[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16290-16316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8087]
[[Page 16289]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 9, et al.
Imports and Exports of Hazardous Waste: Implementation of OECD Council
Decision; Final Rule
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules
and Regulations
[[Page 16290]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 260, 261, 262, 263, 264, 265, 266 and 273
[FRL-5447-1]
RIN 2050-AD87
Imports and Exports of Hazardous Waste: Implementation of OECD
Council Decision C(92)39 Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The rule identifies the wastes, under the Resource
Conservation and Recovery Act (RCRA), that are subject to a graduated
system (green, amber, red) of procedural and substantive controls when
they move across national borders within the OECD for recovery. (EPA
may, in the future, identify wastes under other statutes that are
subject to the OECD Decision). It seeks to make the transactions fully
transparent and to prevent or minimize the possibility of such wastes
being abandoned or otherwise illegally handled. These requirements will
apply only to U.S. exporters and importers of RCRA hazardous wastes
destined for recovery in OECD countries (except for Canada and Mexico;
waste shipments to and from these countries will continue to move under
the current bilateral agreements and regulations). Those U.S. exporters
and importers transacting hazardous waste movements outside the scope
of today's rule will remain subject to EPA's current waste export and
import regulations at 40 CFR part 262, subparts E and F.
This rule does not increase the scope of wastes subject to U.S.
export and import controls; it does, however, modify the procedural
controls governing their export and import when shipped for recovery
among OECD countries. Today's rule will assist in harmonizing the new
OECD requirements, reducing confusion to U.S. importers and exporters
and increasing the efficiency of the process.
EFFECTIVE DATE: This rule is effective on July 11, 1996. The OECD Green
List of Wastes (revised May 1994), Amber List of Wastes and Red List of
Wastes (both revised May 1993) as set forth in Appendix 3, Appendix 4
and Appendix 5, respectively, to the OECD Council Decision C(92)39/
FINAL (Concerning the Control of Transfrontier Movements of Wastes
Destined for Recovery Operations) were approved by the Director of the
Federal Register to be incorporated by reference in today's rule on
July 11, 1996.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at 1235 Jefferson-Davis Highway,
First Floor, Arlington, Virginia 22203. The Docket Identification
Number is F-94-IEHF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding federal holidays. To review docket
materials, the public must make an appointment by calling (703) 603-
9230. The public may copy a maximum of 100 pages from any regulatory
docket at no charge. Additional copies cost $.15/page. Some supporting
materials are available electronically. See the ``Supplementary
Information'' section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing
impaired). In the Washington metropolitan area, call 703-412-9810 or
TDD 703-412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Ms. Julia Gourley, Office of Solid Waste (5304),
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460, (202) 260-7944.
SUPPLEMENTARY INFORMATION:
Internet Access
Selected supporting materials are available on the Internet. Follow
these instructions to access the information electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335.
This report can be accessed off the main EPA Gopher menu, in the
directory: EPA Offices and Regions/Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste-RCRA-
Subtitle C/Exports/Imports.
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet address
Files are located in /pub/gopher/OSWRCRA.
Preamble Outline
I. Authority
A. Good Cause Exception to Notice and Comment Requirement
B. Effective Date
II. Background
A. History of the OECD and Development of Council Decision
C(92)39/FINAL
B. Relationship to the Basel Convention
C. Summary of Decision
1. Waste Lists
a. Green, Amber, and Red Lists
b. Unlisted Wastes
c. National Procedures
2. Control Procedures
a. Green-List Wastes
b. Amber-List Wastes
c. Red-List Wastes
d. When Wastes are not Considered Hazardous by All Concerned
Countries
III. Specific OECD Requirements and Relationship to RCRA
A. Differences Between the OECD Decision and Today's Rule
B. Definitions
1. Competent Authorities
2. Concerned Countries
3. Consignee
4. Country of Transit
5. Exporting Country
6. Generator
7. Importing Country
8. International Waste Identification Code
9. Notifier
10. OECD Area
11. Person
12. Recognized Trader
13. Recovery Facility
14. Recovery Operations
15. Transfrontier Movement
16. Wastes
C. Notification and Consent for Exports
1. Provisions Applicable to Amber-List and Red-List Wastes
a. Notice and Consent for Specific Shipments
b. General Notification
c. Pre-Approval for Recovery Facilities Managing Amber-List
Wastes
d. Return or Re-Export of Shipments
2. Unlisted Wastes
D. Tracking Documents
1. Routing of Tracking Document
E. Contracts
F. Importers
1. Definition
2. Requirements
a. Notification of Receipt
b. Pre-Approval of U.S. Recovery Facilities
G. Reporting and Recordkeeping
IV. OECD Waste Lists and Relationship to RCRA
A. Relationship of OECD Wastes and RCRA Hazardous Wastes
B. Status of Specific RCRA Hazardous Wastes
1. Definitions of Wastes Subject to National Procedures
2. Exemptions from the Definition of Solid Waste Definition
3. Applicability to Hazardous Waste Subject to Special Recycling
Standards
a. Scrap Metal
b. Lead-Acid Batteries
4. Wastes Excluded Under 40 CFR 261.4
5. Hazardous Wastes Exempted Under 40 CFR 261.5
6. Applicability to Universal Wastes
7. Non-RCRA Wastes and Other Regulatory Regimes
C. OECD Waste Lists Incorporated by Reference
V. Applicability in Authorized States
VI. Relationship to U.S. Bilateral Agreements
VII. Relationship to Other Programs
VIII. Future Rulemaking
IX. Regulatory Impact Analysis
[[Page 16291]]
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
1. Display of OMB Control Numbers
2. Burden Statement
Note: The Agency notes that previous, pre-publication versions
of this rule may inadvertently have been made available (e.g.
through the Internet and other on-line means). This rule, published
today in the Federal Register, supersedes any and all of these pre-
publication versions. This published rule constitutes the Agency's
final rule and reflects certain minor technical corrections that
were not contained in pre-publication versions.
On March 30, 1992, the Organization for Economic Cooperation and
Development (OECD) adopted Council Decision C(92)39 Concerning the
Control of Transfrontier Movements of Wastes Destined for Recovery
Operations (Decision). The United States, a member of OECD, supported
the Decision and has agreed to follow its terms, which, with respect to
RCRA wastes, EPA is implementing in today's Final Rule.
I. Authority
Authority to promulgate today's rule is found in sections 2002(a)
and 3017(a)(2) and (f) of the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act (RCRA), and as amended by
the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901 et seq.
Today's final rule is necessary to ensure implementation of the
Organization for Economic Cooperation and Development (OECD) Council
Decision C(92)39/FINAL Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations (the Decision).
The Decision was supported by the United States and imposes legally
binding commitments on the United States pursuant to Articles 5(a) and
6(2) of the OECD Convention, 12 U.S.T. 1728. The Decision and today's
rule implementing the Decision also will ensure that the import and
export of RCRA hazardous waste destined for recovery, between the
United States and those OECD countries that are Parties to the Basel
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal, may proceed even though the United States is
not yet a Party to the Basel Convention.1
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\1\ OECD member countries consist of Australia, Austria,
Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland,
Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand,
Norway, Portugal, Spain, Sweden, Switzerland, Turkey, the United
Kingdom, and the United States. Mexico joined the OECD in June 1994.
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The Basel Convention entered into force on May 5, 1992, for the
twenty countries that ratified it by that date. Since then, a number of
other countries have also ratified. The Convention prohibits trade in
Basel-covered wastes between parties and non-parties, unless a
bilateral, multilateral, or regional agreement or arrangement exists in
accordance with Article 11 of the Convention. The Decision, which
entered into force before May 5, 1992, satisfies the requirements of
Article 11 of the Basel Convention because it is a pre-existing
multilateral agreement compatible with the environmentally sound
management of wastes as required by the Convention. Therefore, today's
promulgation of Subpart H as part of the RCRA hazardous waste export
and import regulations, which is necessary to implement the Decision,
will make it possible for persons within the United States to continue
exporting and importing Basel-covered RCRA hazardous waste for recovery
within the OECD, even if other OECD countries are Parties to the Basel
Convention. Additionally, today's rule will facilitate harmonization of
U.S. regulations with European Union regulations on waste exports and
imports, which went into effect on May 6, 1994. Future legislative and
regulatory actions will be needed to more fully implement this
Decision.
A. Good Cause Exception to Notice and Comment Requirement
The Decision sets out very specific requirements for shipments of
hazardous waste destined for recovery. EPA is implementing language
that essentially mirrors the Decision in order to establish certain new
requirements that will be enforceable against importers and exporters
[EPA is making only minimal, nonsubstantive changes to the OECD
language in order to conform today's rule to existing RCRA rules (e.g.,
substituting the RCRA-defined term ``transporter'' for the term
``carrier'' used in the Decision)]. EPA is promulgating these rules
without first providing notice and opportunity to comment. Under the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), an agency may
forgo notice and comment in promulgating a rule when, according to the
APA, the agency for good cause finds (and incorporates the finding and
a brief statement of reasons for that finding into the rules issued)
that notice and public comment procedures are impracticable,
unnecessary, or contrary to the public interest. For the reasons set
forth below, EPA believes it has good cause to find that notice and
comment would be unnecessary and contrary to the public interest and
therefore is not required by the APA.
EPA finds that notice and comment procedures are unnecessary in
connection with the promulgation of today's rule because EPA is
precluded from modifying the rule in any meaningful way in response to
public comment. The requirement to implement this Decision virtually as
written derives from the following.
First, the United States has entered into a legally binding
commitment with the other OECD countries to implement the Decision
virtually as written. Accordingly, today's rulemaking is analogous to a
codification of statutory requirements, in which an agency assumes the
ministerial, nondiscretionary functions of translating requirements to
regulatory form [see United Technologies Corp. v. EPA, 821 F.2d 714,
720 (D.C. Cir. 1987) (finding that EPA had good cause to omit notice
and comment for a rule codifying portions of the 1984 amendments to
RCRA); Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d
1282, 1291 (D.C. Cir. 1982) (finding orders implementing statutory
waiver were nondiscretionary acts required by such waiver and that
notice and comment procedures were unnecessary and possibly contrary to
the public interest ``given the expense that would have been involved
in the futile gesture'')]. Although the Decision is neither a statute
nor a court order and imposes no requirements directly on U.S. persons,
the U.S. Department of State has determined that the Decision is an
international agreement creating binding commitments on the United
States under the terms of the OECD Convention. By consenting to the
Decision, the United States Government has agreed to promulgate
regulations necessary to ensure that the United States can uphold the
agreement. Furthermore, EPA has determined that no statutory change to
the Resource Conservation and Recovery Act (RCRA) is needed because
RCRA currently authorizes EPA to promulgate rules governing imports and
exports of hazardous waste, and contains adequate authority to
promulgate the requirements of the Decision.
Second, today's rule cannot deviate materially from the Decision
because, as a practical matter, other OECD countries may refuse to
accept U.S. shipments of waste for recycling that do not conform to the
procedures agreed to in the Decision. Such countries also may refuse to
allow wastes to be shipped to the U.S. if the U.S. cannot carry out its
duties as specified in the Decision. Deviation from the regulatory
scheme
[[Page 16292]]
articulated in the Decision in response to comments might preclude the
U.S. from implementing the Decision and therefore from satisfying its
international commitments.
Third, EPA must implement the Decision virtually as written because
modifications could defeat the goal of achieving an internationally
consistent regime to control the import and export of hazardous and
other wastes destined for recovery. EPA believes that parallel
implementation of the Decision within the U.S. and other OECD countries
is crucial to ensuring that the import and export of wastes destined
for recovery proceed in accordance with an internationally integrated
regime. Without the uniform implementation of the controls it
prescribes, an internationally consistent regime is not possible, and
many of the environmental benefits of the Decision (and the Basel
Convention) will be lost.
EPA also believes that it has good cause to find that prior notice
and an opportunity to comment would not serve the public interest. As
noted above, the movement of RCRA hazardous wastes destined for
recovery could be halted between the United States and the OECD
countries, particularly those that are parties to the Basel Convention,
if the United States modified the regulations in response to comment
such that the regulations failed to conform to the OECD Decision. EPA
believes that the continued movement and recovery of such wastes is
environmentally and economically beneficial. The United States,
therefore, encourages the environmentally sound recovery of wastes,
particularly hazardous wastes, as an alternative to disposal [see,
e.g., 42 U.S.C. 6902(a)(6), 6935(a), 6941a; 42 U.S.C. 9621(b)]. EPA
believes that the import and export of wastes among OECD countries for
purposes of recovery serves the public interest by making waste
management facilities in the OECD available to waste generators in the
U.S. and other OECD countries, thereby providing additional assurance
that wastes amenable to recovery operations will be managed in an
environmentally sound manner. The United States' failure to implement
the Decision in the form approved by the OECD countries could thwart
this objective.
In further support of its finding that the public interest is not
well served by the allowance for comment on this rulemaking, EPA also
notes that the regulatory burdens of this rule flow from the Decision
itself and are not materially affected by the promulgation of today's
rule. Because a number of OECD countries to date have fully implemented
the Decision, many U.S. importers and exporters of wastes destined for
recovery who seek to trade with OECD countries in effect already are
subject to the requirements of the Decision through those countries'
controls on their imports and exports. For example, these countries may
already require, as a condition of authorizing the shipment, that U.S.
participants adhere to the Decision's contracting or notice
requirements, even though those participants are not yet required to do
so under U.S. law. Thus, it is the implementation of the Decision by
other OECD countries, rather than the implementation of today's rule,
that has the most profound effect on the regulated community. Because
today's rule merely formalizes the existing regulatory framework to
which the regulated community is already subject, its promulgation
without notice and comment does not detrimentally affect those persons
[see National Helium Corp. v. Federal Energy Administration, 569 F.2d
1137, 1146 (Temp. Emer. Ct. App. 1978)]. Indeed, as noted above,
today's rule ameliorates the effects of foreign laws on U.S. persons by
making it possible for RCRA hazardous waste destined for recovery to
move between the U.S. and other OECD countries without being stopped or
rejected for failure to conform to the Decision. Finally, where EPA
believes the OECD Decision is open to interpretation and affords EPA
some flexibility in interpreting and implementing its requirements, EPA
remains free to initiate a separate rulemaking process on those issues,
following all appropriate notice and comment procedures.
For the reasons set forth above, EPA believes that it has good
cause to find that implementation of notice and comment procedures for
today's rule would be unnecessary and contrary to the public interest,
and therefore is not required under 5 U.S.C. 553(b)(B) to initiate a
comment period.
B. Effective Date
Section 3010(b) of RCRA requires EPA to set the effective date for
rules promulgated under Subtitle C of RCRA at six months after the date
of promulgation unless (1) the regulated community does not need six
months to come into compliance; (2) the regulation responds to an
emergency; or (3) there is other good cause. EPA believes that the
regulated community will not need more than 90 days to become familiar
with today's rule and to begin implementing its requirements because
the new requirements refer primarily to the notices and consents that
are already required under existing law as a condition to the import or
export of the wastes destined for recovery. Moreover, EPA believes that
the regulated community is capable of, and indeed has an interest in,
immediate compliance with the new rule in order to continue to be able
to import and export wastes subject to the Decision, since most OECD
countries have already revised their regulations to incorporate the
Decision's requirements. EPA also believes it has good cause to make
this rule effective 90 days from publication, for the reasons set forth
above in connection with the APA's public notice requirement.
Therefore, EPA concludes that the six month effective date provision of
RCRA 3010(b) does not apply.
II. Background
A. History of the OECD and Development of the Council Decision C(92)39/
Final
The OECD was chartered to assist member countries in achieving high
economic growth, employment, and a rising standard of living while
ensuring that human health and the environment are protected. Presently
there are 25 member countries of the OECD: Australia, Austria, Belgium,
Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland,
Italy, Japan, Luxembourg, Mexico, Netherlands, New Zealand, Norway,
Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and
the United States.
The OECD was the first international organization to establish a
working group to analyze issues relating to transfrontier movements of
hazardous waste. In 1974, the OECD Environment Policy Committee, which
guides all OECD work involving environmental matters, created the Waste
Management Policy Group (WMPG), which includes government officials
responsible for controlling waste management in their respective member
countries.
In 1981, the WMPG began to prepare guidelines to control
transfrontier movements of hazardous waste. Thereafter, because some
members (including the United States) enacted legislation controlling
transfrontier shipments of hazardous waste, the OECD's primary mission
was to work toward harmonization of controls among the member
countries.
Much of the OECD's early work, including lists identifying wastes
to be covered by an international agreement controlling transfrontier
waste movements, was adopted by the United Nations Environment
Programme (UNEP) and incorporated into the Basel
[[Page 16293]]
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal (Basel Convention). More detailed discussion
of the Basel Convention can be found in the Federal Register at 57 FR
20602 (May 13, 1992).
Following completion of the Basel Convention and a 1991 OECD
Council Decision on wastes, an Advisory Panel to the OECD's Waste
Management Policy Group was chartered in January 1991. Its purpose was
to study whether a streamlined set of procedural notice and consent
requirements could be agreed upon by member countries for transfrontier
movements of waste destined for recovery. The panel developed a
graduated control system and lists of covered wastes (green, amber, and
red). The proposed system was presented to the WMPG as a draft Decision
in November 1991, for submission to the OECD Environment Policy
Committee. In December 1991, the Environment Policy Committee returned
the draft Decision to the WMPG for further refinement. A month later,
the WMPG revised the Decision, and through the Environment Policy
Committee, submitted the Decision document to the OECD Council. On
March 30, 1992, the Council adopted the Decision, with only Japan
abstaining. Japan later adopted and began implementing the Decision in
December 1993.
B. Relationship to the Basel Convention
The Basel Convention is an international agreement controlling the
transfrontier movement of hazardous and other wastes. While requiring
movements between Basel Parties to be managed in an environmentally
sound manner, it prohibits movements involving Parties and non-Parties
absent a separate bilateral, multilateral, or regional agreement or
arrangement that is compatible with the aims and purposes of the
Convention (for pre-existing agreements) or that contains provisions
that do not derogate from the environmentally sound management required
by the Basel Convention (for newly negotiated agreements). Such
agreements are recognized under Article 11(2) of the Convention. As a
pre-existing arrangement under Article 11(2), the Decision averts
potential trade disruptions between members of the OECD that are
Parties to the Basel Convention and members that are not.
The U.S. will not become a Party to the Basel Convention until it
ratifies the Convention. In order to ratify the Convention, the U.S.
must have additional statutory authority to implement its terms. Once
the U.S. has the necessary authority, the export and import regulations
at 40 CFR 262 Subparts E and F will be modified.
Exports and imports among OECD countries of waste destined for
recovery will be governed by the procedures set forth in today's
regulations and by any future regulatory changes made to implement the
Decision (including future changes to the Decision).\2\ Exports and
imports of RCRA hazardous wastes within the OECD for purposes other
than recycling (e.g., disposal or treatment) will continue to be
subject to the current RCRA export and import regulations.
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\2\ For example, today's regulations implementing the OECD
Decision will be modified once EPA obtains legislative authority to
control the transfrontier movements of household wastes, which
appear on the OECD amber list.
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C. Summary of Decision
OECD Council Decision C(92)39/FINAL establishes a graduated control
system for the transfrontier movement of wastes destined for recovery
operations. The Decision reflects recognition by the OECD of the
importance of transboundary movement of wastes for recovery, because
highly specialized recovery facilities are not found in every country
and because OECD generally supports a waste management hierarchy in
which recovery is more desirable than final disposal. The goal of the
negotiations was to ensure that recovery of materials from wastes could
continue internationally, provided the shipments were managed in an
environmentally sound and efficient manner.
The OECD has developed draft guidance on environmentally sound
recovery practices for particular wastes. In addition, some of the
member countries are actively engaged in the development of technical
guidelines for environmentally sound management of hazardous and other
wastes under the Basel Convention. To date, seven technical guidelines
on management of specific waste streams and waste management practices
have been adopted by the Basel Parties, along with a framework document
outlining the elements to be included in the technical guidelines. They
are: hazardous waste from the production and use of organic solvents;
waste oils from petroleum origins and sources; wastes comprising or
containing PCBs, PCTs, and PBBs; wastes collected from households;
specially engineered landfills, incineration on land, and used oil re-
refining or other re-uses of previously used oil. The purpose of the
technical guidelines is to assist developing countries in becoming
self-sufficient in waste management as they industrialize and develop
their economies. The Basel Parties have agreed to develop other
technical guidelines as resources permit.
The Decision establishes a range of different procedural controls
depending on whether a waste appears on the Decision's green, amber, or
red list (or no list, in which case hazardous wastes are regulated as
red-list wastes). Green-list wastes require no controls beyond those
typically imposed in normal international commercial shipments. Amber-
list wastes, which are considered hazardous, may be shipped for
recovery under one of three arrangements: (1) movement pursuant to a
shipment-by-shipment written notification by the export notifier or
competent authority of his government to the competent authorities of
OECD concerned countries (i.e., exporting, importing and transit), and
written or tacit consent from the relevant OECD importing and transit
countries; (2) movement pursuant to a general notification and written
or tacit consent from the competent authorities of the relevant OECD
importing and transit countries; or (3) movement to facilities pre-
approved by the importing country to accept that waste type which
requires only prior written notification to the competent authorities
of the concerned countries. In all cases, amber-list wastes must be
accompanied by a tracking document and the waste must be shipped under
a legally binding contract, chain of contracts, or equivalent
arrangements if the notifier and receiving facility are part of the
same legal or corporate entity. Red-list wastes are handled in the same
manner as amber-list wastes except that prior written consent from the
importing and transit countries is always required and no facilities
are pre-approved to accept these wastes.
In addition to assigning specific wastes to the green, amber or red
lists, the Decision allows for each member country to employ its
``national procedures'' to determine whether a waste is considered
hazardous under its laws and regulations, and therefore whether it is
subject to amber or red controls. Thus, as discussed in more detail
below, a waste that is not hazardous as determined by national
procedures will not be subject to amber or red controls regardless of
which list it appears on, a green-list waste that is considered
hazardous will be subject to amber or red controls, while an unlisted
waste considered hazardous as determined by national procedures will be
subject to red controls (see Sec. II. C. 2. d.)
[[Page 16294]]
1. Waste Lists
a. Green, Amber, and Red Lists. The waste lists (green, amber, and
red) are intended to be comprehensive, i.e., any waste subject to
transfrontier movement should be identified on one of three lists.
Wastes identified on the green list are presumed to be non-hazardous
while amber-list and red-list wastes are presumed to be hazardous.
However, transfrontier movements of red-list wastes for recovery are
presumed by the OECD to pose a greater potential risk than amber-list
wastes because of their hazardous properties or because there is less
experience in recovery of red wastes as compared to amber wastes. The
Decision allows a country to use its national procedures to determine
which wastes are hazardous.
b. Unlisted Wastes. Although the green, amber, and red lists of
wastes are intended to be comprehensive, it is possible that there are
wastes moving internationally for recovery that are not on any list.
The WMPG developed the Review Mechanism in accordance with the General
Provisions section of the Decision, to evaluate and assign unlisted
waste to an appropriate list. The Review Mechanism is administered by
an OECD group known as the Working Party. Under the Review Mechanism,
the Working Party forwards recommendations to the OECD Council through
the WMPG, the Pollution Prevention and Control Group, and the
Environment Policy Committee. The Working Party also identifies other
implementation issues that should be addressed under the Review
Mechanism.
In implementing the Review Mechanism, the Working Party uses the
criteria in Annex 2 of the OECD Decision to evaluate wastes and to
formulate recommendations regarding their placement on a specific list.
The criteria are divided into two major categories: waste properties
(e.g., degree of hazard, physical state) and management practices
(e.g., handling prior to recovery). The terms of reference for the
Review Mechanism require that changes to the waste lists be proposed or
supported by at least one member country and circulated to all members
at least six weeks prior to convening the Review Mechanism's Working
Party.
Persons who export hazardous wastes from the U.S. to OECD countries
for recovery are encouraged to identify hazardous wastes which are not
currently identified on any list and to provide EPA with waste-specific
information responsive to the questions in Annex 2 of the Decision.
This information will be evaluated by the Agency prior to submission to
the Review Mechanism for consideration. Hence, it is critical that
complete information be provided to EPA at least two months (and
preferably earlier) prior to scheduled meetings of the Working Party to
conduct the Review Mechanism process. Until such time as an unlisted
waste is placed on a particular list pursuant to the Review Mechanism,
the Decision provides that unlisted wastes considered hazardous under
national procedures move under red controls and that unlisted waste
considered non-hazardous under national procedures move under green
controls.
c. National Procedures. The OECD amber and red waste lists are
quite broad, consisting of many generic categories which may include
both hazardous and non-hazardous wastes. The Decision therefore allows
a country to determine if a waste on an OECD list is hazardous based on
its ``national procedures'' or ``national tests.'' During the
negotiations of the Decision, the U.S. interpreted national procedures
to include both hazardous waste testing and regulatory determinations.
For purposes of today's rule, EPA has determined that a waste is
hazardous under U.S. ``national procedures'' if the waste meets the
following requirements under RCRA: (a) meets the Federal definition of
hazardous waste in 40 CFR 261.3; and (b) is subject to either the
Federal hazardous waste manifesting requirements in 40 CFR 262, or to
the universal waste management standards of 40 CFR 273, or to State
requirements analogous to Part 273. (As stated earlier, EPA may, in the
future, identify wastes under other statutes that are subject to the
OECD Decision). [Note: For purposes of brevity and convenience, only
the manifest criterion (and not the universal waste criteria) will be
mentioned specifically throughout the preamble as to whether EPA
considers a waste to be a hazardous waste and therefore subject to
today's rule. However, we emphasize that universal wastes (which are
considered hazardous wastes but are not subject to manifest
requirements) are also subject to today's rule. Further discussion of
universal wastes can be found in section IV. B. 6.]. This
interpretation is consistent with the Agency's 1986 export notification
policy [see 51 FR 28664 (Aug. 8, 1986)], in which the Agency concluded
that wastes that are not subject to manifesting domestically do not
pose a risk warranting export notification. Further discussion of EPA's
interpretation of national procedures as they apply to recyclable waste
can be found in section IV. B. 1.
2. Control Procedures
The specific control procedures required for the export or import
of wastes for recovery within the OECD depend on whether the relevant
exporting, importing and transit countries consider a waste to be
subject to green, amber or red controls under their national
procedures. Significantly, a particular waste's placement on one of the
OECD lists is not determinative of the level of control applicable to
the transfrontier shipment of such a waste for recovery. The lists
represent an attempt to reach a consensus among the member countries on
the level of control applicable to certain types of wastes; they do not
supersede a country's authority to apply different levels of control
for a particular waste pursuant to its national procedures.
Accordingly, although a waste's placement on the OECD green, amber and
red waste lists may indicate the applicable level of control in most
cases, exporters and importers must determine which level of control
applies to a particular shipment of waste under the national procedures
of each affected country.
All waste shipments that are subject to today's final rule must be
sent to facilities that are allowed under the applicable laws of the
importing country to receive and perform recovery operations on the
wastes. In addition, the Decision requires that all transfrontier
movements of waste within the OECD comply with the provisions of
applicable international transport agreements.\3\ Any transit of wastes
through a non-member country is subject to all applicable international
and national laws and regulations.
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\3\ These international agreements include, but are not limited
to, the Chicago Convention (1944), ADR (1957), ADNR (1970), MARPOL
Convention (1973/1978), SOLAS Convention (1974), IMDG Code (1985),
COTIF (1985), and RID (1985). See Appendix 1 of Council Decision
C(92)39/Final in Appendix 3 of today's preamble.
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a. Green-List Wastes. Wastes on the green list that are exported
from the U.S. to OECD countries or imported to the U.S. from such
countries for recovery are subject to all existing controls normally
applied to commercial transactions, but are not subject to any
additional controls under the Decision. Such controls may include bills
of lading, customs declarations, international insurance, or other
controls.
However, if a green-list waste is ``sufficiently contaminated'' (as
described below) to meet the criteria for inclusion on the amber or red
lists, then
[[Page 16295]]
shipment must be managed in accordance with the applicable amber-list
or red-list controls. For the purpose of implementing the Decision, EPA
is interpreting ``sufficiently contaminated'' to mean a green-list
waste that is considered hazardous under U.S. national procedures
(i.e., waste or waste mixture meets the Federal definition of hazardous
waste in 40 CFR 261.3 and is subject to Federal manifest requirements).
Such wastes will be subject to amber-list controls, unless the reason
for the contamination is mixture with a red-list waste or with a
hazardous waste that is not found on any list. In those cases, the
waste will be subject to red-list controls.
As will be discussed further, the Decision acknowledges that
certain green-list wastes may be subject to amber-list or red-list
controls by certain countries, in accordance with their domestic
legislation and the rules of international law.
b. Amber-List Wastes. Shipments of amber-list wastes destined for
recovery within the OECD are subject to the amber-list control system.
If, however, the waste is sufficiently contaminated with other wastes
subject to red controls (i.e., red-list wastes or unlisted hazardous
wastes) the waste then becomes subject to the red control regime. In
addition, such waste could potentially be subject to other laws and
regulations.
Amber controls require that a shipment of amber-list waste move
pursuant to a legally binding written contract or chain of contracts
(or an equivalent arrangement if the notifier and the receiving
facility are part of the same corporate or legal entity). The contract
must include a provision for alternate management or re-export of the
waste if it cannot be managed as planned and must include financial
guarantees for such alternate management if so required by the
competent authorities of any concerned country, in accordance with
applicable national or international laws. The U.S. does not require
any financial guarantees for international waste shipments at this
time.
Prior to the proposed export, the notifier must provide written
notification to the competent authorities of all concerned countries to
allow them the opportunity to deny the shipment. As defined in
Sec. 262.81(g) of today's rule, the notifier is the person under the
jurisdiction of the exporting country who has, or will have at the time
the transfrontier movement commences, possession or other forms of
legal control of the wastes and who proposes their transfrontier
movement for the ultimate purpose of submitting them to recovery
operations (see section III. B. 9.). In certain cases, a general
notification will be permissible. The competent authority of the
exporting country may elect to perform the notification duties. EPA is
the United States' competent authority for OECD purposes. Therefore,
under today's rule, the notifier will provide written notification to
EPA for exports from the U.S. of RCRA hazardous wastes subject to
amber-list controls, and EPA will in turn notify the competent
authorities of all concerned OECD countries. The competent authority of
the importing country must issue an Acknowledgement of Receipt to the
notifier and to the competent authorities of the exporting and transit
countries within three working days of receiving the export notice. For
the purposes of this rule, ``transit country'' refers only to a transit
country that is a member of the OECD and is a Party to the Decision,
including Canada [see section III. B. 4. of today's preamble and
Sec. 262.81(d)]. The competent authorities of the importing and transit
countries have 30 days to consent or object to the shipment. However,
if the competent authorities of the importing and transit countries do
not notify the notifier in writing within 30 days of issuance of the
Acknowledgement of Receipt that the request has been denied or that
additional information is required, then tacit consent is deemed to be
granted, and the shipment may proceed as specified in the notification.
If a transit country denies consent, the proposed movement must be
rerouted and a new notification must be submitted to EPA to forward to
the new transit country. The movement may not commence until that OECD
country tacitly or expressly consents to the movement.\4\
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\4\ If the transit country is not an OECD member country, EPA's
regulations at Part 262, Subpart E apply. Under those regulations,
EPA will provide notice to such country of the proposed waste
movement, although under Subpart E consent of the non-OECD transit
country is not required. However, EPA would transmit any response
from the transit country to the exporter.
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The competent authority of the importing country may also allow a
notifier to submit a general notification for the shipment of amber-
list waste when that type of waste is to be sent periodically by the
same notifier to the same facility. The notification lasts up to one
year and may be renewed. In addition, OECD countries may designate
facilities that they have pre-approved for receipt of amber wastes (see
section III. C. 1. c.). When the U.S. receives notice from the OECD
that specific facilities are pre-approved by the competent authority of
a foreign government, EPA will undertake to make that information
available to U.S. notifiers. At the present time, there are no U.S.
facilities pre-approved for receipt of amber wastes (see section VIII).
Waste shipments must be accompanied by a tracking document. The
WMPG developed forms in March 1994 which are recommended to be used for
notification and tracking purposes.\5\ These forms may be used by U.S.
notifiers but will not be required until approved by OMB and codified
into the regulations. For hazardous wastes exported from or imported to
the United States, a uniform hazardous waste manifest also must
accompany the waste shipment while it is in the jurisdiction of the
U.S. (see section III. D.).
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\5\ A copy of the recommended OECD notification and tracking
forms can be found in the docket for this rule.
---------------------------------------------------------------------------
c. Red-List Wastes. The requirements for red-list wastes are
similar to the requirements for amber-list wastes with one very
important exception: tacit consent is not permissible. The red controls
include: a written contract, chain of contracts, or equivalent
arrangement where the notifier and recovery facility are part of the
same legal or corporate entity; written notification to the competent
authorities of the concerned countries;\6\ prior consent of the
importing and transit countries; and a tracking document accompanying
the shipment. However, unlike amber-list wastes, red-list wastes cannot
be shipped unless all necessary consents are obtained in writing. (See
section III. C, D, & E for additional information).
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\6\ Note that instead of the notifier, the competent authority
of the exporting country may, in accordance with domestic laws,
decide to transmit this notification to importing and transit
countries.
---------------------------------------------------------------------------
It is important to note that, within the U.S., in addition to the
OECD requirements, some red-list wastes also may be subject to
requirements under other legal authorities, such as regulations
promulgated under the Toxic Substances Control Act (e.g., PCB
regulatory controls promulgated in 40 CFR Part 760; see section IV. B.
7. for additional information).
d. When Wastes are Not Considered Hazardous by All Concerned
Countries. There may be cases in which the concerned countries (i.e.,
exporting, importing, and transit) disagree over the level of control
to be assigned to a waste on the OECD lists.
The Decision provides guidance in section II(4) for cases where the
[[Page 16296]]
exporting country, using its national procedures, does not consider a
waste on the amber or red OECD lists to be hazardous, while the
importing country does. In such cases, the importing country shall
assume all obligations assigned to the exporting country in sections IV
or V of the Decision, as applicable, particularly with regard to
notification requirements. This means that the competent authority of
the importing country or the importer would notify the competent
authorities of the exporting country, for information purposes, and
transit countries, for purposes of obtaining consent, prior to the
proposed import. If the exporting country does not consider the waste
to be hazardous under its national procedures, then no obligations
under the Decision rest on the exporter and the exporting country. For
example, if the U.S. does not consider a waste to be hazardous, today's
rule imposes no obligations on the U.S. exporter. However, the U.S.
exporter may need to provide information to the importer (e.g.,
consignee, or owner or operator of the recovery facility) so that the
importer can supply the competent authorities of the concerned
countries with the necessary notification information. This information
exchange requirement may be worked out in the contract, chain of
contracts, or equivalent arrangement for parties of the same legal or
corporate entity, so U.S. waste handlers should anticipate such
requests from waste trading partners in other OECD nations. Requests
may go as far as requiring the U.S. exporter to notify all competent
authorities in the concerned countries for wastes not considered
hazardous in the U.S.
In cases where only the exporting country considers the amber- or
red-list waste to be hazardous, the country's competent authority or
exporter would notify and seek consent of the importing and transit
countries prior to shipment in accordance with the appropriate amber-
list or red-list controls. Although these countries do not consider the
waste to be hazardous using their national procedures, the consent of
the importing and transit countries is still necessary under the laws
of the exporting country. The importer and exporter would also be
required to comply with any contractual requirements imposed by the
exporting country.
The Decision also recognizes in section II(6) the right of OECD
countries to require amber-list or red-list controls for wastes
identified on the green list, in accordance with domestic legislation
and international law, for the purpose of protecting human health and
the environment. OECD countries are required to inform the Secretariat
of such controls. For example, Austria has stated that it subjects some
green-list wastes and all amber-list wastes to red-list controls, while
Sweden subjects some green-list wastes to amber- or red-list controls.
Under today's rule, the U.S. requires any green-list wastes that are
hazardous under RCRA and subject to manifesting requirements to move
under amber controls. In these cases, the wastes are subject to the
country's controls only while they are in that country's jurisdiction.
Of course, the exporter or importer may, as a contractual matter, have
to comply with amber- or red-list control requirements before the waste
enters the jurisdiction of the country that considers the waste to be
hazardous.
The Decision does not address cases where the exporting and
importing countries consider a waste to be non-hazardous under their
national procedures but the transit nation does consider it hazardous.
In such situations, the Agency views the transit nation taking on
similar responsibilities as the importing nation in situations when an
importing nation is the only country to consider a particular waste
hazardous (discussed above). That is, the transit country shall assume
the obligations of the exporting and importing countries. In practice,
this may mean that waste handlers in transit nations may need to
request information from U.S. waste exporters through contractual
arrangements in order to seek and obtain consent from the competent
authorities of the transit countries.
e. Availability of Waste Lists. The current waste lists are
available in the RCRA docket under the number listed above. The
regulated community is encouraged to periodically check the docket for
the latest lists.
III. Specific OECD Requirements and Relationship to RCRA
A. Differences Between the OECD Decision and Today's Rule
Today's regulations implementing the Decision are applicable only
to hazardous wastes destined for recovery that (1) are hazardous under
RCRA and subject to manifesting requirements, and (2) are sent to or
received from an OECD country other than Canada and Mexico. All exports
and imports of hazardous waste to or from a non-OECD country, to Canada
or Mexico (see Sec. VI), or to OECD countries that are not Basel
Parties for the purpose of treatment (other than recovery) or final
disposal must be in compliance with current regulations discussed
immediately below.
Current RCRA regulations differ from the terms of the Decision
being implemented today. A summary of differences between the two are
shown in Table 1 for comparative purposes only and should not be used
as a substitute for today's regulations.
EPA's current export regulations are codified in 40 CFR 262,
Subpart E. The requirements include: notification to EPA at least 60
days prior to export so that EPA can notify the importing and transit
countries, prior written consent by the importing country, a copy of
the EPA Acknowledgement of Consent attached to the manifest
accompanying each shipment, and movement of the shipment in conformance
with the terms of such consent. The requirements in Part 262 also
include special manifest provisions, exception reporting, annual
reporting, and recordkeeping. Special transporter requirements are in
40 CFR 263.
40 CFR part 262, Subpart F, requires that U.S. hazardous waste
importers comply with the requirements for generators (40 CFR 262) and
specifies that the importer must indicate the name and address of the
foreign generator on the manifest. In addition, 40 CFR 264.12 and
265.12 require any U.S. hazardous waste management facility subject to
Parts 264 or 265 that arranges for the receipt of hazardous waste from
a foreign source to provide a one-time notification to EPA at least 4
weeks prior to receiving the waste. EPA also reminds importers that
they must comply with the land disposal restrictions once the wastes
enter the United States (see 40 CFR Part 268).
[[Page 16297]]
Table 1.--Summary of Relationship Between Current RCRA Export/Import Regulations and Regulations Implementing
the OECD Decision
----------------------------------------------------------------------------------------------------------------
Current RCRA regulation (40 Today's regulations implementing OECD decision
Issue CFR 262.50-262.60) (40 CFR 262.80-262.89)
----------------------------------------------------------------------------------------------------------------
General:
Applicability.................. Governs all imports and Scope of wastes covered same as current
exports of RCRA hazardous regulations. However, new Subpart H applies
waste subject to Federal only to waste imports and exports for
manifesting requirements recovery between U.S. and OECD countries,
in 40 CFR Part 262 excluding Canada and Mexico.\1\ For purposes
regardless of final of this rule, procedural controls apply to
disposition. amber-list, red-list, and unlisted wastes
that are RCRA hazardous and manifested. Green-
list wastes are exempt unless hazardous under
U.S. national procedures.
Imports:
Notification................... One-time advance notice per Current requirement for TSDs for one
waste stream per foreign notification maintained. In addition, EPA
source required for will receive notice from foreign exporter or
treatment, storage, or competent authority of his country, per the
disposal (TSD) facilities Decision.
regulated under Part 264/
265.
Approval to import............. None required \2\.......... For import to occur, EPA must give tacit or
written consent for amber-list wastes and
written consent for red-list wastes. Written
consent and objections must be sent to
notifier and competent authorities of
concerned countries.
Tracking....................... A uniform hazardous waste Same as current regulations, plus additional
manifest is required from OECD tracking information required. Tracking
the time the shipment document must stay with the shipment until
enters the U.S. until it received by recovery facility. Recovery
reaches the designated facilities under Parts 264/265 must return
facility. signed copy to notifier and competent
authorities of concerned countries.
Financial assurance for None required.............. None required under U.S. law for U.S.
alternate management. entities. If foreign exporter's government
requires such assurance, foreign notifier may
require U.S. importer to have financial
assurance as a condition of their contract.
Contracts...................... None required.............. A legally binding contract, chain of
contracts, or equivalent arrangement between
parties owned by the same corporate entity,
specifying each responsible party handling
shipments of amber-list or red-list wastes
and the responsible party in case alternate
management, re-exportation or re-importation
is necessary because arrangements for the
shipment or recovery operation cannot be
carried out as foreseen. Additional
provisions apply to recognized traders as
defined in Sec. 262.81(i).
Exports:
Notification................... Notification to EPA at Same as current regulations with additional
least 60 days prior to information requirements, except that
initial shipment is notification to EPA must occur at least 45
required; notice then days prior to initial shipment; may use OECD-
transmitted to importing recommended notification form; EPA will
and transit countries. notify competent authorities of importing and
Notice may cover multiple transit countries.
shipments for up to 12
months.
Approval of export by competent The importing country must For amber-list wastes, consent presumed 30
authority of importing country. consent to the export. EPA days from the date the competent authority of
notifies exporter by the importing country acknowledges receipt of
sending Acknowledgement of notification unless a denial or request for
Consent or objection. additional information is received; no
consent from importing country needed if
waste is destined for pre-approved recovery
facility, although prior notification is
required. For red-list wastes, written
consent is necessary to export.
Approval of export by competent None required. As a For amber-list wastes, consent is presumed 30
authority of transit country. practical matter, however, days from the date the competent authority of
since EPA transmits any the transit country acknowledges receipt of
response received from the notification unless a denial or request for
transit country, EPA additional information is received. For red-
expects that the exporter list wastes, written approval is necessary to
would reroute shipment if export. No consent is required from transit
the transit country countries that are not OECD members. As a
objects. practical matter, however, EPA expects that
the exporter would reroute shipment if the
transit country objects.
Tracking....................... Uniform hazardous waste Substantively same as current regulations,
manifest must accompany plus additional OECD tracking information
the shipment while in the required. OECD-recommended notification and
U.S and a copy must be tracking document or other paper supplying
left with Customs; EPA the required information may be used until
Acknowledgement of Consent OECD form approved by OMB and incorporated
also must be attached. into the regulations. Tracking document must
Exporter must receive stay with the shipment until received by
written confirmation of recovery facility. Recovery facility must
delivery to foreign return signed copy to export notifier and
consignee. competent authorities of concerned countries.
Financial assurance for None required.............. None required under U.S. law for U.S.
alternate management. entities. If foreign importing or transit
countries require such assurance, U.S.
exporters may be required to have financial
assurance as a condition of their contract or
face having proposed shipments denied.
Recordkeeping.................. Copies of manifests, The same as current requirements except that
notifications of intent to written consent from competent authorities of
export, EPA concerned countries is maintained in lieu of
Acknowledgments of EPA Acknowledgement of Consent.
Consent, exception
reports, and annual
reports must be maintained
for at least 3 years.
[[Page 16298]]
Reporting...................... Exporters must prepare and Same as current requirements.
submit an annual report
and exception reports to
EPA.
Contract....................... None required.............. A legally binding written contract, chain of
contracts, or equivalent arrangement between
parties of the same legal or corporate entity
specifying the name of each responsible
person handling shipments of amber-list or
red-list wastes and the responsible party in
case alternate management, re-exportation or
re-importation is necessary because
arrangements for the shipment or recovery
operation cannot be carried out as foreseen.
Additional provisions apply to recognized
traders as defined in Sec. 262.81(i).
----------------------------------------------------------------------------------------------------------------
\1\ Imports from and exports to Canada and Mexico are governed under the U.S./Canada bilateral agreement, the
U.S./Mexico bilateral agreement, and EPA's current regulations. These regulations include 40 CFR 262 Subparts
E and F, 40 CFR 264.12(a), and 265.12(a) in lieu of today's regulations.
\2\ For imports from Canada, the U.S./Canadian bilateral agreement requires notice and allows for tacit consent
if no response is lodged 30 days after the notice is received. For imports from Mexico, the U.S./Mexico
bilateral agreement requires notice, but does not allow for tacit consent.
B. Definitions
Many of the following definitions in the Decision are being
codified in today's rule. In some cases, the OECD definitions are
somewhat different than the current RCRA definitions. Where they are,
the differences are discussed. The definitions codified at 40 CFR
260.10 (e.g., Transporter, etc.). continue to apply to all terms not
defined in today's rule.
1. Competent Authorities
Competent Authorities means the regulatory authorities of concerned
countries having jurisdiction over transfrontier movements of wastes
destined for recovery operations.
The competent authority will be the agency or similar entity that
has authority over environmental or hazardous waste issues in the
receiving country. A list of the contacts for competent authorities of
OECD countries is provided in the docket for this rule. The competent
authority of the United States is the U.S. Environmental Protection
Agency. All notices and required information must be sent to the Office
of Enforcement and Compliance Assurance, Office of Compliance,
Enforcement Planning, Targeting and Data Division (2222A),
Environmental Protection Agency, 401 M St., SW, Washington, DC 20460.
The words ``Attention: OECD Export Notification'' should be displayed
prominently on the envelope.
2. Concerned Countries
Concerned Countries means the exporting and importing OECD
countries and any OECD countries of transit.
The OECD countries subject to this Decision are: Australia,
Austria, Belgium, Canada,7 Denmark, Finland, France, Germany,
Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United
Kingdom, and the United States.8
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\7\ Although Canada is subject to the Decision, movements of
waste between the U.S. and Canada that otherwise would be governed
by the Decision will continue to be controlled by the U.S./Canada
bilateral agreement and EPA's current regulations.
\8\ Mexico joined the OECD in June 1994. Movements of waste
between the U.S. and Mexico will continue to be controlled by the
U.S./Mexico bilateral agreement and EPA's current regulations, until
such time as the U.S. and Mexico agree to switch to procedures under
the OECD Decision.
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3. Consignee
Consignee means the person to whom possession or other form of
legal control of the waste is assigned at the time the waste is
received in the importing country.
Currently there is a definition of ``consignee'' at 40 CFR 262.51,
which means the ultimate treatment, storage, or disposal facility in
the receiving country to which the hazardous waste will be sent. The
OECD's definition, however, refers to the first person to take physical
or legal custody of the waste. This is broader than the Agency's
definition in 40 CFR 262.51, but imposes no new obligations on
importers. A consignee could be a recognized trader, transporter,
storage facility operator, or recovery facility operator. The OECD
definition for consignee will be codified today for exports/imports of
hazardous wastes destined for recovery among OECD countries to replace
the current definition found at 40 CFR 262.51.
4. Country of Transit
Country of Transit means any OECD country other than the exporting
or importing country across which a transfrontier movement of wastes is
planned or takes place.
The Agency interprets this definition to mean the same as transit
country, which is currently codified at 40 CFR 262.51 except that, for
purposes of this Decision, it is limited to OECD countries as defined
at 40 CFR 262.58(a).
It also should be noted that the United States made a declaration
that a state is a transit state or ``country of transit'' within the
meaning of the Decision only if wastes are moved, or are planned to be
moved, through its inland waterways, inland waters, or land territory.
Thus, in the United States' view, the movement of waste subject to
Subpart H through an OECD country's territorial sea but not through its
inland waterways, inland waters, or land territory would not make that
country a transit country for the purposes of today's rule.
5. Exporting Country
Exporting Country means any OECD country from which a transfrontier
movement of wastes is planned or has commenced.
6. Generator
Generator means a person whose activities create wastes.
It is the Agency's interpretation that the current RCRA regulatory
definition of generator found at 40 CFR 260.10 is consistent with the
OECD definition. The RCRA definition states that a ``generator'' means
any person, by site, whose act or process produces hazardous waste
identified or listed in 40 CFR part 261 or whose act first causes a
hazardous waste to become subject to regulation. This is particularly
relevant with respect to section II(8) of the Decision, which provides
that a person who mixes two or more wastes,
[[Page 16299]]
or otherwise changes the physical or chemical characteristics of the
waste, thereby creating a new hazardous waste becomes the generator.
Such persons henceforth assume responsibility for compliance with the
generator duties under RCRA and applicable notifier provisions in
today's rule.
7. Importing Country
Importing Country means any OECD country to which a transfrontier
movement of wastes is planned or takes place for the purpose of
submitting the wastes to recovery operations therein.
8. International Waste Identification Code
International Waste Identification Code (``IWIC'') is the
classification system specified and described in OECD Council Decision
C(88)90(Final) of 27 May 1988.
Determining the International Waste Identification Code for a
particular waste requires the completion of a specified formula with
information provided in each of 6 Tables. Use of the IWIC is not
required by the Decision, and as a practical matter, the IWIC has not
been used by all OECD countries; therefore, the definition is not being
codified today.
9. Notifier
Notifier is the person under the jurisdiction of the exporting
country who has, or will have at the time the planned transfrontier
movement commences, possession or other forms of legal control of the
wastes and who proposes their transfrontier movement for the ultimate
purpose of submitting them to recovery operations.
When the U.S. is the exporting country, notifier means a person
domiciled in the U.S. The Agency recognizes that in different
situations recovery facilities, consignees, recognized traders, or
generators can act as notifiers. If a person is a notifier, he is also
a primary exporter under 40 CFR 262.51.
10. OECD Area
OECD Area means all land or marine areas under the national
jurisdiction of any OECD country. As used in these regulations, the
term OECD countries means OECD areas.
11. Person
Person means any natural or legal person whether public or private.
The Agency interprets this definition to be consistent with the
definition of ``person'' currently found at 40 CFR 260.10, which states
that a Person means an individual, trust, firm, joint stock company,
Federal Agency, corporation (including a government corporation),
partnership, association, State, municipality, commission, political
subdivision of a State, or any interstate body.
12. Recognized Trader
Recognized Trader means a person who, with appropriate
authorization of concerned countries, acts in the role of principal to
purchase and subsequently sell wastes; this person has legal control of
such wastes from time of purchase to time of sale; such a person may
act to arrange and facilitate transfrontier movements of wastes
destined for recovery operations.
Under the Decision and today's rule, recognized traders who take
physical or other forms of control (e.g., legal) of the waste may act
as notifiers, consignees or recovery facilities with all associated
responsibilities. As provided in Sec. 262.86 of today's rule, a
recognized trader who takes physical custody of a waste and conducts
recovery operations (including storage prior to recovery) is acting as
the owner or operator of a recovery facility and must be so authorized
in accordance with all applicable Federal, State, and local license or
permit requirements. There also may be cases where recognized traders
act as brokers for transfrontier movements of wastes that are not
considered hazardous under U.S. national procedures, but which are
considered hazardous by another OECD country. To conduct business in
that OECD country, the broker would need to comply with the provisions
of the Decision as implemented by the OECD country. The broker's
responsibilities would most likely be addressed in his contract with
his foreign business associates. Recognized traders should anticipate
requests regarding contract information in such cases.
13. Recovery Facility
Recovery Facility means an entity which, under applicable domestic
law, is operating or is authorized to operate in the importing country
to receive wastes and to perform recovery operations on them.
Any facility in the United States that is legally allowed to
operate, to receive wastes, and to perform recovery operations and that
conforms with any applicable regulations may meet this definition. This
includes recovery facilities that are not required to obtain a RCRA
permit. Manifested hazardous waste shipments must, however, be shipped
to a RCRA designated facility (authorized under 40 CFR Parts 264, 265,
or 266 to accept manifested hazardous waste). It is important to note
that such facilities are not relieved of any regulatory requirements
associated with discharges to air and/or water that may apply under the
Clean Air Act or the Clean Water Act.
14. Recovery Operations
Recovery Operations means activities leading to resource recovery,
recycling, reclamation, direct re-use or alternative uses as listed in
Table 2B of the Annex of OECD Council Decision C(88)90(Final) of 27 May
1988.
The Agency considers ``recovery operations'' to be consistent with
the 40 CFR 261.1 and 261.2 definitions for recycling and reclamation.
Note, however, that under 40 CFR 261.2, certain wastes that are
directly re-used and off-specification products that are reclaimed are
not solid wastes; thus, they are not subject to either current RCRA
regulations or the OECD requirements implemented today.
15. Transfrontier Movement
Transfrontier Movement means any shipment of wastes destined for
recovery operations from an area under the national jurisdiction of one
OECD country to an area under the national jurisdiction of another OECD
country.
The Agency is interpreting the phrase ``area of national
jurisdiction'' in the United States to mean the 50 States, the District
of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
Note: The United States made a declaration that under
international law, notification or authorization of coastal states
is not required for passage through territorial seas and exclusive
economic zones (EEZs).
16. Wastes
OECD defines wastes in the OECD Decision on transfrontier movements
of hazardous waste C(88)90(Final) dated May 27, 1988, as materials
other than radioactive materials intended for disposal. ``Disposal'' is
defined in Table 2 of the same document to include typical disposal and
recovery operations. The list of recovery operations are included in
Sec. 262.81(k) of today's rule. In this rule, EPA interprets wastes to
include materials defined as solid and hazardous wastes in 40 CFR 261.2
and 261.3 and is therefore not codifying the OECD waste definition.
Materials outside the scope of EPA's definition of solid waste are not
subject to today's regulations. (As previously noted, EPA may, in the
future, identify wastes under other statutes that are subject to the
OECD Decision).
[[Page 16300]]
C. Notification and Consent for Exports
Notification of potential exports of hazardous waste destined for
recovery operations is a key component of the OECD requirements to
ensure that wastes are not moved if there is any objection from any of
the concerned countries. The notification and consent requirement
allows for the concerned countries (i.e., exporting, importing and
transit) to determine whether the hazardous waste can be handled safely
based on the requirements of their waste management system and of the
systems and qualifications of the particular facility that is
designated to receive the waste.
As discussed previously in today's preamble, only those hazardous
wastes subject to the Federal requirements for manifesting under 40 CFR
Part 262 are subject to the RCRA export/import requirements set forth
in today's rule. Notifiers subject to these rules must follow the
relevant amber-list or red-list control procedures, as discussed below
and codified in Secs. 262.82 through 262.86 of today's regulations.
1. Provisions Applicable to Amber-List and Red-List Wastes
Under the amber-list control system, there are two options for
notification and consent for shipments of amber-list wastes. The first
option requires written notification with tacit or written consent. The
second option, a facility pre-approval system, requires written
notification and is discussed in Sec. III. C. 1. c. of today's
preamble. Certain contractual obligations also apply to notifiers,
recovery facilities and all other parties to the waste movement. In
addition, under the red-list control system, facility pre-approval is
not allowed for shipments of any red-list wastes. Finally, although the
notification requirements for red-list wastes are the same as those
applicable to amber-list wastes, tacit consent is not permissible for
red-list wastes.
a. Notice and Consent for Specific Shipments. According to the
Decision, the notifier must provide written notification of intent to
export to the competent authorities of the concerned countries (i.e.,
exporting, importing and transit) prior to shipment.9 The Agency
today is requiring such notices to be submitted to EPA 45 days prior to
the commencement date of the proposed shipment of waste for recovery
within the OECD.10 EPA considers this period of 45 days as
appropriate in order to allow time for EPA to review and process the
notification documents, the Acknowledgement of Receipt to be sent by
the importing country (as required by the Decision), and the 30-day
tacit or written consent period (required by the Decision). In
addition, EPA considers this period of 45 days rather than 60 days
prior notice set forth in current U.S. regulations, as appropriate for
today's rule, because within the OECD context notifications and
consents are often faxed and disseminated in a much more expedient
manner than in other contexts. EPA, in lieu of the U.S. notifier, will
forward the export notices to the importing and transit countries.
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\9\ Note that the competent authority of the exporting country
may, in accordance with domestic laws, decide to transmit this
notification to importing and transit countries.
\10\ Note that current U.S. regulations require 60 days prior
notice. See 40 CFR 262.50-262.60.
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The export notification must contain the information specified in
Appendix 2 of the Decision. Much of this information is already
required for U.S. exports.
The OECD notification information includes:
(1) Serial number or other accepted identifier on the notification
form;
(2) Notifier name, address, and telephone and telefax numbers;
(3) Importing recovery facility name, address, telephone and
telefax numbers, and technologies employed;
(4) Consignee name, address, and telephone and telefax numbers if
the person is different than the owner or operator of the recovery
facility;
(5) Intended transporters and/or their agents;
(6) Country of export and relevant competent authority (the U.S.
Environmental Protection Agency);
(7) Countries of transit and relevant competent authorities;
(8) Country of import and relevant competent authority;
(9) Statement of whether the shipment is a single-shipment
notification or a general notification. If general, period of validity
requested;
(10) Date foreseen for commencement of transfrontier movement;
(11) If required by any concerned country, certification that any
applicable insurance or other financial guarantee is or shall be in
force covering the transfrontier movement
(Note: The U.S. does not currently require such financial
assurance);
(12) Designation of waste type(s) from the appropriate list (amber
or red), and the wastes' description(s), probable total quantity of
each, and an accepted uniform classification code (such as RCRA waste
codes and UN numbers and OECD waste list codes) 11 for each;
---------------------------------------------------------------------------
\11\ EPA requires UN numbers and RCRA waste codes in addition
to the OECD waste list codes to be included per Sec. 262.83(e)(11)
of today's rule.
---------------------------------------------------------------------------
(13) Certification that a written contract or chain of contracts or
equivalent arrangement between or among all parties to the
transfrontier movement, as required by Sec. 262.85, are in place and
are legally enforceable in all concerned countries; and
(14) Certification that the information is complete and correct to
the best of his/her knowledge.
In accordance with the existing Part 262 export regulations, EPA
will continue to require the notifier to identify facility EPA ID
numbers, if applicable, and information on the points of entry to and
departure from all foreign countries.
In July 1994, the OECD/WMPG finalized two forms: one to be used for
export notification and the other to accompany the shipment for
tracking purposes. The OECD/WMPG recommends, but does not require,
using the forms. EPA also recommends using the forms, but cannot
require their use until they are approved by OMB, and until EPA
promulgates such requirement. Before these events occur, EPA believes
that OECD countries, exporters and importers need to gain experience
with using the forms to determine if any modifications are needed;
thus, EPA recommends the forms be used immediately. Notification forms
are to be submitted to the Office of Enforcement and Compliance
Assurance, Office of Compliance, Enforcement Planning, Targeting and
Data Division (2222A), Environmental Protection Agency, 401 M St.,
S.W., Washington, DC 20460, with ``Attention: OECD Export
Notification'' prominently displayed on the envelope. If the
notification is complete, EPA will forward a copy to the competent
authorities of the importing country and any transit country. The
importing country must acknowledge receipt of the notification within
three working days. The Acknowledgement of Receipt will be sent by the
competent authority of the importing country simultaneously to EPA, to
the notifier, and to the competent authority of any transit country.
EPA will accept a telephone facsimile of such acknowledgements.
During the 30-day period after the Acknowledgement of Receipt is
sent to EPA and the notifier, the competent authority of the importing
country as well as any transit country may object to the proposed
movement of wastes. Objections by any of the concerned
[[Page 16301]]
countries must be provided in writing to EPA, to the notifier, and to
the competent authorities of other concerned countries within the 30-
day period. The OECD-recommended notification form was designed to be
used for Acknowledgement of Receipt, consent, and objection purposes.
In the case of amber-list wastes, if no objections to the waste
movement are submitted within the 30-day period, tacit (or implied)
consent is granted and the movement of wastes may begin. Tacit consent
expires one calendar year after the close of the 30-day period. If a
shipment for which tacit consent has been given does not take place
within that time, a new notification must be submitted and a new
consent obtained. Competent authorities of concerned countries may also
choose to provide written consent to the notifier and concerned
countries in less than 30 days. In this event, the waste shipment may
begin immediately after the last consent is received from all of the
competent authorities. In the case of red-list wastes, the export of
such waste may not occur until the importing and all transit countries
provide written consent. Written consent expires within one calendar
year, unless otherwise specified.
b. General Notification. In cases where similar wastes (e.g., those
having similar physical and chemical characteristics, the same UN
classification, and same RCRA waste codes) are to be sent periodically
to the same recovery facility by the same notifier, the competent
authorities of concerned countries may elect to accept one notification
for these wastes for a period of up to one year. The notifier must
indicate on the form that the notification is general. Such acceptance
may be renewed for additional periods of up to one year each. A
concerned country may revoke its acceptance at any time by official
notice to the notifier and to the competent authorities of all other
concerned countries.
c. Pre-approval for Recovery Facilities Managing Amber-List Wastes.
The competent authority of an importing country with jurisdiction over
specific recovery facilities may decide that it will routinely consent
to the shipments of certain amber-list waste types to specific recovery
facilities. An importing country wishing to employ this process must
inform the OECD Secretariat of the recovery facility name and address,
technologies employed, waste types to which the pre-approval applies,
the time period covered, and any subsequent revocations.
No specific consent is required from the importing country when
waste is to be sent to a facility pre-approved to accept that waste.
However, the notifier planning to ship waste to a pre-approved recovery
facility must notify the Agency pursuant to Sec. 262.83(e) prior to
shipment. Therefore, the notifier must submit a notification to the
Agency at least 10 days in advance of the shipment to allow time for
EPA to verify that the proposed recovery facility has received pre-
approval, that the pre-approval is still valid, and that the export
notice meets any conditions set by the importing country. For example,
the importing country may need to stop the shipment in the event that
the pre-approved facility needs to shut down operations temporarily for
maintenance or repair. Moreover, the competent authorities of all
concerned countries may restrict or prohibit such waste shipments in
accordance with applicable domestic laws. In addition, pre-approval
designations may be limited to a specific time period and may be
revoked at any time. Shipments may commence after the notification has
been received by competent authorities of all concerned countries,
unless the notifier has received information indicating that the
competent authority of one or more concerned countries objects to the
shipment. The general notification procedures discussed above may be
used for multiple shipments of the same waste type to pre-approved
facilities. In addition, the regulations pertaining to tracking
documents and contracts apply. As discussed in Sec. III. F. 3. of
today's preamble, EPA has not yet decided whether or how to pre-approve
U.S. recovery facilities for the purpose of granting prior consent. The
issue will be addressed in a future rulemaking.
Facilities that intend to receive shipments of red-list wastes are
not eligible for pre-approval. Rather, each shipment of red-list waste
must proceed pursuant to a specific or general notification for which
written consent was received.
d. Return or Re-Export of Shipments. If the shipment of amber-list
or red-list waste cannot be managed in the importing country as planned
and if alternate management is unavailable or unacceptable in the
importing country, the party designated in the contract as assuming
responsibility for adequate management of the waste in such cases may
decide to return the waste to the notifier or to export the waste to a
third OECD country where a suitable facility can manage it. Any such
re-export must comply with the requirements of Sec. 262.82(c) of
today's regulations. Competent authorities of all concerned countries
(importing, transit, exporting), in addition to the competent authority
of the initial exporting country, must be notified. Each competent
authority has up to 30 days to object to the re-export. The 30-day
period begins when the competent authority of both the initial
exporting country and the new importing country issue Acknowledgements
of Receipt of the notification. The re-export may commence once the
competent authorities of all concerned countries have consented (i.e.,
tacit or written for amber-list wastes, written for red-list wastes).
Re-export to a third country outside the OECD is fully subject to the
notification and consent requirements outlined above with respect to
the initial exporting country and any OECD transit country, as well as
to the domestic laws of the original importing country and to any
applicable international agreements or arrangements to which the
(original) importing OECD country is a Party, including (if
appropriate) EPA's current regulations.
The provisions for return or re-export of red-list wastes are the
same as for amber-list wastes except that written consent must be
obtained from all concerned countries (i.e. tacit consent is not
permissible for red-list wastes).
U.S. persons are not required to comply with the re-export
provisions of today's regulations with respect to amber- or red-list
wastes that are not considered hazardous under U.S. law. If the waste
is considered hazardous in the other concerned OECD countries, however,
U.S. exporters of such wastes may find it expedient (or necessary) to
comply with return or re-export requirements of those countries in
order to continue trade with them. These requirements may be addressed
under the terms of their contracts with their trading partners.
2. Unlisted Wastes
If waste not appearing on the green, amber, or red lists is a RCRA
hazardous waste as defined in 40 CFR 261.3 and is subject to the
Federal manifesting requirements under Part 262, the waste is subject
to the notification and consent requirements established for red-list
wastes (i.e., prior written consent is required). However, if a waste
does not appear on any of the OECD lists and is not a RCRA hazardous
waste subject to manifesting requirements, the waste may be handled as
a green waste; thus no prior notification to EPA is required. Notifiers
should note, however, that the importing and transit countries may
require notification and consent controls for such wastes if they are
considered hazardous in their respective countries and if such controls
are
[[Page 16302]]
required by the domestic law of those countries. In such cases, the
foreign importer may ask U.S. notifiers to assume contractual
obligations requiring compliance with such provisions.
D. Tracking Documents
The Decision requires that a tracking document must accompany each
transfrontier shipment of amber-list or red-list waste until it reaches
its final destination (the designated recovery facility). The purpose
of the tracking document is to provide pertinent information concerning
the shipment to any interested entity while the waste is en route.
All hazardous wastes subject to today's rule (whether amber, red,
or unlisted, and whether constituting a U.S. import or export) must be
accompanied by a tracking document that contains all the information in
Sec. 262.84 of today's regulations. This includes all the information
required under Sec. 262.83(e), plus the following information:
(a) Date shipment commenced;
(b) If not same as the notifier, name, address, and telephone and
telefax numbers of primary exporter (i.e., shipper);
(c) Company name and EPA ID number of all transporters;
(d) Means and mode of transport, including types of packaging;
(e) Any special precautions to be taken by transporters;
(f) Certification by notifier that no objection has been lodged by
the competent authorities of all concerned countries. The notifier must
sign the certification; and
(g) Appropriate signatures for each custody transfer (transporter,
consignee, and owner or operator of the recovery facility).
As discussed earlier, the OECD has developed a form for tracking
purposes, in conjunction with the OECD notification form, which is
recommended for use by the OECD. The OECD developed the notification
and tracking forms for use by OECD countries implementing the Decision,
the European Union to implement its waste regulations, and non-OECD
countries for implementing the Basel Convention. After gaining
experience in using the notification and tracking forms, the OECD may
need to modify them. The Agency anticipates requiring their use in a
future rulemaking.
Until the OECD tracking form is codified into the RCRA regulations,
exporters and importers may either use the OECD tracking form itself,
or may supply all the information required in Sec. 262.84 on a separate
sheet of paper. In the latter case, all information should be typed or
printed and should be numbered to correspond to Sec. 262.84
requirements. As a practical matter, most U.S. exporters and importers
will be using the OECD-recommended forms if the OECD countries with
which they are trading require their use.
1. Routing of Tracking Document
As with the Uniform Hazardous Waste Manifest, EPA will not require
the tracking document (or information on separate paper) to accompany
the waste when moving by rail or bulk shipment by water. The regulated
community should continue to follow the manifest procedures for routing
the forms in 40 CFR 262.11 Subpart B.
Within 3 working days of its receipt of the hazardous wastes
subject to amber-list or red-list controls, the owner or operator of
the recovery facility must send signed copies of the tracking document
to the export notifier, to EPA's Office of Enforcement and Compliance
Assurance, and to the competent authorities of the importing and
transit countries. The original tracking document must be retained by
the recovery facility for at least 3 years. These requirements are
codified in Secs. 264.12, 265.12, 264.71 and 265.71 of today's rule.
Where U.S. recovery facilities are receiving wastes from other OECD
countries that are considered hazardous in that country but not in the
U.S., today's regulations do not apply for the U.S. recovery facility.
However, contractual provisions imposed on the foreign exporter for the
shipment to the U.S. recovery facility may result in certain
obligations for the facility, such as returning a signed tracking
document to the notifier and to competent authorities of concerned
countries. While the U.S. government does not have the authority to
enforce the requirements of other countries for wastes that are not
hazardous in the U.S., the U.S. may provide cooperative assistance to
other OECD countries in their efforts to enforce their own laws,
including sharing information and investigative support, pursuant to
domestic and international law.\12\ The owner or operator of the U.S.
recovery facility should be aware that the exporting country is
unlikely to consent to the shipment (or future similar shipments)
absent performance of these duties.
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\12\ For example, the Hague Evidence Convention, to which the
U.S. and several OECD countries belong, establishes procedures for
assistance in evidence-gathering which may be used to support
cooperation in civil enforcement.
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E. Contracts
Under today's rule, transfrontier movement of hazardous wastes
subject to amber-list or red-list controls may occur only under the
terms of a valid written contract, chain of contracts, or under
equivalent arrangements between facilities controlled by the same legal
entity. Therefore, the export notifier and the owner or operator of the
authorized recovery facility must enter into such contracts or
arrangements. In addition, all persons involved in such contracts or
arrangements must have appropriate legal status to assume the required
contractual obligations.
For the purposes of this rule, a valid contract is one that
complies with the requirements of Sec. 262.85 of today's rule. Among
other things, the contracts or equivalent arrangements must identify
the generator of each type of waste being shipped, all persons who will
have physical custody or legal control of the waste, and the designated
recovery facility. In addition, the contracts or equivalent
arrangements must identify the party who will assume responsibility for
the waste if alternate management of the waste is necessary. In
addition, such contracts or arrangements must identify the person
responsible for obtaining consent for export of the waste to a third
country, if the need should arise. Contracts or equivalent arrangements
must also contain provisions requiring each contracting party to comply
with all applicable requirements of today's regulation. Thus, contracts
provide a mechanism to ensure that all parties involved in the
transfrontier movement of waste destined for recovery operations are
cognizant of and assume appropriate responsibilities for the controls
placed on the waste shipment.
If required by the concerned countries, the contract, chain of
contracts, or equivalent arrangement must also include provisions for
financial guarantees to provide for alternate recycling, disposal, or
other means of sound management should the need arise. Currently, the
U.S. does not impose such a financial requirement. Competent
authorities of exporting and importing countries may, under domestic
law, also require the notifier to provide copies of contracts or
portions thereof. Under today's rulemaking, EPA is not requiring
routine submission of contracts to EPA. The Agency could, however,
request such information on a case-by-case basis, if necessary to
process export/import notices or for enforcement purposes. Upon
request, such information shall be held as confidential to the extent
allowed under
[[Page 16303]]
domestic law. Information for which a claim of confidentiality has been
asserted will be managed in accordance with the provisions in 40 CFR
Part 2 and 40 CFR 260.2 (as amended today), which allows information
submitted by export notifiers in their notification of intent to export
to be released to the U.S. Department of State and appropriate
authorities of receiving countries regardless of claims of
confidentiality.
As discussed earlier, there may be cases where U.S. parties are
engaged in transfrontier movements of waste that are not considered
hazardous under U.S. national procedures but that are considered
hazardous by another OECD country. In order for such waste movements to
proceed, U.S. parties would need to comply with the provisions of the
Decision as implemented by the other OECD country. It is likely that
the OECD country will rely on the contract in these situations to
define the responsibilities of all parties engaged in the transfrontier
movement. Thus, U.S. waste exporters, importers, and recognized traders
should anticipate requests from their foreign counterparts to address
these responsibilities in a contract. OECD countries are also free
under the Decision to require contract elements beyond those specified
in the Decision and today's rule. Such elements may include: \13\
\13\ This list is intended to be illustrative only; U.S. parties
may find foreign business associates requesting additional elements
in their contracts in accordance with the domestic laws and
regulations of other OECD countries.
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--Delineation of when and where responsibilities shift for
alternative waste management if disposition cannot be carried out as
described in the Notification of Intent to Export;
--Certification of compliance with tracking document requirements,
particularly the obligation of the U.S. receiving facility under
Sec. 262.84(e) to return signed tracking documents to the foreign
notifier and competent authorities of the concerned countries;
--Description of the specific financial guarantee mechanism if one
is required by any concerned country;
--Certification that all U.S. waste handlers in the contract are
authorized under U.S. law to carry out their transporter or waste
recovery functions;
--Provision requiring each contracting party to comply with all
applicable laws of the concerned countries;
--Identification of parties responsible for language translations of
export notifications or tracking document; and
--Procedures for modifying the contract, particularly to reflect
future modifications to the Decision.
F. Importers
1. Definition
There is no definition of ``importer'' in the Decision, the RCRA
regulations, or the RCRA statute. However, persons importing hazardous
waste have various responsibilities and duties under EPA's current
regulations and today's rule, including the contract provisions of
Sec. 262.85. Transfrontier movements of amber-list or red-list wastes
must occur under the terms of a valid written contract, or chain of
contracts, or equivalent arrangements (when the movement occurs between
parties controlled by the same corporate or legal entity). That
contract or equivalent arrangement must specify responsibilities of
each entity handling the waste starting with the notifier and ending
with the owner or operator of the recovery facility. In addition,
hazardous waste importers must comply with all applicable requirements
for generators and transporters pertaining to manifesting in 40 CFR
Parts 262 and 263 as well as the facility import notification
requirements in 40 CFR 264.12 and 265.12 if the facility is subject to
Parts 264 or 265. Also, hazardous waste importers in the U.S. must
comply with U.S. Customs' rules, provisions under the Toxic Substances
Control Act concerning the import of chemical substances (see Sec. IV.
B. 6. and VII of today's preamble), and any other applicable legal
requirements.
Any U.S. entity that meets the definition of ``consignee'' in
today's rule (i.e., the first person to whom possession or other form
of legal control of the waste is assigned once received in the
importing country), such as transporters, recognized traders, storage
facility operators, or recovery facility operators, may be acting as an
importer of hazardous wastes and therefore may be subject not only to
the requirements of Subpart H but also to current regulations
applicable to importers, in 40 CFR Part 262, subpart F.
2. Requirements
a. Notification of Receipt. In order to implement the Decision,
today's regulations at Sec. 262.84(d) require that the owner or
operator of the U.S. recovery facility send a signed copy of the
tracking document to the notifier and to the competent authorities of
the concerned countries, including EPA, within three working days of
receipt of a waste subject to amber-list or red-list controls. The
tracking document must contain the signatures of all parties that had
custody of the waste (see Sec. III. D. discussion on tracking
documents).
It is important to note that once a hazardous waste enters the
U.S., that waste and its management are subject not only to the OECD
procedures for transfrontier movements implemented in today's final
rule, but also to all other applicable U.S. regulations. Hence, RCRA
hazardous wastes subject to today's rules must be managed in accordance
with any applicable generator, transporter, and facility requirements
(e.g., packaging and labelling, return of manifest to the generator,
manifest discrepancy, and storage facility requirements) for hazardous
waste recyclables specified in 40 CFR 261.6 and part 266, in addition
to the Part 268 standards and requirements under other statutes (e.g.,
TSCA). When EPA (as the competent authority) receives a notification of
potential export from a foreign exporter, the Agency will review the
proposed import notice to determine if the waste is destined for a
recovery facility that is: (1) authorized to manage the specified waste
in accordance with the facility's RCRA permit or interim status
requirements; or (2) allowed to receive the waste under U.S. laws and
regulations but is not required to have a RCRA permit.
b. Pre-Approval of U.S. Recovery Facilities. The Decision allows
importing countries to pre-approve specific recovery facilities for
receiving shipments of certain amber-list wastes (see Sec. III. C. 1.
c. of today's preamble). EPA has not yet determined whether or how it
will pre-approve U.S. recovery facilities but has reserved Sec. 262.88
of today's regulations for this purpose.
EPA currently exempts many waste recycling (e.g., reclamation,
recovery, regeneration) units from RCRA permitting standards for the
actual recycling of the materials. However, storage of hazardous wastes
prior to recycling does trigger RCRA requirements, which may include a
permit requirement. There are also special circumstances where EPA
either totally or partially exempts certain recycling facilities from
RCRA regulation (see Sec. IV of today's preamble). In such cases, EPA
waste management officials may lack sufficient information regarding a
recycling facility's design and operation, and thus may be unable to
adequately assess the suitability of a particular recovery operation to
be pre-approved to receive certain amber-listed wastes. The Agency,
therefore, will defer consideration of the issue of pre-approval for
U.S. recovery facilities until a later date (see Sec. VIII of today's
preamble).
[[Page 16304]]
G. Reporting and Recordkeeping
The only new recordkeeping requirements imposed in today's rule
pertain to recovery facilities, which are now required to send signed
copies of the tracking document to the competent authorities of the
concerned countries and to retain copies for three years. In addition
to these new requirements, EPA recodifies in Subpart H for OECD
purposes the current recordkeeping and reporting requirements at 40 CFR
262.51 that are applicable to primary exporters. Recordkeeping and
reporting requirements for shipments of recyclable wastes to and from
OECD countries are in Sec. 262.87 and apply to individuals, including
notifiers and recognized traders, that meet the definition of primary
exporter at 40 CFR 262.51.
Annual reports on exports of hazardous waste to OECD countries for
recovery must continue to be filed with the Administrator no later than
March 1 of each year. As discussed in the August 8, 1986 Final Rule on
exports (51 FR 28664), there may be more than one party acting as
primary exporter (i.e., persons that are required to originate
manifests under Part 262 and any intermediaries arranging for the
export). For the purpose of today's rule, EPA expects one party (e.g.,
notifier or recognized trader acting as notifier) to submit the
notification, keep the required records, and submit the required annual
report, etc. Parties to transfrontier shipments should decide among
themselves which U.S. party should fulfill these duties. Enforcement
actions can, however, be taken against all waste handlers (e.g.,
notifiers, recognized traders, consignees, recovery facilities)
associated with the transfrontier movement of wastes for recovery
within the OECD.
If an individual is already required under 40 CFR 262.56 to file an
annual report for other hazardous waste exports, he need only file one
annual report. EPA is requiring, however, that information on OECD
exports covered under this Subpart be contained in a separate section
of the annual report since the U.S. must provide this information
annually to the OECD.
Under Sec. 262.87, annual reports must accurately summarize the
types, quantities, frequency, and ultimate destination of all hazardous
waste exported during the previous calendar year. In addition, the
report must include the facility's EPA identification number, and name
and address of the filer; the calendar year covered; the name and
address of each final recovery facility; by each final recovery
facility, a description of the waste exported, name and address of each
transporter used, the total amount of hazardous waste shipped during
the year, and the number of shipments during the year; a description of
the waste minimization efforts and results during the year;14 and
a certification statement attesting to the accuracy of the information
in the report and an acknowledgement of the potential penalties for
filing false information. The annual report must also contain the
designations of the waste type(s) from the OECD waste lists, the
applicable waste code from the OECD lists incorporated by reference in
Sec. 262.89 of today's rule, and the U.S. Department of Transportation
hazard class. Annual reports must be sent to the Office of Enforcement
and Compliance Assurance, Office of Compliance, Enforcement Planning,
Targeting and Data Division (2222A), Environmental Protection Agency,
401 M St., SW., Washington, DC 20460.
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\14\ Waste minimization information is required in even
numbered years only. No waste minimization information is required
under this section if (1) less than 1,000 kg of waste was exported
in each month of the calendar year pursuant to this subpart; or (2)
the information was already submitted as part of a biennial report
under 40 CFR 262.41.
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EPA also is recodifying in Sec. 262.87 the requirement in
Sec. 262.55 that persons who meet the definition of primary exporters
(e.g., notifiers or recognized traders acting as notifiers) must file
exception reports, under certain circumstances. For the purpose of OECD
exports, the written confirmation of delivery consists of the signed
copy of the tracking form sent by the owner or operator of the recovery
facility to the notifier as required in the parties' contract pursuant
to Sec. 262.85(f).
The Agency is requiring individuals who meet the definition of
primary exporters at 40 CFR 262.51 to continue to maintain specified
records for at least three years, consistent with current practice and
RCRA export recordkeeping requirements. These records include, where
applicable, a copy of each annual report from the three previous years,
a copy of each written consent obtained from competent authorities of
concerned countries (in lieu of EPA Acknowledgement of Consent), and a
copy of each confirmation of delivery by the recovery facility (i.e.,
tracking document). If there is an unresolved enforcement action
pending or if requested by the Administrator, the record retention
period may be extended.
IV. OECD Waste Lists and Relationship to RCRA
A. Relationship of OECD Wastes and RCRA Hazardous Wastes
The full text of the Decision containing the waste lists is
included in the official record for today's rule, and the green, amber,
and red waste lists are incorporated by reference in Sec. 262.89 of
today's regulations. EPA has developed a table that provides a general
guideline of possible RCRA wastes and waste codes that may correspond
to the amber and red listings, which is available in the docket for
today's rule. Because the OECD waste category descriptions for the
amber and red lists are broad and may include both RCRA hazardous waste
and waste that is not hazardous under RCRA, EPA is unable to
predetermine applicable RCRA waste codes in the absence of information
on the physical and chemical characteristics of the particular wastes
involved.
B. Status of Specific RCRA Hazardous Wastes
1. Definitions of Wastes Subject to National Procedures
The Decision establishes varying controls depending on whether a
waste is considered hazardous by the country of export or import, based
on the country's ``national procedures.'' For purposes of today's rule,
EPA considers that a waste is hazardous under U.S. national procedures
if the waste meets the following RCRA requirements: (1) Meets the
Federal definition of hazardous waste in 40 CFR 261.3; and (2) is
subject to either the Federal manifest procedures of 40 CFR part 262,
or to the universal waste management standards of 40 CFR part 273, or
to State requirements analogous to Part 273. (As previously noted, EPA
may, in the future, identify wastes under other statutes that are
subject to the OECD Decision). Under the RCRA regulations, however,
certain wastes do not meet the Federal hazardous waste definition when
they are recycled, or are not subject to the Federal manifesting
requirements, or are not subject to Federal or State universal waste
management standards. Such wastes are exempt from today's rules.
[Please see discussion on universal wastes in section IV. B. 6. below.]
Such exempt wastes would, however, remain subject to the controls
normally applied to international commercial transactions, just as
green-list wastes are subject to these controls (e.g., bill of lading,
international insurance, etc.). However, the exporter of U.S. exempt
[[Page 16305]]
wastes may still be required by her/his contract with the foreign
consignee to comply with notification, consent, and contractual
requirements imposed by other concerned countries as a condition of
exporting the waste if one or more of those concerned countries
considers the waste hazardous. OECD countries are acting within the
terms of the Decision if they impose such obligations for wastes they
consider hazardous, and will likely reject any shipment which does not
comply with these requirements. Thus, if a person is considering
exporting recyclable waste to an OECD country, that person should
determine the status of the waste in question (under the national
procedures of the importing and transit countries) well in advance of
the proposed shipment date so that no unnecessary delays are
encountered.
2. Exemptions From the Definition of Solid Waste
Current RCRA regulations subject recyclable materials to controls
under Subtitle C of RCRA if they meet the definition of solid waste
15 and are identified or listed as hazardous. The determination of
whether a recyclable material is a solid waste, and potentially a
hazardous waste, depends on the secondary material and the recycling
activity [see 50 FR 614 (Jan. 4, 1985) and 40 CFR 261.2 for further
discussion and requirements].
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\15\ Under Subtitle C of RCRA, EPA authority is limited to the
regulation of ``hazardous waste.'' However, to be regulated as a
hazardous waste, a material must first be a ``solid waste.'' Section
1004(27) of RCRA defines solid waste to include any garbage, refuse,
sludge and other discarded material [see RCRA Sec. 1004(8)]. A
central element of this definition is that wastes are ``discarded.''
EPA retains considerable discretion to define whether materials
being recycled can be considered to be ``discarded'' [see American
Mining Congress v. EPA, 907 F.2d 1179, 1185-87 (D.C. Cir. 1990); and
American Petroleum Institute v. EPA, 906 F.2d 729 at 740-42 (D.C.
Cir. 1990)].
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There is a relatively narrow set of (large volume) hazardous
secondary materials that, when recycled, are not defined as solid
wastes (e.g., off-specification commercial chemicals that are
reclaimed). Therefore, these materials are also not hazardous wastes
when recycled, and are therefore not subject to RCRA export/import
requirements. Potential notifiers of transfrontier movements of such
materials should keep in mind they bear the burden of demonstrating
that such materials are exempt from the definition of solid waste under
40 CFR 261.2 [see 40 CFR 261.2(f)]. Notifiers must therefore maintain
documentation that can substantiate their claims, consistent with the
regulations at 40 CFR 261.2(f).
3. Applicability to Hazardous Waste Subject to Special Recycling
Standards
EPA's regulatory definition of ``hazardous waste'' includes solid
wastes that are listed as hazardous waste or that exhibit a
characteristic of ignitability, corrosivity, reactivity, or toxicity.
However, there is a very small number of ``hazardous wastes'' that EPA,
for various reasons, has conditionally exempted in part from domestic
regulation. Because certain of these wastes are also not subject to
Federal hazardous waste manifest controls, including but not limited to
Federal manifest controls, EPA does not consider these wastes to be
hazardous under U.S. national procedures; therefore, these wastes are
not subject to the requirements set forth today. Such recyclable wastes
are discussed briefly below. In order to determine whether a particular
waste in fact qualifies for special recycling consideration, interested
persons will need to consult the appropriate RCRA regulations.
a. Scrap Metal. EPA has determined that scrap metal is exempt from
regulation as a hazardous waste under Subtitle C when recycled [see 40
CFR 261.6(a)(3)(iii); 50 FR 624 Jan. 4, 1985]. Because scrap metal is
also exempt from Federal manifest requirements, it is not considered
hazardous under U.S. national procedures. Additionally, scrap metal is
on the OECD green list as a non-hazardous waste.
b. Lead-Acid Batteries. Persons who generate, transport, or collect
whole spent lead-acid batteries for reclamation are not subject to the
Federal manifest requirements. Since spent lead-acid batteries being
reclaimed are exempt from Federal manifest requirements, they are not
considered hazardous under U.S. national procedures [see 40 CFR 266.80,
261.6(a)(2)(iv)]. Thus, persons exporting whole spent lead-acid
batteries for reclamation are not subject to today's export/import
requirements. However, they may be required to notify the importing
country of their intention to export lead-acid batteries, pursuant to
contracts they execute with foreign consignees, because lead-acid
batteries are found on the amber list and are considered to be
hazardous under the national procedures of many OECD countries.
Additional requirements may also apply per contracts with foreign
consignees.
4. Wastes Excluded Under 40 CFR 261.4
Many wastes listed in 40 CFR 261.4 are excluded from some or all
hazardous waste controls. Because some of these wastes are not defined
as solid waste [see 40 CFR 261.4(a)], they cannot be defined as
hazardous waste in accordance with Subtitle C of RCRA. Additionally,
some of the wastes are specifically excluded from the definition of
hazardous waste [see 40 CFR 261.4(b)], and therefore, are not subject
to the requirements of Subtitle C. Because these wastes are not defined
as hazardous and are not subject to the Federal manifesting procedures,
among other procedures, they are not covered under the RCRA export/
import requirements set forth today. These exempt wastes may, however,
be subject to controls imposed by other OECD countries. EPA expects to
bring additional solid wastes that are currently excluded from the
definition of hazardous waste under export and import controls in the
future.
Below are examples of wastes that are currently identified at 40
CFR 261.4(a) as excluded from the definition of solid waste. Persons
interested in determining whether a particular waste is excluded from
the definition of solid waste will need to consult 40 CFR 261.4(a)
directly.
--Domestic sewage and any mixture of domestic sewage and other waste
that passes through a sewer system to a publicly owned treatment works
for treatment;
--Industrial point source wastewater discharges subject to Sec. 402 of
the Clean Water Act;
--Irrigation return flows; and
--Source, special nuclear, or byproduct material as defined by the
Atomic Energy Act of 1954, as amended.
--Materials subjected to in-situ mining techniques that are not removed
from the ground as part of the extraction process;
--Pulping liquors reclaimed in a pulping liquor recovery furnace and
then reused in the pulping process, unless they are accumulated
speculatively;
--Spent sulfuric acid used to produce virgin sulfuric acid, unless it
is accumulated speculatively;
--Secondary materials that are reclaimed and returned for reuse to the
original production process where they were generated provided, inter
alia, that the process is a closed-loop system, only tank storage is
involved, and there is no combustion used;
--Spent wood preserving solutions that have been reclaimed and are
reused for their original intended purpose; and
--Coke and coal tar from the iron and steel industry that contain or
are produced from decanter tank tar sludge (K087) when coke and coal
tar are used as a fuel.
[[Page 16306]]
The solid wastes that are excluded under 40 CFR 261.4(b) from the
definition of hazardous waste include the following wastes listed
below. Persons interested in determining whether a particular waste is
excluded from the definition of hazardous waste will need to consult 40
CFR 261.4(b) directly.
--Household waste; 16
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\16\ Note that household waste and ash from incineration of
household waste appear on the amber list and may, therefore, be
subject to OECD procedures outside of the United States. Household
waste will be subject to export controls once EPA obtains new
statutory authority for exports and imports of waste. In addition,
the U.S. Supreme Court has ruled that ash from the incineration of
municipal solid waste that exhibits a characteristic of hazardous
waste must be managed as hazardous waste. Such characteristically
hazardous MSW ash will be subject to Amber controls when exported.
---------------------------------------------------------------------------
--Agricultural crop wastes and manures returned to soil as fertilizer;
--Mining overburden returned to the mine site;
--Fly ash waste, bottom ash waste, and flue gas emission control waste,
generated primarily from the combustion of coal or other fossil fuels
except as provided in 40 CFR 266.12;
--Drilling fluids, produced waters, and other wastes associated with
the exploration, development, or production of crude oil, natural gas,
or geothermal energy;
--Certain waste streams that exhibit the characteristic of hazardous
waste only for chromium and that were generated by a process using
nearly exclusively trivalent chromium in a non-oxidizing process such
as certain leather tanning wastes, and wastewater treatment sludges
from the production of TiO2 pigment using chromium-bearing ores by
the chloride process;
--Certain solid wastes from the extraction, beneficiation, and
processing of ores and minerals except as provided in 40 CFR 266.12;
--Cement kiln dust except as provided in 40 CFR 266.12;
--Under certain circumstances, solid waste that consists of discarded
wood products that fail the toxicity characteristic test solely for
arsenic and are not hazardous for any other reason;
--Petroleum-contaminated media resulting from an underground storage
tank undergoing corrective action;
--Used chlorofluorocarbon refrigerants from totally enclosed heat
transfer equipment destined for reclamation;
--Samples of solid waste, water, soil, or air, which are collected for
the sole purpose of testing to determine their characteristics or
composition; and
--Certain samples collected for the purposes of conducting treatability
testing and analysis.
5. Hazardous Waste Exempted Under 40 CFR 261.5
Under 40 CFR 261.5, hazardous wastes generated by conditionally
exempt small quantity generators (CESQGs) (i.e., generators of no more
than 100 kilograms per calendar month) are exempt from Subtitle C
requirements, including manifesting, provided such generators comply
with the requirements in 40 CFR 261.5. Thus, hazardous waste generated
by a CESQG or collected from CESQGs is not subject to today's rule.
These exempt wastes may, however, be subject to controls imposed by
other OECD countries, if those countries consider the wastes to be
hazardous.
6. Applicability to Universal Wastes
Today's rule applies to universal wastes as defined in 40 CFR 273
or by State requirements analogous to Part 273. Universal wastes are
defined as hazardous wastes, but are subject to streamlined management
requirements for collection, accumulation and transportation. For
instance, universal wastes are not subject to Federal manifesting
requirements. Universal wastes exported to non-OECD countries are,
however, subject to certain existing export regulations found in 40 CFR
part 262 Subpart E. Today's rule amends the export sections of 40 CFR
part 273 to clarify that universal wastes exported to designated OECD
countries for purposes of recovery are not subject to 40 CFR 273.20,
273.40, 273.56, but are instead subject to 40 CFR part 262, Subpart H
of today's rule. Furthermore, today's rule amends the import section of
40 CFR part 273 to clarify that universal wastes imported from
designated OECD countries for purposes of recovery are subject to 40
CFR 273.70 in addition to 40 CFR part 262, Subpart H of today's rule.
7. Non-RCRA Wastes and Other Regulatory Regimes
There are other wastes on the OECD lists that may or may not be
regulated under RCRA in the U.S., but that are controlled under other
statutes. Such wastes may include PCBs, asbestos, and some chlorinated
dioxins and chlorinated furans.17 Because these materials
themselves are not hazardous wastes as defined by RCRA, in most cases,
they are not subject to today's requirements (although other OECD
countries may subject them to controls). If, however, PCBs, asbestos,
chlorinated dioxins, or chlorinated furans are constituents in a waste
or waste mixture that is a RCRA listed or characteristic hazardous
waste that is subject to Federal manifest requirements under RCRA,
these wastes are subject to all applicable export and import
requirements under RCRA, including today's regulations. (As previously
noted, EPA may, in the future, identify wastes under other statutes
that are subject to the OECD Decision).
---------------------------------------------------------------------------
\17\ Some dioxin wastes are included in listed RCRA hazardous
waste from non-specific sources, hazardous waste numbers F020, F021,
F022, F023, F026, and F027 [see 40 CFR 261.31(a)].
---------------------------------------------------------------------------
The Toxic Substances Control Act (TSCA) generally addresses the
regulation of materials containing PCBs [see 15 U.S.C.
Sec. 6(e)(2)(A)]. EPA proposed a rule on December 6, 1994 (59 FR 62788)
which addressed imports and exports of PCBs. EPA plans to promulgate
final rules in the near future.
Potential exporters of these wastes may consider contacting the
government of the specific OECD country for clarification as to
requirements associated with a particular waste type before planning
the waste shipment because other countries also may have restrictions
on the import or export of such wastes.
C. OECD Waste Lists Incorporated by Reference
The OECD Green List of Wastes (revised May 1994), Amber List of
Wastes and Red List of Wastes (both revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix 5, respectively, to the OECD
Council Decision C(92)39/FINAL (Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations) were approved by
the Director of the Federal Register to be incorporated by reference in
today's rule on July 11, 1996. These materials are incorporated as they
exist on the date of the approval and a notice of any change in these
materials will be published in the Federal Register. The materials are
available for inspection at: the Office of the Federal Register, 800
North Capitol Street, NW, suite 700, Washington, DC; the U.S.
Environmental Protection Agency, 401 M Street, SW, Room M2616,
Washington, DC; the Organization for Economic Cooperation and
Development, Environment Directorate, 2 rue Andre Pascal, 75775 Paris
Cedex 16, France; and, on the Internet (see instructions for accessing
these materials in electronic format in the Supplementary Information
section of the preamble to today's rule).
[[Page 16307]]
V. Applicability in Authorized States
In the same way that existing RCRA export requirements of 40 CFR
262 Subpart E are administered exclusively by EPA and not by States,
States may not receive authorization from EPA to control exports of
hazardous waste subject to Subpart H. This is because the exercise of
foreign relations and international commerce powers is reserved to the
Federal government under the Constitution. In the Agency's view,
foreign policy interests and exporter interests in expeditious
processing are better served by EPA's retention of these functions. In
addition, concentrating these responsibilities within EPA will provide
the U.S Department of State with a single contact point regarding the
transfrontier waste program and will better allow for uniformity and
expeditious transmission of information between the United States and
foreign countries.
States do, however, play a key role in providing EPA with
information on whether U.S. facilities designated to receive hazardous
waste imports are authorized to manage specific wastes and in ensuring
facility compliance with all applicable environmental laws and
regulations. Additionally, EPA may authorize States to receive facility
import notifications required under 40 CFR 264.12(a) and 265.12(a).
For the purposes of the transfrontier movement of wastes under
current RCRA requirements (and by extension, under today's rule), only
those wastes identified or listed under the Federal program that are
subject to Federal manifesting requirements are subject to the U.S.
requirements for exporting and importing. Thus, hazardous wastes
identified or listed by a State under State law that are not included
in the Federal hazardous waste universe (i.e., where the State program
is broader in scope than the federal hazardous waste program) will not
be subject to today's export and import regulations.
VI. Relationship to U.S. Bilateral Agreements
The U.S. has existing bilateral agreements that address
transboundary movements of hazardous waste between the U.S. and Mexico
and between the U.S. and Canada. Mexico became an OECD member in June
1994. Today's rule implementing the provisions of the Decision will not
apply to imports or exports of hazardous waste between the U.S. and
Mexico; the provisions of the bilateral agreement with Mexico continue
to apply as well as EPA's current export and import regulations, such
as those in 40 CFR 262, Subparts E and F, and 40 CFR 264.12(a) and
265.12(a).
Canada is a member of the OECD and has adopted the Decision.
Shipments of hazardous waste to and from Canada, both for the purposes
of recycling and final disposal, will continue to be subject to the
provisions of the U.S./Canada bilateral agreement and to EPA's current
import and export regulations. After the Agency has more experience
with implementing today's rule for transfrontier shipments between the
U.S. and other OECD countries, EPA may revisit this Decision. If so,
EPA will publish a notice in the Federal Register and allow the
regulated community adequate time to comply with any new requirements
imposed.
VII. Relationship to Other Programs
Under Section 13 of the Toxic Substances Control Act (TSCA),
importers of ``chemical substances and mixtures'' must certify
compliance with TSCA at the point of entry into the United States (see
40 CFR 707.20). Some chemical substances or mixtures as defined by TSCA
also can be hazardous wastes as defined by RCRA. Therefore, if a
hazardous waste as defined by RCRA meets the definition of a chemical
substance or mixture under TSCA, importers 18 must certify
compliance with TSCA in accordance with 40 CFR 707.20. This TSCA
compliance certification provision requires all importers of chemical
substances and mixtures to certify that their shipments are in
compliance with all applicable rules or orders under TSCA [see 40 CFR
707.20(b)(2)(i)]. Compliance with TSCA may require, among other things,
that the substances are not banned from importation, that they are
listed in the TSCA Inventory of chemical substances, and that the
substances are not being imported for a ``significant new use'' without
first providing notice to EPA at least 90 days prior to the import. If
the shipment (including a hazardous waste) contains no material covered
by TSCA (e.g., pesticides), then the importer must certify that the
substances in the shipment are not subject to TSCA [see 40 CFR
707.20(b)(2)(ii)].
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\18\ Under TSCA, an importer is considered the ``manufacturer.''
The term ``manufacture'' is defined in Sec. 3(7) of the act as: ``*
* * to import into the Customs territory of the United States (as
defined in general headnote 2 of the Tariff Schedules of the United
States) * * *.''
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U.S. Customs' regulations for importing require that the importer
of record or a Customs broker be responsible for filing entry
documentation.19 The importer of record may be a foreign entity,
provided that, in the state or territory where the port of entry is
located, there is a resident who is authorized to accept service of
process against such foreign entity. Such resident must file a bond
having a resident corporation surety to secure payment of any increased
or additional duties that may be found due.
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\19\ Under Federal regulations (19 CFR 111), a Customs broker is
an individual, a partnership, or an association or corporation who
is licensed under Part 111 to transact customs business on behalf of
others (19 CFR 111.1). Among other requirements, an individual
seeking a broker's license must be a U.S. citizen (19 CFR
111.11(a)). For a partnership, association, or corporation to act as
a Customs broker, at least one member or officer must be a licensed
Customs broker, which requires U.S. citizenship [19 CFR 111.11(b)
and (c)].
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VIII. Future Rulemaking
This Decision is a negotiated international agreement that provides
nations with some limited flexibility to implement the Decision within
their unique domestic waste management schemes. As such, certain
definitions and procedures in the Decision are less explicit than
current RCRA regulations. It may be appropriate in the future to revise
today's regulations to address additional elements of the Decision.
Some of the elements of the Decision that the Agency may address in
future regulations include:
--Notification and tracking documents. The OECD/WMPG developed
recommended, standardized notification and tracking documents for
shipments of amber-list and red-list wastes. Once the notification and
tracking documents have been in use, they may need to be modified
according to experience by the member countries. When use of the forms
becomes mandatory by the OECD, the Agency will amend its regulations to
require their use.
--Pre-approval of recovery facilities. The Decision allows importing
countries to pre-approve recovery facilities. The Agency has not yet
decided whether to pre-approve recovery facilities and, if so, whether
only RCRA permitted or interim status recovery facilities should
qualify for pre-approval or whether pre-approval criteria can feasibly
be established for recovery facilities currently exempt from RCRA
permit or technical standards. The Agency has already received a
proposal for such criteria from the International Precious Metals
Institute (IPMI). IPMI's proposal is included in the public docket for
today's rule.
--Recognized traders. Consistent with the Decision, today's regulations
set forth certain responsibilities for
[[Page 16308]]
recognized traders of hazardous wastes destined for recovery within the
OECD. The Agency will be further assessing the relationship of
recognized traders, as defined in today's regulations, to waste brokers
and whether additional regulations are needed to clarify the scope of
coverage and associated responsibilities.
As the Agency gains experience implementing today's regulations, it
may identify additional issues requiring further regulatory action.
IX. Regulatory Impact Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is therefore not
subject to OMB review. This rule raises no novel legal or policy
issues. It simply implements the Decision which the U.S. has already
supported. The rule promulgates regulatory language that differs from
the language of the Decision in only a minimal, nonsubstantive manner,
in order to conform this rule to existing RCRA rules. The rule's scope
is not broader than that of the Decision. The only costs of this rule
are those associated with the additional notification and tracking
costs. Analysis in the ICR (Information Collection Request) shows that
the annual burden for U.S. exporters and importers will total less than
$225,000. This rule will not cause any inconsistencies or interfere
with other Agencies' actions, nor materially alter the budgetary impact
of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof.
While EPA recognizes that some companies may experience economic
dislocation if there are significant delays in processing notifications
and consents, the Agency believes that judicious planning on the part
of these companies could eliminate or lessen the impact of such delays,
if any. Moreover, the Agency again emphasizes that the Decision imposed
these new notification and consent requirements. EPA is merely
codifying those requirements in this rule.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., a
Regulatory Flexibility Analysis must be performed if the regulatory
requirements have a significant impact on a substantial number of small
entities. No Regulatory Flexibility Analysis is required where the head
of an agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities.
Since the enactment of RCRA Section 3017 and the 1986 regulations
at 40 CFR part 262, subpart E, generators subject to the manifesting
requirements for exports of hazardous waste have been required to
comply with notification and consent requirements as a condition of
exporting such wastes. Generators who generate less than 100 kgs/mo
(conditionally exempt small quantity generators) were not required to
comply with these requirements because they are not subject to the
manifesting requirements. Conditionally exempt small quantity
generators are not subject to any of the requirements of today's rule;
thus, the universe of regulated individuals is not changing.
EPA does not believe this rule will increase burdens for any small
entities that are not already exempt as small quantity generators.
Today's rule is not expected to have a significant economic impact on a
substantial number of small entities and does not require a Regulatory
Flexibility Analysis. Therefore, pursuant to 5 U.S.C. 601(b), I certify
that this regulation will not have a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
1. Display of OMB Control Numbers
EPA is amending the table of currently approved information
collection request (ICR) control numbers issued by OMB for various
regulations. This amendment updates the table to accurately display
those information requirements contained in this final rule. This
display of the OMB control number and its subsequent codification in
the Code of Federal Regulations satisfies the requirements of the
Paperwork Reduction Act (44 USC 3501 et seq.) and OMB's implementing
regulations at 5 CFR 1320.
EPA finds that there is ``good cause'' under section 553(b)(B) of
the Administrative Procedure Act (5 U.S.C. 553(b)(B)) to amend this
table without prior notice and comment. Due to the technical nature of
the table, further notice and comment would be unnecessary. For the
same reasons, EPA also finds that there is good cause under 5 U.S.C.
553(d)(3).
2. Burden Statement
The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
control number 2050-0143.
This collection of information has an estimated reporting burden
averaging from 5.74 hours per year per exporter to 2.99 hours per year
per importer. This includes time for reviewing regulations/
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden, to Chief, Information Policy Branch (2136); U.S. Environmental
Protection Agency; 401 M Street, S.W.; Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.''
List of Subjects
40 CFR Part 9
Environmental protection, Information collection, OMB approval,
Paperwork reduction.
40 CFR Part 260
Administrative practice and procedure, Confidential business
information, Hazardous waste.
40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping.
40 CFR Part 262
Exports, Hazardous waste, Imports, Incorporation by reference,
International agreements, Labeling, Manifest,
[[Page 16309]]
Packaging and containers, Recycling, Reporting and recordkeeping
requirements.
40 CFR Part 263
Export, Hazardous waste, Hazardous waste transportation, Import,
Manifesting, Tracking documents.
40 CFR Part 264
Hazardous waste, Imports, Manifest, Recordkeeping, Recycling.
40 CFR Part 265
Hazardous waste, Imports, Manifest, Recordkeeping requirements,
Recycling.
40 CFR Part 266
Precious metals, Recycling.
40 CFR Part 273
Hazardous waste, Recycling, Universal waste.
Dated: November 29, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter 1,
subchapter I of the Code of Federal Regulations, is amended as set
forth below.
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. In Part 9:
a. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 1345
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp.,
p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g-5, 300g-6, 300j-1,
300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-
7671q, 7542, 9601-9657, 11023, 11048.
b. Section 9.1 is amended by adding a new entry and heading in
numerical order to the table to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
Public Information:
Part 2, subpart B..................................... 2050-0143
* * * * *
------------------------------------------------------------------------
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
2. In part 260:
a. The authority citation continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
b. Section 260.2(b) is revised to read as follows:
Sec. 260.2 Availability of information; confidentiality of
information.
* * * * *
(b) Any person who submits information to EPA in accordance with
parts 260 through 266 and 268 of this chapter may assert a claim of
business confidentiality covering part or all of that information by
following the procedures set forth in Sec. 2.203(b) of this chapter.
Information covered by such a claim will be disclosed by EPA only to
the extent, and by means of the procedures, set forth in part 2,
subpart B, of this chapter except that information required by
Sec. 262.53(a) and Sec. 262.83 that is submitted in a notification of
intent to export a hazardous waste will be provided to the U.S.
Department of State and the appropriate authorities in the transit and
receiving or importing countries regardless of any claims of
confidentiality. However, if no such claim accompanies the information
when it is received by EPA, it may be made available to the public
without further notice to the person submitting it.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
3. In 40 CFR part 261:
a. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
b. Section 261.6 is amended by adding paragraph (a)(5) to read as
follows:
Sec. 261.6 Requirements for recyclable materials.
(a) * * *
(5) Hazardous waste that is exported to or imported from designated
member countries of the Organization for Economic Cooperation and
Development (OECD) (as defined in Sec. 262.58(a)(1)) for purpose of
recovery is subject to the requirements of 40 CFR part 262, subpart H,
if it is subject to either the Federal manifesting requirements of 40
CFR Part 262, to the universal waste management standards of 40 CFR
Part 273, or to State requirements analogous to 40 CFR Part 273.
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
4. The authority citation for part 262 is revised to read as
follows:
Authority: 42 U.S.C 6906, 6912, 6922, 6923, 6925, 6937, and
6938.
5. Section 262.10 is amended by redesignating paragraphs (d), (e),
(f), and (g) as (e), (f), (g), and (h) respectively and adding a new
paragraph (d) to read as follows:
Sec. 262.10 Purpose, scope, and applicability.
* * * * *
(d) Any person who exports or imports hazardous waste subject to
the Federal manifesting requirements of part 262, or subject to the
universal waste management standards of 40 CFR Part 273, or subject to
State requirements analogous to 40 CFR Part 273, to or from the
countries listed in Sec. 262.58(a)(1) for recovery must comply with
subpart H of this part.
* * * * *
6. Section 262.53(b) is revised to read as follows:
Sec. 262.53 Notification of intent to export.
* * * * *
(b) Notifications submitted by mail should be sent to the following
mailing address: Office of Enforcement and Compliance Assurance, Office
of Compliance, Enforcement Planning, Targeting, and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Hand-delivered notifications should be sent to: Office of
Enforcement and Compliance Assurance, Office of Compliance, Enforcement
Planning, Targeting, and Data Division (2222A), Environmental
Protection Agency, Ariel Rios Bldg., 12th St. and Pennsylvania Ave.,
NW., Washington, DC. In both cases, the following shall be prominently
displayed on the front of the envelope: ``Attention: Notification of
Intent to Export.''
* * * * *
7. Section 262.56(b) is revised to read as follows:
Sec. 262.56 Annual reports.
* * * * *
(b) Annual reports submitted by mail should be sent to the
following mailing address: Office of Enforcement and Compliance
Assurance, Office of Compliance, Enforcement Planning, Targeting, and
Data Division (2222A), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Hand-delivered reports should be sent to: Office
of Enforcement and Compliance Assurance, Office of
[[Page 16310]]
Compliance, Enforcement Planning, Targeting, and Data Division (2222A),
Environmental Protection Agency, Ariel Rios Bldg., 12th St. and
Pennsylvania Ave., NW., Washington, DC.
8. Section 262.58 is amended by adding text to read as follows:
Sec. 262.58 International agreements.
(a) Any person who exports or imports hazardous waste subject to
Federal manifest requirements of Part 262, or subject to the universal
waste management standards of 40 CFR Part 273, or subject to State
requirements analogous to 40 CFR Part 273, to or from designated member
countries of the Organization for Economic Cooperation and Development
(OECD) as defined in paragraph (a)(1) of this section for purposes of
recovery is subject to Subpart H of this part. The requirements of
Subparts E and F do not apply.
(1) For the purposes of this Subpart, the designated OECD countries
consist of Australia, Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg,
Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland,
Turkey, United Kingdom, and the United States.
(2) For the purposes of this Subpart, Canada and Mexico are
considered OECD member countries only for the purpose of transit.
(b) Any person who exports hazardous waste to or imports hazardous
waste from: a designated OECD member country for purposes other than
recovery (e.g., incineration, disposal), Mexico (for any purpose), or
Canada (for any purpose) remains subject to the requirements of
subparts E and F of this part.
9. Part 262 is amended by adding subpart H consisting of
Secs. 262.80 through 262.89 to read as follows:
Subpart H--Transfrontier Shipments of Hazardous Waste for Recovery
within the OECD
Sec.
262.80 Applicability.
262.81 Definitions.
262.82 General conditions.
262.83 Notification and consent.
262.84 Tracking document.
262.85 Contracts.
262.86 Provisions relating to recognized traders.
262.87 Reporting and recordkeeping.
262.88 Pre-approval for U.S. Recovery Facilities (Reserved).
262.89 OECD Waste Lists.
Subpart H--Transfrontier Shipments of Hazardous Waste for Recovery
within the OECD
Sec. 262.80 Applicability.
(a) The requirements of this subpart apply to imports and exports
of wastes that are considered hazardous under U.S. national procedures
and are destined for recovery operations in the countries listed in
Sec. 262.58(a)(1). A waste is considered hazardous under U.S. national
procedures if it meets the Federal definition of hazardous waste in 40
CFR 261.3 and it is subject to either the Federal manifesting
requirements at 40 CFR Part 262, Subpart B, to the universal waste
management standards of 40 CFR Part 273, or to State requirements
analogous to 40 CFR Part 273.
(b) Any person (notifier, consignee, or recovery facility operator)
who mixes two or more wastes (including hazardous and non-hazardous
wastes) or otherwise subjects two or more wastes (including hazardous
and non-hazardous wastes) to physical or chemical transformation
operations, and thereby creates a new hazardous waste, becomes a
generator and assumes all subsequent generator duties under RCRA and
any notifier duties, if applicable, under this subpart.
Sec. 262.81 Definitions.
The following definitions apply to this subpart.
(a) Competent authorities means the regulatory authorities of
concerned countries having jurisdiction over transfrontier movements of
wastes destined for recovery operations.
(b) Concerned countries means the exporting and importing OECD
member countries and any OECD member countries of transit.
(c) Consignee means the person to whom possession or other form of
legal control of the waste is assigned at the time the waste is
received in the importing country.
(d) Country of transit means any designated OECD country in
Sec. 262.58(a)(1) and (a)(2) other than the exporting or importing
country across which a transfrontier movement of wastes is planned or
takes place.
(e) Exporting country means any designated OECD member country in
Sec. 262.58(a)(1) from which a transfrontier movement of wastes is
planned or has commenced.
(f) Importing country means any designated OECD country in
Sec. 262.58(a)(1) to which a transfrontier movement of wastes is
planned or takes place for the purpose of submitting the wastes to
recovery operations therein.
(g) Notifier means the person under the jurisdiction of the
exporting country who has, or will have at the time the planned
transfrontier movement commences, possession or other forms of legal
control of the wastes and who proposes their transfrontier movement for
the ultimate purpose of submitting them to recovery operations. When
the United States (U.S.) is the exporting country, notifier is
interpreted to mean a person domiciled in the U.S.
(h) OECD area means all land or marine areas under the national
jurisdiction of any designated OECD member country in Sec. 262.58. When
the regulations refer to shipments to or from an OECD country, this
means OECD area.
(i) Recognized trader means a person who, with appropriate
authorization of concerned countries, acts in the role of principal to
purchase and subsequently sell wastes; this person has legal control of
such wastes from time of purchase to time of sale; such a person may
act to arrange and facilitate transfrontier movements of wastes
destined for recovery operations.
(j) Recovery facility means an entity which, under applicable
domestic law, is operating or is authorized to operate in the importing
country to receive wastes and to perform recovery operations on them.
(k) Recovery operations means activities leading to resource
recovery, recycling, reclamation, direct re-use or alternative uses as
listed in Table 2.B of the Annex of OECD Council Decision
C(88)90(Final) of 27 May 1988, (available from the Environmental
Protection Agency, RCRA Information Center (RIC), 1235 Jefferson-Davis
Highway, first floor, Arlington, VA 22203 (Docket # F-94-IEHF-FFFFF)
and the Organisation for Economic Co-operation and Development,
Environment Direcorate, 2 rue Andre Pascal, 75775 Paris Cedex 16,
France) which include:
R1 Use as a fuel (other than in direct incineration) or other means to
generate energy
R2 Solvent reclamation/regeneration
R3 Recycling/reclamation of organic substances which are not used as
solvents
R4 Recycling/reclamation of metals and metal compounds
R5 Recycling/reclamation of other inorganic materials
R6 Regeneration of acids or bases
R7 Recovery of components used for pollution control
R8 Recovery of components from catalysts
R9 Used oil re-refining or other reuses of previously used oil
[[Page 16311]]
R10 Land treatment resulting in benefit to agriculture or ecological
improvement
R11 Uses of residual materials obtained from any of the operations
numbered R1-R10
R12 Exchange of wastes for submission to any of the operations
numbered R1-R11
R13 Accumulation of material intended for any operation in Table 2.B
(l) Transfrontier movement means any shipment of wastes destined
for recovery operations from an area under the national jurisdiction of
one OECD member country to an area under the national jurisdiction of
another OECD member country.
Sec. 262.82 General conditions.
(a) Scope. The level of control for exports and imports of waste is
indicated by assignment of the waste to a green, amber, or red list and
by U.S. national procedures as defined in Sec. 262.80(a). The green,
amber, and red lists are incorporated by reference in Sec. 262.89 (e).
(1) Wastes on the green list are subject to existing controls
normally applied to commercial transactions, except as provided below:
(i) Green-list wastes that are considered hazardous under U.S.
national procedures are subject to amber-list controls.
(ii) Green-list waste that are sufficiently contaminated or mixed
with amber-list wastes, such that the waste or waste mixture is
considered hazardous under U.S. national procedures, are subject to
amber-list controls.
(iii) Green-list wastes that are sufficiently contaminated or mixed
with other wastes subject to red-list controls such that the waste or
waste mixture is considered hazardous under U.S. national procedures
must be handled in accordance with the red-list controls.
(2) Wastes on the amber list that are considered hazardous under
U.S. national procedures as defined in Sec. 262.80(a) are subject to
the amber-list controls of this Subpart.
(i) If amber-list wastes are sufficiently contaminated or mixed
with other wastes subject to red-list controls such that the waste or
waste mixture is considered hazardous under U.S. national procedures,
the wastes must be handled in accordance with the red-list controls.
(ii) [Reserved].
(3) Wastes on the red list that are considered hazardous under U.S.
national procedures as defined in Sec. 262.80(a) are subject to the
red-list controls of this subpart.
Note to paragraph (a)(3): Some wastes on the amber or red lists
are not listed or otherwise identified as hazardous under RCRA
(e.g., polychlorinated biphenyls) and therefore are not subject to
the amber- or red-list controls of this subpart. Regardless of the
status of the waste under RCRA, however, other Federal environmental
statutes (e.g., the Toxic Substances Control Act) may restrict
certain waste imports or exports. Such restrictions continue to
apply without regard to this Subpart.
(4) Wastes not yet assigned to a list are eligible for
transfrontier movements, as follows:
(i) If such wastes are considered hazardous under U.S. national
procedures as defined in Sec. 262.80(a), these wastes are subject to
the red-list controls; or
(ii) If such wastes are not considered hazardous under U.S.
national procedures as defined in Sec. 262.80(a), such wastes may move
as though they appeared on the green list.
(b) General conditions applicable to transfrontier movements of
hazardous waste.
(1) The waste must be destined for recovery operations at a
facility that, under applicable domestic law, is operating or is
authorized to operate in the importing country;
(2) The transfrontier movement must be in compliance with
applicable international transport agreements; and
Note to paragraph (b)(2): These international agreements
include, but are not limited to, the Chicago Convention (1944), ADR
(1957), ADNR (1970), MARPOL Convention (1973/1978), SOLAS Convention
(1974), IMDG Code (1985), COTIF (1985), and RID (1985).
(3) Any transit of waste through a non-OECD member country must be
conducted in compliance with all applicable international and national
laws and regulations.
(c) Provisions relating to re-export for recovery to a third
country.
(1) Re-export of wastes subject to the amber-list control system
from the U.S., as the importing country, to a third country listed in
Sec. 262.58(a)(1) may occur only after a notifier in the U.S. provides
notification to and obtains consent of the competent authorities in the
third country, the original exporting country, and new transit
countries. The notification must comply with the notice and consent
procedures in Sec. 262.83 for all concerned countries and the original
exporting country. The competent authorities of the original exporting
country as well as the competent authorities of all other concerned
countries have 30 days to object to the proposed movement.
(i) The 30-day period begins once the competent authorities of both
the initial exporting country and new importing country issue
Acknowledgements of Receipt of the notification.
(ii) The transfrontier movement may commence if no objection has
been lodged after the 30-day period has passed or immediately after
written consent is received from all relevant OECD importing and
transit countries.
(2) Re-export of waste subject to the red-list control system from
the original importing country to a third country listed in
Sec. 262.58(a)(1) may occur only following notification of the
competent authorities of the third country, the original exporting
country, and new transit countries by a notifier in the original
importing country in accordance with Sec. 262.83. The transfrontier
movement may not proceed until receipt by the original importing
country of written consent from the competent authorities of the third
country, the original exporting country, and new transit countries.
(3) In the case of re-export of amber or red-list wastes to a
country other than those in Sec. 262.58(a)(1), notification to and
consent of the competent authorities of the original OECD member
country of export and any OECD member countries of transit is required
as specified in paragraphs (c)(1) and (c)(2) of this section in
addition to compliance with all international agreements and
arrangements to which the first importing OECD member country is a
party and all applicable regulatory requirements for exports from the
first importing country.
Sec. 262.83 Notification and consent.
(a) Applicability. Consent must be obtained from the competent
authorities of the relevant OECD importing and transit countries prior
to exporting hazardous waste destined for recovery operations subject
to this Subpart. Hazardous wastes subject to amber-list controls are
subject to the requirements of paragraph (b) of this section; hazardous
wastes subject to red-list controls are subject to the requirements of
paragraph (c) of this section; and wastes not identified on any list
are subject to the requirements of paragraph (d) of this section.
(b) Amber-list wastes. The export from the U.S. of hazardous wastes
as described in Sec. 262.80(a) that appear on the amber list is
prohibited unless the notification and consent requirements of
paragraph (b)(1) or paragraph (b)(2) of this section are met.
(1) Transactions requiring specific consent:
(i) Notification. At least 45 days prior to commencement of the
transfrontier
[[Page 16312]]
movement, the notifier must provide written notification in English of
the proposed transfrontier movement to the Office of Enforcement and
Compliance Assurance, Office of Compliance, Enforcement Planning,
Targeting and Data Division (2222A), Environmental Protection Agency,
401 M St., SW., Washington, DC 20460, with the words ``Attention: OECD
Export Notification'' prominently displayed on the envelope. This
notification must include all of the information identified in
paragraph (e) of this section. In cases where wastes having similar
physical and chemical characteristics, the same United Nations
classification, and the same RCRA waste codes are to be sent
periodically to the same recovery facility by the same notifier, the
notifier may submit one notification of intent to export these wastes
in multiple shipments during a period of up to one year.
(ii) Tacit consent. If no objection has been lodged by any
concerned country (i.e., exporting, importing, or transit countries) to
a notification provided pursuant to paragraph (b)(1)(i) of this section
within 30 days after the date of issuance of the Acknowledgment of
Receipt of notification by the competent authority of the importing
country, the transfrontier movement may commence. Tacit consent expires
one calendar year after the close of the 30 day period; renotification
and renewal of all consents is required for exports after that date.
(iii) Written consent. If the competent authorities of all the
relevant OECD importing and transit countries provide written consent
in a period less than 30 days, the transfrontier movement may commence
immediately after all necessary consents are received. Written consent
expires for each relevant OECD importing and transit country one
calendar year after the date of that country's consent unless otherwise
specified; renotification and renewal of each expired consent is
required for exports after that date.
(2) Shipments to facilities pre-approved by the competent
authorities of the importing countries to accept specific wastes for
recovery:
(i) The notifier must provide EPA the information identified in
paragraph (e) of this section in English, at least 10 days in advance
of commencing shipment to a pre-approved facility. The notification
should indicate that the recovery facility is pre-approved, and may
apply to a single specific shipment or to multiple shipments as
described in paragraph (b)(1)(i) of this section. This information must
be sent to the Office of Enforcement and Compliance Assurance, Office
of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460, with the words ``OECD Export Notification--Pre-approved
Facility'' prominently displayed on the envelope.
(ii) Shipments may commence after the notification required in
paragraph (b)(1)(i) of this section has been received by the competent
authorities of all concerned countries, unless the notifier has
received information indicating that the competent authorities of one
or more concerned countries objects to the shipment.
(c) Red-list wastes. The export from the U.S. of hazardous wastes
as described in Sec. 262.80(a) that appear on the red list is
prohibited unless notice is given pursuant to paragraph (b)(1)(i) of
this section and the notifier receives written consent from the
importing country and any transit countries prior to commencement of
the transfrontier movement.
(d) Unlisted wastes. Wastes not assigned to the green, amber, or
red list that are considered hazardous under U.S. national procedures
as defined in Sec. 262.80(a) are subject to the notification and
consent requirements established for red-list wastes in accordance with
paragraph (c) of this section. Unlisted wastes that are not considered
hazardous under U.S. national procedures as defined in Sec. 262.80(a)
are not subject to amber or red controls when exported or imported.
(e) Notification information. Notifications submitted under this
section must include:
(1) Serial number or other accepted identifier of the notification
form;
(2) Notifier name and EPA identification number (if applicable),
address, and telephone and telefax numbers;
(3) Importing recovery facility name, address, telephone and
telefax numbers, and technologies employed;
(4) Consignee name (if not the owner or operator of the recovery
facility) address, and telephone and telefax numbers; whether the
consignee will engage in waste exchange or storage prior to delivering
the waste to the final recovery facility and identification of recovery
operations to be employed at the final recovery facility;
(5) Intended transporters and/or their agents;
(6) Country of export and relevant competent authority, and point
of departure;
(7) Countries of transit and relevant competent authorities and
points of entry and departure;
(8) Country of import and relevant competent authority, and point
of entry;
(9) Statement of whether the notification is a single notification
or a general notification. If general, include period of validity
requested;
(10) Date foreseen for commencement of transfrontier movement;
(11) Designation of waste type(s) from the appropriate list (amber
or red and waste list code), descriptions of each waste type, estimated
total quantity of each, RCRA waste code, and United Nations number for
each waste type; and
(12) Certification/Declaration signed by the notifier that states:
I certify that the above information is complete and correct to
the best of my knowledge. I also certify that legally-enforceable
written contractual obligations have been entered into, and that any
applicable insurance or other financial guarantees are or shall be
in force covering the transfrontier movement.
Name:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
Note to paragraph (e)(12): The U.S. does not currently require
financial assurance; however, U.S. exporters may be asked by other
governments to provide and certify to such assurance as a condition
of obtaining consent to a proposed movement.
Sec. 262.84 Tracking document.
(a) All U.S. parties subject to the contract provisions of
Sec. 262.85 must ensure that a tracking document meeting the conditions
of Sec. 262.84(b) accompanies each transfrontier shipment of wastes
subject to amber-list or red-list controls from the initiation of the
shipment until it reaches the final recovery facility, including cases
in which the waste is stored and/or exchanged by the consignee prior to
shipment to the final recovery facility, except as provided in
Secs. 262.84(a)(1) and (2).
(1) For shipments of hazardous waste within the U.S. solely by
water (bulk shipments only) the generator must forward the tracking
document with the manifest to the last water (bulk shipment)
transporter to handle the waste in the U.S. if exported by water, (in
accordance with the manifest routing procedures at Sec. 262.23(c)).
(2) For rail shipments of hazardous waste within the U.S. which
originate at the site of generation, the generator must forward the
tracking document with the manifest (in accordance with the routing
procedures for the manifest in Sec. 262.23(d)) to the next non-rail
transporter, if any, or the last rail transporter to handle the waste
in the U.S. if exported by rail.
[[Page 16313]]
(b) The tracking document must include all information required
under Sec. 262.83 (for notification), and the following:
(1) Date shipment commenced.
(2) Name (if not notifier), address, and telephone and telefax
numbers of primary exporter.
(3) Company name and EPA ID number of all transporters.
(4) Identification (license, registered name or registration
number) of means of transport, including types of packaging.
(5) Any special precautions to be taken by transporters.
(6) Certification/declaration signed by notifier that no objection
to the shipment has been lodged as follows:
I certify that the above information is complete and correct to
the best of my knowledge. I also certify that legally-enforceable
written contractual obligations have been entered into, that any
applicable insurance or other financial guarantees are or shall be
in force covering the transfrontier movement, and that:
1. All necessary consents have been received; OR
2. The shipment is directed at a recovery facility within the
OECD area and no objection has been received from any of the
concerned countries within the 30 day tacit consent period; OR
3. The shipment is directed at a recovery facility pre-
authorized for that type of waste within the OECD area; such an
authorization has not been revoked, and no objection has been
received from any of the concerned countries.
(delete sentences that are not applicable)
Name:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
(7) Appropriate signatures for each custody transfer (e.g.
transporter, consignee, and owner or operator of the recovery
facility).
(c) Notifiers also must comply with the special manifest
requirements of 40 CFR 262.54(a), (b), (c), (e), and (i) and consignees
must comply with the import requirements of 40 CFR part 262, subpart F.
(d) Each U.S. person that has physical custody of the waste from
the time the movement commences until it arrives at the recovery
facility must sign the tracking document (e.g. transporter, consignee,
and owner or operator of the recovery facility).
(e) Within 3 working days of the receipt of imports subject to this
Subpart, the owner or operator of the U.S. recovery facility must send
signed copies of the tracking document to the notifier, to the Office
of Enforcement and Compliance Assurance, Office of Compliance,
Enforcement Planning, Targeting and Data Division (2222A),
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460,
and to the competent authorities of the exporting and transit
countries.
Sec. 262.85 Contracts.
(a) Transfrontier movements of hazardous wastes subject to amber or
red control procedures are prohibited unless they occur under the terms
of a valid written contract, chain of contracts, or equivalent
arrangements (when the movement occurs between parties controlled by
the same corporate or legal entity). Such contracts or equivalent
arrangements must be executed by the notifier and the owner or operator
of the recovery facility, and must specify responsibilities for each.
Contracts or equivalent arrangements are valid for the purposes of this
section only if persons assuming obligations under the contracts or
equivalent arrangements have appropriate legal status to conduct the
operations specified in the contract or equivalent arrangement.
(b) Contracts or equivalent arrangements must specify the name and
EPA ID number, where available, of:
(1) The generator of each type of waste;
(2) Each person who will have physical custody of the wastes;
(3) Each person who will have legal control of the wastes; and
(4) The recovery facility.
(c) Contracts or equivalent arrangements must specify which party
to the contract will assume responsibility for alternate management of
the wastes if its disposition cannot be carried out as described in the
notification of intent to export. In such cases, contracts must specify
that:
(1) The person having actual possession or physical control over
the wastes will immediately inform the notifier and the competent
authorities of the exporting and importing countries and, if the wastes
are located in a country of transit, the competent authorities of that
country; and
(2) The person specified in the contract will assume responsibility
for the adequate management of the wastes in compliance with applicable
laws and regulations including, if necessary, arranging their return to
the original country of export.
(d) Contracts must specify that the consignee will provide the
notification required in Sec. 262.82(c) prior to re-export of
controlled wastes to a third country.
(e) Contracts or equivalent arrangements must include provisions
for financial guarantees, if required by the competent authorities of
any concerned country, in accordance with applicable national or
international law requirements.
Note to paragraph (e): Financial guarantees so required are
intended to provide for alternate recycling, disposal or other means
of sound management of the wastes in cases where arrangements for
the shipment and the recovery operations cannot be carried out as
foreseen. The U.S. does not require such financial guarantees at
this time; however, some OECD countries do. It is the responsibility
of the notifier to ascertain and comply with such requirements; in
some cases, transporters or consignees may refuse to enter into the
necessary contracts absent specific references or certifications to
financial guarantees.
(f) Contracts or equivalent arrangements must contain provisions
requiring each contracting party to comply with all applicable
requirements of this subpart.
(g) Upon request by EPA, U.S. notifiers, consignees, or recovery
facilities must submit to EPA copies of contracts, chain of contracts,
or equivalent arrangements (when the movement occurs between parties
controlled by the same corporate or legal entity). Information
contained in the contracts or equivalent arrangements for which a claim
of confidentiality is asserted accordance with 40 CFR 2.203(b) will be
treated as confidential and will be disclosed by EPA only as provided
in 40 CFR 260.2.
Note to paragraph (g): Although the U.S. does not require
routine submission of contracts at this time, OECD Council Decision
C(92)39/FINAL allows members to impose such requirements. When other
OECD countries require submission of partial or complete copies of
the contract as a condition to granting consent to proposed
movements, EPA will request the required information; absent
submission of such information, some OECD countries may deny consent
for the proposed movement.
Sec. 262.86 Provisions relating to recognized traders.
(a) A recognized trader who takes physical custody of a waste and
conducts recovery operations (including storage prior to recovery) is
acting as the owner or operator of a recovery facility and must be so
authorized in accordance with all applicable Federal laws.
(b) A recognized trader acting as a notifier or consignee for
transfrontier shipments of waste must comply with all the requirements
of this Subpart associated with being a notifier or consignee.
Sec. 262.87 Reporting and recordkeeping.
(a) Annual reports. For all waste movements subject to this
Subpart, persons (e.g., notifiers, recognized traders) who meet the
definition of
[[Page 16314]]
primary exporter in Sec. 262.51 shall file an annual report with the
Office of Enforcement and Compliance Assurance, Office of Compliance,
Enforcement Planning, Targeting and Data Division (2222A),
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460,
no later than March 1 of each year summarizing the types, quantities,
frequency, and ultimate destination of all such hazardous waste
exported during the previous calendar year. (If the primary exporter is
required to file an annual report for waste exports that are not
covered under this Subpart, he may include all export information in
one report provided the following information on exports of waste
destined for recovery within the designated OECD member countries is
contained in a separate section). Such reports shall include the
following:
(1) The EPA identification number, name, and mailing and site
address of the notifier filing the report;
(2) The calendar year covered by the report;
(3) The name and site address of each final recovery facility;
(4) By final recovery facility, for each hazardous waste exported,
a description of the hazardous waste, the EPA hazardous waste number
(from 40 CFR part 261, subpart C or D), designation of waste type(s)
from OECD waste list and applicable waste code from the OECD lists, DOT
hazard class, the name and U.S. EPA identification number (where
applicable) for each transporter used, the total amount of hazardous
waste shipped pursuant to this Subpart, and number of shipments
pursuant to each notification;
(5) In even numbered years, for each hazardous waste exported,
except for hazardous waste produced by exporters of greater than 100kg
but less than 1000kg in a calendar month, and except for hazardous
waste for which information was already provided pursuant to
Sec. 262.41:
(i) A description of the efforts undertaken during the year to
reduce the volume and toxicity of waste generated; and
(ii) A description of the changes in volume and toxicity of the
waste actually achieved during the year in comparison to previous years
to the extent such information is available for years prior to 1984;
and
(6) A certification signed by the person acting as primary exporter
that states:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this and all
attached documents, and that based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information including the possibility of fine and
imprisonment.
(b) Exception reports. Any person who meets the definition of
primary exporter in Sec. 262.51 must file an exception report in lieu
of the requirements of Sec. 262.42 with the Administrator if any of the
following occurs:
(1) He has not received a copy of the tracking documentation signed
by the transporter stating point of departure of the waste from the
United States, within forty-five (45) days from the date it was
accepted by the initial transporter;
(2) Within ninety (90) days from the date the waste was accepted by
the initial transporter, the notifier has not received written
confirmation from the recovery facility that the hazardous waste was
received;
(3) The waste is returned to the United States.
(c) Recordkeeping. (1) Persons who meet the definition of primary
exporter in Sec. 262.51 shall keep the following records:
(i) A copy of each notification of intent to export and all written
consents obtained from the competent authorities of concerned countries
for a period of at least three years from the date the hazardous waste
was accepted by the initial transporter;
(ii) A copy of each annual report for a period of at least three
years from the due date of the report; and
(iii) A copy of any exception reports and a copy of each
confirmation of delivery (i.e., tracking documentation) sent by the
recovery facility to the notifier for at least three years from the
date the hazardous waste was accepted by the initial transporter or
received by the recovery facility, whichever is applicable.
(2) The periods of retention referred to in this section are
extended automatically during the course of any unresolved enforcement
action regarding the regulated activity or as requested by the
Administrator.
Sec. 262.88 Pre-approval for U.S. Recovery Facilities (Reserved).
Sec. 262.89 OECD Waste Lists.
(a) General. For the purposes of this Subpart, a waste is
considered hazardous under U.S. national procedures, and hence subject
to this Subpart, if the waste:
(1) Meets the Federal definition of hazardous waste in 40 CFR
261.3; and
(2) Is subject to either the Federal RCRA manifesting requirements
at 40 CFR part 262, subpart B, to the universal waste management
standards of 40 CFR part 273, or to State requirements analogous to 40
CFR part 273.
(b) If a waste is hazardous under paragraph (a) of this section and
it appears on the amber or red list, it is subject to amber- or red-
list requirements respectively;
(c) If a waste is hazardous under paragraph (a) of this section and
it does not appear on either amber or red lists, it is subject to red-
list requirements.
(d) The appropriate control procedures for hazardous wastes and
hazardous waste mixtures are addressed in Sec. 262.82.
(e) The OECD Green List of Wastes (revised May 1994), Amber List of
Wastes and Red List of Wastes (both revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix 5, respectively, to the OECD
Council Decision C(92)39/FINAL (Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations) are incorporated
by reference. These incorporations by reference were approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51 on July 11, 1996. These materials are incorporated as
they exist on the date of the approval and a notice of any change in
these materials will be published in the Federal Register. The
materials are available for inspection at: the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC; the
U.S. Environmental Protection Agency, RCRA Information Center (RIC),
1235 Jefferson-Davis Highway, first floor, Arlington, VA 22203 (Docket
# F-94-IEHF-FFFFF) and may be obtained from the Organisation for
Economic Co-operation and Development, Environment Direcorate, 2 rue
Andre Pascal, 75775 Paris Cedex 16, France.
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
10. The authority citation for part 263 is revised to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922, 6923, 6925, 6937, and
6938.
11. Section 263.10 is amended by adding paragraph (d) to read as
follows:
Sec. 263.10 Scope.
* * * * *
(d) A transporter of hazardous waste subject to the Federal
manifesting requirements of 40 CFR part 262, or subject to the waste
management standards of 40 CFR part 273, or subject
[[Page 16315]]
to State requirements analogous to 40 CFR part 273, that is being
imported from or exported to any of the countries listed in 40 CFR
262.58(a)(1) for purposes of recovery is subject to this Subpart and to
all other relevant requirements of subpart H of 40 CFR part 262,
including, but not limited to, 40 CFR 262.84 for tracking documents.
12. Section 263.20(a) is revised to read as follows:
Sec. 263.20 The manifest system.
(a) A transporter may not accept hazardous waste from a generator
unless it is accompanied by a manifest signed in accordance with the
provisions of 40 CFR 262.20. In the case of exports other than those
subject to subpart H of 40 CFR part 262, a transporter may not accept
such waste from a primary exporter or other person if he knows the
shipment does not conform to the EPA Acknowledgement of Consent; and
unless, in addition to a manifest signed in accordance with the
provisions of 40 CFR 262.20, such waste is also accompanied by an EPA
Acknowledgement of Consent which, except for shipment by rail, is
attached to the manifest (or shipping paper for exports by water (bulk
shipment)). For exports of hazardous waste subject to the requirements
of subpart H of 40 CFR part 262, a transporter may not accept hazardous
waste without a tracking document that includes all information
required by 40 CFR 262.84.
* * * * *
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
13a. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a) 6924, and 6925, 13b. Section
264.12 is amended by redesignating paragraph (a) as paragraph (a)(1)
and by adding a paragraph (a)(2) to read as follows:
Sec. 264.12 Required notices.
(a) * * *
(2) The owner or operator of a recovery facility that has arranged
to receive hazardous waste subject to 40 CFR part 262, subpart H must
provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance,
Office of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460; and to the competent authorities of all other concerned
countries within three working days of receipt of the shipment. The
original of the signed tracking document must be maintained at the
facility for at least three years.
* * * * *
14. Section 264.71 is amended by adding paragraph (d) after the
comment to read as follows:
Sec. 264.71 Use of manifest system.
* * * * *
(d) Within three working days of the receipt of a shipment subject
to 40 CFR part 262, subpart H, the owner or operator of the facility
must provide a copy of the tracking document bearing all required
signatures to the notifier, to the Office of Enforcement and Compliance
Assurance, Office of Compliance, Enforcement Planning, Targeting and
Data Division (2222A), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, and to competent authorities of all other
concerned countries. The original copy of the tracking document must be
maintained at the facility for at least three years from the date of
signature.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
15. The authority citation for part 265 is revised to read as
follows:
Authority: 42 U.S.C 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
16. Section 265.12 is amended by redesignating paragraph (a) as
paragraph (a)(1) and by adding paragraph (a)(2) to read as follows:
Sec. 265.12 Required notices.
(a) * * *
(2) The owner or operator of a recovery facility that has arranged
to receive hazardous waste subject to 40 CFR part 262, subpart H must
provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance,
Office of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460 and to the competent authorities of all other concerned
countries within three working days of receipt of the shipment. The
original of the signed tracking document must be maintained at the
facility for at least three years.
* * * * *
17. Section 265.71 is amended by adding paragraph (d) after the
comment to read as follows:
Sec. 265.71 Use of the manifest system.
* * * * *
(d) Within three working days of the receipt of a shipment subject
to 40 CFR part 262, subpart H, the owner or operator of facility must
provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance,
Office of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460, and to competent authorities of all other concerned
countries. The original copy of the tracking document must be
maintained at the facility for at least three years from the date of
signature.
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
18. The authority citation for part 266 is revised to read as
follows:
Authority: 42 U.S.C 1006, 2002(a), 3004, 3014, 6905, 6906, 6912,
6922, 6923, 6924, 6925, 6934, and 6937.
19. Section 266.70 is amended by adding paragraph (b)(3) and by
adding the word ``and'' at the end of paragraph (b)(2) to read as
follows:
Sec. 266.70 Applicability and requirements.
* * * * *
(b) * * *
(3) For precious metals exported to or imported from designated
OECD member countries for recovery, subpart H of part 262 and
Sec. 265.12(a)(2) of this chapter. For precious metals exported to or
imported from non-OECD countries for recovery, subparts E and F of 40
CFR part 262.
* * * * *
PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT
20a. The authority citation for part 273 continues to read as
follows:
Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
20b. The introductory text for Sec. 273.20 is revised to read as
follows:
Sec. 273.20 Exports.
A small quantity handler of universal waste who sends universal
waste to a foreign destination other than to those OECD countries
specified in 40 CFR 262.58(a)(1) (in which case the handler is subject
to the requirements of 40 CFR part 262, subpart H) must:
* * * * *
21. The introductory text for Sec. 273.40 is revised to read as
follows:
[[Page 16316]]
Sec. 273.40 Exports.
A large quantity handler of universal waste who sends universal
waste to a foreign destination other than to those OECD countries
specified in 40 CFR 262.58(a)(1) (in which case the handler is subject
to the requirements of 40 CFR part 262, subpart H) must:
* * * * *
22. The introductory text for Sec. 273.56 is revised to read as
follows:
Sec. 273.56 Exports.
A universal waste transporter transporting a shipment of universal
waste to a foreign destination other than to those OECD countries
specified in 40 CFR 262.58(a)(1) (in which case the transporter is
subject to the requirements of 40 CFR part 262, subpart H) may not
accept a shipment if the transporter knows the shipment does not
conform to the EPA Acknowledgment of Consent. In addition the
transporter must ensure that:
* * * * *
23. Section 273.70 is amended by revising the introductory text and
by adding a new paragraph (d) to read as follows:
Sec. 273.70 Imports.
Persons managing universal waste that is imported from a foreign
country into the United States are subject to the applicable
requirements of this part, immediately after the waste enters the
United States, as indicated in paragraphs (a) through (c) of this
section:
* * * * *
(d) Persons managing universal waste that is imported from an OECD
country as specified in 40 CFR 262.58(a)(1) are subject to paragraphs
(a) through (c) of this section, in addition to the requirements of 40
CFR part 262, subpart H.
[FR Doc. 96-8087 Filed 4-11-96; 8:45 am]
BILLING CODE 6560-50-P
