05-6805. Hazardous Materials: Hazardous Waste Manifest Requirements; Withdrawal of Notice of Proposed Rulemaking

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

ACTION:

Withdrawal of notice of proposed rulemaking.

SUMMARY:

The Research and Special Programs Administration—the predecessor agency to the Pipeline and Hazardous Materials Safety Administration (PHMSA)—and the Environmental Protection Agency (EPA) issued final rules in 1980 requiring that a manifest accompany each shipment of hazardous waste during transportation. In 49 CFR 172.205, PHMSA provided that the uniform manifest “may be used as the shipping paper required by” the Hazardous Materials Regulations, so long as it contained all the required information. On May 22, 2001, EPA published a notice of proposed rulemaking (NPRM) to revise the hazardous waste manifest system. One of EPA's proposed changes would have allowed the uniform manifest to be prepared and transmitted electronically from the generator to the disposal facility, rather than requiring it to accompany the shipment. EPA is deferring final action on the electronic manifest pending further analysis, outreach, and possible supplemental proposals. Therefore, PHMSA is withdrawing an NPRM published on August 8, 2001, that would have amended the Hazardous Materials Regulations on the use of the Uniform Hazardous Waste Manifest for shipments of hazardous wastes. The changes proposed in that NPRM would have accommodated changes proposed by EPA. PHMSA proposed to require that, if the generator of a hazardous waste prepares an electronic manifest, either a physical copy of the electronic manifest or another document containing the information required for a shipping paper must accompany the hazardous waste in transportation.

FOR FURTHER INFORMATION CONTACT:

Mr. Darral Relerford, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, 202-366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

Under the authority of the Resource Conservation and Recovery Act (RCRA; 42 U.S.C. 6901, et seq.) and regulations of the Environmental Protection Agency (EPA) at 40 CFR parts 262-264, hazardous wastes are tracked from their producer (generator) to their final disposal sites. The central tracking element of this system is the Uniform Hazardous Waste Manifest (uniform manifest), which accompanies a hazardous waste shipment from its point of origin to its destination. In 42 U.S.C. 6923, RCRA directs EPA to consult with DOT and issue regulations on the transportation of hazardous wastes that are “consistent with” requirements in the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180).

In 1980, EPA and PHMSA issued final rules requiring that a manifest accompany each shipment of hazardous waste during transportation. See 45 FR 12272 (Feb. 26, 1980) (EPA), 34560 (May 22, 1980) (PHMSA). In 49 CFR 172.205, PHMSA provided that the uniform manifest “may be used as the shipping paper required by” the HMR, so long as it contained all the required information.

On March 20, 1984, 49 FR 10490 (EPA), 10507 (PHMSA), EPA and PHMSA concurrently amended their regulations to adopt the current uniform manifest form in order to address the problems resulting from “a proliferation of manifests as States decided to develop and print their own forms.” Under the current regulations, a generator may use the uniform manifest form for wastes regulated solely by a State, but a State may not “impose enforcement sanctions on a transporter during transportation of the shipment for failure of the form to include preprinted information or optional State information items,” 40 CFR 271.10(h)(2).

On May 22, 2001, EPA published a notice of proposed rulemaking (NPRM) to revise the hazardous waste manifest system (66 FR 28240). One of EPA's proposed changes would have allowed the uniform manifest to be prepared and transmitted electronically from the generator to the disposal facility, rather than requiring it to accompany the shipment. EPA received 64 comments in response to the May 22, 2001, proposed rule from hazardous waste generators, transporters, waste management firms, consultants, an information technology vendor and ten state hazardous waste agencies. The revisions proposed in May 2001 aimed to reduce the manifest system's paperwork burden on users, while enhancing the effectiveness of the manifest as a tool to track hazardous waste shipments that are shipped from the site of generation to treatment, storage, or disposal facilities (TSDFs).

On August 8, 2001, PHMSA published a notice of proposed rulemaking (NPRM) (66 FR 41490). PHMSA proposed to revise its regulations on the use of the Uniform Hazardous Waste Manifest for shipments of hazardous wastes to accommodate the changes proposed by the Environmental Protection Agency (EPA). The intended effect of this proposed rule was to maintain consistency between EPA's and PHMSA's requirements. PHMSA proposed to modify 49 CFR 172.205 to provide that, when an electronic manifest is used, the hazardous waste must be accompanied by a physical shipping paper that can be either (1) a print-out (paper copy) of the electronic manifest or (2) a separate shipping paper that meets all of the shipping paper requirements in 49 CFR, subpart C of part 172. In addition, to prevent confusion by enforcement officials, if an electronic manifest is being used in the transportation of a hazardous waste, the shipping paper or copy of the electronic manifest must indicate on the document that an electronic manifest is being used. Because § 172.204(d)(2) allows for a shipping paper to be “signed manually, by typewriter, or by other mechanical means,” no change to the HMR is needed when a paper copy of the electronic manifest is used as the shipping paper accompanying hazardous waste during transportation. The signature of the generator on the electronic manifest, as printed out on a physical copy, would satisfy the requirement in § 172.204 (d).

More than 18 commenters submitted written comments in response to the NPRM, including representatives of waste treatment and disposal facilities, emergency responders, suppliers of industrial gases and related equipment and selected chemicals, shippers, carriers, federal and state governmental agencies and private citizens. Many commenters agreed that an electronic manifest would not provide emergency responders with the information as to the nature and hazards of materials in a transport vehicle or freight container if an electronic translator would not be available during an incident in transport.

II. Proposal To Be Withdrawn

In a final rulemaking published on March 4, 2005 (70 FR 10776), EPA indicates that the comments addressing the electronic manifest (“e-manifest”) proposal raise significant substantive issues that merit further analysis and stakeholder outreach prior to adopting a final approach.

EPA stated the key electronic manifest issues that must be resolved include: (1) Whether the e-manifest should be decentralized as proposed and hosted by multiple private systems, centrally by EPA or by another party; (2) if a decentralized approach were to be adopted, how EPA's standards should address interoperability of private systems; (3) whether the final e-manifest approach should be integrated with biennial reporting or other functions supported by EPA, the states or other agencies; (4) what electronic signature methods should be included in the final rule; and, (5) the technical rigor and detail necessary in EPA's final standards to ensure a workable approach to the electronic manifest.

Therefore, EPA has decided to separate the electronic manifest from the form revisions portion of the final rulemaking. EPA is deferring final action on the electronic manifest pending further analysis, outreach, and possible supplemental proposals. In a future rulemaking PHMSA and EPA may reconsider proposals to allow the use of an electronic manifest for hazardous waste shipments. Accordingly, we are withdrawing the NPRM and terminating Docket No. PHMSA-01-10292 (HM-206E).

Issued in Washington, DC on March 31, 2005, under authority delegated in 49 CFR part 106.

Robert A. McGuire,

Associate Administrator for Hazardous Materials Safety.