MEMORANDUM
FROM:		Richard LaShier, Workgroup Chair
TO:		Rulemaking Docket
Date:		July 18, 2013
Subject: 	Clarification of State Positions on Manifest Data Disclosure
There have been numerous surveys and data collections over several years, all aimed at identifying state practices respecting their management of Hazardous Waste Report and Hazardous Waste Manifest data.  More recent surveys and questions have been asked more pointedly about states' practices respecting the allowance, or not, of CBI claims with respect to manifests and manifest data collected by states that operate manifest tracking programs.  This issue became prominent after the February 2008 NODA requested comment on whether CBI claims should be allowed for either individual manifests or for aggregate collections/queries of manifest data.  Because the previous surveys involved different points in time, and sometimes differing contexts (e.g., Site ID Questionnaire in 2004 vs. Manifest specific questions in 2007-08, comments on NODAs, workgroup input), and we have had to obtain clarification from some states about their previous responses , I believed it useful to develop this summary indicating  our best assessment of where the various states align themselves on the issue of allowing CBI claims for manifests and manifest data.
1.  Michigan's January 2007 Survey of ASTSWMO Members
   * These states indicated that manifest data would not or probably would not be treated as CBI under states' public information laws:
         o NY, OR, FL, MI, WA, CT, ID
   * These states indicated that manifests could perhaps be treated as CBI until the claim is determined:
         o Ohio, SC
2.  Ohio EPA's August 2004 Site Identification Questionnaire
   * This questionnaire included a question (p. 22) to States on whether they allowed CBI claims on the Hazardous Waste Report.  We assume that States which would not allow CBI claims for HW Report data would also not allow CBI claims for the similar waste data on the HW manifest.
   * The following 20 States or territories responded to the questionnaire by indicating that they would not allow CBI claims in relation to their HW Reports:
         o AL, VA, UT, AR, NM, NH, OK, NV, ID, NC, NJ, MI, PA, MD, CA, MT, ND, IL, GU
   * 12 States indicated they might recognize CBI claims for waste descriptions or other trade secret data.  Two states (NY, CT) that answered "yes" to this survey on general HW Report practices stated that it would not recognize CBI claims for manifest data.
   * 9 States stated that they had had no recent experience with CBI claims being made with respect to the HW Report, and 7 States did not respond to the question.
3.  State work group participants
   * During the development of the e-Manifest Final Rule, these states indicated that they do not recognize CBI claims in processing requests for manifests or manifest data:
         o CA, FL, MD, MI, PA, NJ, NY
4.  E-Mail Contacts with States in July 2013
   * We contacted MA, MN, RI, and VT during week of July 15[th] to see if we could determine their position on CBI treatment of manifests.
   * Only MN and MA responded to date (July 19)
         o MN confirmed that it treats all manifest data as public information -  no CBI claims
         o MA notified us that if CBI claim asserted (none recently), it would process the claim under its trade secret laws and withhold if confidentiality claim substantiated
CONCLUSION:
   * Combining the information from the above sources, we believe that these 25 states' practices or policies would preclude the recognition of CBI claims with respect to manifest data:
         o AL, AR, CA, CT, FL, GU, ID, IL, MD, MI, MN, MT, NC, ND, NH, NJ, NM, NV, NY, OK, OR, PA, UT, VA, WA
         o By extrapolating from data (2007 BR) showing tons of HW received in these states, we believe that these states account for > 50% of the HW manifests circulated in the U.S.
