GHS Training Deadline Looming Posted on May 07, 2013 by Joel Gregier
Before December 1, 2013, more than 40 million employees at 5 million facilities nationwide must be trained on new hazard communication standards under OSHA’s new Globally Harmonized System of Classifying and Labeling Chemicals (GHS). The December 1 deadline is the first for industrial facilities working to update their hazard communication standards this year.
Many companies have already begun transitioning their hazard labels and Safety Data Sheets (SDSs) to conform with the new requirements, in anticipation of other upcoming implementation deadlines.
Training Deadline vs. Other GHS Implementation
Implementation of the new GHS rules (including classification, labeling, and creating SDSs) is required by June 1, 2015. However, OSHA’s rules state that “employers shall train employees regarding the new label elements and safety data sheets format by December 1, 2013.” [29 CFR 1910.1200(j)(1)] This is a full year and a half before GHS labels and SDSs must be introduced into the workplace.
Why is OSHA requiring training this year? Remember, the purpose of the Hazard Communication (HazCom) Standard is to make sure that employees know what kind of hazardous chemicals they are working with and handling. Employees need to know how to recognize the new labels and read the revised SDSs before they come across them. OSHA’s training deadline assures that employees will be properly prepared for the transition.
No Need to Wait
During the current transition period, employers are required to be in compliance with either the “old” HazCom Standard, the modified Standard containing GHS, or a blend of the two. If employers are worried that their employees might forget what they learned in training over the year and a half, they do not have to wait for the later implementation deadline. It may make more sense to switch over to the new GHS labels and SDSs sooner, so that employees can immediately put into practice what they learned.
Whatever route the employer chooses to take, OSHA has expressed that all employees have the “right to understand” the different hazardous chemicals in their workplace.
To help EHS managers and personnel meet the December 1, 2013 deadline and prepare to implement the new GHS hazard communication standard, Lion offers 3 convenient training options: the Preparing for OSHA’s New GHS Rule Webinar prepares managers to update the facility’s HazCom programs; the Managing Hazard Communication Online Course covers critical requirements under the new standard for managers; and the Hazard Communication Online Course is designed to help employees recognize new GHS labels and pictograms, control exposure to workplace injury, and read new Safety Data Sheets (SDSs).
Managing Non-compliant Hazmat in Your Supply Chain Posted on April 30, 2013 by James Griffin
If you ship and receive hazardous materials, chances are that eventually you will receive a shipment that does not meet the DOT’s standards for hazmat packages, whether it’s undeclared, mis-declared, or damaged. Hazmat shipping mistakes are especially common in the reverse logistics supply chain, since your customers may not have the training needed to identify their hazmat shipping responsibilities before returning a product by mail. If you do receive a non-compliant hazmat package, it is important that you are prepared to deal with the situation correctly to prevent an accident or a subsequent compliance violation at your facility.
Your reaction to receiving noncompliant hazmat will depend on a number of factors. Before taking steps to remedy the situation, you should know:
- What is wrong with the package,
- When you first discover something is amiss, and
- What you plan to do with it.
What Could Be Wrong with the Package?
- Undeclared Hazmat: Sometimes, hazmat enters the supply chain without being declared as such. If the hazmat isn’t declared, the sender may not be aware of the dangers this package poses. Therefore, the shipment was likely packaged incorrectly and may have been mishandled. If these oversights lead to an incident in the transportation cycle, emergency personnel will not have the information needed to properly respond to the situation.
If you discover an undeclared shipment of hazmat, you must notify the DOT on a Hazardous Materials Incident Report (Form 5800.1). You should also discuss the matter with your supplier and the transporter. It may have been a simple mistake, but steps should be taken to prevent it from happening again.
- Mis-declared Hazmat: Sometimes, hazmat is offered for transportation without being packaged correctly or with inaccurate hazard communications (marks, labels, paperwork, etc.) that don’t match the hazards of the material. In the event of an incident, first responders will again lack the information needed. Shipping mis-declared or improperly labeled hazmat is just as much a violation of the U.S. DOT’s Hazardous Materials Regulations (HMR) as an undeclared shipment. [49 CFR 171.2]
If you receive an improperly labeled or mis-identified hazmat package, you should speak with your supplier or the customer who sent the package and make the transporter aware of the situation.
- Damaged/Leaking Package: Hazmat packages are sometimes damaged during transport. If a transporter attempts to deliver a damaged or leaking package of hazmat, or even one that’s been cleared up in a salvage packaging, you have several options:
- Refuse to accept the shipment.
- Accept the shipment, just like accepting a regular package, and do what you normally do with your hazmat.
- Accept the shipment, then re-pack it and ship it out with your hazardous wastes.
Discovery After the Fact
So far, we’ve discussed what to do if you discover a problem right away, as the goods are being delivered. What about if you only find out about it later? In that case, your options are more limited.
You can’t just refuse to accept the shipment, because it is already in your possession. You can either find a use for it or get rid of it. If you get rid of it, either as a waste, return-to-sender, or resale, it is important to remember that you’re now offering a new shipment of hazmat. It is now your responsibility to ensure any mistakes made classifying, packaging, or labeling the shipment are corrected before you re-ship the package.
Keep in mind that if you decide to dispose of the hazmat, you must treat it as a waste and must follow all of the applicable RCRA Subtitle C laws and regulations for hazardous waste management.
Re-shipping Problem Hazmat
Re-shipping a package of hazmat that was received as damaged, mis-declared, or undeclared can be problematic. First, if the package was undeclared or misidentified, you may not know what material or hazard you are dealing with. This makes packaging and labeling for re-shipment very difficult.
If it’s an unknown material, and you’re not managing it as waste, then you’ll have to take steps to figure out what the material is. The easiest thing to do is contact the original consignor for a Safety Data Sheet or any other information he or she can provide. You can also send out a small sample and have it analyzed. If you do decide to manage it as a waste, there is a little flexibility. See 49 CFR 172.101(c)(11) and 173.11.
If you do know what it is, but it’s not in the right kind of sturdy packaging, then it is your responsibility to determine authorized packaging, correct markings and labels, and prepare new shipping papers and emergency response information before re-sending the package.
Identify your hazmat shipping responsibilities under the latest DOT regulations and be prepared for any shipping situation! At Lion’s Hazardous Materials Transportation Certification Workshops, presented nationwide, you will gain the knowledge and skills needed to classify, package, mark, label, and document hazardous materials shipments.
How to Dispose of 2-Part Epoxy Solutions Posted on April 23, 2013 by James Griffin
What Is an Epoxy Solution?
Epoxy resins are common in many industries, and disposing of them under RCRA rules can be complicated. Epoxy-based resins are two-part solutions created by combining an epoxy with a hardener or “cureative.” When combined, these materials create a “thermoset plastic” material that is moldable for a short time before setting or curing into an inert solid form. Epoxy resins have a vast number of applications: they are used as paints or coatings on machinery and automobiles, as structural adhesives in products from airplanes to golf clubs, as electrical insulation in circuit boards, and much more.
While there are a variety of epoxy materials, each with particular characteristics and uses, disposing of epoxy resins of any kind raises a common problem. Before use, the epoxy itself is typically a flammable liquid. The hardener or cureative is a non-flammable liquid, but may be corrosive or toxic. When mixed, the epoxy and the hardener yield an inert, solid plastic that may not display the hazardous characteristics of either of its two parts.
When disposing of a two-part epoxy, one of three scenarios will apply:
- If disposing of an unused two-part epoxy before mixing it, Part A (the epoxy) is usually a D001 ignitable hazardous waste, and Part B (hardener) may be a D002 corrosive. Either chemical may be on the P- or U-list of chemical product wastes.
- If the epoxy is mixed, fully cured, and used as an adhesive, coating, or to form a mold, it is a used product and cannot be assigned a P or U waste code. Luckily, the inert solid plastic that results once the epoxy fully solidifies will very rarely exhibit any hazardous waste characteristic.
- The third scenario is the most complicated. The epoxy is mixed, some portion of it is used, and the excess becomes a solid waste before it fully solidifies.
After the epoxy components are mixed, they begin to harden or cure. A mixed but not yet fully solid epoxy solution, when destined for disposal, is a solid waste, and waste codes must be applied at the time the waste is generated. (40 CFR 261.3) Even though the chemical reaction has begun, the unused mixture is still an unused commercial chemical product (40 CFR 261.33) and the applicable P or U codes would apply, along with any hazardous waste characteristics. None of the F or K listings for specific and non-specific sources of hazardous waste will apply to mixed epoxy solutions.
The Epoxy Is Fully Cured. Now What?
Once it has completed curing, the epoxy will no longer exhibit the hazardous waste characteristics of ignitability (D001) or corrosivity (D002). [40 CFR 261.21-261.22] Once the waste no longer exhibits any regulated characteristics, it is no longer subject to regulation as hazardous waste. [40 CFR 261.3(d)-(g)]
If, however, the hazardous waste was assigned a P (acute) or U (toxic) hazardous waste code, those chemical product codes still apply. Listed hazardous waste codes apply until the waste is de-listed via petition (40 CFR 260, Subpart C) or treated to Part 268 standards.
Lastly, even though the hardened epoxy no longer exhibits the hazardous waste characteristic of ignitability (D001) or corrosivity (D002), it did exhibit those characteristics at the time the waste was generated. Therefore, the treatment standards (40 CFR Part 268) associated with these characteristics are still applicable—even though the characteristics and waste codes themselves are gone.
What About Toxicity?
None of this discussion touched on the characteristic of toxicity. [40 CFR 261.24] Certain epoxy compounds do have toxic heavy metals or complex organic compounds incorporated into their matrix. If they do, and either the unused components or the hardened epoxy contains a TCLP level of one or more toxicity constituents, then the epoxy has to be managed as toxicity characteristic hazardous waste.
Lastly, if you have unused epoxy and the unused chemicals would be hazardous wastes (by characteristic or listing), then you can’t get rid of it by intentionally mixing the components to create an inert solid. Doing so is waste treatment and requires a permit. [40 CFR 260.10-definition of "treatment"]
The U.S. EPA requires all hazardous waste personnel to complete training annually. Learn to identify the hazardous waste generated at your facility, manage and store it in full compliance with RCRA, and ensure proper disposal at the upcoming Hazardous/Toxic Waste Management Workshops!
Revised Hazmat Registration Fees Posted on April 19, 2013 by James Griffin
Due to the accumulation of an unexpended balance in the Hazardous Materials Emergency Preparedness (HMEP) Fund, PHMSA is temporarily halving the hazmat registration fee.
For the 2013-2014 registration period, PHMSA is lowering the fee for small businesses and non-profits, from $250 to $125. For all other businesses the fee of $2,600 is lowered to $1,300.
Unless otherwise noted, the fees will return to their higher values for the 2014-2015 registration period.
If you have prepaid your fees for several years ahead, you may be eligible for a refund. Details are available in the announcement from today’s Federal Register 78 FR 23503
Hazmat Registrations Are Due by June 30th Posted on April 16, 2013 by Kathleen Caton
Department of Transportation hazmat registrations for the 2013-2014 year are due by June 30! Any business that will offer even one placarded hazmat shipment this year must register with the DOT.
Registrations must be updated annually, and the registration period runs from July 1st to June 30th of the following year. Your registration tells the DOT who you are and what kinds of hazmat shipments you will offer or carry during the year. Hazmat registrations must be filed on DOT Form F5800.2 and can be completed through the mail or online.
There are a number of requirements for who must register with the DOT. With few exceptions, you must register your business if you ship or carry the following:
- A highway route-controlled quantity of radioactive (Class 7) material;
- More than 25 kg (55 pounds) of a high explosives (Division 1.1, 1.2, or 1.3);
- More than 1 L (1.06 quarts) per package of extremely toxic by inhalation materials (Hazard Zone A);
- Any shipment of hazmat in bulk packagings having a capacity equal to or greater than 13,248 L (3,500 gallons) for liquids/gases or 13.24 cubic meters (468 cubic feet) for solids;
- Any shipment in non-bulk packagings with a total gross weight of 2,268 kg (5,000 pounds) or more; and
- Any other shipment of hazmat that requires placards.
Government agencies, farmers, and certain foreign entities are partially exempt from the registration process. Remember, if you ship or transport even one shipment on the registration list above, then your business must register with the DOT.
In addition to providing information about your material and operations, you must also pay a fee to the U.S. DOT as part of your registration. In addition to a $25 processing fee per registration, the annual fee is currently:
- $250 for small businesses or not-for-profit organizations, and
- $2,575 for all others.
References: 49 CFR Part 107 Subpart G – “Registration” 49 USC 5108
Understand all your 49 CFR shipping responsibilities and satisfy the DOT’s training standard for “hazmat employees” with Lion Technology’s Hazardous Materials Transportation Certification Workshop or the equivalent Online Course! Benefit from dynamic instruction and engaging class discussion at the public workshop, or train online for a convenient, flexible experience that fits your day-to-day schedule.
Take Advantage of NPDES Permitting Reliefs Posted on April 09, 2013 by Anthony R. Cardno
Industrial facilities at which “stormwater associated with industrial activity” is discharged are generally required by the U.S. EPA to obtain an NPDES permit, follow strict regulations, and keep exacting records.
To avoid the permit requirement, EHS professionals can take advantage of an available relief known as the “No Exposure” certification. This conditional exemption can exclude any industrial facility otherwise subject to the NPDES permitting rules—with the exception of construction operations disturbing more than five acres—from the permit requirement.
To qualify for this exclusion, facilities must first provide storm-resistant shelter for industrial materials and activities. This component can often be more confusing than it sounds. However, the definition of “no exposure” established by EPA is “all industrial materials or activities are protected by a storm resistant shelter to prevent exposure to rain, snow, snowmelt and/or runoff.” [64 FR 68785, December 8, 1999] At a bare minimum, your sheltering needs to be sufficient to prevent any precipitation from contacting your industrial materials/activities.
Within that same rulemaking a storm-resistant shelter is defined as “completely roofed and walled buildings or structures, as well as structures with only a top cover but no side coverings, provided material under the structure is not otherwise subject to any run-on and subsequent run-off of stormwater.” This definition is still somewhat open-ended but gives us a better idea of what EPA has in mind when talking about a storm-resistant shelter.
There are two ways to provide storm-resistant sheltering:
- Move materials and activities indoors into existing buildings; or
- Construct new structures to protect materials.
Some things are considered by EPA to be “inherently storm-resistant” and therefore are not in need of additional storm-resistant sheltering:
- Drums, barrels, tanks, and similar containers that are tightly sealed and not leaking or deteriorated. “Sealed” is generally acknowledged to mean banded or otherwise secured and without operational taps or valves;
- Adequately maintained vehicles used for handling materials, as long as they are not leaking contaminants and are not otherwise a source of industrial pollutants; and
- Final products, such as a new car or steel i-beams
- Although some final products that would be mobilized in stormwater do require addtional storm-resistant sheltering, for instance, rock salt.
Remember, the No Exposure certification is conditional: if you fail to meet the conditions at any point, you are then subject to NPDES stormwater permitting requirements. The No Exposure certification is a lightening of your compliance requirements, not a complete exemption from them.
Providing storm-resistant sheltering for industrial materials and activities is only the first component to qualifying for the exclusion. For more details about the No Exposure certification and a complete list of components for qualification, see this Fact Sheet issued by EPA.
Identify and prepare to meet your environmental compliance responsibilities under the EPA’s major programs at the Complete Environmental Regulations Workshop! The workshop covers core elements, basic requirements, and how to locate applicable provisions in the Clean Air Act, Clean Water Act, TSCA, FIFRA, Superfund, and more!
Understanding and Calculating DART Posted on April 02, 2013 by Roger Marks
Last month, OSHA issued letters to employers whose Days Away, Restricted and Transferred (DART) rates are above average for their industry sector. DART is a measurement of workplace injuries and illnesses that result in time away from work, restricted job roles, or permanent transfers to new positions. To calculate a company’s DART rate, OSHA uses data from the employer’s OSHA 300 logs, which are used to track recordable workplace injuries and illnesses during the year as required by 29 CFR 1904.
OSHA issued DART letters to about 9,400 employers this year. Due to the relatively high frequency of injuries and illnesses at their facilities, DART letter recipients are often targeted for inspection by OSHA. According to the letters that were sent, OSHA “may target up to 2,500 general industry workplaces identified in the survey for inspection in the next year” under its site-specific targeting (SST) program.
If you received one of these DART letters, you may want to prepare for a thorough health and safety inspection in the near future. This may include an in-depth review of your records to see that all plans, logs, procedures, and other documentation required by OSHA standards is in place and up to the standards’ expectations. In addition, you should make sure your employee training is up-to-date.
For a review of the four major stages of an OSHA inspection, see this week’s LionNews article, “What to Expect from an OSHA Inspection.”
To Calculate a DART Rate:
- Add the totals from Columns H and I of the OSHA 300 log ( total reportable injuries and illnesses resulting in days away from work, job transfer, or restricted job duties).
- Multiply this number by 200,000 (base hours worked for 100 full-time–equivalent employees).
- Divide the result by the total number of hours worked by all employees (including management, temporary, and leased workers).
This year, OSHA adjusted the criteria used to determine which employers receive DART letters. In the past, an employer’s DART rate was compared to the national average of all employers included in the survey. For 2013, OSHA used DART data to compare facilities within a specific industry sector. OSHA believes this will result in a more meaningful comparison.
Insufficient training is one of the most commonly cited causes of preventable workplace injuries. Lion Technology offers both hazard-specific training and a comprehensive 10 Hour General Industry Online course to help your employees identify, avoid, control, and prevent workplace hazards.
An example of OSHA’s 2013 DART letter is available here.
What to Expect from an OSHA Inspection Posted on April 02, 2013 by Joel Gregier
The Occupational Safety and Health Administration (OSHA) is tasked with protecting employees in the workplace from the many hazards they face. As such, OSHA has the authority to inspect employers’ facilities to ensure that they are correctly following all applicable safety standards [29 CFR 1903]. Should an OSHA inspector find a facility in non-compliance, he or she may assign corrective actions and hand out penalties. All workplaces should be prepared for an eventual inspection, as OSHA has the authority to inspect any employer or workplace with employees [29 CFR 1903.3].
OSHA inspections are generally carried out in four basic steps: presenting credentials, opening conference, the walk-around, and closing conference.
Step 1: Presenting Credentials
Keeping in mind that it is unlawful to obstruct an OSHA inspector, it’s important for employers to check for proper identification from a compliance officer prior to allowing him or her access to records, employees, or the facility. This is something that should normally be done at the very beginning of the opening conference. Requesting credentials is NOT considered to be an objection to the inspection; it is simply ensuring that the inspector is legitimate.
Step 2: Opening Conference
During the opening conference, the compliance officer will explain the purpose and scope of the inspection, as well as the safety standards that will be applied. Inspections often occur for three major reasons: A reportable accident occurs, an employee submits a complaint, or an inspection is pre-scheduled at facilities with known safety hazards. Both employers and employees have the right under the OSH Act to have a representative of their choosing accompany the compliance officer during an inspection. The opening conference is the appropriate time to introduce these representatives.
Step 3: Walk-around
Once the opening conference has been conducted and the compliance officer has examined any records that he wishes to look at prior to examining the rest of the facility, the walk-around inspection can begin. The main purpose of the walk-around inspection is for the compliance officer to identify potential safety and/or health hazards that are present in the workplace. The employer representative may suggest a course to take through the facility, but ultimately the compliance officer determines the route and the duration of the inspection.
During the walk-around inspection, the compliance officer will observe conditions, point out any hazards that are observed, and discuss possible correction methods for the hazards. The compliance officer may make video recordings and take photographs and various instrument readings during the inspection. Employer and employee representatives are permitted to record similar data if they choose, and it is generally recommended that they do so whenever possible.
Step 4: Closing Conference
During the closing conference, the compliance officer will brief the employer and employee representative on conditions observed during the walk-around. At this time, the compliance officer will inform the employer and employee representatives of their rights to appeal any citation that may be issued, as well as resources available to them from OSHA.
As a note, citations will not be issued during or at the end of the conference. The results of the inspection will be given to the OSHA Area Director following the visit, and citations or other notices-of-violation (if necessary) will be issued within six months.
Ensure your organization is prepared for an OSHA health and safety inspection! Insufficient training is one of the most commonly cited causes of workplace injuries that often trigger inspections and cost businesses billions each year. Lion Technology’s 10-Hour OSHA General Industry Online Course will prepare your personnel to identify, avoid, control, and prevent workplace hazards and injuries. Enrollment includes easy-to-download 29 CFR 1910 rules, Certificate of Achievement, and 6 months of complete on-the-job support.
RCRA—Waste Treatment/Minimization Posted on March 26, 2013 by Won Bae
There are many ways to use RCRA reliefs to cut costs at your facility. You can reuse spent materials, turn your waste into someone else’s product; recycle scrap metals, circuit boards, ethanol, cathode ray tubes, used oil, batteries, and other universal wastes; reclaim value from sludges and by-products; neutralize corrosive wastes; install a closed-loop reclamation system; or decharacterize or solidify wastes in process-units. Of these options, one of the most widely used is elementary neutralization of corrosive waste.
The Advantages of Elementary Neutralization
One common, and bulky, type of hazardous waste generated in many industries is liquid solutions that exhibit the hazardous characteristic of corrosivity. These corrosives may be by-products of chemical reactions, spent catalysts, sludges from wastewater treatment systems, or simply industrial cleansers.
Under certain conditions, you can treat this type of hazardous waste yourself, without a permit. This process is called “elementary neutralization.” [40 CFR 260.10] Taking care of your own hazardous waste has many advantages:
- Reduce your generator status. Wastewaters are measured in gallons, but generator status is measured in pounds. Every gallon of corrosive wastewater you can exclude from regulation as hazardous waste equals about 8 pounds you can subtract from your monthly totals. Since wastewaters are typically generated in large amounts, on-site treatment can leverage great waste minimization gains.
- Reduce your freight costs. If you’re currently shipping large volumes of corrosive wastewater to an off-site treatment facility, you’re paying freight costs to transport the waste AND treatment costs to neutralize it. By treating the waste on site, you can save on shipping costs.
- Neutralization is cheap. After any on-site storage, as well as recordkeeping and other administrative expenses (which you’re already doing for the waste), the only additional expense for an elementary neutralization operation is a small amount of common industrial caustic.
What Kinds of Wastes Qualify?
Elementary neutralization can be applied to hazardous wastes that 1) exhibit the hazardous waste characteristic of corrosivity defined at 40 CFR 261.22, 2) do not exhibit any other characteristics, and 3) are not listed as hazardous waste at 40 CFR 261, Subpart D. While this description is very specific, this type of waste is generated by many kinds of facilities, typically in large amounts.
How Does the Treatment Work?
- Accumulate the waste in a tank, tank system, or container.
- Transport vehicles and vessels are also authorized, but their use can create complications.
- As long as you “immediately manage” the waste in an elementary neutralization unit, you don’t have to count it towards your generator status. [40 CFR 261.5(c)(2)]
- Depending on your setup, you may even be able to skip this step (treatment in “process unit”). [40 CFR 261.4(c)]
- Add base/acid to the waste to raise/lower the pH above 2 or below 12.5 to reach a neutral pH.
- Dispose of the decharacterized water.
What Else Do I Have to Do?
- Check the laws, regulations, and policies of the hazardous waste management authorities in your state. Not every jurisdiction authorizes this activity, and some that do will impose additional restrictions or requirements.
- If you intend on discharging the neutralized wastewater to a municipal sewer, you must get permission from the waterworks.
- If you intend on discharging the neutralized wastewater to surface or underground waters, you must have an NPDES permit from the U.S. EPA.
- Keep records of the amount and type of waste you generated and treated to rebut any presumptions of speculative accumulation or sham recycling.
- File a One-Time Notice in your facility’s Land Disposal Restrictions records. [40 CFR 268.7(a)(7)]
Operating an elementary neutralization unit (ENU) isn’t easy, and it isn’t the right solution for everyone. But if your facility generates large quantities of corrosive wastewaters, then setting up an ENU can minimize your waste generation, cutting your shipping costs and treatment fees, and possibly reduce your generator status.
Learn how to gain efficiencies and streamline your waste management operations at Lion Technology’s Advanced Hazardous Waste Management Workshop.
EPA Meeting on e-Manifest Posted on March 19, 2013 by Scott C. Dunsmore
Greetings from the Windy City. The second public meeting on the e-manifest system has just concluded at the EPA’s Region 5 headquarters in downtown Chicago. The meetings were well attended, with a lot of good discussion.
The president signed the Hazardous Waste Electronic Manifest Establishment Act on October 5, 2012, which provides the EPA with a short three-year window in which to establish an electronic manifest system for hazardous waste shipments. On February 20, 2013, the EPA announced three public meetings to obtain public input from stakeholders on a national electronic manifest system [78 FR 11877].
In Chicago, there were over fifty participants from every impacted sector—generators, transporters, TSDFs, states, brokers, and other support organizations. The Chicago meeting built on information gathered at the first meeting in Arlington, VA. Here are some basic facts that were learned from the meeting:
- The e-manifest system must be up and running by October 5, 2015.
- There will be a single, nationally-run system (states will be able to update their rules to enforce the e-manifest program rules, however, they cannot create their own e-manifest system).
- The system will be funded by user fees.
- While the use of the system will be voluntary, the EPA indicated that even paper manifests will be added to the national e-manifest database.
- The EPA is planning to issue a Direct Final Rule in the near future that will authorize the implementation of a national e-manifest system and the collection of user fees. (This is merely a formality that officially opens the process mandated by the statute.)
The topic of fees was a significant matter for many in the audience. Unfortunately, the EPA would not indicate what their current thought process is on a fee structure. The TSDF industry expressed concern that the fees must be such that they can support the system, however, they cannot be too high so as to create a disincentive for using the e-manifest system over the traditional paper system. Since the EPA did indicate that even paper manifests will be entered into the system, there was discussion as to whether fees will be charged for use of the paper manifests as well. The EPA was not opposed to such an approach but the Agency did not tip its hand as to what it plans on doing. The actual fees will not be addressed in the Direct Final Rule, but a subsequent rulemaking on the regulations supporting the e-manifest system. Generators in the room indicated that the fee structure may be the biggest hurdle to overcome in making the program successful.
In addition to the possible fee structure, the following are my assessments of the most significant issues discussed:
- Administration: The EPA described a system in which each generator, transporter, TSDF, and broker who uses the national e-manifest system will need to register and then set up each user. Comments centered on two issues. First, some generators with multiple sites hoped that the system will allow for a “super user” such as a corporate office that could manage and view the various sites. The second discussion was how brokers were going to be able to prepare manifests for their clients. Were they going to be able to register as a super user, or would they need to be set up as a user under each registered generator? In addition, there was concern that brokers would only be able to view e-manifests from a generator that they prepared.
- Accessibility: With the development of a national database, there was significant discussion in deciding when the records would be “official.” The overwhelming consensus was that the e-manifest should not be accessible to others until it is “signed” by the generator. Some felt that states should not have access until the manifests are signed by the TSDF, although it does not appear that their wishes will be granted. Included in the discussion of accessibility was the retention in the national system. Some generators and brokers wondered if the manifests would be deleted after the current three-year retention requirement in 40 CFR 262, Subpart D.
- Shipping papers: The U.S. DOT still requires the use of a shipping paper (its efforts for electronic shipping papers are not as far along as the EPA’s), therefore a physical shipping paper will still need to accompany the shipment. There was significant discussion as to what the format should be. Options ranged from a print out of the current manifest to any format as long as the DOT-required elements were included. While the majority of the audience was in favor of an “any document” approach, there was general consensus that the rule will need to require some indication on the form that there is an official and complete e-manifest accessible in the national system. It wasn’t clear what that indication might be, but it is possible that it might simply be the requirement to include the e-manifest tracking number on the shipping paper. In the end, the audience felt that DOT must be intimately involved in the EPA’s rulemaking efforts.
- Signature: This was the greatest hot-button issue of the meeting. The EPA stated that despite its acknowledgement of the rigors of this approach, the policy-makers have mandated that the signature requirements will have to be compliant with the EPA’s Cross-Media Electronic Reporting Regulation (CROMERR). This essentially will limit the options to a password/PIN system or the use of high-quality digitized signature pads. The consensus was that the CROMERR system was built around a single reporting system and not a dynamic, chain-of-custody system like the manifest system. There was a growing movement to revise the manifest rules to eliminate the EPA requirements for a hand-written signature. It is not certain that the EPA will act on this. It is my assertion that the signature requirement will be the biggest and perhaps most costly hurdle to overcome. A system that is too onerous will surely scare many generators away either because the flexibility in assigning persons with the ability to sign the manifest is not there or because the implementation costs will be too expensive.
What are the next steps for the regulated community?
- Keep watch for what follows the Direct Final Rule. The EPA will follow this with a proposal on the new e-manifest regulations and the fee structure. Organizations will need to carefully consider the language. Will the system allow for an ease of paperwork burden, yet be cost-effective in light of the fee structure?
- Begin dialogs with your TSDFs and brokers. Since many of these persons already prepare manifests for their generators, will they be compelling their clients into the e-manifest system? How will this impact your costs with each waste stream?
- Consult with your corporate legal counsel. If e-manifests are retained on the national database, how will this impact your current record retention policies and practices, not just under RCRA and CERCLA? If you are a publicly traded company, this may also impact your Sarbanes-Oxley obligations.
It sounds like the e-manifest system will have many benefits, but it will require careful review, consideration, and even comment as the Agency rolls out the regulations.