[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Proposed Rules]
[Pages 10204-10210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 263, 264, 265, and 271

[EPA-HQ-RCRA-2001-0032; FRL-8534-1]
RIN 2050-AG20


Hazardous Waste Management System; Modification of the Hazardous 
Waste Manifest System

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of data availability and request for comment.

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SUMMARY: This notice announces the availability of additional 
information on the electronic manifest (e-Manifest) project. 
Specifically, EPA's Office of Solid Waste and Emergency Response 
(OSWER) has made significant progress on the e-Manifest project since 
the publication of the April 18, 2006 public notice, which announced 
and requested comment on our intention to develop a centralized web-
based information technology (IT) system that would be hosted on EPA's 
IT architecture. However, a few issues raised by commenters in response 
to the April 2006 public notice require further analysis on our part, 
as we make decisions concerning the e-Manifest system.
    We received strong support in response to the April 2006 public 
notice to establish a national web-based system funded through user-
fees. In addition, commenters generally supported our position that use 
of e-Manifests should be at the election of the users rather than 
mandatory. However, some commenters expressed concern that an optional 
system would create dual paper and electronic systems. Furthermore, 
industry and state comments in response to our position to allow 
confidential business information (CBI) claims for e-Manifests 
differed. Therefore, as explained in this notice, we are soliciting 
additional comment on EPA's position on these two issues. We remain 
committed to finalizing a federal regulation, once the necessary 
legislation is enacted, that will authorize the regulated community to 
use electronic manifests as the legal equivalent of paper manifests, 
and will consider the comments received on this notice, as well as 
other comments received from previous actions, before we make a final 
decision.

DATES: Comments must be received on or before April 11, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2001-0032 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: Comments may be sent by electronic mail to: [email protected], Attention Docket ID No. EPA-HQ-RCRA-2001-0032.
     Fax: Comments may be faxed to 202-566-0272, Attention 
Docket ID No. EPA-HQ-RCRA-2001-0032.
     Mail: Comments may be sent to Environmental Protection 
Agency, EPA Docket Center (EPA/DC), Resource Conservation and Recovery 
Act (RCRA) Docket, 5305T, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460, Attention Docket ID No. EPA-HQ-

[[Page 10205]]

RCRA-2001-0032. Please include a total of two copies.
     Hand Delivery: Comments may be hand-delivered to the 
Public Reading Room, EPA West Building, Room 3334, 1301 Constitution 
Avenue, NW., Washington, DC, Attention Docket ID No. EPA-HQ-RCRA-2001-
0032. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. Please include a total of two copies.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2001-0032. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be captured automatically and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http:// www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is 202-566-0270. Copies cost $0.15/page.

FOR FURTHER INFORMATION CONTACT: For further information regarding 
specific aspects of this document, contact Richard LaShier, Office of 
Solid Waste, (703) 308-8796, [email protected], or Bryan Groce, 
Office of Solid Waste, (703) 308-8750, [email protected]. Mail 
inquiries may be directed to the Office of Solid Waste (OSW), (5304W), 
1200 Pennsylvania Avenue, NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Rule Apply to Me?

    This rule could affect up to 223,000 entities in upwards of 600 
industries involved in shipping approximately 12 million tons of RCRA 
hazardous wastes annually, using 5.0 million EPA Uniform Hazardous 
Waste Manifests (EPA Form 8700-22 and continuation sheets EPA Form 
8700-22A). These entities consist of about 15,000 RCRA large quantity 
generator (LQG) waste shippers, plus about 146,000 RCRA small quantity 
generator (SQG) waste shippers, plus about 350 waste transporters, plus 
about 1,500 waste receiving treatment, storage, disposal facilities 
(TSDFs), plus 60,000 conditionally-exempt small quantity generators 
(CESQGs),\1\ plus 23 state governments known to collect paper manifests 
as of 2004.\2\ If you have any questions regarding the applicability of 
this rule to a particular entity, consult the people listed under FOR 
FURTHER INFORMATION CONTACT.
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    \1\ CESQGs are exempt from Federal RCRA hazardous waste 
manifesting regulations, but at least one state (CA) requires RCRA 
CESQGs to use the EPA manifest for hazardous waste shipments. We 
have included state-regulated CESQGs in the count of possible 
affected entities for this notice in order to provide a complete 
economic impact estimate, not just a narrower Federal waste impact 
estimate, because the operational scope of our planned e-manifest 
system will encompass manifest processing for state-regulated waste 
shipments, not just Federal-regulated hazardous waste shipments.
    \2\ As surveyed in 2004 with 49 states providing responses, 23 
state governments currently collect completed paper manifests 
(source: ``Analysis of Site Identification Questionnaire Collected 
in June and July of 2004'', August 23, 2004, compiled by Paula 
Canter, Ohio EPA Division of Hazardous Waste Management, for the 
Association of State & Territorial Solid Waste Management 
Officials). The Michigan Department of Environmental Quality 
surveyed state government agencies on this question in January 2007, 
but only received 29 responses, so the older but more comprehensive 
2004 survey is cited here. EPA estimates that these 23 states 
account for 0.74 million (35%) of the 2.14 million Federally-
regulated hazardous waste paper manifests per year, and 0.89 million 
(32%) of the 2.82 million state-regulated waste manifests collected 
per year, representing a total 1.63 million (33%) of the 4.96 
million total paper manifests completed per year (based on 
extrapolation from the 2005 Federal hazardous waste shipment tonnage 
reported in EPA's 2005 RCRA Hazardous Waste Biennial Report).
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B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit CBI information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
the procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
    The contents of this notice are listed in the following outline:

I. Background of E-Manifest System
II. Final Rulemaking Efforts
    A. Submission requirements to system for paper manifest copies

[[Page 10206]]

    B. Public access to electronic manifests and CBI claims for 
manifest data
III. Request for Comments

I. Background of E-Manifest System

    On May 22, 2001, EPA published a notice of proposed rulemaking 
(NPRM) that proposed several major revisions to the hazardous waste 
manifest system, including proposed revisions aimed at adopting an 
electronic manifesting approach that would allow waste shipments to be 
tracked electronically, thereby mitigating the burdens and 
inefficiencies associated with the use of paper manifest forms (66 FR 
28240).
    Although comments generally supported an electronic tracking 
scheme, several significant issues were raised that necessitated 
further analysis and stakeholder outreach prior to adopting a final e-
Manifest regulation. As a result, EPA held a two-day public meeting on 
May 19-20, 2004, to discuss and obtain public input on how best to 
proceed with selecting and implementing the future direction of the e-
Manifest. We heard from both the hazardous waste management industry 
and state government attendees at the public meeting that there is a 
strong consensus (a) in favor of establishing a nationally centralized 
e-Manifest system that would consistently and securely generate and 
process electronic manifests, and (b) that system users would be 
willing to pay reasonable service fees to fund the development and 
annual operation of the system. The full proceedings for the May 2004 
public meeting have been posted on our EPA Web site at http://www.epa.gov/epaoswer/hazwaste/gener/manifest/e-man.htm.
    On April 18, 2006, we published a Notice of Data Availability 
(NODA) to request comment on our preferred approach for electronically 
completing and transmitting manifests through a national, centralized 
e-Manifest system that would be established and maintained through 
user-fees. Comments strongly supported EPA's suggested approach, but 
also raised a few issues about which we are seeking further comment. 
Specifically, waste management industry commenters questioned whether 
the resulting dual paper and centralized e-Manifest system would 
generate complexity and burden that would frustrate the transition to 
electronic manifests and thus, undermine the paperwork burden cost 
savings goal for the e-Manifest. State agency comments indicated that 
their support for electronic manifesting was contingent upon there 
being a means to ensure that a complete national set of manifest data 
would be established, including data from both electronic manifests and 
any remaining paper manifests each year. According to these commenters, 
a centralized system that did not also contain the data from paper 
manifests would not present a complete picture of all RCRA and state 
regulated hazardous wastes. Consequently, such a system could result in 
some states having to maintain duplicative processes and systems to 
collect and track the data from the remaining paper forms. Thus, both 
industry and state commenters urged EPA to develop the final rule so as 
to lessen the effects of dual paper and electronic manifest systems.
    The April 2006 notice also raised the issue of potential claims of 
CBI regarding the manifest data. Some state government commenters 
generally did not support CBI claims for manifest data and deemed 
manifests to be public records. Further, these commenters also 
indicated that their states have state legislation or policies which 
bar CBI claims with respect to manifests. On the other hand, comments 
from the waste management industry supported claiming manifest data as 
CBI. These commenters were especially interested in protecting customer 
information from being mined from electronic manifests by competitors. 
The industry members are concerned that the availability of this 
information electronically will enable competitors to obtain more 
immediate and efficient access to their customer information. Public 
access to paper manifests is currently limited by a number of factors: 
(a) EPA does not collect completed paper manifests, except for export 
and import manifests from transboundary waste shipments, so public 
access requests to the vast majority of completed paper manifests must 
be made to state governments, (b) as of 2004, only 23 state governments 
collect completed paper manifests representing only about one-third of 
the 5.0 million national manifests annually; and (c) although EPA's 
RCRA Hazardous Waste Biennial Report provides national hazardous waste 
shipment and waste receipt data which reveals EPA ID numbers, company 
names and addresses for waste shippers and waste receivers, the lag-
time for public access to the Biennial Report data is at least one year 
\3\ after any given data reporting year.
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    \3\ EPA's published schedule for data reporting and report 
implementation milestones for the 2007 RCRA Hazardous Waste Biennial 
Report, is for completion of the 2007 data year report by December 
2008, which represents exactly a one-year lag-time between public 
access (i.e., data availability over the internet) and the data year 
(2007); the 2007 Biennial Report schedule is published at http://www.epa.gov/epaoswer/hazwaste/data/biennialreport/index.htm. 
However, the December 2008 scheduled completion of the 2007 Biennial 
Report database represents a three-year lag period relative to the 
prior biennial data year 2005.
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II. Final Rulemaking Efforts

    We are currently developing the final rule that will authorize the 
use of electronic manifests, and will address scope and other policy 
issues. However, the promulgation of this rule is contingent upon the 
enactment of legislation providing EPA the authority to collect user-
fees to fund the development and operation of the system. Nevertheless, 
we continue to move forward with the rulemaking in anticipation of 
enactment of the needed legislation.
    Based on the comments received in response to the April 2006 public 
notice regarding the merits of an optional electronic manifest approach 
and the CBI issue, we are announcing and requesting comment on our 
preferred approaches for addressing submissions of paper-based 
manifests to the electronic manifest system and for addressing CBI 
claims for manifest data. These approaches are discussed below.

A. Submission Requirements to System for Paper Manifest Copies

    EPA agrees with waste management industry and state government 
commenters' concern that it would not be efficient to have an 
electronic manifest system collecting data only from electronic 
manifests, while another paper-based system addresses the data only 
from paper manifests. Therefore, we believe that the system being 
designed should be a unified system for processing and distributing 
data from all manifests, including data from paper manifests. We 
considered several options aimed at simplifying the process for 
collecting paper forms and at ensuring that the data collected from 
both electronic manifests and paper forms could be efficiently 
processed so that a comprehensive set of manifest data would be 
available to users and regulators. We have identified a preferred 
approach that we believe provides the most efficient solution to the 
dual paper/electronic systems problem.
    Under our preferred approach, the final destination facility (i.e., 
designated final TSDF), for each hazardous waste shipment involving a 
paper manifest, would be required to submit the top copy (i.e., Page 1 
of the 6-page set) of the paper manifest form to the e-Manifest system 
operator within 30 days of receipt of the waste shipment. While the

[[Page 10207]]

e-Manifest system is not yet designed, we envision that the designated 
facility could mail a copy to the e-Manifest system operator or could 
transmit an image file to the EPA system so that the e-Manifest system 
operator could key in the data from the paper copies or image files to 
the data system. Alternatively, the designated facility could submit 
both the image file and a file presenting the manifest data to the 
system in image file and data file formats acceptable to the e-Manifest 
system operator and supported by the Central Data Exchange (CDX). For 
paper copies mailed to the system by designated facilities, the e-
Manifest system operator would create or obtain an image file of each 
such manifest, and store it on the system for retrieval by state or 
federal regulators. The e-Manifest system operator also would key in, 
electronically scan using an optical character recognition (OCR) 
device, or otherwise transfer the federal- and state-regulated waste 
data from these paper copies to the e-Manifest system. By having all 
manifest data in electronic form, EPA could extract any data regarding 
RCRA hazardous wastes for inclusion in its data systems, while the 
states could pull off data from the system concerning both federally 
regulated RCRA and state-regulated wastes for processing in the states' 
own tracking systems.
    We envision that designated facilities would be required to pay a 
fee to the system operator for processing the data from these final 
copies of the paper forms, and the fee would presumably vary with the 
type of submission (mailed copy, image file, or image plus data file), 
as these submission types would likely present a different level of 
effort insofar as the processing steps required to enter the form data 
into the system. It is likely that the fee paid by the designated 
facility would be passed on to the generator (i.e., the designated 
facility's customer). We estimate that the paperwork burden cost to 
TSDFs for submitting a copy of the final manifest could be $1.95 per 
paper manifest, for an incremental (i.e., over current baseline) annual 
cost to TSDFs of between $1.6 million and $6.5 million per year. In 
addition, we estimate the possible fee that EPA's e-Manifest system 
operator (or other EPA-designated e-Manifest affiliate) might charge 
TSDFs for receiving paper manifests and for transferring (i.e., imaging 
and keypunching) paper manifest data to the e-Manifest system, could be 
between $0.25 to $0.75 per paper manifest, for an incremental (i.e., 
over current baseline) annual cost to TSDFs of between $0.2 million and 
$2.9 million. On a combined basis, we estimate these two components of 
paper manifest processing incremental costs to TSDFs could total 
between $1.8 million and $9.4 million annually, representing an average 
incremental cost to TSDFs of $2.20 to $2.70 per paper manifest. We 
invite public comment on our approach and the cost estimates.
    We believe such an approach simplifies manifest copy submissions 
for the regulated TSDFs, who in the future would only need to provide 
designated facility copies to one location--the national centralized e-
Manifest system--rather than supply copies to the numerous state 
agencies that now collect a copy of the final manifest. Further, it 
focuses the federal collection effort on a copy of the final paper 
manifest forms from the designated facilities, which provide the best 
accounting of the quantities and types of hazardous wastes that were 
actually received for management. We believe that providing a means to 
collect a complete set of hazardous waste receipts data from RCRA TSDFs 
(the merged set of paper and electronic manifest data), also may in the 
future provide EPA with the means to replace biennial reporting by 
TSDFs of waste receipts data with a much simpler approach that relies 
upon the designated facility data reported to the e-Manifest system.\4\
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    \4\ EPA intends to publish a notice and seek comment on 
potential changes to the Hazardous Waste Report (i.e., Biennial 
Report) before any changes are made.
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    We also believe that there are a number of benefits of this 
approach to state programs. As states are connected to the e-Manifest 
system through EPA's National Environmental Information Exchange 
Network, they would be able to pull off the image files and the data 
keyed from paper manifests from this central processing service, just 
as they would be able to obtain the data and presentations of 
electronic manifests from the eXtensible Markup Language (XML) schemas 
and stylesheets transmitted on the e-Manifest system. This national 
data system also presents a much more efficient approach that can 
eliminate the need for discrete state systems designed to capture 
manifest data.
    In addition, as the e-Manifest system operator would be able to 
assess appropriate fees for the paper processing and data entry 
activities necessary to process the data from paper forms and enter 
them into the e-Manifest system, the actual costs of providing these 
services would be recovered by the system operator from the designated 
facility. Since we expect that electronic manifests will be much more 
efficient to process than paper forms, the differential fees that are 
established for paper and electronic manifest processing likely would 
operate as an additional incentive for the transition to electronic 
manifests.
    While we intend to clarify in the final rule that the use of the 
electronic manifest format would be optional for members of the 
regulated community, our preferred approach to collect a copy of the 
final paper manifest forms from designated facilities and to process 
the data from these paper forms centrally means that these designated 
facilities will be required to interact with the e-Manifest system 
(i.e., submitting data either electronically or by mail and paying 
established fees). Thus, this NODA confirms our intention to have a 
single national hazardous waste database.
    Facilities that elect to use the electronic manifest format would 
submit their manifest information electronically as a natural 
consequence of participating in the e-Manifest system. The e-Manifest 
system would be designed for the purpose of distributing electronic 
manifest data among the users and regulatory agencies, while the 
electronic manifest information is being obtained, processed, and 
transmitted electronically via the e-Manifest system. On the other 
hand, those facilities and hazardous waste handlers that choose to use 
the paper manifest forms or are presented with paper forms rather than 
electronic manifest formats, would need to process the paper manifest 
forms physically in the conventional manner that has been the norm 
since the uniform hazardous waste manifest form was introduced in 1984. 
However, in place of sending a copy of the final manifest directly to 
the destination state, the final rule would require the designated 
facility to send Copy 1 of the paper manifest form to EPA's e-Manifest 
system operator. Thus, the designated facilities would be required to 
submit a copy of the final manifest to the e-Manifest system, either in 
the supported electronic format or as a paper copy, and pay a fee for 
this service. In other words, the use of the electronic manifest format 
would be voluntary under the final rule, although the submission of 
either a completed paper or electronic manifest to the EPA system 
operator and payment of an associated fee in every case would be 
required of designated facilities. Once this requirement is effective, 
and all copies of the final manifest (electronic or paper) from 
designated facilities are being submitted directly to EPA's e-Manifest 
system

[[Page 10208]]

operator, the states would be able to obtain their copies of the final 
manifest and data from the e-Manifest system through their computer 
systems on the National Environmental Information Exchange Network. It 
is EPA's intent that the submission of the final paper manifest copy to 
the e-Manifest system would replace the requirement to supply paper 
manifests directly to the states. Since the states would have nodes in 
place on the Exchange Network for receiving manifest copies from the 
system, it would no longer be necessary for the states to require the 
direct submission of paper copies to the states. Thus, the paper copy 
submission requirement could replace the requirement for facilities to 
submit copies of the final manifest to the states. Note that the 
facilities that receive paper manifests will still need to retain a 
paper manifest copy among their own facility records for the 3-year 
record retention period in accordance with current requirements. We 
request comment on our recommendation to collect a copy of the final 
electronic and paper manifest forms from designated facilities and to 
process the data from these forms centrally.

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

    1. Individual Manifest Records and Commercial Confidentiality 
Concerns. With the exception of export and import manifests from 
transboundary waste shipments, EPA previously has not generally 
collected hazardous waste manifests. While data from export or import 
manifests have been claimed as CBI in the past, since the adoption of 
the new hazardous waste manifest form (EPA Form 8700-22) and 
continuation sheet (EPA Form 8700-22A) (70 FR 10776 (March 4, 2005); 71 
FR 19842, 19847 (April 18, 2006)), our records indicate that no CBI 
claims have been made at this time regarding any of the data contained 
in these manifests. Thus, until now, the Agency has not had a need to 
determine any national policy with respect to the eligibility of 
manifest data for CBI claims. Based on the information now available to 
EPA on this question, EPA has concluded that information contained in 
individual hazardous waste manifest records, including any individual 
electronic manifests that may be submitted and collected electronically 
through the e-Manifest system, is essentially public information and 
therefore is not eligible under federal law for treatment as CBI. The 
effect of this decision is that EPA would be making a categorical 
determination that it will not accept any CBI claims that might be 
asserted in the future in connection with processing, using, or 
retaining individual paper or electronic manifests. This decision, we 
believe, should apply prospectively from the effective date of the e-
Manifest final rule because the Agency has not previously announced 
this position and thus it would be unfair or inappropriate for the 
Agency to release such information, particularly for those companies 
that have previously made such a claim. Thus, it would not impact any 
CBI claims or any determinations made in the past by EPA in resolving 
manifest-related CBI claims. Our rationale is explained in the 
following paragraphs.
    First, we believe 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. 40 CFR Part 2, Subpart B, 
and 40 CFR 260.2. As manifests are shared with several commercial 
entities while they are being processed and used, a business concerned 
with protecting its commercial information would find it exceedingly 
difficult to protect its individual manifest records from disclosure by 
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. Moreover, as many states now require 
the submission of generator and/or TSDF copies of manifests, and the 
data from these manifests are often made publicly available or reported 
in federal and state information systems, it seems apparent to EPA that 
much of the information that might be claimed now by industry 
commenters to be CBI is already available from a number of government 
and other legitimate sources. We have little information on whether 
states have withheld manifest or aggregate data, as the State surveys 
did not disclose any pattern of states withholding data. We do know, 
however, that California must withhold information in summary reports 
that links a customer and a transporter.\5\
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    \5\ Hazardous waste transporters that are authorized by CA to 
use CA's consolidated manifesting procedures must submit quarterly 
reports to the CA EPA Department of Toxic and Substances Control 
(DTSC). The consolidated manifesting procedures apply to non-RCRA/CA 
hazardous waste or to RCRA hazardous waste that is not subject to 
the federal manifest requirements. The CA Health and Safety Code 
Sec.  25160(d) prohibits the disclosure of the association between 
any specific transporter and specific generator. The list of 
generators served by a transporter is deemed to be trade secret and 
confidential business information for purposes of Section 25173 and 
Section 66260.2 of Title 22 of the California Code of Regulations.
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    Second, we are aware that some state programs have denied CBI 
treatment to data contained in manifest records.\6\ Some states 
disclose manifest records freely, and this has been the general 
practice among those states for more than 20 years. As far as EPA 
knows, free disclosure has been the common practice for dealing with 
data from manifest records among some 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 policy 
that conflicts with the prevailing state laws and policies on this 
issue. We seek comment on other states' CBI treatment of manifest 
records and the data contained in them.
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    \6\ In January of 2007, the MI state representative on EPA's E-
Manifest Final Rule Work Group disseminated a survey on behalf of 
ASTSWMO, through the Hazardous Waste Program Operations Task Force, 
to interested states in order to request information about their 
state manifest requirements, including the requirements for public 
access/CBI to manifest records. Eight states responded on how they 
currently treat or might treat manifest data as CBI. Responses from 
the eight states are as follows: One state (NY) denies CBI treatment 
to manifest records; One state (OH) allows TSDFs to claim CBI on 
their annual waste report; Four states (ID, OR, SC, CT) do not give 
CBI treatment to manifest data reported on quarterly or annual 
reports; and Two states (FL, MI) indicate that they would not give 
manifest data CBI treatment. In addition, three states (MD, NJ, PA) 
that participated on the work group, but were not included in the 
survey indicated that their state would not treat manifest data as 
CBI.
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    For these reasons, we believe that individual manifest records and 
data contained in them should not be subject to CBI claims since they 
are not entitled to protection as CBI in some states. This policy will 
apply to electronic and paper manifests, and to domestic and 
transboundary shipment manifests. While we intend to clarify in the 
final rule that individual manifest records would not be entitled to 
CBI protection, we also are considering limiting access to the 
preliminary/draft manifest data. Access would only be limited while the 
data are being collected and verified, as manifest data are processed 
and received by waste handlers, and exceptions or discrepancies are 
being resolved, in the system and before the manifest information is 
complete.
    Specifically, the preparation and processing of a manifest is an 
iterative process that begins when the generator

[[Page 10209]]

fills out and signs the generator portion of the manifest; continues as 
transporters review and correct the generator-supplied information, 
fill in any additional transporter data fields, and then sign to 
acknowledge receipt of the shipment; and concludes when the receiving 
facility enters facility data, signs to acknowledge waste receipts, 
rejections, or discrepancies, and then verifies the final status of the 
shipment to the generator (and to many authorized states) by sending 
the generator and states the final verified copy.
    EPA believes that it typically will take up to 60 days from the 
start of a shipment for all the iterative manifest processing and 
verification steps to be completed. As part of this process, the 
designated facility must report waste receipts to the generator of that 
waste within 30 days of receipt of the waste. 40 CFR 264.71(a)(2)(iv). 
Any significant discrepancies must be reported to the EPA Regional 
Administrator or the authorized state if the discrepancy is not 
resolved between the generator and designated facility within 15 days 
from the designated facility's receipt of the waste. 40 CFR 
264.71(b)(4) and 264.72(c). In addition, the existing regulations 
provide that exceptions must be reported by generators to EPA or 
authorized states if 45 days have passed since delivery of the 
hazardous waste to the initial transporter, and the generator still has 
not received a copy of the final manifest signed by the designated 
facility. 40 CFR 262.42.
    Therefore, during the time that waste shipments are en route to the 
receiving facilities, and during the period of time after delivery of 
the waste when manifest exceptions and discrepancies may be reported, 
we intend to limit access to incomplete and unverified manifest data to 
only the entities involved with a shipment (and to regulators and 
emergency responders). These are the entities that have a need to know 
about the manifest data being entered on an electronic manifest, while 
the shipment is en route, or while the manifest data is subject to 
review and correction--that is, during the time for verifying and 
reporting waste receipts, exceptions or discrepancies, and resolving 
the exceptions or discrepancies.
    However, after this 60-day period has passed, such that the 
electronic manifests are considered complete and final for regulatory 
purposes, EPA intends to make all manifest records available upon 
request in accordance with the Federal Freedom of Information Act 
(FOIA), 5 U.S.C. 552. We emphasize that this suggested limited 
restriction on access during the manifest creation process is intended 
to protect the integrity and security of the manifest data during the 
period of time that the electronic manifest is being processed and 
verified by the waste handlers that are involved with the management of 
the waste shipment.
    EPA requests comment on our decision to categorically and 
prospectively exclude manifests from eligibility for CBI claims. In 
addition, the Agency believes that the FOIA exemption for personal 
privacy does not exempt from production the names of company employees 
or independent contractors that appear in the manifests. EPA requests 
public comment on this position. The Agency also requests comment on 
its proposed policy of limiting access to incomplete and unverified 
manifest information to the waste handlers named on particular 
manifests (as well as regulators and emergency responders), and 
allowing full disclosure of manifest information that has been 
completed and verified by the receiving facilities. As we discussed 
above, EPA believes that the period of limited access to preliminary 
manifest data should extend no longer than 60 days after the start of 
the waste shipment. However, we request comment on whether 60 days is 
appropriate, or whether commenters believe that another period of time 
is more appropriate.
    2. Release of Aggregate Data and Competitive Harm Concerns. EPA 
understands that the waste management industry may be concerned that 
the aggregation of manifest records and data contained in them in one 
national electronic system may enable competitors to obtain more 
immediate and efficient access to their customer information, thus 
potentially creating competitive consequences not experienced under the 
current paper system.
    Because EPA has not previously collected manifest records 
electronically, we have no quantifiable evidence at this time to 
suggest that the manifest data that would be stored in EPA's national 
system would somehow create or cause competitive harm to persons or 
companies that would submit data to the e-Manifest system, if that data 
were released in aggregated form upon a FOIA request. Since the 
individual manifest records would not be eligible for CBI treatment for 
the reasons discussed above, it is a novel issue for EPA whether 
requests under FOIA for data aggregated from multiple manifests would 
require special handling by EPA under the FOIA exemption for 
confidential business information.
    Therefore, EPA is seeking public comment on how, if at all, the e-
Manifest system should address any future FOIA requests for aggregate 
manifest data. First, EPA needs information on how substantial the harm 
would be to a company's competitive position (particularly since we 
intend to defer the release of electronic manifest data to the general 
public for 60 days) if aggregate data from multiple manifests could be 
obtained from EPA under a FOIA request. How would this situation differ 
quantifiably from the current situation where a FOIA request can be 
made for multiple manifests and the requester must then aggregate the 
relevant data in each of these manifests for himself or herself? How 
different would the situation be from that which occurs now with paper 
manifests given that a member of the public may generally obtain any 
number of paper manifests from states under the states' current 
manifest collection and tracking programs? Also, even if EPA could 
offer additional protection to aggregate e-Manifest data, what would be 
the benefit since requesters can instead direct their requests for 
electronic manifest records to the states? The states will routinely 
receive electronic manifest records from the e-Manifest system in their 
capacity as RCRA regulators. However, these states would not be 
required to follow EPA's determinations under the exemption for CBI of 
the Federal FOIA and could instead choose or be required to release all 
electronic manifest data as public information under their state laws 
and procedures. Given our uncertainty about the adverse effects or 
competitive harm to waste management businesses that would submit 
manifests to the national e-Manifest system, we seek comment on whether 
the release of aggregated data would adversely impact waste management 
businesses. In particular, we ask that the waste management industry 
substantiate their concerns, if any, that the aggregation of manifest 
data and the subsequent disclosure of that data would somehow release 
their company's confidential business information and thus cause 
substantial competitive harm to them. We also request information on 
how the waste management industry protects their confidential business 
information recorded on manifests in states that currently make 
manifest data publicly available.
    If EPA were to determine that the waste management industry 
concerns for the disclosure of aggregate

[[Page 10210]]

information are legitimate and that they are not sufficiently addressed 
by the approach described above in this NODA, then we could develop 
another approach to mitigate the ability to efficiently create customer 
lists from aggregated data. For instance, we could design the e-
Manifest system to provide the aggregated data in a redacted form, 
protecting either the identity of the generator, transporter, or TSDF 
so that anyone who requests aggregated data could not generate customer 
business information from it. We therefore request comment on how EPA 
should design and implement an approach to protect the disclosure of 
aggregate data of competitive value, if such an approach were 
appropriate. For example, what are the indicators of aggregated 
requests (e.g., requests of 50 or more manifests involving a single 
transporter or TSDF) that would justify our handling aggregated data 
differently from individual manifests for FOIA disclosure purposes? 
What information should be redacted from the data that are released to 
mitigate any competitive harm from the data disclosure? How can this 
process be automated so that it can be effectively implemented in an 
electronic manifest system that must address potentially millions of 
manifest records annually, and their related FOIA requests, without 
significant human intervention?

III. Request for Comments

    EPA requests comments on the policy issues discussed in this notice 
regarding our preferred approach that final copies of paper manifest 
records be submitted by designated facilities to EPA's e-Manifest 
system operator for data processing, and our categorical determination 
that individual or aggregate manifest data may not be claimed as CBI. 
The Agency also requests comment on various aspects of our proposed 
policy of limiting access to incomplete and unverified manifest 
information to the waste handlers named on particular manifests (as 
well as regulators and emergency responders).
    EPA will consider the comments received pursuant to this notice, 
along with comments on the April 18, 2006 public notice, on the e-
Manifest proposal in the May 2001 proposed rule, and the May 2004 
Stakeholder meeting, as it prepares a final rule on the e-Manifest 
system.

    Dated: February 19, 2008.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
 [FR Doc. E8-3615 Filed 2-25-08; 8:45 am]
BILLING CODE 6560-50-P