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The Regulations of the e-Manifest System

The Regulations of the e-Manifest System

The e-Manifest System is designed and almost entirely – not quite, still waiting on another piece of legislation and regulation that will determine how to pay for it – created by EPA to replace the current paper-b0und system.  It’s run into a few snags, missed a few deadlines, and is currently scheduled for implementation in Spring of 2018.  But honestly, given the recent presidential election, the future of all pending legislation is uncertain.  Check out this simple infographic on the timeline of the e-Manifest System.

The purpose of this article is to identify and explain the new regulations created in order to implement the e-Manifest System.

In order to create an electronic system that can do all the things currently required of the Uniform Hazardous Waste Manifest (paper manifest) by both Federal and State regulations, the EPA had to create new regulations for each of the following in Title 40 of the Code of Federal Regulations (CFR):

  • Requirements for Authorization of State Hazardous Waste Programs at §271.
  • Standards Applicable to Generators of Hazardous Waste at §262.
  • Standards Applicable to Transporters of Hazardous Waste at §263.
  • Standards for Hazardous Waste Treatment, Storage and Disposal Facilities at §264.  And, the exact same regulations created for Hazardous Waste TSDFs Operating Under Interim Status at §265.
  • Hazardous Waste Management System: General at §260.

What’s missing from the above are the regulations necessary to create a fee structure for the e-Manifest System.  That’s right!  The EPA is still working out the details of a final rule to make changes to the regulations in order to collect fees from users of the e-Manifest System.  Likely, it will be those identified as the designated facility on the manifest who are then expected to pass the costs on to hazardous waste generators and transporters.  It will have to be some time in 2017 that the final rule is published in order to implement the system in time for the stated goal of Spring 2018.

Read:  Proposed Rule: User Fees for the E-Manifest System and Amendments to Manifest Regulations

Let’s take a look at the new regulations created thus far in order to implement EPA’s e-Manifest System.

40 CFR 271 Requirements for Authorization of State Hazardous Waste Programs

§271.3(b)(4), In order to ensure the e-Manifest system is implemented immediately and uniformly nationwide and to prevent states with an authorized hazardous waste program from creating more burdensome or contradictory requirements:

  • State must adhere to EPA regulations regarding the e-Manifest system.  It cannot administer and enforce its own regulations.
  • e-Manifest system will take affect at the same time in an authorized state as it does with EPA.
  • EPA regulations pertaining to the e-Manifest system will supersede those of any authorized state.
  • EPA will administer the e-Manifest system in authorized states until the state requests and receives approval from EPA to take over its administration.

Read:  State Authorization Under RCRA

§271.10(f)(1), To ensure  the use of the EPA’s e-Manifest system by the hazardous waste generators within a state:

  • State must require use of EPA’s manifest (paper or electronic format) by hazardous waste generators for transport of hazardous waste.
  • No other manifest form, electronic manifest format, shipping paper, or information other than that required by EPA may be required by the state.
  • Electronic signature used may only be the one required by EPA.

§271.10(f)(3), Identifies the situations where no manifest – including the electronic manifest – is required for transport of hazardous waste by a generator:

  • Shipments from a small quantity generator of hazardous waste subject to a contractual agreement per §262.20(f).
  • The transport of hazardous waste within or along the border of contiguous property under the control of the same person even if property is divided by a public or private right-of-way.
  • Shipments by rail or water as specified in §262.23(c) & (d).

§271.10(h), Format of and instructions for completing EPA’s e-Manifest system may not be changed by the state.

§271.11(c)(1), State must require the transporter to carry either the paper manifest or “one printed copy of the electronic manifest” during transport if using the e-Manifest System and if required by USDOT regulations.  There is an exception to this requirement in the case of transport by rail or vessel subject to shipping paper requirements at §263.20(e) and (f).

Note:  a reference to electronic manifests at §271.12(h) pre-dates the regulations of the e-Manifest system that are the subject of this article.  It was included in order to address the possibility that a State might implement an e-Manifest system before EPA did.

40 CFR 262 Standards Applicable to Generators of Hazardous WasteCorrect Management of Hazardous Waste Containers

§262.20(a)(3), Makes the use of an electronic manifest an acceptable alternative to the paper manifest provided the generator performs the following:

  • Submits the electronic manifest to the system maintained by EPA, i.e. the e-Manifest System.
  • Electronic manifest contains a valid electronic signature.
  • Generator complies with §262.24

§262.24(a), Establishes the e-Manifest as a legal equivalent of the paper manifest for use by a generator of hazardous waste:

  • Electronic signature on electronic manifest is acceptable in place of handwritten signature on paper manifest.
  • Requirement to transmit copies of the manifest to other persons – State or Federal – is satisfied by submission to the e-Manifest System.
  • Recordkeeping requirements are satisfied by submission to the e-Manifest System.  Copies must be readily available during an inspection.
  • Generator will not be held at fault if not able to produce copies of manifest during an inspection if fault is due solely to the e-Manifest System.

§262.24(b), Equipment used by the generator to access the e-Manifest System may be provided by the generator or brought to the site by the initial transporter.

§262.24(c), Generator may use electronic manifest only if known – not expected, but known – that all handlers of the hazardous waste – generator, transporter(s) and designated facility – are participating in the e-Manifest System.

§262.24(d), EPA requires the generator to provide the initial transporter with one printed copy of the  electronic manifest.  This is done in deference to the Hazardous Material Regulations of the US Department of Transportation (DOT) which requires a paper copy of a shipping paper be available during transportation.  Note: this is not the paper copy of the manifest, it is a printed copy of the electronic manifest.

§262.24(e), If e-Manifest System becomes unavailable prior to signature by initial transporter, generator must use and provide paper manifest.  Paper manifest must then be used throughout transportation.

§262.24(f), If the generator who prepared the electronic manifest is using an electronic signature method undergoing pilot or demonstration tests, then generator must sign in ink the “one printed copy of the electronic manifest” in addition to its electronic signature on the e-Manifest System.  Note:  except as required here and at §263.20(a)(7) regarding the transporter, the printed copy of the electronic manifest does not require a hand written signature.

§262.24(g), A generator who is a user of the e-Manifest System may be assessed a user fee by EPA.  The schedule of user fees will be published as an appendix to §262.  Note:  though EPA created an option to bill the generator for the use of the e-Manifest System, it is believed that this responsibility will be applied to the designated facility on the manifest.

§262.25, The electronic signature method to be chosen by EPA will be legally valid and enforceable.  It will be designed and implemented by EPA in a manner that is cost-effective and practical as possible for users of the manifest.

Like this article? Subscribe to my Monthly Newsletter. No marketing emails!40 CFR 263 Standards Applicable to Transporters of Hazardous Waste

§263.20(a)(1), Transporter may not accept hazardous waste for transportation without the paper manifest or electronic manifest that complies with §262.20(a)(3) and §262.25.

§263.20(a)(4), Establishes the electronic manifest as a legal equivalent to the paper manifest for use by a transporter of hazardous waste:

  • Electronic signature is acceptable in place of handwritten signature on paper manifest.
  • Requirement to transmit copies of manifest to other persons – State or Federal – are satisfied by submission to the e-Manifest System.
  • Requirement for manifest to accompany waste shipment during transportation met by submission to e-Manifest System.  DOT requirement for paper copy of shipping paper met by “one printed copy of electronic manifest”.  Note: this is not the paper copy of the manifest, it is a printed copy of the electronic manifest.
  • Recordkeeping requirements are satisfied by submission to the e-Manifest System.  Copies must be readily available during an inspection.
  • Transporter will not be held at fault if not able to produce copies of manifest during an inspection if fault is due solely to the e-Manifest System.

§263.20(a)(5), Equipment used by the transporter may to access the e-Manifest System may be provided by the generator, another transporter, or the designated facility.

§263.20(a)(6), EPA established special procedures applicable only to the transporter of a hazardous waste if the electronic manifest becomes unavailable during transportation:

  • Transporter must make copies of “one printed copy of electronic manifest” or obtain and complete a paper manifest.
  • Transporter must make enough copies for itself and all subsequent waste handlers plus two additional copies for the designated facility.
  • On each printed copy the transporter must make a notation in Item 14 Special Handling and Additional Description of the following:
    • Paper manifest is a replacement for electronic manifest.
    • Manifest tracking number of the electronic manifest.
    • Brief explanation of why electronic manifest is not available.
  • Transporter signing a paper manifest replacement for an electronic manifest must ensure each paper copy is signed and dated.
  • Transporter must follow all rules for the paper manifest from the point it is used as a replacement for the electronic manifest.

§263.20(a)(7), EPA addresses the possibility that a demonstration or pilot test of an electronic signature is used by the transporter for an electronic manifest:

  •  Transporter must sign in ink the “one printed copy of the electronic manifest” in addition to its electronic signature on the e-Manifest System.
  • “One printed copy of electronic manifest” with generator’s and transporter’s ink signature must be presented by the transporter to the designated facility which must sign in ink to acknowledge receipt or discrepancies.
  • Note:  except as required here and at §262.24(f) regarding the generator, the printed copy of the electronic manifest does not require a hand written signature.

§263.20(a)(8), EPA may impose a user fee on the transporter of a waste that uses the e-Manifest System.  The schedule of user fees will be published as an appendix to §262.  Note:  though EPA created an option to bill the transporter for the use of the e-Manifest System, it is believed that this responsibility will be applied to the designated facility on the manifest.

Hazardous Waste TSDF40 CFR 264 Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities and 40 CFR 265 Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

Note:  The regulations applicable to permitted TSDFs are found in both 40 CFR 264 & §265.  Changes to the regulations made for the e-Manifest System are exactly the same in both.  For the purposes of this article, regulatory citations will refer to part 264 only.  Read:  What’s the Difference Between Parts 264 and 265 of Title 40 of the CFR?

Another note:  40 CFR 264 & §265 apply to a hazardous waste Treatment, Storage, and Disposal Facility (TSDF).  On the manifest the TSDF will be identified as the designated facility.  For the purposes of this article, the terms are used interchangeably.

§264.71(a)(2)(v), Designated facility must submit a copy of the manifest (the top copy, page 1) to the electronic manifest system for purposes of data entry and processing.  Submission must be made within 30 days of delivery.  This regulation was added to ensure that all manifests, including those who are already part of the e-Manifest System, are uploaded into the database that is to be created and maintained as part of the e-Manifest System.  The designated facility may submit copies of manifest by one of several options:

  • Paper copy by mail.
  • Transmit image file.  Must be in format acceptable to EPA.
  • Transmit both a data string file and an image file.  Must be in format acceptable to EPA.

§264.71(f), Establishes the electronic manifest as a legal equivalent to the paper manifest for use by a hazardous waste TSDF:

  • Electronic manifests must be obtained, completed, and transmitted in accordance with §262.20(a)(3).
  • Electronic signature on e-Manifest is acceptable in place of handwritten signature on paper manifest.
  • Requirement to transmit copies of manifest to other persons – State or Federal – is satisfied by submission to the e-Manifest System.
  • Requirement for manifest to accompany waste shipment during transportation met by submission to e-Manifest System.  DOT requirement for paper copy of shipping paper met by “one printed copy of electronic manifest”.  Note:  this is not the paper copy of the manifest, it is a printed copy of the electronic manifest.
  • Recordkeeping requirements are satisfied by submission to the e-Manifest System.  Copies must be readily available during an inspection.
  • Designated facility will not be held at fault if not able to produce copies of manifest during an inspection if fault is due solely to the e-Manifest System.

§264.71(g), Equipment used by the designated facility to access the e-Manifest System may be provided by the designated facility or the final transporter of the hazardous waste.

§264.71(h), Addresses the situation where a shipment of hazardous waste began with an electronic manifest but experienced an issue during transportation and resorted to using a paper replacement per §263.20(a)(6).  In that situation the following procedures apply to the designated facility:

  • Sign and date each copy of paper replacement manifest by hand in Item 20 and note any discrepancies in Item 18.
  • Provide final transporter with one copy of paper replacement manifest.
  • Within 30 days of delivery send one signed and dated copy of paper replacement manifest to the generator and send additional signed copy to the EPA e-Manifest System.
  • Retain copy of paper replacement manifest for at least three years from date of delivery.

§264.71(i), EPA addresses the possibility that a demonstration or pilot test of an electronic signature is used by a TSDF for an electronic manifest:

  •  Designated facility must sign in ink the “one printed copy of the electronic manifest” in addition to its electronic signature on the e-Manifest System.
  • Original copy of “one printed copy of electronic manifest” with ink signature of generator, transporter(s) and designated facility must be retained for at least three years from date of delivery.

§264.71(j), Imposition of user fee for use of e-Manifest System.

  • Designated facility may pay a fee for origination or processing of each electronic manifest within the e-Manifest system.
  • Designated facility may also pay a fee for collection and processing of paper manifest copies submitted to e-Manifest system.
  • EPA shall maintain and update schedule of user fees.
  • Current schedule of user fees shall be published as appendix to part 262.

§264.71(k), Electronic manifest signatures must meet the criteria of §262.25.

40 CFR 260 Hazardous Waste Management System:  General

§260.2(c) Claim of business confidentiality and the e-Manifest System:

  • No claim of business confidentiality may be made for any information on an electronic manifest.
  • Information on electronic manifest or paper manifest uploaded to e-Manifest System  will be publicly available 90 days after delivery to designated facility.

§260.10, New definitions:

  • Electronic manifest (or e-Manifest) means the electronic format of the hazardous waste manifest that is obtained from EPA’s national e-Manifest system and transmitted electronically to the system, and that is the legal equivalent of EPA Forms 8700-22 (Manifest) and 8700-22A (Continuation Sheet).
  • Electronic Manifest System (or e-Manifest System) means EPA’s national information technology system through which the electronic manifest may be obtained, completed, transmitted, and distributed to users of the electronic manifest and to regulatory agencies.
  • Manifest means the shipping document EPA Form 8700-22 (including, if necessary, EPA Form 8700-22A), or the electronic manifest, originated and signed in accordance with the applicable requirements of parts 262 through 265 of this chapter.  (emphasis added.  Text is new to this definition).
  • User of the electronic manifest system means a hazardous waste generator, a hazardous waste transporter, an owner or operator of a hazardous waste treatment, storage, recycling, or disposal facility, or any other person that:(1) Is required to use a manifest to comply with:(i) Any federal or state requirement to track the shipment, transportation, and receipt of hazardous waste or other waste material that is shipped from the site of generation to an off-site designated facility for treatment, storage, recycling, or disposal; or(ii) Any federal or state requirement to track the shipment, transportation, and receipt of rejected wastes or regulated container residues that are shipped from a designated facility to an alternative facility, or returned to the generator; and(2) Elects to use the system to obtain, complete and transmit an electronic manifest format supplied by the EPA electronic manifest system, or(3) Elects to use the paper manifest form and submits to the system for data processing purposes a paper copy of the manifest (or data from such a paper copy), in accordance with §264.71(a)(2)(v) or §265.71(a)(2)(v) of this chapter. These paper copies are submitted for data exchange purposes only and are not the official copies of record for legal purposes.

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Conclusion:

Those are the regulations currently on the books to implement the e-Manifest System.  All that is lacking are those that will establish the user fee system.  Read more about that proposed rule on the EPA website: Proposed Rule: User Fees for the E-Manifest System and Amendments to Manifest Regulations.  Once those are in place EPA will have everything it needs to begin the e-Manifest System.  Stay tuned for an exciting year in 2017!

More information:

EPA Website:  Hazardous Waste Electronic Manifest System