Prompted  by a 2013 Commission for Environmental Cooperation (CEC) report on hazardous waste exports from the U.S. and changes to the 2001 Organization for Economic Cooperation and Development’s (OECD) Council Decision for waste exports and imports, EPA on September 24, 2015, proposed changes to 40 C.F.R. Parts 260-267, 271 and 273 regarding the export and import of hazardous wastes from and into the United States. EPA also issued the changes to address several of the concerns outlined in the EPA Office of the Inspector General’s July 6, 2015, report entitled EPA Does Not Effectively Control or Monitor Imports of Hazardous Waste.”  The rule will be published in the Federal Register shortly with a 60-day comment period.  A pre-publication version of the rule is available online. 

New Requirements for International Shipments of Spent Lead-Acid Batteries

One of the more significant changes EPA proposes is to require shipments of spent lead-acid batteries (SLABs) exported for reclamation be accompanied by international shipping documents, akin to hazardous wastes manifests.  Currently there is no requirement that SLAB exports be covered by such documents.  EPA’s determination that some revisions to the SLAB import/export regulations are needed is bolstered by a 2013 CEC report and its recommendations. The CEC report found that U.S. net exports of SLABs to Mexico for recycling had increased by an estimated 449-525 percent, and that there were significant discrepancies between summary data on export shipments reported to EPA annually and individual export shipment data collected under U.S. Census Bureau (Census) authority. Based on its findings, the CEC report recommended that the U.S. require the use of manifests for each international shipment of SLABs, require exporters to obtain a certificate of recovery from foreign recycling facilities, explore establishing an electronic export annual report, and better share import and export data between environmental and border agencies.  EPA proposes to incorporate most of these recommendations into the revised regulations.

Regulatory Consolidation

The rule would also consolidate the hazardous waste import and export standards into one set of requirements: 40 C.F.R. Part 262 Subpart H. The purpose of these changes is to reflect more accurately 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 proposes to retitle 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 proposes changing the title of § 262.83 from “Notification and consent” to “Exports of hazardous waste” and adding subsections for:

• general export requirements,
• notification requirements,
• RCRA manifest instructions for export shipments,
• OECD movement document requirements for export shipments,
• 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,
• contract requirements,
• annual reporting requirements,
• exception reporting requirements, and
• recordkeeping requirements.

Under the proposed §262.84, subsections would specifically address exports.  That new section would impose general import requirements and notification requirements that apply only when the country of export does not control the proposed shipment as an export of hazardous waste.  It would also detail RCRA manifest instructions for import shipments and OECD movement document requirements for import shipments.  The new section would also impose requirements for returning or re-exporting 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.  The section imposes new contract requirements and requirements for U.S. recycling or disposal facilities to issue confirmations of recovery or disposal for each import shipment. 

Mandatory Electronic Reporting

The rule also proposes mandatory electronic reporting to EPA that it believes will enable increased sharing of hazardous waste import and export data with state programs, the general public, and individual hazardous waste exporters and importers.  The rule also would link the consent to export with the exporter declaration submitted to U.S. Customs and Border Protection (CPB), which should provide for more efficient compliance monitoring.  In addition, EPA seeks to ensure clearer matching of waste stream level consent numbers with waste streams listed on RCRA hazardous waste manifests for import and export 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 would also be required. 

Under this rule, the following paper documents for imports and exports will be 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.

Coordination with U.S. Customs and Border Protection

EPA is also proposing to require the filing of export consent information as part of the exporter’s electronic declaration to U.S. Customs and Border Protection (CBP).  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 48 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 2013 CEC report found significant discrepancies between summary data on export shipments reported to 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 is working 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 RCRA export requirements. Specifically, EPA is proposing to integrate 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.

Impact on State RCRA Regulatory Programs

EPA expects to issue this rule in final by the end of 2016.  Once the final rule is published in the Federal Register, it will take effect in all states on the effective date of the rule, since import and export requirements are administered by EPA as a foreign policy matter.