                        EPA Staff Consultation with DHS
   Re:  COI and Public Access to Hazardous Waste Manifests Through e-Manifest
                                       
 EPA is now developing an information technology system that will allow hazardous waste manifests under the Resource Conservation and Recovery Act (RCRA) to be created and transmitted electronically. This system is known as e-Manifest.
 EPA is developing the e-Manifest system under the authority of the 2012 Hazardous Waste Electronic Manifest Establishment Act (hereafter, e-Manifest Act). The e-Manifest Act requires EPA to establish a national electronic manifest system, and requires further that the system ultimately be funded by user fees to be paid by the members of the RCRA regulated community that must use manifests to track their hazardous waste shipments.
 The regulated community will submit manifests via the e-Manifest system. State agencies and the public will then have access to e-Manifest data. 
 The e-Manifest Act also required EPA to issue implementing regulations for e-Manifest.
 EPA issued a regulation in February 2014 that provides the legal and policy framework for using electronic manifests. We are now developing an additional regulation  -  the User Fee Rule  -  to determine the user fees that EPA will assess to offset the Agency's costs in developing and operating e-Manifest.
 EPA issued the proposed User Fee Rule on July 26, 2016. Among the public comments we received on the proposal were comments from DOD and a hazardous waste management firm objecting to our plans to allow the public to access data from the e-Manifest system. These commenters raised the concern that unfettered public access to manifest data might allow terrorists to discern information on sites that possess chemicals of interest within 6 CFR Part 27, Appendix A and perhaps pose a homeland security risk.
 The hazardous waste manifest is a shipping document that must accompany off-site shipments of hazardous wastes from generators to permitted management facilities. The manifest records information on the types and quantities of hazardous wastes included in a specific shipment, and information identifying the generator, the transporter, and the permitted facility that will receive and manage the hazardous waste.
 Shipment information is already routinely consolidated and reported to EPA every two years ("biennial report") and made publicly available via EPA's website. Also, about 20 states currently collect paper manifests, and several of these states disclose their manifest data to the public.
 In the e-Manifest system, EPA would not allow public access to manifest data until 90 days after the completion of hazardous waste shipments.
 However, the proposed rule commenters suggested that terrorists might still be able to discern patterns in waste shipments involving COI, and give rise to a security risk.
 The chemical waste information collected on manifests consists primarily of the shipping description (proper shipping name, packing group, hazard class) required by DOT's Hazardous Materials regulations (49 CFR part 172), along with a RCRA waste code from EPA's hazardous waste regulations, plus the container type and quantity shipped. The manifest also collects the signatures of the handlers taking custody of waste shipments, so as to show the chain of custody of hazardous wastes from "cradle-to-grave."
 In the DHS final regulation prescribing the Appendix A to 6 CFR part 27, DHS adopted a general exclusion that would not require chemical facilities to count most RCRA solid and hazardous wastes toward the Screening Threshold Quantity or STQ for the chemicals and security issues addressed in Appendix A. The exception is the so-called discarded commercial chemical products ("P-List" or "U-List" wastes) listed in 40 CFR §261.33. DHS concluded that these discarded commercial chemical wastes could be just as attractive to terrorists as the chemical products themselves. See 72 FR 65397-98 (Nov. 20, 2007).
 EPA is now trying to determine how to address the COI issue raised by commenters on the proposed e-Manifest User Fee Rule. We need to decide if there is a genuine risk that a member of the public with access to e-Manifest could obtain data raising a homeland security risk, and if so, how we determine which manifests might raise such concerns.
 EPA would like to consult with DHS on these questions. 
 We would be interested in hearing DHS's views or concerns as we work through this issue with our regulatory workgroup.
 Our staff contacts on the Fee Rule are Rich LaShier, 703-308-8796, lashier.rich@epa.gov and Bryan Groce, 703-308-8750, groce.bryan@epa.gov
 Please let Rich or Bryan know of your availability for a discussion, preferably during the next two weeks.
 
