The U.S. Environmental Protection Agency (EPA) has finally moved a step closer to its goal of establishing an electronic manifesting system.  On February 7, 2014, the agency issued a final rule (79 FR 7517) outlining the regulatory framework for a system that will authorize the use of electronic manifests (or e-Manifests) for tracking shipments of hazardous waste from the generator to the site of ultimate disposition.

This rule is only the first step-it establishes only the framework; the actual electronic system must still be developed.  Although the final rule has an effective date of August 6, 2014, the implementation and compliance date is delayed until the e-Manifest system is ready for operation.

A Short History of the e-Manifest Rule 

On May 22, 2001, EPA proposed major revisions to the hazardous waste manifest system that included two distinct elements: (1) adoption of a standardized manifest form and more consistent manifesting procedures; and (2) establishment of a system to allow waste shipments to be tracked electronically. Although public comments supported an electronic system, many aspects of EPA's proposed approach, which relied on a decentralized system operated by private sector entities, was widely criticized.  The manifest content changes were finalized on March 4, 2005, but EPA deferred final action on the electronic system so it could reconsider its approach.

After conducting public meetings to collect additional information from stakeholders in 2004, in April 2006 EPA requested comment on a new approach that would utilize a national e-Manifest system hosted by EPA and funded by service fees.  At the time, however, EPA lacked statutory authority to collect user fees related to an e-Manifest system. This hurdle was overcome when Congress enacted the Hazardous Waste Electronic Manifest Establishment Act, signed into law by President Obama on October 5, 2012.  This Act directed EPA to establish a national e-Manifest system and provided the agency with the authority to implement the electronic manifest in a self-sustaining manner (allowing EPA to fund contracts with information technology vendors with appropriations and/or fees collected from system users).  The law also set ambitious deadlines for EPA, requiring promulgation of a final regulation authorizing the electronic tracking of hazardous wastes by October 5, 2013, and establishment of the e-Manifest system by October 5, 2015.

What Does the Final Rule Do?

EPA's final rule establishes the framework for the use of e-Manifests by hazardous waste generators, transporters, and treatment, storage, and disposal (TSD) facilities. Electronic manifest documents that are obtained and completed in accordance with the final regulation will be the legal equivalent of the paper manifest forms currently authorized for tracking hazardous waste shipments (EPA Forms 8700-22 and 8700-22A). The rule also addresses a number of key issues.

e-Manifest Use: Although EPA's goal is a fully electronic system that will replace paper manifest forms, this rule specifies that users may opt out of the electronic manifest and continue to use paper forms. The scope of electronic manifests is intended to be as extensive as that of the current paper forms. However, the generator, transporter, and receiving facility must all use electronic manifests-a mix of paper and electronic manifests may not be used for the same waste shipment.

State Regulated Wastes: The e-Manifest also covers wastes that are hazardous under state regulations but not under federal rules, so it may be used to track intrastate shipments of "state only" wastes if the generator, transporter, and receiving facility use the e-Manifest system.

Fees: EPA has been authorized to collect reasonable user fees for all system-related costs.  Fees will be charged to users of both e-Manifests and paper manifests. Details on user fees will be announced by EPA at a later date.

Electronic signatures: In a "technology neutral" approach, EPA is not requiring specific electronic signature methods for the e-Manifest.  The rule simply requires that electronic signature methods must be legally valid and enforceable under applicable EPA or other federal requirements pertaining to electronic signatures, and the signature methods must be sufficiently cost-effective and practical for users in their design and implementation.

Technical Problems: EPA recognizes that in some instances a manifest may be initiated electronically but cannot be fully completed electronically (for example, the e-Manifest system may go down or become unavailable to users, or a transportation vehicle may break down and its replacement does not participate in e-Manifesting). The final rule establishes specific procedures for the manual completion of manifests that are initiated electronically but, for some reason, cannot be completed electronically.

Confidentiality Concerns: One important issue that EPA needed to address was whether electronic manifest data should be eligible for treatment as confidential business information (CBI).   The hazardous waste industry argued that companies might use the national system to obtain a competitor's customer list. After considering comments on this issue, EPA decided to exclude both individual manifests and aggregate manifest data from CBI coverage, concluding that this data is essentially public information and therefore not eligible under federal law for treatment as CBI.

EPA intends to provide a 90-day period before manifest data is released to the general public to allow time for verification and correction of information. During this 90-day period (measured from the date a shipment is received by the designated facility) only regulators, emergency responders, and the waste handler entities named on the manifest will have direct on-line access to manifest data. After the 90 days, EPA will provide full, direct, on-line access by the public to the manifest data in the system. On the other hand, states are not bound by this requirement to delay access and may choose to disclose manifest data to the public immediately in accordance with their public information laws.

Does Electronic Manifesting Mean the Death of Paper?

While EPA intends to limit the preparation and retention of paper records for tracking hazardous waste shipments as much as possible, the new electronic manifesting system will not be truly paperless.  For one thing, DOT requires a hard copy of a shipping paper for hazardous materials (unless otherwise excepted), so vehicles transporting hazardous wastes subject to the hazardous materials regulations (49 CFR 171-180) will need to carry a printed copy of the electronic manifest.

In addition, the e-Manifest rule does not address any other RCRA-required forms or reports, such as notices and certifications required by Land Disposal Restrictions (40 CFR 268.7), EPA Acknowledgment of Consents to exports ( 40 CFR 262.53(f) and 262.54(h)), Exception Reports (40 CFR 262.42), and Discrepancy Reports (40 CFR 264.72(c)). These and any other required reports must be submitted in accordance with the procedures specified in the applicable regulations.

State Implementation

The electronic manifest regulations will be effective in all states on the same date.  The system will be implemented federally by EPA in all states until state programs have adopted and are fully authorized for the electronic manifest regulations. The e-Manifest will operate in the same manner nation-wide and the system will support only the uniform electronic manifest format that EPA establishes; states are precluded from requiring different formats.

What Happens Next?

EPA is working to develop, and implement the e-Manifest system.  The agency plans to award a contract to a vendor or vendors to develop and operate a national e-Manifest system accessed through the EPA's Central Data Exchange (CDX) or an alternative hosting portal. After the system is developed, it will be evaluated for compliance with applicable information technology policies and standards on information security and privacy, and then tested for consistent operation. 

Although the exact details are being fleshed out during this development phase, EPA currently intends to develop a first generation e- Manifest system that will support an XML schema and style sheet (or other functional equivalent) as the data exchange format.

EPA will publish a further document when the system is ready to be implemented, announcing the user fee schedule for manifest-related activities and the date upon which compliance with the e-Manifest regulation will be required.

Deborah Hunsicker is an STC Senior Analyst and regulatory specialist with Specialty Technical Consultants, Inc. and has over 20 years of experience in environmental consulting and regulatory compliance. Deb is a recognized expert in federal and state hazardous waste and hazardous materials regulatory issues. She has assisted various legal and industrial clients in developing customized environmental auditing protocols, providing ongoing regulatory monitoring services, and preparing training materials and compliance programs. Currently, she coordinates several regulatory information projects for key clients that involve tracking regulatory developments and preparing monthly summary reports of federal and state regulatory changes that may impact operations.

For more information about the e-manifest rules, contact Deb at (208) 255-2780 or DHunsicker@stcenv.com