[Federal Register Volume 66, Number 99 (Tuesday, May 22, 2001)]
[Proposed Rules]
[Pages 28240-28318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11909]
[[Page 28239]]
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Part II
Environmental Protection Agency
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40 CFR Part 260 et al.
Hazardous Waste Management System; Modification of the Hazardous Waste
Manifest System; Proposed Rule
Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed
Rules
[[Page 28240]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 262, 263, 264, 265, 271
[FRL-6932-4]
RIN 2050-AE21
Hazardous Waste Management System; Modification of the Hazardous
Waste Manifest System
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: Today, the Environmental Protection Agency (EPA) proposes to
revise the Uniform Hazardous Waste Manifest regulations and the
manifest form used to track hazardous waste from a generator's site to
its site of ultimate disposition.
EPA proposes three major revisions to the manifest system: First,
EPA proposes to further standardize the content and appearance of the
current manifest form (8700-22 and 22a), to make the form available
from a greater number of sources. Second, EPA proposes manifest
tracking procedures for the follow-up manifesting of TSDF-rejected RCRA
hazardous waste shipment loads, and follow-on shipments of non-empty
waste containers containing waste residues. Lastly, EPA proposes giving
waste handlers required to use the form the option to complete, send,
and store the manifest information electronically. For waste handlers
choosing this option, the proposed rule would require the use of a
standardized electronic data interchange (EDI) format that facilitates
the exchange of data between waste handlers, the use of digital
signature technology to sign the manifest, and the use of a standard
set of computer security standards for the transmission and storage of
manifest data.
EPA proposes these changes to reduce paperwork burden related to
the hazardous waste manifest provisions, and in response to many
requests for a streamlined and up-to-date hazardous waste tracking
system. If finalized, EPA also expects these proposed changes to
improve the ``cradle-to-grave'' hazardous waste tracking system and to
ensure that waste reaches its destination without causing harm to human
health or the environment.
DATES: Written comments on this proposed rule must be submitted on or
before August 20, 2001.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-2000-UWMP-FFFFF to: RCRA Docket
Information Center, Office of Solid Waste (5305W), U.S. Environmental
Protection Agency Headquarters (EPA, HQ), Ariel Rios Building, 1200
Pennsylvania Ave., NW., Washington, DC 20460. Hand deliveries of
comments should be made to the Arlington, VA, address below. Comments
may also be submitted electronically to: [email protected]. Comments
in electronic format should also be identified by the docket number F-
2000-UWMP-FFFFF. All electronic comments must be submitted as an ASCII
file avoiding the use of special characters and any form of encryption.
Commenters should not submit electronically any confidential business
information (CBI). An original and two copies of CBI must be submitted
under separate cover to: RCRA CBI Document Control Officer, Office of
Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200 Pennsylvania
Ave., NW., Washington, DC 20460. Public comments and supporting
materials are available for viewing in the RCRA Information Center
(RIC), located at Crystal Gateway One, First Floor, 1235 Jefferson
Davis Highway, Arlington, VA 22202. The RIC is open from 9 a.m. to 4
p.m., Monday through Friday, excluding federal holidays. To review
docket materials, it is recommended that the public make an appointment
by calling (703) 603-9230. The public may copy a maximum of 100 pages
from any regulatory document at no cost. Additional copies cost $0.15
per page. The index and some supporting materials are available
electronically. See the Supplementary Information section for
information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323. For more detailed information on specific
aspects of this rulemaking, contact Richard Lashier (5304W), Office of
Solid Waste, U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460, (703) 308-8796, [email protected].
SUPPLEMENTARY INFORMATION:
Internet Availability
This rule is available on the Internet. Using a World Wide Web
(WWW) browser, type http://www.epa.gov/epaoswer/hazwaste/gener/manifest/index.htm
The official record for this action is in a paper format.
Outline
I. Authority
II. Request for Comments
III. Background
A. History of manifest system
B. Problems Associated with the Uniform Manifest Form
1. Variability
2. State Difficulties
C. Efforts to Improve the Hazardous Waste Manifest System
D. To whom would these new regulations apply?
E. How much burden and cost reduction does EPA expect from the
proposed manifest form revisions?
F. Effective Date of Final Rule
IV. The Revised Manifest Form
A. Manifest Form Acquisition
1. How is EPA changing the way the manifest forms are acquired?
2. Why is EPA proposing this change?
3. How much burden reduction does EPA expect from the proposed
manifest form revisions?
4. Where would a waste handler get paper manifest forms?
5. Must a generator still contact the state?
6. What special requirements would apply to printers of the
universal manifest?
7. What is the naming convention for the different copies of the
manifest?
8. How would the acquisition regulation change?
9. How would manifest tracking numbers be changed by the
proposal?
10. Could States still require use of only their manifests?
11. Request for comments
B. International Shipments
1. What is EPA proposing with respect to manifest for imports
and exports?
2. Why is EPA proposing this change?
3. How would the manifest and the regulations change?
C. Bulk Packaging
1. How is EPA changing its regulations related to bulk
containers?
2. Why is EPA changing its rules related to bulk packaging?
3. How would this affect me?
4. How would the regulations change?
D. Use of Fractions
1. What is EPA changing with respect to the use of fractions in
the Quantity Description on the Manifest?
2. Why is this clarification necessary?
3. What would change?
E. Emergency Response Phone Number
1. What is EPA proposing related to the Emergency Response Phone
Numbers on the Manifest?
2. Why is EPA proposing these changes?
3. How would this change affect the regulations?
F. Generator Certification
1. How would the generator certification statements on the
manifest be modified?
2. What are the current requirements to the generator
certification?
3. How would EPA modify the language of the shipper's
certification?
[[Page 28241]]
4. How would EPA change the appearance of the waste minimization
certification statement?
5. Why is the Agency Proposing this Change to the appearance of
the waste minimization certification statement?
G. Elimination of Certain State Optional Boxes
1. Why is EPA Proposing to Reduce the Number of State Optional
Boxes?
2. Which boxes would be eliminated?
3. Why is EPA proposing to remove each of these boxes?
4. Why is EPA proposing to amend items 15 & J of the old form?
5. What regulations would be affected by reducing the number of
state optional boxes and combining Items J and 15 to create new Item
14?
6. EPA invites comment on today's proposal to reduce the number
of state optional fields on the manifest.
H. Block K Coding System
1. How would the requirements for the codes used in Block K
(Handling Codes) change?
2. What are the Biennial Report system type codes EPA proposes
to use?
3. What are the problems with the current coding systems used to
complete Block K?
4. How can the Biennial Report system type codes help resolve
the problems?
5. Where would I find a list of codes to be used in Block B?
6. Who would be affected by the proposal to change Block K to
Block B?
7. How would Block B be filled out?
8. How would the regulations change?
9. EPA invites comment on today's proposal and also welcomes new
ideas for manifest and System Type Code Burden Reduction
I. Block I Waste Code System
1. How would the requirements for the codes used in Block I
change?
2. What is the problem with current Block I reporting
procedures?
3. Who would be affected by this proposal?
4. How would Block A be filled out?
5. How would the regulations change?
6. EPA invites comment on the following questions related to the
proposed changes to Block A
V. Unmanifested Waste Reporting
1. How is EPA changing the way TSDFs Report unmanifested waste?
2. What is unmanifested waste?
3. What is the problem with the current requirements for
unmanifested waste reporting?
4. How do the regulations for the unmanifested waste, manifest
discrepancies, and exception reporting compare?
VI. Residues and Rejected Loads: How Must These Shipments be
Manifested?
1. What are residues and rejected loads?
2. What is EPA proposing related to residues and rejected loads?
3. To whom do these new requirements apply?
4. Where would the proposed requirements for tracking rejected
wastes and residues be codified?
5. Why is EPA proposing these changes?
6. How long does the TSDF have to accept or reject the hazardous
waste shipment?
7. Who is responsible for deciding where to send a residue or
load rejected by the TSDF?
8. Must TSDFs who reject waste or who have a regulated residue
prepare a new manifest for the shipment to the alternative facility?
9. Whose facility information would go in the ``generator''
block of the manifest?
10. What would you be required to do under the new regulations?
11. What conditions would apply to a rejected waste or container
residue shipment once the generator receives it back from the TSDF?
12. On what issues would EPA like to receive comments?
VII. Automation of the Manifest System
A. Introduction
1. Summary of today's electronic manifest proposal
2. Why is EPA proposing these changes?
3. Who would be affected by these changes?
4. What manifest automation is already occurring?
5. How much reduction in burden and cost would be achieved by
automation?
6. What other benefits would result from an electronic manifest
system?
7. What are the concerns associated with automated systems?
a. Inadvertent or deliberate corruption of records
b. Unauthorized access to systems or data
c. Limited human involvement and speed with which transactions
are executed
d. Natural disasters and systems failures
e. Software defects and interoperability issues
B. EPA's current electronic reporting policy
1. What is EPA's current electronic reporting policy?
2. What is Electronic Data Interchange (EDI)?
3. How does EDI work?
4. Why would EDI be suited to an automated manifest system?
5. Would a Terms and Conditions Agreement be required?
6. What alternatives to traditional EDI is EPA considering?
7. What are the Manifest Automation Pilots?
C. Overview of manifest automation proposal
1. What is included in today's proposal on the electronic
manifest?
2. Is electronic manifesting mandatory for waste handlers?
3. Must authorized State programs adopt electronic manifesting?
4. What happens if the transporters of my hazardous waste don't
automate?
5. What happens if the generator is not able to prepare an
electronic manifest?
6. Where would the new requirements for automated manifesting be
codified?
D. What impediments to automation would today's proposal remove?
1. Specific paper form designations
2. ``By-hand'' signature requirements
3. Physical transmission of manifests
4. Electronic storage of manifest copies
E. What standard electronic formats would today's proposal require?
1. Overview
2. Proposed EDI format
3. Proposed Internet Forms Format
a. Background
b. What is Extensible Markup Language (XML)?
4. What comments would be helpful to EPA?
a. Are the proposed EDI transactions sets appropriate?
b. Is an XML approach feasible?
c. Are there alternative formats that EPA should consider?
d. Should EPA address internet EDI Distinctly?
F. What electronic record system controls and procedures would this
proposal require?
1. Validation of system performance and training
2. The ability to generate accurate and complete records
available for inspection
3. The ability to protect records
4. The ability to limit system access and conduct authority
checks
5. Use of secure audit trails
6. Software-based work flow controls and operational system
checks
7. Software-based data presentation features and signature
prompts
8. Full interoperability of system software
9. Controls over system documentation
10. Policies holding individuals accountable
11. Other system requirements
G. EPA's Proposed Electronic Signature Standard
1. Why are signatures important to the manifest?
2. What are the concerns with electronic signatures?
3. How does today's proposal address electronic signatures?
4. What is a `digital signature'?
5. How do digital signatures work?
6. What digital signatures algorithms and key lengths are
acceptable?
7. Is digital signature alone sufficient to identify individual
signers?
8. How would today's proposal deal with the security of private
keys?
9. Why is a ``trusted third party'' necessary for digital
signatures?
10. What digital certificates would be required under today's
proposal?
11. What is a Public Key Infrastructure (PKI)?
12. What PKI options are being considered for the manifest?
A. Centralized PKI for Environmental Programs
B. Decentralized Approach to PKI
C. Hybrid Option
13. Proposed ``secure digitized signature'' method
14. Request for comments on proposed signature methods
H. Preparer Signature Proposal
1. What is a `preparer signature'?
2. Why is EPA proposing to allow preparers to sign electronic
manifests for generators?
3. How would the preparer signature feature work?
[[Page 28242]]
4. How would a preparer-signed electronic manifest be closed
out?
5. Request for comments
I. Third Party Storage of Manifest Records
1. What does EPA mean by third-party storage?
2. What are the proposed conditions on third-party storage?
3. Request for comments
VIII. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Regulatory Flexibility Analysis
C. Environmental Justice--Applicability of Executive Order 12898
D. Protection of Children--Applicability of Executive Order 12045
E. National Technology Transfer and Advancement Act
F. Unfunded Mandates Reform Act
G. Paperwork Reduction Act
H. Federalism--Applicability of Executive Order 13132
I. Consultation with Tribal Governments
IX. How would today's proposed regulatory changes be administered and
enforced in the States?
A. Applicability of Federal Rules in Authorized States
B. Authorization of States for Today's Proposal
1. Would authorized States be required to the Uniform Manifest
Form?
2. Would authorized States be required to adopt electronic
manifesting?
Appendix A. Extensible markup language (XML) document type definition
for the hazardous waste manifest
I. Authority
These regulations are proposed under the authority of sections
2002, 3001 through 3007, and 3009 of the Solid Waste Disposal Act of
1970, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984
(HSWA), 42 U.S.C. 6912, 6921 through 6927, 6929 and 6930.
II. Request for Comments
The Agency requests comment on the proposed changes to the manifest
form, the proposed procedures for using the form, and on the proposed
option for electronic manifests, as described in this document. The
manifest system includes both the Uniform Hazardous Waste Manifest (EPA
Form 8700-22) and the Uniform Hazardous Waste Manifest Continuation
Sheet (EPA Form 8700-22A). The continuation sheet includes many of the
same data elements as the manifest form, and merely adds additional
fields to identify additional transporters or waste streams which could
not fit on the manifest. While this document, for simplicity, discusses
the proposed manifest system revisions primarily in the context of the
manifest form, it is EPA's intent to implement these revisions with
respect to both the manifest and the corresponding data fields found on
the continuation sheet. Therefore, those commenting on today's proposal
should consider the proposed form revisions, procedures, and electronic
manifest options as affecting both the manifest form and the
continuation sheet.
To assist in compiling and responding to comments, the Agency
requests that commenters include a heading for each issue addressed in
their comment which identifies the section(s) of this preamble in which
the issue is discussed (and/or the regulatory citation(s) the comment
addresses). In addition to hard copies of their comment, the Agency
further requests that, if possible, commenters provide an electronic
copy of their comment on disk, preferably in ASCII avoiding the use of
special characters and any form of encryption. Please identify the
software package used to develop the document.
III. Background
A. History of Manifest System
Subtitle C of the Resource Conservation and Recovery Act (RCRA)
required to establish a manifest system to track shipments of hazardous
waste from a generator's site to the site where the hazardous waste is
sent to be managed (that is, cradle-to-grave). EPA published
regulations for a manifest system on February 26, 1980. (See 45 FR
12724, February 26, 1980.) The central element of the manifest system
is the paper trail--a document showing who is in the control of the
hazardous waste at a given time and where the waste is destined for its
ultimate disposition. The manifest also identifies the waste in terms
of its toxicity (that is, hazard potential) and quantity and therefore,
in case of an emergency or waste release, makes the emergency response
personnel aware of the potential for human health and environmental
hazards the waste may pose.
EPA's authority to establish requirements for a manifest system
stems primarily from RCRA Section 3002(a)(5). (See also RCRA Sections
3003(a)(3) and 3004.) Regulations are found in 40 CFR Part 262
(Generators), Part 263 (Transporters), and Part 264 and 265 (Treatment,
Storage and Disposal facilities).
DOT regulations at 49 CFR 172.205 state that ``No person may offer,
transport, transfer, or deliver a hazardous waste (waste) unless an EPA
Form 8700-22 and 8700-22A (when necessary) hazardous waste manifest
(manifest) is prepared in accordance with 40 CFR 262.70 and is signed,
carried, and given as required of that person by this section.'' In the
pre-RCRA days, the Department of Transportation (DOT) requirements for
shipping papers were applicable for tracking the movement of industrial
and chemical waste. (See 49 CFR 171.3 and 171.8) DOT did not require a
specific form but required each transport vehicle to carry required
information such as hazardous material name and hazard class. In the
1980 manifest rule, EPA only required that certain information must
accompany hazardous waste shipments. EPA believed that this approach
would allow the regulated community to adapt its use of shipping papers
which are required by DOT's Hazardous Materials Regulations (49 CFR
parts 171-180) to accommodate the new EPA requirements. In addition,
any State that desired a manifest form was allowed to develop one to
satisfy its needs, as long as the State form provided the minimum
information requirements of the 1980 rule (45 FR 12729, February 26,
1980). The 1980 manifest rule retained flexibility inherent to the DOT
regulations so that the manifest would also be able to serve as the
shipping papers required by DOT's hazardous materials transportation
regulations. This approach, however, was short-lived.
Soon after the 1980 regulations became effective, more than 20
States developed and required their own manifest forms. These forms met
the minimal Federal requirements but also required additional State
information. Significant confusion and compliance difficulties resulted
from the differing manifest requirements. Often, it was necessary for
generators to prepare multiple manifests for interstate shipments to
satisfy the requirements of the States through which the hazardous
waste traveled. Therefore, EPA and DOT in coordinated rulemaking, with
significant assistance from the Association of State and Territorial
Solid Waste Management (ASTSWMO) and the Hazardous Materials Advisory
Council (HMAC), proposed and later promulgated a Uniform Hazardous
Waste Manifest form and procedures for its use. (See 47 FR 9336, March
8, 1982 (proposed rule), and 49 FR 10490, March 20, 1984 (final rule)).
This Uniform Hazardous Waste Manifest system remains in place today.
The Uniform Hazardous Waste Manifest was designed to eliminate the
burden for generators, transporters, and other waste handlers who may
have been subject to
[[Page 28243]]
several versions of waste tracking system with duplicate information.
It also was designed to enable generators and transporters to meet both
DOT and EPA regulatory requirements. Under this system, generators and
transporters are required to use the Uniform Hazardous Waste Manifest,
and States may not require a different manifest in its place. However,
the Uniform Hazardous Waste Manifest has State blocks which allow
States, at their option, to require the entry of additional specific
information to serve their State's regulatory needs. EPA expected that
both the States and generators would benefit from this approach since
the additional State information requirements could be met on the
Uniform Manifest form, and the need for generators to prepare separate
manifests for each State entered would be eliminated (49 FR 10499,
March 20, 1984). The Uniform Hazardous Waste Manifest requirements,
however, do not preclude a State from requiring a generator to send
other information under separate cover under the EPA rule (49 FR 10492)
or directly to the appropriate agency of a State under the DOT rule (49
FR 10508).
The manifest system in place for the past 20 years has improved the
management and enforcement of the national hazardous waste program
where it serves several primary purposes:
(1) To serve as a tracking device which creates clear lines of
accountability among the participants in the hazardous waste system;
(2) To serve, together with the other EPA and DOT requirements, to
protect human health and the environment during the transportation of
hazardous waste by providing information on the waste to persons
handling the waste and to emergency response personnel; and
(3) To provide the principal basis for EPA's recordkeeping and
reporting requirements (45 FR 12728, February 26, 1980).
The hazardous waste manifest was developed to meet both RCRA and
HMTA requirements. As a form of DOT-required ``shipping paper'' the
manifest conveys essential emergency information required during
transportation, specifically the proper shipping name, hazard class,
phone numbers enabling responders to obtain additional information,
when necessary. These essential information requirements negated the
need of having another set of separate papers, namely shipping paper.
However, the revised form has not entirely mitigated consistency
and uniformity problems that occurred with the old manifest
requirements primarily because confusion about different State manifest
requirements associated with the state optional fields still exist.
Also, the existing regulations describe a specific, multi-copy paper
form which must be physically carried among waste handlers, and which
must be hand-signed as custody of waste shipment changes, making it
difficult to integrate the form with computer technologies. (See
section VII.D for further discussion related to impediments to
automation of the waste tracking system.) Consequently, EPA received
further complaints from the regulated community and States. Further
discussion regarding these and other problems with the uniform manifest
follow.
B. Problems Associated With Uniform Manifest Form
1. Variability
Under the current regulations more than 20 states print the
manifest form in accordance with the format specified in federal
regulations. As mentioned previously, the manifest form was designed to
allow states to continue to meet their individual information needs.
However, the different manifest requirements among State Manifest
programs have drawn complaints from the regulated community about
manifest inconsistency. Most complaints have come from large generators
and TSDFs who helped generators prepare forms as part of their
business' service. These manifest users have expressed frustration with
the uniform manifest because they still found it difficult to complete
the state optional portions of the form without first collecting and
keeping track of requirements from each state in which they did
business. For example, some states have assigned additional generator
identification numbers, transporter identification numbers, facility
identification numbers, or some combination of the three, while others
have not assigned these numbers. Under the current manifest
requirements, a state may require any combination of these boxes to be
completed in addition to the federally required blocks on the manifest.
Thus, a generator who sends waste to multiple states needs keep track
of which states require this information on the manifest and ensure
that each manifest is filled out correctly for its destination state.
Generators also have expressed their frustration with optional
Blocks I ``Waste No.'' and K ``Handling Codes . . .'' because the
inconsistencies among states can make it very labor-intensive for
generators to complete those blocks. For example, with respect to
completion of Block I, a generator who sends wastes to different states
must determine which codes the states require the generator to use in
Block I and under which circumstances the generator may use the codes
(e.g., when a code is required for hazardous waste being sent to a
recycler).
Other manifest variability issues that have caused much vexation
for manifest users are the different state manifest copy distribution
schemes and the hierarchical manifest acquisition system (See Section
IV.A for details on the manifest acquisition system and copy
distribution scheme). Specifically, states that require generators to
use their state manifest form generally use a 6-part form or an 8-part
form. A state that receives hazardous wastes may require both the
generator and the TSDF to submit a copy of the manifest to the state so
that copies can be matched. In other states, only the generator is
required to submit a copy of the form to the state. Often, a person who
needs manifest forms from several states cannot obtain them from one
location. As a result, a person must contact each state separately to
request the state-specific form.
2. State Difficulties
States that collect the manifest have also experienced difficulty
with processing the paper manifest form. They may collect hundreds of
forms in a month, and either place the manifests in files, or manually
enter the information on the forms into a state database system. Manual
data entry often results in errors and delay, which could be avoided if
the manifest were prepared and transmitted to the states
electronically. Also, it is difficult to exchange manifest information
between the generator's state and the receiving facility's state
because often, their information systems are incompatible, and unable
to accept transfers of data from one state to another.
C. Efforts To Improve the Hazardous Waste Manifest System
In 1985, manifest officials in several State environmental agencies
formed an Interstate Hazardous Waste Manifest Coordinators Group
(IHWMCG) to address manifesting issues and to increase uniformity among
State manifest programs. During 1988, the IHWMCG served on the
Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) Manifest Revisions Task Force to develop regulatory
recommendations to EPA to increase effectiveness, efficiency
[[Page 28244]]
and consistency of the national hazardous waste manifest system. The
Task Forces's recommendations for specific modifications to the Uniform
Hazardous Waste Manifest were submitted to EPA as a rulemaking petition
on January 8, 1990.
In 1992, EPA embarked upon a negotiated rulemaking effort in an
attempt to take advantage of the near consensus already reached by
States in the ASTSWMO petition. The Negotiated Rulemaking committee
reached agreement on recommendations for revisions to the manifest
form. The Negotiated Rulemaking committee recommended that essentially
all optional fields on the current manifest form should become
mandatory Federal fields. In addition, the Negotiated rulemaking
committee recommended several procedures for using the manifest when
hazardous waste shipments are rejected by the designated facility, or
when the designated facility cannot render containers ``RCRA empty.''
The committee also agreed to expand requirements for imported waste
shipments. The final agreement document can be found in the regulatory
docket for today's action.
However, before EPA completed the Negotiated rulemaking process, it
implemented its reinvention strategy to fulfill the Administration's
commitment to reinventing environmental protection. In March 1995,
President Clinton, Vice President Gore, and the EPA Administrator put
forth an ambitious agenda to reinvent environmental protection as part
of the larger goal of creating a federal government that works more
efficiently and costs less. The Administration and the Agency have been
committed to the goal of reducing the paperwork burden resulting from
environmental regulations by at least 25% (Current information about
regulatory reinvention is available on EPA's World Wide Web site at
http://www.epa.gov/reinvent/annual97/intro.htm/). In addition, the
Office of Management and Budget (OMB) extended the approval of the
manifest ICR for only two years in 1994, with the expectation that EPA
would, in the interim, adopt manifest revisions that would address
regulatory burden issues surrounding the existing system. In 1996, OMB
extended approval of the Manifest ICR, but with the expectation that
EPA would explicitly address, among other things, innovative approaches
as a way to streamline and reduce the burden of manifest reporting
requirements. For example, OMB suggested that EPA develop and pilot
test the electronic submission and tracking of manifests. As of 1999,
EPA estimates that the paperwork burden (from federal requirements) of
the manifest system is 2.92 million hours, making it one of the highest
paperwork burdens imposed under RCRA.
Based on the aforementioned factors, EPA reexamined its efforts on
the Negotiated rulemaking to determine if they comported with the
Administration and Agency's burden reduction initiative. Based on its
review, the Agency determined that the negotiated rule, as written,
would have increased the annual paperwork burden hours significantly,
since the rule adopted most of the Negotiated Rulemaking committee's
recommendations which advocated, among other things, including
essentially all state optional fields on the current manifest form as
mandatory Federal fields. As a result, EPA determined that the
Negotiated Rulemaking committee's recommendations could not be
implemented without significantly undercutting the Agency's burden
reduction goals. In 1996, EPA established an Agency workgroup charged
with building upon the recommendations of the negotiated rulemaking
effort, as well as meeting the Agency's burden reduction goals. This
proposal reflects what the Agency believes to be an appropriate balance
between the Negotiated Rulemaking committee recommendations and the
Agency's burden goals.
D. To Whom Would These New Regulations Apply?
The table below identifies 45 economic sectors which would likely
be affected by the revisions to the RCRA hazardous waste manifest
system, as proposed today. EPA derived the list of sectors from data
contained in the Office of Solid Waste's 1996 ``National Hazardous
Waste Constituent Survey,'' for the sector identity of waste shippers.
Because of the numerous sectors at the four-digit SIC level (i.e., six-
digit NAICS level), the respective two- and three-digit levels are
presented in the table below for many sectors.
List of Economic Sectors Which Are Likely Affected by the Proposed Revisions to the RCRA Hazardous Waste
Manifest System
----------------------------------------------------------------------------------------------------------------
Item SIC Code NAICS Code Sector description
----------------------------------------------------------------------------------------------------------------
1........................................ 1794 23593 Construction excavation work.
2........................................ 20 311 Food and kindred products manufacturing.
3........................................ 2295 31332 Coated fabrics manufacturing.
4........................................ 24 321 Lumber and wood products manufacturing.
5........................................ 25 337 Furniture and fixtures manufacturing.
6........................................ 26 322 Pulp and allied products manufacturing.
7........................................ 27 511 Printing and publishing.
8........................................ 28 325 Chemicals and allied products
manufacturing.
9........................................ 29 324 Petroleum and coal products manufacturing.
10....................................... 30 326 Rubber and miscellaneous plastic products
manufacturing.
11....................................... 32 327 Stone, clay and glass products
manufacturing.
12....................................... 33 331 Primary metal manufacturing industries.
13....................................... 34 332 Fabricated metal products manufacturing.
14....................................... 35 333 Industrial machinery and equipment
manufacturing.
15....................................... 36 335 Electronic and other electric equipment
manufacturing.
16....................................... 37 336 Transportation equipment manufacturing.
17....................................... 38 334 Instruments and related products
manufacturing.
18....................................... 39 339 Miscellaneous manufacturing industries.
19....................................... 4111 485 Local and suburban passenger transit.
20....................................... 4173 48849 Terminal and service facilities for vehicle
transport.
21....................................... 42 484 Trucking and warehousing.
22....................................... 4212 562112 Hazardous waste collection services.
[[Page 28245]]
23....................................... 4491 4883 Marine cargo handling.
24....................................... 4512 48111 Air transportation.
25....................................... 4613 48691 Refined petroleum pipelines.
26....................................... 4789 488999 Transportation services n.e.c.
27....................................... 4813 5133 Telephone communications.
28....................................... 49 2211 Electric, gas and sanitary services.
29....................................... 4953 562211 Hazardous waste treatment and disposal.
30....................................... 4959 562910 Hazardous waste remediation services.
31....................................... 50 421 Wholesale trade (durable goods).
32....................................... 51 422 Wholesale trade (nondurable goods).
33....................................... 5912 44-45 Drugstores and proprietary retail stores.
34....................................... 6552 23311 Subdividers and developers.
35....................................... 7216 81232 Dry cleaning plants.
36....................................... 73 541 Business services.
37....................................... 7532 811121 Top, body and upholstery repair and paint
shops.
38....................................... 7699 561 Repair shops and related services n.e.c.
39....................................... 8062 62211 General medical and surgical hospitals.
40....................................... 8221 61131 Colleges and universities.
41....................................... 87 541 Engineering and management services.
42....................................... 8999 541 Services n.e.c.
43....................................... 95 924-925 Environmental quality and housing
administration (state government offices).
44....................................... 9661 92711 Space research and technology.
45....................................... 9711 92811 National security (e.g. military bases).
----------------------------------------------------------------------------------------------------------------
The following table presents EPA's estimate of more than 92,000
entities which would potentially be affected by today's proposed rule.
Because one of the three proposed revisions to the RCRA manifest system
is voluntary (i.e., the proposed use of an electronic manifest form),
EPA anticipates that facilities involved in RCRA manifesting activities
in these sectors would be differentially affected by the proposed rule,
depending upon voluntary adoption rate. Furthermore, affected entities
play at least four different roles in the RCRA manifest system: (1)
Waste generators who ship wastes off-site, (2) waste transporters
(truck, barge, rail operators), (3) waste receivers who treat, store
and/or dispose of shipped wastes, and (4) state governments which
provide manifest forms, and which also may collect manifest data
(although not required under the Federal RCRA manifest program). The
sources of these estimates are presented in the ``Economics Background
Document'' (dated 15 May 2000), available from the RCRA Docket.
Number of Entities Which May Be Affected By Today's Proposed Rule
------------------------------------------------------------------------
Entity
Item No. and role of affected entities in manifest system count
------------------------------------------------------------------------
1. Waste generators who may ship wastes off-site (shippers).. 89,826
2. Waste transporters (truck, barge, rail operators)......... 500
3. Waste receivers (treatment, storage, disposal facilities). 2,024
4. State governments (which collect manifest data)........... 24
----------
Total.................................................. 92,350
------------------------------------------------------------------------
E. How Much Burden and Cost Reduction Does EPA Expect From the Proposed
Manifest Form Revisions?
Although there are up-front and annual recurring costs to states
and to the private sector associated with all three components of
today's proposed rule, EPA designed this rule so that it would have an
overall net savings impact on affected entities, primarily associated
with anticipated reduction in the annual labor burden for the existing
paper-based manifest system. While the proposed rule includes both
``regulatory'' and ``de-regulatory'' features, the overall net impact
should be a reduction in compliance burdens and costs.
In order to estimate the potential burden reduction for this
proposed rule, EPA prepared two separate, but complementary, burden and
cost savings estimation documents: (1) An ICR document for the proposed
rule (``Information Collection Request 801.#'', (ICR), 19 July 2000) as
required by OMB under the Paperwork Reduction Act of 1995, for the
purpose of officially tracking paperwork burden hours, and (2) an
``Economics Background Document,'' (EBD), 12 May 2000), which applied a
relatively broader, economic analysis approach to assessing potential
burden reduction savings. (EPA also prepared a third economic study
which examined the benefits and costs associated with the electronic
equipment automation component of today's proposed rule, which is
summarized elsewhere in this preamble).
Compared to the methodology of the ICR, the EBD includes other
types of economic costs associated with the RCRA manifest system. For
example, the EBD includes burden and costs associated with both Federal
and State manifest information collection
[[Page 28246]]
requirements, whereas the ICR only covers Federal manifest information
collection requirements. Consequently, the EBD estimates a larger
baseline annual manifest burden, but it also estimates a larger annual
burden savings than the ICR document.
EPA's analysis indicates that all of the components of today's
proposed revision to the RCRA manifest system are expected to reduce
administrative paperwork burden among all RCRA industrial hazardous
waste handlers. The ``Information Collection Request Nr.801.#''
document estimates that all components of today's proposed revision to
the RCRA manifest system, would achieve a reduction of 593,500 hours in
national annual burden, representing 25% reduction in burden compared
to the 2.335 million hour burden baseline as estimated in the ICR.
In comparison, the ``Economics Background Document'' (EBD) for this
proposed rule suggests that the resultant reduction in waste
manifesting burden from all of the proposed revisions combined, is
expected to reach 1.241 million hours annually, consisting of 1.162
million hour reduction to waste handlers, and 79,000 hours to state
agencies. Compared to the baseline annual RCRA hazardous waste manifest
burden of 4.615 million hours as estimated in the EBD, this reduction
in burden hours represents 27% annual burden savings. These estimates
represent a 50% manifest adoption rate scenario in the EBD, which
assumes for simplicity that 50% of manifests become automated in the
first year after the today's rule is promulgated.
However, EPA realizes that the projected savings resulting from
this rule will more likely be phased in over several years. EPA
estimates that the paperwork burden reduction from this rule could
eventually be 730,000 to 1.2 million hours per year, depending on the
requirements actually promulgated in the final rule, and on the rate of
adoption of electronic manifest systems. The actual timing of these
burden reductions is therefore uncertain. The burden reduction (190,000
hours) associated with the manifest form revisions would occur over a
two-year phase-in period for the new form after the final rule is
promulgated. The remaining savings (540,000 to one million hours) could
take several more years to realize. The timing of these savings would
depend on whether or not EPA would need to issue supplemental proposals
addressing manifest automation; the availability of the necessary
software and hardware; and the willingness of states and waste handlers
to adopt the electronic manifest approach.
F. Effective Date of Final Rule
The effective date of the rule is proposed to be six months after
promulgation of the final rule. Upon the effective date of the rule, we
are proposing a two-year ``delayed compliance date'' to allow manifest
users to phase-in use of the new form. That is, for that two-year
period, manifest users would be allowed to use either the old manifest
form or the new manifest form. The Agency is proposing this phase-in
period to allow time for vendors, states and waste handlers to get
approval to assign manifest tracking numbers and to print forms, as
well as to allow time for users to use up existing stocks and find new
supplies.
If you use the old manifest form during this two-year period, the
two-year delayed compliance date would also apply to proposed
regulatory amendments that are directly related to use of the new form
(i.e., form printing, manifest tracking numbers, and instructions for
filling out the new manifest form) as it would be difficult for a waste
handler to comply with these requirements if they are not using the new
form. Waste handlers using the old form during this time period would
have to comply with all other proposed regulatory requirements, but
would continue to comply with the current manifest requirements
directly related to use of the old form (i.e., acquisition hierarchy,
manifest instructions). For example, a TSD rejecting a shipment of
hazardous waste would have to contact the generator for a decision
regarding an alternative facility but could use an old form (prepared
in accordance with the current instructions for filling out the
manifest) to manifest the rejected load.
If you do choose to use the new manifest form during the two-year
period, you would be required to comply with the proposed requirements
for form printing, manifest tracking numbers, and instructions for
filling out the new manifest form. Once the two-year period ends, all
manifest users would be required to use only the new manifest form and
would also be required to comply with the requirements for form
printing, manifest tracking numbers, and instructions for filling out
the new manifest form.
The two-year delayed compliance date would not apply to any
proposed regulatory amendments related to the electronic manifest
proposal. Upon the effective date, waste handlers who opt to use an
electronic manifest for a hazardous waste shipment would be required to
comply with all the requirements associated with use of the electronic
manifest at that time.\1\ This would also include the proposed
requirements for manifest tracking numbers, and instructions for
filling out the new manifest form. EPA does not believe that a phase-in
period would be necessary for the electronic manifest because use of
the electronic manifest would be optional. Waste handlers would be able
to use the paper system until they are prepared to implement the
electronic manifest. In addition, waste handlers would probably not opt
to use the electronic manifest system unless they were prepared to
implement it in accordance with the final requirements.
---------------------------------------------------------------------------
\1\ In authorized states, whether or not a waste handler would
be able to use an electronic manifest system would be determined by
the RCRA authorized state program. We are tentatively proposing not
to require States to adopt the proposed electronic manifest option
as part of their authorized program. See Section IX for further
discussion.
---------------------------------------------------------------------------
EPA requests comment on whether a two-year delayed compliance date
for the use of the revised uniform Hazardous Waste Manifest (and the
proposed requirements directly related to use of the revised manifest)
is sufficient. EPA also requests comment on whether a delayed
compliance date would be appropriate for the electronic manifest
system.
The Agency also requests comments from states on whether they need
to make legislative changes to adopt the new manifest or the automation
option and if so, how much time is necessary to complete such changes.
See Section IX of this preamble for a detailed explanation of how the
proposed regulatory changes would be administered and enforced in the
States.
IV. The Revised Manifest Form
A. Manifest Form Acquisition
1. How Is EPA Changing the Way Manifest Forms Are Acquired?
EPA proposes to allow manifest users to obtain the form from a
greater number of sources for use in any state. In particular, EPA
proposes to allow State agencies, waste handlers (generators,
transporters, and TSDFs) and commercial business form printers to print
the form. EPA is proposing to require those who would print the new
manifest to first register with the Agency. The purpose of the registry
would be twofold: (1) to ensure that the forms are printed according to
the prescribed federal printing specification (i.e., the standardized
revised form) and (2) to ensure that a unique number for each manifest
would be preprinted on
[[Page 28247]]
the form. Thus, generators could register to print manifest forms, or
they could obtain a manifest form from any registered source of
manifest forms.
Under these new proposed regulations, both the current printing
arrangements and the acquisition requirements for manifest would
change. Currently, authorized States are the primary source of
manifests, and States either print these forms themselves or contract
with printers to print the form according to the States'
specifications. While States that currently print and distribute
manifests are required to follow the Uniform Manifest format, the
current regulations allow some variability among State manifests,
particularly with respect to including and providing instructions for
optional fields used in each State, minor formatting variations, and
for describing copy submission and mailing requirements. As a result,
there are now 24 different State variations of the Uniform Manifest.
The current manifest acquisition regulation generally requires that
generators obtain their manifests from a State agency, and determines
which State manifest must be used. Under the procedures proposed today,
State, waste handlers, and commercial form printers could register to
print manifests, and the manifests printed by any registered printer
could be used in any state.
2. Why Is EPA Proposing this Change?
EPA is proposing a new system for obtaining manifest forms, to
reduce the burden that waste handlers currently encounter in obtaining
manifests from multiple States, and to reduce or eliminate the
variability among states on what forms to use, what is printed on them,
and how to use them.
Under the current regulations, a hazardous waste generator must
check at least two different State agencies' manifest requirements to
determine how and where to obtain a manifest. The current manifest
acquisition requirements are set forth in 40 CFR 262.21, which contains
a hierarchical scheme for determining which state's manifest should be
used for a particular waste shipment. EPA and DOT developed this
approach in the 1984 Uniform Manifest Rule, in order to accommodate
States that wished to collect and track manifest data, while avoiding
conflicts between States' requirements. EPA explained in the 1984
rulemaking that it did not intend to print and supply manifest forms,
and the hierarchy approach resulted from the Agency's efforts to
effectively arrange the distribution of manifests by the States. 49 FR
10490 at 10495 (March 20, 1984).
The Sec. 262.21 acquisition hierarchy requires a generator to first
look to the manifest requirements of the consignment (i.e., the state
in which the hazardous waste shipment will be transported to, and
subsequently managed in that state) State. If this State supplies a
manifest and requires its use, then the consignment State's manifest
must be used for the waste shipment. If, however, the consignment State
does not supply a manifest, but the generator's State does supply a
manifest and requires its use, then the generator must use the manifest
required by the generator's state. If neither the consignment nor
generator State supplies a manifest, then the generator may obtain the
manifest from any source. When EPA announced this hierarchy regulation
in 1984, the Agency explained that this approach would serve two
important interests: (1) It would help consignment States inform out-
of-State generators of requirements to submit manifest copies to the
consignment States (i.e., the form would contain a notice to this
effect); and (2) it would allow consignment States to pre-print a State
manifest document number on each manifest, to aid in tracking the
manifest in the States' tracking systems. 49 FR at 10496. The
acquisition hierarchy establishes a preference for obtaining the form
from the consignment State, as EPA determined in 1984 that a
consignment State's interest in overseeing waste management within its
borders outweighed any convenience that would result to generators if
they were allowed to obtain manifests from a single source. Id.
EPA believes that the current acquisition hierarchy puts
unnecessary administrative burden on certain waste handlers, particular
those who conduct business in multiple states that require the use of
their state manifest. For example, if a waste handler conducts business
in multiple states, then he/she must make arrangements to acquire
manifest forms from each state or keep stocks of inventory of the
varying manifest formats. In addition, waste handlers must become
familiar with instructions for the different forms to ensure that they
complete the manifests correctly. Removing the current acquisition
system, eliminates the aforementioned inconveniences, since the form
supplied by states and other manifest sources would be the same.
EPA believes that the factors relied upon in 1984 to support the
current acquisition hierarchy would not be significant under the
revised manifest proposed today. EPA is proposing to eliminate all but
two optional fields (waste codes and handling codes), and EPA believes
that most manifests would include these ``optional'' data as the normal
practice. The 6-copy form with unique, pre-printed manifest tracking
numbers under the Federal specification would satisfy many of the needs
States have previously identified as reasons for controlling the
distribution of the manifest. Also, information on State-only wastes,
use of optional fields, and State-specific copy submission requirements
can be obtained by contacting the States directly, or through published
or on-line sources. State contact information and telephone numbers can
be found, for example, on the Internet at EPA's website (http://www.epa.gov/epaoswer/osw/stateweb.htm).
EPA believes that the informational purposes served by allowing
States to distribute the manifests under the acquisition hierarchy can
be met adequately by other means. There would be little, if any,
variability remaining in the proposed revised manifest form, and
information describing State-specific requirements can be obtained
through other means than distribution of the form. In addition, EPA
believes that the States' interest in ensuring that unique tracking
numbers are provided for each manifest can be met by the proposed
printing registry approach.
The proposed change regarding the printing and distribution of the
paper form would also be consistent with the changes proposed to
implement the electronic manifest system. Thus, the Agency believes
that both the electronic and paper formats would be distributed more
efficiently and with less burden under the approach proposed today.
While the remainder of this discussion focuses on the registry and
acquisition requirements for the paper form, the Agency points out that
as with the printers of paper manifests, waste handlers who originate
an electronic manifest would have to register to get an approved
tracking number system.
3. How Much Burden Reduction Does EPA Expect From the Proposed Manifest
Form Revisions?
EPA's analysis indicates that today's proposed revision to the RCRA
hazardous waste manifest form is expected to reduce administrative
paperwork burden among all RCRA industrial hazardous waste handlers who
ship wastes off-site. The ``Economics Background Document'' (12 May
2000) for this proposed rule estimates that the resultant reduction in
[[Page 28248]]
waste manifesting burden from the proposed revisions to the manifest
form, would be 188,000 hours annually to RCRA hazardous waste handlers.
This reduction in burden hours is expected to account for between 16%
and 26% of the annual burden hour savings to waste handlers expected
from all of the RCRA manifest system revisions proposed today.
4. Where Would a Waste Handler Get Paper Manifest Forms?
Generators and other waste handlers needing the manifest would be
able to register with EPA and print their own manifests. Generators
could also obtain their manifests from other sources, however. The
proposal would allow waste generators to obtain blank copies of the
manifest from any of the following sources:
Any state hazardous waste agency that registers as a
printer and prints manifests;
Commercial business forms printers who register to print
the form; and
Transporters and TSDFs who register to print the form.
These companies often provide the manifest as a service to their
generator customers.
5. Must a Generator Still Contact the State?
Yes, you would still need to contact the consignment state
periodically to determine which of the state-only blocks of information
on the manifest you are required to fill out. Also, as mentioned above,
EPA determined that while it was not necessary to impose a federal
requirement that generators submit copies of each completed manifest
form to a State or to EPA, the Agency recognized that states could
impose a more stringent manifest system that could involve the
submission by generators of copies of every completed manifest form.
This proposal does not affect the ability of a state to require the
submission of manifests. However, states would no longer be able to
print a notice of such requirements on the manifest form. To continue
to give states the ability to track manifested shipments of waste, it
is still necessary to contact your state to see what they require in
terms of state-required information on the manifest and in terms of
submitting manifest copies to states.
6. What Special Requirements Would Apply to the Printers of the
Universal Manifest?
You would be required to register with EPA as a forms
printer to get your manifest tracking number system approved and to
ensure that you adhere to Federal printing specifications and
procedures;
No additional boxes could be added;
No existing boxes could be deleted;
You would be required to print a form that had at least
the following six copies:
--Copy 1: TSDF to destination State (if required);
--Copy 2: TSDF to generator State (if required);
--Copy 3: TSDF to Generator;
--Copy 4: TSDF's signed file copy
--Copy 5: Transporter's file copy
--Copy 6: Generator's initial copy.
You would be required to print the form so that the
manifest dimensions are 8\1/2\ x 11 inches;
You would be required to print the form in black ink so
that it can be photocopied or faxed;
You would be required to provide the standardized
instructions outlined below;
You would be required to follow the same copy naming
structure as outlined below; and
7. What is the Naming Convention for the Different Copies of the
Manifest?
Page 1 (top copy): ``Designated facility to consignment State'' (if
required);
Page 2: ``Designated facility to generator State'' (if required);
Page 3: ``Designated facility to generator'';
Page 4: ``Designated facility copy'';
Page 5: ``Transporter copy''; and
Page 6 (bottom copy): ``Generator's initial copy.''
If the generator is required to submit a copy of the manifest to
the generator state, the generator should make a photocopy of the
manifest to supply this additional copy. Also, note that a completed
manifest may contain fewer pages if the state does not require
submission of forms; however, the printer would be required to print a
6-copy form. Under certain circumstances (e.g., exports, imports,
additional transporters, exception reporting, and/or states requiring
additional copies), more than 6 copies of a manifest may be necessary.
In these cases, the generator or transporter should photocopy the most
legible copy of the form available to ensure that the extra manifest
copies are legible.
8. How Would the Acquisition Regulation Change?
EPA is proposing to replace the current acquisition hierarchy in
Sec. 262.21 with a simple requirement that a generator may print its
own manifest if it has registered with EPA to do so, or a generator may
use a manifest obtained from any commercial printer, state, or other
waste handler that has registered with EPA to print the manifest. In
addition to amending 40 CFR 262.21, the provisions currently found at
40 CFR 271.10 for States that print manifests and/or require completion
of state optional fields would be revised accordingly.
9. How Would Manifest Tracking Numbers be Changed by the Proposal?
Under this proposal, the current fields for the generator's
manifest document number (i.e., the generator's U.S. EPA ID number plus
a unique 5-digit number that the generator assigns to each manifest)
and the state manifest document number would be replaced with one
mandatory field that would be called the manifest tracking number (Item
3). Note, that the generator's EPA ID number would still appear on the
form; however, it would not be part of the manifest tracking number.
The manifest tracking number would be a unique pre-printed number that
would be supplied by a registered manifest printer. A waste generator
could register with EPA to print its own manifests and assign its own
manifest tracking numbers, or, the generator could obtain manifest
tracking numbers from other registered sources who print for the
generator, including States, transporters, TSDFs, or commercial
business form printers.
An entity that wants to print manifests would register with EPA and
demonstrate that they have a system in place to ensure that unique,
pre-printed numbers would be assigned to each manifest. Similarly,
entities implementing an electronic manifest system would register with
EPA to ensure that their electronic system would apply a unique
manifest tracking number to each electronic manifest.
The advantage of this manifest tracking number requirement is that
it would allow waste handlers to acquire uniquely numbered manifests
from numerous sources, without having to obtain a different set of
forms from each State in which it does business. The proposal would
eliminate an ``optional'' field from the current manifest, and a new
mandatory field would replace two existing fields on the manifest.
Also, waste handlers with significant involvement in hazardous waste
activities would be able to register and print their own manifests for
use within their own sites or for use by their multi-state customers.
Multi-state operations would benefit especially, as they would no
longer need to stock multiple state formats of the manifest.
[[Page 28249]]
10. Could States Still Require Use of Only Their Manifests?
When EPA adopted the acquisition hierarchy in 1984, we recognized
the need for a regulation that would arbitrate possible conflicts
between State manifest requirements for generators located in one
state, but disposing of their waste in another. The acquisition
hierarchy in current Sec. 262.21 arbitrates such conflicts by
establishing a rule that one State manifest is always sufficient for
any hazardous waste shipment, and by designating which state's manifest
must be used.
With today's proposal, it is still EPA's intent that only one
manifest need be obtained to accompany any off-site shipment. Under the
revised Uniform Manifest proposed today, variability in the form would
be eliminated, and the source of the manifest form used would be
immaterial. So, when today's proposed approach becomes effective,
States would not be allowed to require use only of a manifest form
printed or distributed by the State. States would, of course, be
eligible to register and distribute manifests, but State laws which
purport to require use only of a form distributed by the State would be
deemed inconsistent under 40 CFR 271.4. Otherwise, waste handlers could
be required to obtain multiple manifests to satisfy conflicting and
duplicative State law requirements for their specific manifests. This
result would, in EPA's view, frustrate the accomplishment of our
objective to introduce a truly standard manifest form, and amount to an
unreasonable burden on the free movement of waste in commerce.
11. Request for Comments
EPA requests comments on the new approach proposed today for
printing and obtaining manifests. Would the proposed approach be
effective in eliminating burden and variability in the manifest system,
or, would it more likely cause disruption to arrangements that are well
understood and work well? Is the proposed registry approach the most
efficient means for EPA to ensure a standard manifest with pre-printed,
unique tracking numbers? Would many waste handlers find it advantageous
to print manifests for their own use or the use of their customers? How
would the proposal affect these firms' burdens, costs, and manifest
operations? Would States that currently derive revenue from the
distribution of manifests be disadvantaged unduly by the proposal?
Would some States face statutory obstacles to altering their current
manifest distribution requirements? Comments addressing these issues
would be helpful to the Agency.
EPA also requests comments on an alternative option that would
retain the proposed Federal printing specification, but not the
proposed registry. Under the alternative option, States would still be
the primary source of manifests, and the current acquisition hierarchy
would be retained to determine from which State the manifest must be
obtained. This option would retain the benefits of the standard
manifest format, without disrupting current arrangements for obtaining
manifests from States. However, as with the current system, waste
handlers would not generally be able to print their own manifests as
allowed under the proposed option.
B. International Shipments
1. What is EPA Proposing With Respect to Manifests for Imports and
Exports?
EPA is proposing to amend slightly the manifest requirements and
the manifest form to provide more clear information on the manifest
about import or export shipments. Under today's proposal, the manifest
would contain a new ``International Shipments'' Block. In this new
block, the primary exporter or importer of a hazardous waste shipment
would be required to check whether a shipment is an export or import
and to note the port of exit or entry. In addition, space would be
provided in this block for the transporter of an export shipment to
sign and date the manifest to indicate when the shipment left the
United States. For imports, the transporter would be required to leave
a copy of the manifest at U.S. Customs, as is currently required for
exports.
2. Why is EPA Proposing This Change?
Under the current regulations for exports, transporters are
required to leave a copy of the manifest at U.S. Customs. The current
regulations and manifest instructions further require that export
manifests include information in the ``Special Handling Block''
identifying the port of exit, as well as the transporter's signature
attesting to the date when the export shipment left the U.S. According
to a national transporters' association, the current rules are not well
understood, and this has resulted in inadvertent violations by
transporters. In part, this is because the manifest form itself is not
sufficiently clear on how this information is to be entered. In
addition to hindering compliance by transporters, this lack of clarity
has also resulted in incomplete submissions that impair EPA's ability
to accurately track exports of hazardous waste. To address these
concerns, the Agency is proposing to make the existing export tracking
requirements more clear in the regulations and on the manifest form
itself, which would include an International Shipment Block for
collecting the data.
In addition, the Agency is proposing new requirements in connection
with imports of hazardous waste. First, the importer would be required
to indicate on the new International Shipment Block of the manifest
whether a shipment is an import and the port of entry. Second, the
transporter bringing import shipments into the U.S. would be required
to leave a copy of the manifest with U.S. Customs. Currently, a
manifest is required to accompany waste shipments that enter the U.S.,
but transporters are not required to leave a manifest copy with U.S.
Customs for imports. Several ports have nevertheless encouraged the
collection of import manifests, and all of the ports collect the export
manifests which transporters are currently required to leave with U.S.
Customs. Moreover, for international shipments of hazardous waste for
recovery within the Organization for Economic Cooperation and
Development (OECD), of which the U.S. is a member, a facility in the
U.S. receiving an import covered by regulations at 40 CFR Part 262,
Subpart H must send a copy of the OECD tracking form to EPA. By
requiring that transporters leave a copy of import manifests with U.S.
Customs, EPA would achieve better consistency with the current
requirements in 40 CFR Part 262, Subpart H that require tracking
information on import shipments to be provided to the Government. These
import manifests would aid EPA's oversight of waste imports, as the
manifests collected by Customs could be turned over to EPA's Import/
export program for tracking purposes.
3. How Would the Manifest and the Regulations Change?
To make the requirements more clear, the Agency is proposing to add
an International Shipment Block to the manifest. This block would
contain checkboxes to indicate whether the shipment is an export or an
import, and space to enter the port of exit or entry. For export
shipments only, the block would include space for transporters to sign
and date the manifest to indicate when a shipment has left the U.S.
This block would provide more explicit direction for entering data with
respect to exports and imports.
In addition, the regulations at 40 CFR 262.54, 262.60, and 263.20
would be
[[Page 28250]]
changed to clarify that primary exporters and importers are to fill out
the International Shipment block on the manifest and that transporters
of both exports and imports are to leave a copy of the manifest with
the U.S. Customs official at the port of exit from the U.S. or at the
port of entry to the U.S. EPA would also modify Sec. 271.11(c), since a
waste handler who imports waste shipments into the U.S. would be
required to leave a copy of the manifest with U.S. Customs.
C. Bulk Packaging
1. How is EPA Changing Its Regulations Related to Bulk Containers?
EPA proposes to change its regulations that relate to bulk
containers to be consistent with the DOT definition for bulk packaging
which includes any container with a capacity greater than 119 gallons
(0.45 cubic meters, 450 liters, or 15.9 cubic feet) or more. Because of
this change some containers currently considered bulk under EPA's
regulations would no longer be considered bulk. Current RCRA
regulations treat as ``bulk'' containers which hold more than 110
gallons. Under this proposal, a container which holds 119 gallons or
less would no longer be considered bulk, including containers of 110
gallons.
The 110 gallon standard was based on DOT requirements which, at the
time, defined bulk packaging as 110 gallons or more (47 FR 36092;
August 18, 1982). DOT revised these standards \2\ in 1991 to make U.S.
standards more consistent with international requirements. (See 55 FR
52471, December 21, 1990.) Today's notice proposes to revise RCRA
regulations pertaining to bulk containers to be consistent with the DOT
definition of bulk packaging.
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\2\ In 49 CFR 171.8, DOT defines ``bulk packaging'' to mean ``a
packaging, other than a vessel or a barge, including a transport
vehicle or freight container, in which hazardous materials are
loaded with no intermediate form of containment and which has: (1) A
maximum capacity greater than 450 (119 gallons) as a receptable for
a liquid; (2) A maximum net mass or greater than 400 kg (882 pounds)
and a maximum capacity greater than 450 L (119 gallons) as a
receptable for a solid; or (3) A water capacity greater than a 454
kg (1000 pounds) as a receptable for a gas as defined in
Sec. 173.115 of this subchapter.''
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2. Why is EPA Changing Its Rules Related to Bulk Packaging?
This change would bring EPA into conformity with the standard
already used by DOT and the international community, and would increase
uniformity in manifesting practices. Generators would be able to use
the same standard measurement for bulk containers for all shipments of
hazardous materials.
3. How Would This Affect Me?
If you:
(1) handle residues of hazardous waste in containers according to
the provisions at Sec. 261.7(b),
(2) are a generator who sends bulk containers of hazardous wastes
off-site (see 262.32(b)),
(3) are a transporter who transports bulk shipments by water (see
263.20(e)), or
(4) are a TSDF who receives bulk shipments for management (see
264.71(b)), then: you would have to confirm whether the containers you
are managing would still be considered bulk. If the containers you are
managing do not meet DOT's definition of bulk, then you would no longer
be allowed to handle the waste as bulk under EPA regulations.
4. How Would the Regulations Change?
First, the regulations at 40 CFR 261.7 Residues of hazardous waste
in empty containers would change slightly to incorporate DOT's
definition of bulk packaging. 40 CFR 261.7 discusses how much hazardous
waste may remain in a container that is empty. Among other things,
these regulations require that a container must be emptied using the
practices commonly employed to remove material from that type of
container e.g., pouring, pumping, and aspirating, and that no more than
a specified amount of waste must be left in the container. One method
of determining whether a container is RCRA ``empty'' is based on
whether the container is greater or less than 110 gallons total
capacity.
For containers less than 110 gallons, the regulations at 40 CFR
261.7(b)(1)(iii)(A) state that a container is empty if: ``No more than
3 percent by weight of the total capacity of the container remains in
the container or inner liner if the container is less than or equal to
110 gallons in size * * *''
If the container is greater than 110 gallons, the regulations at 40
CFR 261.7(b)(1)(iii)(B) state that a container is empty if: ``No more
than 0.3 percent by weight of the total capacity of the container
remains in the container or inner liner if the container is greater
than 110 gallons in size.''
This proposal would modify the regulations so that 40 CFR
261.7(b)(1)(iii) would define a container as empty if:
(A) No more than 3 percent by weight of the total capacity of
the container remains in the container or inner liner if the
container is less than or equal to 119 gallons in size, or (B) No
more than 0.3 percent by weight of the total capacity of the
container remains in the container or inner liner if the container
is greater than 119 gallons in size.
Second, the regulations for generators at 40 CFR 262.32 Marking
would change slightly to incorporate DOT's definition of bulk
packaging. 40 CFR 262.32(b) requires a generator to mark each container
of 110 gallons or less used in transportation with the words
``HAZARDOUS WASTE -Federal Law prohibits Improper Disposal. If found,
contact the nearest police or public safety authority or the U.S.
Environmental Protection Agency,'' and write the generator's name,
address, and the manifest tracking number on the container. Under the
proposed revisions, this marking requirement would apply to containers
of 119 gallons or less.
Third, the regulations which refer to ``bulk shipment'' would not
change. The term ``bulk shipment'' is used in 40 CFR 262.23, 263.20,
and 264.71. Where the regulations use the term, these regulations would
apply to shipments of a capacity of more than 119 gallons, rather than
shipments of more than 110 gallons. Therefore, you would no longer be
able to manage a container of between 110 gallons and 119 gallons as a
bulk container.
Please note, other than to incorporate the DOT definition for bulk
packaging, EPA is not reconsidering, reopening, or requesting comment
on the provisions described above.
D. Use of Fractions
1. What Is EPA Changing With Respect to the Use of Fractions in the
Quantity Description on the Manifest?
EPA is clarifying that generators and others completing the
quantity description for waste being shipped (see Item 13) should use
whole numbers to describe non-bulk shipments (less than or equal to 119
gallons) of hazardous waste and that bulk shipments (greater than 119
gallons) may be described using whole numbers where possible, or
fractions if necessary.
2. Why is this clarification necessary?
EPA's regulations are silent on the use of fractions on the
manifest. EPA has in the past stated that no fractions or decimals
should be used and continues to prefer that the quantity description
should not include fractions. In March 20, 1984, EPA stated that it ``.
. . does not believe that the quantity description should include
fractions. Rather, the Agency believes that the quantity description
should be the most accurate
[[Page 28251]]
possible without using fractions or decimals.''\3\
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\3\ See the March 20, 1984 Federal Register (49 FR 10498) for
this discussion.
---------------------------------------------------------------------------
Despite this past statement, states have experienced an increase in
the number of manifests containing descriptions with fractions. State
databases may have difficulty accepting numbers such as 30.5 pounds,
making the data entry process more difficult. To minimize this, states
asked EPA to require that generators and others preparing the manifest
only use whole numbers when indicating quantities of waste on the
manifest.
While this is a workable solution for non-bulk shipments, the
Agency realizes that bulk shipments of hazardous waste may be
transported in large containers such as tank trucks, and that fractions
may be the best way to accurately describe the contents of the
container. Because there would be a significant discrepancy in the
amount of hazardous waste recorded on the manifest if one ton were used
to describe a container with 0.5 tons of waste, EPA believes that the
use of fractions is warranted in bulk containers. Thus, EPA is
clarifying that whole numbers should be used for non-bulk shipments of
hazardous waste, and that fractions may be used for bulk shipments
where necessary.
3. What Would Change?
EPA is proposing to include in the manifest instructions (item 12)
a statement that generators and others completing the form must use
whole numbers for non-bulk shipments of hazardous waste, except that
fractions may be used for bulk shipments where necessary.
E. Emergency Response Phone Number
1. What Is EPA Proposing Related to Emergency Response Phone Numbers on
the Manifest?
EPA proposes to designate one space on the manifest for Emergency
Response information. DOT currently requires you to use an Emergency
Response phone number for most shipments of hazardous materials
including all hazardous wastes that are manifested. (See 49 CFR
172.604) While hazardous waste shipments must be shipped with an
Emergency Response phone number, the current manifest does not contain
a separate block for this information. DOT requires an emergency
response phone number in addition to other information to identify the
waste. This information is important in aiding emergency responders in
dealing with an emergency involving hazardous wastes.
The emergency response phone number must:
be the number of the generator or the number of an agency
or organization who is capable of and accepts responsibility for
providing detailed information about the shipment;
reach a phone that is monitored 24 hours a day at all
times the waste is in transportation (including transportation related
storage); and
must reach someone who is either knowledgeable of the
hazardous waste being shipped and has comprehensive emergency response
and spill cleanup/incident mitigation information for the material
being shipped or has immediate access to a person who has that
knowledge and information about the shipment.
Currently, you may place this number in the Special Handling
Instructions and Additional Information Block (Item 15), in the
Generator's Phone Number Block (Item 4), and in some cases in the
margin or on the back of the form. Some generators place this
information in the DOT description box, especially if more than one
emergency response phone number is needed.
2. Why is EPA Proposing These Changes?
Because there are no explicit directions on the manifest to supply
an emergency response phone number, and because there is no designated
space for this number, some generators may not be aware that this is a
requirement, and emergency responders may not be able to quickly find
this information on the form. EPA is proposing to make it more clear
that the emergency response phone information is required on the form,
and make this information easier to find by designating one space on
the manifest for emergency response contact information.
EPA expects that this additional instruction and the removal of
other redundant or unnecessary waste handler phone numbers (see
discussion below in Section IV.G) would reduce paperwork burden and
facilitate the emergency response process by making it clearer which
number is to be used in an emergency.
3. How Would This Change Affect the Regulations?
The manifest form would be modified by adding a box specifically
for emergency response information, and the instructions would be
modified to reflect the addition of this box.
F. Generator Certification
1. How Would the Generator Certification Statements on the Manifest Be
Modified?
This proposal would modify the wording of the ``shippers
certification'' and the appearance of the ``waste minimization
certification'' statements. The changes proposed today, however, would
not modify the current requirement that generators must sign these
certifications on the manifest form each time a manifest is prepared.
2. What Are the Current Requirements to the Generator Certification?
Generators must sign the Generator's Certification found on the
manifest form each time a manifest is prepared. The ``Generator's
Certification'' consists of a signature attesting to a statement that
the shipment has been properly prepared for transportation (a shipper's
certification) and a statement that the generator has a program in
place to reduce the volume and toxicity of waste generated (the waste
minimization certification). Today's proposal does not modify the
requirement that generators make these certifications on the manifest
each time a manifest is prepared
The shipper's and waste minimization certification statements are
found in Block 16 of the current Uniform Hazardous Waste Manifest
followed by space for a single signature (i.e., a single signature is
used to attest to both certifications). The content of the shipper's
certification statement is as follows:
I hereby declare that the contents of this consignment are fully
and accurately described above by proper shipping name and are
classified, packed, marked, and labeled, and are in all respects in
proper condition for transport by highway according to applicable
international and national government regulations.
Today's proposal would slightly modify this statement. The content
of the waste minimization certification statement is as follows:
If I am a large quantity generator, I certify that I have a
program in place to reduce the volume and toxicity of waste
generated to the degree I have determined to be economically
practicable and that I have selected the practicable method of
treatment, storage, or disposal currently available to me which
minimizes the present and future threat to human health and the
environment; OR, if I am a small quantity generator, I have made a
good faith effort to minimize my waste generation and select the
best waste management method that is available to me and that I can
afford.
Today's proposal would not modify the waste minimization
certification
[[Page 28252]]
statement, but the complete text of this certification statement would
no longer appear on the manifest. The single signature in Block 16
would still attest that the signatory certifies both statements.
3. How Would EPA Modify the Language of the Shipper's Certification?
EPA proposes to update the first part of the shipper's
certification statement so that it conforms to the DOT shipper's
certification (49 CFR 172.204). On December 29, 1994 (59 FR 67487), DOT
slightly changed the wording of the Shipper's Certification found at 49
CFR 172.204(a). These changes appear in bold in the following text:
I hereby declare that the contents of this consignment are fully
and accurately described above by the proper shipping name, and are
classified, packaged, marked and labelled/placarded, and are in all
respects in proper condition for transport according to applicable
international and national governmental regulations.
In addition, EPA proposes to delete the words ``by highway'' from
the shipper's certification statement. Currently, if a transportation
mode other than highway would be used, generators are instructed to
line out the words ``by highway'' and insert the appropriate mode of
transport (i.e., rail, water, or air). EPA does not believe it
necessary for the mode of transport to be specified as part of the
shipper's certification (see DOT's shipper's certification which does
not specify the mode of transport) and eliminating the words ``by
highway'' from this certification would eliminate the need for
generators to modify the statement when other forms of transportation
are utilized.
EPA currently requires primary exporters to add at the end of the
first sentence of the shipper's certification statement the words ``and
conforms to the terms of the EPA Acknowledgment of Consent to the
shipment.'' EPA is not proposing to change this requirement.
The new shipper's certification statement on the manifest would
read as follows:
I hereby declare that the contents of this consignment are fully
and accurately described above by the proper shipping name, and are
classified, packaged, marked and labelled/placarded, and are in all
respects in proper condition for transport according to applicable
international and national governmental regulations.
4. How Would EPA Change the Appearance of the Waste Minimization
Certification Statement?
EPA proposes to replace the current waste minimization
certification statement on the manifest with the following statement of
certification: I certify that the waste minimization statement
identified in 40 CFR 262.27(a) (if I am a large quantity generator) or
(b) (if I am a small quantity generator) or authorized equivalent state
regulations is true with respect to this shipment. Section 262.27 would
read as follows:
A generator who initiates a shipment of hazardous waste must
certify to one of the following statements in Item 16 of the uniform
hazardous waste manifest:
(a) ``I am a large quantity generator. I have a program in place
to reduce the volume and toxicity of waste generated to the degree I
have determined to be economically practicable and I have selected
the practicable method of treatment, storage, or disposal currently
available to me which minimizes the present and future threat to
human health and the environment'; or
(b) ``I am a small quantity generator. I have made a good faith
effort to minimize my waste generation and select the best waste
management method that is available to me and that I can afford.''
5. Why Is the Agency Proposing this Change to the Appearance of the
Waste Minimization Certification Statement?
EPA is proposing these changes because they are necessary to ensure
that other proposed form changes such as the inclusion of new fields
for rejected loads, container residues, and international shipments
would fit on the form. The text of the generator waste minimization
statement currently occupies a significant amount of space on the
manifest form. Leaving the statement as is, along with the proposed
additions to the manifest form would cause the form to exceed a single
page. EPA would prefer to maximize the space of the current one page
8\1/2\ by 11" form rather than make it a multiple page form, because we
do not want to increase the volume of paper that manifest users already
keep on file. In order to accommodate the addition of new fields to the
8\1/2\ by 11" form (i.e., fields for rejected loads, container
residues, and international shipments), EPA proposes to remove the full
text of the waste minimization statement from the form. The waste
minimization certification would still be made on the manifest form,
with the waste minimization statements located in the regulations for
reference.
G. Elimination of Certain State Optional Boxes
1. Why Is EPA Proposing To Reduce the Number of State Optional Boxes?
EPA proposes to eliminate certain State Optional Boxes to (1)
reduce the amount of time spent completing the manifest form, and (2)
to reduce the amount of duplicate information. EPA also proposes to
remove certain optional fields that might have some significance to
certain States, but reportedly do not have wide use and information
provided in these fields can be readily obtained elsewhere.
Currently, the Manifest contains eleven Optional blocks (Block A-
K). EPA does not require that you complete these blocks. States,
however, may require that you complete these blocks to collect
specified additional information about the waste that is being shipped,
and about those who handle the waste listed on the form.
2. Which Boxes Would Be Eliminated?
EPA proposes to remove the following nine blocks from the manifest
form:
------------------------------------------------------------------------
Block No. Name of block
------------------------------------------------------------------------
Item A.............................. State Manifest Document Number.
Item B.............................. State Generator's ID.
Item C.............................. State Transporter's ID.
Item D.............................. Transporter's Phone.
Item E.............................. State Transporter's ID.
Item F.............................. Transporters Phone.
Item G.............................. State Facility's ID.
Item H.............................. Facility's Phone.
Item J.............................. Additional Descriptions.
------------------------------------------------------------------------
3. Why Is EPA Proposing To Remove Each of These Boxes?
When EPA promulgated the uniform hazardous waste manifest in 1984,
it believed that the uniform manifest would reduce regulatory burden on
generators and transporters by providing a uniform format for
information necessary for the transportation of hazardous waste. The
Agency also believed that inclusion of blocks A through J would provide
states with space on the form to substantially meet the information
needs of their hazardous waste program. In fact, the 1984 rule
indicates that the Agency had chosen the optional spaces based on
received comments, including recommendations from the (Hazardous
Materials Advisory Council) HMAC and ASTSWMO joint task group. However,
since the promulgation of the joint EPA/DOT uniform manifest rule EPA
has received a number of complaints from the regulated community
regarding the burden associated with variability among states manifest
requirements. In addition, ASTSWMO created a Task Force (the Task Force
consisted of several State hazardous waste program managers), which in
1990 submitted a petition to EPA with recommendations to modify
existing manifest regulations, including recommendations to remove
certain optional fields from the manifest form entirely. The ASTSWMO
petition indicated that the primary objective for
[[Page 28253]]
the recommended changes to the nation's hazardous waste management
system is to increase uniformity among States. EPA agrees that the
manifest form and certain manifest requirements should be modified and
that the proposed revisions discussed in today's rule would increase
the effectiveness of the manifest system, through the standardization
of required and optional fields on the form.
The Agency notes, however, that today's action does not reflect all
recommendations provided in the ASTSWMO petition and some of the
modifications proposed today conflict with some of the recommendations
(e.g., removal of optional field H, Facility phone number). The Agency
believes, however, these changes are necessary because, among other
reasons, EPA has proposed to include additional blocks on the form for
special shipment waste (i.e., emergency response information, rejected
loads, container residues, and international shipments) to better track
these shipments from cradle to grave. (See sections VI of this preamble
for container residues, rejected loads, and section IV.B for
international shipments.)
Since the regulated community, including some of the participants
of the ASTSWMO petition prefer a one page 8\1/2\ by 11" manifest form
(see page 35 of the ASTSWMO petition), the inclusion of these elements
on the proposed new form would make it extremely difficult to ensure
that these additions, which the Agency believes needs to be added, as
well as other proposed changes to the form would fit the one page 8\1/
2\ by 11" format. The Agency believes, however, that today's proposed
rule is consistent with the goal of the ASTSWMO petition's recommended
changes. Further explanations regarding the removal of blocks A through
K from the form and combining block J with Item 15 are provided below.
Item A--State Manifest Document Number. EPA proposes to remove the
State Manifest Document Number and replace it with a mandatory federal
field entitled ``Manifest Tracking Number.'' EPA understands the
importance of a unique tracking number for States that actively track
manifests and therefore, would provide a single block in which a unique
number would be placed. EPA proposes to delete the old federal document
number (which consisted of the generator's EPA ID number and a five-
digit number assigned by the generator) and the old Item A and replace
it with a single federal block called the Manifest Tracking Number.
Printers of the manifest would be required to preprint a unique
tracking number on each manifest. Forms printers would register with
EPA for approval of a unique prefix and of their (sequential) numbering
system. Although EPA is removing the state manifest document number,
its replacement would allow states to continue to request additional
information about the shipment. See section IV.A for further details.
Item B--State Generator's ID. EPA proposes to remove the State
Generator's ID block because EPA believes that most States no longer
use the State Generator ID number. The ASTSWMO petition supports this
and indicates that while some states do use state ID's, the use of the
State ID number is limited and has no meaning in other states. The
Agency believes that those States that currently use information from
the State ID Block can obtain equivalent information with the
generator's EPA ID number. The two numbers provide equivalent
information about the generators identity, presumably a State could use
the EPA ID number to obtain generator information by linking into the
Resource Conservation Recovery Information System \4\ (RCRIS) with the
EPA ID. Therefore, a State that uses the State Generator ID number for
tracking purposes should be able to use an EPA ID number as the site
specific identifier, by converting their current database system to EPA
ID numbers. The ASTSWMO petition also states that the ``wave of the
future'' would be toward converting to EPA ID numbers as site specific
identifiers.'' EPA agrees that the EPA ID number provides site-specific
information and believes that the EPA ID should replace the State ID
number on the manifest form.
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\4\ Under the Resource and Recovery Act (RCRA), generators,
transporters, treaters, storers, and disposers of hazardous waste as
defined by the federally recognized hazardous waste codes, are
required to provide information concerning their activities to state
environmental agencies, who in turn provide the information to
Regional and National U.S. EPA office. The Resource Conservation and
Recovery Information System (RCRIS) is a national program management
and inventory system of RCRA hazardous waste handlers and is used by
the EPA to support its implementation of RCRA, as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA). The system is
primarily used to track a handler's permit or closure status,
compliance with Federal and State regulations, cleanup activities,
waste handler inventory, and environmental program progress
assessment. Handlers can be characterized as fitting one or more of
the following categories: treatment, storage, and disposal
facilities (TSDFs), large quantity generators, small quantity
generators, and transporters. RCRIS information is available from
ENVIROFACTS at EPA Headquarters Web Pages: http:/www.epa.gov/enviro/
html/rcris/rcris__overview.html.
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Item C--State Transporter's ID and Item E--State Transporter's ID
(for second transporter). EPA proposes to remove Items C and E (State
Transporters ID for first and second transporters) from the form for
the same reasons mentioned above regarding generator EPA ID numbers.
The manifest instructions also require a transporter to enter his/her
EPA ID number on the form. Since hazardous waste transporters are
required also to enter EPA ID numbers on the manifest form, States
should be able to use the EPA ID number as a transporter identifier
instead of the State Transporter ID number.
In addition, EPA is proposing to remove the Transporter ID number
from the form because it believes that a large number of States use the
State Transporter ID number field for purposes other than its original
use. The ASTSWMO petition indicates that many States require waste
handlers to record the license plate numbers of transporter vehicles in
the Transporter ID. number block.
Item D--Transporter's Phone and Item F--Transporter's Phone (for
second transporter). EPA proposes to remove the transporter's phone
number blocks for a few reasons. First, the generator and the TSDF both
have direct contact with the transporter and would likely have other
means of obtaining this information. In addition, a State could obtain
the name and phone number of a company contact person from RCRIS.
Third, the ASTSWMO petition indicates that the Transporter phone number
is most important for emergency response purposes. However, the number
typically provided in this block may not be manned 24 hours a day, and
thus, is not appropriate as an emergency contact number. As mentioned
in Section IV.E. of this preamble, EPA is proposing to designate one
space on the manifest for Emergency Response information which would
require an emergency response phone number. Therefore, the Agency
believes that the transporter phone number is no longer needed on the
manifest.
Item G--State Facility ID. EPA proposes to remove the State
Facility ID number because the number duplicates information provided
by the federal requirement to enter the EPA ID number on the manifest.
The TSDF's EPA ID number provides information regarding the TSDF's
identity, location, and waste management practices and this information
can be accessed from RCRIS by using the federal EPA ID number. The
Agency believes that States that currently use the State Facility
number to gather information about the TSDF
[[Page 28254]]
could get this information from RCRIS. The accessibility of information
about receiving facility reduces the need for the State Facility ID
number on the manifest form.
Item H--Facility Phone. EPA proposes removing the facility phone
number block from the manifest form. Both the ASTSWMO petition and the
Negotiated Rulemaking committee supported keeping this phone number on
the manifest form because the generator may need it to follow up with
the TSDF about lost shipments, etc. However, the Agency believes that
the phone number is not necessary on the manifest because the generator
can easily obtain this information from company phone lists and
business cards. The transporter is also expected to have regular
contact with the TSDF and customarily devises a mapping plan separate
from the manifest containing directions and telephone numbers. Further,
by adding an emergency response information block to the form (See
discussion in section IV.E) and retaining the generator's phone number,
vital information about the shipment can be readily obtained,
eliminating the need for the Facility Phone number block.
Item J--Additional Descriptions for Materials Listed Above & Item
15--Special Handling Instructions and Additional Information. EPA is
proposing: (1) To remove item J and to combine information normally
entered in Item J with the Special Handling Instructions and Additional
Information Block (Item 15); (2) to modify the Special Handling
Instructions and Additional Information Block by designating it as Item
14 on the new form; and (3) to modify the manifest instructions for
Item 15, allowing for information normally placed in Item J to be
placed in new Item 14. The new block would be renamed Additional
Descriptions and Special Handling Instructions are currently provided
in the Appendix to 40 CFR Part 262. The Agency believes these changes
are necessary because they result in a form with more space to
accommodate new fields without significantly reducing the ability to
provide additional information on the manifest.
Today's proposal removes the instruction, for international
shipments, that requires generators to enter the point of departure
(City and State) for those shipments destined for treatment, storage,
or disposal outside the jurisdiction of the United States. This
requirement is no longer necessary because EPA has added separate space
on the form, Block 16, to enter export information. (See Section IV.B
for further detail).
In addition, today's proposal removes the instruction that
prohibits states from requiring additional, new, or different
information in the old Block 15. The removal of this instruction is
necessary since the proposal would allow information previously entered
in Item J (a state optional block normally used for additional state
optional information) to be entered in the new Item 14. Today's rule
does not change the current manifest instruction under Item 15, which
states that the space under Item 15 may be also used to indicate
special transportation; treatment, storage, or disposal information;
and/or bill of lading information. Today's action merely moves this
instruction to Item 14 of the new form. This instruction would be
applied to new Item 14, and an addition made to allow state information
to also be entered. The proposal would restrict, however, the types of
information that States could require generators to enter in Item 14. A
State would only be allowed to require generators to enter into Item
14, information relevant to the waste shipment for which there is no
specific space on the manifest. Thus, generators may use Item 14 to
record information such as chemical names, constituent percentages,
physical state, and waste management method. With the exception of
information that States might require, generators may only use Item 14
to enter the following information:
Universal waste shipments;
Additional waste codes;
Alternate facility designation;
Name, address, and phone number of any person other than
the person identified in Item 4 (Generator's Name, Mailing Address, and
Phone Number) preparing the manifest;
Name, address, phone number, and EPA identification number
of any person who shares generator responsibilities (i.e., co-
generators) with the person identified in Item 4 (Generator's Name,
Mailing Address, and Phone Number); and
To reference the ``old'' manifest tracking number.
The new Additional Descriptions and Special Handling Instructions
block may also be used by transporters to indicate that they have
combined or divided loads at transfer facilities and to document new or
combined manifests and other transportation related information.
4. Why Is EPA Proposing To Amend Items 15 & J of the Old Form?
EPA is proposing to combine Items 15 & J because the proposed
additional elements to the form such as Item 16 (International
Shipments), necessitate that EPA restructure the form so that it does
not exceed the one page 8\1/2\ by 11" format. In addition, the ASTSWMO
petition recommended that EPA combine the two optional fields into one
block. Also, combining the two boxes reduces the number of spaces
provided for narrative information that is not consistently entered and
that cannot be easily entered into a computer database.
5. What Regulations Would be Affected by Reducing the Number of State
Optional Blocks and Combining Items J and 15 To Create New Item 14?
EPA would revise Sec. 271.10(h) to conform to the proposed
revisions mentioned above. These revisions include:
Modifying Sec. 271.10(h)(1);
Incorporating paragraph Sec. 271.10(h)(1)(v) in
Sec. 262.21(d)(5);
Modifying and renumbering paragraphs Secs. 271.10(h)(2)(v)
and (vi) as Secs. 271.10(h)(1)(i) and 271.10(h)(1)(ii), respectively;
Adding new paragraph Sec. 271.10(h)(1)(iii);
Removing paragraphs Sec. 271.10(h)(2)(i),
Sec. 271.10(h)(2)(ii), and Sec. 271.10(h)(2)(iii);
Removing paragraph Sec. 271.10(h)(2) (iv).
Modifying and renumbering paragraph Sec. 271.10(h)(2)(vii)
as Sec. 271.10(h)(2);
Adding new paragraph Sec. 271.10(h)(4); and
Adding new paragraph Sec. 271.10(h)(5).
In addition, today's rule modifies 40 CFR 271.10(j)(1) to conform
to the changes made to the Waste Minimization certification. For
further details on this revision, please refer to section IX of this
preamble.
6. EPA Invites Comment on Today's Proposal to Reduce the Number of
State Optional Fields on the Manifest
EPA is specifically requesting comment on the following issues:
EPA has always required the generator's mailing address on
the manifest form. Some states have expressed interest in requiring the
physical site address of the generator on the manifest, where that
address differs from the mailing address. However, EPA is not inclined
to add mailing address information because of increased burden,
redundancy with the generator's EPA identification number (i.e., states
should be able to obtain the physical site address using the EPA
identification number), and lack of space on the manifest form. The
Agency is requesting comments on whether the
[[Page 28255]]
site address should be added to the manifest form and if so, whether it
should be used in addition to or in lieu of the mailing address.
With the elimination of most of the state optional fields,
the only state optional fields that would continue to be included on
the manifest are (1) federal and state waste codes (new Block A--see
Section I below for an explanation), and (2) BRS system type codes (new
Block B--see Section H below for an explanation). The Agency requests
comment on whether it would be easier on the regulated community,
states, etc. to make these two fields mandatory instead of continuing
to use them as state optional fields. If so, would further
standardizing the manifest in this way offset any burden increase from
making those two fields mandatory? The Agency also requests comment on
whether generators complete these two fields regardless of whether
States require it as part of their State program?
H. Block K Coding System
1. How Would the Requirements for the Codes Used in Block K (Handling
Codes) Change?
(Note that the form would be renumbered and Block K (Handling
Codes) become Block B (renamed Biennial Report System Type Codes) and
be moved to the bottom of the manifest to the section that is filled
out by the designated facility.)
Today's rule proposes to use Biennial Report system (BRS) type for
the completion of new Block B and to change the name of new Block B to
Biennial Report System Type Codes (currently Block K--Handling Codes).
This block would only be completed if required by the generation or
receiving state. Under RCRA, large quantity generators and TSDFs are
required to report every two years on the hazardous waste they generate
and manage. One of the elements that generators and TSDFs report in
this Biennial Report is the System Type Code, which describes the way
in which a waste is managed. System type codes are mandatory data
elements on the GM (Generation and Management) and WR (Waste Received)
Forms, which must be submitted by Large Quantity Generators (LQGs) and
TSDFs for each RCRA hazardous waste generated on-site in a given year.
States or EPA regional offices enter the data from the GM Form into a
computer database that is eventually assembled into the Hazardous Waste
Report (also known as the Biennial Report). The EPA Regions check the
quality of the data by comparing the system type code information on a
GM Form to manifest data. These comparisons allow Regions to:
Identify or resolve discrepancies;
Target LQGs or TSDFs that did not make a BR submission;
Identify LQGs or TSDFs that need assistance in improving
their facility plan;
Examine waste minimization activities.
Block K (new Block B) is a state optional element of the manifest
and EPA proposes that it remain so (we request comment on this issue
below); however, the codes used in this box would no longer vary
depending on your state, as is the case under the current manifest
regulations. Currently, states which require the submission of
information in this box also provide the instructions for the codes
that should be entered, and these codes differ across the country.
Under this proposed rule, there would be no state-specific instructions
on how to complete Block B. Instead, only the standardized federal
version of the instructions would be used if states require the
submission of information in this box.
This standardization should reduce the burden related to completing
the manifest by selecting one set of codes that would be used in every
state, rather than having the regulated community learn several
different coding systems. By proposing to use the System Type Codes
found in the Biennial Report instructions as the codes for Block B,
this proposed change would increase consistency with the Biennial
Report requirements, thus, aiding in the completion of the Biennial
Report and reducing the burden associated with the Biennial Report.
Also as part of the proposed change to the manifest, EPA is
proposing to change the Block B heading to ``Biennial Report System
Type Codes for Wastes Listed Above.'' This would avoid confusion that
might arise if the old handling code heading (``Handling Codes for
Wastes Listed Above'') were to remain with the new instructions for
submission of BRS system type codes. The Biennial Report list is
comprised of 65 system type codes. These codes indicate the type of
management a waste receives (i.e., metals recovery or incineration
sludge treatment).
2. What Are the Biennial Report System Type Codes That EPA Proposes To
Use?
EPA plans to develop a new list of system type codes for inclusion
in the 2001 Biennial Report. This Biennial Report will be published
about Fall 2000. Shown below is the full list of system type codes
found in the 1999 Hazardous Waste Report Instructions and Forms. Any
changes made to those codes during subsequent Biennial Report periods
would be adopted accordingly.
List of System Type Codes
Metals Recovery (For Reuse)
M011 High temperature metals recovery
M012 Retorting
M013 Secondary smelting
M014 Other metals recovery for reuse: e.g., ion exchange, reverse
osmosis, acid leaching
M019 Metals recovery--type unknown
Solvents Recovery
M021 Fractionation/distillation
M022 Thin film evaporation
M023 Solvent extraction
M024 Other solvent recovery
M029 Solvents recovery--type unknown
Other Recovery
M031 Acid regeneration
M032 Other recovery: e.g., waste oil recovery, nonsolvent organics
recovery
M039 Other recovery--type unknown
Incineration Treatment
M041 Incineration--liquids
M042 Incineration--sludges
M043 Incineration--solids
M044 Incineration--gases
M049 Incineration--type unknown
Energy Recovery (Reuse as Fuel)
M051 Energy recovery--liquids
M052 Energy recovery--sludges
M053 Energy recovery--solids
M059 Energy recovery--type unknown
Fuel Blending
M061 Fuel blending
Aqueous Inorganic Treatment
M071 Chrome reduction followed by chemical precipitation
M072 Cyanide destruction followed by chemical precipitation
M073 Cyanide destruction only
M074 Chemical oxidation followed by chemical precipitation
M075 Chemical oxidation only
M076 Wet air oxidation
M077 Chemical precipitation
M078 Other aqueous inorganic treatment: e.g., ion exchange, reverse
osmosis
M079 Aqueous inorganic treatment--type unknown
Aqueous Organic Treatment
M081 Biological treatment
M082 Carbon adsorption
M083 Air/steam stripping
M084 Wet air oxidation
M085 Other aqueous organic treatment
M089 Aqueous organic treatment--type unknown
Aqueous Organic and Inorganic Treatment
M091 Chemical precipitation in combination with biological
treatment
M092 Chemical precipitation in combination with carbon adsorption
M093 Wet air oxidation
M094 Other organic/inorganic treatment
M099 Aqueous organic and inorganic treatment--type unknown
[[Page 28256]]
Sludge Treatment
M101 Sludge dewatering
M102 Addition of excess lime
M103 Absorption/adsorption
M104 Solvent extraction
M109 Sludge treatment--type unknown
Stabilization
M111 Stabilization/chemical fixation using cementitious and/or
pozzolanic materials
M112 Other stabilization
M119 Stabilization--type unknown
Other Treatment
M121 Neutralization only
M122 Evaporation only
M123 Settling/clarification only
M124 Phase separation (e.g., emulsion breaking, filtration) only
M125 Other treatment
M129 Other treatment--type unknown
Disposal
M131 Land treatment/application/farming
M132 Landfill
M133 Surface impoundment (to be closed as a landfill)
M134 Deepwell/underground injection
M135 Direct discharge to sewer/POTW
M136 Direct discharge to surface water under NPDES
M137 Other disposal
Transfer Facility Storage
M141 Transfer facility storage--waste was shipped off site without
any on-site treatment, disposal, or recycling activity
3. What are the Problems with the Current Coding Systems Used to
Complete Block K?
There are two main problems associated with the use of the current
coding system:
(1) Handling Code Information Submitted in Block K is Non-
standardized. Different States request waste handlers to complete Block
K with different information. Some States refer to 40 CFR Parts 264 and
265, Appendix I, Table 2 (i.e., Handling Codes for Treatment, Storage
and Disposal Methods) and others refer to state-created codes. The
problem of non-standardized codes submitted in Block K is compounded
when there is interstate travel of hazardous waste. When more than one
State has its own form, the manifest form of the destination state is
required instead of the manifest form of the destination state.
Generators may be required to learn and use multiple coding systems on
the manifest on a regular basis because their wastes may cross state
lines and their operations may be located in more than one state.
(2) Differences in Terms Creates Problems Converting from State
Codes to System Type Codes. There are a number of differences and
similarities among handling codes, state-created codes and system type
codes. Some states reference or list both handling codes and state-
created codes when they provide instructions for completing Block K.
Although the different coding systems may be converted to system type
codes for the completion of the Biennial Report, the conversion process
may be difficult and labor-intensive for waste handlers and States
because of inconsistencies between the different lists of codes and
because numerous codes may be listed. Attempts to reconcile lists of
codes may result in code matches that are greater than one-to-one,
because some states may use more than one handling code to describe the
waste management method used on a particular waste stream. The
conversion process is further complicated when wastes travel between
states and industry, and states are not familiar with the coding
systems required by other states. Also, the use of different coding
systems may impede state and federal inspections.
4. How Can the Biennial Report System Type Codes Help Resolve the
Problems?
The Agency believes the BRS system type codes are useful because
the regulated community is already familiar with these codes, and that
this familiarity should increase the accuracy of data supplied by the
facility owner or operator. In addition, some states have indicated to
EPA that any single coding system would be an improvement over the
current multiple coding systems that must be converted to system type
codes by LQGs, TSDFs and states to assist them with completion of
Biennial Report forms. In December of 1997 and January of 1998, EPA
held public meetings on the hazardous waste manifest proposed
rulemaking. Industry and State participants both suggested, among other
things, that EPA should consider combining the manifest data collection
activities with the Biennial Reporting System (BRS) data collection
activities. Further, some participants suggested that as a first step
to integrate BRS and manifest data collection, EPA should consider
requiring manifest users to use BRS system type codes to complete Block
K on the current manifest, instead of the handling codes currently
found in Table 2, Appendix I of Part 264. These participants further
stated that a combination of manifest and BRS reporting requirements,
rather than separated data collection programs, may result in
streamlined reporting and significant burden reductions.
5. Where Would I Find a List of the Codes to be Used in Block B?
EPA would publish the system type codes in the following places:
--in the electronic and hard copy versions of 40 CFR Part 262
Appendix 2-Biennial Report system type codes (full list of the system
type codes); and
--in the instructions for completing the Biennial Report--(full
list).
In addition, in the manifest instructions for completing Block B,
EPA would refer users to the full list of system type codes in Appendix
2 of 40 CFR Part 262 and in the Biennial Report instructions. When the
list of system type codes change in the Biennial Report instructions,
40 CFR 262, Appendix 2 would also be changed. This information would
also be available on EPA manifest website.
6. Who Would Be Affected by the Proposal To Change Block K to Block B?
States, generators and TSDFs may be affected by this proposal. The
proposed instructions would specify who would be required to complete
Block B. Because TSDFs are the most familiar with the processes that
best describe the way in which a waste is managed at their facility,
EPA is proposing that TSDFs be responsible for completing Block B.
EPA's preference is for TSDFs to assume this role due to their
technical expertise and because circumstances may warrant the need for
TSDFs to change their decisions on how to store, treat or dispose of
the hazardous wastes they receive from generators. Additionally, the
first TSDF (sometimes referred to as the interim TSDF if the waste is
to be stored or treated and then sent on to another TSDF) that receives
the shipment should be responsible for filling out Block B because the
original manifest is often terminated at this point and a new manifest
is generated. The Agency specifically requests comment on whether the
TSDF should be responsible for filling out Block B of the manifest
(where required).
7. How Would Block B Be Filled Out?
One system type code per waste is proposed to be used in Block B.
Each system type code in Block B should be clearly linked to the waste
it describes in Item 10, ``U.S. DOT Description (Including Proper
Shipping Name, Hazard Class, ID Number, and Packing Group).''
Specifically, the BRS system type code entered in ``field a'' of Block
B should correspond to the U.S. DOT description information provided in
``item 10a'' of the form. Similarly, BRS system type codes entered in
``fields b, c, and d'' of Block B should correspond to the U.S. DOT
description information entered in ``fields 10b, c, d,'' respectively.
If the space in Block B is insufficient for listing system type
[[Page 28257]]
codes, then new Item 14, ``Special Handling Instructions and Additional
Information,'' may be used.
Block B should be completed as follows:
B. Biennial Report System Type Codes for Wastes Listed Above
a. (enter system type code for first waste code listed in Block 10a)
b. (enter system type code for second waste code listed in Block10b)
c. (enter system type code for third waste code listed in Block 10c)
d. (enter system type code for fourth waste code listed in Block 10d)
8. How Would the Regulations Change?
The manifest form would be changed to include a new box entitled
``Biennial Report System Type Codes,'' and the manifest instructions in
the Appendix to Part 262 would be changed to instruct the TSDF to use
the Biennial Report system type codes. New instructions would be added
instructing those TSDFs completing Block B to use Biennial Report codes
and a list of the Biennial Report system type codes would be added to
40 CFR part 262 as Appendix 2.
The Agency is also considering two alternatives to today's
proposal. The first alternative considers using a new list of codes
instead of the full list of system type codes from the existing
Biennial Report System. EPA could develop a new simplified list of
codes that are similar to the current categories for system type codes
found in the Biennial Report. Current BRS system type codes describe
the type of hazardous waste management system used to treat or dispose
a hazardous waste. One example of system type codes for a hazardous
waste management category is ``Solvents Recovery,'' which has within
it, a set of unique codes for fractionalization/distillation, thin film
evaporation, solvent extraction, other solvent recovery, and solvent
recovery. The alternative system would only include the general
category found in the system codes list and if ``solvent recovery'' is
taken as the example, would omit the unique codes within ``Solvent
Recovery.'' Thus, a facility using solvent extraction to treat a
hazardous waste, would only enter ``Solvent Recovery.''
The second alternative approach EPA is considering would be to
require the generator to complete new Block B of the manifest, rather
than the TSDF. The Agency is considering whether the information
provided by the generator is of greater use than similar information
provided by the TSDF.
9. EPA Invites Comment on Today's Proposal and Also Welcomes New Ideas
for Manifest and System Type Code Burden Reduction
EPA is specifically requesting comment on the following issues
(a) As an alternative to today's proposal of using the full list of
system type codes from the existing Biennial Report System, would
industry, states, and other stakeholders prefer a new list of codes
that are similar to the current categories for system type codes?
(Examples of categories include ``Solvents Recovery'' and
``Incineration.'')
(b) As an alternative to requiring the TSDFs to complete Block B of
the manifest, should EPA require the generators to complete that
section? If so, what are the advantages? How would generator
accountability for wastes from ``cradle-to-grave'' and completion of
the Biennial Report be impacted? What other impacts would be expected?
(c) Would industry, states, and other stakeholders prefer
standardizing the handling codes from Table 2 of Appendix I, Part 264
and use the standardized handling codes for the completion of new Block
B?
(d) Should the entry of information in new Block B of the manifest
remain an optional field as proposed, or should it be mandatory?
(e) In looking at manifest and Biennial Report burden together,
could an increase in manifest burden lead to or be offset by Biennial
Report burden reduction? (For example, if Block B were to change from a
state optional element to a mandatory federal element, would manifest
burden increase in the short run and Biennial Report burden decrease in
the long run?) Which areas of the manifest and Biennial Report should
EPA consider or further analyze to achieve net burden reduction in the
long run?
I. Block I Waste Code System
1. How Would the Requirements for the Codes Used in Block I Change?
(Note, that the form would be renumbered and Block I (Waste No.)
become new Block A (Waste Codes).)
EPA proposes to provide additional space in this optional block so
that waste handlers can enter state and federal waste codes in separate
locations under new Block A. EPA is also proposing to change the name
of this block.
Block A would be divided into two sections--a section for entering
federal waste codes and another for entering state waste codes. The top
section of Block A would allow reporting of three federal waste codes
and the bottom section would allow reporting of three state waste
codes. If states require the completion of Block A, then the waste
handler must enter Federal waste codes in the appropriate section of
Block A according to a hierarchy, with the highest toxicity waste
appearing first to alert users of the manifest of their presence.
EPA believes that in most cases six waste codes would be sufficient
to adequately describe the waste in Block A. However, it also may be
appropriate at times to report more than six codes for a particular
waste (for example, a lab pack could contain more than 6 waste codes).
For these specific circumstances, the generator would use both Item 10,
``U.S. DOT Description (Including Proper Shipping Name, Hazard Class,
ID Number, and Packing Group)'' and proposed Item 14, ``Special
Handling Instructions and Additional Information,'' to describe such a
waste.
EPA is also changing the title of Block I from Block I ``Waste
No.'' to Block A ``Waste Codes'' to more accurately reflect what should
be entered in this block and more commonly used terminology. This block
would need to be completed only if a state required it.
The proposed format for Block A is shown below:
A. Waste Codes
------------------------------------------------------------------------
------------------------------------------------------------------------
Federal Waste Code, four Federal Waste Code, Federal Waste Code,
partitions. four partitions. four partitions.
State Waste Code, four State Waste Code, State Waste Code,
partitions. four partitions. four partitions.
------------------------------------------------------------------------
2. What Is the Problem With Current Block I Reporting Procedures?
Under the current manifest system, waste handlers can use the
manifest form for shipments where hazardous and non-RCRA wastes are a
part of the same shipment. This may occur because some states regulate
non-RCRA waste as hazardous waste and prefer that generators indicate
state regulated hazardous waste shipments on the same manifest form.
Also, these states may
[[Page 28258]]
require that waste handlers enter the federal waste codes for the RCRA
regulated wastes and state waste codes for the State-only regulated
hazardous waste in Item I of the current form.
Federal and state waste codes are important because they provide a
range of useful information about waste shipments and assist states
with enforcement, generators with describing a hazardous substance in
accordance with DOT regulations, and TSDFs with determining whether a
waste can be accepted under its permit. However, under current
reporting procedures, such benefits are diminished due to the format of
Block I and the lack of clear, uniform instructions. Block I does not
distinguish between federal and state sections, nor does it make clear
that both federal and state waste codes may be reported. Also, states
provide varying instructions, if any, on how to fill out Block I. The
ASTSWMO petition addressed this issue and considered, among other
things, an option for states to create a separate manifest for
reporting ``non-RCRA regulated waste'' but the petition did not
recommend this option. Explanations provided in the petition for not
creating a separate manifest rationalized that one manifest ensures
uniformity and that a separate manifest would cause confusion for
generators because a separate form would require a separate set of
instructions, numbering, etc. Further, waste handlers would have to
become familiar with several manifest forms, if states required a
separate manifest. The Agency agrees with these reasons and also
believes that generators would prefer completing one manifest instead
of two for combined shipments of hazardous and state-regulated
nonhazardous wastes.
3. Who Would Be Affected by This Proposal?
States and waste handlers (i.e., generators) would be affected by
this proposal. Block A is a state optional element of the manifest and
would remain so, but there would no longer be a need for state-specific
manifests with varying instructions on how to complete Block A. The
federal manifest would contain standardized instructions for submission
of federal and state waste codes in Block A. Generators would complete
Block A when required by the generator state, the destination state or
both states. EPA believes that this change would not reduce the state's
ability to collect this information, and the standardized format (along
with the elimination of state-specific manifests) would reduce the time
required to complete this block.
4. How Would Block A Be Filled 0ut?
When the generator state, the destination state or both states
require completion of Block A, several reporting scenarios may apply,
including use of Item 10 and Item 14. In general, Block A should be
used first. Examples follow:
Reporting Waste Codes in Item 10 of the manifest: ``US DOT
Description (Including Proper Shipping Name, Hazard Class, and ID
Number)'' and in Item 14: ``Special Handling Instructions and
Additional Information''. Federal waste codes (either the listed waste
code or the code for a hazardous waste characteristic) would be
reported in Block A, as applicable. Federal waste codes also may be
reported in Item 10 if the generator wants to include that information
in Block 10. If more space is needed to report federal waste codes,
then Item 14 may be used. Also, Item 14 may be used to report
additional state waste codes.
Reporting Federal Waste Codes According to Toxicity. Federal waste
codes would be reported according to a hierarchy of the highest
toxicity waste appearing first and less toxic wastes appearing
thereafter. The proposed hierarchy reflects the Negotiated rulemaking
committee's recommendation that wastes with the highest toxicity should
be listed first (i.e., acutely hazardous wastes) to alert users of the
manifest to their presence. The hierarchy is listed below:
All acutely hazardous wastes, including all P listed
wastes and all acutely hazardous F listed wastes;
U listed wastes (toxic);
K listed wastes (specific sources);
Non-acute F listed wastes (non-specific sources); and
D wastes (characteristic).
Although today's proposal would require waste handlers to enter
waste codes in Block A according to the proposed hierarchy, EPA
understands that wastes that are ignitable or reactive may be better
described (for safety reasons) if the waste codes for these
characteristics are listed first in the hierarchy. Therefore, the
Agency proposes that if a state requires waste handlers to complete the
new Block A on the manifest, then waste handlers must enter Federal
waste codes in block A in accordance with the hierarchical system,
unless the wastes in question are ignitable or reactive. In such
situations, the Federal waste codes for the ignitable or reactive
wastes may be entered first in Block A, if the state allows the
generator to do so.
EPA notes that the proposed hierarchical system would apply to
Federal waste codes only. EPA did not propose the hierarchical system
for state waste codes because it had insufficient information about
state waste codes. Therefore, the Agency believes that it would not be
appropriate to propose a standardized coding system for state-regulated
wastes and believes that it is more appropriate for generators to
contact States directly, if necessary, regarding the assignment of
state waste codes for a particular state-regulated waste. The Agency
would place, however, a list of waste codes for each state on its EPA
website so that waste handlers can obtain state waste code information
quickly. EPA, however, recommends that generators contact both its
state and the consignment state to obtain further instructions to
complete Block A.
Reporting Federal Waste Codes According to Toxicity. Hazardous
waste that is described by more than one federal waste code within one
of the P, U, K, F and D categories would be listed according to
toxicity. EPA believes that on occasion, some hazardous waste shipments
may contain waste codes from the same hierarchy category. In such
cases, the waste handler should list waste codes from the same category
in the order which he/she believes is most representative of the
waste's attributes. The Agency requests comment on whether the
hierarchy approach is the most appropriate method to listing wastes in
Block A.
Reporting State Waste Codes. EPA is proposing that the first state
box would represent waste regulated by the generator state and the
second state box would represent waste regulated by the destination
state. State waste codes would be reported as follows:
If the waste is regulated by the generator state or the
destination state, then enter the generator state waste code in the
state box and the destination state waste code in the second box:
A. Waste Code
------------------------------------------------------------------------
------------------------------------------------------------------------
(Generator State Waste Code) (Destination State ....................
Waste Code).
------------------------------------------------------------------------
[[Page 28259]]
If additional space is needed to report state waste codes, use Item
14, ``Special Handling Instructions and Additional Information.''
5. How Would the Regulations Change?
The instructions for the manifest found in the 40 CFR 262 Appendix
would change to include the Federal waste code hierarchy and the
instructions for completing Block A. Also, Block A would be relabeled
``Waste Codes'' on the manifest form.
6. EPA Invites Comment on the Following Questions Related to the
Proposed Changes to Block A.
Under today's proposal, would the quality of waste code
reporting improve, while keeping manifest burden to a minimum?
Are the proposed format of Block A (i.e., space for 4-
digit waste codes) and new standardized procedures for reporting waste
codes clear? Are there alternatives that EPA should consider?
Although today's rule does not propose to establish
generic waste codes for lab packs, spent carbon, and incinerator ash,
EPA may pursue this in the future as resources permit and welcomes
comment on codification of such codes.
What alternatives to the proposed toxicity hierarchy would
you suggest
Unmanifested Waste Reporting
1. How Is EPA Changing the Way TSDFs Report Unmanifested Waste?
Today's rule proposes changes in the way a TSDF may submit the
``Unmanifested Waste Report'' to the EPA Regional Administrator, which
is required within 15 days after accepting the waste at a TSDF.
Currently, EPA requires TSDFs who accept unmanifested waste to prepare
an ``Unmanifested Waste Report'' (form 8700-13B) for waste that should
normally be shipped using a manifest. (See 40 CFR 264.76 and 265.76)
Under this proposal, a typed, handwritten, or electronic note may be
submitted instead of this report. The typed, handwritten, or electronic
note must be legible, and must contain the following information:
(a) The EPA identification number, name, and address of the
facility;
(b) The date the facility received the waste;
(c) The EPA identification number, name, and address of the
generator and the transporter, if available;
(d) A description and the quantity of each unmanifested hazardous
waste the facility received;
(e) The method of treatment, storage, or disposal for each
hazardous waste;
(f) The certification signed by the owner or operator of the
facility or his authorized representative; and
(g) A brief explanation of why the waste was unmanifested, if
known.
2. What Is Unmanifested Waste?
Unmanifested waste is hazardous waste that a TSDF accepts from an
off-site source without the required accompanying manifest or shipping
paper (in the case of rail and some water shipments). Regulations
governing unmanifested waste found at 40 CFR 264.76 and 265.76 should
not be confused with similar reporting requirements under regulations
for manifest discrepancies found at 40 CFR 264.72 and 265.72 and
exception reporting found at 40 CFR 262.42.
3. What Is the Problem With Current Requirements for Unmanifested Waste
Reporting?
Current regulations found at 40 CFR 264.76 and 265.76 require TSDFs
to submit EPA form 8700-13B, which must be designated ``Unmanifested
Waste Report.'' However, EPA announced in the January 28, 1983 FR that
it was deleting EPA form 8700-13B and its predecessor, EPA form 8700-
13, which had appeared in the May 19, 1980 FR. Although both forms were
linked to annual reporting requirements at that time and were supposed
to be adapted for unmanifested waste reporting, EPA deleted them due to
the change from annual to biennial reporting. EPA never published a new
form for unmanifested waste reporting and the form now required for
biennial reporting, EPA form 1300-A/B, ``Hazardous Waste Report
Instructions and Forms,'' is not adaptable for unmanifested waste
reporting. Although EPA never published a replacement form for
reporting unmanifested waste, the regulations still require this form
which is generally unavailable to those seeking a copy.
4. How Do Regulations for the Unmanifested Waste, Manifest
Discrepancies, and Exception Reporting Compare?
Some aspects of the reporting requirements are similar. See the
table below for a comparison.
Comparison of Regulations--Unmanifested Waste Report, Manifest
Discrepancies, and Exception Reporting
------------------------------------------------------------------------
Synopsis of
Regulation Description reporting
requirements
------------------------------------------------------------------------
Unmanifested Waste Report 40 Unmanifested waste Current: TSDF must
CFR 264.76 and 265.76. is hazardous waste submit to the EPA
that a TSDF accepts Regional
without an Administrator an
accompanying unmanifested waste
manifest or report on EPA form
shipping paper, and 8700-13B within 15
which is not exempt days after
from the manifest receiving the
requirement. waste.
Proposed: TSDF must
submit an
unmanifested waste
report using a
typed, handwritten,
or electronic note
submitted to the
EPA Regional
Administrator
within 15 days
after receiving the
waste.
Manifest Discrepancies 40 Manifest TSDFs that receive
CFR 264.72 and 265.72. discrepancies are wastes with any
differences between significant
the quantity or manifest
type of hazardous discrepancy must
waste designated on attempt to
the manifest or reconcile the
shipping paper and discrepancy upon
the quantity or discovery and
type of waste report the
actually received discrepancy to the
at a facility. We EPA Regional
are proposing to Administrator if
include container the discrepancy is
residues and not resolved within
rejected loads as 15 days after
manifest receiving the
discrepancies. waste. We are
proposing that
TSDFs that reject a
load or send a
residue off-site
would have to
prepare a new
manifest as
instructed under
proposed Secs.
264.72(c-d) and
265.72(c-d).
[[Page 28260]]
Exception Reporting 40 CFR Exception reporting A LQG who does not
262.42. is required of LQGs receive the return
and SQGs when they copy the manifest
do not receive the signed by the TSDF
return copy of the within 35 days
manifest signed by after the waste was
the TSDF within a accepted by the
specified time initial transporter
after the waste was must contact the
accepted by the TSDF to inquire of
initial the status of the
transporter. waste. If the LQG
does not receive
the return copy of
the manifest signed
by the TSDF within
45 days of the date
the waste was
accepted by the
initial
transporter, the
LQG must submit an
exception report to
the EPA Regional
Administrator. A
SQG who does not
receive the return
copy of the
manifest signed by
the TSDF within 60
days after the
waste was date the
waste was accepted
by the initial
transporter must
also submit an
exception report to
the EPA Regional
Administrator.
------------------------------------------------------------------------
VI. Residues and Rejected Loads: How Must These Shipments be
Manifested?
1. What are Residues and Rejected Loads?
Residues
A residue is the hazardous waste that remains in containers such as
drums and in vehicles used for transport (such as tanker cars or box
cars) after most of the contents of the container have been removed.
These residues may be difficult to remove because the contents may have
congealed and the receiving facility may not have the equipment to
completely empty the container. As a result, the container may hold
more than the regulatory threshold for meeting the RCRA definition of
``empty,'' that is, more than 3% of a hazardous waste in a container
less than or equal to 119 gallons, or more than 0.3% of a hazardous
waste in a container greater than 119 gallons, and must be managed as
hazardous waste. (See section IV.C of this rule for a discussion of the
proposed changes regarding the term ``bulk packaging.'')
Rejected Loads
A rejected load is a shipment of hazardous waste that a facility
receives, but cannot accept, either because of restrictions in the
facility's permit, or due to capacity limitations. A rejected load
includes all shipments a facility rejects, in whole or in part, whether
rejection occurs before or after the facility has signed the manifest.
EPA does not view shipments that are undeliverable for reasons other
than rejection by a party at the designated facility as being covered
by the term ``rejected loads.'' At 40 CFR 263.21(b) of the current
regulations, there is a provision that addresses hazardous waste
shipments that cannot be delivered by the transporter. This provision
was included in the regulations to deal with emergencies that prevented
a delivery to a designated facility, such as a labor strike or fire
that causes the designated facility to close. The current
Sec. 263.21(b) allows a transporter to deal with such emergency events
by contacting the generator for further directions and then revising
the manifest according to the generator's instructions. These
``undeliverable waste'' events that do not involve a rejection by the
destination facility would continue to be addressed by the existing
regulatory provision, which today's proposal would recodify as 40 CFR
263.21(b)(1). EPA is not reopening or reconsidering the current
Sec. 263.21(b) provisions for undeliverable waste; however, we are
proposing a new section to Sec. 263.21(b) to clarify the transporter's
responsibilities for both ``undeliverable'' waste and ``rejected loads.
This proposal would also clarify the procedures to be followed by the
rejecting designated facility in connection with noting the rejection
on the original manifest, and preparing a new manifest to direct the
rejected shipment on to its next destination.
2. What Is EPA Proposing Related to Residues and Rejected Loads?
EPA proposes to improve the tracking of these hazardous waste
shipments by adding new data elements on the manifest form for
identifying rejected wastes and residues, and by clarifying the
requirements and procedures for tracking these wastes with the
manifest. The proposed rule addresses both the manifest procedures that
would track rejected wastes and residues to alternative facilities, as
well as the procedures for dealing with the rare occasions when a
facility must return rejected wastes or container residues to the
generator. In all such cases, the new regulations would require
facilities to note information about the rejected waste or regulated
residue on the original manifest, to sign the original manifest
certification, and to issue a new manifest to continue the shipment of
the rejected load or residue to another off-site destination. EPA is
proposing to modify the discrepancy block on the manifest to provide
more explicit tracking features for regulated residues and rejected
wastes. Space would be provided to identify the material affected by
the discrepancy and the reason for the discrepancy. In addition, the
facility would cross-reference the manifest tracking number for the new
shipment on a space provided for this purpose on the discrepancy block
of the original manifest. On the new manifest, the facility would also
reference the ``old'' manifest tracking number in the Special Handling
Block. The discrepancy space and facility certification on the new
manifest would be reserved for use by the next facility, if necessary
(e.g., if the shipment is rejected a second time).
3. To Whom Do These New Requirements Apply?
The new requirements apply to you if you are:
A ``designated facility'' that cannot completely ``empty''
a container to ``RCRA empty'' standards in Sec. 261.7(a); and
A TSDF or a hazardous waste recycler who must reject a
shipment of hazardous waste, in full or in part; and
[[Page 28261]]
A generator who must receive a returned shipment of a
residue or rejected load when there is no alternate facility to which
it may be sent.
4. Where Would the Proposed Requirements for Tracking Rejected Wastes
and Residues Be Codified?
Today's proposal would result in modifications to several existing
regulatory provisions. First, the proposal would modify 40 CFR 264.71
and 264.72 (40 CFR 265.71 and 265.72 for interim status facilities) so
that these provisions provide more explicit requirements for tracking
rejected wastes and regulated container residues. The proposal would
accomplish this by clarifying in Sec. 264.71(a) that a facility must
sign the facility owner or operator certification on the manifest for
both waste receipts and waste rejections. EPA emphasizes that the
facility certification attests to the receipt of the hazardous wastes
described on the manifest, except as noted in the discrepancy space.
This proposal would clarify that residues and rejected wastes,
including full or partial load rejections, are discrepancies to be
reported on the discrepancy space. So, facilities would be required to
sign the owner or operator certification on every manifest relating to
shipments brought to a facility for delivery, either to acknowledge
receipt of all the materials on the manifest, or to acknowledge that
those materials identified in the discrepancy space (including rejected
wastes and residues) were not received for management at the facility.
The proposal would modify Sec. 264.72 (Sec. 265.72 for interim
status facilities) to reflect the changes proposed to the discrepancy
space of the manifest form. The form would be revised to include new
data fields in the discrepancy space to track rejected wastes and
residues. So, Sec. 264.72(a) would be revised to clarify that the scope
of the term ``manifest discrepancies'' would be broadened to include
not only the significant differences in waste quantities or types that
are the subject of the current discrepancy regulation, but also
rejected wastes and regulated container residues. The current
regulation's requirements for identifying, reconciling, and reporting
``significant discrepancies'' would be retained in proposed
Sec. 264.72(b) and (c), which would address these as ``significant
differences'' in quantity or in type of wastes. The procedures for
addressing rejected wastes or regulated container residues as manifest
discrepancies would appear in new Sec. 264.72(d) and (e) for permitted
facilities, and in new Sec. 265.72(d) and (e) for interim status
facilities. For those instances where an alternative facility is not
available to receive a rejected waste or residue shipment, proposed
Secs. 264.72(f) and 265.72(f) would add procedure governing the return
of these wastes to generators. These procedures are discussed below in
greater detail.
EPA is also proposing to amend 40 CFR 263.21(b), to add language
clarifying the distinction between the transporter responsibilities for
``undeliverable'' wastes that are not deliverable because of
emergencies that prevent delivery, and for rejected wastes. As we
discussed above, EPA would retain as Sec. 263.21(b)(1) the existing
transporter requirements that apply to shipments that cannot be
delivered because of an emergency, e.g., a strike, fire, or similar
emergency event which closes the designated facility's or next
transporter's operations or which otherwise precludes the transporter
from delivering the waste. In such emergency cases, the transporter
that cannot deliver the waste shipment to the designated facility,
alternate designated facility, or next designated transporter, would
still be required to contact the generator for further directions and
to revise the manifest according to the generator's instructions. EPA
is not reconsidering, reopening, or requesting comment on these
existing requirements. The proposal would merely recodify this existing
provision at Sec. 263.21(b)(1).
Proposed Sec. 263.21(b)(2) would specifically address transporters'
responsibilities respecting rejected wastes. Transporters would be
required under this proposal to obtain the facility owner's or
operator's signed and dated certification on the manifest identifying
the rejection. The transporter would also be required to retain one
copy of this manifest, and to give any remaining copies of the manifest
to the rejecting TSDF, so that they could be processed in accordance
with the new procedures proposed for facilities rejecting wastes at
Sec. 264.71, 72.
5. Why Is EPA Proposing These Changes?
EPA is proposing these changes in response to stakeholder
recommendations made during the prior Negotiated Rulemaking and an
audit conducted by EPA's Office of Inspector General (OIG) in 1995. In
the final agreement for the RCRA Manifest Regulatory Negotiation,
several recommendations related to residues and rejected loads were
made. For residues, the committee recommended that residues in cargo
tanks and tank cars that are not RCRA-empty should be manifested as
partially rejected loads by the facility that received the shipment.
For rejected loads, the committee came up with different
recommendations depending on whether the rejected load was rejected in
full or in part, and whether the TSDF had signed the manifest or not.
Generally, the committee recommended that rejections be noted in the
discrepancy box, that rejected waste should in some instances be
allowed to be returned to the generator, and that the generator should
be involved in the decisions on where rejected wastes should be sent.
The OIG's audit identified several areas where the Agency could
make changes to improve the manifest system so that the manifest system
provides generators, EPA, or the states with the means to track
hazardous waste shipments to their final destinations. The OIG audit
provided two specific recommendations related to residues and rejected
loads: (1) Require that original generators and manifest numbers be
referenced on any new manifests created for reshipments of hazardous
waste, and (2) ensure that generators be consulted when partial or full
loads of hazardous wastes are rejected or when hazardous wastes remain
in ``non-empty'' containers. EPA believes the changes suggested by the
Negotiated Rulemaking stakeholders and the OIG would improve hazardous
waste tracking. Specific reasons for making changes in these areas are
discussed below.
Problems With Hazardous Waste Residues Left in Containers
Hazardous waste residues are sometimes left in containers such as
drums and in vehicles such as tanker trucks or box cars after the waste
has been removed from the containers by the designated facility. This
can at times represent a significant amount of material. For example, a
6,000 gallon tank trunk that is emptied just to the 0.3% threshold for
``empty'' would still contain about 20 gallons of hazardous waste.
Under current regulations, a hazardous waste container is considered
``empty,'' only if the waste has been removed so that no more than 2.5
centimeters (1 inch) of the waste (or 3% of the waste in containers of
less than or equal to 110 gallons (see discussion regarding ``bulk''
packaging in Section IV.C), or 0.3% of the waste in containers greater
than 110 gallons) remains in the container and all waste that can be
removed by commonly employed practices has been removed. Containers
holding acute hazardous wastes must be triple rinsed. Acute hazardous
wastes are those waste that are considered
[[Page 28262]]
highly toxic by EPA and are given the hazard code ``H'' in the
hazardous waste lists at 40 CFR 261.31 and 40 CFR 261.33 (i.e., all P-
listed wastes and certain F-listed wastes).
When a facility cannot thoroughly clean the container, and is
unable to manage the container properly, it must send the ``RCRA-
regulated'' container to an alternate facility. Current regulations do
not clearly define the appropriate manifest procedures for such a
situation--i.e., it is unclear whether the facility should contact the
generator and whether the original manifest, or a new manifest, is
required to accompany the shipment to the next facility. States have
developed different approaches to dealing with these situations. As a
result, these shipments can impose significant burdens on facilities in
terms of consulting with state regulatory authorities and sorting out
applicable procedures. Also, a facility might complete a new manifest
for the shipment to the alternate facility without consulting with the
generator of the shipment. The generator might only receive the signed
manifest returned by the first facility, but may not receive a copy of
the second manifest indicating the ultimate disposition of the
regulated container and residue. Thus, the generator may be left
unaware of the final disposition of the hazardous waste. When this
occurs, one of the main purposes of the manifest--to assist regulated
entities and regulatory authorities in tracking hazardous waste from
``cradle to grave''--is impaired because there is no systematic
approach for linking information about the second shipment to the
original manifest and generator. The current regulations require only
that the facility shipping the waste residues to the next destination
facility be apprised of the disposition of the waste; the original
generator is not in the loop for obtaining such information.
The changes to the manifest form and procedures proposed here would
ensure that hazardous waste generators are informed of and involved in
decisions concerning the ultimate disposition of their hazardous waste,
so that regulated quantities of hazardous waste residues can be tracked
from the original generating site to the site of ultimate disposition.
Problems With Rejected Loads
In most situations involving off-site transportation of hazardous
waste, the hazardous waste shipment arrives at the designated facility
without incident and is accepted and ultimately is managed at the
designated facility. However, on rare occasions, the owner or operator
of the designated facility cannot accept a waste shipment. For example,
the TSDF might require the waste have a certain British Thermal Units
(BTU) level in order to accept the waste for treatment. If the shipment
of waste does not have the required BTU level, the TSDF might reject
the waste shipment. Other reasons why a TSDF may not accept a hazardous
waste shipment vary, but may include capacity restrictions at the time
the waste arrives, equipment failure, or other unanticipated
situations. The designated facility may reject a load at the time it
arrives at the facility. The designated facility may also reject a load
after it has signed the manifest and accepted delivery of the waste
shipment, because current regulations allow the facility to sign for
receipt of the waste and then test the waste at a later time and reject
it if necessary. Current regulations do not clearly define the
appropriate manifest procedures for either situation. As with container
residues, it is unclear whether the facility should contact the
generator and whether the original manifest, or a new manifest, is
required to accompany the shipment to the next facility. In current
practice, if the facility rejects all or part of a load after having
already signed the original manifest, it may prepare a new manifest for
the rejected waste and send it to an alternate facility without
consulting with the generator. Thus, the original generator may be left
unaware of the final disposition of its hazardous waste, because there
is currently no consistent approach followed for tracking these
shipments and linking the second shipment to the original manifest and
generator. The changes to the manifest form and procedures proposed
here would also ensure that hazardous waste generators are involved in
decisions concerning the ultimate disposition of their hazardous waste
and that rejected wastes can be tracked from the generating site to the
site of ultimate disposition.
6. How Long Does the TSDF Have To Accept or Reject the Hazardous Waste
Shipment?
While EPA does not intend that a TSDF must test the waste before
signing the manifest, EPA expects that TSDFs would use good business
practices and make a determination within a reasonable time whether to
accept or reject all or part of a hazardous waste shipment.
Additionally, EPA recognizes that some loads may be rejected after the
designated facility has signed the manifest and taken delivery of the
waste. The Agency recognizes that the facility's signature on the
facility certification of receipt reflects the facts known to the
facility at that time, and does not always mean that the TSDF has
finally accepted the waste for treatment, storage or disposal.
7. Who Is Responsible for Deciding Where To Send a Residue or Load
Rejected by the TSDF?
Because a hazardous waste generator has the most knowledge about
its waste and is typically responsible for decisions about the
disposition of its hazardous waste, EPA believes it is appropriate to
require that the designated facility must contact the generator for his
or her decision about the next destination for a rejected load or
residue. This approach is consistent with the current manifest system,
which generally places the burden on hazardous waste generators to
ensure that hazardous waste shipments arrive at their proper
destinations. See, e.g., 40 CFR 262.42 regarding ``exception reports.''
As part of obtaining the generator's decision, the facility should
also work out with the generator how the waste should be transported to
the next facility and who should be listed as the transporter on the
new manifest. If it is not possible to locate in a timely manner an
alternative facility that can promptly receive the waste, then the
generator may instruct the facility to transport the hazardous waste
shipment back to the generator. EPA expects that shipments would be
returned to generators only on very rare occasions. The rejecting
facility, in consultation with the generator, would first have to
attempt to locate another facility that can appropriately manage the
waste before resorting to a return shipment to the generator.
The facility rejecting hazardous wastes must ensure that secure
custody of the hazardous waste is maintained while arrangements are
being made to forward the waste to another facility. In many such
situations, EPA expects that the transporter who attempted to deliver
the rejected wastes would simply remain at the facility's premises and
retain custody of the rejected waste until transportation resumes under
the new arrangements made by the facility and generator. The
transporter may assist the facility with the arrangements made for
forwarding the rejected waste and preparing it for transportation. In
those situations, however, where the delivering transporter does not
remain on the facility's premises, the rejecting facility must take
temporary custody of the waste, and hold it at a secure location until
transportation of the waste continues under the new manifest.
[[Page 28263]]
8. Must TSDFs Who Reject Waste or Who Have a Regulated Residue Prepare
a New Manifest For the Shipment to the Alternative Facility?
Yes. Today's rule clarifies that a TSDF who either rejects
hazardous waste or has a regulated residue that must be sent off-site
must prepare a new manifest for the shipment to the alternate facility.
This clarifies conflicting policies that have arisen under the existing
regulations. For example, differing policies have been followed in the
past, based on distinctions between fully rejected loads and partially
rejected loads, or on distinctions between rejections that occur at the
time of attempted delivery of a shipment and those that occur after the
original manifest was signed. In some instances, current policies
allowed the original manifest to be amended, while in other instances,
the policies suggested that a new manifest should be prepared. The work
group developing today's proposal concluded that existing policies in
this area were conflicting and very confusing. The work group
recommended that one consistent approach should govern all rejected
waste and residue shipments. Therefore, EPA is today proposing that a
new manifest must be prepared in all cases involving a rejected waste
or a residue shipment. The designated facility must in all cases close
out the original manifest by noting the rejection or the regulated
residue, and then prepare a new manifest to send the rejected waste or
residue shipment to the alternate facility.
The designated facility would be required to: (1) Check the
rejected load or residue box in the discrepancy block of the original
manifest; (2) sign the facility certification on the original manifest
to certify that the waste shipment was received except as noted (i.e.,
the rejected waste or residue) in the discrepancy block; (3) write the
manifest tracking number of the new manifest on the space provided for
this purpose in the discrepancy block of the original manifest; and (4)
complete a new manifest for the rejected waste or residue. If the
facility rejects all or part of a shipment, or discovers regulated
residues, after the facility has signed and returned the original
manifest, it would send the generator and delivering transporter an
amended copy of the original manifest, revised to show the rejected
waste or residue information in the discrepancy space, and showing a
new signature certifying to the facts as amended and showing the date
of the amendment. These amended manifest procedures would be included
in Sec. 264.72(g) and Sec. 265.72(g) of today's proposal.
9. Whose Facility Information Would Go in the ``Generator'' Block of
the Manifest?
Previous policies on tracking rejected loads and residues usually
required the designated facility with rejected waste or residues to
identify itself in the generator information block of the manifest for
the second shipment to the alternate facility. Under this approach, the
rejecting facility would provide its EPA ID Number in the Generator's
EPA ID Number field, and provide its name and address information in
the Generator information fields. When delivering the waste to the
first transporter, the rejecting facility would also sign the
Generator's Certification statement. However, this approach continues
the problem of not keeping the original generator informed of the final
disposition of its waste. This results because the alternative facility
named as the designated facility on the second manifest would be
required under Sec. 264.71(a)(4) to send a copy of the manifest to the
rejecting facility, and not the actual ``generator'' of the hazardous
waste, when closing out the second manifest. To avoid this result, EPA
is today proposing that in those cases where rejected waste is being
forwarded to an alternate facility, and there has been no change in the
form of the waste--i.e., the first designated facility performs no
treatment and does little more than hold the waste (or repackage it)
temporarily so that it may continue in transportation--then the
original generator must be identified in the generator information
block on the new manifest. As long as the form of the waste has not
changed and the waste still carries the same DOT shipping descriptions
that it carried when it was brought to the rejecting facility's site, a
new waste has not been generated by the rejecting designated facility.
The designated facility must, of course, consult with the generator,
and once authorized by the generator to ship the rejected wastes or
residues to another facility, the rejecting facility would sign the
generator's certification to indicate that it has offered the hazardous
waste in transportation.
If, however, the designated facility has treated the waste or
otherwise managed the waste in such a way as to change its form, change
the applicable DOT description for the waste, or generate a new waste,
then this procedure would not apply to the second shipment. Instead,
the designated facility would be identified on the manifest (Items 1
and 4) as the generator, and would sign the generator's certification
in its capacity as a waste generator shipping its waste off-site.
In those instances where the designated facility must return a
rejected waste or regulated residue to the generator, the proposal
would not require the designated facility to list the actual
generator's information in Items 1 and 4 of the manifest. In such
instances, the proposal would require the designated facility to
identify itself in the generator information section on the new
manifest of the return shipment to the generator. This modification is
important in order to ensure that the return shipment back to the
initial generator can be verified. Under current RCRA requirements, the
entity initiating the shipment of hazardous waste (typically the actual
generator) is responsible for confirming that the shipment is received
by the designated facility (see, 40 CFR 262.42). Thus, if the actual
generator were to be identified on the new manifest as both the
generator and the destination facility, the rejecting facility would
not be able to verify that the waste was indeed received by the actual
generator. By identifying the designated facility in the generator
information section on the new manifest for the return shipment, the
designated facility would be in a position to verify that the generator
received the return shipment, or, file an exception report if
verification is not received in a timely manner.
Under RCRA regulations, a RCRA ``generator'' is defined as a person
whose act or process produces a hazardous waste, or whose act first
causes the waste to be subject to regulation. See 40 CFR 260.10. In the
great majority of cases, the person completing the manifest and signing
the generator's certification statement is in fact a RCRA ``generator''
who produced the hazardous waste undergoing transportation. There are
times, however, when our Subtitle C regulations require persons other
than generators to prepare hazardous waste shipments for
transportation. For example, a new manifest must be prepared in cases
where a permitted storage facility consolidates wastes from various
incoming shipments and later ships the consolidated wastes under a new
manifest to another facility, or, when a hazardous waste transporter
mixes wastes of different DOT descriptions in a single container. In
each of these situations, the consolidating TSDF or transporter is
responsible for a limited set of what are typically generator
responsibilities, including preparing a manifest for the
[[Page 28264]]
shipment. These entities are not considered to be RCRA ``generators''
(e.g., their processes do not produce the waste), but they may need to
complete a new manifest and sign the generator's certification
statement in the course of discharging their responsibilities and
offering the waste in transportation.
Similarly, today's proposal would clarify the requirements that
designated facilities must follow when preparing a new manifest in
order to offer rejected wastes or regulated residues in transportation.
When a designated facility prepares a rejected waste or residue
shipment for off-site transportation under these procedures, it would
not assume under this proposal the role or general responsibilities of
a RCRA ``generator.'' Rather, the rejecting facility would be
responsible for a limited set of generator responsibilities, including
the preparation of the new manifest in accordance with 40 CFR Part 262,
Subpart B, and ensuring that the waste is properly packaged, marked and
labeled in accordance with the current provisions (40 CFR 262.30-33)
prescribing pre-transportation requirements that apply to hazardous
wastes offered in transportation. Today's proposal would thus clarify
how the generator information blocks (Items 1 and 4) and the
generator's certification would be completed by a facility shipping
these types of wastes.
First, in every case where a designated facility offers rejected
waste or regulated residues in transportation, the facility must sign
the generator's certification statement. This certification statement
includes the ``shipper's certification'' language certifying that the
shipment has been described accurately and prepared properly in all
respects for transportation in accordance with national and
international laws. The designated facility offering rejected wastes or
residues in transportation is responsible for ensuring that the pre-
transportation requirements have been complied with, and must certify
to their proper execution as a final step in preparing the manifest and
offering the wastes in transportation. While the generator's
certification statement also includes a waste minimization
certification, designated facilities that are not in fact RCRA
``generators'' of the waste being shipped would not be bound by the
waste minimization statements when they sign the generator's
certification statement.
Second, on every new manifest prepared by a designated facility for
a rejected waste or residue shipment, the appropriate entity to receive
back a copy of the manifest from the next designated facility must be
identified in the generator information blocks (Items 1 and 4) of the
manifest. For waste sent to an alternate facility, that entity would be
the actual generator of the hazardous waste, and for waste sent back to
the generator it would be the designated facility rejecting the waste.
For rejected waste or residue shipments being forwarded to an alternate
facility, EPA believes that the generator of the initial shipment
should receive a copy of the new manifest from the alternative facility
so that the generator would be informed of the fate of these wastes.
For shipments being returned to the generator, EPA believes that the
rejecting designated facility is the appropriate entity to be
identified in Items 1 and 4 of the new manifest, so that the rejecting
facility can verify the receipt of the returned shipment by the initial
generator named as the designated facility on the new manifest. In this
latter situation, EPA's goal of ensuring that the generator is informed
of the ultimate disposition of its hazardous waste would be met because
the generator would actually be receiving back its hazardous waste
shipment. However, the generator is not in the ideal position to verify
receipt of the shipment. Consistent with the current manifest
requirements (e.g., 40 CFR 262.42), EPA would prefer that a party other
than the party to whom the waste is being shipped be responsible for
verifying receipt of the shipment. Thus, the proposal would require the
rejecting facility to complete the generator information blocks on the
new manifest. In every case, however, the proposal would require the
rejecting facility preparing the new manifest to sign the generator's
certification, as it would be offering the return shipment in
transportation, and would be responsible for performing the pre-
transportation requirements and certifying to their proper performance.
EPA requests comment on these proposed procedures for facilities to
prepare new manifests when forwarding rejected wastes or regulated
residues to alternate facilities or when returning such wastes to
generators. EPA believes that TSDFs encountering rejected wastes or
residues are in the best position to consult with generators on the
disposition of these wastes, and to prepare the subsequent shipments in
accordance with the generator's directions. The Agency believes that
this proposed approach is preferable to requiring the initial generator
or delivering transporter to complete a new manifest, since this could
bring about unreasonable delays in shipping the waste to its next
destination, and result in uncertain management responsibilities while
arrangements for the next shipment are pending.
EPA requests comment as well on the proposed approach for
completing Items 1 and 4 (the generator information) on the new
manifest and for signing the generator's certification. Is it
appropriate that the initial generator should be identified as the
generator on the new manifest for wastes being forwarded to alternate
facilities? For return shipments to generators, do commenters agree
with the Agency's conclusion that the interest in tracking receipt of
the return shipment requires the rejecting TSDF to complete the
generator information (Items 1 and 4) on the new manifest?
Under the proposal, the rejecting facility forwarding or returning
rejected wastes or residue shipments would always sign the generator's
certification, since EPA believes that this facility would have
firsthand knowledge of how the new shipment was prepared and would be
in the best position to certify to these facts. So, the rejecting
facility offering these wastes in transportation would sign the
certification in its capacity as the one shipping or offering the
wastes in transportation, and would be liable in this capacity for the
truth of the ``shipper's certification'' language included in the
generator's certification statement. Since the rejecting facility is
not in fact a RCRA generator, it would not be bound by the waste
minimization certification language, which applies only to generators
of hazardous waste. EPA requests comment on whether the proposal
properly allocates the liability for these pre-transportation acts to
the rejecting facility.
Alternatively, EPA could require the rejecting facility to consult
with the generator on the disposition of the rejected waste, and then
sign the generator's certification ``on behalf of'' the initial
generator. The alternative approach would result in the manifest
otherwise being completed in the same manner (i.e., Items 1 and 4 and
listing the destination facilities) as under the proposed approach.
However, by signing the generator's certification ``on behalf of'' the
initial generator, the generator would be bound by the rejecting
facility's signature on the certification statement. The rejecting
facility would sign the certification only as the generator's
authorized agent, and the facility would not be liable itself for the
proper execution of the pre-transportation acts included in the
certification. Does this alternative have more merit than the proposed
approach, or, is it not fair to hold the generator
[[Page 28265]]
liable for the proper execution of the pre-transportation acts which it
authorizes the rejecting facility to perform, but cannot really
supervise from a distance? The Agency requests comment on how best to
allocate the shipper/offeror responsibilities included in the
generator's certification between the generator and the rejecting
facility.
10. What Would You Be Required To Do Under the New Regulations?
Residues Being Sent to an Alternate Facility
If you are a TSDF or hazardous waste recycler or other designated
facility who cannot fully empty a container according to 40 CFR 261.7,
and you are unable to manage the container yourself and have to send a
container with a residue off-site to an alternate facility, you would
be required to follow these directions:
Sign the original manifest acknowledging receipt of the
waste and identifying the residues in the Discrepancy block of the
original manifest;
Contact the generator for a decision about where and how
to forward the hazardous waste from your facility, and for
authorization to prepare a new manifest for the shipment;
Write the generator's name, address and U.S. EPA ID number
in the generator's name and mailing address box on the new manifest
(Items 1 and 4);
Write the name of the alternate designated facility and
the facility's U.S. EPA ID number in the designated facility block
(Item 9) of the new manifest;
Copy the manifest tracking number found in Block A or Item
3 of the new manifest to the manifest reference number line in the
Discrepancy Block of the old manifest (Item 20);
Write the DOT description for the residue in the Item 10
(U.S. DOT Description) of the new manifest and write the container
types, quantity, and volume(s) of waste;
Indicate ``residue waste from Shipment No. * * *'' in the
Special Handling block of the new manifest; and
Sign the Generator's Certification to certify, as the
offeror of the shipment, that the waste has been properly packaged,
marked and labeled and is in proper condition for transportation.
Residues Being Sent Back to the Generator
If you are a TSDF or a hazardous waste recycler who cannot fully
empty a container according to 40 CFR 261.7, and you have to send the
residue back to the generator, you would be required to follow these
directions:
Sign the original manifest acknowledging the waste that
was received, and noting the residue in the Discrepancy block of the
manifest;
Contact the generator for a decision about where and how
to forward the hazardous waste from your facility;
Write your name, address and U.S. EPA ID number in the
generator's name and mailing address box (Items 1 and 4);
Write the initial generator's name, address and U.S. EPA
ID number in the designated facility block (Item 9);
Copy the manifest tracking number found in Block A or Item
3 of the new manifest to the manifest reference number line in the
Discrepancy Block of the old manifest (Item 20);
Write the DOT description for the residue in Item 10 (U.S.
DOT Description) of the new manifest and write the container types,
quantity, and volume(s) of waste;
Indicate ``residue waste from Shipment No. * * *'' in the
Special Handling Block of the new manifest; and
Sign the Generator's Certification to certify, as offeror
of the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation.
Rejected Loads Being Sent to an Alternate TSDF
If you are a TSDF or a hazardous waste recycler who rejects a load
and receives instructions from the generator to send the load to an
alternate TSDF, either in full or in part, you would be required to
follow these directions:
Sign the original manifest acknowledging any received
waste, check the rejection box in the Discrepancy block, and describe
the quantity and type of rejected waste and the reason for the
rejection in the description line of the Discrepancy block;
Contact the generator for forwarding information and for
authorization to prepare a new manifest for the rejected waste;
Write the generator's name, address and U.S. EPA ID number
in the generator's name and mailing address box (Items 1 and 4);
Write the name of the alternate designated facility and
the facility's U.S. EPA ID number in the designated facility block
(Item 9);
Copy the manifest tracking number found in Block A or Item
3 of the new manifest to the manifest reference number line in the
Discrepancy Block of the old manifest (Item 20);
Write the DOT description for the rejected load in Item 10
(U.S. DOT Description) of the new manifest and write the container
types, quantity, and volume(s) of waste.
Indicate ``rejected waste from Shipment No. * * *'' in the
Special Handling Block of new manifest;
Sign the Generator's Certification to certify, as offeror
of the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation.
Rejected Loads Being Sent Back to the Generator
If you are a TSDF or a hazardous waste recycler who rejects a load
and receives instructions to send the load back to the generator,
either in full or in part, you would be required to follow these
directions:
Sign the original manifest acknowledging any received
waste, check the rejection box in the Discrepancy block, and describe
the quantity and type of rejected waste and the reason for the
rejection in the description line of the Discrepancy block;
Contact the generator for forwarding information;
Write your name, address and U.S. EPA ID number in the
generator's name and mailing address box (Items 1 and 4);
Write the generator's name, address and U.S. EPA ID number
in the designated facility block (Item 9);
Copy the manifest tracking number found in Block A or Item
3 of the new manifest to the manifest reference number line in the
Discrepancy Block of the old manifest (Item 20);
Write the DOT description for the rejected load in Item 10
(U.S. DOT Description) of the new manifest and write the container
types, quantity, and volume(s) of waste;
Indicate ``rejected waste from Shipment No. * * *'' in the
Special Handling Block of the new manifest; and
Sign the Generator's Certification to certify, as offeror
of the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation.
11. What Conditions Would Apply to a Rejected Waste or Container
Residue Shipment Once the Generator Receives It Back From the TSDF?
A generator would have up to 90 or 180 days (depending on his/her
SQG or LQG status at the time the generator sent the rejected shipment
or container residues to the TSDF) to send the rejected shipment or
container residue to an alternate TSDF. Generators would not be
required to obtain a RCRA permit for the period of time that the
returned
[[Page 28266]]
waste is on-site as long as they comply with Sec. 262.34(a) (for
generators with 1000 kg or more on-site at time the waste is sent) or
Sec. 262.34(d) (for generators with less than 1000 kg on-site). Because
EPA intends and expects that hazardous waste would be returned to the
generator infrequently (only when an alternate facility is
unavailable), the Agency decided not to propose a new time frame, or
other requirements, to address these rare occurrences. We believe the
simplest approach would be for generators to manage rejected wastes and
residues within the existing framework for on-site accumulation, since
generators are already set up to handle hazardous waste within 90 or
180 day time frames, and are familiar with managing waste in accordance
with the provisions of Sec. 262.34. Please note that small quantity
generators would not be able to accumulate greater than 6,000 kg of
hazardous waste on-site at any time. The Agency emphasizes that it is
not reconsidering, reopening, or requesting comment on the provisions
of Sec. 262.34.
In addition, it is important to note that a generator would only be
allowed to accumulate a rejected load or residue if that hazardous
waste was originally sent to the designated facility with the
understanding that the designated facility could accept the waste. In
other words, this provision only covers generators who sent the
hazardous waste to the designated facility in good faith. EPA would
consider a range of factors--e.g., whether a generator has repeatedly
sent waste off-site to TSDFs, only to have it rejected and returned, or
whether the generator knew or should have known that the TSDF could not
accept its waste--in determining whether a given shipment was in good
faith or a sham.
12. On What Issues Would EPA Like To Receive Comments?
You are being asked to consider whether these proposed provisions
for residues and rejected loads would improve hazardous waste tracking
for these shipments. Specifically, EPA would like comments on the
following:
Should EPA require a TSDF to close out the original
manifest and prepare a new manifest for all instances where waste is
rejected or a regulated residue requires off-site management? Is it
desirable to require facilities in all such cases to use the facility
certification and discrepancy block to positively identify waste
rejections and the reason for the rejection? Are there instances where
it is more practical to revise the original manifest rather than
generate a new manifest. Is there merit to EPA's proposal to follow one
consistent approach (using a new manifest) for all rejection scenarios?
Are the procedures clear on how rejecting TSDFs must
complete the generator information spaces on the new manifest (Items 1
and 4) and sign the generator's certification? The proposal would have
the rejecting TSDF responsible for ensuring that the pre-transportation
requirements are properly performed with respect to rejected wastes and
container residues. Is this an appropriate allocation of
responsibility?
How would transporters be affected by the proposed
rejected waste and residue procedures? When a waste is rejected at the
time of attempted delivery, is the transporter or the designated
facility better suited to contact the generator to obtain instructions
for forwarding waste to another facility? Would transporters be delayed
unreasonably by the proposed procedures if they must wait for the
designated facility to prepare a new manifest?
What should be the designated facility's responsibility
for managing rejected waste while it is awaiting shipment to an
alternative facility?
Do the proposed procedures for rejected loads and residues
ensure generator notice and decision-making with respect to the
disposition of rejected wastes and residues? Do generators want or need
to be involved in decisions involving such wastes?
Are the directions clear? If not, how can they be made
more clear?
Should a generator be allowed to received his/her own
rejected shipment or container residues back from a TSDF? If yes, how
long is reasonable for a generator to hold his/her rejected waste
before sending it to on to an alternate TSDF? Should EPA allow the
accumulation clock to run anew (as proposed), or limit the total time
for accumulation to 90 or 180 days? Note: EPA is not reconsidering or
requesting comment on the current provisions of Sec. 262.34. We are
only requesting comment on those provisions as they would apply to the
accumulation of rejected loads or residues under this proposal.
VII. Automation of the Manifest System
A. Introduction
1. Summary of Today's Electronic Manifest Proposal
EPA is today proposing to allow waste handlers (generators,
transporters, and treatment, storage or disposal facilities) the option
of preparing, transmitting, signing, and storing their manifests
electronically. EPA believes that electronic manifesting could greatly
reduce the paperwork burdens of the current system, while improving the
effectiveness of tracking waste shipments and managing data. In
addition, in those states that collect manifests and maintain databases
to track manifest data, the proposal would foster a consistent approach
for submitting manifest copies electronically to the states. The
proposal includes standardized electronic data interchange (EDI)
formats and an Internet Forms format for the electronic manifest. These
formats should permit the exchange of electronic manifests among waste
handlers in a manner that ensures the compatibility and
interoperability of these files. The standardized electronic formats
should also facilitate the management of manifest data by state
programs, as the standard formats would minimize the need for manual
data entry or other time-consuming processing of the data prior to its
import into the states' tracking databases.
The manifest automation standards in today's proposed rule include
3 major components: (1) the proposed EDI and Internet Forms file
standards for the electronic manifest; (2) a proposed standard for
electronically signing the manifest with electronic signatures; and (3)
a proposed set of computer security standards for computer systems that
would create, process, and store electronic manifest records. EPA
believes that standards in these 3 areas are essential to the
successful implementation of an automated manifest.
In addition to proposing the electronic manifest standards
summarized above, this proposed rule would eliminate impediments to an
electronic system in the current regulations. Thus, explicit references
in the current regulations to the use of specific paper forms and the
use of ``by hand'' signatures would be amended to allow for their
electronic equivalents. Likewise, regulatory provisions that now
require all manifest copies to be physically carried with the waste
shipment would be expanded to allow manifest copies to be transmitted
electronically. Moreover, the current record retention requirements
would be amended to clarify that the storage and use of electronic
records bearing the required electronic signatures would have the same
legal effect under RCRA as retaining and using paper copies signed with
conventional pen-and-ink signatures. Generally, RCRA regulations
require that manifest records be retained for three years from the date
of a
[[Page 28267]]
shipment, but in many cases, facilities may retain these records
indefinitely in order to address potential liabilities for future site
cleanups.
2. Why Is EPA Proposing These Changes?
EPA is proposing an electronic approach for manifesting hazardous
waste, because the Agency believes that information technologies
present tremendous potential for reducing the significant paperwork
burdens of the current manifest system. EPA's Regulatory Impact
Analysis for this rulemaking estimates that the current manifest system
imposes a total paperwork burden on waste handlers and States of more
than 4.6 million hours annually, and results in costs of more than $193
million. We discuss the potential burden reduction from the electronic
manifest later in this preamble section (see heading 5). We also
believe that electronic manifests would give rise to the exchange of
higher quality manifest data, and to more timely and efficient access
to this data. Data would be of a higher quality, because the direct
import of waste shipment and receipt data between electronic manifests
and facilities' and states' data bases would give rise to fewer data
transposition and interpretation errors than occur now when manifest
data must be manually processed from paper forms. As a result, both the
tracking of hazardous waste shipments by waste handlers and the
management of state hazardous waste programs should be more effective.
Further, this action is consistent with the requirements of the
Government Paperwork Elimination Act (GPEA). GPEA generally mandates
that agencies accept, by October 2003, electronic documents and
electronic signatures for the transactions that agencies conduct with
the public and with regulated parties.
While the transition to fully electronic systems would take some
time to implement, the Agency is motivated by a desire to transform the
manifest system quite dramatically from its current paper-based
approach to one that supports paperless manifest completion and
transmission. The Agency further desires to establish an ``open'' or
non-proprietary set of standards that would allow the information
technology community broad latitude to develop innovative hardware and
software solutions. We believe that our proposed approach to manifest
automation would allow electronic options to develop for both large and
small facilities, so that many may benefit from the greater
efficiencies available with an electronic system. EPA emphasizes, of
course, that the electronic manifest would be an option available to
those who wish to use it; it is not the Agency's intent to mandate its
use. Those entities that are more comfortable with the paper form would
still be able to obtain and use the paper manifest form to track their
hazardous waste shipments.
This approach is consistent with EPA's efforts across all its
environmental programs to promote the adoption of electronic reporting,
and to ensure implementation in a consistent manner that is compatible
with current practices in the private sector. EPA is evaluating all of
its programs for regulatory and procedural barriers to the use of
electronic records and reports. Thus, this proposal aims at both
eliminating impediments to an electronic manifest in the current
regulations, and at developing standards that would promote consistent
and widespread implementation of an electronic waste tracking system.
3. Who Would Be Affected by These Changes?
EPA anticipates that the electronic manifest would affect all types
of hazardous waste handlers, including large and small quantity
generators, transporters, and treatment, storage, and disposal
facilities (TSDFs). State hazardous waste agencies that collect
manifests would also see a large impact on the procedures and resources
they use to process manifest copies and enter manifest data into their
tracking systems. Currently, about 24 states collect manifests and
track this data. States and waste handlers have also expressed support
for using electronic manifest data for preparing more easily their
submissions to EPA's Biennial Reporting System.
The Agency developed this proposal to ensure that electronic
manifesting would be accessible to all types of waste handlers. For
example, large generators and TSDFs may find it convenient and
economical to extend EDI systems that may already be in place for
financial/purchasing information to their waste management departments.
These larger facilities may adopt a traditional EDI model that involves
transmitting the standard EDI formats across secure Value Added
Networks or VANs, or choose to deploy a non-traditional EDI model which
uses secure E-mail technology or Secure Socket Layer (SSL)
transmissions to pass EDI transaction sets over the Internet. Mid-sized
firms and some small entities may find it more practical to implement
the electronic manifest as a web form which they access and complete
while connected to the Internet. Finally, this proposed approach should
also be accessible to many other small generators, who would not
otherwise find it practical or efficient to obtain or use their own
computer equipment to transmit only a handful of manifests. The
proposed rule would clarify that, as with the existing paper manifest
system, a generator may authorize another person (e.g., a contractor,
transporter or TSDF) to complete and sign the manifest on the
generator's behalf. Alternatively, transporter personnel picking up
shipments could use remote, portable devices to obtain a generator's
electronic signature on an electronic manifest.
4. What Manifest Automation Is Already Occurring?
Existing efforts to automate the manifest can be characterized as
limited and uncoordinated. For example, at the ``front end'' of the
manifest system, a variety of customized as well as commercial software
products are in place or available to assist generators in tracking
their hazardous materials and hazardous waste inventories. Several of
these products support the automated preparation of manifests, and the
development of manifest templates to be completed in connection with
commonly encountered waste streams and shipment profiles. However,
consistent with current manifest requirements, these products generate
a manifest document which must be printed and signed, and the paper
copies then travel with the shipment in the conventional manner. So,
any paperwork burden reduction achievable now is limited primarily to
the manifest preparation effort.
Similarly, at the ``back end'' of the manifest system, several
states have encouraged their higher volume reporting facilities to
submit manifest copies to states in electronic formats. Several states
have specified ``flat file'' standards which are peculiar to each
state's database platform and structure, and which define the content
fields for each data element in a record strictly according to its
physical position in the file. Other states have attempted to use
scanners and optical character recognition (OCR) technology to convert
paper copies they receive to electronic files that can then be more
readily manipulated. More recently, a few states have tried in the past
to establish pilot programs allowing their larger waste facilities to
submit electronic copies using an EDI approach. These initial pilots
were hampered by certain regulatory impediments to a complete
[[Page 28268]]
electronic manifest system, and by the small volume of manifests
involved, which did not justify investment by waste handlers or state
agencies in EDI software and infrastructure.
These limited efforts to date at reporting manifest data
electronically have primarily benefitted the state agency receiving the
data, by eliminating the resource intensive process of manually re-
keying the data from the forms to the tracking system. While these
initial efforts have led to some modest improvements in preparing and
processing manifests, they have not been sufficiently comprehensive in
their scope nor coordinated enough to bring about more meaningful
paperwork burden and cost reductions. A preferred approach would be one
that would enable a manifest to be initiated electronically,
transmitted and signed electronically, stored electronically, and where
necessary, reported to states electronically, without the need to
convert between paper and electronic formats. This approach would be
more effective, because it would eliminate (with minor exceptions) the
inefficiency of maintaining both paper and electronic copies for the
same shipments, and it would eliminate the manual and burden-intensive
processes needed to convert between paper and electronic formats. In
addition, if a standard electronic file format were specified as part
of this approach, the regulated community could avoid a situation where
they would be required to support multiple file formats prescribed by
the various states. Thus, this proposal aims at establishing standards
for electronic manifesting that could extend to nearly all aspects of
the manifest cycle. This proposal would not, however, affect DOT's
shipping paper requirements, including the requirement that a paper
copy of the manifest or a shipping paper be carried on the transport
vehicle. In other limited instances (e.g., a transporter unable to
participate in an electronic system), additional paper copies might
also be necessary. However, the proposal would promote as far as
possible the elimination of paper manifest copies and their related
paperwork burdens.
5. How Much Reduction in Burden and Cost Would Be Achieved by
Automation?
EPA's analysis suggests that automation of manifest activities
would reduce paperwork burdens substantially among all waste handlers.
The baseline paperwork burden imposed on waste handlers from all
current Federal and State requirements is estimated to exceed 4.4
million burden hours annually. These Federal and State requirements
impose compliance costs on waste handlers exceeding $187 million per
year. The Regulatory Impact Analysis for this proposal suggests that
the reduction in waste handler burden from the electronic manifest
would range between 488,000 hours and 938,000 hours annually, assuming
that all States would eventually recognize the validity of electronic
manifests. This reduction in burden hours from automation is expected
to account for between 69% and 82% of the total savings expected from
all the manifest system revisions proposed today. In terms of cost
reductions, EPA projects that manifest automation could produce between
$14.4 million and $26.6 million in cost savings to waste handlers.
In addition, among the States that collect manifest copies and
track manifest data, EPA's Regulatory Impact Analysis estimates that
these States collectively incur about 200,000 burden hours each year as
a result of processing manifests. We further estimate that the
submission of electronic copies in standardized electronic formats
could reduce these states' manifest processing burden by as much as
79,000 annual hours. Overall, states could realize a cost reduction of
about $1.5 million (roughly 25% of current costs) annually in operating
their manifest programs, because of reduced data processing costs.
Initially, these cost reductions would be offset somewhat by costs
which the states would incur as they establish the capability to
receive inbound electronic manifests, revise their data bases to
reflect the proposed form revisions, and map the electronic documents
to their particular information systems.
6. What Other Benefits Would Result From an Electronic Manifest System?
In addition to the significant paperwork burden and cost reductions
summarized above, EPA believes that a successful implementation of an
electronic manifest system would produce other benefits for waste
handlers and state oversight agencies. First, waste handlers could
determine in nearly ``real time'' the status of their waste shipments.
A generator could receive nearly immediate electronic confirmation of
the receipt of their waste at the designated waste management facility,
rather than waiting a month or more (as the current regulations allow)
for a written confirmation to arrive in the mail. This could afford
waste shippers a level of tracking service that is similar to that
already available from commercial package delivery services. This level
of tracking is not available under the current paper-based system,
which assumes that clerical staff would need several days or weeks to
review, mail, and respond to paperwork related to their hazardous waste
shipments.
Second, both waste handlers and state agencies could receive more
immediate notice of problems that arise during the transportation of a
waste shipment. TSDFs could report to generators any significant
discrepancies in waste types or amounts or rejected loads within
moments of discovering the problem. Likewise, generators would be
likely to spot and try to reconcile ``exceptions'' (occasions when a
signed manifest confirming receipt of a shipment by the TSDF is
overdue) more quickly than is possible under the current paper-based
system, which requires a generator to wait for 35 days to pass before
inquiring about the status of a shipment for which written confirmation
of receipt is lacking. The current system delays notification of
discrepancies and exceptions, because it loads into the notification
process the time needed for facility personnel to review their paper
files and then mail verifications or other notices to generators.
Conceivably, an electronic system would allow this information to be
transmitted at or near the time the problem was discovered (i.e., at
the time the manifest was signed by a TSDF's receiving personnel),
rather than waiting for clerical staff to catch up with several days or
weeks of accumulated paperwork.
Third, the proposal should produce higher quality manifest data,
since there would be fewer data entry steps that would otherwise invite
errors from data interpretation or transposition. State personnel and
waste handlers receiving electronic copies would not be as likely to be
confronted with illegible manifests, which occur with some frequency
with handwritten manifests and carbon copies that do not print clearly.
Since electronic forms could be entered into state tracking systems
upon receipt at the state agency, access to this data would also be
more timely. Many states have advised us that it may take several weeks
or even months for data entry personnel to enter data from paper forms
into their tracking systems. Therefore, reports generated from
electronic systems would be based on more accurate and up-to-date
information, and fewer resources would be required to manage the data.
Fourth, when fully implemented, enforcement officials could conduct
electronic record searches that would more efficiently target
enforcement
[[Page 28269]]
activities. Not only would electronic searches of files more quickly
focus inspection resources on transactions of interest, but it is
conceivable that the record inspections could be conducted off-site in
advance of on-site activities. So, on-site inspection efforts could be
directed more closely at a discussion of significant issues disclosed
by the records previously reviewed, rather than exhausting substantial
time and resources examining file drawers of paper manifests at the
facility.
7. What Are the Concerns Associated With Automated Systems?
There are several potential concerns involved with the transition
to an electronic waste manifest system. An emphasis of this proposed
rule is to establish requirements for security and data integrity that
would minimize these problems. EPA has considered each of these
concerns in the course of developing this proposal, and has attempted
to address them with appropriate controls. The proposed controls and
security requirements that deal with each of these concerns are
discussed in section VII.F. of this preamble. We request your comments
on these and alternative options to ensure secure transactions,
accountability, and data integrity.
a. Inadvertent or deliberate corruption of records. Computer
software applications manipulate data extremely efficiently, but the
power of these programs can also pose serious consequences for data
integrity when problems arise. By accident or by design, an individual
operating such software could delete or substantially alter their
files. For example, hundreds of records stored on a hard disk drive or
on floppy disks can be lost if the operator instructs the operating
system to format or erase the disk. Also, an original record could be
mistakenly or purposefully overwritten by a replacement file that is
stored under the same name. So, safeguards must be established to
minimize the threat of data loss or corruption. With some digital
media, data could be altered without leaving the traceable evidence of
alteration that is commonly found with paper erasures and ``white-
outs.'' Thus, investigators and prosecutors alike are concerned that it
may be more difficult to detect and prosecute at least some cases of
computer fraud and forgery. These concerns are balanced, however, by
the recognition that using properly designed and implemented electronic
systems for processing data can also reduce the likelihood of data loss
and the potential for fraud. This results because records can be
authenticated electronically and more readily stored in multiple
locations. Today's proposal would include electronic signature
standards that preclude the alteration of documents after they are
signed, the requirement of backup copies to deal with accidents or
disasters that cause electronically stored documents to be lost or
corrupted, and audit trail requirements to identify the date, time, and
source of all operator entries that would create or alter a document.
The digital signature method discussed later in this preamble is one
effective way to guard against this concern, since digitally signed
documents are much less (if at all) susceptible to data alterations
than documents signed with other methods.
b. Unauthorized access to systems or data. The press has publicized
broadly tales of ``hackers,'' that is, individuals who have penetrated
computer systems to conduct theft, sabotage, espionage, or other
mischief. However, in many instances, the greater threat may be posed
not by outsiders, but by insiders who should not have been granted
access to the system. A related risk is the danger that persons who
create electronic records may rely on the perception that electronic
systems are vulnerable to unauthorized access to repudiate documents
they have created. Typically, passwords and personal identification
numbers (PINs) are employed to control access, and to limit system use
to those with a need to know the data. Today's proposal would require
electronic systems to use authority checks to limit system access
(including access to input or output devices) to authorized persons.
Electronic systems would need to be designed to detect attempts at
unauthorized access as well as invalid or altered records.
c. Limited human involvement and speed with which transactions are
executed. With an automated system, information can be created and sent
to the recipient in an instant, perhaps without adequate human
oversight over data quality. The immediacy and irrevocability of
electronic transactions thus require much care on the part of users. At
the same time, computer systems are able to perform automatic quality
control on transactions quickly, while integrating multiple sources of
information. So, in many instances, computer systems may detect
problems or data entry errors far more readily than is possible with
paper-based systems.
d. Natural disasters and system failures. Floods, fires, and
earthquakes can quickly wipe out an information system and all its
stored records, unless safeguards have been followed and back-up
systems and records created. Moreover, networks may ``go down,'' and
system crashes can interrupt electronic systems unless they are
promptly serviced or backed up with other equipment. On the other hand,
paper records are susceptible to many of these same problems,
especially where natural disasters are concerned. Paper records may
also become useless if they are not indexed or filed properly. Today's
proposal would require electronic systems to be designed to protect
records from intentional or accidental damage, and to produce secure
back-up copies or provide for data recovery in the event of a loss. In
addition, as with the current paper-based manifest system, electronic
manifest copies would be sent to multiple entities involved with
handling the waste or tracking the receipt of waste, including
generators, transporters, TSDFs, and states. This redundancy in
distributing manifest copies would provide additional protection
against loss or undetected data alteration.
e. Software defects and interoperability issues. Our increasing
reliance on information technology has given rise to the development
and use of software applications that are very complex and which are
frequently updated or replaced. Even software products that have been
heavily tested and widely distributed have been found to contain hidden
defects or ``back doors'' that have hindered their use or have allowed
security features to be overridden. As more products become available
to support a function, concerns arise about the interoperability of
different systems and whether data can be exchanged and processed
consistently. As systems are replaced and upgraded, there is also the
concern that data that were created by and accessible on the original
system would not be accessible on the replacement system. All of these
factors may reduce confidence in the trustworthiness of electronic
records. Today's proposal addresses these concerns by requiring
electronic manifest systems to be validated for their consistent
performance and their interoperability with other systems with which
data would be exchanged. In addition, the proposal would require
facilities to retain prior versions of software and hardware as
necessary to access manifest records throughout their retention period.
[[Page 28270]]
B. EPA's Current Electronic Reporting Policy
1. What Is EPA's Current Electronic Reporting Policy?
On September 4, 1996, EPA published a ``Notice of Agency's General
Policy for Accepting Filing of Environmental Reports via Electronic
Data Interchange (EDI)'' (61 FR 46684). The September 4, 1996 policy
sets forth the basic approach for EPA to implement EDI for
environmental reporting. The policy does not mandate the use of EDI;
rather, it establishes a consistent framework for implementing EDI
across EPA programs, so that the benefits of EDI may be maximized. The
policy specifically recognizes that other methods of conducting
electronic commerce would emerge, and that EDI may not be appropriate
for all types of facilities and reports.
EPA first endorsed EDI for environmental reporting in its earlier
``Policy on Electronic Reporting,'' 55 FR 31030 (July 30, 1990). This
initial EPA policy statement was intended to promote a uniform Agency
approach to electronic reporting that was compatible with current
industry and government practices. The policy advocated a standards-
based approach grounded on the use of American National Standards
Institute (ANSI) Accredited Standards Committee (ASC) X12 standard
formats and communications protocols for EDI.
As described in the September 4, 1996 notice, facilities would,
under certain conditions, be able to submit required reports
electronically to EPA using EDI. First, the 1996 policy would require
reporting facilities to enter into a Terms and Conditions Agreement
with the Agency (61 FR 46684). The Terms and Conditions Agreement
includes mutual recitals under which the parties recognize the validity
and enforceability of electronic submissions, and agree not to contest
their validity. The Agreement also contains provisions dealing with
when documents are considered to be received, when they should be re-
transmitted, when they must be acknowledged, and when they are
considered to be signed. Based on EPA's assessment of technology that
was current in 1996, as well as costs and the level of certainty
thought to be necessary for authentication of most environmental
reports, EPA adopted a personal identification number (PIN) based
approach for signing and certifying electronic reports. Therefore, the
Generic Terms and Conditions Agreement in the 1996 Policy contains
provisions dealing with the assignment and management of PINs. The
Policy defines a PIN as a sequence of alpha-numeric characters, and it
specifies that the appearance of an individual's PIN on an electronic
message shall be deemed to indicate the authenticity of the message. 61
FR 46686. Finally, under the 1996 Policy and its Generic Agreement
provisions, facilities would be required to adhere to certain security
and audit/control requirements, including requirements to retain
transmission logs and PIN records. 61 FR 46687.
Significantly, the 1996 Policy was not intended to specify all the
requirements applicable to electronic reporting of a specific
environmental report. Rather, the 1996 Policy anticipated that program-
specific notices would follow, incorporating the explicit technical EDI
implementation guidance necessary for a specific program report, as
well as any additional security or administrative requirements required
by specific EPA programs. Therefore, today's proposal would provide the
implementing regulations and specific procedures that authorize the use
of EDI for the RCRA hazardous waste manifest program. Today's proposal
also expands on or modifies some provisions of the 1996 EDI Policy as
it affects the manifest program, reflecting both changes in technology
and the specific needs of the manifest program.
2. What Is Electronic Data Interchange (EDI)?
Electronic Data Interchange (EDI) is the transmission, in a
standard syntax, of unambiguous information between the computers of
organizations that may be completely external to each other. It thus
allows for the exchange of information between computer systems that
would otherwise be incompatible with one another. It has been widely
used by the private and public sectors for commercial transactions and
general data transfer, particularly for transactions of a routine or
repetitive nature. As an ``open systems'' approach to data exchange
(i.e., data exchange is not limited to entities within a company's own
system or closed network), EDI is largely independent of specific
technology environments, so it provides a transparent bridge between
various hardware and software platforms.
From aerospace and automobile manufacturing to warehousing and wood
products, EDI is a dominant form of electronic commerce. In the United
States, EDI is based on standard formats and protocols developed and
maintained by an independent organization, the ANSI Accredited
Standards Committee X12. Supporting these standards are a wide array of
commercial software packages and communications networks, and there is
a growing reservoir of industry EDI experts that are available to both
EPA and the regulated community.
3. How Does EDI Work?
EDI is essentially a series of computer language translations. If
two companies agree to exchange data via EDI, each translates their
outgoing data into a common EDI ``language'' which can be read by the
EDI translator of the other company. Each company receiving an EDI
transmission then converts the incoming data from the common EDI
language into a format that can be read by its computer and used in its
data base system. Typically, the data transmissions are sent through a
third party Value Added Network (VAN), and delivered to each company's
mailbox on the VAN. More recently, some companies have begun to use
secure E-mail on the Internet as an alternative to using VANs. The EDI
standard formats, or transaction sets, are non-proprietary, and data
can be sent or received in the standard format independently of the
type of software or computer system used by the sender or receiver.
Unlike a ``flat file'' format, which defines the content fields for
each data element by its physical position in the file, an EDI
transaction set is a relational file format, which contains predefined
tagging structures and well defined hierarchical data file structures.
The predefined tagging structures specify how the data should be
formatted so that the EDI software can interpret the specific contexts
and relationships of the data presented in a file. These tags then
enable data in EDI files to be defined, transmitted, validated, and
interpreted between applications and organizations, since the tagging
structures and the data element relationships defined by the tags are
understood by all EDI compliant software. The hierarchical data file
structures are also significant for EDI, because they represent an
orderly scheme for formatting and organizing related pieces of
information in a hierarchical manner, that is, in the shape of a
pyramid, with each row a collection of information that is linked in a
specific way to the information presented directly beneath it. Once
users of EDI systems complete the initial installation of EDI software
and configure it to map the EDI transaction sets used to their specific
information systems, both senders and receivers are free to use their
existing information management systems to report, import or manipulate
data. They are also spared the trouble and expense of having to develop
and maintain their own
[[Page 28271]]
customized reporting software, or the file standards and communications
protocols that enable data to be exchanged with others.
4. Why Would EDI Be Suited to an Automated Manifest System?
EPA believes that an EDI approach to automating the manifest makes
sense for several reasons. First, the EDI technology is already used
extensively for the exchange of data in the business arena. Although
the manifest is not a business transaction, EPA believes that the
existing expertise and the existing commercial software products and
networks which support the exchange of business data can be leveraged
for use with manifest data. Second, the manifest is a high volume,
recurring transmission for many larger generators and hazardous waste
handlers. EDI is most appropriately applied to routine and repetitive
transactions, such as the submission of invoices or health claims
forms. Third, EDI is a common method for integrating electronic
reporting with existing information systems. Currently, about 28 states
maintain manifest tracking databases using different hardware and
software platforms and database structures. Many waste handlers also
have developed or purchased information systems which they use to track
their hazardous wastes and other materials inventories. So, EDI could
be a sensible way to accommodate the legacy systems already installed
by industry and the states. Also, because EDI is an ``open systems''
approach maintained by an independent standards body, our adoption of
an EDI standard in this proposal would not give an undue competitive
advantage to any vendor's particular proprietary product. Further,
neither EPA nor our authorized states would need to develop and/or
maintain software products and standards under an EDI-based manifest
approach.
5. Would a Terms and Conditions Agreement Be Required?
A major component of the September 1996 Electronic Reporting Policy
was the requirement that facilities wishing to report electronically to
EPA enter into a Terms and Conditions Agreement with the Agency. The
major requirements for electronic reporting programs were to be
included in this agreement, and the parties to the Agreement would
agree not to challenge the validity of electronic documents.
EPA has decided that it is more practical in this rulemaking to
specify the key terms and conditions for electronic manifesting in
enforceable regulations rather than require entities to enter into
Terms and Conditions Agreements. While it may be practical to require
an agreement between EPA and individual members of the regulated
community to govern their direct reporting to EPA, these are not the
circumstances which operate with respect to the manifest. Most
electronic transfers of manifests would occur between numerous waste
handlers (i.e., EPA is not involved), and it would be very burdensome
to require each waste handler to negotiate an agreement with all the
entities with whom they might exchange manifests. Therefore, a Terms
and Conditions Agreement would not be required for automated
manifesting. Key elements of the September 1996 Policy have been
incorporated into this proposed rule, and the Policy's content on the
issuance and management of PINs has been replaced in this proposal by
the proposed requirements for digital signatures and secure digitized
signatures. Parties establishing electronic manifesting systems may
require others to agree to terms and conditions on the use of their
systems, but such contractual matters would not be covered by or
affected by this proposal.
6. What Alternatives to Traditional EDI Is EPA Considering?
The Agency is currently evaluating a number of alternative means
for transmitting manifests electronically. This evaluation is being
guided not only by the September 4, 1996 policy statement, but also by
manifest automation pilot tests and other electronic reporting
initiatives which EPA has supported in recent years. While the
September 1996 policy was based on a traditional EDI approach involving
the exchange of ASC X12 transaction sets across a Value Added Network
by parties subject to Terms and Conditions Agreements, other approaches
may also be viable and in some cases, more practical than conventional
EDI conducted across VANs. For those companies using EDI systems, one
alternative approach might be to offer these firms the option of
securely transmitting EDI transaction sets using ``E-mail'' and/or File
Transfer Protocol (FTP) provided through a third party Internet Service
Provider (ISP), rather than a VAN. The Agency is also particularly
interested in promoting the use of the Internet for electronic
manifesting, as this may be a more practical medium for many facilities
who may not be equipped to engage in traditional EDI. So, EPA is
examining the merits of an approach under which an electronic manifest
would be completed as a ``web form,'' and then transmitted in an
Internet markup language known as the Extensible Markup Language or
XML. The proposal includes a proposed Document Type Definition format
for the manifest. Alternatively, ``web form'' manifests might be
translated to an EDI format by a server hosting EDI translation
services, and then transmitted as an ASC X12 compliant manifest to
recipients using Internet data transfer protocols.
EPA is today proposing both an EDI option and an Internet Forms
(XML language) option for conducting electronic manifesting. We are
also interested in taking comments on other approaches that may not be
described in today's proposal, but which also appear to have merit
given the purposes and workflow process associated with the manifest.
The Agency emphasizes, however, that its preferred approach is to rely
as much as possible on approaches that are based upon open standards,
rather than those that depend upon specific hardware or software that
implements proprietary standards.
7. What Are the Manifest Automation Pilots?
In 1998, EPA began conducting the first of several manifest
automation pilot tests. The objectives of the pilot are to:
Demonstrate the feasibility of automating the entire
manifest cycle, including preparation, transmission and signing of
copies, recordkeeping, and reporting;
Demonstrate the feasibility of using EDI and other forms
of electronic commerce to track waste shipments in a secure and
practical manner;
Facilitate the development of automation standards to be
included in this rulemaking;
Identify and address impediments to manifest automation;
and
Evaluate the savings and costs associated with an
automated approach.
The first phase of tests demonstrated an EDI approach involving
several waste handlers and state hazardous waste agencies in the States
of Illinois, Indiana, and Minnesota. EPA purchased EDI translator
software and VAN services from Sterling Commerce Corporation, which
customized its Gentran:SmartformsTM software application to
incorporate the approved federal convention mapping the ASC X12
Transaction Set 856 to the federal hazardous waste manifest. The
software package featured an intuitive user interface and a customized
data entry template with built-in edit checks and user aids to
facilitate the preparation of EDI manifests. The 1st phase of tests
required the 8 industry participants to send numerous manifest
transmissions
[[Page 28272]]
to other trading partners during the period from July to December 1998.
Some of these transmissions reflected real hazardous waste shipments,
while others ``tracked'' simulated events. The tests were planned to
model a variety of waste shipment events, including waste receipts,
waste rejections, discrepancies, and intra-and inter-state shipments.
The 1st phase of tests relied upon PIN numbers to take the place of
handwritten manifest signatures. A 2nd phase of EDI tests was conducted
in the Fall of 1999. The 2nd phase of tests integrated the EDI software
and manifest formats used in the 1st phase pilot with a security
product named ``SecurECTM'' from Sparta, Inc. The
SecurECTM product added a digital signature authentication
method and other security services to make the 1st phase EDI
configuration compliant with the ASC X12.58 security protocol. A third
phase of the pilot tests began in March 2000, and demonstrated with
facilities in New York State, Pennsylvania, and Illinois the
feasibility of using Internet Forms technology and digitized signatures
to complete and transmit manifests. As these additional tests are
completed, EPA would include reports summarizing the results and key
lessons learned from the pilot in the record for this rulemaking.
Current information about the Manifest Automation Pilot tests is also
available on EPA's World Wide Web site at http://www.epa.gov/epaoswer/
hazwaste/gener/manifest/
C. Overview of the Electronic Manifest Proposal
1. What Is Included in Today's Proposal on the Electronic Manifest?
Today's proposal includes several components which together define
a framework for automating the hazardous waste manifest. The proposal
includes several regulatory amendments (summarized below) that would
eliminate impediments in the existing regulations to an electronic
manifest. The proposal also would add new provisions that set forth
standards for the electronic file formats that may be used as
electronic manifests, standards for electronic signatures, and
standards for trustworthy electronic systems, including electronic
record storage.
The proposed electronic manifest system requirements consist of
technical standards and computer security controls which EPA believes
are necessary in order to ensure system trustworthiness and data
integrity in electronic manifests. These controls are also necessary to
establish a sufficient foundation for the admissibility of electronic
manifest data as evidence in civil or criminal proceedings. In
addition, EPA believes these controls would foster commercial
acceptance of the electronic manifest as a tool for tracking waste
shipments.
2. Is Electronic Manifesting Mandatory for Waste Handlers?
No. Today's proposal would only establish requirements and
standards for those regulated hazardous waste handlers (i.e.,
generators, transporters, and TSDFs) that elect to transmit manifests
electronically. It is not the Agency's intention to mandate the use of
the electronic manifest by waste handlers, and the paper Uniform
Manifest (Forms 8700-22 and 22-A) would remain available for those
desiring to complete and transmit their manifests manually. Likewise,
nothing in this proposal would require waste handlers to report
manifest copies to their states, if they are not already required to do
so as a matter of state law.
3. Must Authorized State Programs Adopt Electronic Manifesting?
Today's proposal would not require States to adopt electronic
manifest authorities as a part of their authorized RCRA programs.
However, EPA is still considering whether States should be required to
adopt such authorities in order to ensure consistency with the Federal
program and other State programs, and we may include such a requirement
as part of the final rule. If States elect to adopt the electronic
manifest option, they would be required to adopt authorities addressing
the standard electronic formats, the electronic signature standards,
and the computer security controls described in this section. The State
implementation issues are discussed further in section IX. of the
preamble. EPA requests comments on whether specific electronic
manifesting requirements are necessary components of states' programs,
and on the potential impacts of such requirements.
4. What Happens if the Transporters of My Hazardous Waste Don't
Automate?
EPA recognizes that there may be times when an electronic manifest
cannot be passed to all the waste handlers involved in a waste
shipment. Fundamentally, a TSDF must be able to receive and process
electronic manifests, and either the generator or transporter should
also have the capability to create or transmit an electronic manifest.
EPA has established these proposed standards so that generators and
TSDFs could substantially automate their manifest programs, even if the
transporters involved with a shipment do not participate in manifest
automation. So, a generator may still participate in electronic
manifesting with the designated TSDF receiving the waste shipment, as
well as any state agencies that elect to collect manifest copies
electronically. Even if the transporters do not participate
electronically, the preparation function, recordkeeping and reporting
functions, and the key function of verifying receipt by the TSDF could
still be accomplished electronically. In such a case, the transporter
could provide the generator with a hand-signed copy of the manifest or
other shipping paper under 49 CFR Part 172, Subpart C, as DOT shipping
paper requirements would not be affected by this proposal. The
transporter could retain a hand-signed copy of this paper for its
files, and the generator could pass an electronic manifest copy
directly to the TSDF with a notation in the transporter signature block
that a manual signature is on file. The TSDF could then transmit to the
generator electronically its verification of receipt, discrepancy
information, or other response related to the shipment. All the waste
tracking, signature accountability, record keeping, and emergency
response functions of the manifest system are preserved by such an
arrangement, even though a part of the shipment record may consist of a
signed shipping paper and another part consist of the electronic
manifest. Where a signed shipping paper is retained as a generator's or
transporter's record, it must also bear the manifest tracking number
assigned to the electronic manifest for that shipment, so that the
shipping paper records can be linked to the manifest in the event
questions are later raised about the shipment, or in the event of an
inspection of these records by a RCRA inspector.
5. What Happens if the Generator Is Not Able To Prepare an Electronic
Manifest?
While the above discussion deals with the situation where a
transporter is not automated, EPA expects that the more frequently
encountered issue would be that generators would not be equipped to
prepare manifests electronically. Indeed, the electronic manifest would
more likely be brought to generators sites by the larger transporters
and TSDFs with integrated waste transportation and waste management
functions. These entities deal with large numbers of hazardous waste
shipments on a day-to-day basis and would have a greater incentive to
automate their waste
[[Page 28273]]
tracking and data management activities.
In those instances where the generator is not automated, the
transporter could prepare the electronic manifest data for a particular
shipment, and obtain the generator's electronic signature by using a
portable device (e.g., a digitizer pad joined to a wireless unit) that
captures the generator's signature and initiates the shipment. This
approach would mimic closely the current procedure for the paper
manifest, and it would not require the generator to purchase or use any
of its own computer equipment to enter its manifests into the
electronic system. Of course, in a case where the generator signs an
electronic manifest using a portable device provided by a transporter,
the transporter would need to provide the generator with a hard copy of
the manifest for the generator's records.
Alternatively, a non-automated generator could authorize the
transporter personnel who come on-site and prepare the shipment for
transportation to sign the manifest electronically on the generator's
behalf. As with the current paper manifest system, this proposal would
also allow a person other than the generator (e.g., a transporter or
TSDF) to be authorized by the generator to prepare the manifest and
sign the generator's certification on its behalf. Thus, generators that
do not participate directly in the automated system may still
participate through the efforts of their authorized preparer. This
aspect of the proposal is discussed in greater detail below in section
VII.G. of this preamble.
EPA believes that participation in the automated system would grow
over time, as market forces and customer relationships cause others to
become trading partners in the electronic manifest. Companies may
decide to offer automated manifesting to their customers to remain
competitive with others providing this service. In addition, large
generators with multiple sites and highly integrated commercial waste
management companies may find it advantageous to purchase multi-site
licenses for waste tracking software, which they would deliver to their
various sites or generator customers so that they can maximize the
benefits which they would realize from automating the large numbers of
manifests that they must process.
6. Where Would the New Requirements for Automated Manifesting Be
Codified?
The key requirements would be codified in several proposed new
sections of 40 CFR Part 262. First, EPA would expand existing 40 CFR
262.20(a) to include a specification for both the paper manifest form
and the electronic format allowed under this proposal. The proposal
would retitle existing 40 CFR 262.23 (use of the manifest) to focus
this section on the paper manifest, and it would add a new 40 CFR
262.24 to discuss the procedures for using the electronic manifest. EPA
is also proposing to add a new 40 CFR 262.26 to Subpart B of part 262.
This new section would set forth the requirements for electronic
manifesting systems, and clarify that electronic manifests that are
issued by systems which meet these requirements would be considered the
legal equivalent of paper manifests bearing handwritten signatures.
Thus, such electronic manifests would be deemed to satisfy any Subtitle
C requirements to complete, transmit, retain, or submit a manifest
copy, or to produce it for inspection.
A significant new addition to the regulations would be codified at
Sec. 262.25, which contains definitions and requirements addressing
electronic manifest signatures. This section would include standards
for the electronic signatures which may be used to authenticate
electronic manifests. Electronic manifest copies would have to be
signed with one of the described electronic signature methods and would
have to meet the Sec. 262.26 security standards in order to be
recognized as the legal equivalent to a hand-signed paper manifest. The
proposal further explains that the proposed electronic signatures would
consist of either a specific type of electronic signature known as a
``digital signature,'' or an electronically captured form of a
handwritten signature, which the proposal defines as a ``secure
digitized signature.'' In connection with the proposed ``digital
signature'' standard, section VII.F.11 of this preamble discusses
options for establishing a so-called Public Key Infrastructure or PKI
to support the issuance, management, and use of the digital
certificates that are necessary elements of digital signature systems.
These proposed federal regulations would, however, confer no
immediate right or privilege to anyone to begin using electronic
manifests in ways not authorized under existing regulations. Before
electronic manifesting can begin, a final regulation would need to be
promulgated, and waste handlers would need to consult with their state
regulatory agencies to determine if their state(s) would recognize the
validity of electronic manifests. States that choose to recognize
electronic manifests would need to revise their programs to include
appropriate manifest automation standards. Waste handlers and state
agencies that collect electronic manifests would also need to agree to
send and accept electronic manifest transmissions, and would need to
prepare themselves technically to initiate such programs. The effects
of this regulation on state hazardous waste programs and on state
authorization are discussed below in section IX. of this preamble.
D. What Impediments to Automation Would Today's Proposal Remove?
This proposal would amend several current regulations which appear
to pose obstacles to implementing an automated hazardous waste manifest
system. The impediments arise because the existing regulations which
describe the format for the manifest and how to use it were developed
nearly 15 years ago, at a time when the current capabilities in
electronic commerce were not anticipated. Therefore, the existing
regulations describe a specific, multi-copy paper form which must be
physically carried among waste handlers, and which must be hand-signed
as custody of waste shipments change. These impediments, and the
revisions to them proposed in this notice, are summarized in this
section of the preamble.
1. Specific Paper Form Designations
Several provisions in the current regulations require the use of
specific paper forms for the manifest. Sections 260.10 and 262.20(a)
each refer specifically to the use of the current federal forms, that
is, EPA Form 8700-22 (the manifest) and, if needed, EPA Form 8700-22A
(the continuation sheet). Today's proposal would update these form
designations by clarifying that the approved standard EDI formats (ANSI
ASC X12) may also be used to convey manifest data electronically. This
proposal amends Secs. 262.10 and 262.20(a) to add the EDI and Internet
Forms formats to the designation of acceptable hazardous waste
manifests.
2. ``By-hand'' Signature Requirements
Certain of the existing regulations appear to bar the use of
anything other than a handwritten signature, that is, the traditional
act of signing in which the signer uses a stylus or other writing
instrument to create the signer's scripted name or other mark on the
document. The current references to handwritten signatures are found in
Sec. 262.23(a)(2), which requires the generator to sign the manifest by
hand and obtain the handwritten signature of the first transporter
accepting the waste shipment, and in Sec. 263.20(d)(1), which
[[Page 28274]]
requires the transporter to obtain the handwritten signature of the
next transporter, or the designated facility. Today's proposal
eliminates the restriction to only by-hand signatures, and adopts new
language which recognizes that both by-hand signatures and the proposed
electronic signature methods may each be used to sign manifests.
3. Physical Transmission of Manifests
Several existing provisions in the regulations suggest that the
manifest may only be transmitted physically with the shipment, and the
copies manually delivered to the waste handlers involved with a
specific shipment. Existing Sec. 263.20(a) states that a transporter
cannot accept hazardous waste from a generator unless it is accompanied
by a manifest. Sections 262.23(b) and 263.20(d)(3) also discuss the
handling of the manifest, and require that the generator or transporter
that is delivering the waste shipment to the next transporter or to the
TSDF must keep a copy for its files, and then give the remaining paper
copies to the waste handler receiving the shipment.
Today's proposal would clarify that in those instances where the
electronic manifest is being used, the manifest copies may be
transmitted electronically among the waste handlers, and a paper copy
of the manifest would not have to be carried with the shipment during
transportation if, instead, a hazardous materials ``shipping paper'' is
carried with the shipment. The currently required practice of
physically delivering copies of the manifest to waste handlers and
carrying a copy of the manifest during transportation would not change
for waste handlers who continue to use the conventional paper manifest.
RCRA requires EPA to promulgate regulations applicable to
generators and transporters of hazardous waste, including requirements
for the use of a manifest system, as necessary to protect human health
and the environment (RCRA sections 3002 and 3003). As discussed
previously, the manifest serves to protect human health and the
environment during transportation of hazardous waste, as well as being
a device that ensures that waste can be tracked from its origin to its
destination site. As a form of ``shipping paper,'' the manifest conveys
essential emergency response information required during
transportation, specifically, the proper shipping name, hazard class,
hazardous material ID Number, and packing group for hazardous waste
shipments, and phone numbers enabling responders to obtain additional
information about a shipment in the event of an emergency. EPA
incorporated DOT's ``shipping paper'' requirements into the current
hazardous waste form in order to ensure the protection of human health
and the environment during the transportation of hazardous waste. In
addition, additional waste shipment tracking elements appear on the
current manifest, including the EPA ID Numbers identifying each waste
handler involved with a shipment, and space for each of the handlers to
sign the manifest when they receive custody of a shipment. These
manifest elements are intended to ensure that the waste can be tracked
from its site of origin to its destination site. Thus, the current
manifest form incorporates both DOT ``shipping paper'' elements to deal
with the transportation hazard aspects of a waste shipment, and
additional tracking elements unique to RCRA to ensure that hazardous
waste shipments are designated for, and in fact arrive at, facilities
permitted to handle the hazardous waste.
Today's proposal would clarify that when the electronic manifest is
transmitted and signed electronically by waste handlers, a paper
manifest would not have to be carried with the hazardous waste shipment
during its transportation. This proposal recognizes that the waste
tracking functions of the manifest system can be conducted entirely
electronically, without carrying and delivering paper copies of the
manifest with the shipment. In order to ensure that information about
the hazardous waste shipment would be available during its
transportation, the proposal would not affect DOT's requirement that a
shipping paper be carried on the transportation vehicle. So, a hard
copy of a shipping paper would be carried on transportation vehicles to
address the transportation hazard and the needs of emergency
responders. This requirement would be met under today's proposal by
either a print-out of the manifest or other allowed form of DOT
shipping paper (e.g., bill of lading) under 49 CFR Part 172, Subpart C.
In such a case, we believe that the combination of the DOT shipping
paper on the vehicle and the electronic manifest information
transmitted electronically would meet all the requirements that arise
under RCRA. Specifically, the DOT shipping paper would present all the
critical emergency response information required about a shipment
during its transportation, and the electronic manifest would preserve
the waste tracking functions of the manifest. EPA requests comments on
this aspect of the proposal.
4. Electronic Storage of Manifest Copies
Today's proposal also specifies when manifest copies may be stored
on electronic media and meet the record retention requirements of the
manifest regulations. EPA has previously issued an interpretive letter
that provided guidance on this issue, but this rulemaking provides the
opportunity to identify more formally the standards which would govern
electronic storage.
In May 1996, Safety-Kleen Corporation approached EPA seeking
clarification that the federal Subtitle C regulations would permit that
company to store image files of signed manifests received at its
Denton, Texas, recycling facility. The company had installed equipment
at the Denton facility which would enable it to scan completed paper
manifests and then store the image files of these manifests on optical
disks. An automated index system was created for these manifests, and
this permitted one to search for stored manifests by several data
elements. The system could display retrieved manifests on the computer
screen, or print them as hard copy. EPA concluded that Safety-Kleen's
proposed electronic storage system would meet existing RCRA regulations
for retention of manifest records. This conclusion was supported by the
Agency's findings that the image files would bear the required
handwritten signatures, that the electronic records would be accessible
to RCRA inspectors, and that the system included back-ups and other
security features that satisfied EPA that data integrity would be
maintained and that the records would be trustworthy. Since announcing
this interpretation in November 1996, at least 11 states have followed
this policy in their authorized RCRA programs.
Today's proposed standards for electronic manifest storage would
clarify that RCRA allows additional types of manifest records to be
stored, beyond the paper copies, image files or facsimile copies
allowed under the current regulations. The proposal would also
recognize the validity of electronic copies that are signed with the
required electronic signatures and maintained by computer systems that
meet the technical standards and security controls set forth in
proposed Sec. 262.26. These technical standards and controls are
discussed in detail below in section VII.E. of this preamble. The
controls are designed to ensure the trustworthiness of the computer
systems which generate and process the manifest records, so that the
data stored on these electronic records may be relied upon as complete
[[Page 28275]]
and accurate, and protected against accidental or intentional
corruption, alteration, or loss. In addition to ensuring data
reliability and integrity, the proposed standards would also require
reasonable inspector access to the electronic records over the entire
record retention period, and safeguards against repudiation. EPA
believes that the proposed electronic signature requirements, taken
together with the computer security controls of proposed Sec. 262.26,
provide a reasonable set of safeguards that would protect the integrity
of the records and guard against repudiation by waste handlers who
enter data and sign the records. These proposed standards would also
afford RCRA inspectors reasonable access to electronic records for
purposes of inspecting or copying facility files, or producing evidence
for enforcement actions.
E. What Standard Electronic Formats Would Today's Proposal Require?
1. Overview
Sections 260.10 and 262.20(a) of the Subtitle C regulations would
be amended by today's proposal to include the standard EDI format and
an Internet Forms format that EPA would accept as the electronic
hazardous waste manifest. The proposed EDI format is discussed in
preamble section E.2. that follows immediately. Section E.3. of this
preamble discusses the proposed Internet Forms format. Specific issues
for which EPA requests comments are presented in preamble section E.4.
Today's proposal would require persons who choose to develop or
participate in an electronic manifesting program to adhere strictly to
the electronic manifest formats specified in this rulemaking. EPA has
determined that in order to maintain consistency among Federal and
authorized State programs, authorized States that choose to implement
the electronic manifest options for waste handlers would not be
permitted to require a different electronic format or to require
additional information to be transmitted electronically in connection
with shipments in or being offered for transportation. This is similar
to the determination that EPA made with respect to the Uniform Manifest
form in 1984, and the Agency believes that several of the same factors
supporting our 1984 decision affect the electronic manifest. See 49 FR
10490 at 10491 (March 20, 1984). The free movement of waste shipments
would be similarly burdened if transporters and TSDFs could not read or
sign off on a manifested waste shipment because of incompatible
electronic formats required by one or more states. Transporters
entering a particular state requiring another format or additional
requirements would need to incur the cost and inefficiency of acquiring
additional software to support the other state's format or
requirements, or face state enforcement actions if the additional
formats/requirements are not supported. In addition, waste handlers
called upon to support multiple State formats and differing
requirements would likely need to incur the additional cost and
inconvenience of acquiring and using software to convert files between
the various formats supported by the states. It is conceivable that
conflicts that would arise between different states' incompatible
formats would actually bring waste handlers' systems down, and further
delay the progress of shipments in transportation until such problems
could be corrected. In addition to the confusion and burdens on the
movement of waste that would result in such cases, EPA believes that
non-standard formats would greatly complicate enforcement by RCRA
inspectors, since inspectors would need to be trained and perhaps
equipped differently to inspect manifests originating from different
states. For multi-state facilities, there would likely arise the
additional complexity, confusion, and cost of having to obtain software
and hardware to support non-standardized manifest formats and
procedures, as well as the capacity to convert files between state
formats.
The above discussion focuses heavily on the interstate
transportation and ``free movement of waste'' factors that EPA relied
upon as well in 1984 when it prescribed the uniform manifest. However,
with regard to the successful implementation of an electronic manifest
system, EPA also believes that it is critical to recognize the
inherently interstate nature of the electronic infrastructure that
would need to develop to support electronic transmissions of data. That
is, apart from the considerations noted above on how waste movements
and transportation vehicles would be slowed or burdened by inconsistent
electronic formats, there is the equally important consideration of how
the interstate electronic data transmissions themselves would be
hindered and burdened by inconsistent formats. The Agency's reliance on
standard electronic formats is premised equally on the necessity of
ensuring, for example, that an electronic manifest transmission
originating with a generator in the State of New York can be readily
received, read, and processed by a landfill operator in the State of
Alabama, as well as by the transporters that may operate in the transit
states that must be passed through en route to the destination
facility. While non-uniform paper forms may entail the burden and
inefficiency of needing to carry redundant paperwork, incompatible
electronic formats can render the data being transmitted unreadable and
useless. Additional costs and complexity would be incurred by system
developers faced with having to address multiple formats. To the extent
that the reliability and accuracy of the systems were to be impaired by
format conflicts, the admissibility of the electronic documents in
evidence during enforcement actions would similarly be impaired.
Therefore, under the Part 271 authorization standards on consistency,
any authorized States implementing electronic manifest programs must
require only the standard electronic manifest formats promulgated in
this rulemaking. Other formats would not be acceptable as a RCRA
hazardous waste manifest.
2. Proposed EDI Format
This proposed rule identifies the American National Standards
Institute (ANSI) Accredited Standards Committee (ASC) X12 standard
formats for Electronic Data Interchange as the standard EDI formats
acceptable for electronic manifests. These X12 standard formats
(transaction sets) present specified data elements and content in a
strictly standardized syntax and structure, which enables these formats
to be exchanged unambiguously among different computer systems.
In analyzing the manifest process to determine an appropriate
implementation of EDI, it became apparent that two distinct
transactions support the tracking functions of the manifest. Initially,
the manifest identifies the contents of a hazardous waste shipment as
offered for transportation by the generator and received by the
transporters. Upon receipt of the shipment by the TSDF, the purpose
shifts to providing the generator with a record either verifying the
receipt of the shipment by the TSDF, or noting any discrepancies
connected with the shipment. During a meeting with industry and state
agency stakeholders in April 1999, participants advised EPA that in the
EDI setting, the dual functions of the manifest could be best
accommodated with separate transaction sets. That is, to reduce
potential confusion in the EDI setting, one transaction set should be
used to
[[Page 28276]]
identify the contents of the shipment and track its transportation,
while a distinct transaction set would be used to allow the TSDF to
advise the generator of waste receipt or discrepancy information. Based
on these recommendations, EPA has adapted two EDI transaction sets or
formats to the manifest process. Under today's proposal, EPA would
identify X12 transaction set 856 (``Ship Notice/Manifest'') for the
manifest's waste tracking function, and X12 transaction set 861
(``Receiving Advice/Acceptance Certificate'') to carry out the
manifest's verification of receipt/discrepancy function. The two
transaction sets that EPA has selected for this proposal are fully
capable of carrying all the data presently required on the manifest.
Also, the 861 transaction set has the added benefit of allowing TSDFs
to tie their comments (e.g., waste receipt, rejection or discrepancy)
to a particular waste item listed on the manifest.
In order to conform the EDI transaction sets selected to the data
requirements of the hazardous waste manifest, EPA developed a
customized mapping or ``Implementation Convention'' for the 856 and 861
EDI transaction sets. As a follow-on step to the Implementation
Convention development, EPA submitted the two transaction sets'
Implementation Conventions to a federal review and approval process
which involved public notice and comment. This approval process is
managed by the Federal Electronic Data Interchange Standards Management
Coordinating Committee (FESMCC), under the procedures of the Federal
Information Processing Standard (FIPS PUB) 161-2, entitled ``Electronic
Data Interchange.'' All approved Federal Implementation Conventions are
registered with the National Institutes of Science and Technology
(NIST). The NIST registry of approved Implementation Conventions,
including the hazardous waste manifest IC (856W) and the hazardous
waste receipt IC (861W), is located at http://snad.ncsl.nist.gov/fededi/3060-ic.html. These approved federal mapping conventions would
be revised to reflect any changes to manifest data elements or to
designated transaction sets that result from this rulemaking. The
revised ICs would then be resubmitted to the FESMCC for approval. EPA
would include information on the revisions to the manifest EDI mapping
conventions in a technical guidance document that would be prepared to
support the final rule notice for this manifest rulemaking.
Subsequent to the adoption of revised ICs in the final manifest
rulemaking, EPA may from time to time decide to adopt a new version and
release of the ASC X12 standard or to modify the conventional mapping
for the manifest. These modifications would address minor, technical
changes to the standard, but would not alter the content of the
manifest. Proposed Sec. 262.20(a)(3)(i) includes a notification process
to deal with these upgrades and modifications. After any such upgrades
or modifications have been submitted to the FESMCC Committee and
approved under FIPS PUB 161-2 procedures (which provides for notice and
comment), EPA would then publish a Federal Register notice announcing
this change to the implementation convention and establishing the
conversion date. After the conversion date, persons using the previous
EDI format and convention would have a minimum of 60 days to convert to
the new version. In addition, EPA would discontinue support for the
previous version no sooner than 90 calendar days after the conversion
date. EPA believes that this procedure would provide for a reasonable
transition and support period as the ASC X12 standards and
implementation conventions are updated.
3. Proposed Internet Forms Format
a. Background. The standard language for presenting data on the
World Wide Web--the Hyper Text Mark-up Language (HTML)--is not alone
well suited for completing manifests that can be signed electronically
and preserved as intact records that can be later audited or produced
as evidence of completed waste transactions. While web forms are
frequently encountered on web sites, the data that is entered in the
form fields during a typical HTML browser session are divorced during
transmission from the form prompts that elicited the data. So, only the
data stream supplied by the sender is sent to the host computer. This
leaves HTML transactions open to challenges, since the person
submitting the data can later argue that data he or she entered were in
response to a different prompt or question, or that the browser altered
the appearance of the form so that certain questions were not answered
or answered out of order. This type of vulnerability is referred to as
a repudiation challenge, and it can be avoided if the data entered are
tied unequivocally to the form elements to which they respond. Several
vendors have recently developed solutions designed to generate and
preserve intact web forms which include both the fields and the
responsive data, and which can be signed electronically as records.
This results in a much more complete and irrefutable electronic record
than is obtained when responding to simple HTML web forms. These
products typically are installed as browser extensions or ``plug-ins,''
and they add executable programs or Java applets which modify the HTML
language to generate the intact forms on the client computer.
EPA tested one such product during our Manifest Automation Pilot.
In the 3rd phase of these pilot tests, EPA and several volunteer
partners from industry and the states tested the Internet Forms
technology developed by a company known as UWI.Com. (The company has
recently changed its name to PureEdge, Inc.). This company's Internet
Forms technology is based on a mark-up language known as the Extensible
Forms Description Language (XFDL). XFDL is itself a variant of the
recently developed Internet language known as Extensible Markup
Language or XML.
During the pilot test, EPA developed considerable experience with
UWI.Com's Internet Forms technology. The electronic manifest ``forms''
used in our pilot tests retained both the form structure and the
manifest data, and were signed with digitized signatures using PenOp''
signature software. The electronic manifest developed for our pilot
with the Internet Forms technology and the Action Works Metro work flow
management software also supported these features:
Retention of all the graphical elements familiar to the
paper form. The manifests could be processed (prepared, signed,
transmitted, and stored) in an entirely digital manner, or printed in
hard copy;
Inclusion of numerous on-line help features and edit
checks, to assist users with the process of completing the manifest
accurately and quickly;
Packaging of form structure and data together in a single
file that could be easily archived and retrieved;
Integration with workflow or work group software so that
the manifests could be routed to appropriate trading partners, while
complying with organizations' specific business processes and logic
rules; and
Support for mapping data directly to a variety of back-end
data bases, including Oracle, Sybase, SQL Server, and ODBC-compliant
data bases.
b. What is the Extensible Markup Language (XML)? The Extensible
Markup Language or XML is a relatively new markup language that has
been developed to aid the Internet exchange of documents that contain
structured information. While the basic language of the World Wide Web,
i.e., HTML, is itself a markup language that can deal
[[Page 28277]]
with how the content of a document is displayed on a computer screen,
XML has the additional capability of ``tagging'' a document's content
to indicate what role the content plays.
On a more technical level, XML is defined as a series of related
technical specifications that provide a syntax for identifying,
exchanging, and displaying data. XML technical specifications are
developed by the World Wide Web Consortium, and XML documents would
facilitate data exchanges using World Wide Web transfer protocols. Its
most significant attribute is its extensibility, a term which connotes
the flexibility designed into XML to adapt to a variety of applications
and computing environments that need to exchange and manipulate data.
XML is not bound by rigid semantics, and it provides program developers
with the alphabet and tools to define document element tags as they see
fit, and to define the structural relationships between these tags.
XML has recently emerged as the de facto method for defining
business data for the business to business Internet exchange of data
and for commerce on the Web. Recent releases of commercially
distributed web browsers, as well as several major commercial data base
applications, now support XML specifications. Many information
technology experts believe that XML would ultimately become the tool
that would extend the benefits of EDI--exchanging routine business data
in a structured but technology neutral manner--to web-based electronic
commerce. The hope is that XML would make electronic commerce more
cost-effective and accessible. XML can take advantage of the openness
of the Internet and Web architecture, while perhaps offering lower
costs than those currently associated with EDI software and VAN
transmission fees.
However, XML has only recently captured significant attention among
application developers, and it is still a maturing technology. One of
the greatest challenges confronting the success of XML is the current
lack of consensus on developing business standards for using the XML
specifications. Without some agreement on how data element tags and
their relationships would be defined for different business
transactions, there is the potential for much fragmentation and chaos
in the use of XML. In addition, government and international standards
bodies generally are only beginning to examine the possibilities for
using XML applications to support reporting data to government web
sites. Recently, the United Nations Center for Facilitation of
Administration, Commerce and Trade (UN/CEFACT), the international
equivalent to the ASC X12 Committee, has chartered a work group to
research and identify the technical basis upon which the global
implementation of XML can be standardized. Specific subcommittees
within the ASC X12, including the transportation committee that
oversees transaction set 856, are now in the process of defining XML
Document Type Definitions (DTDs) for the various X12 transaction sets.
The use of XML entails agreement on the so-called DTDs and
``schema'' that would define for different transactions the agreed
document structures, the agreed tag identifiers and relationships,
agreed data elements and document contents, and agreed exchange
requirements. It is EPA's objective to develop in this rulemaking an
XML-based manifest format that would establish a standard method for
displaying and exchanging manifest data with XML enabled browsers and
data base software. Therefore, in addition to the EDI formats discussed
above, EPA is proposing an XML-based approach for preparing and
transmitting manifests on the Internet. EPA has developed a draft for
comment of the Document Type Definition (DTD) that would be used for
transmitting the manifest data in the XML language. The draft DTD
appears in Appendix A to this preamble. The XML-based manifest would
capture and record the same waste shipment data as the paper form and
the EDI formats, and would have functionality similar to EDI. The draft
DTD for the manifest is set forth in detail in Appendix A to this
preamble. EPA requests comment on the XML-based Internet Form manifest
and the draft DTD that we are proposing today.
4. What Comments Would Be Helpful To EPA?
EPA requests comments on the proposal's electronic data interchange
(EDI) standard and the proposal to include an XML-based Internet Forms
approach for the manifest. EPA solicits specific comments on the
following issues.
a. Are the proposed EDI transaction sets appropriate? EPA requests
comment on the proposal to use both X-12 transaction set 856 (the Ship
Notice/Manifest) and transaction set 861 (Receipt and Advice) to convey
all the waste shipment tracking information required by the hazardous
waste manifest. Are there significant business, technical, or practical
issues that might arise from recording shipment tracking information
with two transaction sets, rather than collecting the information on
one format? Would the proposed two transaction set approach complicate
the ability to retrieve, reconstruct, and inspect all the information
about a waste shipment after it has been filed? Also, is EPA on target
with its choice of transaction sets? Are there other business data that
the regulated community would like to be able to transmit with data
required by the manifest, and should our choice of transaction sets and
implementation conventions be revised to reflect this?
b. Is an XML approach feasible? EPA acknowledges that XML is a
relatively new technology, and that industry standards are generally
lacking or only emerging in this field of electronic commerce. Is it
feasible for EPA to develop a Document Type Definition in this
rulemaking that would ``standardize'' the XML usage with respect to the
manifest, or is this not an appropriate role for EPA? Would the
specification of a DTD accomplish our objectives of ensuring free data
exchange and interoperability between XML-enabled systems? Is XML a
sufficiently stable technology to support EPA's purposes?
c. Are there alternative formats that EPA should consider? This
proposal would adopt ASC X12 EDI formats (the X12 856 and 861
transaction sets) and their implementation conventions as an EDI
standard for electronic manifesting. Alternatively, the Internet Forms
approach based on the proposed XML Document Type Definition could be
used by those wishing to use a non-EDI solution for transmitting
manifests on the Web. EPA selected these standards because they
represent technology-neutral approaches that could be supported by many
vendors' products, and because they are mappable to and can integrate
with existing data systems.
EPA solicits comment on the merits of the two optional electronic
manifest approaches proposed today relative to other available options.
The Agency recognizes that there are many attractive ``smart form''
types of software products and other systems available that could be
adapted to an electronic manifest. The major shortcoming of these
products, in EPA's view, is that they typically are designed around a
specific vendor's proprietary product. Thus, the allowance of numerous
proprietary formats would likely hamper the free exchange of manifest
data and the interoperability of electronic manifesting systems. A
variety of proprietary solutions could have the result of fragmenting
the market among several incompatible formats, and actually might
hamper the acceptance of electronic manifests. Nevertheless, EPA
[[Page 28278]]
requests comment on whether other formats should also be recognized,
and if so, how the Agency might minimize the conflict between different
formats.
d. Should EPA Address Internet EDI Distinctly? EPA has not included
any distinct content in the proposal to address EDI conducted over the
Internet, such as ``Web EDI'' or EDI transmitted over the Internet by
secure E-mail technology. The proposal assumes that Internet EDI (i.e.,
transmitting EDI transaction sets via the Internet) using the EDI
formats proposed in Sec. 262.20(a)(4) would be an option available to
those wishing to conduct electronic manifesting on the Internet, in
addition to the Internet Forms standard proposed in Sec. 262.20(a)(5).
In other words, with Internet EDI, the same EDI transactions sets (ANSI
X12 856 and 861) would be used to transmit manifest data, but the
Internet would replace Value Added Networks as the delivery mechanism.
In this proposal, we are distinguishing Internet EDI from the Internet
Forms approach, which does not use ANSI X12 transaction sets to
exchange data.
Several products are now emerging on the Internet that would
perform so-called ``Web EDI.'' With Web EDI, data entered at the client
computer in Hypertext Mark-up Language (HTML) is converted at the
server hosting the Web EDI service to X12 standards and transmitted to
other trading partners as EDI files. Once received in X12 format, the
recipient can then map the incoming information to its specific data
base application. The ``Web EDI'' products that are coming on-line
require some initial configuration by the user, but beyond the
requirement of browser software, there is no need for local
installation of EDI translation software. These services typically
charge a small sign-up fee, and charge a transmission fee per
transaction.
Should EPA support the availability of both the Internet EDI and
Internet Forms methods as options for those who would conduct waste
manifesting on the Internet, or, should EPA restrict Internet users to
one or the other approach? Does EPA need to require the use of a VAN
for EDI transactions, or, could a less expensive Internet-based means
of transmitting EDI data (e.g., E-mail or File Transport Protocol) be
allowed, provided that companies implementing this approach follow
Internet Engineering Task Force (IETF) recommendations (e.g., use third
party ISPs and deploy security to protect such transmissions from
interception)? See Requirements for Inter-operable Internet EDI, EDIINT
Working Group of the IETF, July 8, 1997. Are other controls beyond
those referenced in the IETF working document necessary to ensure that
Internet EDI is as secure and auditable as traditional EDI conducted on
a VAN?
Also, if web sites hosting translation services receive manifest
data inputted from a browser, and translate it to an EDI compliant
format, how would signatures be applied to these documents? Is it the
HTML document or the X12 document that would be signed? Would the
translation at the server complicate the verifiability of any digital
signatures? Can ``Web EDI'' meet all of this proposal's requirements
for authentication, data integrity, security and non-repudiation?
Comments responding to these questions would be very helpful to EPA.
F. What Electronic Record System Controls and Procedures Would This
Proposal Require?
The proposal would specify at Sec. 262.26 a minimal set of controls
and procedures applicable to computer systems that would prepare and
process electronic manifests. The Agency believes that these system
controls, when combined with the requirement that electronic manifest
copies be signed with secure types of electronic signatures, would
assure users and regulators of the authenticity and integrity of
electronic manifest records. Specifically, EPA believes that the
proposed electronic signature requirements and computer security
controls address the following 5 key concerns that have been brought to
the Agency's attention as critical to the reliability and
enforceability of electronic documents.
i. Identity. The proposed controls would assist in demonstrating
who affixed their signature to the document. Specifically, such
controls as access checks, audit trails, signature agreements, and/or
signature verification processes should be helpful to prevent
unauthorized use of electronic signatures.
ii. Intent. The proposed security provisions would assist in
showing that the signor acted with the required intent to adopt the
document being signed or to be bound by its contents. This may also
involve a showing that the signor understood the significance of the
signature act, so that he or she cannot later repudiate their signature
as unintended or mistaken. Signature procedures that include warnings
about the consequences of affixing a signature, and an opportunity to
review and verify the data presented for signature, should aid in
demonstrating the requisite intent.
iii. Tamper-resistance. The proposed security provisions would also
assist in demonstrating that a document was not altered after
signature, since the ability to alter data after signature would permit
the signor to later repudiate a document as different from the one that
he or she actually signed. Signature methods that use encryption
processes to inextricably bind the signature to the data signed can
safeguard electronic documents from subsequent alteration, as can
system audit checks that would disclose any changes to a record, or
attempts to change a record.
iv. Availability. Copies of electronic manifests should be
maintained in such a manner as to be accessible throughout the record
retention period. System controls which require the retention of
information on software and hardware versions used to create archived
records, as well as requirements to retain and maintain previous
versions of software, hardware, and system documentation, should ensure
that this capability is not compromised.
v. Interoperability and error detection. Systems that would
exchange electronic manifests should be interoperable, so that data are
accurately and reliably processed, signatures verified, and security
features necessary to data integrity maintained throughout the exchange
of the electronic documents. In addition, electronic systems should be
able to detect errors (i.e., altered/corrupt data or invalid
signatures), so that invalid records can be flagged and corrected.
System security controls, validation requirements, signature
verification requirements, and requirements to respond to detected
errors and invalid signatures can minimize the possibility of invalid
documents being passed by electronic systems.
1. Validation of System Performance and Training
EPA expects that waste handlers would be able to select from
numerous hardware and software configurations when establishing their
electronic manifesting systems. Such systems may involve a combination
of database software, EDI translator or Internet browser software and
related plug-ins, work flow management software, operating system
software, electronic signature software, communications software, and
the related hardware that is involved in creating, processing, viewing,
printing, and transmitting files. The Agency also expects that these
automated systems may consist of both customized systems designed by or
for the waste handler company, and ``off-the-shelf'' solutions
developed by
[[Page 28279]]
commercial vendors that market products designed specifically for
tracking hazardous wastes. In any case, the proposed rule would require
that waste handlers establishing electronic manifest systems validate
their systems, that is ensure that all the system components (including
security features) operate together properly, that system performance
ensures accuracy, reliability, and consistent, intended performance,
that components are fully interoperable throughout the system, and that
the system can meet the computer security requirements of this section
and good security practices common to trusted electronic commerce
systems, and that appropriate precautions have been taken to ensure
that these security measures cannot be avoided or defeated. EPA
believes that validation of automated systems is essential to
establishing the reliability of such systems and the accuracy of the
data they generate.
EPA is also proposing that the system validation would be performed
and certified to by an independent third-party with expertise in
information systems and their security. EPA is concerned that neither
the waste companies developing or acquiring such systems nor the EPA or
State RCRA inspectors that would inspect facilities for compliance with
RCRA regulations would possess the requisite skills or expertise to
validate electronic manifest systems. In addition, the use of an
independent and qualified information systems professional should
ensure that there has been an objective assessment made of the system's
security features. Since the trustworthiness and utility of electronic
records and systems would depend heavily on the performance and success
of this validation step, EPA is proposing that the qualified systems
professional would prepare a written assessment with a certification
statement attesting to the system's performance. This written
assessment and certification statement would need to be maintained
among the facility's records, and made available on request during any
EPA or State inspection. Under this proposal, for an electronic system
to be validated, the qualified professional would need to certify that
the system generates and processes data accurately and reliably, that
the system performs consistently and as intended, that the system's
hardware and software are fully interoperable with the hardware and
software of any other systems with which manifests would be exchanged,
that the system is designed and can be operated to meet all the
security requirements of this rule and good security practices common
to trusted electronic data exchange systems, and that appropriate
precautions have been taken to ensure that these security measures
cannot be avoided or defeated.
EPA requests comment on the proposed requirement for an independent
written assessment of electronic manifest systems. Would validation be
more objective and helpful if performed by independent information
systems professionals, or would this add unnecessary burdens to the
validation procedure? With respect to the system assessments, has EPA
proposed a reasonable set of criteria, or, are there other information
systems audit criteria and good security practices that we should
require to be included in the assessment and certification? With
respect to the independent systems professionals, is there some
credential, training, licensing or other qualification that EPA should
identify in the rule to ensure that only qualified individuals perform
these validation assessments? EPA also requests comment on alternatives
to independent third-party validation of systems. Should EPA require
that software be developed by companies independent of the waste
handlers that would use the systems? In the case of systems developed
independently of waste handlers, and systems using ``off-the-shelf''
products, would third-party validation be necessary? Answers to these
questions would be very helpful to the Agency.
2. The Ability to Generate Accurate and Complete Records Available for
Inspection
As an additional control on electronic manifest systems, this
proposal would require that waste handlers' systems have the ability to
generate accurate and complete records in both electronic and human
readable formats, and which are suitable for and readily available for
inspection and copying. In most instances, facilities would retain
their electronic records in the electronic formats in which they were
created and signed. However, during the course of RCRA inspection,
federal or state inspectors may wish to have a human readable copy
generated that they may inspect, copy, print, or remove from the
facility. Thus, the system must have the capability of generating a
readable copy, as well as the electronic copy that is electronically
signed and retained as the facility record for the 3-year retention
period required in these regulations. In either case, the system
records must accurately and completely depict all the information that
was entered on the record when it was created.
EPA emphasizes that the electronic formats of records must be
available for inspection; it is not sufficient to offer the inspector
access only to paper copies generated by the system. Access to
electronic records may be vital, since the electronic records may often
be the format that would bear the electronic signatures that would
authenticate the document and enable the inspector to verify that the
document has not been altered. These electronic records may also bear
the metadata or audit trail information which may have direct bearing
on the trustworthiness and reliability of the record. The signed,
electronic copies may also be the format required as evidence in any
adjudicatory proceeding in which the data on an electronic manifest are
relevant to a disputed issue. In addition, RCRA inspectors would be
able to conduct much more efficient inspections of the electronic
records than of paper copies. EPA and the states should be able to use
efficient, computerized methods to search electronic records and detect
trends, inconsistent or erroneous information, possible violations, or
other problem areas.
The inspector access required by this proposal must be reasonable
access, consistent with section 3007(a) of the RCRA statute. Section
3007(a) of the Act states that any person who generates, stores,
treats, disposes, transports, or otherwise handles hazardous wastes
must permit inspectors at all reasonable times to have access to and to
copy all records relating to their hazardous wastes. EPA understands
that RCRA inspectors would lack familiarity with all the possible
software that may be used to store, index, and access electronic
records. However, the use of electronic record storage systems must not
be allowed to become a barrier to inspector access to manifest records.
Therefore, facilities should have a knowledgeable person on the
premises who can assist the RCRA inspector with the operation of the
software that searches and accesses stored manifest records. The
indexes or search engines used to search and access these records
should be designed with a reasonably intuitive user interface, so that
the RCRA inspector can, after a brief orientation session, effectively
operate the system, select relevant search parameters, find responsive
records, and validate electronic signatures on these records.
Nevertheless, the use of new technologies compels the result that
access to records may generally require
[[Page 28280]]
instruction from and the cooperation of the facilities undergoing
inspection.
The requirement to retain electronic manifest records for
inspection over several years does raise an issue about maintaining the
ability to authenticate these records. For example, with electronic
documents that are digitally signed, this requires the digital
signature to be verified and the signer's digital certificate to be
validated as of the time of the signature. Is the long-term validation
of such signatures feasible, given the costs and technical challenges
of maintaining a long-term capability to validate digital certificates?
Are there practical ways to ensure long-term enforcement capability and
liability protection for companies using manifests without imposing the
burden and cost of indefinite signature validation mechanisms?
3. The Ability To Protect Records
As a third control on electronic manifest systems, the proposal
would require that these systems be designed and operated so that they
protect electronic records from damage or alteration, and ensure their
accurate and ready retrieval during the entire record retention period.
The RCRA regulations generally require that manifest records be
retained for a 3-year period.
This control entails more than controlling access to data and audit
trail protections against erasures and alterations caused by accident,
vandalism, fraud, or sabotage; it also requires that systems and
storage media be protected against possible physical causes of damage,
such as contact with heat, fire, magnetism, water, etc. The system must
also create secure back-up copies of records or otherwise provide for
data recovery in the event of damage, errors, or a disaster.
The proposed requirements that records be protected and remain
accessible throughout the record retention period imposes additional
obligations with respect to system upgrades and revisions. As system
upgrades are implemented, it is possible that the newer hardware and
software may not be able to read or process files created with earlier
versions of software or hardware. Therefore, facilities must either
convert their files so that they can be accessed by the upgraded
system, or, retain adequate hardware and software to ensure that
electronic manifests remain accessible throughout the document
retention period. Facilities should also retain information on which
software version was used to create their records.
EPA has not specified in this proposal any particular storage media
for retaining manifest records. Concerns have been expressed that such
records should be retained on a more permanent medium, such as a CD-
ROM. The Agency requests comments on the appropriateness and
feasibility of a requirement that manifest records be periodically
archived on a write-once, read-many medium.
4. The Ability To Limit System Access and Conduct Authority Checks
Authority checks are security devices that grant access to a system
or to specific data only when an individual seeking access can
establish (typically, by entering a User ID or password when prompted)
that their access has been authorized. Access controls and authority
checks form the first line of defense of record authenticity and
integrity, since they support user identification and authentication.
The proposed rule would require that electronic manifest systems be
designed and operated with controls (e.g., User ID's and passwords)
that limit system access to only authorized individuals, that is,
individuals who are authorized to act for and bind the organization in
creating, signing, or processing manifests. The integrity of an
electronic records system would be readily assailable if unauthorized
individuals could enter the system, override security measures, and
thereby read or alter records that they are not authorized to see or
manipulate. Uncontrolled access could leave a system vulnerable to
sabotage or industrial espionage, and open up opportunities for signers
to repudiate the genuineness of signed records. Therefore, basic system
access controls must be included in every electronic manifest system.
Such controls would include assurances that:
Unique identifiers (e.g., User IDs) are assigned to each
authorized person, and the identifiers assigned uniquely identify the
user to the system, so that the system can authenticate the user, and
ensure individual accountability;
User authority is defined, and users' access is limited to
data required to perform job tasks or other user needs;
Procedures are in place for User ID and password
administration and termination;
The system enforces secure password procedures and access
controls;
Access and authentication policies and procedures are
documented, shared with users, and reviewed periodically; and
Auditable logs are retained of log-on attempts, and log-on
failures or rejections.
The proposed rule would also require authority challenges and other
checks to be included at critical points in the system, to ensure that
only authorized individuals can use the system, sign records, access
input or output devices, alter a record, or perform other discrete
system operations. Keeping these functions confined to authorized
persons is essential to protecting the integrity of records and
ensuring record accuracy and reliability. While EPA believes that the
inclusion of such authority checks is fundamental, it would be up to
each organization to determine the nature, scope, and mechanisms for
performing these checks.
5. Use of Secure Audit Trails
Because it is important to know that electronic records remain
complete and accurate during their entire retention period, the
proposed rule would also require audit trail controls to be
implemented. In this regard, the proposal would require the use of
secure, computer-generated, time-stamped audit trails to independently
record the date and time of operator entries and actions that create,
modify, or delete any electronic records. This control would require
that a complete and accurate history of each record be retained, and
would preclude modifications that would overwrite or obscure previously
recorded information. In other words, the secure, computer-generated
audit trail would provide a lasting record of who did what to a record,
and when it was done. These audit trail records shall be retained for
the same period of time (generally 3 years) as the electronic manifest
records, and they shall be made available for inspection upon the
request of a RCRA inspector. The audit trail information may be
retained as a part of the electronic manifest record, or as a separate
record.
The Agency emphasizes the need for strict objectivity in recording
audit trail information such as date and time stamps. Therefore, EPA
believes that it is vital that this audit trail information be created
automatically by the computer system, independently of system
operators. Also, the requirement that audit trails be secure means that
operators shall not have the ability to either write or modify this
data. The history of the record must be preserved, and individual
accountability for record integrity maintained.
6. Software-Based Work Flow Controls and Operational System Checks
A key component of a secure and reliable electronic manifest system
[[Page 28281]]
would be work flow management software that implements the logic rules
and process underlying the manifest. During our Manifest Automation
Pilot tests, EPA gained special appreciation for the significance of
these software-based controls. The manifest work flow is very complex;
the manifest must be routed among generators, transporters, and waste
management facilities in the proper sequence, and specific data must be
entered by specific waste handlers (and signatures applied) at specific
points in the circulation of the manifest. Multiple copies must also be
distributed at appropriate times. Unlike the current paper manifest,
copies of the electronic manifest may not physically accompany and be
passed with the waste itself. Therefore, it is essential that an
electronic system not leave the routing of the manifest and its proper
execution to chance.
To ensure the reliability of the electronic manifest, EPA is
proposing that electronic systems be designed with software-based work
flow controls and operational system checks to oversee the work flow
process. This work flow management software would ensure that the
electronic manifest is routed to all waste handlers in the proper
sequence, that waste handlers are prompted to sign manifests
electronically in the proper sequence and on the appropriate signature
blocks, that data entered by previous waste handlers cannot be altered
once the previous handler has signed the document, and that the
appropriate signed copies of the manifest are distributed to each waste
handler involved with a shipment.
Another possible work flow and operational check would address an
electronic manifest system's response to invalid signatures. The
proposal would require that electronic signatures (digital signatures
and secure digitized signatures) be capable of being verified. Both of
these signature methods include document binding features (e.g.,
encrypted hash function or checksums) which enable the recipient to
verify that a document has not been altered or corrupted since it was
signed. What should be the appropriate system response when an invalid
signature is detected? Should EPA include in the work flow controls a
requirement that users be alerted to an improperly signed manifest and
that the software block further use or transmission of an invalid
electronic manifest until it has been replaced with a valid manifest
for which the electronic signature can be verified? Alternatively,
should the system be designed only to detect invalid signatures and
alert the recipient to the requirement to obtain a valid manifest
before proceeding? In the latter case, the manifest use regulations
could be revised to make it absolutely clear that one may not use an
electronic manifest shown to be invalid, but the electronic system
would not itself block the use. EPA requests comments on these
alternatives, and whether the final rule should include one or the
other of these additional work flow controls.
7. Software-Based Data Presentation Features and Signature Prompts
Today's proposal includes two distinct electronic manifest formats,
the proposed EDI format and the proposed Internet Form manifest in the
XML language. While the Internet Form approach would typically present
manifest data in a human readable form that looks like the paper form,
the proposed EDI format includes codes and headings that may complicate
the viewing of the embedded manifest data. This could be a concern, if
the result were that a user wishing to sign the EDI manifest could not
readily recognize and verify the data entered prior to signing the
document. EPA believes that it is important to the accuracy and
trustworthiness of electronic records that those using the EDI formats
to satisfy regulatory requirements have a meaningful opportunity to
verify data before applying their electronic signatures. Therefore, EPA
is proposing that systems using the EDI formats must be able to display
the manifest data to those signing manifests in a human readable format
that permits the user to readily verify the entered manifest data prior
to applying a signature. In practice, this would require that the data
be displayed for the signor with the form's predetermined field labels,
so that there could be little doubt that the data entered relates to a
specific data field of the manifest. EPA requests comment on the
feasibility of including these data presentation and verification
features as system design requirements, particularly with respect to
EDI systems. Typically, EDI systems are designed to minimize human
involvement in data exchanges between automated systems. However, when
an EDI system is used in a business process such as the completion of
manifests, the affixing of electronic signatures is by nature an
interactive process. Today's proposal would only require that the data
presentation presented to the signor at the time of signature include
the human readable display with the field labels. The proposal would
not require these display features to be included as a part of the EDI
document itself, which would, of course, comply with ANSI X12 structure
and syntax requirements.
Moreover, there is a concern that electronic signature methods that
deviate significantly from the traditional signature ceremony may not
seem as formal or ``official'' as conventional handwritten signatures.
For example, a digital signature may be executed by a mouse click on an
item displayed on the computer screen. Therefore, EPA is proposing that
electronic manifest systems display a warning message when users are
prompted to electronically sign manifests. The warning should appear
clearly and conspicuously, and should advise the signer that their
electronic signature constitutes a signature for all legal purposes.
This message would also remind the signer of the possible civil and
criminal sanctions for the misuse of an electronic signature. For
digital signatures, the warning message would remind signers that
digital signatures can only be used by the person identified as the
subscriber in the digital certificate, and that the right to use one's
private key to execute digital signatures cannot be delegated to
another. The proposed form of the signature prompt warnings is set out
at proposed Sec. 262.26(c)(7). EPA requests comment whether these
warnings should be displayed for all electronic manifest systems. For
example, the ``secure digitized signature'' method discussed later in
this preamble would require the signer to execute their hand signature
on a digitizer pad. Is it necessary to display the proposed warning
messages for this method of signature, or should the warnings be
included only in systems that incorporate the digital signature method,
which does not involve a conventional signing ceremony? Also, for
digital signature systems, should a warning be displayed prior to
executing each signature, or could the same warning be conveyed more
effectively at the time a user receives a digital certificate?
8. Full Interoperability of System Software
The quality and reliability of electronic manifest systems and data
depend heavily on system developers using software that consistently
supports and executes the standard electronic formats, electronic
signatures and their verification, the work flow processes that ensure
that manifests are routed, signed, and copied appropriately, and the
audit trail and other security features of proposed Sec. 262.26. If the
software used within an entity, or between entities that exchange
manifests, cannot consistently implement these features, then the
[[Page 28282]]
reliability and integrity of electronic manifests would be impaired.
Therefore, EPA is proposing today that electronic manifests systems
shall be designed and tested to ensure full interoperability of the
software components, so that the above features are supported and
executed consistently throughout the period that a manifest record
resides on a system or is exchanged among waste handlers participating
in an electronic system. If a person or entity wishes to exchange
electronic manifests with another's system, the other system's software
must also be fully interoperable with the software of the first system.
EPA cannot designate a particular software configuration or specific
vendors' products as required or recommended to meet the standards
proposed today. However, consistent implementation and software
interoperability are essential requirements for trustworthy electronic
systems, and system software must be tested and validated for such
performance as a part of the system validation assessment that would be
required under proposed Sec. 262.26(c)(1). One may not exchange
manifests between system components, or between other systems, if
interoperability and consistent performance have not been assured. EPA
requests comments on this proposal.
Some have suggested that EPA should do more to ensure the quality,
reliability, and interoperability of the software that entities adopt
to implement the electronic manifest. Apart from the system validation
assessments discussed above, there is a concern that available software
components that companies might select for their systems should be
evaluated more closely at the outset (i.e., prior to its being
available for use in a manifest system) to ensure that it is properly
designed and shown to be able to meet this rule's security and other
performance standards. If software is not closely evaluated for
quality, reliability, and interoperability, greater risks might arise
that software used by different entities (or even within the same
entity) would not perform consistently. Thus, the risks become greater
that a software product on one system would be unable to prevent or
detect data alteration or corruption, unable to recognize the processes
used by other software to validate signatures or to bind signatures to
record content, unable to route manifests correctly, and unable to
maintain auditability of transaction events. Similarly, if software is
not evaluated closely for quality and performance, there is the risk
that software may include unnoticed flaws that undermine its security
features. Such flaws could later be seized upon by those challenging
the accuracy of electronic data, and could be a basis for invalidating
manifests that were processed using the defective software.
While EPA believes that the system validation and certification
requirements proposed above can diminish these risks, EPA requests
comment on whether additional software evaluation mechanisms are
necessary. If additional measures are warranted, how would they be
structured and implemented? How would such additional evaluation
measures enable EPA to ensure that the criteria of this rule are being
met and applied consistently? What would be the benefits and adverse
consequences of establishing additional evaluation steps?
A separate issue relates to how EPA and the States can know that
new electronic manifest systems are being implemented. EPA is taking
comment on one additional measure, which would require system sponsors
to notify EPA on a one-time basis that they have developed and would be
implementing an electronic manifest system. With such information, EPA
would be able to gauge the timing and scope of the use of electronic
manifests, aiding the Agency's training and outreach efforts and
providing the basis for future data collections to evaluate electronic
manifests. Notification would not be required from every waste handler
using such a system, but only from the entity sponsoring or operating
the electronic manifest system. EPA requests comments on whether such a
one-time notification requirement would act as a disincentive to the
adoption of electronic manifests.
9. Controls Over System Documentation
Errors in conducting system procedures and system maintenance are
likely to occur unless controls are applied to the systems
documentation that describes how a system operates or is maintained,
including standard operating procedures. System documentation should
fully and accurately describe the procedural controls employed in
creating and maintaining records, and account for each link in the
chain of events that produce records and preserve their integrity. This
proposal would require the establishment of controls over this system
documentation, including adequate controls over the distribution of,
access to, and use of the documentation. This requirement would extend
to revision and change control procedures as well.
10. Policies Holding Individuals Accountable
Any falsification of a signature or record is a serious matter,
regardless of whether the falsification occurs with a paper or
electronic record. In this regard, EPA emphasizes that the
falsification of an electronic signature or the making of false
representations in connection with an electronic manifest would be
punishable by law and would carry the same penalties as similar acts
done with paper manifests and ink signatures. Under RCRA Section
3008(d)(3), for example, any person who knowingly omits material
information or makes false material statements or representations in
any manifest, record, or other document prepared for purposes of
compliance with RCRA regulations may be subject, upon conviction, to
criminal sanctions that may include a fine of not more than $50,000 for
each day of violation, or, imprisonment not to exceed two years, or
both. In addition, 18 U.S.C. 1001 states more generally that false,
fictitious or fraudulent statements or representations to the
government may subject a person to criminal penalties.
Despite these strong sanctions that are well understood in the
paper environment, there may be a perception that electronic signatures
are less formal than handwritten signatures, and this may cause some to
believe that errors or falsifications associated with their use are not
as serious as errors or falsifications in signing paper records.
Therefore, the proposed rule would require organizations using
electronically signed electronic manifests to establish and adhere to
written policies that hold individuals accountable and responsible for
actions initiated under their electronic signatures. These policies are
intended as a further deterrent of record and signature falsification.
The individual employees who are subject to such policies would better
understand the seriousness and consequences of signature or record
falsification. Of course, a broad range of disciplinary measures would
be available to organizations under their written policies, and
organizations should have appropriate discretion to tailor their
disciplinary actions so that they provide reasonable sanctions that
address the level of employee complicity and intent, while deterring
the more serious acts. The intent is that such policies would be
implemented and enforced in a way that promotes a strong security
environment.
[[Page 28283]]
In addition, EPA believes that the proposed digital signature and
secure digitized signature methods discussed in section VII.H. of this
preamble provide a reasonable basis for applying strict accountability
policies. Digital signatures are not trustworthy if the ``private key''
of the signer is compromised. The compromise of a private key would
likely involve either the complicity of or serious negligence of the
owner of the key, such as allowing access to one's smartcard or hard
disk where the private key is kept, along with the password or PIN
necessary to use the private key. Likewise, one should be accountable
if they allow others access to their signing devices (e.g., a digitizer
pad) in such a way as to provide them the opportunity to ``forge'' an
electronic signature.
EPA requests comments on this proposed set of system controls and
procedures. Do these measures define an adequate computer security
program that would ensure data integrity and record authenticity? Do
these proposed controls provide sufficient flexibility? Can these
controls be incorporated practically into commercially available
products, and included in waste handlers' operations? How might EPA
improve on these controls to make them more understandable and easier
to implement?
11. Other System Requirements
In addition to the security and operational controls discussed
above, today's proposal also includes several definitions of terms that
are intended to provide greater certainty insofar as when an electronic
manifest transmission has been received, and when there may be an
obligation to retransmit an electronic manifest. Proposed
Sec. 262.26(e) would define an electronic manifest to be received by
the recipient when it is accessible to the recipient in a format that
the recipient can read. Should a recipient receive an unreadable
transmission, or one bearing evidence of data corruption (e.g., garbled
text or hash functions that do not calculate correctly), he or she
would be required to request that the sender re-transmit a proper copy.
Moreover, proposed paragraphs (f) and (g) of Sec. 262.26 would aid the
sender in establishing the fact of receipt by the recipient.
Sec. 262.26(f) would require recipient's systems to send promptly
(typically, an automated, immediate response) an acknowledgment of
receipt to the sender to acknowledge that a readable record was
received by the recipient's system. According to proposed
Sec. 262.26(g), the acknowledgment of receipt from the recipient would
establish conclusively the fact of receipt and the date of receipt.
These proposals should provide assurances to the sender that their
electronic transmissions were received in good order, and minimize the
possibility of repudiation of the fact of receipt at a later date.
Finally, proposed Sec. 262.26(h) would create an obligation on the part
of the sender to re-transmit an electronic manifest for which a
positive acknowledgment of receipt was not received by the sender
within 12 hours of the original transmission, while proposed
Sec. 262.26(i) would clarify that the inability of one to transmit a
valid electronic manifest does not excuse that person from the
obligation to initiate a hazardous waste manifest for their shipment.
If a system is not operating properly and would not transmit valid
manifests, the person responsible for providing a manifest must then
use a paper manifest to accompany and track the progress of the waste
shipment.
Similar proposals regarding receipt, acknowledgment of receipt,
establishing date of receipt, retransmission, and inability to transmit
are included for transporters and TSDFs. The similar transporter
proposals are included at proposed Sec. 263.23(d)-(g), while the
proposed provisions applicable to facilities are set out at proposed
Secs. 264.78(f)-(j) and 265.78 (f)-(j). EPA requests comment on the
appropriateness of these proposed terms, and whether they would meet
our objective of establishing with certainty when electronic manifests
are received and when they must be re-transmitted or replaced.
G. EPA's Proposed Electronic Signature Standard
1. Why Are Signatures Important to the Manifest?
A significant issue in this rulemaking is the designation of an
electronic signature method that would be at least as secure and
trustworthy as the conventional handwritten signature that has been in
use for hundreds of years to authenticate paper documents. As a general
matter, a signature is used to bind an individual signer uniquely to
the text of a signed document, so that the source of the document can
be clearly established, and so that the signer cannot later repudiate
the transaction. Thus, signatures aid the authentication of a document.
In the context of the hazardous waste manifest, signatures also
play more specific roles. The required manifest signatures are used to
support certifications by waste handlers to specific facts, and more
generally, to show the change of custody of waste shipments during
their transportation to off-site treatment, storage, or disposal
facilities. The hazardous waste generator initiates the manifest with
its signature certifying that the contents of the shipment are fully
and accurately described on the manifest by proper shipping name, that
the contents are properly classified, packed, marked, and labeled, and
that the shipment has been prepared properly for highway
transportation. When the shipment arrives at the designated waste
management facility, the TSDF signs the manifest as well, and this
signature acts as its acknowledgment of the receipt of the shipment,
except as specifically noted in the discrepancy space (current Block
19) of the manifest. In addition, as hazardous waste transporters
accept custody of the shipment, they also sign off on the manifest form
in the designated transporter blocks, and thus acknowledge with their
signatures that they have received the materials.
Since the inception of the manifest in 1980, EPA's manifest
regulations have required the hand-signed signatures of waste handlers
to demonstrate the chain of custody, and to certify that the shipment
was prepared properly by the generator or received by the TSDF. During
public meetings conducted by EPA in December 1997 and January 1998,
nearly all stakeholders attending voiced their support for retaining
the role of signatures in the manifest. EPA believes that signatures
are an effective means of demonstrating custody and acknowledging
accountability. Therefore, this proposal would retain the role of
manifest signatures, while authorizing the use of certain electronic
signatures in automated systems.
2. What Are the Concerns With Electronic Signatures?
Hand-signed signatures are not perfect, and it is not uncommon for
handwritten signatures to be the subject of crude or sophisticated
forgery attempts. Nevertheless, the characteristic signature of each
individual is an attribute that follows the individual and identifies
him or her fairly uniquely to those who are familiar with and can
recognize such a signature. When disputes arise, the courts are also
familiar with the methods for using hand-signed records as evidence,
and the types of expert testimony that can help resolve issues
surrounding a disputed signature.
Electronic signatures are relatively new, and there are numerous
technologies which purport to provide signature solutions that equal or
exceed the level of assurance provided by
[[Page 28284]]
handwritten signatures. The technologies tend to be complex, and there
is some concern that these technologies have not undergone the kind of
review which conventional handwritten signatures have over many
centuries of use.
The Agency understands the basis for this concern, and believes
that over time, experience with the available signature methods would
mitigate much of the concern. EPA believes that the electronic
signature approaches proposed today can be made reliable and
verifiable, so that they would identify individual signers of manifests
to a very high legal and technical standard.
3. How Does Today's Proposal Address Electronic Signatures?
Today's proposal would require that electronic manifests be
electronically signed with either a ``digital signature'' or a ``secure
digitized signature.'' The proposal clarifies that electronic manifest
copies bearing proper electronic signatures are the legal equivalent of
paper manifests bearing handwritten signatures, insofar as meeting any
requirement in these regulations to sign a manifest, to use a manifest,
or to retain a copy of a manifest as a record.
The proposed amendments recognizing electronically signed manifests
are found in proposed Sec. 262.25, entitled Manifest Electronic
Signatures, and in proposed Sec. 262.26, which addresses electronic
manifest systems and their security. These new provisions would
together clarify that a manifest may be signed by either affixing a
handwritten signature to a manifest form, or by signing an electronic
manifest with a digital signature or secure digitized signature. Each
mode of signature would be a valid method for a signer to authenticate
the manifest. In this context, the term ``authenticate'' means simply
that the signer is acknowledging that he or she is the source of the
document that is signed, and that he or she approves or adopts the
statements to which the signature relates. For electronic copies,
Sec. 262.26(a) states that electronic copies which are initiated and
stored in computer systems which meet the Sec. 262.26(c) procedures and
controls, and which are electronically signed with signatures that meet
the proposed Sec. 262.25 electronic signature standards, may be used in
lieu of hand-signed paper manifest copies to meet the manifest
initiation, use, and retention requirements in the RCRA regulations.
Proposed Sec. 262.25 includes at Sec. 262.25(a) a definition of
``electronic signature.'' This term is defined generally to mean a
method of signing an electronic document with a computer generated
symbol or series of symbols in a way that indicates that a particular
person as the source of the document, and indicates such person's
approval of the content of the document, or an intent to be bound by
the document. While this definition is technology neutral, paragraphs
(b) through (f) would clarify that electronic manifests must be signed
with one of two types of electronic signatures, the ``digital''
signature method proposed in Sec. 262.25(c)-(f), or, the ``secure
digitized signature method'' proposed in Sec. 262.25(g). Proposed
Sec. 262.25(h) would establish a rebuttable legal presumption that may
be of evidentiary value in adjudications that might arise surrounding
electronically signed manifests. Under this proposal, proof that a
particular individual's electronic signature was affixed to an
electronic manifest would be evidence, and could suffice to establish
that the individual identified as the signor affixed the signature and
did so with the intent to sign the electronic manifest to give it
effect.
4. What Is a ``Digital Signature?''
Section 262.25(b) of today's proposal would clarify that one type
of electronic signature that may be used to authenticate the electronic
manifest is a ``digital signature.'' Section 262.25(c) contains a
definition of ``digital signature'' which explains that this is a
specific form of electronic signature which is based on asymmetric
cryptography. This type of cryptographic method is also known as
private key/public key cryptography, since it relies on the
mathematical relationship between a pair of ``keys'' (which are very
long numbers) to execute and verify a signature. The technical basis
for this signature technology is described below in greater detail.
This digital signature method proposed today in Sec. 262.25(c)-(f)
offers several performance advantages which ensure both reliable
authentication and data integrity for electronic documents. Digital
signatures are powerful authentication devices, because they are:
Unique to the signer,
Under the signer's sole control,
Capable of being verified, and
Linked to the data, so that any change to the data would
cause the invalidation of the signature.
Thus, in addition to identifying the signer of a document, a
digital signature has the additional advantage of providing positive
verification that the electronic document has not been altered since it
was signed. Thus, digital signatures provide enhanced security and data
integrity when compared with personal identification numbers (PINs) and
other types of electronic signatures. This also makes the digital
signature approach more suitable for use in open systems such as the
Internet. While the open network may itself be difficult to secure, the
digital signature makes it possible to secure the individual signed
documents, thereby ensuring the authenticity and integrity of records
that are transmitted and received.
5. How Do Digital Signatures Work?
A digital signature is based on cryptography, which is an area of
applied mathematics that is more commonly associated with scrambling
and unscrambling transmitted messages so that they remain confidential.
In creating and verifying digital signatures, however, there is no
encryption of data. Instead, the cryptographic process is used only for
authentication purposes.
Digital signatures rely on asymmetric or public key cryptography.
In a public key system, each user would have two distinct keys known as
the ``public key'' and the ``private key.'' The two keys in each key
pair are mathematically related in such a way that: (1) the public key,
and only the public key, can authenticate a message that was digitally
signed with the related private key; and (2) one cannot feasibly
determine or calculate the private key from knowledge of the public
key. Once a user has a key pair, he or she must keep the private key
secure from disclosure and never transmit it. On the other hand, the
public key is distributed freely to all those with whom the user
corresponds. Messages digitally signed with party A's private key can
be authenticated by party B using A's public key which A has
distributed or published. The great advantage of asymmetric
cryptography is that communications can be secured across open
networks, without the need to share or distribute any secret keys.
Digital signatures are possible because of the key pair
relationship in asymmetric cryptography. This follows from the fact
that if A's public key is able to validate the digital signature on a
message received by B, then B knows with reasonable certainty that the
message could only have been digitally signed with the corresponding
private key that is held only by A. So, a digital signature created by
party A when he ``signs'' an electronic message using A's private key
can be verified by party B with A's public key, and this validation
[[Page 28285]]
would authenticate A as the source of the document.
The creation and validation of digital signatures is an involved
process that involves complex mathematical operations known as
encryption algorithms. However, the computations that create and
validate digital signatures are conducted by signature system software,
and occur transparently to the user. The complexity of the calculations
is also what ensures the strength and security of the digital signature
method.
To create a digital signature, the signer of a document first uses
his or her signature software to create a digital ``fingerprint'' of
the document or message that is being signed. A ``hash function'' is
applied to the message, and the hash function acts on all the binary
data in the document to produce a numerical result that is unique to
the document. If even one character or punctuation mark in the document
is changed, the hash function would compute a different numerical
result for the document. This unique calculated number thus represents
the entire document, and is called the ``hash'' or ``message digest.''
The signer's software then uses the message digest value and the
signer's private key to generate the digital signature value. This
value is forwarded to the recipient along with the text of the
document. Upon receipt, the recipient's software verifies the message
digest with the sender's public key, and also runs the hash function on
the text of the received message. If the sender's public key
successfully recovers the message digest, and the numerical result of
the recovered digest matches the number calculated by the recipient's
hash of the received text, then the digital signature is verified.
Verification thus indicates that the digital signature was created with
the signer's private key, and secondly, that the document was not
altered since it was signed.
6. What Digital Signature Algorithms and Key Lengths Are
Acceptable?
This proposal would require that electronic manifesting systems
include application support for creating and validating digital
signatures that comply with existing standards. Currently, there are
several algorithms which can be used to generate a digital signature.
In December 1994, the National Institute of Standards and Technology
(NIST) adopted the Digital Signature Standard (DSS) as Federal
Information Processing Standard 186. The 1994 DSS referenced the Secure
Hash Algorithm (SHA) as the required method for calculating message
digests. The SHA is a Federal Information Processing Standard that was
published by the NIST in April 1995 as FIPS PUB 180-1. According to the
Federal DSS, the message digest calculated under the SHA is then input
to the DSS's Digital Signature Algorithm (DSA), and the resulting
encryption of the message digest creates the digital signature. The DSS
was developed to be a standard for federal information systems, in
order to improve the utilization and management of computer and related
telecommunications systems in the Federal Government.
Despite the specification by NIST of a specific DSS for federal
systems, few signature software products were developed that supported
the 1994 DSS. Instead, many of the commercial signature products have
tended to embrace the algorithm developed by RSA Data Security. Because
the RSA algorithm has been demonstrated to be strong and effective, and
also because of its widespread commercial acceptance, the NIST
determined in December 1998 to include the RSA algorithm in the Federal
DSS. Thus, either the earlier DSA announced in 1994 by NIST or the RSA
algorithm described in ANSI standard X9.31 may now be used for
generating digital signatures in federal information systems. See NIST
FIPS PUB 186-1, December 15, 1998.
In light of NIST's recent acceptance of the RSA algorithm, EPA is
today proposing that digital signature products used in connection with
the hazardous waste manifest must support the Secure Hash Algorithm
(for creating message digests) described in FIPS PUB 180-1, and the RSA
digital signature algorithm (see ANSI X9.31), in accordance with FIPS
PUB 186-1, December 1998. The RSA algorithm is well understood and has
been carefully tested, and should provide adequate strength and
security for the foreseeable future. EPA believes it is appropriate to
standardize manifest digital signatures around the RSA signature
algorithm, to facilitate the use and ready verification of digital
signatures generated by various commercial signature products.
Digital signature products used in connection with the manifest
shall support ANSI X9.31 key generation methods. The modulus, which
reflects the strength of the encryption used in creating a digital
signature, shall not be less than 1024 bits.
EPA requests comment on the designation of the RSA algorithm and
FIPS PUB 186-1 as the standard for manifest digital signatures.
7. Is a Digital Signature Alone Sufficient to Identify Individual
Signers?
No. It must be emphasized that, unlike a handwritten signature, a
digital signature is not a personal attribute or characteristic of the
signer. When a recipient validates a digital signature with the
sender's public key, the validation only establishes the fact that the
public key and private key are mathematically related. The relationship
of the keys to the individual signer is not certain, without additional
safeguards that help to bind the signer to the use of the private key.
To ensure the reliability of digital signatures, two potential
weaknesses must be safeguarded. First, it is essential that the holder
or ``owner'' of the private key maintains the security of the private
key. If one's private key is stolen, lost, or otherwise compromised,
then the digital signature system may be compromised. An imposter could
then use a stolen private key to sign documents that would appear to be
signed by and bind the owner of the key, and unless recipients were
made aware of the theft, the public key would appear to validate the
imposter's signature. Second, there must be involved a ``trusted third
party'' to ensure that the identity of the individual and his or her
public key are securely bound together in the form of a digital
certificate, and that all such certificates are properly issued and
managed.
8. How Would Today's Proposal Deal With the Security of Private Keys?
Today's proposal would require that individuals protect their
private signature keys from disclosure or other compromise. As
discussed below, the discovery that a private key has been compromised
creates obligations to notify appropriate authorities, who would then
provide notice that the certificate associated with that key has been
revoked. In addition, the electronic manifest system controls discussed
above in section VII.F. of this preamble would require that
organizations using electronic manifest systems have policies in place
that hold individuals accountable for actions initiated under their
electronic signatures. Since employees would be aware of this
accountability and the sanctions that their employer may impose for
intentional or careless conduct involving their private keys and
digital signatures, EPA believes that such controls would provide a
reasonable deterrent against signers compromising the security of their
private keys. These requirements are no more demanding
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than those generally accepted by the public in connection with lost
credit cards. When EPA publishes its supplemental notice detailing the
manifest PKI, we will provide more information on the proposed security
requirements for digital signatures.
Today's proposal would not, however, require that digital signature
systems used for signing manifests employ a tokenized digital
signature. With tokenized digital signatures, the private key that
creates the digital signature resides on a ``smart card'' or other
hardware token, which is carried on the person of an individual signer
and accessed with a password or PIN that only the individual would
know. Such a hardware-based implementation of a digital signature
system can enhance the security of the system beyond that attainable
under a system where the private key resides on software stored on
one's hard drive or network server. Hardware-based systems provide
greater security because the hardware token ties the signature act more
closely to the individual holder of the token. A hardware-based system
also protects the private encryption key from attacks by hackers or
saboteurs. EPA is not proposing the use of the hardware-based approach,
because we believe that manifest digital signatures would be
sufficiently secure when implemented with software, and because the use
of hardware tokens adds additional cost and complexity (installation of
card readers) which are not warranted in this application.
Organizations desiring higher levels of signature security would of
course have the option of implementing a ``smart card'' or other token-
based approach. The Agency requests comment on this issue.
9. Why Is a ``Trusted Third Party'' Necessary for Digital Signatures?
Beyond the problems presented by loss or theft of private keys,
there is a more fundamental issue associated with the creation and use
of a digital signature. Validation of a signature with a public key
only verifies the relationship between the keys in a given private key/
public key pair. As an initial matter, therefore, one must have some
objective means of validating that the person who subscribes to or
``owns'' a given key pair is who they say they are. This need goes to
the issue of establishing the bond between the individual signer and
the key pair that was generated arbitrarily by the digital signature
system.
In digital signature systems, the role of the ``trusted third
party'' that would vouch for the bond between a particular individual
and a private key/public key pair is played by Certification
Authorities. The Certification Authority (CA) must obtain from
individual subscribers some type of proof (e.g., a driver's license or
Social Security Number) to establish the identity of the subscriber. In
this sense, the CA functions like an electronic notary that certifies
that an individual is who they claim to be. When the CA is satisfied
with the subscriber's identity proof, it issues a digital certificate
that identifies the individual subscriber and their associated public
key. The CA signs the subscriber's digital certificate with its private
key, so that recipients can (with the CA's public key) validate that
the certificate is authentic and in fact originated from the CA. Then,
when the subscriber uses its private key to sign a document, he or she
could also send a copy of the CA's certificate with the transmission to
the recipient. The recipient's application could then verify that the
document was signed with the subscriber's private key, and also verify
that the certificate is a valid certificate. Enabling the validation of
certificates is an essential function of the CA, which must track
certificates that have been revoked (e.g., a key was compromised or an
employee terminated) or that have expired. So, by checking the CA's on-
line registry or data base of revoked certificates, or lists of revoked
certificates published in other places, the recipient of a digitally
signed document can determine whether it should rely on a given
certificate and digital signature.
10. What Digital Certificates Would Be Required Under Today's Proposal?
An international, standardized format has been established for
digital certificates, so that digital signature systems may efficiently
automate the validation of certificates. To maintain consistency with
the international standard, EPA would require in this proposal that
digital certificates meeting the current X.509 standard be obtained by
subscribers who would use digital signatures to sign electronic
manifests. This standard is well established, and has been implemented
in numerous signature products that are now available and in use. The
current version of the standard is X.509v3, and this certificate
standard specifies several data fields, including the name and
signature algorithm of the Certificate Authority, the serial number of
the certificate in the CA's domain of public key certificates, the name
of the subscriber, the public key value and signature algorithm of the
subscriber, and period of validity for the particular certificate.
Other data fields for unique identifier information and optional
extensions are also included in Version 3 of the X.509 certificate
standard and are included in a standard Federal profile established by
the Federal PKI Steering Committee Technical Working Group chaired by
the National Institute Standards and Technology. Information about this
standard Federal profile is available at http://gits-sec.treas.gov. EPA
requests comment on the inclusion of these X.509 certificate standards
in the digital signature approach proposed today for electronic
manifests.
11. What Is a Public Key Infrastructure (PKI)?
The entities and services that support the issuance and use of
digital certificates make up the so-called public key infrastructure,
or PKI. To be fully functional, a PKI must be able to provide the
following services to those that would subscribe to or rely on digital
certificates:
Certificate registration or enrollment,
Certificate issuance and delivery,
Maintenance of a directory of valid certificates,
Maintenance of a list of revoked certificates, and
Maintenance of long-term archives of certificate records.
At the heart of a PKI is a Certificate Authority (CA), which serves
as the trusted third party to oversee the certificate enrollment,
issuance, validation, and revocation processes. Typically, subscribers
(those applying for certificates) would look to CAs to conduct a proper
identify proofing inquiry and then issue them digital certificates that
accurately convey the subscribers' identity information and public
keys. Relying parties (those who would rely on the certificate as proof
that they are dealing with the named subscriber) would look to CAs to
maintain accurate and timely information to validate certificates,
including the maintenance of on-line certificate repositories or data
bases that may be queried by relying parties. These services can all be
provided by a Certification Authority, but in some instances, a CA may
delegate to others specific tasks such as certificate enrollment,
collecting identity proofing information, certificate production, or
processing validation requests. The CA's identify proofing procedures
and the standards that it follows for issuing and managing certificates
are typically spelled out in the CA's detailed Certification Practices
Statement.
PKIs can be developed for ``closed'' and ``open'' user communities.
For example, one might wish to authorize
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the use of digital certificates in the context of a very narrow user
community (e.g., those signing and transmitting health claims forms),
or, one might wish to use certificates broadly to support all manner of
on-line transactions or dealings with public and private entities. The
more ``open'' models for establishing PKIs may involve multiple CAs
issuing certificates and processing certificate validation requests. In
such cases, issues may arise about the interoperability of the
different CAs' certificates, as well as issues about the similarity of
their proofing standards and procedures, and whether the different CAs
can ``cross-certify'' and recognize each others'' certificates.
There is currently much discussion underway within federal and
state governments on the standards and procedures that should govern
the issuance and use of digital certificates in government information
systems. Significantly, EPA is participating in the Federal Public Key
Infrastructure Steering Committee, which includes representatives from
more than two dozen federal agencies. This Federal PKI Steering
Committee is now developing a Certificate Policy for a Federal Bridge
Certification Authority (FBCA) that would establish a framework of
minimum requirements for the issuance and management of interoperable
digital certificates within the federal government. The FBCA
Certificate Policy is currently being developed as a high level
statement of the legal aspects of agency CA's operations, rather than
the detailed technical aspects. The FBCA Certificate Policy could then
be adopted by participating agencies to cover the use of digital
certificate services, and fine-tuned to meet the security needs of
specific programs. Other public and private sector groups are
attempting to address the issue of certificate interoperability, by
developing certificate content and processing standards that would
facilitate the reliable exchange of digital certificates and their
automated validation.
Recently, the General Services Administration (GSA) has established
its ``Access Certificates for Electronic Services'' (ACES) program for
issuing digital certificates to support the public's access to federal
information systems. The ACES model was conceived as a government-wide
PKI structure to be administered under GSA contracts, with certificate
services being provided by multiple, commercial vendors awarded ACES
contracts. The ACES approach offers these beneficial features:
A unified, consistent approach to obtaining PKI services
from the government, thus avoiding the creation of many, limited scope
PKIs for numerous government programs;
Increased efficiencies and reduced costs to certificate
users, through the aggregation of the government's certificate needs
across many participating agencies;
On-line subscriber registration and certificate issuance,
with identify proofing of subscribers drawing on several, independent-
sourced databases;
On-line and nearly real-time certificate validation for
relying parties;
A common Certificate Policy to govern all parties'
responsibilities and the CAs' operations;
Assured interoperability of certificate processing by the
several ACES contractors (CAs), through the design and operation of the
so-called ``Certificate Arbitrator Module'' that would be developed for
the ACES program; and
Several pricing options for certificate services, the cost
of which would be borne by the participating government agencies
relying on the certificates issued to the public.
While EPA believes that the ACES program offered by GSA has much to
offer, it is not entirely suited to the hazardous waste manifest
program. The current ACES model was designed primarily to support those
Federal applications (e.g. websites) where members of the public would
be reporting data directly to or requesting information from the
federal agency. In this model, the federal agency would always be the
``relying party'' that would be validating the identity of those
members of the public dealing with the agency's information system.
However, EPA does not now collect manifests from the public, nor does
it intend to create a centralized reporting system or national data
base for tracking manifest data. Numerous states collect manifests, but
ACES is not currently authorized to contract with State agencies for
certificate services. In addition, most of the electronic manifest
transmissions contemplated by today's proposal would be transmissions
among the commercial firms handling hazardous waste shipments, rather
than transactions with government agencies. So, the PKI for the
manifest system would need to address the fact that the waste handlers
would be the typical ``relying parties'' that would need to validate
the certificates of other waste handlers involved in their waste
transactions. The PKI would therefore need to provide for certificate
services in the context of these routine manifest transmissions between
waste handlers, and apportion the cost of certificate issuance and
validation services equitably among these entities.
EPA believes that digital signatures and certificates will play a
vital role in the near term in bolstering the level of trust accorded
electronic transactions. The development of PKIs is at an early stage
and very much in flux, and many of the details about how and when EPA
would establish PKIs for RCRA and its other environmental programs will
not become clear until later in the development of this rulemaking.
For example, EPA's Office of Environmental Information is
addressing more generally EPA's efforts to implement the GPEA statute,
and issues across EPA's programs for submitting electronic reports to
EPA. EPA expects that digital signatures will play in important role in
electronic reporting. Currently, EPA is testing a prototype approach
for a Central Data Exchange, and is testing the use of ACES
certificates in connection with the prototype system. As a part of a
submitter registration process, EPA is considering whether to require
that those applying for digital certificates execute a hand-signed
electronic signature agreement that would contain terms and
certifications addressing, among other things, the signer's
responsibility to protect its private key from compromise, unauthorized
use, or delegation to others. EPA is also considering whether
registrants should be required to periodically re-certify that he or
she has done nothing in violation of the signature agreement.
The details of EPA's PKI approach are evolving. However, the Agency
is today providing notice that it is proposing a digital signature
option for electronically signing manifests, and this would necessitate
some form of PKI to be established as well. EPA is looking at several
approaches for establishing a PKI for the manifest. Commenters are
advised to look to future proposals for more detailed information on
the PKI topic. Policies developed for PKI in other rules would likely
be relevant to and perhaps incorporated into this rulemaking. For
example, should EPA conclude that signature agreements with
certifications addressing subscribers' responsibilities to protect
their private keys are necessary to ensure accountability and
enforceability in connection with digital signatures, EPA would likely
include similar signature agreement terms for the manifest PKI. Once
EPA has established a more comprehensive PKI policy, we will issue a
supplemental notice in this rulemaking identifying a more specific
[[Page 28288]]
PKI proposal for the manifest. Additional public comments on this topic
will be solicited at that time.
12. What PKI Options Are Being Considered for the Manifest?
EPA is evaluating several distinct options for establishing a
manifest system PKI. These options differ primarily on the level of
centralization of PKI services, and whether government agencies (EPA or
authorized state agencies) or commercial waste firms would establish
these PKIs to support their digital certificate activities
a. Centralized PKI for Environmental Programs. Under this option,
EPA would establish a centralized PKI structure to service the manifest
program and other environmental programs. This ``environmental
community PKI'' could then deal centrally and efficiently with
supplying certificate services to the various entities subject to the
reporting and record keeping mandates of the environmental programs
administered by EPA or by authorized state programs. This model would
appear to be fit well with the ``Central Data Exchange'' role that the
Agency's new Information Office has identified as one of its electronic
reporting initiatives. The Central Data Exchange would act as a central
hub for receiving, processing, and routing to recipients the many in-
bound records and reports that external stakeholders would send
electronically to EPA or participating state agencies. Under this
option, the central receiving facility role would extend also to
providing digital certificate services for the environmental community.
Under this option, EPA would likely leverage existing expertise,
and contract with one or more commercial CA vendors to supply
certificate issuance and processing services. A fairly generic
Certificate Policy could be developed to define user roles,
responsibilities, and required CA operations. Interoperability
requirements could be included in the event that multiple CA vendors
are awarded contracts, and links to the CAs' on-line sites for
obtaining certificate enrollment and certificate validation services
would be provided. A centralized on-line registry or data base of
revoked certificates would be maintained by the CAs for the
environmental community, so that the status of certificates could be
readily determined. The commercial CAs could then bill users directly
for the enrollment or validation services provided to subscribers and
relying parties.
EPA believes that a centralized PKI approach offers the advantages
of greater efficiencies and economies of scale, when compared to models
under which each environmental program or commercial enterprise (e.g.,
a waste disposal company and its customers) would establish its own
PKI. Also, a centralized approach appears to offer greater prospects
for avoiding interoperability issues in connection with validating the
certificates that would be issued to a great number of commercial
entities engaging in interstate transactions. The ability to quickly
and reliably validate certificates is critical to fostering trust in
digitally signed communications.
However, there may be difficulties as well in establishing such a
centralized PKI. State electronic signature laws may impose additional
controls or licensing requirements on CAs, and an EPA-led PKI would
need to yield to or comport with any additional or different standards
required under state law. Also, this option is dependent on the
participation by many commercial entities and state agencies in a
centralized system, and some may prefer to establish their own systems,
rather than defer to EPA. Also, the potential liability of contractors
performing CA services could also be an issue, and provisions limiting
the CAs' liability may need to be included in their contracts, or the
vendors may not wish to participate.
b. Decentralized Approach to PKI. Under this option, each waste
management or other environmental community would establish and operate
its own PKI, or obtain the services of commercial vendors who would
obtain the certificates and manage them. So, waste management firms
might establish PKIs for their networks of facilities and customers.
Alternatively, states could be the organizations that establish
localized PKIs to deal with the submissions they receive from their
regulated communities. EPA would not issue a generic Certificate Policy
under this option. Rather, EPA's role in a decentralized approach would
be limited to establishing in this rulemaking some minimal criteria
which these PKIs should meet, such as minimally acceptable identity
proofing by CAs, minimally acceptable key lengths and encryption
algorithms, the definition of those events that would necessitate
certificate revocation, the maintenance of certificate revocation
lists, a determination of the frequency with which certificate status
data must be updated, and minimal archiving and auditability criteria
for CAs' records of certificates.
This option would appear to offer several benefits. Certificate
policies and CA practices could be tailored closely to the needs of the
PKI community at hand, as well as the local laws and procedures
applicable in the states where the users operate. EPA would be
minimally involved in creating ``national'' PKI policy, or in
administering the PKI-related contracts and ``central receiving
facility'' types of support network for PKI services. Also, this
rulemaking would only need to address PKI issues minimally.
EPA believes that this option would also pose significant
drawbacks. First, anecdotal evidence suggests that setting up a PKI can
be an expensive proposition. Establishing a PKI can involve either
contracting with vendors to provide these services, or the expenditure
of considerable resources on-site to provide the skilled personnel, the
technical hardware and software, and the certificate processing data
bases needed to provide enrollment and validation services. Some
entities would likely not proceed at all with PKIs if they were
required to incur these costs alone, and it would appear to be
extremely inefficient to have these expenditures duplicated many times
over so that numerous PKIs could be established for more narrowly
defined communities. Moreover, in the decentralized model, there would
be greater likelihood that the certificates that would be issued by
numerous CAs operating under disparate Certificate Policies would not
be interoperable or recognized by the other CAs.
c. Hybrid Option. Under a hybrid approach, EPA would establish a
standard Certificate Policy similar to the ACES Program Certificate
Policy for the ``environmental reporting community'' and define the
required structure of the X.509 v.3 certificates that would be issued
in connection with EPA's environmental programs. EPA would contract
with commercial CAs to provide the certificate services for the
manifest and other EPA programs. For example, the Agency could contract
with one or more of the CAs selected under the ACES procurement
process, in order to foster the interoperability of the certificates
that these vendors would issue. The Certificate Policy could, for
example, allow the State environmental agencies to function as the
local registration authorities (LRAs) that would gather certificate
enrollment information from subscribers and confirm through local
program data bases the content of certificates. Once adequate
information is obtained and confirmed by the LRA, it then would direct
the CA to issue or renew certificates. The contracts with EPA would
provide that CAs would charge
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the participating commercial entities directly for certificate
subscription and validation services. This hybrid option offers many of
the advantages of the centralized option, while permitting states to
exercise their prerogatives in controlling access to certificates by
their regulated community.
EPA requests comments on these three options for establishing a
PKI. Comments addressing their relative advantages and disadvantages,
as well as suggestions for implementing them effectively would be
especially helpful. EPA will address these comments and identify a more
specific PKI proposal in the supplemental notice that we will later
publish for comment.
13. Proposed ``Secure Digitized Signature'' Method
EPA recognizes that the digital signature approach discussed above
may not be suited to many manifest users. The digital signature
technology is clearly a reliable and proven method for authenticating
electronic documents, but managing encryption keys and working within a
PKI may introduce a level of complexity that some users may find
objectionable. In addition, some may find the digital signature method
objectionable because it deviates too far from the more familiar
signing ceremony that one associates with handwritten signatures. For
these users, an electronic signature method that more closely mimics
handwritten signatures may be more desirable, especially for use in the
field where manifests are typically signed.
Therefore, EPA is proposing ``secure digitized signatures'' as
another signature alternative for the manifest. This alternative would
allow electronic manifesting systems to incorporate software, digitizer
pads, and electronic pens that create a graphical representation of a
signer's handwritten signature. The electronic manifest copies would be
signed with the digitizer/pen device, and the manifest records would
retain the graphical image of the hand-signed electronic signature. The
software would be required to store the signature as a ``signature
object'' that contains the graphical image of the signature, signature
capture data, and document binding data. The document binding data
required here would be data which show that the signature is
cryptographically and inextricably bound to the signed document. In
addition, the software would be required to display the graphical
signature image in an industry-standard bitmap format (e.g., TIFF or
BMP) for viewing or printing. Customers and business partners would
therefore be able to recognize such an electronic signature image as
the likeness of the signer's signature. In this respect, the digitized
signature can be applied and ``verified'' in the field nearly as easily
as a handwritten pen-and-ink type signature.
A key feature of the proposed ``secure digitized signature''
standard is the inclusion of additional security measures and signature
object data beyond the basic signature bitmap image. These additional
measures would be required because standard bitmap images alone present
security risks that would mitigate their reliability as a means of
authenticating electronic records. Standard bitmap files can be readily
copied between documents, such that a non-original signature could be
applied to a document using conventional ``cut-and-paste'' editing
tools. Without additional safeguards, an imposter could conceivably
obtain a bitmap image of another's signature, and apply it to a new
document in such a way as to create the impression that the other
person signed the document. This would create many opportunities for
forging electronic signatures and present plausible scenarios for
repudiation of electronic documents.
Therefore, EPA is proposing that electronic manifest systems using
this signature method must adopt certain measures that would secure
this signature method against the unbridled copying of signature
bitmaps. Under today's proposal, ``secure digitized signatures'' must
incorporate these additional features to enhance their authentication
and data integrity capabilities:
The signature software must block access to ``cut-and-
paste'' editing functions;
The signature software must only accept ``real time''
signature data input from the digitizer/pen device;
The signature software shall record the signature data as
a ``signature object'' that contains:
The graphical image of the signature for display and print
operations, in industry-standard bitmap format (e.g., TIFF or BMP),
Signature capture information, particularly, the claimed
identity of the signer (e.g., a user ID) and the date and time of
signing, and
Document binding data, particularly, an encrypted checksum
or hash function of the data to which the signature relates.
The signature software shall allow for verification of
signature objects, to establish if data has been changed since the
signature was captured.
These features are intended to address signature authenticity and
data integrity. EPA has had some experience with the digitized
signature method in its Manifest Automation Pilot tests, and based on
early results from the 3rd phase of Internet tests, this method appears
to be practical and reliable . There are several signature products
that are now commercially available which appear to meet the standard
proposed here.
14. Request for Comments on Proposed Signature Methods
Today's proposal would require electronic manifests to be
electronically signed with either digital signatures meeting the
Sec. 262.25(c)-(f) standards or with secure digitized signatures
meeting the standards of Sec. 262.25(g). EPA believes that the proposed
signature approaches would provide sufficient assurance that a signed
manifest is authentic, and that it has not been altered since being
signed by a waste handler. EPA believes that the proposed electronic
signature methods represent effective ways to bind an individual to his
or her unique electronic signature. We believe that these types of
electronic signatures can establish a bond as reliable as the bond
between an individual and their handwritten signature. Also, we believe
that these signature technologies are more practical and proven than
other authentication technologies that rely on biometrics (e.g.,
fingerprint readers or retina scans), as the biometric methods
identified to date tend to have significant error rates which hamper
their utility. Biometric methods also are not typically implemented in
ways that link the biometric parameters being measured to the data
being signed, so they are not as helpful in assuring data integrity as
the methods proposed here.
The proposed methods do entail some additional cost to users. For
example, the digital signature method requires the establishment of a
PKI, and in addition, Certification Authorities typically would charge
subscribers and relying parties fees to issue and validate digital
certificates. Software integrating the signature method with the other
manifest preparation and transmission functions would need to be
acquired, and depending on the method selected, there may be additional
costs associated with digitizers or other peripherals. The Agency is
proposing these signature methods in spite of these incremental costs,
because we believe that these methods would be instrumental in making
electronically signed manifests trustworthy and legally enforceable.
Thus, the additional security and
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trustworthiness that should result under the proposed approaches
balance the cost considerations. EPA requests comment on the electronic
signature methods proposed here for the manifest. In particular,
comments addressing the following issues would be very helpful to EPA.
Do manifest signatures require the level of security
offered by the digital signature technology?
Is the proposed software-based implementation of the
private signature key a reasonable accommodation of signature security,
practical implementation considerations, and cost?
Would the administrative complexity and cost of
establishing or participating in PKIs deter waste handlers from
implementing digital signature-based electronic manifest systems?
Is it practical for waste handlers and their employees to
sign manifests using digitizers or digital signature products? Are
there human factors or other issues involved that would make such
signature methods impractical for hazardous waste shipments?
For digital signatures, would individuals and sponsoring
firms be willing and able to maintain the confidentiality of their
private keys, and accept accountability if private keys are
compromised? Should EPA require registrants to enter into signature
agreements that contain certifications that the private key would be
protected from disclosure, unauthorized use, or delegation? Should
registrants also be required to periodically re-certify that they have
not violated their signature agreements, and if so, what would be the
appropriate frequency of such re-certifications? Should the signature
agreements and re-certifications be signed by hand?
What types and quantity of proof of identity should be
required to support the issuance of a digital certificate for use in
the manifest program? Should applicants be required to present
themselves in person to the Certificate or Registration Authority, or
should less formal proof be acceptable?
Is it practical to verify digital signatures on a document
such as the manifest, which is signed sequentially by multiple waste
handlers, and occasionally edited while it is being transmitted among
handlers? Must multiple versions of each manifest document be
maintained by the software so that the complete history of the document
is preserved?
How susceptible are digitally signed and electronically
stored media to deterioration over time, such that a digital signature
might become corrupted during storage and thus fail to validate? Are
there practical solutions to this problem?
Is it feasible to require validation of digital signatures
and certificates over the long term? Are there practical ways to ensure
long-term authentication and enforcement capability, without requiring
indefinite signature validation mechanisms?
With respect to the secure digitized signature method,
does the proposed standard provide adequate security for manifest
signatures? Does the similarity of digitized signature images to
handwritten signatures offer advantages that manifest users would find
attractive? Does software implementing this approach support open
standards, rather than proprietary algorithms and standards?
Is the secure digitized signature approach proposed here
adequate to prevent ``replay attacks'' by which a digitized signature
could be appended to another document and thus forged? Are there other
practical measures that should be included to guard against copies
being substituted for original digitized signatures? Are the algorithms
that are used to bind these signatures to record data sufficiently
strong to prevent attacks or misuse?
Should the Agency require that there also be some visual
feedback provided to signers during the digitized signature act, so
that signers can clearly see how the system is capturing their
signatures and thereby enter more accurate signature data? What
additional cost would be incurred if digitizer pads were required to
provide such feedback?
Should the proposed secure digitized signature method also
require that these systems capture dynamic signature parameters, e.g.,
speed of signature, pressure applied to the pad, and pen stroke
measurements? Should the proposal also require that the captured
dynamic signature information be used in real time to validate the
digitized signature? Would such data significantly enhance the ability
to establish the genuineness of a signature? Are the current products
which provide this capability accurate and reliable? Would the forensic
evidence produced by these products provide a sufficient and reliable
basis for civil and criminal litigation? Which dynamic signature
parameters are most relevant and reliable insofar as being helpful to
verify an electronic signature as genuine?
Should EPA be concerned that users of digitized signature
systems might be more inclined to enter null or nonsense signatures on
a digitizer pad than they would if they were signing a paper document?
As an additional measure to enhance the security and
authenticity of digitized signatures, should EPA require that digitized
signatures also be digitally signed? EPA has not included this
requirement in the proposed rule option, as it was the Agency's intent
to establish the secure digitized signature method as a distinct
alternative to the digital signature method. Specifically, we developed
the proposed digitized signature method to allow hand signed electronic
signatures to be verified without the administrative complexity of a
public key infrastructure. While it is technically feasible to
digitally sign a digitized signature, EPA is concerned that the
additional security gains would be outweighed by the additional cost
and complexity associated with implementing this approach.
Is the proposed secure digitized method practical and
cost-effective when compared to hand-signed forms or to the digital
signature/PKI alternative?
Is the Agency being too prescriptive in proposing only the
``digital signature'' and ``secure digitized signature'' methods,
rather than authorizing the use of ``electronic signatures'' more
broadly? If the Agency adopted a broader approach, what performance or
technical criteria would be appropriate for authorizing the use of
additional signature methods? What approval process would be followed
to authorize any additional methods, and who would be responsible for
reviewing and approving such methods? If numerous methods were to be
authorized, how would EPA ensure that the manifest's multiple
signatures could be readable and readily verifiable by all those who
might encounter and wish to rely on the electronic manifests?
Is it appropriate for the Agency to propose two
alternative signature approaches? Would the two alternative methods
conflict in practice, and if so, how can EPA minimize this problem?
Does the interstate nature of waste transactions and the need for
multiple signatures on the manifest provide justification for adopting
one uniform method or standard for signatures? If only one signature
approach makes sense for the manifest, should EPA adopt the digital
signature or the secure digitized method?
Is there merit to a Personal Identification Number (PIN)
system, in which individuals would enter a unique sequence of alpha-
numeric characters which they have adopted as their electronic
signature. A PIN system may be less costly to implement than other
electronic signature alternatives,
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although such systems can require considerable company and agency
oversight in order to issue, manage, and revoke PINs as appropriate. A
PIN-based signature system may be appropriate for electronic
transactions for which there is not as critical a need for security or
strong authentication. However, in the context of developing electronic
reporting standards for the Discharge Monitoring Report (a Clean Water
Act requirement), EPA concluded that, in order to satisfy standards of
proof for criminal prosecutions, it was preferable to require more than
simply a PIN for authentication of a record. So, in the Discharge
Monitoring Report rulemaking, EPA proposed the use of a PIN signature
backed up with a follow-up certification that would be hand-signed and
mailed to the Agency. This approach seems impractical for the manifest,
and therefore, EPA has not included a PIN approach in today's proposal.
However, we solicit comments on the practicality and security of PIN-
based methods in the context of the manifest system, and how such an
approach could be implemented securely and efficiently.
H. Preparer Signature Proposal
1. What is a ``Preparer Signature''?
The manifest is completed when the generator signs the Generator's
Certification contained in Block 16 of the Uniform Hazardous Waste
Manifest. The generator makes this certification before turning custody
of the shipment over to the transporter, and the certification
statement attests that the waste shipment is fully and accurately
described on the manifest, and that the shipment is in all respects in
proper condition for highway transportation according to applicable
national and international laws. In addition, the certification
includes statements regarding a generator's waste minimization program
or, for SQGs, efforts to minimize waste. Currently, the generator's
certification requires the hand signature of the generator or an
authorized representative of the generator.
Today's proposal would allow an electronic manifest ``preparer'' to
sign a generator's manifest. For purposes of the automated manifest,
the proposal would enable such a preparer to sign the generator's
certification on behalf of the generator with the preparer's electronic
signature.
2. Why Is EPA Proposing To Allow Preparers To Sign Electronic Manifests
for Generators?
EPA is aware that it is a common practice for an entity or
individual other than the generator (e.g., employee or contractor) to
perform the steps necessary to prepare a waste shipment for
transportation, including the steps associated with preparing the
manifest paperwork. Often, the transporter or the TSDF prepare the
manifest paperwork as a part of the service it provides to its
generator customers. EPA has already clarified, through an amendment to
Item 16 of the manifest instructions, that the handwritten signature on
paper manifests may be made by employees or other individuals on behalf
of the generator. 51 FR 35190 at 35192 (October 1, 1986). Because the
electronic manifest may also be prepared by entities or individuals
other than the generator, it is appropriate to provide similar
flexibility for the preparation and signing of the electronic manifest.
Please note, however, that EPA is not reconsidering, reopening, or
requesting comment on the existing rule allowing employees or other
individuals to sign the paper manifest on behalf of a generator.
EPA believes that allowing preparers to sign an electronic manifest
on behalf of a generator would be particularly important in ensuring
that small generators may take advantage of the electronic manifest
option. Hazardous waste transporters and TSDFs frequently prepare
manifests as a service to smaller generators. While the small or
infrequent generator would not be expected to obtain computer equipment
or software to conduct automated manifesting, the transporters and
TSDFs that deal in larger volumes of manifests would likely find
automated manifesting more advantageous. Thus, allowing the preparer to
sign the electronic manifest provides a way for small or infrequent
generators to participate in the automated system. EPA estimates that
small generator manifests may account for about 66% of the manifests
circulated annually. So, providing a means to include these manifests
would extend the burden reduction effects of manifest automation to
these manifests as well, particularly, as they are received and
processed by transporters, TSDFs, and State agencies.
3. How Would the Preparer Signature Feature Work?
Under today's proposal, a preparer may initiate electronic
manifests for its generator customers only if the preparer has been
authorized by the generator to prepare and sign the generator's
manifests on behalf of the generator. EPA is further clarifying that
the authorization need not be in any specific form, but there must be
clear evidence of intent that the preparer is authorized to prepare and
sign manifests on behalf of the generator. The generator can limit this
authorization to a specific term, or to specific waste types, as
appropriate. The generator can also revoke the authorization at any
time.
Today's proposal would provide that electronic manifests may be
signed electronically by preparers who have been authorized to prepare
and sign electronic manifests on behalf of the generator. So, a
transporter or TSDF under contract with the generator could arrive on-
site for a waste shipment pick-up and have authorization from the
generator to prepare the shipment and sign the manifest electronically
on behalf of the generator. A person signing a manifest (paper or
electronic) on behalf of a generator would not become liable as a RCRA
``generator'' simply by signing the manifest. The question of whether
such a person might also be held responsible for complying with the
generator requirements would depend on the facts and circumstances of
individual cases. For example, a contractor can under other
circumstances be a co-generator of a waste, and in such instances, may
in fact assume generator responsibilities for completing the manifest.
See 45 FR 72024 at 72026 (October 30, 1980).
Since an authorized preparer does not assume generator
responsibilities simply by signing an electronic manifest on behalf of
a generator, the generator would in all such cases still be identified
on the manifest as the generator of the shipment. Today's proposal
would only affect who might perform the physical act of signing the
generator's certification in the course of initiating the electronic
manifest. Once signed by the preparer, the electronic manifest would
then be transmitted electronically to subsequent transporters and the
TSDF, and any copies required by generation or destination states could
also be supplied electronically, if the states involved allow
electronic submission of manifest copies.
4. How Would a Preparer-Signed Electronic Manifest Be Closed Out?
Under today's proposal, the generator would remain responsible for
overseeing that its off-site shipments are in fact received by the
designated facility or TSDF. So, a preparer authorized to transmit
manifests electronically must, at the time the
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shipment is initiated, leave a manifest copy (hard copy) with the
generator. The generator copy would include a notation that the
manifest was initiated electronically by the preparer, and it would
indicate the date that the manifest was initiated, and the date that
the shipment was delivered to the first transporter. Upon receipt or
rejection of the shipment by the designated TSDF, the TSDF would
likewise communicate to the generator the fact of receipt, rejection,
or any discrepancies. This communication could be provided in the form
of a hard copy of the manifest, or a memorandum signed by the TSDF
which references the manifest number for the shipment, which states
that the waste shipment was received or rejected, and which describes
any discrepancies. Thus, the generator would retain these records of
receipt, rejection, or discrepancies among its records, just as it now
retains a manifest copy signed by the TSDF. The generator would still
be expected to reconcile or report any discrepancies or exceptions that
might arise. So, under this proposal, the generator's role would not
change with respect to close-out of the manifest and reconciling
problems.
5. Request for Comments
EPA requests comments on the proposal to allow preparer signatures
as a means of initiating generators' electronic manifests. Comments
responding to these issues would be useful:
Should the preparer approach for electronic manifests
include additional safeguards to ensure accountability, particularly
where preparers allied with transporters or TSDFs are allowed to
perform these activities on the generator's behalf?
Should the preparer signature approach be limited to
digital signature systems only? With the secure digitized signature
method, it should not be difficult for transporters to obtain digitized
signatures from small or medium sized generators using remote, portable
devices (with signature pads) that the transporter would bring to the
generator's site. Should the rule require generator's signatures to be
obtained when this is practical, or, should the preparer signature
approach be more widely available regardless of the signature method
used?
Should preparers of electronic manifests be required to
have written, hand-signed authorizations from generators authorizing
the preparer to sign manifests electronically on behalf of the
generator? While written authorization is not required to enable
another person to sign one's paper manifest on their behalf, are there
reasons unique to the activities of electronic preparers that warrant
written authorization to sign an electronic manifest on the generator's
behalf?
Is there an effective alternative to the proposed approach
for closing out preparer-initiated electronic manifests that would not
require hard copies of manifests to be issued and retained by
generators? Could the preparer receive verification of receipt or
notice of rejections or discrepancies electronically on behalf of the
generator? How would the generator's interests be preserved in such a
case, particularly where the preparer is employed by the same entity
that operates the receiving facility?
I. Third Party Storage of Manifest Records
1. What Does EPA Mean by Third-Party Storage?
Currently, RCRA facilities are required to maintain manifest
records on-site for inspection by RCRA inspectors. Section 3007(a) of
the RCRA statute requires that all hazardous waste facilities shall
afford RCRA inspectors access at reasonable times to facilities that
manage hazardous waste. This section also requires that RCRA inspectors
shall be permitted reasonable access to facility records for
examination or copying. Significantly, the Act only requires access to
records such as manifests; it does not prescribe how that access must
be provided.
As document storage methods undergo the transition from retention
of paper files to storage or records on electronic media, it becomes
less essential where the storage media resides. As long as there is
reasonable access to electronic records at a RCRA facility, it should
not matter whether the specific document actually resides on a disk at
the facility, or whether it is downloaded from a network or server for
which the storage media is physically located out of state. As long as
the required reasonable access to the file is ensured, and electronic
records can be called up, examined, printed, and copied at the
facility, EPA does not believe that the Act or policy considerations
preclude storage by such ``third-party'' storers (e.g., commercial
network services or record archive services). Indeed, today's proposed
rule would impose specific obligations on those storing records
electronically to comply with computer security controls, and those
that offer electronic storage services commercially may be in a better
position than some RCRA waste handlers to bring their systems into
compliance with these controls. So, it seems sensible to the Agency
that our automated manifesting rules and policy allow flexibility on
this issue.
Current facility standards for permitted TSDFs (40 CFR
264.71(a)(5)) and for interim status facilities (40 CFR 265.71(a)(5))
include the direction that manifest copies must be retained ``at the
facility'' for 3 years. EPA believes that this requirement is met if an
electronic copy can be produced and accessed at the facility, even
though the physical device on which the record may be stored is in fact
external to the facility.
2. What Are the Proposed Conditions on Third-Party Storage?
Today's proposal would permit facilities to engage commercial
record storage services or networks to provide for electronic storage
of manifest copies. This proposal would be conditioned on the records
being readily retrievable during the full record retention period, on
reasonable inspector access for examination and copying of manifest
copies being ensured, and on compliance with this proposal's electronic
record system controls. EPA emphasizes that RCRA facilities remain
responsible for providing inspectors access to all electronic records;
they cannot contract away their responsibility by engaging the services
of a commercial storage service provider. Firms would be required to
include terms in their contracts with third-party storers providing
that records must remain readily accessible during the full record
retention period, that reasonable inspector access for examination and
copying of manifest records must be available, and that the third-party
storage provider must comply with this rule's electronic record system
controls.
3. Request for Comments
EPA requests comments on this proposal to permit third-party
storage services to aid RCRA facilities in implementing electronic
storage programs, by providing off-site storage and archiving media
that would be accessible electronically from the RCRA facilities. Is
this flexibility desirable to the regulated community, and would it
provide an incentive for RCRA facilities to engage in automated
manifesting? Would facilities object to sharing custody of their
records with off-site vendors, or would they be more agreeable to
allowing the off-site vendors to assume this proposal's computer and
record security controls? If controversies arise with facilities over
record access, would the Agency be frustrated in efforts to obtain
records
[[Page 28293]]
from the third-party service provider? What, if any, RCRA liability
should be assumed by the third-party vendor? What, if any, safeguards
should EPA include to protect against the possibility that third-party
storers may leave the business? EPA seeks comments on these issues
related to third-party electronic storage.
VIII. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Under Executive Order No. 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect, in a
material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) create serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients; or (4) raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the Executive Order.''
It has been determined that today's proposed rule is a
``significant regulatory action,'' because it may raise novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record. However, today's proposed rule is not ``economically
significant'', because we expect that it would result in net reductions
in compliance burdens and costs. The proposal would standardize the
manifest form, streamlines certain manifest requirements, and would
provide hazardous waste handlers with the option to prepare, transmit,
sign, and store their manifests electronically. In those states that
collect manifests and maintain databases to track manifest data,
today's proposal would also enable the electronic submission of
manifest copies to the states. These features are expected to reduce
the paperwork burden and other hazardous waste manifesting costs on the
regulated community (i.e. waste handlers and states).
In order to quantify and monetize the anticipated economic effects
of today's proposed rule, the Agency conducted three separate
evaluations of different levels of potential effects of this rule on
hazardous waste handlers and on State government regulatory agencies.
These three studies are briefly summarized below in this section of the
Preamble. They have the following titles and analytic scope, and are
available for public review and comment from the RCRA Docket:
--``Supporting Statement for Information Collection Request Number
801.#'', 19 July 2000: This study represents the narrowest scope of the
three studies, focused primarily on estimating the annual burden hour
reduction (and associated reduction in annual labor cost) for today's
proposed rule, as it affects 1.76 million annual Federal RCRA
manifests. This first study estimates burden hour reduction assuming
that 50% of all annual manifests become electronic after promulgation
of today's proposed rule.
--``Economics Background Document: Economic Analysis of the USEPA's
Proposed Modifications to the RCRA Hazardous Waste Manifest System'',
12 May 2000: Building upon the burden hour reduction findings of the
ICR, this second study expanded the scope of the economic impact
analysis to include potential impacts of the rule on both Federal RCRA
and state hazardous waste manifests (2.43 million annual manifests), as
well as a cursory estimate of annualized electronic automation
equipment costs (to states and to waste handlers) for implementing
today's proposed rule. Consequently this study presents a relatively
larger baseline estimate of annual manifest activity compared to the
ICR study. This second study applies two alternative electronic
manifest adoption rate scenarios: 25% and 50% of all annual manifests
become electronic, applied to a future three-year time-span. No attempt
was made in this study to project quantitatively the future trend in
the number of manifests issued, or the effects of future technological
changes in electronic data transmission or other costing factors, since
this study was designed only to formulate a fairly simplistic analysis
to support the proposed rule.
--``Hazardous Waste Manifest Cost Benefit Analysis'', October 2000:
Building upon the second economic study, this third study is the
broadest in scope, as it includes electronic manifest equipment costs
associated with existing computerized systems in some companies, as
well as includes a more extensive and detailed estimate of both initial
and annually recurring costs (to states, to waste handlers, and to EPA)
for implementing different, alternative versions (``models'') of the
proposed electronic manifest automation system. This third study adopts
the 2.43 million annual manifest baseline from the second study, but
expands the estimated annual manifest activity to 3.01 million
manifests, to include additional manifest transmissions for purpose of
repeats and continuation sheets, applied to a future ten-year time-
span. This study also expands the assumed number of manifests
transmitted electronically, in relation to numbers of entities assumed
adopting electronic manifests, which include 100% of large quantity
waste generators, 25% of small quantity generators, 90% of
transporters, and approximately 25% of the hazardous waste treatment,
storage and disposal facilities involved in manifest activities. This
study estimated costs and potential burden reduction benefits according
to multiple alternative implementation scenarios (``models'').
Consequently, because each is unique in scope and units of
analysis, EPA presents them in the RCRA Docket separately for public
review and comment, rather than consolidating them into a single
document in support of today's proposed rule. On the other hand, the
basic approach of all three studies in estimating their respective
different levels of economic effects is similar; to compare current
(i.e. 1997-99) baseline manifesting burden hour and other cost
requirements, against the burden and cost under today's proposed
revisions to the manifest system. The calculations in each study were
performed using a series of comparative spreadsheets, incorporating
detailed unit labor and other cost estimates for carrying out numerous
manifest-related tasks. It is important to indicate that all studies
did not attempt to forecast the future trend in the number of manifests
issued, or to forecast the effects of future technological changes in
electronic data transmission equipment or other costing factors.
Consequently, it is important that each study be interpreted as a
relatively simple estimate of impacts,
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subject to future annual variability, and to other potential sources of
uncertainty.
Regulatory Burden Savings Estimates
Based on the findings of the first and second economic study listed
above--which focused on estimating burden hours and cost reduction for
today's proposed rule--under current Federal and State baseline
regulations, the Agency estimates that about 92,350 individual
hazardous waste generators and other handlers produce and manifest
about 2.433 million hazardous waste shipments for off-site management
annually, requiring about 4.416 million waste handler labor hours,
costing about $187.0 million annually. State government waste
management programs spend an additional 199,000 hours and $6.3 million
annually to administer their current waste manifesting programs.
The manifest reform proposal projects an overall net regulatory
burden reduction of between 765,000 (low adoption scenario) and 1.241
million (high adoption scenario) labor hours (a baseline savings of 17
to 27 percent), and a corresponding annual reduction in total
nationwide manifesting costs of about $23.4 to $37.2 million (a 13 to
19 percent reduction in baseline cost). The major part (i.e. 96 to 99
percent) of these total nationwide savings would accrue to the private
sector (waste handlers), but State regulatory agencies would also
experience substantial reductions--on the order of 18 to 40 percent in
annual burden hours, and 3 to 25 percent in cost--relative to State-
level baseline administrative burdens for hazardous waste manifesting.
In terms of basic proposal elements, the manifest form change
requirements alone appear to produce potentially a relatively small
burden reduction of only about four to 13 percent cost savings from
current practices. In addition, as described earlier in this Preamble,
the requirement for a uniform nationwide form is an essential
prerequisite for efficient electronic automation which is projected to
result in quite substantial potential burden reductions for the private
sector. The potential incremental benefits from electronic automation
of the manifest system are estimated at 87 to 96 percent of current
cost. Higher automation adoption rates than those assumed here are
possible, given the national trends in internet communications, the
potentials for commercial waste transporters and TSD companies to
centralize the manifesting functions as an added service to generators,
and the scale economies involved in doing so.
In contrast with electronic automation, the additional savings from
the telefax option are in the one to two percent range. Labor and cost
reductions from faxing would vary inversely with the degree of
automation, i.e., the greater the use of electronic manifesting, the
less is the need for the faxing of manifests.
In the present proposal, the actual savings resulting from both the
automation and fax options depend on the adoption of these options by
States as part of their authorized RCRA programs, including both States
of origin and States of destination for interstate shipments, and, in
some cases, intervening States as well. The Agency's benefit estimates
assume that most if not all States would ultimately revise their
regulations to allow for both electronic automation and the faxing of
manifests within their borders. To the extent that this does not occur
or does not take place reasonably quickly, the regulatory burden
reductions projected here would either not transpire or would be
postponed.
Based on the third economic study which was more expansive in scope
by including electronic automation implementation costs, in addition to
burden affects, the average annualized implementation cost for the
proposed rule is estimated to range between $10.8 to $26.0 million.
This range in implementation cost reflects two alternative
implementation approaches considered in the study. EPA anticipates that
today's proposed rule would offset this implementation cost, by
reducing the national annual burden associated with the manifest
system, resulting in a net, average annualized national burden cost
savings of $82.2 to $86.8 million.
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant adverse
economic impact on a substantial number of small entities. SBREFA
further requires Federal agencies to provide a statement of the factual
basis for certifying that a rule will not have a significant economic
impact on a substantial number of small entities. The Agency is
certifying that there will not be an adverse impact on small business
populations as a result of today's rule proposals, and therefore no
regulatory flexibility analysis or other SBREFA requirements are
necessitated. This certification is based on the following reasons.
With respect to the manifest form changes and automation options,
today's proposals include both regulatory and deregulatory features.
However, the net effect of these changes should reduce, and not
increase, the paperwork and related burdens of the RCRA hazardous waste
manifest system. For businesses in general, including all small
businesses, the form changes, although required, are designed to reduce
the labor time and other costs of acquiring, completing, and submitting
hazardous waste manifests. The Agency's proposals regarding the
optional use of telefaxed forms and the electronic automation of form
preparation and tracking are also designed to facilitate and encourage
increased efficiency and reduced costs through the use of modern
communications technologies. These possibilities were not available
under existing manifest regulations. Although most small businesses
waste generators would not be expected to initiate or acquire the
automation technology directly, many or most would be expected to share
in the savings due to automation undertaken by the waste
transportation, treatment and disposal sectors which service the many
waste generating sectors. Since these proposals are offered as options
to the regulated community, they are unlikely to be employed in
situations that do not involve cost savings to waste handlers and
generators.
For the reasons discussed above, I hereby certify that this rule
will not have a significant adverse economic impact on a substantial
number of small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
C. Environmental Justice--Applicability of Executive Order 12898
Pursuant to Executive Order 12898, the Agency's goals are to ensure
that no segment of the population, regardless of race, color, national
origin, or income bears disproportionately high and adverse human
health and environmental impacts as a result of EPA's policies,
programs, and activities. The Agency conducted an analysis to identify
whether environmental justice concerns might result from today's
proposed modifications to the hazardous waste manifest system. To
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conduct the analysis, we used two criteria, both of which would have to
be met in order to flag an environmental justice concern: (i) Are there
any adverse impacts from the proposed action, and if so, (ii) would the
adverse impacts on minority populations and low-income populations be
disproportionately high? We applied both criteria to each rule
component: Manifest form changes, automation, use of fax, annual waste
minimization certification, and special procedures for problem
shipments. We found no adverse impact, and thus no disproportionately
high adverse impact, on minority populations and low-income
populations, for each component of the proposed rule.
The basic reason for the above finding is that the current features
of the manifest system that protect human health and the environment
are preserved or enhanced under today's proposed rule. For example,
neither the proposed form changes nor the automation proposals would
detract from the manifests basic ``cradle-to-grave'' tracking features
that protect human health and the environment. The information
essential to identifying the materials involved in shipments and aiding
emergency responders would be retained. Manifest automation and faxing
may be more convenient for some waste handlers than using regular mail
and may result in increased compliance, as well as enable closer real-
time tracking of shipments, improved data quality for recipients and
better enforcement opportunities. Regarding the change for the waste
minimization certification from a per manifest basis to annual basis,
this is not expected to alter hazardous waste generation, handling or
disposal practices, nor pose an incremental risk to human health and
the environment. Similarly, clarification on the manifest of the
special procedures for problem loads are designed to improve tracking
and therefore would not have adverse effects on human health and the
environment.
D. Protection of Children--Applicability of Executive Order 13045
The Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to any rule that EPA determines (1) is determined to be
``economically significant'' as defined under Executive Order 12866,
and (2) concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, the Agency must evaluate the
environmental health or safety effects of the planned rule on children;
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered.
This proposed rule is not subject to Executive Order 13045 because
this is not an economically significant regulatory action as defined by
Executive Order 12866. In addition, the Agency does not have reason to
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children, because the
manifest system does not itself give rise to environmental media
transfer issues. The manifest serves as a tracking device which creates
clear lines of accountability among the participants in the hazardous
waste system. It also serves to protect human health and the
environment during the transportation of hazardous waste by providing
information about the waste to persons handling the waste and to
emergency response personnel.
E. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The manifest automation component of this rulemaking involves
information technology standards for electronic manifest formats and
for electronic signatures. Today's proposal includes an electronic
format for the manifest based upon the American National Standards
Institute (ANSI) Accredited Standards Committee's (ASC) X12 standard
format for Electronic Data Interchange or EDI. EPA is also proposing an
Internet Forms document definition for the manifest based on the
Extensible Mark-up Language (XML) Specifications developed by the World
Wide Web Consortium. The World Wide Web Consortium, however, is not a
voluntary consensus standards body within the meaning of the NTTAA, and
EPA could not identify an applicable consensus standard for creating
and transmitting Internet Forms. Therefore, EPA has decided to propose
an XML document definition for Internet transmissions of the manifest,
as an alternative to the ANSI ASC X12 formats that are customarily
transmitted across Value Added Networks. It is possible that the ANSI
ASC X12 standards body will develop standards for XML document
definitions in the future, and EPA will monitor this situation as we
develop a final rulemaking.
The rulemaking also proposes a digital signature method for signing
electronic manifests, based on the Digital Signature Standard adopted
by the National Institute of Standards and Technology and published in
Federal Information Processing Standard (FIPS PUB) 186-1. The proposed
digital signature method would require the use of the RSA digital
signature algorithm discussed in ANSI X9.31. EPA has also proposed a
``secure digitized signature'' method for signing manifests
electronically, since this method may be a cost-effective alternative
to the digital signature method. The Agency could not identify an
applicable consensus standard for digitized signatures.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written analysis, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Moreover, section 205 allows EPA to adopt an alternative
other than the least costly, most cost-effective or least burdensome
alternative if the Administrator publishes with the final rule an
explanation why that alternative was not adopted. Before promulgating
an EPA rule for which a written statement is needed, section 205 of the
UMRA requires EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome
[[Page 28296]]
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials to have
meaningful and timely input in the development of regulatory proposals,
and informing, educating, and advising small governments on compliance
with the regulatory requirements.
This rule does not include a Federal mandate that may result in
expenditures of $100 million or more to State, local, or tribal
governments in the aggregate, because the UMRA generally excludes from
the definition of ``Federal intergovernmental mandate'' duties that
arise from participation in a voluntary federal program. States are not
legally required to have or maintain a RCRA authorized program.
Therefore, today's proposed rule is not subject to the requirements of
sections 202 and 205 of UMRA. In addition, EPA has also determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments under section 203 of UMRA. Small
governments would be affected only to the extent that they generate or
otherwise handle hazardous wastes, and the net effect of today's
proposal should be to reduce paperwork burdens and compliance costs for
hazardous waste handlers. Therefore, EPA does not believe that this
proposal would have a significant or unique effect on small
governments.
G. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
information collection request (ICR) document has been prepared by EPA
(ICR No. 801.#, 19 July 2000), copies of which are available to the
public from Sandy Farmer, OP Regulatory Information Division; U.S.
Environmental Protection Agency (MC 2137); Ariel Rios Building; 1200
Pennsylvania Ave., NW., DC 20460 or by calling (202) 260-2740.
According to the estimates provided in the ICR for this proposed
rule, the average annual burden \5\ to RCRA hazardous waste handlers as
a result of the proposed revisions to the RCRA manifest system,
represents a net reduction in burden of about 590,000 hours per year.
These burden reductions represent 20% reduction in annual burden hours
compared to the baseline burden of 2.920 million hours per year, as
estimated in the RCRA manifest system baseline ICR No.801 (22 October
1999).
---------------------------------------------------------------------------
\5\ Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal Agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions
and requirements; train personnel to respond to a collection of
information; search data sources; complete and review the collection
of information; and transmit or otherwise disclose the information.
---------------------------------------------------------------------------
The public should send comments regarding the burden estimate, or
any other aspect of this collection of information, including
suggestions for reducing burden to EPA (at the address given above) and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20460, marked ``Attention: Desk
Officer for EPA.''
H. Federalism--Applicability of Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
The Executive Order defines ``policies that have federalism
implications'' to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It would
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132.
The proposed rule would alter the information that a State may
require a generator or transporter to submit on the Uniform Manifest,
and it would also alter the States' current role in distributing
manifests. However, these changes represent relatively minor
adjustments to the current manifest system, and they do not alter
substantially the relationship between the Federal government and the
States, or the distribution of power and responsibilities among the
various levels of government. The manifest would remain a tracking
document and shipping paper that is primarily based on Federal
requirements found in RCRA and in the hazardous materials
transportation laws administered by DOT. As with existing hazardous
waste manifest requirements, States would retain the authority to
require generators and treatment, storage, and disposal facilities to
provide information included in the remaining optional fields on the
manifest and to require the submission of additional information
related to the hazardous waste shipment under separate cover, so long
as such requirements are not inconsistent with the Hazardous Materials
Transportation Act (HMTA) or HMTA regulations.
In addition, the proposed rule would not impose substantial direct
costs on States and localities. Although states with manifest data
tracking programs may incur some start-up costs in converting their
tracking systems to accept the revised paper manifest and/or electronic
manifests, the proposal neither mandates that States collect manifests,
nor mandates that States adopt the electronic manifest option as a part
of their programs. Thus, Executive Order 13132 does not apply to this
rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA consulted substantially with representatives of State
government in developing this proposal. The Agency invited State
representatives to participate in two public meetings during which we
presented our rulemaking objectives and strategies, and solicited
comments and concerns. These public meetings were conducted on December
10-11, 1997, and on January 7-8, 1998. Representatives of 23 States and
Territories participated in these meetings. In addition, State
representatives were invited to participate in the meetings of the EPA
work group which developed this proposed rule. Representatives from 4
States (Indiana, Pennsylvania, New Hampshire, and Rhode Island) were
selected to participate in the work group meetings, and these States
discussed proposed rule options and draft rule language extensively
with EPA throughout the development of the proposal.
During our consultations with States on this proposal, the State
[[Page 28297]]
representatives identified several concerns about: (1) The reductions
in the optional fields which States have used to require additional
information from facilities; (2) the changes proposed for printing and
acquiring manifests; (3) the costs to States of converting to an
electronic system, and whether electronic manifesting would be
mandatory for States to adopt in their programs; and (4) the lack of
court precedents upholding electronic signatures as a means to sign
records. A summary of the concerns raised during consultations with the
States, and EPA's response to those concerns, is provided below.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposal from
State and local officials.
State Concerns and EPA's Responses
1. Reductions in Optional Fields. The proposed rule would eliminate
several optional fields from the current manifest, particularly, those
optional fields that require State ID Numbers (in addition to EPA ID
numbers) for generators, transporters, and facilities. The proposal
would also eliminate the optional fields for entering transporters'
phone numbers and the facility's phone number on the manifest, and
replace these with the requirement that there be one emergency response
phone number entered on all manifests. The State Manifest Document
Number optional field would be replaced with the requirement that all
manifests have a unique manifest tracking number.
Several State participants identified the concern that the proposed
manifest would hinder States that wish to collect this information. In
particular, State representatives indicated to EPA that several States
use the State Generator ID field to list a generator's site address,
since this may be a distinct address from the mailing address which
generators are required to supply on the current form. EPA considered
the points raised by State participants with regard to the optional
fields during work group meetings. The Agency concluded that the
benefits of reducing manifest variability and paperwork burden
outweighed the interests States identified in continuing to collect
these data on the manifest.
2. Changes in printing and acquiring manifests. Currently,
generators obtain most of their manifests from State agencies. There
are currently 24 States that print and distribute their own manifests
for shipments generated in or designated for facilities in these
States. The manifests printed by the states reflect the optional fields
required to be used in these states, as well as copy submission
requirements, mailing addresses for submitting copies, and a pre-
printed manifest number that would track the manifest uniquely in the
States' data bases. The proposal would adopt a standard Federal
printing specification for the manifest, and allow States, waste
handlers, and business form printers to register to print manifests
according to this specification. There would be less variability among
manifests, but the form could be obtained from more sources.
During the work group meetings, State participants discussed their
interests in printing and distributing manifests. For several States,
selling blank manifests is a source of revenue. In all States that
print manifests, there is a concern that manifest document numbers must
be assured of being unique and accurate. We were advised that this can
be best accomplished by having manifest numbers pre-printed on the
forms by the printer. The proposed registry system and Federal printing
specification were developed based on State representatives' advice and
recommendations. There was substantial discussion of this issue by the
States, and their representatives indicated that the proposal would
meet most of their concerns. The revenue issue is more difficult to
resolve. Some States charge manifest fees only to defray their printing
costs, while others collect program revenue beyond that required to
recoup costs of supplying manifests. In some instances, manifest fees
charged by States are required by legislation.
3. Costs to States of Converting to Electronic Systems. During the
public meetings on the manifest revisions, State participants voiced
concerns that States would incur significant costs in converting to
electronic systems for collecting manifests. This issue would be more
of a concern if EPA mandated use of the electronic manifest by the
States.
Our economic analysis for today's proposal reveals that States that
adopt electronic systems for collecting manifests would in fact
experience significant cost reductions compared to the current
baseline. While each State may incur about $100,000 initially in start-
up costs ($38,000 in annualized costs) for automating their systems, we
expect that States would realize between $213,000 and $1.58 million in
cost savings from the proposed revisions. The electronic manifest
accounts for most of these savings, which would more than offset the
start-up costs. In addition, EPA has proposed that States would not be
required to adopt the electronic manifest option. So, no State would be
required to incur these start-up costs, and those States that choose to
convert would presumably do so as a matter of self-interest.
4. Lack of court precedents supporting electronic signatures.
During the development of this proposal, several States commented that
the inclusion of the electronic manifest in the proposal was premature,
since there are no court precedents upholding the use of electronic
signatures. EPA appreciates this concern, which is not unique to this
proposed rulemaking on the manifest. However, the Congress has recently
enacted legislation which establishes that electronic records and
electronic signatures should generally be accorded the same treatment
under the law as documents signed by hand. See the Government Paperwork
Elimination Act (GPEA), Public Law 105-277, Title XVII (1998). The
Agency believes that this statute supplies the authority lacking in
prior court decisions supporting the use of electronic signatures. The
proposal also includes security controls aimed at ensuring that
electronic signatures cannot be repudiated or misused. For example,
``digital signatures'' would be supported by a Public Key
Infrastructure (PKI), including digital certificates (from a trusted
Certificate Authority) binding an individual to their signature keys,
password protection and non-disclosure obligations for the private
signature key, and policies holding individuals accountable for acts
taken under their signature.
I. Consultation With Tribal Governments
On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 takes effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date. EPA developed this proposed rule, however, during the period when
Executive Order 13084 was in effect; thus, EPA addressed tribal
considerations under Executive Order 13084. EPA will analyze and fully
comply with the requirements of Executive Order 13175 before
promulgating the final rule. Under Executive Order 13084, EPA may not
issue a regulation that is not required by statute, that significantly
or uniquely affects the communities of Indian Tribal governments, and
that imposes substantial direct compliance
[[Page 28298]]
costs on those communities of Indian Tribal governments, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments, or EPA consults
with those governments. If EPA complies by consulting, Executive Order
13084 requires EPA to provide to the Office of Management and Budget,
in a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's proposal would not significantly or uniquely affect the
communities of Indian tribal governments, nor would it impose
substantial direct compliance costs on them. This proposal does not
create a mandate for tribal governments, nor does it impose any
enforceable duties on these entities. Therefore, EPA has determined
that no communities of Indian tribal governments would be affected by
this proposed rule. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply.
IX. How Would Today's Proposed Regulatory Changes Be Administered
and Enforced in the States?
A. Applicability of Federal Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer the RCRA hazardous waste program within the State. Following
authorization, the State requirements authorized by EPA apply in lieu
of equivalent Federal requirements and become Federally enforceable as
requirements of RCRA. EPA maintains independent authority to bring
enforcement actions under RCRA sections 3007, 3008, 3013, and 7003.
Authorized States also have independent authority to bring enforcement
actions under State law. A State may receive authorization by following
the approval process described under 40 CFR part 271. See 40 CFR part
271 for the overall standards and requirements for authorization.
After a State receives initial authorization, new Federal
requirements promulgated under RCRA authority existing prior to the
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that
State until the State adopts and receives authorization for equivalent
State requirements. The State must adopt such requirements to maintain
authorization.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new
Federal requirements and prohibitions imposed pursuant to HSWA
provisions take effect in authorized States at the same time that they
take effect in unauthorized States. Although authorized States are
still required to update their hazardous waste programs to remain
equivalent to the Federal program, EPA carries out HSWA requirements
and prohibitions in authorized States, including the issuance of new
permits implementing those requirements, until EPA authorizes the State
to do so.
Authorized States are required to modify their programs only when
EPA promulgates Federal requirements that are more stringent or broader
in scope than existing Federal requirements. RCRA section 3009 allows
the States to impose standards more stringent than those in the Federal
program. See also 40 CFR 271.1(i). Therefore, authorized States are not
required to adopt Federal regulations, both HSWA and non-HSWA, that are
considered less stringent.
B. Authorization of States for Today's Proposal
Except for one provision, we would promulgate today's proposal
mainly under non-HSWA statutory authority. The section of today's
proposal that would be promulgated under HSWA authority (specifically,
RCRA section 3002(b)) is proposed Sec. 262.27, which would consist of
the waste minimization certification statement. Therefore, when
promulgated, the Agency would add this section of the rule to Table 1
in 40 CFR 271.1(j), which identifies the Federal program requirements
that are promulgated pursuant to the statutory authority that was added
by HSWA. States may apply for final authorization for the HSWA
provisions in Table 1, as discussed in the following section of this
preamble. The proposed regulatory provision would contain the language
which is in the current manifest form, but would not be in the proposed
revised form except by reference to proposed Sec. 262.27. Generators
would still be required to certify to waste minimization statements on
the manifest each time a manifest is initiated. Therefore, proposed
Sec. 262.27 would be effective under Federal authority before States
receive authorization only when the revised manifest form is used in
these States.
All the other parts of today's proposal would become effective
under RCRA authority in authorized States only when they revise their
programs and receive authorization for the final rule.
1. Would Authorized States Be Required To Adopt the New Uniform
Manifest Form?
Under today's proposal, authorized States would be required to
adopt the new Uniform Manifest form. To obtain and maintain
authorization, States and territories are required to be consistent
with the federal program and other State programs. Although sections
3006 and 3009 of RCRA allow States to have regulations that are
different than the Federal requirements, as long as they are equivalent
to or more stringent than or broader in scope, section 3006(b) also
requires States to have regulations that are consistent with the
federal regulations. The requirements of this statutory provision are
codified in 40 CFR 271.4, which specifically applies the consistency
requirement to the manifest system under 40 CFR 271.4(c). When EPA
originally promulgated the Uniform Manifest in 1984, we found that
consistency was extremely important where requirements addressing
transportation are concerned. We found during the early years of
implementing the RCRA program that a proliferation of many State-
specific manifest forms could hamper the movement of hazardous waste to
waste management facilities, and that differing manifest use and
information requirements between States caused added burdens and
confusion among those trying to comply with the Subtitle C regulations.
See 49 FR 10490 at 10491 (March 20, 1984). Therefore, in 1984, EPA
announced that consistency in the use of the Uniform Manifest would be
required from authorized States, and that, with the exception of the
limited information allowed in the optional fields, authorized States
could not require any other manifest or information to accompany a
waste shipment. Id. Based on 16 years of experience with the Uniform
Manifest, EPA concludes that variability in the current manifest system
should be reduced further, since the current level of variability
continues to produce excessive burden, confusion, and compliance
problems. Moreover, EPA restates that program consistency
[[Page 28299]]
under RCRA section 3006 and 40 CFR 271.4(c) would demand that
authorized States must require the use of the Uniform Manifest as
revised by today's proposals.
Under 40 CFR 271.4(c) and 271.10(f) and (h), in order to be
consistent with the federal program, and receive approval from EPA,
States must have a manifest system that includes a manifest format that
follows the Federal format required in 40 CFR 262.20(a) and 262.21.
Today's proposal would amend Sec. 271.10(h) to correspond with the
proposed changes to the manifest format. These amendments are discussed
in detail in section IV of today's proposal. Key among these amendments
are form revisions that would eliminate most optional fields and
establish a new procedure for obtaining a standard manifest form from
registered printers. The new, standard manifest format would present
authorized states with fewer areas of potential variability than arise
under existing regulations. For example, existing Sec. 271.10(h)(1)
allows authorized states to supplement the Uniform Manifest format with
several pre-printed items, such as a State manifest number, light
organizational marks to indicate proper placement of characters,
information and instructions in the margins or on the back of the form,
and references to specific State laws or regulations following the
generator's certification language. The proposed amendments to
Sec. 271.10(h) would eliminate provisions addressing States' ability to
supplement the form. However, proposed Sec. 271.10(h) would retain
language clarifying that States could require information to be
supplied to address the two proposed optional fields--Waste Codes
(Block A) and Biennial Reporting system type codes (Block B)--and to
provide additional waste descriptions in Block 14 of the proposed form.
Because the new uniform manifest would (except for proposed
Sec. 262.27 as explained above) be promulgated pursuant to non-HSWA
authority, it would not become effective as a RCRA requirement in
authorized States until those States revise their programs and receive
authorization. However, federal hazardous material transportation law
preempts any State, local or Indian tribe requirement on ``the
preparation, execution, and use of shipping documents related to
hazardous materials and requirements related to the number, contents,
and placement of those documents'' that is not substantively the same
as requirements in the hazardous materials regulations. 49 U.S.C.
5125(b)(1)(C). The Department of Transportation currently requires the
use of the Uniform Hazardous Waste Manifest for shipments of hazardous
waste (which is also a hazardous material). 49 CFR 172.205. Thus, waste
handlers would be required, under 49 CFR 172.205, to use the revised
Uniform Hazardous Waste Manifest upon the two-year delayed compliance
date of the final rule (see Section III.E. for further discussion
regarding the two-year delayed compliance date).
EPA has involved the authorized States, as co-implementers of the
RCRA program, in the development of today's proposal. We believe that
there is support among the States for the manifest revisions. EPA also
believes that the States would generally be able to revise their RCRA
programs to include this amended manifest form within the proposed
transition period, although some States may need to enact legislative
changes to effect this change.
2. Would Authorized States Be Required To Adopt Electronic Manifesting?
A significant issue presented by today's proposal is whether the
final rule should require that authorized States adopt the electronic
manifest option as a part of their approved programs, in order to be
consistent. Under RCRA section 3006, authorized State programs must be
consistent with the Federal program and other State programs, and EPA's
authorization regulations state that State manifest systems that do not
meet EPA's requirements or that unreasonably impede the free movement
of waste shall be deemed inconsistent. See 40 CFR 271.4(a) and (e).
We are tentatively proposing not to require States to adopt the
electronic manifest option. However, we are considering whether States
should be required to adopt the electronic manifest option in order to
ensure consistency with the Federal program and other State programs.
For example, EPA could require States to adopt the electronic manifest
option if we were to conclude that the free movement of waste in
commerce may be burdened unreasonably if individual States choose not
to allow electronic manifests. Similarly, we may require State adoption
of the electronic manifest option if we determine that the cumulative
effect of a patchwork of States--some recognizing and others not
recognizing electronic manifests--may itself unduly burden the free
movement of waste. This result may render the State program
inconsistent with the federal program under the provisions of 40 CFR
271.4(a). Other reasons that could support EPA's determination under
Sec. 271.4(a) to deem State programs that do not provide for electronic
manifests to be inconsistent include the concern that the development
of electronic manifesting systems by waste handlers would be frustrated
significantly if States elected not to adopt the option, and that
market forces and consensus processes would not be sufficient to
promote and implement the electronic manifest option.
At this time, EPA believes that there are strong practical and
business influences that would promote the adoption of electronic
manifesting. Many States are in the forefront of efforts to provide
electronic access to government services and to encourage electronic
commerce, so requiring State programs to adopt the electronic manifest
standards may not be necessary to accomplish progress in this area.
Moreover, during the public meetings which EPA conducted as we
developed this proposal, we stressed the voluntary and optional nature
of the manifest automation component of the proposed rule. States
likely understood that manifest automation would be optional for state
programs as well as for the waste handlers who use the manifest.
Thus, EPA is tentatively proposing that authorized States would not
be required to adopt the electronic manifest system as part of their
state programs. Under today's proposal, the electronic manifest system
would not be effective under RCRA in authorized States unless an
authorized State revises its program and receives authorization for the
final electronic manifest system requirements. In addition, under
today's proposal, an electronic manifest would not be considered a
``shipping document'' under 49 U.S.C. 5125(b) and thus, hazardous
materials transportation law would not preempt state programs that do
not allow the use of an electronic manifest.
Although States could choose not to adopt the electronic manifest
system, those that do would have to adopt the standards for the
electronic formats, electronic signature standards, and computer
security controls that we would promulgate when we finalize this
proposal. In addition, State programs electing to adopt the electronic
manifest option would need to adopt State counterparts to the final
regulations that address the use of the electronic manifest by
generators, transporters, and TSDFs. As explained in section VII.E.1.
of this preamble, the need for a uniform manifest to allow the free
movement of waste applies to the electronic manifest as well as the
paper manifest, if not more. The state authorization
[[Page 28300]]
regulations addressing generator requirements, 40 CFR 271.10(f) and
(h), already refer to the manifest regulations, which would impose on
states that adopt the electronic manifest option the requirement that
their programs be revised to require waste handlers to use the
electronic manifest formats, electronic signature standards, and
computer security controls described in today's proposal. These areas
require a consistent implementation if electronic manifests are to be
freely exchanged between waste handlers and state agencies located in
various jurisdictions.
However, States would retain the latitude to either adopt or not
adopt the preparer signature or third-party storage features of today's
proposal. Thus, a state that did not adopt one or both of these
features could choose to operate a more stringent program in these
areas. The Agency requests comment on how electronic manifesting should
be implemented among the various authorized States, how today's
proposed standards would impact states that may already have
requirements in place or efforts underway to address electronic records
and electronic signatures, and how any adverse impacts on State
programs might be mitigated.
Appendix A to the Preamble--Extensible Markup Language (XML) Document
Type Definition for the Hazardous Waste Manifest
!--This document represents the Document Type Definition for the
Uniform Hazardous Waste Manifest-->
!--Signature blocks are represented as #PCDATA until final
recommendations are adopted for representing electronic signatures
in XML documents-->
!--References for the W3C Digital Signature Working Group:
XML Signature Syntax and Processing--
http://www.w3.org/2000/02/xmldsig#
DTD for Digital Signatures--http://www/w3.org/TR/xmldsig-core/xmldsig-core-schema.dtd-->
!ELEMENT manifest (title, manifest_tracking_number, generator_info,
transporter_info+, tsdf_info, waste_description+,
special_handling_instructions, generator_certification,
international_shipments, transporter_certification+,
tsdf_discrepancy, tsdf_certification, tsdf_brs_codes*)>
!ELEMENT title (#PCDATA)>
!ATTLIST title fname CDATA #FIXED ``UNIFORM HAZARDOUS WASTE
MANIFEST''>
!ELEMENT manifest_tracking_number (#PCDATA)>
!ATTLIST manifest_tracking_number tno NMTOKEN #REQUIRED>
!ELEMENT generator_info (generator_name, generator_us_epa_id,
generator_street, generator_city, generator_state,
generator_zip_code, generator_telephone_number, generator_emergency_
response_telephone)>
!ELEMENT generator_name (#PCDATA)>
!ATTLIST generator_name gname CDATA #REQUIRED>
!ELEMENT generator_us_epa_id (#PCDATA)>
!ATTLIST generator_us_epa_id genepaid NMTOKEN #REQUIRED>
!ELEMENT generator_street (#PCDATA)>
!ATTLIST generator_street gstreet CDATA #REQUIRED>
!ELEMENT generator_city (#PCDATA)>
!ATTLIST generator_city gcity CDATA #REQUIRED>
!ELEMENT generator_state (#PCDATA)>
!ATTLIST generator_state gstatecode NMTOKEN #REQUIRED>
!ELEMENT generator_zip_code (#PCDATA)>
!ATTLIST generator_zip_code gzip CDATA #REQUIRED>
!ELEMENT generator_telephone_number (#PCDATA)>
!ATTLIST generator_telephone_number gtel NMTOKEN #REQUIRED>
!ELEMENT generator_emergency_response_ telephone (#PCDATA)>
!ATTLIST generator_emergency_response_ telephone gemr NMTOKEN
#REQUIRED>
!ELEMENT transporter_info (transporter_name,
transporter_us_epa_id)+>
!ELEMENT transporter_name (#PCDATA)>
!ATTLIST transporter_name tname CDATA #REQUIRED>
!ELEMENT transporter_us_epa_id (#PCDATA)>
!ATTLIST transporter_us_epa_id transepaid NMTOKEN #REQUIRED>
!ELEMENT tsdf_info (tsdf_name, tsdf_us_epa_id, tsdf_street,
tsdf_city, tsdf_state, tsdf_zip_code)>
!ELEMENT tsdf_name (#PCDATA)>
!ATTLIST tsdf_name tsname CDATA #REQUIRED>
!ELEMENT tsdf_us_epa_id (#PCDATA)>
!ATTLIST tsdf_us_epa_id tsdfepaid NMTOKEN #REQUIRED>
!ELEMENT tsdf_street (#PCDATA)>
!ATTLIST tsdf_street tstreet CDATA #REQUIRED>
!ELEMENT tsdf_city (#PCDATA)>
!ATTLIST tsdf_city tcity CDATA #REQUIRED
!ELEMENT tsdf_state (#PCDATA)
!ATTLIST tsdf_state tstatecode NMTOKEN #REQUIRED
!ELEMENT tsdf_zip_code (#PCDATA)>
!ATTLIST tsdf_zip_code tzip CDATA #REQUIRED>
!ELEMENT waste_description (proper_shipping_name, hazard_class,
dot_id_no, packing_group, no_of_containers, container_type,
total_quantity, unit_wt_vol, waste_codes+)+>
!ELEMENT proper_shipping_name (#PCDATA)>
!ATTLIST proper_shipping_name pname CDATA #REQUIRED>
!ELEMENT hazard_class (#PCDATA)>
!ATTLIST hazard_class hclass NMTOKEN #REQUIRED>
!ELEMENT dot_id_no (#PCDATA)>
!ATTLIST dot_id_no dotid NMTOKEN #REQUIRED>
!ELEMENT packing_group (#PCDATA)>
!ATTLIST packing_group pgroup CDATA #REQUIRED>
!ELEMENT no_of_containers (#PCDATA)>
!ATTLIST no_of_containers nocon NMTOKEN #REQUIRED>
!ELEMENT container_type (#PCDATA)>
!ATTLIST container_type code CDATA #REQUIRED>
!ELEMENT total_quantity (#PCDATA)>
!ATTLIST total_quantity totquan CDATA #REQUIRED>
!ELEMENT unit_wt_vol (#PCDATA)>
!ATTLIST unit_wt_vol volcode CDATA #REQUIRED>
!ELEMENT waste_codes (#PCDATA)
!ATTLIST waste_codes wcode NMTOKEN #IMPLIED>
!ELEMENT special_handling_instructions (#PCDATA)>
!ATTLIST special_handling_instructions instr CDATA #IMPLIED>
!ELEMENT generator_certification (generator_signature,
generator_printed_name, generator_date)>
!ELEMENT generator_signature (#PCDATA)>
!ELEMENT generator_printed_name (#PCDATA)>
!ATTLIST generator_printed_name gpname CDATA #REQUIRED>
!ELEMENT generator_date (#PCDATA)>
!ATTLIST generator_date gendate CDATA #REQUIRED>
!ELEMENT international_shipments (intl_import, intl_export,
port_of_entry_exit, intl_date,
intl_signature)>
!ELEMENT intl_import (#PCDATA)>
!ELEMENT intl_export (#PCDATA)>
!ELEMENT port_of_entry_exit (#PCDATA)>
!ELEMENT intl_date (#PCDATA)>
!ATTLIST intl_date intldate CDATA #IMPLIED>
!ELEMENT intl_signature (#PCDATA)>
!ELEMENT transporter_certification (transporter_signature,
transporter_printed_name, transporter_date)+>
!ELEMENT transporter_signature (#PCDATA)>
!ELEMENT transporter_printed_name (#PCDATA)>
!ATTLIST transporter_printed_name tpname CDATA #REQUIRED>
!ELEMENT transporter_date (#PCDATA)>
!ATTLIST transporter_date transpdate CDATA #REQUIRED>
!ELEMENT tsdf_discrepancy (discrepancy_quantity_type,
container_residue, rejected_waste, manifest_reference_no,
description)>
!ELEMENT discrepancy_quantity_type (#PCDATA)>
!ELEMENT container_residue (#PCDATA)>
!ELEMENT rejected_waste (#PCDATA)>
!ELEMENT manifest_reference_no (#PCDATA)>
!ATTLIST manifest_reference_no mrno NMTOKEN #IMPLIED>
!ELEMENT description (#PCDATA)>
!ATTLIST description desc CDATA #IMPLIED>
[[Page 28301]]
!ELEMENT tsdf_certification (tsdf_signature, tsdf_printed_name,
tsdf_date)>
!ELEMENT tsdf_signature (#PCDATA)>
!ELEMENT tsdf_printed_name (#PCDATA)>
!ATTLIST tsdf_printed_name tspname CDATA #REQUIRED>
!ELEMENT tsdf_date (#PCDATA)>
!ATTLIST tsdf_date tsdfdate CDATA #REQUIRED>
!ELEMENT tsdf_brs_codes (tsdf_a, tsdf_b, tsdf_c, tsdf_d)>
!ELEMENT tsdf_a (#PCDATA)>
!ATTLIST tsdf_a codea NMTOKEN #IMPLIED>
!ELEMENT tsdf_b (#PCDATA)>
!ATTLIST tsdf_b codeb NMTOKEN #IMPLIED>
!ELEMENT tsdf_c (#PCDATA)>
!ATTLIST tsdf_c codec NMTOKEN #IMPLIED>
!ELEMENT tsdf__d (#PCDATA)>
!ATTLIST tsdf__d coded NMTOKEN #IMPLIED>
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practices and procedure,
Confidential business information, Hazardous waste.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste.
40 CFR Part 263
Environmental protection, Hazardous materials transportation,
Hazardous waste.
40 CFR Part 264
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds.
40 CFR Part 265
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water supply.
40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Dated: January 4, 2001.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
Subpart B--Definitions
2. Section 260.10 is amended by removing the definition of
``Manifest Document Number'', revising the definition of ``manifest''
and adding in alphabetical order the definition of ``Manifest tracking
number'' and ``Preparer'' to read as follows.
Sec. 260.10 Definitions.
* * * * *
Manifest means the shipping document EPA Form 8700-22 (including,
if necessary, EPA Form 8700-22A), or an electronic format identified in
Sec. 262.20(a)(3), originated and signed in accordance with the
applicable requirements of parts 262 through 265.
Manifest tracking number means the alphanumeric identification
number (i.e., a unique three letter prefix followed by eight numerical
digits), which is pre-printed in Item 3 of the Manifest by a registered
source.
* * * * *
Preparer means someone authorized by the generator to prepare,
complete, and/or sign the generator's Manifest on behalf of the
generator.
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
Subpart A--General
4. Section 261.7 is amended by revising paragraph (b)(1)(iii) to
read as follows:
Sec. 261.7 Residues of hazardous waste in empty containers.
* * * * *
(b)(1) * * *
(iii)(A) No more than 3 percent by weight of the total capacity of
the container remains in the container or inner liner if the container
is less than or equal to 119 gallons in size; or
(B) No more than 0.3 percent by weight of the total capacity of the
container remains in the container or inner liner if the container is
greater than 119 gallons in size.
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
5. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912(a), 6922-6925, 6937, and 6938.
6. In Sec. 262.20 the heading and paragraph (a) are revised to read
as follows:
Sec. 262.20 Manifest Formats and General Requirements
(a)(1) Manifest Requirement. A generator who transports, or offers
for transportation, hazardous waste for offsite treatment, storage, or
disposal must prepare a manifest to describe the hazardous waste being
shipped offsite and its routing to a designated facility.
(2) Paper format. Generators using a paper manifest form must
prepare their manifest on EPA Form 8700-22 and, if necessary, Form
8700-22A, and must prepare their manifest according to the instructions
in the appendix to this part 262.
(3) Electronic formats. Generators using an electronic format must
use either the Electronic Data Interchange (EDI) format described in
paragraph (a)(3)(i) of this section, or the Internet Forms format
described in paragraph (a)(3)(ii) of this section. All electronic
manifests must be used in accordance with the electronic manifest use
requirements of Sec. 262.24, signed in accordance with the electronic
signature requirements of Sec. 262.25, and generated and maintained on
electronic systems which meet the security requirements of Sec. 262.26.
Generators using the electronic manifest must prepare the manifest
according to the instructions included in the appendix to part 262.
(i) EDI format. The EDI format for the manifest must conform to the
American National Standards Institute (ANSI) Accredited Standards
Committee (ASC) X12 standards for Electronic Data Interchange and the
requirements and mapping conventions promulgated by the Federal
Electronic Data Interchange Standards Management Coordinating Committee
(FESMCC) for the ANSI X12 Transaction Sets 856 (Ship Notice/
[[Page 28302]]
Manifest) and 861 (Receipt and Advice). When EPA decides to adopt a new
version and release of the ANSI X12 standard or to modify the
conventional mapping, EPA will publish a Federal Register notice
announcing this change to the implementation convention and
establishing a conversion date. Those persons using the EDI format
would have a minimum of 60 days to conform to the new version or
mapping. EPA would discontinue support for the previous implementation
convention no sooner than 90 calendar days after the conversion date.
(ii) Internet forms format. The Internet Forms format for the
manifest must conform to the EPA Approved Document Type Definition,
which defines the data elements, tag identifiers, data element
relationships, contents, and structure of the Hazardous Waste Manifest,
in accordance with the Extensible Markup Language (XML) specifications
maintained by the World Wide Web Consortium.
* * * * *
7. Section 262.21 is revised to read as follows:
Sec. 262.21 Manifest tracking numbers, manifest printing, and
obtaining manifests.
(a) Manifest tracking numbers. (1) Paper and electronic manifests
may not be transmitted without a manifest tracking number assigned in
accordance with a numbering system approved by EPA.
(2) A person may not assign manifest tracking numbers without
submitting an application to EPA and receiving approval of their
manifest tracking number system. The application to EPA must contain
the following information:
(i) Name of applicant's organization (e.g., name of state and
department or name of company);
(ii) Name of contact person and telephone number;
(iii) Mailing address;
(iv) EPA identification number, if applicable;
(v) Brief description of applicant's government or business
activity;
(vi) Applicant's proposed, unique three-letter prefix for its
manifest tracking numbers, including an explanation of any limitations
to the use of such a prefix, if any (e.g., historic numbers to avoid);
and
(vii) Signed certification that the applicant will ensure that no
tracking number will be intentionally duplicated and, if applicable,
that all manifest printing specifications in paragraph (b) will be
followed.
(b) Manifest printing. (1) Paper manifest forms must be printed
according to the following specifications:
(i) The form must be printed in the same format as EPA Form 8700-
22a and b;
(ii) A Manifest Tracking Number assigned in accordance with a
numbering system approved by EPA under paragraph (a) of this section
must be preprinted in Item Three of the form;
(iii) Boxes cannot be added to the form;
(iv) Boxes cannot be deleted from the form;
(v) The form must be printed in the dimensions of 8\1/2\ x 11
inches;
(vi) The form must be printed in black ink that can be photocopied
or faxed;
(vii) The instructions in 40 CFR part 262, appendix 1 must be
printed on the back of the form;
(viii) Follow the same copy naming structure as outlined below in
Sec. 262.21(c)(3);
(ix) The form must be printed as a 6 copy form and it must be
indicated on the form that copies of the form must be distributed as
follows:
(A) Page 1 (top copy): ``Designated facility to destination State''
(if required);
(B) Page 2: ``Designated facility to generator State'' (if
required);
(C) Page 3: ``Designated facility to generator'';
(D) Page 4: ``Designated facility copy''
(E) Page 5: ``Transporter copy''; and
(F) Page 6 (bottom copy): ``Generator to generator State'' (if
required).
(2) Information required to complete the manifest may be preprinted
on the manifest form. In addition, the following may also be printed on
the manifest form:
(i) In items 10 and 28 (DOT description), a hazardous materials
(HM) column for use in distinguishing between federally regulated
wastes and other materials according to 49 CFR 172.201(a)(1);
(ii) Anywhere on the form, light organizational marks to indicate
proper placement of characters or to facilitate data entry; and/or
(iii) The State optional boxes may be lightly shaded in the
optional boxes;
(iv) In the Generator's Certification box, reference to State laws
or regulations following the Federal certification;
(3) Electronic manifests must meet the electronic format
requirements described in Sec. 262.20.
(c) Obtaining manifests. (1) A generator using a paper manifest may
use manifest forms printed by any of the following sources so long as
the source of the printed form has registered and received approval
from EPA to assign manifest tracking numbers under paragraph (a) of
this section, and the form is printed in accordance with the
specifications in paragraph (b) of this section:
(i) Any state agency that prints the manifest;
(ii) Commercial Form Printers;
(iii) Any hazardous waste generator, transporter, or TSDF; and
(iv) Brokers or other preparers who prepare or arrange shipments of
hazardous waste for transportation.
(2) A generator must contact the consignment state to determine
whether that state requires generators to enter optional state
information on the manifest. Generators must also contact the
consignment state to determine whether they are required to submit a
copy of the manifest to the state.
8. Section 262.23 is amended by revising the heading to read as
follows:
Sec. 262.23 Use of the paper manifest.
* * * * *
9. Subpart B is amended by adding new Sec. 262.24;
Sec. 262.24 Use of the electronic manifest.
(a) Optional use. In lieu of using the paper manifest, generators
may use an electronic manifest format identified in Sec. 262.20(a)(3).
A generator may only use an electronic manifest if:
(1) At least the generator and the designated facility for the
shipment are both able to send and receive electronic manifest
transmissions using electronic systems that meet the security
requirements of Sec. 262.26, or the generator is able to access such an
electronic system operated by the transporter who receives the waste
shipment from the generator for off-site transportation,
(2) Both the generator (or authorized preparer) and designated
facility for the shipment are able to electronically sign their
electronic manifests with an electronic signature that meets the
requirements of Sec. 262.25, and
(3) If manifest copies are collected by any authorized state(s),
the state(s) is able to accept electronic manifest copies in lieu of
paper copies, or, the state(s) is provided with suitable paper copies
of the manifest.
(b) Manifest preparation and signature by authorized preparer. A
person who in fact prepares a generator's hazardous waste shipment for
off-site transportation may sign the generator's certification on
behalf of the generator. Such a preparer may sign the generator's
certification on the manifest if:
(1) The generator has authorized the preparer to prepare shipments
and
[[Page 28303]]
initiate manifests on behalf of the generator; and
(2) The preparer provides the generator with a copy of the manifest
for the generator's records. In those cases where the preparer signs
the generator's certification electronically but the generator is not
able to retain an electronic copy of the manifest, the preparer must
provide the generator with a paper copy of the manifest, with a
notation in the generator's certification block indicating that the
manifest was signed electronically by the preparer on behalf of the
generator.
(c) Manifest origination procedures. A generator originating an
electronic manifest must:
(1) Electronically sign the manifest certification in accordance
with Sec. 262.25;
(2) Transmit the manifest to the initial transporter and obtain
back from this transporter a copy of the manifest bearing the signature
of the initial transporter and the date of acceptance of the shipment.
If the transporter is not able to accept and sign an electronic
manifest, the generator must instead obtain from the transporter a
handwritten signature and date of acceptance on a paper copy of the
manifest or other shipping paper under 49 CFR part 272, subpart C. If a
shipping paper is used to meet this requirement, it must bear the
manifest tracking number assigned to the electronic manifest used for
tracking the waste shipment.
(3) Retain one electronic copy in accordance with the retention
period described in Sec. 262.40(a). If the initial transporter is not
able to accept and sign an electronic manifest, or if the generator
signs an electronic manifest using the initial transporter's electronic
system but is not able to take back an electronic copy, then the
generator must retain a hard copy of the manifest or shipping paper
signed by the initial transporter. The hard copy retained by the
generator must display the manifest tracking number assigned to the
shipment.
(4) Provide the initial transporter with one hard copy of the
manifest or other hazardous materials shipping paper as defined in 49
CFR 171.8. This hard copy of the manifest or other shipping paper must
be carried on the vehicle in accordance with 40 CFR 263.20(c) and the
accessibility requirements of 49 CFR 177.817(e), and it must display
the manifest tracking number assigned to the shipment.
(d) If any transporter listed on the manifest is not able to
accept, sign, and transmit electronic manifest copies, then the
generator must also send an electronic manifest copy to the designated
facility. The copy transmitted to the designated facility must bear the
generator's electronically signed certification, and either the initial
transporter's electronic signature and date of acceptance, or a
notation indicating that the transporter signed a manifest copy or
other shipping paper by hand and the date that the shipment was
received by the initial transporter.
(e) For shipments of hazardous waste within the United States
solely by water (bulk shipments only), the generator must send an
electronic copy of the manifest, dated and signed in accordance with
this section, to the owner or operator of the designated facility or
the last water (bulk shipment) transporter to handle the waste in the
United States if exported by water. Copies of the electronic manifest
are not required for each transporter.
(f) For rail shipments of hazardous waste within the United States
which originate at the site of generation, the generator must send an
electronic copy of the manifest, dated and signed in accordance with
this section, to:
(1) The next non-rail transporter, if any; or
(2) The designated facility, if transported solely by rail; or
(3) The last rail transporter to handle the waste in the United
States if exported by rail.
(g) For shipments of hazardous waste to a designated facility in an
authorized State which has not yet obtained authorization to regulate
that particular waste as hazardous, the generator must assure that the
designated facility agrees to sign and return the manifest to the
generator, and that any out-of-state transporter signs and forwards the
manifest to the designated facility.
10. Subpart B is amended by adding new Sec. 262.25;
Sec. 262.25 Electronic manifest signatures.
(a) An ``electronic signature'' means a method of signing an
electronic document with a computer generated symbol or series of
symbols in a way that indicates a particular person as the source of
the document, and indicates such person's approval of the content of
the document, or an intent to be bound by the document.
(b) All electronic manifests must be signed with electronic
signatures which meet either the digital signature standard described
in paragraphs (c) through (f) of this section, or the secure digitized
signature standard described in paragraph (g) of this section.
(c) Digital signatures. A ``digital signature'' means an electronic
signature that is based on private key/public key cryptography, and
which allows both the identity of the signer and the integrity of the
data to be verified.
(d) Digital signature generation. (1) The generation of digital
signatures must conform to the Digital Signature Standard adopted by
the National Institute of Standards and Technology (NIST) in Federal
Information Processing Standard (FIPS PUB) 186-1, December 15, 1998. In
accordance with FIPS PUB 186-1, the Secure Hash Algorithm (SHA)
described in FIPS PUB 180-1 (NIST, April, 1995) and the RSA digital
signature algorithm described in ANSI X9.31 must be used to generate
and verify digital signatures for the hazardous waste manifest.
(2) Key lengths for encryption keys must be not less than 1024
bits.
(e) Private key security. (1) The private encryption key used to
generate a manifest digital signature may reside on either software or
hardware, e.g., a ``smart'' card or other hardware token. Access to the
private key must be protected by at least one authority challenge, such
as a PIN or password. The subscriber must keep the PIN or password
confidential at all times.
(2) Individuals are responsible at all times for maintaining the
confidentiality of their private keys. The private key must be
protected at all times by the subscriber against disclosure, misuse, or
compromise. An individual who uses a private key to sign electronic
manifests must not delegate the use of their private key to another
person.
(f) Digital Certificate Requirements. [Reserved]
(g) Secure digitized signatures. A ``secure digitized signature''
means an electronic signature that is created with a system which
includes a digitizer device that collects signature data from a stylus
that the signer moves across the surface of the device, and which
includes software which can process signature input in the following
manner:
(1) The signature software must block access to any editing or
copying features that might otherwise allow a non-original signature
image to be inserted in or copied to a document.
(2) The signature software must be designed to accept only original
signature input created dynamically with the digitizer device.
(3) The signature software must record the signature input data as
a signature object that contains:
(i) The graphical image of the signer's handwritten signature,
(ii) Signature capture information, including the claimed identity
of the signer, and the date and time of the signature.
[[Page 28304]]
(iii) Document binding data, particularly, an encrypted checksum or
hash function of the data to which the signature relates.
(4) The signature software must allow interrogation and
verification of signature objects, to establish whether any data has
been changed since a signature was captured. The software must alert
the user if an invalid signature is detected.
(5) The signature software must be capable of presenting the
graphical image of the captured signature in an industry standard
bitmap format (e.g., TIFF or BMP), for display or print operations.
(h) Proof that an individual's electronic signature was affixed to
an electronic manifest is evidence, and may suffice to establish, that
the individual identified as the signor affixed the signature and did
so with the intent to sign the electronic document to give it effect.
11. Subpart B is amended by adding new Sec. 262.26;
Sec. 262.26 Electronic manifest systems and security.
(a) Electronic manifests must be generated and maintained by
electronic systems that comply with paragraph (c) of this section.
Electronic copies of manifests, which are electronically signed in
accordance with Sec. 262.25, and which are generated or maintained by
electronic systems that meet the security requirements of paragraph (c)
of this section, will be considered the legal equivalent to paper
manifest copies bearing handwritten signatures, for purposes of
satisfying any requirement in these regulations to initiate, use, or
transmit a manifest, or to retain a record of a manifest copy or
produce it for inspection.
(b) Electronic manifest copies as well as any computer systems
(hardware and software), controls, and related documentation maintained
under this section, must be readily available for, and subject to
inspection by any EPA or authorized State inspector.
(c) Electronic systems used to satisfy the requirements in these
regulations to initiate, use, transmit, or retain records of manifests,
must employ controls and procedures to ensure the authenticity and
integrity of their electronic records, and to ensure that the signer of
these records cannot readily repudiate the signature and associated
records as genuine. Such procedures and controls must include:
(1) Validation of computer systems by an independent, qualified
information systems security professional who has prepared a written
assessment of the system and has certified that the system generates
and processes data accurately and reliably, that the system performs
consistently and as intended, that the system is fully interoperable
with any other electronic manifest system with which the system
exchanges electronic manifests, that the system is designed and can be
operated to meet the computer security standards of this section and
good security practices common to trusted electronic commerce systems,
and that appropriate precautions have been taken to ensure that these
security measures cannot be avoided or defeated.
(2) The ability to generate accurate and complete records in both
electronic (i.e, EDI and XML) formats and human readable formats, which
can be made readily available for inspection, printing, or copying by
EPA or State inspectors during the required record retention period.
(3) The ability to protect electronic records from all reasonably
foreseeable causes of damage or corruption (including accidental or
intentional erasures and alterations, and physical causes such as fire,
heat, magnetism or water damage), to ensure their accurate and ready
retrieval during the entire record retention period, including the
retention of prior versions of hardware and software needed to access
electronic records, and to create secure back-up copies of records or
otherwise provide for data recovery in the event of damage or errors.
(4) The ability to limit system access to only authorized
individuals, and to use authority checks (i.e., user IDs and passwords
that uniquely identify each user to the system) to ensure that only
authorized individuals can use the system, sign records, access input
or output devices, alter a record, or perform discrete system
operations,
(5) The ability to provide and maintain a secure computer-generated
and time-stamped audit trail for independently recording the date and
time of any operator entries and actions that create, modify, or delete
records, and for establishing a complete and accurate history of each
record in the system.
(6) Software-based operational system checks and work flow controls
which implement and oversee the process for routing electronic
manifests to waste handlers in the proper sequence, for prompting waste
handlers to sign manifests electronically in the proper sequence and on
the appropriate signature blocks, for ensuring that data entered by
previous waste handlers cannot be altered once they have electronically
signed the manifest, and for ensuring that electronic copies bearing
the appropriate electronic signatures are distributed to all waste
handlers involved with the waste shipment.
(7) Software-based features which ensure that manifest data appear
on computer displays in a human readable format (including field
labels) which waste handlers can readily verify before they apply their
electronic signatures, and that at the time the system prompts a user
to sign a manifest electronically, the signature prompt is accompanied
by the following warning notice, which must be displayed clearly and
conspicuously on the system display:
WARNING: Your electronic signature, when applied to this document,
will constitute a signature for all legal purposes. The unauthorized
use of an electronic signature, or the making of false statements in
connection with an electronic signature, may be subject to civil
penalties under State and Federal law, and to Federal criminal
penalties under RCRA 3008(d)(3). Where a digital signature is used,
only the person named as the subscriber on the digital certificate
may apply the digital signature, and the right to use the digital
signature cannot be delegated to another person. By using a digital
signature, you are certifying that you have not compromised your
private key or any password associated with your private key or
signature device.
(8) Full interoperability of electronic manifest system features
throughout the period that a manifest record resides on a system or is
exchanged among waste handlers participating in an electronic system.
Full interoperability of system features includes the ability to
consistently process and present the required electronic manifest
formats, the ability to consistently and reliably route manifests
according to the software-based work flow and process controls, the
ability to consistently generate and preserve audit trail data for each
manifest record created by or received by the system, the ability to
detect records that appear to have been altered, and the ability to
consistently process and validate electronic signatures. You may
exchange electronic manifests with another person's electronic system
only if the other system has been assessed under paragraph (c)(1) of
this section, and validated as fully interoperable with your system.
(9) Establishment of controls on distribution of, access to, and
use of systems documentation that describes how the system operates,
how the system components must be installed and configured, how system
security features are implemented, or how the system is maintained.
These controls extend as well to changes or revisions
[[Page 28305]]
to system documentation or operating procedures.
(10) Establishment of, and adherence to, written policies that hold
individuals accountable and responsible for actions initiated under
their electronic signatures, in order to deter record and signature
falsification.
(d) Third-party storage of manifest records. (1) A generator's
electronic manifest records may be stored by a networking service,
record archiving service, or other commercial vendor of electronic
record storage services provided that such records are maintained in a
system that complies with the requirements of this section, including
the requirement for reasonable inspector access to records during the
entire record retention period, and the requirement for validation of
the third-party system's operation by a qualified, independent
information systems security professional.
(2) A generator who uses a third-party vendor of electronic record
storage services to meet their record retention requirements remains
responsible for the proper performance of their record retention
requirements, including the requirement to provide reasonable inspector
access to the records during the entire record retention period.
(e) Receipt. An electronic manifest is deemed to have been received
by the recipient when it is accessible to the recipient in a format
that can be read by the recipient. If a recipient receives a manifest
record for which there is evidence that the data has been corrupted
(e.g., garbled text, or hash functions or checksums that do not
calculate correctly), the recipient must request that the sender re-
transmit a corrected version of the record.
(f) Acknowledgment of receipt. When an electronic manifest
transmission is received, the recipient must promptly generate and
transmit to the sender an acknowledgment that confirms the receipt of
data that can be translated by the recipient's system.
(g) Date of receipt. The acknowledgment generated by the recipient
to confirm the receipt of translatable data will constitute conclusive
evidence of receipt of the electronic manifest and will establish the
date of receipt. An electronic transmission will not be considered
complete until the sender receives the acknowledgment of receipt.
(h) Retransmission. If a positive acknowledgment is not received
within 12 hours of a transmission, then the person who initiated the
transmission must promptly re-transmit the electronic manifest.
(i) Inability to transmit. No person will be excused from the
requirement to initiate or use a manifest because of a foreseeable or
unforeseeable system failure that prevents the transmission of a valid
electronic manifest. If a person is unable to initiate or transmit a
valid manifest electronically, it must use the paper manifest required
to be used in accordance with Sec. 262.20(a)(2) and Sec. 263.20 of this
chapter.
(j) Transmission log. Each generator who operates an electronic
manifest system to transmit or receive electronic manifests must
maintain a transmission log covering all electronic manifests sent or
received. This log must include for each manifest transmission sent or
received, the date, time, and destination/source. The transmission log
must also document who had access to the generator's sending or
receiving system during the creation, transmission, or receipt of data.
The transmission log must be maintained without modification and
retained for three years among the generator's manifest records, in
accordance with Sec. 262.40(a).
12. Subpart B is amended by adding new Sec. 262.27;
Sec. 262.27 Waste minimization certification.
A generator who initiates a shipment of hazardous waste must
certify to one of the following statements in Item 16 of the uniform
hazardous waste manifest:
(a) ``I am a large quantity generator. I have a program in place to
reduce the volume and toxicity of waste generated to the degree I have
determined to be economically practicable and I have selected the
practicable method of treatment, storage, or disposal currently
available to me which minimizes the present and future threat to human
health and the environment;'' or
(b) ``I am a small quantity generator. I have made a good faith
effort to minimize my waste generation and select the best waste
management method that is available to me and that I can afford.''
13. Section 262.32 is amended by revising paragraph (b) to read as
follows:
Sec. 262.32 Marking.
* * * * *
(b) Before transporting hazardous waste or offering hazardous waste
for transportation off-site, a generator must mark each container of
119 gallons or less used in such transportation with the following
words and information in accordance with the requirements of 49 CFR
172.304:
HAZARDOUS WASTE--Federal Law Prohibits Improper Disposal. If found,
contact the nearest police or public safety authority or the U.S.
Environmental Protection Agency.
Generator's Name and Address-------------------------------------------
Generator's EPA Identification Number----------------------------------
Manifest Tracking Number-----------------------------------------------
14. Section 262.33 is revised to read as follows:
Sec. 262.33 Placarding.
Before transporting hazardous waste or offering hazardous waste for
transportation off-site, a generator must placard or offer the initial
transporter the appropriate placards according to Department of
Transportation regulations for hazardous materials under 49 CFR part
172, subpart F. If placards are not required, a generator must mark
each motor vehicle according to 49 CFR 171.3(b)(1).
15. Section 262.34 is amended by adding new paragraph (j) to read
as follows.
Sec. 262.34 Accumulation time.
* * * * *
(j) A generator who sends a shipment of hazardous waste to a
designated facility with the understanding that the designated facility
can accept and manage the waste and then receives that shipment back as
a rejected load or residue in accordance with the manifest discrepancy
provisions of Sec. 264.72 or Sec. 265.72 of this chapter may accumulate
the returned waste on-site in accordance with paragraphs (a) and (b) or
(d), (e) and (f) of this section, depending on the amount of hazardous
waste on-site in that calendar month, except that a small quantity
generator can never accumulate more than 6,000 kg on site at any given
time.
Subpart E--Exports of Hazardous Waste
16. Section 262.54 is amended by revising paragraphs (c) and (e) to
read as follows:
Sec. 262.54 Special manifest requirements.
* * * * *
(c) In the International Shipments block, the primary exporter must
check the export box and enter the point of exit (city and State) from
the United States.
* * * * *
(e) The primary exporter may obtain the manifest from any source
that is registered with the U.S. EPA as a supplier of manifests (e.g.,
states, waste handlers, and/or commercial forms printers).
* * * * *
[[Page 28306]]
Subpart F--Imports of Hazardous Waste
17. Section 262.60 is amended by revising paragraph (c) and by
adding paragraphs (d) and (e) to read as follows:
Sec. 262.60 Imports of hazardous waste.
* * * * *
(c) A person who imports hazardous waste may obtain the manifest
form from any source that is registered with the U.S. EPA as a supplier
of manifests (e.g., states, waste handlers, and/or commercial forms
printers).
(d) In the International Shipments block, the importer must check
the import box and enter the point of entry (city and State) into the
United States.
(e) The importer must provide the transporter with an additional
copy of the manifest for delivery to the U.S. Customs official at the
point the hazardous waste enters the United States in accordance with
Sec. 263.20(g)(4) of this chapter.
18. The Appendix to Part 262 is redesignated as appendix 1 to part
262 and revised to read as follows:
Appendix 1 to Part 262--Uniform Hazardous Waste Manifest and
Instructions (EPA Forms 8700-22 and 8700-22A and Their Instructions)
U.S. EPA Form 8700-22
Read all instructions before completing this form.
This form has been designed for use on a 12-pitch (elite)
typewriter which is also compatible with standard computer printers;
a firm point pen may also be used--press down hard.
Federal regulations require generators and transporters of
hazardous waste and owners or operators of hazardous waste
treatment, storage, and disposal facilities to complete this form
(8700-22) and, if necessary, the continuation sheet (8700-22A) for
both inter-and intrastate transportation of hazardous waste.
The following statement must be included with each Uniform
Hazardous Waste Manifest, either on the form, in the instructions to
the form, or accompanying the form:
Public reporting burden for this collection of information is
estimated to average: 17 minutes for generators, 10 minutes for
transporters, and 16 minutes for owners or operators of treatment,
storage, and disposal facilities. This includes time for reviewing
instructions, gathering data, completing and reviewing the form, and
transmitting the form. Send comments regarding the burden estimate,
including suggestions for reducing this burden, to: Chief,
Information Policy Branch (2136), U.S. Environmental Protection
Agency, Ariel Rios Building; 1200 Pennsylvania Ave., NW, Washington,
D.C. 20460; and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, D.C. 20503.
Copies and Copy Distribution
Original forms, carbon copies, carbonless copies, and
photocopies of the manifest may be used. All copies must be legible.
The top copy of the manifest must accompany the waste in
transportation.
Paper manifest must be printed according to the following
specifications:
use the federal manifest format;
register with EPA as a forms printer to ensure that you
adhere to federal printing specifications and procedures subsequent
to the registration process;
preprint an eleven digit alphanumeric number (i.e., the
three letter prefix followed by eight digits) under Item Three of
the manifest as the Manifest Tracking Number.
not add additional boxes to the form;
not delete boxes from the form;
print the form so that the manifest dimensions are 8\1/
2\ x 11 inches;
print the form in black ink so that it can be
photocopied or faxed;
print the standardized instructions outlined in 40 CFR
part 262, appendix 1;
follow the same copy naming structure as outlined below
in Sec. 262.21(c)(3);
print the state optional boxes so that information in
them is readable when the form is photocopied or faxed; and
printer must print a 6 copy form.
Copies of the manifest shall be distributed as follows:
Page 1 (top copy): Designated facility to consignment State (if
required);
Page 2: Designated facility to generator State (if required);
Page 3: Designated facility to generator;
Page 4: Designated facility retains
Page 5: Transporter retains; and
Page 6 (bottom copy): Generator to generator State (if
required).
BILLING CODE 6560-50-P
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[GRAPHIC] [TIFF OMITTED] TP22MY01.016
BILLING CODE 6560-50-C
[[Page 28308]]
I. INSTRUCTIONS FOR GENERATORS
Item 1. Generator's U.S. EPA Identification Number
Enter the generator's U.S. EPA twelve digit identification
number.
Item 2. Page 1 of ____
Enter the total number of pages used to complete this Manifest
(i.e., the first page (EPA Form 8700-22) plus the number of
Continuation Sheets (EPA Form 8700-22A), if any).
Item 3. Manifest Tracking Number
For paper manifests, this number must be pre-printed on the
manifest by the forms printer.
Item 4. Generator's Mailing Address and Phone Number
Enter the name of the generator, the address to which the
manifest signed by the designated facility should be mailed, and the
generator's telephone number. Note, the telephone number (including
area code) should be the number where the generator or his
authorized agent may be reached to provide instructions in the event
of an emergency or if the designated and/or alternate (if any)
facility rejects some or all of the shipment. The emergency response
phone number must:
1. be the number of the generator or the number of an agency or
organization who is capable of and accepts responsibility for
providing detailed information about the shipment;
2. reach a phone that is monitored 24 hours a day at all times
the waste is in transportation (including transportation related
storage); and
3. must reach someone who is either knowledgeable of the
hazardous waste being shipped and has comprehensive emergency
response and spill cleanup/incident mitigation information for the
material being shipped or has immediate access to a person who has
that knowledge and information about the shipment.
Item 5. Emergency Response Phone Number
Enter the number of the generator or the number of a party
responsible for providing information about the shipment 24 hours a
day.
Item 6. Transporter 1 Company Name, and U.S. EPA ID Number
Enter the company name and U.S. EPA ID number of the first
transporter who will transport the waste.
Item 7. Transporter 2 Company Name, U.S. EPA ID Number
If applicable, enter the company name and U.S. EPA ID number of
the second transporter who will transport the waste.
Item 8. Transporter 3 Company Name, U.S. EPA ID Number
If applicable, enter the company name and U.S. EPA ID number of
the third transporter who will transport the waste.
If more than three transporters are needed, use a Continuation
Sheet(s) (EPA Form 8700--22A).
Item 9. Designated Facility Name, Site Address, and U.S. EPA ID
Number
Enter the company name and site address of the facility
designated to receive the waste listed on this manifest and enter
the U.S. EPA twelve digit identification number of the facility.
Item 10. U.S. DOT Description (Including Proper Shipping Name,
Hazard Class or Division, Identification Number, and Packing Group)
Enter the U.S. DOT Proper Shipping Name, Hazard Class or
Division, Identification Number (UN/NA) and Packing Group for each
waste as identified in 49 CFR part 172. Include technical name(s)
and reportable quantity references, if applicable. Any additional
waste codes may be entered in Item 14 (special handling and
additional information block), or if necessary, in Item 32 on the
Continuation Sheet (EPA Form 8700-22A).
Note: If additional space is needed for waste descriptions,
enter these additional descriptions in Item 28 on the Continuation
Sheet (EPA Form 8700-22A).
Item 11. Containers (Number and Type)
Enter the number of containers for each waste and the
appropriate abbreviation from Table I (below) for the type of
container.
Table I. Types of Containers
BA = Burlap, cloth, paper, or plastic bags
CF = Fiber or plastic boxes, cartons, cases
CM = Metal boxes, cartons, cases (including roll-offs)
CW = Wooden boxes, cartons, cases
CY = Cylinders
DF = Fiberboard or plastic drums, barrels, kegs
DM = Metal drums, barrels, kegs
DT = Dump truck
DW = Wooden drums, barrels, kegs
HG = Hopper or gondola cars
TC = Tank cars
TP = Portable tanks
TT = Cargo tanks (tank trucks)
Item 12. Total Quantity
Enter, in designated boxes, the total quantity of waste. Round
partial units to the nearest whole unit; do not enter decimals or
fractions (unless appropriate for bulk shipments).
Item 13. Units of Measure (Weight/Volume)
Enter, in designated boxes, the appropriate abbreviation from
Table II (below) for the unit of measure.
Table II. Units of Measure
G = Gallons (liquids only)
K = Kilograms
L = Liters (liquids only)
M = Metric Tons (1000 kilograms)
N = Cubic Meters
P = Pounds
T = Tons (2000 pounds)
Y = Cubic Yards
Item 14. Special Handling Instructions and Additional Information.
Note: This space may be used to record other information
relevant to the waste shipment for which there is no specific space
on the Manifest. These items are: universal waste shipments;
additional waste codes; alternate facility designation; name,
address, and phone number of any person other than the person
identified in Item 4 (Generator's Name, Mailing Address, and Phone
Number) preparing the manifest; and name, address, phone number, and
EPA identification number of any person who shares generator
responsibilities (i.e., co-generators) with the person identified in
Item 4 (Generator's Name, Mailing Address, and Phone Number). This
space may be also used to indicate special transportation;
treatment, storage, or disposal information; bill of lading
information, and/or the manifest tracking number of the original
manifest for rejected loads and residues. If space is available,
then generators can use this space for information relevant to their
tracks. States may also require additional waste description
associated with particular hazardous wastes listed on the Manifest.
States cannot require information in this box other than information
such as chemical names, constituent percentages, and physical state.
Item 15. Generator's Statement and Preparer's Certification
The generator must read, sign, and date the waste minimization
certification statement. In signing the waste minimization
certification statement, those generators who have not been exempted
by statute or regulation from the duty to make a waste minimization
certification under section 3002(b) of RCRA are also certifying that
they have complied with the waste minimization requirements.
Generators may preprint the words, ``On behalf of'' in the
signature block or may hand write this statement in the signature
block prior to signing the generator certifications.
Note: For paper manifests, all of the above information except
the handwritten signature required in item 15 may be pre-printed.
II. Instructions for International Shipment Block
Item 16. International Shipments
For export shipments, the primary exporter must check the export
box, and enter the point of exit (city and state) from the United
States. For import shipments, the importer must check the import box
and enter the point of entry (city and state) into the United
States. For exports, the transporter must sign and date the manifest
to indicate the day the shipment left the United States.
Transporters of hazardous waste shipments must deliver a copy of the
manifest to the U.S. Customs when importing or exporting the waste
across U.S. borders.
III. Instructions for Transporters
Item 17. Transporter 1 Acknowledgment of Receipt
Enter the name of the person accepting the waste on behalf of
the first transporter. That person must acknowledge acceptance of
the waste described on the Manifest by signing and entering the date
of receipt. Only one signature per transportation company is
required.
[[Page 28309]]
Item 18. Transporter 2 Acknowledgment of Receipt
If applicable, enter the name of the person accepting the waste
on behalf of the second transporter. That person must acknowledge
acceptance of the waste described on the Manifest by signing and
entering the date of receipt.
Item 19. Transporter 3 Acknowledgment of Receipt
If applicable, enter the name of the person accepting the waste
on behalf of the third transporter. That person must acknowledge
acceptance of the waste described on the Manifest by signing and
entering the date of receipt.
Note: Transporters carrying imports or exports of hazardous
waste may also have responsibilities to enter information in the
International Shipments Block. See above instructions for Item 16.
IV. Instructions for Owners and Operators of Treatment, Storage, and
Disposal Facilities
Item 20. Discrepancy Indication Space
The authorized representative of the designated (or alternate)
facility's owner or operator must note in this space any
discrepancies between the waste described on the Manifest and the
waste actually received at the facility. Manifest discrepancies are:
significant differences (as defined by Sec. Sec. 264.72(b) and
265.72(b)) between the quantity or type of hazardous waste
designated on the manifest or shipping paper, and the quantity and
type of hazardous waste a facility actually receives; rejected
wastes, which may be a full or partial shipment of hazardous waste
that the TSDF cannot accept; or container residues, which are
residues that exceed the quantity limits for ``empty'' containers
set forth in 40 CFR 261.7(b).
For rejected loads and residues (40 CFR 264.72(d), (e), and (f),
or 40 CFR 265.72(d), (e), or (f)), check the appropriate box if the
shipment is a rejected load (i.e., rejected by the designated and/or
alternate facility and is sent to an alternate facility or returned
to the generator) or a regulated residue that cannot be removed from
a container. Enter the reason for the rejection or the inability to
remove the residue and a description of the waste. Also, reference
the manifest tracking number for the new manifest being used to
track the rejected waste or residue shipment on the original
manifest. Indicate the original manifest tracking number in Item 14,
the Special Handling Block of the new manifest.
Owners or operators of facilities located in unauthorized States
(i.e., states in which the U.S. EPA administers the hazardous waste
management program) who cannot resolve significant differences in
quantity or type within 15 days of receiving the waste must submit
to their Regional Administrator (see list below) a letter with a
copy of the Manifest at issue describing the discrepancy and
attempts to reconcile it (40 CFR 264.72(c) and 265.72(c)).
Owners or operators of facilities located in authorized States
(i.e., those States that have received authorization from the U.S.
EPA to administer the hazardous waste management program) should
contact their State agency for information on State Discrepancy
Report requirements.
EPA Regional Administrators
Regional Administrator, U.S. EPA Region I, John F. Kennedy Federal
Building, One Congress St., Boston, MA 02203
Regional Administrator, U.S. EPA Region II, Jacob K. Javits Federal
Building, 26 Federal Pl., New York, NY 10278
Regional Administrator, U.S. EPA Region III, 841 Chestnut Building,
Philadelphia, PA 19107
Regional Administrator, U.S. EPA Region IV, 345 Courtland St, NE,
Atlanta, GA 30365
Regional Administrator, U.S. EPA Region V, 77 W. Jackson Blvd.,
Chicago, IL 60604-3507
Regional Administrator, U.S. EPA Region VI, First Interstate Bank
Tower at Fountain Place, 1445 Ross Ave, 12th Floor, Suite 1200,
Dallas, TX 75202-2733
Regional Administrator, U.S. EPA Region VII, 726 Minnesota Ave.,
Kansas City, KS 66101
Regional Administrator, U.S. EPA Region VIII, 999 18th St., Suite
500, Denver, CO 80202-2405
Regional Administrator, U.S. EPA Region IX, 75 Hawthorne St., San
Francisco, CA 94105
Regional Administrator, U.S. EPA Region X, 1200 Sixth Ave., Seattle,
WA 98101
Item 21. Facility Owner or Operator Certification of Receipt
(Except As Noted in Item 20)
Enter the name of the person accepting the waste on behalf of
the owner or operator of the facility. That person must acknowledge
receipt or rejection of the waste described on the Manifest by
signing and entering the date of receipt or rejection where
indicated. Since the Facility Certification acknowledges receipt of
the waste except as noted in the Discrepancy Space in Item 20, the
certification should be signed for both waste receipt and waste
rejection, with the rejection being explained in the space in Item
20.
Optional State Information
Blocks A and B are not required by Federal regulations for
intra- or interstate transportation. However, States may require
generators and owners or operators of treatment, storage, or
disposal facilities to complete some or all of Blocks A or B as part
of State manifest reporting requirements. Generators and owners and
operators of treatment, storage, or disposal facilities should
contact State officials to determine whether they must enter
information in blocks A and B.
Block A--Waste Codes
Enter up to 3 Federal waste codes in the top part of Block A for
wastes described in Item 10. Enter the federal waste codes in
accordance with the following hierarchy: all acutely hazardous
wastes, including all P listed wastes and all acutely hazardous F
listed wastes; all U listed wastes (toxic); all K listed wastes
(specific sources); all non-acute F listed wastes (non-specific
sources); and all D wastes (characteristic). The use of this
hierarchy is required except for ignitable or reactive wastes, which
may be better described (for safety reasons) if the waste codes for
these characteristics are listed first.
The bottom half of Block A is reserved for entering up to three
state-specific waste codes. In general, the first state waste code
listed should be the generator state waste code (if applicable) and
the second state waste code listed should be the destination state
waste code (if applicable).
If additional federal or state waste codes need to be reported,
the generator should use Item 14 ``Special Handling Instructions and
Additional Information.''
Block B--Biennial Report System Type Codes
Enter the most appropriate Biennial Report system type code for
each waste listed in Item 10. The system type code is to be entered
by the first treatment, storage, or disposal facility (TSDF) that
receives the waste and is the code that best describes the way in
which the waste is managed when shipped to the TSDF. The full list
of the Biennial Report system type codes can be found in the
electronic and hard copy versions of 40 CFR Part 262 Appendix 2-
Biennial Report system type codes (full list of the system type
codes) and in the instructions for completing the Biennial Report.
19. Add a new appendix 2 to part 262 to read as follows:
Appendix 2 to Part 262--Biennial Report System Type Codes for Block B
of the Uniform Hazardous Waste Manifest
Shown below is the full list of Biennial Report system type
codes found in the 1999 Hazardous Waste Report Instructions and
Forms. These codes are to be used by the designated facility in
completing Block B of the hazardous waste manifest where an
authorized state required it. Any changes made to those codes during
subsequent Biennial Report periods will be automatically adopted.
List of System Type Codes
Metals Recovery (for Reuse)
M011 High temperature metals recovery
M012 Retorting
M013 Secondary smelting
M014 Other metals recovery for reuse: e.g., ion exchange, reverse
osmosis, acid leaching
M019 Metals recovery--type unknown
Solvents Recovery
M021 Fractionation/distillation
M022 Thin film evaporation
M023 Solvent extraction
M024 Other solvent recovery
M029 Solvents recovery--type unknown
Other Recovery
M031 Acid regeneration
M032 Other recovery: e.g., waste oil recovery, nonsolvent organics
recovery
M039 Other recovery--type unknown
Incineration Treatment
M041 Incineration--liquids
M042 Incineration--sludges
M043 Incineration--solids
[[Page 28310]]
M044 Incineration--gases
M049 Incineration--type unknown
Energy Recovery (Reuse as Fuel)
M051 Energy recovery--liquids
M052 Energy recovery--sludges
M053 Energy recovery--solids
M059 Energy recovery--type unknown
Fuel Blending
M061 Fuel blending
Aqueous Inorganic Treatment
M071 Chrome reduction followed by chemical precipitation
M072 Cyanide destruction followed by chemical precipitation
M073 Cyanide destruction only
M074 Chemical oxidation followed by chemical precipitation
M075 Chemical oxidation only
M076 Wet air oxidation
M077 Chemical precipitation
M078 Other aqueous inorganic treatment: e.g., ion exchange, reverse
osmosis
M079 Aqueous inorganic treatment--type unknown
Aqueous Organic Treatment
M081 Biological treatment
M082 Carbon adsorption
M083 Air/steam stripping
M084 Wet air oxidation
M085 Other aqueous organic treatment
M089 Aqueous organic treatment--type unknown
Aqueous Organic and Inorganic Treatment
M091 Chemical precipitation in combination with biological
treatment
M092 Chemical precipitation in combination with carbon adsorption
M093 Wet air oxidation
M094 Other organic/inorganic treatment
M099 Aqueous organic and inorganic treatment--type unknown
Sludge Treatment
M101 Sludge dewatering
M102 Addition of excess lime
M103 Absorption/adsorption
M104 Solvent extraction
M109 Sludge treatment--type unknown
Stabilization
M111 Stabilization/chemical fixation using cementitious and/or
pozzolanic materials
M112 Other stabilization
M119 Stabilization--type unknown
Other Treatment
M121 Neutralization only
M122 Evaporation only
M123 Settling/clarification only
M124 Phase separation (e.g., emulsion breaking, filtration) only
M125 Other treatment
M129 Other treatment--type unknown
Disposal
M131 Land treatment/application/farming
M132 Landfill
M133 Surface impoundment (to be closed as a landfill)
M134 Deepwell/underground injection
M135 Direct discharge to sewer/POTW
M136 Direct discharge to surface water under NPDES
M137 Other disposal
Transfer Facility Storage
M141 Transfer facility storage--waste was shipped off site without
any on-site treatment, disposal, or recycling activity
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
20. The authority citation for part 263 is revised to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
21-23. Section 263.20 is amended by revising paragraphs (a) through
(g) and adding paragraph (i) to read as follows:
Sec. 263.20 The manifest system.
(a)(1) Manifest Requirement. A transporter may not accept hazardous
waste from a generator unless the transporter is also provided with a
manifest signed in accordance with the requirements of Sec. 262.23, or,
for electronic manifests, the requirements of 40 CFR 262.24 and 262.25.
(2) Exports. In the case of exports other than those subject to
subpart H of 40 CFR part 262, a transporter may not accept such waste
from a primary exporter or other person if he knows the shipment does
not conform to the EPA Acknowledgment of Consent; and unless, in
addition to a manifest signed by the generator as provided in this
section, the transporter shall also be provided with an EPA
Acknowledgment of Consent which, except for shipments by rail, is
attached to the manifest (or shipping paper for shipments using an
electronic manifest or for exports by water (bulk shipment)). For
exports of hazardous waste subject to the requirements of subpart H of
40 CFR part 262, a transporter may not accept hazardous waste without a
tracking document that includes all information required by 40 CFR
262.84.
(b)(1) Transporter signature requirement when paper manifest
supplied. Before transporting the hazardous waste, the transporter must
sign by hand and date the manifest acknowledging acceptance of the
hazardous waste from the generator. Before leaving the generator's
property, the transporter must return a signed paper copy of the
manifest to the generator.
(2) Transporter signature requirement when electronic manifest
supplied.--(i) Transporters participating in electronic manifest
systems. Before transporting the hazardous waste, a transporter
participating with the generator in an electronic manifest system must
sign electronically and date the manifest acknowledging acceptance of
the hazardous waste from the generator, using an electronic signature
in accordance with the provisions of Sec. 262.25 of this chapter.
Before leaving the generator's property, the transporter must return a
signed electronic copy of the manifest to the generator.
(ii) Transporters unable to participate in electronic systems. If
the generator participates in an electronic manifest system, but the
transporter is not able to accept or sign electronic manifests, then
the transporter must acknowledge acceptance of the hazardous waste from
the generator by signing by-hand and dating a paper copy of the
manifest or other shipping paper under 49 CFR part 172, subpart C.
Before leaving the generator's property, the transporter must return a
copy of this signed manifest or other shipping paper to the generator.
(iii) Transporter signing electronic manifest on behalf of
generator. If a transporter acts as an authorized preparer of a
generator's manifest and signs the generator's certification on behalf
of the generator as provided under Sec. 262.24(b) of this chapter, the
transporter must, before transporting the hazardous waste, sign
electronically and date the manifest acknowledging acceptance of the
hazardous waste from the generator. The transporter must return a
signed electronic copy to the generator before leaving the generator's
property. If the generator is not able to accept an electronic copy
from the transporter, the transporter must provide the generator with a
signed paper copy of the manifest or other shipping paper, with a
notation in the generator's certification block indicating that the
manifest was signed electronically on behalf of the generator.
(c)(1) For shipments tracked with a paper manifest, the transporter
must ensure that the manifest accompanies the hazardous waste shipment
and is readily available to, and recognized by, authorities in the
event of accident or inspection.
(2) For shipments tracked with an electronic manifest, the
transporter must ensure that the electronic manifest is transmitted to
the next transporter or to the designated facility prior to or at the
time of the delivery of the shipment. In addition, the transporter must
ensure that a paper copy of the manifest or other shipping paper as
defined under 49 CFR part 172, subpart C accompanies the shipment, and
is readily available to, and recognized by, authorities in the event of
inspection or accident.
(3) In the case of exports, the transporter must ensure that a copy
of the EPA Acknowledgment of Consent also accompanies the waste.
[[Page 28311]]
(d)(1) Transporter delivery of waste for shipments covered by paper
manifest. A transporter who delivers a hazardous waste covered by a
paper manifest to another transporter or to the designated facility
must:
(i) Obtain the date of delivery and the handwritten signature of
that transporter or of the owner or operator of the designated facility
on the manifest;
(ii) Retain one copy of the manifest in accordance with
Sec. 263.22; and
(iii) Give the remaining paper copies of the manifest to the
accepting transporter or designated facility.
(2) Transporter delivery of waste for shipments covered by
electronic manifest. A transporter who delivers a hazardous waste
covered by an electronic manifest to another transporter or to the
designated facility must:
(i) If the delivering transporter participates in the electronic
manifest system:
(A) Obtain the date of delivery and the electronic signature of
that transporter or of the owner or operator of the designated facility
on the manifest;
(B) Retain an electronic copy of the manifest in accordance with
Sec. 263.22; and
(C) Transmit the electronic manifest to the accepting transporter
or designated facility.
(ii) If the delivering transporter does not participate in the
electronic system on which the manifest has been transmitted to the
accepting transporter or designated facility:
(A) Obtain the date of delivery and the handwritten signature of
the accepting transporter or the owner or operator of the designated
facility, on a paper copy of the manifest or other shipping paper under
49 CFR part 272, subpart C, and which bears the manifest tracking
number assigned to the shipment by the electronic system; and
(B) Retain this signed copy of the manifest or other shipping paper
in accordance with Sec. 263.22.
(e) For shipments involving water (bulk shipment) transportation,
the requirements of paragraphs (c), (d), and (f) of this section do not
apply if:
(1) The hazardous waste is delivered by water (bulk shipment) to
the designated facility;
(2) A shipping paper containing all the information required on the
manifest (excluding the EPA Identification numbers, generator
certification, and signatures) and, for exports, and EPA Acknowledgment
of Consent accompanies the hazardous waste;
(3) The person delivering the hazardous waste to the initial water
(bulk shipment) transporter obtains the date of delivery and signature
of the water (bulk shipment) transporter on a paper or electronic
manifest and forwards it to the designated facility;
(4) The delivering water transporter obtains the date of delivery
and handwritten signature of the owner or operator of the designated
facility on either a paper copy of the manifest or on the shipping
paper; and
(5) A copy of the shipping paper or manifest is retained by each
water (bulk shipment) transporter in accordance with Sec. 263.22.
(f) For shipments involving rail transportation, the requirements
of paragraphs (c), (d), and (e) of this section do not apply, and the
following requirements do apply:
(1) When accepting hazardous waste from a non-rail transporter, the
initial rail transporter must:
(i) Sign (by-hand or with an electronic signature) and date the
manifest acknowledging acceptance of the hazardous waste;
(ii) Return or transmit a signed copy of the manifest to the non-
rail transporter;
(iii) Forward at least three paper copies or an electronic copy of
the manifest to:
(A) The next non-rail transporter, if any; or
(B) The designated facility, if the shipment is delivered to that
facility by rail; or
(C) The last rail transporter designated to handle the waste in the
United States; and
(iv) Retain one copy of the manifest and rail shipping paper in
accordance with Sec. 263.22.
(2) Rail transporters must ensure that a shipping paper containing
all the information required on the manifest (excluding the EPA
identification numbers, generator certification, and signatures) and,
for exports, an EPA acknowledgment of Consent accompanies the hazardous
waste at all times.
(3)(i) When delivering hazardous waste covered by a paper manifest
to the designated facility, a rail transporter must:
(A) Obtain the date of delivery and the handwritten signature of
the owner or operator of the designated facility on the manifest, or a
handwritten signature on the shipping paper (if the manifest has not
been received by the facility); and
(B) Retain a copy of the manifest or signed shipping paper in
accordance with Sec. 263.22.
(ii) When delivering hazardous waste covered by an electronic
manifest to the designated facility, a rail transporter participating
in the electronic manifest system must:
(A) Obtain the date of delivery and the electronic signature of the
owner or operator of the designated facility on the manifest; and
(B) Retain an electronic copy of the signed manifest in accordance
with Sec. 263.22.
(iii) When delivering hazardous waste covered by an electronic
manifest to the designated facility, a rail transporter not
participating in the electronic manifest system must:
(A) Obtain the date of delivery and handwritten signature of the
owner or operator of the designated facility on a paper copy of the
manifest or shipping paper, which must bear the manifest tracking
number assigned to the shipment by the electronic system; and
(B) Retain a copy of the signed manifest or shipping paper in
accordance with Sec. 263.22.
(4)(i) When delivering hazardous waste covered by a paper manifest
to a non-rail transporter, a rail transporter must:
(A) Obtain the date of delivery and the handwritten signature of
the next non-rail transporter on the manifest; and
(B) Retain a paper copy of the manifest in accordance with
Sec. 263.22.
(ii) When delivering hazardous waste covered by an electronic
manifest to a non-rail transporter, a rail transporter participating in
the electronic manifest system must:
(A) Obtain the date of delivery and the electronic signature of the
next non-rail transporter on the electronic manifest; and
(B) Retain an electronic copy of the signed manifest in accordance
with Sec. 263.22.
(iii) When delivering hazardous waste covered by an electronic
manifest to a non-rail transporter, a rail transporter not
participating in the electronic manifest system must:
(A) Obtain the date of delivery and handwritten signature of the
next non-rail transporter on a paper copy of the manifest or shipping
paper, which must bear the manifest tracking number assigned to the
shipment by the electronic system; and
(B) Retain a copy of the signed manifest or shipping paper in
accordance with Sec. 263.22.
(5) Before accepting hazardous waste from a rail transporter, a
non-rail transporter must sign (by hand or with an electronic
signature) and date the manifest and provide a copy to the rail
transporter.
[[Page 28312]]
(g) Transporters who transport hazardous waste out of the United
States must:
(1) Sign and date the manifest in the International Shipments block
to indicate the date that the shipment left the United States;
(2) Retain one copy in accordance with Sec. 263.22(d);
(3) Return a signed copy of the manifest to the generator; and
(4) Give a copy of the manifest to a U.S. Customs official at the
point of departure from the United States.
* * * * *
(i) Transporters who transport hazardous waste into the United
States must give a copy of the manifest to a U.S. Customs official at
the point of entry into the United States.
24. Section 263.21 is amended by revising paragraph (b) to read as
follows:
Sec. 263.21 Compliance with the manifest.
* * * * *
(b)(1) If the hazardous waste cannot be delivered in accordance
with paragraph (a) of this section because of an emergency condition
other than rejection of the waste by the designated facility, then the
transporter must contact the generator for further directions and must
revise the manifest according to the generator's instructions.
(2) If hazardous waste is rejected by the designated facility
listed on the manifest while the transporter is there, then the
transporter must obtain the date of rejection and signature of the
owner or operator of the designated facility on the manifest, retain
one copy of the manifest in accordance with Sec. 263.22, and give the
remaining copies of the manifest to the rejecting designated facility.
When the transporter is taking back a full or partial shipment, that
load must be accompanied by a new manifest.
25. Section 263.22 is amended by revising paragraph (a), and by
adding new paragraphs (f) and (g) to read as follows:
Sec. 263.22 Recordkeeping.
(a)(1) A transporter of hazardous waste must keep a copy of each
paper or electronic manifest signed by the generator, himself, and the
next designated transporter or the owner or operator of the designated
facility for a period of three years from the date the hazardous waste
was accepted by the initial transporter.
(2) For shipments covered by an electronic manifest, if a provision
of this subpart authorizes a transporter to obtain, in lieu of a signed
electronic copy of the manifest, a hand-signed paper copy of the
manifest or other shipping paper under 49 CFR part 172, subpart C, the
transporter must keep a copy of each such manifest or shipping paper
for a period of three years from the date the hazardous waste was
accepted by the initial transporter.
* * * * *
(f) Transmission log. Each transporter who operates an electronic
manifest system and transmits or receives electronic manifests must
maintain a transmission log covering all electronic manifests sent or
received. This log must include for each manifest transmission sent or
received, the date, time, and destination/source. The transmission log
must also document who had access to the transporter's sending or
receiving system during the creation, transmission, or receipt of data.
The transmission log covering each calendar year's transmissions must
be maintained without modification and retained with the transporter's
manifest records for a period of three years from their creation.
(g) Third-party storage of electronic manifest records. (1)
Electronic manifest records may be stored by a networking service,
record archiving service, or other commercial vendor of electronic
record storage services provided that such records are maintained in a
system that complies with the requirements of Sec. 262.26 of this
chapter, including the requirement for reasonable inspector access to
records during their retention period, and the requirement for
validation of the third-party system's operation by a qualified,
independent information systems security professional.
(2) A transporter who uses a third-party vendor of electronic
record storage services to meet their record retention requirements
remains responsible for the proper performance of their record
retention requirements, including the requirement to provide reasonable
inspector access during the entire record retention period.
26. Subpart B is amended by adding new Sec. 263.23 to read as
follows:
Sec. 263.23 Electronic manifest systems.
(a) If a transporter of hazardous waste participates in an
electronic manifest system, the electronic system used by the
transporter to originate, use, sign, transmit, or store electronic
manifests shall be designed and operated in accordance with the
electronic format standards described in 40 CFR 262.20(a)(3), the
electronic signature standards in 40 CFR 262.25, and the system
controls and computer security requirements described in 40 CFR 262.26.
(b) Except where a provision of this part specifically requires a
paper copy of a manifest or a handwritten signature, manifest copies
which are electronically signed in accordance with 40 CFR 262.25 and
which are originated, transmitted, or maintained by electronic systems
that comply with paragraph (a) of this section, will be considered the
legal equivalent to paper manifest copies bearing handwritten
signatures.
(c) All computer systems (hardware and software), controls, and
related documentation maintained under this section, shall be readily
available for, and subject to inspection by any EPA or authorized state
inspector.
(d) Receipt. An electronic manifest is deemed to have been properly
received by the recipient when it is accessible to the recipient in a
format that can be read by the recipient. If a recipient receives a
manifest record for which there is evidence that the data has been
corrupted (e.g., garbled text, or hash functions or checksums that do
not calculate correctly), the recipient must request that the sender
re-transmit a corrected version of the record.
(e) Acknowledgment of receipt. When an electronic manifest
transmission is received, the recipient must promptly generate and
transmit to the sender an acknowledgment that confirms the receipt of
data that can be translated by the recipient's system.
(f) Date of receipt. The acknowledgment generated by the recipient
to confirm the receipt of translatable data will constitute conclusive
evidence of receipt of the electronic manifest and will establish the
date of receipt. An electronic transmission will not be considered
complete until the sender receives the acknowledgment of receipt.
(g) Retransmission. If a positive acknowledgment is not received
within 12 hours of a transmission, then the person who initiated the
transmission must promptly re-transmit the electronic manifest.
(h) Inability to transmit. No person will be excused from the
requirement to initiate or use a manifest because of a foreseeable or
unforeseeable system failure that prevents the transmission of a valid
electronic manifest. If a person is unable to initiate or transmit a
valid manifest electronically, it must use the paper manifest required
to be used in accordance with 40 CFR 262.20(a)(2) and 40 CFR 263.20.
[[Page 28313]]
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
27. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
Subpart E--Manifest System, Recordkeeping, and Reporting
28-29. Section 264.71 is amended by revising paragraphs (a) and
(b)(4) and adding paragraph (e) to read as follows:
Sec. 264.71 Use of manifest system.
(a)(1) If a facility receives hazardous waste with a manifest, the
owner or operator, or his agent, must sign and date the manifest, as
indicated in paragraphs (a)(2), (3), or (4) of this section to certify
that the hazardous waste covered by the manifest was received, that the
hazardous waste was received except as noted in the discrepancy space
of the manifest, or that the hazardous waste was fully rejected as
noted in the manifest discrepancy space.
(2) If a facility receives a hazardous waste shipment accompanied
by a paper manifest, the owner or operator, or his agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in Sec. 264.72(a)) on each
copy of the manifest;
(iii) Immediately give the transporter at least one paper copy of
the manifest;
(iv) Within 30 days of delivery, send a copy of the paper manifest
to the generator; and
(v) Retain at the facility a paper copy of each manifest for at
least three years from the date of delivery.
(3) If a facility receives a hazardous waste shipment covered by an
electronic manifest, and the generator, transporter, and facility all
participate in the electronic manifest system, the owner or operator,
or his agent, must:
(i) Electronically sign and date the manifest, using an electronic
signature in accordance with the provisions of 40 CFR 262.25, to
certify that the hazardous waste covered by the manifest was received;
(ii) Note any discrepancies (as defined in Sec. 264.72(a)) on the
electronic manifest;
(iii) Immediately provide the transporter with one electronic copy
of the signed manifest;
(iv) Immediately send an electronic copy of the signed manifest to
the generator; and
(v) Retain at the facility an electronic copy of each manifest for
at least three years from the date of delivery.
(4) If an owner or operator participates with a generator in an
electronic manifest system, but receives a hazardous waste shipment
from a transporter that does not participate in the electronic system,
the owner or operator must:
(i) Hand-sign and date a paper copy of the manifest (or other
shipping paper under 49 CFR part 172, subpart C) provided by the
delivering transporter, and immediately give the transporter the copy
of the hand-signed manifest or shipping paper;
(ii) Electronically sign (using an electronic signature in
accordance with Sec. 262.25) and date the electronic manifest covering
the shipment that was forwarded to the facility by the generator, to
certify that the hazardous waste covered by the manifest was received;
(iii) Note any significant discrepancies in the manifest (as
defined in Sec. 264.72(a)) on the electronic manifest;
(iv) Immediately return the electronically signed electronic copy
of the manifest to the generator; and
(v) Retain at the facility an electronic copy the manifest for at
least three years from the date of delivery.
(b) * * *
(4) Within 30 days after the delivery, send a copy of the signed
and dated manifest or shipping paper (if the manifest has not been
received within 30 days after delivery) to the generator. However, if
the generator and the facility participate in an electronic manifest
system, the owner or operator, or his agent, shall electronically sign
and date (and note any discrepancies) the electronic manifest provided
by the generator, and immediately send the signed electronic copy to
the generator in lieu of a paper copy.
* * * * *
(e) A facility must contact the consignment state to determine
whether that state requires facilities to enter optional state
information on the manifest. Facilities must also contact the
consignment state to determine whether they are required to submit a
copy of the manifest to the state.
30. Section 264.72 is revised to read as follows:
Sec. 264.72 Manifest discrepancies.
(a) Manifest discrepancies are: Significant differences (as defined
by paragraph (b) of this section) between the quantity or type of
hazardous waste designated on the manifest or shipping paper, and the
quantity and type of hazardous waste a facility actually receives;
Rejected wastes, which may be a full or partial shipment of hazardous
waste that the TSDF cannot accept; or Container residues, which are
residues that exceed the quantity limits for ``empty'' containers set
forth in 40 CFR 261.7(b).
(b) Significant differences in quantity are: For bulk waste,
variations greater than 10 percent in weight; and for batch waste, any
variation in piece count, such as a discrepancy of one drum in a
truckload. Significant differences in type are obvious differences
which can be discovered by inspection or waste analysis, such as waste
solvent substituted for waste acid, or toxic constituents not reported
on the manifest or shipping paper.
(c) Upon discovering a significant difference in quantity or type,
the owner or operator must attempt to reconcile the discrepancy with
the waste generator or transporter (e.g., with telephone
conversations). If the discrepancy is not resolved within 15 days after
receiving the waste, the owner or operator must immediately submit to
the Regional Administrator a letter describing the discrepancy and
attempts to reconcile it, and a copy of the manifest or shipping paper
at issue.
(d)(1) Upon rejecting waste or identifying a container residue that
exceeds the quantity limits for ``empty'' containers set forth in 40
CFR 261.7(b), the facility must contact the generator to obtain the
generator's instructions for forwarding the waste to another facility
that can manage the waste. The facility must send the waste according
to the generator's instructions. If it is impossible to locate in a
timely manner an alternative facility that can promptly receive the
waste, the facility may, with permission of the generator, return the
rejected waste or residue to the generator.
(2) While the facility is making arrangements for forwarding
rejected wastes or residues to another facility under this section, it
must ensure that either the delivering transporter retains custody of
the waste, or, the facility must provide for secure, temporary custody
of the waste pending delivery of the waste to the first transporter
designated on the new manifest prepared under paragraph (e) or (f) of
this section.
(e) For rejected loads and residues that are to be sent off-site to
an alternate facility, the facility is required to prepare a new
manifest in accordance with Sec. 262.20(a) of this chapter and the
following instructions:
(1) Write the generator's name, address and U.S. EPA ID number in
the
[[Page 28314]]
generator's name and mailing address box (Items 1 and 4) of a new
manifest.
(2) Write the name of the alternate designated facility and the
facility's U.S. EPA ID number in the designated facility block (Item 9)
of a new manifest.
(3) Copy the manifest tracking number found in Block A or Item 3 of
the old manifest to the Special Handling and Additional Information
Block of the new manifest, and indicate that the shipment is a residue
or rejected waste from the previous shipment,
(4) Copy the manifest tracking number found in Item 3 of the new
manifest to the manifest reference number line in the Discrepancy Block
of the old manifest (Item 20) of this chapter.
(5) Write the DOT description for the rejected load or the residue
in the Item 10 (U.S. DOT Description) of the new manifest and write the
container types, quantity, and volume(s) of waste.
(6) Sign the Generator's Certification to certify, as the offeror
of the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation.
(f) For rejected wastes and residues that must be sent back to the
generator, the facility is required to prepare a new manifest in
accordance with Sec. 262.20(a) of this chapter and the following
instructions:
(1) Write the facility's name, address and U.S. EPA ID number in
the generator's name and mailing address box (Items 1 and 4) of a new
manifest.
(2) Write the name of the initial generator and the generator's
U.S. EPA ID number in the designated facility block (Item 9) of the new
manifest.
(3) Copy the manifest tracking number found in Block A or Item 3 of
the old manifest to the Special Handling and Additional Information
Block of the new manifest, and indicate that the shipment is a residue
or rejected waste from the previous shipment,
(4) Copy the manifest tracking number found in Item 3 of the new
manifest to the manifest reference number line in the Discrepancy Block
of the old manifest (Item 20),
(5) Write the DOT description for the rejected load or the residue
in the Item 10 (U.S. DOT Description) of the new manifest and write the
container types, quantity, and volume(s) of waste.
(6) Sign the Generator's Certification to certify, as offeror of
the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation,
(g) If a facility rejects a waste or identifies a container residue
that exceeds the quantity limits for ``empty'' containers set forth in
40 CFR 261.7(b) after it has already signed a manifest or shipping
paper to certify to the receipt of the materials under 40 CFR 264.71(a)
or (b), the facility must amend its copy of the manifest to indicate
the rejected wastes or residues in the discrepancy space of the amended
manifest. The facility must also copy the manifest tracking number from
Item 3 of the new manifest to the discrepancy space of the amended
manifest, and must re-sign and date the manifest to certify to the
information as amended. The facility must retain the amended manifest
for at least three years from the date of amendment, and must within 30
days, send a copy of the amended manifest to the delivering transporter
and to the generator.
31. Section 264.76 is revised to read as follows:
Sec. 264.76 Unmanifested waste report.
(a) If a facility accepts for treatment, storage, or disposal any
hazardous waste from an off-site source without an accompanying
manifest, or without an accompanying shipping paper as described by
Sec. 263.20(e) of this chapter, and if the waste is not excluded from
the manifest requirement by this chapter, then the owner or operator
must prepare and submit a letter to the Regional Administrator within
fifteen days after receiving the waste. The unmanifested waste report
must contain the following information:
(1) The EPA identification number, name and address of the
facility;
(2) The date the facility received the waste;
(3) The EPA identification number, name and address of the
generator and the transporter, if available;
(4) A description and the quantity of each unmanifested hazardous
waste the facility received;
(5) The method of treatment, storage, or disposal for each
hazardous waste;
(6) The certification signed by the owner or operator of the
facility or his authorized representative; and
(7) A brief explanation of why the waste was unmanifested, if
known.
(b) [Reserved]
32. Subpart E is amended by adding new Sec. 264.78 to read as
follows:
Sec. 264.78 Electronic manifest systems.
(a) If an owner or operator of a facility that treats, stores, or
disposes of hazardous waste participates in an electronic manifest
system, the electronic system used by the owner or operator to
originate, use, sign, transmit, or store electronic manifests must be
designed and operated in accordance with the electronic format
standards described in 40 CFR 262.20(a)(3), the electronic signature
standards in 40 CFR 262.25, and the system controls and computer
security requirements described in 40 CFR 262.26.
(b) Except where a provision of this part specifically requires a
paper copy of a manifest or a handwritten signature, manifest copies
which are electronically signed in accordance with the provisions on
electronic manifest signatures in 40 CFR 262.25, and which are
originated, transmitted, or maintained by electronic systems that
comply with paragraph (a) of this section, will be considered the legal
equivalent to paper manifest copies bearing handwritten signatures.
(c) Electronic manifest copies as well as any computer systems
(hardware and software), controls, and related documentation maintained
under this section, must be readily available for, and subject to
inspection by any EPA or authorized state inspector.
(d) Transmission log. An owner or operator of a facility which
transmits or receives electronic manifests must maintain a transmission
log covering all electronic manifests sent or received. This log must
include for each manifest transmission sent or received, the date,
time, and destination/source identity. The transmission log must also
identify who had access to the facility's system during the creation,
transmission, or receipt of data. This transmission log must be
maintained without modification and retained for 3 years among the
facility's manifest records.
(e) Third-party storage of electronic manifest records. (1)
Electronic manifest records may be stored by a networking service,
record archiving service, or other commercial vendor of electronic
record storage services provided that such records are maintained in a
system that complies with the requirements of 40 CFR 262.26, including
the requirement for reasonable inspector access to records during their
retention period, and the requirement for validation of the third-party
system's operation by a qualified, independent information systems
security professional.
(2) A facility owner or operator who uses a third-party vendor of
electronic record storage services to meet their record retention
requirements remains responsible for the proper performance of their
record retention requirements, including the requirement to provide
reasonable inspector access during the entire record retention period.
(f) Receipt. An electronic manifest is deemed to have been received
by the recipient when it is accessible to the recipient in a format
that can be read by the recipient. If a recipient receives a manifest
record for which there is
[[Page 28315]]
evidence that the data has been corrupted (e.g., garbled text, or hash
functions or checksums that do not calculate correctly), the recipient
must request that the sender re-transmit a corrected version of the
record.
(g) Acknowledgment of receipt. When an electronic manifest
transmission is received, the recipient must promptly generate and
transmit to the sender an acknowledgment that confirms the receipt of
data that can be translated by the recipient's system.
(h) Date of receipt. The acknowledgment generated by the recipient
to confirm the receipt of translatable data will constitute conclusive
evidence of receipt of the electronic manifest and will establish the
date of receipt. An electronic transmission will not be considered
complete until the sender receives the acknowledgment of receipt.
(i) Retransmission. If a positive acknowledgment is not received
within 12 hours of a transmission, then the person who initiated the
transmission must promptly re-transmit the electronic manifest.
(j) Inability to transmit. No person will be excused from the
requirement to initiate or use a manifest because of a foreseeable or
unforeseeable system failure that prevents the transmission of a valid
electronic manifest. If a person is unable to initiate or transmit a
valid manifest electronically, it must use the paper manifest required
to be used in accordance with Sec. 262.20(a)(2) and Sec. 263.20 of this
chapter.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
33. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912(a), 6922, 6923, 6924,
6925, 6935, 6936, and 6937, unless otherwise noted.
Subpart E--MANIFEST SYSTEM, RECORDKEEPING, AND REPORTING
34-35. Section 265.71 is amended by revising paragraphs (a) and
(b)(4) and adding paragraph (e) to read as follows:
Sec. 265.71 Use of manifest system.
(a)(1) If a facility receives hazardous waste with a manifest, the
owner or operator, or his agent, must sign and date the manifest, as
indicated in paragraphs (a)(2), (3), or (4) of this section to certify
that the hazardous waste covered by the manifest was received, that the
hazardous waste was received except as noted in the discrepancy space
of the manifest, or that the hazardous waste was fully rejected as
noted in the manifest discrepancy space.
(2) If a facility receives a hazardous waste shipment accompanied
by a paper manifest, the owner or operator, or his agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in Sec. 265.72(a)) on each
copy of the manifest;
(iii) Immediately give the transporter at least one paper copy of
the manifest;
(iv) Within 30 days of delivery, send a copy of the paper manifest
to the generator; and
(v) Retain at the facility a paper copy of each manifest for at
least three years from the date of delivery.
(3) If a facility receives a hazardous waste shipment covered by an
electronic manifest, and the generator, transporter, and facility all
participate in the electronic manifest system, the owner or operator,
or his agent, must:
(i) Electronically sign and date the manifest, using an electronic
signature in accordance with the provisions of 40 CFR 262.25, to
certify that the hazardous waste covered by the manifest was received;
(ii) Note any discrepancies (as defined in Sec. 265.72(a)) on the
electronic manifest;
(iii) Immediately provide the transporter with one electronic copy
of the signed manifest;
(iv) Immediately send an electronic copy of the signed manifest to
the generator; and
(v) Retain at the facility an electronic copy of each manifest for
at least three years from the date of delivery.
(4) If an owner or operator participates with a generator in an
electronic manifest system, but receives a hazardous waste shipment
from a transporter that does not participate in the electronic system,
the owner or operator must:
(i) Hand-sign and date a paper copy of the manifest (or other
shipping paper under 49 CFR part 172, subpart C) provided by the
delivering transporter, and immediately give the transporter the copy
of the hand-signed manifest or shipping paper;
(ii) Electronically sign (using an electronic signature in
accordance with Sec. 262.25) and date the electronic manifest covering
the shipment that was forwarded to the facility by the generator, to
certify that the hazardous waste covered by the manifest was received;
(iii) Note any significant discrepancies in the manifest (as
defined in Sec. 265.72(a)) on the electronic manifest;
(iv) Immediately return the electronically signed electronic copy
of the manifest to the generator; and
(v) Retain at the facility an electronic copy the manifest for at
least three years from the date of delivery.
(b) * * *
(4) Within 30 days after the delivery, send a copy of the signed
and dated manifest or shipping paper (if the manifest has not been
received within 30 days after delivery) to the generator. However, if
the generator and the facility participate in an electronic manifest
system, the owner or operator, or his agent, shall electronically sign
and date (and note any discrepancies) the electronic manifest provided
by the generator, and immediately send the signed electronic copy to
the generator in lieu of a paper copy.
* * * * *
(e) A facility must contact the consignment state to determine
whether that state requires facilities to enter optional state
information on the manifest. Facilities must also contact the
consignment state to determine whether they are required to submit a
copy of the manifest to the state.
36. Section 265.72 is revised to read as follows:
Sec. 265.72 Manifest discrepancies.
(a) Manifest discrepancies are: Significant differences (as defined
by paragraph (b) of this section) between the quantity or type of
hazardous waste designated on the manifest or shipping paper, and the
quantity and type of hazardous waste a facility actually receives;
Rejected wastes, which may be a full or partial shipment of hazardous
waste that the TSDF cannot accept; or Container residues, which are
residues that exceed the quantity limits for ``empty'' containers set
forth in 40 CFR 261.7(b).
(b) Significant differences in quantity are: For bulk waste,
variations greater than 10 percent in weight; and for batch waste, any
variation in piece count, such as a discrepancy of one drum in a
truckload. Significant differences in type are obvious differences
which can be discovered by inspection or waste analysis, such as waste
solvent substituted for waste acid, or toxic constituents not reported
on the manifest or shipping paper.
(c) Upon discovering a significant difference in quantity or type,
the owner or operator must attempt to reconcile the discrepancy with
the waste generator or transporter (e.g., with telephone
conversations). If the discrepancy is not resolved within 15
[[Page 28316]]
days after receiving the waste, the owner or operator must immediately
submit to the Regional Administrator a letter describing the
discrepancy and attempts to reconcile it, and a copy of the manifest or
shipping paper at issue.
(d)(1) Upon rejecting waste or identifying a container residue that
exceeds the quantity limits for ``empty'' containers set forth in 40
CFR 261.7(b), the facility must contact the generator to obtain the
generator's instructions for forwarding the waste to another facility
that can manage the waste. The facility must send the waste according
to the generator's instructions. If it is impossible to locate in a
timely manner an alternative facility that can promptly receive the
waste, the facility may, with permission of the generator, return the
rejected waste or residue to the generator.
(2) While the facility is making arrangements for forwarding
rejected wastes or residues to another facility under this section, it
must ensure that either the delivering transporter retains custody of
the waste, or, the facility must provide for secure, temporary custody
of the waste pending delivery of the waste to the first transporter
designated on the new manifest prepared under paragraph (e) or (f) of
this section.
(e) For rejected loads and residues that are to be sent off-site to
an alternate facility, the facility is required to prepare a new
manifest in accordance with Sec. 262.20(a) of this chapter and the
following instructions:
(1) Write the generator's name, address and U.S. EPA ID number in
the generator's name and mailing address box (Items 1 and 4) of a new
manifest.
(2) Write the name of the alternate designated facility and the
facility's U.S. EPA ID number in the designated facility block (Item 9)
of a new manifest.
(3) Copy the manifest tracking number found in Block A or Item 3 of
the old manifest to the Special Handling and Additional Information
Block of the new manifest, and indicate that the shipment is a residue
or rejected waste from the previous shipment,
(4) Copy the manifest tracking number found in Item 3 of the new
manifest to the manifest reference number line in the Discrepancy Block
of the old manifest (Item 20) of this chapter.
(5) Write the DOT description for the rejected load or the residue
in the Item 10 (U.S. DOT Description) of the new manifest and write the
container types, quantity, and volume(s) of waste.
(6) Sign the Generator's Certification to certify, as the offeror
of the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation.
(f) For rejected wastes and residues that must be sent back to the
generator, the facility is required to prepare a new manifest in
accordance with Sec. 262.20(a) of this chapter and the following
instructions:
(1) Write the facility's name, address and U.S. EPA ID number in
the generator's name and mailing address box (Items 1 and 4) of a new
manifest.
(2) Write the name of the initial generator and the generator's
U.S. EPA ID number in the designated facility block (Item 9) of the new
manifest.
(3) Copy the manifest tracking number found in Block A or Item 3 of
the old manifest to the Special Handling and Additional Information
Block of the new manifest, and indicate that the shipment is a residue
or rejected waste from the previous shipment,
(4) Copy the manifest tracking number found in Item 3 of the new
manifest to the manifest reference number line in the Discrepancy Block
of the old manifest (Item 20),
(5) Write the DOT description for the rejected load or the residue
in the Item 10 (U.S. DOT Description) of the new manifest and write the
container types, quantity, and volume(s) of waste.
(6) Sign the Generator's Certification to certify, as offeror of
the shipment, that the waste has been properly packaged, marked and
labeled and is in proper condition for transportation,
(g) If a facility rejects a waste or identifies a container residue
that exceeds the quantity limits for ``empty'' containers set forth in
40 CFR 261.7(b) after it has already signed a manifest or shipping
paper to certify to the receipt of the materials under 40 CFR 265.71(a)
or (b), the facility must amend its copy of the manifest to indicate
the rejected wastes or residues in the discrepancy space of the amended
manifest. The facility must also copy the manifest tracking number from
Item 3 of the new manifest to the discrepancy space of the amended
manifest, and must re-sign and date the manifest to certify to the
information as amended. The facility must retain the amended manifest
for at least three years from the date of amendment, and must within 30
days, send a copy of the amended manifest to the delivering transporter
and to the generator.
37. Section 265.76 is revised to read as follows:
Sec. 265.76 Unmanifested waste report.
(a) If a facility accepts for treatment, storage, or disposal any
hazardous waste from an off-site source without an accompanying
manifest, or without an accompanying shipping paper as described by
Sec. 263.20(e) of this chapter, and if the waste is not excluded from
the manifest requirement by this chapter, then the owner or operator
must prepare and submit a letter to the Regional Administrator within
fifteen days after receiving the waste. The unmanifested waste report
must contain the following information:
(1) The EPA identification number, name and address of the
facility;
(2) The date the facility received the waste;
(3) The EPA identification number, name and address of the
generator and the transporter, if available;
(4) A description and the quantity of each unmanifested hazardous
waste the facility received;
(5) The method of treatment, storage, or disposal for each
hazardous waste;
(6) The certification signed by the owner or operator of the
facility or his authorized representative; and
(7) A brief explanation of why the waste was unmanifested, if
known.
(b) [Reserved]
38. Subpart E is amended by adding new Sec. 265.78;
Sec. 265.78 Electronic manifest systems.
(a) If an owner or operator of a facility that treats, stores, or
disposes of hazardous waste participates in an electronic manifest
system, the electronic system used by the owner or operator to
originate, use, sign, transmit, or store electronic manifests must be
designed and operated in accordance with the electronic format
standards described in 40 CFR 262.20(a)(3), the electronic signature
standards in 40 CFR 262.25, and the system controls and computer
security requirements described in 40 CFR 262.26.
(b) Except where a provision of this Part specifically requires a
paper copy of a manifest or a handwritten signature, manifest copies
which are electronically signed in accordance with the provisions on
electronic manifest signatures in 40 CFR 262.25, and which are
originated, transmitted, or maintained by electronic systems that
comply with paragraph (a) of this section, will be considered the legal
equivalent to paper manifest copies bearing handwritten signatures.
(c) Electronic manifest copies as well as any computer systems
(hardware and software), controls, and related documentation maintained
under this section, must be readily available for, and subject to
inspection by any EPA or authorized state inspector.
(d) Transmission log. An owner or operator of a facility which
transmits or receives electronic manifests must
[[Page 28317]]
maintain a transmission log covering all electronic manifests sent or
received. This log must include for each manifest transmission sent or
received, the date, time, and destination/source identity. The
transmission log must also identify who had access to the facility's
system during the creation, transmission, or receipt of data. This
transmission log must be maintained without modification and retained
for 3 years among the facility's manifest records.
(e) Third-party storage of electronic manifest records. (1)
Electronic manifest records may be stored by a networking service,
record archiving service, or other commercial vendor of electronic
record storage services provided that such records are maintained in a
system that complies with the requirements of 40 CFR 262.26, including
the requirement for reasonable inspector access to records during their
retention period, and the requirement for validation of the third-party
system's operation by a qualified, independent information systems
security professional.
(2) A facility owner or operator who uses a third-party vendor of
electronic record storage services to meet their record retention
requirements remains responsible for the proper performance of their
record retention requirements, including the requirement to provide
reasonable inspector access during the entire record retention period.
(f) Receipt. An electronic manifest is deemed to have been received
by the recipient when it is accessible to the recipient in a format
that can be read by the recipient. If a recipient receives a manifest
record for which there is evidence that the data has been corrupted
(e.g., garbled text, or hash functions or checksums that do not
calculate correctly), the recipient must request that the sender re-
transmit a corrected version of the record.
(g) Acknowledgment of receipt. When an electronic manifest
transmission is received, the recipient must promptly generate and
transmit to the sender an acknowledgment that confirms the receipt of
data that can be translated by the recipient's system.
(h) Date of receipt. The acknowledgment generated by the recipient
to confirm the receipt of translatable data will constitute conclusive
evidence of receipt of the electronic manifest and will establish the
date of receipt. An electronic transmission will not be considered
complete until the sender receives the acknowledgment of receipt.
(i) Retransmission. If a positive acknowledgment is not received
within 12 hours of a transmission, then the person who initiated the
transmission must promptly re-transmit the electronic manifest.
(j) Inability to transmit. No person will be excused from the
requirement to initiate or use a manifest because of a foreseeable or
unforeseeable system failure that prevents the transmission of a valid
electronic manifest. If a person is unable to initiate or transmit a
valid manifest electronically, it must use the paper manifest required
to be used in accordance with Sec. 262.20(a)(2) and Sec. 263.20 of this
chapter.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
39. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
40. Section 271.1(j) is amended by adding the following entries to
Table 1 in chronological order by date of publication in the Federal
Register, to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
[Insert date of publication of final Waste Minimization [Insert FR page [Insert date of X
rule in the Federal Register (FR)]. Certification in the numbers]. months from date of
Revised Manifest Rule. publication of final
rule].
----------------------------------------------------------------------------------------------------------------
* * * * *
41. Section 271.10 is amended by revising paragraphs (f) and (h) to
read as follows:
Sec. 271.10 Requirements for generators of hazardous wastes.
* * * * *
(f) The State must require that all generators of hazardous waste
who transport (or offer for transport) such hazardous waste off-site:
(1) Use a manifest system that ensures that interstate and
intrastate shipments of hazardous waste are designated for delivery,
and, in the case of intrastate shipments, are delivered to facilities
that are authorized to operate under an approved State program or the
federal program.
(i) The manifest system must include, in the case of shipments
covered by a paper manifest, the use of the paper manifest format as
required by Sec. 262.20(a)(2), Sec. 262.21 and Sec. 262.23. No other
manifest form, shipping document, or information, other than that
required by federal law, may be required by the State to travel with
the shipment.
(ii) If the state chooses to allow electronic manifesting, then the
manifest system must include, in the case of shipments covered by an
electronic manifest, the use of the electronic manifest formats as
required by Sec. 262.20(a)(3), Sec. 262.21 and Sec. 262.24. No other
electronic manifest format or information, other than that required by
federal law, may be required by the state as a means to identify
electronically the quantity, composition, origin, routing, and
destination of a hazardous waste shipment during its transportation
from the point of generation to the point of storage, treatment, or
disposal.
(iii) If the state chooses to allow electronic manifesting, then
the manifest system must also include the electronic signature
requirements in Sec. 262.25 and the electronic manifest systems and
security provisions in Sec. 262.26.
(2) Initiate the manifest and designate on the manifest the
storage, treatment, or disposal facility to which the waste is to be
shipped.
(3) Ensure that all wastes offered for transportation are
accompanied by a paper manifest, except:
(i) Shipments subject to Sec. 262.20(e) or (f),
(ii) Shipments by rail or water that are covered by a paper
manifest, as specified in 40 CFR 262.23(c) and (d),
[[Page 28318]]
(iii) Shipments by rail or water that are covered by an electronic
manifest, as specified in 40 CFR 262.24(e) and (f), or
(iv) Shipments covered by an electronic manifest, as specified in
40 CFR 262.24(c).
* * * * *
(h) The State must follow the Federal manifest format for the form
and instructions (40 CFR 262.20 and Appendix 1) and may implement
certain optional fields to the limited extent described below.
(1) In addition to the federally required information, either the
State in which the generator is located or the State in which the
designated facility is located may require completion of the following
items:
(i) Waste codes (either federal or state codes associated with
particular wastes) (Block A), and/or
(ii) Biennial Report system type codes (codes associated with
particular waste treatment, or disposal methods) (Block B).
(iii) The additional waste code or Biennial Report system type code
information required by the State must fit within the space of Blocks A
and B on the form (and, if a continuation sheet is used, Blocks C and
D) using normal 12-point pitch. The additional information must be
required by state statute or regulation. The State may not require any
information that duplicates information required elsewhere on the form.
(2) A state may require additional waste descriptions associated
with the particular hazardous wastes listed on the Manifest to be
entered in Item 14. This information is limited to information such as
chemical names, constituent percentages, physical state, and waste
management method. A state may not require information other than
information as described in paragraphs (h)(1) and (2) of this section.
(3) No State may impose enforcement sanctions on a transporter
during transportation of the shipment for failure of the form to
include optional State information items.
(4) Either the State to which a shipment is manifested (consignment
State) or the State in which the generator is located (generator
State), or both, may require that copies of the manifest form be
submitted to the State.
(i) Unless otherwise provided in part 271, the state program shall
have standards for generators which are at least as stringent as any
amendment to 40 CFR Part 262 which is promulgated after July 1, 1984.
42. Section 271.11 is amended by revising paragraph (c) to read as
follows:
Sec. 271.11 Requirements for transporters of hazardous waste.
* * * * *
(c)(1) The State must require transporters to carry the manifest
during transport, except:
(i) In the case of shipments by rail or water, transporters may
carry a shipping paper, as specified in 40 CFR 263.20(e) and (f);
(ii) If the State chooses to allow electronic manifesting,
transporters must carry either a paper copy of the manifest, or other
shipping paper as specified in 40 CFR 263.20(b), (c), (d), and (f).
(2) The State must require the transporter to deliver waste only to
the facility designated on the manifest.
(3) The State program must provide requirements for shipments by
rail or water equivalent to those under 40 CFR 263.20(e) and (f).
(4) If the State chooses to allow electronic manifesting, the State
program must include requirements equivalent to those provisions
contained in 40 CFR 263.20(b), (c), (d), and
(f) which address transporters' use of the electronic manifest,
requirements equivalent to the provisions in 40 CFR 263.22(a), (f), and
(g) which address recordkeeping of electronic manifest records, and
requirements equivalent to those under 40 CFR 263.23 which address
electronic manifest systems.
(5) For exports of hazardous waste, the state must require the
transporter to refuse to accept hazardous waste for export if he knows
the shipment does not conform to the EPA Acknowledgment of Consent, to
carry an EPA Acknowledgment of Consent to the shipment, and to provide
a copy of the manifest to the U.S. Customs official at the point the
waste leaves the United States.
(6) For imports of hazardous waste, the State must require the
transporter to provide a copy of the manifest to the U.S. customs
official at the point the waste enters the United States.
* * * * *
43. Section 271.12 is amended by revising paragraph (i) to read as
follows:
Sec. 271.12 Requirements for hazardous waste management facilities.
* * * * *
(i) Compliance with the manifest system, including:
(1) The requirement that facility owners or operators return a
signed copy of the manifest to the generator to certify delivery of the
hazardous waste shipment or to identify discrepancies;
(2) If the State chooses to allow electronic manifesting,
requirements equivalent to those provisions in 40 CFR 264.71 addressing
the use of the electronic manifest, and requirements equivalent to
those in 40 CFR 264.78 addressing electronic manifest systems; and
* * * * *
[FR Doc. 01-11909 Filed 5-21-01; 8:45 am]
BILLING CODE 6560-50-P