March 14, 2014

e-Manifest Rule Finalized

EPA issued its e-manifest rule on February 7, 2014. [79 FR 7518] The rule implements a portion of the Hazardous Waste Electronic Manifest Establishment Act (e-Manifest Act), which was signed into law on October 5, 2012. The act authorizes EPA to 1) develop an electronic hazardous waste manifest system; and 2) impose user fees as necessary to recover costs incurred in developing, operating, maintaining, and upgrading the system. EPA was given a one-year deadline to promulgate regulations to carry out the new law and a three-year deadline to have the system fully operational.

The primary purpose of the new rule is to clarify that e-manifests, completed and signed as specified in the rule, are legally valid for all RCRA purposes. When the e-manifest system is operational, e-manifests will be used for shipments of hazardous waste, state-only hazardous waste, and any other waste a state requires to be accompanied by a hazardous waste manifest. The benefits of an e-manifest include greater access by emergency responders to information about a waste shipment, higher quality and more timely waste shipment data, lower cost, and fewer burdens on the regulated community.

Under the e-Manifest Act, EPA is required to develop the e-manifest system by October 2015. Although procurement and research activities have begun, the agency has not yet selected a contractor to develop the system. Until the e-manifest system is ready, the paper manifest will continue to be used. Ultimately, the operation of the e-manifest system will be paid for by fees collected from users. EPA plans to issue a separate rule to establish the fee structure in fiscal year 2015.

Waste handlers will be able to opt-out of the electronic system and continue using paper manifests if they choose. If a paper manifest is used, the facility that receives the waste shipment and terminates the manifest will be required to send a copy to the operator of the e-manifest system so that the data from the manifest can be entered into the system. Thus, the electronic system will be a comprehensive repository for all information on hazardous waste shipments.

Newly codified §262.25 says the electronic signature methods for the e-manifest must be: 1) legally valid and enforceable signatures under applicable EPA and other federal requirements pertaining to electronic signatures, and 2) designed so as to be cost-effective and practical. What constitutes a valid and enforceable signature is governed by EPA’s Cross-Media Electronic Reporting (CROMERR) regulations, which are codified at 40 CFR Part 3. EPA believes that the first-generation system should support a PIN/password signature method and/or a digitized handwritten signature using a signature pad and stylus. Based on preamble language, EPA is recommending the PIN/password approach, with security questions, but the agency also expects to include the digitized handwritten signature method pending the outcome of studies to demonstrate its forensic reliability.

To satisfy DOT requirements, a generator originating an e-manifest must also provide the initial transporter with one printed copy of the manifest. After the initial transporter has signed the e-manifest to take custody of the waste shipment, if the e-manifest system goes down or if the e-manifest cannot be completed electronically for any reason, the transporter must make a copy of the printed manifest for each waste handler and two additional copies for the designated facility. These paper copies will then become the manifest for that shipment and must be signed and handled accordingly by each waste handler.

After the e-manifest rule becomes effective, the regulated community will no longer be able to assert that information entered on paper manifests, or on an e-manifest when the system is available, is confidential business information (CBI). EPA gave two reasons for this policy:

“First...as manifests are shared with several commercial entities while they are being processed and used, a business concerned with protecting its commercial information would find it exceedingly difficult to protect its individual manifest records from disclosure by all the other persons who come into contact with its manifests.... Second, we explained that much of the information that might be claimed by industry commenters to be CBI is already available to the public from a number of government and other legitimate sources, because a large number of states now require the submission of generator and/or TSDF copies of manifests to state data systems, and the data from these manifests are often made publicly available through state Web sites or reported and disclosed freely in federal and state information systems.” [79 FR 7540]

The e-manifest rule takes effect on August 6, 2014. However, the implementation and compliance date for these regulations will be delayed until the e-manifest system is ready for operation and the schedule of fees for manifest-related services has been issued. EPA will publish a further document subsequent to this rule’s effective date to announce the user fee schedule—this document will also announce the date upon which compliance with this regulation will be required. Similar to HSWA regulations, the e-manifest rule will be effective in all states at the same time and will be implemented by EPA in RCRA-authorized states until the state adopts the rule.

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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.