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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. 

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 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. 

2. 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. 
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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 nonOECD 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 nonOECD 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 
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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. Comment: BAN asserted that EPA has not yet 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 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). 

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 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. 

 

1

“ Decision-Recommendation 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/oecdacts.nsf/linkto/C(86)64, and 

a copy has been placed in the docket established for this rulemaking. 
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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 among 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 establishing the notice and consent export requirements. Dow made a general comment of 

support for the revisions to the SLAB regulations. 

7. 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 
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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. 

8. 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.

9. 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 
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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. 

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.