The Hazardous Waste Electronic Manifest Establishment Act (e-Manifest Act) was signed into law by President Obama on October 5, 2012.  It authorized the EPA to develop an electronic system for the tracking of hazardous waste manifests and create a system to collect fees to cover its operating costs.  The EPA was given one year to promulgate regulations to turn the Act into a reality and three years to have an e-Manifest system fully operational.  EPA announced a Final Rule in the February 7, 2014 Federal Register implementing the first portion of the e-Manifest Act.

The new rule, which created two new sections in Part 262 of Title 40 of the CFR (40 CFR 262.24 & 40 CFR 262.25) and modified others, is effective August 6, 2014.  That doesn’t mean you can start emailing your manifests now, however; EPA has until October of 2015 to have a fully operational e-Manifest Tracking System and indicates it will issue a separate Final Rule in 2015 implementing the complete system.

A full review of how the e-Manifest Tracking System will work will have to wait for a later article.  The purpose of this article is to explain the new regulations created in the CFR pertaining to the e-Manifest Tracking System.

The purpose of these new regulations is to establish the legal validity under RCRA for an electronic manifest.  To this end, 40 CFR 262.24 declares the legal equivalence of an electronic manifest to paper manifests as long as they are obtained, completed, and transmitted as directed by these new regulations.  It further states that an electronic manifest may be used in lieu of EPA Forms 8700-22 (the Uniform Hazardous Waste Manifest main page) and 8700-22A (the Uniform Hazardous Waste Manifest continuation page) bearing handwritten signatures and will satisfy all requirements of the regulations to obtain, complete, sign, provide, use, or retain a manifest.

40 CFR 262.24 goes on to clarify and confirm the legal validity of the e-Manifest in several statements:

• An electronic signature -if having the meaning specified by 40 CFR 262.25 (see below)- will meet all of the requirements in the RCRA regulations to sign a manifest by hand.
• The submission of a manifest to the e-Manifest System (once it’s operational) will fulfill all of the requirements of the RCRA regulations to provide a copy of the manifest to another person, eg. hazardous waste generators in Illinois must mail a copy of the manifest to the Illinois EPA within 48 hours of its signing by the hazardous waste transporter.
• As long as copies are available for viewing in the event of an inspection, the retention of a signed electronic manifest in the generator’s account on the e-Manifest System will meet all of the generator’s recordkeeping responsibilities.
• The generator will not be held responsible for their inability to produce an electronic manifest for inspection if the fault lies with the e-Manifest System.

Also:

• Access to the e-Manifest System may be through a generator’s own equipment or through equipment provided by the transporter.
• A generator may only utilize the e-Manifest System for the shipment of a hazardous waste if it is known that all persons identified on the manifest have access to the e-Manifest System.
• If an e-Manifest prepared by a generator becomes unavailable prior to its signature by the transporter, the generator must complete paper copies of the manifest (Forms 8700-22 and 870-22A) according to the applicable regulations.
• A generator using a pilot or demonstration method for signing the e-Manifest must also hand-sign a printed copy of the e-Manifest.
• A generator using the e-Manifest System will be assessed a user fee by EPA.  This is one aspect of the e-Manifest Act that has yet to be codified and implemented.

And finally:

The Pipeline and Hazardous Materials Safety Administration (PHMSA) within the US Department of Transportation regulates the domestic transportation of hazardous materials under its Hazardous Material Regulations.  While EPA is moving forward on the e-Manifest System, PHMSA has not signed-off on a paperless system for the transportation of a hazardous material (under the HMR, a hazardous waste is merely one classification of a hazardous material).  Therefore, even when the e-Manifest System is fully implemented, the generator will still be required to provide the initial transporter with a printed copy of the e-Manifest in order to comply with the HMR.

Take note of the subtle – though critical – difference in 40 CFR 262.24 between the reference to a “paper manifest” or “Forms 8700-22 and 8700-22A”  and “printed copy of the electronic manifest”  These are two different documents, required in different situations, but fulfilling the same requirement:  ensuring a paper copy of the required information is in the hands of the hazardous waste transporter.

40 CFR 262.25 mandates that the electronic signature methods for the e-Manifest be:

• Legally valid and enforceable under applicable EPA and other federal requirements; and,
• Designed to be cost-effective and practical.

EPA is still conducting studies to determine the reliability of various e-signature methods.

So there you have it; the future is here, only not quite yet.  2015 should be exciting with the full implementation of the e-Manifest System.  The day when PHMSA accepts an electronic system for shipping papers will be even more exciting.  Stay tuned for developments.