# Environmental Technology Council

**1112 1**  **6 th**  **Street NW**   **Suite 4 20**   **Washington DC 200 36**   **(202) 783 -**  **0870**

_____________________________________________________________________________________________________ December 17, 2008 Mr. Richard L aShier Office of Solid Waste U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington DC 20460 Re: EPA
- HQ
- RCRA
- 2001
- 0032 Dear Mr. LaShier: Thank you for the opportunity to respond to your request for clarification of the ETC comments regarding the competitive harm to hazardous waste companies that will result if aggregated electronic manifest data that reveals customer lists in not categorically protected as confidential trade secrets. First, we must clarify

EPA’s observation that there is a large amount of customer information already

publicly available from state manifest data and biennial reports. Our point is that these data cannot be aggregated into customer lists related to specific commercial hazardous wast e companies without a prohibitive investment of time, expense and effort. Sometimes so
- called “data miners” attempt to collect and manipulate the data and then sell the purported customer lists to competitors. These data miners generally start with state annual or biennial reports. However, some states accept the filing of paper reports or electronic facsimiles such as PDF files. These data are no more useful to data miners than individual manifest forms. Some states compile report data into flat files or electronic databases that could be manipulated to assemble customer lists, but these data are between one and four y ears old. L ikewise, the BRS data compiled by U.S. EPA from state submissions contains what must be considered historical data. For the se reasons, data miners often attempt to obtain and compile individual manifest data to supplement the state report data. Paper copies or manifests in electronic format, if available, must be obtained directly from state agencies under state public record s procedures, often a daunting task. Then the raw data must be compiled into a searchable database management sy stem, requiring substantial resources for data processing, quality control, and verification. The customer lists compiled by data miners in th is time
consuming and costly

manner are often incomplete, out
- dated, marred by errors, and of limited value to competitors. EPA’s electronic manifest database, on the other hand, could allow competitors to easily obtain aggregated, complete, and time
- sen sitive information on customers of specific hazardous waste companies. The courts that have addressed this specific issue have held that such electronic compilations must be protected, even if the individual data2

are otherwise available. See, e.g., North ern Elec. Co. v. Torma , 819 N.E. 2d 417, 426 (Ind. Ct. App. 2005) (electronic compilation of motor servicing information was held not to be readily

ascertainable even though all the information was publicly available in paper form). While a customer list derived from state data and the BRS generally would relate to contracts completed from 1
- 4 y ears previously , the e
- manifest database will contain the identity of customers with current, on
- going contracts, and would therefore be much more valuable to compe titors. Indeed, we have been advised by ETC member companies that if customer data in the e
- manifest database are not treated as trade secret confidential, companies may

simply choose not to participate in the electronic manifest sy stem and will continue to use paper manifests. To determine the quantitative harm that could be caused by disclosure of a customer list derived from the e
- manifest database, the ETC utilized public information that is available from member companies. This analy sis was prepare d by the ETC based on historical information and does not constitute forward
- thinking statements for purposes of securities laws or any representation by

company management. To illustrate, one ETC member company provides multiple lines of waste management services including incineration, solvent recovery , fuel blending, landfill disposal, industrial site services, and aqueous waste treatment. The company has approximately

45,000 customers in almost all major industrial sectors in the U.S. and Canada. We examined each of these service lines to determine the extent to which electronic manifests would likely be used. For services related to the company ’s fixed
- based facilities such as incinerators and landfills, nearly all shipments are currently subject to a hazardous waste manifest and therefore customers would be included in an electronic manifest database. In deed, it is common practice to use the manifest even for shipments of industrial wastes sent to RCRA
- permitted facilities. L ikewise aqueous wastes that are received from customer facilities are predominantly hazardous wastes subject to manifests. The only service line that involves a substantial portion of non
- hazardous industrial wastes is customer site services, such as tank cleanouts and equipm ent cleaning. Even these services frequently involve some hazardous waste residuals that must be manifested for disposal, and thus would also be included in an e
- manifest database. I t is worth noting that if a customer makes just one shipment under a man ifest, that customer would be identifiable in an e
- manifest database, even if a significant volume of business is non
- hazardous wastes. As a conservative assumption, however, we have assumed based on an analy sis of service lines that 20% of the company ’s services are provided to customers that do not utilize a hazardous waste manifest for any purpose, and therefore would not be included in an e
- manifest database. Another ETC member company is primarily

engaged in the highly

competitive business lines of solvent parts cleaning and oil collection services and re
- refined products, as well as containerized waste services, vacuum services, and emergency response services. This company has approximately

330,000 customer locations across a wide variety

of indus tries, and virtually all of their waste business services utilize the hazardous waste manifest, even for small quantity customers. These two ETC member3

companies generated combined revenues for their waste
- related services in 2007 in the range of $1.8 to $2.1 billion. This is consistent with revenue estimates by industry analy sts such as Farkas Berkowitz that put total revenues for the hazardous waste industry , including the remainder of ETC member companies, in the range of $3 to $3.5 billion. Using co nservative estimates of manifest
- related revenues as described above, the quantitative harm to a large ETC member company that would result if e
- manifest data were aggregated into a customer list and just 1% of business were lost to competitors as a result would be in the range of $7 million to $9 million per company . Obviously , if a larger share that 1% were lost, the harm would be commensurately greater. Addressing the issue differently

and using an average revenue per customer ratio, the loss of just 1 00 customers to competitors as a result of an e
- manifest customer list would result in harm of between $500,000 to $2 million per company in decreased revenues, depending on the company ’s total customer base. Thus, a company that uses the proposed e
- manif est sy stem would face substantial competitive harm if e
- manifest data could be aggregated into customers lists and disclosed, rather than protected as confidential or trade secret business information. Thank you for the opportunity to provide this clarif

ication to the ETC comments. Please contact the undersigned if you have any further questions. Sincerely , David R. Case Executive Director