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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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"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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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RESPONSE: This comment has been addressed in the preamble to the
final rule.
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
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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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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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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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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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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
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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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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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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,
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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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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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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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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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• 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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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
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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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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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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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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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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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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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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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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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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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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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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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"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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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"... 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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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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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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RESPONSE: The Agency acknowledges these commenters' expressions of
support.
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