[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3109 Referred in House (RFH)]







110th CONGRESS
  2d Session
                                S. 3109


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 27, 2008

            Referred to the Committee on Energy and Commerce

_______________________________________________________________________

                                 AN ACT


 
 To amend the Solid Waste Disposal Act to direct the Administrator of 
  the Environmental Protection Agency to establish a hazardous waste 
                      electronic manifest system.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Hazardous Waste Electronic Manifest 
Establishment Act''.

SEC. 2. HAZARDOUS WASTE ELECTRONIC MANIFEST SYSTEM.

    (a) In General.--Subtitle C of the Solid Waste Disposal Act (42 
U.S.C. 6921 et seq.) is amended by adding at the end the following:

``SEC. 3024. HAZARDOUS WASTE ELECTRONIC MANIFEST SYSTEM.

    ``(a) Definitions.--In this section:
            ``(1) Board.--The term `Board' means the Hazardous Waste 
        Electronic Manifest System Governing Board established under 
        subsection (f).
            ``(2) Fund.--The term `Fund' means the Hazardous Waste 
        Electronic Manifest System Fund established by subsection (d).
            ``(3) Person.--The term `person' includes an individual, 
        corporation (including a Government corporation), company, 
        association, firm, partnership, society, joint stock company, 
        trust, municipality, commission, Federal agency, State, 
        political subdivision of a State, or interstate body.
            ``(4) System.--The term `system' means the hazardous waste 
        electronic manifest system established under subsection (b).
            ``(5) User.--The term `user' means a hazardous waste 
        generator, a hazardous waste transporter, an owner or operator 
        of a hazardous waste treatment, storage, recycling, or disposal 
        facility, or any other person that--
                    ``(A) is required to use a manifest to comply with 
                any Federal or State requirement to track the shipment, 
                transportation, and receipt of hazardous waste or other 
                material that is shipped from the site of generation to 
                an off-site facility for treatment, storage, disposal, 
                or recycling; and
                    ``(B)(i) elects to use the system to complete and 
                transmit an electronic manifest format; or
                    ``(ii) submits to the system for data processing 
                purposes a paper copy of the manifest (or data from 
                such a paper copy), in accordance with such regulations 
                as the Administrator may promulgate to require such a 
                submission.
    ``(b) Establishment.--Not later than 3 years after the date of 
enactment of this section, the Administrator shall establish a 
hazardous waste electronic manifest system that may be used by any 
user.
    ``(c) User Fees.--
            ``(1) In general.--The Administrator may impose on users 
        such reasonable service fees as the Administrator determines to 
        be necessary to pay costs incurred in developing, operating, 
        maintaining, and upgrading the system, including any costs 
        incurred in collecting and processing data from any paper 
        manifest submitted to the system after the date on which the 
        system enters operation.
            ``(2) Collection of fees.--The Administrator shall--
                    ``(A) collect the fees described in paragraph (1) 
                from the users in advance of, or as reimbursement for, 
                the provision by the Administrator of system-related 
                services; and
                    ``(B) deposit the fees in the Fund for use in 
                accordance with this subsection.
            ``(3) Fee structure.--
                    ``(A) In general.--The Administrator, in 
                consultation with information technology vendors, shall 
                determine through the contract award process described 
                in subsection (e) the fee structure that is necessary 
                to recover the full cost to the Administrator of 
                providing system-related services, including costs 
                relating to--
                            ``(i) materials and supplies;
                            ``(ii) contracting and consulting;
                            ``(iii) overhead;
                            ``(iv) information technology (including 
                        costs of hardware, software, and related 
                        services);
                            ``(v) information management;
                            ``(vi) collection of service fees;
                            ``(vii) investment of any unused service 
                        fees;
                            ``(viii) reporting and accounting;
                            ``(ix) employment of direct and indirect 
                        Government personnel dedicated to establishing 
                        and maintaining the system; and
                            ``(x) project management.
                    ``(B) Adjustments in fee amount.--
                            ``(i) In general.--The Administrator shall 
                        increase or decrease amount of a service fee 
                        determined under the fee structure described in 
                        subparagraph (A) to a level that will--
                                    ``(I) result in the collection of 
                                an aggregate amount for deposit in the 
                                Fund that is sufficient to cover 
                                current and projected system-related 
                                costs (including any necessary system 
                                upgrades); and
                                    ``(II) minimize, to the maximum 
                                extent practicable, the accumulation of 
                                unused amounts in the Fund.
                            ``(ii) Exception for initial period of 
                        operation.--The requirement described in clause 
                        (i)(II) shall not apply to any additional fees 
                        that accumulate in the Fund, in an amount that 
                        does not exceed $2,000,000, during the 3-year 
                        period beginning on the date on which the 
                        system enters operation.
                            ``(iii) Timing of adjustments.--Adjustments 
                        to service fees described in clause (i) shall 
                        be made--
                                    ``(I) initially, at the time at 
                                which initial development costs of the 
                                system have been recovered by the 
                                Administrator such that the service fee 
                                may be reduced to reflect the 
                                elimination of the system development 
                                component of the fee; and
                                    ``(II) periodically thereafter, 
                                upon receipt and acceptance of the 
                                findings of any annual accounting or 
                                auditing report under subsection 
                                (d)(6), if the report discloses a 
                                significant disparity for a fiscal year 
                                between the funds collected from 
                                service fees under this subsection for 
                                the fiscal year and expenditures made 
                                for the fiscal year to provide system-
                                related services.
    ``(d) Hazardous Waste Electronic Manifest System Fund.--
            ``(1) Establishment.--There is established in the Treasury 
        of the United States a revolving fund, to be known as the 
        `Hazardous Waste Electronic Manifest System Fund', consisting 
        of--
                    ``(A) such amounts as are appropriated to the Fund 
                under paragraph (2); and
                    ``(B) any interest earned on investment of amounts 
                in the Fund under paragraph (4).
            ``(2) Transfers to fund.--There are appropriated to the 
        Fund amounts equivalent to amounts collected as fees and 
        received by the Administrator under subsection (c).
            ``(3) Expenditures from fund.--
                    ``(A) In general.--Subject to paragraph (2), on 
                request by the Administrator, the Secretary of the 
                Treasury shall transfer from the Fund to the 
                Administrator such amounts as the Administrator 
                determines to be necessary to pay costs incurred in 
                developing, operating, maintaining, and upgrading the 
                system under subsection (c).
                    ``(B) Use of funds.--
                            ``(i) In general.--Fees collected by the 
                        Administrator and deposited in the Fund under 
                        this section shall be available to the 
                        Administrator for use in accordance with this 
                        section without fiscal year limitation and 
                        without further appropriation.
                            ``(ii) Oversight.--The Administrator shall 
                        carry out all necessary measures to ensure that 
                        amounts in the Fund are used only to carry out 
                        the goals of establishing, operating, 
                        maintaining, upgrading, managing, supporting, 
                        and overseeing the system.
            ``(4) Investment of amounts.--
                    ``(A) In general.--The Secretary of the Treasury 
                shall invest such portion of the Fund as is not, in the 
                judgment of the Secretary of the Treasury and the 
                Administrator, required to meet current withdrawals.
                    ``(B) Interest-bearing obligations.--Investments 
                may be made only in--
                            ``(i) interest-bearing obligations of the 
                        United States; or
                            ``(ii) obligations, participations, or 
                        other instruments that are lawful investments 
                        for fiduciaries, trusts, or public funds, as 
                        determined by the Secretary of the Treasury.
                    ``(C) Acquisition of obligations.--For the purpose 
                of investments under paragraph (1), obligations may be 
                acquired--
                            ``(i) on original issue at the issue price; 
                        or
                            ``(ii) by purchase of outstanding 
                        obligations at the market price.
                    ``(D) Sale of obligations.--Any obligation acquired 
                by the Fund may be sold by the Secretary of the 
                Treasury at the market price.
                    ``(E) Credits to fund.--The interest on, and the 
                proceeds from the sale or redemption of, any 
                obligations held in the Fund shall be credited to, and 
                form a part of, the Fund.
            ``(5) Transfers of amounts.--
                    ``(A) In general.--The amounts required to be 
                transferred to the Fund under this subsection shall be 
                transferred at least monthly from the general fund of 
                the Treasury to the Fund on the basis of estimates made 
                by the Secretary of the Treasury.
                    ``(B) Adjustments.--Proper adjustment shall be made 
                in amounts subsequently transferred to the extent prior 
                estimates were in excess of or less than the amounts 
                required to be transferred.
            ``(6) Accounting and auditing.--
                    ``(A) Accounting.--For each 2-fiscal-year period, 
                the Administrator shall prepare and submit to Congress 
                a report that includes--
                            ``(i) an accounting of the fees paid to the 
                        Administrator under subsection (c) and 
                        disbursed from the Fund for the period covered 
                        by the report, as reflected by financial 
                        statements provided in accordance with--
                                    ``(I) the Chief Financial Officers 
                                Act of 1990 (Public Law 101-576; 104 
                                Stat. 2838) and amendments made by that 
                                Act; and
                                    ``(II) the Government Management 
                                Reform Act of 1994 (Public Law 103-356; 
                                108 Stat. 3410) and amendments made by 
                                that Act; and
                            ``(ii) an accounting describing actual 
                        expenditures from the Fund for the period 
                        covered by the report for costs described in 
                        subsection (c)(1).
                    ``(B) Auditing.--
                            ``(i) In general.--For the purpose of 
                        section 3515(c) of title 31, United States 
                        Code, the Fund shall be considered a component 
                        of an Executive agency.
                            ``(ii) Components of audit.--The annual 
                        audit required in accordance with sections 
                        3515(b) and 3521 of title 31, United States 
                        Code, of the financial statements of activities 
                        carried out using amounts from the Fund shall 
                        include an analysis of--
                                    ``(I) the fees collected and 
                                disbursed under this section;
                                    ``(II) the reasonableness of the 
                                fee structure in place as of the date 
                                of the audit to meet current and 
                                projected costs of the system;
                                    ``(III) the level of use of the 
                                system by users; and
                                    ``(IV) the success to date of the 
                                system in operating on a self-
                                sustaining basis and improving the 
                                efficiency of tracking waste shipments 
                                and transmitting waste shipment data.
                            ``(iii) Federal responsibility.--The 
                        Inspector General of the Environmental 
                        Protection Agency shall--
                                    ``(I) conduct the annual audit 
                                described in clause (ii); and
                                    ``(II) submit to the Administrator 
                                a report that describes the findings 
                                and recommendations of the Inspector 
                                General resulting from the audit.
    ``(e) Contracts.--
            ``(1) Authority to enter into contracts funded by service 
        fees.--The Administrator may enter into 1 or more information 
        technology contracts with entities determined to be appropriate 
        by the Administrator (referred to in this subsection as 
        `contractors') under which--
                    ``(A) the Administrator agrees to award a contract 
                for the provision of system-related services; and
                    ``(B) the contractor agrees to assume the initial 
                risk of the information technology investment, and to 
                obtain reimbursement for investment costs, operating 
                costs, and other fees, by receiving as payment an 
                agreed-upon share of the amounts collected as fees by 
                the Administrator under subsection (c).
            ``(2) Term of contract.--A contract awarded under this 
        subsection shall have a term of not more than 10 years.
            ``(3) Achievement of goals.--The Administrator shall 
        ensure, to the maximum extent practicable, that a contract 
        awarded under this subsection--
                    ``(A) is performance-based;
                    ``(B) identifies objective outcomes; and
                    ``(C) contains performance standards that may be 
                used to measure achievement and goals to evaluate the 
                success of a contractor in performing under the 
                contract and the right of the contractor to payment for 
                services under the contract, taking into consideration 
                that a primary measure of successful performance shall 
                be the development of a hazardous waste electronic 
                manifest system that--
                            ``(i) meets the needs of the user community 
                        (including States that rely on data contained 
                        in manifests); and
                            ``(ii) attracts sufficient user 
                        participation and service fee revenues to 
                        ensure the viability of the system.
            ``(4) Payment structure.--Each contract awarded under this 
        subsection shall include a provision that specifies--
                    ``(A) the service fee structure of the contractor 
                that will form the basis for payments to the 
                contractor;
                    ``(B) the fixed-share ratio of monthly service fee 
                revenues from which the Administrator shall reimburse 
                the contractor for system-related development, 
                operation, and maintenance costs and provide an 
                additional profit or fee commensurate with the risk 
                undertaken by the contractor in performing in 
                accordance with the contract;
                    ``(C) the amount of additional transactional costs 
                attributed to--
                            ``(i) the ancillary costs of the 
                        Administrator in implementing and managing the 
                        system, including the costs of integrating the 
                        applications of the contractor with the central 
                        data exchange architecture of the Environmental 
                        Protection Agency;
                            ``(ii) the direct and indirect personnel 
                        costs incurred by the Administrator to employ 
                        personnel dedicated to the implementation and 
                        management of the system; and
                            ``(iii) expenses incurred in procuring any 
                        independent contractor services to assist staff 
                        of the Administrator in the preparation of 
                        financial statements and reports and the 
                        conduct of regular user group and governance 
                        meetings necessary for the oversight of the 
                        system.
            ``(5) Cancellation and termination.--
                    ``(A) In general.--If the Administrator determines 
                that sufficient funds are not made available for the 
                continuation in a subsequent fiscal year of a contract 
                entered into under this subsection, the Administrator 
                shall cancel or terminate the contract.
                    ``(B) Costs.--The costs of cancellation or 
                termination under subparagraph (A) may be paid using--
                            ``(i) appropriations available for 
                        performance of the contract;
                            ``(ii) unobligated appropriations available 
                        for acquisition of the information technology 
                        procured under the contract; or
                            ``(iii) funds subsequently appropriated for 
                        payment of costs of the cancellation or 
                        termination.
                    ``(C) Negotiation of amounts.--The amount payable 
                in the event of cancellation or termination of a 
                contract entered into under this subsection shall be 
                negotiated with the contractor at the time at which the 
                contract is awarded.
                    ``(D) Authority to enter into contracts.--The 
                Administrator may enter into a contract under this 
                subsection for any fiscal year, regardless of whether 
                funds are made specifically available for the full 
                costs of cancellation or termination of the contract, 
                if--
                            ``(i) funds are available at the time at 
                        which the contract is awarded to make payments 
                        with respect to a contingent liability in an 
                        amount equal to at least 100 percent of the 
                        estimated costs of a cancellation or 
                        termination during the first fiscal year of the 
                        contract, as determined by the Administrator; 
                        or
                            ``(ii) funds described in clause (i) are 
                        not available as described in that clause, but 
                        the contractor--
                                    ``(I) is informed of the amount of 
                                any unfunded contingent liability; and
                                    ``(II) agrees to perform the 
                                contract despite the unfunded 
                                contingent liability.
            ``(6) No effect on ownership.--Regardless of whether the 
        Administrator enters into a contract under this subsection, the 
        system shall be owned by the Federal Government.
    ``(f) Hazardous Waste Electronic Manifest System Governing Board.--
            ``(1) Establishment.--Not later than 3 years after the date 
        of enactment of this section, the Administrator shall establish 
        a board to be known as the `Hazardous Waste Electronic Manifest 
        System Governing Board'.
            ``(2) Composition.--The Board shall be composed of 7 
        members, of which--
                    ``(A) 1 member shall be the Administrator (or a 
                designee), who shall serve as Chairperson of the Board; 
                and
                    ``(B) 6 members shall be individuals appointed by 
                the Administrator--
                            ``(i) at least 1 of whom shall have 
                        expertise in information technology;
                            ``(ii) at least 1 of whom shall have 
                        experience in using the manifest system to 
                        track the transportation of hazardous waste 
                        under this subtitle (or an equivalent State 
                        program); and
                            ``(iii) at least 1 of whom shall be a State 
                        representative responsible for processing those 
                        manifests.
            ``(3) Duties.--The Board shall meet annually to discuss, 
        evaluate the effectiveness of, and provide recommendations to 
        the Administrator relating to, the system.
    ``(g) Regulations.--
            ``(1) Promulgation.--
                    ``(A) In general.--Not later than 1 year after the 
                date of enactment of this section, the Administrator 
                shall promulgate regulations to carry out this section.
                    ``(B) Inclusions.--The regulations promulgated 
                pursuant to subparagraph (A) may include such 
                requirements as the Administrator determines to be 
                necessary to facilitate the transition from the use of 
                paper manifests to the use of electronic manifests, or 
                to accommodate the processing of data from paper 
                manifests in the electronic manifest system, including 
                a requirement that users of paper manifests submit to 
                the system copies of the paper manifests for data 
                processing purposes.
                    ``(C) Requirements.--The regulations promulgated 
                pursuant to subparagraph (A) shall ensure that each 
                electronic manifest provides, to the same extent as 
                paper manifests under applicable Federal and State law, 
                for--
                            ``(i) the ability to track and maintain 
                        legal accountability of--
                                    ``(I) the person that certifies 
                                that the information provided in the 
                                manifest is accurately described; and
                                    ``(II) the person that acknowledges 
                                receipt of the manifest;
                            ``(ii) if the manifest is electronically 
                        submitted, State authority to access paper 
                        copies of manifest; and
                            ``(iii) access to all publicly-available 
                        information contained in the manifest.
            ``(2) Effective date of regulations.--Any regulation 
        promulgated by the Administrator under paragraph (1) and in 
        accordance with section 3003 relating to electronic manifesting 
        of hazardous waste shall take effect in each State as of the 
        effective date specified in the regulation.
            ``(3) Administration.--The Administrator shall carry out 
        regulations promulgated under this subsection in each State 
        unless the State program is fully authorized to carry out those 
        regulations in lieu of the Administrator.
    ``(h) Requirement of Compliance With Respect to Certain States.--In 
any case in which the State in which waste is generated, or the State 
in which waste will be transported to a designated facility, requires 
that the waste be tracked through a hazardous waste manifest, the 
designated facility that receives the waste shall, regardless of the 
State in which the facility is located--
            ``(1) complete the facility portion of the applicable 
        manifest;
            ``(2) sign and date the facility certification; and
            ``(3) submit to the system a final copy of the manifest for 
        data processing purposes.''.
    (b) Conforming Amendment.--The table of contents of the Solid Waste 
Disposal Act (42 U.S.C. 6901) is amended by inserting at the end of the 
items relating to subtitle C the following:

``Sec. 3024. Hazardous waste electronic manifest system.''.

            Passed the Senate September 26 (legislative day, September 
      17), 2008.

            Attest:

                                                NANCY ERICKSON,

                                                             Secretary.