Inheriting the fees associated with the U.S. Environmental Protection Agency’s (EPA) e-manifest program is just one concern for hazardous waste generators under the new e-Manifest Fee Rule. How does the EPA intend to address three other significant concerns faced by hazardous waste generators under the e-manifest system?
Training
According to the EPA, anyone who ships hazardous wastes off-site needs to comply with both EPA’s training requirements for generators and the U.S. Department of Transportation’s (DOT) requirements for training hazardous materials employees. The generator’s certification language on the manifest is essentially the same certification language that the DOT refers to as the “shipper’s certification.”
DOT’s hazardous materials regulations assume that the person signing the shipper’s certification will have personal knowledge of the facts regarding a waste and its proper preparation for transportation. The shipper’s certification requirements for hazardous materials (including hazardous waste) apply to each person who “offers” a hazardous material for transportation.
So, while the EPA has no specific regulations concerning training for manifests, it is important that anyone who signs or has a part in developing a manifest, be it paper or electronic, be trained on how to properly complete the manifest.
CBI
Now that the e-Manifesting Fee Rule is in place, the e-manifesting program will greatly expedite public access to hazardous waste data, a development that industry believes may compromise confidential business information (CBI). However, the EPA found that at least 20 states currently treat manifests as publicly available information. The EPA has decided to follow this example, stating that “any individual electronic manifest that may be submitted and collected electronically through the e-manifest system is essentially public information and therefore is not eligible under federal law for treatment as CBI.”
Among its reasons for this decision, the Agency notes that it would be extremely difficult for a business to meet the federal CBI criteria since information on the manifest is available to multiple commercial entities as well as to emergency responders. The business generating the manifest would need to reach nondisclosure agreements with each of these parties to support a CBI claim.
P List and U List Security Concerns
The EPA consulted with the Department of Homeland Security (DHS) to determine if the information that will be publicly accessible from the e-manifest program poses a significant chemical security risk. The DHS concluded that there was a plausible chemical security risk posed by unrestricted public access to data in e-manifests.
The EPA is relying on the expertise of the DHS, the DHS chemical security regulations found at 6 CFR 27, and the DHS Chemicals of Interest (COI) appendix A to flag those manifested waste shipments and the data that should be withheld from public disclosure under the e-manifest program.
The DHS has previously determined that the chemical security risks are only potentially presented by a narrow subset of Research Conservation and Recovery Act (RCRA) solid and hazardous wastes. The DHS determined that most RCRA solid and hazardous wastes would not be found in forms or circumstances that would make them attractive to terrorists, with the result that most RCRA wastes are excluded from the COI screening process for chemical security risks.
However, DHS concluded that the RCRA “P-List” and “U-List’” hazardous wastes consisting of the discarded commercial chemical products and related wastes should be subject to screening as COI for chemical security risks because the discarded commercial chemical products, off-specification species, and other such wastes were likely to be just as attractive to terrorists as the chemical products themselves.
The EPA has applied the listing criteria to hundreds of specific industrial wastestreams. All listed hazardous waste can be found in one of these four lists—F, K, P, and U. Chemicals are included on the P list if they are acutely toxic. A chemical is acutely toxic if it is fatal to humans in low doses, if scientific studies have shown that it has lethal effects on experimental organisms, or if it causes serious irreversible or incapacitating illness. The U list is generally composed of chemicals that are toxic, but it also includes chemicals that display other characteristics, such as ignitability or reactivity. Both the P list and U list are can be found at 40 CFR 261.33.
So, in the e-Manifest Fee Rule, the EPA clarified that the e-manifest system will withhold from public access specific data from those manifests related to chemical facilities that handle P-List and U-List wastes that are also included on the appendix A COI list. For manifests that include such chemical wastes, the e-manifest system will withhold from disclosure to the public:
- The chemical waste name and specific P- or U-List waste code,
- The quantity of such wastes included in the shipment, and
- The date of the shipment.
The shipping description for these chemical wastes will instead bear the generic information “P-List or U-List waste” in the public facing part of the e-Manifest system.
Takeaway for EHS Managers
Even though not directly responsible for paying the fees, hazardous waste generators will not be able to avoid the impacts of the e-manifest fee rule. The bottom line for EHS managers whose facilities generate hazardous waste is to be prepared for the full implementation of EPA’s e-manifest program now that the e-Manifest Fee Rule is in place. You must be prepared to:
- Absorb the fees associated with the program;
- Train your appropriate staff in the requirements of the e-manifest program;
- Find ways to legally protect CBI now that the public will have more and easier access to your hazardous waste operations; and
- Deal with the security ramifications if you generate P- and/or U-listed wastes.