SB495: Bill Text

LRB-5048/1

RCT:cs:pg

2001 - 2002 LEGISLATURE

2001 Senate BILL 495

March 11, 2002 - Introduced by Senators Baumgart and Schultz, cosponsored by Representatives Duff and Ziegelbauer. Referred to Committee on Environmental Resources.

SB495,1,6 An Act to create 15.347 (3), 299.83 and 299.85 of the statutes; relating to: environmental compliance audits, environmental management systems, providing incentives for improving environmental performance, providing immunity from civil penalties for certain violations of environmental requirements, access to certain information, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill creates two programs to be administered by the department of natural resources (DNR), the environmental improvement program and the environmental results program.

Environmental improvement program

Under the environmental improvement program, a participant may be able to avoid having to pay a forfeiture (a civil monetary penalty) for an environmental violation that the participant reports to DNR. A public or private entity that is subject to environmental laws (regulated entity) may participate in the environmental improvement program if the regulated entity satisfies several requirements. To participate, a regulated entity must conduct an environmental compliance audit that satisfies requirements specified in the bill. An environmental compliance audit is a systematic review of the effects of a facility on the environment, including an evaluation of compliance with one or more environmental laws.

To participate in the program, the regulated entity must notify DNR before it begins the environmental compliance audit and must submit a report to DNR describing the results of the audit. The regulated entity must complete the environmental compliance audit and submit the report to DNR within a year of notifying DNR that it will conduct the audit. At the time of submitting the report, more than two years must have elapsed since the regulated entity was prosecuted or issued a citation for violating an environmental law. The report must describe all violations of environmental laws revealed by the environmental compliance audit and the actions taken or proposed to be taken to correct the violations. If the regulated entity proposes to take more than 90 days after filing the report to correct the violations, the regulated entity must submit a proposed compliance schedule and proposed penalties that the regulated entity would agree to accept (stipulated penalties) if it violates the compliance schedule.

The bill requires DNR to provide public notice and a period for public comment on any compliance schedule and stipulated penalties proposed by a regulated entity. After that period, DNR may approve the compliance schedule as submitted or propose a different compliance schedule. If the parties cannot agree on a compliance schedule, DNR may impose a compliance schedule, which may be appealed by the regulated entity. DNR also reviews proposed stipulated penalties. If the parties cannot agree on stipulated penalties, there are no stipulated penalties.

The bill generally prohibits this state from beginning an action to collect a forfeiture for a violation of an environmental law that is disclosed by a regulated entity that satisfies the requirements for participation in the environmental improvement program for at least 90 days after DNR receives the report of the violation. Similarly, the bill generally prohibits the state from beginning an action to collect a forfeiture while a regulated entity is complying with a compliance schedule. If the regulated entity corrects the violation within the 90 day period or within the time provided in the compliance schedule, the bill generally prohibits the state from bringing an action to collect forfeitures for the violation. If a regulated entity violates a compliance schedule and there are stipulated penalties, the regulated entity must pay the stipulated penalties. The bill authorizes this state to begin an action to collect forfeitures from a regulated entity that otherwise satisfies the requirements for participation in the environmental improvement program at any time under several circumstances, including cases in which a violation presents an imminent threat, or may cause serious harm, to public health or the environment or in which DNR discovers the violation before the regulated entity reports the violation.

The bill does not prevent the state from prosecuting a criminal violation by a regulated entity that qualifies for participation in the environmental improvement program, but the bill requires DNR and the department of justice to take into account the efforts of the regulated entity to comply with environmental laws in deciding whether to begin a criminal enforcement action and what penalty should be sought.

The bill sunsets the environmental improvement program on July 1, 2007.

Environmental results program

The environmental results program provides incentives for public and private entities to improve their environmental performance. There are two ways in which an entity may participate in the environmental improvement program, called tier I and tier II.

To participate in tier I of the environmental results program, an applicant must satisfy several requirements. At the time of application for tier I, more than five years must have elapsed since the applicant was convicted of a criminal violation of an environmental law that resulted in substantial harm to public health or the environment or that presented an imminent threat to public health or the environment; more than three years must have elapsed since a civil judgment was entered against the applicant for a civil violation of an environmental law that resulted in substantial harm to public health or the environment; and more than two years must have elapsed since the applicant was prosecuted or issued a citation for violating an environmental law.

To participate in tier I, an applicant must inform DNR about its past environmental performance and its current environmental performance. The applicant must also inform DNR of its plans for activities that enhance the environment.

Finally, to participate in tier I, an applicant must have implemented or must commit itself to implementing an environmental management system that satisfies certain requirements. An environmental management system is a set of procedures designed to evaluate the effects of a facility or activity on the environment and to achieve improvements in those effects through planning and changes in operations. The applicant must specify, in its environmental management system, objectives for improving its environmental performance or voluntarily restoring, enhancing, or preserving natural resources. The applicant must also commit itself to conducting annual audits of its environmental management system and to submitting reports to DNR on those audits. The reports must include descriptions of any violations of environmental laws revealed by the audits.

A participant in tier I may be able to avoid having to pay a forfeiture (a civil monetary penalty) for an environmental violation that the participant discovers through its environmental management system and reports to DNR under provisions that are similar to those under the environmental improvement program. The bill requires DNR to provide public recognition to an entity that participates in tier I of the program. The bill also requires DNR to assign one of its employees to serve as the contact with DNR for each participant in tier I for all licenses and permits that the participant must obtain from DNR. After a participant in tier I implements an environmental management system that satisfies the statutory requirements, DNR must conduct inspections of the participant's facilities that are covered under the program at the lowest frequency that is permitted under DNR's programs.

To participate in tier II of the environmental results program, an applicant must satisfy several requirements. A participant in tier II enters into a participation contract with DNR. The contract specifies the participant's commitments and the incentives that will be provided to the participant.

At the time of application for tier II, more than ten years must have elapsed since the applicant was convicted of a criminal violation of an environmental law that resulted in substantial harm to public health or the environment or that presented an imminent threat to public health or the environment; more than five years must have elapsed since a civil judgment was entered against the applicant for a civil violation of an environmental law that resulted in substantial harm to public health or the environment; and more than two years must have elapsed since the applicant was prosecuted or issued a citation for violating an environmental law.

To participate in tier II, an applicant must have implemented an environmental management system that satisfies certain requirements. The applicant must commit itself to having an environmental auditor approved by DNR conduct annual audits of the environmental management system and to submitting reports on those audits to DNR. The applicant must also commit itself to annually conducting, or having someone else conduct, audits of its compliance with environmental laws and to submitting the results of those audits to DNR.

Finally, to participate in tier II, an applicant must demonstrate that it has a record of superior environmental performance and describe the measures that it proposes to take to maintain and improve its superior environmental performance. "Superior environmental performance" means that an entity's performance results in a measurable or discernible improvement in the quality of the air, water, land, or natural resources or in the protection of the environment beyond that which is achieved under environmental laws.

If DNR determines that an applicant qualifies for participation in tier II, DNR may enter into negotiations with the applicant about a participation contract. DNR may permit interested third parties to participate in the negotiations. If the parties reach an agreement, they may enter into a contract with a term of from three to ten years, subject to renewal for terms of the same length. The bill requires DNR to ensure that the incentives provided under a participation contract are proportional to the environmental benefits that will be provided by the participant. The bill authorizes DNR to promulgate rules specifying incentives that are consistent with federal and state law that may be provided to participants in tier II.

A participant in tier II may be able to avoid having to pay a forfeiture for an environmental violation that the participant discovers thorough an audit of its environmental management system or an audit of its environmental compliance and reports to DNR under provisions that are similar to those under the environmental improvement program.

The bill authorizes DNR to issue environmental results charters to associations of entities to assist the entities to participate in tier I or tier II and to achieve superior environmental performance. In a charter, the entities describe the goals of the association and the responsibilities and activities that the entities will engage in to accomplish their goals.

The bill requires DNR and the department of commerce to provide information about environmental management systems to potential participants in the environmental results program. The bill also creates an environmental results council to advise DNR about the environmental results program.

The bill prohibits DNR from approving applications for the environmental results program after July 1, 2007.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB495, s. 1 Section 1. 15.347 (3) of the statutes is created to read:

SB495,5,6 15.347 (3) Environmental results council. There is created in the department of natural resources an environmental results council consisting of 15 members appointed for 5-year terms. The governor shall appoint members representing environmental organizations, businesses, and local governmental units and members who do not represent any of these entities.

SB495, s. 2 Section 2. 299.83 of the statutes is created to read:

SB495,5,8 299.83 Environmental results program. (1) Definitions. In this section:

SB495,5,10 (a) "Covered facility or activity" means a facility or activity that is included, or intended to be included, in the program.

SB495,5,14 (b) "Environmental management system" means an organized set of procedures to evaluate environmental performance and to achieve measurable or noticeable improvements in that environmental performance through planning and changes in operations.

SB495,5,18 (bm) "Environmental management system audit" means a review, of an environmental management system, that is conducted in accordance with standards and guidelines issued by the International Organization for Standardization and the results of which are documented and communicated to employees of the participant.

SB495,6,3 (c) "Environmental performance," unless otherwise qualified, means the effects, whether regulated under chs. 29 to 31, 160, and 280 to 299 or unregulated, of a facility or activity on air, water, land, natural resources, and human health.

SB495,6,6 (d) "Environmental requirement" means a requirement in chs. 29 to 31, 160, or 280 to 299, a rule promulgated under one of those chapters, or a permit, license, other approval, or order issued by the department under one of those chapters.

SB495,6,10 (dg) "Functionally equivalent environmental management system" means an environmental management system that includes all of the following elements and any other elements that the department determines are essential elements of International Organization for Standardization standard 14001:

SB495,6,13 1. Adoption of an environmental policy that includes a commitment to compliance with environmental requirements, pollution prevention, and continual improvement in environmental performance.

SB495,6,15 2. An analysis of the environmental aspects and impacts of the entity's activities.

SB495,6,17 3. Plans and procedures to achieve compliance with environmental requirements and to maintain that compliance.

SB495,6,18 4. Identification of all environmental requirements applicable to the entity.

SB495,6,20 5. A process for setting environmental objectives and developing appropriate action plans to meet the objectives.

SB495,6,22 6. Establishment of a structure for operational control and responsibility for environmental performance.

SB495,6,24 7. An employee training program to develop awareness of and competence to manage environmental issues.

SB495,7,2 8. A plan for taking actions to prevent environmental problems and for taking emergency response and corrective actions when environmental problems occur.

SB495,7,5 9. A communication plan for collaboration with employees, the public, and the department on the design of projects and activities to achieve continuous improvement in environmental performance.

SB495,7,7 10. Procedures for control of documents and for keeping records related to environmental performance.

SB495,7,8 11. Audits of the environmental management system.

SB495,7,10 12. A plan for continually improving environmental performance and provision for senior management review of the plan.

SB495,7,14 (dr) "Outside environmental auditor" means an auditor who is functionally or administratively independent of the facility or activity being audited, but who may be employed by the entity that owns the facility being audited or that owns the unit that conducts the activity being audited.

SB495,7,19 (e) "Participation contract" means a contract entered into by the department and a participant in tier II of the program, and that may, with the approval of the department, be signed by other interested parties, that specifies the participant's commitment to superior environmental performance and the incentives to be provided to the participant.

SB495,7,20 (f) "Program" means the environmental results program under this section.

SB495,7,25 (g) "Superior environmental performance" means environmental performance that results in measurable or discernible improvement in the quality of the air, water, land, or natural resources or in the protection of the environment beyond that which is achieved under environmental requirements and that may be achieved in ways that include all of the following:

SB495,8,5 1. Limiting the discharges or emissions of pollutants from, or in some other way minimizing the negative effects on air, water, land, natural resources, or human health of, a facility that is owned or operated by an entity or an activity that is performed by the entity to an extent that is greater than is required by applicable environmental requirements.

SB495,8,9 2. Minimizing the negative effects on air, water, land, natural resources, or human health of the raw materials used by an entity or the products or services produced or provided by the entity to an extent that is greater than is required by applicable environmental requirements.

SB495,8,10 3. Voluntarily engaging in restoring or preserving natural resources.

SB495,8,12 4. Helping other entities to comply with environmental requirements or to accomplish the results described in subd. 1. or 2.

SB495,8,14 5. Organizing uncoordinated entities that produce environmental harm into a program that reduces that harm.

SB495,8,16 6. Reducing waste or the use or production of hazardous substances in the design, production, delivery, use, or reuse of goods or services.

SB495,8,17 7. Conserving energy or nonrenewable natural resources.

SB495,8,19 8. Reducing the use of renewable natural resources through increased efficiency.

SB495,8,21 9. Adopting methods that reduce the depletion of, or long-term damage to, renewable natural resources.

SB495,8,22 (h) "Violation" means a violation of an environmental requirement.

SB495,8,24 (1m) Administration of program. In administering the program, the department shall attempt to do all of the following:

SB495,9,2 (a) Promote, reward, and sustain superior environmental performance by participants.

SB495,9,5 (b) Promote environmental performance that voluntarily exceeds legal requirements related to health, safety, and the environment and results in continuous improvement in this state's environment, economy, and quality of life.

SB495,9,7 (c) Provide clear incentives for participation that will result in real benefits to participants.

SB495,9,11 (d) Promote attention to unregulated environmental problems and provide opportunities for conservation of resources and environmental restoration by entities that are subject to environmental requirements and entities that are not subject to environmental requirements.

SB495,9,13 (e) Make the program compatible with federal programs that create incentives for achieving environmental performance that exceeds legal requirements.

SB495,9,16 (f) Increase levels of trust, communication, and accountability among regulatory agencies, entities that are subject to environmental requirements, and the public.

SB495,9,20 (g) Reduce the time and money spent by regulatory agencies and entities that are subject to environmental requirements on tasks that do not benefit the environment by focusing on more efficient performance of necessary tasks and eliminating unnecessary tasks.

SB495,9,23 (h) Report environmental performance information and data concerning ambient environmental quality to the public in a manner that is accurate, timely, credible, relevant, and useable to interested persons.

SB495,9,25 (i) Provide for the measurement of environmental performance in terms of accomplishing goals and require the reporting of the results.

SB495,10,3 (j) Implement an evaluation system that provides flexibility and affords some protection for experimentation by participants that use innovative techniques to try to achieve superior environmental performance.