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Frequent Questions about the Confidentiality Determinations for Hazardous Waste Export and Import Documents Final Rule

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Question: What does this final rule do?

Answer: This final rule applies a confidentiality determination such that no person can assert confidential business information (CBI) claims with respect to any of the following documents related to the export, import, and transit of hazardous waste and export of excluded CRTs:

  • Documents related to the export of Resource Conservation and Recovery Act (RCRA) hazardous waste under title 40 of the Code of Federal Regulations (CFR) in part 262, subpart H, including but not limited to the notifications of intent to export, contracts submitted in response to requests for supplemental information from countries of import or transit, RCRA manifests, annual reports, EPA acknowledgements of consent, any subsequent communication withdrawing a prior consent or objection, responses that neither consent nor object, exception reports, transit notifications, and renotifications;
  • Documents related to the import of hazardous waste, under 40 CFR part 262, subpart H, including but not limited to contracts and notifications of intent to import hazardous waste into the U.S. from foreign countries or U.S. importers;
  • Documents related to the confirmation of receipt and confirmation of recovery or disposal of hazardous waste exports and imports, under 40 CFR part 262, subpart H;
  • Documents related to the transit of hazardous waste, under 40 CFR part 262, subpart H, including notifications from U.S. exporters of intent to transit through foreign countries, or notifications from foreign countries of intent to transit through the U.S.;
  • Documents related to the export of cathode ray tubes (CRTs), under 40 CFR part 261, subpart E, including but not limited to notifications of intent to export CRTs;
  • Documents related to the export and import of non-crushed spent lead acid batteries (SLABs) with intact casings, under 40 CFR part 266 subpart G, including but not limited to notifications of intent to export SLABs;
  • Submissions from transporters under 40 CFR part 263, or from treatment, storage or disposal facilities under 40 CFR parts 264 and 265, related to exports or imports of hazardous waste, including but not limited to receiving facility notices of the need to arrange alternate management or return of an import shipment under 40 CFR sections 264.12(a) and 265.12(a);
  • Documents related to the export and import of RCRA universal waste under 40 CFR part 273, subparts B, C, D, and F; and
  • Documents required under 40 CFR 262 Subparts E, F and H and submitted in accordance with consents issued prior to December 31, 2016.

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Question: What are the benefits of the final rule?

Answer: There are a number of benefits associated with this rule. By providing a consistent approach to addressing confidentiality claims with respect to the documents within the scope of this rulemaking, this action will result in cost-savings and greater efficiency to both the regulated community and EPA. The Agency will not incur the costs associated with developing and publishing the annual Federal Register (FR) notice requesting comment from affected businesses (other than original submitters), as defined in 40 CFR section 2.201(d), on their need to assert confidentiality claims for documents submitted to EPA related to hazardous waste exports and imports. Industry cost-savings result from the avoided costs associated with reading and responding to the FR notice. Furthermore, this action will facilitate greater transparency with respect to the documents that are within the scope of this rulemaking.

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Question: Who is affected by this rulemaking?

Answer: The rule affects three groups:

  • All persons who export (or arrange for the export) of hazardous waste for recovery or disposal;
  • All persons who export conditionally excluded cathode ray tubes (CRTs); and
  • All persons who import hazardous wastes for recovery or disposal.

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Question: Why is EPA making a confidentiality determination for hazardous waste export and import documents?

Answer: EPA is making a confidentiality determination such that no person can assert confidential business information (CBI) claims for documents related to the export, import, and transit of hazardous waste and excluded cathode ray tubes (CRTs). EPA is making these changes to apply a consistent approach in addressing confidentiality claims for export and import documentation. The information contained in hazardous waste export and import documents is very similar to that contained in uniform hazardous waste manifests (“manifests”), the main difference being that the information contained in manifests pertains to the domestic management of hazardous waste shipments, while the export and import documents pertain to the international part of those shipments. Manifests are not eligible under federal law (and in many states) for treatment as CBI and EPA believes that it is appropriate to treat the domestic and international shipping documents the same with respect to CBI claims. Based on past CBI determinations, we also believe that any CBI claim that might be asserted with respect to the individual selected hazardous waste documents would be extremely difficult to sustain under the substantive CBI criteria set forth in the Agency’s CBI regulations (40 CFR Part 2, Subpart B). To date, based on our records, EPA has only received one assertion of confidentiality for hazardous waste export or import documents that the Agency determined was entitled to confidential treatment at the time of the claim in 1994. In that case, EPA determined that the identities and addresses of the foreign generators listed in the import notification letters were entitled to confidential treatment. Since that time, EPA promulgated the “Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests” final rule determining that manifests and the data contained therein are not CBI (79 FR 7518). Because the contact information of foreign generators is a required data element on manifests for hazardous waste import shipments, EPA’s more recent determination that manifests are no longer CBI supersedes the decision to withhold the information as confidential in 1994.

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Question: Why isn’t EPA finalizing the proposed requirement that hazardous waste exporters and receiving facilities of hazardous waste from foreign sources upload confirmations of receipt and confirmations of recovery and disposal on their websites?

Answer: The proposed internet posting requirement was intended to be in effect on a temporary basis while EPA develops its Waste Import Export Tracking System (WIETS) to be able to receive electronic submittals of confirmations of receipt and confirmations of recovery or disposal, which document the receipt and completed management of hazardous waste exports and imports. Recognizing that the internet posting requirement would be superseded when exporters and receiving facilities are required to submit confirmations electronically, EPA has decided to avoid the potential confusion as described by some public commenters, that may result from requiring companies to upload documents on their websites on a temporary basis.

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Question: When will this rule become effective and must my state adopt it?

Answer: This rulemaking was finalized on December 11, 2017, and will be effective at the federal level on June 26, 2018 (six months from publication date). The rule will also take effect in all States on June 26, 2018 because import and export requirements are administered by the Federal government as a foreign policy matter. Although States do not receive authorization to administer the Federal government’s export or import functions in the RCRA hazardous waste regulations, State programs are still required to adopt the final provisions in this rule to maintain their equivalency with the Federal program.

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