Hazardous Waste Management

A Deeper Look at the e-Manifest Final Rule – Part 2

 The EPA’s e-Manifest System has a lot of hurdles and one of the biggest is that of accommodating both federal and state hazardous waste manifesting requirements. However, rest assured that the EPA recognizes this and is working to address the many possible scenarios, including state-only wastes. In the final rule, the EPA states that the e-Manifest system is available to track state-only hazardous wastes shipments when the state or states involved in the shipments “impose a requirement under state law to use the hazardous waste manifest to track on off-site shipment of a waste, and all the waste handlers named on the manifest elect to use the e-Manifest System.”

In the event that a waste is shipped to a facility in a state that does not require a manifest, the facility may receive the waste shipment “subject to the manifest under the generator’s state law.” According to section 2(h) of the e-Manifest Act, the receiving facility will then be required to complete the facility’s portion of the manifest, sign and date the facility certification, and submit a copy to the e-Manifest System for processing.

Join us on May 28 when our presenter will provide a clear understanding of exactly what will be required under the new EPA rule and will suggest strategies for making the necessary changes to existing hazardous waste manifest process. Register Now.

As is the case with most regulatory reporting, the issues of confidential business information (CBI) and public access come into play with the new e-Manifest System. Throughout the development of the final rule, the EPA received extensive comments regarding whether or not CBI protections should be afforded either individual or aggregate manifests. Among these comments was one from the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) and essentially stated that, based on a survey they conducted, most states with manifest tracking systems did not provide CBI protection to either type of manifest and “generally treat manifests as publically available records.”  Similarly, information requests by the EPA to several state agencies also revealed that the majority make manifest or hazardous waste report data available in some form to the public, primarily via the Internet.

In making its final decision regarding individual manifests, the EPA also argued that CBI claims would be “very difficult to sustain” because, manifests must be shared with a variety of commercial entities in the process of transporting hazardous wastes and also must be made available to emergency responders. As a result, to protect information contained in a manifest, companies would have to enter into and enforce non-disclosure agreements or other legal means with all parties named on the manifest or that might be expected to come in contact with the manifest.

Thus, the EPA states that, based on information they received, the information contained in individual manifest records, including individual electronic manifests submitted through the e-Manifest System is indeed public information and ineligible for consideration as CBI under federal law. This decision, however, does not affect any CBI claims or determinations made in the past.

Join us for our upcoming webinar on May 28, Hazardous Waste Manifest System Modification: What You Need to Know Ahead of the August 6, 2014 Effective Date of the EPA’s Final Rule. Register Now

CBI consideration for aggregate manifest data was also discussed and the EPA again relied on information from the states that disclosed “current and long-standing policies generally favoring disclosure of all manifest data…” as well as information availability in state data systems. In its final decision, the EPA categorically exclude aggregate manifest data obtained through the federal e-Manifest System from CBI coverage.

However, in both cases, the EPA concedes that manifest preparers and waste handlers need a sufficient amount of time to ensure information accuracy and as a result, has extended this “in process” time period. In the e-Manifest System, manifest information will be made available on-line 90 days from the date the hazardous waste is delivered to the designated facility, allowing additional time to make corrections and verify accuracy.

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