Section 33-24-03-52 - General conditions1. The level of control for exports and imports of waste is indicated by assignment of the waste to either a list of wastes subject to the Green control procedures or a list of wastes subject to the Amber control procedures and by the national procedures of the United States, as defined in subsection 1 of section 33-24-03-50. The Organization for Economic Cooperation and Development Green and Amber lists are incorporated by reference in subsection 4 of section 33-24-03-59. a. Listed wastes subject to the Green control procedures.(1) Green wastes that are not considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50 are subject to existing controls normally applied to commercial transactions.(2) Green wastes that are considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50 are subject to the Amber control procedures set forth in sections 33-24-03-50 through 33-24-03-59.b. Listed wastes subject to the Amber control procedures.(1) Amber wastes that are considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50 are subject to the Amber control procedures set forth in sections 33-24-03-50 through 33-24-03-59.(2) Amber wastes that are considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50, are subject to the Amber control procedures in the United States, even if they are imported to or exported from a designated member country listed in subdivision a of subsection 1 of section 33-24-03-25 that does not consider the waste to be hazardous. In such an event, the responsibilities of the Amber control procedures shift as provided. (a) For United States exports, the United States shall issue an acknowledgment of receipt and assume other responsibilities of the competent authority of the country of import.(b) For United States imports, the United States recovery facility or importer, or both, and the United States shall assume the obligations associated with the Amber control procedures that normally apply to the exporter and country of export, respectively.(3) Amber wastes that are not considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50, but are considered hazardous by an Organization for Economic Cooperation and Development member country are subject to the Amber control procedures in the Organization for Economic Cooperation and Development member country that considers the waste hazardous. All responsibilities of the United States importer or exporter, or both, shift to the importer or exporter, or both, of the Organization for Economic Cooperation and Development member country that considers the waste hazardous unless the parties make other arrangements through contracts. [Note to subdivision b: Some wastes subject to the Amber control procedures are not listed or otherwise identified as hazardous under the Resource Conservation and Recovery Act, and therefore are not subject to the Amber control procedures of sections 33-24-03-50 through 33-24-03-59. Regardless of the status of the waste under the Resource Conservation and Recovery Act, however, other federal environmental statutes (for example, the Toxic Substances Control Act) restrict certain waste imports or exports. Such restrictions continue to apply with regard to sections 33-24-03-50 through 33-24-03-59.]
c. Procedures for mixtures of wastes.(1) A Green waste that is mixed with one or more other Green wastes such that the resulting mixture is not considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50 shall be subject to the Green control procedures, provided the composition of this mixture does not impair its environmentally sound recovery. [Note to paragraph 1: The regulated community should note that some Organization for Economic Cooperation and Development member countries may require, by domestic law, that mixtures of different Green wastes be subject to the Amber control procedures.]
(2) A Green waste that is mixed with one or more Amber wastes, in any amount, de minimis or otherwise, or a mixture of two or more Amber wastes, such that the resulting waste mixture is considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50 are subject to the Amber control procedures, provided the composition of this mixture does not impair its environmentally sound recovery. [Note to paragraph 2: The regulated community should note that some Organization for Economic Cooperation and Development member countries may require, by domestic law, that a mixture of a Green waste and more than a de minimis amount of an Amber waste or a mixture of two or more Amber wastes be subject to the Amber control procedures.]
d. Wastes not yet assigned to an Organization for Economic Cooperation and Development waste list are eligible for transboundary movements, as follows:(1) If such wastes are considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50, such wastes are subject to the Amber control procedures.(2) If such wastes are not considered hazardous under United States national procedures as defined in subsection 1 of section 33-24-03-50, such wastes are subject to the Green control procedures.2.General conditions applicable to transboundary movements of hazardous waste:a. The waste must be destined for recovery operations at a facility that, under applicable domestic law, is operating or is authorized to operate in the importing country;b. The transboundary movement must be in compliance with applicable international transport agreements; and [Note to subdivision b: These international agreements include, but are not limited to, the Chicago Convention (1944), ADR (1957), ADNR (1970), MARPOL Convention (1973/1978), SILAS Convention (1974), IMDG Code (1985), COTIF (1985), and RID (1985).]
c. Any transit of waste through a non-Organization for Economic Cooperation and Development member country must be conducted in compliance with all applicable international and national laws and regulations.3.Provisions relating to re-export for recovery to a third country:a. Re-export of wastes subject to the Amber control procedures from the United States, as the country of import, to a third country listed in subdivision a of subsection 1 of section 33-24-03-25 may occur only after an exporter in the United States provides notification to and obtains consent from the competent authorities in the third country, the original country of export, and any transit countries. The notification must comply with the notice and consent procedures in section 33-24-03-53 for all countries concerned and the original country of export. The competent authorities of the original country of export, as well as the competent authorities of all other countries concerned have thirty days to object to the proposed movement.(1) The thirty-day period begins once the competent authorities of both the initial country of export and new country of import issue Acknowledgments of Receipt of the notification.(2) The transboundary movement may commence if no objection has been lodged after the thirty-day period has passed or immediately after written consent is received from all relevant Organization for Economic Cooperation and Development importing and transit countries.b. In the case of re-export of Amber wastes to a country other than those listed in subdivision a of subsection 1 of section 33-24-03-25, notification to and consent of the competent authorities of the Organization for Economic Cooperation and Development member country of export and any Organization for Economic Cooperation and Development member countries of transit is required as specified in subdivision a, in addition to compliance with all international agreements and arrangements to which the first importing Organization for Economic Cooperation and Development member country is a party and all applicable regulatory requirements for exports from the first country of import.4.Duty to return or re-export wastes subject to the Amber control procedures. When a transboundary movement of wastes subject to the Amber control procedures cannot be completed in accordance with the terms of the contract or the consents and alternative arrangements cannot be made to recover the wastes in an environmentally sound manner in the country of import, the waste must be returned to the country of export or re-exported to a third country. The provisions of subsection 3 apply to any shipments to be re-exported to a third country. The following provisions apply to shipments to be returned to the country of export as appropriate: a. Return from the United States to the country of export: The United States importer must inform the environmental protection agency at the specified address in paragraph 1 of subdivision a of subsection 2 of section 33-24-03-53 and the state of the need to return the shipment. The environmental protection agency will then inform the competent authorities of the countries of export and transit, citing the reasons for returning the wastes. The United States importer must complete the return within ninety days from the time the environmental protection agency informs the country of export of the need to return the waste, unless informed in writing by the environmental protection agency of another time frame agreed to by the concerned member countries. If the return shipment will cross any transit country, the return shipment may only occur after the environmental protection agency provides notification to and obtains consent from the competent authority of the country of transit, and provides a copy of that consent to the Untied States importer.b. Return from the country of import to the United States: The United States exporter must provide for the return of the hazardous waste shipment within ninety days from the time the country of import informs the environmental protection agency of the need to return the waste or such other period of time as the concerned member countries agree. The United States exporter must submit an exception report to the environmental protection agency and the state in accordance with subsection 2 of section 33-24-03-57.5.Duty to return wastes subject to the Amber control procedures from a country of transit. When a transboundary movement of wastes subject to the Amber control procedures does not comply with the requirements of the notification and movement documents or otherwise constitutes illegal shipment, and if alternative arrangements cannot be made to recover these wastes in an environmentally sound manner, the waste must be returned to the country of export. The following provisions apply as appropriate: a. Return from the United States (as country of transit) to the country of export. The United States transporter must inform the environmental protection agency at the specified address in paragraph 1 of subdivision a of subsection 2 of section 33-24-03-53 and the state of the need to return the shipment. The environmental protection agency will then inform the competent authority of the country of export, citing the reasons for returning the waste. The United States transporter must complete the return within ninety days from the time the environmental protection agency informs the country of export of the need to return the waste, unless informed in writing by the environmental protection agency of another time frame agreed to by the concerned member countries. b. Return from the country of transit to the United States (as country of export): The United States exporter must provide for the return of the hazardous waste shipment within ninety days from the time the competent authority of the country of transit informs the environmental protection agency of the need to return the waste or such other period of time as the concerned member countries agree. The United States exporter must submit an exception report to the environmental protection agency and the state in accordance with subsection 2 of section 33-24-03-57.6.Requirements for wastes destined for and received by R12 and R13 facilities. The transboundary movement of wastes destined for R12 and R13 operations must comply with all Amber control procedures for notification and consent as set forth in section 33-24-03-53 and for the movement document as set forth in section 33-24-03-54. Additional responsibilities of R12 or R13, or both, facilities include: a. Indicating in the notification document the foreseen recovery facility or facilities where the subsequent R1 through R11 recovery operation takes place or may take place.b. Within three days of the receipt of the wastes by the R12 or R13, or both, recovery facility or facilities, the facilities shall return a signed copy of the movement document to the exporter and to the competent authorities of the countries of export and import. The facilities shall retain the original of the movement document for three years.c. As soon as possible, but no later than thirty days after the completion of the R12 or R13, or both, recovery operation and no later than one calendar year following the receipt of the waste, the R12 or R13 facilities shall send a certificate of recovery to the foreign exporter and to the competent authority of the country of export and to the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division (2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, D.C. 20460, and to the state, by email, email without digital signature followed by mail, or fax followed by mail.d. When an R12 or R13, or both, recovery facility delivers wastes for recovery to an R1 through R11 recovery facility located in the country of import, it shall obtain as soon as possible, but no later than one calendar year following delivery of the waste, a certification from the R1 through R11 facility that recovery of the wastes at that facility has been completed. The R12 or R13, or both, facility must promptly transmit the applicable certification to the competent authorities of the countries of import and export, identifying the transboundary movements to which the certification pertain.e. When an R12 or R13, or both, recovery facility delivers wastes for recovery to an R1 through R11 recovery facility located:(1) In the initial country of export, Amber control procedures apply including a new notification;(2) In a third country other than the initial country of export, Amber control procedures apply, with the additional provision that the competent authority of the initial country of export shall also be notified of the transboundary movement.7.Laboratory analysis exemption. The transboundary movement of an Amber waste is exempt from the Amber control procedures if it is in certain quantities and destined for laboratory analysis to assess its physical or chemical characteristics, or to determine its suitability for recovery operations. The quantity of such waste shall be determined by the minimum quantity reasonably needed to perform the analysis in each particular case adequately but in no case exceed twenty-five kilograms. Waste destined for laboratory analysis must still be appropriately packaged and labeled.N.D. Admin Code 33-24-03-52
Adopted by Administrative Rules Supplement 2016-359, January 2016, effective 1/1/2016.General Authority: NDCC 23-20.3-03
Law Implemented: NDCC 23-20.3-03, 23-20.3-04