**RESPONSE TO COMMENTS DOCUMENT**

**HAZARDOUS WASTE MANAGEMENT SYSTEM: MODIFICATIONS OF THE HAZARDOUS WASTE MANIFEST SYSTEM; NOTICE OF DATA AVAILABILITY**  **AND REQUEST FOR COMMENT**
**Published on**  **February 26, 2008** 

**November 12 , 2013** EPA Final	Response	to	Comments	Document : November	12 ,	2013 Page i

**TABLE OF CONTENTS** 
BACKGROUND AND PURPOSE OF DOCUMENT

................................ ................................ .. 1 Background

................................ ................................ ................................ ................................ . 1 Purpose of Document

................................ ................................ ................................ .................. 2 SUMMARY OF PUBLIC COMMENTS AND AGENCY RESPONSES ON FEBRUARY 2008 NOTICE

................................ ................................ ................................ ................................ .......... 3 1.0 Submission Requirements to System for Paper Manifest Copies

................................ ....... 3 1.1 General

................................ ................................ ................................ ...................... 3 1.2 User Fees

................................ ................................ ................................ ................... 4 1.3 Designated TSDF Requirements

................................ ................................ ............... 8 1.4 State Responsibilities

................................ ................................ .............................. 10 2.0 Public Access to Electronic Manifests and CBI Claims for Manifest Data

..................... 15 2.1 General

................................ ................................ ................................ .................... 15 2.2 Individual Manifest Records and Commercial Confidentiality Concerns

.............. 16 2.3 Release of Aggregate Data and Competitive Harm Concerns

................................ 20 3.0 Comments that are Outside the Scope of the 2008 Notice

................................ ............... 24 Table of Organizations Commenting on the Notice and Commenter Numbers

....................... 25EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 1

**BACKGROUND AND PURPO SE OF DOCUMENT**  **Background** On May 22, 2001, EPA published a notice of proposed rulemaking to revise the hazardous waste manifest sy stem (66 FR 28240). The proposed revisions aimed to reduce the manifest s ys tem's paperwork burden on us ers, while enhancing the effectiveness of the manifest as a tool to track hazardous waste shipments. The proposed rule would have accomplished this by adopting a standardized manifest form with fewer or no optional data fields; adopting a new approach for distributing and acquiring the form; standardizing the data elements and procedures for tracking certain types of hazardous waste shipments; and allowing the manifest to be completed, signed, transmitted, and stored electronicall y. Thus, the proposed rul e consisted of manifest sy stem reforms of two distinct types: (1) revisions to the manifest form and the procedures for using the form and (2) revisions aimed at replacing the paper

- based manifest s ys tem with a nearl y paperless, electronic approach to trac king hazardous waste shipments (referred to as the “ e Manifest ” in this document). Public comments on the proposed rule generally supported our goals of further standardizing the manifest form elements and reducing variability among the manifests that authorized RCRA state agencies currentl y distribute. However, the commenters had differing views on many of the particulars of the proposed revisions to the manifest. We believed that the comments addressing the e - Manifest proposal raised significant subs tantive issues that merited further analy sis and stakeholder outreach prior to adopting a final approach. In particular, several commenters on the 2001 proposed e

- Manifest approach raised strong objections to the decentralized approach, under which multipl e sy stems might be developed b y private industry to meet the detailed system standards suggested b y the proposed rule. These commenters suggested that a consistent, national sy stem approach would be preferred to the proposed approach. The comments received in response to the form revisions proposal, on the other hand, raised fewer difficult issues that would deter us from going forward with a final rule. Therefore, EPA separated the e - Manifest from the form revisions portion of the proposal for purposes of taking final action. EPA published a final rule on the form revisions on March 4, 2005 (70 FR 10776). Since the 2001 proposal, EPA has continued work on the e - Manifest . In particular, EPA held a two
- day public meeting in 2004 to discuss and obtain publi c input on a national e - Manifest sy stem. The purpose of the meeting was to discuss with stakeholders our rulemaking progress and to solicit their input and preferences on the development and implementation of the e Manifest project. EPA also presented mate rial on alternative information technology (I T) approaches to the e - Manifest , including a centralized approach under which EPA would host a web

- based national s ys tem.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 2

On April 18, 2006, EPA published a notice describing the Agency ’s change of program direction and its preferred approach for a c entralized e - Manifest s ys tem (71 FR 19842) . It also indicated EPA’s intent to consider the data obtained from the public meeting and any new data from public comments received on the n otice in making a final decision on whether to develop an e - Manifest sy stem. On February

26, 2008, EPA published a notice announcing the availability of additional information on the e

- Manifest project (73 FR 10204)

. The notice indicated that EPA had made significant progress on the e

- Manifest project since the publication of the April 18, 2006 public notice ; however, a few issues raised b y commenters in response to the April 2006 public notice require d further EPA analy sis as it mad e decisions concerning the e

- Manifest sy stem. The 2008 notice requested additional comment on EPA’s preferred approaches for addressing submissions of paper

- based manifests to the electronic manifest sy stem and for addressing confidential business information ( CBI ) claims for manifest data. In total, EPA received 23 public comm ent letters in response to the February 2008 n otice. On October 5, 2012, the President signed into law the Hazardous Waste Electronic Manifest Establishment Act (e

- Manifest Act). The e

- Manifest Act requires, among other actions, that EPA establish a national sy stem for tracking shipments of federall y- and state

- regulated wastes subject to the hazardous waste manifest requirement. It authorizes EPA to collect reasonable user fees as a source of sustainable funding for the sy stem. The e

- Manifest Act further states that the use of electronic manifests shall be at the election of the system users, and that with respect to paper manifests that continue in use, EPA is authorized to collect these for data processing purposes so that there is a unified data s ys tem with a complete set of manifest data from all electronic and paper manifests. The e

- Manifest Act further requires EPA to issue its implementing regulations for e

- Manifest within one year of enactm ent of the Act. The Response to Comment document for the 2008 notice is thus a part of the record support for the final rule required b y the e

- Manifest Act. **Purpose of Document**  This document presents a summary of the public comments received in response t o the February 2008 n otice. The public comments (e.g., suggestions, concerns, questions) are summarized according to specific issues raised in the notice

. In each summary , we indicate the number of organizations whose comments are reflected in it. We also identify

the organizations. To do so, we assigned each organization a unique commenter number. We then prepared the summaries and inserted commenter numbers into each summary

to identify the organizations whose comments are reflected in it. A table at the end of this document provides the name of each organization that commented on the n otice and its commenter number.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 3

This document also provides the Agency ’s response to each comment. The responses explain how the comments were con sidered in developing the e - Manifest final rule

. **SUMMARY OF PUBLIC CO MMENTS AND AGENCY RE**  **SPONSES ON FEBRUARY**  **2008 NOTICE**  **1.0 Submission**  **Requirements to System for Paper Manifest Copies**  **1 .1**  **General Comment:**  We heard from 14 commenters expressing general support for EPA’s preferred approach for designated TSDFs to collect and submit copies of paper manifest s to the national operator (Commenter Nos. 3 , 4 , 6 , 10, 11 , 13 , 14 , 15 , 16 , 17, 18 , 19 , 20 and 21 ) . Three of these commenters expressed support for the overall approach but recommended that EPA address how electronic and paper corrections will be made after submittal , particularly in light of the 60

- day time frame after which the data will become available to the public (Commenter No s . 15 , 19 , 21 ). Based on their experience, the commenter s stated that, during subsequent reviews of manifests, errors may be found and need to be corrected. Another commenter expressed support but asked EPA to consider eliminating the three

- year manifest recordkeeping requirement for generators and other entities, since the final cop y will reside on the central sy stem (Commenter Nos. 6). Another commenter expressed concern for maintaining data quality and suggested safeguarding manifest data entry (Commenter No. 19). **Response:** EPA thanks commenters for their general support of EPA’s preferred approach for the designated TSDF to submit final copies of the paper manifest to the sy stem. The e - Manifest final rule provides that the designated facility must send to the e

- Manifest sy stem the top copy of the paper manifest form within 30 day s of delivery of the hazardous waste shipment. The copy could be mailed to the e

- Manifest sy stem, or EPA may authorize the designated facility to transmit an image file to the EPA sy stem so that the sy stem personnel could key

- in the data from the image files to the data sy stem. Alternativel y, the designated facility may be able to submit both the image file and a file presenting the manifest data to the s ys tem in image file and data file formats acceptable to the e

- Manifest sy stem operator and supported by EPA’s electronic reporting requirements . When the e - Manifest sy stem is implemented, this requirement for the designated facilities will replace any existing requirements for the submission of paper copies b y designated facilities directly to states, as the s ys tem will handle the distribution of manifest copies and data to the states. EPA notes that the e

- Manifest final rule provides that manifest data will be available online 90 day s from the date hazardous waste is delivered to the designated facility (instead of 60 day s from the start of the shipment, as proposed in the 2008 notice) . This should help to alleviate the commenters’ concerns about the need for additional time to address errors in submitted data

. Nonetheless, EPA agrees that manifest corrections could be needed after th e 90

- day timeframe.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 4

Indeed, EPA anticipates that the national operator itself and the states will need time to review and follow up on manifest errors. In addition, EPA fully expects that waste handlers will find errors and other issues that need to be revised as part of their routine processing of manifest data. The Agency will design an e

- Manifest s ys tem with the capability for generators, transporters, designated facilities , and regulators to make corrections. This process may require correcting each manifest separatel y or could allow block corrections of a set of manifests wi th the same error in waste code, EPA ID number, or other like field. This process will also require access controls and time/date stamp features to keep a history of all corrections made. EPA and members of the manifest user community have discuss ed the performance and design requirements for addressing errors and corrections and we will continue to do so as we plan for the procurement action that will lead to the development and operation of the e

- Manifest sy stem. Thus, the correction concerns and process for such corrections are s ys tem planning and design issues beyond the scope of the final rule. Finally , EPA does not intend to e liminat e all the recordkeeping requirement s for paper manifests as a commenter requested. The final rule requires only that the designated TSDF submit the paper cop y to the national operator for data processing purposes

. As such, this new requirement only replaces current requirements that manifest copies be submitted by facilities to the states. C opies from generators and transporters will not be collected. It will be necessary for all waste handlers to retain their copies , which could be needed for a variety of purpose s , such as the completion of exception reports or compliance reviews during inspector visits to waste handler sites. **1. 2**  **User Fees Comment:**  We heard from one commenter stating that project funding fees should be further evaluated and that the cost to start up and maintain the e

- Manifest sy stem may be underestimated (Commenter No. 5). **Response:** E PA thanks the commenter for expressing its concerns about project funding for the e - Manifest sy stem . EPA agrees that it is important to continue to identify and evaluate all sy stem costs and ensure that adequate funding is available , and we will continue to evaluate various sy stem alternatives and refine and update their cost estimates. This will be done during the sy stem and procurement planning phase of the project, and particularl y, as part of the capital planning and investment control ( CPI C) process by which we estimate and justify our budget requirements for s ys tems such as the e - Manifest sy stem
. EPA and members of the manifest user community

will discuss user fees as the Agency plans for the procurement action that will lead to the de velopment and operation of the e

- Manifest sy stem. In addition, EPA will publish Fee Rule subsequent to this final rule to announce the user fee schedule for manifest related activities. **Comment:** We heard from one commenter expressing concerns that user fees incurred b y designated TSDFs from the submission of paper manifests would be passed on to their customersEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 5

(Commenter Nos. 1). The commenter suggested that the e

- Manifest should be funded b y EPA, not user fees. The commenter indicated that the user fee structure could eventually become a disincentive for generators to minimize their waste. As generators achieve waste minimization goals, the funding base of the e

- Manifest will diminish, although sy stem costs wil l remain constant or increase. Since the fees imposed on TSDFs will need to increase to cover the fixed costs of the program, waste reduction b y generators will correlate with escalating administrative costs for each ton of waste generated. The commenter suggested that the sy stem’s funding mechanism should build in incentives for waste minimization. **Response:** EPA thanks the commenter for expressing its concerns about project funding for the e - Manifest. EPA agrees that designated TSDFs will be free to pa ss the user fees to their customers , if they

so desire. EPA does not agree that the e

- Manifest should be funded b y EPA , however . Through its interactions with industry , EPA has learned that manifest users are willing to pay a reasonable fee for use of th e e - Manifest sy stem, provided that certain stipulations are met (e.g., transparency

in how the fees are used). Consistent with industry ’s feedback, the Hazardous Waste Electronic Manifest Establishment Act, PL 112

- 195 (referred to as the “ e Manifest Act” i n this document) , authorizes EPA to impose and collect reasonable service fees necessary to pay the costs of implementing the e

- Manifest sy stem, including any costs incurred in collecting and processing data from any paper manifests submitted to the system , and to deposit these fees into a special revolving S ys tem Fund in the U.S. Treasury (see Section 2(c) of the Act)

. The e

- Manifest Act contemplates that appropriated funds will be used to develop the IT s ys tem, but that these development costs will be later off

- set b y collected user fees. EPA will publish a Fee Rule subsequent to this rule to announce the user fee sche dule for manifest

- related activities. In addition, the Act requires EPA to establish an Advisory Board which, among other things, will evaluate user fees and make recommendations to adjust fees. In addition, the Act contains oversight provisions, that require EPA to conduct annual Inspector General audits and submit biennial reports to Congress to ensure that user fees remain reasonable and do not adversel y impact use of e

- manifest. EPA will work closely

with members of the manifest user community to ens ure that the user fees do not have undesirable effects on manifest user behavior. EPA shares the commenter’s concern that the user fees should not become a disincentive for waste minimization , although it is worth noting that the user who minimizes its generation of hazardous waste will likely experience reduced e

- Manifest fee pay ments on account of having to ship fewer hazardous wastes off

- site

. The Agency will examine during the development of the Fee Rule the role of any incentives in the determination of user fees. In the final rule, we state that we will, for example, take input on fee incentives that might promote the greater use of electronic manifests, so that there will not be significant use of paper manifests over the long term.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 6

**Comment:** We heard from one commenter expressing support for the Agency ’s plan to modulate the fee based on the actual costs of processing the manife sts (Commenter No. 7). The commenter suggested that EPA provide incentives for companies to convert paper manifests from their generators into an electronic format, even in a format that does not meet all the criteria for the ele ctronic s ys tem
. **Response:** EPA thanks the commenter for its support of the Agency ’s preferred approach and agrees that the user fees should vary depending on whether paper manifests are submitted electronically

or not. EPA also agrees with the commenter that it is important to provide incentives to convert from paper manifests to electronic manifests. The final rule provides that the designated facility

must send to the e

- Manifest sy stem the top cop y of the paper manifest form within 30 day s of delivery of the hazardous waste shipment. The copy could be mailed to the e

- Manifest sy stem, or EPA may authorize the designated facility to transmit an image file to the EPA sy stem so that the sy stem personnel could key

- in the data from the image files to the data sy stem. Alternatively , the designated facility may be able to submit both the image file and a file presenting the manifest dat a to the s ys tem in image file and data file formats acceptable to the e

- Manifest sy stem operator and supported by EPA’s electronic reporting requirements. The data file submission may

be subject to quality

assurance checks, and the regulated entity would be responsible for responding to and correcting errors identified from this check before a submission is accepted for processing b y the e

- Manifest sy stem. This latter alternative would provide incentive for designated facilities to convert from paper to el ectronic manifests because it w ould result in much more timely receipt of the manifest data b y the system, and avoid the need for manual data entry activities by

the s ys tem operator. While this is beyond the scope of this final rule, we expect that the f ees recovered for such activities will reflect the effort required by the s ys tem operator to process the data into the sy stem. For paper copies mailed to the sy stem by designated facilities, the e

- Manifest sy stem operator would create or obtain an image f ile of each such manifest, and store it on the sy stem for retrieval b y state or federal regulators. The e

- Manifest sy stem operator would also key

- in or extract the federal

- and state

- regulated waste data from these copies to the e

- Manifest s ys tem. The de signated facility

would be required to pay a fee to the s ys tem operator for processing the data from these final copies of the paper forms, and the fee would vary with the ty

pe of submission (mailed copy, image file, or image plus data file), as these subm ission ty pes will likely present a different level of effort insofar as the processing steps required to enter the form data into the sy stem. The fees for these and other e

- Manifest s ys tem services will be determined later b y EPA, and published in a distinct regulatory notice prior to the implementation of the e

Manifest sy stem. In addition, the specific file formats acceptable for the e

- Manifest will be specified at a later date. **Comment:** We heard from one commenter expressing concerns about the level of user fees imposed by

the s ys tem (Commenter No. 7). The commenter stated that the Agency should set the fee based on the parameters required b y the law and not delegate this determination to the ITEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 7

contractor who might use the f ee to increase profit . The commenter suggested that one possible solution would be for a second contractor to handle the paper manifests. The commenter stated that, if the customers see the paper manifest fee as a part of the cost of waste management services, rather than a government
- imposed fee comparable to a sales tax, it will oppose increased fees

. **Response:** EPA thanks the commenter for expressing its concern about the level of user fees imposed by

the s ys tem. EPA agrees that user fees must remain at reasonable levels and assures the commenter that safeguards will be in place to ensure oversight and control over fee levels. In particular, EPA will determine the fees by regulation, and will not delegate this responsibility to the contractor. As an example of this oversight and control, s ection 2(d)(3)(A) of the Act requires the submission to Congress every two years a report that includes an accounting of the fees collected and expenditures made over the reporting period, as reflected in the sy stem’s financial statements. Section 2(d)(3)(B) provides for an annual audit by the EPA Office of Inspector General on the fees collected and disbursed under the s ys tem, the reasonableness of the fee structure then in place, the level of use of the sy stem by the users, and the success to date of the sy stem in improving the efficiency of waste shipment tracking and in operating the s ys tem on a self

- sustaining basis. Finally , s ection 2(f) directs EPA to an Advisory Board that will include manifest user representatives, among others, who will meet annually to advise EPA on the e Manifest , including the applicable fee structure. In addition, EPA will work closel y with members of the manifest user community to ensure that additional controls and safeguards are in place to ensure that fees are fair and reasonable. EPA will publish a notice (i.e., user fee rule) subsequent to th e e - Manifest Final rule’s effective date to announce the user fee schedule for manifest related activities. The user fee rule will discuss incentives and safeguards to ensure the formulation of reasonable fees. **Comment:** We heard from two commenters expressing doubt in the accuracy of the costs estimated in the notice (Commenter No. 7 and 17). The commenter s believe the estimates are low and do not capture all costs associated with using the e

- Manifest s ys tem. In addition, the commenter s believe that any additional sy stem costs /fees for handling the paper manifest should be phased in over time (e.g., 2 ye ars) to allow time for the e - Manifest sy stem to demonstrate its reliability for everyday

use, ease of use and provide the regulated community time to switch from paper to electronic sy stems. In addition, one of the commenters suggested that a lower fee or no fee should be charged at the launch of the electronic s ys tem to allow the Agency and contractor to beta test the sy stem to understan d the real costs of conversion of the various types of data sets provided b y users (Commenter No. 7)

. The commenter stated that, a fter this introductory

period, the fee could be increased to ensure recovery of the full costs of the conversion process. **Res ponse:**  EPA thanks the commenters for their views on the Agency ’s estimated costs for the sy stem. EPA acknowledges that its estimates are subject to change as it continues to analyze andEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 8

plan the sy stem, develop sy stem requirements , and collect market research and stakeholder feedback. In regard to phasing in the collection of paper manifests over time , EPA understands the commenters’ concerns and is evaluating options for transitioning to the new collection requirements of the final rule. EPA will announce the implementation date for e

- Manifest in the subsequent Fee Rule regulation, and any discussion of phasing in paper manifest collection will be taken up in that notice, and not in this final rule. EPA notes, however, that user fees will be needed to reimburse the contractor for collecting and processing paper manifests, whether such a collection is phased in over time or not. S ection 2(c) of the Act authorizes EPA to impose and collect reasonable service fees necessary to pay the costs of implementing the e

- Manifest s ys tem, including any costs incurred in collecting and processing data from any paper manifests submitted to the system
. It is therefore inconsistent with the statute and economically in feasible to delay the collection of fe es associated with collecting and processing the paper manifest if the contractor is in fact performing these activities. EPA will work closely

with members of the manifest user community to find way s to ensure a successful transition to the new requirements
. We will publish a Fee Rule subsequent to th is rule’s issuance to announce the user fee schedule for manifest related activities , and the date that e - Manifest s ys tem use, with paper manifest collection, will commence. **1.3 Designated**  **TSDF Re quirements**  **Comment:** We heard from one commenter asking for clarification that, under EPA’s approach, the designated TSDF would still be required to send a signed copy of the paper manifest to the generator after receipt of the waste (Commenter No. 19). The commente r stated that this requirement is an important element of RCRA’s “cradle

- to
- the

- grave” waste management scheme as it assures the generator that its wastes have in fact been received at the appropriate TSDF. **Response:** EPA thanks the commenter for its requ est for clarification about the existing requirement for the designated TSDF to return a signed cop y of the manifest to the generator. These requirements are found at 40 CFR 264.71(a)(2)(iv) and 265.71(a)(2)(iv). The final rule retains these requirements ; as such, designated TSDFs will still be required to send a signed cop y of the paper manifest to the generator after receipt of the waste

. This final rule only alters the current requirement that TSDFs mail the top cop y (Copy 1) of the manifest forms to state agencies. When e

- Manifest is implemented, this rule will instead require the top copy to be sent to the national sy stem operator. **Comment:** We heard from one commenter asking for clarification regarding the term, “ final destination facility” (Commenter No. 15). The commenter stated that, if EPA intends to have the final destination facility

submit all the manifests pertaining to received wastes, then that point needs to be made clear. If instead it is EPA's intent that each designated (receiving) f acilityEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 9

submits the manifest, then EPA needs to use that terminology and refrain from using terms such as “final destination facility” or “designated final TSDF.” **Response:** EPA thanks the commenter for its requested clarification regarding designated TSDFs . In its final rule, EPA provides that a facility that receives a paper manifest must submit a cop y to the national operator. The final regulations do not refer to a “ designated final TSDF” or “final destination facility .” Each designated facility that receives a shipment accompanied by a paper manifest must submit a copy to the national operator. **Comment:** We heard from three commenters asking for greater clarification on how rejected loads should be handled, given EPA’s approach for the designated TSDF to submit the final paper cop y to the national sy stem (Commenter Nos. 6, 15, 18):

 Must the rejecting TSDF submit the copy to the s ystem?
 How must partial and complete load rejections be handled?
 Must the generator submit a manifest cop y to the sy stem if he receives a full rejection accompanied b y the original manifest?
 Must the manifest accompanying the rejected load be submitted to the sy stem?
 How will the sy stem track or reconcile quantities or volumes of residues and rejected loads involving a new man ifest, regardless of whether the shipment is directed back to the original generator or an alternate facility? **Response:** EPA thanks the commenters for their questions about how to handl e paper manifest s accompanyi ng rejected loads. The e

- Manifest final rule amends 40 CFR 264.71 and 265.71 by providing that, i f the facility receives a hazardous waste shipment ac companied by a manifest, the owner/operator must send a cop y to the e

- Manifest within 30 day s of delivery . Hence, a facility subject to section 264 .71 or 265.71 as amended (i.e., a facility that has received a shipment and signed the manifest to acknowledge receipt) must submit a copy of the paper manifest to the sy stem, regardless of whether it is subsequently rejected or not. For full and partial rejected loads that are sent to an alternate facility or generator after the transporter has left, the rejecting facility would be required to submit a copy of the rejected load’s manifest to the sy stem, as required by section 264.71 or 265.71. For full and partial rejected loads that are sent to an alternate facility or generator before the transporter has left, the rejecting facility would not be required to submit a copy of the rejected load’s manifest to the sy stem if it has not signed the manifest to acknowledge receipt of the waste. Rather, it would complete block 18b of the original manifest to supply information on the alternate designated TSDF , provide copies to the transporter, and retain a cop y. When the manifest is received by the s ystem, reco nciliation between original and new manifests can occur as necessary

. **C omment:**  We heard from one commenter expressing concern for the requirement for the designated TSDF to submit copies of paper manifests within 30 day s of receipt of waste (Commenter No. 18). The commenter believes EPA should require submittal within 30 day s ofEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 10

the TSDF ’ s final acceptance of the waste . The commenter stated that, upon receipt of a shipment, the designated TSDF will perform anal yses in accordance with its waste anal ys is plan) and may reject some or all of the waste. This can take some time. Hence, the commenter believes it is more appropriate to start the time frame based on waste acceptance, not receipt. **Response:** EPA thanks the commenter for its suggestion to require paper manifest submittal to the national operator within 30 day s of waste acceptance b y the TSDF , not waste receipt . EPA agrees that, after waste receipt, a TSDF may need some time before making a final acceptance decision and that such a decision could a ffect the manifest’s contents. However, EPA continues to believe that a 30

- day

timeframe is sufficient for the majority of cases. In deed, TSDFs are required to follow up with generators about discrepancies within 15 day s of receipt of the shipment and send a signed cop y to the generator within 30 days. Hence, EPA believes its 30

- day requirement for submittal to the national operator is consistent with these existing timeframes. EPA also notes the 30

- day requirement is consistent with , if not longer than, some s tate s’ current timeframes for submittal of a manifest copy (e.g., New York State currentl y requires submittal within 10 day s of TSDF receipt). In addition, EPA recognizes the potential difficulties in enforcing a requirement th at is tied to the date of acceptance. TSDFs are not required to document th e date of acceptance , and the date could vary

widel y at a TSDF on a shipment

- by

- shipment basis, depending on the wastes received and other factors. By

comparison, the date of receipt is clearl y di splayed on the manifest and therefore easily

verifiable , making enforcement more practicable

. As discussed above, the Agency will need to design an e

- Manifest s ys tem with the capability for generators, transporters, or designated facilities to make those corrections. EPA and members of the manifest user community will discuss the performance and design requirements for address ing errors and corrections as we plan for the procurement action that will lead to the development and operation of the e

- Manifest s ys tem. The correction process for e

- Manifest is a sy stem planning and design issue, and not a regulatory issue to be resolv ed in this final rule. **1.4 State Responsibilities**  **Comment:** We heard from one comment er (state agency) who stated its belief that EPA has underestimated the complexities of collecting and processing manifests (Commenter No. 9). For example, the commenter disputed EPA’s estimate of the number of manifest users. The commenter stated that, for its state to be supportive of the preferred approach, it would need to maintain its own system that it would download to and want legall y bi nding ground rules (e.g., an agreement that EPA will not preempt state rules or manifest sy stems , EPA will follow timeframes for entry

and quality

checks of manifest data, and that all state data needs will be included in the national sy stem regardless of any volume or data entry/follow up issues that it causes EPA). The state would have to review the sy stem’s database before it would be supportive.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 11

**Response:** EPA thanks the commenter for expressing its concerns about the complexities of collecting and processing manifests. EPA agrees that the sy stem will need to be designed to address wide range of manifest practices and needs (e.g., interoperability of e

- Manifest with states’ existing sy stems) and that EPA will coordinate with the states in its design and operation

. EPA has made a number of efforts to better understand state and industry needs for the s ys tem and the potential complexities of collecting and processing manifest data

. EPA has compiled significant feedback through various outreach efforts , such as national meeting s and webinars in which there was significant state and industry involvement , and Federal register notices requesting comments on aspects of the e

- Manifest

. EPA will direct its contractor to address industry and state needs and e xpectations when it designs, develops and operates the s ys tem. Further , EPA believes the states have already begun to consider necessary changes to their environmental programs to enable electronic reporting (e.g., statutory and budgetary

changes) , such as through the National Environmental Information Exchange Network. The Exchange Network is a secure Internet

- and standards

- based approach for exchanging environmental data. EPA, state environmental departments, and U.S. tribes and territories have been partnering to build the Exchange Network to increase access to environmental data. Currently , there are 51 state nodes, 12 tribal nodes and 2 t erritory nodes on the Exchange Network. As of May 2013, all 50 states, 90 tribes and five territories had rece ived EPA Exchange Network grants. In this view, the Exchange Network provides a highly proven and widely

compatible method for the exchange of electronic data between EPA and the states. In addition, under the Central Data Exchange (CDX) , which is EPA’s p oint of entry for environmental data submissions to the Agency , there are currently 64 data flows that are receiving data from EPA, state , Tribal, and i ndustry users. EPA will use this experience to ensure that state needs and expectations are met as appropriate

. Finally , EPA acknowledges the difficulty in estimating the number of potential manifest users because of a lack of data on certain types of users (e.g., small quantity generators). Over the ye ars, EPA has improved its approach for estimating the size of the manifest user population, but acknowledges that some limitations still exist. EPA will continue to refine its estimates, but is confident that its current estimates provide a realistic and helpful understanding of the complexities and challeng es in developing and operating the s ys tem. Since e

- Manifest will result in a national solution for manifest data reporting, it will probabl y not be possible to accommodate every state' s current data needs or current timeframes. A national solution entails that there be consistent procedures and practices, some of which may deviate from particular states' current practices and procedures. This is to be expected, and we will discuss thes e areas closely with the states. Also, the final rule does preempt states from maintaining electronic manifest requirements that are inconsistent with federal requirements. A national electronic manifest program cannot succeed unless it is implemented co nsistently in all the states, and the e

- Manifest Act requires this consistency

.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 12

**Comment:** We heard from three commenter s (two states and a state association) with the questions and concerns listed below (Commenter No s . 3, 9 and 21 )

 Could states collect th e manifest directl y and share it with the e

- Manifest via the CDX?
 Who will be responsible for reviewing the manifests for quality and following up to resolve problems?
 Has EPA considered all of the costs associated with data entry and correction of errors?
 EPA’s approach would require submission of only the designated TSDF copy and thus not fully track cradle

- to
- grave concerns (e.g., situations where the shipment does not arrive at the designated TSDF or where the TSDF fails to submit a copy).
 How will the state components of the manifest be enforced? The commenter stated that it is unclear if EPA or the states would be responsible for conducting investigations and enforcement.
 What happens if the n ational sy stem does not work and states have dismantled the ir programs?
 There is concern with the timeliness and quality of the data under the proposed National sy stem versus the quality of the existing state data
 The EPA notice does not address future modifications such as a decision by EPA to reduce the amount o f data it collects

.  The sy stem will be developed with heav y input and perhaps undue influence from larger companies and states at the expense of the needs of states currently implementing, manifest databases

.  How long is EPA planning on retaining images of the manifests scanned? The commenter recommends that the images be saved indefinitely

.  State agencies will need to retrieve data from the database b y generator (not by TSDF or transporter).
 EPA needs to ensure that the e

- Manifest provides hazardous wast e data to states in an appropriate and timely

format in order to meet state data needs.
 The sy stem must be flexible enough to handle state

- only manifests.
 Some states currentl y obtain the image of manifests to capture certain elements (e.g., signatures) an d the e

- Manifest also should capture images or provide other suitable methods for ensuring manifest enforcement.
 Will the national system assign each CESQG in the country with a unique identification number or other identifier in order for the states to re trieve generator

- specific data? **Response:** EPA thanks the commenters for their many suggestions and questions about the e

Manifest and emphasizes that states’ acceptance of the e

- Manifest is essential. EPA agrees with the commenters’ requests and suggestions that the e

- Manifest must generally satisfy states’ needs and expectations and agrees that the Agency and states need to coordinate on the collection, processing and correction of manifes t data

.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 13

EPA is clarifying that most of the se issues and questions raised by these commenters will be addressed not through EPA’s e

- Manifest final rule, but through EPA ’s procure ment of a contractor to design, develop and operat e the s ys tem. The purpose of the e

- Manifest final rule is essentially

to establish new requirements that will authorize the use of electronic manifests as a means to track off

- site shipments of hazardous waste from a generator’s site to the site of the receipt and dis position of the hazardous waste. The rule establishes that electronic manifest documents obtained from the Agency ’s national e

- Manifest sy stem and completed in accordance with the rule’s provisions , are the legal equivalent of the paper manifest forms that are currentl y authorized for use in tracking hazardous waste shipments. See the final rule for additional information. In anticipation of the procurement, EPA has held numerous forums to provide information and solicit feedback from state and industry manifest users. This includes, for example, national meeting s and webinars with state and industry manifest users as well as other outreach efforts , including Federal Register notices of data availability in 2006 and 2008

. In addition , EPA conducted three s ys tem requirements meetings with stakeholders during February

– March, 2013. Through these outreach efforts, EPA has asked state and industry manifest users to describe their needs and desires for the sy stem. In addition, EPA has b een conducting market research and other anal ys es to identify and examine existing and future technologies that could be used to satisfy

industry and state needs and expectations for electronic manifesting. Based on th e user feedback and other information that EPA has compiled , the Agency will direct the contractor to design, develop and operate a s ys tem that satisfies industry and state needs and expectations for the e

- Manifest sy stem , including those raised b y the commenters. Several of the comments summ arized above are , however, addressed b y the e

- Manifest Act or the final rule. First, the e

- Manifest Act and final rule are clear that the national sy stem will be the collection point for electronic manifests and the final TSDF copy of paper manifests that continue in use. So, states will not be collecting manifests directl y from waste handlers; rather, the waste handlers will submit manifests to the system, and the sy stem will distribute the manifests and their data to the state sy stems. The one excepti on is generator copies of paper manifests. If states desire to collect the generator copy of paper manifests that continue in use after the implementation of e

- Manifest (in order to verify all cradle

- to
- grave concerns that might arise with paper manifests ), they may do so, as the national sy stem will not collect these generator copies. Second, under the terms of the e

- Manifest Act and this final rule, the e

- Manifest and supporting regulations will initially

be enforced b y EPA , until such time that the authorized state programs adopt fully

consistent state regulations for e

- Manifest and are authorized for the program revisions. At such time, states (as well as EPA) will then be able to enforce the state’ s authorized program revisions for e

- Manifest regulations.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 14

Any future modifications to e

- Manifest, including decisions either to increase or decrease the amount of data collected on the manifest, would likely require a regulatory

change, and the development of a revised Information Collection Request (ICR) documenting the change. This final rule does not alter the current requirement that manifest copies be retained for at least three ye ars for RCRA compliance purposes. As a matter of s ys tem planning and design, however, the Agency

will discuss with stakeh olders whether an extended storage or archive service should also be supported (for an additional fee) b y e - Manifest. Finally , the sy stem will be developed with the flexibility to track state

- onl y manifests. The e

Manifest Act requires that the sy stem be developed to include the tracking of these wastes, and the final rule codifies this requirement in the § 260.10 defini tion of “user of the electronic manifest sy stem.” **Comment:** We heard from one commenter (state agency) stating that TSDFs must be required to submit copies of manifests (paper, scanned, and e - Manifest copies) to states that require such submittals under state regulations (Commenter No. 9) . This way states may

choose to maintain their own databases using data directl y f rom the TSDFs rather than relying on the national database for data. **Response:** EPA thanks the commenter for its views on state s’ collection of manifest data during operation of the e

- Manifest. As discussed in the responses above, EPA will direct its contractor to develop and operate an e

- Manifest s ys tem that meets the diverse needs of industry and state manifest users. The e

- Manifest Act and this final rule contemplate a national sy stem that will be the exclusive reporting hub for electronic manifests, a s well as for the submission of final paper copies from designated facilities. The Agency fully expects states to retain their own manifest data bases, but we expect that e

- Manifest will be the exclusive means for reporting manifests to EPA and the states . The e

- Manifest Act and the final rule include state

- only wastes and paper manifest reporting within the scope of the national sy stem in order to avoid the necessity of maintaining duplicative reporting requirements. With the exception noted above for g enerator copies of paper manifests (which the s ys tem will not collect), states will be precluded from requiring manifest cop y s ubmissions directly to the states, independently of e

- Manifest. **Comment:** We heard from one commenter recommending that E PA address whether the Agency and state regulators will issue notices of violations for errors found b y them on manifests during their reviews of data submitted (Commenter No. 15). In addition, the commenter asked if regulators will issue notices of violatio n (NOVs) for errors found b y the receiving facility or the shipper and self

- disclosed by

them and whether both the initial data submittal and any subsequent corrections will be treated as self

- disclosures and will, therefore, be afford ed some protection ag ainst violations. **Response:** EPA thanks the commenter for its suggestion that EPA clarify how regulators will address manifest violations that are found in the system. EPA expects that states currentlyEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 15

collecting manifests from waste handlers will continue to do so via the e

- Manifest sy stem when operational. EPA further expects that , for the most part, states will handle manifest errors as they currently do. State programs have much experience with identifying potential manifest errors and dealing with th e regulated community on correcting these errors. While more egregious errors or patterns of errors suggestive of inattention to manifest requirements could give rise to enforcement actions, enforcement policies will be a matter for the EPA enforcement of fices and state agencies to address. This is not an appropriate topic for this final rule. M anifest users should consult their state agency for information about its compliance monitoring and enforcement policies

. **Comment:** We heard from three commenters who stated that the e

- Manifest would obviate the need for the state s to collect manifests separatel y and that EPA should make sure state s eliminate their requirements for the collection of manifests (Commenter Nos. 6 , 18 , 19 ). They stated that s ubmission of copies to states would be unnecessary as states could access this information from the centralized e - Manifest sy stem. M aintaining state requirements for submission of paper manifest copies would defeat the primary goal of the e - Manifest program (i.e., to reduce paperwork burden and duplication). One of the commenter s also suggested that EPA should encourage states to reassess whether fees associated with current paper manifest collection and processing requirements should be reduced. (Commenter No. 19). **Response:** EPA thanks the commenters for their views on state s’ collection of manifest data during operation of the e

- Manifest. EPA agrees that the e

- Manifest will make manifest data available to the states immediately for their own use (e.g., they will not be restricted from manifest data while the shipment is in progress). The e

- Manifest Act and this final rule contemplate a national s ystem that will be the exclusive reporting hub for electronic manifests, as well as for the submissio n of final paper copies from designated facilities. The Agency fully expects states to retain their own manifest databases, but we expect that e

- Manifest will be the exclusive means by

which users will submit manifests to EPA and the states. However, as there may still be some involvement by the states in processing manifest data in their datas ys tems, and in conducting quality

assurance activities, it is premature to conclude that there will be no state fees necessary . Also, the collection of generator copies of paper manifests may be required independentl y b y the states, however, as the national system will not collect the generator cop y of paper manifest that continue in use after e

- Manifest is implemented. EPA will examine this issue close ly

during the development of the Fee Rule, and it will clearl y be our objective to coordinate the federal and state fees so that there is no duplication. **2. 0**  **Public Access to Electronic Manifests and CBI Claims for Manifest Data 2**  **. 1**  **General Comment:**  We heard from eight commenters expressing general support for EPA’s position that manifest data are not confidential business information ( CBI ) (Commenter Nos. 2 , 3 , 9, 10 , 14 ,EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 16

16 , 20 , and 22 )

. 1 One of these commenters indicated that it surveyed a number of states and found that most do not honor CBI claims for manifests (Commenter No. 3). The commenter stated that the states do not believe manifest data in the sy stem should have CBI protection

. Another commenter expressed support based on a number of points (e.g., confidential information in their state can already be obtained through secondary sources and methods), but acknowledged there could be homeland security issues related to making e - M anifest data public (Commenter No. 16). The commenter believes there needs to be a balance between such safeguards and making the information public. **Response:** EPA thanks the commenters for their support of the Agency ’s position that manifest data shoul d not be handled as confidential business information. Refer to other responses in this section for a detailed explanation of EPA’s rationale for this position. **Comment:** We heard from one commenter expressing concern about EPA’s assertion that only one state is known to allow for claims of CBI for manifest information (Commenter No. 17)

. The commenter asserts that this number is much greater as many states do not collect manifests and many of the remaining states that do collect manifests do so in the paper format that is difficult to search and collate. The commenter continues that, in reality , any entity that was looking to assemble a competitor’s customer list from manifest data must visit each state that collects manifests and collate this data manually and any manifest data that is presently available at the state level varies significantly as to the freshness of the data. **Response:** EPA thanks the commenter for expressing its concern about EPA’s assertions about states that allow CBI claims fo r manifest data. EPA agrees that a number of states do not collect the manifest, but disagrees that it would be difficult for an interested party to obtain manifest data about its competitor based on state records. From its research, EPA found that many manifest records and the information on them linking waste management firms and generators or transporters are already available from a number of states and other legitimate sources. We understand as well that there is a concern about the potential immedi acy of data disclosure through e

- Manifest, whereas the discovery of customer information currently from state agencies may require several months to accomplish. We did not find any significant history

or record of current state practices withholding individual manifests from disclosure on account of customer information, with the narrow exception of a California statute that applies only to certain state

regulated (not RCRA) wastes and the disclosure of transporter/customer information. Refer to the Agency ’s responses below for additional information on its rationale for wh y the manifest data should not be treated as CBI. **2.2 Individual Manifest Records and**  **Commerci al Confidentiality**  **C oncerns** 

1 Note that a number of commenters expressed support for one or more specific aspects of EPA’s position on CBI. Some of these commenters are reflected in this paragraph on general support. Rather, they are reflected in the paragraphs below, which deal wit h specific aspects of EPA’s position.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 17

**Comment:** We heard from six comments expressing support specificall y for EPA’s position that individual manifests are not eligible for CBI claims (Commenter Nos. 4 , 6 , 7 , 13 , 17 , and 22 ). One of these commenters expressed support, but stated that the right of the public to view manifests is not absolute and may be subjected to reasonable restrictions (Commenter No. 22). The commenter believes a reasonable restriction on searches b y the general public would be a per - manifest retrieval fee. However, the commenter noted that a number of foreign entities may search the e

- Manifest s ys tem’s database to gain a competitive advantage. A number of these entities may

be located in countries that do not offer comparabl y open and available information about the customers of their entities (termed “non

- reciprocal states” b y the commenter)

. The commenter suggests that EPA should block searches by persons and entities based in non

reciprocal state s unless and until the state grants reciprocity. **Response:** EPA thanks the commenters for their support of the Agency ’s position that individual manifests should not be treated as CBI . Based on the information available to EPA, the Agency has concluded that information contained in individual hazardous waste manifest records, including any individual electronic manifests that may be submitted and collected electronicall y through the e

- Manifest sy stem, is essentiall y public information and therefore is not eligible under federal law for treatment as CBI. The effect of this decision is that EPA is making a categorical determination that it will not accept any CBIclaims that might be as serted in the future in connection with processing, using, or retaining individual paper or electronic manifests. This decision will apply

prospectivel y from the effective date of this e - Manifest final rule. The Agency ’s CBI determination for individual manifests rests o n several findings. First, the Agency believes that any CBI claim that might be asserted with respect to individual manifest records would be extremely difficult to sustain under the substantive CBI criteria of 40 CFR Part 2, Subpart B and of 40 CFR 260.2, because they must be shared with several commercial entities while they

are being processed and used, and must be made available to emergency responders. A business that still desires to protect commercial information would find it exc eedingl y difficult to protect its individual manifest records from disclosure b y all the other persons who come into contact with its manifests. For example, a business desiring to protect commercial information in the manifest context would need to enter into and enforce non

- disclosure agreements or similar legal mechanisms with all its customers and other third parties and affected interests who might also be named as waste handlers on its manifests or who otherwise might be expected to come into contact with its manifests. Second, as many states now require the submission of generator and/or TSDF copies of manifests, and the data from these manifests are often made publicl y available or reported in federal and state information systems, it is apparent to EPA that many manifest records and the information on them linking waste management firms and generators or transporters are already available from a number of states and other legitimate sources. EPA did not find any significant history or record of current state practices withholding individual manifests from disclosure on account of customer information, with the narrow exception of a California statute that appliesEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 18

only to certain state

- regulated (not RCRA) wastes and the disclosure of transporter/cu stomer information. Since the states have had far more experience than EPA with the collection and disclosure of manifests, EPA is persuaded that the states’ policies in this area are entitled to some deference. Several state programs now deny CBI treatment to data contained in manifest records, while other states have indicated to EPA that they routinely disclose manifest records to the public. EPA has concluded that among the state s that collect manifest copies, it has been the general practice among th ese states for more than 20 years to disclose manifest data without CBI limitations. Our information on state practices suggests that free disclosure has been the predominant practice for dealing with data from individual manifest records among these states, and there have not been significant objections raised by members of industry

to those states’ disclosure practices. EPA is not persuaded that it should reverse this long

- standing policy among those states by

adopting a federal regulation that conflict s with the prevailing state laws and regulations on this issue. Finally , EPA notes that the comments submitted by members of the regulated industry in response to the 2008 notice generall y conceded the point that individual manifests and the data include d in them should not be the subject of CBI claims. These commenters agreed that individual hazardous waste manifests are basicall y treated as public information. For these reasons, EPA believes that individual manifest records and the data contained in them should not be subject to CBI claims, since they are not entitled to protection as CBI in nearl y all states that collect hazardous waste manifests. Since many m anifests are available to the public without restriction in a significant number of states, EPA has determined that data from individual manifests cannot be claimed to be confidential under federal information law. Therefore, EPA is codifying in 40 CFR 26 0.2(c)(1) this categorical determination that the data included in individual hazardous waste manifests cannot be the subject of CBI claims. This regulation will apply

prospectively

to electronic and paper manifests, and to domestic and transboundary

ship ment manifests. In regard to restricting certain foreign competitors from accessing the e

- Manifest, the Agency notes that such restrictions would contradict the Agency ’s primary goal of making the database fully open and transparent to the public . In addition, given the fact that many foreign companies have affiliates in the U.S., it is practically impossible to restrict their access to the sy stem. **Comment:** We heard from one commenters opposing EPA’s position that individual manifests should be availabl e to the public (Commenter No. 12). The commenter believes that data displaying the details of individual manifests should not be anony mousl y downloadable, but should be available onl y to the entities involved with a shipment, and to regulators and emergency

responders for underway shipments. The commenter is concerned from an anti

-EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 19

terrorism/security standpoint that electronic availability of hazardous waste manifest data will increase opportunities for data mining related to types and locations of hazardous wastes. **Response:** EPA thanks the commenter for expressing its concerns about terrorism and security

. EPA has considered these concerns, along with other viewpoints raised b y commenters, and determined that its original approach should be modified. In its original approach, EPA envisioned that manifest data would be available to the public after 60 day s from the start of the shipment . As explained further in the response below, EPA has revised its approach to provide th at manifest data will be publicly available from the sy stem after 90 day s from the date of delivery to the designated facility

. EPA believes this longer timeframe will help to alleviate the commenter’s anti

- terrorism and security concerns. First, e xtending the timeframe to 90 day s from date of delivery to the designated TSDF means that there is significantly less likelihood that the manifest data will become publicl y available while the shipment is in progress. In addition, the extended timeframe increa ses the likelihood that the waste associated with the manifest will have been disposed of (or otherwise re - shipped offsite under a new manifest), making the manifest data less rel evant and useful to parties who could pose security or terrorism concerns. **Comment:** We heard from four commenters expressing support for EPA’s preference to establish a time frame, such as 60 day s, during which there will be limited access to m anifests (Commenter Nos. 4 , 7 , 17 and 19 ). Two commenters supported the 60

- day timeframe, provided that it is not considered a “compliance point” for completion of manifests (Commenter Nos. 4 , 17 ). W e heard from one commenter expressing opposition to EPA’s preference for a 60

- day time frame (Commenter No. 6). The commenter noted that some shipments may take longer than 60 day s and recommended that , as an alternative, EPA release final manifest data after the final record/entry

is completed for a waste shipment and avoid prescribing a timeframe

. **Response:** EPA thanks the commenters for their views on EPA’s preference to establish a time frame, such as 60 day s from the date that the shipment began , during which there will be limited access to manifests. While EPA is categorically denying CBI treatment to both indivi dual manifests and to aggregate manifest collections or reports obtained in response to data queries or requests under the Freedom of Information Act (FOIA) involving manifest data, EPA recognizes that manifest information in its possession may not be ready for general release to the public. In the 2008 notice, EPA proposed that it would not directl y disclose manifest data to the public for at least 60 day s after the start of a waste shipment, as this period would provide necessary time for the shipment to be delivered, for exceptions and discrepancies to be resolved, and for manifest data to be verified or corrected. However, a commenter noted that 60 days may not be a sufficient amount of time in several instances for manifest data to be verified and co rrected. In addition, EPA also receivedEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 20

comments indicating that there are hazardous waste shipments that could pose national security concerns if shipment information were to be made directly available to the general public during transportation, and thi s information were to fall into the hands of those who might use these materials to do harm to other persons or to the homeland. Thus, EPA is adopting in its e

- Manifest final rule its decision to amend 40 CFR 260.2(c)(2) to state that manifests are considered to be in process during the time that they are in transportation to the receiving facility , as well as for a period of 90 day s after receipt when the date are subject to correction and verification

. This 90

- day period for correction and verification o f waste shipment information will be measured from the date of receipt of the waste by the designated facility , rather than from the date of the start of transportation. Until this 90

- day period has passed, unless otherwise required b y federal law, manife sts are not considered complete and final documents and will not be disclosed directl y to the public via on

- line access to the e

- Manifest sy stem. During this period of restricted direct, on

- line access to manifest data, the manifest information in the sy s tem will be fully available to regulators and to emergency responders, These in process manifests would also be available to local governments or police agencies that have been delegated inspection or program implementation responsibilities by their state s . Hazardous waste handlers will also have direct access at all times to those manifests on which they appear as the named handlers of waste shipments. Therefore, the final regulation announces a 90

- day period measured from the date of receipt of hazardous waste shipments during which onl y regulators, emergency responders, and the waste handler entities named on particular manifests will have direct on

- line access to manifest data. EPA will not provide the general public with direct, on

- line access to thes e data during this 90

- day period, but will make such information available to the public to the extent required by other federal law, e.g., FOIA. After the 90

- day period of restricted access has passed, the Agency intends to provide full direct, on

- line a ccess b y the public to all manifest data in the system. EPA believes 90 day s, rather than 60 day s, is an appropriate period of time for restricted access , because this timeframe should provide adequate time to protect the integrity and security of the manifest data during the period of time that the electronic manifest is being processed and ensure that manifest exceptions , discrepancies , and corrections can be reported

. EPA emphasizes that the final rule’s restricti on on access to data for 90 days fro m the date of receipt of waste is limited to EPA in its role as the federal custodian of data in the e

- Manifest sy stem data repository . Since authorized states will receive electronic manifests and data simultaneously

with EPA, this federal regulation do es not affect the states’ laws or regulations on disclosure of manifest data under their public information laws. States that wish, for example, to disclose manifest data to the public more immediately after the receipt of hazardous waste shipments are f

ree to do so under their public information laws, and these states may continue to do so once this regulation is in effect. **2.3 Release of Aggregate Data and Competitive Harm Concerns** EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 21

**Comment:** We heard from five commenters expressing opposition to EPA’s position that aggregate manifest data are not eligible for CBI claims or similar protections (Commenter Nos. 4 , 6 , 7 , 12 and 17 ). Some of these commenters identified several potential concerns, including the ability

of competitors to gain an unfair advantage based on a ‘real time’ access to aggregated/consolidated manifest data and the potential for other entities to use sensitive shipment information in an inappropri ate manner , raising potential security concerns . They asserted that customer lists are considered valuable business information and gave examples of how companies protect such customer information. In addition, they expressed concern that the e - Manifest would make such information available promptly , unlike current methods of obtaining manifest data, which takes longer and would make the data significantly dated. They also disagree d with EPA’s position that, even if aggregate data were deemed CBI, the data could be obtained from the states that do not have FOIA protections . They believe that a number of states have other protections over customer information and some state courts have upheld CBI claims. In addition, three comment er s expressed support for EPA’s alternative approach in which it would redact selected information from a manifest record (e.g., the generator, transporter, or designated facility

identification, shipment

- specific details (dates, codes and weights) ) before granting a FOIA requ est of aggregate data (Commenter Nos. 6 , 7 , 17 )

. Some of these commenters suggested that requesters wanting release from this policy could submit a FOIA request to the Agency , but the manifest submitter would be given notice of the request and an opportun ity

to oppose disclosure as required by fundamental fairness and Executive Order 12,600. One of these commenters clarified that EPA should redact any information from a manifest record that is to be made public via a FOIA request that is not necessary to satisfy the stated purpose of the request (Commenter No. 6). Finally , on e commenter suggested that data otherwise downloadable in aggregate could be made available onl y after one year following shipment receipt at the destination facility (Commenter No. 1 2). The commenter suggested one ye ar because this is ty pically the maximum storage time at a permitted TSDF and allows time for recycling, treatment, and disposal; and therefore, the information is useless to would

- be terrorists/ saboteurs. The commenter stated that the aggregate data should not reveal details of individual manifests for one year. **Response:** EPA thanks the commenters for their concerns about EPA’s position that aggregate manifest data should not be treated as CBI

. While EPA understands i ndustry’s comments and concerns regarding the potential harm to a company ’s competitive position if aggregate data from multiple manifests could be obtained efficiently from EPA through the sy stem or under a FOIA request, the Agency is not persuaded b y the comments that EPA should treat aggregate manifest data obtained from the sy stem as confidential business information. The e

- Manifest sy stem is being developed so that electronic manifests and data are available to the authorized states at the same time they are available to EPA. EPA now understands from state comments and from state responses to survey s and requests for clarification that among the states thatEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 22

collect and track manifests, the laws and regulations of many of these states is not to recogni ze any CBI claims when processing requests from the public for aggregate manifest or waste receipt data. EPA identified some 21 states from questions or survey s addressing state policies with respect to processing requests for data from both state manife st tracking s ys tems and state waste receipt information managed in the states’ annual report data s ys tems. Thus, a large amount of aggregate information, including information on facilities and their generator customers, would be available from these 21 s tates without CBIrestrictions. These states’ disclosure policies will still apply after states begin to acquire their manifest data from the e

- Manifest sy stem. Since a substantial amount of aggregate data could be obtained b y the public through these st ates, EPA is not convinced that it should accord such information confidential status under federal information law. In addition, EPA cannot objectively determine whether a particular s ys tem search or FOIA request would entail the disclosure of a company’ s customer list. EPA has not received comments in response to the 2008 notice to help the Agency with this determination, other than comments from industry

relying on a “mosaic” theory to support their argument that the e

Manifest sy stem could dis close CBI. The mosaic theory is premised on the notion that information already available to a requestor, when combined with information it might obtain from the government, may in total amount to a customer list. The problem posed by this argument is th at EPA cannot possibly know how much customer information a particular requestor already has available from other sources, or whether a relatively small or large amount of additional information is needed from e

- Manifest to enable that requestor to assembl e a full customer list. The mosaic theory does not provide EPA with any practical or objective basis for recognizing CBI in the e

- Manifest sy stem. In summary , EPA points to several reasons for its decision that aggregate manifest data should not be treated as CBI: 1) the states’ current and long

- standing policies generally favoring disclosure of all manifest data, 2) the availability of much of this aggregate information from state data s ys tems and the RCRA Biennial Report, 3) the difficulty of identifying objectivel y when a customer list would be disclosed to a competitor , and 4) EPA’s belief that the competitive sensitivity

of aggregate data can be addressed sufficiently by restricting direct public acces s to “in process” manifest data. These findings do not support the policy of treating aggregated manifest data as CBI in the manner advocated b y the regulated industry. Therefore, EPA’s final position is to categorically exclude aggregate manifest data o btained from the e

Manifest sy stem from CBI coverage. While EPA is rejecting the comments that requested CBI handling of aggregate manifest data, EPA emphasizes that the restrictions on access included in the final rule should mitigate greatly the concer

n that the e

- Manifest sy stem may be data mined by

a waste handler’s competitors for sensitive customer list information. Under th e final regulation s , the s ys tem will not provide direct public access to manifest data during the time that manifested waste s hipments are “in process,” which covers the time that wastes are en route to the destination facility and a period ofEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 23

90 day s after the receipt of the wastes by the destination facility . During this period that waste shipments are in process, only the was te handlers named on a particular manifest, RCRA regulators, and emergency responders will be able to gain access to these manifests directl y from the sy stem. Commenters advised EPA that current state agency disclosures of manifest data from paper manifes t tracking programs do not raise CBI issues for the industry , because it normally takes several months for the states to disclose the data, and by this time, the customer list sensitivity

has diminished. By

restricting public access though the sy stem to these data for the transit time and an additional 90 day s post
- delivery (unless otherwise required by federal law) , EPA believes that industry members will likewise be shielded from disclosure of their customer information b y the sy stem for several months. Thus, there will not be the immediacy of data access that troubled those commenters who argued that the immediacy of data mining under e

- Manifest was the distinguishing feature that required CBI treatment of aggregate e

Manifest information. EPA rejects the comment that the period of restricted access should exten d to one year from the date of receipt b y the designated facility. While EPA understands that the one year period corresponds to the time that some Land Disposal Restricted hazardous wastes may be stored prior to treatment, EPA believes that one ye ar would be too long a period to restrict public access to manifest data. EPA believes that a 90 day period of restricted access to manifest data (unless otherwise required b y federal law) results in a more reasonable accommodation of the industry and public interests in the data, particularl y given that paper manifest data have been generall y made available to the public without restriction from state agencies after several months. With a 90

- day peri od of restricted public access through the sy stem, the public and the industry members will be no worse off than they are currently

in their dealings with the states' disclosure practices, insofar as gaining access to data that could potentially raise comp etitive concerns if immediately

released to the public. **Comment:** We heard from one commenter expressing concern with EPA’s alternative approach to limit responses to requesters who ask for 50 or more manifests, as prima facie evidence that the requester is seeking or could assemble protected customer lists (Commenter No. 7). The commenter believes this ty pe of approach may

be ineffective because data mining companies could evade the restrictions (e.g., by making multiple requests for 49 forms). **Response:** EPA thanks the commenter for its concern about EPA’s alternative approach. EPA agrees that this approach has several limitations , as the commenter suggests

. This approach is unnecessary , however, gi ven EPA’s final decision to categorically exclude aggregate manifest data from CBI coverage

.EPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 24

**3. 0**  **Comments that are Outside the Scope of the 2008**  **Notice** EPA has determined that a number of comments received b y the Agency are outside the scope of the 2008 notice. These include comments on aspects of the e

- Manifest for which EPA did not seek comment. A lthough EPA appreciates this feedback, it has not prepared a detailed response for each comment. Rather, EPA has list ed the issues raised in the se comments and provides a brief response :

 Support for an optional e

- Manifest (Commenter Nos. 2, 3, 5, 6, 14, 18, 19, and 22).
 Support for making the e

- Manifest mandatory (Commenter No. 4).
 Support for a centralized, unified e

- Manifest (Commenter Nos

. 2,4, 5, 6, 7, 11, 14, 17, 18, 19, and 21)
 Support for phase

- in of e

- Manifest (Commenter Nos. 2, 3 and 17).
 Support for a s ys tem that meets user and regulator needs in timely manner (Commenter Nos. 3, 6, 7, 9 and 12).
 Support for a sy stem that handles state
- specific manifests and wastes ( Commenter Nos. 3 and 9).
 Support for sy stem that ensure s enforceability of manifes t comparable to paper forms ( Commenter Nos. 3 and 9).
 Request for electronic manifest format to look exactly like the paper manifest (Commenter No. 3).
 Support for the transporter to carry the paper manifest in the truck (Commenter No. 3).
 Support and ques tions related to elimination of the Biennial Report and other paperwork (Commenter Nos. 3, 5, 8, 15, and 19).
 Concerns about how the e

- Manifest would handle imports and exports (Commenter No. 3).
 Request that authorized state s not be required to get re

- authorized to implement the electronic manifest (Commenter No. 3).
 Request for EPA funding to support state s’ changes to their manifest data processing sy stems to accommodate data from the e

- Manifest (Commenter No. 3).
 Concerns, questions and suggestions abo ut user fees for e

- Manifest (Commenter Nos

. 1, 5, 7, and 17).
 Encouragement to EPA to reach out to regulated industry and state s (Commenter No. 7).
 Concerns about coordinating the e

- Manifest with U

. S

. DOT requirement for carrying a paper cop y of the manife st or shipping paper (e.g., the potential for dual paperwork sy stems) (Commenter Nos. 9 and 18).
 Request for EPA to allow recordkeeping and mailing of scanned image of the paper manifest instead of paper copy itself (Commenter No. 12). **Response:** EPA thanks the commenters for their many suggestions, concerns, and questions about the e

- Manifest. Over the ye ars, EPA has prepared comment
- response documents for otherEPA Final	Response	to	Comment	Document : November	12 ,	2013 Page 25

Agency notices on the e

- Manifest that include responses to the above comments. Pleas e refer to the following documents for Agency responses:

 “Response to Comments Document; Hazardous Waste Management Sy stem: Modifications of the Hazardous Waste Manifest Sy stem; Proposed e

- Manifest Sy stem ( P ublished on May

22, 2001)

. ”
 “Response to Comments Document; Hazardous Waste Management Sy stem: Modifications of the Hazardous Waste Manifest Sy stem; Notice of Data Availability and Request for Comment ( P ublished on April 18, 2006)

. ” In regard to comments on user fees, the Agency intends to publish in the future a separate Fee Rule to announce the user fee schedule for manifest related activities. This regulation will clarify issues about the formulation and collec tion of fees

. **Table of Organizations Comment ing**  **on the Notice and Commenter Numbers Commenter**  **No. Commenter**  1 Alli ance of Automobile Manufactur ers 2 API 3 A ssociation of State and Territorial Solid Waste Management Officials (ASTSWMO) 4 C ement Kiln Recycling Coalition (CKRC) 5 The Dow Chemical Company 6 DuPont 7 Environmental Technology Council (ETC) 8 Charles Lister 9 Maine Department of Environmental Protection 10 Michigan Department of Environmental Quality 11 National Automobile Dealers Association (NADA) 12 Department of the Nav y 13 State of New Jersey Department of Environmental Protection 14 New York State Department of Environmental Conservation 15 Oak Ridge National Laboratory 16 State of Ohio Environmental Protection Agency 17 Safety

- Kleen Sy stems Inc. 18 Tennessee Valley Authority (TVA) 19 Utility

Solid Waste Activities Group (USWAG) 20 Visionary

Solutions, LLC 21 Wisconsin Department of Natural Resources Waste and Materials Management Program 22 World Resources Company (WRC)