March 25, 2003 - Introduced by Representatives Montgomery, Jeskewitz, M.
Lehman, Hines, Olsen, Musser, Ainsworth, Vrakas, Krawczyk, Van Roy,
Albers, Ott and Bies, cosponsored by Senators Kedzie, Welch, Schultz,
Harsdorf and Stepp. Referred to Committee on Natural Resources.
AB228,1,5
1An Act to create 299.83 and 299.85 of the statutes;
relating to: environmental
2compliance audits, environmental management systems, providing incentives
3for improving environmental performance, providing immunity from civil
4penalties for certain violations of environmental requirements, access to
5certain information, granting rule-making authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
Environmental Results Program
This bill creates the Environmental Results Program, administered by the
Department of Natural Resources (DNR), that provides incentives to public and
private entities for improving environmental performance. There are two tiers in the
Environmental Results Program.
To participate in tier I of the Environmental Results Program a private or public
entity 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 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. 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 on those audits to
DNR.
The bill requires DNR to provide public recognition to an entity that
participates in tier I of the program and to establish a logo that may be used by a
participant in tier I. 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.
Under the bill, if the audit of an environmental management system reveals a
violation of an environmental law, the participant must include in its report to DNR
a description of the violation and the actions taken or proposed to be taken to correct
the violation. If the participant proposes to take more than 90 days to correct the
violation, the participant must submit a proposed compliance schedule and proposed
penalties that the participant 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 participant.
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
participant. 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 participant
in the Environmental Results 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 participant is complying with a
compliance schedule. If the participant corrects the violation within the 90 day
period or within the time provided in the compliance schedule, the bill generally
prohibits the state from ever bringing an action to collect forfeitures for the violation.
If a participant violates a compliance schedule and there are stipulated penalties, the
participant must pay the stipulated penalties. The bill authorizes this state to begin
an action to collect forfeitures from a participant at any time in cases in which a
violation presents an imminent threat or may cause serious harm to public health
or the environment and cases in which DNR discovers the violation before the
participant reports the violation.
To participate in tier II of the 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 an auditor 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 environmental
performance 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 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 participation contract with a term of not
less than three years or more than ten years, subject to renewal for terms the same
length. The bill authorizes DNR to promulgate rules specifying incentives that may
be provided to participants in tier II. The bill imposes the same limitations on
collecting forfeitures for violations of environmental laws by participants in tier II
as for tier I.
The bill authorizes DNR to issue an environmental results charter to an
association of entities to assist the entities to participate in tier I or tier II and to
achieve superior environmental performance. In the charter, the entities describe
the goals of the association, the responsibilities of the entities, and the activities that
the entities will engage in to accomplish their goals.
Under the bill, DNR may not process or approve any application for
participation in the Environmental Results Program that it receives after July 1,
2009.
The bill requires DNR and the Department of Commerce to provide information
about environmental management systems to potential participants in the
Environmental Results Program.
Environmental Improvement Program
This bill creates the Environmental Improvement Program, administered by
DNR, under which a participant may be able to avoid forfeitures (civil monetary
penalties) 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 and objective review of
the effects of a facility on the environment, including an evaluation of compliance
with one or more environmental laws. The bill requires the regulated entity to notify
DNR before beginning an audit.
To participate in the program, the regulated entity must submit a report to
DNR describing the results of the environmental compliance 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 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 ever 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 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,
cases in which DNR discovers the violation before the regulated entity reports the
violation, and cases of repeated violations of the same environmental law. The bill
ends the Environmental Improvement Program on July 1, 2009.
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 DOJ 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.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
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:
AB228, s. 1
1Section
1. 299.83 of the statutes is created to read:
AB228,5,2
2299.83 Environmental Results Program.
(1) Definitions. In this section:
AB228,5,43
(a) "Covered facility or activity" means a facility or activity that is included, or
4intended to be included, in the program.
AB228,5,85
(b) "Environmental management system" means an organized set of
6procedures to evaluate environmental performance and to achieve measurable or
7noticeable improvements in that environmental performance through planning and
8changes in operations.
AB228,6,29
(bm) "Environmental management system audit" means a review, of an
10environmental management system, that is conducted in accordance with standards
11and guidelines issued by the International Organization for Standardization and the
1results of which are documented and are communicated to employees of the entity
2whose environmental management system is reviewed.
AB228,6,53
(c) "Environmental performance," unless otherwise qualified, means the
4effects, whether regulated under chs. 29 to 31, 160, and 280 to 299 or unregulated,
5of a facility or activity on air, water, land, natural resources, and human health.
AB228,6,86
(d) "Environmental requirement" means a requirement in chs. 29 to 31, 160,
7or 280 to 299, a rule promulgated under one of those chapters, or a permit, license,
8other approval, or order issued by the department under one of those chapters.
AB228,6,129
(dg) "Functionally equivalent environmental management system" means an
10environmental management system that includes all of the following elements and
11any other elements that the department determines are essential elements of
12International Organization for Standardization standard 14001:
AB228,6,1513
1. Adoption of an environmental policy that includes a commitment to
14compliance with environmental requirements, pollution prevention, and continual
15improvement in environmental performance.
AB228,6,1716
2. An analysis of the environmental aspects and impacts of an entity's
17activities.
AB228,6,1918
3. Plans and procedures to achieve compliance with environmental
19requirements and to maintain that compliance.
AB228,6,2020
4. Identification of all environmental requirements applicable to the entity.
AB228,6,2221
5. A process for setting environmental objectives and developing appropriate
22action plans to meet the objectives.
AB228,6,2423
6. Establishment of a structure for operational control and responsibility for
24environmental performance.
AB228,7,2
17. An employee training program to develop awareness of and competence to
2manage environmental issues.
AB228,7,43
8. A plan for taking actions to prevent environmental problems and for taking
4emergency response and corrective actions when environmental problems occur.
AB228,7,75
9. A communication plan for collaboration with employees, the public, and the
6department on the design of projects and activities to achieve continuous
7improvement in environmental performance.
AB228,7,98
10. Procedures for control of documents and for keeping records related to
9environmental performance.
AB228,7,1010
11. Environmental management system audits.
AB228,7,1211
12. A plan for continually improving environmental performance and provision
12for senior management review of the plan.
AB228,7,1613
(dr) "Outside environmental auditor" means an auditor who is functionally or
14administratively independent of the facility or activity being audited, but who may
15be employed by the entity that owns the facility being audited or that owns the unit
16that conducts the activity being audited.
AB228,7,2117
(e) "Participation contract" means a contract entered into by the department
18and a participant in tier II of the program, and that may, with the approval of the
19department, be signed by other interested parties, that specifies the participant's
20commitment to superior environmental performance and the incentives to be
21provided to the participant.
AB228,7,2222
(f) "Program" means the Environmental Results Program under this section.
AB228,8,223
(g) "Superior environmental performance" means environmental performance
24that results in measurable or discernible improvement in the quality of the air,
25water, land, or natural resources, or in the protection of the environment, beyond
1that which is achieved under environmental requirements and that may be achieved
2in ways that include all of the following:
AB228,8,73
1. Limiting the discharges or emissions of pollutants from, or in some other way
4minimizing the negative effects on air, water, land, natural resources, or human
5health of, a facility that is owned or operated by an entity or an activity that is
6performed by the entity to an extent that is greater than is required by applicable
7environmental requirements.
AB228,8,118
2. Minimizing the negative effects on air, water, land, natural resources, or
9human health of the raw materials used by an entity or of the products or services
10produced or provided by the entity to an extent that is greater than is required by
11applicable environmental requirements.
AB228,8,1212
3. Voluntarily engaging in restoring or preserving natural resources.
AB228,8,1413
4. Helping other entities to comply with environmental requirements or to
14accomplish the results described in subd. 1. or 2.
AB228,8,1615
5. Organizing uncoordinated entities that produce environmental harm into a
16program that reduces that harm.
AB228,8,1817
6. Reducing waste or the use or production of hazardous substances in the
18design, production, delivery, use, or reuse of goods or services.
AB228,8,1919
7. Conserving energy or nonrenewable natural resources.
AB228,8,2120
8. Reducing the use of renewable natural resources through increased
21efficiency.
AB228,8,2322
9. Adopting methods that reduce the depletion of, or long-term damage to,
23renewable natural resources.
AB228,8,2424
(h) "Violation" means a violation of an environmental requirement.
AB228,9,2
1(1m) Administration of program. In administering the program, the
2department shall attempt to do all of the following:
AB228,9,43
(a) Promote, reward, and sustain superior environmental performance by
4participants.
AB228,9,75
(b) Promote environmental performance that voluntarily exceeds legal
6requirements related to health, safety, and the environment and that results in
7continuous improvement in this state's environment, economy, and quality of life.
AB228,9,98
(c) Provide clear incentives for participation that will result in real benefits to
9participants.
AB228,9,1310
(d) Promote attention to unregulated environmental problems and provide
11opportunities for conservation of resources and environmental restoration by
12entities that are subject to environmental requirements and entities that are not
13subject to environmental requirements.
AB228,9,1514
(e) Make the program compatible with federal programs that create incentives
15for achieving environmental performance that exceeds legal requirements.
AB228,9,1816
(f) Increase levels of trust, communication, and accountability among
17regulatory agencies, entities that are subject to environmental requirements, and
18the public.
AB228,9,2219
(g) Reduce the time and money spent by regulatory agencies and entities that
20are subject to environmental requirements on tasks that do not benefit the
21environment by focusing on more efficient performance of necessary tasks and
22eliminating unnecessary tasks.
AB228,9,2523
(h) Report information concerning environmental performance and data
24concerning ambient environmental quality to the public in a manner that is accurate,
25timely, credible, relevant, and useable to interested persons.
AB228,10,2
1(i) Provide for the measurement of environmental performance in terms of
2accomplishing goals and require the reporting of the results.
AB228,10,53
(j) Implement an evaluation system that provides flexibility and affords some
4protection for experimentation by participants that use innovative techniques to try
5to achieve superior environmental performance.
AB228,10,66
(k) Remove disincentives to achieving superior environmental performance.
AB228,10,87
(L) Provide for sustained business success as well as a reduction in
8environmental pollution.
AB228,10,109
(m) Promote the transfer of technological and practical innovations that
10improve environmental performance in an efficient, effective, or safe manner.
AB228,10,1211
(n) Lower the administrative costs associated with environmental
12requirements and with achieving superior environmental performance.
AB228,10,17
13(3) Eligibility for tier i. (a)
General. An applicant is eligible for tier I of the
14program if the applicant satisfies the requirements in pars. (b) to (d). If an applicant
15consists of a group of entities, each requirement in pars. (b) to (d) applies to each
16entity in the group. An applicant for tier I of the program shall identify the facilities
17or activities that it intends to include in the program.
AB228,10,1918
(b)
Enforcement record. To be eligible to participate in tier I of the program, an
19applicant shall demonstrate all of the following:
AB228,10,2520
1. That, within 60 months before the date of application, no judgment of
21conviction was entered against the applicant, any managing operator of the
22applicant, or any person with a 25% or more ownership interest in the applicant for
23a criminal violation involving a covered facility or activity that resulted in
24substantial harm to public health or the environment or that presented an imminent
25threat to public health or the environment.
AB228,11,5
12. That, within 36 months before the date of application, no civil judgment was
2entered against the applicant, any managing operator of the applicant, or any person
3with a 25% or more ownership interest in the applicant for a violation involving a
4covered facility or activity that resulted in substantial harm to public health or the
5environment.
AB228,11,106
3. That, within 24 months before the date of application, the department of
7justice has not filed a suit to enforce an environmental requirement, and the
8department of natural resources has not issued a citation to enforce an
9environmental requirement, because of a violation involving a covered facility or
10activity.
AB228,11,1211
(c)
Environmental performance. To be eligible to participate in tier I of the
12program, an applicant shall submit an application that describes all of the following: