- 1 -

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 was tes to developing countries; the Association of Battery Recy clers (ABR), a national trade association representing the lead recy cling industry ; Johnson Controls, In c. (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. A. OECD Revisions 1. 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 fram ework 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 recog nized 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 recy cling 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. 2. Comment: BAN also commented that EPA should prohibit all exports of OECD amber listed wastes to non - OECD countries for an y reason. ABR similarly commented that EPA should prohibit all exports of SLABs to non - OECD countries.- 2 -

Response: This comment is outside the scope of this rulemaking. In an y event, the statute does not give EPA the legal authorit y to implement an outright ban on hazardous waste exports if they

meet the appropriate export requirements . Specificall y, RCRA section 3017 prohibits exports of hazardous waste unless either: (1) the shipments are covered unde r 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 cop y of the written cons ent 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 cop y of the notificati on to the intended countr y 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 expo rts 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 hazard ous 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 activel y 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

– 200 7 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 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, export er 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- 3 -

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. 3. C omment : BAN asserted that EPA has not y et implemented the 1986 OECD Council Decision - Recommendation C(86)64(final) 1 (“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. 4. 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 differentl y within the US, there are set procedures under the OECD framework for just such cases. EPA inform s 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 was tes which we control differentl y on a case by case basis (amber as well as green) . 5. 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 thi s rulemaking. R atification of the Basel Convention, with or without the Basel Ban Amendment, would require Congressional action to provide EPA the legislative author ity to implement either action . 1 “ Decision - Recomme ndation of the Council on Exports of Hazardous Wastes from the OECD area , ” issued June 5, 1986. This document is available online at http://webdomino1.oecd.org/horizontal/oe cdacts.nsf/linkto/C(86)64 , and a copy has been placed in the docket established for this rulemaking.- 4 -

6. 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 amon g OECD Member countries. B. 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 establish ing the notice and consent export requirements. Dow made a general comment of support for the revisions to the SL AB regulations. 7. Comment: As part of ABR ’s comments suggesting that EPA ban all exports of SLABs to non - OECD countries (discussed in the pre vious section), ABR submitted data that anal yz ed export shipments of SL ABs 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., C hina 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 SL ABs that were exported for reclamation between 2006 - 2008. R esponse: A fter reviewing the anal ys is 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 SL AB export s 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 SL ABs exported between 2006 - 2007 based on ABR’s data is less than the annual amount based on EPA’s data, the Agen cy believes it most appropriate that the- 5 -

data used in the economic anal ys is for the proposed rule should continue be used, and not revised to include the ABR data in the economic anal ys is for the final rule. As a general note, if any one has specific knowl edge 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. 8. Comment: ABR stated th at 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 4 0 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 re cy cling 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, su bpart 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. 9. Comment: JCIcommented that a three - ye ar time period for notice and consent of SLAB exports (as opposed to a one - year time period) would reduce the b urden 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 ye ar s when the proposed shipment is destined for a facilit y 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 coverin g 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 R CRA- 6 -

export regulatory

requirements in 40 CFR parts 261, 262 and 273, EPA is therefore retaining the one - year time period for SL ABs being exported under 40 CFR part 266, subpart G. C. 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.