**Ohio’s answers to Rich Lashier’s requests for CBI clarifications** 

**Paula Canter, Ohio EPA October 2**  **8 , 2008** 
QUESTION 1: Do states that now collect manifests make individual manifests available at public request , or are there restrictions on access? How lon g after hazardous waste shipments are completed does it ty picall y take the state to make such manifests available to requestors? **Not applicable to Ohio**

**.** QUESTION 2: Do states that now collect manifests make aggregate d data from manifests , multiple manif ests, or data reports freely availabl e to the public upon request ? (Examples would be a request for all manifests with a particular waste code or all manifests going to or managed b y a particular company or facility .) Have states imposed any CBIrelate d limitation s on the information they will disclose in response to such requests? How long after hazardous waste shipments are completed does it ty picall y take the state t o provide aggregate data in response to such a request ? **Not applicable to Ohio.** 
Q UESTION 3: In a survey conducted for ASTSWMO by L iz Bols (MI DEQ) in January , 2007, nine States provided responses to questions related to manifests and a future electronic manifest s ys tem. The States that responded were NY, OR, SC, FL, MI, WA, CT, ID, and OH. Of these nine states, eight states responded that manifest data would probably not be subject to CBI under state laws and policies, while Ohio indicated that manifest data might be subject to CBI claims based on the experience in Ohio with Ohio’s H azardous Waste Annual Report. In addition, several states on the e

- Manifest rule workgroup, including MD, PA, NJ, and CA, stated that they would also release their HW manifests as public information without allowing CBI claims.
However, i n August, 2004, Paula Canter of the Ohio EPA polled the States on their Site ID , manifest tracking, and Hazardous Waste Reporting requirements. As part of the 2004 survey , 44 States responded to the question “Do you allow CBI claims on the Hazardous Waste Report?” The responses to this question in 2004 from the 44 respondents was evenl y split between states that would allowed and states that would not allow CBI claims for their HW Report data.
Given that the request for aggregate manifest data may be viewed as present ing man y of the same data and issues as requests for a state’s HW Report data insofar as the disclosure of customer list information, how should we reconcile the answers given in response to the 2004 and 2007 surveys? Should aggregate manifest requests an d requests for HW Annual Report data be treated differentl y for purposes of CBI claims?
**Ohio’s answers are consistent (most Ohio TSDFs will attempt to claim CBI on anything that has customer identification) so I won’t address that question.** 

**I don’t think aggregate manifest data should be treated differently from requests for**  **HW Report data. The latter are compiled largely from manifest data. I can’t see how it could be justified to allow CBI claims for aggregate manifest data** 

**but not for individual mani**  **fest forms. The only difference between them is the number of records. They contain the same information, unless the aggregate data is**  **intentionally filtered or pared down to certain fields in the output.**
**If US EPA allows CBI claims, you are going have to address all of the following**  **issues:**

- **What specific data elements can be declared as confidential, i.e. just customer identification or also waste information?** 

- **What criteria will be used to make the determination whether the information can be declared c**  **onfidential? In Ohio we use our trade secret law.** 

- **Is there a specific time at which the CBI protection will expire? For example, after an interval of X years; when the facility closes; indefinitely?** 

- **How often does a claim need to be filed? For Ohio’s An**  **nual Hazardous Waste Reports, a claim must be submitted for each year’s report.**  **Is a claim void if certain conditions change, such as facility ownership?** 

- **Claims must be reviewed for validity to determine whether the criteria has**  **been met . If they are ina**  **dequate they must be challenged.**

- **There are numerous administration issues for the manifest database if it contains CBI data. Many of the advantages of a national shared database**  **will be diminished if federal or state personnel cannot view the information freely.**  **Of course this would restrict access by the regulated community and public as well.**  **The contractor will have to set up user**  **roles to control access and work with US EPA to decide who can view the confidential data. The**  **CBI situation would also b e a factor in reports content if the report lists**  **fields that are claimed to be CBI. In the days of the old BRS software, states were told to keep confidential data on an entirely different computer! You**  **will need to check if there are any US EPA policie s like this still on the books**  **for RCRA**

**.** QUESTION 4 : Do you think that your state ’ s current policy on public disclosure of information of the ty

pe described in Question 2 would be at all affected b y the fact that an electronic manifest s ystem may make i nformation available more rapidly than it is available under the current paper s ys tem?
**I think more people will be interested in obtaining the data if a national manifest**  **database becomes a reality . In Ohio, requestors have become accustomed to not**  **being able to request waste receipt information because of the annual CBI claims, so**  **we don’t get that many. Instead we get requests for the shipment information reported by generators, which is not confidential. We provide this in a pdf format**  **and therefore it is easy to search for specific text strings. Generally the requestors**  **are in the waste management business and are looking for marketing opportunities. This is a good thing if it leads to the purchase of equipment or a new process that**  **minimizes waste**

**. If individual manifests are not held as confidential but aggregate data is, we may get** 

**requests for multiple individual manifests rather than aggregate data. That would be more resource** 

**- intensive than just providing the aggregate.** 
**One of the three qu alifiers for an Ohio trade secret claim is that the information is**  **not commonly available through other means. If a national manifest database exists where information is provided upon request and there is no protected data, then**  **Ohio TSD facilities will have more difficulty in making a CBI claim for waste**  **receipts on a HW Report.**