EPA’s long and arduous march toward electronic hazardous waste manifesting—the first formal proposal was issued in May 2001—arrived at a significant juncture with the publication of a final rule that establishes the legal and policy framework for  e-manifesting. 

The transition to e-manifesting has been bogged down by multiple complex issues, including developing the needed hardware and software; security provisions such as electronic signatures, which go beyond anything encountered with paper manifests; and obtaining the funding to run a system that affects 160,000 entities in at least 45 industries and currently generates between 4.5 and 5.6 million manifests.

2012 legislation

The movement toward e-manifesting was significantly aided by the 2012 Hazardous Waste Electronic Manifest Establishment Act, which provided the EPA with many needed authorities, including charging user fees to cover costs incurred in developing, operating, maintaining, and upgrading the system. 

Neither the legislation nor the final rule removes the option to continue to use paper manifests during a transition period; however, the rule will require that users who elect to opt out of the electronic submittal must submit the paper manifest to the EPA or its contractor so that the data can be input into the e-system. 

CBI concerns

E-manifesting 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 an entity to meet the federal CBI criteria since information on the manifest is available to multiple commercial entities as well as emergency responders.  The entity generating the manifest would need to reach nondisclosure agreements with each of these parties to support a CBI claim.

Legal equivalent to paper

Other issues addressed in the final rule include:

• Establishing that e-manifests obtained, completed, and transmitted in accordance with the rule and used in lieu of EPA Forms 8700-22 and 8700-22A are the legal equivalent of paper manifest forms bearing handwritten signatures, and satisfy for all purposes any requirement in these regulations to obtain, complete, sign, provide, use, or retain a manifest.
• A generator may participate in the e-manifest system either by accessing the e-manifest system from its own electronic equipment or by accessing the e-manifest system from portable equipment brought to the generator’s site by the transporter that accepts the hazardous waste shipment from the generator for off-site transportation.
• A generator may prepare an e-manifest for the tracking of hazardous waste shipments involving any RCRA hazardous waste only if it is known at the time the manifest is originated that all waste handlers named on the manifest participate in the e-manifest system.
• A generator that is a user of the e-manifest may be assessed a user fee by the EPA for the origination of each e-manifest.  The EPA will maintain and update from time to time the current schedule of e-manifest user fees, which shall be determined on the basis of current and projected system costs and level of use of the e-manifest system.

One of EPA’s next major steps is finding an IT vendor(s) to build and operate the e-manifest system on EPA’s behalf.  The Manifest Establishment Act requires that the system be ready for use by October 5, 2015. 

Access the final rule here.