EPA Meeting on e-Manifest

• The e-manifest system must be up and running by October 5, 2015.
• There will be a single, nationally-run system (states will be able to update their rules to enforce the e-manifest program rules, however, they cannot create their own e-manifest system).
• The system will be funded by user fees.
• While the use of the system will be voluntary, the EPA indicated that even paper manifests will be added to the national e-manifest database.
• The EPA is planning to issue a Direct Final Rule in the near future that will authorize the implementation of a national e-manifest system and the collection of user fees. (This is merely a formality that officially opens the process mandated by the statute.)

1. Administration: The EPA described a system in which each generator, transporter, TSDF, and broker who uses the national e-manifest system will need to register and then set up each user. Comments centered on two issues. First, some generators with multiple sites hoped that the system will allow for a “super user” such as a corporate office that could manage and view the various sites. The second discussion was how brokers were going to be able to prepare manifests for their clients. Were they going to be able to register as a super user, or would they need to be set up as a user under each registered generator? In addition, there was concern that brokers would only be able to view e-manifests from a generator that they prepared.
2. Accessibility: With the development of a national database, there was significant discussion in deciding when the records would be “official.” The overwhelming consensus was that the e-manifest should not be accessible to others until it is “signed” by the generator. Some felt that states should not have access until the manifests are signed by the TSDF, although it does not appear that their wishes will be granted. Included in the discussion of accessibility was the retention in the national system. Some generators and brokers wondered if the manifests would be deleted after the current three-year retention requirement in 40 CFR 262, Subpart D.
3. Shipping papers: The U.S. DOT still requires the use of a shipping paper (its efforts for electronic shipping papers are not as far along as the EPA’s), therefore a physical shipping paper will still need to accompany the shipment. There was significant discussion as to what the format should be. Options ranged from a print out of the current manifest to any format as long as the DOT-required elements were included. While the majority of the audience was in favor of an “any document” approach, there was general consensus that the rule will need to require some indication on the form that there is an official and complete e-manifest accessible in the national system. It wasn’t clear what that indication might be, but it is possible that it might simply be the requirement to include the e-manifest tracking number on the shipping paper. In the end, the audience felt that DOT must be intimately involved in the EPA’s rulemaking efforts.
4. Signature: This was the greatest hot-button issue of the meeting. The EPA stated that despite its acknowledgement of the rigors of this approach, the policy-makers have mandated that the signature requirements will have to be compliant with the EPA’s Cross-Media Electronic Reporting Regulation (CROMERR). This essentially will limit the options to a password/PIN system or the use of high-quality digitized signature pads. The consensus was that the CROMERR system was built around a single reporting system and not a dynamic, chain-of-custody system like the manifest system. There was a growing movement to revise the manifest rules to eliminate the EPA requirements for a hand-written signature. It is not certain that the EPA will act on this. It is my assertion that the signature requirement will be the biggest and perhaps most costly hurdle to overcome. A system that is too onerous will surely scare many generators away either because the flexibility in assigning persons with the ability to sign the manifest is not there or because the implementation costs will be too expensive.

1. Keep watch for what follows the Direct Final Rule. The EPA will follow this with a proposal on the new e-manifest regulations and the fee structure. Organizations will need to carefully consider the language. Will the system allow for an ease of paperwork burden, yet be cost-effective in light of the fee structure?
2. Begin dialogs with your TSDFs and brokers. Since many of these persons already prepare manifests for their generators, will they be compelling their clients into the e-manifest system? How will this impact your costs with each waste stream?
3. Consult with your corporate legal counsel. If e-manifests are retained on the national database, how will this impact your current record retention policies and practices, not just under RCRA and CERCLA? If you are a publicly traded company, this may also impact your Sarbanes-Oxley obligations.

Tags: hazardous, hazmat shipping, manifests, new rules, RCRA, waste