[Senate Report 104-52]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 74
104th Congress                                                   Report
                                 SENATE

 1st Session                                                     104-52
_______________________________________________________________________


 
     INTERSTATE TRANSPORTATION OF MUNICIPAL SOLID WASTE ACT OF 1995

                                _______


                 April 18, 1995.--Ordered to be printed

      Filed under authority of the order of the Senate of April 6 
                    (legislative day, April 5), 1995

    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 534]
    The Committee on Environment and Public Works reports S. 
534, as amended, a bill to amend the Solid Waste Disposal Act, 
to provide authority for States to regulate the interstate 
transportation of municipal solid waste and to provide States 
and political subdivisions authority to flow control waste, and 
for other purposes, and recommends that the bill do pass.

                           General Statement

                           general background

Interstate waste

    Interstate transportation of municipal solid waste (MSW) is 
not a new phenomenon. In fact, for many cities, particularly 
those located near a State border, interstate transport over 
relatively short distances has occurred for decades.
    Several factors, in addition to proximity, however, have 
contributed to the transport of waste--an article of commerce--
across State lines. Primary among them is the economics of 
disposal. Tipping fees approaching $150 per ton in some 
metropolitan areas, with the national average between $30 and 
$50 per ton, have resulted in greater interest in interstate 
transport of waste. The economics are such that it can be less 
expensive to haul waste long distances with its resultant 
transportation costs and tipping fees than to dispose of it in 
waste management facilities closer to its point of generation.
    In addition, there is a long-term trend toward larger, 
environmentally sound, regional disposal facilities that is 
affecting both interstate and intrastate transport of waste. In 
part, this has come about because of the imposition of more 
stringent State and Federal standards for the disposal of 
waste. As a result, older disposal facilities are increasingly 
being closed and new facilities are becoming more difficult to 
site.
    Such consolidation of waste disposal is expected to 
continue with the implementation of new standards for municipal 
solid waste landfills promulgated by the Environmental 
Protection Agency under Subtitle D of the Resource Conservation 
and Recovery Act (RCRA). The new standards require landfill 
liners, leachate collection and treatment, groundwater and gas 
monitoring, corrective action, and closure and post closure 
care.
    As a result of regionalization and the cost of waste 
disposal in some areas, there has been an increase in the 
transport of waste interstate. Since many States do not impose 
reporting requirements on waste exporters or waste management 
facilities, the quality of data on the levels of interstate 
waste transport vary greatly from State to State. According to 
a 1993 report from the National Solid Waste Management 
Association however:
          Interstate shipment of waste grew by 4 million tons, 
        an increase of more than 25 percent, between 1990 and 
        1992. Currently, about 15 million tons of municipal 
        waste is exported;
          47 States, the District of Columbia, the Canadian 
        provinces of Ontario and British Columbia, and Mexico 
        exported some portion of their municipal solid waste 
        for disposal in the contiguous United States in 1992;
          44 States import some MSW for disposal;
          4 States (New York, New Jersey, Illinois, and 
        Missouri) and the Canadian province of Ontario export 
        more than 1 million tons of MSW for disposal; and
          an additional 13 States and the District of Columbia 
        exported at least 100,000 tons of waste in 1992.
    A recent memorandum compiled by the Congressional Research 
Service dated March 14, 1995, listed three States exporting 
more than 1 million tons of MSW in 1993 (New York, New Jersey 
and Illinois). On the import side, the document listed four 
States as having received more than 1 million tons of municipal 
solid waste in 1993 (Pennsylvania, Ohio, Virginia and 
Illinois). The Committee notes that while a majority of 
imported waste appears to be disposed of in privately owned 
landfills, in some States large quantities are transported to 
publicly owned facilities which, in many cases, have the 
authority to restrict out-of-State waste under the so called 
``market participation exemption to the dormant commerce 
clause'' of the U.S. Constitution, (see Constitutional issues 
below).
            Constitutional issues
    Although generally a protected commodity under the Commerce 
Clause of the Constitution, waste imports have raised concerns 
for some receiving jurisdictions. The principal problem is that 
sudden shifts in the volume of waste imported to a State may 
make it difficult for the State to plan effectively for the 
management of its own waste. In addition, States that are net 
importers have argued that it is unfair for their citizens to 
experience the impacts of managing waste generated by entities 
outside their own jurisdiction.
    To counteract the flow of interstate shipments, many states 
have attempted to restrict imports of waste through outright 
bans, differential fees, moratoria on facility construction, 
various planning and capacity assurance requirements or other 
mechanisms. Over 30 States have enacted laws that restrict or 
otherwise distinguish out-of-State wastes differently than 
wastes generated within State.
    Many of these laws, however, have been subject to 
constitutional challenge, and the U.S. Supreme Court and other 
Federal Courts generally have upheld such challenges on the 
ground that laws restricting imports of waste violate the U.S. 
Constitution's Commerce Clause (article I, section 8, clause 
3). The Commerce Clause provides that ``Congress shall have 
Power . . . to regulate Commerce . . . among the several 
States.'' In addition to granting regulatory power to Congress, 
the Commerce Clause has long been understood to have a negative 
aspect, the so called ``dormant commerce clause,'' that denies 
States the power to discriminate against or otherwise burden 
the interstate flow of articles of commerce. See, H.P. Hood & 
Sons v. Du Mond, 336 U.S. 525 (1949). Several Federal Circuit 
Courts have ruled on Commerce Clause challenges to import 
restrictions and flow control in the last three years. The 
litigation has also resulted in a number of Supreme Court 
decisions.
    In one of the earliest legal decisions in the area of waste 
restrictions, Philadelphia v. New Jersey, 437 U.S. 617 (1978), 
the Supreme Court applied the ``negative Commerce Clause'' to 
invalidate a New Jersey law prohibiting the importation of 
municipal solid waste generated outside the State. ``Whatever 
New Jersey's ultimately purpose,'' the Court said, ``it may not 
be accompanied by discriminating against articles of commerce 
coming from outside the State unless there is some reason, 
apart from their origin, to treat them differently.'' Id. at 
626.
    Following the Supreme Court's decision in Philadelphia v. 
New Jersey, several States enacted laws imposing various 
restrictions on waste imports, apparently in the hope that 
burdens less onerous than outright prohibition might withstand 
constitutional challenge. These efforts took a number of forms 
including: the establishment of planning districts with 
authority to restrict waste from outside the district's 
jurisdiction, the imposition of differential fees for the 
disposal of in-State and out-of-State waste, waste capacity 
needs requirements, bans on the disposal of certain types of 
waste, and facility construction moratoria.
    In response to these and other similar restrictions, the 
Supreme Court has recently issued three decisions invalidating 
various State attempts to discriminate against out-of-State 
waste. In Oregon Waste Systems, Inc. v. Dep't of Environmental 
Quality, 114 S. Ct. 1345 (1944), the Court invalidated an 
Oregon law imposing a surcharge on the disposal of waste 
generated outside the State. In Chemical Waste Management, Inc. 
v. Hunt, 112 S. Ct. 2009 (1993), the Court invalidated an 
Alabama law imposing a surcharge on the disposal of hazardous 
waste generated outside the State. And in Fort Gratiot Sanitary 
Landfill, Inc. v. Michigan Dept. of Natural Resources, 112 S. 
Ct. 2019 (1993), the Court invalidated a Michigan law allowing 
solid waste management districts to prohibit the disposal of 
waste from outside the district.
    In light of these decisions, it appears that most, if not 
all, State laws restricting waste imports violate the Commerce 
Clause. The one major exception relates to waste disposal sites 
owned by States and localities. In Hughes v. Alexandria Scrap 
Corp., 426 U.S. 794 (1976), the Supreme Court ruled that when 
State and local governments participate in the market, rather 
than merely regulate it, the dormant commerce clause does not 
apply. The associated benefits of the government owned facility 
may, according to the Court, be granted to the taxpayers who 
actually funded it. The so called ``market participant 
exemption,'' however, is strictly limited to the market in 
which the State or local government is actually a participant.
            Congressional legislation
    As has been noted, Congress, through powers granted by the 
U.S. Constitution, may regulate interstate commerce and thus, 
``immunize'' State actions, which otherwise would violate the 
Commerce Clause. See Northeast Bancorp, Inc. v. Board of 
Governors of the Federal Reserve System, 472 U.S. 159, 174-75 
(1985).
    To this end, in the past few years, several Senate bills 
have been introduced and referred to the Environment and Public 
Works Committee that would provide authority to the States to 
restrict imports of waste in certain circumstances. Similar 
legislation has been introduced in the House of 
Representatives.
    Since 1990, the Environment and Public Works Committee has 
held 3 hearings (June 18, 1990; July 18, 1991; and March 1, 
1995) to review the issues posed by the interstate shipment of 
municipal solid waste. Over the past five years, the Committee 
has worked to develop a solution that would preserve the 
advantages of interstate commerce, while providing States some 
new authority to create a more orderly and predictable flow of 
waste imports and exports.
    In the 102d Congress, the Committee reported S. 976, the 
Resource Conservation and Recovery Act Amendments of 1992, a 
bill that addressed a wide range of solid waste issues. Section 
412 of the bill provided authority for Governors to restrict 
the disposal of out-of-State waste, but the legislation was not 
considered by the full Senate. The Senate subsequently approved 
separate legislation addressing interstate shipment of waste, 
S. 2877, the Interstate Transportation of Municipal Solid Waste 
Act of 1992, by a vote of 89-2, on July 23, 1992. No comparable 
legislation was approved by the House.
    During the 103d Congress, the Committee unanimously 
reported S. 2345, the Interstate Transportation of Municipal 
Solid Waste Act of 1994 (Senate Report 103-322), to provide 
legal authority to every State to restrict out-of-State MSW. S. 
2345 was approved in the Senate by voice vote on September 30, 
1994. The legislation would have allowed every Governor to 
freeze MSW exports at 1993 levels, and to ban future MSW 
imports to facilities not receiving such waste in 1993 if the 
affected local community did not want to receive out-of-state 
MSW. In addition, the bill included an ``export state ratchet'' 
to reduce the level of MSW exports from large exporting States 
and an ``import State ratchet'' to ensure that no single State 
received large amounts of MSW from another State.
    On September 29, 1994, the House of Representatives 
approved its own interstate package, H.R. 4683, and after 
adding flow control language, a modified version of S. 2345 was 
approved by the House on October 7, 1994. The Senate received 
the bill, including both interstate waste and flow control 
provisions, on October 8, 1994, the last day of the Senate 
session. S. 2345, as approved by the House, was not considered 
on the Senate floor.
    Thus far in the 104th Congress, several bills have been 
referred to the Environment Committee that would authorize 
State restrictions on imports of waste in certain 
circumstances, including S. 456 introduced by Senator Baucus, 
S. 589, introduced by Senator Coats and S. 542, introduced by 
Senator Conrad. Generally, these bills build on the provisions 
of S. 2877 and S. 2345.
    On March 1, 1995, the Senate Environment and Public Works 
Committee's Superfund, Waste Control and Risk Assessment 
Subcommittee held a hearing on the issues of interstate waste 
and flow control.
    In response to the testimony received at the hearing, 
Senator Robert Smith, Chairman of the Subcommittee and Senator 
John H. Chafee, Chairman of the Full Committee, introduced S. 
534, a bill to amend the Solid Waste Disposal Act, to provide 
authority for States to regulate the interstate transportation 
of municipal solid waste and to provide States and political 
subdivisions authority to flow control waste. The bill, as 
amended, was ordered reported unanimously, by voice vote, from 
the Superfund Subcommittee on March 15, 1995. The Full 
Committee ordered the bill reported, as amended, on March 23, 
1995, by a rollcall vote of 16 to 0.

Flow control

    The term ``flow control'' refers to the legal authority of 
States and local governments to designate where municipal solid 
waste (MSW) must be taken for processing, treatment or 
disposal. As a waste management strategy, flow control requires 
waste to be delivered to specific facilities such as waste to 
energy plants (WTE), landfills, transfer stations, materials 
recovery facilities and composting operations.
    Flow control has played a part in the domestic waste market 
for over twenty-five years. Thirty-five States, the District of 
Columbia, and the Virgin Islands authorize flow control 
directly. According to the Environmental Protection Agency's 
March 1995 ``Report to Congress on Flow Control and Municipal 
Solid Waste,'' these States and territories ``specifically 
allow local governments to use flow controls, to designate 
facilities where waste must be managed, and to require 
mandatory participation in municipal solid waste management 
services.'' Four additional States authorize flow control 
indirectly through mechanisms such as local solid waste 
management plans (Michigan, Texas) and home rule authority 
(Maryland, Massachusetts); eleven States have no flow control 
authority (Alaska, Arizona, California, Idaho, Indiana--with 
the exception of Indianapolis--Kansas, Kentucky, Nevada, New 
Mexico, South Carolina and Utah).
    The primary factor driving the imposition of flow control 
ordinances is economics. Over the past two decades, State and 
local governments have used flow control as a financing 
mechanism for the development of new municipal solid waste 
capacity. Such controls guarantee that a projected amount of 
waste will be received at designated waste facilities. Thus, a 
predictable revenue stream is generated for the retirement of 
capital debt and other expenses incurred by the waste 
management facility.
    According to the Public Securities Association in testimony 
before the Committee, over $20 billion in municipal bonds have 
been issued to pay for the construction of solid waste 
facilities. In the overwhelming majority of cases, investors 
were assured that the projected amounts of waste would be 
delivered to the financed facility because flow control laws 
were in place.
    This approach has ensured funding for capital intensive 
waste management facilities such as waste-to-energy plants. 
According to the EPA in its March 1995 report to Congress, of 
the 145 waste-to-energy facilities currently operating, 61 have 
waste guaranteed by flow control ordinances, representing close 
to 58% of the total 31 million tons of waste combusted in 1992. 
An additional 40 facilities received waste guaranteed by 
contracts, which may have been supported by some form of flow 
control, representing an additional 31% of the WTE market.
    Flow control has also served as a trigger for recycling and 
for the diversion of specific wastes to certain facilities. In 
addition, it has been a tool for States and localities to plan 
for and fund solid waste management programs.
    Governmentally directed flow control, however, is not the 
only mechanism available to achieve such purposes. In fact, the 
EPA's March 1995 report concluded that ``flow control is not 
essential for developing MSW management capacity, or for 
achieving recycling goals.''
    The Committee has received testimony in support and 
opposition to flow control. Proponents of flow control have 
argued that flow control is an essential tool without which 
governments would find it more difficult, if not impossible, to 
fulfill their responsibilities to plan for the management of 
municipal solid waste. They have asserted that flow control 
ensures the financing of existing and planned municipal waste 
facilities, the delivery of garbage to environmentally sound 
facilities, and the generation of revenues for other aspects of 
local solid waste management, including recycling, household 
hazardous waste management and the cleanup of disposal sites.
    Opponents of flow control, including small business, many 
environmental groups, and a number of firms in the waste 
management industry, have made a case that flow control has 
limited competition in the waste market, created inefficient 
local monopolies, increased disposal costs, and interfered with 
the free flow of commerce.
            Constitutional issues
    Not unlike the interstate transport of municipal solid 
waste, flow control has emerged as a controversial legislative 
issue because of several recent Federal court decisions. Over 
the past five years, Federal courts have ruled that flow 
control laws in no fewer than four States violated the Commerce 
Clause of the U.S. Constitution. Again, the issue has been 
whether waste restrictions, and specifically flow control, 
undermined the dormant commerce clause that bars States and 
political subdivisions from placing undue burdens on interstate 
commerce.
    The primary legal case that has brought the flow control 
debate to a head is C&A Carbone, Inc. v. Town of Clarkstown, 
New York 114 S. Ct. 1677 (1194), which the Supreme Court 
decided on May 16, 1994. By way of background, in the late 
1980's, the State of New York ordered the Town of Clarkstown to 
close its landfill and replace it with a transfer station from 
which waste would be shipped to other facilities. The town 
contracted with a private contractor to build and operate the 
station. To finance the waste station's cost, the town 
guaranteed a minimum waste flow to the facility, for which the 
contractor could charge haulers a waste tipping fee which 
exceeded the disposal cost of unsorted solid waste on the 
private market. In order to meet the waste flow guarantee, the 
town adopted a flow control ordinance, requiring all 
nonhazardous solid waste within the town to be disposed at the 
transfer station.
    After discovering that C&A Carbone, a waste company, was 
shipping nonrecyclables to out-of-State destinations, the town 
filed suit in State court, seeking an injunction requiring that 
the waste be shipped to the transfer station. Carbone responded 
by filing suit in United States District Court to enjoin the 
town's flow control ordinance. The United States District Court 
granted the injunction, C&A Carbone, Inc. v. Clarkstown (SDNY) 
1991. Shortly thereafter, the New York court declared the flow 
control ordinance constitutional and granted summary judgment 
to the town of Clarkstown. The United States District Court 
then dissolved its injunction.
    The U.S. Supreme Court, however, held that the Clarkstown 
ordinance violated the Commerce Clause. The Court held, on May 
16, 1994, that:

          (1) The Ordinance regulated interstate commerce. 
        Although its immediate effect was to direct transport 
        of solid waste to a site within the local jurisdiction, 
        its economic effects were clearly interstate in reach.
          (2) The ordinance discriminated against interstate 
        commerce for it allowed only the favored operator to 
        process waste within the town limits.
          (3) The town did not lack other means to advance the 
        local interest of preserving healthy and safety with 
        respect to waste disposal. In addition, the ordinance's 
        revenue generating purpose by itself was not a local 
        interest that could justify discrimination against 
        interstate commerce.

    Delivering the opinion of the Court, Justice Kennedy wrote: 
``The central rationale for the rule against discrimination is 
to prohibit state or municipal laws whose object is local 
economic protectionism, laws that would excite those jealousies 
and retaliatory measures the Constitution was designed to 
prevent.''
    In a concurring opinion, Justice O'Connor once again 
affirmed Congressional authority to regulate interstate 
commerce, concluding that ``it is within Congress' power to 
authorize local imposition of flow control. Should Congress 
revisit this area, and enact legislation providing a clear 
indication that it intends States and localities to implement 
flow control, we will, of course, defer to that legislative 
judgement.''
    Thus, the supreme Court's ruling in the Carbone case has 
made it evidently clear that, absent Congressional action, the 
exercise of flow control by States and political subdivisions 
is unconstitutional.
            Congressinal legislation
    In response to local communities' concerns about protecting 
financial investments in solid waste management facilities and 
the desire to limit interference in the private waste market, 
the Environment and Public Works Committee has worked to craft 
a legislative solution with respect to flow control.
    Several bills authorizing flow control were referred to the 
Committee in the 103rd Congress, including S. 2227, introduced 
by Senator Lautenberg and S. 1634, introduced by Senator 
Heflin. In addition, during the 103rd Congress, the Committee 
held a hearing on the issue of flow control (July 13, 1994).
    As a general matter, the proposals to grant authority to 
States and political subdivisions to impose flow control 
authority have taken the following approaches:
    Strict grandfather.--Under this approach, those States and 
political subdivisions that had enacted and implemented flow 
control ordinances by designating specific waste management 
facilities prior to the Carbone decision could continue to 
impose flow control until the debt incurred for construction of 
the facilities was retired or until the end of the useful life 
of the facilities.
    Modified grandfather.--Under this approach, in addition to 
those entities covered by the strict Grandfather, those States 
and political subdivisions that had made a ``substantial 
commitment'' to the designation of waste management facilities 
prior to the Carbone decision could impose flow control.
    System grandfather.--Under this approach, in addition to 
the entities covered by the strict and modified grandfathers, 
those States and political subdivisions that had put in place a 
waste management system predicated on flow control without 
necessarily designating specific facilities would be granted 
flow control authority.
    Although the Environment and Public Works Committee did not 
report a flow control measure in the 103d Congress, flow 
control language was added by the House of Representatives to 
the House approved version of S. 2345, the Interstate 
Transportation of Municipal Solid Waste Act of 1994. S. 2345, 
as approved by the House, was not considered in the Senate.
    Thus far in the 104th Congress, several bills have been 
referred to the Committee authorizing States and political 
subdivisions to impose flow control, including S. 398, 
introduced by Senator Lautenberg and S. 485, introduced by 
Senator Hutchison.
    On March 1, 1995, the Environment and Public Works 
Committee's Superfund, Waste Control and Risk Assessment 
Subcommittee held a hearing to receive testimony on the issue 
of flow control. In response to the testimony received, Senator 
Smith and Senator Chafee introduced S. 534.

Ground water monitoring

    Title III of the reported bill reinstates the ground water 
monitoring exemption for small landfills in the municipal solid 
waste landfill criteria (MSWLFC). Section 4010(c) of RCRA 
directed EPA to revise the MSWLF criteria. One of the most 
significant issues raised during revision of the criteria was 
the impact on small community landfills.
    As a result, the October 9, 1991 Final Rule for the MSWLFC 
included a ground water exemption for owners and operators of 
certain small landfills. To qualify for the exemption, the 
landfill had to accept less than twenty tons of waste per day, 
exhibit no evidence of ground water contamination and serve 
either a community that experiences an annual interruption of 
at least consecutive months of surface transportation that 
prevents access to a regional waste management facility, or has 
no practicable waste management alternative, and the landfill 
unit is located in an area that annually receives less than or 
equal to twenty-five inches of precipitation.
    In January 1992, the Sierra Club and the Natural Resources 
Defense Council filed petitions with the U.S. Court of Appeals, 
District of Columbia Circuit for review of the Subtitle D 
criteria. The Court held that under RCRA section 4010(c), the 
only factor EPA could consider in determining whether 
facilities must monitor their ground water was whether such 
monitoring was ``necessary to detect contamination'' not 
whether such monitoring is ``practicable.''
    Thus, the Court vacated the small landfill exemption as it 
pertained to ground water monitoring. The purpose of Title III 
of the reported bill is to reinstate the exemption.
The reported bill

    The reported legislation includes three titles. Title I 
deals with interstate waste and is similar to the Senate 
approved version of S. 2345 from the 103rd Congress. Title II 
focuses on flow control, and Title III reinstates the ground 
water monitoring exemption for small landfills in the municipal 
solid waste landfill criteria.
            Title I--Interstate waste
    Title I provides legal authority to every State to restrict 
out-of-State municipal waste (``MSW''). In addition, the 
legislation provides the same authority with respect to out-of-
country MSW, if it is consistent with U.S. international trade 
obligations under GATT or NAFTA.
    Title I of the reported bill deals only with municipal 
solid waste, commonly known as garbage or trash. It purposely 
avoids imposing restrictions on the interstate transport of 
hazardous waste, industrial waste or construction and 
demolition debris. The reported bill is intended to provide 
States with additional control over MSW imports without unduly 
limiting the flow of interstate commerce.
    The legislation allows every Governor to freeze current MSW 
imports at 1993 levels, and to ban future MSW imports to 
facilities not receiving such waste in 1993, if the affected 
local community does not want to receive out-of-State MSW. In 
addition, the bill includes an ``export State ratchet'' to 
reduce the level of MSW exports from large exporting States and 
an ``import State ratchet'' to ensure that no single State 
receives excessive amounts of MSW from one particular State.
    Specifically the bill provides the following new authority:
    MSW import ban.--A Governor may, if requested by the 
affected local community (as designated by the Governor), ban 
out-of-State MSW at landfills or incinerators (including waste-
to-energy facilities) that did not receive out-of-State MSW in 
1993, or at those that received MSW in 1993 but are not in 
compliance with applicable Federal or State standards.
    MSW import freeze.--A Governor may unilaterally freeze out-
or-State MSW at 1993 levels at landfills and incinerators 
(including waste-to-energy facilities) that received MSW during 
1993 and are in compliance with applicable Federal or State 
standards.
    MSW export state ratchet.--A Governor may unilaterally ban 
out-of-State MSW from any State exporting more than 3.5 million 
tons of MSW in 1996, 3.0 million tons in 1997 and 1998, 2.5 
million tons of MSW in 1999 and 2000, 1.5 million tons in 2001 
and 2002, and 1 million tons of MSW in 2003 and every year 
thereafter.
    MSW import state ratchet.--A Governor may unilaterally 
restrict out-of-State MSW, imported from any 1 State in excess 
of the following levels: in 1996, more than 1.4 million tons or 
90% of the 1993 levels of such waste exported to such State, 
whichever is greater; in 1997, 1.3 million tons or 90% of the 
1996 levels of such waste exported to such State, whichever is 
greater; in 1998, 1.2 million tons or 90% of the 1997 levels of 
such waste exported to such State, whichever is greater; in 
1999, 1.1 million tons, or 90% of the 1998 levels of such waste 
exported to such State, whichever is greater; in 2000, 1 
million tons; in 2001, 800,000 tons; and in 2002, and each year 
thereafter, 600,000 tons.
    Cost recovery surcharge.--States that imposed a 
differential fee on the disposal of out-of-State MSW, on or 
before April 3, 1994, are allowed to impose a fee of no more 
than $1 per ton of MSW, as long as the differential fee is 
utilized to fund solid waste management programs administered 
by the State.
    Miscellaneous.--The reported bill also allows any Governor 
to exercise authorities to ban or limit MSW imported from 
Canada (and other countries) if doing so is found by the 
President to be consistent with U.S. international trade 
obligations under GATT and NAFTA.
    The legislation makes clear that nothing in the bill shall 
have any effect on State law relating to contracts on or State 
and local authorities to protect the public health and 
environment through laws, regulations and permits provided that 
such laws, regulations and permits do not discriminate between 
in-State and out-of-State waste, except as provided in this 
bill and consistent with the Supreme Court decisions in 
Philadelphia v. New Jersey and in Fort Gratiot Sanitary 
Landfill Inc. v. Michigan Department of Natural Resources.
    The reported bill explicitly prohibits a Governor from 
limiting or prohibiting MSW imports to landfills or 
incinerators (including waste-to-energy facilities) that have a 
host community agreement (as defined in the bill). Such 
agreements must specifically authorize (as defined in the bill) 
the receipt of out-of-State municipal solid waste. The language 
for such authorization may vary as long as it clearly and 
affirmatively states the approval or consent of the affected 
local government or State for the receipt of municipal solid 
waste from sources outside the receiving State. In addition, 
future host community agreements must meet new public 
disclosure requirements before execution.
    The bill does, however, allow a governor to prevent receipt 
of out-of-State MSW, even under the terms of a host community 
agreement, if such imports would interfere with waste capacity 
that is permitted by State or federal law; identified in the 
State's solid waste management plan; and is legally committed 
for disposal of waste generated within the region.
            Title II--Flow control
    There has been a strong concern, in the wake of the Carbone 
decision that without prompt Congressional action on the 
authorization of flow control, local communities would be 
unable to meet debt service obligations related to prior 
issuance of revenue bonds for the construction of solid waste 
management facilities.
    The reported bill addresses this issue. The intention of 
the reported bill is to provide States and political 
subdivisions with flow control authority in order to meet 
financial obligations and maintain credit worthiness. The title 
provides limited flow control authority under certain 
conditions to States and political subdivisions that embarked 
on financial investments that were, rightly or wrongly, 
predicated on the expectation or implementation of flow 
control. It does not reflect any position on the 
appropriateness of flow control as a policy option for solid 
waste management. In each instance in which flow control 
authority is granted, that grant is predicated on meeting debt 
obligations.
    The reported bill does not provide flow control authority 
to States and political divisions for the purposes of directing 
waste to solid waste management facilities for which the 
capital cost of construction has been retired. Furthermore, any 
grant of authority provided in the reported bill expires no 
later than thirty years after date of enactment.
    Title II of S. 534 includes three major provisions:
                         flow control authority

    General flow control authority.--The bill provides general 
flow control authority as follows: Each state and each 
political subdivision that prior to May 15, 1994: (1) imposed 
flow control pursuant to a law, ordinance, regulation or other 
legally binding provision; and (2) implemented flow control by 
designating particular waste management facilities or a public 
service authority for waste disposal would be authorized to 
conduct flow control activities until the later of the end of 
the contract between the State or political subdivision and any 
other person regarding movement of the waste, completion of the 
schedule for payment of the capital costs of the waste facility 
or the end of the useful life of the original waste facility. 
The implementation of flow control requires that a State or 
political subdivision ``designate'' particular waste management 
facilities or a public service authority to which its waste is 
to be delivered. This ``designation'' must be performed prior 
to the substantial construction of the designated facilities 
(which can be through a public service authority) and can be 
satisfied by a State or political subdivision in one of two 
ways: (1) by passing a law, ordinance, regulation, or other 
legally binding agreement to direct its waste prior to 
substantial construction of the facility; or (2) by 
contractually committing to direct its waste prior to 
substantial construction of the facility, where the law, 
ordinance, regulation, or other legally binding agreement was 
approved after substantial construction is completed.
    State related flow control.--In addition, any State or 
political subdivision that adopted and applied flow control 
regulations under State law, and applied those regulations to 
every political subdivision of the State, on or before January 
1, 1984, may designate any waste facility in the State and 
continue to exercise flow control authority for the remaining 
useful life of the facility; or any political subdivision of a 
State may exercise flow control authority if, prior to May 15, 
1994, the political subdivision was mandated by law to provide 
for the operation of solid waste facilities, is required to 
initiate a recyclable materials program, had implemented the 
authority through a law, ordinance, regulation contract, or 
other legally binding provision and had incurred significant 
financial expenditures to repay outstanding revenue bonds for 
the construction of solid waste management facilities to which 
the political subdivision's waste was designated.
    Public service authority flow control.--Furthermore, any 
political subdivision that contracted with a public service 
authority for the disposal of municipal solid waste, prior to 
May 15, 1994, may exercise flow control until the expiration of 
the contract or the life of the bonds issued for the 
construction of the solid waste facilities to which the 
political subdivision's waste is transferred or disposed.

                flow control commitment to construction

    Any political subdivision that had a law, ordinance, 
regulation or other legally binding provision providing for 
flow control in effect prior to May 15, 1994, and had committed 
to the designation of a facility prior to that date, may 
exercise flow control under subsection (b) of the reported 
bill. Under this provision, commitment is demonstrated by one 
or more of the following (prior to May 5, 1994): completed 
construction permits; a signed contract to construct a 
facility; revenue bonds presented for sale; or the filing of 
permit applications for construction and operation of a 
facility.
                          flow control sunset

    Under subsection (j) of this title, all authority to flow 
control would be repealed effective 30 years after the date of 
enactment.
            Title III--Ground water monitoring
    Title III reinstates the ground water monitoring exemption 
for small landfills in the municipal solid waste landfill 
criteria (MSWLFC).

                      Section-by-Section Analysis

                         section 1. short title

    Section 1 establishes the short title of the bill as the 
``Interstate Transportation of Municipal Solid Waste Act 
1995''.

                        Title I--Interstate Waste

      sec. 101. interstate transportation of municipal solid waste

    Section 101 adds a new section to Subtitle D of the 
Resource Conservation and Recovery Act, authorizing states to 
restrict municipal solid waste imports in certain 
circumstances, as follows:

   ``sec. 4011. interstate transportation of municipal solid waste''

Sec. 4011(a) Authority to restrict out-of-State municipal solid waste

            Section 4011(a)(1)
    Section 4011(a)(1) sets forth the basic authority for 
Governors to ban out-of-State imports of municipal solid waste 
for disposal at facilities that did not receive such waste in 
1993. This authority may be exercised only if a formal request 
is received by the Governor from the affected local government.
    The provision must be viewed in the context of existing 
law. The courts have consistently held under the Commerce 
Clause that, absent Congressional authorization, municipal 
solid waste disposal shipments among States are not subject to 
regulation or limitation by the importing States based solely 
on the fact that the waste is from another State. This 
provision of the reported bill provides Congressional 
authorization for the imposition of restrictions. It includes a 
grant of authority to Governors, under certain specified 
circumstances and pursuant to State law, to restrict the 
disposal of out-of-State municipal solid waste that would 
otherwise be constitutionally protected.
    The grant of authority for Governors to restrict interstate 
transportation of municipal solid waste applies only to that 
waste intended for disposal in landfills or incinerators 
(including waste-to-energy facilities) in a State. Furthermore, 
the ultimate use of that authority expressly precludes 
interference with host community agreements. It is also 
intended to apply only to ``municipal solid waste,'' which is a 
defined term.
    The grant of authority is not intended to reflect a 
Congressional judgment as to the appropriateness of interstate 
transportation of municipal solid waste for disposal purposes. 
This is a decision to be made by Governors pursuant to State 
law, except in certain circumstances, only after a request from 
the affected local government and only if it would not 
interfere with the execution of a host community agreement.
            Section 4011(a)(2)
    Section 4011(a)(2) deals with those facilities that 
received out-of-State waste in 1993. Landfills or incinerators 
(including waste-to-energy facilities) that did receive out-of-
State MSW in 1993 are generally allowed to continue receiving 
out-of-State MSW in the future (these are referred to, although 
not defined as such in the bill, as ``grandfathered'' 
facilities). A Governor may, under paragraph (2), however--
notwithstanding the absence of a request--limit the quantity of 
out-of-State MSW that such facilities received for disposal, to 
the amount received in 1993, unless such action would violate a 
host community agreement or permit authorizing the receipt of 
out-of-State waste.
            Section 4011(a)(3)
            Section 4011(a)(3)(A)
    Under Section 4011(a)(3)(A), a Governor may, in the absence 
of a request, prohibit disposal of any municipal solid waste 
from States that exported more than specified amounts of such 
waste to facilities referred to in Paragraph (2) that are not 
covered by host community agreements or permits authorizing the 
receipt of out-of-State waste. The specified amounts are more 
than 3.5 million tons of MSW in 1996, declining over seven 
years to 1.0 million tons in calendar year 2003, and each year 
thereafter.
            Section 4011(a)(3)(B)
    Section 4011(a)(3)(B) authorizes a Governor to impose 
limits on the amount of municipal solid waste which any one 
State may export for disposal at landfills or incinerators 
(including waste-to-energy facilities) not covered by host 
community agreements which are located within the affected 
Governor's State. These limits begin at 1.4 million tons of MSW 
in 1996 or 90 percent of the 1993 levels exported to such 
State, whichever is greater, and gradually decline to 600,000 
tons in 2002 and each year thereafter. A Governor from an 
importing State must notify the Governor of the exporting State 
or States and the Administrator of EPA twelve months prior to 
taking action if he or she intends to impose these limits. 
Furthermore, any restrictions imposed must be applied without 
discrimination at all facilities receiving out-of-State MSW.
    The regimen established by this section is intended to rely 
on a municipal solid waste management structure that defers in 
most cases to the decisions and interests of State and local 
governments, upon which fall the bulk of responsibility 
associated with accepting or limiting disposal of out-of-State 
municipal solid waste.
    The intent in establishing a class of grandfathered or 
exempt facilities, against which import bans may not be imposed 
except in narrow circumstances, is to protect arrangements and 
investments made in good faith reliance on the protections of 
the Commerce and Contracts Clauses of the U.S. Constitution. It 
also avoids the disruption that would otherwise ensue if the 
future of all interstate municipal waste shipments were 
rendered uncertain. Such a disruption must be avoided otherwise 
exporting States will be forced into questionable environmental 
decisions such as delaying the closure of substandard 
facilities in order to preserve in-State disposal capacity.
    In implementing these authorities, the bill does not 
empower States to act in limiting imports of municipal solid 
waste so as to discriminate among States of origin or among 
recipient disposal sites. The language in Section 4011(a)(5) is 
designed to preclude such action. Where a Governor is 
authorized to freeze or otherwise limit municipal solid waste 
imports, such restrictions may not be imposed selectively.
            Section 4011(a)(4)
    Paragraph (4) preserves the provisions of host community 
agreements and permits. Under Section 4011(a)(4)(A), a Governor 
may not exercise the authority to prohibit or limit municipal 
solid waste imports if such action would be inconsistent with 
the terms of a host community agreement or a permit issued from 
the State. Section 4011(a)(4)(B) prohibits Governors from using 
authority provided by the bill to require that 
``grandfathered'' facilities reduce the level of out-of-State 
MSW from any State to an annual quantity less than the amount 
received from such State at the ``grandfathered'' facility 
during 1993.
            Section 4011(a)(5)
    Paragraph (5) prohibits discrimination against specific 
facilities or exporting States. It provides that limitations 
imposed by the Governor at grandfathered facilities must be 
applicable throughout the State and not directly or indirectly 
discriminate against any particular landfill or incinerator 
(including a waste-to-energy facility). In addition, limits may 
not discriminate against shipments on the basis of State of 
origin, but rather must be applied equally to all States that 
exceed the limits imposed under paragraph (3).
            Section 4011(a)(6)
    Paragraph (6) provides for an annual report detailing waste 
imports. The States are charged with publishing the report 
based on information provided by owners or operators of 
importing landfills and incinerators. The report serves as the 
basis for a Governor's action to impose bans or restrictions on 
the importation of municipal solid waste.
            Section 4011(a)(7)
    Paragraph (7) sets forth procedural requirements for 
affected local governments that intend to enter a host 
community agreement or request that the Governor prohibit waste 
imports. Following notice and public comment, the affected 
local government must take formal action at a public meeting. 
It is expected that the procedures that local governments use 
for formal action on a host community agreement or request made 
to a Governor would be similar to the procedures that such 
governments use when taking action on similar or related 
activities.
            Section 4011(a)(8)
    Paragraph (8) includes a list of information that must be 
provided to the affected local government by an owner or 
operator of a landfill or incinerator seeking a host community 
agreement. The provision provides that such information shall 
be made available to the public by the affected local 
government.

Section 4011(b) Exceptions to authority to prohibit out-of-State 
        municipal solid waste

            Section 4011(b)(1)
    Section 4011(b)(1) identifies those facilities that are not 
subject to a Governor's authority to ban disposal of out-of-
State municipal solid waste (i.e. grandfathered facilities). 
These are landfills and incinerators (including waste-to-energy 
facilities) that received out-of-State MSW in 1993, and in the 
case of landfills, are in compliance with all applicable 
Federal and State laws and regulations relating to facility 
design and operation, and in the case of incinerators 
(including waste-to-energy facilities), are in compliance with 
applicable requirements of Section 129 of the Clean Air Act and 
applicable State laws and regulations. A landfill or 
incinerator (including a waste-to-energy facility) that is not 
in compliance with such laws may lose its grandfathered status. 
Under the provisions of Section 4011(b)(2), however, a Governor 
who exercises the authority provided in subsection (a), to 
prohibit out-of-State MSW disposal at a facility not in 
compliance, must also prohibit the disposal of MSW generated 
within the State at such a facility.

Section 4011(c) Additional authority to limit out-of-State municipal 
        solid waste

            Section 4011(c)
    Section 4011(c) outlines the only instance in which a 
Governor can override a host community agreement. The provision 
allows a Governor to prohibit the execution of a host community 
agreement with respect to a specified amount of capacity if the 
host community agreement would preclude the use of capacity 
that is: permitted by State or Federal law, identified under 
the State's solid waste management plan and committed to 
disposal of locally generated municipal solid waste. This 
authority may not be used to prevent a facility from committing 
excess capacity to out-of-State MSW.
Section 4011(d) Cost recovery surcharge

            Section 4011(d)
    Section 4011(d) provides grandfather authority for the 
imposition of cost recovery surcharges to any State that on or 
before April 3, 1994 imposed such surcharges on the processing 
or disposal of out-of-State municipal solid waste pursuant to a 
State law. The imposition of the surcharge is conditioned upon 
the State's ability to demonstrate that a differential cost 
arises from the processing of disposal of out-of-State waste, 
that such costs would otherwise have to be paid by the State 
and that the surcharge is compensatory and not discriminatory. 
A State may not assess a surcharge if the cost that the 
surcharge is intended to cover is otherwise recovered by 
another surcharge or tax assessed against solid waste. The 
State bears the burden of proof that the fee satisfies the 
above conditions. In addition, this provision provides that the 
surcharge may not exceed $1 per ton of waste and that the 
surcharge shall be used to fund only those solid waste 
management programs for which the fee is collected.
    This section provides authority in the most limited of 
situations, to States that: imposed such a fee, prior to April 
13, 1994, and can demonstrate the need for such a charge. The 
$1 surcharge was regarded as the absolute maximum fee 
allowable.

Section 4011(e) Savings clause

            Section 4011(e)
    Section 4011(e) provides that nothing in the reported bill 
shall have any effect on State contract law. The provision is 
intended to clarify that the new Section 4011 does not convey 
any authority for Governors to interfere with current 
contractual arrangements between generators of waste and public 
or private entities for out-of-State municipal solid waste 
disposal.
    Section 4011(d) is also intended to clarify that nothing in 
the new section shall affect State and local authority to 
protect public health and the environment through laws, 
regulations and permits, including authority to limit the total 
amount of municipal solid waste that landfill or incinerator 
(including a waste-to-energy facility) owners or operators 
within the jurisdiction of a State may accept during a 
prescribed period, provided that such limitations do not 
discriminate between in-State and out-of-State municipal solid 
waste except to the extent authorized by this section and 
consistent with the Supreme Court decisions in Philadelphia v. 
New Jersey and Fort Gratiot Sanitary Landfill Inc. v. Michigan 
Department of Natural Resources.

Section 4011(f) Definitions

            Section 4011(f)
    Section 4011(f) contains definitions for the terms 
``affected local government'', ``host community agreement'', 
``out-of-State municipal solid waste'', ``municipal solid 
waste'', ``compliance'', ``specifically authorized'', and 
``specifically authorizes''.
    In paragraph (1) the term ``affected local government'' is 
defined. For purposes of this section, affected local 
government is defined by the Governor and published within 90 
days after enactment of this section as either, (A) a public 
body created by state law with responsibility to plan for 
municipal solid waste management provided that a majority of 
the members of such body are elected officials, or (B) the 
elected officials of a city town, township, borough, county, or 
parish exercising primary jurisdiction over municipal waste 
management or jurisdiction over the land. If the Governor fails 
to make a selection within 90 days after enactment of this 
section, the affected local government shall be the elected 
officials of a city, town, township, borough, county, or parish 
exercising primary jurisdiction over the land or the use of the 
land on which the facility is located or proposed to be 
located.
    This definition is necessary for the purpose of taking 
action pursuant to subsection (a)(1) (primarily to request a 
ban on the disposal of out-of-State MSW in any landfill or 
incinerator that did not receive out-of-State MSW in 1993) and 
for entering into a host community agreement as defined in this 
section. With respect to subsection (a)(1), a Governor may only 
prohibit out-of-State municipal solid waste if requested by the 
affected local government. With respect to a host community 
agreement, such agreement is between the owner or operator of 
the landfill or incinerator (including a waste-to-energy 
facility) and the affected local government. For both purposes, 
the term affected local government shall be designated by a 
Governor and shall be the same designation.
    There is one important limitation to a Governor's authority 
to designate which public body shall serve as the affected 
local government. For purposes of any host community agreement 
entered into before the date of publication of a Governor's 
selection of the affected local government, the affected local 
government shall be any body described in clause (i) or (ii) or 
subparagraph (B) of this definition that is designated in an 
existing host community agreement. The purpose of this 
limitation is to prevent the reopening of an existing host 
community agreement if such agreement is between the owner or 
operator of a landfill or incinerator (including a waste-to-
energy facility) and an affected local government that is 
different than the body designated by the Governor. It is 
expected, however, that any host community agreement entered 
into after the Governor publishes a notice designating the 
affected local government, will be an agreement between the 
owner or operator and the affected local government designated 
by the Governor.
    In paragraph (2) the term ``host community agreement'' is 
defined. For purposes of this section a host community 
agreement means a written, legally binding document or 
documents executed by duly authorized officials of the affected 
local government that specifically authorizes (as defined in 
the bill) a landfill or incinerator to receive municipal solid 
waste generated out-of-State. Agreements that authorize 
differential fees for in-State and out-of-State waste are not 
considered host community agreements unless they also expressly 
authorize receipt of out-of-State waste.
    This definition is necessary because Section 4011(a)(4)(A) 
prohibits a Governor from taking any action under this section 
if it would result in the violation of, or would otherwise be 
inconsistent with the terms of a host community agreement. Only 
those agreements in which the affected local government has 
expressly authorized the receipt of out-of-State waste are to 
be protected. Agreements that authorize differential fees for 
in-State and out-of-State waste, commonly referred to as fee 
agreements, would therefore not be protected unless they also 
expressly authorize the receipt of out-of-State waste.
    There are however, examples of host community agreements 
that expressly authorize (see definitions of ``specifically 
authorized'' and ``specifically authorizes'') the receipt of 
waste from another State but do not use the term ``out-of-
State''. Instead, they may include a reference to a fixed 
radius surrounding the landfill or incinerator or use terms 
such as ``regardless of origin'' or ``outside the jurisdiction 
of the affected local government''. The bill clearly intends to 
protect such agreements even though they do not use the term 
``out-of-State'', provided that such alternative terms clearly 
and affirmatively state the approval or consent of the affected 
local government or State for the receipt of municipal solid 
waste from sources or locations outside the State.
    In paragraph (3) the term ``out-of-State municipal solid 
waste'' is defined with respect to any State as, municipal 
solid waste generated outside the State. It also refers to 
municipal solid waste generated outside of the United States, 
provided that the President determines such definition is 
consistent with the North American Free Trade Agreement and the 
General Agreement on Tariffs and Trade.
    In paragraph (4) the term ``municipal solid waste'' is 
defined for purposes of this section, as any refuse (or refuse 
derived fuel) generated by the general public from a 
residential, commercial, institutional or industrial source 
consisting of paper, wood, yard wastes, plastics, leather, 
rubber or other combustible or non combustible materials such 
as metal or glass. The definition also specifies a list of 
materials that is not municipal solid waste, including 
hazardous waste, contaminated soil and debris, solid waste that 
has been separated for recycling, industrial waste including 
construction and demolition debris, medical waste and material 
returned to a manufacturer for credit, evaluation or reuse.
    In paragraph (5) the term ``compliance'' is defined as a 
pattern or practice of adhering to and satisfying standards and 
requirements promulgated by the Federal or State government for 
the purpose of preventing significant harm to human health and 
the environment. Actions undertaken in accordance with 
compliance schedules for remediation established by Federal or 
State enforcement actions shall be considered compliance for 
purposes of this section. The definition of compliance included 
in this section is only intended to be used in this section, 
and only for the purpose of determining if a landfill or 
incinerator (including a waste-to-energy facility) continues to 
meet the exceptions to the authority to prohibit the disposal 
of out-of-State municipal solid waste identified in Section 
4011(b).
    In paragraph (6) the terms ``specifically authorized'' and 
``specifically authorizes'' are defined as references to 
explicit authorization, contained in a host community agreement 
or permit, to import waste from out-of-State. Such 
authorizations (as noted in the definition of (``host community 
agreement'') may include a reference to a fixed radius 
surrounding the landfill or incinerator that includes an area 
outside the state or a reference to any place of origin, 
references to specific places outside the State, or use of such 
phrases as ``regardless of origin'' or ``outside of State''. 
The Committee intends that the language for such authorization 
may vary as long as it clearly and affirmatively states the 
approval or consent of the affected local government or State 
for receipt of municipal solid waste from sources outside the 
State.

Section 101(b) Table of contents amendment

            Section 101(b)
    Section 101(b) adds a new section 4011 to the RCRA table of 
contents.

                         Title II--Flow Control

                        section 201. short title

    Section 201 establishes the short title as the ``Municipal 
Solid Waste Flow Control Act of 1995''.

  section 202. state and local government control of municipal solid 
                     waste and recyclable material

    Section 202 adds a new title to Subtitle D of the Resource 
Conservation and Recovery Act, providing authority for States 
and political subdivisions to exercise flow control authority, 
as follows:

 ``section 4012. state and local government control of municipal solid 
                    waste and recyclable material''

Section 4012(a) Definitions

            Section 4012(a)
    Section 4012(a) contains definitions for the terms 
``designate'', ``designation'', ``flow control authority'', 
``municipal solid waste'', ``public service authority'', 
``recyclable material'', and ``waste management facility''.
    In paragraph (1) the terms ``designate'' and 
``designation'' are defined as referring to an authorization by 
a State or political subdivision, and the act of a State or 
political subdivision in requiring or contractually committing, 
that all or any portion of the municipal solid waste or 
recyclable material that is generated within the boundaries of 
the State or political subdivision be delivered to a specific 
waste management facility or facilities for recyclable material 
or a public service authority identified by the State or 
political subdivision.
    In paragraph (2) the term ``flow control authority'' is 
defined as the authority to control and direct the movement of 
municipal solid waste or voluntarily relinquished recyclable 
material to a designated waste management facility or facility 
for recyclable material.
    In paragraph (3) the term ``municipal solid waste'' is 
defined as solid waste generated by the general public or from 
a residential, commercial, institutional, or industrial source 
consisting of paper, wood, yard waste, plastics, leather, 
rubber and other combustible and non-combustible material such 
as metal and glass. The definition also specifies a list of 
materials that is not municipal solid waste, including 
hazardous waste, contaminated soil and debris, medical waste, 
industrial waste, recyclable material and sludge. This 
definition is necessary for the purpose of specifying what 
types of waste may be directed to designated solid waste 
management facilities. In any case, flow control authority 
granted by this bill applies only to the specific classes or 
categories of municipal solid waste to which flow control 
authority was applied by the State or political subdivision on 
or before May 15, 1995. With respect to States and political 
subdivisions that had made only a commitment to the designation 
of a solid waste management facility, such municipal solid 
waste for which the entity had committed would be eligible for 
flow control. In the event that there is a lack of a clear 
identification of specific classes or categories of MSW, only 
MSW generated by households would qualify.
    In Paragraph (4) the term ``public service authority'' is 
defined as (A) an authority or authorities created by State 
legislation to provide individually or in combination solid 
waste management services to political subdivisions or (B) an 
authority that was issued a certificate of incorporation by a 
State corporation commission established by a State 
constitution. This definition is included to address those 
unique instances where States and or political subdivisions 
designated or contracted with such entities, rather than 
specific waste management facilities, for the disposal of MSW.
    In paragraph (5) the term ``recyclable material'' is 
defined as that material that has been separated from waste 
otherwise destined for disposal or has been managed separately 
from waste destined for disposal, for the purpose of recycling, 
reclamation, composting of organic material such as food and 
yard waste, or reuse other than for the purpose of 
incineration. The identification and definition of ``recyclable 
material'' are necessary so as to create a category for such 
material separate from ``municipal solid waste'' for the 
purposes of the imposition of flow control. Only that 
designated (or committed) and ``voluntarily relinquished'' 
recyclable material may be flow controlled.
    In paragraph (6) the term ``waste management facility'' is 
defined as a facility that collects, separates, stores, 
transports, transfers, treats, processes, combusts, or disposes 
of municipal solid waste. This definition is necessary to 
delineate the types of facilities to which flow controlled MSW 
may be directed. Voluntarily relinquished recyclables may also 
be directed to facilities for recyclable material.

Section 4012(b) Authority

            Section 4012(b)
    Section 4012(b) sets forth the basic authority for States 
and political subdivisions to exercise flow control authority.
            Section 4012(b)(1)
    Section 4012(b)(1) provides that each State and each 
political subdivision that imposed flow control pursuant to a 
law, ordinance, regulation, or other legally binding provision 
prior to May 15, 1994, and which implemented flow control by 
the designation of particular waste management facilities or a 
public service authority prior to that date, would be 
authorized to conduct flow control activities. Designation of a 
particular waste management facility (or public service 
authority) must be performed prior to the substantial 
construction of the designated facilities and can be satisfied 
by a State or political subdivision in one of two ways: 1) by 
passing a law, ordinance, regulation, or other legally binding 
agreement to direct its waste prior to substantial construction 
of the facility; or 2) by contractually committing to direct 
its waste prior to substantial construction of the facility, 
where the law, ordinance, regulation, or other legally binding 
agreement was approved after substantial construction is 
completed.
    The grant of flow control established by this section is 
intended to provide those States and political subdivisions 
that controlled the flow of waste prior to the Carbone 
decision, the ability to continue that practice in order to 
meet financial commitments with respect to the construction of 
solid waste management facilities.
            Section 4012(b)(2)
    Section 4012(b)(2) limits the material that States and 
political subdivisions may subject to flow control to the 
specific classes or categories of municipal solid waste to 
which flow control had been applied on or before May 15, 1994. 
With regard to facilities not yet operating under subsection 
(c), flow control would apply to the specific classes or 
categories of municipal solid waste to which the State or 
political subdivision had committed to the designation of a 
waste management facility.
    The intent of this section is to limit the material subject 
to flow control to that specific material that was controlled 
prior to the Carbone decision. It is not the intention of the 
reported bill to allow States or political subdivisions to 
expand its flow control system.
            Section 4012(b)(3)
    Section 4012(b)(3) limits the application of flow control 
at facilities granted authority under subsection (c) in the 
event that classes or categories of waste were not specifically 
listed. Paragraph (3) provides that if there is no clear 
identification of the classes or categories of waste subject to 
flow control, then only municipal solid waste generated by 
households may be identified.
            Section 4012(b)(4)
    Section 4012(b)(4) establishes the duration of authority 
for the general grant of flow control authority provided in the 
bill. The authority shall be effective until the later of: the 
end of the life of the contract between the State or the 
political subdivision and any other person regarding the 
delivery of waste; the completion of the schedule for payment 
of the capital costs of the facility concerned; the end of the 
useful life of the original facility, as that life may be 
extended by significant modifications to meet environmental or 
safety requirements, routine repair that does not add to the 
capacity of the facility, expansion of the facility on land 
that is legally or equitably owned, or under option to purchase 
or lease by the owner or operator and covered by the operating 
permit for the facility as in effect on May 15, 1994.
    The purpose of this section is to limit the time frame for 
which flow control is operating, relating the duration to: 
specific waste contracts at designated MSW facilities; the 
financing of designated facilities; or the useful life of 
designated facilities. This section is intended to take a 
specific facility based, as opposed to system based, approach 
to providing flow control authority.
            Section 4012(b)(5)
    Section 4012(b)(5) provides additional authority to impose 
flow control to those States with solid waste management 
systems predicated on statewide flow control. Under paragraph 
(5) any State or political subdivision that adopted and applied 
flow control regulations under State law and applied those 
regulations to every political subdivision of the State, on or 
before January 1, 1984, may designate any waste management 
facility in the State that was designated prior to May 15, 1994 
and continue to exercise flow control authority for the 
remaining useful life of the designated facility or facilities.
    The purpose of this section is to recognize that some 
States may have implemented State-wide systems for flow control 
prior to the Carbone decision. Under this provision, a State or 
political subdivision, under certain conditions, may designate 
any MSW facility, at any time, in the State-wide system for 
waste disposal if that facility had been designated as part of 
the State-wide system prior to May 15, 1994. The thirty year 
flow control sunset provision for flow control, however, would 
still apply to such States.

Section 4012(c) Commitment to construction

            Section 4012(c)
    Section 4012(c) provides authority to political 
subdivisions of States to impose flow control if such 
subdivisions had committed to, though not yet designated, waste 
management facilities. Any political subdivision that had flow 
control in effect prior to May 15, 1994, and had committed to 
the designation of a facility prior to that date, would be 
authorized to conduct flow control activities. Under this 
provision, commitment is demonstrated by one or more of the 
following (prior to May 15, 1994): completed construction 
permits; a signed contract to construct a facility; revenue 
bonds presented for sale; or the filing of permit applications 
for construction and operation.
    The grant of flow control provided in this section is 
included so as not to penalize those political subdivisions 
that had clearly intended to implement flow control but had not 
done so, in order to qualify under Section 4012(b), prior to 
the Carbone decision.

Section 4012(d) Constructed and operated

            Section 4012(d)
    In addition to the general flow control authority included 
in Section 4012(b), Section 4012(d) provides authority to 
political subdivisions that contracted with a public service 
authority or its operator prior to May 15, 1994, rather than 
with an individual designated waste management facility, to 
impose flow control. Under Section 4012(d)(1)(A)(i) any 
political subdivision that contracted (in order to support the 
issuance of revenue bonds for the construction of waste 
management facilities) with a public service authority or its 
operator for the disposal of municipal solid waste, prior to 
May 15, 1994, may exercise flow control in accordance with the 
general duration of authority provision included in Section 
4012(b)(4). Under Section 4012(d)(1)(A)(ii) any political 
subdivision that contracted with a public service authority 
(which had revenue bonds outstanding for waste management 
facilities) prior to May 15, 1995, may exercise flow control 
until the expiration of the original contract or the life of 
the bonds issued for the construction of the solid waste 
management facilities to which the political subdivision's 
waste is transferred or disposed, whichever is earlier.
    Section 4012(d) is intended to provide flow control 
authority to those political subdivisions that contracted, not 
with a specific waste management facility for MSW disposal, but 
with a public service authority or its operator. The grant of 
authority, as is the case with the general grant under Section 
4012(b), is intended to protect the integrity of revenue bonds.

Section 4012(e) State-mandated disposal services

            Section 4012(e)
    Section 4012(e) authorizes political subdivisions of the 
State to exercise flow control authority if, prior to May 15, 
1994, the political subdivision was mandated by law to provide 
for the operation of solid waste facilities, is required to 
initiate a recyclable materials program, had implemented the 
authority through a law, ordinance, regulation, contract, or 
other legally binding provision and had incurred significant 
financial expenditures to repay outstanding revenue bonds for 
the construction of solid waste management facilities to which 
the political subdivision's waste was designated.
    Section 4012(e) is intended to provide a grant of flow 
control authority to political subdivisions that were mandated 
by State law to provide for the operation of solid waste 
facilities and implemented that mandate through flow control to 
designated facilities that may have been constructed prior to 
the political subdivision's actual facility designation, and 
thus would not qualify under Section 4012(a). The grant is 
predicated on the repayment of revenue bonds issued for the 
construction of the designated facilities and is intended to 
expire in accordance with 4012(b)(4).

Section 4012(f) Retained authority Section 4012(f)

            Section 4012(f)
    Section 4012(f) sets forth a procedure whereby, on the 
request of a generator of municipal solid waste, a State or 
political subdivision may authorize the diversion of flow 
controlled waste, if the purpose of the request is to provide a 
higher level of protection for human health and the environment 
or reduce future potential liability of the generator under 
Federal or State law.
    Section 4012(f) establishes a discretionary system whereby 
generators of waste may petition for an opt out from the State 
or political subdivision flow control regimen. The purpose is 
to allow waste generators the opportunity to dispose the MSW at 
a facility with a higher level of health and environmental 
protections than the designated facility or protect itself from 
future liability under Federal or State law.
Section 4012(g) Limitations on revenue

            Section 4012(g)
    Section 4012(g) provides that all revenue derived from the 
exercise of flow control must be used for solid waste 
management services. The federal grant of authority to impose 
flow control, included in the reported bill, is directly 
related to States' and political subdivisions' financial 
commitments with respect to solid waste management. The 
provision is intended to prohibit revenues from being diverted 
to non-waste related purposes.

Section 4012(h) Reasonable regulation of commerce

            Section 4012(h)
    Section 4012(h) provides retroactive protection from 
challenge under the Commerce Clause for any law, ordinance, 
regulation or other legally binding provision or official act 
of a State or political subdivision as described in the bill 
that implements flow control authority in compliance with this 
section.

Section 4012(i) Effect on existing laws and contracts

            Section 4012(i)
    Section 4012(i) provides that nothing in the reported bill 
shall have any effect on any other law relating to the 
protection of human health and the environment or the 
management of municipal solid waste or recyclable. The 
provision is intended to ensure that nothing in the section 
will be construed to authorize any political subdivision of a 
State or exercise flow control authority granted by this 
section in a manner that is inconsistent with State law.
    Section 4012(i) affirms that a State or political 
subdivision may not exercise flow control authority over 
recyclable materials unless the owner or generator of those 
materials voluntarily makes them available to the State or 
political subdivision. In addition, nothing in the section 
prohibits a generator or owner of recyclable material from 
selling that material or the purpose of transformation, or 
remanufacture into usable or marketable material.

Section 4012(j) Repeal

            Section 4012(j)
    Section 4012(j) provides that, notwithstanding any 
provision of the reported legislation, all flow control granted 
by this section shall terminate thirty years after date of 
enactment.
    The reported bill was crafted to protect financial 
commitments made by States and political subdivisions in 
carrying out responsibilities for solid waste management. 
Primarily, the legislation was drafted to address the effect of 
the loss of flow control authority, in the wake of the Carbone 
decision, on the ability of local governments with bonds 
outstanding to continue to meet debt service obligations. It is 
the Committee's understanding that a thirty year time frame 
represents the longest issue period for solid waste securities. 
Therefore, the grant of authority is provided for not more than 
thirty years.

Section 203. Table of contents amendment

            Section 203
    Section 203 adds a new section 4012 to the RCRA table of 
contents: ``Sec. 4012. State and Local government control of 
movement of municipal solid waste and recyclable material''.

                   Title III--Ground water monitoring

Section 301 Ground water monitoring

            Section 301
    Section 301 reinstates the ground water monitoring 
exemption for small landfills in the municipal solid waste 
landfill criteria (MSWLFC).
                                Hearings

    The Committee did not hold a hearing on the reported bill, 
however, the Subcommittee on Superfund, Waste Control and Risk 
Assessment held a hearing on interstate waste and flow control 
issues on March 1, 1995. In addition, the Committee held a 
hearing on flow control on July 13, 1994. The Committee also 
held hearings on the interstate transportation of municipal 
solid waste on June 18, 1991 and July 18, 1990.

                                Markups

    The Environment and Public Works Committee held one markup 
on S. 534 on March 23, 1995. The Superfund, Waste Control and 
Risk Assessment Subcommittee also held a markup on S. 534 on 
March 15, 1995.

                             Rollcall Votes

    Section 7(b) of rule XXVI of the Standing Rules of the 
Senate requires that any rollcall votes taken during the 
committee's consideration of the bill be noted in the report.
    One rollcall vote was taken on the bill noted in this 
report. The Environment and Public Works Committee ordered the 
bill reported on March 23, 1995, by a rollcall vote of 16 to 0.

                    Evaluation of Regulatory Impact

    Section 11(b) of rule XXVI of the Standing Rules of the 
Senate requires publication in the report the committee's 
estimate of the regulatory impact made by the bill as reported. 
That estimate follows:
    The bill establishes discretionary authority for States to 
impose restrictions on receipt of out-of-State municipal solid 
waste. In order to determine the levels of out-of-State waste 
disposed, owners or operators of some landfills or incinerators 
(including waste-to-energy facilities) are required to provide 
information (to the affected local government and to the 
Governor of the State in which the landfill or incinerator is 
located) specifying the amount and State of origin of out-of-
State municipal solid waste such facilities received for 
disposal during the calendar year.
    In addition, any owner or operator of a landfill or 
incinerator (including waste to energy facilities) seeking a 
host community agreement for the receipt of out-of-State MSW at 
a facility after the date of enactment of this bill is required 
to provide various information, including characteristics of 
the particular waste facility or proposed facility to receive 
out-of-State MSW, to the affected local government in which the 
landfill or incinerator is located or proposed to be located. 
The bill will not affect the personal privacy of individuals.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. Attached is an analysis of the cost of 
the legislation from the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 11, 1995.
Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 534, the Interstate 
Transportation of Municipal Solid Waste Act of 1995.
    Enactment of S. 534 would not affect direct spending or 
receipts. Therefore, pay-as-you-go procedures would not apply 
to the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                                   June E. O'Neill.
    Enclosure.

               Congressional Budget Office Cost Estimate

    1. Bill Number: S. 534.
    2. Bill title: The Interstate Transportation of Municipal 
Solid Waste Act of 1995.
    3. Bill status: As ordered reported by the Senate Committee 
on Environment and Public Works on March 23, 1995.
    4. Bill purpose: S. 534 would authorize states and local 
governments to control commerce in municipal solid waste (MSW) 
by allowing these governments to limit imports of waste from 
other states, and to designate where locally generated waste 
must be disposed. Title III would exempt certain MSW landfills 
from groundwater monitoring requirements.
    Title I of the bill would amend the Solid Waste Disposal 
Act to authorize states, under certain conditions, to refuse to 
accept shipments of MSW generated in other states 
(``imports''). The bill would bar any states from exporting the 
greater of 1.4 million tons or 90 percent of the 1995 tonnage 
of MSW to any single state in 1996. This limit would gradually 
decline to 0.6 million tons of MSW in 2002 and thereafter. The 
bill also would allow states to ban imports to MSW from states 
that fail to comply with total MSW export limits set by the 
bill. The total MSW export limit for each state would be 3.5 
million tons for 1996, and would decrease to 1.0 million tons 
in 2003 and thereafter. States could not ban imports of MSW if 
the ban resulted in a violation of an agreement between an 
exporting state and a community choosing to receive out-of-
state waste.
    Title II would amend the Solid Waste Disposal Act to 
authorize states and qualified political subdivisions to 
control the flow of MSW and recyclable materials within state 
or subdivision boundaries. Such authority is known as flow 
control. Specifically, the bill would allow each state (or 
qualified subdivision) to direct, regulate, or prohibit the 
transportation, management, and disposal of MSW and recyclable 
materials generated within the boundaries of the state or 
subdivision at facilities in operation as of May 15, 1994.
    Title III would, under certain conditions, exempt landfills 
that dispose of less than 20 tons of MSW daily from current law 
requirements to monitor ground water in the vicinity of the 
facility for evidence of contamination.
    5. Estimated cost to the Federal Government: This bill 
would have little impact on the federal budget. Under Title I, 
the Environmental Protection Agency (EPA) would have to collect 
and publish information on interstate shipments of MSW. Based 
on information from EPA, CBO estimates that this effort would 
cost about $0.5 million annually, as shown below. Under current 
law, EPA does not devote any resources to monitoring or 
reporting on shipments of MSW.

------------------------------------------------------------------------
                                        1996   1997   1998   1999   2000
------------------------------------------------------------------------
Estimated authorization of                                              
 appropriations......................    0.5    0.5    0.5    0.5    0.6
Estimated outlays....................    0.4    0.5    0.5    0.5    0.5
------------------------------------------------------------------------

    The costs of this bill fall within budget function 300.
    6. Pay-as-you-go considerations: None.
    7. Estimated cost to State and local governments:

                                Summary

    Title I of S. 534 would allow state and local governments 
to restrict commerce in MSW disposal, and we expect that these 
restrictions would increase the cost of waste disposal services 
provided by local governments. CBO estimates that, as a result, 
waste disposal costs would increase by at least $10 million 
annually for several years, largely for communities in the 
state of New York.
    The flow control restrictions that states could impose 
under Title II are already authorized by 35 states, but recent 
court decisions have ruled that such flow control laws are 
invalid. Title II would benefit local governments that have 
imposed flow control restrictions by allowing them to maintain 
their income from waste disposal.
    Title III would exempt operators of some small landfills 
from current requirements to monitor groundwater quality. Based 
on information from EPA, CBO estimates that enacting this title 
would lower future operating costs of certain public and 
private MSW landfills in Alaska and parts of the western United 
States by $7 million to $26 million annually.
    It is likely that any increases in local government 
disposal costs incurred as a result of enactment of S. 534 
would be recovered by higher waste disposal fees. Likewise, any 
savings in disposal costs would likely benefit consumers in the 
form of lower fees in the future. Hence, the net impact on the 
budgets of state and local governments nationwide--after 
changes in waste disposal fees--may be very small. Additional 
details for the different types of potential effects on the 
budgets of state and local governments are provided below.
                              msw imports

    The major impact of Title I of this bill would be on public 
and private entities responsible for disposing of MSW, 
particularly in New York, the state that currently disposes of 
the most MSW in other states. Waste management officials in New 
York predict that enactment of this bill would increase the 
cost of waste disposal for the citizens of that state by an 
average of about $10 million annually for the next several 
years. Officials expect that this legislation would require the 
state's MSW haulers to dispose of more waste within the state, 
at a higher cost, and to ship some MSW currently sent to 
Pennsylvania to other, more distant, states. Enacting this bill 
could increase MSW disposal costs for other states, depending 
on the actions of those states currently importing MSW.
    A 1992 study by the National Solid Waste Management 
Association estimates that between 16 million and 20 million 
tons of MSW crossed state lines for disposal in landfills or 
incinerators. A 1992 survey by the Congressional Research 
Service (CRS) reached similar conclusions. CRS estimated that 
more than 15 million tons of MSW crossed state lines for 
disposal, amounting to about 5 percent of the total amount of 
MSW disposed of annually.
    Most states import and export some MSW, but only a few 
states are significant net importers or exporters. In 1992, New 
York, New Jersey, Missouri, and Washington accounted for over 
half of all MSW exports, while Pennsylvania, Illinois, Ohio, 
and Indiana accounted for over half of all MSW imports. New 
York exports about 3.8 million tons of MSW to other states, 
approximately a quarter of the MSW it generates. It accounts 
for about 20 percent of all MSW exported, and is the only state 
currently above the maximum limit of 3.5 million tons of 
exported MSW that would be established by this bill.
    Enacting S. 534 would give states the authority to ban 
imports of MSW under certain conditions, but CBO cannot predict 
which states might choose to do so. Nonetheless, any 
interference in the interstate movement of MSW is likely to 
result in higher waste disposal costs for some public and 
private waste disposal services, assuming that MSW haulers are 
currently balancing fees paid to in-state landfills against 
out-of-state fees and transportation costs. In addition, states 
that currently export MSW might incur additional costs for 
sighting, permitting, and monitoring new in-state waste 
disposal facilities if exports of MSW were banned. 
Alternatively, if some states ban MSW imports as a result of 
enactment of this bill, communities that currently export waste 
across state lines may attempt to enter into agreements with 
out-of-state disposal facilities to accept waste imports on 
mutually agreeable terms. It is likely that such agreements for 
MSW disposal would be more expensive than current disposal 
costs.
    Recent data on the average cost of MSW disposal in each 
state, compiled from the Solid Waste Digest, illustrate the 
magnitude of the added costs that states exporting waste may 
face. The average disposal fee per ton of MSW is $94 in New 
Jersey and $82 in New York. In contrast, the average fee is $56 
in Pennsylvania and $30 in Ohio. Sighting, operating, and 
properly closing new landfills to handle waste that is now 
exported would also be expensive. In 1991, EPA estimated that 
disposal fees for new landfills could range as high as $150 per 
ton. In 1992, EPA investigated the costs of ``locality fees'', 
which some exporting communities might have to pay as part of 
agreements with importing communities if this bill is enacted, 
and found examples of communities paying premiums of $1 to $7 
per ton of MSW to have their waste accepted by others. In 
addition, EPA found that other forms of incentive payments made 
to site new waste facilities included payments into contingency 
funds for potential future damage, installing deep-drilled 
drinking water wells for nearby residents, guaranteeing 
property values, and building local community centers.
    If public or private haulers of MSW incur increased costs 
as a result of this bill, it is likely that most or all of such 
an increase would be passed on to the general population in the 
form of higher waste disposal fees. Based on information from 
the larger MSW-exporting states and from a private waste 
management firm, CBO estimates it is unlikely that enactment of 
this bill would have a significant impact on the cost of waste 
disposal services in states other than New York.

                              flow control

    The EPA's recent report, Flow Controls and Municipal Solid 
Waste, estimates that 35 states authorize localities to impose 
some form of flow control over MSW. The use of flow control 
laws is especially important to the MSW incineration facilities 
that burn garbage to generate electricity (known as waste-to-
energy facilities). Such facilities typically have high capital 
costs (an average of about $135 million for facilities under 
construction) and depend on waste disposal fees to cover their 
financing and operational costs. Many of these waste-to-energy 
facilities rely on flow control laws and contracts to ensure a 
firm source of revenue.
    Recent federal court decisions (particularly Carbone v. 
Clarkstown decided on May 16, 1994) have made it clear that 
state and local flow control laws violate the commerce clause 
of the U.S. Constitution. Local governments currently have 
about $12 billion in outstanding debt that has been incurred to 
finance waste-to-energy facilities. The court's invalidation of 
flow control laws has brought into question the future 
viability of some waste-to-energy facilities, because in many 
parts of the country there are often cheaper alternative 
methods of MSW disposal. For example, EPA compared waste 
disposal fees at waste-to-energy facilities with the costs to 
dispose of waste in landfills and found the landfill costs 
about 19 percent cheaper in New Jersey, 13 percent cheaper in 
New York, 9 percent cheaper in Connecticut, and about equal in 
Massachusetts. EPA estimates that less than 10 percent of the 
nation's MSW is disposed of in facilities dependent upon flow 
control laws.
    As a result of the Carbone decision, some localities are 
likely to lose income from waste disposal fees charged for use 
of waste-to-energy facilities. Enactment of Title II would 
prevent this loss by allowing local governments to impose flow 
control laws for facilities in operation on May 15, 1994. Over 
time, this provision may lead to higher public and private MSW 
disposal costs than would otherwise be expected. The increases 
in disposal costs would be passed on to the businesses and 
citizens that ultimately pay for waste disposal.

                Ground Water Monitoring at MSW landfills

    On October 7, 1991, EPA published a final rule concerning 
the location, construction, and operation of MSW landfills. 
This rule provided an exemption from ground water monitoring 
requirements to small landfills in remote parts of Alaska and 
arid parts of the West. This exemption was overturned by a 
court decision on May 7, 1993. Title III of S. 534 would 
reinstate the original exemption for certain MSW landfills that 
handle less than 20 tons of MSW daily. Without this exemption, 
these small landfills will be required to begin compliance with 
EPA's ground water monitoring rules for landfills starting in 
October 1995. The agency estimates that drilling wells and 
testing ground water will cost these small landfill owners $7 
million to $26 million annually. (CBO has no information on the 
division of these costs between public and private landfill 
owners).
    It is possible, however, that the potential costs estimated 
by EPA would not be incurred. Under current law, EPA is 
preparing a draft regulation to provide alternative methods of 
ground water monitoring for certain small landfills. The agency 
expects these alternatives to substantially reduce compliance 
costs. Whether or not this alternative rule will be finalized 
before the October 9, 1995, compliance deadline for the current 
rule is uncertain. If the alternative rule is adopted, the 
provisions of S. 534 may not significantly affect the costs 
incurred by operators of small landfills to monitor ground 
water quality.
    8. Estimate comparison: None.
    9. Previous CBO estimate: None.
    10. Estimate prepared by: Kim Cawley.
    11. Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.
                 ADDITIONAL VIEWS OF SENATOR MAX BAUCUS

    We have been working on interstate waste legislation for 
six years. We have explored options in an effort to find a 
solution that both importing and exporting states can live 
with. In the Senate, we have held hearings, debated the issues 
and passed interstate waste bills in each of the last three 
Congresses. It is time to finish the job.
    Each year, the United States produces more than 200 million 
tons of municipal waste. Seven percent of this garbage, one ton 
in 14, is sent to a landfall or an incinerator in another 
State. Nearly every State is a seller or buyer in the municipal 
waste market; forty-seven States export some garbage, and 44 
States import some garbage.
    Much of this interstate movement of garbage makes sense, 
especially for border towns. In Montana, for example, two towns 
have made arrangements to share landfills with western North 
Dakota towns. And some trash from Wyoming areas of Yellowstone 
Park is disposed in Montana. These arrangements save money for 
the communities involved. And the establishment of shared 
regional landfills can be a policy that makes sense.
    But it only makes sense when the communities involved agree 
to it. Nobody should have to take garbage that they don't want 
from another community. But many communities are being forced 
to do so, and many more communities, especially in thinly 
populated states are being targeted as potential sites for 
mega-landfills designed for large amounts of out-of-State 
garbage.
    Not too long ago, the people of Miles City, Montana, a town 
of 8,500 people, were almost forced to take trash from 
Minneapolis. The garbage would have arrived in mile long open-
roofed trains, carrying as much trash in one trip as all of the 
people in Miles City throw out in an entire year. So far the 
people of Montana have been able to stop these imports. But 
every time waste companies have challenged State laws 
restricting out-of-State waste, the State laws have been 
overturned. So without Congressional action neither the people 
of Montana or any other State can stop waste imports.
    Because of the importance of this issue, I am pleased that 
the committee has moved so quickly. The legislation that we 
reported will take us one step closer to protecting Montana and 
other rural areas from being filled up with unwanted trash from 
other States. It will give ordinary people the right to say no 
to importing trash. And with the amendment that I offered and 
was accepted in committee it will give importing communities 
the information they need to make an informed decision about 
whether or not they want to accept out-of-State waste. 
Specifically, my amendment will require those companies who 
want to import garbage to tell the public more about their past 
practices including whether they've violated State and federal 
laws in the past.
    Although I voted to support the bill from committee, I have 
reservations about some of the provisions and reserve my right 
to seek changes to the bill when it is considered by the full 
Senate. In particular, I am concerned that the bill would allow 
waste to be imported until the community gets wise to it and 
finally says no. I believe we ought to take a more aggressive 
approach. Waste from big cities should not be allowed to come 
into our communities until the people have agreed to accept it. 
We ought to empower our States and communities so they can 
decide up-front and for themselves whether they want out-of-
State waste. If they want imports, they can enter into a host 
community agreement. If they don't they should be able to stop 
the waste before it is imported.
    Ultimately we must pass a bill that will become law. 
Without Congressional action, neither States nor communities 
will have the authority they need to restrict waste imports. We 
must give them that authority, and we must do so in a rational 
way that does not disrupt beneficial existing arrangements 
between importing and exporting communities or create 
incentives for illegal disposal.
    To that end I encourage my colleagues to resist extreme 
positions, tempting as they may be, because extreme positions 
will not survive. And a bill that's a dead letter will not help 
anyone. We need legislation that will be acceptable to the 
Senate, the House of Representatives and the President. We came 
very close last year and I hope and expect that we will enact 
interstate waste legislation that will become law this year.

                                                        Max Baucus.
   ADDITIONAL VIEWS OF SENATORS FRANK R. LAUTENBERG, BOB GRAHAM, AND 
                             BARBARA BOXER

                              introduction

    These additional views focus on the inconsistent way the 
issue of Municipal Solid Waste (MSW) is handled in this bill. 
On the one hand, Title I gives Governors the power to restrict 
wastes from out-of-state; on the other hand, Title II takes 
away from Governors power they currently have to control their 
in-state wastes.

    Title I--Allows Governors to restrict interstate flow of wastes

    In New Jersey v. Philadelphia, the Supreme Court ruled that 
waste was a commodity. As such, states could not prevent, or 
discriminate against, the movement of interstate waste without 
a valid purpose.
    Title I of the Committee bill reverses New Jersey v. 
Philadelphia, and allows states' to effectively control 
interstate waste flow. Under Title I governors may:
          Freeze current MSW imports at 1993 levels.
          Prohibit new MSW imports unless the receiving 
        community desires them.
          Require large MSW exporting states to reduce future 
        exports.
          Limit MSW imports from any single state.
          Place a tax on out of state MSW.
    The rationale for empowering states is based on two 
assumptions. First, states have the responsibility to solve 
their own waste problems. Second, unanticipated and 
uncontrolled MSW imports may disrupt carefully laid state plans 
to handle their own trash.

      Title II--Prevents Attempts to Control Intrastate Waste Flow

    In C&A Carbone v. Town of Clarkstown, the Supreme Court 
ruled that intrastate flow control violated the Commerce 
clause. The Court saw Carbone as an extension of its ruling in 
New Jersey v. Philadelphia, stating, ``We have interpreted the 
Commerce Clause to invalidate local laws that impose commercial 
barriers to discriminate against an article of commerce by 
reason of its origin or destination out of State.''
    While the Committee, in Title I, rejected the Court's 
conclusion regarding control of interstate waste, it embraced 
it in Title II when the issue was intrastate control of waste. 
Title I gives states new powers to control MSW flow between 
states; Title II withdraws from states the power they had used 
to address MSW flow within their own borders. Title I limits 
out-of-state disposal options; but flow control, which would 
allow states to become self-sufficient and end the necessity 
for out of state disposal, is restricted in Title II. In these 
and other ways, the reasoning behind the Committee bill is, at 
best, inconsistent.

                       background on flow control

    To respond to widespread open dumping of trash, which 
caused contamination to ground water supplies, Congress passed 
the Resource Conservation and Recovery Act in 1976 to 
standardize and improve solid waste disposal methods and 
practices. Under Subtitle D of RCRA, state and local 
governments developed comprehensive waste management plans 
meeting minimum standards set by EPA. Further, the law required 
that these state solid waste management plans mandate that all 
solid waste be utilized for recycling and resource recovery, 
disposed in sanitary landfills meeting EPA criteria, or 
otherwise be disposed of in an environmentally sound manner.
    Although the law created national standards, imposed 
through the solid waste management plans, Congress recognized 
that solid waste was a problem traditionally managed at the 
local level. Under that philosophy of local control, Subtitle D 
gave state and local governments flexibility to determine the 
best way to meet the national standards.
    In response to the federal mandate that waste be disposed 
in an environmentally sound manner, many local governments 
constructed modern, state-of-the-art recycling systems, waste-
to-energy facilities, and sanitary landfills. Integrated waste 
management systems were implemented to promote recycling, 
consumer education and proper management and disposal of 
household hazardous waste.
    While necessary and desirable, these facilities were also 
expensive. Because the Federal government does not share the 
cost of municipal solid waste management programs at the state 
or local level, states and local governments adopted various 
means to finance municipal solid waste management services and 
facilities. The general approach taken by state and local 
government was to issue revenue bonds, secured by long-term 
contractual promises which rely on a steady, dependable, and 
consistent quantity of waste for disposal in new facilities. To 
ensure guaranteed quantities of waste, cities and towns enacted 
laws requiring that trash generated within their borders be 
disposed in these recently financed facilities. These flow 
control laws were consistent with Congress' instructions in 
Subtitle D that state and local governments endeavor to secure 
long-term contracts for supplying resource recovery facilities 
and other environmentally responsible waste disposal 
facilities. [Subtitle D sec. 4003(a)(5)]
    Until the Carbone decision, the flow control laws 
represented nothing more than a legitimate exercise of local 
governments' historic police power over the management and 
disposal of trash generated by their citizens.
    The country's system of solid waste management fostered by 
the RCRA Subtitle D requirements has been successful. State and 
local flow control laws, ordinances, regulations and contracts 
ensure that solid waste is properly managed and disposed. 
Disposal of solid waste in unlined landfills, contaminating 
water and air, is now the exception. Flow control has been a 
useful mechanism to raise funds for local, integrated solid 
waste management systems including: source reduction, curbside 
recycling, composting, household hazardous waste collection and 
education programs--all desirable activities but not activities 
which typically generate enough revenue to be self-supporting. 
The linchpin holding the system together is the ability of 
state and local governments to control the flow of solid waste 
to designated environmentally superior facilities. In many 
states, these programs are important parts of a comprehensive 
plan that would be threatened without the revenue raising 
ability of flow control.
    The May, 1994 decision in Carbone invalidated the historic 
right of local and state governments to manage solid waste, 
overturning almost 20 years of sound solid waste management 
policy and jeopardizing the solid waste management systems of 
the over 40 states who rely on flow control authority to manage 
their solid waste. Without flow control laws to ensure a steady 
and dependable supply of municipal solid waste to designated 
facilities, the ability of governments across the country to 
properly manage the solid waste generated by their citizens, is 
threatened.

                          Scope of the problem

    The Carbone decision has the capacity of not only upsetting 
the systems states and localities have established to handle 
their trash, it also has the power to drive facilities and 
communities to financial ruin. Over $20 billion in debt is 
financed through flow control associated contracts; indeed the 
amount is probably larger because certain localities have 
entered into contracts that do not fit the regular definition 
of bonded indebtedness. Flow control, which guarantees a steady 
stream of waste to these facilities, is critical to their 
financial viability. If Carbone is affirmed even in part--as is 
the case in the Committee bill--the very basis of the bonds 
which have been issued and the debts which have been incurred 
is threatened. That is why so many states are urging the 
Congress to restore the present structure that the Supreme 
Court unexpectedly ended on May 15, 1994 in the Carbone 
decision.
    Beyond the financial issue, there is also a philosophic 
one. Organizations representing local elected officials, 
including many represented by the National Governors 
Association and the National Association of Counties, believe 
that trash is a local or state responsibility and that the 
federal government should authorize states to exercise flow 
control authority without limit. In terms of the national 
debate about what level of government should provide what kind 
of service, they believe that the federal government has a 
limited role at most.
                drafting a narrow bill for flow control

    The markup of the Committee bill showed how difficult it is 
to meet the sponsor's goal of ending flow control except where 
it is now exercised. The principle behind the limitation is 
clear, but efforts to implement it created problems. States 
have developed a variety of unique and creative ways to use 
flow control to solve their waste problems. As a result, there 
are non-uniform statutes, ordinances and contracts that follow 
no general model. When the Committee's principle of a limited 
extension of flow control authority was imposed on this 
plethora of local situations, chaos was created. Many of these 
non-uniform problems are either left unfixed by the committee 
reported bill or were fixed for reasons which are not 
immediately obvious.
    For instance, section 4012(d) was added at Subcommittee 
because the basic bill as introduced, did not cover the 
established flow control system in Virginia. Likewise section 
4012(b)(5) was added at subcommittee because of the different 
situations in New Jersey which are only partially fixed by the 
reported bill. Amendments at full Committee were needed to 
cover other instances. Section 4012(e) was written to cover the 
flow control system in Florida, and section 4012(d), among 
other provisions, partially modified the Virginia amendment to 
cover Connecticut. Senator Boxer of California entered into a 
colloquy with the Chairman to ease the concerns of that state.
    It is worth noting that all states mentioned are 
represented on the Environment and Public Works Committee. At 
the close of the markup, the Chairman made clear that 
additional amendments for North Carolina, also represented on 
the Committee, and Maine would be added before the floor.
    The expectation that other states would also require their 
own fix is inevitable. Indeed, at least nine states have made 
it clear that they need additional help. If we continue to 
follow this path, the final legislation will be unwieldy and an 
example of unnecessary federal intrusion into what is generally 
understood to be a local problem.
    These are facilities that were planned at the level but are 
now jeopardized by a federal Congress that is unwilling to 
allow states to exercise control of policies within their own 
borders. This is not the federal government stepping in to 
protect civil rights or educational equity; this is Congress 
objecting to the financial structure for trash disposal! If 
``devolution'' or invocations of the Tenth Amendment have any 
meaning, surely they mean that we ought not take existing 
powers out of the hands of state and local government. But that 
is what this bill does: It removes the historic power to 
exercise flow control from arsenal of state and local 
government.
    The primary justification for this intrusion in local 
affairs is the claim that continued flow control discriminates 
against private sector firms who could, if allowed, dispose of 
MSW at lower costs. There are, however, two arguments which 
minimize the power of this argument.
    First, those who make this case assume that the private 
sector will be everywhere where waste streams exist. This is 
simply not the case. Where the economics for waste management 
services are not attractive, there is no private sector 
interest and the task is left to State and local government 
agencies. That theory is borne out in fact. There are a number 
of cases where economic factors mean that private interests 
will not provide alternatives to government mandated flow 
control. Consider, for example, the case of Florida where a 
high water table requires incineration. Or New Jersey where 
limited available land discourages private sector options. Yet, 
even here, flow control does allow for some private sector 
involvement. Under many flow control agreements, private 
vendors do operate the facilities and haul the trash. But in 
most of those cases, governmental entities have contracted with 
these vendors to supply a certain specified volume of waste. To 
be able to live up to those contracts, these governmental 
bodies have used flow control. It will be interesting to watch 
as the private companies, many of whom are leading the fight 
against the continuation of flow control, turn around and sue 
those governments for not living up to their contracts.
    Second, it is possible that in some cases, if flow control 
were eliminated, private interests could enter the market and 
offer disposal at lower rates by providing disposal sites at 
out-of-state locations. But that possibility may be closed when 
Title I of this legislation limits the availability of out-of-
state disposal of MSW. And in other cases, lower cost disposal 
may prevent other goals--like recycling--from being achieved. 
The point is that private sector interest is not the only 
factor that ought to be considered here: the needs of our 
society for long-term solutions to waste problems also deserves 
some attention.

                                options

    There are two preferred alternatives to address the court 
decision in Carbone:
    1. Return the authorities to the states to handle their 
trash any way they desire. Such a delegation was invited by the 
concurring opinion of Justice O'Connor and is consistent with 
the principle of delegating authority to the level of 
government most appropriate for making rules about this issue. 
This is consistent with the logic in Title I. Trying to craft a 
narrow bill runs into the problems of the lack of uniformity 
that exists. Wouldn't a more blanket authority be more 
workable, reasonable and logical?
    2. Craft a more generic fix such as that introduced by 
Representatives Smith and Oxley in the House, H.R. 1025 or S. 
398 introduced in the Senate by Senators Lautenberg, Cohen, 
Dodd, Graham, Heflin, and Snowe. These bills are based on the 
bipartisan compromise legislation of 1994--which was supported 
by waste companies, public sector interests, transportation 
companies and recycling interests--and strike an appropriate 
balance between public and private sector concerns.
    S. 398 and H.R. 1025:
    Strike a fair balance and utilize a narrow grandfather.--
These bills protect only those communities that have already 
relied on flow control authority, have made specifically 
defined commitments or were in the process of completing a flow 
control system but were arbitrarily cut off from completion as 
a result of Carbone. The compromise legislation's narrow 
grandfather is the minimum necessary to allow these flow-
controlling and `in process' communities to continue to rely on 
flow control authority to finance modifications in existing 
facilities or construct new ones to meet current needs or new 
environmental requirements. Other than these grandfathered 
jurisdictions, all other jurisdictions are barred from using 
flow control in the future, both for commercial and residential 
waste.
    Preserve competition and is pro-small business.--No new 
facilities in flow controlled grandfathered communities are 
allowed unless the communities meets a strict competition 
standards and needs tests. It should be noted the most flow 
control facilities were built or operated by private businesses 
that won competitive bids. Ending flow control, as the 
Committee bill attempts to do, will allow bidders who lost 
another bite at the apple.
    Pro-environment and pro-recycling.--Without the revenue 
bond financing available because of flow control, money-losing 
recycling and composting facilities could not be built without 
local tax increases or reliance on general obligation bonds.
    Are pro-consumer.--Waste disposal costs in flow controlled 
systems are stable. In addition, those costs are comparable to 
non-flow controlled systems or, in many instances, are 
significantly lower.
    The third alternative is to continue amendments for those 
communities whose structure falls through the present cracks in 
S. 543.

                   what happens without flow control?

    Without flow control, what is now a decreasing waste 
problem will again become a garbage crisis. Without flow 
control, communities will again give their garbage to low cost 
haulers with only a hope the waste will end up in a certified 
RCRA facilities.
    Evidence of this is depicted on page 1 of the Washington 
Post, April 12, 1995. Because trash haulers are not adequately 
using the local facility, tipping fees are down and the city's 
recycling program is being curtailed. To avoid the $28 
surcharge for recycling included in the tipping fee, haulers 
are taking the garbage to Virginia or Southern Pennsylvania. 
Without flow control, the recycling in the District is the 
first casualty of Carbone. Because of Carbone, the District 
will be less self-sufficient in handling its trash and there 
will be an increase in the interstate flow of MSW.

                           the reported bill

    Because of the jeopardy many states are in on account of 
the Carbone decision, it is necessary that the Congress address 
this issue soon. Therefore, the signers of these additional 
views supported passage at the Full Committee and will offer 
amendments to improve the bill on the floor.

                                   Frank R. Lautenberg.
                                   Bob Graham.
                                   Barbara Boxer.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in black brackets, new matter is printed in 
italic, existing law in which no change is proposed is shown in 
roman:

     AN ACT To provide technical and financial assistance for the 
  development of management plans and facilities for the recovery of 
 energy and other resources from discarded materials and for the safe 
  disposal of discarded materials, and to regulate the management of 
                            hazardous waste

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

                     TITLE II--SOLID WASTE DISPOSAL

                     Subtitle A--General Provisions

          * * * * * * *

                                contents

          * * * * * * *

            Subtitle D--State or Regional Solid Waste Plans

          * * * * * * *
``Sec. 4011. Interstate transportation of municipal solid waste.
Sec. 4012. State and local government control of movement of municipal 
          solid waste and recyclable material.''.
          * * * * * * *

            Subtitle D--State or Regional Solid Waste Plans

                         objectives of subtitle

    Sec. 4001. * * *
          * * * * * * *

              adequacy of certain guidelines and criteria

    Sec. 4010. (a) Study.--The Administrator shall conduct a 
study of the extent of which the guidelines and criteria under 
this Act (other than guidelines and criteria for facilities to 
which subtitle C applies) which are applicable to solid waste 
management and disposal facilities, including, but not limited 
to landfills and surface impoundments, are adequate to protect 
human health and the environment from ground water 
contamination. Such study shall include a detailed assessment 
of the degree to which the criteria under section 1008(a) and 
the criteria under section 4004 regarding monitoring, 
prevention of contamination, and remedial action are adequate 
to protect ground water and shall also include recommendation 
with respect to any additional enforcement authorities which 
the Administrator, in consultation with the Attorney General, 
deems necessary for such purpose.
    (b) Report.--Not later than thirty-six months after the 
date of enactment of the Hazardous and Solid Waste Amendments 
of 1984, the Administrator shall submit a report to the 
Congress setting forth the results of the study required under 
this section, together with any recommendations made by the 
Administrator on the basis of such study.
    (c) Revisions of Guidelines and [Criteria.--Not later] 
Criteria._
          (1) In general.--Not later than March 31, 1988, the 
        Administrator shall promulgate revisions of the 
        criteria promulgated under paragraph (1) of section 
        4004(a) and under section 1008(a)(3) for facilities 
        that may receive hazardous household wastes or 
        hazardous wastes from small quantity generators under 
        section 3001(d). The criteria shall be those necessary 
        to protect human health and the environment and may 
        take into account the practicable capability of such 
        facilities. At a minimum such revisions for facilities 
        potentially receiving such wastes should require ground 
        water monitoring as necessary to detect contamination, 
        establish criteria for the acceptable location of new 
        or existing facilities, and provide for corrective 
        action as appropriate.
          (2) Additional revisions.--Subject to paragraph (2), 
        the requirements of the criteria described in paragraph 
        (1) relating to ground water monitoring shall not apply 
        to an owner or operator of a new municipal solid waste 
        landfill unit, an existing municipal solid waste 
        landfill unit, or a lateral expansion of a municipal 
        solid waste landfill unit, that disposes of less than 
        20 tons of municipal solid waste daily, based on an 
        annual average, if--
                  ``(A) there is no evidence of ground water 
                contamination from the municipal solid waste 
                landfill unit or expansion; and
                  ``(B) the municipal solid waste landfill unit 
                or expansion serves--
                          ``(i) a community that experiences an 
                        annual interruption of at least 3 
                        consecutive months of surface 
                        transportation that prevents access to 
                        a regional waste management facility; 
                        or
                          ``(ii) a community that has no 
                        practicable waste management 
                        alternative and the landfill unit is 
                        located in an area that annually 
                        receives less than or equal to 25 
                        inches of precipitation.
          ``(3) Protection of ground water resources.--
                  ``(A) Monitoring requirement.--A State may 
                require ground water monitoring of a solid 
                waste landfill unit that would otherwise be 
                exempt under paragraph (2) if necessary to 
                protect ground water resources and ensure 
                compliance with a State ground water protection 
                plan, where applicable.
                  ``(B) Methods.--If a State requires ground 
                water monitoring of a solid waste landfill unit 
                under subparagraph (A), the State may allow the 
                use of a method other than the use of ground 
                water monitoring wells to detect a release of 
                contamination from the unit.
                  ``(C) Corrective action.--If a State finds a 
                release from a solid waste landfill unit, the 
                State shall require corrective action as 
                appropriate.
          ``(4) Remote Alaska native villages.--Upon 
        certification by the Governor of the State of Alaska 
        that application of the requirements of the criteria 
        described in paragraph (1) to a solid waste landfill 
        unit of a Native village (as defined in section 3 of 
        the Alaska Native Claims Settlement Act (16 U.S.C. 
        1602)) would be infeasible, would not be cost-
        effective, or is otherwise inappropriate because of the 
        remote location of the unit, the unit shall be exempt 
        from those requirements.''.
    ``(b) Reinstatement of Regulatory Exemption.--It is the 
intent of section 4010(c)(2) of the Solid Waste Disposal Act, 
as added by subsection (a), to immediately reinstate subpart E 
of part 258 of title 40, Code of Federal Regulations, as added 
by the final rule published at 56 Fed. Reg. 50798 on October 9, 
1991.
           interstate transportation of municipal solid waste


    Sec. 4011. (a) Authority to Restrict Out-of-State Municipal 
Solid Waste.--(1) Except as provided in paragraph (4), 
immediately upon the date of enactment of this section if 
requested in writing by an affected local government, a 
Governor may prohibit the disposal of out-of-State municipal 
solid waste in any landfill or incinerator that is not covered 
by the exceptions provided in subsection (b) and that is 
subject to the jurisdiction of the Governor and the affected 
local government.
    (2) Except as provided in paragraph (4), immediately upon 
the date of publication of the list required in paragraph 
(6)(D) and notwithstanding the absence of a request in writing 
by the affected local government, a Governor, in accordance 
with paragraph (5), may limit the quantity of out-of-State 
municipal solid waste received for disposal at each landfill or 
incinerator covered by the exceptions provided in subsection 
(b) that is subject to the jurisdiction of the Governor, to an 
annual amount equal to or greater than the quantity of out-of-
State municipal solid waste received for disposal at such 
landfill or incinerator during calendar year 1993.
    (3)(A) Except as provided in paragraph (4), immediately 
upon the date of publication of the list required in paragraph 
(6)(E), and notwithstanding the absence of a request in writing 
by the affected local government, a Governor, in accordance 
with paragraph (5), may prohibit or limit the amount of out-of-
State municipal solid waste disposed of at any landfill or 
incinerator covered by the exceptions in subsection (b) that is 
subject to the jurisdiction of the Governor, generated in any 
State that is determined by the Administrator under paragraph 
(6)(E) as having exported, to landfills or incinerators not 
covered by host community agreements or permits authorizing 
receipt of out-of-State municipal solid waste, more than--
          (i) 3,500,000 tons of municipal solid waste in 
        calendar year 1996;
          (ii) 3,000,000 tons of municipal solid waste in each 
        of calendar years 1997 and 1998;
          (iii) 2,500,000 tons of municipal solid waste in each 
        of calendar years 1999 and 2000;
          (iv) 1,500,000 tons of municipal solid waste in each 
        of calendar years 2001 and 2002; and
          (v) 1,000,000 tons of municipal solid waste in 
        calendar year 2003 and each year thereafter.
    (B)(i) No State may export to landfills or incinerators in 
any 1 State that are not covered by host community agreements 
more than the following amounts of municipal solid waste:
          (I) In calendar year 1996, the greater of 1,400,000 
        tons or 90 percent of the amount exported to the State 
        in calendar year 1993.
          (II) In calendar year 1997, the greater of 1,300,000 
        tons or 90 percent of the amount exported to the State 
        in calendar year 1996.
          (III) In calendar year 1998, the greater of 1,200,000 
        tons or 90 percent of the amount exported to the State 
        in calendar year 1997.
          (IV) In calendar year 1999, the greater of 1,100,000 
        tons or 90 percent of the amount exported to the State 
        in calendar year 1998.
          (V) In calendar year 2000, 1,000,000 tons.
          (VI) In calendar year 2001, 800,000 tons.
          (VII) In calendar year 2002 or any calendar year 
        thereafter, 600,000 tons.
    (ii) The Governor of an importing State may take action to 
restrict levels of imports to reflect the appropriate level of 
out-of-State municipal solid waste imports if--
          (I) The Governor of the importing State has notified 
        the Governor of the exporting State and the 
        Administrator, 12 months prior to taking any such 
        action, of the importing State's intention to impose 
        the requirements of this section;
          (II) the Governor of the importing State has notified 
        the Governor of the exporting State and the 
        Administrator of the violation by the exporting State 
        of this section at least 90 days prior to taking any 
        such action; and
          (III) the restrictions imposed by the Governor of the 
        importing State are uniform at all facilities.
    (C) The authority provided by subparagraphs (A) and (B) 
shall apply for as long as a State exceeds the permissible 
levels as determined by the Administrator under paragraph 
(6)(E).
    (4)(A) A Governor may not exercise the authority granted 
under this section if such action would result in the violation 
of, or would otherwise be inconsistent with, the terms of a 
host community agreement or a permit issued from the State to 
receive out-of-State municipal solid waste.
    (B) Except as provided in paragraph (3), a Governor may not 
exercise the authority granted under this section in a manner 
that would require any owner or operator of a landfill or 
incinerator covered by the exceptions provided in subsection 
(b) to reduce the amount of out-of-State municipal solid waste 
received from any State for disposal at such landfill or 
incinerator to an annual quantity less than the amount received 
from such State for disposal at such landfill or incinerator 
during calendar year 1993.
    (5) Any limitation imposed by a Governor under paragraph 
(2) or (3)--
          (A) shall be applicable throughout the State;
          (B) shall not directly or indirectly discriminate 
        against any particular landfill or incinerator within 
        the State; and
          (C) shall not directly or indirectly discriminate 
        against any shipments of out-of-State municipal solid 
        waste on the basis of place or origin and all such 
        limitations shall be applied to all States in violation 
        of paragraph (3).
    (6) Annual state report.--
          (A) In general.--Within 90 days after enactment of 
        this section and on April 1 of each year thereafter the 
        owner or operator of each landfill or incinerator 
        receiving out-of-State municipal solid waste shall 
        submit to the affected local government and to the 
        Governor of the State in which the landfill or 
        incinerator is located, information specifying the 
        amount and State of origin of out-of-State municipal 
        solid waste received for disposal during the preceding 
        calendar year. Within 120 days after enactment of this 
        section and on July 1 of each year thereafter each 
        State shall publish and make available to the 
        Administrator, the Governor of the State of origin and 
        the public, a report containing information on the 
        amount of out-of-State municipal solid waste received 
        for disposal in the State during the preceding calendar 
        year.
          (B) Contents.--Each submission referred to in this 
        section shall be such as would result in criminal 
        penalties in case of false or misleading information. 
        Such information shall include the amount of waste 
        received, the State of origin, the identity of the 
        generator, the date of the shipment, and the type of 
        out-of-State municipal solid waste.
          (C) List.--The Administrator shall publish a list of 
        States that the Administrator has determined have 
        exported out-of-State in any of the following calendar 
        years an amount of municipal solid waste in excess of--
                  (i) 3,500,000 tons in 1996;
                  (ii) 3,000,000 tons in 1997;
                  (iii) 3,000,000 tons in 1998;
                  (iv) 2,500,000 tons in 1999;
                  (v) 2,500,000 tons in 2000;
                  (vi) 1,500,000 tons in 2001;
                  (vii) 1,500,000 tons in 2002;
                  (viii) 1,000,000 tons in 2003; and
                  (ix) 1,000,000 tons in each calendar year 
                after 2003.
The list for any calendar year shall be published by June 1 of 
the following calendar year.
          (D) Savings provision.--Nothing in this subsection 
        shall be construed to preempt any State requirement 
        that requires more frequent reporting of information.
    (7) Any affected local government that intends to submit a 
request under paragraph (1) or take formal action to enter into 
a host community agreement after the date of enactment of this 
subsection shall, prior to taking such action--
          (A) notify the Governor, contiguous local 
        governments, and any contiguous Indian tribes;
          (B) publish notice of the action in a newspaper of 
        general circulation at least 30 days before taking such 
        action;
          (C) provide an opportunity for public comment; and
          (D) following notice and comment, take formal action 
        on any proposed request or action at a public meeting.
    (8) Any owner or operator seeking a host community 
agreement after the date of enactment of this subsection shall 
provide to the affected local government the following 
information, which shall be made available to the public from 
the affected local government:
          (A) A brief description of the planned facility, 
        including a description of the facility size, ultimate 
        waste capacity, and anticipated monthly and yearly 
        waste quantities to be handled.
          (B) A map of the facility site that indicates the 
        location of the facility in relation to the local road 
        system and topographical and hydrological features and 
        any buffer zones and facility units to be acquired by 
        the owner or operator of the facility.
          (C) A description of the existing environmental 
        conditions at the site, and any violations of 
        applicable laws or regulations.
          (D) A description of environmental controls to be 
        utilized at the facility.
          (E) A description of the site access controls to be 
        employed, and roadway improvements to be made, by the 
        owner or operator, and an estimate of the timing and 
        extent of increased truck traffic.
          (F) A list of all required Federal, State, and local 
        permits.
          (G) Any information that is required by State or 
        Federal law to be provided with respect to any 
        violations of environmental laws (including 
        regulations) by the owner and operator, the disposition 
        of enforcement proceedings taken with respect to the 
        violations, and corrective measures taken as a result 
        of the proceedings.
          (H) Any information that is required by State or 
        Federal law to be provided with respect to compliance 
        by the owner or operator with the State solid waste 
        management plan.
    (b) Exceptions to Authority To Prohibit Out-of-State 
Municipal Solid Waste.--(1) The authority to prohibit the 
disposal of out-of-State municipal solid waste provided under 
subsection (a)(1) shall not apply to landfills and incinerators 
in operation on the date of enactment of this section that--
          (A) received during calendar year 1993 documented 
        shipments of out-of-State municipal solid waste; and
          (B)(i) in the case of landfills, are in compliance 
        with all applicable Federal and State laws and 
        regulations relating to operation, design and location 
        standards, leachate collection, ground water 
        monitoring, and financial assurance for closure and 
        post-closure and corrective action; or
          (ii) in the case of incinerators, are in compliance 
        with the applicable requirements of section 129 of the 
        Clean Air Act (42 U.S.C. 7429) and applicable State 
        laws and regulations relating to facility design and 
        operations.
    (2) A Governor may not prohibit the disposal of out-of-
State municipal solid waste pursuant to subsection (a)(1) at 
facilities described in this subsection that are not in 
compliance with applicable Federal and State laws and 
regulations unless disposal of municipal solid waste generated 
within the State at such facilities is also prohibited.
    (c) Additional Authority To Limit Out-of-State Municipal 
Solid Waste.--(1) In any case in which an affected local 
government is considering entering into, or has entered into, a 
host community agreement and the disposal or incineration of 
out-of-State municipal solid waste under such agreement would 
preclude the use of municipal solid waste management capacity 
described in paragraph (2), the Governor of the State in which 
the affected local government is located may prohibit the 
execution of such host community agreement with respect to that 
capacity.
    (2) The municipal solid waste management capacity referred 
to in paragraph (1) is that capacity--
          (A) that is permitted under Federal or State law;
          (B) that is identified under the State plan; and
          (C) for which a legally binding commitment between 
        the owner or operator and another party has been made 
        for its use for disposal or incineration of municipal 
        solid waste generated within the region (identified 
        under section 4006(a)) in which the local government is 
        located.
    (d) Cost Recovery Surcharge.--
          (1) Authority.--A State described in paragraph (2) 
        may adopt a law and impose and collect a cost recovery 
        charge on the processing or disposal of out-of-State 
        municipal solid waste in the State in accordance with 
        this subsection.
          (2) Applicability.--The authority to impose a cost 
        recovery surcharge under this subsection applies to any 
        State that on or before April 3, 1994, imposed and 
        collected a special fee on the processing or disposal 
        of out-of-State municipal solid waste pursuant to a 
        State law.
          (3) Limitation.--No such State may impose or collect 
        a cost recovery surcharge from a facility on any out-
        of-State municipal solid waste that is being received 
        at the facility under 1 or more contracts entered into 
        after April 3, 1994, and before the date of enactment 
        of this section.
          (4) Amount of surcharge.--The amount of the cost 
        recovery surcharge may be no greater than the amount 
        necessary to recover those costs determined in 
        conformance with paragraph (6) and in no event may 
        exceed $1.00 per ton of waste.
          (5) Use of surcharge collected.--All cost recovery 
        surcharges collected by a State covered by this 
        subsection shall be used to fund those solid waste 
        management programs administered by the State or its 
        political subdivision that incur costs for which the 
        surcharge is collected.
          (6) Conditions.--(A) Subject to subparagraphs (B) and 
        (C), a State covered by this subsection may impose and 
        collect a cost recovery surcharge on the processing or 
        disposal within the State of out-of-State municipal 
        solid waste if--
                  (i) the State demonstrates a cost to the 
                State arising from the processing or disposal 
                within the State of a volume of municipal solid 
                waste from a source outside the State;
                  (ii) the surcharge is based on those costs to 
                the State demonstrated under clause (i) that, 
                if not paid for through the surcharge, would 
                otherwise have to be paid or subsidized by the 
                State; and
                  (iii) the surcharge is compensatory and is 
                not discriminatory.
          (B) In no event shall a cost recovery surcharge be 
        imposed by a State to the extent that the cost for 
        which recovery is sought is otherwise paid, recovered, 
        or offset by any other fee or tax assessed against or 
        voluntarily paid to the State or its political 
        subdivision in connection with the generation, 
        transportation, treatment, processing, or disposal of 
        solid waste.
          (C) The grant of a subsidy by a State with respect to 
        entities disposing of waste generated within the State 
        does not constitute discrimination for purposes of 
        subparagraph (A)(iii).
          (7) Definitions.--As used in this subsection:
                  (A) The term `costs' means the costs incurred 
                by the State for the implementation of its laws 
                governing the processing or disposal of 
                municipal solid waste, limited to the issuance 
                of new permits and renewal of or modification 
                of permits, inspection and compliance 
                monitoring, enforcement, and cost associated 
                with technical assistance, data management, and 
                collection of fees.
                  (B) The term `processing' means any activity 
                to reduce the volume of solid waste or alter 
                its chemical, biological or physical state, 
                through processes such as thermal treatment, 
                bailing, composting, crushing, shredding, 
                separation, or compaction.
    (e) Savings Clause.--Nothing in this section shall be 
interpreted or construed--
          (1) to have any effect on State law relating to 
        contracts; or
          (2) to affect the authority of any State or local 
        government to protect public health and the environment 
        through laws, regulations, and permits, including the 
        authority to limit the total amount of municipal solid 
        waste that landfill or incinerator owners or operators 
        within the jurisdiction of a State may accept during a 
        prescribed period, provided that such limitations do 
        not discriminate between in-State and out-of-State 
        municipal solid waste, except to the extent authorized 
        by this section.
    (f) Definitions.--As used in this section:
          (1)(A) The term `affected local government', used 
        with respect to a landfill or incinerator, means--
                  (i) the public body created by State law with 
                responsibility to plan for municipal solid 
                waste management, a majority of the members of 
                which are elected officials, for the area in 
                which the facility is located or proposed to be 
                located; or
                  (ii) the elected officials of the city, town, 
                township, borough, county, or parish exercising 
                primary responsibility over municipal solid 
                waste management or the use of land in the 
                jurisdiction in which the facility is located 
                or is proposed to be located.
          (B)(i) Within 90 days after the date of enactment of 
        this section, a Governor may designate and publish 
        notice of which entity listed in clause (i) or (ii) of 
        subparagraph (A) shall serve as the affected local 
        government for actions taken under this section and 
        after publication of such notice.
          (ii) If a Governor fails to make and publish notice 
        of such a designation, the affected local government 
        shall be the elected officials of the city, town, 
        township, borough, county, parish, or other public body 
        created pursuant to State law with primary jurisdiction 
        over the land or the use of land on which the facility 
        is located or is proposed to be located.
          (C) For purposes of host community agreements entered 
        into before the date of publication of the notice, the 
        term means either a public body described in 
        subparagraph (A)(i) or the elected officials of any of 
        the public bodies described in subparagraph (A)(ii).
          (2) Host community agreement.--The term ``host 
        community agreement'' means a written, legally binding 
        document or documents executed by duly authorized 
        officials of the affected local government that 
        specifically authorizes a landfill or incinerator to 
        receive municipal solid waste generated out of State, 
        but does not include any agreement to pay host 
        community fees for receipt of waste unless additional 
        express authorization to receive out-of-State waste is 
        also included.
          (3) The term ``out-of-State municipal solid waste'' 
        means, with respect to any State, municipal solid waste 
        generated outside of the State. To the extent that the 
        President determines it is consistent with the North 
        American Free Trade Agreement and the General Agreement 
        on Tariffs and Trade, the term shall include municipal 
        solid waste generated outside of the United States.
          (4) The term ``municipal solid waste'' means refuse 
        (and refuse-derived fuel) generated by the general 
        public or from a residential, commercial, 
        institutional, or industrial source (or any combination 
        thereof), consisting of paper, wood, yard wastes, 
        plastics, leather, rubber, or other combustible or 
        noncombustible materials such as metal or glass (or any 
        combination thereof). The term ``municipal solid 
        waste'' does not include--
                  (A) any solid waste identified or listed as a 
                hazardous waste under section 3001;
                  (B) any solid waste, including contaminated 
                soil and debris, resulting from a response 
                action taken under section 104 or 106 of the 
                Comprehensive Environmental Response, 
                Compensation, and Liability Act of 1980 (42 
                U.S.C. 9604 or 9606) or a corrective action 
                taken under this Act;
                  (C) any metal, pipe, glass, plastic, paper, 
                textile, or other material that has been 
                separated or diverted from municipal solid 
                waste (as other-wise defined in this paragraph) 
                and has been transported into a State for the 
                purpose of recycling or reclamation;
                  (D) any solid waste that is--
                          (i) generated by an industrial 
                        facility; and
                          (ii) transported for the purpose of 
                        treatment, storage, or disposal to a 
                        facility that is owned or operated by 
                        the generator of the waste, or is 
                        located on property owned by the 
                        generator of the waste, or is located 
                        on property owned by a company with 
                        which the generator is affiliated;
                  (E) any solid waste generated incident to the 
                provision of service in interstate, intrastate, 
                foreign, or overseas air transportation;
                  (F) any industrial waste that is not 
                identical to municipal solid waste (as 
                otherwise defined in this paragraph) with 
                respect to the physical and chemical state of 
                the industrial waste, and composition, 
                including construction and demolition debris;
                  (G) any medical waste that is segregated from 
                or not mixed with municipal solid waste (as 
                otherwise defined in this paragraph); or
                  (H) any material or product returned from a 
                dispenser or distributor to the manufacturer 
                for credit, evaluation, or possible reuse.
          (5) The term ``compliance'' means a pattern or 
        practice of adhering to and satisfying standards and 
        requirements promulgated by the Federal or a State 
        government for the purpose of preventing significant 
        harm to human health and the environment. Actions 
        undertaken in accordance with compliance schedules for 
        remediation established by Federal or State enforcement 
        authorities shall be considered compliance for purposes 
        of this section.
          (6) The terms ``specifically authorized'' and 
        ``specifically authorizes'' refer to an explicit 
        authorization, contained in a host community agreement 
        or permit, to import waste from outside the State. Such 
        authorization may include a reference to a fixed radius 
        surrounding the landfill or incinerator that includes 
        an area outside the State or a reference to any place 
        of origin, reference to specific places outside the 
        State, or use of such phrases as ``regardless of 
        origin'' or ``outside the State.'' The language for 
        such authorization may vary as long as it clearly and 
        affirmatively states the approval or consent of the 
        affected local government or State for receipt of 
        municipal solid waste from sources outside the State.

STATE AND LOCAL GOVERNMENT CONTROL OF MOVEMENT OF MUNICIPAL SOLID WASTE 
                        AND RECYCLABLE MATERIAL

    Sec. 4012. (a) Definitions.--In this section:
          (1) Designate; designation.--The terms ``designate'' 
        and ``designation'' refer to an authorization by a 
        State or political subdivision, and the act of a State 
        or political subdivision in requiring or contractually 
        committing, that all or any portion of the municipal 
        solid waste or recyclable material that is generated 
        within the boundaries of the State or political 
        subdivision be delivered to waste management facilities 
        or facilities for recyclable material or a public 
        service authority identified by the State or political 
        subdivision.
          (2) Flow control authority.--The term ``flow control 
        authority'' means the authority to control the movement 
        of municipal solid waste or voluntarily relinquished 
        recyclable material and direct such solid waste or 
        voluntarily relinquished recyclable material to a 
        designated waste management facility or facility for 
        recyclable material.
          (3) Municipal solid waste.--The term ``municipal 
        solid waste'' means--
                  (A) solid waste generated by the general 
                public or from a residential commercial, 
                institutional, or industrial source, consisting 
                of paper, wood, yard waste, plastics, leather, 
                rubber, and other combustible material and 
                noncombustible material such as metal and 
                glass, including residue remaining after 
                recyclable material has been separated from 
                waste destined for disposal, and including 
                waste material removed from a septic tank, 
                septage pit, or cesspool (other than from 
                portable toilets); but
                  (B) does not include--
                          (i) waste identified or listed as a 
                        hazardous waste under section 3001 of 
                        this Act or waste regulated under the 
                        Toxic Substances Control Act (15 U.S.C. 
                        2601 et seq.);
                          (ii) waste, including contaminated 
                        soil and debris, resulting from a 
                        response action taken under section 104 
                        or 106 of the Comprehensive 
                        Environmental Response, Compensation, 
                        and Liability Act of 1980 (42 U.S.C. 
                        9604, 9606) or any corrective action 
                        taken under this Act;
                          (iii) medical waste listed in section 
                        11002;
                          (iv) industrial waste generated by 
                        manufacturing or industrial process, 
                        including waste generated during scrap 
                        processing and scrap recycling;
                          (v) recyclable material; or
                          (vi) sludge.
        (4) Public service authority.--The term ``public 
        service authority'' means--
                  (A) an authority or authorities created 
                pursuant to State legislation to provide 
                individually or in combination solid waste 
                management services to political subdivisions; 
                or
                  (B) an authority that was issued a 
                certificate of incorporation by a State 
                corporation commission established by a State 
                constitution.
          (5) Recyclable material.--The term ``recyclable 
        material'' means material that has been separated from 
        waste otherwise destined for disposal (at the source of 
        the waste or at a processing facility) or has been 
        managed separately from waste destined for disposal, 
        for the purpose of recycling, reclamation, composting 
        of organic material such as food and yard waste, or 
        reuse (other than for the purpose of incineration).
          (6) Waste management facility.--The term ``waste 
        management facility'' means a facility that collects, 
        separates, stores, transports, transfers, treats, 
        processes, combusts, or disposes of municipal solid 
        waste.
    (b) Authority.--
          (1) In general.--Each State and each political 
        subdivision of a State may exercise flow control 
        authority for municipal solid waste and for recyclable 
        material voluntarily relinquished by the owner or 
        generator of the material that is generated within its 
        jurisdiction by directing the municipal solid waste or 
        recyclable material to a waste management facility or 
        facility for recyclable material, if such flow control 
        authority--
                  (A) is imposed pursuant to a law, ordinance, 
                regulation, or other legally binding provision 
                of the State or political subdivision in effect 
                on May 15, 1994; and
                  (B) has been implemented by designating 
                before May 15, 1994, the particular waste 
                management facilities or public service 
                authority to which the municipal solid waste or 
                recyclable material is to be delivered, the 
                substantial construction of which facilities 
                was performed after the effective date of that 
                law, ordinance, regulation, or other legally 
                binding provision and which facilities were in 
                operation as of May 15, 1994.
          (2) Limitation.--The authority of this section 
        extends only to the specific classes or categories of 
        municipal solid waste to which flow control authority 
        requiring a movement to a waste management facility was 
        actually applied on or before May 15, 1994 (or, in the 
        case of a State or political subdivision that qualifies 
        under subsection (c), to the specific classes or 
        categories of municipal solid waste for which the State 
        or political subdivision prior to May 15, 1994, had 
        committed to the designation of a waste management 
        facility).
          (3) Lack of clear identification.--With regard to 
        facilities granted flow control authority under 
        subsection (c), if the specific classes or categories 
        of municipal solid waste are not clearly identified, 
        the authority of this section shall apply only to 
        municipal solid waste generated by households.
          (4) Duration of authority.--With respect to each 
        designated waste management facility, the authority of 
        this section shall be effective until the later of--
                  (A) the end of the remaining life of a 
                contract between the State or political 
                subdivision and any other person regarding the 
                movement or delivery of municipal solid waste 
                or voluntarily relinquished recyclable material 
                to be a designated facility (as in effect May 
                15, 1994);
                  (B) completion of the schedule for payment of 
                the capital costs of the facility concerned (as 
                in effect May 15, 1994); or
                  (C) the end of the remaining useful life of 
                the original facility, as that remaining life 
                may be extended by--
                          (i) retrofitting of equipment or the 
                        making of other significant 
                        modifications to meet applicable 
                        environmental requirements or safety 
                        requirements;
                          (ii) routine repair or scheduled 
                        replacement of equipment or components 
                        that does not add to the capacity of a 
                        waste management facility; or
                          (iii) expansion of the facility on 
                        land that is--
                                  (I) legally or equitably 
                                owned, or under option to 
                                purchase or lease, by the owner 
                                or operator of the facility; 
                                and
                                  (II) covered by the permit 
                                for the facility (as in effect 
                                May 15, 1994).
          (5) Additional authority.--Notwithstanding anything 
        to the contrary in this section, but subject to 
        subsection (j), a State or political subdivision of a 
        State that, on or before January 1, 1984, adopted 
        regulations under State law that required or directed 
        the transportation, management, or disposal of solid 
        waste from residential, commercial, institutional, or 
        industrial sources (as defined under State law) to 
        specifically identified waste management facilities and 
        applied those regulations to every political 
        subdivision of the State may--
                  (A) designate any waste management facility 
                in the State that--
                          (i) was designated prior to May 15, 
                        1994, and meets the requirements of 
                        subsection (c); or
                          (ii) meets the requirements of 
                        paragraph (1); and
                  (B) continue to exercise flow control 
                authority for the remaining useful life of that 
                facility over all classes and categories of 
                solid waste that were subject to flow control 
                on May 15, 1994.
    (c) Commitment to Construction.--
          (1) In general.--Notwithstanding subsection (b)(1) 
        (A) and (B), any political subdivision of a State may 
        exercise flow control authority under subsection (b), 
        if--
                  (A) the law, ordinance, regulation, or other 
                legally binding provision specifically provides 
                for flow control authority for municipal solid 
                waste generated within its boundaries and was 
                in effect prior to May 15, 1994; and
                  (B) prior to May 15, 1994, the political 
                subdivision committed to the designation of a 
                waste management facility to which municipal 
                solid waste is to be transported or at which 
                municipal solid waste is to be disposed of 
                under that law, ordinance, regulation, plan, or 
                legally binding provision.
          (2) Factors demonstrating commitment.--A commitment 
        to the designation of a waste management facility is 
        demonstrated by 1 or more of the following factors:
                  (A) Construction permits.--All permits 
                required for the substantial construction of 
                the facility were obtained prior to May 15, 
                1994.
                  (B) Contracts.--All contracts for the 
                substantial construction of the facility were 
                in effect prior to May 15, 1994.
                  (C) Revenue bonds.--Prior to May 15, 1994, 
                revenue bonds were presented for sale to 
                specifically provide revenue for the 
                construction of the facility.
                  (D) Construction and operating permits.--The 
                State or political subdivision submitted to the 
                appropriate regulatory agency or agencies, on 
                or before May 15, 1994, substantially complete 
                permit applications for the construction and 
                operation of the facility.
    (d) Constructed and Operated.--
          (1) In general.--A political subdivision of a State 
        may exercise flow control authority for municipal solid 
        waste and for recyclable material voluntarily 
        relinquished by the owner or generator of the material 
        that is generated within its jurisdiction if--
                  (A) prior to May 15, 1994, the political 
                subdivision--
                          (i) contracted with a public service 
                        authority or with its operator to 
                        deliver or cause to be delivered to the 
                        public service authority substantially 
                        all of the disposable municipal solid 
                        waste that is generated or collected by 
                        or is within or under the control of 
                        the political subdivision, in order to 
                        support revenue bonds issued by and in 
                        the name of the public service 
                        authority for waste management 
                        facilities; or
                          (ii) entered into contracts with a 
                        public service authority to deliver or 
                        cause to be delivered to the public 
                        service authority substantially all of 
                        the disposable municipal solid waste 
                        that is generated or collected by or 
                        within the control of the political 
                        subdivision, which imposed flow control 
                        pursuant to a law, ordinance, 
                        regulation, or other legally binding 
                        provision and where outstanding revenue 
                        bonds were issued in the name of public 
                        service authorities for waste 
                        management facilities; and
                  (B) prior to May 15, 1994, the public service 
                authority--
                          (i) issued the revenue bonds for the 
                        construction of municipal solid waste 
                        facilities to which the political 
                        subdivision's municipal solid waste is 
                        transferred or disposed; and
                          (ii) commenced operation of the 
                        facilities.
          (2) Duration of authority.--Authority under this 
        subsection may be exercised by a political subdivision 
        under paragraph (1)(A)(ii) only until the expiration of 
        the contract or the life of the bond, whichever is 
        earlier.
    (e) State-Mandated Disposal Services.--A political 
subdivision of a State may exercise flow control authority for 
municipal solid waste and for recyclable material voluntary 
relinquished by the owner or generator of the material that is 
generated within its jurisdiction if, prior to May 15, 1994, 
the political subdivision--
          (1) was mandated by State law to provide for the 
        operation of solid waste facilities to serve the 
        disposal needs of all incorporated and unincorporated 
        areas of the county;
          (2) is currently required to initiate a recyclable 
        materials recycling program in order to meet a 
        municipal solid waste reduction goal of at least 30 
        percent;
          (3) has been authorized by State statute to exercise 
        flow control authority and had implemented the 
        authority through a law, ordinance, regulation, 
        contract, or other legally binding provision; and
          (4) had incurred significant financial expenditures 
        to comply with the mandates under State law and to 
        repay outstanding revenue bonds that were issued for 
        the construction of solid waste management facilities 
        to which the political subdivision's waste was 
        designated.
    (f) Retained Authority.--
          (1) Request.--On the request of a generator of 
        municipal solid waste affected by this section, a State 
        or political subdivision may authorize the diversion of 
        all or a portion of the solid waste generated by the 
        generator making the request to an alternative solid 
        waste treatment or disposal facility, if the purpose of 
        the request is to provide a higher level of protection 
        for human health and the environment or reduce 
        potential future liability of the generator under 
        Federal or State law for the management of such waste, 
        unless the State or political subdivision determines 
        that the facility to which the municipal solid waste is 
        proposed to be diverted does not provide a higher level 
        of protection for human health and the environment or 
        does not reduce the potential future liability of the 
        generator under Federal or State law for the management 
        of such waste.
          (2) Contents.--A request under paragraph (1) shall 
        include information on the environmental suitability of 
        the proposed alternative treatment or disposal facility 
        and method, compared to that of the designated facility 
        and method.
    (g) Limitations on Revenue.--A State or political 
subdivision may exercise flow control authority under 
subsection (b), (c), or (d) only if the State or political 
subdivision certifies that the use of any of its revenues 
derived from the exercise of that authority will be used for 
solid waste management services.
    (h) Reasonable Regulation of Commerce.--A law, ordinance, 
regulation, or other legal binding provision or official act of 
a State or political subdivision, as described in subsection 
(b), (c), or (d), that implements flow control authority in 
compliance with this section shall be considered to be a 
reasonable regulation of commerce retroactive to its date of 
enactment or effective date and shall not be considered to be 
an undue burden on or otherwise considered as impairing, 
restraining, or discriminating against interstate commerce.
    (i) Effect on Existing Laws and Contracts.--
          (1) Environmental laws.--Nothing in this section 
        shall be construed to have any effect on any other law 
        relating to the protection of human health and the 
        environment or the management of municipal solid waste 
        or recyclable material.
          (2) State law.--Nothing in this section shall be 
        construed to authorize a political subdivision of a 
        State to exercise the flow control authority granted by 
        this section in a manner that is inconsistent with 
        State law.
          (3) Ownership of recyclable material.--Nothing in 
        this section--
                  (A) authorizes a State or political 
                subdivision of a State to require a generator 
                or owner of recyclable material to transfer 
                recyclable material to the State or political 
                subdivision; or
                  (B) prohibits a generator or owner of 
                recyclable material from selling, purchasing, 
                accepting, conveying, or transporting 
                recyclable material for the purpose of 
                transformation or remanufacture into usable or 
                marketable material, unless the generator or 
                owner voluntarily made the recyclable material 
                available to the State or political subdivision 
                and relinquished any right to, or ownership of, 
                the recyclable material.
    (j) Repeal.--(1) Notwithstanding any provision of this 
title, authority to flow control by directing municipal solid 
waste or recyclable materials to a waste management facility 
shall terminate on the date that is 30 years after the date of 
enactment of this Act.
    (2) This section and the item relating to this section in 
the table of contents for subtitle D of the Solid Waste 
Disposal Act are repealed effective as of the date that is 30 
years after the date of enactment of this Act.