Section 33.1-24-03-53 - Exports of hazardous waste1. General export requirements. Except as provided in subdivisions e and f, exporters that have received an acknowledgment of consent from the environmental protection agency before December 31, 2016, are subject to that approval and the requirements listed in the acknowledgment of consent that existed at the time of that approval until such time the approval period expires. All other exports of hazardous waste are prohibited unless:a. The exporter complies with the contract requirements in subsection 6;b. The exporter complies with the notification requirements in subsection 2;c. The exporter receives an acknowledgment of consent from the environmental protection agency documenting consent from the countries of import and transit (and original country of export if exporting previously imported hazardous waste);d. The exporter ensures compliance with the movement documents requirements in subsection 4;e. The exporter ensures compliance with the manifest instructions for export shipments in subsection 3; andf. The exporter or a United States authorized agent:(1) For shipments initiated prior to the automated export system filing compliance date, does one of the following: (a) Submits electronic export information for each shipment to the automated export system or its successor system, under the international trade data system platform, in accordance with 15 CFR 30.4(b), and includes the following items in the electronic export information, along with the other information required under 15 CFR 30.6: [1] Environmental protection agency license code;[2] Commodity classification code for each hazardous waste per 15 CFR 30.6(a)(12);[3] Environmental protection agency consent number for each hazardous waste;[4] Country of ultimate destination code per 15 CFR 30.6(a)(5);[5] Date of export per 15 CFR 30.6(a)(2);[6] Resource Conservation and Recovery Act hazardous waste manifest tracking number, if required;[7] Quantity of each hazardous waste in shipment and units for reported quantity, if required reporting units established by value for the reported commodity classification number are in units of weight or volume per 15 CFR 30.6(a)(15); or[8] Environmental protection agency net quantity for each hazardous waste reported in units of kilograms if solid or in units of liters if liquid, if required reporting units established by value for the reported commodity classification number are not in units of weight or volume.(b) Complies with a paper-based process by: [1] Attaching paper documentation of consent (such as, a copy of the environmental protection agency acknowledgment of consent, international movement document) to the manifest, or shipping papers if a manifest is not required, which must accompany the hazardous waste shipment. For exports by rail or water (bulk shipment), the primary exporter shall provide the transporter with the paper documentation of consent which must accompany the hazardous waste but which need not be attached to the manifest except that for exports by water (bulk shipment) the primary exporter shall attach the paper documentation of consent to the shipping paper.[2] Providing the transporter with an additional copy of the manifest, and instructing the transporter via mail, electronic mail or fax to deliver that copy to the United States customs official at the point the hazardous waste leaves the United States in accordance with paragraph 2 of subdivision d of subsection 7 of section 33.1-24-04-04.(2) For shipments initiated on or after the automated export system filing compliance date, submits electronic export information for each shipment to the automated export system or its successor system, under the international trade data system platform, in accordance with 15 CFR 30.4(b), and includes the following items in the electronic export information, along with the other information required under 15 CFR 30.6: (a) Environmental protection agency license code;(b) Commodity classification code for each hazardous waste per 15 CFR 30.6(a) (12);(c) Environmental protection agency consent number for each hazardous waste;(d) Country of ultimate destination code per 15 CFR 30.6(a)(5);(e) Date of export per 15 CFR 30.6(a)(2);(f) Resource Conservation and Recovery Act hazardous waste manifest tracking number, if required;(g) Quantity of each hazardous waste in shipment and units for reported quantity, if required reporting units established by value for the reported commodity classification number are in units of weight or volume per 15 CFR 30.6(a)(15); or(h) Environmental protection agency net quantity for each hazardous waste reported in units of kilograms if solid or in units of liters if liquid, if required reporting units established by value for the reported commodity classification number are not in units of weight or volume.2. Notifications. a. General notifications. At least sixty days before the first shipment of hazardous waste is expected to leave the United States, the exporter shall provide notification in English to the environmental protection agency and the department of the proposed transboundary movement. Notifications must be submitted electronically using the environmental protection agency's waste import export tracking system, or its successor system and by mail to the department. The notification may cover up to one year of shipments of one or more hazardous wastes being sent to the same recovery or disposal facility, and must include all of the following information: (1) Exporter name and identification number, address, telephone, fax numbers, and electronic mail address;(2) Foreign receiving facility name, address, telephone, fax numbers, electronic mail address, technologies employed, and the applicable recovery or disposal operations as defined in section 33.1-24-03-51;(3) Foreign importer name, if not the owner or operator of the foreign receiving facility, address, telephone, fax numbers, and electronic mail address;(4) Intended transporters and their agents, or agents; address, telephone, fax, and electronic mail address;(5) "United States'' as the country of export name, "USA01'' as the relevant competent authority code, and the intended United States port or ports of exit;(6) The ISO standard 3166 country name two-digit code, Organization for Economic Cooperation and Development/Basel competent authority code, and the ports of entry and exit for each country of transit;(7) The ISO standard 3166 country name two-digit code, Organization for Economic Cooperation and Development/Basel competent authority code, and port of entry for the country of import;(8) Statement of whether the notification covers a single shipment or multiple shipments;(9) Start and end dates requested for transboundary movements;(10) Means of transport planned to be used;(11) Descriptions of each hazardous waste, including whether each hazardous waste is regulated universal waste under sections 33.1-24-05-700 through 33.1-24-05-799, spent lead-acid batteries being exported for recovery of lead under sections 33.1-24-05-235 through 33.1-24-05-249, or industrial ethyl alcohol being exported for reclamation under paragraph 1 of subdivision c of subsection 1 of section 33.1-24-02-06, estimated total quantity of each waste in either metric tons or cubic meters, the applicable Resource Conservation and Recovery Act waste codes for each hazardous waste, the applicable Organization for Economic Cooperation and Development waste code from the lists incorporated by reference in section 33.1-24-01-05, and the United Nations/United States department of transportation identification number for each waste;(12) Specification of the recovery or disposal operations as defined in section 33.1-24-03-51.(13) Certification/declaration signed by the exporter that states: I certify that the above information is complete and correct to the best of my knowledge. I also certify that legally enforceable written contractual obligations have been entered into and that any applicable insurance or other financial guarantee is or shall be in force covering the transboundary movement.
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b. Exports to preconsented recovery facilities in Organization for Economic Cooperation and Development member countries. If the recovery facility is located in an Organization for Economic Cooperation and Development member country and has been pre-consented by the competent authority of the Organization for Economic Cooperation and Development member country to recover the waste sent by exporters located in other Organization for Economic Cooperation and Development member countries, the notification may cover up to three years of shipments. Notifications proposing export to a pre-consented facility in an Organization for Economic Cooperation and Development member country must include all information listed in paragraphs 1 through 13 of subdivision a and additionally state that the facility is pre-consented. Exporters shall submit the notification to environmental protection agency using the allowable methods listed in subdivision a at least ten days before the first shipment is expected to leave the United States.c. Notifications listing interim recycling operations or interim disposal operations. If the foreign receiving facility listed in paragraph 2 of subdivision a will engage in any of the interim recovery operations R12 or R13 or interim disposal operations D13 through D15, or in the case of transboundary movements with Canada, any of the interim recovery operations R12, R13, or RC16, or interim disposal operations D13 to D14, or DC17, the notification submitted according to subdivision a also must include the final foreign recovery or disposal facility name, address, telephone, fax numbers, electronic mail address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11 and D1 through D12, or in the case of transboundary movements with Canada, which of the applicable recovery or disposal operations R1 through R11, RC14 to RC15, D1 through D12, and DC15 to DC16 will be employed at the final foreign recovery or disposal facility. The recovery and disposal operations in this subdivision are defined in section 33.1-24-03-51.d. Renotifications. When the exporter wishes to change any of the information specified on the original notification, including increasing the estimate of the total quantity of hazardous waste specified in the original notification or adding transporters, the exporter shall submit a renotification of the changes to the environmental protection agency and the department using the allowable methods in subdivision a. Any shipment using the requested changes cannot take place until the countries of import and transit consent to the changes and the exporter receives an environmental protection agency acknowledgment of consent letter documenting the countries' consents to the changes.e. For cases where the proposed country of import and recovery or disposal operations are not covered under an international agreement to which both the United States and the country of import are parties, the environmental protection agency will coordinate with the department of State to provide the complete notification to country of import and any countries of transit. In all other cases, the environmental protection agency will provide the notification directly to the country of import and any countries of transit. A notification is complete when the environmental protection agency receives a notification that the environmental protection agency determines satisfies the requirements of paragraphs 1 through 13 of subdivision a.f. When the countries of import and transit consent to the proposed transboundary movements of the hazardous wastes, the environmental protection agency will forward an environmental protection agency acknowledgment of consent letter to the exporter documenting the countries' consents. When any of the countries of import and transit objects to the proposed transboundary movements of the hazardous waste or withdraws a prior consent, the environmental protection agency will notify the exporter.g. Export of hazardous wastes for recycling or disposal operations that were originally imported into the United States for recycling or disposal operations in a third country is prohibited unless an exporter in the United States complies with the export requirements in this section, including providing notification to the environmental protection agency and the department in accordance with subdivision a. In addition to listing all required information in paragraphs 1 through 13 of subdivision a, the exporter shall provide the original consent number issued for the initial import of the wastes in the notification, and receive an acknowledgment of consent from the environmental protection agency documenting the consent of the competent authorities in new country of import, the original country of export, and any transit countries prior to re-export.h. Upon request by the environmental protection agency, the exporter shall furnish to the environmental protection agency any additional information that the country of import requests in order to respond to a notification.3. Resource Conservation and Recovery Act manifest instructions for export shipments. The exporter shall comply with the manifest requirements of sections 33.1-24-03-04 through 33.1-24-03-07 except that:a. In lieu of the name, site address, and identification number of the designated permitted facility, the exporter shall enter the name and site address of the foreign receiving facility;b. In the international shipments block, the exporter shall check the export box and enter the United States port of exit (city and state) from the United States.c. The exporter shall list the consent number from the acknowledgment of consent for each hazardous waste listed on the manifest, matched to the relevant list number for the hazardous waste from block 9b. If additional space is needed, the exporter should use a continuation sheet (environmental protection agency form 8700-22A).d. The exporter may obtain the manifest from any source that is registered with the United States environmental protection agency as a supplier of manifests (for example, states, waste handlers, or commercial forms printers).4. Movement document requirements for export shipments. a. All exporters shall ensure that a movement document meeting the conditions of subdivision b accompanies each transboundary movement of hazardous wastes from the initiation of the shipment until it reaches the foreign receiving facility, including cases in which the hazardous waste is stored and sorted, or sorted, by the foreign importer prior to shipment to the foreign receiving facility, except as provided in paragraphs 1 and 2. (1) For shipments of hazardous waste within the United States solely by water (bulk shipments only), the exporter shall forward the movement document to the last water (bulk shipment) transporter to handle the hazardous waste in the United States if exported by water.(2) For rail shipments of hazardous waste within the United States which start from the company originating the export shipment, the exporter shall forward the movement document to the next nonrail transporter, if any, or the last rail transporter to handle the hazardous waste in the United States if exported by rail.b. The movement document must include the following:(1) The corresponding consent numbers and hazardous waste numbers for the listed hazardous waste from the relevant environmental protection agency acknowledgment of consents;(2) The shipment number and the total number of shipments from the environmental protection agency acknowledgment of consent;(3) Exporter name and identification number, address, telephone, fax numbers, and electronic mail address;(4) Foreign receiving facility name, address, telephone, fax numbers, electronic mail address, technologies employed, and the applicable recovery or disposal operations as defined in section 33.1-24-03-51;(5) Foreign importer name, if not the owner or operator of the foreign receiving facility, address, telephone, fax numbers, and electronic mail address;(6) Descriptions of each hazardous waste, quantity of each hazardous waste in the shipment, applicable Resource Conservation and Recovery Act hazardous waste codes for each hazardous waste, applicable Organization for Economic Cooperation and Development waste code for each hazardous waste from the lists incorporated by reference in section 33.1-24-01-05, and the United Nations/United States department of transportation identification number for each hazardous waste;(7) Date movement commenced;(8) Name (if not the exporter), address, telephone, fax numbers, and electronic mail of company originating the shipment;(9) Company name, environmental protection agency identification number, address, telephone, fax, and electronic mail address of all transporters;(10) Identification (license, registered name, or registration number) of means of transport, including types of packaging;(11) Any special precautions to be taken by transporters;(12) Certification or declaration, or both, signed and dated by the exporter that the information in the movement document is complete and correct;(13) Appropriate signatures for each custody transfer (for example, transporter, importer, and owner or operator of the foreign receiving facility);(14) Each United States person that has physical custody of the hazardous waste from the time the movement commences until it arrives at the foreign receiving facility must sign the movement document (for example, transporter, foreign importer, and owner or operator of the foreign receiving facility); and(15) As part of the contract requirements of subsection 6, the exporter shall require that the foreign receiving facility send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the exporter, to the competent authorities of the countries of import and transit, the department, and for shipments occurring on or after the electronic import-export reporting compliance date, the exporter additionally shall require that the foreign receiving facility send a copy to the environmental protection agency at the same time using the allowable methods listed in subdivision a of subsection 2.5. Duty to return or re-export hazardous wastes. When a transboundary movement of hazardous wastes cannot be completed in accordance with the terms of the contract or the consents and alternative arrangements cannot be made to recover or dispose of the waste in an environmentally sound manner in the country of import, the exporter shall ensure that the hazardous waste is returned to the United States or re-exported to a third country. If the waste must be returned, the exporter shall provide for the return of the hazardous waste shipment within ninety days from the time the country of import informs the environmental protection agency and the department of the need to return the waste or such other period of time as the concerned countries agree. In all cases, the exporter shall submit an exception report to the environmental protection agency and the department in accordance with subsection 8.6. Export contract requirements.a. Exports of hazardous waste are prohibited unless they occur under the terms of a valid written contract, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Such contracts or equivalent arrangements must be executed by the exporter, foreign importer (if different from the foreign receiving facility), and the owner or operator of the foreign receiving facility, and shall specify responsibilities for each. Contracts or equivalent arrangements are valid for the purposes of this section only if persons assuming obligations under the contracts or equivalent arrangements have appropriate legal status to conduct the operations specified in the contract or equivalent arrangements.b. Contracts or equivalent arrangements must specify the name and environmental protection agency identification number, where available, of: (1) The company from where each export shipment of hazardous waste is initiated;(2) Each person who will have physical custody of the hazardous wastes;(3) Each person who will have legal control of the hazardous wastes; and(4) The foreign receiving facility.c. Contracts or equivalent arrangements must specify which party to the contract will assume responsibility for alternate management of the hazardous wastes if their disposition cannot be carried out as described in the notification of intent to export. In such cases, contracts must specify that: (1) The transporter or foreign receiving facility having actual possession or physical control over the hazardous wastes will immediately inform the exporter, the environmental protection agency, the department, and either the competent authority of the country of transit or the competent authority of the country of import of the need to make alternate management arrangements; and(2) The person specified in the contract will assume responsibility for the adequate management of the hazardous wastes in compliance with applicable laws and regulations including, if necessary, arranging the return of hazardous wastes and, as the case may be, shall provide the notification for re-export to the competent authority in the country of import and include the equivalent of the information required in subdivision a of subsection 2, the original consent number issued for the initial export of the hazardous wastes in the notification, and obtain consent from the environmental protection agency and the competent authorities in the new country of import and any transit countries prior to re-export.d. Contracts must specify that the foreign receiving facility send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the exporter, to the competent authorities of the countries of import and transit, and the department. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign receiving facility send a copy to the environmental protection agency at the same time using the allowable methods listed in subdivision a of subsection 2 on or after that date.e. Contracts must specify that the foreign receiving facility shall send a copy of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the exporter, to the competent authority of the country of import, and the department. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign receiving facility send a copy to the environmental protection agency at the same time using the allowable methods listed in subdivision a of subsection 2 on or after that date.f. Contracts must specify that the foreign importer or the foreign receiving facility that performed interim recycling operations R12, R13, or RC16, or interim disposal operations D13 through D15 or DC17, as appropriate, will: (1) Provide the notification required in paragraph 2 of subdivision c prior to any re-export of the hazardous wastes to a final foreign recovery or disposal facility in a third country; and(2) Promptly send copies of the confirmation of recovery or disposal which it receives from the final foreign recovery or disposal facility within one year of shipment delivery to the final foreign recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, DC15 or DC16 to the competent authority of the country of import, and the department. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign facility send copies to the environmental protection agency at the same time using the allowable method listed in subdivision a of subsection 2 on or after that date.g. Contracts or equivalent arrangements must include provisions for financial guarantees, if required by the competent authorities of the country of import and any countries of transit, in accordance with applicable national or international law requirements. Note: Financial guarantees so required are intended to provide for alternate recycling, disposal, or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. The United States does not require such financial guarantees at this time; however, some Organization for Economic Cooperation and Development Member countries and other foreign countries do. It is the responsibility of the exporter to ascertain and comply with such requirements; in some cases, persons or facilities located in those Organization for Economic Cooperation and Development Member countries or other foreign countries may refuse to enter into the necessary contracts absent specific references or certifications to financial guarantees.
h. Contracts or equivalent arrangements must contain provisions requiring each contracting party to comply with all applicable requirements of sections 33.1-24-03-50 through 33.1-24-03-55.i. Upon request by the environmental protection agency, United States exporters, importers, or recovery facilities shall submit to the environmental protection agency copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity).7. Annual reports. The exporter shall file an annual report with the environmental protection agency and the department no later than March first of each year summarizing the types, quantities, frequency, and ultimate destination of all such hazardous waste exported during the previous calendar year. Prior to one year after the automated export system filing compliance date, the exporter shall mail or hand-deliver annual reports to the environmental protection agency using one of the addresses specified in subsection 5 of section 33.1-24-03-52, or submit to the environmental protection agency using the allowable methods specified in subdivision a of subsection 2 if the exporter has electronically filed the environmental protection agency information in the automated export system, or its successor system, as required by subparagraph a of paragraph 1 of subdivision f of subsection 1 for all shipments made the previous calendar year. Subsequently, the exporter shall submit annual reports to the environmental protection agency using the allowable methods specified in subdivision a of subsection 2. The annual report must include the following: a. The identification number, name, and mailing and site address of the exporter filing the report;b. The calendar year covered by the report;c. The name and site address of each foreign receiving facility;d. By foreign receiving facility, for each hazardous waste exported: (1) A description of the hazardous waste;(2) The applicable hazardous waste codes (from sections 33.1-24-02-10 through 33.1-24-02-19) for each waste;(3) The applicable waste code from the appropriate Organization for Economic Cooperation and Development waste list incorporated by reference in section 33.1-24-01-05;(4) The applicable department of transportation identification number;(5) The name and United States environmental protection agency identification number (where applicable) for each transporter used over the calendar year covered by the report; and(6) The consent numbers under which the hazardous waste was shipped, and for each consent number, the total amount of the hazardous waste and the number of shipments exported during the calendar year covered by the report;e. In even numbered years, for each hazardous waste exported, except for hazardous waste produced by exporters of greater than one hundred kilograms but less than one thousand kilograms in a calendar month, and except for hazardous waste for which information was already provided pursuant to section 33.1-24-03-14: (1) A description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated; and(2) A description of the changes in volume and toxicity of the waste actually achieved during the year in comparison to previous years to the extent such information is available for years prior to 1984; andf. A certification signed by the exporter that states: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment.
8. Exception reports. a. The exporter shall file an exception report in lieu of the requirements of section 33.1-24-03-15, if applicable, with the environmental protection agency and the department if any of the following occurs: (1) The exporter has not received a copy of the hazardous waste manifest, if applicable, signed by the transporter identifying the point of departure of the hazardous waste from the United States, within forty-five days from the date it was accepted by the initial transporter, in which case the exporter shall file the exception report within the next thirty days;(2) The exporter has not received a written confirmation of receipt from the foreign receiving facility in accordance with subsection 4 within ninety days from the date the waste was accepted by the initial transporter in which case the exporter shall file the exception report within the next thirty days; or(3) The foreign receiving facility notifies the exporter, or the country of import notifies the environmental protection agency, of the need to return the shipment to the United States or arrange alternate management, in which case the exporter shall file the exception report within thirty days of notification, or one day prior to the date the return shipment commences, whichever is sooner.b. Prior to the electronic import-export reporting compliance date, exception reports must be mailed or hand delivered to the environmental protection agency using the addresses listed in subsection 5 of section 33.1-24-03-52. Subsequently, exception reports must be submitted to the environmental protection agency using the allowable methods listed in subdivision a of subsection 2.9. Recordkeeping. a. The exporter shall keep the following records and provide them to the environmental protection agency or the department upon request: (1) A copy of each notification of intent to export and each environmental protection agency acknowledgment of consent for a period of at least three years from the date the hazardous waste was accepted by the initial transporter;(2) A copy of each annual report for a period of at least three years from the due date of the report;(3) A copy of any exception reports and a copy of each confirmation of receipt (for example, movement document) sent by the foreign receiving facility to the exporter for at least three years from the date the hazardous waste was accepted by the initial transporter; and(4) A copy of each confirmation of recovery or disposal sent by the foreign receiving facility to the exporter for at least three years from the date that the foreign receiving facility completed interim or final processing of the hazardous waste shipment.(5) A copy of each contract or equivalent arrangement established per section 33.1-24-03-55 for at least three years from the expiration date of the contract or equivalent arrangement.b. Exporters may satisfy these recordkeeping requirements by retaining electronically submitted documents in the exporter's account on the environmental protection agency's waste import export tracking system, or its successor system, provided that copies are readily available for viewing and production if requested by any environmental protection agency or department inspector. No exporter may be held liable for the inability to produce such documents for inspection under this section if the exporter can demonstrate that the inability to produce the document is due exclusively to technical difficulty with the environmental protection agency's waste import export tracking system, or its successor system for which the exporter bears no responsibility.c. The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the department or the administrator.N.D. Admin Code 33.1-24-03-53
Adopted by Administrative Rules Supplement 370, October 2018, effective 1/1/2019.Amended by Administrative Rules Supplement 2020-377, July 2020, effective 7/1/2020.Amended by Administrative Rules Supplement 2021-381, July 2021, effective 7/1/2021.General Authority: NDCC 23.1-04-03
Law Implemented: NDCC 23.1-04-03, 23.1-04-05; S.L. 2017, ch. 199, § 19