On October 19, 2015, the United States Environmental Protection Agency (EPA) proposed significant modifications to rules governing the export and import of hazardous waste.  The proposal would affect transboundary shipments currently subject to 40 C.F.R. Part 262 Subpart H (regulating hazardous waste shipments for recovery between the United States and countries that are members of the Organisation for Economic Co-operation and Development (OECD) other than Mexico and Canada) as well as shipments subject to Subparts E and F (regulating all other hazardous waste imports and exports).  The proposal would make certain substantive changes to the requirements of Subpart H, as well as expand the scope of the subpart to cover transboundary shipments currently subject to Subparts E and F.  Stakeholder comments on the proposed modifications will be accepted until December 18, 2015.  EPA expects the rulemaking to be finalized in Fall 2016 and to be effective by December 31, 2016.

By subjecting non-OECD shipments to a modified version of Subpart H, the proposal would significantly change the applicable requirements for such shipments.  Additionally, changes that EPA has proposed that would affect all transboundary waste shipments, regardless of origin or destination, include:

• Requiring most import- and export-related documents to be submitted to EPA electronically.  EPA stated that this would allow the agency’s oversight of import/export activities to be more efficient and would allow companies to easily determine the status of their export or import notices.  It would also, for the first time, allow state agencies and the general public to have access to reports on the electronically submitted information. 

• Requiring the filing of export consent information as part of the exporter’s declaration to the U.S. Customs and Border Protection (CBP).  EPA stated that this would allow EPA and CBP to work more closely on compliance monitoring for export shipments.

Current Regulation of Transboundary Hazardous Waste Shipments

EPA’s general regulations governing the transboundary shipment of hazardous waste, currently codified at 40 C.F.R. Part 262 Subparts E and F, were last substantially revised in 1986.  In response to a 1992 OECD Council decision governing the transboundary shipment of wastes destined for recovery between OECD Member countries, EPA issued separate regulations governing these shipments in 1996 (Subpart H).  Because the United States has bilateral agreements covering shipments for disposal between the United States and Canada, as well as shipments for recycling between the United States and Canada or Mexico, transboundary shipments between the United States and Canada or Mexico are currently regulated under Subparts E and F.  According to EPA, having two sets of export and import regulations has created confusion and led to decreased compliance. 

EPA Proposal: Effect on Waste Shipments Currently Subject to Subpart H

Subpart H regulations currently govern only the transboundary shipment of wastes destined for recovery between the United States and OECD countries other than Mexico and Canada.  In an effort to more clearly articulate existing Subpart H requirements, EPA has proposed to reorganize and clarify several sections in this subpart.  The agency has also proposed a number of substantive changes that, if promulgated, would affect shipments currently subject to Subpart H going forward.  These include:

Electronic Submission to EPA.  Under the proposed rule, the following documents would be required to be electronically submitted to EPA:

• Export notices for hazardous wastes or cathode ray tubes (CRTs) being shipped for recycling;

• Import notices for hazardous wastes where the country of export does not control the shipment as a hazardous waste export;

• Export annual reports for hazardous wastes or CRTs being shipped for recycling;

• Export exception reports for hazardous wastes;

• Export confirmations of receipt submitted by foreign facilities under contract terms;

• Export confirmations of completion of recovery or disposal submitted by foreign facilities under contract terms;

• Import confirmations of receipt;

• Import confirmations of completion of recovery or disposal; and

• Import notifications regarding the need to make alternate arrangements or the need to return waste shipments.

Closer Coordination with CBP.  The Commission for Environmental Cooperation (CEC) issued a report in 2013 finding significant discrepancies between export shipments reported to EPA and data collected by CBP.  CEC recommended that the federal government foster closer coordination between environmental and border agencies.  Additionally, in the proposal EPA states that under the current system, it may not be immediately apparent to CBP inspectors that certain shipping containers at the border contain hazardous waste and require EPA consent, which reduces compliance assurance.  To address these problems, EPA is proposing the following:

• Requiring exporters to file certain documents with CBP to validate EPA’s consent covering each shipment prior to export; and

• Requiring exporters to submit export notices to EPA’s electronic waste import/export database to enable transmittal of reference data to CBP.

EPA ID Numbers.  The amended regulations would require traders who arrange for export of hazardous waste, but do not otherwise generate, transport, treat, store, or dispose of hazardous waste, to obtain an EPA ID number from the authorized state or EPA Regional office where the business is located. 

EPA Proposal: Effect on Waste Shipments Currently Subject to Subparts E or F

Subparts E and F currently govern the transboundary shipment of hazardous waste between the United States and Canada, Mexico, and non-OECD countries.  If EPA’s proposed changes are promulgated, Subparts E and F would be removed and reserved, and shipments currently subject to these subparts would be regulated under amended Subpart H.  Thus, all proposals described in the previous section (affecting shipments currently subject to Subpart H) would also apply to these shipments.  Additionally, as a result of the regulatory consolidation under Subpart H, shipments currently subject to Subparts E or F would be subject to the current requirements of Subpart H that are not proposed to change.  These include requirements that imports and exports of hazardous waste be performed pursuant to a legally binding contract or equivalent arrangement that allocates responsibility for appropriate management of the hazardous wastes.

Note that the scope of transboundary hazardous waste shipments currently subject to Subparts E or F is somewhat limited.  The Basel Convention, which has been ratified by 182 countries and the European Union, but not the United States, prohibits the transboundary shipment of hazardous wastes between Parties and non-Parties except pursuant to agreements under Article 11 of the Convention.  Thus, Party countries that have not entered into Article 11 agreements with the United States (a non-Party) may not export or import hazardous waste to or from the United States.  The United States has bilateral Article 11 agreements with five countries: Canada, Mexico, Costa Rica, Malaysia, and the Philippines.  (The United States also has entered into a separate multilateral Article 11 agreement among all OECD countries, but, as discussed above, shipments under this agreement are already subject the EPA import/export regulations in Subpart H.)  Thus, it appears that the only transboundary shipments of hazardous waste currently subject to Subparts E and F are those performed under one of those five bilateral Article 11 agreements.