EPA blocks CBI claims for hazardous waste exports/imports
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December 28, 2017
EPA blocks CBI claims for hazardous waste exports/imports

Under a new final rule that takes effect June 26, 2018, documents associated with the export and import of hazardous waste and the export of cathode-ray tubes (CRTs) conditionally excluded from the definition of “hazardous waste” will not be entitled to confidentiality under EPA’s regulations for making confidential business information (CBI) claims.

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The EPA lists eight documents that will not qualify for CBI protection. The final rule follows through on a November 2016 proposal that was intended to strengthen public accessibility to and transparency of import- and export-related documentation to better monitor proper compliance with the Agency’s hazardous waste regulations and help ensure that hazardous waste shipments are properly received and disposed of.

In the action, the Agency does finalize the proposed requirement that exporters and receiving facilities of hazardous waste from foreign sources upload confirmations of receipt and confirmations of recovery or disposal on their websites.

Information in manifests

According to the EPA, application of the rule’s confidentiality determinations to the export and import of hazardous waste is consistent with the non-CBI treatment of hazardous waste manifests at the federal and state level. Manifests contain similar information as that required by the documents related to the export, import, and transit of hazardous waste and export of conditionally excluded CRTs within the scope of the final rule. In 2014, the EPA published a final rule (Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests; February 7, 2014, FR) that made a categorical determination for individual Resource Conservation and Recovery Act (RCRA) hazardous waste manifest records and aggregate data. In that action, the Agency concluded that information contained in individual manifested records and aggregate data are essentially public information and, therefore, is not eligible under federal law for treatment as CBI.

“The effect of this decision was that EPA made a categorical determination that it will not accept any CBI claims that might be asserted in connection with processing, using, or retaining individual paper or electronic manifests or aggregate data,” the Agency says. “The decision in that action is consistent with how manifests are treated in many states that have policies that do not recognize CBI claims for manifests as individual documents or as aggregate data.

Non-CBI documents

Documents subject to the non-CBI rule include 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 acknowledgments of consent, any subsequent communication withdrawing a prior consent or objection, responses that neither consent nor object, exception reports, transit notifications, and renotifications.

Receipts and conformations

In the rule, the Agency says it is not finalizing the proposed Internet posting requirement that exporters and receiving facilities of hazardous waste from foreign sources upload confirmations of receipt and confirmations of recovery or disposal on their websites. The Internet posting requirement was intended to be in effect on a temporary basis while the EPA developed its Waste Import Export Tracking System (WIETS) to be able to receive electronic submittals of the documents.

“Recognizing that the internet posting requirement would be superseded when exporters and receiving facilities are required to submit confirmations electronically, EPA has decided to avoid the potential confusion as described by some commenters, that may result from requiring internet posting of documents on a temporary basis on company websites and from the time lag between the receipt and posting of confirmations of receipt and confirmations of recovery or disposal,” the Agency explains.

Prior requests

The EPA notes that it has received only four requests to protect information covered by the final rule. Three of the four requests were denied. The fourth claim was made in 1994 and concerned the identities and addresses of foreign generators listed in import notification letters. 

The Agency adds that it has never received a CBI claim from a third-party business with respect to hazardous waste export and import documentation.

The final rule is published in the December 26, 2017, FR.     

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