decision of the Council C(2001)107/FINAL, Concerning
the Control of Transboundary Movements of Wastes Destined for
Recovery Operations, as Amended by C(2004)20'' for the purposes of
the subpart.
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4. Transboundary Movements May Now Qualify for a Laboratory Analysis
Exemption
The 1992 Decision and EPA's OECD rule did not include a provision
that would exempt waste samples destined for laboratory analyses. The
Amended 2001 OECD Decision, however, would allow Member countries to
decide through their domestic laws and regulations that waste samples
normally subject to the Amber control procedures will only be subject
to the Green control procedures if such samples are destined for
laboratory analyses to assess its physical or chemical characteristics,
or to determine its suitability for recovery operations. Therefore, we
are proposing that if the waste sample is destined for laboratory
analyses and meets certain specified conditions, then the waste is
subject to the Green control procedures (e.g., the existing controls
normally applied in commercial transactions).
The Amended 2001 OECD Decision provides that the amount of waste
qualifying for this exemption shall not be more than the minimum
quantity reasonably needed to perform the analyses adequately in each
particular case, but can never exceed twenty-five kilograms (25 kg /55
lbs). Analytical samples also must be appropriately packaged and
labeled and must be carried out under the terms of all applicable
international transport agreements. Furthermore, any transboundary
movement of such samples through non-OECD Member countries shall be
subject to international law and to all applicable national laws and
regulations. Thus, the proposed rule allows for waste samples that are
sent for laboratory analyses to be exempt from the Amber control
procedures provided they meet the same conditions as set forth in the
Amended 2001 OECD Decision.
Information on exemptions and any other national requirements
concerning movements of waste for laboratory analyses is available to
the public via a Web site with information compiled by the OECD
Environment Directorate, which can be accessed at http://www.oecd.org/env/waste/.
U.S. exporters should also be aware that even if their shipments
qualify for the laboratory analyses exemption, some Member countries
may elect to apply the Amber control procedures to such shipments,
requiring the exporter of a waste sample for laboratory analyses to
inform the competent authorities of such a movement. U.S. exporters
should check with the competent authorities of each country to find out
if they require the Amber control procedures for a sample that would
qualify for the laboratory analyses exemption.
5. Recovery Facilities Must Submit a Certificate of Recovery
This proposed rule would implement the Amended 2001 OECD Decision's
requirement that a duly authorized representative of the recovery
facility submit a certificate of recovery to all interested parties
(e.g., exporter, country of export, country of import), ensuring
recovery of the waste has been completed. A valid certificate of
recovery is defined as a written and dated statement that affirms that
the waste materials were recovered and that any residuals generated
from the recovery operation have been disposed of in the manner agreed
to by the parties to the contract.\13\ This proposed rule also
requires, as does the Amended 2001 OECD Decision, that the recovery
facility send the certificate of recovery as soon as possible, but no
later than thirty (30) days after the completion of recovery and no
later than one (1) calendar year following the receipt of waste by the
recovery facility. Finally, this proposed rule requires that the
recovery facility must send copies of the certificate of recovery to
the exporter and competent authorities of the countries of export and
import by mail, e-mail followed by mail, or fax followed by mail. This
proposed rule incorporates the certificate of recovery provisions of
the Amended 2001 OECD Decision in Sec. 262.83(e).
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\13\ Under both the 1992 Decision and the Amended 2001 OECD
Decision, transboundary movements of wastes subject to the Amber
control procedures may only occur under the terms of a valid written
contract, or chain of contracts, or equivalent arrangements between
facilities controlled by the same legal entity, starting with the
exporter and terminating at the recovery facility. The contracts
must: (a) Clearly identify the generator of each type of waste, each
person who shall have legal control of the wastes and the recovery
facility; (b) provide that relevant requirements of the OECD
Decisions are taken into account and binding on all parties; and (c)
specify which party to the contract shall assume responsibility for
ensuring alternative management of the wastes including, if
necessary, the return of the wastes.
---------------------------------------------------------------------------
The Amended 2001 OECD Decision states that the completion of block
18 of the OECD movement document, and the submission of signed copies
to the exporter and relevant competent authorities, fulfils the
certificate of recovery requirement. Although the OECD movement
document is recommended, the Amended 2001 OECD Decision does not
require recovery facilities to use it.
While some recovery facilities may not be subject to the import and
other requirements because they are not handling RCRA hazardous waste,
these entities should be aware that the competent authorities of the
exporting Member countries may still impose the conditions outlined in
the OECD Council Decisions before the transactions can be completed.
Thus, if the waste is considered non-hazardous in the United States,
EPA would not require a certificate of recovery from a facility.
However, the competent authority of the country of export may require a
certificate of recovery, and may require that the exporter include such
a requirement in the contract between the exporter and importer.
[[Page 58398]]
6. Amendments to Notification Requirements
The Amended 2001 OECD Decision introduced a series of notification
requirements that require EPA to make conforming amendments to its OECD
regulations. Specifically, this proposed rule would amend Sec.
262.83(e) (which would be renumbered as Sec. 262.83(d)) by
incorporating several new items that must be included in the
notification, including:
(a) Exporter and importing recovery facility e-mail address;
(b) E-mail address for importer (if different from the importing
recovery facility);
(c) Address, telephone, fax, and e-mail of intended transporter(s);
(d) Means of transport envisioned; and
(e) Specification of the type of recovery operation(s) that will be
used.
7. Amendments to Procedures for Exports to Pre-Approved Facilities
Under the Amended 2001 OECD Decision, a pre-approved recovery
facility (also known as a pre-consented recovery facility) is one that
has been identified in advance by the competent authority having
jurisdiction over that facility as acceptable for receiving hazardous
waste imports. For these facilities, the competent authority must
inform the OECD secretariat that the facility is pre-approved, and the
waste types that are acceptable for recovery. This allows for
simplified and accelerated notification procedures. Pre-approval may be
granted for a specific time frame and may be revoked at any time by the
relevant competent authority.
The Amended 2001 OECD Decision established a consideration period
for objection to transboundary movements to pre-approved facilities and
lengthened the allowable coverage period for notifications.
Specifically, the Decision established a consideration period of seven
(7) working days during which time relevant competent authorities may
object to transboundary movements of waste to pre-approved facilities.
The Decision also established that the allowable coverage period for
general notifications may extend up to three (3) years. Today's
proposed rule amends the current regulations to incorporate these
changes in Sec. 262.83(b)(2)(ii) to reflect the seven (7) day
consideration period and in Sec. 262.83(b)(2)(i) to reflect the
allowable coverage period for notifications.
8. New Procedures for the Pretreatment of Hazardous Wastes at R12/R13
Recovery Facilities
The Amended 2001 OECD Decision imposed new requirements for R12 and
R13 recovery facilities, which we are proposing to incorporate in this
proposal. R12 and R13 recovery facilities are transfer and storage
facilities, respectively, that do not recover the wastes themselves.
Because hazardous wastes destined for recovery may have to undergo
treatment before a R1-R11 \14\ recovery facility actually recovers
them, the OECD considers R12 and R13 facilities as ``intermediate or
temporary operations.'' The primary reason for the new requirements is
to ensure that the subsequent R1-R11 recovery operation receives the
waste and completes its recovery in an environmentally sound manner.
---------------------------------------------------------------------------
\14\ Recovery operations R1 through R11 are defined as the
following: R1, use as a fuel (other than in direct incineration) or
other means to generate energy; R2, solvent reclamation/
regeneration; R3, recycling/reclamation of organic substances which
are not used as solvents; R4, recycling/reclamation of metals and
metal compounds; R5, recycling/reclamation of other inorganic
materials; R6, regeneration of acids or bases; R7, recovery of
components used for pollution abatement; R8, recovery of components
used from catalysts; R9, used oil re-refining or other reuses of
previously used oil; R10, land treatment resulting in benefit to
agriculture or ecological improvement; and, R11, uses of residual
materials obtained from any of the operations numbered R1-R10.
---------------------------------------------------------------------------
When the notification document lists an R12/R13 recovery facility,
we are proposing that the exporter must indicate in the same
notification document the recovery facility or facilities where the
subsequent R1-R11 recovery operation takes place or may take place.
The R12/R13 recovery facility shall certify the receipt of the
hazardous waste by sending a copy of the duly completed movement
document within three (3) working days of the receipt of such wastes to
the exporter and all competent authorities concerned. In addition, the
R12/R13 recovery facility must retain the original movement document
for three (3) years. Similarly, the R12/R13 recovery facility has to
certify the completion of the R12/R13 recovery operation by submitting
a certificate of recovery as soon as possible, but no later than thirty
(30) days after the completion of the R12/R13 recovery operation at
that facility and no later than one (1) calendar year following the
receipt of the waste by the R12/R13 recovery facility. The R12/R13
recovery facility must send the certificate of recovery to the exporter
and to the competent authorities of the countries of export and import
by either mail, e-mail followed by mail, or by fax followed by mail.
The control procedures applied to transboundary movements of
hazardous waste from an R12/R13 recovery facility to a subsequent R1-
R11 recovery facility vary depending on whether these facilities are
located within the same Member country or in a different Member
country.
When the subsequent R1-R11 recovery facility is located within the
same country, we are proposing that the R12/R13 recovery facility must
obtain from the subsequent R1-R11 recovery facility a certification
that the ``final'' recovery of the hazardous waste at that facility has
been completed within one (1) calendar year following the delivery of
the hazardous waste to the R1-R11 facility. The format of the
certification of recovery is not fixed, but it must, at a minimum,
identify the code number of the notification document and serial number
of the movement documents to which it pertains. The R12/R13 recovery
facility must then transmit the certification document prepared by the
R1-R11 recovery facility to the competent authorities of the countries
of import and export as soon as possible, but no later than one (1)
calendar year following the delivery of the hazardous waste to the R1-
R11 recovery facility.
When the subsequent R1-R11 facility is not located in the same
Member country as the R12/R13 facility, we are proposing that a new
notification must be made for the transboundary movement of hazardous
waste by the R12/R13 recovery facility. The applicable procedures
differ, however, depending upon the country where the final recovery
operation occurs. In particular, if the final R1-R11 recovery facility
is located in the initial country of export, then the normal Amber
control procedures shall apply. In this case, the R12/R13 facility must
submit a new notification document to its competent authority and
obtain consent from its competent authority and from the initial
country of export to the export of the hazardous waste back to that
country for final recovery. If, however, the final R1-R11 recovery
facility is located in a country different from the initial country of
export, then the Amber control procedures shall also apply, but the
movement will in effect be treated as a ``re-export'' of waste to a
third country. 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,
[[Page 58399]]
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).
This proposed 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 be defined according to national regulations
and procedures.
A mixture containing two or more Amber wastes is subject
to the Amber control procedures.
In this proposed rule, EPA has revised the text in 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 Amber control procedures, the
proposed rule includes notes stating that other OECD Member countries
may subject such mixtures to the Amber control procedures. In such
cases, U.S. importers and exporters should be prepared to follow the
Amber control procedures within those OECD Member countries.
Finally, the Amended 2001 OECD Decision requires that notification
for a transboundary movement of a mixture of hazardous wastes falling
under the Amber control procedures should be made by the person
performing the mixing activity (the generator of the mixture) or any
other person acting as an exporter in place of the person performing
the mixing activity. In the notification, relevant information on each
fraction of the waste, including its code numbers, has to be given in
order of importance. This proposed rule would impose these
requirements.
10. New Provisions Regarding the Return and Re-Export of Hazardous
Wastes Subject to the Amber Control Procedures
This proposed rule proposes to adopt the Amended 2001 OECD
Decision's more precise provisions (than the earlier 1992 Decision) on
measures to be taken in case a transboundary movement of hazardous
waste that is subject to the Amber control procedures cannot be
completed as intended (e.g., not in accordance with the notification,
consents given by the competent authorities, or the terms of the
contract). There may be a number of reasons for this non-completion,
for example, an accident during the transport of the waste, improper
notification, or any illegal action taken by someone involved with the
movement of the hazardous waste.
The Amended 2001 OECD Decision provides that if this uncompleted
movement of hazardous waste (hereafter referred to as the
``incident''), takes place in the country of import, the competent
authority of that country shall immediately inform the competent
authority of the country of export. The competent authorities of the
concerned countries are to cooperate in resolving the incident by
making all necessary arrangements to ensure the best alternative
management of the hazardous waste. If alternative arrangements cannot
be made to recover these wastes in an environmentally sound manner in
the country of import, the hazardous waste must be returned to the
country of export or re-exported to a third country.
(a) Return of Hazardous Waste to Country of Export
Under the Amended 2001 OECD Decision, the return of the hazardous
waste to the country of export is to take place within ninety (90) days
from the time when the country of export was informed of the incident,
or such other period of time to which all concerned countries agree.
The competent authorities of both countries of export and transit (if
applicable) are to be informed about the return of the hazardous waste
and the reasons for its return. These authorities are prohibited from
opposing or preventing the return of the hazardous waste to the country
of export, so long as the movement complies with the requirements set
out by the country of export's domestic law. If the waste is returned
through a new country of transit, the competent authority of that
country is to be notified and consent obtained in accordance with the
normal Amber control procedures.
(b) Re-Export of Hazardous Waste From the Country of Import to a Third
Country
Under the Amended 2001 OECD Decision, the re-export from the
country of import to a third country is considered a new transboundary
movement of hazardous waste. As a result, the Amber control procedures
are applicable. The initial importer becomes the new exporter and,
consequently, assumes all responsibilities as an exporter. In addition,
the notification must also include the competent authority of the
initial country of export who, in accordance with the Amber control
procedures, may object to the re-export if the movement does not comply
with the requirements set out by its domestic law.
(c) Return of Hazardous Waste From Country of Transit to Country of
Export
If the incident takes place in the country of transit, the exporter
should make arrangements so that the hazardous waste still can be
recovered in an environmentally sound manner in the recovery facility
of the importing country to where it was originally
[[Page 58400]]
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 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. This
proposal 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 proposed rule updates Sec. 262.80(a) to reflect that export
shipments of SLABs being managed under 40 CFR part 266, subpart G that
are destined for recovery in one of the OECD countries listed in Sec.
262.58(a)(1) are subject to 40 CFR part 262, subpart H.
12. Technical Corrections to EPA's OECD Rule
This proposed rule makes several technical corrections to EPA's
current OECD rule, including corrections to capitalization, syntax, and
punctuation errors. In these changes, EPA is not making any substantive
revisions, but is seeking to eliminate any confusion on the part of the
regulated community by striving for consistency both within the
regulations and with the terms of the Amended 2001 OECD Decision. Some
prevalent examples of these types of revisions include changing
``Subpart'' to ``subpart,'' ``OECD member'' to ``OECD Member,'' and
``thirty days'' to ``thirty (30) days.''
13. Change to the Submittal Address for Exception Reports
This proposed rule amends the exception reporting requirements in
Sec. 262.87(b) to specify that all exception reports are to be
submitted to the Office of Enforcement and Compliance Assurance's
Office of Federal Activities in Washington, DC rather than the
Administrator.
D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)
This proposed rule also amends 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.
E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)
This proposed rule also 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 the written documentation of
EPA's consent to the import along with a copy of the RCRA hazardous
waste manifest for the shipment that they are currently required to
submit to EPA within thirty (30) days of shipment delivery. This will
enable EPA to match the individual shipment manifest to the consent for
an annual notice from a foreign exporter.
F. Changes to 40 CFR 266.80(a)
The existing regulations at 40 CFR part 266, subpart G, ``Spent
Lead-Acid Batteries Being Reclaimed,'' exempt exporters of SLABs
destined for reclamation from the export requirements of 40 CFR part
262. EPA proposes to amend the table located at 40 CFR 266.80 by
including two additional rows to the current table. These additional
rows will effectively require that exporters and transporters of SLABs
being sent to a foreign country for reclamation will need to meet the
universal waste requirements concerning the export of SLABs for
reclamation.
Specifically, exporters would need to either comply with the
requirements in 40 CFR part 262, subpart H when the shipments are
destined to one of the OECD Member countries listed in 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 would need to comply with the applicable requirements in 40
CFR part 262, subpart H when the shipments are destined to one of the
OECD Member countries listed in Sec. 262.58(a)(1). For export
shipments of SLABs not destined for one of the OECD Member countries
listed in Sec. 262.58(a)(1), the transporter would not be able to
accept a shipment if the transporter knows the shipment does not
conform to the EPA Acknowledgment of Consent, and would have to ensure
that:
A copy of the EPA Acknowledgment of Consent accompanies
the shipment; and
The shipment is delivered to the foreign facility
designated by the person initiating the shipment.
EPA proposes to amend the table located at 40 CFR 266.80 in order
to ensure greater protection of human health and the environment
through notification, tracking, and management of SLABs. In addition to
harmonizing the RCRA hazardous waste regulations for SLABs with the
notification and consent requirements in the RCRA universal waste
rules, today's proposed rule would harmonize the export requirements
for SLABs with the Amended 2001 OECD Decision and the Basel Convention.
(Note that the exemption from the manifest requirements for exporters
and transporters of SLABs for reclamation will continue to remain in
effect.)
The table located at 40 CFR 266.80 describes the various kinds of
SLAB handlers and their respective legal requirements. Some SLAB
handlers may find that more than one description located in the table
applies to their SLAB management activities. It is the SLAB handler's
responsibility to read all seven descriptions and carefully consider
any and all requirements which may apply.
1. Export Shipments of SLABs to OECD Member Countries
We are proposing that exporters and transporters of SLABs destined
for reclamation in one of the OECD Member countries listed in Sec.
262.58(a)(1) would have to comply with all applicable sections of 40
CFR part 262, subpart H for wastes subject to the Amber control
procedures. For a complete listing of the proposed requirements,
exporters and transporters should consult the regulatory text for 40
CFR part 262, subpart H in this proposal. In addition
[[Page 58401]]
to the proposed changes to 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 would be required to
comply with the Amber control procedures in Sec. 262.83. Under the
Amber control procedures, an exporter must submit a complete
notification of its intent to export to EPA at least 45 days before the
export is scheduled to leave the United States (or at least ten days if
the shipment is going to a pre-approved facility in the country of
import). The notification can cover export activities spanning a period
of up to and including 12 months (or up to three years if the shipment
is going to a pre-approved facility in the country of import).
A complete notification includes, but is not limited to:
Contact information and EPA ID number (if applicable) for
the exporter;
Point of departure from country of export;
A waste description and quantity of the hazardous waste
being exported;
The RCRA waste code(s) (if applicable), United Nations
number, and OECD waste code for the hazardous waste (SLABs are
classified as Amber waste A1160 under the Amended 2001 OECD Decision);
Planned mode(s) of transportation;
Contact information for all intended transporters;
Contact information and the OECD recovery operation
code(s) (e.g., R1-R13) for both the importer and the final recovery
facility (if different sites);
The requested period of exportation;
A list of all transit countries, along with points of
entry and departure, through which the hazardous waste will be sent,
and
A certification by the exporter that a contract or chain
of contracts or equivalent arrangements among all parties to the
proposed shipment are in place and are legally enforceable in all
concerned countries.
If the notification is complete, EPA will forward it to the
importing country and any transit country(ies). Within three working
days of receiving the notification, the importing country must send
either an Acknowledgement of Receipt or a list of items that the
notification lacks directly to U.S. EPA, to the exporter, and to any
countries of transit. The countries of import and transit have thirty
(30) days from the date on the Acknowledgement of Receipt (seven days
for shipments going to pre-approved facilities) to object or consent
explicitly to the proposed shipment. Any explicit objection or consent
by the country of import or transit will be sent simultaneously to U.S.
EPA, the exporter, and any other interested country (e.g., of import or
transit). If no objections are submitted within the thirty day (30)
period (seven days for shipments going to pre-approved facilities),
under the provisions of the Amended 2001 OECD Decision, tacit (or
implied) consent is assumed and the movement of the hazardous wastes
may commence.
(b) Shipment Tracking
Under Sec. 262.84, export shipments of SLABs must be accompanied
by a movement document from the initiation of the shipment until it
reaches the final recovery facility. Exporters must provide the initial
transporter with the movement document. Transporters are prohibited
from accepting a shipment of SLABs without such a movement document,
and are required to ensure that the movement document accompanies the
shipment from the initiation of the shipment until it reaches the final
recovery facility. The movement document must include all the
information from the notification and the following:
Date movement commenced;
Name (if not the exporter), address, telephone and fax
numbers, and e-mail of person originating the movement document (Note
that this person is equivalent to the primary exporter under 40 CFR
part 262, subpart E);
Company name and EPA ID number (if applicable) of all
transporters;
Identification (license, registered name or registration
number) of means of transport, including types of packaging envisaged;
Any special precautions to be taken by transporter(s)
during transportation;
Certification/declaration signed by the exporter that no
objection to the shipment has been lodged; and
Appropriate signatures for each custody transfer (e.g.,
transporter, importer, and owner or operator of the recovery facility).
(c) Annual Reporting
Under Sec. 262.87(a), any person exporting SLABs who meets the
definition of primary exporter in Sec. 262.51 or who initiates the
movement documentation under Sec. 262.84 will have to submit to the
Office of Enforcement and Compliance Assurance's Office of Federal
Activities in Washington, DC, an annual report summarizing the types,
quantities, frequency, and ultimate destination of all SLABs exported
during the previous calendar year. Reports are due by March 1st of
every year.
(d) Exception Reporting
Under Sec. 262.87(b), any person exporting SLABs who meets the
definition of primary exporter in Sec. 262.51 or who initiates the
movement documentation under Sec. 262.84 must file an exception report
with the Office of Enforcement and Compliance Assurance, Office of
Federal Activities, International Compliance Assurance Division
(2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460, if any of the following occurs:
He has not received a copy of the RCRA hazardous waste
manifest signed by the transporter and noting the date and point of
departure of the waste from the United States, within forty-five (45)
days from the date it was accepted by the initial transporter;
Within ninety (90) days from the date the waste was
accepted by the initial transporter, the exporter has not received
written confirmation from the recovery facility that the hazardous
waste was received;
The waste is returned to the United States.
(e) Recordkeeping
Under Sec. 262.87(c), any person exporting SLABs who meets the
definition of primary exporter in Sec. 262.51 or who initiates the
movement documentation under Sec. 262.84 must keep the following
records:
A copy of each notification of intent to export and all
written consents obtained from the competent authorities of countries
concerned (e.g., export, transit, and import) for a period of at least
three (3) years from the date the hazardous waste was accepted by the
initial transporter;
A copy of each annual report for a period of at least
three (3) years from the due date of the report;
A copy of any exception reports and a copy of each
confirmation of delivery (i.e., movement documentation) sent by the
recovery facility to the exporter for at least three (3) years from the
date the hazardous waste was accepted by the initial transporter or
received by the recovery facility, whichever is applicable; and
A copy of each confirmation of recovery sent by the
recovery facility to the exporter for at least three (3) years from the
date that the recovery facility completed the processing of the SLAB
shipment.
[[Page 58402]]
2. Export Shipments of SLABs to Countries Not Listed in Sec.
262.58(a)(1)
(a) Notification of Intent To Export
We are proposing that exporters of SLABs destined for reclamation
in countries not listed in Sec. 262.58(a)(1) would be required to
comply with the primary exporter notification requirements in Sec.
262.53, and export the SLABs only upon consent of the receiving country
and in conformance with the EPA Acknowledgement of Consent, as defined
in 40 CFR part 262, subpart E. Specifically, the exporter would have to
submit a complete notification of its intent to export to EPA at least
60 days before the export is scheduled to leave the United States. The
notification can cover export activities spanning a period of up to and
including 12 months. This complete notification contains:
Contact information and EPA ID number (if applicable) for
the primary exporter;
A description and quantity of the SLABs to be exported;
The RCRA waste code(s) (if applicable), U.S. DOT proper
shipping name, hazard class, and United Nations number as identified in
49 CFR parts 171 through 177;
Planned mode(s) of transportation and type(s) of
containers;
A description of the manner in which the SLABs will be
treated, stored, or disposed of (including recovery) in the receiving
country;
The planned frequency and time period of exportation;
A list of all transit countries through which the SLABs
will be sent, and a description of the approximate length of time the
hazardous waste will remain in each country and the nature of its
handling while there;
All points of entry to and departure from each foreign
country through which the SLABs will pass; and
The name and site address of the consignee \15\ and any
alternate consignee.
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\15\ As noted previously, this is equivalent to ``importer'' in
the proposed revisions to 40 CFR part 262, subpart H.
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If after proper notification, the receiving country consents to the
receipt of the hazardous waste, EPA will forward an EPA Acknowledgment
of Consent to the exporter. If, on the other hand, the receiving
country objects to the receipt of the hazardous waste or withdraws a
prior consent, EPA will notify the exporter in writing. EPA will also
notify the exporter of any responses from transit countries.
(b) Shipment Documentation and Tracking
We are proposing that exporters of SLABs must provide a copy of the
EPA Acknowledgment of Consent for the SLAB shipment to the transporter
transporting the shipment for export. Transporters are prohibited from
accepting a SLAB export shipment if the transporter knows the shipment
does not conform to the EPA Acknowledgment of Consent. In addition the
transporter must ensure that:
A copy of the EPA Acknowledgment of Consent accompanies
the SLAB export shipment; and
The SLAB export shipment is delivered to the facility
designated by the person initiating the shipment.
Unlike SLAB export shipments that must comply with 40 CFR part 262,
subpart H, SLAB export shipments destined for countries not listed in
Sec. 252.58(a)(1) do not have any shipment tracking documentation
requirements or exception reporting requirements because SLAB shipments
are exempt from the RCRA hazardous waste manifest requirements.
(c) Annual Reporting
We are proposing that exporters of SLABs must follow the
requirements applicable to a primary exporter detailed in Sec. 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 Sec. 262.57, we are proposing that exporters of SLABs must
keep the following records:
A copy of each notification of intent to export for at
least three years from the date the SLAB export shipment was accepted
by the initial transporter;
A copy of each EPA Acknowledgment of Consent for at least
three years from the date the SLAB export shipment was accepted by the
initial transporter;
A copy of each confirmation of delivery of the SLAB
shipment from the consignee for at least three years from the date the
SLAB export shipment was accepted by the initial transporter; and
A copy of each annual report for at least three years from
the due date of the report.
G. Changes to 40 CFR 271.1
This proposed rule amends Table 1 and Table 2 of Sec. 271.1 by
adding references to the revisions which amend 40 CFR part 262, subpart
E to reflect that subpart E implements the Hazardous and Solid Waste
Amendments of 1984.
IV. Costs and Benefits of the Proposed Rule
A. Introduction
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. The Agency's economic
assessment conducted in support of this proposed action evaluates
costs, cost savings, benefits, and other impacts, such as environmental
justice, children's health, unfunded mandates, regulatory takings, and
small entity impacts. To conduct this analysis, we developed and
implemented a methodology for examining impacts, and followed
appropriate guidelines and procedures for examining equity
considerations, children's health, and other impacts.
B. Analytical Scope
This analysis assesses the proposed integration of various OECD
Council Decisions into existing U.S. regulations governing shipments
(export/import/transit) of hazardous wastes destined for recovery
between the U.S. and other OECD Member countries. In addition, we
assess the newly proposed export regulations for SLABs to OECD and non-
OECD countries. Also incorporated into the analysis is the proposed
requirements that importers of hazardous waste subject to 40 CFR part
262, subpart F, provide to the initial transporter documentation
necessary to confirm EPA's consent to the import to accompany such
manifested import shipments, and that the receiving facility submit to
EPA a copy of that documentation when it submits to EPA the RCRA
hazardous waste manifest for the import shipment. Finally, this action
proposes a revision to the current language in Sec. Sec. 262.55 and
262.87(b) that will require exception reports to be submitted directly
to the Director, International Compliance and Assurance Division
(ICAD), of the Office of Enforcement and Compliance Assurance (OECA),
EPA Headquarters, rather than to the EPA Administrator. There is no
discernable cost impact associated with this proposed requirement for
exception reports to be submitted directly to the Director.
First, we assess all potential cost impacts (positive and negative)
of the
[[Page 58403]]
proposed 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
exchange and accumulation recovery operations, and
The notification requirements related to the return of
wastes.
Next, we assess all potential cost impacts (positive and negative)
of the proposed 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 analyze the proposed requirements that importers of
hazardous waste subject to 40 CFR part 262, subpart F, provide to the
initial transporter documentation necessary to confirm EPA's consent to
the import to accompany such manifested import shipments, and that the
receiving facility submit to EPA a copy of that documentation when it
submits to EPA the RCRA hazardous waste manifest for the import
shipment.
We also include 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.
C. Cost Impacts
The total incremental cost for the OECD portion of the proposed
rule during the first year of implementation (i.e., including reading
the rule) is estimated to be $14,472. This is a net impact estimate
that includes a total net incremental cost increase to the regulated
community of $13,634, 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 (i.e., excluding reading the rules) is estimated
to be $9,678.
The total incremental cost for the SLAB portion of the proposed
rule during the first year of implementation (i.e., including reading
the rule) is estimated at $851,000. 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 (i.e., excluding reading the rules) is
estimated to be $404,000.
The combined total cost of the proposed rule (OECD portion, plus
SLAB portion, plus import consent documentation portion) is estimated
at $919,000 for the first year. Approximately 92.5% of this total is
attributable to the SLAB portion of the proposal, followed by the EPA
import consent documentation requirements representing about 5.9% of
the total. The OECD portion accounts for about 1.6% of the total first
year cost of the proposal. After the first year, the total incremental
cost of the proposed rulemaking, omitting the cost of reading the
rules, is estimated at $468,000.
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
\16\ 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 \17\ document
prepared in support of this proposed action. This document is available
in the docket. Interested stakeholders are encouraged to read and
comment on the analysis and findings presented in this document.
---------------------------------------------------------------------------
\16\ Secretar[iacute]a de Medio Ambiente y Recursos Naturales
(SEMARNAT).
\17\ Cost Assessment for the Proposed Rule on Exports and
Imports of Hazardous Waste Destined for Recovery Among OECD
Countries and Exports of Spent Lead-Acid Batteries from the U.S.
---------------------------------------------------------------------------
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:
The U.S. would meet its legal obligations to implement the
Amended 2001 OECD Decision.
Increased 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.
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.
V. 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 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 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
[[Page 58404]]
enacts federal requirements that are more stringent or broader in scope
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 non-HSWA, 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 cannot 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 functions in subparts E or F, in
accordance with 271.10, the State program must include requirements
respecting international shipments equivalent to those at subparts E
and F. States are also not authorized to administer the Federal
government's functions in subpart H, but in this case, States are not
required to adopt those provisions. However, EPA would encourage 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, F and H, the import manifest submittal
requirements in 264.71(a)(3) and 265.71(a)(3), or the domestic
management provisions for SLABs in 40 CFR part 266, subpart G. If or
when a State chooses to adopt these import/export provisions, when
final, care should be taken not to replace Federal or international
references with State terms. Moreover, if finalized, the provisions of
today's notice would take effect in all States upon the effective date
of the final rule.
VI. 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 rule, as proposed, 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 proposal is estimated to be
$919,000 during the first year following rule implementation. Exporters
are projected to account for approximately 68 percent of this total.
Benefits of this action include the U.S. meeting its legal obligations
to implement the Amended 2001 OECD Decision, increased regulatory
efficiency, reduced risks associated with the treatment and disposal of
hazardous wastes, and improved data collection.
The total net cost estimate for this proposal is significantly
below the $100 million threshold \18\ established under part 3(f)(1) of
the Order. Thus, this proposal 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 \19\ in support of
this proposed rule. The RCRA docket established for today's rulemaking
maintains a copy of this document for public review. Interested persons
are encouraged to read and comment on this document.
---------------------------------------------------------------------------
\18\ This $100 million threshold applies to both costs, and cost
savings.
\19\ Cost Assessment for the Proposed Rule on Exports and
Imports of Hazardous Waste Destined for Recovery Among OECD
Countries and Exports of Spent Lead-Acid Batteries from the U.S.
(Cost Assessment).
---------------------------------------------------------------------------
B. Paperwork Reduction Act
The information collection requirements in this proposed 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 Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2308.01.
The proposal requires that the affected sources submit the
following:
Under the proposed 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 waste; U.S. facilities that exchange or accumulate
the 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 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 that
cannot complete the intended recovery and 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 countries.
Under the proposed SLAB revisions: SLAB exporters will
have to: Comply with the full subpart H requirements if going to
countries listed in Sec. 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 proposed import documentation revisions: U.S.
receiving facilities will have to submit to EPA copies of 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 years, which is consistent with the RCRA
hazardous waste requirements of Sec. Sec. 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 proposed rule is approximately 4.62 hours/year per
respondent under the proposed OECD revisions; 20.73 hours/year per
respondent under the proposed SLAB revisions; and 9.15 hours/year per
[[Page 58405]]
respondent under the proposed import consent documentation. The annual
public recordkeeping burden is estimated to average 10.20 hours/year
per respondent under the proposed OECD revisions, and 0.25 hours/year
per respondent under the proposed SLAB revisions. The total annual
public burden is estimated to be 15,077 hours and $840,500 during the
first year of implementation, and 9,024 hours and $389,600 after the
first year. The capital and start-up 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.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2005-0018. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after October 6, 2008, a comment to OMB is best assured of having its
full effect if OMB receives it by November 5, 2008. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
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 proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities. The primary
purpose of the regulatory flexibility analyses is to identify and
address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities,'' (5 U.S.C. 603 and
604). Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
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, as
proposed.
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. Our analysis specifically
examined the potentially impacted small companies with fewer than 20
employees. The average annual gross sales of these companies were found
to range from $0.4 million to $4.1 million, depending upon 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 reader is encouraged to review our regulatory flexibility
screening analysis prepared in support of this determination. This
analysis is incorporated into the Cost Assessment, which is available
in the docket established for this proposal. We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This proposal contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments, or the private sector, in large part because the 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
[[Page 58406]]
Amended 2001 OECD Decision). In any event, EPA has determined that this
rule, as proposed, does not contain a Federal mandate that may result
in expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The total cost impacts of this proposed action are estimated to be
$919,000 during the first year, and approximately $468,000 per year
thereafter.
Finally, EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments are not affected by this action, as
proposed.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This proposed rule 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. This proposed 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 rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed 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 proposal. Thus, Executive Order 13175 does not apply
to this proposed rule. EPA specifically solicits additional comment on
our determination under this Order and on this proposed rule from
tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children residing in the United States.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
This rule, as proposed, will not seriously disrupt energy supply,
distribution patterns, prices, imports or exports. In fact, this
proposed rule is designed to improve regulatory efficiency and improve
information collection, in part by implementing technical corrections
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 not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering 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 proposed 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. This proposal is designed to improve regulatory efficiency
and improve information collection, in part by implementing technical
corrections and clarifications to the existing regulations.
List of Subjects
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, International organizations,
Labeling, Packaging and containers, Recycling, Reporting and
recordkeeping requirements.
[[Page 58407]]
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: September 19, 2008.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, title 40, chapter 1 of the
Code of Federal Regulations is proposed to be 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. 262.55 is amended by revising the introductory text to read as
follows:
Sec. 262.55 Exception reports.
In lieu of the requirements of Sec. 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:
* * * * *
3. Section 262.58 is revised to read as follows:
Sec. 262.58 International agreements.
(a) Any person who exports or imports hazardous waste subject to
the Federal manifest requirements of part 262, or subject to the
universal waste management standards of 40 CFR part 273, or subject to
State requirements analogous to 40 CFR part 273, or exports spent lead-
acid batteries subject to the spent lead-acid battery management
standards of 40 CFR part 266, subpart G or subject to State
requirements analogous to 40 CFR part 266, subpart G, 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.
(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 Slovak Republic, South Korea, Spain, Sweden, Switzerland,
Turkey, the United Kingdom, and the United States.
(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.
4. Section 262.60(e) is revised to read as follows:
* * * * *
(e) The importer must provide the transporter with an additional
copy of the manifest and documentation confirming EPA's consent to the
import of hazardous waste to be submitted by the receiving facility to
U.S. EPA in accordance with Sec. 264.71(a)(3) and Sec. 265.71(a)(3)
of this chapter.
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
Sec. 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
Sec. 262.58(a)(1). A waste is considered hazardous under U.S. national
procedures if it meets the Federal definition of hazardous waste in 40
CFR 261.3 and it is subject to either the Federal manifesting
requirements at 40 CFR part 262, subpart B, to the universal waste
management standards of 40 CFR part 273 or to State requirements
analogous to 40 CFR part 273, or for exports only, if the waste is
subject to 40 CFR part 266, subpart G or to State requirements
analogous to 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 non-hazardous wastes) to physical or chemical transformation
operations, and thereby creates a new hazardous waste, becomes a
generator and assumes all subsequent generator duties under RCRA and
any exporter duties, if applicable, under this subpart.
Sec. 262.81 Definitions.
The following definitions apply to this subpart.
(a) Competent authority means the regulatory authority or
authorities of concerned countries having jurisdiction over
transboundary movements of wastes destined for recovery operations.
(b) Countries concerned means the OECD Member countries of export
or import and any OECD Member countries of transit.
(c) Country of export means any designated OECD Member country
listed in Sec. 262.58(a)(1) from which a transboundary movement of
hazardous wastes is planned to be initiated or is initiated.
(d) Country of import means any designated OECD Member country
listed in Sec. 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.
(e) Country of transit means any designated OECD Member country
listed in Sec. 262.58(a)(1) and (a)(2) other than the country of
export or country of import across which a transboundary
[[Page 58408]]
movement of hazardous wastes is planned or takes place.
(f) 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.
(g) 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.
(h) OECD area means all land or marine areas under the national
jurisdiction of any OECD Member country listed in Sec. 262.58. When
the regulations refer to shipments to or from an OECD Member country,
this means OECD area.
(i) OECD means the Organization for Economic Cooperation and
Development.
(j) OECD Decision means the OECD ``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.''
(k) 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 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.
(l) 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.
(m) 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
(n) 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.
Sec. 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 Sec. 262.80(a). The two lists correspond to
Appendices 3 and 4, respectively, of the OECD Decision and have been
incorporated by reference in Sec. 262.89(d).
(1) Listed wastes subject to the Green control procedures.
(i) Green wastes that are not considered hazardous under U.S.
national procedures as defined in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 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.
national procedures as defined in Sec. 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 Sec. 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
[[Page 58409]]
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 Sec. 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 Sec. 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
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-export of wastes subject to the Amber control
procedures from the United States, as the country of import, to a third
country listed in Sec. 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 new transit countries. The notification must comply with
the notice and consent procedures in Sec. 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 Sec. 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 re-exported to a third country. The provisions of paragraph
(c) of this section apply to any shipments to be re-exported 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 Sec.
262.83(b)(1)(i) of the need 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 new
transit country, the return shipment may only occur after EPA provides
notification to and obtains consent from the competent authority of the
new 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 Sec. 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 Sec. 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 submit an exception
report to EPA in accordance with Sec. 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 Sec. 262.83 and for the
movement document as set forth in Sec. 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
[[Page 58410]]
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, e-mail 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 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.
Sec. 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 Sec. 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 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 Sec. 262.84.
(ii) Tacit consent. If no objection has been lodged by any
concerned country (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 pre-approved facility. The notification must indicate
that the recovery facility is pre-approved, 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 movement document pursuant to Sec. 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 concerned
country objects to the shipment.
(c) Wastes not covered in Appendices 3 and 4 of the OECD Decision.
Wastes destined for recovery operations, that have not been assigned to
Appendices 3 or 4 of the OECD Decision, but which are considered
hazardous under U.S. national procedures as defined in Sec. 262.80(a),
are subject to the
[[Page 58411]]
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
Appendices 3 or 4 of the OECD Decision, and are not considered
hazardous under U.S. national procedures as defined by Sec. 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 and fax numbers, and e-mail address;
(3) Importing recovery facility name, address, telephone and fax
numbers, e-mail address, and technologies employed;
(4) Importer name (if not the owner or operator of the recovery
facility), address, telephone and fax numbers, and e-mail address;
whether the importer will engage in waste exchange or storage, meeting
the definition of R12 or R13 recovery operations in Sec. 262.81(m),
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 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 list (Part I
or II of Appendix 3 or 4) of the OECD Decision, 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) according to Sec.
262.81(m).
(14) Certification/Declaration signed by the exporter that states:
I certify that the above information is complete and correct to the
best of my knowledge. I also certify that legally-enforceable written
contractual obligations have been entered into, and that any applicable
insurance or other financial guarantees are or shall be in force
covering the transboundary movement.
Name:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
Note to Paragraph (d)(14): The United States does not currently
require financial assurance for these waste shipments. However, U.S.
exporters may be asked by other governments to provide and certify
to such assurance as a condition of obtaining consent to a proposed
movement.
(e) 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 receipt of the waste, the U.S. recovery
facility shall send a certificate of recovery to the exporter and to
the competent authorities of the countries of export and import by
mail, e-mail without a digital signature followed by mail, or fax
followed by mail.
Sec. 262.84 Movement document.
(a) All U.S. parties subject to the contract provisions of Sec.
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 (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 Sec.
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 Sec. 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.
(b) The movement document must include all information required
under Sec. 262.83 (for notification), as well as the following
paragraphs (b)(1) through (b)(7) of this section:
(1) Date movement commenced;
(2) Name (if not exporter), address, telephone and fax numbers, and
e-mail of primary exporter;
(3) Company name and EPA ID number of all transporters;
(4) Identification (license, registered name or registration
number) of means of transport, including types of packaging envisaged;
(5) Any special precautions to be taken by transporter(s);
(6) Certification/declaration signed by the exporter that no
objection to the shipment has been lodged as follows:
I certify that the above information is complete and correct to the
best of my knowledge. I also certify that legally-enforceable written
contractual obligations have been entered into, that any applicable
insurance or other financial guarantees are or shall be in force
covering the transboundary movement, and that:
1. All necessary consents have been received; OR
2. The shipment is directed to a recovery facility within the OECD
area and no objection has been received from any of the countries
concerned within the thirty (30) day tacit consent period; OR
3. The shipment is directed to a recovery facility pre-authorized
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:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
(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 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
[[Page 58412]]
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 under Sec. 262.81(m), the facility shall retain the original
of the movement document for three (3) years.
Sec. 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 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 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 Sec. 262.82(c) prior to the re-export 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 concerned country, 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 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.
Sec. 262.86 Provisions relating to recognized traders.
(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.
Sec. 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 Sec. 262.51 or who initiate the
movement documentation under Sec. 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
documentation under Sec. 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 part 261, subpart C or D), designation of waste type(s)
and applicable waste code(s) from the appropriate OECD waste list
(Appendices 3 or 4 of the OECD Decision), 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
[[Page 58413]]
of greater than 100kg but less than 1000kg in a calendar month, and
except for hazardous waste for which information was already provided
pursuant to Sec. 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 documentation under Sec. 262.84 that
states:
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 Sec. 262.51 or who initiates the movement
documentation under Sec. 262.84 must file an exception report in lieu
of the requirements of Sec. 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 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 Sec. 262.51 or who initiate the movement documentation
under Sec. 262.84 shall keep the following records 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 documentation) sent by the
recovery facility to the exporter for at least three (3) years from the
date the hazardous waste was accepted by the initial transporter or
received by the recovery facility, whichever is applicable; and
(iv) 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 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.
Sec. 262.88 Pre-approval for U.S. recovery facilities [Reserved]
Sec. 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, to the universal waste management
standards of 40 CFR part 273, to State requirements analogous to 40 CFR
part 273, to the export requirements in the spent lead-acid battery
management standards of 40 CFR part 266, subpart G, or to 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, regardless of whether it
appears in Appendix 4 of the OECD Decision.
(c) The appropriate control procedures for hazardous wastes and
hazardous waste mixtures are addressed in Sec. 262.82.
(d) The OECD waste lists, entitled ``List of Wastes Subject to the
Green Control Procedure'' and ``List of Wastes Subject to the Amber
Control Procedure,'' are set forth in Appendix 3 and Appendix 4,
respectively, of the OECD Decision. These lists are incorporated by
reference. These incorporations by reference were approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51 on [date of approval for incorporation by reference].
These materials are incorporated as they exist 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 Andr[eacute] Pascal, F-
75775 Paris Cedex 16, France. For information on the availability of
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
6. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
7. Section 264.12(a)(2) is revised to read as follows:
Sec. 264.12 Required notices.
(a)(1) * * *
(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
[[Page 58414]]
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.
* * * * *
8. Section 264.71(a)(3) is revised to read as follows:
Sec. 264.71 Use of manifest system.
(a)(1) * * *
(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.
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
9. 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.
10. Section 265.12(a)(2) is revised to read as follows:
Sec. 265.12 Required notices.
(a)(1) * * *
(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.
* * * * *
11. Section 265.71(a)(3) is revised to read as follows:
Sec. 265.71 Use of manifest system.
(a)(1) * * *
(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
* * * * *
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
12. The authority citation for part 266 is revised to read as
follows:
Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017, 6905,
6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.
13. In Sec. 266.80(a) the table is revised to read as follows:
Sec. 266.80 Applicability and requirements.
(a) * * *
----------------------------------------------------------------------------------------------------------------
If your batteries * * * And if you * * * Then you * * * And you * * *
----------------------------------------------------------------------------------------------------------------
(1) Will be reclaimed through ....................... Are exempt from 40 CFR Are subject to 40 CFR
regeneration (such as by electrolyte parts 262 (except for parts 261 and Sec.
replacement). Sec. 262.11), 263, 262.11 of this
264, 265, 266, 268, chapter.
270, 124 of this
chapter, and the
notification
requirements at
section 3010 of RCRA.
(2) Will be reclaimed other than Generate, collect, and/ Are exempt from 40 CFR Are subject to 40 CFR
through regeneration. or transport these parts 262 (except for parts 261 and Sec.
batteries. Sec. 262.11), 263, 262.11, and applicable
264, 265, 266, 270, provisions under part
124 of this chapter, 268.
and the notification
requirements at
section 3010 of RCRA.
(3) Will be reclaimed other than Store these batteries Are exempt from 40 CFR Are subject to 40 CFR
through regeneration. but you aren't the parts 262 (except for parts 261, Sec.
reclaimer. Sec. 262.11), 263, 262.11, and applicable
264, 265, 266, 270, provisions under part
124 of this chapter, 268.
and the notification
requirements at
section 3010 of RCRA.
(4) Will be reclaimed other than Store these batteries Must comply with 40 CFR Are subject to 40 CFR
through regeneration. before you reclaim 266.80(b) and as parts 261, Sec.
them. appropriate other 262.11, and applicable
regulatory provisions provisions under part
described in 266.80(b). 268.
(5) Will be reclaimed other than Don't store these Are exempt from 40 CFR Are subject to 40 CFR
through regeneration. batteries before you parts 262 (except for parts 261, Sec.
reclaim them. Sec. 262.11), 263, 262.11, and applicable
264, 265, 266, 270, provisions under part
124 of this chapter, 268.
and the notification
requirements at
section 3010 of RCRA.
[[Page 58415]]
(6) Will be reclaimed through Export these batteries Are exempt from 40 CFR Are subject to 40 CFR
regeneration or any other means. for reclamation in a parts 263, 264, 265, part 261 and Sec.
foreign country. 266, 268, 270, 124 of 262.11, and either
this chapter, and the must comply with 40
notification CFR part 262, subpart
requirements at H (if shipping to one
section 3010 of RCRA. of the OECD countries
You are also exempt specified in 40 CFR
from part 262, except 262.58(a)(1)), or
for 262.11, and except must:
for the applicable (a) Comply with the
requirements in requirements
either:. applicable to a
(1) 40 CFR part 262 primary exporter in 40
subpart H; or (2) CFR 262.53,
262.53 ``Notification 262.56(a)(1) through
of Intent to Export, (4), (6), and (b) and
262.56(a)(1) through 262.57; and
(4), (6), and (b) (b) Export these
``Annual Reports,'' batteries only upon
and 262.57 consent of the
``Recordkeeping''. 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.
(7) Will be reclaimed through Transport these Are exempt from 40 CFR Must comply with
regeneration or any other means. batteries in the U.S. parts 263, 264, 265, applicable
to export them for 266, 268, 270, 124 of requirements in 40 CFR
reclamation in a this chapter, and the part 262, subpart H
foreign country. notification (if shipping to one of
requirements at the OECD countries
section 3010 of RCRA. 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
(c) You must ensure
that the shipment is
delivered to the
facility designated by
the person initiating
the shipment.
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
14. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
15. Section 271.1(j) is amended by adding the following entries to
Table 1 and Table 2 in chronological order by date of publication in
the Federal Register, to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
[Insert date of publication of final Exports of hazardous [Insert FR page [Insert date of X
rule in the Federal Register (FR)]. waste. numbers]. months from date of
publication of final
rule].
----------------------------------------------------------------------------------------------------------------
* * * * *
[[Page 58416]]
Table 2--Self-Implementing Provisions of the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Self-implementing
Effective date provision RCRA citation Federal Register reference
----------------------------------------------------------------------------------------------------------------
* * * * * * *
[Insert date X days after of publication Exports of hazardous waste 3017(a) [Insert Federal Register
of final rule in the Federal Register reference for publication
(FR)]. of final rule].
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. E8-22536 Filed 10-3-08; 8:45 am]
BILLING CODE 6560-50-P