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Revisions to: The Requirements for Transboundary Shipments of Wastes Between OECD Countries, the Requirements for Export Shipments of Spent Lead-Acid Batteries, the Requirements on Submitting Exception Reports for Export Shipments of Hazardous Wastes, and the Requirements for Imports of Hazardous Wastes
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PDF Version (30 pp, 473K, About PDF) [Federal Register: October 6, 2008 (Volume 73, Number 194)] [Proposed Rules] [Page 58387-58416] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr06oc08-24] [[Page 58388]] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 262, 264, 265, 266, and 271 [EPA-HQ-RCRA-2005-0018; FRL-8720-3] RIN 2050-AE93 Revisions to: The Requirements for Transboundary Shipments of Wastes Between OECD Countries, the Requirements for Export Shipments of Spent Lead-Acid Batteries, the Requirements on Submitting Exception Reports for Export Shipments of Hazardous Wastes, and the Requirements for Imports of Hazardous Wastes AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This rule proposes to amend certain existing regulations promulgated under the hazardous waste provisions of the Resource Conservation and Recovery Act (RCRA) regarding the export and import of hazardous wastes from and into the United States. Specifically, we are proposing to modify: The requirements to implement the OECD framework concerning the transboundary movement of hazardous waste among countries belonging to the Organization for Economic Cooperation and Development (OECD), including reducing the number of control levels, exempting qualifying shipments sent for laboratory analyses from certain paperwork requirements, requiring recovery facilities to submit a certificate of recovery, adding provisions for the return or re- export of wastes subject to the Amber control procedures, and clarifying certain existing provisions that were identified as potentially ambiguous to the regulated community; the regulations regarding the management of spent lead-acid batteries being reclaimed to require appropriate notice and consent for those batteries intended for reclamation in a foreign country; the exception reporting requirements for hazardous waste exports to specify that all exception reports submitted to EPA be sent to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC rather than to the Administrator; and the hazardous waste import requirements such that U.S. importers would give the initial transporter a copy of the EPA-provided documentation confirming EPA's consent to the import when they provide the RCRA hazardous waste manifest, and that the documentation would be submitted by the U.S. receiving facility to EPA along with the RCRA hazardous waste manifest within thirty days of import shipment delivery. Finally, separate from this proposed rule, EPA is publishing in http://www.epa.gov/epawaste/ hazard/international/oecd-slab-rule.htm a draft guidance document on how U.S. receiving facilities may request EPA to identify them as pre- approved facilities to receive hazardous waste from OECD Member countries. DATES: Comments must be received on or before December 5, 2008. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before November 5, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- RCRA-2005-0018, by one of the following methods: • http://www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: rcra-docket@epa.gov, Attention Docket No. EPA-HQ- RCRA-2005-0018. • Fax: (202) 566-9744, Attention Docket No. EPA-HQ-RCRA-2005-0018. • Mail: RCRA Docket No. EPA-HQ-RCRA-2005-0018, Environmental Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of 2 copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503. • Hand Delivery: RCRA Docket No. EPA-HQ-RCRA-2005-0018, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA- 2005-0018. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http:// www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the http:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/ DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the RCRA Docket is (202) 566-0270. FOR FURTHER INFORMATION CONTACT: Laura Coughlan, Hazardous Waste Identification Division, Office of Solid Waste (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (703) 308-0005; fax number: (703) 308-0514; e-mail: coughlan.laura@epa.gov. SUPPLEMENTARY INFORMATION: The information presented in this preamble is organized as follows: I. General Information A. List of Acronyms Used in This Proposed Rule B. What are the statutory authorities for this proposed rule? C. Does this proposed rule apply to me? D. What is the purpose of this proposed rule? [[Page 58389]] II. Background A. OECD Revisions B. SLAB Revisions C. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262 D. Import Revisions III. Summary of This Proposed Rule and Changes A. Changes to 40 CFR Part 262, Subpart E B. Changes to 40 CFR 262.60(e), Subpart F C. Changes to 40 CFR Part 262, Subpart H D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2) E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3) F. Changes to 40 CFR 266.80(a) G. Changes to 40 CFR 271.1 IV. Costs and Benefits of the Proposed Rule A. Introduction B. Analytical Scope C. Cost Impacts D. Benefits V. State Authorization A. Applicability of Rules in Authorized States B. Effect on State Authorization VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. List of Acronyms Used in This Proposed Rule ------------------------------------------------------------------------ Acronym Meaning ------------------------------------------------------------------------ BCI............................... Battery Council International CBI............................... Confidential Business Information CERCLA............................ Comprehensive Environmental Response, Compensation, and Liability Act CFR............................... Code of Federal Regulations EPA............................... U.S. Environmental Protection Agency FR................................ Federal Register HSWA.............................. Hazardous and Solid Waste Amendments LAB............................... Lead-Acid Battery NAICS............................. North American Industrial Classification System NTTAA............................. National Technology Transfer and Advancement Act NAFTA............................. North American Free Trade Agreement OECD.............................. Organization for Economic Cooperation and Development OMB............................... Office of Management and Budget OSWER............................. Office of Solid Waste and Emergency Response RCRA.............................. Resource Conservation and Recovery Act RFA............................... Regulatory Flexibility Act SIC............................... Standard Industrial Classification SLAB.............................. Spent Lead-Acid Battery SBREFA............................ Small Business Regulatory Enforcement Fairness Act TRI............................... Toxics Release Inventory UMRA.............................. Unfunded Mandates Reform Act ------------------------------------------------------------------------ B. What are the statutory authorities for this proposed rule? The authority to propose this rule is found in sections 1006, 1007, 2002(a), 3001-3010, 3013-3015, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6905, 6906, 6912, 6921-6930, 6934-6936, and 6938. C. Does this proposed rule apply to me? 1. OECD Revisions The OECD revisions in this proposed rule affect all persons who export or import hazardous waste, export or import universal waste, or export spent lead-acid batteries (SLABs) destined for recovery operations in countries belonging to the Organization for Economic Cooperation and Development (OECD), except for Mexico and Canada. Any transboundary movement of hazardous wastes between the United States and either Mexico or Canada will continue to be regulated by their respective bilateral agreements and applicable regulations. Potentially affected entities may include, but are not limited to: ------------------------------------------------------------------------ Industry sector NAICS SIC ------------------------------------------------------------------------ Utilities..................................... 221100 4939 Petroleum and Coal Products Manufacturing..... 324 29 Chemical Manufacturing........................ 325100 28 Primary Metal Manufacturing................... 331 33 Fabricated Metal Product Manufacturing........ 332 34 Machinery Manufacturing....................... 333 35 Computer and Electronic Product Manufacturing. 334110 357 Electrical Equipment, Appliance, and Component 335 36 Manufacturing................................ Transportation Equipment Manufacturing........ 336 37 Miscellaneous Manufacturing................... 339900 39 Scrap and Waste Materials..................... 423930 5093 Materials Recovery Facilities................. 562920 4953 ------------------------------------------------------------------------ 2. SLAB Revisions The SLAB revisions in this proposed rule affect all persons who export SLABs for reclamation in any foreign country. Potentially affected entities may include, but are not limited to: ------------------------------------------------------------------------ Industry sector NAICS SIC ------------------------------------------------------------------------ Hazardous Waste Collectors.................... 562112 4212 Recyclable Material Hauling, Long-Distance.... 484230 4213 Batteries, automotive, merchant wholesalers... 423120 5013 Lead-acid storage batteries, manufacturing.... 335911 3691 Automotive Parts, Accessories, and Tire Stores 441310 5013 Tire Dealers.................................. 441320 5014 All other General Merchandise Stores.......... 452990 5399 New Car Dealers............................... 441110 5511 [[Page 58390]] Recyclable Material Wholesaler................ 423930 5093 Other Waste Collection........................ 562119 4212 Recyclable Material Collection Services, Solid 562111 4212 Waste Collection............................. Marinas....................................... 713930 4493 General Freight Trucking, Long-Distance, TL... 484121 4213 General Freight Trucking, Long-Distance, LTL.. 484122 4213 Specialized Freight Trucking.................. 484200 4213 Freight Carriers (except air couriers), Air 481112 4512 Scheduled.................................... Freight Charter Services, Air................. 481212 4522 Freight Railways, Line-Haul................... 482111 4011 Freight Transportation, Deep Sea, to and from 483113 4424 Domestic Ports............................... Freight Transportation, Deep Sea, to or from 483111 4412 Foreign Ports................................ ------------------------------------------------------------------------ 3. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262 The exception report change to 40 CFR part 262, subpart E and subpart H of this proposed rule affect all persons who export hazardous waste, universal waste, or SLABs to any foreign country. Potentially affected entities may include, but are not limited to: ------------------------------------------------------------------------ Industry sector NAICS SIC ------------------------------------------------------------------------ Utilities..................................... 221100 4939 Petroleum and Coal Products Manufacturing..... 324 29 Chemical Manufacturing........................ 325100 28 Primary Metal Manufacturing................... 331 33 Fabricated Metal Product Manufacturing........ 332 34 Machinery Manufacturing....................... 333 35 Computer and Electronic Product Manufacturing. 334110 357 Electrical Equipment, Appliance, and Component 335 36 Manufacturing................................ Transportation Equipment Manufacturing........ 336 37 Miscellaneous Manufacturing................... 339 39 Scrap and Waste Materials..................... 423930 5093 ------------------------------------------------------------------------ 4. Import Revisions The import revisions in this proposed rule affect all persons importing hazardous waste from a foreign country that must comply with 40 CFR part 262, subpart F, and all facilities receiving imported hazardous waste from a foreign country that must comply with either 264.71(a)(3) or 265.71(a)(3). This includes those hazardous waste import shipments originating in OECD countries, as well as in non-OECD countries. Potentially affected entities may include, but are not limited to: ------------------------------------------------------------------------ Industry sector NAICS SIC ------------------------------------------------------------------------ Hazardous Waste Collectors.................... 562112 4212 Recyclable Material Hauling, Long-Distance.... 484230 4213 Recyclable Material Wholesaler................ 423930 5093 Other Waste Collection........................ 562119 4212 Recyclable Material Collection Services, Solid 562111 4212 Waste Collection............................. General Freight Trucking, Long-Distance, TL... 484121 4213 Scrap and Waste Materials..................... 423930 5093 Materials Recovery Facilities................. 562920 4953 ------------------------------------------------------------------------ The lists of potentially affected entities in the above tables may not be exhaustive. The Agency's aim is to provide a guide for readers regarding those entities that potentially could be affected by this action. However, this action may affect other entities not listed in these tables. If you have questions regarding the applicability of this proposed rule to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT. D. What is the purpose of this proposed rule? 1. OECD Revisions This proposed rule is intended to implement the OECD's ``Decision of the Council C(2001)107/FINAL, Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations, as amended by C(2004)20'' (hereinafter referred to as the Amended 2001 OECD Decision), which amended the OECD Decision (1992) on the same subject. The purpose of these revisions was to encourage consistency and harmonization between the OECD and the Basel Convention,\1\ which in turn, promotes economic [[Page 58391]] efficiency and the recovery of waste in an environmentally sound manner. --------------------------------------------------------------------------- \1\ The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is a comprehensive global environmental agreement on hazardous and other wastes. The Convention has 170 Member countries, also known as Parties, and aims to protect human health and the environment against the adverse effects resulting from the generation, management, transboundary movements and disposal of hazardous and other wastes. More information on the Basel Convention may be found at http://www.basel.int.--------------------------------------------------------------------------- The Amended 2001 OECD Decision was supported by the United States and imposes legally binding commitments on the United States pursuant to Articles 5(a) and 6 of the OECD Convention. By consenting to the Decision, the United States Government has agreed to promulgate regulations necessary to ensure that the United States can uphold the agreement. Further, this proposed rule clarifies certain regulations to articulate more explicitly EPA's original intent in those regulations and to eliminate any confusion on the part of the regulated community. 2. SLAB Revisions EPA also proposes to amend the RCRA hazardous waste regulations for SLABs specified in 40 CFR part 266, subpart G by requiring notification and consent for the export of SLABs in order to ensure that SLABs are sent to reclamation facilities in countries that can manage them in an environmentally sound manner. The notification and consent requirements are intended to: (1) Reduce potential risk to human health and the environment, including potential risk from the transboundary movement of pollution from other countries to the U.S., and (2) harmonize the notice and consent procedures with international practice (see II.B.4) and with the RCRA universal waste regulations for the export of SLABs, resulting in a more uniform practice for notification and consent for SLABs. Notification of potential exports of hazardous waste destined for recovery in another country is a key component of multilateral environmental systems for appropriate governmental oversight to ensure proper management of the waste. The notification mechanism allows for all concerned countries (i.e., exporting, importing, and transit) to determine whether the hazardous waste can be handled safely based on the requirements of their waste management systems. Specifically, the importing country has the opportunity to confirm that the particular facility that is designated to receive the waste is qualified to manage it in a safe and environmentally sound manner, and has all appropriate approvals, permits, or licenses. Furthermore, the notice and consent process is the fundamental tool that is employed in transboundary waste arrangements to provide business certainty for legitimate trade. Risks to human health and the environment derived from improper SLAB recycling techniques are of major concern internationally. The Basel Convention has developed two guidance documents 2 3 to assist governments, transporters, and recyclers to achieve environmentally sound management of SLABs. Indeed, the Basel Convention considers transboundary movement of SLABs to be ``illegal traffic'' if it occurs without prior notification. Similar guidance was developed by the Commission for Environmental Cooperation \4\ (CEC) for use by North American countries to promote sound management of SLABs.\5\ A 1996 OECD Ministerial Declaration on risk reduction from lead called on Member countries to take domestic and international action to reduce human exposure to lead from a variety of sources.\6\ Further, the Report of the Special Rapporteur of the U.N. Commission on Human Rights \7\ expressed concerns that ``the United States system does not impose export regulations on SLABs destined for recycling,'' and suggests that ``the recycling of lead-acid batteries is one of the greatest potential sources of risk, especially for exposed workers in the informal sector in many developing countries.'' --------------------------------------------------------------------------- \2\ Basel Convention Training Manual: National Management Plans for Used Lead Acid Batteries, SBC No. 2004/5, 2004. \3\ Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries, SBC No. 2003/9, 2003. \4\ The Commission for Environmental Cooperation is an international organization created by Canada, Mexico and the United States under the North American Agreement on Environmental Cooperation (NAAEC). The CEC was established to address regional environmental concerns, help prevent potential trade and environmental conflicts, and to promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade Agreement (NAFTA). \5\ Practices and Options for Environmentally Sound Management of Spent Lead-acid Batteries within North America, Commission for Environmental Cooperation, December 2007. \6\ The Global Pursuit of the Sound Management of Chemicals, The World Bank, February 2004. \7\ Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, U.N. Commission on Human Rights, Economic and Social Council, E/ CN.4/2003/56/Add.1, 10 January 2003, p. 17. --------------------------------------------------------------------------- For economic and efficiency reasons, some highly industrialized countries may ship their SLABs to less industrialized countries for SLAB breaking, draining, component separation, slag generation and lead refining. Human health and environmental risk issues can arise when these recycling processes are performed with insufficient human health or environmental safety controls. The results could include: (1) Significant increases in elevated blood lead levels in facility workers and their families; (2) increases in uncontrolled releases of lead- laden slag to soil, surface water and ground water sources; and (3) lead air-emissions from lead smelting without the proper air-emissions controls. EPA would like to focus on the use of preventative measures to decrease the proportionate risks to human health and the global environment. There are inherent human health and environmental hazards associated with a significant amount of SLABs being exported across borders without the knowledge and consent of receiving countries and/or SLABs being exported to countries with substandard smelting infrastructures. Amending the current RCRA hazardous waste regulations to include the notification and consent requirements would help ensure that SLABs are exported to countries with the capacity to handle them in an environmentally sound manner and to aid countries with tracking the movements and life-cycle management of SLABs inside their borders. EPA believes that the notification and consent approach is an effective way of preventing the export of SLABs to countries and to facilities that do not have the capability of safely managing the SLABs by providing the receiving country with the necessary information about the proposed shipment and requiring its consent before the export can proceed. In addition, by providing the receiving country with this information, they can monitor and track the export and the facility's management of the SLABs for safe management. The purpose of the notification and consent requirements for SLABs destined for reclamation in this proposed rule is consistent with the purpose of the notification and consent requirements in RCRA section 3017. Congress, in enacting section 3017, considered it important to require notification and consent for exports of hazardous wastes. The legislative history for section 3017 indicates that Congress felt that prior notification of an export to the receiving country would allow that country to make an informed decision as to whether it would accept the waste and, if so, how it would safely manage that waste. Congress noted that problems, such as harm to human health and the environment arise when wastes are sent to countries that do not want to receive them, or lack sufficient information to manage them properly. EPA believes that the potential reduction in risk to human health and the environment with this proposed modification will outweigh the incremental increase in burden to SLAB exporters. Moreover, because the [[Page 58392]] notification and consent requirements are intended to ensure that the receiving country has the necessary advance knowledge of a proposed shipment of SLABs to a facility in that country, the country can properly consent (or object) to this shipment based on its knowledge of the capabilities of the particular facility and its ability to manage the batteries in a safe and environmentally sound manner. 3. Exception Report Revisions for Exports Under Subparts E and H of 40 CFR Part 262 EPA proposes to amend the exception reporting requirements in 40 CFR part 262, subparts E and H, to specify that all exception reports be submitted to the Office of Enforcement and Compliance Assurance's Office of Federal Activities in Washington, DC rather than to the Administrator.\8\ The Agency proposes this change because it believes that a more specific address should assist in proper delivery of the exception report to the appropriate EPA office. The more general requirement in the existing regulation to send this report to the ``Administrator'' may have not provided sufficiently specific instruction for those exporters trying to notify EPA of returned shipments, which could reduce EPA's ability to provide oversight on such exports. Directing that all exception reports submitted to EPA pursuant to the requirements in 40 CFR part 262, subparts E and H, be sent to a specific address should ensure better oversight of (1) return shipments into the U.S. and (2) compliance with the exception report requirements without additional regulatory burden. --------------------------------------------------------------------------- \8\ The Office of Enforcement and Compliance Assurance is the office within EPA that implements the notice and consent scheme for hazardous waste transboundary shipments. --------------------------------------------------------------------------- 4. Import Revisions Finally, EPA proposes to amend the import requirements specified in 40 CFR part 262, subpart F. This change would require that the U.S. importer provide the transporter with a copy of documentation provided by EPA, confirming EPA's consent to the hazardous waste import under a specific notice. This documentation would then accompany each RCRA hazardous waste manifested import shipment and be submitted by the receiving facility in the U.S. to EPA along with the RCRA hazardous waste manifest in accordance with Sec. Sec. 264.71(a)(3) and 265.71(a)(3). While EPA currently requires that receiving facilities in the U.S. submit a copy of the hazardous waste manifest to EPA to document individual import shipments, it has been difficult for EPA to match an individual manifest for a hazardous waste import shipment with the related notice of intent to export from a foreign country for which EPA has provided consent. One major reason for this difficulty is because a given destination facility in the U.S. could be receiving the same hazardous waste from the same foreign exporter under more than one notice. Adding this requirement will enable EPA to better match the individual import shipments against the related notice from the foreign exporting country for which EPA has provided consent, and facilitate our oversight of such imports. II. Background A. OECD Revisions 1. What is the OECD? The OECD is an international organization established in 1960 to assist Member countries in achieving sustainable economic growth, employment, and an increased standard of living, while simultaneously ensuring the protection of human health and the environment. OECD Member countries are concerned with a host of international socio- economic and political issues, including environmental issues. To address these issues, the OECD Council may negotiate Council Decisions, which are international agreements that create binding commitments on the United States under the terms of the OECD Convention, unless otherwise provided in the Articles of the 1960 Convention. One such Council Decision addresses the transboundary movement of waste, which is the subject of this proposed rule. There are currently thirty OECD Member countries: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, South Korea, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. The OECD country Web site for each Member country may be found at http://www.oecd.org/infobycountry/.