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Frequent Questions about the Hazardous Waste Export-Import Revisions Final Rule

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Question: What new requirements did EPA finalize in the Hazardous Waste Export-Import Revisions Final Rule?

Answer: This final rule establishes:

  • Consolidation of the regulations so that one set of protective requirements -- the regulations currently in title 40 of the Code of Federal Regulations (CFR) Part 262 Subpart H implementing the Organization for Economic Cooperation and Development (OECD) Council Decision controlling transboundary movements of recyclable hazardous waste -- will apply to all imports and exports of hazardous waste.
  • Mandatory electronic reporting to EPA that will enable increased sharing of hazardous waste import and export data with state programs, the general public, and individual hazardous waste exporters and importers.
  • Linking the consent to export with the electronic export information submitted to U.S. Customs and Border Protection that will provide for more efficient compliance monitoring.
  • Clearer matching of waste stream level export and import consent numbers with waste streams listed on the Resource Conservation and Recovery Act (RCRA) hazardous waste manifests for shipments.
  • Mandatory EPA identification (ID) numbers for all small quantity and large quantity hazardous waste exporters and importers, including those recognized traders arranging for export or import of hazardous waste.

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Question: Why did EPA implement these changes now?

Answer: EPA finalized improvements to the oversight of international hazardous waste shipments to help ensure that imported and exported hazardous wastes will be managed safely in light of various reviews of existing regulations.

The final rule is one of the Agency’s priority actions under its plan for periodic retrospective reviews of existing regulations, as called for by Executive Order 13563. Additionally, certain revisions in this rule were needed to fulfill the direction set forth in Executive Order 13659 concerning the electronic management of international trade data by the U.S. Government as part of the International Trade Data System (ITDS).

This final rule also addresses several of the concerns outlined in the EPA Office of the Inspector General’s July 6, 2015 report titled “EPA Does Not Effectively Control or Monitor Imports of Hazardous Waste”. In addition, this rule addresses the Commission for Environmental Cooperation Secretariat’s April 15, 2013 report titled “Hazardous Trade? An Examination of US-generated Spent Lead-acid Battery Exports and Secondary Lead Recycling in Mexico, the United States and Canada Exit” (84 pp, 4.23 MB, About PDF)Exit by increasing the tracking of individual import and export shipments.

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Question: What are the benefits of the final rule?

Answer: The new requirements finalized in this rule will provide greater protection to human health and the environment by providing increased transparency, data sharing and more efficient compliance monitoring. Specifically, the changes to the existing regulations will:

  • consolidate and streamline some of the requirements to minimize burden where possible;
  • increase tracking of the transportation and disposition of individual imported and exported shipments of hazardous wastes and other materials, improving the Agency’s ability to monitor compliance with applicable legal requirements;
  • enable regulated parties and the government to benefit from the electronic submission of data; and
  • consolidate under a unified regulation the process of notification with foreign governments, increasing efficiency and ensuring the process is consistent with the requirements of the OECD controlling transboundary movements of hazardous waste.

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Question: How and why were the requirements for transboundary movements of hazardous waste reorganized?

Answer: EPA reorganized and clarified exporter, importer, transporter, and receiving facility requirements under 40 CFR part 262 subpart H. The purpose of these changes is to more accurately reflect the current procedures implementing the Amended 2001 OECD Council Decision, expand applicability to all exports and imports of RCRA hazardous waste, and more clearly spell out existing requirements for exports and imports.

The rule retitled 40 CFR part 262 subpart H to indicate the subpart covers all transboundary shipments of hazardous waste for recovery or disposal. The sections for general applicability, definitions, and general conditions will remain in 40 CFR §262.80, §262.81, and §262.82 respectively.

The rule changed the title of section 262.83 from “Notification and consent” to “Exports of hazardous waste” and added subsections for:

  1. general export requirements,
  2. notification requirements,
  3. RCRA manifest instructions for export shipments,
  4. OECD movement document requirements for export shipments,
  5. the exporter’s duty to return or re-export (to a third country) export shipments of waste that cannot be managed in accordance with the terms of the contract or consent and cannot be managed at an alternate facility in the country of import,
  6. contract requirements,
  7. annual reporting requirements,
  8. exception reporting requirements, and
  9. record keeping requirements.

Under the revised section 262.84, subsections are exclusively about imports, specifically:

  1. general import requirements,
  2. notification requirements that apply only when the country of export does not control the proposed shipment as an export of hazardous waste,
  3. RCRA manifest instructions for import shipments,
  4. OECD movement document requirements for import shipments,
  5. duty to return or re-export (to a third country) import shipments of waste that cannot be managed in accordance with the terms of the contract or consent and cannot be managed at an alternate facility in the United States,
  6. contract requirements,
  7. requirements for U.S. recycling or disposal facilities to issue confirmations of recovery or disposal for each import shipment, and
  8. record keeping requirements for import shipments.

Because many of the current topics covered were collapsed into sections 262.83 and 262.84, sections 262.85, 262.86, 262.87 and 262.88 will be reserved for future use. Section 262.89 remains in place because it solely covers the OECD amber and green waste lists, and their associated waste codes, that were incorporated by reference in 2010; however, edits were made to this section to update its title, and remove subsections (a) through (c).

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Question: Why is EPA requiring electronic submittal of most import and export related documents?

Answer: As part of EPA’s Next Generation Compliance initiative and electronic reporting policy, EPA is working to convert paper submittals to EPA with electronic submittals that comply with the applicable requirements in EPA’s Cross-Media Electronic Reporting Regulation (CROMERR). Under this rule, the following paper documents for imports and exports are required to be electronically submitted to EPA:

  • Export notices for hazardous waste or cathode ray tubes (CRTs) being shipped for recycling;
  • Import notices for hazardous waste where the country of export does not control as hazardous waste export;
  • Export annual reports for hazardous waste or CRTs being shipped for recycling;
  • Export exception reports for hazardous waste;
  • Export confirmations of receipt submitted by foreign facility under contract terms;
  • Export confirmations of completing recovery or disposal submitted by foreign facility under contract terms;
  • Import confirmations of receipt;
  • Import confirmations of completing recovery or disposal; and
  • Import notifications regarding the need to make alternate arrangements or the need to return waste shipment.

Because this information will be electronically submitted and linked to the relevant U.S. entities and consents, EPA’s oversight of import and export activities will be more efficient. Exporters and importers will be able to immediately confirm that EPA has received the required submittals. In addition, they will be able to determine the status of their export or import notice in the notice and consent process within the electronic system. Lastly, state agencies and the general public will have access to public reports on the electronically submitted information for the first time.

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Question: What are the compliance dates for the final rule and how will some of the electronic submissions of hazardous waste export and import documents be phased in?

Answer: Under Executive Order 13659, agencies are required to have capabilities, agreements, and other requirements in place by December 31, 2016, to utilize the International Trade Data System (ITDS) and supporting systems, such as the Automated Export System (AES) or its successor system, as the primary means of receiving from users the standard set of data and other relevant documentation (exclusive of applications for permits, licenses, or certifications) required for the release of imported cargo and clearance of cargo for export. In order to comply with Executive Order 13659, the effective date of this rule must therefore be December 31, 2016.

EPA recognizes the impact these changes will have on those companies or individuals currently exporting or importing hazardous waste under the terms of a consent issued by EPA. As a result, any consent that was issued by EPA prior to December 31, 2016 for a hazardous waste export or import will remain in effect for the remaining period of consent, and the 40 CFR Part 262 based requirements that existed at the time the consent was issued will remain in effect until the 12-month consent period expires with the following two exceptions:

  • Exporters or their authorized agents will be required to either file additional EPA information in AES for each hazardous waste export shipment per the new electronic procedures or follow the existing paper process at the border (see below for more details); and
  • Exporters and U.S. receiving facilities will be required to list consent numbers matched to each hazardous waste listed on the RCRA manifest for each hazardous waste export and import shipment, respectively.

A copy of the previous requirements in 40 CFR parts 261-267 and 273 has been placed in the docket. Exporters, importers and receiving facilities in the U.S. that intend to renew their consent to export or import hazardous wastes will have the remaining consent period to:

  • establish or amend their contracts or equivalent arrangements with their foreign counterparts and transporters,
  • obtain an EPA ID number as needed,
  • register in EPA’s Central Data Exchange (CDX) system, and
  • otherwise prepare to comply with the requirements based on OECD procedures and the relevant electronic reporting requirements.

Any proposed exports or imports of hazardous waste, and export or import shipments of hazardous waste samples greater than 25 kilograms that have not yet received consent to ship prior to December 31, 2016, will be subject to the revised export and import requirements on December 31, 2016, as appropriate.

Because the AES filing procedures related to validating consent to export a shipment are a new requirement, only a limited number of the exporters and their authorized agents were able to test file the additional information and validate their consents for individual hazardous waste export shipments in a pilot as part of their current AES filing procedures prior to the effective date of this rule. We are therefore establishing a transition period during which exporters may choose to comply with either the electronic AES filing procedures or the paper-based procedures at the port. During the transition period EPA and CBP will be working with exporters and transporters as needed to fully test out the AES filing procedures and operational processes at the border for truck shipments, rail shipments and overseas shipments. EPA will coordinate with CBP on the selection of the AES filing compliance date based on how quickly all or nearly all exporters convert to using the electronic border process. Once CBP and EPA agree upon the specific AES filing compliance date, EPA will announce it in a separate FEDERAL REGISTER notice. Hazardous waste exporters with existing consents, or their authorized agents, will be required to file the additional information into AES, or its successor system, for each export shipment initiated on or after the future AES filing compliance date in accordance with the existing pre-departure filing deadlines in 15 CFR 30.4(b). Exporters of excluded cathode ray tubes for recycling will be subject to similar AES filing conditions for each export shipment initiated on or after the AES filing compliance date. For export shipments occurring prior to the AES filing compliance date, hazardous waste exporters will have to either ensure compliance with the existing paper-based process at the port or use the AES electronic filing procedures. For hazardous waste exporters choosing to use the paper-based process prior to the AES filing compliance date, paper documentation of consent (i.e., a copy of the acknowledgment of consent (AOC) letter for shipments previously subject to Part 262 Subpart E, or a paper movement document for shipments previously subject to Part 262 Subpart H) must accompany each export shipment, and for those hazardous waste export shipments that are required to be manifested, the transporter for each shipment will have to give a copy of the signed and dated manifest to the customs official at the port or border crossing. Exporters will have to instruct the transporter in writing, either by email, fax or hardcopy, on whether the exporter has chosen to follow the electronic or paper-based border process.

With respect to electronically submitting import and export related documents to EPA using the Waste Import Export Tracking System (WIETS) or its successor system, actual implementation depends upon when the EPA’s system will be ready (i.e., completion of the individual electronic submission capability in WIETS), and in the case of electronic export annual reports, on EPA having a calendar year of electronic AES filing data upon which to build each draft electronic export annual report in WIETS for the exporter to review and amend as necessary prior to electronically signing and submitting to EPA.

Export notices requesting initial consent or renewal of consent for hazardous wastes and for CRTs proposed to be exported for recycling will be required to be submitted to EPA electronically using EPA’s WIETS starting on December 31, 2016.

Export annual reports for hazardous wastes and for CRTs exported for recycling will be required to be submitted to EPA electronically using EPA’s WIETS by March 1 of the year after the AES filing compliance date, as all exporters will have been required to file in AES, or its successor system, for at least the previous calendar year. For hazardous waste export annual reports submitted prior to that date, exporters will be required to submit either a paper export annual report or, for those exporters who chose to comply with the optional AES electronic filing requirements for all export shipments made the previous calendar year, an electronic export annual report using EPA’s WIETS. For CRT export annual reports submitted prior to March 1 of the year after the AES filing compliance date, exporters will be required to submit a paper export annual report to EPA.

Because EPA has not yet completed the electronic versions of the export exception report, export confirmation of receipt, export confirmation of recovery or disposal, import notification, import confirmation of receipt, import confirmation of recovery or disposal, or the receiving facility notification of the need to arrange alternate management or return of an import shipment, electronic submittal of these documents will not be required until a future electronic import-export reporting compliance date that will be announced in a separate FEDERAL REGISTER notice. Until that future electronic import-export reporting compliance date, paper versions of the export exception reports, import notices, and receiving facility notifications of the need to arrange alternate management or return of an import shipment will be required to be submitted to EPA via mail or hand delivery. Copies of the export confirmation of receipt and export confirmation of recovery or disposal will not be required to be submitted to EPA in paper form prior to the future electronic import-export reporting compliance date, but exporters will be required to make such confirmations available to EPA or an authorized State inspector upon request. Copies of the import confirmation of receipt and import confirmation of recovery or disposal similarly will not be required to be submitted to EPA in paper form prior to the future electronic import-export reporting compliance date, but receiving facilities will be required to make such confirmations available to EPA or an authorized State inspector upon request.

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Question: Why does this final rule require the filing of export consent information as part of the electronic export information submitted to U.S. Customs and Border Protection (CBP)?

Answer: In 2006, CBP began automating processes for the import and export of goods to improve the control of what enters and leaves the United States, as well as to become much more efficient. The multi-agency program called the International Trade Data System (ITDS) was launched under the Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Public Law 109-347) and the 2007 Import Safety Executive Order 13439. ITDS assists the 47 federal agencies with import/export responsibilities in their efforts to integrate import and export cargo processing with CBP’s Automated Commercial Environment (ACE) for imports, and the Automated Export System (AES) for exports.

In addition, the Commission for Environmental Cooperation Secretariat’s April 15, 2013 report titled “Hazardous Trade? An Examination of US-generated Spent Lead-acid Battery Exports and Secondary Lead Recycling in Mexico, the United States and Canada Exit” (84 pp, 4.23 MB, About PDF)Exit found significant discrepancies between summary data on export shipments reported to the EPA annually and individual export shipment data collected in the AES under U.S. Census Bureau authority. Based on its findings, the CEC report recommended that the United States better share export data between its environmental and border agencies.

In light of this report and the ITDS program, EPA worked with CBP to enable electronic filing of shipping documentation and processing of the export shipments based on data submitted to CBP that can then be checked against Resource Conservation and Recovery Act (RCRA) export requirements. Specifically, under this final rule EPA is integrating RCRA hazardous waste export requirements into ITDS by:

  • requiring that exporters or their U.S. authorized agents additionally file key export consent data into the AES to validate EPA’s consent covering each export shipment before each shipment exits the country; and
  • requiring that exporters submit electronic export notices into EPA’s waste import/export database to enable transmittal of all reference data needed for validation from EPA to the AES.
  • building draft export annual reports in EPA’s WIETS using AES data on validated export shipments for exporters to review.

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Question: Why did EPA replace the requirement to attach import consent documentation to the RCRA manifest with a requirement to list the consent numbers for the waste streams on the RCRA manifest itself?

Answer: To effectively monitor compliance, it is important for EPA to be able to match RCRA manifests for imports with the consent number covering those import shipments. Under the current requirements, this matching is not always possible. In 2010, EPA established the requirement that the U.S. destination facility submit a copy of documentation confirming EPA’s consent to the hazardous waste import along with a copy of the RCRA hazardous waste manifest for the import shipment in 40 CFR §264.71(a)(3) and §265.71(a)(3).  This requirement was added to enable EPA to determine when any import shipments claiming coverage under that specific consent would or would not be in accordance with the terms of the approved notice. For shipments from Canada, Mexico, or a country outside of the OECD where the country of export did not control the shipment as an export of hazardous waste for whatever reason, the destination facility could alternatively submit documentation explaining why the country of export did not control the shipment as an export of hazardous waste.

While this additional information has proved to be beneficial, at times the multi-page consent documentation has gotten separated from the RCRA hazardous waste manifest while en route to EPA. Additionally, it has sometimes proven difficult to match the foreign notice waste description to the waste stream listed on the RCRA hazardous waste manifest. Under this final rule, EPA is requiring notice and consent for all imports of RCRA hazardous waste, so all hazardous waste imports will have consent numbers. The destination facility will be required to list the consent number provided in EPA’s import consent documentation matched to each hazardous waste listed in Block 9b of the RCRA hazardous waste manifest for the import shipment before submitting the RCRA hazardous waste manifest to EPA’s International Compliance Assurance Division (ICAD) within 30 days of receiving the import shipment. The destination facility is required to submit this paper copy of the RCRA manifest to ICAD until the facility can submit such a copy to the e-Manifest system per 264.71(a)(2)(v).

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

Answer: This rulemaking was finalized on October 28, 2016, and will be effective at the federal level on December 31, 2016, as required by Executive Order 13659.

The rule will also take effect in all States on December 31, 2016, since 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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