EPA Prohibits Confidentiality Claims for Hazardous Waste Export and Import Documents
By Lynn L. Bergeson
In December 2017, the U.S. Environmental Protection Agency (EPA) issued a final rule prohibiting entities from asserting claims of confidential business information (CBI) for certain documents related to the export, import, and transit of hazardous waste. Manufacturers that have historically relied on assertions of CBI should be aware of this change. The new rule is discussed below.
In November 2016, EPA proposed revisions to the Resource Conservation and Recovery Act (RCRA) rules governing imports and exports of hazardous waste and certain other materials regulated under RCRA. EPA did so to “strengthen public accessibility and transparency of import and export-related documentation to better monitor proper compliance with EPA’s hazardous waste regulations and help ensure that hazardous waste shipments are properly received and disposed.” 81 Fed. Reg. 85459. RCRA, of course, governs the shipment of hazardous waste within the United States and with other countries.
The proposal was intended to achieve two primary goals. First, EPA wished to apply confidentiality determinations in a way that prevented persons from asserting CBI claims for documents relating to the export, import, and transit of hazardous waste and excluded cathode ray tubes (CRT). Second, EPA wished to require exporters of hazardous waste and receiving facilities recycling and disposing hazardous waste from foreign sources to maintain a publicly accessible website to upload documents regarding the confirmation of receipt and confirmation of completed recovery or disposal of hazardous waste export and import shipments.
Manifests contain similar information as that required by the documents related to the export, import, and transit of hazardous waste. EPA cited in the final CBI rule its 2014 final rule on electronic manifests in which EPA staked out a categorical determination for individual RCRA hazardous waste manifest records and aggregate data. EPA concluded that information contained in individual manifested records and aggregate data are essentially public information and ineligible for CBI treatment. EPA states that because the information contained in RCRA hazardous waste manifests is largely similar to the information contained in hazardous waste export and import documents, EPA concluded that application of confidentiality determinations in this action is consistent with the categorical determination that electronic manifests are not CBI.
EPA also stated that it believes that any CBI claim that might be asserted with respect to the hazardous waste documents within the scope of this action would be extremely difficult to sustain under the substantive CBI criteria set forth in EPA’s CBI regulations under 40 C.F.R. Part 2, Subpart B. To substantiate a CBI claim, a business must also show that the information is not, and has not been, reasonably obtainable without the business’ consent by other persons by use of legitimate means. Because the export and import documents are shared with several commercial entities throughout the chain of custody of a hazardous waste shipment, EPA determined that the information is easily accessible to other parties without the business’ explicit consent.
In the final rule issued on Dec. 26, 2017, EPA adopted all the proposed provisions in final with the exception of the proposed Internet posting requirements applicable to exporters and receiving facilities of hazardous waste from foreign sources upload confirmations of recovery or disposal on their websites. EPA stated that the proposed requirement was intended to be in effect on a temporary basis while EPA develops its Waste Import Export Tracking System (WIETS) to be able to receive electronic submittals of confirmation or receipt and confirmations of recovery or disposal. In recognition of the fact that the Internet positing requirement would be superseded when exporters and receiving facilities are required to submit confirmations electronically, EPA decided to avoid what it characterized as the “potential confusion” that may result from requiring companies to upload documents on their websites on a temporary basis.
In all other respects, the final rule mirrors the proposed rule. After June 25, 2018, no party may claim CBI for ten categories of documents relating to its notifications of intent to export or other information related to the export of hazardous waste. These categories include:
1. Documents related to the export of RCRA hazardous waste under Part 262, subpart H, including but not limited to the notifications of intent to export, contracts submitted in response to requests for supplemental information from countries of import or transit, RCRA manifests, annual reports, EPA acknowledgements of consent, any subsequent communication withdrawing a prior consent or objection, responses that neither consent nor object, exception reports, transit notifications, and re-notifications;
2. Documents related to the import of hazardous waste, under Part 262, subpart H, including contracts and notifications of intent to import hazardous waste into the U.S. from foreign countries or U.S. importers;
3. Documents related to the confirmation of receipt and confirmation of recovery or disposal of hazardous waste exports and imports, under Part 262, subpart H;
4. Documents related to the transit of hazardous waste, under Part 262, subpart H, including notifications from U.S. exporters of intent to transit through foreign countries, or notifications from foreign countries of intent to transit through the U.S.;
5. Documents related to the export of CRTs under Part 261, subpart E, including notifications of intent to export CRTs;
6. Documents related to the export and import of non-crushed spent lead acid batteries (SLAB) with intact casings, under Part 266 subpart G, including notifications of intent to export SLABs;
7. Submissions from transporters under Part 263, or from treatment, storage, or disposal facilities under Parts 264 and 265, related to exports or imports of hazardous waste, including receiving facility notices of the need to arrange alternate management or return of an import shipment under 40 C.F.R. Sections 264.12(a) and 265.12(a);
8. Documents related to the export and import of RCRA universal waste under Part 273, subparts B, C, D, and F; and
9. Documents required under Part 262, subparts E, F, and H and submitted in accordance with consents issued prior to December 31, 2016.
The final rule is effective on June 26, 2018. Commercial entities and other stakeholders will need to review their operations carefully to ensure all commercial, legal, and other documents and agreements are aligned with the new requirements that disallow CBI claims for the categories of documents noted above. Planning now will ensure no surprise come the effective date.
Lynn L. Bergeson is Managing Partner of Bergeson & Campbell, P.C. (B&C®), a Washington, D.C. law firm focusing on conventional, nanoscale and bio-based industrial, agricultural and specialty chemical product regulation and approval matters; environmental health and safety law; chemical product litigation; and associated business counseling and litigation issues. Bergeson is President of The Acta Group (Acta®), with offices in Washington, D.C., Manchester, UK, and Beijing, China, and President of B&C® Consortia Management LLC (BCCM) with offices in Washington, D.C. Visit www.lawbc.com for more information.