December 14, 2016

Changes to Import/Export Regulations

On November 28, 2016, EPA issued a final rule making significant changes to the hazardous waste import/export regulations. [81 FR 85696]

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).

All U.S. Imports/Exports Are Now Subject to International Standards

The pre-existing regs allowed less-stringent controls (Part 262, Subparts E and F) for hazardous waste imported from/exported to Canada and Mexico compared to controls (Part 262, Subpart H) for hazardous waste imported from/exported to other Organization for Economic Cooperation and Development (OECD) countries. But, 90% of U.S. imports/exports of hazardous waste are between the United States and Canada or Mexico. Thus, the majority of U.S. imports/exports of hazardous waste were subject to regulations that were less stringent than the OECD requirements, which are widely accepted as the international standard for control of transboundary waste shipments. To correct this discrepancy, EPA has revised its regulations to make all U.S. hazardous waste import and export requirements consistent with the current controls for shipments among OECD members. This was accomplished by reorganizing and consolidating all hazardous waste import/export regulations into Part 262, Subpart H.

Electronic Submission of Import/Export Documentation

The final rule also mandates electronic submission of notices, reports, receipts, and consent notifications required for transboundary shipments of hazardous waste. This will allow for 1) improved and timelier communications between U.S. Customs and other countries involved in the exchange, and 2) better monitoring and control by EPA of imported/exported hazardous waste.

Electronic reporting to EPA using the agency’s Waste Import Export Tracking System (WIETS) will be phased in over a period of time. Only electronic submittal of new export notices for hazardous waste or CRTs for recycling using the WIETS will be required on the effective date of the rule. EPA will announce the future electronic import/export reporting compliance date for all other submittals in a separate Federal Register notice. Paper submittals will be required from the effective date of the rule until the electronic submittals are required for each of the following: export annual reports, export exception reports, import notices, and 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, and import confirmations of recovery or disposal. [81 FR 85699-85700]

Samples Sent for Analysis/Use in a Treatability Study

In order to qualify for the exemption from RCRA regulation when samples are imported/exported for analysis [§261.4(d)] or for use in a treatability study [§261.4(e)], the sample mass exported to a foreign laboratory or testing facility or imported to a U.S. laboratory or testing facility from a foreign source must not exceed 25 kg. Note, however, that exempt treatability samples of acute hazardous wastes to be imported/exported can be no more than 1 kg per existing §261.4(e) language.

Manifest Issues

From the effective date of the rule, exporters and receiving facilities will be required to list the consent number for each waste listed on the manifest (for hazardous waste imports/exports), but the regulatory text no longer specifies exactly where on the manifest the consent numbers must be added. [81 FR 85700]

Effective Date and State Authorization

The final rule is effective on December 31, 2016. It will take effect in all states on the effective date, since these import/export requirements will be administered by EPA as a foreign policy matter and will not be administered by states. Although states do not receive authorization to administer RCRA’s import/export functions, states are still required to adopt the provisions in this rule to maintain their equivalency with the federal program. States that had previously adopted Part 262, Subparts E, F, and H and any other import/export-related regulations must adopt the revisions to those provisions in the final rule. 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. [81 FR 85710-85711]

Any import/export shipments based on consents issued by EPA prior to December 31, 2016 may continue to comply with the terms of the consent and the pre-existing Part 262, Subpart E or F requirements until the relevant consent periods expire. Compliance dates for the major rule provisions applicable to import/export shipments occurring under consents issued by EPA prior to and after the rule effective date are given in a lengthy table in the preamble.

EPA has provided a summary of the final rule and answers to frequent questions.

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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.