[Congressional Record Volume 157, Number 120 (Tuesday, August 2, 2011)]
[Senate]
[Pages S5281-S5283]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         HAZARDOUS WASTE ELECTRONIC MANIFEST ESTABLISHMENT ACT

  The bill (S. 710) to amend the Solid Waste Disposal Act to direct the 
Administrator of the Environmental Protection Agency to establish a 
hazardous waste electronic manifest system was ordered to be engrossed 
for a third reading, was read the third time, and passed, as follows:

                                 S. 710

       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 Advisory 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, in consultation with 
     the Board, 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

[[Page S5282]]

     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 the Committee on 
     Environment and Public Works of the Senate and the Committee 
     on Energy and Commerce of the House of Representatives 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);
       ``(ii) attracts sufficient user participation and service 
     fee revenues to ensure the viability of the system;
       ``(iii) decreases the administrative burden on the user 
     community; and
       ``(iv) provides the waste receipt data applicable to the 
     biennial reports required by section 3002(a)(6).
       ``(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

[[Page S5283]]

       ``(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 Advisory 
     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 Advisory Board'.
       ``(2) Composition.--The Board shall be composed of 9 
     members, of which--
       ``(A) 1 member shall be the Administrator (or a designee), 
     who shall serve as Chairperson of the Board; and
       ``(B) 8 members shall be individuals appointed by the 
     Administrator--
       ``(i) at least 2 of whom shall have expertise in 
     information technology;
       ``(ii) at least 3 of whom shall have experience in using or 
     represent users of the manifest system to track the 
     transportation of hazardous waste under this subtitle (or an 
     equivalent State program); and
       ``(iii) at least 3 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 printout copies of the manifest 
     from the system; 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.''.

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