Environmental Technology Council

1112 16

th Street NW  Suite 420  Washington DC 20036  (202) 783-0870

_____________________________________________________________________________________________________

December 17, 2008

Mr. Richard LaShier

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 waste 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 years old. Likewise, the BRS data compiled 

by U.S. EPA from state submissions contains what must be considered historical data. 

For these 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 records 

procedures, often a daunting task. Then the raw data must be compiled into a searchable 

database management system, requiring substantial resources for data processing, quality

control, and verification. The customer lists compiled by data miners in this timeconsuming 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-sensitive 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 data 
2

are otherwise available. See, e.g., Northern 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 years previously, the e-manifest database will contain the 

identity of customers with current, on-going contracts, and would therefore be much more 

valuable to competitors. 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 system 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 analysis was prepared 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. 

Indeed, it is common practice to use the manifest even for shipments of industrial wastes 

sent to RCRA-permitted facilities. Likewise 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 equipment 

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. It is worth noting that if a customer makes just one shipment under a manifest, 

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 analysis 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 industries, and virtually all of their waste business services utilize the 

hazardous waste manifest, even for small quantity customers. These two ETC member 
3

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

analysts 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 conservative 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 100 

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-manifest 

system 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 clarification to the ETC comments. 

Please contact the undersigned if you have any further questions.

Sincerely,

David R. Case

Executive Director