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Chapter III - Exports
EPA based the export regulations in Part 262, Subpart E on two bilateral agreements that the United States established with Canada and Mexico. The 1986 "Agreement Between the Government of the United States of America and the Government of Canada Concerning the Transboundary Movement of Hazardous Waste" specifies terms and procedures for transboundary movements between the United States and Canada. Similarly, the 1986 "Agreement of Cooperation Between the United States of America and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances" establishes procedures for hazardous waste shipments between the United States and Mexico. These bilateral agreements established procedures for importing and exporting waste between governments. The agreements themselves have no binding affect on US importers and exporters. However, pursuant to these bilateral agreements, EPA promulgated standards in Part 262, Subpart E that regulate US exporters of hazardous waste.
Exports of hazardous waste, like imports, may be handled or managed by several different parties, each having distinct requirements under RCRA. For example, a large quantity generator (LQG) may wish to send waste to a foreign destination for metal recovery. The generator establishes contracts with a waste broker to oversee shipments of the waste and with a transporter to deliver the waste to the foreign recovery facility. In order for this process to occur, the primary exporter must follow a specific step-by-step process.
A. Regulatory Requirements
This chapter outlines the regulatory requirements surrounding hazardous waste exports. (An overview of these requirements is addressed in a December 10, 1991 memo from Bussard to Whalen.) Prior to exporting hazardous waste, the primary exporter must notify EPA of their intent to export. The primary exporter (PE) is defined as "any person who is required to initiate the manifest for a shipment of hazardous waste in accordance with Part 262 which specifies a treatment, storage, or disposal facility in a receiving country as the facility to which hazardous waste will be sent (§262.51)."
Notification of Intent to Export
Sixty days prior to exporting a waste to a foreign facility, the PE must send a notification of intent to export to the Office of Compliance and Enforcement. The notification must be in writing, signed by the primary exporter, and must include information such as a description of the waste, estimates of the quantity and frequency of waste being shipped, and name of the foreign destination facility (§262.53).
Following this notification by the PE, the EPA will notify the competent authority of the receiving country and any transit countries of the shipment (Memo, Cotsworth to Citizen; April 13, 2000). Once the competent authority of the receiving country consents to the shipment, the EPA will forward an Acknowledgement of Consent (AC) to the primary exporter and the waste shipment may commence. Waste cannot be shipped if the receiving country does not consent to the shipment (Memo, Lowrance to Mink; February 18, 1993). The PE must ensure that the shipment is handled in accordance with the receiving country's terms of consent (Memo, Maid to Bodner; June 15, 1987).
Special Manifest Requirements
When exporting hazardous waste, the PE must comply with special manifesting requirements found in §262.54. The PE must attach a copy of the AC to the manifest when initiating the shipment of waste, except when the waste is shipped by rail. When shipping waste by rail, the PE may attach the AC to the shipping paper rather than the manifest. An additional copy of the manifest must be given to the transporter, who delivers it to the US Customs official at the point where the waste exits the United States. In addition, the primary exporter must require the consignee to confirm in writing the delivery of the waste to the foreign destination facility (Memo, Bussard to Winwood; August 9, 1994).
Reporting Requirements
Primary exporters may be subject to various reporting requirements depending on their yearly export activities. These reports include exception reports (§262.55), annual reports (§262.56), and biennial reports.
Primary exporters must file an exception report if either of the following two events occur:
- The PE does not receive a copy of the manifest signed by the transporter within 45 days of the initial acceptance of the shipment by the transporter
- The PE does not receive written confirmation of the receipt of the shipment by the consignee within 90 days of the initial acceptance of the shipment by the transporter.
When filling out this report, the exporter should follow the guidelines for domestic exceptions reporting (§262.42) to the extent that these guidelines are applicable.
By March 1 of each year, the primary exporter has to file an annual report with the Administrator summarizing the types, quantities, frequency, and ultimate destination of all wastes exported during the previous year. Because there are relatively few primary exporters, the EPA has not developed a standard reporting form for the annual report.
In addition to annual reporting, primary exporters who are also LQGs or TSDFs are also required to fill out the Biennial Report. EPA policy currently requires that exporters that meet the Biennial Report applicability criteria (i.e., large quantity generators and TSDFs) include export information on their Report. However, EPA is in the process of changing this requirement due to the fact that the information is contained on the facility's Annual Report.
Recordkeeping Requirements
Primary exporters must keep copies of each notification of intent to export, AC, confirmation of delivery from the consignee, Annual Reports, and Biennial Reports for at least three years (§262.57).
B. Frequent Questions
Notification of Intent to Export
Q: Is a 60-day notification to EPA required before each shipment of hazardous waste?
A: The 60-day approval waiting period applies only to the first shipment of hazardous waste (Memo, Porter to Watkins; June 19, 1987). This notification may cover export activities over a twelve month period (§262.53(a)).
Q: Is it necessary to comply with the export notification requirements if shipments of hazardous waste must be transported through a foreign country to a US territory or another State?
A: If a waste is transported to a United States territory or State via another country, the export requirements do not apply because the designated facility is not in a foreign country. If the waste simply passes through a foreign country, RCRA does not require that transit countries be notified (Monthly Hotline Report Question; March 1995). However, the PE should be aware of and comply with any requirements imposed by the transit countries' laws.
Q: Which regulations are applicable to shipments of hazardous waste to another country's territory or commonwealth?
A: If a waste is being exported to another country's territory or commonwealth, the US exporter must determine if any international agreements made by the parent country are binding for the commonwealth or territory and must follow the US regulations accordingly.
Q: What happens if the consignee designated on the notification of intent to export changes?
A: If the consignee designated on the intent to export notification changes the exporter may have to use a modified notification or complete a new notification altogether even if an alternate facility was originally listed. This depends on the policies and procedures of the country to which the waste is being exported.
Q: Can a broker who is acting as an intermediary arranging for export hold the Acknowledgement of Consent if he is not the generator identified on the manifest?
A: The manifest and the AC serve different purposes. The manifest is required to track the hazardous waste from "cradle to grave." As such, it is important to identify the generator of the hazardous waste. On the other hand, the intent of the AC is to ensure that the importing country is aware of a proposed transboundary movement of waste and consent to that movement, therefore the primary exporter who receives the AC from the EPA may include "any intermediary arranging for the export" (§262.51) (Memo, Cotsworth to Prior; February 16, 2000).
Exception Reports
Q: What happens if a hazardous waste shipment is exported and subsequently returned to the United States?
A: If a waste shipment is returned to the United States, the exporter should contact the implementing agency about the time-frame during which he should file an Exception Report.
Annual Reports
Q: Is an Annual Report required for exporters that do not ship any hazardous waste during a calendar year?
A: The Annual Report only needs to be submitted if hazardous waste was exported during the previous year.
Q: At what time is a waste considered exported for the purposes of filling out the annual report?
A: A waste is "exported" when it leaves the United States, not when the manifest is initiated. For example, if an exporter signs a manifest in 1997 for a waste to be exported, but the waste does not leave the country until 1998, the shipment would be reported on the 1998 annual report which is due on March 1, 1999.
Other Requirements
Q: Are exporters of hazardous waste subject to land disposal restrictions (LDR)?
A: The requirements of Part 268 are applicable to all hazardous wastes (§268.1(b)) unless specifically provided otherwise in Part 261 or Part 268. Neither Part 261 nor Part 268 generically exclude exported hazardous wastes from the LDR requirements. Therefore, the LDR notification requirements are applicable. However, this is not meant to imply that the treatment standards must be met prior to disposal in another country (Memo, Lowrance to Levy; April 23, 1991).
Q: If I receive a hazardous waste from the generator, can I store that waste prior to shipping it to a foreign destination facility without getting a RCRA storage permit?
A: If the waste is stored prior to being exported, the facility needs to get an EPA ID number and a storage permit, unless it qualifies as a transfer facility (Monthly Hotline Report Question; June 1984).
C. Chapter III: List of References
4/13/2000 Cotsworth to Citizen
FB 14434 Export and consent to shipment EPA must receive consent of government
of importing country before export of hazardous waste can occur; since
US is not currently a party to Basel Convention, there must be a bilateral
agreement between US and importing country that is consistent with requirement
of Convention; US has agreements with OECD and Mexico governing recycling
and with Canada for both recycling and disposal; EPA has strong enforcement
program in area of hazardous waste exports
2/16/2000 Cotsworth to Prior
FB 14421 Export and Acknowledgment of Consent It is acceptable for persons
who hold Acknowledgment of Consent to be different from generator identified
on manifest; intent of Acknowledgment of Consent is to ensure that importing
country is aware of proposed transboundary movement and has consented
to such movement
9/96 Monthly Report Question
FB 14015 Definition of primary exporter Export standards apply only to
primary exporters of waste; primary exporter is an exporter that requires
manifest; SQGs with contractual reclamation agreements do not require
manifest; SQGs shipping waste under reclamation agreement are not subject
to export requirements because they are not primary exporter
3/7/1996 Shapiro to Dickhut
FB 11953 Export and rejected shipments Transporter block on manifest is
used to identify companies that transport waste; transfer facilities need
not be identified on manifest unless the owner of the transfer facility
takes custody of the waste as a new transporter; brokers, transporters,
or TSDF may be importer subject to generator requirements; one party should
assume generator responsibilities; procedures for handling rejected shipments
of hazardous waste exported to Canada
3/1995 Monthly Report Question
FB 13738 Exports from Alaska and Transit Countries Person who transports
waste from Alaska to California via Canada does not need to follow export
requirements because designated facility is not in foreign country; transit
countries need not be notified
8/9/1994 Bussard to Winwood
FB 11863 Export and Acknowledgment of Consent All imports and exports
of hazardous waste arriving at a Customs port must be accompanied by a
hazardous waste manifest; EPA Acknowledgment of Consent must accompany
hazardous waste exports; under a Memorandum of Understanding (MOU) between
EPA and US Customs Service, Customs Service collects manifest from exporter
and transmits it to EPA
2/18/1993 Lowrance to Mink
FB 13594 Export notification Exporters must notify and obtain consent
from receiving country prior to shipping hazardous waste; generators are
responsible for determining if wastes are subject to export regulations;
wastes not subject to RCRA not be subject to export notice and consent
provisions
9/14/1992 Bussard to Salinas
FB 11696 Generator responsible for waste determination and export regulations
Generator must perform hazardous waste determination for waste that will
be exported; all TSDFs handling hazardous waste that will be exported
must have proper permits under RCRA Subtitle C
12/10/1991 Bussard to Whalen
FB 11658 Export logistics Overview of requirements related to hazardous
waste export, including notification, involvement of US State Department,
Customs, receiving country consent, EPA Acknowledgement of Consent, transit
country notification, and bilateral agreement requirements
4/23/1991 Lowance to Levy
FB 11600 LDR notification and exports Land Disposal Restrictions (LDR)
apply to exported hazardous waste (HW), including notification, certification,
and demonstration under 268.7(a); treatment standard need not be met prior
to disposal in another country; regulatory status of secondary material
to be reclaimed depends on type of material and if characteristic or listed
HW
10/1987 Monthly Report Question
FB 13052 LDR notification and exports generators must send land disposal
restrictions (LDR) notification and/or certification with each shipment
of waste even if waste is to be exported (SUPERSEDED: See 62 FR 25997;
5/12/97-- one-time notification); waste analysis, recordkeeping, and notification
requirements apply when generator handles restricted wastes regardless
of whether waste will be land disposed
6/19/87 Porter to Watkins
FB 12950 Exports and batteries RCRA §3017 prohibits export of hazardous
waste without prior notification to EPA; spent batteries (battery) sent
to foreign country for recycling are exempt from export requirements if
batteries are uncracked (SEE ALSO: Part 273); notification and consent
can cover period of up to 12 months; 60-day waiting period for approval
to export applies only to first shipment; bilateral agreements can take
priority over written consent requirement
6/15/1987 Maid to Bodner
FB 12945 Export legal liability Export of hazardous waste is prohibited
unless 262 Subpart E requirements are met; US and Mexico have bilateral
agreement; legal liability for hazardous waste does not end when waste
exits US; exported wastes must be manifested and handled in accordance
with receiving country's terms of consent
2/12/87 Porter to Helms
FB 12856 Export logistics Waste destined for recycling has same potential
for harm as waste destined for treatment or disposal; only persons who
reclaim lead-acid battery (batteries) are subject to regulation for storage
prior to recycling (SEE ALSO: Part 273); RCRA §3017 mandated export
regulations unless Administrator notified, receiving country consented,
copy of consent attached to manifest, and shipment conforms to consent;
EPA expects exporters will not typically exceed 90 day generator time
limit
6/1984 Monthly Report Question
FB 12247 Export and port facilities Facility that receives hazardous waste
in US port prior to export needs EPA ID number; facility also needs
storage permit unless it is transfer facility