Significant Changes Finalized to Hazardous Waste Import and Export Regulations

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Several barrels of toxicSignificant Changes Finalized to Hazardous Waste Import and Export Regulations

The Final Rule containing revisions to the regulations for import and export of hazardous waste was published in the Federal Register on November 28, 2016. United States Environmental Protection Agency (EPA) updated Hazardous Waste Import and Export Regulations to now establish:

  • Consolidation of the regulations to provide one set of protective requirements
  • Conversion from a paper based reporting system to an electronic based reporting system with mandatory electronic reporting to EPA.  The EPA Waste Import Export Tracking System (WIETS) will be phased in over a time table to be released later.  In the interim each waste transport/disposal company will be required to create and use their own internet based electronic reporting system.
  • Link the consent to export with the exporter declaration submitted to U.S. Customs and Border Protection (CBP)
  • Clearer matching of waste stream level export and import consent numbers using the Organization for Economic Cooperation and Development (OECD) standards 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.

Now all U.S. imports and exports are subject to international standards. Before the final rule, 40 Code of Federal Regulations (CFR) Part 262, Subparts E and F had less stringent controls for hazardous waste imported from/exported to Canada and Mexico compared to Part 262, Subpart H for hazardous waste imported from/exported to other Organization for Economic Cooperation and Development (OECD) countries. OECD is widely accepted as the international standard for control of transboundary waste shipments. Because a majority of U.S. imports/exports of hazardous waste are between the U.S. and Canada or Mexico, these U.S. imports/exports of hazardous waste were subject to regulations that were less stringent than the OECD requirements. The final rule makes all U.S. hazardous waste import and export requirements consistent with shipment controls for OECD members, which technically, consists of reorganized and consolidated set of hazardous waste import/export regulations now presented in Part 262, Subpart H.

The rule will take effect on the Federal level and in all States on December 31, 2016, 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. However, only states that had previously adopted the optional 1) CRT conditional exclusion in §261.39, and/or 2) exemptions for samples in §261.4(d) and (e) are required to adopt the revisions to those regulations in the final rule.

In concert with these changes, EPA Administrator, Gina McCarthy, signed the Internet Posting of and Confidentiality Determinations for Hazardous Waste Export and Import documents proposed rule on October 28, 2016 and it was published in the Federal Register on November 28, 2016. EPA is proposing to require web posting of confirmations of receipt and confirmations of recovery or disposal is related to the new RCRA hazardous waste export and import requirements issued under the Hazardous Waste Export-Import Revisions final rule. 

To assist our clients with understanding the implications of these changes, we summarized some key information in a Question/Answer format below. For additional detail, please contact our Compliance Technical Leader Amy Bauer at (251) 533-6949 (amy.bauer@ehs-support.com) or Service Line Leader Chris Pratt at (412) 398-7585 (chris.pratt@ehs-support.com).

Question #1

What hazardous wastes are subject to the final rule?

Answer

This rule impacts any person (including a transporter) who imports or exports hazardous waste for recycling or disposal, including universal waste, spent lead-acid batteries, industrial ethanol, secondary material shipped for precious metal recovery, and cathode ray tubes (CRTs).

Question #2

What is the timeline for these changes to be implemented?

Answer

Compliance DateActivity
December 31, 2016Effective Date for Amended Rule.  CRTs are the first to be required for input to EPA’s WIETS with other types of waste being implemented over time into WEITS and required to be reported electronically by the transporter during the interim using the system that they develop.
New export notices for hazardous waste or CRTs for recycling will trigger WIETS requirements.
When Consents ExpireFor existing consents to import/export shipments under Subparts E or F issued prior to December 31, 2016, comply with terms of the consent and the original Subparts E or F in effect at the time the consents were issued until the consents expire (then amended Subpart H rules will apply to any future shipments).
For traders arranging for import/export under existing consents issued prior to December 31, 2016, obtain an EPA ID number when consents expire.
Compliance Dates To Be DeterminedCertain electronic reporting to EPA’s WIETS, or its successor system, will be phased in to give EPA time to test that system. EPA will announce WIETS compliance dates applicable to other shipments in a future Federal Register notice.
Requirements for submitting certain information to CBP through its Automated Export System will be announced in a future Federal Register notice

Question #3

Does the final rule affect hazardous waste classification and acceptance?

Answer

No, the final rule affects electronic tracking and reporting, not hazardous waste classification or acceptance criteria. However, the OECD waste code will be required on notifications and movement documents, and documents such as the RCRA manifest will have the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest.

Shipments of hazardous waste will continue to be covered by the bilateral waste agreements for importing and exporting waste with Canada and Mexico, coupled with the North American Free Trade Agreement (NAFTA) that controls trade, including hazardous waste, between the countries. In summary, aside from a more robust electronic import and export waste tracking and accountability system, this should not have adverse impacts to any other aspect of international waste transportation and disposal, including no changes to the receiving country’s laws and regulations for acceptance of waste.

Question #4

What documentation will be required for imports and exports?

Answer

The final rule mandates electronic submission of notices, reports, receipts, and consent notifications required for transboundary shipments of hazardous waste; however, electronic reporting to EPA using the agency’s WIETS will be phased in.

As of December 31, 2016, only electronic submittal of new export notices for hazardous waste or CRTs for recycling using the WIETS will be required. In addition, paper submittals will be required until the electronic submittals are required for each of the following:

  • Export annual reports
  • Export exception reports
  • Import notices
  • Receiving facility notifications of the need to arrange alternate management or return of an individual import shipment.

No submittals to EPA will be required for the following, until the electronic import/export reporting compliance date:

  • Export confirmations of receipt
  • Export confirmations of recovery or disposal
  • Import confirmations of receipt
  • Import confirmations of recovery or disposal.

Question #5

What are the additional changes in the proposed rule, Internet Posting of and Confidentiality Determinations for Hazardous Waste Export and Import Documents?

Answer

Under the proposed rule, each company that imports and exports hazardous waste is required to set up a publicly accessible website that is labeled “Export/Import Website” and until WEITS is ready, upload four documents in read-only format:

  • Export confirmation of receipt
  • Export confirmation of recovery or disposal
  • Import confirmation of receipt
  • Import confirmation of recovery and disposal

EPA is also 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).

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.

Submit comments https://www.regulations.gov/ identified by Docket ID No. EPA-HQ-OLEM-2016-0492.
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