BACKGROUND DOCUMENT

        RESOURCE CONSERVATION AND RECOVERY ACT
       SUBTITLE C - HAZARDOUS WASTE MANAGEMENT;
              EXPORTS OK HAZARDOUS WASTE

Amendments to -0 CFR Parts 260, 261, 262, 263, and 271
                  Final Regulations
    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                OFFICE OF SOLID WASTE
                    August 5, 1986

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                 BACKGROUND DOCUMENT

        RESOURCE CONSERVATION AND RECOVERY ACT
       SUBTITLE C - HAZARDOUS WASTE MANAGEMENT;
              EXPORTS OF HAZARDOUS WASTE

Amendments to 40 CFR Parts 260, 261, 262, 263, and 271


                  Final Regulations
    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                OFFICE OF SOLID WASTE
                    August 5, 1986

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                                INTRODUCTION

    This document summarizes and responds to comments received by EPA on the
proposed rule for the Export of Hazardous Waste (51 FR 8744 (March 13,
1986)).  It includes comments addressing specific issues raised by the Agency
in the preamble to the proposed rule as well as other comments on issues found
to be of concern to the commenters.   The background and summary of the final
rule appear below.

    On February 26, 1980, EPA promulgated regulations under the Resource
Conservation and Recovery Act of 1976 (RCRA) governing exports of hazardous
waste (45 FR 12732, 12743-12744, codified at 40 CFR Parts 262 and 263).
These regulations place certain requirements on generators and transporters
regarding exports of hazardous waste in light of the special circumstances
involved in international shipments.  Since RCRA did not expressly address
exports of hazardous waste, these provisions were promulgated primarily under
RCRA §3002 (Standards Applicable to Generators of Hazardous Waste) and §3003
(Standards Applicable to Transporters of Hazardous Waste) and are limited in
scope.

    On November 8, 1984, the President signed into law a set of comprehensive
amendments to RCRA, entitled the Hazardous and Solid Waste Amendments of 1984
(HSWA).  Among other things, they add a new §3017 to RCRA specifically
addressing hazardous waste exports.

    Generally, subsection (a) of §3017 provides that, beginning 24 months
after enactment of HSWA, the export of hazardous waste is prohibited unless
the person exporting such waste:  (1) provides notification to the
Administrator; (2) the government of the receiving country has consented to
accept the waste; (3) a copy of the receiving country's written consent is
attached to the manifest that accompanies each waste shipment; and, (4) the
shipment conforms to the terms of such consent.  In lieu of meeting the above
requirements, a person may export hazardous waste if the United States and the
government of the receiving country have entered into an international
agreement establishing notice, export, and enforcement procedures for the
transportation, treatment, storage,  and disposal of hazardous waste and if the
shipment conforms to the terms of agreement.

    Subsection (c) of §3017 sets forth the requirement to notify the
Administrator before the shipment leaves the United States and specifies the
information to be included in such notification.  Subsections (d) and  (e)
establish procedures for obtaining the receiving country's consent to accept
the waste.  Subsection  (f) addresses the effect of an international agreement
on the requirements of §3017.  Subsection (b) requires the Administrator to
promulgate regulations necessary to implement §3017.  Subsection (h)
authorizes the Administrator to establish other standards for the export of
hazardous waste under §§3002 and 3003 of RCRA.  Finally, Congress also amended
§3008 of RCRA to provide criminal penalties for knowingly exporting hazardous
waste without the consent of the receiving country or in violation of an
existing international agreement between the United States and the receiving
country.

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Subsection 3017(g) of HSWA contains one additional requirement with which
exporters must comply immediately:  any person exporting hazardous waste must
file with the Administrator, no later than March 1 of each year, a report
summarizing the types, quantities, frequency, and ultimate destination of all
hazardous waste exported during the previous year.  EPA codified this
statutory requirement in its export regulations (50 FR 28702, 28746 (July 15,
1985)).

    On March 13, 1986, EPA proposed to amend its hazardous waste export
regulations to implement §3017 and thereby improve its current program
governing exports (51 FR 8744).  These specific amendments were placed in a
revised Subpart E of 40 CFR Part 262.  Because Subpart E currently includes
special requirements governing imports of hazardous waste and the disposition
of waste pesticides by farmers, these provisions were proposed to be moved to
new Subparts F and G respectively with no substantive changes.  Amendments
were also proposed to 40 CFR Parts 260 regarding confidentiality, Part 263
pertaining to transporters of hazardous waste, and Part 271 with respect to
State authorization.

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                       ALPHABETICAL LIST OF COMMENTERS
COMMENTER ABBREVIATION

AAR
ARCO
ARCO Alaska
AT&T
Acme
Alto-Tronics
Anchor
Australia

Border Steel
CA Legislator

CMA
Cadence

Chevron
Co. San Diego
Dow Corning
Duncan
EC

Environment Canada.
Envirosure
Giordano
ICWM
Inst. of Scrap Iron
JM
Lake Carriers
MCA
MN Pollution Control
Merchant Shipping
NARI

NRDC
Natl. Wildlife
OHM
Onsgard
Pennwalt
Resources Conservation
Stoel
Tricil
Uniroyal
Waterbury
       COMMENTER FULL NAME
Association of American Railroads
ARCO Chemical Company
ARCO Alaska, Inc.
AT&T, Nassau Metals
Acme United Corporation
Alto-Tronics Corporation
Anchor Fasteners
Australia Department of Arts, Heritage
   and Environment
Border Steel
Assembly California Legislature
   (Assemblyman Steve Peace)
Chemical Manufacturers Association
Freedman, Levy, Kroll & Sintends
   (Cadence Chemical Resources, Inc.)
Chevron Corporation
County of San Diego
Dow Corning U.S.A.
Duncan Galvanizing Corp.
European Community-Brussels
   (Department of State)
Environment Canada (Canadian Embassy) '
Envirosure
Giordano Waste Material Company
Institute of Chemical Waste Management
Institute of Scrap Iron and Steel, Inc.
Johnson Matthey Inc.
Lake Carriers' Association
Mabbet, Capaccio & Associates, Inc.
Minnesota Pollution Control Agency
American Institute of Merchant Shipping
National Association of Recycling
   Industries, Inc.
National Resources Defense Council, Inc.
National Wildlife Federation (Amended)
0. H. Materials Co.                   •
Henry Onsgard
Pennwalt Corporation
Resources Conservation Co.
Stoel, Rives, Boley, Fraser & Wyse
Tricil Limited
Uniroyal Chemical
Waterbury Buckle Company
DOCKET
NUMBER

  013
  030
  020
  014
  005
  003
  007

  036
  039

  033
  024
  019

  021
 L0001
  016
  004
  029

  018
  001
  002
  022
  032
  026
  015
  Oil
  028
  031

  023
  038
 025A
  010
  017
  012
  037
  035
  008
  009
  006

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS WASTE:
                                INDEX BY ISSUE
               ISSUE
      COMMENTER
1.  Definition of "Receiving Country"
    Nature of the Industry - Definition
    of "Exporter"
    Exemptions of Wastes/Recycling and
    Waste Samples
4.  Separate Notification for Shipments
Natl. Wildlife
NRDC
Cadence
Alto-Tronics
CA Legislator
Natl. Wildlife(2)
Tricil (2)
ICWM
Merchant Shipping
ARCO Alaska
MN Pollution Control
Cadence
Environment Canada
AT&T
Inst. of Scrap Iron
NARI
Chevron
CMA (3)
ARCO (2)
Cadence
Border Steel
Co. San Diego
Giordano
JM (2)
Resources Conservation

NRDC
CA Legislator
CMA
JM
Chevron
Lake Carriers
Acme
Natl. Wildlife
 PAGE ON WHICH
COMMENT APPEARS

    1
    3
    5
    5
    7
    7,16
    9,15
    9
    10
    11
    12
    13
    15
    17
    17
    19
    21
    22,27,36
    23,34
    23
    24
    28
    31
    32,33
    35

    38
    38
    39
    39
    39
    40
    40
    40

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS  WASTE:
                                INDEX BY ISSUE
                                 (continued)
               ISSUE
      COMMENTERS
5.  Notification Period (24 v.12 months)
Acme
Lake Carriers
Chevron
CMA
Cadence
Tricil
ICWM
Environment Canada
NRDC
Natl. Wildlife
CA Legislator
    Additional Notification Information   Tricil
                                          JM
                                          Natl.  Wildlife
7.   Use of Form or Cable for
    Documenting Consent

8.   Treatment of Transit Country
9.  Monitoring through U.S. Customs
10. Annual Reports
Cadence
Stoel
ARCO Alaska
Environment Canada
NRDC
Alto-Tronics
Tricil

Natl. Wildlife
CA Legislator
Onsgard
ICWM
Cadence
Tricil
Lake Carriers

Environment Canada
Envirosure
Tricil
JM
MN Pollution Control
NRDC
Lake Carriers
 PAGE ON WHICH
COMMENT APPEARS

    41
    41
    41
    41
    42
    42
    43
    43
    43
    43
    44

    46
    46
    46

    49
    50
    53
    54
    54
    56
    57

    59
    59
    59
    60
    61
    61
    61

    64
    64
    64
    65
    65
    66
    66

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COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS WASTE:
                               INDEX BY ISSUE
                                (continued)
              ISSUE
COMMENTERS
 PAGE ON WHICH
COMMENT APPEARS
11.

12.

13.

14.




15.


16.-
17.

18.






19.









Application of Definition of
Small Quantity Generators ("SQGs")
SQGs Subject to Regulations

States' Role

Universe of Hazardous Waste




Confidentiality


Transport by Rail
Definition of "Consignee"

Effective Date






60 -Day Advance Time









Lake Carriers

Merchant Shipping
Natl. Wildlife
Natl. Wildlife
Tricil
Inst. of Scrap Iron
Acme
ICWM
Tricil
Natl. Wildlife
CA Legislator
NRDC
Natl. Wildlife
AAR
Stoel
Environment Canada
Natl. Wildlife
Acme
Dow Corning
JM
Cadence
MCA
Tricil
ICWM
Tricil
EC
OHM
Uniroyal
Cadence
Stoel
Australia
Border Steel
JM
68

70
71
72
72
74
75
77
77
77
79
79
80
83
85
86
87
87
88
89
90
92
92
94
94
94
95
95
96
97
99
100.
100

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS WASTE:
                                INDEX BY ISSUE
                                 (continued)
               ISSUE
20. Exception Reports
21. Acknowledgment of Consent
22. Renotification
23. Duplicative and Unnecessary
      Requirements
24. Alternate Consignee
25. Content of Notification
      COMMENTERS
Tricil
ICWM

Natl. Wildlife (2)
JM
Tricil
ICWM
EC

Cadence
Chevron
JM

Waterbury
Uniroyal
Pennwalt
Envirosure

Environment Canada
MN Pollution Control

Pennwalt
Envirosure
Tricil
ICWM
Stoel
Border Steel
Environment Canada
JM
Natl. Wildlife
EC
 PAGE ON WHICH
COMMENT APPEARS

    103
    103

    105,107
    106
    108
    109
    109

    111
    112
    113

    115
    115
    115
    116

    118
    119

    120
    120
    122
    122
    122
    123
    124
    125
    126
    126

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS WASTE:
                                INDEX BY ISSUE
                                 (continued)

                                                                   PAGE ON WHICH
               ISSUE                            COMMENTERS        COMMENT APPEARS
26. Miscellaneous                         Alto-Tronics                128
                                          CA Legislator               128
                                          Tricil (2)                  129,142
                                          Duncan                      129
                                          Environment Canada (3)      130,155,
                                                                      159
                                          Australia                   131
                                          NRDC (2)                    132,152
                                          Envirosure                  133
                                          OHM                         134
                                          Lake Carriers (2)           135,140
                                          CMA (3)                     136,138,
                                                                      158
                                          Stoel (2)                   137,155
                                          ARCO                        139
                                          MN Pollution Control        141
                                          MCA                       '  142
                                          Merchant Shipping           143
                                          JM (3)                      146,147,
                                                                      154
                                          Co. San Diego               148
                                          Natl. Wildlife              152
                                          Border Steel                153
                                          Anchor                      158
                                          ARCO Alaska                 158

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS WASTE:
                              INDEX BY COMMENTER
      COMMENTER
AAR

ARCO

ARCO Alaska

AT&T

Acme

Alto-Tronics

Anchor

Australia

Border Steel

CA Legislator

CMA

Cadence


Chevron

Co. San Diego

Dow Corning

Duncan

EC

Environment Canada
     ISSUE AND PAGE ON WHICH COMMENT APPEARS
 (Page appears in ( ) following each issue number)

16 (83)

3 (23, 34), 26 (139)

2 (11), 8 (53)

3 (17)

4 (40), 5 (41), 14  (75), 18  (87)

1 (5), 8 (56), 26 (128)

26 (158)

19 (99), 26 (131)

3 (24), 19 (100), 25  (123),  26  (153)

2 (7), 4 (38), 5 (44), 9 (59),  15  (79), 26  (128)

3 (22, 27, 36), 4 (39), 5  (41), 26  (136,  138,  158)

1 (5), 2 (13), 3 (23), 5 (42),  7  (49), 9  (61),  18
(90), 19 (96), 22 (111)

3 (21), 4 (39), 5 (41), 22  (112)

3 (28), 26 (148)

18 (88)

26 (129)

19 (94), 21 (109),  25  (126)

2 (15), 5 (43), 8 (54), 10  (64),  17  (86),  24
(118), 25 (124), 26 (130,  155,  159)
See previous table  for key  to  issue  numbers.

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT  OF  HAZARDOUS  WASTES:
                              INDEX BY COMMENTER
                                  (continued)
      COMMENTER
Envirosure

Giordano

ICWM


Inst. of Scrap Iron

JM


Lake Carriers


MCA

MN Pollution Control

Merchant Shipping

NARI

NRDC


Natl. Wildlife



OHM

Onsgard

Pennwalt

Resources Conservation

Stoel
     ISSUE AND PAGE ON WHICH COMMENT APPEARS
 (Page appears in ( ) following each issue number)

10 (64), 23 (116), 25 (120), 26 (133)

3 (31)

2 (9), 5 (43), 9  (60), 14 (77), 19  (94), 20
(103), 21 (109), 25 (122)

3 (17), 14 (77)

3 (32, 33), 4 (39), 10 (65), 18 (89),  19 (100),
21 (106), 22 (113), 25 (125), 26  (146,  147, 154)

4 (40), 5 (41), 9 (61), 10  (66),  11 (68), 26
(135, 140)

18 (92), 26 (142)

2 (12), 10 (65), 24 (119),  26 (141)

2 (10), 12 (70), 26 (143)

3 (19)

1 (3), 4 (38), 5  (43), 8  (54), 10  (66),  15  (79),
26 (132, 152)

1 (1), 2 (7, 16), 4 (40), 5  (43),  6 (46), 9 (59),
12 (71), 13 (72), 14  (77),  15 (80), 18 (87),  21
(105, 107), 25 (126), 26  (152)

19 (95), 26 (134)

9 (59)

23 (115), 25 (120)

3 (35)

8 (50), 17 (85),  19 (97), 25 (122), 26 (137,  155)
See previous table for key to  issue  numbers.

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 COMMENTS RECEIVED ON PROPOSED REGULATIONS FOR THE EXPORT OF HAZARDOUS WASTES:
                              INDEX BY COMMENTER
                                  (continued)

      COMMENTER                   ISSUE AND PAGE ON WHICH COMMENT APPEARS
                               (Page appears in  (  ) following  each  issue  number)

Tricil                       2  (9, 15), 5  (42), 6  (46),  8  (57),  9  (61),  10
                             (64), 13  (72), 14  (77),  18  (92),  19  (94), 20
                             (103), 21  (108), 25  (122),  26  (129,  142)

Uniroyal                     19  (95),  23  (115)

Waterbury                    23  (115)


See previous table for key to  issue numbers.

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                    1.  DEFINITION OF "RECEIVING COUNTRY"
A.  "Receiving Country" Should Include all Transit Countries
Natl.              The commenter recommended that EPA define "receiving




Wildlife:     country" as all transit countries and the country ultimately




              receiving the waste.









                   The commenter noted that it appears that even if a waste is




              to be treated and stored at a "transit" country for substantial




              periods of time, unless that country will be the "ultimate




              destination" of the waste, consent need not be obtained prior to




              shipment.









                   The commenter objected to the proposal in that it, in the




              commenter's opinion, does not carry out the mandate of §3017.




              The commenter also believed that EPA's definition of "transit




              country" establishes bad policy.  The commenter asserted that




              EPA justifies not including transit countries in the definition




              of "receiving country" because §3017(c)(6) requires that the




              notification to.EPA to contain "the name and address of the




              ultimate treatment, storage, or disposal facility"  (51 FR




              8746).  The commenter questioned EPA's claim that there is




              Congressional intent to minimize regulatory burdens on exporters




              and on EPA which provides justification for its decision.

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                     -2-
     Rather than focusing on the "ultimate" TSDF in requiring




notification, as EPA has proposed, the comraenter believed that




Congress focused on the actual acts of treatment, storage, and




disposal.  See RCRA §§3017(c)(5) and (6).  Thus, when an




exported waste will be treated, stored, or disposed of in a




foreign nation, the statute requires that the nation in which




such treatment, storage or disposal will take place be notified




and give its consent.








     Two strong public policy reasons argue against the proposal




to require only the ultimate receiving country's consent.




First, the approach would allow even very long-term "storage"




and "treatment" in a country without its consent.  This is an




invitation to unscrupulous exporters and foreign intermediate




"treatment" or "storage" facilities to evade the export consent




requirement with sham long-term treatment and storage.  In




addition, by "laundering" the waste through one or more




intermediate countries, unscrupulous exporters or intermediaries




might effectively evade the notice and consent requirements.








In addition, the commenter claimed, as stated above, that the




proposal is bad foreign policy.  While the transit countries




must be notified under the proposal, EPA's exclusion of transit




countries from the definition of "receiving country" apparently




has the effect of completely stripping the United States of the




authority to prohibit the export of the waste to transit




countries.   This means that even if a sham treatment or storage

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                                   -3-
              facility was suspected in a transit country,  and the transit




              country asked EPA or the State Department to  prohibit the




              export, EPA would be helpless to stop the export, assuming that




              the "ultimate" destination of the waste had given its consent to




              receiving the shipment.









                   The commenter recommended that EPA define "receiving




              country" as all transit  countries and the country ultimately




              receiving the waste.  The commenter stated that under EPA's




              proposal, it is not clear which country is the "receiving




              country" if a hazardous  waste is treated and  rendered




              non-hazardous, and then  transported to a third country for




              ultimate disposal.  In recognition of the realities of




              international commerce,  the existing regulatory provision




              exempting from the definition of storage transporters who hold




              waste for less than ten  days at a site (40 CFR 265.l(c)(12))




              could be used to allow such short-term storage during transit.




              Notification of the transit country, however, still should be




              required in such instances.
NRDC:              The commenter noted that although  RCRA does not define the




              term "receiving country," the statute also does not appear to




              confine the term to only one receiving country.  The Senate




              Report, for instance, refers at one point to "each receiving




              country" when describing the international agreement with "the




              receiving country" authorized by §3017 (f).  (S. Rept. No.

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                     -4-
98-284, 98th Cong., 1st Sess.  48 (1983)).   Senator Mitchell,




sponsor of the export notification provision contained in the




Senate bill (S.757) described the requirement for consent of the




"receiving country" using the singular and plural




interchangeably:









     The section (§3017) is based on the belief that




     foreign nations which receive U.S. hazardous wastes




     should give their consent before the shipments occur.




     At the present time, only an annual notice is provided




     to receiving countries prior to the initial shipment.




     This notice does not give the receiving nation any




     indication of the quantity of the waste proposed for




     export, or of the frequency of shipments.  (Cong. Rec.




     §9152 (July 25, 1984).)








Thus, it appears that the term "receiving country" refers to all




countries that receive and handle the waste shipment following




export from the U.S.








Other portions of legislative history were cited by this




commenter in support of its position.  This commenter also urged




that the risks associated with transportation can be as




substantial as those in which long-term storage occurs and




claimed that its position was consistent with certain




international agreements.

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                                   -5-
RESPONSE:          EPA's response to these comments is contained in the




              preamble to the final rule.   In addition, EPA notes that where a




              waste is treated and rendered non-hazardous in one country, then




              disposed of in another, there does not appear to be an export of




              hazardous waste to the last  country.
B.   "Receiving Country" Should Include Only the Country of Ultimate




     Destination









Cadence:           EPA indicated that it could have defined "receiving




              country" to include not only a country where the waste will
           /•



              ultimately be treated, disposed, or recycled, but also countries




              through which waste may be shipped (51 FR 8746).  The commenter




              concurred with EPA's initial reasoning that this would not




              reflect Congressional intent, and encouraged EPA to adhere to




              its proposal in this regard.
Alto-Tronics:       The commenter felt that "receiving country" should be the




              country of "ultimate" destination.  In the opinion of the




              commenter, the entire focus of current regulations shows that




              the primary concern is where the waste ends up, not the route it




              travels.









RESPONSE:          EPA's response to these comments is contained in the




              preamble to the final rule.

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                                   -6-
                          2.  NATURE OF THE INDUSTRY
A.  Broadening the Definition of "Exporter"
CA




Legislator:
     This commenter preferred the alternative definition of




"exporter," i.e., "any person who intends to export a hazardous




waste."  The inclusion of all parties involved in the export --




the generator, transporter, and/or any export broker -- is




necessary to establish responsibility during the export




process.  Investigations in California established that




generators were misled by export brokers and transporters who




alleged that hazardous waste was being properly disposed of in




Mexico at licensed facilities.  The truth revealed that




hazardous waste was shipped to dump sites that were unlicensed




under Mexican law located on farmland in Tecate, Mexico.
Natl.              The commenter requested that EPA adopt the alternative --




Wildlife:     apparently tentatively rejected in the pre-proposal stage -- of




              defining "exporter" as any person who intends to export a




              hazardous waste, including all persons meeting the definition of




              generator, as well as transporters, brokers and other




              intermediaries.

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                                   -7-
                   The commenter noted that this wholesale exemption of




              "non-generators" by EPA runs contrary to the statute and




              Congress1 expressed desires.  In addition, EPA's exemption of




              brokers, transporters,  and others engaged in waste export from




              §3017 runs contrary to past EPA RCRA policy.  If each of these




              parties is liable for violations, each will have the incentive




              to ensure that the waste is properly manifested and to ensure




              compliance with the other export requirements.
RESPONSE:          EPA agrees in part with these commenters and has modified




              the final rule as discussed in the preamble to the final rule.




              In addition, EPA notes that Congress left to EPA the authority




              to define who "intends" to. export a hazardous waste and to




              allocate responsibilities among parties involved to ensure that




              exports do not take place in the absence of notification and




              consent, to ensure that the consent accompanies the hazardous




              waste and that the shipment conforms thereto.  In fact, the




              statute itself is unclear on who must take on various




              responsibilities.  The statutory language indicates that "no




              person" shall export unless certain requirements are met.  It is




              "such person" that must provide notification whereas no




              particular person is specified as being required to ensure that




              the consent accompanies the waste.  These may be two separate




              parties, a generator and a transporter, engaged in very




              different activities.  It is questionable whether Congress

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                     -8-
intended each of these parties to be responsible for separate




and distinct activities undertaken by the other.









     In view of Congressional intent to accomplish the purposes




of section 3017 with the minimum burdens on U.S. generators and




EPA, Congress could not have intended that several persons




provide notification for the same shipment.  This would




represent needless duplication.  In addition, it is doubtful




that Congress intended to place burdens on transporters




transporting hazardous,wastes for export where similar




requirements are not imposed domestically.  For example, it is




doubtful that Congress intended to require a transporter to test




a waste to verify that it is the waste consented to where




transporters are not required domestically under RCRA to test a




waste to ensure that it is consistent with the manifest.  Nor is




the means EPA has chosen to supplement section 3017 contrary to




past RCRA policy.  The situation here is different from that




where several persons meet the definition of generator since in




that situation, no one party stood out as the predominant




party.  In the instant case, it is the person initiating the




manifest designating a foreign TSD and any broker involved which




appear to stand out as the predominant party as opposed to a




mere transporter.  Moreover,.as a general matter, EPA has




divided up the responsibilities of generators and transporters




under RCRA.

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                                   -9-
              B.   Manifest Preparation and Definition of "Exporter"
Tricil:
     The commenter stated that the definition of "exporter" as




the person who is required to prepare a manifest would be




clearer if defined as the person or company required to




originate a manifest.  "Prepare" may be interpreted as the




physical act of filling out the manifest form not necessarily




directly involving an individual with decision making




authority.  The commenter supported the proposal that the




"exporter" should be defined as the person or company required




to originate (i.e., be responsible for the content of) a




manifest.
ICWM:
     The commenter supported the concept that the "exporter"




should be the generator of the hazardous waste shipment, but




felt that the proposed rule could be confusing as written.  The




rule defines "exporter" as the person required to prepare a




manifest.  One could make an erroneous interpretation of this




statement and conclude that "the person preparing a manifest" is




actually that person completing the document.  Such a person may




not be part of the decision making process for hazardous waste




management within a company.  The commenter suggested that the




definition be amended to read "... a person or company required




by law to originate a manifest (e.g., the person or company




responsible for the content of the manifest).  Within the United

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                                   -10-
              States, this definition is well understood and consistent with




              the RCRA regulations on generator responsibility.
RESPONSE:          EPA has addressed these comments in the preamble to the




              final rule.
C.  Transporter Responsibilities
Merchant           The commenter stated that the export requirements for




Shipping:     transporters proposed in Part 263 are acceptable to vessel




              operators insofar as the manifest and attendant documents are




              the responsibility of the generator to complete.  A transporter




              cannot be held liable for the accuracy of the documents.
RESPONSE:          As discussed in the preamble to the final rule,




              transporters who merely transport hazardous waste for export and




              do not also take on the role of a broker nor are required to




              initiate the manifest for such waste pursuant to 40 CFR




              §263.10(c) are subject to the requirements of Part 263 regarding




              the transportation of hazardous waste for export.  Thus,




              essentially, a transporter may not accept a hazardous waste for




              export unless it is accompanied by an Acknowledgement of




              Consent.  The transporter must also ensure that: (1) such

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                                   -11-
              consent accompanies the waste,  (2)  must provide a copy of the

              manifest to the customs official at the point the waste leaves

              the United States, (3) return a copy of the manifest to the

              generator indicating the date the waste left the United States,

              and (4) deliver the waste to the designated facility or,  if it

              cannot be so delivered, contact the generator and revise the

              manifest accordingly.  A transporter is not required, for

              example, to test a waste to ensure that waste accepted is

              consistent with the consent or to provide notification to EPA.

              The final regulation, however,  does impose on transporters a

              requirement not to accept a shipment of hazardous waste for

              exports if they know it does not conform to the EPA

              Acknowledgment of Consent.  Regarding liabilities, transporters

              are a type of "exporter" and are subject to criminal actions

              under §3008 for knowingly transporting a hazardous waste without

              the consent of the receiving country as well as appropriate

              civil actions for violations of applicable regulatory

              requirements.
D.  Other Comments
ARCO Alaska:       The commenter currently transports quantities of hazardous

              waste from Alaska to Chicago by way of Canada.  The firm stated
              f
              that, because the U.S. cannot be considered a foreign receiving
                                       \
              country, Canada cannot be considered a transit country.  The

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                                   -12-
              commenter stated that, for this reason, it should not be subject




              to any special notification requirements to Canada as a transit




              country under the proposed rule.
RESPONSE:          EPA did not intend by defining "transit country" in the




              proposal as the country through which a hazardous waste passes




              en route to a receiving country to exclude transit




              countries such as Canada in the example noted by the commenter.




              This phrase was used simply to denote short-term storage that




              might occur en route.  Accordingly, notification to Canada




              would be required under the scenario presented but not




              consent, since mere transportation is involved.  There is simply




              no reason to treat this type of "transit" country differently




              from any other type and this is a proper exercise of EPA's




              authority under Section 3017(h).
MN Pollution       The commenter disagreed with the statement in the preamble




Control:      that "there may be limits to an exporter's knowledge of the




              ultimate destination of the waste."  The commenter added that




              since an exporter is required to complete a manifest, he should




              be required to know how the waste is being managed when it




              leaves this country.

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                                   -13-
RESPONSE:          Following the statement quoted above, the preamble to the




              proposed rule stated that "if the exporter does not know and




              cannot reasonably ascertain the country of ultimate destination,




              the receiving country would be the last country to which the




              waste will be sent that is known to the exporter."  EPA agrees




              that since an exporter is required to prepare a manifest, he




              should know where the waste is going.  An exporter will know at




              least where he plans to send the waste and how it will be




              managed and must provide this information.  The preamble




              explanation in the proposal was simply included to indicate that




              EPA was not proposing to require an exporter to provide




              information about further activities by a foreign consignee,




              over which the exporter has no control.  A foreign consignee may




              decide on its own initiative to further export portions of a




              hazardous waste.  Such action is beyond the scope of the United




              States' responsibilities under §3017.  Even though EPA has




              changed the definition of receiving country in the final rule,




              an equivalent "knowledge" interpretation is retained.
Cadence:           In discussing the definition of "exporter" in its proposal




              EPA often spoke in terms of "the generator."  The commenter




              understood that EPA meant, in the context of the commenter's




              recycling process, the recycler who arranges for the shipment of




              the processed hazardous waste fuels -- and not each of the




              hundreds (or perhaps thousands) of industrial and manufacturing




              generators who initially send waste to the recycler.

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                                   -14-
                   Because of the obviously disruptive effects on recycling if




              all such "initial" generators were considered "exporters" under




              the proposed rule, the commenter said it would appreciate EPA




              clarifying this point explicitly in its final rule, or at least




              the preamble.
RESPONSE:          As EPA determined in an earlier rulemaking, generators of




              hazardous wastes that are destined to be used as or incorporated




              into a hazardous waste fuel must comply with the Part 262




              generator standards, including the manifest requirements of




              Subpart B (see 50 FR 49204 (November 29, 1985)).  The manifests




              that these generators originate, however, will not generally




              specify a foreign treatment, storage, or disposal facility




              unless the generator markets directly to a foreign burner or




              ships to a foreign producer of hazardous waste fuels.  If a




              generator ships its wastes to a domestic producer of hazardous




              waste fuels, the manifest will specify that domestic producer as




              the "designated facility."  As a result, the generator will not




              qualify as a "primary exporter" (i.e., a person who is required




              to originate the manifest for a shipment of hazardous waste to a




              foreign treatment, storage, or disposal facility).








                   If a fuel producer subsequently markets the fuel to a




              foreign burner, the producer will be required to originate a




              manifest specifying the foreign burner as the designated




              facility (see 50 FR 49204).  In this way, the fuel producer,

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                                   -15-
              rather than the "initial" generator, will qualify as the




              "primary exporter" subject to notification and approval




              requirements under Subpart E.
Tricil:
     The commenter stated that the export industry should not be




perceived as different from the domestic industry and each




should be subject to the same rigorous rules.  Exporting




companies should not be subject to exceedingly more stringent




rules that would impair their ability to compete in the




marketplace as long as the service being offered is protective




of the environment and acceptable to the receiving country.
                   The commenter acknowledged that notification and




              manifesting of any waste that is to cross an international




              border is necessary so that the receiving country is aware of




              the activity.  However, the commenter added that if the




              receiving country is to be notified about receipt of a given




              waste, the U.S. should regulate that waste and subject it to the




              manifest requirement within its own jurisdiction.
Environment        The commenter said that it seemed reasonable to require




Canada:       that 40 CFR requirements apply equally to exports and domestic




              shipments of hazardous waste.

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                                   -16-
RESPONSE:          Under EPA's definition of "exporter," the regulations




              governing exports are applicable to exports of hazardous waste




              initiated by persons required to originate a manifest under 40




              CFR Part 262, Subpart B or equivalent provisions in any




              authorized State program.  Thus, exports of any hazardous wastes




              that are exempt from these manifest requirements (except spent




              industrial ethyl alcohol exported for recycling) are not subject




              to the export requirements.  EPA's rationale for this decision




              is set forth in the preamble to the final rule.
Natl.              The commenter urged that the definition of exporter not be




Wildlife:     tied to the manifesting requirements; thus, even those exports




              that are exempt from manifesting requirements must be liable for




              compliance with export requirements.  This would include all




              exports of any hazardous waste for which manifests are not




              required, including certain wastes that are recycled.  Congress




              was clear in requiring that export by "any person" of "any




              hazardous waste identified or listed" under RCRA must comply.




              The commenter cited Congressional intent to assure vigorous and




              meaningful enforcement of the export provision and urged EPA not




              to attempt to second guess or subvert Congressional intent on




              this issue.
RESPONSE:          EPA's response to this comment is contained in the preamble




              to the final rule.

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                                   -17-
             3.  EXEMPTIONS OF WASTES/RECYCLING AND WASTE SAMPLES
A.  Used, Reused, Reclaimed, and Recycled Wastes
i.  Comments Favoring the Proposal that Wastes Exempt from Manifest Require-




    ments Should Also be Exempt from Subpart E
AT&T:              The commenter recommended that wastes that are presently




              exempted from manifesting requirements also should be exempted




              from Subpart E export requirements.  This exemption would be




              particularly important for certain reused or recycled wastes.




              Some foreign countries seem to be prolific users of secondary




              materials in place of, or as a supplement to, virgin raw




              materials.  However, the economics of providing secondary




              materials to foreign users are often marginal due, in part, to




              high transportation costs.  Therefore, additional administrative




              costs created, by regulatory requirements could make recycling or




              reuse of secondary materials uneconomical.
Inst. of           The commenter opposed application of the export regulations




Scrap Iron:   to secondary materials that are not regulated when recycled in




              the United States.  The commenter noted that, if finalized as




              proposed, the export regulations would not affect any

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                                   -18-
              domestically exempted materials and did not see any legal basis




              for export regulations more stringent then domestic regulations.









                   The commenter asserted that, if the exemption is not




              maintained, scrap metal producers, who often deal on the spot




              market, will be hurt by the 60-day advance notification




              requirement.  The commenter claimed further that the 24-month




              coverage of notification would do little to alleviate this




              problem.
RESPONSE:          EPA acknowledges the commenters'  support for the Agency's




              proposal to exempt from the Subpart E export requirements wastes




              that are presently exempt from manifest requirements.  The.final




              rule continues this exemption except with respect to spent




              industrial ethyl alcohol for the reasons set forth in the




              preamble to the final rule.  In addition, EPA notes that it




              agrees with the point made by the Institute of Scrap Iron that




              Congress intended general parity between domestic wastes and




              exported wastes.  Moreover, EPA agrees with this commenter's




              further point that Congress intended to close a potential




              loophole whereby domestic requirements for hazardous waste




              management could be circumvented by exporting the material and




              that where there are essentially no requirements to be




              circumvented through exporting a material, §3017 should be




              inapplicable.

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                                   -19-
ii.  The Requirements for Recycled Wastes Should be Reduced or Eliminated
NARI:               The commenter read the notice of proposed rulemaking to




              state that recycled metals which are already exempt from the




              manifest requirements of 40 CFR Part 262, Subpart B should be




              exempt from EPA's proposed export regulations under Section 3017




              (see 51 FR Vol. 49, pp 747, 48). This commenter agreed that




              EPA's conclusion is totally sound and completely in accord with




              the governing statutes as enacted by Congress.  However, this




              commenter asserted that EPA should fashion a broader exemption




              to cover all recycling of all metal bearing materials, e.g.,




              recyclable materials used for precious metal recovery.  In lieu




              thereof, exporters should provide EPA with a certification or




              other assurance that the waste would be recycled.








                   The commenter was of the opinion that it is clear, that




              section 3017 was not aimed at regulating or interfering with the




              export of recycled metals or metal bearing materials from the




              United States to foreign nations solely for purposes of




              beneficial recycling and reuse.  Nowhere in section 3017 is




              there any reference to exports for purposes of recycling or




              "resource recovery."  And, nowhere in the statute is there any




              indication that Congress intended to require exporters to obtain




              "written consent" from each foreign nation to which they export




              recycled metals or metal bearing materials before export




              transactions can proceed.

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                     -20-
     Th e commenter believed that both §3017 itself and its




legislative history make it abundantly clear that HSWA was




enacted to regulate exports in cases where hazardous waste is




shipped from the United States so it can be dumped or stored in




a foreign nation, possibly without that nation's knowledge or




consent.  Nothing in the statute itself or its legislative




history suggests that Congress intended to regulate, prevent, or




impede exports of recyclable metals, or to make it impossible,




difficult, or more costly for customers in foreign nations to




continue to obtain those valuable recyclable commodities from




the United States.  In this instance, therefore, the commenter




submitted that EPA should apply the law as Congress intended




it:  dangerous hazardous wastes exported solely for disposal,




storage, or waste treatment should be regulated as proposed, but




metal-bearing materials exported exclusively for prompt,




environmentally-sound recycling should be exempt from regulation.








     The commenter stated that it would be absolutely devastating




for EPA unnecessarily to superimpose its new hazardous waste




regulations on any of the recycling industry's metal exports




under §3017 for the following reasons, among others:








     1.   Prices paid for recycled metals in international trade




          are volatile.  They simply cannot be suspended for




          export transactions that must await foreign nations'




          written consent procedures.

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                                   -21-
                   2.    Once recycled metals are labeled "hazardous waste" for




                        export purposes,  many foreign governments may well




                        prohibit their importation, or impose importation




                        charges on their entry that will simply destroy




                        long-standing import-export relationships.   This will




                        occur almost automatically, albeit the metals are




                        imported for beneficial recycling and reuse, not




                        disposal, storage or waste treatment.








                   3.    Recycled metals exported from the United States must




                        compete in foreign markets with recycled metals




                        exported by foreign nations to the same foreign




                        markets.  If EPA requires that U.S. recycled metal




                        exports be stigmatized as "hazardous waste," then the




                        U.S. goods enter the market with a stigma not applied




                        to the competing goods from other nations.




                        Indubitably, this will have numerous adverse impacts,




                        the most important of which will be the prices foreign




                        buyers will agree to pay for stigmatized U.S. metals




                        and those sold by other nations.
Chevron:           The commenter said that hazardous waste that is used,




              reused, recycled, or reclaimed should be exempt from the




              proposed notification and consent procedures.  The time needed




              to notify and get' consent of the importing country will clearly

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                                   -22-
              impede exports of these kinds of materials and,  in some cases,

              may preclude export due to schedule commitments.



                   In addition, the commenter feared that the stigma attached

              to "hazardous waste" may cause some facilities to turn away

              otherwise valuable material.   Loss of a recycling outlet means

              that the material will have to be disposed of in a landfill.

              This is counter to the RCRA goals of promoting recycling
                                                                   \
              activities and reducing the landfilling of hazardous wastes.
CMA:               The commenter believed that hazardous waste that is

              beneficially used, reused, recycled,  or reclaimed should be

              exempt from the proposed notification,  consent,  and manifest

              procedures.  EPA's Redefinition of Solid  Waste  (50 FR 614

              (January 4, 1985)) and recently promulgated Hazardous Waste Fuel

              regulations (50 FR 49164 (November 29,  1985)) have greatly

              expanded the universe of materials subject to regulation as

              hazardous waste.  Some of these wastes, namely those that are

              beneficially used, reused, recycled,  or reclaimed, should not be

              subject to the lengthy notification,  consent, and manifest

              procedures.  The commenter believed the stigma and perhaps undue

              .alarm in the foreign country of a foreign facility importing

              hazardous waste may result in the discontinuance of legitimate

              recycling activities, or at best depress the price of the

              material to a point where continued U.S. export  no longer
                                                                       \
              becomes a viable option.  This commenter suggested that, in lieu

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                                   -23-
              of §3017 requirements, exporters should provide EPA with a




              biennial certified report covering these exports.
ARCO:
     The commenter requested exemptions from consent and




notification procedures for materials that are exported for




beneficial use, recycling, or reclamation.  Since the proposed




rulemaking did not include a specific exemption for hazardous




waste that is beneficially used, reused, recycled, or reclaimed,




legitimate shipments of by-product hydrocarbons used for fuel or




fuel blends that are exported to overseas industrial facilities




would be subject to the lengthy notification, consent, and




manifest procedures.  The commenter feared that the stigma, and




perhaps undue alarm in the foreign country, that a facility is




receiving imported hazardous waste, may result in the




discontinuance of legitimate recycle activities, or at best




depress the price of the material to a point where continued




export is no longer a viable option.
Cadence:
     The commenter suggested that if EPA makes its system more




burdensome by requiring a copy of the manifest at the border,




broadening the definition of receiving country to include all




countries through which the waste passes or by creating a




notification form, it should consider a system of regulation




that distinguishes between traditional waste management




practices and the type of regularized, consistent patterns of

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                                   -24-
              beneficial recycling that the commenter and others may engage




              in..  Whatever merit there may be to imposing more stringent




              requirements on traditional waste disposal practices, there is




              no merit to adding unnecessary burdens on the beneficial




              recycling of hazardous waste fuels.  To discourage such




              practices would be environmentally counterproductive.
Border             In the preamble discussion of the definition of "exporter,"




Steel:        EPA proposed to exempt from Subpart E all generators not




              currently required to prepare a manifest.  The commenter




              supported the proposed exemption, but also questioned its




              narrowness.  According to the commenter, any waste managed for




              beneficial recycling or recovery is likely to be handled in a




              secure manner because the recycler/reclaimer has an economic




              incentive to ensure that losses are minimized.  Requiring




              manifesting, recordkeeping, prior consent, and notification




              would place undue paperwork burdens upon generators attempting




              to follow the spirit of RCRA.








                   The commenter emphasized that wastes destined for recycling




              serve as the reclaimer's "raw materials."  Since raw materials




              are generally not regulated under RCRA, the commenter could not




              understand why recyclable materials should be regulated under




              the Act.

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                                   -25-
RESPONSE:          EPA has responded generally to these comments in the




              preamble to the final rule.   Most claims made regarding why




              materials for recycling should not be regulated have been




              addressed in discussing the regulation of such materials




              domestically.  See 50 FR 614 (January 4, 1985); 50 FR 49164




              (November 29, 1985); see also 50 FR 1701 (January 11, 1985);




              48 FR 14473 (April 4, 1983).  As EPA has explained in the




              preamble to the final rule,  §3017 requirements are applicable to




              those wastes manifested domestically (plus spent industrial




              ethyl alcohol exported for recycling).









                   Regarding Cadence's comment, EPA believes that the




              additional export requirement in the final rule (requiring a




              manifest to be dropped off at the border) is not overly




              burdensome and believes it necessary for enforcement purposes.




              EPA sees no reason, therefore, why it should not also apply to




              hazardous wastes for recycling which are subject to the other




              export requirements.









                   EPA also does not believe that some alternative




              verification submitted to EPA to the effect that these materials




              will be or were recycled is adequate since this provides no




              advance notice to a foreign country.  Had Congress wished to




              exempt such activities from §3017, EPA believes that it would




              have done so explicitly in view of EPA's then-existing




              definition of "treatment" and in view of Congressional awareness

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                     -26-
of the issue of the regulation of recycling as evidenced by its




enactment of amended §3001(d)(2).









     EPA notes that there is no explicit legislative history




indicating that Congress intended to exempt all materials




exported for recycling from §3017.  At most, Congress indicated




that it was not placing an outright ban on exports because




there were certain legitimate reasons for exporting including




recycling; not that §3017 mechanisms did not apply.  In this




respect, Representative Mikulski stated:








          This amendment does not mandate an outright




     ban on such shipments.   I recognize the fact that




     there are several legitimate reasons for




     exporting hazardous wastes, such as for




     scientific testing, reprocessing and recycling.




     My amendment is not aimed at these shipments.








          The focus of my amendment is those wastes




     which are exported to avoid the stringent and




     more expensive requirements which govern the.




     disposal of hazardous wastes in this country.




     129 Cong. Rec. H 8163 (daily ed. October 6, 1983).








     The "focus" of §3017 was to ensure that illegitimate or




improper disposal, treatment (including regulated recycling or




storage) activities are prohibited.  The notification and

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                                   -27-
              consent requirements allow action to be taken to prohibit these




              activities.  Where legitimate recycling activities are involved,




              consent would be appropriate.  The intent of §3017 was to




              provide a means to catch improper activities and allow




              appropriate ones to proceed.  This mechanism is therefore




              important to ensure that appropriate activities, including




              recycling, will be undertaken where EPA has determined that




              materials for recycling should be manifested domestically.




              Thus, a mechanism for ensuring appropriate actions are involved




              is available both for wastes handled domestically as well as




              those exported.  In fact, in EPA's view, the statement quoted




              above indicates that Congress did not intend to exempt all  .




              hazardous wastes for recycling from §3017.  Moreover, were EPA




              to exempt all wastes from recycling, a large loophole would be




              created encouraging sham recycling activities in order to avoid




              notification and consent.
CMA:               The commenter stated that, although it is appropriate that




              hazardous waste materials legitimately recycled or reused should




              be exempt from EPA's notification procedures, any total




              exemption might be viewed as a wholesale bypassing of the




              regulatory program.  The commenter, therefore, proposed that




              exporters provide EPA with a biannual certified report covering




              such exported waste volumes, the receiving country, and the




              recycling, reuse, or reclamation end use that is actually




              employed.  This report information, with appropriate enforcement

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                                   -28-
              provisions, would provide EPA with a tool to adequately control




              these materials.
RESPONSE:          For the reasons discussed in the previous response and in




              the preamble to the final rule, EPA does not believe that




              recycled waste should be treated differently when exported than




              when managed domestically.  EPA disagrees with the commenters




              that a biennial report would be an adequate substitute for the




              notification requirements in the final rule.  The final rule




              provides a receiving country with an early opportunity to




              consent or object to the exported hazardous waste.  This is not




              possible under the system proposed by the commenter.
iii.  Hazardous Secondary Materials Exported for Recycling Should be Subject




      to Subpart E, Even if They are Not Subject to Manifest Requirements









Co. San            The commenter felt that the legal definition of a substance




Diego:        as a waste or a reusable or recyclable material is the most




              pressing issue in the regulation of exports.  By considering a




              waste to be in one of these categories, a U.S. generator can




              export the material, without notification or manifesting, to a




              Mexican facility where, because of the laxness of the




              regulations and their enforcement, it may be put to an




              inappropriate use.

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                                   -29-
                   Th e commenter added that the hazardous waste management




              philosophy in this country has been clearly set:   full treatment




              of wastes wherever possible,  strict regulation of the air




              emissions from all facilities and no further land disposal.




              These practices, which have been deemed to be sound hazardous




              waste management concepts, should apply regardless of




              international boundaries.   Allowing hazardous wastes to be




              exported without a complete understanding of their final




              disposition is a disservice to the receiving country.
RESPONSE:          Most wastes exported for recycling will be subject to §3017




              and therefore regulated.   A relatively small number, however,




              will not.  As noted previously, EPA does not believe that




              Congress intended for secondary materials that are exempt from




              the domestic hazardous waste manifest requirement to be subject




              to the full set of requirements under §3017.  Nevertheless, the




              Agency is concerned about the possibility that hazardous waste




              exporters might try to circumvent Subtitle C regulations by




              falsely claiming that the exported materials will be handled in




              a manner taking them outside the scope of "solid waste" or




              inside the scope of one of the recycling exemptions under 40 CFR




              §261.6.  EPA is aware of evidence that certain hazardous wastes




              that have been exported ostensibly for recycling have in fact




              undergone improper disposal.  For example, a 41-count indictment




              charging conspiracy, mail fraud, and utilization of false




              statements was returned on April 17, 1986, by a federal grand

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                     -30-
jury sitting in the Southern District of California against four




officers and owners of two corporations that were allegedly,




among other things, claiming to be recycling waste when in fact




they knew it was being illegally disposed of in Mexico.









     Two safeguards designed to protect against such false




claims by hazardous waste exporters exist.  First the burden of




proof is upon the exporter of hazardous secondary materials to




show that such materials are destined to be recycled in a manner




bringing them outside the scope of "solid waste" (50 FR 642 and




40 CFR §261.2(f)).  Although there is no formal recordkeeping




requirement under §261.2(f), exporters "must keep whatever




records or other means of substantiating their claims that they




are not managing a solid waste because of the way the material




is to be recycled"  (50 FR 642-643).  This might include, for




example, a description of the foreign recycling facility,




evidence that the recycling facility is licensed or otherwise




qualified by the foreign jurisdiction, and a copy of the




contract indicating the terms of the transaction.  (See also




United States v. Hayes International Corp., 	 F.2d 	,




No. 84-7796 (llth Cir. Apr. 21, 1986).  The court held that in




prosecution under §3008(d)(l) of RCRA, for knowing




transportation of waste to an unpermitted facility, where the




defendant claimed that it believed hazardous waste was being




recycled, the defendant must be able to demonstrate its "good




faith belief.")

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                                   -31-
                   Secondly, with the implementation of these regulations, the




              United States will also be able to criminally prosecute persons




              exporting hazardous waste who engage in sham recycling




              activities (see §3008(d)(6)).   The basis for such actions would




              be, for example, the lack of consent by the receiving country




              because it either received no notification of intent to export




              or gave a "consent" based upon the fraudulent misrepresentation




              in the notification that the hazardous waste would be recycled




              in a particular manner when, in fact, it was to be handled in




              another manner (e.g.,  land disposal).









                   EPA notes that this commenter suggested no changes in the




              proposed regulations which would resolve its concerns.   To the




              extent this commenter is suggesting that EPA actually regulate




              treatment, storage, and disposal in a foreign country,  this




              commenter is completely overlooking concepts of extra-




              territoriality and the sovereignty of foreign nations.   Perhaps




              the best way to deal with some of this commenter's concerns .




              would be through a bilateral agreement.
iv.  Comments Concerning Individual Wastes
Giordano:          The commenter expressed concern for the U.S. recycled




              battery lead market and inquired into how the proposed




              regulations would affect it.  In particular, the commenter

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                                   -32-
              questioned whether the proposed regulations would change the




              requirements for handling and exporting the recycled material




              and warned that any impediment to such exportation could




              severely harm the environment.
RESPONSE:          EPA wishes to assure the commenter that the final rule will




              not directly affect spent lead-acid batteries destined for




              reclamation.  Such batteries are currently exempt from




              manifesting requirements under Part 262, Subpart B.   As a




              result, they will also be exempt from the export rules of




              Subpart E.
JM:                This commenter stated that the solutions that it deals with




              that may be corrosive are rarely exported.  Other raw materials




              may be classified as hazardous wastes because they contain




              soluable silver, other soluable metals, or because listed




              solvents were used in the manufacturing process that generated




              the spent catalysts.  However, in the commenter's case, the




              listed solvents are pyrometallurgically destroyed before




              export.  These materials present no hazard to the receiving




              country; they are exported for refining of the precious metals,




              not for waste processing or disposal; they are falsely




              represented as containing listed solvents; and the receiving




              countries do not view these materials as waste.

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                                   -33-
RESPONSE:          These export regulations apply to all hazardous wastes




              subject to manifest requirements in accordance with 40 CFR Part




              262, Subpart B, or equivalent State provisions for the reasons




              set forth in the preamble to the final rule.  In addition, EPA




              notes that if the commenter believes the shipments in question




              merit an exemption from the requirements, he or she may file a




              delisting form in accordance with 40 CFR §260.22 in order to




              have the disputed material deleted from the listing of hazardous




              wastes.
JM:
     The commenter requested that precious metals materials




destined for reclamation be exempt from these export




notification/approval rules, since they fall outside of the




universe of materials intended to be regulated by Congress.
RESPONSE:          EPA has long recognized that precious metal-containing




              hazardous wastes are entitled to special consideration because




              their high intrinsic value acts as a partial safeguard against




              improper management.  Nevertheless, precious metal-containing




              hazardous wastes may pose a threat to human health and the




              environment under certain circumstances.  Consequently, in the




              preamble to the January 4, 1985 Redefinition of Solid Waste, the




              Agency concluded that, while a partial exemption for




              precious-metal containing wastes may be warranted, an exemption

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                                   -34-
              from the manifest requirements of Subpart B is not (50 FR 648




              and 40 CFR §266.70(b)(2)).   EPA believes for similar reasons




              that an exemption from the Subpart E export rules is not




              justified for precious metal-containing wastes.  The final rule,




              therefore, requires exporters of such wastes to comply with the




              full notification and approval regulations.  As EPA explained in




              the preamble to the final rule, notification and consent serve




              similar functions for exports as the manifest serves for




              domestic shipments and therefore manifested wastes are subject




              to §3017.
B.  Waste Samples









ARCO:              The commenter believed that, without an exemption analogous




              to the exemption for the shipment of waste samples in 40 CFR




              261.4(d), EPA's proposal will impose an unintended burden on




              domestic companies that have foreign affiliates and licensees.




              The commenter noted that with the multinational nature of the




              basic chemical industry, technology is often licensed in foreign




              countries.  New facilities, employing U.S. technology, are often




              constructed at plants with existing waste treatment units.




              Samples of residual streams, often characteristic hazardous




              waste, are supplied to the foreign entity from U.S.




              manufacturing units for evaluation of treatment options.




              Shipment of these samples would require notification and consent




              of the receiving country under the proposed EPA rules, since no

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                                   -35-
              "de minimis" exemption is provided.   The commenter believed that




              this is well beyond the Congressional intent of §3017.









                   The commenter added that it is  quite common for licensees




              of the commenter's technology to periodically ship samples of




              process waste, which may be characteristic hazardous waste under




              EPA rules, to the United States for  analysis.  The commenter




              believed that it is impractical to require manifests for these




              small quantities of material, since  analysis, not disposal, is




              the intent of the shipment.
Resources          Currently, and under the rules as proposed, persons not




Conservation: required to prepare a manifest under 40 CFR 262 Subpart B are




              not subject to the Subpart E export requirements.  The commenter




              believed that this approach should be continued, and that in




              addition, exemptions currently available under "Samples," found




              at 40 CFR 261.4(d), should be expressly incorporated into the




              proposed rule.








                   The commenter stated that requiring compliance with the




              Subpart E notification and approval requirements for shipment of




              samples destined for laboratory testing activities would be




              unnecessarily burdensome, and would offer little benefit, as




              there is essentially no risk of significant harm to the




              environment from such activities.  The exemption is already




              conditioned on compliance with certain specific safeguards.

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                                   -36-
              Continuing the exemption for such activities will save the




              regulated community significant costs without sacrificing




              environmental protection, and will save EPA resources for




              addressing areas obviously needing additional regulatory




              attention.









RESPONSE:          Existing §261.4(d) conditionally exempts from Subtitle C




              requirements any sample of solid waste that is collected "for




              the sole purpose of testing to determine its characteristic or




              composition."  Because such samples are not subject to the




              manifest requirements of Part 262, Subpart B, they are exempt




              from the Subpart E hazardous waste export requirements.   EPA




              believes the regulations are clear on this matter and that this




              result is already "expressed."
CMA:               The commenter requested that the exemption for waste




              samples established under 40 CFR 261.4(d) be broadened to




              include samples that are exported for the purpose of determining




              (1) whether the foreign facility will accept the waste stream,




              (2) the treatment, storage, or disposal measures the foreign.




              facility will use, and (3) the price the foreign facility will




              charge for such treatment, storage, or disposal.  In support,




              the commenter noted possible consequences and difficulties if




              such an exemption is not granted.

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                                   -37-
RESPONSE:          The Agency believes that this comment has merit, not only




              in the context of exports, but also for the management of




              samples domestically.   However, the Agency believes that




              creating such an exemption would require further analysis for




              both exports and domestic shipments, and if deemed appropriate,




              proposal for public comment.   The Agency questions what the




              appropriate conditions for such an exemption would be; for




              example, would some quantity limitation be desirable or some




              type of limit on the types of waste to be covered by the




              exemption.   EPA will consider the commenter's request for




              possible further regulatory action.  However, the Agency is not




              at this time expanding the scope of the §261.4(d) sample




              exemption due to the unanswered questions involved.  Therefore,




              unless and until future regulatory action is taken, exports of




              hazardous waste samples beyond the scope of §261.4(d) must




              comply with the requirements of Subpart E.  Alternatively,




              foreign waste management facilities may contract with




              laboratories in the United States to do any of the necessary




              analysis.

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                                   -38-
                 4.  SEPARATE NOTIFICATION FOR EACH SHIPMENT
A.  Comments in Favor of Separate Notification for Each Shipment
NRDC:
     The commenter recommended that EPA require notice for each




individual shipment.  Renotification, which, by definition,




takes place while the prior notice is still "in effect" is, in




the opinion of the commenter, a far less effective mechanism for




encouraging full disclosure; moreover, the receiving country's




ability to stop a shipment is greatly diminished since it must




largely rely on the exporter to inform it about changes in a




waste shipment occurring after initial consent has been given.
CA                 The commenter expressed the view that separate notification




Legislator:   for each shipment would be the ideal.
RESPONSE:          EPA disagrees with these commenters.   Separate notification




              for each shipment would overburden both the industry and the




              Agency, as well as foreign governments.  Thus, EPA will not




              require separate notification for each shipment.  EPA believes




              that requirements governing renotification, as discussed under




              Issue 22, will provide sufficient and timely information to

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                                   -39-
              receiving and transit countries in the event that conditions on




              which the original consent was based are changed materially.
B.   Comments Opposing Separate Notification for Each Shipment
CMA:               The commenter supported EPA's proposal at §262.53 to allow




              a single notification covering shipments occurring over a




              maximum period of 24 months.  Notification for each and every




              shipment of a hazardous waste to the same treatment, storage and




              disposal facility will result in unnecessary paper and lead to




              inefficient utilization of Agency and industry resources.
JM:                The commenter agreed with the Agency that separate




              notification for each shipment is neither necessary nor




              advisable.  They would create a paperwork nightmare and would




              undoubtedly result in delays in export of materials which would




              have substantial financial impact.
Chevron:           The commenter agreed with EPA that separate notification




              should not be required for each shipment of the same waste.

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                                   -40-
Lake               The commenter preferred the blanket notification good for




Carriers:     24 months with no separate notification of each shipment.
Acme:
     The commenter strongly opposed notification for each




shipment.
Natl.              The commenter felt that it was indisputable, given the




Wildlife:     language of §3017(c)(3), that a single notification may cover




              more than one shipment, and that a separate piece of paper is




              not required for each shipment.
RESPONSE:          EPA agrees with these commenters that Congress did not




              intend notification for each shipment, and that such




              notification would create burdens on both the industry and the




              Agency, as well as foreign countries.  As a result, EPA is




              retaining the rule as proposed and separate notification for




              each shipment is not required in the final rule.  EPA notes that




              a single notification may cover a 12-month period only.  For




              discussion of EPA's decision to adopt a 12 rather than 24-month




              coverage period, see Issue 5, Notification Period.

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                                   -41-
                  5.  NOTIFICATION PERIOD (24 vs. 12 MONTHS)
A.  Twenty-four-month Notification Period Preferred
Acme:
     The commenter urged EPA to retain a 24-month notification




period, and said that there is no benefit from restricting the




period to 12 months.  Because its waste generation system is




predictable, the commenter claimed it is able to fulfill the




notification requirements for shipment number, date, and




quantity.
Lake               The commenter supported EPA's preference for a 24-month




Carriers:     time period instead of a 12-month time period.
Chevron:           The commenter felt that the notification should be valid




              for at least 24 months.
CMA:
     The commenter supported EPA's proposal to allow a single




notification covering shipments occurring over a maximum period




of 24 months.   Receivers of waste can be made aware of the waste




that will be received and the likely volume by a single




notification covering projected shipments over a two-year

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                                   -42-
              period.  This will provide the receiving country with the




              information it needs to determine whether facilities within its




              borders are prepared to manage the waste.
Cadence:           The commenter opposed any shortening of EPA's 24-month




              proposal period, but believed there should be no renotification




              whatsoever.  If EPA nevertheless requires renotification, the




              two-year period proposed is fully adequate and should not be




              shortened.
RESPONSE:          EPA has determined that a 12-month period is preferable for




              the reasons discussed in the preamble to the final rule.
B.  Twelve-month Notification Period Preferred
Tricil:
     The commenter favored notification to cover a 12-month




period rather than the suggested 24 months, particularly where




multiple shipments are involved and dates of shipment are




difficult to specify.  A 12-month notification period would




reduce the number of renotifications required due to changes in




predicted volume and other causes.

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                                   -43-
ICWM:
     The commenter objected to the proposal that a single




notification could cover a maximum of 24 months when multiple




shipments are involved.  The commenter instead suggested a




12-month notification period for multiple shipments.  This time




period (12 months) would reduce the number of renotifications




required by an exporter, and would allow greater control by the




receiving country over expected volumes and frequency of




shipments crossing the border.  The commenter believed that a




12-month requirement would not impose undue burdens on the




exporter.
Environment




Canada:
     The commenter favored notification covering a 12-month




period rather than 24 months.  Given the commenter's experience




and several comments from Canadian industry, it would improve




the accuracy, particularly of the estimated number and quantity




of shipments identified in a notification.
NRDC:
     The commenter urged that if EPA did not intend to require




separate notifications for each shipment, then the notification




period should be shortened from 24 months to a period not




exceeding 12 months.
Natl.              The commenter believed that no more than one year of




Wildlife:     exports should be allowed to be covered by one notification.

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                                   -44-
              Th e commenter stated several reasons for this belief.  First,




              the one year period corresponds with the §3017(g) annual




              reporting requirement, and would allow those reports to reflect




              accurate and up-to-date information.  Second, in many countries,




              governments and administrators tend to change rapidly, and




              records may be lost or misplaced, or policy changes may be




              made.  Third, the amount and detail of information on the




              effects of hazardous waste on human health and the environment




              is always increasing.  The commenter felt that annual reviews of




              consent would allow reassessment of such new data.
RESPONSE:          EPA generally agrees with these comments and, therefore,




              the final rule establishes a 12-month notification period for




              the reasons set forth in the preamble to the final rule.
C.   Other Comments
CA                 The commenter stated that a 12-month rather than a 24-month




Legislator:   EPA notification period would be more acceptable for reasons of




              projected export accuracy and monitoring.  The commenter,




              however, explained that neither a 12 nor 24-month notification .




              requirement allows for accurate accounts of the incidence or




              quantity of waste being exported.

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                                   -45-
RESPONSE:          EPA notes that, for the reasons specified in the preamble




              to the final rule, it has selected a 12-month notification




              period.  In addition, the copies of the manifest provided at the




              border and in the annual report will provide an accurate




              accounting, to the extent feasible, of the timing of shipments




              and quantity of waste being exported.

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                                   -46-
                   6.  ADDITIONAL NOTIFICATION INFORMATION
Tricil:
     The commenter did not feel that any additional information




should be required to meet Congressional intent.
JM:
     The commenter saw no need for the notification to include




additional information in order to be considered "complete" and




ready for transmission to the Department of State.
RESPONSE:          EPA agrees with the commenter that no additional




            .  notification information is required to adhere to Congressional




              intent.
Natl.              The commenter stated that notification to a potential




Wildlife:     hazardous waste receiving country should include more than




              simply the information proposed by EPA and expressly required by




              §3017.  EPA should use its residual regulatory authority,




              preserved by §3017(h), to require that the receiving country be




              informed, in readable layman's terms and in synopsis fashion,




              why the waste to be exported was listed or found to have




              hazardous characteristics, and to require a layman's summary




              discussion of applicable restrictions under U.S. law to the




              treatment, storage and disposal of the wastes.  This

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                                   -47-
              notification also should be accompanied by an offer from EPA to

              advise the receiving country regarding the risks posed by the

              waste and the proper waste management techniques..  Absent such

              requirements, notification of less sophisticated

              non-industrialized nations likely will be less effective in

              soliciting knowing and intelligent consent.
RESPONSE:          EPA disagrees with the commenter.  EPA believes that the

              final regulation will effectively solicit informed responses

              from receiving countries.  Subsection 262.53(a)(2)(ii) requires

              that the exporter notification, provided to the receiving

              country, include a description of the hazardous waste and the

              EPA hazardous waste number (from 40 CFR 261, Subparts C and D),

              U.S. DOT proper shipping name, hazard class and ID number

              (UN/NA) for each hazardous waste as identified in 49 CFR

              171-177.  Subsection 262.53(d) requires primary exporters to

              furnish EPA with any additional information that a receiving

              country may request in order to respond to notification.

              Therefore, additional information will be made available to any

              receiving country upon request.  These requirements will ensure

              intelligent consent from receiving countries.



                   EPA has limited resources and is unable to provide, for

              every notice, an explanation, on why the exported waste is

              listed as having (or is found to have) hazardous
                                                                       i
              characteristics, "in layman's terms and in synopsis fashion."

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                     -48-
Similarly, inclusion of a layman's summary of applicable




restrictions with every notice would overburden the regulatory




ability of the Agency.

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                                   -49-
               7.  USE OF FORM OR CABLE FOR DOCUMENTING CONSENT
Cadence:           EPA explained that it has tentatively rejected developing a




              "standard form" in place of the cable setting forth the




              receiving country's consent, but solicited comments on whether




              such a form should be developed (51 FR 8750).  In light of the




              additional delay inherent with such a form (cited by EPA) and




              the uselessness such a new form would have, the commenter




              supported EPA's current proposal in this regard.
RESPONSE:          The Agency agrees with the commenter and continues to




              believe that the amount of time required to prepare the form may




              add a few days to the process of notification.  The Agency




              therefore does not intend to develop such a form.

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                                   -50-
                       8.  TREATMENT OF TRANSIT COUNTRY
A.  Definition of "Transit Country"
Stoel:             The commenter felt that the definition of "transit country"

              is too broad to work well with established practices in the

              shipping industry.  With respect to shipments by ocean-going

              vessels, a transporter's ship may dock at various ports on its

              way to the receiving country and may also pass through

              territorial waters of many countries.  Under the definition of

              "transit country," each country into whose ports or territorial

              waters the transporter's ship enters would be a transit

              country.  Entrance into such ports or territorial waters of

              foreign countries is outside the control or knowledge of the

              exporter.  Furthermore, an exporter may use different

              transporters with different routes from one shipment to the

              next.  An exporter giving notice of relatively small shipments

              over an extended period cannot predict with any certainty the

              exact route to be taken by its transporters.  Under the proposed

              rule, many exporters would be left with no alternative but to

              provide EPA with notice specific to every shipment, each notice

              requiring 60 days' lead time.  The additional expense and

              inconvenience of the delays associated with such notice may

              outweigh the benefit to transit countries of knowing a
           \
              particular hazardous waste is passing through its port or

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                                   -51-
              territorial waters, especially when hazardous material is




              regularly passed through those ports and territorial waters




              without any special advance notification.  Therefore, the




              definition of "transit country" should be revised to exclude




              territorial waters and ocean ports.  Alternatively, the notice




              requirement should allow the exporter to describe a range of




              alternative routes and potential transit countries.
RESPONSE:          EPA did not intend to encompass territorial seas through




              which a ship carrying hazardous waste passes or the mere docking




              at ports en route to a receiving country where the waste is




              either not off-loaded or does not enter the customs territory of




              that country.  This appears to be consistent with the term




              "transit country" under both the February 1985 OECD Council




              Decision and Recommendation on the Transfrontier Shipment of




              Hazardous Waste and the new March 1986 Draft Council Decision




              and Recommendation on the exports of hazardous wastes.  In both




              of these documents, transit country is defined as "any country




              ... across which a transfrontier movement ...  takes place or




              is envisaged" [emphasis added].  This language does not appear




              to encompass territorial seas or mere port stops since the




              country is not being traversed.  This is distinguishable from




              ports of entry for land transportation when the country will be




              traversed.

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                     -52-
     In addition, with respect to territorial seas, this




interpretation is consistent with U.S. policy generally




regarding innocent passage through territorial seas.  See




Statement by the President on Ocean Policy, March 10, 1983; 1982




U.K. Convention on the Law of the Sea.









     EPA also is concerned, based on established practices in




the shipping industry, that a requirement for advance




notification by an exporter of all ports at which a ship may




dock (for example, for refueling or to pick up additional cargo




which was not preplanned) would be impossible or extremely




difficult to foresee and could significantly interfere with




transportation by vessels.  Alternatively, if advance




notification for all possible ports at which a vessel may stop




were required, exporters may list many ports in many different




countries to be safe.  As a result, numerous notifications would




be necessary which not only could significantly increase the




burden on EPA and the Department of State, but could result in




notification to foreign countries where the ship may not even be




likely to stop and/or will not stop.  This seems unnecessary.




Lastly, we are concerned that an advance notification




requirement might limit a ship's ability to make an emergency




stop at a port.  If advance notification was required, a ship




making an unforeseen emergency port stop would potentially be




subject to enforcement penalties.  Accordingly, EPA interprets




the phrase "through which a hazardous waste passes" in its




definition of "transit country" not to include territorial seas

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                                   -53-
              or ports at which a vessel stops where the hazardous waste is




              either not off-loaded or does not enter the customs territory of




              that country.
ARCO




Alaska:
     The commenter supported EPA's proposed definition of




"receiving country" as being limited to the foreign country of




ultimate destination of the hazardous waste.  Along these lines,




the commenter agreed with the EPA definition of "transit




country" and the proposal that only notification (not consent)




be made to transit countries.  The commenter believed this was




consistent with Congressional intent to prevent hazardous waste




"dumping" on unsuspecting foreign countries.  Requiring the




consent of both receiving and transit countries would impose a




regulatory burden on U.S. generators as well as overtax the




administrative role of the EPA in handling the various forms in




a timely manner.
RESPONSE:          EPA agrees with the commenter that the consent of transit




              countries is not consistent with the intent of Congress, and




              will therefore not be required under the export requirements.




              However, EPA has decided to alter its definition of "receiving




              country" which impacts on the reach of the term "transit




              country."  See the preamble to the final rule for EPA's




              discussion of this issue.

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                                   -54-
B.  Notification and/or Consent of Transit Country
Environment




Canada:
     The commenter agreed that EPA should forward transit country




responses to the exporter.  The commenter added that it was not




clear what action EPA would take or request that the exporter




take should a transit country provide written objection to a




proposed shipment.
                   In keeping with the OECD principle, the commenter suggested




              that the following statement be included:  "The shipment cannot




              proceed if an objection has been received from any transit




              country and no appropriate alternative route can be found by the




              exporter."
NRDC:
     The commenter recommended that EPA require the prior




consent of transit countries in the final rule.  Because under




the current proposal EPA would inform exporters of any




objections to a shipment raised by notified transit countries,




and expects exporters to act to reroute their shipments,




requiring prior consent would impose no further burden on




exporters.  To the contrary, it would provide them with




certainty prior to export as to whether they can expect their




wastes to be turned away at the border of a transit country, and




would enable them to reroute wastes ahead of time through a




different transit country.  The commenter therefore suggested

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                                   -55-
              that a correct and appropriately broad reading of §3017 would




              require EPA to include transit countries within the scope of the




              requirement for both notice and prior consent.  However, even if




              the Agency were to adopt a contrary position with respect to the




              definition of "receiving country," the commenter urged EPA to




              exercise its authority to require prior consent by transit




              countries pursuant to §3017(h).  At the very least, EPA should




              require exporters to provide documentation along with the




              notification form that demonstrates consent to the shipment by




              all transit countries through which the waste shipment will




              move.  Absent such documentation, a notification would not be




              considered "complete," and the shipment could not therefore




              occur.
RESPONSE:           EPA does not agree with the commenters that the exporter




              needs to obtain prior consent from the transit country.








                   Consistent with a decision of the OECD Council, EPA's rules




              provide notification of the same information regarding waste




              shipments to the transit country as to the receiving country




              (except with respect to confidential business information).  EPA




              believes that the notification provides sufficient information




              to a transit country for it to take actions it deems




              appropriate, including banning the transport of the waste




              shipment through its jurisdiction.

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                                   -56-
                   As discussed in the preamble to the final rule, consent of




              a transit country is not required.  If the transit country




              objects to the entry of the waste, EPA will advise the exporter




              to reroute the shipment.  Exporters should keep in mind,




              moreover, that the transit country may take action to prohibit




              the entry of the waste into that country.   EPA believes that its




              treatment of transit countries is appropriate for the reasons




              set forth in the preamble to the final rule.  In addition, EPA




              notes that it would not be appropriate to require exporters to




              provide documentation that demonstrates the consent of transit




              countries were consent required.  This activity should proceed




              via diplomatic channels and not by private individuals.
Alto-Tronics:       The commenter concurred with the proposal, including EPA




              notification to transit countries.  However, the commenter




              thought it might be advisable to include a provision requiring




              that exporters seek knowledge of and insure compliance with




              transport regulations of such transit countries, allowing,




              however, that such a provision should take into account that the




              exporter may not always have full control of the actual route




              taken by the transporter.
RESPONSE:          EPA acknowledges the commenter's concurrence with the




              proposal, including the notification to transit countries.

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                                   -57-
                   In response to the commenter's suggestion that a provision




              should be included to require that exporters seek knowledge of




              and comply with transport regulations of transit countries, EPA




              notes that transportation of hazardous wastes in a foreign




              country would be subject to such country's laws.  If the transit




              country is concerned that the transportation does not meet its




              own transportation requirements, the country may take actions to




              stop the transport of the waste shipment through its




              jurisdiction or enforcement action for noncompliance with its




              transport laws.  In view of the above, EPA does not believe it




              necessary to include a provision to this effect in its




              regulations.  It is, therefore, in the best interest of the




              exporter to have knowledge of the transit countries' transport




              regulations since he would be.responsible for complying with




              them.
Tricil:            The commenter was pleased to see the reference to OECD




              principles in the preamble to the rule.  This helps put the




              transboundary issue in perspective as a truly international




              issue and not just a European or North American concern.  The




              commenter believed that waste should receive the best treatment




              possible no matter what its country of origin is or where the




              technology is located.  Mechanisms need to be in place to allow




              and promote that opportunity.  The commenter supported




              notification of transit countries with the caution that this




              requirement may have a significant impact on government agencies

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                                   -58-
              that have to process the notices.   For example there may be as




              many as 20 - 30 shipments per day of waste from New York City




              traveling through Ontario to Michigan.
RESPONSE:          EPA acknowledges the support of the commenter and notes




              that the U.S. and Canada are currently developing an




              international agreement, as provided for under §3017(f), that




              will cover transboundary movement of hazardous waste.   In




              addition, the Agency intends to work with the affected




              government agencies to keep them apprised of the rulemaking




              process and implementation schedule so that they may adjust




              their workload projections to accommodate any additional burdens,

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                                   -59-
                     9.  MONITORING THROUGH U.S.  CUSTOMS
A.  Comments Supporting Monitoring through U.S.  Customs
Natl.               The commenter urged EPA to reconsider its tentative




Wildlife:     decision not to require an additional copy of the manifest to




              remain with Customs at the border.   This provision would allow




              EPA to crosscheck compliance with the agreed-upon terms of




              export.  EPA will not know with any degree of certainty whether




              the rules are being violated, or whether the manifests and




              shipments presented to Customs comply with the terms of the




              written consent, if this requirement is not adopted.
CA




Legislator:
      The commenter strongly urged that the EPA reconsider its




decision not to require an additional copy of the manifest which




the transporters would give to a U.S. Customs official at the




border.  The commenter failed to see how the EPA, in view of




recent events in California, can maintain that no evidence




exists that some exporters are in violation of current




notification requirements under §262.50.
Onsgard:            The commenter stated that a copy of the manifest and the




              Acknowledgment of Consent should be left with the U.S. Customs.

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                                   -60-
              In this way, EPA and U.S. Customs could work together to enforce




              the requirements of HSWA.
RESPONSE:           EPA acknowledges the support for monitoring through U.S.




              Customs and agrees with the commenters that the involvement of




              U.S. Customs in monitoring the export of hazardous waste is an




              important tool for ensuring compliance.  Therefore, for the




              reasons provided in the preamble to the final rule, the




              requirement that a manifest be left off at the border has been




              included in the final regulation.
B.  Comments Opposing Monitoring Through U.S. Customs
ICWM:               The commenter supported the concept that a copy of




              acceptance of the waste by the receiving company should




              accompany the transport of hazardous wastes.  However, the




              commenter questioned the need to involve the U.S. Customs in the




              regulatory program.  EPA is suggesting that a copy of the




              manifest and consent for receipt be left with the U.S. Customs




              officials at the border.  This is unnecessary and only increases




              extra paper burdens on Customs officials as well as on




              transporters and exporters.  As long as the transporter can show




              a proper manifest with the appropriate consent agreement, the

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                                   -61-
              commenter did not believe that it is necessary to leave a copy




              of these materials with the Customs official.
Cadence:            The commenter agreed with EPA's original reasoning for not




              requiring a "border monitoring system" in addition to all its




              other enforcement tools (51 FR 8751).  This would require




              additional paperwork and costs while providing for no additional




              health and environmental protection.
Tricil:
      The commenter did not believe that an additional




monitoring system is necessary or of any benefit.  This is




redundant in cases where large numbers of regular shipments take




place and would place significant additional paper burden on




Customs officials while providing minimal additional benefit.
RESPONSE:           EPA has, after consideration, determined that submission




              of the manifest at the border should be required for the reasons




              set forth in the preamble to the final rule.
Lake                The commenter opposed a monitoring system involving U.S.




Carriers:     Customs assistance.  Currently, the commenter's member vessels




              are not required to prepare manifests on their fueling or

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                                   -62-
              transfer of used oil, and the commenter did not advocate




              initiating such a process.
RESPONSE:           First, this commenter is specifically concerned about used




              oil as an operational waste generated on board a vessel destined




              for a foreign country.  Used oil is not a listed hazardous




              waste.  Accordingly, unless it is a characteristic hazardous




              waste, it would not be subject to the export requirements which




              are applicable only to exports of hazardous waste.  EPA notes




              that it has proposed to list used oil as a hazardous waste but




              has not yet issued a final rule on this subject.









                    Second, even assuming these wastes are characteristic




              hazardous wastes, used oil burned for energy recovery is exempt




              from the manifest requirement and therefore would not be subject




              to the export rule.  See 40 CFR §261.6(a)(2)(3), 50 FR 49203




              (November 29, 1985).  Finally, assuming these wastes are




              hazardous and will not be burned for energy recovery, EPA does




              not believe ship operational waste generated en route to a




              foreign country is an "export" within the meaning of §3017.  An




              export commonly involves the movement of cargo from one country




              to another for the purpose of taking that cargo to the other




              country.  These wastes are not cargo but are wastes incidental




              to transportation.  Moreover, the purpose of the trip is not to




              carry these wastes from the United States to a foreign country.




              In this respect, EPA notes that §3017 requires notification by

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                     -63-
an exporter "before such waste is scheduled to leave the United




States."  This requirement appears to contemplate that a waste




exists before leaving the United States.   Since these wastes,




however, are generated after leaving port or the customs




territory of the United States, there is  little, if any, "waste"




being shipped from the United States.  Second, it would be




extremely difficult, if not impossible, to meet the notification




requirement to estimate the quantity of such waste since they




are generated on board during the voyage which may vary in




length, and the types and amounts of generator and engine




lubricant, which may be used en route.   EPA also notes that




its conclusion regarding whether an export is involved under




these circumstances is consistent with both the February 1984




Decision and Recommendation of the OECD Council and the new




March 1986 Draft Decision and Recommendation of the Waste




Management Policy Group of the OECD in the transboundary




shipment of hazardous waste.  Both of these documents exempt




hazardous wastes arising from the normal operation of ships.









      EPA also notes that MARPOL, the Act to Prevent Pollution




from Ships, and Coast Guard regulations may provide some




protection from significant environmental harm from the




discharge of oily wastes into the waters.  For discussion of a




similar question, see the responses to comments by the American




Institute of Merchant Shipping.

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                                   -64-
                             10.  ANNUAL REPORTS
Environment        The commenter agreed that the annual report would be a




Canada:       useful tool for control of exports of hazardous waste.
Envirosure:
     The commenter pointed out that the requirements for annual




reporting are already in place within New York State, and it




would probably mean very little extra effort to break out of




that report a small portion for exported wastes when that




information is already known.  Recordkeeping is already in place




as well and thus is of no great consequence.
RESPONSE:          EPA acknowledges the support of these two commenters on




              this issue.
Tricil:
     The commenter felt that the annual reporting of




international shipments could be provided separately from other




required reports.  The commenter questioned whether or not EPA




could obtain this information from computerized notice records




more easily than from annual reports from exporters.

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                                   -65-
RESPONSE:          The annual report is a statutory requirement under §3017.




              EPA cannot accept notice records as a substitute since, for




              example, notifications may overestimate quantities exported




              since renotification is not required if the quantity of waste




              actually exported is less than that indicated in the original




              notification.  Thus, the annual report will contain more




              specific information.  It will also show exactly what was




              exported and how rather than what was intended to be exported.
JM:
     The commenter recommended that EPA develop an annual report




form for use in reporting exports of hazardous wastes, and that




the form be distributed no later than January 31 of each year to




all exporters who submitted Notifications of Intent to Export




covering the preceding calendar year.  This will serve as a




reminder to those who may believe they are covered only by State




reporting requirements, and will provide a standardized format




to ease compliance for the regulated community and compilation/




interpretation of data by EPA.
RESPONSE:          EPA is not issuing an annual report form at this time for




              the reasons set forth in the preamble to the final rule.
MN Pollution       The commenter stated that the exporter should be required to




Control:      submit the annual report to the exporting State.

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                                   -66-
RESPONSE:          EPA requires exporters to submit an annual report to the




              Administrator according to §262.56 because of EPA's involvement




              in the implementation of the export requirements.  Authorized




              States may also establish regulations requiring the submission




              of the annual report to the State.
NRDC:
     The proposed rule stated that exporters will no longer be




subject to the biennial reporting requirements of §3002.  These




requirements include new subsections (a)(6)(C) and (D) which




require waste generators to report on their efforts to reduce




the volume and toxicity of waste generated and on changes in the




volume and toxicity of wastes achieved by comparison with




previous years.  All waste generators are subject to this




reporting requirement.  Consequently, to the extent that




exporters are generators of hazardous wastes, EPA must require




that they report biennially on their waste minimization




activities.
RESPONSE:          This requirement has been added as explained in the




              preamble to the final rule.
Lake               The commenter stated that it will be administratively more




Carriers:      burdensome for industry to submit three reports (two annual and




              a biennial) instead of one biennial report.  In this age of

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                                   -67-
              computerized data processing,  the commenter suggested that it




              would be an elementary task to extract required data from a




              biennial report and send that  which is required to EPA Regional




              Administrators and/or Congress.









                   The commenter stated that, according to the preamble of the




              proposed rule, eliminating export information from the biennial




              report would not place a greater workload on generators since




              most generators retain separate records on domestic and exported




              shipments and, thus, are in a  position to file separate reports




              on those activities.  The commenter objected that this line of




              reasoning neglects the fact that its members submit no reports




              presently so they are keeping  no such records.
RESPONSE:          See response to the comment above.




                   EPA notes, however, that where hazardous wastes subject to




              the report provisions are involved and the annual report is




              therefore applicable, it is administratively less burdensome for




              EPA to receive a separate report on exports rather than extract




              such information from biennial reports every other year.

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                                   -68-









                      11.  APPLICATION OF DEFINITION OF




                      SMALL QUANTITY GENERATORS ("SQGs")
Lake               On the subject of small quantity generators, the commenter




Carriers:     noted that some of its member vessels will be large quantity




              generators but will export a small quantity of hazardous waste




              depending on where their travels take them and how extensively




              they utilize one of the three Canadian fueling piers.  The




              commenter saw no compelling reasons to regulate exports more




              stringently than domestic transfers and, thus, would opt for no




              application of Part 262 or the export requirements.
RESPONSE:          See the response to the preceding Lake Carriers comment on




              page 65.




                   However, EPA notes that generally where a hazardous waste




              subject to the export requirements is concerned, generators of




              100 kg/m of hazardous waste or more are required to accompany




              all off-site shipments of hazardous waste with a complete,




              multi-copy Uniform Hazardous Waste Manifest, under 40 CFR Part




              262, Subpart B.  This requirement applies regardless of the size




              of the individual shipments.  EPA does not believe that




              subjecting these same shipments to the hazardous waste export




              rules would in any way discriminate against foreign shipments.




              Under the final rule, the regulatory status of both foreign and

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                     -69-
domestic shipments will be determined, not according to the size




of the individual shipments, but according to the generation




rate of the hazardous waste generators.  A generator who




produces 100 kg/m or more, but exports a smaller quantity will




have to comply with Subpart E for the exported material.

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                                   -70-
                       12.  SQGs SUBJECT TO REGULATIONS
A. Favor Exemption for all SQGs of Less Than 1000 kg/m
Merchant           As a potential transporter, the commenter felt that while




Shipping:     the notification, consent, and reporting requirements appear




              reasonable for shippers of large quantities of hazardous waste,




              they are overly burdensome for generators of less than 1000 kg




              per month of hazardous wastes who may occasionally wish to




              export their wastes as part of a routine business practice.




              Presently, a consignee is required to meet applicable




              regulations of approvals, handling, and reporting in the




              receiving country.  Since a foreign government can easily apply




              and monitor its own regulations, the commenter feels that




              generators/shippers of less than 1000 kg per month of hazardous




              wastes should be excluded from the export requirements of Part




              262.  Since the consignee is regulated and monitored by his own




              government, there is no need to regulate such shipment at the




              point of origin.
RESPONSE:     This comment has been addressed in the preamble to the final




              rule.  The export rule applies to small quantity generators




              generating 100-1000 kg/m of hazardous waste.

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                                   -71-
B.  Favor Compliance for all SQGs of Less Than 1000 kg/m
Natl.              The commenter agreed with the proposed rule's requirements




Wildlife:     for manifesting by all small quantity generators.  The commenter




              claimed that Congress decided that any hazardous waste listed or




              identified that is to be exported must be subject to acceptance




              by the receiving countries, and that this is a decision that EPA




              should not, and is not free to, second guess.
RESPONSE:          This comment has been addressed in the preamble to the




              final rule.

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                                   -72-
                              13.  STATES' ROLE
Natl.              The comrnenter agreed with the proposed rule's provisions

Wildlife:     and discussion in the preamble to the proposed rule that States

              generally should not be engaged in international discussions

              through the Department of State.
RESPONSE:
     EPA acknowledges the support of the commenter.
Tricil:
     The amount of paper that is produced to meet requirements

of this rule dictates that the federal agency encourage the

States to defer matters of international shipments to the

central agency, thus reducing duplication.  However, data

specific to States such as manifest information and reports

should be sent to the States by EPA, generator or exporter.
RESPONSE:          Consistent with existing procedures, under the final rule

              States could not assume the authority to receive notification of

              intent to export.  In addition, States would not be authorized

              to transmit such information to foreign countries through the

              Department of State or to transmit Acknowledgement of Consent to

              the exporter.  In EPA's view, foreign policy interests and
                                                                        I
              exporters' interests in expeditious processing are better served

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                     -73-
by EPA's retaining these functions.  This will provide the




Department of State with a single point of contact in




administering the export program and will better allow for




uniformity and expeditious transmission of information between




the United States and foreign countries.  With the exception of




these functions, States must include requirements equivalent to




those promulgated in the final rule.  In addition, States may




adopt requirements that also require generators or exporters to




send copies of manifest information and reports to the State to




keep the State aware of these activities.

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                                   -74-
                       14.  UNIVERSE OF HAZARDOUS WASTE
A.  Comments Supporting Exclusive Use of Federal Universe
Inst. of           The commenter stated that to the extent that EPA decides




Scrap Iron:   to impose the export regulations on otherwise unregulated




              secondary materials, the Agency should include in the universe




              of affected hazardous wastes only those wastes which are listed




              or identified under 40 CFR Part 261.  EPA should abandon its




              proposal to include in that universe such additional wastes as




              may be identified or listed by the State from which the material




              is exported.  As EPA concedes, under this approach notification




              would be required for wastes exported from some States but not




              others (49 FR 8754).  Not only would the resulting




              inconsistencies and disparities be confusing to foreign




              countries, but they would create unfair burdens on persons




              exporting from certain States.








                   Moreover, EPA's adoption of State definitions of hazardous




              waste to regulate exports probably would be unconstitutional.




              Under Article I, Section 8 of the Constitution, Congress has the




              exclusive power "to regulate commerce with foreign nations."




              The vesting of the Commerce Power in the federal government




              precludes any State attempt to regulate subjects requiring a




              uniform system of national regulation.  Cooley v. Board Wardens

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                                   -75-
              of Philadelphia (53.  U.S.  299 (1851)).  It is clear that no




              State could independently require an export license for




              hazardous waste (or any other product).   Yet EPA's proposal




              would enable States to do indirectly what they cannot do




              directly.  As such, the proposal amounts to an unconstitutional




              delegation to the States of the federal power to regulate




              foreign commerce.
RESPONSE:          EPA is basing implementation on the State authorized




              program plus HSWA wastes as discussed in the preamble to the




              final rule.  This will not include wastes identified or listed




              beyond those federally listed or identified plus HSWA wastes




              which will satisfy this commenter's concerns.
Acme:
     The commenter strongly urged the Agency to adopt only the




federal universe of hazardous wastes, including any additional




federally amended (e.g.,  HSWA) hazardous wastes.
                   The commenter did not believe that there is any additional




              or increased burden on exporters to distinguish between the




              Federal and State universe of hazardous wastes.  In actuality,




              the commenter believed generators routinely make this




              distinction since it will affect the manner in which manifests




              are completed, biennial reports are completed, and State




              generated Superfund taxes are collected.

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                                   -76-
                   To require, where a State has obtained authorization, that




              the State universe of hazardous wastes be used for purposes of




              export requirements, would create unnecessary confusion and




              burden to the generator.  First, these wastes would need to be




              declared in the annual report, which is proposed as being




              submitted to EPA.  There would be considerable burden for EPA to




              distinguish between each authorized and non-authorized state and




              respective universes of hazardous wastes.  Secondly, because of




              differences in authorized states for imposing more stringent




              requirements than the Federal, state regulated (but federally




              non-regulated) wastes may not be restricted to ninety-day,




              on-site storage.  The ability to predict frequency and quantity




              of shipments may be considerably less than with federally




              regulated hazardous wastes.  Finally, the commenter agreed with




              the EPA comment that this may cause undue confusion with the




              receiving and transit countries as well.









                   In summary, the commenter encouraged EPA to restrict




              hazardous waste for the purpose of export requirements to those




              which are federally regulated.
RESPONSE:          This issue is discussed in the preamble to the final rule.




              Although EPA is basing implementation on the State authorized




              universe, that universe does not include wastes identified or




              listed that are broader in scope than the federal universe.

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                                   -77-
              Accordingly, this commenter's concerns would appear to be




              satisfied by using the State authorized universe.
B.   Comments Supporting Inclusion of State Universes
ICWM:
     The commenter believed that if the originating State or




Provincial regulations classify a waste as hazardous, the




receiving country must be notified, whether or not that




receiving country also considers the waste in question to be




hazardous.  Any other interpretation will lead to confusion and




opportunities for evasion of the law.  It is far better to




manifest all wastes considered hazardous at the point of




origination, thus assuring that proper management and disposal




occurs.
Tricil:
     All wastes deemed hazardous by EPA or any States or




Province should be notifiable to ensure that documentation can




be completed and filed with appropriate authorities.
Natl.              The commenter stated that a principal purpose of §3017 is




Wildlife:     to warn foreign governments in advance that wastes meriting




              special handling will be entering their country.  The commenter




              also noted that the regulation of wastes as hazardous by




              authorized States indicates that these materials warrant special

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                                   -78-
              handling, and that the failure to manage these wastes

              accordingly may threaten human health and the environment.  EPA

              cannot expect foreign governments to discern or appreciate the

              variations in regulation among authorized States.  Allowing a

              waste regulated in the U.S. as hazardous to be dumped in a

              foreign nation without notice or consent will not advance U.S.

              foreign policy interests, nor will it protect the environment

              and citizens of foreign States as Congress intended in enacting

              §3017.
RESPONSE:          As noted in the preamble to the final rule, implementation

              will be based on the State authorized program which does not

              include wastes listed or identified by a.State beyond those

              listed or identified by EPA plus HSWA wastes.  This universe was

              chosen for the reasons set forth in the preamble to the final
                                                            e>
              rule.  In addition, it would be confusing to foreign nations to

              be subject to widespread disparities in treatment of the same

              wastes.

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                                   -79-
                             15.   CONFIDENTIALITY
CA




Legislator:
     The commenter supported EPA's position that claims of




confidentiality by generators regarding hazardous waste export




information be severely restricted.  The availability of such




information to elected officials is vital and should not be




abridged.  Without access to the records of exporters of




hazardous waste, regulators on both sides of the border could




not track adequately the flow of hazardous materials.
NRDC:
     The commenter noted that because EPA has improperly




excluded transit countries from the definition of "receiving




country," these countries will not receive so-called




confidential information.  To the extent that confidential




treatment is afforded to the export notification, this will




impair the ability of transit countries to assess risks to the




environment and to public health, and hence will decrease the




likelihood of their being able to stop shipments that could




result in serious harm.
                   The stated reason for this discrepancy is EPA's belief that




              §§3007 and 3017 are in conflict.  The Agency contends that §3007




              "could be read as prohibiting all disclosure of any confidential




              business information contained in a notice of intent to




              export."  However, the Agency notes that "this reading would

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                                   -80-
              contradict §3017," which requires the information specified in




              the notification to go to receiving countries.









                   The commenter did not perceive the "conflict" identified by




              EPA between §§3017 and 3007.  Section 3007 generally gives




              access to "any person" to any data obtained by EPA that is not




              held to be confidential.  EPA's regulation render




              non-confidential any data required by statute to be released.




              As stated above, the statute, in §3017, expressly requires




              disclosure of the notification to the "receiving country."




              Consequently, the commenter could see no reason why any of the




              data required to be included in the notification should be held




              confidential with respect to any receiving country, including




              transit countries.









                   With respect to the public, the commenter also urged the




              Agency to provide access to all export notification data.




              Although §3017 does not explicitly require such disclosure, the




              legislative history of §3017 unmistakably reveals Congressional




              intent to provide the public with full access to information in




              order to assure needed public oversight.
Natl.              The commenter agreed with EPA's confidential business




Wildlife:     information proposal in §260.2(b) discussed in the preamble to




              the proposed rule, except that the commenter failed to

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                                   -81-
              understand how EPA can justify excluding transit countries from




              receiving such information.
RESPONSE:          EPA agrees with the commenters that the availability of




              export information should not be abridged.  EPA does not believe




              that notification information generally is entitled to treatment




              as confidential business information.  It has been EPA's




              experience that existing notifications, which consist of




              identification of the exporter, waste and consignee, have not




              been claimed by exporters to be confidential.  Moreover, it is




              doubtful that such claims will be made due to the requirement




              that such claims be resolved prior to finding a notification




              complete for transmission to transit and receiving countries.




              Thus, such claims could significantly delay shipment since a




              shipment cannot take place in the absence of consent.









                   Regarding transit countries, EPA believes that reading




              §§3007(b) and 3017 together precludes disclosure to parties




              other than receiving countries and the Department of State.  EPA




              believes its interpretation of receiving country is the correct




              one and that no specific requirement to disclose information to




              other parties is apparent on the face of §3017.  Moreover, the




              commenter has overlooked the fact that the legislative history




              it cites is qualified by the statement "as in other provisions




              of Subtitle C," which supports EPA's position that §3007 applies




              to the availability of information to the public.  EPA notes

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                     -82-
that a transit country that is not satisfied with the




information it received from the notification may, on its own,




require such information prior to allowing the shipment to enter




its border.  Moreover, even if confidentiality is claimed, it




generally will allow protection to simply withhold one element




of the notification such as the name of the exporter.  The




remaining information would allow the transit country to alert




its border guards to stop entry of such waste should the




exporter ship such waste contrary to the transit country's




wishes.

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                                   -83-
                            16.   TRANSPORT BY RAIL
AAR:               The commenter objected that the proposed manifest system,




              which is predicated on face-to-face contact between a transfer




              and a transferee, is not compatible with railroad operations.




              The regulation would require that the Acknowledgment of Consent




              be attached to shipping papers.   The paperless exchange of rail




              cars, now being developed, would not allow for the exchange of




              these consent documents.









                   There is no reason to require an exchange of paper between




              railroads.  There is no problem with the current system that




              requires that manifests be sent to the next non-rail transporter




              or the last rail transporter in the U.S. for shipments exported




              by rail.  The Acknowledgement of Consent could be attached to




              the manifest.








                   The commenter suggests, therefore, that EPA's proposed




              export regulations for hazardous waste be modified for the rail




              industry.  The regulations should provide that when export




              shipments of hazardous waste are tendered to a railroad, the




              Acknowledgement of Consent must be attached to the manifest for




              forwarding to the next non-rail transporter or, if a shipment is




              being exported by rail, to the last railroad that will be




              transporting the shipment in the United States.

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                                   -84-
RESPONSE:          This comment has been addressed in the preamble to the




              final rule.

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                                   -85-
                        17.   DEFINITION OF "CONSIGNEE"
Stoel:             The commenter believed that the term "consignee" required




              additional clarification.   In the case of hazardous waste that




              is exported for treatment,  storage or disposal (such as




              recycling), the initial treatment, storage or disposal facility




              (TSDF) that receives the waste may transfer certain portions of




              the waste to a second TSDF  (e.g., for recycling).   Exporters of




              hazardous waste have no control over such secondary transfers of




              the hazardous waste and may be unable to identify, especially




              prospectively, such secondary TSDFs.  Thus, the exporter may not




              be able to give notice of the "ultimate" TSDF as would be




              required by the proposed rule.  To reconcile this problem, the




              commenter proposed substituting the term "receiving treatment,




              storage or disposal facility" for the term "ultimate treatment,




              storage or disposal facility" in the definition of "consignee."
RESPONSE:          EPA chose to define "consignee" as the "ultimate treatment,




              storage or disposal facility" because that is the language




              employed by Congress in defining notification requirements in




              §3017(c).  The term "ultimate" was used by EPA to distinguish




              temporary storage in the course of transportation from




              longer-term treatment, storage, or disposal.  However, EPA




              acknowledges that further management of an exported waste may




              occur after it is sent to a foreign TSDF, which is beyond the

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                                   -86-
              control of the exporter.   EPA did not intend to require an




              exporter to specify actions that occur in a foreign country




              unknown to him or beyond the scope of his control.  Therefore,




              EPA interprets the term "ultimate TSDF" to mean the final




              destination of the waste in a receiving country known to the




              exporter.  This interpretation does not result in a change to




              the definition of "consignee" but rather is a clarification of




              EPA's original intent.
Environment




Canada:
     The word "recycling" is recommended as an addition to the




definition of "consignee."  The commenter maintained that it was




clearly the intent to include recycling facilities under the




proposed export rules.  The commenter explained that the




apparent reliance on the word "treatment" to include recycling




could be viewed as being ambiguous.
RESPONSE:          EPA does not believe that the commenter's suggested change




              is necessary because the §260.10 definition of "treatment"




              clearly covers recycling.

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                                   -87-
                             18.  EFFECTIVE DATE
Natl.              The commenter agreed with EPA's position that the effective




Wildlife:     date override provision of RCRA §3010(b) should prevail (i.e.,




              EPA may shorten the general 180-day effective date specified at




              §3017), and that a 30-day effective date is adequate.
Acme:
     The commenter is required by regulation to provide for




off-site shipment of hazardous wastes within 90 days of




generation and accumulation, resulting in a very predictable




schedule of shipments every 90 days.  The increased burden of




applying for notification 60 days prior to each shipment,




coupled with the uncertainty and lack of obligation for the




receiving country to respond to the notification, could result




in further complication of the documentation and management of




wastes.
                   If consent was not received prior to the 90-day on-site




              storage limit, then temporary storage would have to be provided




              at another facility.  The commenter believed that, as generator




              of the wastes, it is better experienced to provide additional




              storage than a temporary site.  The additional handling,




              transportation, and documentation provides greater opportunity




              for mixups with the waste management system.

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                                   -88-
                   With the exception of the Notification of Intent to Export




              the commenter had no objection to the implementation and




              effective date.   However, the commenter noted that the




              Notification of  Intent must be submitted at least 60 days prior




              to the initial shipment of wastes.   It is conceivable that




              within a week of the effective date, a generator will have




              reached its 90-day, on-site storage limit, but will not have




              received the EPA Acknowledgement of Consent.  The commenter




              proposed that either the effective date be 90 days from the date




              of publication,  or that a two-tiered effective date system be




              established to allow for proper filing of notifications and




              receipt of acknowledgments.
Dow Corning:       The commenter believed that the final rule applicable to




              the export of hazardous waste should not be effective until 90




              days after publication to allow exporters time to prepare




              notification and EPA enough time to process the notifications




              prior to the effective date and prevent any interruptions in




              exporting hazardous waste that the current proposal would cause.








                   The proposed rule states that the applicable standards for




              the export of hazardous waste will become effective 30 days




              after publication of the final rule.  The proposal also required




              that a waste exporter notify EPA 60 days prior to exporting the




              wastes.  Therefore, there would be 30 days in which wastes could

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                                   -89-
              not be exported which could cause serious problems in production




              areas.
JM:                The commenter asserted that in implementing any new




              regulation, a period of uncertainty, confusion and concomitant




              delay invariably occurs during a phase-in period.  Combine this




              normal occurrence with the number of agencies involved in this




              regulation (EPA, Department of State and U.S. Customs) and the




              unprecedented involvement of foreign government environmental




              protection agencies over whom the U.S. and its laws have no




              control, and the anticipated length of time needed for all




              parties involved to become comfortable with the rule, multiplies




              many times.  How, then, can EPA justify an effective date of 30




              days after promulgation?  At the minimum, exporters should be




              given six months from the date of promulgation before they must




              cease exporting hazardous wastes for which they have yet to




              obtain an Acknowledgment of Consent from the receiving country.









                   The commenter objected to the imposition of any regulation




              that interferes with a normal business practice in effect prior




              to promulgation of new regulations.  Those persons presently




              exporting hazardous wastes to a specific facility in a foreign




              country should be "grandfathered" under the regulations.  They




              should be required to submit a timely Notification of Intent to




              Export, and to attach the'Acknowledgment of Consent to the




              manifest once received, but no exports should be held up unless

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                                   -90-
              and until the receiving country objects in writing to the




              existing practices, especially since neither EPA nor the




              Department of State has the power to order a response from the




              receiving country's government.  This seems the only equitable




              way to implement such an open-ended law.
Cadence:           The commenter noted that §3017(b) says that under the




              proposed rule the new regulations "shall become effective 180




              days after promulgation."  The commenter pointed out that




              §3010(b) authorizes EPA to shorten the general 180-day period.




              However, the commenter believed that because §3017(b), which




              does not authorize EPA to shorten the period, is part of §3017,




              §3017(b) should control over §3010(b) with respect to §3017




              regulations.









                   The commenter believed that EPA has overlooked a




              significant problem which could cause great disruption.  This




              problem arises when an exporter has already begun performing  --




              in accordance with EPA's currently-effective export regulations




              -- under a continuous contract before the final §3017




              regulations are issued.  Once the new final regulations are




              issued,, the exporter will have to suspend further exports after




              the 30th day unless and until all new forms are filed and




              consents are granted.

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                                   -91-
                   Knowing the way governmental agencies  work (even with the




              best of intentions)  the commenter seriously questioned whether




              even a 60-day turnaround will often be accomplished in the real




              world.
                   The commenter stated that even if EPA believes that newly




              contracted exporting activities should be subject to the 30-day




              effective period,  it should make an exception for activities




              ongoing under currently-effective export regulations and provide




              a longer lead-time for the transition.  Otherwise, beneficial




              recycling practices might have to be suspended for a few months.








RESPONSE:          These comments have generally been responded to in the




              preamble to the final rule.  As noted in that preamble, EPA is




              changing the effective date to November 8, 1986 and will begin




              accepting notifications immediately.  Thus, since publication




              should occur approximately 90 days prior to November 8, 1986,




              approximately 90 days will be provided to notify and obtain




              consent for any shipments to occur on or soon after November 8,




              1986.  Thus, approximately 30 days are provided to prepare the




              notification and 60 days for the transmission of notice,




              obtaining consent and transmission back to the exporter.  EPA




              believes that this is adequate time to obtain consent by




              November 8, 1986.   Moreover, the statute requires implementation




              by November 8, 1986 which should take precedence over the time




              between promulgation and effectuation.  Therefore, EPA cannot

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                                   -92-
              grandfather ongoing shipments beyond November 8, 1986 or provide




              a later effective date.
MCA:
     The commenter feared that the proposed rule may succeed in




closing U.S. borders to licensed hazardous waste shipments for




an interim period while foreign governments react to the




rulemaking within their own legislatures.  The commenter




inquired whether EPA had addressed the problem of where these




wastes may be disposed in the interim.
Tricil:
     The commenter acknowledged that this rule is in many ways




the formalization and extension of an existing process being




carried on between Canada and the U.S. for at least five years.




Therefore implementation on November 8 should be readily




achievable.  However, the commenter suggested that a six month




grace period before enforcement actions are to be taken for




inadvertent violations would be appropriate.
RESPONSE:          EPA agrees that implementation on November 8, 1986 is




              readily achievable.  However, EPA has enforcement discretion




              which will be exercised as appropriate on a case-by-case basis.




              As stated in the preamble to the proposed rule, EPA will process




              all notifications and written consents as expeditiously as




              possible.

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                     -93-
     Hazardous waste exporters have been on notice since




November 8, 1984 that EPA was promulgating export regulations,




Hence, it is the exporters'  responsibility to plan for the




implementation of the regulations (including planning for




contingency waste management plans if consent is denied or




delayed by the receiving country).

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                                   -94-
                           19.  60-DAY ADVANCE TIME
A.  Comments Supporting the 60-Day Advance Time
ICWM:
     The commenter supported the need for a 60-day advance




time.  The commenter felt that this time period should be




sufficient to obtain written consent from the country receiving




the hazardous waste.
Tricil:
     The commenter agreed that 60 days are needed to allow




written consent to be received.
EC:
     The commenter accepted the time frame for processing




notifications.
RESPONSE:          EPA acknowledges support for the suggestion incorporated in




              the rule language that exporters allow a 60-day advance time for




              the processing of notification and consent and believes that it




              is the most appropriate time frame.

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                                   -95-
B.  Comments Requesting a 30-Day Advance Time
OHM:
     The commenter agreed with EPA that foreign governments have




the right to be notified of all hazardous waste transactions.




However, the commenter felt that a total of 30 days notice is an




adequate time for dissenting governments to protest such




shipments.  Additionally, the proposed revisions would cause




unnecessary and costly delays in disposing of wastes generated




at emergency and remedial environmental clean up sites.
RESPONSE:          As discussed in the preamble to the proposed rule, EPA




              anticipates that a 60-day advance time will allow a total of 30




              days transmission time for notification and consent and 30 days




              for the receiving country to provide its response to the




              exporter.  This commenter can submit notification at a later




              date but will assume the risks of delay in shipment.  This




              requirement should not cause substantial delays in emergency and




              remedial cleanups since an alternative domestic disposal site




              can be used.
Uniroyal:          The commenter stated that the 60-day notification period




              required prior to exportation is too long, and that 30 days




              should be sufficient.  To keep in compliance with the 90-day




              storage requirements of U.S. regulations, the commenter thought

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                                   -96-
              that a "fast track" system should be established to allow




              expedient EPA approvals on hazardous waste exports.









RESPONSE:          EPA does not believe that 30 days would provide adequate




              time for EPA, the Department of State, and the receiving country




              to process the notification and transmit the receiving country's




              consent or objection to the exporter.  The 60-day advance time




              should provide adequate time for the process.  In fact, the




              amount of time for EPA and State Department actions is minimal




              and is already considered "fast track."  However, the 60-day




              advance time is included in the rule as a suggestion and not a




              requirement  (§262.53(a)).  Exporters may allow as much or as




              little time  for obtaining written consent as they feel is




              appropriate  and necessary, however, they may be assuming the




              risks of delay in shipment if notification is not provided




              sufficiently in advance of the expected day of shipment.
C.  Comments Supporting an Advance Time of More Than 60 Days
Cadence:           The commenter noted that EPA has explicitly recognized that




              even in the best of circumstances it would take 60 days to




              process an approval from the time of notification (50 FR




              8748).  As the procedures outlined at 50 FR 8749 show, there




              are an astounding number of things that have to happen during

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                                   -97-
              this time.  The commenter questioned whether even a 60-day




              turnaround will often be accomplished in the real world.
RESPONSE:          EPA has decided to retain the 60-day advance time as the




              recommended submittal time,  and believes that this period should




              provide adequate time for EPA, the Department of State, and the




              receiving country to process the notification and transmit the




              receiving country's consent or objection to the exporter.




              Exporters may however, submit their notifications earlier than




              the suggested 60 days if they so desire.
D.  Other Comments
Stoel:             The commenter believed that the proposed rule is devoid of




              any time constraints in which EPA must respond to an




              international shipment notice.  Consistent with §3017(d), the




              regulations should require EPA to provide notice to the




              receiving country within 30 days of its receipt of an




              international shipment notice from an exporter.  Furthermore,




              the proposed rule should make some provision for cases in which




              the receiving country does not respond to EPA's notice within a




              reasonable period.  The commenter suggested that for purposes of




              the proposed rule, a receiving country should be deemed to have

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                                   -98-
              given its consent to the receipt of hazardous waste if it does




              not respond to EPA's notice within 30 days.









RESPONSE:          As stated in §3017(d), within 30 days of the Administrator's




              receipt of a complete notification, the Secretary of State shall




              forward a copy of the notification to the government of the




              receiving country.  Thus, EPA must provide the information to




              the Department of State in sufficient time to enable it to meet




              this statutory time frame.  Because the exchange of information




              among EPA, the Department of State, receiving countries, and




              transit countries is administrative in nature and imposes no




              requirements on the public, EPA did not propose specific




              procedures to implement these statutory requirements.  These




              statutory deadlines nevertheless are applicable.









                   EPA disagrees with the commenter's recommendation that




              failure by a receiving country to respond to a notification




              should be considered consent because EPA cannot require a




              receiving country to respond within a specific number of days.




              Since an export is prohibited in the absence of written consent,




              EPA does not have the authority to assume consent if there is no




              response within a specific time period.  EPA reminds exporters




              that the 60-day advance is only EPA's best estimate of the time




              transmission of information will take.  A receiving country may




              take longer to respond than estimated.  Accordingly, regardless




              of when a notice  is submitted (even if submitted 60 or more days




              in advance), the  shipment cannot take place until consent has

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                                   -99-
              been obtained.   Exporters are therefore encouraged to submit




              notifications at the earliest possible date.









                   EPA intends to work closely with the Department of State to




              expedite the processing of notifications and intends to




              encourage receiving countries to expeditiously provide their




              written response to the U.S.  Embassy.
Australia:         The commenter noted that the procedures and time frame




              proposed for processing are satisfactory, with one qualification:




              later in 1986 the Australian Parliament will have before it a




              chemicals notification and assessment bill which proposes a




              90-day notification period for-new chemicals to be imported into




              Australia.  This would raise a minor difficulty if a hazardous




              waste which is also a new chemical were consigned to the




              country.  However, the commenter stated that this occurrence




              would be rare.
RESPONSE:          Exporters of such materials would simply have to submit two




              notifications or one notification at an earlier date to serve




              both purposes.  Nothing prohibits notification at an earlier




              date.  Exporters would, of course, have to comply with




              Australian law.  If believed necessary, this could also be




              addressed in an international agreement.

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                                   -100-
Border




Steel:
     Under §262.53, EPA proposed doubling the notification period




from 30 days to 60 days.   The commenter stated that its own




current negotiations have taken 60 days and, even though it




properly notified the Administrator under the current




regulations, the commenter foresees another 30 days before




negotiations are finalized and the first shipment is made to




Mexico.  Adding the extra time on EPA's part will simply add




time to what already is a protracted negotiation period.  Though




EPA believes it is helping the exporter by proposing to allow




each notification to cover a 24-month period, the commenter can




see a situation whereby such negotiations could last up to eight




months and, thus, full-time negotiation with a recycler in




Mexico would be necessary just to keep shipping material on a




month-to-month basis.
RESPONSE:          The final rule provides that the Notification of Intent to




              Export may cover export activities for a 12-month period rather




              than the 24-month period.  EPA is cognizant of the time-consuming




              nature of some negotiations and it will make every effort to




              expedite its handling of the notifications and written consents.
JM:
     The commenter requested that this rulemaking include




specific regulations regarding procedures for the processing of




Notification of Intent to Export notices and receiving country




responses.  Since delays may have economic and legal impacts,

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                                  -101-
              exporters also need to be assured that  they will  receive fair




              and equitable treatment by EPA and Department  of  State officials




              in the timeliness of the processing of  their notifications  and




              responses.   As things now stand,  there  is  no deadline for EPA  to




              transmit the exporter's notification to the Department of State,




              and the Department of State is given up to 30  days to transmit




              the notification to the receiving country's government.   The




              commenter strongly urged that EPA incorporate  the time frame




              outlined at 49 FR 8749 of the preamble  (i.e.,  that EPA notify




              the Department of State within five days of receipt of the




              exporter's notification; Department of  State notify the




              receiving country within ten days of receipt;  Department of




              State notify EPA of the receiving country's response within ten




              days of receipt; and EPA notify the exporter of such response




              within five days of receipt) into the regulations.  This would




              go a long way toward preventing preferential treatment of




              "favored" exporters and toward minimizing the  concerns of




              exporters that their exports may be held up by bureaucratic




              delays.
RESPONSE:          The statutory provisions of §§3017 (d) and (e) require the




              Department of the State to transmit notification of the intended




              export to the receiving country within 30 days of receipt of EPA




              of a complete notification from the exporter.  EPA must then




              notify the exporter of the receiving country's consent or




              objection within 30 days of its receipt by the Department of

-------
                    -102-
State.  Thus, EPA's transmission of the notification to the




Department of State is included under the statutorily mandated




30-day period.









     As stated in the preamble to the proposed rule, EPA




anticipates notifying the Department of State within 5 days of




receipt of the notification from the exporter.  The Department




of State anticipates notifying the receiving country within 10




days of receipt of the information from EPA.  They also




anticipate transmitting the receiving country's consent or




objection to EPA within 10 days of its receipt.  EPA then




anticipates notifying the exporter within another 5 days.  This




total of 30 days leaves another 30 days out of the 60-day




advance time for the receiving country to provide its consent or




objection.









     The commenter expresses a concern that some exporters might




receive preferential treatment in the processing of




notifications and consents by EPA.  However, EPA and the U.S.




Department of State intend to process notifications and consents




as expeditiously as possible, and EPA assures the commenter that




this process will proceed in a fair and equitable way.  EPA does




not believe it appropriate to impose specific time frames on




each act subject to each 30-day time frame because flexibility




may be necessary (so long as these acts occur within the




specific statutory time frames).

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                                  -103-
                            20.  EXCEPTION REPORTS
Tricil:
     The commenter expressed support for the requirement for




exception reports for returned shipments.  This is required of




domestic shipments and should be required of transboundary




shipments as well.
ICWM:
     The commenter strongly supported the proposal for exception




reports as notification of undelivered shipments, noting that




this is a requirement for any domestic transport within the RCRA




program.  Without exception reports, it would be very difficult




to enforce export regulations effectively.
RESPON'SE:          EPA acknowledges the support of these commenters.




              Exception reporting is an important tracking and enforcement




              tool in the regulation of exports of hazardous waste.  It




              provides EPA with notification that a waste shipment has been




              initiated but did not leave the United States, or left the U.S.




              but was not received by the consignee.  Thus, EPA can determine




              whether the waste remains within the U.S. or has reached the




              foreign country, but not the consignee.  EPA is retaining




              §262.55 in the final regulation.  These functions cannot




              completely be met by delivering a copy of the manifest to the




              U.S. customs official at the border.

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                    -104-
     Th e rule also requires generators of between 100 and 1000




kg/m to file exception reports for exports even though not




required domestically.  Exception reports for these generators




where exports are concerned are necessary due to the lack of




jurisdiction over the foreign facility (which means it is




substantially more difficult to verify receipt).

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                                  -105-
                        21.  ACKNOWLEDGMENT OF CONSENT
A.  Comments Opposing Cable Transmission of Acknowledgment of Consent
Natl.              The commenter stated that the plain language of the statute




Wildlife:     requires that the actual consent accompany the waste and the




              legislative history indicates the importance of this




              requirement.  The commenter suggested that EPA effectively




              proposes to delete the requirement that a copy of the receiving




              country's written consent must accompany the manifest for each




              shipment.  EPA would simply require that a cable from the U.S.




              Embassy to EPA (acknowledging the receiving country's written




              consent to the export of waste) accompany the manifest.









                   The commenter believed that Congress had good reasons for




              requiring the actual written consent to accompany the manifest




              even if the language of the statute would allow EPA's




              interpretation.  First, human error in translation or during the




              cable transmittal process is always possible; it is even more




              likely if highly technical details are to be transmitted and




              translated by generalist State Department staff not trained in




              the finer points of hazardous waste management.  If such.an




              error occurs, the exporter would undoubtedly argue that he or




              she is exempted from any requirements not transmitted in the




              Embassy cable.  In addition, numerous conditions on the consent

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                                  -106-
              may be imposed by the receiving country.   These conditions may




              defy summary, and simply cannot be allowed to be deleted from




              the written conditions of consent to be attached to the manifest.









                   While the commenter supported a requirement that the State




              Department translate the written consent into English,




              especially for the benefit of EPA and Customs, the ultimate




              responsibility for compliance with the written consent or




              objection, and any qualifications or limitations therein, must




              rest squarely on the exporter.  No opportunity should be made




              available for arguments that the State Department made an error




              that eliminates the exporter's liability for compliance with the




              written consent's terms and limitations.
JM:                To preclude any misrepresentation of inadvertent deletion




              of key information by agency intermediaries, the commenter




              recommended that EPA provide the exporter with an exact copy or




              literal translation of the receiving country's response.  To




              alleviate U.S. Customs concerns, a copy of the Notification of




              Intent to Export could be made available upon request.








                   The commenter questioned the need for preparation of a




              cable by EPA for the Department of State to telegraph to the




              U.S. Embassy in the receiving country.  The commenter suggested




              that use of a telecopy or telefax machine to transmit a copy of




              the exporter's Notification is more appropriate because it would

-------
                                  -107-
              cut down on processing time by EPA,  thus preventing the



              possibility of backlogs of Notification forms awaiting drafting



              into cables; it would ensure that the receiving country had



              timely access to the exporter's entire submission;  and sending


              the actual notification that has been checked by EPA for
                                                            •

              completeness ensures that the receiving country will obtain all



              the data the exporter found relevant for inclusion.  Where



              telecopy or telefax machines are not available, in the interest


              of timeliness, cables may be appropriate.  An exact copy of the


              exporter's notification should also be provided, however.
RESPONSE:          These comments have generally been responded to in the


              preamble to the final rule.  In addition, EPA notes that it will


              notify foreign countries of the information EPA deems necessary,


              or the foreign country requests, to assist it in making


              decisions.  Regarding use of a telefax or telecopy as the means


              of transmission, EPA notes that not all embassies are set up for


              this type of transmission.  The cable system is the uniform and


              commonly acceptable diplomatic means of transmission and


              therefore will be implemented more easily and expeditiously.
Natl.              The commenter disagreed with EPA's reasoning regarding the


Wildlife:     use of the cable to substitute for the written consent because


              the latter might take too long to reach the exporter.  It will


              not require 30 days for the Secretary of State to transmit a


              received letter of consent or objection to EPA, and for EPA to

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                                  -108-
              send it on to the exporter.   These are simple,  ministerial acts




              requiring no detailed analysis or decision making.   If EPA is




              concerned that diplomatic pouch mail is too slow to allow 30-day




              turnaround of the written consent, EPA should simply state that




              the 30-day clock begins to run from the day the letter is




              received by the Secretary of State in Washington (as the statute




              says), rather than the date of receipt by the U.S.  Embassy in




              the receiving country.
RESPONSE:          This comment has been responded to in the preamble to the




              final rule.
B.  Comments Supporting Cable Transmission of Acknowledgment of Consent
Tricil:            The commenter supported the proposal which provided for




              cable notices through the Embassies and Department of State




              channels as confirmation of consent.  The commenter stated that




              providing a copy of the cable confirming acceptance would work




              well:  Requiring the transporter to have a copy of this with




              each load will assist the conscientious operator who must at




              times compete with some who are less conscientious.

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                                  -109-
ICWM:              The commenter acknowledged the difficulty of the movement




              of letters across international borders and therefore supported




              the proposal to provide telex notices through Embassies and




              other diplomatic channels.
RESPONSE:          EPA acknowledges the support and will retain the proposed




              transmission procedures.
C.   Other Comments
EC:       .         The commenter stated that the transmission procedures for




              notification proposed by EPA differed from those specified in EC




              directives.  The commenter considered this an important




              difference and expressed hope that this will be considered in




              the final regulation.








                   The commenter cited the international agreement provision




              (§262.58) and stated that this may be the best solution if EPA




              retains its proposed notification procedures.
RESPONSE:          The U.S. is not a member of the EC and EPA is therefore




              free to establish its own notification procedures.  EPA is




              mandated by statute to work through the Department of State and,

-------
                    -110-
given the Agency's experience with the present notification




system, will continue to work on a government-to-government




basis, using the Department of State's facilities and




personnel.  This will expedite the transmission of notices and




give EPA a contact in the receiving country if there are




problems with the proposed export.  The transmission procedures




chosen were chosen to best accomplish the purposes of §3017.

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                                  -111-
                             22.   RENOTIFICATION
Cadence:           The commenter stated that renotification should not be




              required, at least for the type of practice the commenter




              engages in (consistent regular and uniform reports of hazardous




              waste fuels for recycling).   So long as a single notification




              provides a complete and accurate picture of the waste




              exportation practices that will occur (and recognizing that




              practices deviating from the notification could be violations




              under RCRA), the commenter could discern no health or




              environmental reason to require periodic renotification for




              unchanged conditions.  In this regard, the commenter noted that




              in a separate section of the proposed regulation, EPA is




              requiring annual reports by exporters in any event (51 FR




              8759.)  This annual reporting should give EPA as much




              information as any renotification, and to require both types of




              paperwork would be duplicative and burdensome.









                   The commenter accordingly urged EPA to provide that no




              renotification be required so long as the terms of the initial




              notification still fully and accurately reflect the notifier's




              practices.  Nothing in the statute requires any such




              renotification, and the commenter did not believe health,




              environmental protection, or common sense requires one.

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                                  -112-
                   The commenter stated,  moreover,  that §3010 of RCRA requires




              no renotification for domestic waste  management activities and




              EPA has never deemed it appropriate to impose such a burdensome




              requirement.
Chevron:           For recycling' activities, the commenter suggested that the




              notification should not have an automatic cut-off period.




              Renotification is required whenever information in the original




              notification changes.  This provides EPA with a means of




              maintaining the accuracy of the notification information without




              imposing the additional burden of renotification every 24




              months.  The notification should be made flexible enough to




              encompass small variations in shipping procedures or routes




              without requiring renotification.









                   The commenter suggested that because consent of transit




              countries is not required, renotification and consent of the




              receiving country should not be required when the only changes




              are in the points of entry to and departure from the transit




              countries.  A simple notification to the transit countries




              should suffice in this case.  Flexibility would also be greatly




              improved by allowing all alternate routes, modes of




              transportation, and container types under consideration to be




              listed in the original notification.

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                                  -113-
                   The commenter recognized that notification is not required
                                                     i

              for each shipment; however, the notification is so detailed that


              time-consuming renotification may be occurring quite regularly.
JM:                 It is unclear from the proposal exactly what sort of

              changes from the original Notification of Intent to Export would

              trigger the need for renotification/reapproval.  The commenter

              assumed that EPA and Congress are interested in substantial

              changes only, such as:




                   •    significant increases in total quantities of wastes

                        exported (> 50%)

                   •    change in types of wastes exported

                   •    change in consignee(s)

                   •    change in disposition of waste in the receiving

                        country (e.g., from incineration to land disposal)




              but that the following changes would not trigger a need for

              renotification, since they would not be likely to affect a

              country's decision to accept or reject a waste:




                   •    decreases in quantities exported

                   •    changes in the dates of shipments

                   •    changes in the type of container(s) used

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                                  -114-









                   •    changes in the number of shipments, providing the




                        changes did not result in a significant increase in




                        total quantity of waste exported to any one country.









              The commenter requested that EPA address this issue in the final




              rule -- either in the preamble, or within the Definitions




              section, 40 CFR §262.51.
RESPONSE:          EPA's rationale for requiring exporters to submit




              notifications every 12 months is discussed in the preamble.  In




              response to the comment that EPA does not require notifications




              under §3010 to be resubmitted on a periodic basis, EPA points




              out that the two notifications serve different purposes.  In the




              case of the notification under §3010, there is no approval




              process involved.  However, changes to that notification would




              require renotification.  In the case of notifications of intent




              to export,the receiving country reviews the notification and




              either consents or objects to the terms of the notification.  It




              is very important, therefore, that the content of that




              notification provide up-to-date information so that the




              receiving country can make an informed decision relative to




              accepting or rejecting a waste.

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                                  -115-
                23.  DUPLICATIVE AND UNNECESSARY REQUIREMENTS
Waterbury:         The commenter believed that the exporting regulations are




              unnecessary in that they add additional reporting and paperwork




              to a process that is more than adequate for shipments to




              Canada.  The commenter explained that the consignee and the




              exporter each deliver copies of the manifests to the foreign




              country and to the State from which the waste is exported, have




              a variety of paperwork travel with the shipment, notify Canada,




              and have the consignee confirm delivery.  Therefore, in the case




              of Canada, which has procedures similar to the United States',




              such additional controls are not warranted.
Uniroyal:          The commenter stated that additional U.S. regulations on




              exports to countries that already have their own set of




              regulations governing the importation of hazardous waste is




              duplicative and unnecessary.  Uniroyal felt that the prime




              example is in the exportation of hazardous waste to Canada.
Pennwalt:          The.commenter stated that with respect to the




              Acknowledgment of Consent, it seemed unnecessary to add another




              document to the already burdensome paperwork for each shipment.




              The commenter believed that there was adequate information




              provided to Canada to keep it advised of material entering its

-------
                                  -116-
              borders.   The commenter stressed that the proposed rules were




              unnecessary with respect to Canada since shipments were routine




              and frequent.
Envirosure:        The commenter suggested that the U.S.-Canadian transactions




              be exempted from the exportation proposal as set forth, or




              alternatively, that portions of the requirements relative to




              contacting on a shipment-by-shipment approval be waived for




              U.S.-Canadian transactions.  A one-time, once-a-year approval




              for shipments in general would seem to be beneficial in light of




              the fact that that is the current practice at this time and




              seems to be working very nicely.









                   Involving the State Department personnel with Canadian




              transactions will only add an additional  layer of




              non-knowledgeable bureaucracy to an area where there is already




              direct contact between federal and State Agencies and Canadian




              Ministries.  Canadian manifesting regulations are so similar to




              those in the United States that the proposals for continued




              approval, based upon volume changes on a  shipment by shipment




              basis, or changes in the agreed to volume, are really




              unnecessary.  Manifest documentation already provides a full




              trail for waste tracking, and facilities  reports give an exact




              volume report rather than'a pre-shipment  estimate.

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                                  -117-
RESPONSE:          As provided for in §3017(f), EPA may develop a bilateral




              agreement with a foreign country to establish notice, export,




              and enforcement procedures for the transportation, treatment,




              storage and disposal of hazardous waste.









                   HSWA provides that where such an agreement exists, only the




              requirements of subsections (a)(2) and  (g) of §3017 apply.




              Subsection (a)(2) provides that no person shall export a




              hazardous waste from the United States to a receiving country




              where an international agreement has been entered into unless




              the shipment conforms with the terms of the agreement.




              Subsection (g) requires annual reporting.  The annual report




              must summarize the types, quantities, frequency, and ultimate




              destination of all hazardous waste exported during the previous




              year.









                   The reporting, manifesting, and notification requirements




              established in the final rule may be amended by a bilateral




              agreement entered into between the United States and a foreign




              country, but until that time when the agreement is finalized EPA




              must enforce all such requirements.  The rule promulgated is




              intended to apply generically in the absence of an international




              agreement and essentially follows statutory generic




              requirements.  We are currently negotiating an agreement with




              Canada which may alleviate these commenters' concerns.

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                                  -118-
                           24.  ALTERNATE CONSIGNEE
Environment

Canada:
     The commenter suggested that the words "and any alternate

consignee", should be eliminated from the initial notification

requirements of §262.53(a)(2)(vii) and from the special manifest

requirements of §§262.54(b) and (g).   To ensure proper control,

the notification should identify only the designated consignee.

The selection of an alternate consignee would then be subject to

the renotification requirements as a substantive change from the

original notification.  If the original notification allows for

any alternate consignee it is possible that the two consignees

could be in different foreign countries.  As such, EPA would

have to receive a written consent from each foreign county

before an Acknowledgement of Consent could be forwarded to an

exporter.
RESPONSE:          If the consignee and alternate consignee named in the

              notification were in different countries, EPA intends that

              written consent would have to be obtained from both countries.

              Thus, because the exporter must include both in the

              notification, a renotification would not be necessary if the

              wastes were routed to the alternate consignee.  EPA believes

              that allowing designation of an alternate consignee is important

              in case of unforeseen circumstances preventing shipment to the
                  i
              designated consignee.  Canada may always condition consent on

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                                  -119-
              delivery to a particular consignee or this can be dealt with in




              an international agreement.
MN Pollution       The commenter said that the requirements should address an




Control:      alternative consignee and itinerary should something unforeseen




              occur that would preclude the hazardous waste from reaching its




              original destination, such as a train accident or




              weather-related problem.  The alternative description would




              allow the waste to be transported without having to bring it




              back into the United States and arrange for shipment a second




              time.
RESPONSE:          Subsection 262.52(a)(2)(vii) allows the exporter to include




              in the notification the name and site address of any alternate




              consignee.  Therefore, if it becomes necessary to send the




              wastes to the alternate consignee, consent would already be




              obtained from the receiving country, and return and reshipment




              would not be necessary.  Exporters can always include an




              alternate itinerary in the notification as well since additional




              information can always be included.

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                                  -120-
                         25.   CONTENT OF NOTIFICATION
A.  Requirement to Provide Estimated Frequency and Total Quantity of




    Shipments
Pennwalt:          The commenter said that the requirement to estimate number




              and total quantity was meaningless.  In order to avoid the




              necessity of renotifying if estimates are exceeded, the normal




              reaction, the commenter explained, was to estimate comfortably




              high.  Since the Ontario MOE registration forms give an estimate




              of waste generation rate for each waste material, the Canadian




              Provinces have a grasp of the volumes they are receiving.
Envirosure:        The commenter believed that the volume reporting criteria




              is based on a naive assumption on EPA's part that waste




              generation is basically pre-planned and exact.  In practice, the




              realities of the situation would dictate that generators contact




             . waste disposal facilities on a day-to-day basis based on need at




              the specific time and not generally on a pre-planned arrangement




              such as would be required under the proposal.  Because of the




              close proximity of Canada and the United States, this is an




              ongoing situation and not one that might be envisioned on an




              extensive transshipment of material where pre-planning might be




              appropriate.  If the proposal were to be incorporated for United

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                                  -121-
              States-Canadian transactions, it would simply mean that every




              waste stream that would be requested for approval would be




              extremely inflated as to the estimated volumes.  The ability on




              EPA's part to try to get a handle on the realistic volumes would




              therefore be defeated.
RESPONSE:          In determining what types of changes should trigger the




              need for renotificatdon and consent, EPA considered which items




              are most likely to be highly variable, and more importantly,




              which items would be likely to affect the receiving country's




              consent.  Concerning the required estimate of the total quantity




              of waste being exported, EPA believes that any increase in the




              quantity of exported waste requires renotificat.ion.  However,




              decreases in the quantity exported would most likely not affect




              the receiving country's consent.  Therefore, EPA is not




              requiring renotification for quantity decreases.  EPA realizes




              that exporters may therefore estimate high but this is




              acceptable so long as the receiving country consents.   Annual




              reports and manifests will provide EPA with more specific




              information on the amounts exported.  EPA notes that an estimate




              of quantity is also statutorily required.









                   EPA has deleted the requirement to provide the specific




              dates of shipments and instead is using the statutory language




              which allows more flexibility.  EPA also notes that an




              international agreement with Canada which is in the initial

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                                  -122-
              stages of development could address many of the concerns of




              Envirosure.
Tricil:            Most of the detail required by the proposed rule is




              workable with the exception of the request for the date of each




              shipment, which is not feasible to provide even within the




              60-day notice period.  The frequency of shipment can be provided




              (e.g., once per month, quarterly, weekly, etc.)  The commenter




              felt this will meet the intent of the legislators.
ICWM:              The commenter believed that the Agency should eliminate the




              requirement to stipulate the dates of expected shipments.  It is




              not always feasible to know even 60 days in advance of a




              shipment the exact date when waste will be transported.




              However, it is feasible for the exporter to note the number of




              shipments that can be expected in a given period (e.g., once a




              month or weekly).  The commenter felt that by requiring a




              notation of the expected frequency rather than an exact date the




              intent of the legislation would be met.
Stoel:             The commenter felt that the specificity required by




              §262.53(a)(2)(ii) goes beyond the requirements of RCRA §3017.




              In many instances, it may be extremely difficult for an exporter




              to predict the estimated number of shipments or the approximate

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                                  -123-
              dates for those shipments.   For example,  a manufacturer may not




              be able to predict 60 days  in advance its output of




              manufacturing process wastes, the generation of which fluctuates




              depending upon many unpredictable factors.  Therefore,  the




              commenter suggested that this subsection be replaced by the




              exact language of RCRA §3017(c)(3),  which provides for a greater




              degree of flexibility.
Border




Steel:
     The commenter noted that EPA requests that a schedule be




made of the number of shipments to be made, the date of each




shipment, and the amount of waste in each shipment.  Making




projections like this is a very tricky business and such




projections are often incorrect.  However, the only provision




recognizing this in the proposed regulation is one requiring the




exporter to start over again in the notification process and to




discontinue shipment until any change is authorized and




consented to by the receiving country.
RESPONSE:          Clearly, the date of arrival of a shipment and the number




              of shipments is susceptible to change due to unforeseeable




              circumstances.  Although the notification described in the




              proposed rule only required the approximate date and number of




              shipments, no guidance was provided on how much deviation from




              the approximate date was allowable without the need for




              renotification.  To avoid the uncertainty inherent in the




              proposed language and in view of the concerns expressed by

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                                  -124-
              commenters,  EPA has chosen instead to adopt the statutory




              language,  requiring that "the estimated frequency or rate at




              which such waste is to be exported and the period of time over




              which such waste is to be exported" be included in the




              notification.   EPA believes this change clearly meets




              Congressional  intent while providing more flexibility to




              exporters.  EPA does not feel, however, that required inclusion




              of the estimated total quantity of wastes being exported as




              required in §262.53(a)(2)(iii) will place an unnecessary burden




              on exporters.   EPA suggests that exporters specify the high end




              of the possible range of waste quantity.  EPA notes that neither




              its proposed or final rule requested the amount of each shipment




              -- the rule requires estimated total quantity for the period




              covered by the notification.
B.   Other Comments
Environment        The commenter stated that if a receiving country is to be




Canada:       adequately informed, then the information supplied in a




              notification must be in accordance with the requirements of the




              receiving country.  This would assist the receiving country in




              making an informed decision to consent or object on the basis of




              the information supplied in a notification.

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                                  -125-
                   Th e commenter suggested the following changes in notifica-




              tion as expressed in the proposed rule:









                      Section 262.53(a)(2)(i):   "...identified in 40




                   CFR Parts 171-77; and applicable description and




                   identification numbers in the receiving




                   country."








                      Section 262.53(a)(2)(iii):   "Manifest Form




                   (8700-22):  and the receiving country's




                   manifest."
RESPONSE:          EPA believes that a bilateral agreement between Canada and




              the U.S. could ensure that notification was in accordance with




              the requirements of the receiving country.  EPA does not feel




              that the suggested additions to the language of the regulation




              should be included as a generic matter.  Some countries may not




              have identification numbers and manifests.  However, it is




              always the right of the receiving country to request additional




              information before responding to the notification.
JM:                The commenter urged the Agency to develop a form for




              companies to use for Notification of Intent to Export.  This




              should speed the process of obtaining consent from the receiving




              country.  By standardizing the format, ease and speed of

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                                  -126-
              comprehension are increased and the likelihood of companies




              submitting "incomplete" notifications is decreased.  In addition




              to the information requirements outlined in §262.53(a), the form




              should contain a space for additional comments or explanations




              and a box to check off if attachments are included with the




              form.  This commenter also supplied a suggested form.
Natl.              The commenter urged that EPA use a standard form for




Wildlife:     notifying receiving countries.  This would assure that all




              relevant information is uniformly and adequately transmitted,




              and should not require excessive amounts of time to be completed.








RESPONSE:          EPA feels that the notification requirements are




              sufficiently straightforward and that use of a standardized form




              is unnecessary.  In addition, under the final regulation,




              nothing precludes the exporter from including additional




              comments or explanations with the notification.
EC:
     The commenter noted that EC directives require, in addition




to the information named in the proposed regulations,




identification of the carrier transporting waste, information on




third party insurance, contractual agreement between holder and




consignee, specification of process by which waste was




generated, and identification of waste producer if different




from exporter.  The commenter also stated that any member state

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                                  -127-









              "competent authority" may require further supplemental




              information or documentation.
RESPONSE:          EPA acknowledges that it is the receiving country's




              prerogative to withhold its consent or rejection of shipments




              until receipt of additional information from the exporter.  At




              present, EPA believes that as a generic matter the notification




              information required is adequate to achieve the purposes of




              §3017.

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                                  -128-
                              26.  MISCELLANEOUS
A.  International Agreements
Alto-Tronics:       The commenter suggested inclusion of a provision for




              consent which may cover numerous shipments within a specified




              time period (e.g., one year) where the receiving country has




              such provisions.
RESPONSE:          For the reasons provided in the preamble to the final rule,




              EPA has determined that a notification period may cover up to a




              12-month period.  Therefore, consent may cover several shipments




              within a specific time period.  Receiving countries may




              determine other coverage periods in the context of an




              international agreement.
CA




Legislator:
      The commenter strongly urged EPA to require the manifest to




 include verification from SEDUE (in the case of Mexico) that the




 Mexican consignee is a legitimate and licensed operation, under




 the laws of the Mexican government, to handle the hazardous




• waste.

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                                  -129-
RESPONSE:     The foreign country will be informed of the foreign consignee.

              Therefore, if it wishes to ensure that the consignee is

              legitimate, it may do so.   If it does not and still wishes to

              accept the waste, EPA should not generally interfere with the

              sovereignty of such nation.  Of course, to the extent that there

              may be significant impacts on U.S. environment due to common

              borders, the issue becomes more complex.   For these types of

              situations, an international agreement specifying such

              particularities as this commenter suggested may be appropriate.

              EPA will also consider for possible future rulemaking whether

              such a certification can and should be required generally where

              impacts of U.S. concerns are involved.
Tricil:
     The commenter favored an international agreement with

Canada that could streamline the process of complying with the

intent of the rule.
RESPONSE:          The U.S. is currently negotiating such an agreement with

              Canada.
Duncan:
     The commenter deals with Stablex, Inc., a hazardous waste

disposal firm doing business in Canada.  The commenter stated

that, given the number of forms that must now accompany each
                                   \
shipment, additional paperwork would not improve

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                                  -130-
              accountability.   Additional documentation should be required




              only in those cases where the receiving entity does not have




              specific authority to operate from the host country.  In the




              case of Stablex, this authority has been granted.
RESPONSE:          EPA does not believe that the additional paperwork




              requirements are too burdensome.   Besides the existing




              requirements for waste shipments, the only additional paperwork




              is essentially the written consent, some additional notification




              information, and an additional manifest copy.  Moreover, consent




              and notification are statutorily required in the absence of an




              international agreement.  EPA notes that such an agreement with




              Canada is in its initial stages of negotiation.
Environment




Canada:
     The commenter suggested that the application of any special




requirements for exports should also reflect the need to




recognize the applicable special requirements for such wastes in




the receiving country.  The commenter proposed that the




definition of exporter include the following wording:
                      "... in accordance with 40 CFR Part 262,




                   Subpart B, or equivalent State provision, or the




                   applicable legislation of the transit, and




                   receiving countries involved where the waste is

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                                  -131-
                   considered as being hazardous wastes, which




                   specifies
RESPONSE:          Although EPA supports such an approach in principal, it




              believes that if a foreign receiving country wants to expand the




              universe of waste for which it receives notification, this can




              best be accomplished through an international agreement between




              the country and the United States under §3017(f).  Moreover, it




              is questionable whether §3017 provides authority for EPA to




              regulate any materials for export that are not "hazardous




              wastes" under RCRA.
Australia:         The commenter noted that in the near future Australia will




              probably adopt a national classification system for hazardous




              wastes based essentially on the draft OECD "agreed list"




              approach (see ENV/WMP/86.3),  whereby each waste is described in




              relation to a number of criteria.  In this respect the




              description of hazardous waste proposed in the regulations would




              not necessarily include the following information that will be




              used in Australia:  the physical state of the waste; the generic




              waste type; other significant constituents of the waste; and the




              origin of the waste.
                   However, the commenter believed that the information that




              will be provided under the proposed U.S. regulations will, for

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                                  -132-
              all practical purposes in Australia, be quite adequate.  If an




              OECD-wide system of control of transfrontier movement is




              instituted, it seems that the waste description and other




              aspects of the proposed regulations would need to .be amended to




              accord with an OECD system.
RESPONSE:          If an OECD-wide system of control of transfrontier




              movements is instituted to which the U.S. is a signatory, EPA




              will review its legal authority to determine whether it can




              change its regulations to conform to such a system.
NRDC:
     The commenter noted that EPA has not proposed at this time




to promulgate regulatory requirements for international




agreements between the United States and other countries




pursuant to §3017(f).  Where such agreements exist, their terms




may replace the majority of the requirements set forth in §3017.
                   The commenter noted that the U.S. is currently negotiating




              an international agreement with Canada pursuant to §3017.  Since




              the Agency has not proposed the criteria for this agreement for




              public review and comment, the commenter requested that EPA




              publish the draft agreement itself in the Federal Register.




              Because this agreement would be the first of its kind and thus




              will set an important precedent under §3017(f), the commenter




              felt that it is particularly important that EPA subject its

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                                  -133-
              draft agreement to public scrutiny prior to reaching a final




              agreement with Canada.  Public comments submitted on the draft




              agreement would not only guide EPA in finalizing the agreement




              but would also aid the Agency in shaping future international




              agreements on hazardous waste exports.
RESPONSE:          EPA will consider the appropriateness of publishing a draft




              agreement for public comment or promoting other means for public




              input once the framework for an agreement has been agreed to.




              However, EPA notes that such an agreement may essentially be a




              formalization of the conditions of consent and as such is not




              subject to rulemaking procedures.  EPA also notes that such an




              agreement may be within the foreign affairs exception to the




              Administrative Procedure Act.
Envirosure:
     The commenter stated that the concerns expressed in the




proposed rule are not germane to the situation as it exists in




the Northeast market between the U.S. and Canada.  Including




Canada in these regulations on exportation of wastes is contrary




to free trade with Canada.
                   The time frames that EPA delineates in the proposal would




              unduly influence the ability of Canadian and United States firms




              to respond quickly to spills and other environmental situations




              requiring prompt action.

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                                  -134-
RESPONSE:          These generic regulations are governed by statutory




              requirements for notification and consent.  The time frames are




              considered necessary to transmit notification and consent




              generally.  To the extent these are inappropriate for a




              particular country, §3017(f) allows for international agreements




              deviating from certain statutory requirements.  We are currently




              in the initial stages of developing an agreement with Canada.




              In addition, it is likely that there are alternatives to




              exportation for dealing with emergencies.  And, to the extent




              export is involved, EPA will make every effort to further




              expedite transmission in emergency situations.
OHM:
     The commenter specializes in emergency and remedial




hazardous waste cleanup in the U.S. and Canada, and was




concerned that the proposed revisions might cause unnecessary




and costly delays in disposing of wastes from sites undergoing




cleanup.  The commenter stated that it is in the interest of EPA




and industry to expedite shipments of hazardous waste from




uncontrolled sites to licensed TSDFs.
RESPONSE:
     See preceding response to OHM comment in Issue 19.

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                                  -135-
B.  Point of Entry or Departure
Lake               The commentef claimed that it is incorrect to classify its




Carriers:     operations within the general "export industry" because its




              vessels are not in the business of exporting.  On the order of




              300-400 gallons of used oil per month per vessel are transferred




              ashore as an expedience from roughly 70 percent of the




              commenter's member vessels.  The commenter noted that the




              proposed amendment in §262.54(c) includes a requirement for the




              exporter to identify the point of departure from the United




              States.  The commenter's member vessels ply the waters of the




              eight Great Lakes States, and the used oil product being




              generated would likely be generated on the waters of several of




              those States and in the waters of Canada.  However, the product




              is unlike other exports in that it does not come from a facility




              in a State.  Thus, it is recommended that this requirement not




              be applicable to vessels due to their transitory nature.









                   The proposed §262.54(e) refers to "the exporter's State."




              This term would need some clarification for shipping interests.




              A vessel off-loading used oil in Canada would have last traveled




              through the waters of Michigan, but it may well .not have called




              at a Michigan port.  It is recommended that the exporter's State




              be defined as the State from which the vessel receives its




              dispatch orders.

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                                  -136-
RESPONSE:          Where hazardous wastes subject to the export rule are




              involved, the manifest should be obtained from the same State




              the vessel would have obtained its manifest if it were carrying




              the waste to a domestic facility by vessel.
CMA:               The transporter, not the generator, should provide




              information on departure points and transit countries.  Proposed




              §262.53 requires that the generator provide in the initial




              notification all points of entry to and departure from each




              foreign country through which the hazardous waste will pass and




              also requires the generator to designate the transit countries.




              These are extremely difficult requirements for the generator to




              meet, since the transporter has significant discretion in




              routing the material.  This is particularly true with respect to




              rail and truck movements from inland U.S. points to Canada and




              with respect to shipments to interior points in Europe.  The




              transporter, based on its train, truck or ocean vessel schedules




              and bookings, may elect to route through numerous alternative




              gateways.  U.S. generators/shippers may often not know of and




              have virtually no control over the gateways and transit.




              countries that may be selected by the transporter.  Therefore,




              notification of the specific gateways and transit countries




              should be a transporter requirement.

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                                  -137-
RESPONSE:          The Agency recognizes that the primary exporter may not




              have prior knowledge of the precise routes that the transporter




              may use.  However, the primary exporter,  in consultation with




              the transporter or intermediary arranging for the shipment,




              should be able to include such information in the notification.




              In addition, a variety of alternative routes can be included in




              the notification.  EPA notes that the port of entry to a




              receiving country is a statutory requirement which would appear




              to be as likely to change or not change as the ports of




              departure from and entry to transit countries.  EPA also notes




              that designation of gateways and transit  countries are important




              to enable a transit country to track the  shipment or stop its




              entry.  Similarly, gateways are important to receiving countries




              in order to track the shipment.
Stoel:             The commenter believed that the term "point of departure




              from the United States" requires definition.   In many cases, an




              exporter may deliver a shipment of hazardous  waste to a




              transporter at one port only to later find that the shipment was




              unloaded and reloaded at some other port still within the United




              States.  Even where such unloading and reloading does not occur,




              the exporter may have no knowledge or control over what ports




              the transporter may enter in the United States before delivering




              the shipment of hazardous waste to the receiving country.  The




              comtrtenter felt that a practical approach to this problem would




              be to define the point of departure as a point where the

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                                  -138-
              exporter delivers the hazardous waste to a transporter for




              exportation to the receiving country.
RESPONSE:          EPA's new regulations require the exporter to identify on




              the manifest the point of departure from the United States




              (§262.54(iv)).   This is no different from existing regulations




              at 40 CFR 262.50(b)(3)(ii).  The exporter, in consultation with




              the transporter, should have sufficient information on hand to




              determine the last U.S. port from which the shipment will leave




              for export.









C.  Hazardous Waste Imports
CMA:               The commenter thought the proposed new Subpart F, Imports




              of Hazardous Waste, should also contain a "treatment evaluation"




              exemption for samples of hazardous waste shipped into the United




              States.








                   It is quite common for licensees of U.S. technology




              periodically to ship samples of waste to the U.S. for




              comprehensive analysis regarding treatment, storage, and




              disposal measures.  The commenter believed that it is




              impractical to require manifests for these "de minimum"




              quantities of material.

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                                  -139-
                   Th e commenter recommended that the Subpart F rules contain




              an exemption for samples imported into the U.S. for evaluation




              of treatment, storage, and disposal measures.  Protection of




              human health and the environment is ensured since the analytical




              laboratory becomes the "generator" when a decision to dispose of




              any remaining sample occurs.
ARCO:
     The commenter added that it is quite common for foreign




licensees of the commenter's technology to periodically ship




samples of process waste, which may be characteristic hazardous




waste under EPA rules, to the United States for analysis.  The




commenter believed that it is impractical to require manifests




for small quantities of these imports, since analysis, not




disposal, is the intent of the shipment.
RESPONSE:          This comment is similar to the commenter's comment relating




              to the export of samples.  The Agency believes that this comment




              also has merit.  However, the Agency believes that creating such




              an exemption would require further analysis, and if deemed




              appropriate, a proposal for public comment.  As with exports of




              samples, the Agency questions what the appropriate conditions




              for such an exemption would be; for example, would some quantity




              limitation be desirable or some type of limit on the types of




              waste to be covered by the exemption.   EPA will consider the




              commenter's request for possible further regulatory action.

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                                  -140-
              However, the Agency is not at this time expanding the scope of




              the §261.4(d) sample exemption.  Therefore, unless and until




              future regulatory action is taken, imports of hazardous waste




              samples beyond the scope of §261.4(d) must comply with the




              requirements of Subpart F.
D.  Other Comments
Lake               The commenter objected that the proposed amendments in




Carriers:     §§262.55(a) and (b) do not recognize the situation wherein




              vessels are simultaneously generator, transporter, and




              exporter.   It is recommended that §§262.55(a) and (b) not have




              application where transporter and exporter are one and the same.
RESPONSE:          See the response to the commenter's comment in Issue 9.




                   EPA notes, however, that where a hazardous waste subject to




              the export requirements is involved and the transporter and




              exporter are one and the same, it would appear that §262.55(a)




              would automatically not apply since the "exporter" as the




              transporter would automatically have a copy of the manifest




              stating the date of departure from the U.S. and therefore




              exception reporting would not be necessary.  EPA sees no reason,




              however, why §262.55(b) would not be triggered in some instances




              since the foreign TSD is involved and an exception report is




              required where confirmation of delivery is not received.

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                                  -141-
MN Pollution       The commenter urged that the government of the receiving




Control:      country be required to certify to EPA that the receiving




              facility is substantially equivalent to a permitted TSDF, or at




              the very least, uses the "best available technology protective




              of human health and the environment."  It is not in the best




              interest of all concerned to allow export of hazardous waste out




              of the country and not assure proper management when it reaches




              its destination.  A copy of the manifest should be required for




              confirmation of the shipment or, at a minimum, a written




              confirmation including the waste description, waste code number,




              quantity, and date received.
RESPONSE:          EPA is concerned that to require such a certification would




              substantially interfere with the sovereignty of a foreign




              nation.  Moreover, notification allows a foreign country to




              ascertain the legitimacy of a TSDF if that is of concern to the




              foreign country.  However, EPA will consider, for possible




              future rulemaking, whether it has the authority to ban a




              shipment even when consent is received because of EPA's view of




              the adequacy of the foreign TSDF especially to the extent U.S.




              interests may be affected.
                   EPA rules require that the exporter require a confirmation




              of delivery.

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                                  -142-
MCA:
     The commenter anticipated that the proposed rule will serve




to further eliminate disposal sites used by clients in the metal




finishing/electronics industries that had been adequately and




safely handling hazardous waste materials.  The current




situation within the U.S. for the disposal of hazardous waste




should not be allowed to continue because it only increases the




cost of finished products to all consumers.
RESPONSE:          EPA is not aware of any reason why the export regulations




              for hazardous waste would eliminate disposal sites that are




              operating in accordance with applicable laws and regulations.








                   The commenter's concern relative to the need to cite cost -




              effective facilities domestically, since to do otherwise imposes




              additional cost on the public, is outside the scope of this




              rulemaking.
Tricil:
     The commenter recommended that there be no specific




regulations for internal implementation procedures, because the




more flexible administrative procedures can be in this already




highly regulated area the better.

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                                  -143-
RESPONSE:          EPA acknowledges and agrees with the commenter's




              recommendation that there be no specific regulations for




              internal implementation procedures for the transmission of




              notification, consent and objection.  EPA is not proposing any




              specific regulations regarding implementation procedures for the




              exchange of information among EPA, the Department of State,




              receiving countries and transit countries because these actions




              are administrative in nature and impose no requirements on the




              public.  However, the statutory time frames will govern these




              activities.
Merchant           The commenter stated that in reading the proposed rule, it




Shipping:     is unclear whether the EPA intended to cover U.S.-flag vessels




              with the proposed export requirements if they are discharging a




              solid waste generated on board the vessel in compliance with the




              regulations set forth in MARPOL 73/78.  The discharge may be in




              a foreign port under another nation's laws or at sea in




              compliance with U.S. law and Coast Guard regulations.  The




              commenter did not understand how a waste generated on board a




              U.S.-flag vessel during a coastwise voyage and discharged at sea




              or to a U.S. shore side facility can be covered by an "export




              regulation."  Similarly, the commenter failed to understand how




              a waste generated on board a vessel on a foreign voyage and




              discharged at sea or in a foreign port can be covered by a




              "export regulation."  The commenter therefore maintained that no




              ship board generated wastes can be covered by an export

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                                  -144-
              regulation.  However, this does not mean that the discharges of




              such wastes are unregulated.  These wastes are already regulated




              by an adequate body of law and regulation that prevents




              pollution from ships and controls the discharge of waste from




              ships.  The commenter therefore requested EPA to exempt vessels




              discharging wastes in accordance with MARPOL 73/78 and Coast




              Guard regulations from the proposed export requirements in Part




              262 or to clarify that coverage is not intended.
RESPONSE:          This commenter is concerned about oily wastes generated on




              board a vessel en route to a foreign country.  One type




              appears to be operational wastes generated on board and the




              other appears to be wastes generated in product or raw material




              storage tanks or transportation vessels.  These wastes as




              described are not a listed hazardous waste.  Nor was sufficient




              information provided indicating whether these wastes meet the




              definition of a hazardous waste through demonstrating a




              characteristic of ignitability, corrosivity, reactivity, or EP




              toxic.  If they do not, they would not be a hazardous waste and




              therefore would not be subject to the export rule on that basis




              alone.  Second, even assuming the wastes generated in a product




              or raw material storage tank or transport vessel are hazardous




              wastes, such wastes are not subject to the manifesting




              requirement domestically while being so generated.  (40 CFR




              §261.4(c).)  Accordingly, they would not be subject to the




              export requirements since the generator is not required to

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                    -145-
prepare a manifest to accompany such waste.  Third, for both




these types of wastes, assuming they are hazardous, EPA does not




believe that an "export" within the meaning of §3017 is




involved.  Commonly, an export is viewed as transporting a cargo




from the United States for the purpose of taking that cargo to




another country for sale, trade, disposal, etc.  The ship's




destination is a particular country for the purpose of taking




its cargo to that country.  These types of wastes are incidental




to transporting cargo to a foreign country.  They are not the




cargo driving the shipment.









     Since .Congress did not define what constitutes an "export,"




EPA has the authority to determine the reach of that term.  In




this respect, EPA also notes that the statute requires




notification before a hazardous waste is scheduled to leave the




United States.   This appears to contemplate the existence of a




hazardous waste before the waste leaves the United States.  Yet




much of this waste, if not all, will not even be generated until




the ship leaves the port or customs territory of the United




States.  Accordingly, EPA does not consider vessel operational




wastes discharged abroad or wastes generated in raw material or




product transport vehicles discharged abroad to involve an




export of hazardous waste within the meaning of §3017.  For




further discussion of a similar question, see the responses to




the comments by Lake Carriers.

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                                  -146-
                   With regard to such wastes generated on a coastwise voyage




              and discharged at sea or to a U.S. shore facility, these would




              also not come within the meaning of "export" within §3017 since




              no foreign country is involved.
JM:                The commenter urged EPA to issue an Exporter's Hazardous




              Waste Manifest form, incorporating the additional requirements




              in 40 CFR 262.54, and containing sufficient copies to meet State




              and federal distribution needs.  This manifest should be




              obtainable from EPA rather than from the generator's state.




              Setting up a federal system for this particular application is




              preferable because:  it will assure that the correct information




              and certification are included on the manifest; it will simplify




              enforcement by U.S. Customs by standardizing the format used;




              and it could provide specific instructions for distribution of




              manifest copies, exception reporting requirements, and need to




              attach a copy of the EPA Acknowledgment of Consent.
RESPONSE:          EPA does not believe that a separate manifest form for




              exporters is necessary.  Only two additional items are required




              on the manifest as a result of today's rule.  Item 16 requires a




              statement that the shipment conforms to the terms of the EPA




              Acknowledgment of Consent and in special handling instructions,




              the point of departure from the U.S. must be provided.  Other




              differences in manifest information for exports are minor and

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                                  -147-
              generally flow logically from those required domestically.  EPA




              does not believe that exporters will have difficulty in




              complying with these differences in using the existing form.




              Moreover, EPA does not believe that the relative amount of waste




              exported merits expenditure of resources for a separate form.
JM:                The commenter claimed that although this regulation may not




              be classified as "major" and, therefore, subject to a Regulatory




              Impact Analysis, its impact on precious metal refiners and




              hazardous waste generators will be significant if delays in




              exports occur while these affected parties are awaiting consent




              from a receiving country's government.  As a precious metals




              refiner,-the commenter's profits are directly linked to the time




              it takes to refine the precious metal bearing material and




              produce a saleable end product.  Metal values may be given to




              customers before their material is actually refined; in such




              cases, the metal provided to the customer is "borrowed" by the




              commenter, and interest charges must be paid on the loan.  Metal




              finance charges are expected to average 8% in 1986.  Based upon




              1985 data, the commenter estimated that it would lose




              $14,000/month for each shipment that is delayed, and that a




              90-day delay would cost $252,000.









                   The commenter expressed concern that generators of




              hazardous waste who are not also treatment, storage or disposal




              facilities may store hazardous wastes on-site for only 90 days.

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                                  -148-
              If receipt of consent from a foreign government is delayed




              beyond the anticipated 60-day period, a generator could quickly




              find himself in the position of being in violation of generator




              standards, through no fault of his own.









RESPONSE:          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.  As




              stated in the preamble to the proposed rule, EPA will process




              all notifications and written consents as expeditiously as




              possible.  Exporters may submit notifications to EPA earlier




              than the suggested 60 days if they so desire.  In the event that




              a generator must store wastes for over 90 days he must obtain a




              permit to do so.
Co. San            The commenter found the verification procedures to be




Diego:        inadequate to properly regulate shipments of hazardous waste




              into Mexico.  The commenter noted that the high cost of disposal




              in the U.S. has led to increased illegal dumping.  The commenter




              was concerned that because the Mexican government cannot expend




              the necessary resources to control foreign businesses, Mexico's




              citizens are placed at risk.  The commenter also stated that




              Mexican law prohibits the transportation of hazardous waste by




              U.S. haulers, thereby requiring a U.S. driver to pass his load

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                    -149-
to a Mexican driver.  This severely strains the




"cradle-to-grave" chain of custody by either jeopardizing the




U.S. driver's ability to track the material or providing him




with a convenient excuse for the disappearance of loads.









     The commenter felt that the proposed regulations apparently




overlook this problem, requiring only that the U.S.  generator of




the waste file an exception report if signed copies  of the




manifest are not received from the transporter and foreign




consignee within a specified period of time.









     Taken in the context of the entire body of proposed




regulations, the commenter found it difficult to not also




conclude that EPA is interested in strictly adhering to the




"cradle-to-grave" philosophy only within the boundaries of the




United States.   The commenter added that strict adherence to




this regulatory philosophy was deemed necessary in order to




protect the public health and safety, an issue which truly knows




no borders.









     The commenter also expressed disappointment with the EPA's




handling of the proposed export regulations.  Not only will they




be of little value in resolving what appears to be an escalating




problem with respect to Mexico, but the implementation schedule




allows no flexibility for public hearings and appears to allow




no time for revisions based on received comments.  Further, the




commenter added that the form of the regulations seems to

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                                  -ISO-









              indicate that they have been drafted with an eye toward




              countries with a rather sophisticated regulatory program.
RESPONSE:          EPA disagrees with the commenter's contention that it is




              less concerned about the safe transport and disposal of




              hazardous waste beyond the U.S. borders than within the United




              States.  The Agency believes that the requirements regarding




              exception reports and monitoring through U.S. Customs provide




              effective enforcement tools for exports of hazardous waste to




              foreign countries.  At the same time, these requirements respect




              the sovereignty of a foreign nation over its environment and




              citizens.  In addition, it is questionable whether EPA has any




              authority to impose controls on the handling of waste generally




              in a foreign country.









                   EPA notes that the preamble to the final rule discusses




              various tools for enforcing and monitoring hazardous waste




              exports.  For example, EPA has determined that it is necessary




              to require submission of the manifest at the border.  Thus,




              §262.54(h) of the rule requires the exporter to provide the




              transporter with an additional copy of the manifest which the




              exporting transporter must give to a U.S. Customs official when




              the shipment passes through the point of departure from the




              United States as required by §263.20(g)(4).   U.S. Customs




              Service will collect these copies and forward them to EPA on a




              regular basis.  Section 263.20(g)(4) requires the transporter to

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                    -151-
deliver a copy of the manifest to the Customs official at the




point of departure.  This is a new tracking device intended to




assisted EPA in monitoring and spot-checking exports of




hazardous waste.  Provision of this information to EPA will




allow the Agency to monitor closely the generator's compliance




with the EPA Acknowledgement of Consent, coordinate enforcement




actions with .foreign countries, establish trends and patterns




for enforcement and program development, and respond to




Congressional inquiries.








     In addition, the required exception reports (§262.55)




provide EPA with information that the waste has not left the




United States, reached the foreign consignee, or was returned to




the U.S. after rejection (when consent had been provided).








     The problems associated with shipments to Mexico may need




to be resolved through other mechanisms; for example, an




international agreement with Mexico or a stronger enforcement




program at the border.  EPA also notes that this commenter did




not suggest any regulatory provisions for resolving its concerns.








     Regarding the schedule for implementation, the statute




requires compliance by November 8, 1986.  Therefore,




implementing regulations are necessary by that date.  These are




generic regulations.  Case specific needs can be specified in




international agreements.

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                                  -152-
NRDC:
     The commenter stated that EPA should seek the authority to


stop a hazardous waste export in certain instances, even where


the receiving country has consented to a shipment.  EPA must

have authority to prohibit or delay a shipment in extraordinary

circumstances in which there is (1) evidence of a risk to the

environment of the U.S. or the global commons or (2) some other

unusual circumstance that could raise serious concerns in the


receiving country, thereby causing adverse foreign policy

consequences.
RESPONSE:          EPA believes there is a question as to whether EPA has the

              authority to prohibit shipment under §3017 where consent has

              been obtained.  If EPA determines it does not have the authority

              currently and such authority is deemed necessary, it will

              consider seeking such authority.
Natl.              The commenter suggested that the actual written consents of

Wildlife:     the receiving countries should be kept.
RESPONSE:          As stated in the preamble to the proposed rule, the

              original written communication from the receiving country would

              be sent to the State Department and then forwarded to EPA for

              retention.  A copy will also be forwarded to the exporter.  As

              far as recordkeeping is concerned, EPA is requiring that the EPA
                          \
              Acknowledgement of Consent be retained and not the actual

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                                  -153-
              consent document since the Acknowledgement of Consent is the




              operative document under the regulations.
Border Steel:      EPA proposes to "...  notify receiving countries of intended




              shipments ..." as required by §3017 of RCRA.   However,  as part




              of the notification, EPA proposes to advise the receiving




              country "...  that United States law prohibits the export of




              hazardous waste unless the [government of] the receiving country




              consents to accept the waste."  This seemed to the commenter to




              be begging the issue.  Telling a country that it can dictate




              United States national policy by simply withholding consent




              could provide an overbalance of power on the part of potential




              receiving countries.  Potential receiving countries with cash




              flow problems or in debtor status could use this "club" to




              sweeten their coffers or eliminate their debt, and unscrupulous




              officials of foreign governments could use the same club to line




              their own pockets.
RESPONSE:          Congress, in amending RCRA to include §3017, established




              that prior written consent by the receiving country must be




              obtained for hazardous waste exports.  In doing so, Congress




              went on to stipulate procedures for requesting consent of the




              receiving country.  In particular, §3017(d)(2) requires that the




              Secretary of State, acting on behalf of the Administrator,




              "advise the government [of the receiving country] that United

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                                  -154-
              States law prohibits the export of hazardous waste unless the


              receiving country consents to accept the hazardous waste."  EPA


              therefore asserts that its proposed procedures in this respect


              go no further than fulfilling the statutory requirements.
JM:                The commenter urged EPA and the Department of State to


              provide the foreign government with an actual copy of the


              exporter's notification (or literal translation of the same,


              where appropriate) as soon as possible.  The additional


              information that may be contained in the exporter's notification


              could affect either how quickly or whether consent is given by
      ,'

              the receiving country.





                   In order to assist in expediting foreign country processing


              of notification and consent, the exporter should be provided


              with the name, address and telephone number of the foreign


              government agency to whom the notification had been given, as


              well as the department and/or individual(s) within that agency


              responsible for reviewing the notification.  Since delays in


              shipping will have adverse economic impact on exporters, they


              should be given every opportunity to minimize their losses.
RESPONSE:          EPA and the Department of State plan to telegraphically


              transmit the notification to the receiving country for the


              reasons stated in the preamble to the final rule.  EPA will

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                                  -155-
              include information in this notification beyond that required as




              deemed important or necessary.  It is assumed that the receiving




              country will contact EPA or the exporter if it requires




              additional information.  Since this process is a matter of




              foreign policy, EPA believes that communications with the




              foreign government should be handled by EPA and the Department




              of State and not by the exporter.  Accordingly, the name and




              agency of the foreign government receiving the notification is




              not being provided.
Stoel:
     The commenter felt that to provide for consistency between




the international shipment notice and the Uniform Hazardous




Waste Manifest Form, the designation of container type in the




international shipment notice should be made according to the




instructions to the Uniform Hazardous Waste Manifest Form.
RESPONSE:          EPA agrees and is requiring the exporter to designate the




              container type in the international shipment notice according to




              the instructions to the Uniform Hazardous Waste Manifest Form.
Environment        The commenter suggested that the special manifest require-




Canada:       ments of §262.54(a) be amended as follows:

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                                  -156-









                      "... the exporter must enter the name, site




                      address and ID number of the consignee."
RESPONSE:          EPA does not know whether all consignees in foreign




              countries have ID numbers, although some do, as in the case of




              Canada.  The receiving country, through a bilateral agreement




              with the U.S., could require exporters to provide this




              information.  EPA believes that the information required is




              therefore appropriate as a generic matter.
Environment




Canada:
     The intent of the export requirements is to ensure that the




receiving countries have both adequate information and adequate




time to make reasonable, informed decisions to consent or not to




the receipt of a given hazardous waste.  As such, it would seem




reasonable to require that 40 CFR requirements should apply




equally to exports as to domestic shipments of hazardous waste.




However, the application of any special requirements for exports




should also reflect the need to recognize the applicable special




requirements for such wastes in the receiving country.
                   The onus to be familiar with a receiving country's




              requirements, be they similar but described in a different




              manner, more stringent, or in addition to any of those




              applicable under 40 CFR, should be on the exporter wishing to




              deal with a foreign facility.

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                                  -157-
                   This suggestion is embodied in the OECD principles to which




              the background of the proposed rule makes several references and




              particularly the OECD definition of "hazardous wastes" which




              states "means any waste .  .  .  considered as hazardous or legally




              defined as hazardous in the country where it is situated or




              through or to which it is conveyed ..."









                   In addition, "Subpart F - Imports of Hazardous Waste"




              clearly recognizes the above mentioned OECD principle and




              requires that exports from a foreign country to the U.S. comply




              with the requirements of the receiving destination (i.e.,




              "consignment state").
RESPONSE:          EPA agrees with the commenter in that it is the exporter's




              responsibility to become familiar with the requirements of the




              receiving country.  However, EPA believes that the receiving




              country should and usually does apply its domestic laws to




              activities by U.S. citizens while in such country.  Moreover, if




              advance information on such shipment is insufficient or




              inconsistent with such requirements, the receiving country may




              withhold its consent.  Regarding the applicability of §3017 to




              wastes not considered hazardous wastes in the U.S., EPA believes




              it is questionable whether it has authority to impose §3017




              requirements on such wastes as a generic matter and would be




              looking into this question.  Under §3017, this may be the proper




              subject of an international agreement, however.

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                                  -158-
Anchor:            The comtnenter felt that the proposed changes and additions


              to 40 CFR Parts 260, 262, 263, and 271 are manageable and


              consistent with efficient recordkeeping.  They should not impose


              any additional burden or workload.
ARCO Alaska:       The commenter expressed support for EPA's proposal to


              require advance notification and consent from receiving


              countries prior to hazardous waste being exported from the


              United States for disposal.  In the interest of sound foreign


              policy, the United States should ensure that receiving nations


              are apprised of and agree to accept hazardous waste destined for


              disposal within their borders.  Without such a system, there


              would be a major loophole that could permit the export of


              hazardous waste to third world countries in order to avoid the


              hazardous waste controls in place in the United States.





CMA:               The commenter expressed support for EPA's proposal


              requiring advance written notification, written consent of the


              receiving country prior to shipment, and manifest requirements


              as they pertain to hazardous waste exported from the United
                                                  *

              States for disposal.   Such requirements are important to ensure


              the proper management of hazardous waste.  The basic framework


              proposed by EPA will ensure that the receiving country is fully


              cognizant of disposal activities being conducted within its


              borders.

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                                  -159-
RESPONSE:          The Agency acknowledges these commenters'  expressions of




              support.

-------