RESPONSE TO COMMENTS DOCUMENT:  RCRA-2005-0018

The Agency received comments from four entities: the Basel Action
Network (BAN), a nongovernmental organization focused on the Basel
Convention and in particular on the issue of illegal trade in hazardous
wastes to developing countries; the Association of Battery Recyclers
(ABR), a national trade association representing the lead recycling
industry; Johnson Controls, Inc. (JCI), a global supplier of batteries
to the automotive aftermarket and original equipment manufacturers; and
Dow Chemical Company (DOW), a global chemical manufacturer.  The
comments were focused on specific issues or provisions in the proposed
rule.  

OECD Revisions

Comment:  BAN  commented that EPA should subject all wastes on the OECD
amber list to amber control procedures when being exported regardless of
whether the materials are RCRA hazardous wastes.  

Response:  This comment is outside the scope of this rulemaking, as EPA
did not propose any changes to the fundamental regulatory framework
regarding the applicability of the OECD provisions in 40 CFR part 262,
subpart H (see Section II.A.5 of the proposed rule at 73 FR 58393). 
Moreover, it is important to recognize that the Amended 2001 OECD
Decision and its predecessor have long recognized and allowed a Member
country to determine if a waste on an OECD list is hazardous based on
its “national procedures” (see Annex I, Section II.4 of the
“Decision of the Council C(92)39/FINAL Concerning the Control of
Transfrontier Movements of Wastes Destined for Recovery” and Chapter
II, Section B.4 of the Amended 2001 Decision).  Discussion on how RCRA
implementation of “national procedures” impacts transboundary
movements of wastes subject to the RCRA exemptions, exclusions and
recycling provisions can be found in the April 12, 1996, preamble to the
original OECD rule (61 FR 16290-16316).  EPA is therefore finalizing the
scope of the OECD provisions in subpart H as proposed.  

Comment:  BAN also commented that EPA should prohibit all exports of
OECD amber listed wastes to non-OECD countries for any reason.  ABR
similarly commented that EPA should prohibit all exports of SLABs to
non-OECD countries.  

Response:  This comment is outside the scope of this rulemaking.  In any
event,  the statute does not give EPA the legal authority to implement
an outright ban on hazardous waste exports if they meet the appropriate
export requirements.  Specifically, RCRA section 3017 prohibits exports
of hazardous waste unless either:  (1) the shipments are covered under
and conform to the terms specified in an agreement between the U.S. and
the receiving country; or (2) the exporter has submitted written
notification to EPA, obtained written consent from the receiving country
via EPA, attached a copy of the written consent to the RCRA hazardous
waste manifest for each shipment, and ensures that the shipments comply
with the terms of the receiving country’s consent.  Moreover, section
3017 directs the State Department, on behalf of EPA, to forward a copy
of the notification to the intended country of import within 30 days of
EPA receiving a complete notification concerning a proposed waste export
that would not be covered under the terms of an existing international
agreement.  Therefore, an outright ban regarding all exports of any
individual hazardous waste (e.g. SLABs) or all hazardous wastes to
non-OECD countries would require changes to the statutory language and
is outside the scope of this regulatory action.  

In practice, EPA has rarely received inquiries for hazardous waste
exports to non-OECD countries.  When approached by potential exporters
who ask about exporting hazardous wastes to non-OECD countries that are,
however, parties to the Basel Convention, it is EPA’s practice to
actively discourage such exports by informing them of the Basel
Convention prohibition on transboundary shipments of hazardous waste
between Basel Parties and a non-Party like the United States in the
absence of a formal agreement per Article 11 of the Basel Convention
(e.g., the U.S.-Canada bilateral agreement, the U.S.-Mexico bilateral
agreement, or the OECD multilateral agreement).  The United States has
no agreement with a non-OECD country for exports of RCRA hazardous
wastes.  A review of hazardous waste export notices between 1995 –
2007 indicates no approved or even proposed exports of RCRA hazardous
waste to a non-OECD country.  In the interest of transparency, however,
EPA intends to post online at   HYPERLINK
"http://www.epa.gov/epawaste/hazard/international/hazard/index.htm" \t
""  http://www.epa.gov/epawaste/hazard/international/hazard/index.htm 
summary information for all future notices we receive concerning a
proposed export of RCRA hazardous waste to a non-OECD country.  The
online information will list the exporter name, exporter address, waste
text description, proposed receiving country, and consent status (e.g.,
notice submitted to foreign country, whether the foreign country
consents or objects).  Moreover, EPA’s cover letters for notices
concerning exports to non-OECD countries will remind the countries, when
appropriate, of the relevant Basel hazardous waste listing and the Basel
Convention prohibition on transboundary shipments of hazardous waste
between Basel Parties and a non-Party like the United States. 

Comment:  BAN asserted that EPA has not yet implemented the 1986 OECD
Council Decision-Recommendation C(86)64(final) (“1986 OECD
Decision-Recommendation”), and should do so immediately.  

Response:  This comment is outside the scope of this rulemaking, as EPA
proposed revisions to the OECD provisions to implement the Amended 2001
OECD Decision.

Comment:  BAN stated that EPA should compare the OECD amber waste list
with the list of RCRA wastes currently subject to notification and
consent requirements within the US to determine which amber listed
wastes are not being controlled for export to OECD countries.

Response:  As stated previously, exports of wastes controlled as
hazardous under US national procedures are subject to the OECD export
provisions in 40 CFR Part 262 Subpart H.  This approach has long been
allowed under the OECD framework.  While this approach does result in
some wastes being controlled differently within the US, there are set
procedures under the OECD framework for just such cases.  EPA informs
other OECD countries of the regulatory status for specific wastes within
the US when the other countries request such information.  In addition,
EPA will either send a letter or use the OECD online interactive
database to inform the OECD secretariat of those wastes which we control
differently on a case by case basis (amber as well as green).  

Comment:  BAN suggested that the U.S. should simultaneously ratify the
Basel Convention and the Basel Ban Amendment.  

Response:  This comment is outside the scope of this rulemaking. 
Ratification of the Basel Convention, with or without the Basel Ban
Amendment, would require Congressional action to provide EPA the
legislative authority to implement either action. 

Comment:  Dow stated that it supported EPA revising the existing
regulations to implement the Amended 2001 OECD Decision, and that the
revisions will clarify and streamline the import and export process
among OECD Member countries. 

Response:  EPA agrees that the revisions will clarify and streamline the
import and export process among OECD Member countries.

SLAB Revisions

Three of the commenters recognized the need to require notification and
consent for SLABs being exported for reclamation in a foreign country,
and all four commenters supported EPA establishing the notice and
consent export requirements.  Dow made a general comment of support for
the revisions to the SLAB regulations. 

Comment:  As part of ABR’s comments suggesting that EPA ban all
exports of SLABs to non-OECD countries (discussed in the previous
section), ABR submitted data that analyzed export shipments of SLABs and
other lead scrap based on the harmonized tariff code classifications
between 2006 – 2008.  The data indicated shipments of lead scrap
and/or SLABs to non-OECD countries (e.g., China and India).  ABR
asserted that this data demonstrates that many exporters were
mislabeling their SLAB shipments as non-battery scrap, and that EPA
might be underestimating the amount of SLABs that were exported for
reclamation between 2006 - 2008.  

Response:  After reviewing the analysis conducted by ABR, who generally
supports the proposed rule, we do not believe that ABR’s data would
lead to a significantly different answer, and cause EPA to reconsider
its position.  In particular, ABR’s data indicated total exports of
SLABs and non-battery scrap were approximately 220,000 metric tons in
2006 and approximately 250,000 metric tons in 2007, with about 8% of the
total exports in 2006 going to non-OECD countries.  In comparison,
EPA’s data on SLAB exports estimated that 269,171 metric tons were
exported in 2006, and that 1.77% went to non-OECD countries.  Because
the maximum annual amount of SLABs exported between 2006 - 2007 based on
ABR’s data is less than the annual amount based on EPA’s data, the
Agency believes it most appropriate that the data used in the economic
analysis for the proposed rule should continue be used, and not revised
to include the ABR data in the economic analysis for the final rule.  As
a general note, if anyone has specific knowledge pertaining to specific
export shipments that they believe are in violation of the RCRA
hazardous waste regulations, we encourage them to submit it using EPA's
website at http://www.epa.gov/compliance/complaints/index.html.    

Comment:  ABR stated that adding export requirements to 40 CFR part 266,
subpart G that reference the 40 CFR part 262 requirements was confusing,
and instead recommended that EPA simply require that all SLABs destined
for export to be managed as Universal Waste batteries under 40 CFR part
273.  

Response:  EPA does not agree that requiring all SLABs that will be
exported in the future be managed under 40 CFR part 273 would be easier
or less confusing.  EPA’s policy has long allowed collectors and
managers of SLABs destined for recycling to choose either Part 273 or
Part 266 (see Section IV.B.2.b of the 1995 Final Universal Waste Rule at
60 FR 25504 and following pages).  We believe that having the same
export requirements for SLAB exports in 40 CFR part 273 and 40 CFR part
266, subpart G is the most straightforward approach to ensuring that
SLAB exports for reclamation are appropriately controlled, and the
references to requirements in 40 CFR part 262 should be no more
confusing than the previously established references to 40 CFR parts 261
and 268.  EPA is therefore finalizing the 40 CFR part 266, subpart G
requirements as proposed.

Comment:  JCI commented that a three-year time period for notice and
consent of SLAB exports (as opposed to a one-year time period) would
reduce the burden on U.S. exporters while still providing sufficient
notification to the importing country of proposed shipments.  

Response:  While the Amended 2001 OECD Decision does allow importing
countries to issue extended consents that last for up to three years
when the proposed shipment is destined for a facility that the importing
country has “pre-approved” for such imports, OECD countries are
neither required to pre-approve facilities nor to issue such extended
consents.  The international agreements covering exports from the United
States that are in place with Canada, Mexico, and the OECD all specify a
one-year time period as the standard maximum length of time that a
notification and consent can cover.  Consistent with those agreements
and with all other RCRA export regulatory requirements in 40 CFR parts
261, 262 and 273, EPA is therefore retaining the one-year time period
for SLABs being exported under 40 CFR part 266, subpart G. 

Export Exception Report Technical Correction and Import Revisions

BAN and Dow both made a general comment of support for the proposed
technical corrections regarding export exception reports and import
consent documentation submissions, as proposed.  Neither JCI nor ABR
commented on these proposed revisions.

“ Decision-Recommendation of the Council on Exports of Hazardous
Wastes from the OECD area,” issued June 5, 1986.  This document is
available online at   HYPERLINK
"http://webdomino1.oecd.org/horizontal/oecdacts.nsf/linkto/C(86)64" 
http://webdomino1.oecd.org/horizontal/oecdacts.nsf/linkto/C(86)64 , and
a copy has been placed in the docket established for this rulemaking. 

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