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Frequent Questions about the Internet Posting of and Confidentiality Determinations for Hazardous Waste Export and Import Documents Proposed Rule

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Question: What does this rule propose to do?

Answer: This rule proposes two types of changes. First, EPA is proposing certain revisions to the current Resource Conservation and Recovery Act (RCRA) hazardous waste export and import regulations to improve protection of public health and the environment by strengthening the public accessibility and transparency of documentation to better monitor compliance with EPA’s hazardous waste regulations and help verify that hazardous waste shipments are properly received and disposed. The rule proposes to require internet posting of the confirmation of receipt and confirmation of recovery or disposal of individual export and import shipments of hazardous wastes. Exporters of hazardous waste and receiving facilities of hazardous waste imports will be required to maintain a single publicly accessible website. Second, EPA is also proposing confidentiality determinations with respect to CBI claims for the individual documents and compiled data for certain types of hazardous waste export, import, and transit documents. In other words, EPA proposes to no longer accept future CBI claims for certain documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs).

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Question: What are the benefits of these proposed revisions?

Answer: This rule would provide a number of benefits during the interim period when internet posting of documents related to the confirmation of receipt and confirmation of recovery or disposal are required. During this time, the rule will:

  • Achieve greater transparency and public accessibility of export and import documentation;
  • Improve the public’s ability to acquire information regarding the quantities and destinations of U.S. hazardous waste exports and imports;
  • Help monitor proper compliance with EPA’s hazardous waste regulations and ensure that hazardous waste shipments are properly received and managed.

The interim period is the time frame prior to the electronic import-export reporting compliance date when electronic submittal to EPA of confirmations of receipt and confirmations of recovery or disposal for hazardous waste shipments will be required under EPA’s Hazardous Waste Export-Import Revisions Final Rule.

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Question: Who is affected by this rulemaking?

Answer: The proposed internet posting requirement affects two groups:

(1) all persons who export (or arrange for the export) of hazardous waste for recovery or disposal; and
(2) all recycling and disposal facilities who receive imports of such hazardous wastes for recovery or disposal.

The proposed confidentiality determination aspect of this rule affects the two groups named above in addition to all persons who export excluded CRTs.

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Question: What are the confirmations of receipt and confirmations of recovery or disposal and how will internet posting of these documents help improve tracking and monitoring of individual hazardous waste shipments?

Answer: The confirmation of receipt and confirmation of recovery or disposal are important requirements that document the receipt and final disposition of individual hazardous waste export and import shipments. The confirmation of receipt is a copy of the signed and dated international movement document that must accompany a consented hazardous waste shipment from the starting site in the country of export to the destination site in the country of import. The confirmation of receipt reduces the risk of a shipment being misdirected to a country or facility not approved to receive the shipments for recovery or disposal. It also highlights any incident where the shipment is interrupted or misdirected, as the exporter and competent authorities will not receive the confirmation from the approved destination facility within expected time frames. Lastly, the confirmation of receipt provides documentation for both the exporter and the countries of import and export that the shipment in fact went to the approved recycling or disposal facility.

The confirmation of recovery or disposal documents the completed management of a hazardous waste shipment. Once received at the approved facility, management (i.e., treatment and disposal, recovery) of each shipment is required to be completed within one year of shipment delivery, and the U.S. exporter must ensure that the foreign destination facility send confirmation of completing such management back to the exporter and to the countries of export and import that respectively control the shipment as an export or import of hazardous waste. Similarly, a U.S. receiving facility receiving an import of hazardous waste must send such confirmation back to the exporter and to the countries of export, import and transit. The confirmation of recovery or disposal documents the completion of final management (i.e., treatment and disposal, recovery) of each hazardous waste export or import. Requiring destination facilities to send such confirmation to the exporter and to the competent authorities of the countries of export and import of the shipment, minimizes the risk of speculative accumulation or abandonment of the waste shipments, and decreases the potential for associated damage to human health and the environment.

As part of the Export-Import Revisions final rule, all hazardous waste export and import shipments will be required to comply with confirmations of receipt and confirmations of recovery or disposal. However, because EPA has not yet completed revising and testing of the electronic submittal of such confirmations by foreign and U.S. receiving facilities for export and import shipments, respectively, such receiving facilities will be required initially to comply with the following requirements:

  • Foreign and U.S. receiving facilities must send the confirmations of receipt and confirmations of recovery or disposal to the exporter and all relevant competent authorities other than EPA, and
  • U.S. exporters and U.S. receiving facilities must keep copies of these confirmations onsite and available upon request by EPA or authorized State inspectors.

These requirements, established under the Export-Import Revisions final rule, will be in effect during an interim period, i.e., prior to a future electronic import-export reporting compliance date to be announced in a Federal Register notice. After the electronic submittals for confirmations become required and the interim period ends, the U.S. and foreign receiving facilities will be required to submit these confirmations electronically to EPA using EPA’s Waste Import/Export Tracking System (WIETS).

EPA believes that public access to these documents on the websites of exporters and receiving facilities of hazardous waste from foreign sources during the interim period facilitates the tracking and compliance monitoring of hazardous waste shipments in accordance with EPA’s hazardous waste regulations and helps verify that hazardous waste shipments are properly received and disposed. The interim period is the time frame prior to the electronic import-export reporting compliance date when electronic submittal to EPA of confirmations of receipt and confirmations of recovery or disposal for hazardous waste shipments will be required under EPA’s Hazardous Waste Export-Import Revisions Final Rule.

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Question: Why is EPA proposing to make a confidentiality determination for certain hazardous waste export and import documents?

Answer: EPA is proposing a confidentiality determination such that the Agency will no longer accept future confidentiality business information (CBI) claims for the individual aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs). Applying a confidentiality determination is an essential first step to requiring that hazardous waste exporters and receiving facilities of hazardous waste imports make publicly accessible documents related to confirmation of receipt and confirmation of recovery or disposal.

To date, EPA has only received three assertions of confidentiality for certain information related to hazardous waste export documents. In all three cases, after careful analyses, the Agency determined that the information claimed as confidential was not entitled to confidential treatment. In addition, EPA has issued an annual Federal Register notice requesting comment from affected businesses (other than original submitters), as defined in Title 40 of the Code of Federal Regulations (CFR) section 2.201(d), on their need to assert confidentiality claims for documents and data compiled from such documents submitted by original submitters related to the export, import and transit of RCRA hazardous waste. To date, for all these past years, EPA has never received a comment from any business not an original submitter as a result of the annual FR notice. Finally, EPA has established precedent in applying confidentiality determinations to RCRA hazardous waste documents. On February 7, 2014, EPA published the Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests final rule which made a categorical determination for individual RCRA hazardous waste manifest records. Because the information contained in RCRA manifests is similar to the information contained in the documents related to the export, import, and transit of hazardous waste and export of excluded CRTs, EPA believes that the decision to apply categorical determinations for electronic manifests further supports the proposed confidentiality determinations of export and import documents under this rule.

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Question: What are the proposed effective dates for the changes proposed in this rule?

Answer: The proposed internet posting requirements, if finalized, are planned to be effective from the effective date of the final rule to the end of the interim period prior to the electronic import-export reporting compliance date when electronic submittal to EPA of confirmations of receipt and confirmations of recovery or disposal for hazardous waste shipments will be required under EPA’s Hazardous Waste Export-Import Revisions Final Rule.

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Question: What are the specific website requirements EPA is proposing?

Answer: EPA is proposing that the required documents be posted as read-only, publicly accessible, downloadable images. Examples of acceptable document formats include, but are not limited to, Portable Document Format (PDF), Joint Photographic Experts Group (JPEG), and Graphics Interchange Format (GIF). If a publicly available website is not available, exporters and receiving facilities must develop a publicly accessible website to post the required documents. If a company has more than one physical site from which it exports hazardous waste or receives hazardous waste imports for recycling or disposal, the company must clearly group the posted documents by individual physical facility site. In addition, the documents for each physical site must be clearly organized by the consent number relevant to each export or import shipment. The company’s website must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” To ensure that the documents and their respective file names posted to the Export/Import Website clearly identify the type of document, EPA is proposing a standard nomenclature for file names to include the EPA ID number of the exporter or receiving facility, the consent number associated with the shipment, and the related shipment number (e.g., Shipment No. 1, shipment no. 2, etc.).

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Question: What record keeping requirements would apply to hazardous waste exporters and receiving facilities of hazardous waste from foreign sources under this rule?

Answer: Each confirmation of receipt and confirmation of recovery or disposal posted to the company websites of hazardous waste exporters and receiving facilities of hazardous waste imports must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the website. The proposed internet posting requirements do not affect the current record keeping requirements for retaining paper copies of the export confirmations of receipt, export confirmations of completing recovery or disposal, import confirmations of receipt, and import confirmations of completing recovery or disposal. These paper documents must be retained by exporters and receiving facilities for a period of at least three years regardless of any internet posting requirement.

After the electronic import-export reporting compliance date when confirmations will be submitted electronically to U.S. EPA, the requirement to post these copies and to make them publicly available for three years does not apply. Records of the confirmations must be kept as either paper copies or electronic submittals retained in the exporter’s account on EPA’s Waste Import Export Tracking System (WIETS) provided that copies are readily available for reviewing and production if requested by any EPA or authorized state inspector, as stated in the Hazardous Waste Export-Import Revisions rule and in 40 CFR sections 262.83(i)(2) and 262.84(h)(3).

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Question: How do I comment on this proposed rule?

Answer: Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2016-0492. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit Commenting on EPA Dockets.

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Question: When will this rule become effective?

Answer: This is a proposed rule. As required by the Administrative Procedure Act, this proposed rulemaking must undergo the notice and comment process. Once public comments are received, comments will be reviewed and the proposed rulemaking will be re-evaluated to determine if changes are warranted. This process takes several months to over a year depending on the number and nature of these comments. EPA expects that this rulemaking will be finalized in 2017 and will be effective at the federal level six months after promulgation.

Once the final rule is published in the Federal Register, the rule will take effect in all States on the effective date of the rule, 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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