530294012
Friday
April 12, 1996
Part II
Environmental
Protection Agency
40 CFR Part 9, et al.
Imports and Exports of Hazardous Waste:
Implementation of OECD Council
Decision; Final Rule
5H-X2,
-------
16290 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9,260, 261,262,263,264,
265,266 and 273
[FRL-5447-1]
RIN 2050-AD87
Imports and Exports of Hazardous
Waste: Implementation of OECD
Council Decision C(92)39 Concerning
the Control of Transf rentier
Movements of Wastes Destined for
Recovery Operations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The rule identifies the wastes,
under the Resource Conservation and
Recovery Act (RCRA), that are subject to
a graduated system (green, amber, red)
of procedural and substantive controls
when they move across national borders
within the OECD for recovery. (EPA
may, in the future, identify wastes
under other statutes that are subject to
the OECD Decision). It seeks to make the
transactions fully transparent and to
prevent or minimize the possibility of
such wastes being abandoned or
otherwise illegally handled. These
requirements will apply only to U.S.
exporters and importers of RCRA
hazardous wastes destined for recovery
in OECD countries (except for Canada
and Mexico; waste shipments to and
from these countries will continue to
move under the current bilateral
agreements and regulations). Those U.S.
exporters and importers transacting
hazardous waste movements outside the
scope of today's rule will remain subject
to EPA's current waste export and
import regulations at 40 CFR part 262,
subparts E and F.
This rule does not increase the scope
of wastes subject to U.S. export and
import controls; it does, however,
modify the procedural controls
governing their export and import when
shipped for recovery among OECD
countries. Today's rule will assist in
harmonizing the new OECD
requirements, reducing confusion to
U.S. importers and exporters and
increasing the efficiency of the process.
EFFECTIVE DATE: This rule is effective on
July 11,1996. The OECD Green List of
Wastes (revised May 1994), Amber List
of Wastes and Red List of Wastes (both
revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix
5, respectively, to the OECD Council
Decision C(92)39/FINAL (Concerning
the Control of Transfrontier Movements
of Wastes Destined
Operations) were approved by the
Director of the Federal Register to be
incorporated by reference in today's rule
on July 11,1996.
ADDRESSES: Supporting materials are
available for viewing in the RCRA
Information Center (RIG), located at
1235 Jefferson-Davis Highway, First
Floor, Arlington, Virginia 22203. The
Docket Identification Number is F-94-
IEHF-FFFFF. The RIC is open from 9
a.m. to 4 p.m., Monday through Friday,
excluding federal holidays. To review
docket materials, the public must make
an appointment by calling (703) 603-
9230. The public may copy a maximum
of 100 pages from any regulatory docket
at no charge. Additional copies cost
$.15/page. Some supporting materials
are available electronically. See the
"Supplementary Information" section
for information on accessing them.
FOR FURTHER INFORMATION CONTACT:
For general information, contact the
RCRA Hotline at 1-800-424-9346 or
TDD 1-800-553-7672 (hearing
impaired). In the Washington
metropolitan area, call 703-412-9810 or
TDD 703-412-3323.
For more detailed information on
specific aspects of this rulemaking,
contact Ms. Julia Gourley, Office of
Solid Waste (5304), U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20460, (202) 260-7944.
SUPPLEMENTARY INFORMATION:
Internet Access
Selected supporting materials are
available on the Internet. Follow these
instructions to access the information
electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335.
This report can be accessed off the
main EPA Gopher menu, in the
directory: EPA Offices and Regions/
Office of Solid Waste and Emergency.
Response (OSWER)/Office of Solid
Waste (RCRA)/Hazardous Waste-RCRA-
Subtitle C/Exports/Imports.
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet address
Files are located in /pub/gopher/
OSWRCRA.
Preamble Outline
I. Authority
A. Good Cause Exception to Notice and
Comment Requirement
B. Effective Date
n. Background
A. History of the OECD and Development
of Council Decision C(92)39/FINAL
B. Relationship to the Basel Convention
C. Summary of Decision
1. Waste Lists
a. Green, Amber, and Red Lists
b. Unlisted Wastes
c. National Procedures
2. Control Procedures
a. Green-List Wastes
b. Amber-List Wastes
c. Red-List Wastes
d. When Wastes are not Considered
Hazardous by All Concerned Countries
m. Specific OECD Requirements and
Relationship to RCRA
A. Differences Between the OECD Decision
and Today's Rule
B. Definitions
1. Competent Authorities
2. Concerned Countries
3. Consignee
4. Country of Transit
5. Exporting Country
6. Generator
7. Importing Country
8. International Waste Identification Code
9. Notifier
10. OECD Area
11. Person
12. Recognized Trader
13. Recovery Facility
14. Recovery Operations
15. Transfrontier Movement
16. Wastes
C Notification and Consent for Exports
1. Provisions Applicable to Amber-List and
Red-List Wastes
a. Notice and Consent for Specific
Shipments
b. General Notification
c. Pre-Approval for Recovery Facilities
Managing Amber-List Wastes
d. Return or Re-Export of Shipments
2. Unlisted Wastes
D. Tracking Documents
1. Routing of Tracking Document
E. Contracts
F. Importers
1. Definition
2. Requirements
a. Notification of Receipt
b. Pre-Approval of U.S. Recovery Facilities
G. Reporting and Recordkeeping
IV. OECD Waste Lists and Relationship to
RCRA
A. Relationship of OECD Wastes and RCRA
Hazardous Wastes
B. Status of Specific RCRA Hazardous
Wastes
1. Definitions of Wastes Subject to National
Procedures
2. Exemptions from the Definition of Solid
Waste Definition
3. Applicability to Hazardous Waste
Subject to Special Recycling Standards
a. Scrap Metal
b. Lead-Acid Batteries
4. Wastes Excluded Under 40 CFR 261.4
5. Hazardous Wastes Exempted Under 40
CFR 261.5
6. Applicability to Universal Wastes
7. Non-RCRA Wastes and Other Regulatory
Regimes
C. OECD Waste Lists Incorporated by
Reference
V. Applicability in Authorized States
VI. Relationship to U.S. Bilateral Agreements
VII. Relationship to Other Programs
VIII. Future Rulemaking
IX. Regulatory Impact Analysis
-------
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
1. Display of OMB Control Numbers
2. Burden Statement
Note: The Agency notes that previous, pre-
publication versions of this rule may
inadvertently have been made available (e.g.
through the Internet and other on-line
means). This rule, published today in the
Federal Register, supersedes any and all of
these pre-publication versions. This
published rule constitutes the Agency's final
rule and reflects certain minor technical
corrections that were not contained in pre-
publication versions.
On March 30,1992, the Organization
for Economic Cooperation and
Development (OECD) adopted Council
Decision C(92)39 Concerning the
Control of Transfrontier Movements of
Wastes Destined for Recovery
Operations (Decision). The United
States, a member of OECD, supported
the Decision and has agreed to follow its
terms, which, with respect to RCRA
wastes, EPA is implementing in today's
Final Rule.
I. Authority
Authority to promulgate today's rule
is found in sections 2002(a) and
3017(a)(2) and (f) 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. 6901 et seq.
Today's final rule is necessary to
ensure implementation of the
Organization for Economic Cooperation
and Development (OECD) Council
Decision C(92)39/FINAL Concerning the
Control of Transfrontier Movements of
Wastes Destined for Recovery
Operations (the Decision). The Decision
was supported by the United States and
imposes legally binding commitments
on the United States pursuant to
Articles 5(a) and 6(2) of the OECD
Convention, 12 U.S.T. 1728. The
Decision and today's rule implementing
the Decision also will ensure that the
import and export of RCRA hazardous
waste destined for recovery, between
the United States and those OECD
countries that are Parties to the Basel
Convention on the Control of
Transboundary Movements of
Hazardous Wastes and Their Disposal,
may proceed even though the United
States is not yet a Party to the Basel
Convention.1
The Basel Convention entered into
force on May 5,1992, for the twenty
countries that ratified it by that date.
Since then, a number of other countries
have also ratified. The Convention
prohibits trade in Basel-covered wastes
between parties and non-parties, unless
a bilateral, multilateral, or regional
agreement or arrangement exists in
accordance with Article 11 of the
Convention. The Decision, which
entered into force before May 5,1992,
satisfies the requirements of Article 11
of the Basel Convention because it is a
pre-existing multilateral agreement
compatible with the environmentally
sound management of wastes as
required by the Convention. Therefore,
today's promulgation of Subpart H as
part of the RCRA hazardous waste
export and import regulations, which is
necessary to implement the Decision,
will make it possible for persons within
the United States to continue exporting
and importing Basel-covered RCRA
hazardous waste for recovery within the
OECD, even if other OECD countries are
Parties to the Basel Convention.
Additionally, today's rule will facilitate
harmonization of U.S. regulations with
European Union regulations on waste
exports and imports, which went into
effect on May 6,1994. Future legislative
and regulatory actions will be needed to
more fully implement this Decision.
1 OECD member countries consist of Australia,
Austria, Belgium, Canada, Denmark, Finland
France, Germany, Greece, Iceland, Ireland, Italy
Japan, Luxembourg, the Netherlands, New Zealand
Norway, Portugal, Spain, Sweden, Switzerland, '
Turkey, the United Kingdom, and the United States
Mexico joined the OECD in June 1994
A. Good Cause Exception to Notice and
Comment Requirement
The Decision sets out very specific
requirements for shipments of
hazardous waste destined for recovery.
EPA is implementing language that
essentially mirrors the Decision in order
to establish certain new requirements
that will be enforceable against
importers and exporters [EPA is making
only minimal, nonsubstantive changes
to the OECD language in order to
conform today's rule to existing RCRA
rules (e.g., substituting the RCRA-
defined term "transporter" for the term
"carrier" used in the Decision)]. EPA is
promulgating these rules without first
providing notice and opportunity to
comment. Under the Administrative
Procedure Act (APA), 5 U.S.C.
553(b)(B), an agency may forgo notice
and comment in promulgating a rule
when, according to the APA, the agency
for good cause finds (and incorporates
the finding and a brief statement of
reasons for that finding into the rules
issued) that notice and public comment
procedures are impracticable,
unnecessary, or contrary to the public
interest. For the.reasons set forth below,
EPA believes it has good cause to find
that notice and comment would be
unnecessary and contrary to the public
interest and therefore is not required bv
the APA. y
EPA finds that notice and comment
procedures are unnecessary in
connection with the promulgation of
today's rule because EPA is precluded
from modifying the rule in any
meaningful way in response to public
comment. The requirement to
implement this Decision virtually as
written derives from the following.
First, the United States has entered
into a legally binding commitment with
the other OECD countries to implement
the Decision virtually as written.
Accordingly, today's rulemaking is
analogous to a codification of statutory
requirements, in which an agency
assumes the ministerial,
nondiscretionary functions of
translating requirements to regulatory
form [see United Technologies Corp v
EPA, 821 F.2d 714, 720 (D.C. Cir. 1987)
(finding that EPA had good cause to
omit notice and comment for a rule
codifying portions of the 1984
amendments to RCRA); Metzenbaum v.
Federal Energy Regulatory Commission,
675 F.2d 1282,1291 (D.C. Cir. 1982)
(finding orders implementing statutory
waiver were nondiscretionary acts
required by such waiver and that notice
and comment procedures were
unnecessary and possibly contrary to
the public interest "given the expense
that would have been involved in the
futile gesture")]. Although the Decision
is neither a statute nor a court order and
imposes no requirements directly on
U.S. persons, the U.S. Department of
State has determined that the Decision
is an international agreement creating
binding commitments on the United
States under the terms 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.
Furthermore, EPA has determined that
no statutory change to the Resource
Conservation and Recovery Act (RCRA)
is needed because RCRA currently
authorizes EPA to promulgate rules
governing imports and exports of
hazardous waste, and contains adequate
authority to promulgate the
Second, today's rule cannot deviate
materially from the Decision because, as
a practical matter, other OECD countries
may refuse to accept U.S. shipments of
waste for recycling that do not conform
to the procedures agreed to in the
Decision. Such countries also may
refuse to allow wastes to be shipped to
the U.S. if the U.S. cannot carry out its
duties as specified in the Decision.
Deviation from the reguratory scheme
-------
16292 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
articulated in the Decision in response
to comments might preclude the U.S.
from implementing the Decision and
therefore from satisfying its
international commitments.
Third, EPA must implement the
Decision virtually as written because
modifications could defeat the goal of
achieving an internationally consistent
regime to control the import and export
of hazardous and other wastes destined
for recovery. EPA believes that parallel
implementation of the Decision within
the U.S. and other OECD countries is
crucial to ensuring that the import and
export of wastes destined for recovery
proceed in accordance with an
internationally integrated regime.
Without the uniform implementation of
the controls it prescribes, an
internationally consistent regime is not
possible, and many of the
environmental benefits of the Decision
(and the Basel Convention) will be lost.
EPA also believes that it has good
cause to find that prior notice and an
opportunity to comment would not
serve the public interest. As noted
above, the movement of RCRA
hazardous wastes destined for recovery
could be halted between the United
States and the OECD countries,
particularly those that are parties to the
Basel Convention, if the United States
modified the regulations in response to
comment such that the regulations
failed to conform to the OECD Decision.
EPA believes that the continued
movement and recovery of such wastes
is environmentally and economically
beneficial. The United States, therefore,
encourages the environmentally sound
recovery of wastes, particularly
hazardous wastes, as an alternative to
disposal [see, e.g., 42 U.S.C. 6902(a)(6),
6935(a), 6941a; 42 U.S.C. 9621(b)]. EPA
believes that the import and export of
wastes among OECD countries for
purposes of recovery serves the public
interest by making waste management
facilities in the OECD available to waste
generators in the U.S. and other OECD
countries, thereby providing additional
assurance that wastes amenable to
recovery operations will be managed in
an environmentally sound manner. The
United States' failure to implement the
Decision in the form approved by the
OECD countries could thwart this
objective.
In further support of its finding that
the public interest is not well served by
the allowance for comment on this
rulemaking, EPA also notes that the
regulatory burdens of this rule flow
from the Decision itself and are not
materially affected by the promulgation
of today's rule. Because a number of
OECD countries to date have fully
implemented the Decision, many U.S.
importers and exporters of wastes
destined for recovery who seek to trade
with OECD countries in effect already
are subject to the requirements of the
Decision through those countries'
controls on their imports and exports.
For example, these countries may
already require, as a condition of
authorizing the shipment, that U.S.
participants adhere to the Decision's
contracting or notice requirements, even
though those participants are not yet
required to do so under U.S. law. Thus,
it is the implementation of the Decision
by other OECD countries, rather than
the implementation of today's rule, that
has the most profound effect on the
regulated community. Because today's
rule merely formalizes the existing
regulatory framework to which the
regulated community is already subject,
its promulgation without notice and
comment does not detrimentally affect
those persons [see National Helium
Corp. v. Federal Energy Administration,
569 F.2d 1137,1146 (Temp. Emer. Ct.
App. 1978)]. Indeed, as noted above,
today's rule ameliorates the effects of
foreign laws on U.S. persons by making
it possible for RCRA hazardous waste
destined for recovery to move between
the U.S. and other OECD countries
without being stopped or rejected for
failure to conform to the Decision.
Finally, where EPA believes the OECD
Decision is open to interpretation and
affords EPA some flexibility in
interpreting and implementing its
requirements, EPA remains free to
initiate a separate rulemaking process
on those issues, following all
appropriate notice and comment
procedures.
For the reasons set forth above, EPA
believes that it has good cause to find
that implementation of notice and
comment procedures for today's rule
would be unnecessary and contrary to
the public interest, and therefore is not
required under 5 U.S.C. 553(b)(B) to
initiate a comment period.
B. Effective Date
Section 3010(b) of RCRA requires EPA
to set the effective date for rules
promulgated under Subtitle C of RCRA
at six months after the date of
promulgation unless (1) the regulated
community does not need six months to
come into compliance; (2) the regulation
responds to an emergency; or (3) there
is other good cause. EPA believes that
the regulated community will not need
more than 90 days to become familiar
with today's rule and to begin
implementing its requirements because
the new requirements refer primarily to
the notices and consents that are already
required under existing law as a
condition to the import or export of the
wastes destined for recovery. Moreover,
EPA believes that the regulated
community is capable of, and indeed
has an interest in, immediate
compliance with the new rule in order
to continue to be able to import and
export wastes subject to the Decision,
since most OECD countries have already
revised their regulations to incorporate
the Decision's requirements. EPA also
believes it has good cause to make this
rule effective 90 days from publication,
for the reasons set forth above in
connection with the APA's public
notice requirement. Therefore, EPA
concludes that the six month effective
date provision of RCRA 3010(b) does
not apply.
II. Background
A. History of the OECD and
Development of the Council Decision
C(92)39/Final
The OECD was chartered to assist
member countries in achieving high
economic growth, employment, and a
rising standard of living while ensuring
that human health and the environment
are protected. Presently there are 25
member countries of the OECD:
Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany,
Greece, Iceland, Ireland, Italy, Japan,
Luxembourg, Mexico, Netherlands, New
Zealand, Norway, Portugal, Spain,
Sweden, Switzerland, Turkey, the
United Kingdom, and the United States.
The OECD was the first international
organization to establish a working
group to analyze issues relating to
transfrontier movements of hazardous
waste. Li 1974, the OECD Environment
Policy Committee, which guides all
OECD work involving environmental
matters, created the Waste Management
Policy Group (WMPG), which includes
government officials responsible for
controlling waste management in their
respective member countries.
In 1981, the WMPG began to prepare
guidelines to control transfrontier
movements of hazardous waste.
Thereafter, because some members
(including the United States) enacted
legislation controlling transfrontier
shipments of hazardous waste, the
OECD's primary mission was to work
toward harmonization of controls
among the member countries.
Much of the OECD's early work,
including lists identifying wastes to be
covered by an international agreement
controlling transfrontier waste
movements, was adopted by the United
Nations Environment Programme
(UNEP) and incorporated into the Basel
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16293
Convention on the Control of
Transboundary Movements of
Hazardous Wastes and Their Disposal
(Basel Convention). More detailed
discussion of the Basel Convention can
be found in the Federal Register at 57
FR 20602 (May 13,1992).
Following completion of the Basel
Convention and a 1991 OECD Council
Decision on wastes, an Advisory Panel
to the OECD's Waste Management
Policy Group was chartered in January
1991. Its purpose was to study whether
a streamlined set of procedural notice
and consent requirements could be
agreed upon by member countries for
transfrontier movements of waste
destined for recovery. The panel
developed a graduated control system
and lists of covered wastes (green,
amber, and red). The proposed system
was presented to the WMPG as a draft
Decision in November 1991, for
submission to the OECD Environment
Policy Committee. In December 1991,
the Environment Policy Committee
returned the draft Decision to the
WMPG for further refinement. A month
later, the WMPG revised the Decision,
and through the Environment Policy
Committee, submitted the Decision
document to the OECD Council. On
March 30,1992, the Council adopted
the Decision, with only Japan
abstaining. Japan later adopted and
began implementing the Decision in
December 1993.
B. Relationship to the Basel Convention
The Basel Convention is an
international agreement controlling the
transfrontier movement of hazardous
and other wastes. While requiring
movements between Basel Parties to be
managed in an environmentally sound
manner, it prohibits movements
involving Parties and non-Parties absent
a separate bilateral, multilateral, or
regional agreement or arrangement that
is compatible with the aims and
purposes of the Convention (for pre-
existing agreements) or that contains
provisions that do not derogate from the
environmentally sound management
required by the Basel Convention (for
newly negotiated agreements). Such
agreements are recognized under Article
11(2) of the Convention. As a pre-
existing arrangement under Article
11(2), the Decision averts potential trade
disruptions between members of the
OECD that are Parties to the Basel
Convention and members that are not.
The U.S. will not become a Party to
the Basel Convention until it ratines the
Convention. In order to ratify the
Convention, the U.S. must have
additional statutory authority to
implement its terms. Once the U.S. has
the necessary authority, the export and
import regulations at 40 CFR 262
Subparts E and F will be modified.
Exports and imports among OECD
countries of waste destined for recovery
will be governed by the procedures set
forth in today's regulations and by any
future regulatory changes made to
implement the Decision (including
future changes to the Decision).2
Exports and imports of RCRA hazardous
wastes within the OECD for purposes
other than recycling (e.g., disposal or
treatment) will continue to be subject to
the current RCRA export and import
regulations.
C. Summary of Decision
OECD Council Decision C(92)39/
FINAL establishes a graduated control
system for the transfrontier movement
of wastes destined for recovery
operations. The Decision reflects
recognition by the OECD of the
importance of transboundary movement
of wastes for recovery, because highly
specialized recovery facilities are not
found in every country and because
OECD generally supports a waste
management hierarchy in which
recovery is more desirable than final
disposal. The goal of the negotiations
was to ensure that recovery of materials
from wastes could continue
internationally, provided the shipments
were managed in an environmentally
sound and efficient manner.
The OECD has developed draft
guidance on environmentally sound
recovery practices for particular wastes.
In addition, some of the member
countries are actively engaged in the
development of technical guidelines for
environmentally sound management of
hazardous and other wastes under the
Basel Convention. To date, seven
technical guidelines on management of
specific waste streams and waste
management practices have been
adopted by the Basel Parties, along with
a framework document outlining the
elements to be included in the technical
guidelines. They are: hazardous waste
from the production and use of organic
solvents; waste oils from petroleum
origins and sources; wastes comprising
or containing PCBs, PCTs, and PBBs;
wastes collected from households;
specially engineered landfills,
incineration on land, and used oil re-
refining or other re-uses of previously
used oil. The purpose of the technical
guidelines is to assist developing
countries in becoming self-sufficient in
2 For example, today's regulations implementing
the OECD Decision will be modified once EPA
obtains legislative authority to control the
transfrontier movements of household wastes,
which appear on the OECD amber list.
waste management as they industrialize
and develop their economies. The Basel
Parties have agreed to develop other
technical guidelines as resources
permit.
The Decision establishes a range of
different procedural controls depending
on whether a waste appears on the
Decision's green, amber, or red list (or
no list, in which case hazardous wastes
are regulated as red-list wastes). Green-
list wastes require no controls beyond
those typically imposed in normal
international commercial shipments.
Amber-list wastes, which are considered
hazardous, may be shipped for recovery
under one of three arrangements: (1)
movement pursuant to a shipment-by-
shipment written notification by the
export notifier or competent authority of
his government to the competent
authorities of OECD concerned
countries (i.e., exporting, importing and
transit), and written or tacit consent
from the relevant OECD importing and
transit countries; (2) movement
pursuant to a general notification and
written or tacit consent from the
competent authorities of the relevant
OECD importing and transit countries;
or (3) movement to facilities pre-
approved by the importing country to
accept that waste type which requires
only prior written notification to the
competent authorities of the concerned
countries. In all cases, amber-list wastes
must be accompanied by a tracking
document and the waste must be
shipped under a legally binding
contract, chain of contracts, or
equivalent arrangements if the notifier
and receiving facility are part of the
same legal or corporate entity. Red-list
wastes are handled in the same manner
as amber-list wastes except that prior
written consent from the importing and
transit countries is always required and
no facilities are pre-approved to accept
these wastes.
In addition to assigning specific
wastes to the green, amber or red lists,
the Decision allows for each member
country to employ its "national
procedures" to determine whether a
waste is considered hazardous under its
laws and regulations, and therefore
whether it is subject to amber or red
controls. Thus, as discussed in more
detail below, a waste that is not
hazardous as determined by national
procedures will not be subject to amber
or red controls regardless of which list
it appears on, a green-list waste that is
considered hazardous will be subject to
amber or red controls, while an unlisted
waste considered hazardous as
determined by national procedures will
be subject to red controls (see § II. C. 2.
d.)
-------
16294 Federal Register / Vol. 61, No. 72 / Friday, April 12. 1996 / Rules and Regulations
1. Waste Lists
a. Green, Amber, and Red Lists. The
waste lists (green, amber, and red) are
intended to be comprehensive, i.e., any
waste subject to transfrontier movement
should be identified on one of three
lists. Wastes identified on the green list
are presumed to be non-hazardous
while amber-list and red-list wastes are
presumed to be hazardous. However,
transfrontier movements of red-list
wastes for recovery are presumed by the
OECD to pose a greater potential risk
than amber-list wastes because of their
hazardous properties or because there is
less experience in recovery of red
wastes as compared to amber wastes.
The Decision allows a country to use its
national procedures to determine which
wastes are hazardous.
b. Unlisted Wastes. Although the
green, amber, and red lists of wastes are
intended to be comprehensive, it is
possible that there are wastes moving
internationally for recovery that are not
on any list. The WMPG developed the
Review Mechanism in accordance with
the General Provisions section of the
Decision, to evaluate and assign
unlisted waste to an appropriate list.
The Review Mechanism is administered
by an OECD group known as the
Working Party. Under the Review
Mechanism, the Working Party forwards
recommendations to the OECD Council
through the WMPG, the Pollution
Prevention and Control Group, and the
Environment Policy Committee. The
Working Party also identifies other
implementation issues that should be
addressed under the Review
Mechanism.
In implementing the Review
Mechanism, the Working Party uses the
criteria in Annex 2 of the OECD
Decision to evaluate wastes and to
formulate recommendations regarding
their placement on a specific list. The
criteria are divided into two major
categories: waste properties (e.g., degree
of hazard, physical state) and
management practices (e.g., handling
prior to recovery). The terms of
reference for the Review Mechanism
require that changes to the waste lists be
proposed or supported by at least one
member country and circulated to all
members at least six weeks prior to
convening the Review Mechanism's
Working Party.
Persons who export hazardous wastes
from the U.S. to OECD countries for
recovery are encouraged to identify
hazardous wastes which are not
currently identified on any list and to
provide EPA with waste-specific
information responsive to the questions
in Annex 2 of the Decision. This
information will be evaluated by the
Agency prior to submission to the
Review Mechanism for consideration.
Hence, it is critical that complete
information be provided to EPA at least
two months (and preferably earlier)
prior to scheduled meetings of the
Working Party to conduct the Review
Mechanism process. Until such time as
an unlisted waste is placed on a
particular list pursuant to the Review
Mechanism, the Decision provides that
unlisted wastes considered hazardous
under national procedures move under
red controls and that unlisted waste
considered non-hazardous under
national procedures move under green
controls.
c. National Procedures. The OECD
amber and red waste lists are quite
broad, consisting of many generic
categories which may include both
hazardous and non-hazardous wastes.
The Decision therefore allows a country
to determine if a waste on an OECD list
is hazardous based on its "national
procedures" or "national tests." During
the negotiations of the Decision, the
U.S. interpreted national procedures to
include both hazardous waste testing
and regulatory determinations. For
purposes of today's rule, EPA has
determined that a waste is hazardous
under U.S. "national procedures" 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 273, or to State requirements
analogous to Part 273. (As stated earlier,
EPA may, in the future, identify wastes
under other statutes that are subject to
the OECD Decision). [Note: For
purposes of brevity and convenience,
only the manifest criterion (and not the
universal waste criteria) will be
mentioned specifically throughout the
preamble as to whether EPA considers
a waste to be a hazardous waste and
therefore subject to today's rule.
However, we emphasize that universal
wastes (which are considered hazardous
wastes but are not subject to manifest
requirements) are also subject to today's
rule. Further discussion of universal
wastes can be found in section IV. B. 6.].
This interpretation is consistent with
the Agency's 1986 export notification
policy [see 51 FR 28664 (Aug. 8,1986)],
in which the Agency concluded that
wastes that are not subject to
manifesting domestically do not pose a
risk warranting export notification.
Further discussion of EPA's
interpretation of national procedures as
they apply to recyclable waste can be
found in section IV. B. 1.
2. Control Procedures
The specific control procedures
required for the export or import of
wastes for recovery within the OECD
depend on whether the relevant
exporting, importing and transit
countries consider a waste to be subject
to green, amber or red controls under
their national procedures. Significantly,
a particular waste's placement on one of
the OECD lists is not determinative of
the level of control applicable to the
transfrontier shipment of such a waste
for recovery. The lists represent an
attempt to reach a consensus among the
member countries on the level of control
applicable to certain types of wastes;
they do not supersede a country's
authority to apply different levels of
control for a particular waste pursuant
to its national procedures. Accordingly,
although a waste's placement on the
OECD green, amber and red waste lists
may indicate the applicable level of
control in most cases, exporters and
importers must determine which level
of control applies to a particular
shipment of waste under the national
procedures of each affected country.
All waste shipments that are subject
to today's final rule must be sent to
facilities that are allowed under the
applicable laws of the importing
country to receive and perform recovery
operations on the wastes. In addition,
the Decision requires that all
transfrontier movements of waste within
the OECD comply with the provisions of
applicable international transport
agreements.3 Any transit of wastes
through a non-member country is
subject to all applicable international
and national laws and regulations.
a. Green-List Wastes. Wastes on the
green list that are exported from the U.S.
to OECD countries or imported to the
U.S. from such countries for recovery
are subject to all existing controls
normally applied to commercial
transactions, but are not subject to any
additional controls under the Decision.
Such controls may include bills of
lading, customs declarations,
international insurance, or other
controls.
However, if a green-list waste is
"sufficiently contaminated" (as
described below) to meet the criteria for
inclusion on the amber or red lists, then
3 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). See
Appendix 1 of Council Decision C(92)39/Final in
Appendix 3 of today's preamble.
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16295
shipment must be managed in
accordance with the applicable amber-
list or red-list controls. For the purpose
of implementing the Decision, EPA is
interpreting "sufficiently contaminated"
to mean a green-list waste that is
considered hazardous under U.S.
national procedures (i.e., waste or waste
mixture meets the Federal definition of
hazardous waste in 40 CFR 261.3 and is
subject to Federal manifest
requirements). Such wastes will be
subject to amber-list controls, unless the
reason for the contamination is mixture
with a red-list waste or with a
hazardous waste that is not found on
any list. In those cases, the waste will
be subject to red-list controls.
As will be discussed further, the
Decision acknowledges that certain
green-list wastes may be subject to
amber-list or red-list controls by certain
countries, in accordance with their
domestic legislation and the rules of
international law.
b. Amber-List Wastes. Shipments of
amber-list wastes destined for recovery
within the OECD are subject to the
amber-list control system. If, however,
the waste is sufficiently contaminated
with other wastes subject to red controls
(i.e., red-list wastes or unlisted
hazardous wastes) the waste then
becomes subject to the red control
regime. In addition, such waste could
potentially be subject to other laws and
regulations.
Amber controls require that a
shipment of amber-list waste move
pursuant to a legally binding written
contract or chain of contracts (or an
equivalent arrangement if the notifier
and the receiving facility are part of the
same corporate or legal entity). The
contract must include a provision for
alternate management or re-export of the
waste if it cannot be managed as
planned and must include financial
guarantees for such alternate
management if so required by the
competent authorities of any concerned
country, in accordance with applicable
national or international laws. The U.S.
does not require any financial
guarantees for international waste
shipments at this time.
Prior to the proposed export, the
notifier must provide written
notification to the competent authorities
of all concerned countries to allow them
the opportunity to deny the shipment
As defined in § 262.81(g) of today's rule,
the notifier is the person under the
jurisdiction of the exporting country
who has, or will have at the time the
transfrontier movement commences,
possession or other forms of legal
control of the wastes and who proposes
their transfrontier movement for the
ultimate purpose of submitting them to
recovery operations (see section IE. B.
9.). In certain cases, a general
notification will be permissible. The
competent authority of the exporting
country may elect to perform the
notification duties. EPA is the United
States' competent authority for OECD
purposes. Therefore, under today's rule,
the notifier will provide written
notification to EPA for exports from the
U.S. of RCRA hazardous wastes subject
to amber-list controls, and EPA will in
turn notify the competent authorities of
all concerned OECD countries. The
competent authority of the importing
country must issue an
Acknowledgement of Receipt to the
notifier and to the competent authorities
of the exporting and transit countries
within three working days of receiving
the export notice. For the purposes of
this rule, "transit country" refers only to
a transit country that is a member of the
OECD and is a Party to the Decision,
including Canada [see section HI. B. 4.
of today's preamble and § 262.81(d)].
The competent authorities of the
importing and transit countries have 30
days to consent or object to the
shipment. However, if the competent
authorities of the importing and transit
countries do not notify the notifier in
writing within 30 days of issuance of
the Acknowledgement of Receipt that
the request has been denied or that
additional information is required, then
tacit consent is deemed to be granted,
and the shipment may proceed as
specified in the notification.
If a transit country denies consent, the
proposed movement must be rerouted
and a new notification must be
submitted to EPA to forward to the new
transit country. The movement may not
commence until that OECD country
tacitly or expressly consents to the
movement.4
The competent authority of the
importing country may also allow a
notifier to submit a general notification
for the shipment of amber-list waste
when that type of waste is to be sent
periodically by the same notifier to the
same facility. The notification lasts up
to one year and may be renewed. In
addition, OECD countries may designate
facilities that they have pre-approved
for receipt of amber wastes (see section
HI. C. 1. c.). When the U.S. receives
notice from the OECD that specific
4 If the transit country is not an OECD member
country, EPA's regulations at Part 262, Subpart E
apply. Under those regulations, EPA will provide
notice to such country of the proposed waste
movement, although under Subpart E consent of the
non-OECD transit country is not required. However,
EPA would transmit any response from the transit
country to the exporter.
facilities are pre-approved by the
competent authority of a foreign
government, EPA will undertake to
make that information available to U.S.
notifiers. At the present time, there are
no U.S. facilities pre-approved for
receipt of amber wastes (see section
VHI).
Waste shipments must be
accompanied by a tracking document.
The WMPG developed forms in March
1994 which are recommended to be
used for notification and tracking
purposes.5 These forms may be used by
U.S. notifiers but will not be required
until approved by OMB and codified
into the regulations. For hazardous
wastes exported from or imported to the
United States, a uniform hazardous
waste manifest also must accompany
the waste shipment while it is in the
jurisdiction of the U.S. (see section III
D.).
c. Red-List Wastes. The requirements
for red-list wastes are similar to the
requirements for amber-list wastes with
one very important exception: tacit
consent is not permissible. The red
controls include: a written contract,
chain of contracts, or equivalent
arrangement where the notifier and
recovery facility are part of the same
legal or corporate entity; written
notification to the competent authorities
of the concerned countries;6 prior
consent of the importing and transit
countries; and a tracking document
accompanying the shipment. However,
unlike amber-list wastes, red-list wastes
cannot be shipped unless all necessary
consents are obtained in writing. (See
section IH. C, D, & E for additional
information).
It is important to note that, within the
U.S., in addition to the OECD
requirements, some red-list wastes also
may be subject to requirements under
other legal authorities, such as
regulations promulgated under the
Toxic Substances Control Act (e.g., PCB
regulatory controls promulgated in 40
CFR Part 760; see section IV. B. 7. for
additional information).
d. When Wastes are Not Considered
Hazardous by All Concerned Countries.
There may be cases in which the
concerned countries (i.e., exporting,
importing, and transit) disagree over the
level of control to be assigned to a waste
on the OECD lists.
The Decision provides guidance in
section H(4) for cases where the
A copy of the recommended OECD notification
and tracking forms can be found in the docket for
this rule.
6 Note that instead of the notifier, the competent
authority of the exporting country may, in
accordance with domestic laws, decide to transmit
this notification to importing and transit countries.
-------
16296 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
exporting country, using its national
procedures, does not consider a waste
on the amber or red OECD lists to be
hazardous, while the importing country
does. In such cases, the importing
country shall assume all obligations
assigned to the exporting country in
section's IV or V of the Decision, as
applicable, particularly with regard to
notification requirements. This means
that the competent authority of the
importing country or the importer
would notify the competent authorities
of the exporting country, for information
purposes, and transit countries, for
purposes of obtaining consent, prior to
the proposed import. If the exporting
country does not consider the waste to
be hazardous under its national
procedures, then no obligations under
the Decision rest on the exporter and the
exporting country. For example, if the
U.S. does not consider a waste to be
hazardous, today's rule imposes no
obligations on the U.S. exporter.
However, the U.S. exporter may need to
provide information to the importer
(e.g., consignee, or owner or operator of
the recovery facility) so that the
importer can supply the competent
authorities of the concerned countries
with the necessary notification
information. This information exchange
requirement may be worked out in the
contract, chain of contracts, or
equivalent arrangement for parties of the
same legal or corporate entity, so U.S.
waste handlers should anticipate such
requests from waste trading partners in
other OECD nations. Requests may go as
far as requiring the U.S. exporter to
notify all competent authorities in the
concerned countries for wastes not
considered hazardous in the U.S.
In cases where only the exporting
country considers the amber- or red-list
waste to be hazardous, the country's
competent authority or exporter would
notify and seek consent of the importing
and transit countries prior to shipment
in accordance with the appropriate
amber-list or red-list controls. Although
these countries do not consider the
waste to be hazardous using their
national procedures, the consent of the
importing and transit countries is still
necessary under the laws of the
exporting country. The importer and
exporter would also be required to
comply with any contractual
requirements imposed by the exporting
country.
The Decision also recognizes in
section 11(6) the right of OECD countries
to require amber-list or red-list controls
for wastes identified on the green list, in
accordance with domestic legislation
and international law, for the purpose of
protecting human health and the
environment. OECD countries are
required to inform the Secretariat of
such controls. For example, Austria has
stated that it subjects some green-list
wastes and all amber-list wastes to red-
list controls, while Sweden subjects
some green-list wastes to amber- or red-
list controls. Under today's rule, the
U.S. requires any green-fist wastes that
are hazardous under RCRA and subject
to manifesting requirements to move
under amber controls. In these cases, the
wastes are subject to the country's
controls only while they are in that
country's jurisdiction. Of course, the
exporter or importer may, as a
contractual matter, have to comply with
amber- or red-list control requirements
before the waste enters the jurisdiction
of the country that considers the waste
to be hazardous.
The Decision does not address cases
where the exporting and importing
countries consider a waste to be non-
hazardous under their national
procedures but the transit nation does
consider it hazardous. In such
situations, the Agency views the transit
nation taking on similar responsibilities
as the importing nation in situations
when an importing nation is the only
country to consider a particular waste
hazardous (discussed above). That is,
the transit country shall assume the
obligations of the exporting and
importing countries. In practice, this
may mean that waste handlers in transit
nations may need to request information
from U.S. waste exporters through
contractual arrangements in order to
seek and obtain consent from the
competent authorities of the transit
countries.
e. Availability of Waste Lists. The
current waste lists are available in the
RCRA docket under the number listed
above. The regulated community is
encouraged to periodically check the
docket for the latest lists.
m. Specific OECD Requirements and
Relationship to RCRA
A. Differences Between the OECD
Decision and Today's Rule
Today's regulations implementing the
Decision are applicable only to
hazardous wastes destined for recovery
that (1) are hazardous under RCRA and
subject to manifesting requirements, and
(2) are sent to or received from an OECD
country other than Canada and Mexico.
All exports and imports of hazardous
waste to or from a non-OECD country,
to Canada or Mexico (see § VI), or to
OECD countries that are not Basel
Parties for the purpose of treatment
(other than recovery) or final disposal
must be in compliance with current
regulations discussed immediately
below.
Current RCRA regulations differ from
the terms of the Decision being
implemented today. A summary of
differences between the two are shown
in Table 1 for comparative purposes
only and should not be used as a
substitute for today's regulations.
EPA's current export regulations are
codified in 40 CFR 262, Subpart E. The
requirements include: notification to
EPA at least 60 days prior to export so
that EPA can notify the importing and
transit countries, prior written consent
by the importing country, a copy of the
EPA Acknowledgement of Consent
attached to the manifest accompanying
each shipment, and movement of the
shipment in conformance with the
terms of such consent. The requirements
in Part 262 also include special manifest
provisions, exception reporting, annual
reporting, and recordkeeping. Special
transporter requirements are in 40 CFR
263.
40 CFR part 262, Subpart F, requires
that U.S. hazardous waste importers
comply with the requirements for
generators (40 CFR 262) and specifies
that the importer must indicate the
name and address of the foreign
generator on the manifest. In addition,
40 CFR 264.12 and 265.12 require any
U.S. hazardous waste management
facility subject to Parts 264 or 265 that
arranges for the receipt of hazardous
waste from a foreign source to provide
a one-time notification to EPA at least
4 weeks prior to receiving the waste.
EPA also reminds importers that they
must comply with the land disposal
restrictions once the wastes enter the
United States (see 40 CFR Part 268).
-------
yol.
N, 72 , Friday
§Ptt? n*PP™MPORT R^ULAT,ONS AND REGUUTIONS
Issue
General:
. Applicability
Imports:
Notification
Approval to im-
port.
Tracking
Financial assur-
ance for al-
ternate man-
agement.
Contracts
Current RCRA regulation (40 CFR
262.50-262.60)
""
Governs all imports and exports of
HGRA hazardous waste subject to
Federal manifesting requirements in
40 CFR Part 262 regardless of final
disposition.
One-time advance notice per waste
stream per foreign source required
^n??*™6"1' Borage, or disposal
264/265 re9Ulated UrXfer Part
None required2
A uniform hazardous waste manifest is
LTrelfr°M 2* Mme «» shipment
enters the U.S. until it reaches the
designated facility.
None required
None required
Today's regulations implementing OECD decision (40 CFR 262.80-262.89)
«*»* under U.S.
per the Decision.
"' elempt "*"
rity of his country,
. ws
must
ss
^^^^^~^p^^m Si9ned
Exports:
Notification
Approval of ex-
port by com-
petent au-
thority of im-
porting coun-
try.
Approval of ex-
port by com-
petent au-
thority of
transit coun-
try.
Tracking
Financial assur-
ance for al-
ternate man-
agement.
Recordkeeping
Notification fcr EPA at least 60 davs
pnor to initial shipment is required;
notice then transmitted to importing
and transit countries. Notice may
cover multiple shipments for up to 12
months.
TtlLimportin9 countfy must consent to
meiexport. EPA notifies exporter by
sending Acknowledgement of Con-
sent or objection.
None required. As a practical matter
however, since EPA transmits any re^
sponse received from the transit
country, EPA expects that the ex-
porter would reroute shipment if the
transit country objects.
Uniform hazardous waste manifest
•T acc2mpany t"6 shipment while
in me U.S and a copy must be left
^*. C^toms; EPA Acknowledge-
ment of Consent also must be at-
£ ExP°rter must receive written
confirmation of delivery to foreian
consignee. s
None required
vaient
.Specifyin9 eacn resP°"-
-
reHmP°rtation is
°r '^^ Operation carv
apply to recognized trad-
c --
sible party handling
sible party in ^
necessary because arrangements
not be carried out as forest
ers as defined in §262.81(iT
a denial or requestr
porting country needed i
fr-.«;e date the competent
^ °f M****** ""'ess
is d for *"*'' "1 CO"Sent from im-
although prior notification ,J Triiuired F^r r^f" Ppr°ved recovery fa«'"y.
necessary to export re°.u"-ed. For red-list wastes, written consent is
a denial or
the date the corn-
receiPt °f notification un-
ata, papef suwylng he
by OMB
OECD
l™CWn9
™"» "sea unl,l OEOD (onn
Trackins
-------
16298 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
TABLE 1—SUMMARY OF RELATIONSHIP BETWEEN CURRENT RCRA EXPORT/IMPORT REGULATIONS AND REGULATIONS
IMPLEMENTING THE OECD DECISION—Continued
Issue
Current RCRA regulation (40 CFR
262.50-262.60)
Today's regulations implementing OECD decision (40 CFR 262.80-262.89)
Reporting
Contract
Exporters must prepare and submit an
annual report and exception reports
to EPA.
None required
Same as current requirements.
A legally binding written contract, chain of contracts, or equivalent arrangement
between parties of the same legal or corporate entity specifying the name of
each responsible person handling shipments of amber-list or red-list wastes
and the responsible party in case alternate management, re-exportation or re-
importation is necessary because arrangements for the shipment or recovery
operation cannot be carried out as foreseen. Additional provisions apply to
recognized traders as defined in §262.81 (i).
11mports from and exports to Canada and Mexico are governed under the U.SVCanada bilateral agreement, the U.S-/Mexkx> bilateral aqree-
rnent, and EPA's current regulations. These regulations include 40 CFR 262 Subparts E and F, 40 CFR 264.12(a), and 265.12(a) in lieu of to-
udy s r&Qulcitions.
5 For imports from Canada, the U.SVCanadian bilateral agreement requires notice and allows for tacit consent if no response is lodged 30 days
after the notice is received. For imports from Mexico, the U.S./Mexico bilateral agreement requires notice, but does not allow for tacit consent
B. Definitions
Many of the following definitions in
the Decision are being codified in
today's rule. In some cases, the OECD
definitions are somewhat different than
the current RCRA definitions. Where
they are, the differences are discussed.
The definitions codified at 40 CFR
260.10 (e.g., Transporter, etc.). continue
to apply to all terms not defined in
today's rule.
1. Competent Authorities
Competent Authorities means the
regulatory authorities of concerned
countries having jurisdiction over
transfrontier movements of wastes
destined for recovery operations.
The competent authority will be the
agency or similar entity that has
authority over environmental or
hazardous waste issues in the receiving
country. A list of the contacts for
competent authorities of OECD
countries is provided in the docket for
this rule. The competent authority of the
United States is the U.S. Environmental
Protection Agency. All notices and
required information must be sent to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401 M St., SW,
Washington, DC 20460. The words
"Attention: OECD Export Notification"
should be displayed prominently on the
envelope.
2. Concerned Countries
Concerned Countries means the
exporting and importing OECD
countries and any OECD countries of
transit.
The OECD countries subject to this
Decision are: Australia, Austria,
Belgium, Canada,7 Denmark, Finland,
France, Germany, Greece, Iceland,
Ireland, Italy, Japan, Luxembourg,
Netherlands, New Zealand, Norway,
Portugal, Spain, Sweden, Switzerland,
Turkey, United Kingdom, and the
United States.8
3. Consignee
Consignee 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 importing
country.
Currently there is a definition of
"consignee" at 40 CFR 262.51, which
means the ultimate treatment, storage,
or disposal facility in the receiving
country to which the hazardous waste
will be sent. The OECD's definition,
however, refers to the first person to
take physical or legal custody of the
waste. This is broader than the Agency's
definition in 40 CFR 262.51, but
imposes no new obligations on
importers. A consignee could be a
recognized trader, transporter, storage
facility operator, or recovery facility
operator. The OECD definition for
consignee will be codified today for
exports/imports of hazardous wastes
destined for recovery among OECD
countries to replace the current
definition found at 40 CFR 262.51.
4. Country of Transit
Country of Transit means any OECD
country other than the exporting or
7 Although Canada is subject to the Decision,
movements of waste between the U.S. and Canada
that otherwise would be governed by the Decision
will continue to be controlled by the U.S./Canada
bilateral agreement and EPA's current regulations.
'Mexico joined the OECD in June 1994.
Movements of waste between the U.S. and Mexico
will continue to be controlled by the U.S./Mexico
bilateral agreement and EPA's current regulations,
until such time as the U.S. and Mexico agree to
switch to procedures under the OECD Decision.
importing country across which a
transfrontier movement of wastes is
planned or takes place.
The Agency interprets this definition
to mean the same as transit country,
which is currently codified at 40 CFR
262.51 except that, for purposes of this
Decision, it is limited to OECD countries
as defined at 40 CFR 262.58(a).
It also should be noted that the United
States made a declaration that a state is
a transit state or "country of transit"
within the meaning of the Decision only
if wastes are moved, or are planned to
be moved, through its inland
waterways, inland waters, or land
territory. Thus, in the United States'
view, the movement of waste subject to
Subpart H through an OECD country's
territorial sea but not through its inland
waterways, inland waters, or land
territory would not make that country a
transit country for the purposes of
today's rule.
5. Exporting Country
Exporting Country means any OECD
country from which a transfrontier
movement of wastes is planned or has
commenced.
6. Generator
Generator means a person whose
activities create wastes.
It is the Agency's interpretation that
the current RCRA regulatory definition
of generator found at 40 CFR 260.10 is
consistent with the OECD definition.
The RCRA definition states that a
"generator" means any person, by site,
whose act or process produces
hazardous waste identified or listed in
40 CFR part 261 or whose act first
causes a hazardous waste to become
subject to regulation. This is particularly
relevant with respect to section 11(8) of
the Decision, which provides that a
person who mixes two or more wastes,
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16299
or otherwise changes the physical or
chemical characteristics of the waste,
thereby creating a new hazardous waste
becomes the generator. Such persons
henceforth assume responsibility for
compliance with the generator duties
under RCRA and applicable notifier
provisions in today's rule.
7. Importing Country
Importing Country means any OECD
country to which a transfrontier
movement of wastes is planned or takes
place for the purpose of submitting the
wastes to recovery operations therein.
8. International Waste Identification
Code
International Waste Identification
Code ("IWIC") is the classification
system specified and described in OECD
Council Decision C(88)90(Final) of 27
May 1988.
Determining the International Waste
Identification Code for a particular
waste requires the completion of a
specified formula with information
provided in each of 6 Tables. Use of the
IWIC is not required by the Decision,
and as a practical matter, the IWIC has
not been used by all OECD countries;
therefore, the definition is not being
codified today.
9. Notifier
Notifier is the person under the
jurisdiction of the exporting country
who has, or will have at the time the
planned transfrontier movement
commences, possession or other forms
of legal control of the wastes and who
proposes their transfrontier movement
for the ultimate purpose of submitting
them to recovery operations.
When the U.S. is the exporting
country, notifier means a person
domiciled in the U.S. The Agency
recognizes that in different situations
recovery facilities, consignees,
recognized traders, or generators can act
as notifiers. If a person is a notifier, he
is also a primary exporter under 40 CFR
262.51.
10. OECD Area
OECD Area means all land or marine
areas under the national jurisdiction of
any OECD country. As used in these
regulations, the term OECD countries
means OECD areas.
11. Person
Person means any natural or legal
person whether public or private.
The Agency interprets this definition
to be consistent with the definition of
"person" currently found at 40 CFR
260.10, which states that a Person
means an individual, trust, firm, joint
stock company, Federal Agency,
corporation (including a government
corporation), partnership, association,
State, municipality, commission,
political subdivision of a State, or any
interstate body.
12. Recognized Trader
Recognized Trader means a person
who, with appropriate authorization of
concerned countries, 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 transfrontier
movements of wastes destined for
recovery operations.
Under the Decision and today's rule,
recognized traders who take physical or
other forms of control (e.g., legal) of the
waste may act as notifiers, consignees or
recovery facilities with all associated
responsibilities. As provided in § 262.86
of today's rule, 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,
State, and local license or permit
requirements. There also may be cases
where recognized traders act as brokers
for transfrontier movements of wastes
that are not considered hazardous under
U.S. national procedures, but which are
considered hazardous by another OECD
country. To conduct business in that
OECD country, the broker would need
to comply with the provisions of the
Decision as implemented by the OECD
country. The broker's responsibilities
would most likely be addressed in his
contract with his foreign business
associates. Recognized traders should
anticipate requests regarding contract
information in such cases.
13. Recovery Facility
Recovery Facility means an entity
which, under applicable domestic law,
is operating or is authorized to operate
in the importing country to receive
wastes and to perform recovery
operations on them.
Any facility in the United States that
is legally allowed to operate, to receive
wastes, and to perform recovery
operations and that conforms with any
applicable regulations may meet this
definition. This includes recovery
facilities that are not required to obtain
a RCRA permit. Manifested hazardous
waste shipments must, however, be
shipped to a RCRA designated facility
(authorized under 40 CFR Parts 264,
265, or 266 to accept manifested
hazardous waste). It is important to note
that such facilities are not relieved of
any regulatory requirements associated
with discharges to air and/or water that
may apply under the Clean Air Act or
the Clean Water Act.
14. Recovery Operations
Recovery Operations means activities
leading to resource recovery, recycling,
reclamation, direct re-use or alternative
uses as listed in Table 2B of the Annex
of OECD Council Decision
C(88)90(Final) of 27 May 1988.
The Agency considers "recovery
operations" to be consistent with the 40
CFR 261.1 and 261.2 definitions for
recycling and reclamation. Note,
however, that under 40 CFR 261.2,
certain wastes that are directly re-used
and off-specification products that are
reclaimed are not solid wastes; thus,
they are not subject to either current
RCRA regulations or the OECD
requirements implemented today.
15. Transfrontier Movement
Transfrontier Movement means any
shipment of wastes destined for
recovery operations from an area under
the national jurisdiction of one OECD
country to an area under the national
jurisdiction of another OECD country.
The Agency is interpreting the phrase
"area of national jurisdiction" in the
United States to mean the 50 States, the
District of Columbia, the
Commonwealth of Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern
Mariana Islands.
Note: The United States made a declaration
that under international law, notification or
authorization of coastal states is not required
for passage through territorial seas and
exclusive economic zones (EEZs).
16. Wastes
OECD defines wastes in the OECD
Decision on transfrontier movements of
hazardous waste C(88)90(Final) dated
May 27,1988, as materials other than
radioactive materials intended for
disposal. "Disposal" is defined in Table
2 of the same document to include
typical disposal and recovery
operations. The list of recovery
operations are included in § 262.81(k) of
today's rule. In this rule, EPA interprets
wastes to include materials defined as
solid and hazardous wastes in 40 CFR
261.2 and 261.3 and is therefore not
codifying the OECD waste definition.
Materials outside the scope of EPA's
definition of solid waste are not subject
to today's regulations. (As previously
noted, EPA may, in the future, identify
wastes under other statutes that are
subject to the OECD Decision).
-------
16300 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
C. Notification and Consent for Exports
Notification of potential exports of
hazardous waste destined for recovery
operations is a key component of the
OECD requirements to ensure that
wastes are not moved if there is any
objection from any of the concerned
countries. The notification and consent
requirement allows for the 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 system and of the systems
and qualifications of the particular
facility that is designated to receive the
waste.
As discussed previously in today's
preamble, only those hazardous wastes
subject to the Federal requirements for
manifesting under 40 CFR Part 262 are
subject to the RCRA export/import
requirements set forth in today's rule.
Notifiers subject to these rules must
follow the relevant amber-list or red-list
control procedures, as discussed below
and codified in §§ 262.82 through
262.86 of today's regulations.
1. Provisions Applicable to Amber-List
and Red-List Wastes
Under the amber-list control system,
there are two options for notification
and consent for shipments of amber-list
wastes. The first option requires written
notification with tacit or written
consent. The second option, a facility
pre-approval system, requires written
notification and is discussed in § III. C.
1. c. of today's preamble. Certain
contractual obligations also apply to
notifiers, recovery facilities and all other
parties to the waste movement. In
addition, under the red-list control
system, facility pre-approval is not
allowed for shipments of any red-list
wastes. Finally, although the
notification requirements for red-list
wastes are the same as those applicable
to amber-list wastes, tacit consent is not
permissible for red-list wastes.
a. Notice and Consent for Specific
Shipments. According to the Decision,
the notifier must provide written
notification of intent to export to the
competent authorities of the concerned
countries (i.e., exporting, importing and
transit) prior to shipment.9 The Agency
today is requiring such notices to be
submitted to EPA 45 days prior to the
commencement date of the proposed
shipment of waste for recovery within
'Note that the competent authority of the
exporting country may, in accordance with
domestic laws, decide to transmit this notification
to importing and transit countries.
the OECD.10 EPA considers this period
of 45 days as appropriate in order to
allow time for EPA to review and
process the notification documents, the
Acknowledgement of Receipt to be sent
by the importing country (as required by
the Decision), and the 30-day tacit or
written consent period (required by the
Decision). In addition, EPA considers
this period of 45 days rather than 60
days prior notice set forth in current
U.S. regulations, as appropriate for
today's rule, because within the OECD
context notifications and consents are
often faxed and disseminated in a much
more expedient manner than in other
contexts. EPA, in lieu of the U.S.
notifier, will forward the export notices
to the importing and transit countries.
The export notification must contain
the information specified in Appendix 2
of the Decision. Much of this
information is already required for U.S.
exports.
The OECD notification information
includes:
(1) Serial number or other accepted
identifier on the notification form;
(2) Notifier name, address, and
telephone and telefax numbers;
(3) Importing recovery facility name,
address, telephone and telefax numbers,
and technologies employed;
(4) Consignee name, address, and
telephone and telefax numbers if the
person is different than the owner or
operator of the recovery facility;
(5) Intended transporters and/or their
agents;
(6) Country of export and relevant
competent authority (the U.S.
Environmental Protection Agency);
(7) Countries of transit and relevant
competent authorities;
(8) Country of import and relevant
competent authority;
(9) Statement of whether the shipment
is a single-shipment notification or a
general notification. If general, period of
validity requested;
(10) Date foreseen for commencement
of transfrontier movement;
(11) If required by any concerned
country, certification that any
applicable insurance or other financial
guarantee is or shall be in force covering
the transfrontier movement
(Note: The U.S. does not currently require
such financial assurance);
(12) Designation of waste type(s) from
the appropriate list (amber or red), and
the wastes' description(s), probable total
quantity of each, and an accepted
uniform classification code (such as
RCRA waste codes and UN numbers and
OECD waste list codes) " for each;
(13) Certification that a written
contract or chain of contracts or
equivalent arrangement between or
among all parties to the transfrontier
movement, as required by § 262.85, are
in place and are legally enforceable in
all concerned countries; and
(14) Certification that the information
is complete and correct to the best of
his/her knowledge.
hi accordance with the existing Part
262 export regulations, EPA will
continue to require the notifier to
identify facility EPA ID numbers, if
applicable, and information on the
points of entry to and departure from all
foreign countries.
In July 1994, the OECD/WMPG
finalized two forms: one to be used for
export notification and the other to
accompany the shipment for tracking
purposes. The OECD/WMPG
recommends, but does not require,
using the forms. EPA also recommends
using the forms, but cannot require their
use until they are approved by OMB,
and until EPA promulgates such
requirement. Before these events occur,
EPA believes that OECD countries,
exporters and importers need to gain
experience with using the forms to
determine if any modifications are
needed; thus, EPA recommends the
forms be used immediately. Notification
forms are to be submitted to the Office
of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401 M St., S.W.,
Washington, DC 20460, with "Attention:
OECD Export Notification" prominently
displayed on the envelope. If the
notification is complete, EPA will
forward a copy to the competent
authorities of the importing country and
any transit country. The importing
country must acknowledge receipt of
the notification within three working
days. The Acknowledgement of Receipt
will be sent by the competent authority
of the importing country simultaneously
to EPA, to the notifier, and to the
competent authority of any transit
country. EPA will accept a telephone
facsimile of such acknowledgements.
During the 30-day period after the
Acknowledgement of Receipt is sent to
EPA and the notifier, the competent
authority of the importing country as
well as any transit country may object
to the proposed movement of wastes.
Objections by any of the concerned
10 Note that current U.S. regulations require 60
days prior notice. See 40 CFR 262.50-262.60.
11 EPA requires UN numbers and RCRA waste
codes in addition to the OECD waste list codes to
be included per §262.83(e)(ll) of today's rule.
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
16301
countries must be provided in writing to
EPA, to the notifier, and to the
competent authorities of other
concerned countries within the 30-day
period. The OECD-recommended
notification form was designed to be
used for Acknowledgement of Receipt,
consent, and objection purposes.
In the case of amber-list wastes, if no
objections to the waste movement are
submitted within the 30-day period,
tacit (or implied) consent is granted and
the movement of wastes may begin.
Tacit consent expires one calendar year
after the close of the 30-day period. If a
shipment for which tacit consent has
been given does not take place within
that time, a new notification must be
submitted and a new consent obtained.
Competent authorities of concerned
countries may also choose to provide
written consent to the notifier and
concerned countries in less than 30
days. In this event, the waste shipment
may begin immediately after the last
consent is received from all of the
competent authorities, hi the case of
red-list wastes, the export of such waste
may not occur until the importing and
all transit countries provide written
consent. Written consent expires within
one calendar year, unless otherwise
specified.
b. General Notification. In cases
where similar wastes (e.g., those having
similar physical and chemical
characteristics, the same UN
classification, and same RCRA waste
codes) are to be sent periodically to the
same recovery facility by the same
notifier, the competent authorities of
concerned countries may elect to accept
one notification for these wastes for a
period of up to one year. The notifier
must indicate on the form that the
notification is general. Such acceptance
may be renewed for additional periods
of up to one year each. A concerned
country may revoke its acceptance at
any time by official notice to the notifier
and to the competent authorities of all
other concerned countries.
c. Pre-approval for Recovery Facilities
Managing Amber-List Wastes. The
competent authority of an importing
country with jurisdiction over specific
recovery facilities may decide that it
will routinely consent to the shipments
of certain amber-list waste types to
specific recovery facilities. An
importing country wishing to employ
this process must inform the OECD
Secretariat of the recovery facility name
and address, technologies employed,
waste types to which the pre-approval
applies, the time period covered, and
any subsequent revocations.
No specific consent is required from
the importing country when waste is to
be sent to a facility pre-approved to
accept that waste. However, the notifier
planning to ship waste to a pre-
approved recovery facility must notify
the Agency pursuant to § 262.83(e) prior
to shipment. Therefore, the notifier
must submit a notification to the
Agency at least 10 days in advance of
the shipment to allow time for EPA to
verify that the proposed recovery
facility has received pre-approval, that
the pre-approval is still valid, and that
the export notice meets any conditions
set by the importing country. For
example, the importing country may
need to stop the shipment in the event
that the pre-approved facility needs to
shut down operations temporarily for
maintenance or repair. Moreover, the
competent authorities of all concerned
countries may restrict or prohibit such
waste shipments in accordance with
applicable domestic laws. In addition,
pre-approval designations may be
limited to a specific time period and
may be revoked at any time. Shipments
may commence after the notification has
been received by competent authorities
of all concerned countries, unless the
notifier has received information
indicating that the competent authority
of one or more concerned countries
objects to the shipment. The general
notification procedures discussed above
may be used for multiple shipments of
the same waste type to pre-approved
facilities, hi addition, the regulations
pertaining to tracking documents and
contracts apply. As discussed in § HI. F.
3. of today's preamble, EPA has not yet
decided whether or how to pre-approve
U.S. recovery facilities for the purpose
of granting prior consent. The issue will
be addressed in a future rulemaking.
Facilities that intend to receive
shipments of red-list wastes are not
eligible for pre-approval. Rather, each
shipment of red-list waste must proceed
pursuant to a specific or general
notification for which written consent
was received.
d. Return or Re-Export of Shipments.
If the shipment of amber-list or red-list
waste cannot be managed in the
importing country as planned and if
alternate management is unavailable or
unacceptable in the importing country,
the party designated in the contract as
management of the waste in such cases
may decide to return the waste to the
notifier or to export the waste to a third
OECD country where a suitable facility
can manage it. Any such re-export must
comply with the requirements of
§262.82(c) of today's regulations.
Competent authorities of all concerned
countries (importing, transit, exporting),
in addition to the competent authority
of the initial exporting country, must be
notified. Each competent authority has
up to 30 days to object to the re-export.
The 30-day period begins when the
competent authority of both the initial
exporting country and the new
importing country issue
Acknowledgements of Receipt of the
notification. The re-export may
commence once the competent
authorities of all concerned countries
have consented (i.e., tacit or written for
amber-list wastes, written for red-list
wastes). Re-export to a third country
outside the OECD is fully subject to the
notification and consent requirements
outlined above with respect to the
initial exporting country and any OECD
transit country, as well as to the
domestic laws of the original importing
country and to any applicable
international agreements or
arrangements to which the (original)
importing OECD country is a Party,
including (if appropriate) EPA's current
regulations.
The provisions for return or re-export
of red-list wastes are the same as for
amber-list wastes except that written
consent must be obtained from all
concerned countries (i.e. tacit consent is
not permissible for red-list wastes).
U.S. persons are not required to
comply with the re-export provisions of
today's regulations with respect to
amber- or red-list wastes that are not
considered hazardous under U.S. law. If
the waste is considered hazardous in the
other concerned OECD countries,
however, U.S. exporters of such wastes
may find it expedient (or necessary) to
comply with return or re-export
requirements of those countries in order
to continue trade with them. These
requirements may be addressed under
the terms of their contracts with their
trading partners.
2. Unlisted Wastes
If waste not appearing on the green,
amber, or red lists is a RCRA hazardous
waste as defined in 40 CFR 261.3 and
is subject to the Federal manifesting
requirements under Part 262, the waste
is subject to the notification and consent
requirements established for red-list
wastes (i.e., prior written consent is
required). However, if a waste does not
appear on any of the OECD lists and is
not a RCRA hazardous waste subject to
manifesting requirements, the waste
may be handled as a green waste; thus
no prior notification to EPA is required.
Notifiers should note, however, that the
importing and transit countries may
require notification and consent
controls for such wastes if they are
considered hazardous in their respective
countries and if such controls are
-------
16302 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
required by the domestic law of those
countries, hi such cases, the foreign
importer may ask U.S. notifiers to
assume contractual obligations requiring
compliance with such provisions.
D. Tracking Documents
The Decision requires that a tracking
document must accompany each
transfrontier shipment of amber-list or
red-list waste until it reaches its final
destination (the designated recovery
facility). The purpose of the tracking
document is to provide pertinent
information concerning the shipment to
any interested entity while the waste is
en route.
All hazardous wastes subject to
today's rule (whether amber, red, or
unlisted, and whether constituting a
U.S. import or export) must be
accompanied by a tracking document
that contains all the information in
§ 262.84 of today's regulations. This
includes all the information required
under § 262.83(e), plus the following
information:
(a) Date shipment commenced;
(b) If not same as the notifier, name,
address, and telephone and telefax
numbers of primary exporter (i.e.,
shipper);
(c) Company name and EPA ID
number of all transporters;
(d) Means and mode of transport,
including types of packaging;
(e) Any special precautions to be
taken by transporters;
(f) Certification by notifier that no
objection has been lodged by the
competent authorities of all concerned
countries. The notifier must sign the
certification; and
(g) Appropriate signatures for each
custody transfer (transporter, consignee,
and owner or operator of the recovery
facility).
As discussed earlier, the OECD has
developed a form for tracking purposes,
in conjunction with the OECD
notification form, which is
recommended for use by the OECD. The
OECD developed the notification and
tracking forms for use by OECD
countries implementing the Decision,
the European Union to implement its
waste regulations, and non-OECD
countries for implementing the Basel
Convention. After gaining experience in
using the notification and tracking
forms, the OECD may need to modify
them. The Agency anticipates requiring
their use in a future rulemaking.
Until the OECD tracking form is
codified into the RCRA regulations,
exporters and importers may either use
the OECD tracking form itself, or may
supply all the information required in
§ 262.84 on a separate sheet of paper. In
the latter case, all information should be
typed or printed and should be
numbered to correspond to § 262.84
requirements. As a practical matter,
most U.S. exporters and importers will
be using the OECD-recommended forms
if the OECD countries with which they
are trading require their use.
1. Routing of Tracking Document
As with the Uniform Hazardous
Waste Manifest, EPA will not require
the tracking document (or information
on separate paper) to accompany the
waste when moving by rail or bulk
shipment by water. The regulated
community should continue to follow
the manifest procedures for routing the
forms in 40 CFR 262.11 Subpart B.
Within 3 working days of its receipt
of the hazardous wastes subject to
amber-list or red-list controls, the owner
or operator of the recovery facility must
send signed copies of the tracking
document to the export notifier, to
EPA's Office of Enforcement and
Compliance Assurance, and to the
competent authorities of the importing
and transit countries. The original
tracking document must be retained by
the recovery facility for at least 3 years.
These requirements are codified in
§§264.12, 265.12, 264.71 and 265.71 of
today's rule.
Where U.S. recovery facilities are
receiving wastes from other OECD
countries that are considered hazardous
in that country but not in the U.S.,
today's regulations do not apply for the
U.S. recovery facility. However,
contractual provisions imposed on the
foreign exporter for the shipment to the
U.S. recovery facility may result in
certain obligations for the facility, such
as returning a signed tracking document
to the notifier and to competent
authorities of concerned countries.
While the U.S. government does not
have the authority to enforce the
requirements of other countries for
wastes that are not hazardous in the
U.S., the U.S. may provide cooperative
assistance to other OECD countries hi
their efforts to enforce their own laws,
including sharing information and
investigative support, pursuant to
domestic and international law.12 The
owner or operator of the U.S. recovery
facility should be aware that the
exporting country is unlikely to consent
to the shipment (or future similar
shipments) absent performance of these
duties.
12 For example, the Hague Evidence Convention,
to which the U.S. and several OECD countries
belong, establishes procedures for assistance in
evidence-gathering which may be used to support
cooperation in civil enforcement.
E. Contracts
Under today's rule, transfrontier
movement of hazardous wastes subject
to amber-list or red-list controls may
occur only under the terms of a valid
written contract, chain of contracts, or
under equivalent arrangements between
facilities controlled by the same legal
entity. Therefore, the export notifier and
the owner or operator of the authorized
recovery facility must enter into such
contracts or arrangements, hi addition,
all persons involved in such contracts or
arrangements must have appropriate
legal status to assume the required
contractual obligations.
For the purposes of this rule, a valid
contract is one that complies with the
requirements of § 262.85 of today's rule.
Among other things, the contracts or
equivalent arrangements must identify
the generator of each type of waste being
shipped, all persons who will have
physical custody or legal control of the
waste, and the designated recovery
facility, hi addition, the contracts or
equivalent arrangements must identify
the party who will assume
responsibility for the waste if alternate
management of the waste is necessary.
In addition, such contracts or
arrangements must identify the person
responsible for obtaining consent for
export of the waste to a third country,
if the need should arise. Contracts or
equivalent arrangements must also
contain provisions requiring each
contracting party to comply with all
applicable requirements of today's
regulation. Thus, contracts provide a
mechanism to ensure that all parties
involved in the transfrontier movement
of waste destined for recovery
operations are cognizant of and assume
appropriate responsibilities for the
controls placed on the waste shipment.
If required by the concerned
countries, the contract, chain of
contracts, or equivalent arrangement
must also include provisions for
financial guarantees to provide for
alternate recycling, disposal, or other
means of sound management should the
need arise. Currently, the U.S. does not
impose such a financial requirement.
Competent authorities of exporting and
importing countries may, under
domestic law, also require the notifier to
provide copies of contracts or portions
thereof. Under today's rulemaking, EPA
is not requiring routine submission of
contracts to EPA. The Agency could,
however, request such information on a
case-by-case basis, if necessary to
process export/import notices or for
enforcement purposes. Upon request,
such information shall be held as
confidential to the extent allowed under
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16303
domestic law. Information for which a
claim of confidentiality has been
asserted will be managed in accordance
with the provisions in 40 CFR Part 2
and 40 CFR 260.2 (as amended today),
which allows information submitted by
export notifiers in their notification of
intent to export to be released to the
U.S. Department of State and
appropriate authorities of receiving
countries regardless of claims of
confidentiality.
As discussed earlier, there may be
cases where U.S. parties are engaged in
transfrontier movements of waste that
are not considered hazardous under
U.S. national procedures but that are
considered hazardous by another OECD
country. In order for such waste
movements to proceed, U.S. parties
would need to comply with the
provisions of the Decision as
implemented by the other OECD
country. It is likely that the OECD
country will rely on the contract in
these situations to define the
responsibilities of all parties engaged in
the transfrontier movement. Thus, U.S.
waste exporters, importers, and
recognized traders should anticipate
requests from their foreign counterparts
to address these responsibilities in a
contract. OECD countries are also free
under the Decision to require contract
elements beyond those specified in the
Decision and today's rule. Such
elements may include:13
—Delineation of when and where
responsibilities shift for alternative waste
management if disposition cannot be
carried out as described in the Notification
of Intent to Export;
—Certification of compliance with tracking
document requirements, particularly the
obligation of the U.S. receiving facility
under § 262.84(e) to return signed tracking
documents to the foreign notifier and
competent authorities of the concerned
countries;
—Description of the specific financial
guarantee mechanism if one is required by
any concerned country;
—Certification that all U.S. waste handlers in
the contract are authorized under U.S. law
to carry out their transporter or waste
recovery functions;
—Provision requiring each contracting party
to comply with all applicable laws of the
concerned countries;
—Identification of parties responsible for
language translations of export
notifications or tracking document; and
—Procedures for modifying the contract,
particularly to reflect future modifications
to the Decision.
"This list is intended to be illustrative only; U.S.
parties may find foreign business associates
requesting additional elements in their contracts in
accordance with the domestic laws and regulations
of other OECD countries.
F. Importers
1. Definition
There is no definition of "importer"
in the Decision, the RCRA regulations,
or the RCRA statute. However, persons
importing hazardous waste have various
responsibilities and duties under EPA's
current regulations and today's rule,
including the contract provisions of
§ 262.85. Transfrontier movements of
amber-list or red-list wastes must occur
under the terms of a valid written
contract, or chain of contracts, or
equivalent arrangements (when the
movement occurs between parties
controlled by the same corporate or
legal entity). That contract or equivalent
arrangement must specify
responsibilities of each entity handling
the waste starting with the notifier and
ending with the owner or operator of the
recovery facility. In addition, hazardous
waste importers must comply with all
applicable requirements for generators
and transporters pertaining to
manifesting in 40 CFR Parts 262 and 263
as well as die facility import notification
requirements in 40 CFR 264.12 and
265.12 if the facility is subject to Parts
264 or 265. Also, hazardous waste
importers in the U.S. must comply with
U.S. Customs' rules, provisions under
the Toxic Substances Control Act
concerning the import of chemical
substances (see § IV. B. 6. and VII of
today's preamble), and any other
applicable legal requirements.
Any U.S. entity that meets the
definition of "consignee" in today's rule
(i.e., the first person to whom
possession or other form of legal control
of the waste is assigned once received
in the importing country), such as
transporters, recognized traders, storage
facility operators, or recovery facility
operators, may be acting as an importer
of hazardous wastes and therefore may
be subject not only to the requirements
of Subpart H but also to current
regulations applicable to importers, in
40 CFR Part 262, subpart F.
2. Requirements
a. Notification of Receipt. In order to
implement the Decision, today's
regulations at § 262.84(d) require that
the owner or operator of the U.S.
recovery facility send a signed copy of
the tracking document to the notifier
and to the competent authorities of the
concerned countries, including EPA,
within three working days of receipt of
a waste subject to amber-list or red-list
controls. The tracking document must
contain the signatures of all parties that
had custody of the waste (see § HI. D.
discussion on tracking documents).
It is important to note that once a
hazardous waste enters the U.S., that ,
waste and its management are subject
not only to the OECD procedures for
transfrontier movements implemented
in today's final rule, but also to all other
applicable U.S. regulations. Hence,
RCRA hazardous wastes subject to
today's rules must be managed in
accordance with any applicable
generator, transporter, and facility
requirements (e.g., packaging and
labelling, return of manifest to the
generator, manifest discrepancy, and
storage facility requirements) for
hazardous waste recyclables specified in
40 CFR 261.6 and part 266, in addition
to the Part 268 standards and
requirements under other statutes (e.g.,
TSCA). When EPA (as the competent
authority) receives a notification of
potential export from a foreign exporter,
the Agency will review the proposed
import notice to determine if the waste
is destined for a recovery facility that is:
(1) authorized to manage the specified
waste in accordance with the facility's
RCRA permit or interim status
requirements; or (2) allowed to receive
the waste under U.S. laws and
regulations but is not required to have
a RCRA permit.
b. Pre-Approval of U.S. Recovery
Facilities. The Decision allows
importing countries to pre-approve
specific recovery facilities for receiving
shipments of certain amber-list wastes
(see § ffl. C. 1. c. of today's preamble).
EPA has not yet determined whether or
how it will pre-approve U.S. recovery
facilities but has reserved § 262.88 of
today's regulations for this purpose.
EPA currently exempts many waste
recycling (e.g., reclamation, recovery,
regeneration) units from RCRA
permitting standards for the actual
recycling of the materials. However,
storage of hazardous wastes prior to
recycling does trigger RCRA
requirements, which may include a
permit requirement. There are also
special circumstances where EPA either
totally or partially exempts certain
recycling facilities from RCRA
regulation (see § IV of today's preamble).
In such cases, EPA waste management
officials may lack sufficient information
regarding a recycling facility's design
and operation, and thus may be unable
to adequately assess the suitability of a
particular recovery operation to be pre-
approved to receive certain amber-listed
wastes. The Agency, therefore, will
defer consideration of the issue of pre-
approval for U.S. recovery facilities
until a later date (see § VIE of today's
preamble).
-------
16304
Federal Register / Vol. 61. No. 72 / Friday. April 12. 1996 / Rules and Regulations
G. Reporting and Recordkeeping
The only new recordkeeping
requirements imposed in today's rule
pertain to recovery facilities, which are
now required to send signed copies of
the tracking document to the competent
authorities of the concerned countries
and to retain copies for three years. In
addition to these new requirements,
EPA recodifies in Subpart H for OECD
purposes the current recordkeeping and
reporting requirements at 40 CFR 262.51
that are applicable to primary exporters.
Recordkeeping and reporting
requirements for shipments of
recyclable wastes to and from OECD
countries are in § 262.87 and apply to
individuals, including notifiers and
recognized traders, that meet the
definition of primary exporter at 40 CFR
262.51.
Annual reports on exports of
hazardous waste to OECD countries for
recovery must continue to be filed with
the Administrator no later than March 1
of each year. As discussed in the August
8,1986 Final Rule on exports (51 FR
28664), there may be more than one
party acting as primary exporter (i.e.,
persons that are required to originate
manifests under Part 262 and any
intermediaries arranging for the export).
For the purpose of today's rule, EPA
expects one party (e.g., notifier or
recognized trader acting as notifier) to
submit the notification, keep the
required records, and submit the
required annual report, etc. Parties to
transfrontier shipments should decide
among themselves which U.S. party
should fulfill these duties. Enforcement
actions can, however, be taken against
all waste handlers (e.g., notifiers,
recognized traders, consignees, recovery
facilities) associated with the
transfrontier movement of wastes for
recovery within the OECD.
If an individual is already required
under 40 CFR 262.56 to file an annual
report for other hazardous waste
exports, he need only file one annual
report. EPA is requiring, however, that
information on OECD exports covered
under this Subpart be contained in a
separate section of the annual report
since the U.S. must provide this
information annually to the OECD.
Under § 262.87, annual reports must
accurately summarize the types,
quantities, frequency, and ultimate
destination of all hazardous waste
exported during the previous calendar
year. In addition, the report must
include the facility's EPA identification
number, and name and address of the
filer; the calendar year covered; the
name and address of each final recovery
facility; by each final recovery facility,
a description of the waste exported,
name and address of each transporter
used, the total amount of hazardous
waste shipped during the year, and the
number of shipments during the year; a
description of the waste minimization
efforts and results during the year;14 and
a certification statement attesting to the
accuracy of the information in the report
and an acknowledgement of the
potential penalties for filing false
information. The annual report must
also contain the designations of the
waste type(s) from the OECD waste lists,
the applicable waste code from the
OECD lists incorporated by reference in
§ 262.89 of today's rule, and the U.S.
Department of Transportation hazard
class. Annual reports must be sent to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401 M St., SW.,
Washington, DC 20460.
EPA also is recodifying in § 262.87 the
requirement in § 262.55 that persons
who meet the definition of primary
exporters (e.g., notifiers or recognized
traders acting as notifiers) must file
exception reports, under certain
circumstances. For the purpose of OECD
exports, the written confirmation of
delivery consists of the signed copy of
the tracking form sent by the owner or
operator of the recovery facility to the
notifier as required in the parties'
contract pursuant to § 262.85(f).
The Agency is requiring individuals
who meet the definition of primary
exporters at 40 CFR 262.51 to continue
to maintain specified records for at least
three years, consistent with current
practice and RCRA export
recordkeeping requirements. These
records include, where applicable, a
copy of each annual report from the
three previous years, a copy of each
written consent obtained from
competent authorities of concerned
countries (in lieu of EPA
Acknowledgement of Consent), and a
copy of each confirmation of delivery by
the recovery facility (i.e., tracking
document). If there is an unresolved
enforcement action pending or if
requested by the Administrator, the
record retention period may be
extended.
14 Waste minimization information is required in
even numbered years only. No waste minimization
information is required under this section if (1) less
than 1,000 kg of waste was exported in each month
of the calendar year pursuant to this subpart; or (2)
the information was already submitted as part of a
biennial report under 40 CFR 262.41.
IV. OECD Waste Lists and Relationship
to RCRA
A. Relationship of OECD Wastes and
RCRA Hazardous Wastes
The full text of the Decision
containing the waste lists is included in
the official record for today's rule, and
the green, amber, and red waste lists are
incorporated by reference in § 262.89 of
today's regulations. EPA has developed
a table that provides a general guideline
of possible RCRA wastes and waste
codes that may correspond to the amber
and red listings, which is available in
the docket for today's rule. Because the
OECD waste category descriptions for
the amber and red lists are broad and
may include both RCRA hazardous
waste and waste that is not hazardous
under RCRA, EPA is unable to
predetermine applicable RCRA waste
codes in the absence of information on
the physical and chemical
characteristics of the particular wastes
involved.
B. Status of Specific RCRA Hazardous
Wastes
1. Definitions of Wastes Subject to
National Procedures
The Decision establishes varying
controls depending on whether a waste
is considered hazardous by the country
of export or import, based on the
country's "national procedures." For
purposes of today's rule, EPA considers
that a waste is hazardous under U.S.
national procedures if the waste meets
the following RCRA requirements: (1)
Meets the Federal definition of
hazardous waste in 40 CFR 261.3; and
(2) is subject to either the Federal
manifest procedures of 40 CFR part 262,
or to the universal waste management
standards of 40 CFR part 273, or to State
requirements analogous to Part 273. (As
previously noted, EPA may, in the
future, identify wastes under other
statutes that are subject to the OECD
Decision). Under the RCRA regulations,
however, certain wastes do not meet the
Federal hazardous waste definition
when they are recycled, or are not
subject to the Federal manifesting
requirements, or are not subject to
Federal or State universal waste
management standards. Such wastes are
exempt from today's rules. [Please see
discussion on universal wastes in
section IV. B. 6. below.]
Such exempt wastes would, however,
remain subject to the controls normally
applied to international commercial
transactions, just as green-list wastes are
subject to these controls (e.g., bill of
lading, international insurance, etc.).
However, the exporter of U.S. exempt
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16305
defined as hazardous waste in
accordance with Subtitle C of RCRA.
Additionally, some of the wastes are
specifically excluded from the
definition of hazardous waste [see 40
CFR 261.4(1))], and therefore, are not
subject to the requirements of Subtitle
C. Because these wastes are not defined
as hazardous and are not subject to the
Federal manifesting procedures, among
other procedures, they are not covered
under the RCRA export/import
requirements set forth today. These
exempt wastes may, however, be subject
to controls imposed by other OECD
countries. EPA expects to bring
additional solid wastes that are
currently excluded from the definition
of hazardous waste under export and
import controls in the future.
Below are examples of wastes that are
currently identified at 40 CFR 261.4(a)
as excluded from the definition of solid
waste. Persons interested in determining
whether a particular waste is excluded
from the definition of solid waste will
need to consult 40 CFR 261.4(a)
directly.
—Domestic sewage and any mixture of
domestic sewage and other waste that
passes through a sewer system to a
publicly owned treatment works for
treatment;
—Industrial point source wastewater
discharges subject to § 402 of the
Clean Water Act;
—Irrigation return flows; and
—Source, special nuclear, or byproduct
material as defined by the Atomic
Energy Act of 1954, as amended.
—Materials subjected to in-situ mining
techniques that are not removed from
the ground as part of the extraction
process;
—Pulping liquors reclaimed in a
pulping liquor recovery furnace and
then reused in the pulping process,
unless they are accumulated
speculatively;
—Spent sulfuric acid used to produce
virgin sulfuric acid, unless it is
accumulated speculatively;
—Secondary materials that are
reclaimed and returned for reuse to
the original production process where
they were generated provided, inter
alia, that the process is a closed-loop
system, only tank storage is involved,
and there is no combustion used;
—Spent wood preserving solutions that
have been reclaimed and are reused
for their original intended purpose;
and
—Coke and coal tar from the iron and
steel industry that contain or are
produced from decanter tank tar
sludge (K087) when coke and coal tar
are used as a fuel.
wastes may still be required by her/his
contract with the foreign consignee to
comply with notification, consent, and
contractual requirements imposed by
other concerned countries as a
condition of exporting the waste if one
or more of those concerned countries
considers the waste hazardous. OECD
countries are acting within the terms of
the Decision if they impose such
obligations for wastes they consider
hazardous, and will likely reject any
shipment which does not comply with
these requirements. Thus, if a person is
considering exporting recyclable waste
to an OECD country, that person should
determine the status of the waste in
question (under the national procedures
of the importing and transit countries)
well in advance of the proposed
shipment date so that no unnecessary
delays are encountered.
2. Exemptions From the Definition of
Solid Waste
Current RCRA regulations subject
recyclable materials to controls under
Subtitle C of RCRA if they meet the
definition of solid waste1S and are
identified or listed as hazardous. The
determination of whether a recyclable
material is a soh'd waste, and potentially
a hazardous waste, depends on the
secondary material and the recycling
activity [see 50 FR 614 (Jan. 4,1985) and
40 CFR 261.2 for further discussion and
requirements).
There is a relatively narrow set of
(large volume) hazardous secondary
materials that, when recycled, are not
defined as solid wastes (e.g., off-
specification commercial chemicals that
are reclaimed). Therefore, these
materials are also not hazardous wastes
when recycled, and are therefore not
subject to RCRA export/import
requirements. Potential notifiers of
transfrontier movements of such
materials should keep in mind they bear
the burden of demonstrating that such
materials are exempt from the definition
of solid waste under 40 CFR 261.2 [see
40 CFR 261.2(f)]. Notifiers must
therefore maintain documentation that
can substantiate their claims, consistent
with the regulations at 40 CFR 261.2(f).
15 Under Subtitle C of RCRA, EPA authority is
limited to the regulation of "hazardous waste."
However, to be regulated as a hazardous waste, a
material must first be a "solid waste." Section
1004(27) of RCRA defines solid waste to include
any garbage, refuse, sludge and other discarded
material [see RCRA § 1004(8)]. A central element of
this definition is that wastes are "discarded." EPA
retains considerable discretion to define whether
materials being recycled can be considered to be
"discarded" [see American Mining Congress v. EPA,
907 F.2d 1179,1185-87 (D.C. Cir. 1990); and
American Petroleum Institute v. EPA, 906 F.2d 729
at 740-42 (D.C. Cir. 1990)].
3. Applicability to Hazardous Waste
Subject to Special Recycling Standards
EPA's regulatory definition of
"hazardous waste" includes solid
wastes that are listed as hazardous
waste or that exhibit a characteristic of
ignitability, corrosivity, reactivity, or
toxicity. However, there is a very small
number of "hazardous wastes" that
EPA, for various reasons, has
conditionally exempted in part from
domestic regulation. Because certain of
these wastes are also not subject to
Federal hazardous waste manifest
controls, including but not limited to
Federal manifest controls, EPA does not
consider these wastes to be hazardous
under U.S. national procedures;
therefore, these wastes are not subject to
the requirements set forth today. Such
recyclable wastes are discussed briefly
below, hi order to determine whether a
particular waste in fact qualifies for
special recycling consideration,
interested persons will need to consult
the appropriate RCRA regulations.
a. Scrap Metal. EPA has determined
that scrap metal is exempt from
regulation as a hazardous waste under
Subtitle C when recycled [see 40 CFR
261.6(a)(3)(iii); 50 FR 624 Jan. 4,1985].
Because scrap metal is also exempt from
Federal manifest requirements, it is not
considered hazardous under U.S.
national procedures. Additionally, scrap
metal is on the OECD green list as a
non-hazardous waste.
b. Lead-Acid Batteries. Persons who
generate, transport, or collect whole
spent lead-acid batteries for reclamation
are not subject to the Federal manifest
requirements. Since spent lead-acid
batteries being reclaimed are exempt
from Federal manifest requirements,
they are not considered hazardous
under U.S. national procedures [see 40
CFR 266.80, 261.6(a)(2)(iv)]. Thus,
persons exporting whole spent lead-acid
batteries for reclamation are not subject
to today's export/import requirements.
However, they may be required to notify
the importing country of their intention
to export lead-acid batteries, pursuant to
contracts they execute with foreign
consignees, because lead-acid batteries
are found on the amber list and are
considered to be hazardous under the
national procedures of many OECD
countries. Additional requirements may
also apply per contracts with foreign
consignees.
4. Wastes Excluded Under 40 CFR 261.4
Many wastes listed in 40 CFR 261.4
are excluded from some or all hazardous
waste controls. Because some of these
wastes are not defined as solid waste
[see 40 CFR 261.4(a)], they cannot be
-------
The solid wastes that are excluded
under 40 CFR 261.4(b) from the
definition of hazardous waste include
the following wastes listed below.
Persons interested in determining
whether a particular waste is excluded
from the definition of hazardous waste
will need to consult 40 CFR 261.4(b)
directly.
—Household waste;I6
—Agricultural crop wastes and manures
returned to soil as fertilizer;
—Mining overburden returned to the
mine site;
—Fly ash waste, bottom ash waste, and
flue gas emission control waste,
generated primarily from the
combustion of coal or other fossil
fuels except as provided in 40 CFR
266.12;
—Drilling fluids, produced waters, and
other wastes associated with the
exploration, development, or
production of crude oil, natural gas,
or geothermal energy;
—Certain waste streams that exhibit the
characteristic of hazardous waste only
for chromium and that were generated
by a process using nearly exclusively
trivalent chromium in a non-oxidizing
process such as certain leather
tanning wastes, and wastewater
treatment sludges from the production
of TiO2 pigment using chromium-
bearing ores by the chloride process;
—Certain solid wastes from the
extraction, beneficiation, and
processing of ores and minerals
except as provided in 40 CFR 266.12;
—Cement kiln dust except as provided
in 40 CFR 266.12;
—Under certain circumstances, solid
waste that consists of discarded wood
products that fail the toxicity
characteristic test solely for arsenic
and are not hazardous for any other
reason;
—Petroleum-contaminated media
resulting from an underground storage
tank undergoing corrective action;
—Used chlorofluorocarbon refrigerants
from totally enclosed heat transfer
equipment destined for reclamation;
—Samples of solid waste, water, soil, or
air, which are collected for the sole
purpose of testing to determine their
characteristics or composition; and
I6Note that household waste and ash from
incineration of household waste appear on the
amber list and may, therefore, be subject to OECD
procedures outside of the United States. Household
waste will be subject to export controls once EPA
obtains new statutory authority for exports and
imports of waste. In addition, the U.S. Supreme
Court has ruled that ash from the incineration of
municipal solid waste that exhibits a characteristic
of hazardous waste must be managed as hazardous
waste. Such characteristically hazardous MSW ash
will be subject to Amber controls when exported.
—Certain samples collected for the
purposes of conducting treatability
testing and analysis.
5. Hazardous Waste Exempted Under 40
CFR 261.5
Under 40 CFR 261.5, hazardous
wastes generated by conditionally
exempt small quantity generators
(CESQGs) (i.e., generators of no more
than 100 kilograms per calendar month)
are exempt from Subtitle C
requirements, including manifesting,
provided such generators comply with
the requirements in 40 CFR 261.5. Thus,
hazardous waste generated by a CESQG
or collected from CESQGs is not subject
to today's rule. These exempt wastes
may, however, be subject to controls
imposed by other OECD countries, if
those countries consider the wastes to
be hazardous.
6. Applicability to Universal Wastes
Today's rule applies to universal
wastes as defined in 40 CFR 273 or by
State requirements analogous to Part
273. Universal wastes are defined as
hazardous wastes, but are subject to
streamlined management requirements
for collection, accumulation and
transportation. For instance, universal
wastes are not subject to Federal
manifesting requirements. Universal
wastes exported to non-OECD countries
are, however, subject to certain existing
export regulations found in 40 CFR part
262 Subpart E. Today's rule amends the
export sections of 40 CFR part 273 to
clarify that universal wastes exported to
designated OECD countries for purposes
of recovery are not subject to 40 CFR
273.20, 273.40, 273.56, but are instead
subject to 40 CFR part 262, Subpart H
of today's rule. Furthermore, today's
rule amends the import section of 40
CFR part 273 to clarify that universal
wastes imported from designated OECD
countries for purposes of recovery are
subject to 40 CFR 273.70 in addition to
40 CFR part 262, Subpart H of today's
rule.
7. Non-RCRA Wastes and Other
Regulatory Regimes
There are other wastes on the OECD
lists that may or may not be regulated
under RCRA in the U.S., but that are
controlled under other statutes. Such
wastes may include PCBs, asbestos, and
some chlorinated dioxins and
chlorinated furans.17 Because these
materials themselves are not hazardous
wastes as defined by RCRA, in most
cases, they are not subject to today's
17 Some dioxin wastes are included in listed
RCRA hazardous waste from non-specific sources,
hazardous waste numbers F020, F021, F022, F023,
F026, and F027 [see 40 CFR 261.31(a)].
requirements (although other OECD
countries may subject them to controls).
If, however, PCBs, asbestos, chlorinated
dioxins, or chlorinated furans are
constituents in a waste or waste mixture
that is a RCRA listed or characteristic
hazardous waste that is subject to
Federal manifest requirements under
RCRA, these wastes are subject to all
applicable export and import
requirements under RCRA, including
today's regulations. (As previously
noted, EPA may, in the future, identify
wastes under other statutes that are
subject to the OECD Decision).
The Toxic Substances Control Act
(TSCA) generally addresses the
regulation of materials containing PCBs
[see 15 U.S.C. §6(e)(2)(A)]. EPA
proposed a rule on December 6,1994
(59 FR 62788) which addressed imports
and exports of PCBs. EPA plans to
promulgate final rules in the near
future.
Potential exporters of these wastes
may consider contacting the government
of the specific OECD country for
clarification as to requirements
associated with a particular waste type
before planning the waste shipment
because other countries also may have
restrictions on the import or export of
such wastes.
C. OECD Waste Lists Incorporated by
Reference
The OECD Green List of Wastes
(revised May 1994), Amber List of
Wastes and Red List of Wastes (both
revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix
5, respectively, to the OECD Council
Decision C(92)39/FINAL (Concerning
the Control of Transfrontier Movements
of Wastes Destined for Recovery
Operations) were approved by the
Director of the Federal Register to be
incorporated by reference in today's rule
on July 11,1996. 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 Office of
the Federal Register, 800 North Capitol
Street, NW, suite 700, Washington, DC;
the U.S. Environmental Protection
Agency, 401 M Street, SW, Room
M2616, Washington, DC; the
Organization for Economic Cooperation
and Development, Environment
Directorate, 2 rue Andre Pascal, 75775
Paris Cedex 16, France; and, on the
Internet (see instructions for accessing
these materials in electronic format in
the SUPPLEMENTARY INFORMATION section
of the preamble to today's rule).
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
16307
V. Applicability in Authorized States
In the same way that existing RCRA
export requirements of 40 CFR 262
Subpart E are administered exclusively
by EPA and not by States, States may
not receive authorization from EPA to
control exports of hazardous waste
subject to Subpart H. This is because the
exercise of foreign relations and
international commerce powers is
reserved to the Federal government
under the Constitution. In the Agency's
view, foreign policy interests and
exporter interests in expeditious
processing are better served by EPA's
retention of these functions. In addition,
concentrating these responsibilities
within EPA will provide the U.S
Department of State with a single
contact point regarding the transfrontier
waste program and will better allow for
uniformity and expeditious
transmission of information between the
United States and foreign countries.
States do, however, play a key role in
providing EPA with information on
.whether U.S. facilities designated to
receive hazardous waste imports are
authorized to manage specific wastes
and in ensuring facility compliance
with all applicable environmental laws
and regulations. Additionally, EPA may
authorize States to receive facility
import notifications required under 40
CFR 264.12(a) and 265.12(a).
For the purposes of the transfrontier
movement of wastes under current
RCRA requirements (and by extension,
under today's rule), only those wastes
identified or listed under the Federal
program that are subject to Federal
manifesting requirements are subject to
the U.S. requirements for exporting and
importing. Thus, hazardous wastes
identified or listed by a State under
State law that are not included in the
Federal hazardous waste universe (i.e.,
where the State program is broader in
scope than the federal hazardous waste
program) will not be subject to today's
export and import regulations.
VI. Relationship to U.S. Bilateral
Agreements
The U.S. has existing bilateral
agreements that address transboundary
movements of hazardous waste between
the U.S. and Mexico and between the
U.S. and Canada. Mexico became an
OECD member in June 1994. Today's
rule implementing the provisions of the
Decision will not apply to imports or
exports of hazardous waste between the
U.S. and Mexico; the provisions of the
bilateral agreement with Mexico
continue to apply as well as EPA's _
current export and import regulations,
such as those in 40 CFR 262, Subparts
E and F, and 40 CFR 264.12(a) and
265.12(a).
Canada is a member of the OECD and
has adopted the Decision. Shipments of
hazardous waste to and from Canada,
both for the purposes of recycling and
final disposal, will continue to be
subject to the provisions of the U.S./
Canada bilateral agreement and to EPA's
current import and export regulations.
After the Agency has more experience
with implementing today's rule for
transfrontier shipments between the
U.S. and other OECD countries, EPA
may revisit this Decision. If so, EPA will
publish a notice in the Federal Register
and allow the regulated community
adequate time to comply with any new
requirements imposed.
VH. Relationship to Other Programs
Under Section 13 of the Toxic
Substances Control Act (TSCA),
importers of "chemical substances and
mixtures" must certify compliance with
TSCA at the point of entry into the
United States (see 40 CFR 707.20). Some
chemical substances or mixtures as
defined by TSCA also can be hazardous
wastes as defined by RCRA. Therefore,
if a hazardous waste as defined by
RCRA meets the definition of a chemical
substance or mixture under TSCA,
importers18 must certify compliance
with TSCA in accordance with 40 CFR
707.20. This TSCA compliance
certification provision requires all
importers of chemical substances and
mixtures to certify that their shipments
are in compliance with all applicable
rules or orders under TSCA [see 40 CFR
707.20(b)(2)(i)]. Compliance with TSCA
may require, among other things, that
the substances are not banned from
importation, that they are listed in the
TSCA Inventory of chemical substances,
and that the substances are not being
imported for a "significant new use"
without first providing notice to EPA at
least 90 days prior to the import. If the
shipment (including a hazardous waste)
contains no material covered by TSCA
(e.g., pesticides), then the importer must
certify that the substances in the
shipment are not subject to TSCA [see
40 CFR 707.20(b)(2)(ii)].
U.S. Customs' regulations for
importing require that the importer of
record or a Customs broker be
responsible for filing entry
documentation.19 The importer of
record may be a foreign entity, provided
that, in the state or territory where the
port of entry is located, there is a
resident who is authorized to accept
service of process against such foreign
entity. Such resident must file a bond
having a resident corporation surety to
secure payment of any increased or
additional duties that may be found
due.
. Future Rulemaking
This Decision is a negotiated
international agreement that provides
nations with some limited flexibility to
implement the Decision within their
unique domestic waste management
schemes. As such, certain definitions
and procedures in the Decision are less
explicit than current RCRA regulations.
It may be appropriate in the future to
revise today's regulations to address
additional elements of the Decision.
Some of the elements of the Decision
that the Agency may address in future
regulations include:
— Notification and tracking documents.
The OECD/WMPG developed
recommended, standardized
notification and tracking documents
for shipments of amber-list and red-
list wastes. Once the notification and
tracking documents have been in use,
they may need to be modified L
according to experience by the
member countries. When use of the
forms becomes mandatory by the
OECD, the Agency will amend its
regulations to require their use.
— Pre-approval of recovery facilities.
The Decision allows importing
countries to pre-approve recovery
facilities. The Agency has not yet
decided whether to pre-approve
recovery facilities and, if so, whether
only RCRA permitted or interim
status recovery facilities should
qualify for pre-approval or whether
pre-approval criteria can feasibly be
established for recovery facilities
currently exempt from RCRA permit
or technical standards. The Agency
has already received a proposal for
such criteria from the International
Precious Metals Institute (IPMI).
DPMI's proposal is included in the
public docket for today's rule.
— Recognized traders. Consistent with
the Decision, today's regulations set
forth certain responsibilities for
is Under TSCA, an importer is considered the
"manufacturer." The term "manufacture" is defined
in § 3(7) of the act as: " * * * to import into the
Customs territory of the United States (as defined
in general headnote 2 of the Tariff Schedules of the
United States) * * *."
"Under Federal regulations (19 CFR 111), a
Customs broker is an individual, a partnership, or
an association or corporation who is licensed under
Part 111 to transact customs business on behalf of
others (19 CFR 111.1). Among other requirements,
an individual seeking a broker's license must be a
U.S. citizen (19 CFR lll.ll(a)). For a partnership,
association, or corporation to act as a Customs
broker, at least one member or officer must be a
licensed Customs broker, which requires U.S.
citizenship [19 CFR lll.ll(b) and (c)].
-------
16308 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
recognized traders of hazardous
wastes destined for recovery within
the OECD. The Agency will be further
assessing the relationship of
recognized traders, as defined in
today's regulations, to waste brokers
and whether additional regulations
are needed to clarify the scope of
coverage and associated
responsibilities.
As the Agency gains experience
implementing today's regulations, it
may identify additional issues requiring
further regulatory action.
EX. Regulatory Impact Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR
51735 October 4,1993), the Agency
must determine whether a regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
EPA has determined that this rule is
not a "significant regulatory action"
under the terms of Executive Order
12866 and is therefore not subject to
OMB review. This rule raises no novel
legal or policy issues. It simply
implements the Decision which the U.S.
has already supported. The rule
promulgates regulatory language that
differs from the language of the Decision
in only a minimal, nonsubstantive
manner, in order to conform this rule to
existing RCRA rules. The rule's scope is
not broader than that of the Decision.
The only costs of this rule are those
associated with the additional
notification and tracking costs. Analysis
in the ICR (Information Collection
Request) shows that the annual burden
for U.S. exporters and importers will
total less than $225,000. This rule will
not cause any inconsistencies or
interfere with other Agencies' actions,
nor materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof.
While EPA recognizes that some
companies may experience economic
dislocation if there are significant delays
in processing notifications and
consents, the Agency believes that
judicious planning on the part of these
companies could eliminate or lessen the
impact of such delays, if any. Moreover,
the Agency again emphasizes that the
Decision imposed these new
notification and consent requirements.
EPA is merely codifying those
requirements in this rule.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., a Regulatory
Flexibility Analysis must be performed
if the regulatory requirements have a
significant impact on a substantial
number of small entities. No Regulatory
Flexibility Analysis is required where
the head of an agency certifies that the
rule will not have a significant
economic impact on a substantial
number of small entities.
Since the enactment of RCRA Section
3017 and the 1986 regulations at 40 CFR
part 262, subpart E, generators subject to
the manifesting requirements for exports
of hazardous waste have been required
to comply with notification and consent
requirements as a condition of exporting
such wastes. Generators who generate
less than 100 kgs/mo (conditionally
exempt small quantity generators) were
not required to comply with these
requirements because they are not
subject to the manifesting requirements.
Conditionally exempt small quantity
generators are not subject to any of the
requirements of today's rule; thus, the
universe of regulated individuals is not
changing.
EPA does not believe this rule will
increase burdens for any small entities
that are not already exempt as small
quantity generators. Today's rule is not
expected to have a significant economic
impact on a substantial number of small
entities and does not require a
Regulatory Flexibility Analysis.
Therefore, pursuant to 5 U.S.C. 601(b),
I certify that this regulation will not
have a significant economic impact on
a substantial number of small entities.
C. Paperwork Reduction Act
I. Display of OMB Control Numbers
EPA is amending the table of
currently approved information
collection request (ICR) control numbers
issued by OMB for various regulations.
This amendment updates the table to
accurately display those information
requirements contained in this final
rule. This display of the OMB control
number and its subsequent codification
in the Code of Federal Regulations
satisfies the requirements of the
Paperwork Reduction Act (44 USC 3501
et seq.) and OMB's implementing
regulations at 5 CFR 1320.
EPA finds that there is "good cause"
under section 553(b)(B) of the
Administrative Procedure Act (5 U.S.C.
553(b)(B)) to amend this table without
prior notice and comment. Due to the
technical nature of the table, further
notice and comment would be
unnecessary. For the same reasons, EPA
also finds that there is good cause under
5 U.S.C. 553(d)(3).
2. Burden Statement
The information collection
requirements in this rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and have been assigned control number
2050-0143.
This collection of information has an
estimated reporting burden averaging
from 5.74 hours per year per exporter to
2.99 hours per year per importer. This
includes time for reviewing regulations/
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch (2136);
U.S. Environmental Protection Agency;
401 M Street, S.W.; Washington, DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, Washington,
DC 20503, marked "Attention: Desk
Officer for EPA."
List of Subjects
40 CFR Part 9
Environmental protection,
Information collection, OMB approval,
Paperwork reduction.
40 CFR Part 260
Administrative practice and
procedure, Confidential business
information, Hazardous waste.
40 CFR Part 261
Hazardous waste, Recycling,
Reporting and recordkeeping.
40 CFR Part 262
Exports, Hazardous waste, Imports,
Incorporation by reference, International
agreements, Labeling, Manifest,
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
16309
Packaging and containers, Recycling,
Reporting and recordkeeping
requirements.
40 CFR Part 263
Export, Hazardous waste, Hazardous
waste transportation, Import,
Manifesting, Tracking documents.
40 CFR Part 264
Hazardous waste, Imports, Manifest,
Recordkeeping, Recycling.
40 CFR Part 265
Hazardous waste, Imports, Manifest,
Recordkeeping requirements, Recycling.
40 CFR Part 266
Precious metals, Recycling.
40 CFR Part 273
Hazardous waste, Recycling,
Universal waste.
Dated: November 29,1995.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, title 40, chapter 1, subchapter
I of the Code of Federal Regulations, is
amended as set forth below.
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
1. In Part 9:
a. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 etseq., 136-136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 etseq., 1311,1313d, 1314,1321,
1326,1330,1344,1345 (d) and (e), 1361; E.O.
11735, 38 FR 21243, 3 CFR, 1971-1975
Comp., p. 973; 42 U.S.C. 241, 242b, 243, 246,
300f, 300g-5, 300g-6, 300J-1, 300J-2, 300J-
3, 300J-4, 300}-9,1857 etseq., 6901-6992k,
7401-7671q, 7542, 9601-9657,11023,11048.
b. Section 9.1 is amended by adding
a new entry and heading in numerical
order to the table to read as follows:
§ 9.1 OMB approvals under the Paperwork
Reduction Act
Authority: 42 U.S.C. 6905, 6912(a), 6921-
6927, 6930,6934, 6935,6937,6938, 6939,
and 6974.
b. Section 260.2(b) is revised to read
as follows:
§ 260.2 Availability of information;
confidentiality of information.
40 CFR citation
OMB control
No.
Public Information:
Part 2, subpart B
2050-0143
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
2. In part 260:
a. The authority citation continues to
read as follows:
(b) Any person who submits
information to EPA in accordance with
parts 260 through 266 and 268 of this
chapter may assert a claim of business
confidentiality covering part or all of
that information by following the
procedures set forth in § 2.203(b) of this
chapter. Information covered by such a
claim will be disclosed by EPA only to
the extent, and by means of the
procedures, set forth in part 2, subpart
B, of this chapter except that
information required by § 262.53(a) and
§ 262.83 that is submitted in a
notification of intent to export a
hazardous waste will be provided to the
U.S. Department of State and the
appropriate authorities in the transit
and receiving or importing countries
regardless of any claims of
confidentiality. However, if no such
claim accompanies the information
when it is received by EPA, it may be
made available to the public without
further notice to the person submitting
it.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. In 40 CFR part 261:
a. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), 6921,
6922, and 6938.
b. Section 261.6 is amended by
adding paragraph (a)(5) to read as
follows:
§ 261.6 Requirements for recyclable
materials.
(a)* * *
(5) Hazardous waste that is exported
to or imported from designated member
countries of the Organization for
Economic Cooperation and
Development (OECD) (as defined in
§ 262.58(a)(l)) for purpose of recovery is
subject to the requirements of 40 CFR
part 262, subpart H, if it is subject to
either the Federal manifesting
requirements of 40 CFR Part 262, to the
universal waste management standards
of 40 CFR Part 273, or to State
requirements analogous to 40 CFR Part
273.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
4. The authority citation for part 262
is revised to read as follows:
Authority: 42 U.S.C 6906, 6912, 6922,
6923, 6925, 6937, and 6938.
5. Section 262.10 is amended by
redesignating paragraphs (d), (e), (f), and
(g) as (e), (f), (g), and (h) respectively
and adding a new paragraph (d) to read
as follows:
§262.10 Purpose, scope, and applicability.
*****
(d) Any person who exports or
imports hazardous waste subject to the
Federal manifesting 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, to or from the countries listed in
§ 262.58(a)(l) for recovery must comply
with subpart H of this part.
*****
6. Section 262.53(b) is revised to read
as follows:
§262.53 Notification of intent to export
*****
(b) Notifications submitted by mail
should be sent to the following mailing
address: Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting, and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460.
Hand-delivered notifications should be
sent to: Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting, and Data Division (2222A),
Environmental Protection Agency, Ariel
Rios Bldg., 12th St. and Pennsylvania
Ave., NW., Washington, DC. In both
cases, the following shall be
prominently displayed on the front of
the envelope: "Attention: Notification of
Intent to Export."
*****
7. Section 262.56(b) is revised to read
as follows:
§ 262.56 Annual reports.
*****
(b) Annual reports submitted by mail
should be sent to the following mailing
address: Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting, and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460.
Hand-delivered reports should be sent
to: Office of Enforcement and
Compliance Assurance, Office of
-------
Compliance, Enforcement Planning,
Targeting, and Data Division (2222A),
Environmental Protection Agency, Ariel
Rios Bldg., 12th St. and Pennsylvania
Ave., NW., Washington, DC.
8. Section 262.58 is amended by
adding text to read as follows:
§262.58 International agreements.
(a) Any person who exports or
imports hazardous waste subject to
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, to or from
designated member countries of the
Organization for Economic Cooperation
and Development (OECD) as defined in
paragraph (a)(l) of this section for
purposes of recovery is subject to
Subpart H of this part. The requirements
of Subparts E and F do not apply.
(1) For the purposes of this Subpart,
the designated OECD countries consist
of Australia, Austria, Belgium,
Denmark, Finland, France, Germany,
Greece, Iceland, Ireland, Italy, Japan,
Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Spain,
Sweden, Switzerland, Turkey, United
Kingdom, and the United States.
(2) For the purposes of this Subpart,
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.
9. Part 262 is amended by adding
subpart H consisting of §§ 262.80
through 262.89 to read as follows:
Subpart H—Transfrontier Shipments 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 Tracking 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—Transfrontier Shipments of
Hazardous Waste for Recovery within the
OECD
§262.80 Applicability.
(a) The requirements of this subpart
apply to imports and exports of wastes
that are considered hazardous under
U.S. national procedures and are
destined for recovery operations in the
countries listed in § 262.58(a)(l). 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.
(b) Any person (notifier, consignee, 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 notifier duties, if
applicable, under this subpart.
§262.81 Definitions.
The following definitions apply to
this subpart.
(a) Competent authorities means the
regulatory authorities of concerned
countries having jurisdiction over
transfrontier movements of wastes
destined for recovery operations.
(b) Concerned countries means the
exporting and importing OECD member
countries and any OECD member
countries of transit.
(c) Consignee 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
importing country.
(d) Country of transit means any
designated OECD country in
§ 262.58(a)(l) and (a)(2) other than the
exporting or importing country across
which a transfrontier movement of
wastes is planned or takes place.
(e) Exporting country means any
designated OECD member country in
§ 262.58(a)(l) from which a transfrontier
movement of wastes is planned or has
commenced.
(f) Importing country means any
designated OECD country in
§ 262.58(a)(l) to which a transfrontier
movement of wastes is planned or takes
place for the purpose of submitting the
wastes to recovery operations therein.
(g) Notifier means the person under
the jurisdiction of the exporting country
who has, or will have at the time the
planned transfrontier movement
commences, possession or other forms
of legal control of the wastes and who
proposes their transfrontier movement
for the ultimate purpose of submitting
them to recovery operations. When the
United States (U.S.) is the exporting
country, notifier is interpreted to mean
a person domiciled in the U.S.
(h) OECD area means all land or
marine areas under the national
jurisdiction of any designated OECD
member country in § 262.58. When the
regulations refer to shipments to or from
an OECD country, this means OECD
area.
(i) Recognized trader means a person
who, with appropriate authorization of
concerned countries, 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 transfrontier
movements of wastes destined for
recovery operations.
(j) Recovery facility means an entity
which, under applicable domestic law,
is operating or is authorized to operate
in the importing country to receive
wastes and to perform recovery
operations on them.
(k) Recovery operations means
activities leading to resource recovery,
recycling, reclamation, direct re-use or
alternative uses as listed in Table 2.B of
the Annex of OECD Council Decision
C(88)90(Final) of 27 May 1988,
(available from the Environmental
Protection Agency, RCRA Information
Center (RIC), 1235 Jefferson-Davis
Highway, first floor, Arlington, VA
22203 (Docket # F-94-ffiHF-FFFFF) and
the Organisation for Economic Co-
operation and Development,
Environment Direcorate, 2 rue Andre
Pascal, 75775 Paris Cedex 16, France)
which include:
Rl Use as a fuel (other than in direct
incineration) or other means to
generate energy
Solvent reclamation/regeneration
Recycling/reclamation of organic
substances which are not used as
solvents
Recycling/reclamation of metals
and metal compounds
R5 Recycling/reclamation of other
inorganic materials
Regeneration of acids or bases
Recovery of components used for
pollution control
Recovery of components from
catalysts
Used oil re-refining or other reuses
of previously used oil
R2
R3
R4
R6
R7
R8
R9
-------
.-^ i v., «1. No. 72 / Friday. April 12. 1996_nRules^and Regulations
16311
, —
RIO Land treatment resulting in
benefit to agriculture or ecological
improvement
Rl 1 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 Rl-RH
R13 Accumulation of material
intended for any operation in Table
2.B
(1) Transfrontier movement means any
shipment of wastes destined for
recovery operations from an area under
the national jurisdiction of one OECD
member country to an area under the
national jurisdiction of another OECD
member country.
§262.82 General conditions.
(a) Scope. The level of control for
exports and imports of waste is
indicated by assignment of the waste to
a green, amber, or red list and by U.£>.
national procedures as defined in
§ 262.80(a). The green, amber, and red
lists are incorporated by reference in
§ 262.89 (e). ...
(1) Wastes on the green list are subject
to existing controls normally applied to
commercial transactions, except as
provided below:
(i) Green-list wastes that are
considered hazardous under U.S.
national procedures are subject to
amber-list controls.
(ii) Green-list waste that are
sufficiently contaminated or mixed with
amber-list wastes, such that the waste or
waste mixture is considered hazardous
under U.S. national procedures, are
subject to amber-list controls.
(iii) Green-list wastes that are
sufficiently contaminated or mixed with
other wastes subject to red-list controls
such that the waste or waste mixture is
considered hazardous under U.S.
national procedures must be handled in
accordance with the red-list controls.
(2) Wastes on the amber list that are
considered hazardous under U.S.
national procedures as defined in
§ 262.80(a) are subject to the amber-list
controls of this Subpart.
(i) If amber-list wastes are sufficiently
contaminated or mixed with other
wastes subject to red-list controls such
that the waste or waste mixture is
considered hazardous under U.S.
national procedures, the wastes must be
handled in accordance with the red-list
controls.
(ii) [Reserved].
(3) Wastes on the red list that are
considered hazardous under U.S.
national procedures as defined in
§ 262.80(a) are subject to the red-list
controls of this subpart.
Note to paragraph (a)(3): Some wastes on
the amber or red lists are not listed or
otherwise identified as hazardous under
RCRA (e.g., polychlorinated biphenyls) and
therefore are not subject to the amber- or red-
list controls of this subpart. Regardless of the
status of the waste under RCRA, however,
other Federal environmental statutes (e.g.,
the Toxic Substances Control Act] may
restrict certain waste imports or exports.
Such restrictions continue to apply without
regard to this Subpart.
(4) Wastes not yet assigned to a list
are eligible for transfrontier movements,
as follows: .
(i) If such wastes are considered
hazardous under U.S. national
procedures as denned in § 262.80(a),
these wastes are subject to the red-list
controls; or .. ,
(ii) If such wastes are not considered
hazardous under U.S. national
procedures as defined in § 262.80(a),
such wastes may move as though they
appeared on the green list.
(b) General conditions applicable to
transfrontier movements of hazardous
(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 transfrontier 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), MARPQL
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-list control system from the U.S.,
as the importing country, to a third
country listed in § 262.58(a)(l) may
occur only after a notifier in the U.S.
provides notification to and obtains
consent of the competent authorities in
the third country, the original exporting
country, and new transit countries. The
notification must comply with the
notice and consent procedures in
§ 262.83 for all concerned countries and
the original exporting country. The
competent authorities of the original
exporting country as well as the
competent authorities of all other
concerned countries have 30 days to
object to the proposed movement.
(i) The 30-day period begins once tne
competent authorities of both the initial
exporting country and new importing
country issue Acknowledgements of
Receipt of the notification.
(ii) The transfrontier movement may
commence if no objection has been
lodged after the 30-day period has
passed or immediately after written
consent is received from all relevant
OECD importing and transit countries.
(2) Re-export of waste subject to the
red-list control system from the original
importing country to a third country
listed in § 262.58(a)(l) may occur only
following notification of the competent
authorities of the third country, the
original exporting country, and new
transit countries by a notifier in the
original importing country in
accordance with § 262.83. The
transfrontier movement may not
proceed until receipt by the original
importing country of written consent
from the competent authorities of the
third country, the original exporting
country, and new transit countries.
(3) In the case of re-export of amber
or red-list wastes to a country other than
those in § 262.58(a)(l), 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 paragraphs
(c)(l) and (c)(2) 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
importing country.
§ 262.83 Notification and consent
(a) Applicability. Consent must be
obtained from the competent authorities
of the relevant OECD importing and
transit countries prior to exporting
hazardous waste destined for recovery
operations subject to this Subpart.
Hazardous wastes subject to amber-list
controls are subject to the requirements
of paragraph (b) of this section;
hazardous wastes subject to red-list
controls are subject to the requirements
of paragraph (c) of this section; and
wastes not identified on any list are
subject to the requirements of paragraph
(d) of this section.
Cb) Amber-list wastes. The export from
the U.S. of hazardous wastes as
described in § 262.80(a) that appear on
the amber list is prohibited unless the
notification and consent requirements of
paragraph (b)(l) or paragraph (b)(2) of
this section are met.
(1) Transactions requiring specific
consent: ,
(i) Notification. At least 45 days prior
to commencement of the transfrontier
-------
16312 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
movement, the notifier must provide
written notification in English of the
proposed transfrontier movement to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protectipn Agency, 401 M St., SW.,
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 (e)
of this section. In cases where wastes
having similar physical and chemical
characteristics, the same United Nations
classification, and the same RCRA waste
codes are to be sent periodically to the
same recovery facility by the same
notifier, the notifier may submit one
notification of intent to export these
wastes in multiple shipments during a
period of up to one year.
(ii) Tacit consent. If no objection has
been lodged by any concerned country
(i.e., exporting, importing, or transit
countries) to a notification provided
pursuant to paragraph (b)(l)(i) of this
section within 30 days after the date of
issuance of the Acknowledgment of
Receipt of notification by the competent
authority of the importing country, the
transfrontier movement may commence.
Tacit consent expires one calendar year
after the close of the 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 30
days, the transfrontier movement may
commence immediately after all
necessary consents are received. Written
consent expires for each relevant OECD
importing and transit country one
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) Shipments to facilities pre-
approved by the competent authorities
of the importing countries to accept
specific wastes for recovery:
(i) The notifier must provide EPA the
information identified in paragraph (e)
of this section in English, at least 10
days in advance of commencing
shipment to a pre-approved facility. The
notification should 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)(l)(i) of this section. This
information must be sent to the Office
of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401M St., SW.,
Washington, DC 20460, with the words
"OECD Export Notification—Pre-
approved Facility" prominently
displayed on the envelope.
(ii) Shipments may commence after
the notification required in paragraph
(b)(l)(i) of this section has been received
by the competent authorities of all
concerned countries, unless the notifier
has received information indicating that
the competent authorities of one or
more concerned countries objects to the
shipment.
(c) Red-list wastes. The export from
the U.S. of hazardous wastes as
described in § 262.80(a) that appear on
the red list is prohibited unless notice
is given pursuant to paragraph (b)(l)(i)
of this section and the notifier receives
written consent from the importing
country and any transit countries prior
to commencement of the transfrontier
movement.
(d) Unlisted wastes. Wastes not
assigned to the green, amber, or red list
that are considered hazardous under
U.S. national procedures as defined in
§ 262.80(a) are subject to the notification
and consent requirements established
for red-list wastes in accordance with
paragraph (c) of this section. Unlisted
wastes that are not considered
hazardous under U.S. national
procedures as defined in § 262.80(a) are
not subject to amber or red controls
when exported or imported.
(e) Notification information.
Notifications submitted under this
section must include:
(1) Serial number or other accepted
identifier of the notification form;
(2) Notifier name and EPA
identification number (if applicable),
address, and telephone and telefax
numbers;
(3) Importing recovery facility name,
address, telephone and telefax numbers,
and technologies employed;
(4) Consignee name (if not the owner
or operator of the recovery facility)
address, and telephone and telefax
numbers; whether the consignee will
engage in waste exchange or storage
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 transporters and/or their
agents;
(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 foreseen for commencement
of transfrontier movement;
(11) Designation of waste type(s) from
the appropriate list (amber or red and
waste list code), descriptions of each
waste type, estimated total quantity of
each, RCRA waste code, and United
Nations number for each waste type;
and
(12) Certification/Declaration signed
by the notifier 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 transfrontier movement.
Name:
Signature:
Date:
Note to paragraph (e)(12): The U.S. does
not currently require financial assurance;
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.
§262.84 Tracking document
(a) All U.S. parties subject to the
contract provisions of § 262.85 must
ensure that a tracking document
meeting the conditions of § 262.84(b)
accompanies each transfrontier
shipment of wastes subject to amber-list
or red-list controls from the initiation of
the shipment until it reaches the final
recovery facility, including cases in
which die waste is stored and/or
exchanged by the consignee prior to
shipment to the final recovery facility,
except as provided in §§ 262.84(a)(l)
and (2).
(1) For shipments of hazardous waste
within the U.S. solely by water (bulk
shipments only) the generator must
forward the tracking document with the
manifest to the last water (bulk
shipment) transporter to handle the
waste in the U.S. if exported by water,
(in accordance with the manifest routing
procedures at § 262.23(c)).
(2) For rail shipments of hazardous
waste within the U.S. which originate at
the site of generation, the generator
must forward the tracking document
with the manifest (in accordance with
the routing procedures for the manifest
in § 262.23(d)) to the next non-rail
transporter, if any, or the last rail
transporter to handle the waste in the
U.S. if exported by rail.
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16313
(b) The tracking document must
include all information required under
§ 262.83 (for notification), and the
following:
(1) Date shipment commenced.
(2) Name (if not notifier), address, and
telephone and telefax numbers 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.
(5) Any special precautions to be
taken by transporters.
(6) Certification/declaration signed by
notifier 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 transfrontier
movement, and that:
I. All necessary consents have been
received; OR
2. The shipment is directed at a recovery
facility within the OECD area and no
objection has been received from any of the
concerned countries within the 30 day tacit
consent period; OR
3. The shipment is directed at 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 concerned
countries.
(delete sentences that are not applicable)
Name:
Signature:
Date:
(7) Appropriate signatures for each
custody transfer (e.g. transporter,
consignee, and owner or operator of the
recovery facility).
(c) Notifiers also must comply with
the special manifest requirements of 40
CFR 262.54(a), (b), (c), (e), and (i) and
consignees 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
tracking document (e.g. transporter,
consignee, and owner or operator of the
recovery facility).
(e) Within 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 tracking document to the
notifier, to the Office of Enforcement
and Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460, and
to the competent authorities of the
exporting and transit countries.
§262.85 Contracts.
(a) Transfrontier movements of
hazardous wastes subject to amber or
red 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 notifier 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
arrangement.
(b) Contracts or equivalent
arrangements must specify the name
and EPA ID number, where available, of:
(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 its 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
notifier and the competent authorities of
the exporting and importing countries
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 their return to the original
country of export.
(d) Contracts must specify that the
consignee will provide the notification
required in § 262.82(c) prior to 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 U.S. does not require such
financial guarantees at this time; however,
some OECD countries do. It is the
responsibility of the notifier to ascertain and
comply with such requirements; in some
cases, transporters or consignees 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.
notifiers, consignees, 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 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 U.S.
does not require routine submission of
contracts at this time, OECD Council
Decision C(92)39/FINAL allows members to
impose such requirements. When other
OECD 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 countries may deny
consent for the proposed movement.
§ 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 a
notifier or consignee for transfrontier
shipments of waste must comply with
all the requirements of this Subpart
associated with being a notifier or
consignee.
§ 262.87 Reporting and recordkeeping.
(a) Annual reports. For all waste
movements subject to this Subpart,
persons (e.g., notifiers, recognized
traders) who meet the definition of
-------
16314
Federal Register / Vol. 61, No. 72 / Friday. April 12, 1996 / Rules and Regulations
primary exporter in § 262.51 shall file
an annual report with the Office of
Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401 M St., SW.,
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 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 the following:
(1) The EPA identification number,
name, and mailing and site address of
the notifier 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) from OECD waste list and
applicable waste code from the OECD
lists, DOT hazard class, the name and
U.S. EPA identification number (where
applicable) for each transporter used,
the total amount of hazardous waste
shipped pursuant to this Subpart, and
number of shipments pursuant to each
notification;
(5) In even numbered years, for each
hazardous waste exported, except for
hazardous waste produced by exporters
of greater than 100kg but less than
1000kg in a calendar month, and except
for hazardous waste for which
information was already provided
pursuant to §262.41:
(i) A description of the efforts
undertaken during the year to reduce
the volume and toxicity of 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 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 § 262.51 must file an
exception report in lieu of the
requirements of § 262.42 with the
Administrator if any of the following
occurs:
(1) He has not received a copy of the
tracking documentation signed by the
transporter stating 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 notifier 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. (I) Persons who
meet the definition of primary exporter
in § 262.51 shall keep the following
records:
(i) A copy of each notification of
intent to export and all written consents
obtained from the competent authorities
of concerned countries for a period of at
least three 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 years from the
due date of the report; and
(iii) A copy of any exception reports
and a copy of each confirmation of
delivery (i.e., tracking documentation)
sent by the recovery facility to the
notifier for at least three years from the
date the hazardous waste was accepted
by the initial transporter or received by
the recovery facility, whichever is
applicable.
(2) The periods of retention referred to
in this section are extended
automatically during the course of any
unresolved enforcement action
regarding the regulated activity or as
requested by the Administrator.
§ 262.88 Pre-approval for U.S. Recovery
Facilities (Reserved).
§262.89 OECD Waste Lists.
(a) General. For the purposes of this
Subpart, a waste is considered
hazardous under U.S. national
procedures, and hence subject to this
Subpart, if the waste:
(1) Meets the Federal definition of
hazardous waste in 40 CFR 261.3; and
(2) Is subject to either the Federal
RCRA manifesting requirements at 40
CFR part 262, subpart B, to the universal
waste management standards of 40 CFR
part 273, or to State requirements
analogous to 40 CFR part 273.
(b) If a waste is hazardous under
paragraph (a) of this section and it
appears on the amber or red list, it is
subject to amber- or red-list
requirements respectively;
(c) If a waste is hazardous under
paragraph (a) of this section and it does
not appear on either amber or red lists,
it is subject to red-list requirements.
(d) The appropriate control
procedures for hazardous wastes and
hazardous waste mixtures are addressed
in § 262.82.
(e) The OECD Green List of Wastes
(revised May 1994), Amber List of
Wastes and Red List of Wastes (both
revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix
5, respectively, to the OECD Council
Decision C(92)39/FINAL (Concerning
the Control of Transfrontier Movements
of Wastes Destined for Recovery
Operations) 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 July 11,1996. 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 Office of
the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC;
the U.S. Environmental Protection
Agency, RCRA Information Center (RIC),
1235 Jefferson-Davis Highway, first
floor, Arlington, VA 22203 (Docket # F-
94-IEHF-FFFFF) and may be obtained
from the Organisation for Economic Co-
operation and Development,
Environment Direcorate, 2 rue Andre
Pascal, 75775 Paris Cedex 16, France.
PART 263—STANDARDS APPLICABLE
TO TRANSPORTERS OF HAZARDOUS
WASTE
10. The authority citation for part 263
is revised to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922,
6923, 6925, 6937, and 6938.
11. Section 263.10 is amended by
adding paragraph (d) to read as follows:
§263.10 Scope.
*****
(d) A transporter of hazardous waste
subject to the Federal manifesting
requirements of 40 CFR part 262, or
subject to the waste management
standards of 40 CFR part 273, or subject
-------
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16315
to State requirements analogous to 40
CFR part 273, that is being imported
from or exported to any of the countries
listed in 40 CFR 262.58(a)(l) for
purposes of recovery is subject to this
Subpart and to all other relevant
requirements of subpart H of 40 CFR
part 262, including, but not limited to,
40 CFR 262.84 for tracking documents.
12. Section 263.20(a) is revised to
read as follows:
§263.20 The manifest system.
(a) A transporter may not accept
hazardous waste from a generator unless
it is accompanied by a manifest signed
in accordance with the provisions of 40
CFR 262.20. In the case of exports other
than those subject to subpart H of 40
CFR part 262, a transporter may not
accept such waste from a primary
exporter or other person if he knows the
shipment does not conform to the EPA
Acknowledgement of Consent; and
unless, in addition to a manifest signed
in accordance with the provisions of 40
CFR 262.20, such waste is also
accompanied by an EPA
Acknowledgement of Consent which,
except for shipment by rail, is attached
to the manifest (or shipping paper for
exports by water (bulk shipment}). For
exports of hazardous waste subject to
the requirements of subpart H of 40 CFR
part 262, a transporter may not accept
hazardous waste without a tracking
document that includes all information
required by 40 CFR 262.84.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
13a. The authority citation for part
264 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a) 6924,
and 6925,13b. Section 264.12 is amended by
redesignating paragraph (a) as paragraph
(a)(l) and by adding a paragraph (a)(2) to read
as follows:
§ 264.12 Required notices.
(a) * * *
(2) The owner or operator of a
recovery facility that has arranged to
receive hazardous waste subject to 40
CFR part 262, subpart H must provide
a copy of the tracking document bearing
all required signatures to the notifier, to
the Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460; and
to the competent authorities of all other
concerned countries within three
working days of receipt of the shipment.
The original of the signed tracking
document must be maintained at the
facility for at least three years.
*****
14. Section 264.71 is amended by
adding paragraph (d) after the comment
to read as follows:
§ 264.71 Use of manifest system.
*****
(d) Within three working days of the
receipt of a shipment subject to 40 CFR
part 262, subpart H, the owner or
operator of the facility must provide a
copy of the tracking document bearing
all required signatures to the notifier, to
the Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460, and
to competent authorities of all other
concerned countries. The original copy
of the tracking document must be
maintained at the facility for at least
three years from the date of signature.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
15. The authority citation for part 265
is revised to read as follows:
Authority: 42 U.S.C 6905,6906, 6912,
6922, 6923, 6924, 6925, 6935, 6936, and
6937.
16. Section 265.12 is amended by
redesignating paragraph (a) as paragraph
(a)(l) and by adding paragraph (a)(2) to
read as follows:
§265.12 Required notices.
(a) * * *
(2) The owner or operator of a
recovery facility that has arranged to
receive hazardous waste subject to 40
CFR part 262, subpart H must provide
a copy of the tracking document bearing
all required signatures to the notifier, to
the Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460 and
to the competent authorities of all other
concerned countries within three
working days of receipt of the shipment.
The original of the signed tracking
document must be maintained at the
facility for at least three years.
*****
17. Section 265.71 is amended by
adding paragraph (d) after the comment
to read as follows:
§ 265.71 Use of the manifest system.
*****
(d) Within three working days of the
receipt of a shipment subject to 40 CFR
part 262, subpart H, the owner or
operator of facility must provide a copy
of the tracking document bearing all
required signatures to the notifier, to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401M St., SW.,
Washington, DC 20460, and to
competent authorities of all other
concerned countries. The original copy
of the tracking document must be
maintained at the facility for at least
three years from the date of signature.
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
18. The authority citation for part 266
is revised to read as follows:
Authority: 42 U.S.C 1006, 2002(a), 3004,
3014, 6905, 6906,6912, 6922, 6923, 6924,
6925, 6934, and 6937.
19. Section 266.70 is amended by
adding paragraph (b)(3) and by adding
the word "and" at the end of paragraph
(b)(2) to read as follows:
§ 266.70 Applicability and requirements.
*****
(b)" * *
(3) For precious metals exported to or
imported from designated OECD
member countries for recovery, subpart
H of part 262 and § 265.12(a)(2) of this
chapter. For precious metals exported to
or imported from non-OECD countries
for recovery, subparts E and F of 40 CFR
part 262.
PART 273—STANDARDS FOR
UNIVERSAL WASTE MANAGEMENT
20a. The authority citation for part
273 continues to read as follows:
Authority: 42 U.S.C. 6922,6923, 6924,
6925, 6930, and 6937. 20b. The introductory
text for § 273.20 is revised to read as follows:
§273.20 Exports.
A small quantity handler of universal
waste who sends universal waste to a
foreign destination other than to those
OECD countries specified in 40 CFR
262.58(a)(l) (in which case the handler
is subject to the requirements of 40 CFR
part 262, subpart H) must:
*****
21. The introductory text for § 273.40
is revised to read as follows:
-------
16316
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
§273.40 Exports.
A large quantity handler of universal
waste who sends universal waste to a
foreign destination other than to those
OECD countries specified in 40 CFR
262.58(a)(l) (in which case the handler
is subject to the requirements of 40 CFR
part 262, subpart H) must:
*****
22. The introductory text for § 273.56
is revised to read as follows:
§273.56 Exports.
A universal waste transporter
transporting a shipment of universal
waste to a foreign destination other than
to those OECD countries specified in 40
CFR 262.58(a)(l) (in which case the
transporter is subject to the
requirements of 40 CFR part 262,
subpart H) may not accept a shipment
if the transporter knows the shipment
does not conform to the EPA
Acknowledgment of Consent. In
addition the transporter must ensure
that:
*****
23. Section 273.70 is amended by
revising the introductory text and by
adding a new paragraph (d) to read as
follows:
§273.70 Imports.
Persons managing universal waste
that is imported from a foreign country
into the United States are subject to the
applicable requirements of this part,
immediately after the waste enters the
United States, as indicated in
paragraphs (a) through (c) of this
section:
* * * * *
(d) Persons managing universal waste
that is imported from an OECD country
as specified in 40 CFR 262.58(a)(l) are
subject to paragraphs (a) through (c) of
this section, in addition to the
requirements of 40 CFR part 262,
subpart H.
[FR Doc. 96-8087 Filed 4-11-96; 8:45 am]
BILLING CODE 6560-50-P
------- |