SB126: Bill Text

2009 Senate BILL 126

March 18, 2009 - Introduced by Senators Miller, Kedzie, Harsdorf, Holperin, Cowles, Lehman, Risser, Plale, Taylor, Schultz, Erpenbach, Olsen and Lassa, cosponsored by Representatives Clark, Tauchen, Hebl, Berceau, Roys, Smith, Townsend, A. Ott, Molepske Jr., Richards, Pope-Roberts, Sinicki, Lothian, Bernard Schaber, Jorgensen, Ripp and Parisi. Referred to Committee on Environment.

SB126,2,2 An Act to repeal 299.80 (16) (b), 299.83 (3) (d) 1. b., 299.83 (5) (c) 1. b., 299.83 (11) and 299.85 (11); to renumber and amend 299.80 (16) (a) and 299.85 (2) (f); to consolidate, renumber and amend 299.83 (3) (d) 1. (intro.) and a. and 299.83 (5) (c) 1. (intro.) and a.; to amend 299.83 (title), 299.83 (1) (dg.) (intro.), 299.83 (1) (dg.) 1., 299.83 (1) (dg.) 3., 299.83 (1) (dg.) 7., 299.83 (1) (f), 299.83 (3) (e), 299.83 (4) (c), 299.83 (4m) (d), 299.83 (5) (e), 299.83 (6) (a) 1., 299.83 (6) (j), 299.83 (6) (k), 299.83 (6m) (b) 1., 299.83 (6m) (b) 2. (intro.), 299.83 (6m) (c), 299.83 (6m) (d) 1. a., 299.83 (6m) (d) 2. b., 299.83 (7e) (a), 299.83 (7m), 299.83 (8) (h), 299.85 (title), 299.85 (2) (intro.), 299.85 (3) (intro.), 299.85 (4), 299.85 (6) (b) (intro.), 299.85 (7) (a) 1. and 2., 299.85 (8) (intro.) and 299.85 (9m) (intro.); and to create 299.83 (1) (dg.) 5m., 299.83 (1) (dg.) 10g., 299.83 (1) (dg.) 10r., 299.83 (6) (L) and 299.83 (6m) (am) of the statutes; relating to: changes to and extension of the Environmental Results Program, extension of the Environmental Improvement Program and the length of a compliance schedule under that program, and reporting requirements for certain environmental programs.

Analysis by the Legislative Reference Bureau

Environmental Results Program

Under current law, the Department of Natural Resources (DNR) administers the Environmental Results Program (ERP, also called Green Tier) under which qualified participants agree to improve their environmental performance and implement environmental management systems in return for incentives provided by DNR. There are two tiers of participation in ERP. A participant in tier II enters into a participation contract with DNR that sets forth the commitments of the participant and the incentives that DNR will provide. This bill makes various changes in ERP.

Under current law, DNR may not approve any application for participation in ERP after July 1, 2009. This bill eliminates that restriction.

Under current law, certain environmental enforcement actions taken against an entity disqualify the entity from acceptance into ERP for a specified period. The act that created ERP, in 2004, gave the secretary of natural resources temporary authority to waive the provisions concerning an entity's environmental enforcement record if the secretary determined that the waiver was consistent with the purposes of ERP and that the waiver would not erode public confidence in the integrity of ERP. The waiver authority expired at the end of 2006. This bill allows the secretary of natural resources to waive the provisions concerning an entity's environmental enforcement record based on the same criteria as under former law. The bill does not contain a termination date for the waiver authority.

Current law requires participants in ERP to conduct annual audits of their environmental management systems and, for participants in tier II, annual audits of their compliance with environmental laws and to report the results of those audits to DNR. Under the law, if an audit reveals a violation of an environmental law, the participant must provide information about the violation to DNR. If a participant complies with these requirements and corrects the violation within a specified period, the participant is generally exempt from paying a forfeiture (civil monetary penalty) for the violation.

This bill authorizes a participant in ERP to report to DNR a violation of an environmental law that it discovers, other than through an annual audit. If the participant reports within 30 days of discovering the violation, provides required information about the violation, and corrects the violation within a specified period, the participant is generally exempt from paying a forfeiture (civil monetary penalty) for the violation.

Currently under ERP, a participant is required to correct a violation within 90 days unless DNR approves a longer compliance schedule. The law prohibits DNR from approving a compliance schedule that is more than 12 months long. This bill authorizes DNR to approve a longer compliance schedule if the secretary of natural resources determines that a longer schedule is necessary.

Currently, DNR administers the Environmental Cooperation Pilot Program under which DNR was authorized, before October 1, 2002, to enter into not more than ten cooperative agreements with persons subject to environmental laws. The term of an agreement is five years with the possibility of one renewal for five years. In a cooperative agreement, a participant in the program is required to implement an environmental management system and to improve its environmental performance. In return, DNR may grant operational flexibility and, under specified circumstances, provide variances from requirements under environmental laws.

This bill provides a process under which a participant in the Environmental Cooperation Pilot Program may become a participant in tier II of ERP, using the cooperative agreement under the pilot program as a basis for a participation contract under ERP.

Currently, under ERP, DNR may 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 improvements in the quality of the air, water, or other natural resources beyond that achieved through compliance with environmental laws (superior environmental performance). Under this bill, DNR may issue a charter to an association of entities to assist the entities to participate in tier I or tier II or to take actions that may lead to superior environmental performance.

The bill makes some changes in the required characteristics of an environmental management system and gives an applicant for tier I of ERP one year from the date that DNR approves its application, rather than one year from the date of application, to implement an environmental management system that complies with the law's requirements. The bill also changes the name of ERP to the Green Tier Program.

Environmental Improvement Program

The Environmental Improvement Program (EIP), administered by DNR, limits to $500 the amount of a forfeiture (civil monetary penalty) that a qualifying entity can be required to pay because of a violation of an environmental law if the entity discovers the violation through an environmental compliance audit, reports the violation to DNR, and corrects the violation within a specified time. Current law sunsets the EIP on July 1, 2009.

This bill eliminates the sunset of EIP.

Currently, an entity does not qualify for EIP if within two years before it submits the environmental compliance audit the Department of Justice (DOJ) filed suit against the entity to enforce an environmental requirement or DNR or a local government issued a citation to the entity to enforce an environmental requirement.

This bill eliminates the automatic disqualification provision. Instead, under the bill, DNR must consider whether DOJ filed a suit against an entity to enforce an environmental requirement within two years before the entity notifies DNR that it will conduct an environmental compliance audit. If DNR determines that, because of the nature of the violation involved in a suit, the entity's participation would damage the integrity of EIP, DNR must notify the entity that it is not eligible for participation.

Currently under EIP, a qualifying entity is required to correct a violation within 90 days unless DNR approves a longer compliance schedule. The law prohibits DNR from approving a compliance schedule that is more than 12 months long. This bill authorizes DNR to approve a longer compliance schedule if the secretary of natural resources determines that a longer schedule is necessary. The bill also changes the name of EIP to the Environmental Compliance Audit Program.

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

SB126, s. 1 Section 1. 299.80 (16) (a) of the statutes is renumbered 299.80 (16) and amended to read:

SB126,4,8 299.80 (16) Beginning not later than November 1, 1998, the secretary of natural resources Every even-numbered year, no later than December 15, the department shall submit an annual a progress report on the program under this section to the governor and, under s. 13.172 (3), the standing committees of the legislature with jurisdiction over environmental matters. This subsection does not apply after December 31, 2012.

SB126, s. 2 Section 2. 299.80 (16) (b) of the statutes is repealed.

SB126, s. 3 Section 3. 299.83 (title) of the statutes is amended to read:

SB126,4,11 299.83 (title) Environmental Results Green Tier Program.

SB126, s. 4 Section 4. 299.83 (1) (dg.) (intro.) of the statutes is amended to read:

SB126,4,18 299.83 (1) (dg.) (intro.) "Functionally equivalent environmental management system" means an environmental management system that is appropriate to the nature, scale, and environmental impacts of an entity's activities, products, and services and 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:

SB126, s. 5 Section 5. 299.83 (1) (dg.) 1. of the statutes is amended to read:

SB126,5,4 299.83 (1) (dg.) 1. Adoption of an environmental policy that includes a commitment to compliance with environmental requirements, pollution prevention, and continual improvement in environmental performance and that is available to the public.

SB126, s. 6 Section 6. 299.83 (1) (dg.) 3. of the statutes is amended to read:

SB126,5,8 299.83 (1) (dg.) 3. Plans Establishment and implementation of plans and procedures to achieve compliance with environmental requirements and to maintain that compliance.

SB126, s. 7 Section 7. 299.83 (1) (dg.) 5m. of the statutes is created to read:

SB126,5,12 299.83 (1) (dg.) 5m. Establishment, implementation, and maintenance of resources, roles, and responsibilities for establishing, implementing, maintaining, and improving the environmental management system.

SB126, s. 8 Section 8. 299.83 (1) (dg.) 7. of the statutes is amended to read:

SB126,5,16 299.83 (1) (dg.) 7. An Establishment, implementation, and maintenance of an employee training program to develop awareness of and competence to manage environmental issues.

SB126, s. 9 Section 9. 299.83 (1) (dg.) 10g. of the statutes is created to read:

SB126,5,20 299.83 (1) (dg.) 10g. Establishment, implementation, and maintenance of procedures to monitor and measure, on a regular basis, key characteristics of an entity's operations that can have a significant environmental impact.

SB126, s. 10 Section 10. 299.83 (1) (dg.) 10r. of the statutes is created to read:

SB126,5,24 299.83 (1) (dg.) 10r. Establishment, implementation, and maintenance of procedures for periodically evaluating compliance with applicable environmental requirements.

SB126, s. 11 Section 11. 299.83 (1) (f) of the statutes is amended to read:

SB126,6,2 299.83 (1) (f) "Program" means the Environmental Results Green Tier Program under this section.

SB126, s. 12 Section 12. 299.83 (3) (d) 1. (intro.) and a. of the statutes are consolidated, renumbered 299.83 (3) (d) 1. and amended to read:

SB126,6,11 299.83 (3) (d) 1. Demonstrate that it has implemented, or commit itself to implementing within one year of the department's approval of its application, an environmental management system, for each covered facility or activity, that is all of the following: a. In in compliance with the standards for environmental management systems issued by the International Organization for Standardization or determined by the department to be a functionally equivalent environmental management system.

SB126, s. 13 Section 13. 299.83 (3) (d) 1. b. of the statutes is repealed.

SB126, s. 14 Section 14. 299.83 (3) (e) of the statutes is amended to read:

SB126,6,20 299.83 (3) (e) Waiver of enforcement record requirements. Before January 1, 2007, the The secretary of natural resources may waive requirements in par. (b) 2. or 3. based on the request of an applicant. The department shall provide public notice of the request and shall provide at least 30 days for public comment on the request. The secretary may not grant a waiver under this paragraph unless he or she finds that the waiver is consistent with sub. (1m) and will not erode public confidence in the integrity of the program.

SB126, s. 15 Section 15. 299.83 (4) (c) of the statutes is amended to read:

SB126,7,3 299.83 (4) (c) The department shall approve or deny an application within 60 days after providing notice under par. (a) or, if the department holds a public informational meeting under par. (b), within 60 days after that meeting , unless the department and the applicant agree to a longer period. The department may limit the number of participants in tier I of the program, or limit the extent of participation by a particular applicant, based on the department's determination that the limitation is in the best interest of the program.

SB126, s. 16 Section 16. 299.83 (4m) (d) of the statutes is amended to read:

SB126,7,7 299.83 (4m) (d) A participant in tier I of the program may use an Environmental Results a Green Tier Program logo selected by the department on written materials produced by the participant.

SB126, s. 17 Section 17. 299.83 (5) (c) 1. (intro.) and a. of the statutes are consolidated, renumbered 299.83 (5) (c) 1. and amended to read:

SB126,7,14 299.83 (5) (c) 1. Demonstrate that it has implemented an environmental management system, for each covered facility or activity, that is all of the following: a. In in compliance with the standards for environmental management systems issued by the International Organization for Standardization or determined by the department to be a functionally equivalent environmental management system.

SB126, s. 18 Section 18. 299.83 (5) (c) 1. b. of the statutes is repealed.

SB126, s. 19 Section 19. 299.83 (5) (e) of the statutes is amended to read:

SB126,7,24 299.83 (5) (e) Waiver of enforcement record requirements. Before January 1, 2007, the The secretary of natural resources may waive requirements in par. (b) 2. or 3. based on the request of an applicant. The department shall provide public notice of the request and shall provide at least 30 days for public comment on the request. This public comment period may be concurrent with the notice period under sub. (6) (c) to (f). The secretary may not grant a waiver under this paragraph unless he or she finds that the waiver is consistent with sub. (1m) and will not erode public confidence in the integrity of the program.

SB126, s. 20 Section 20. 299.83 (6) (a) 1. of the statutes is amended to read:

SB126,8,4 299.83 (6) (a) 1. Describe the involvement of interested persons in developing and implementing the proposal for maintaining and improving the applicant's superior environmental performance, identify the interested persons, and describe the interests that those persons have in the applicant's participation in the program.

SB126, s. 21 Section 21. 299.83 (6) (j) of the statutes is amended to read:

SB126,8,10 299.83 (6) (j) Participation contract decision. Within 30 days after providing notice under par. (h) or, if the department holds a public informational meeting under par. (i), within 30 days after that meeting, the department shall decide whether to enter into a participation contract with an applicant, unless the applicant and the department agree to an extension beyond 30 days.

SB126,8,23 (jm) Participation contract. 1. In a participation contract, the department shall require that the participant maintain the environmental management system described in sub. (5) (c) 1. and abide by the commitments in sub. (5) (c) 2. and 3. The department shall include in a participation contract a provision that describes how the participant will maintain the involvement of interested parties during the term of the participation contract. The department may not reduce the frequency of required inspections or monitoring as an incentive in a participation contract if the audit under sub. (5) (c) 3. is conducted by a person other than an outside environmental auditor. The department shall ensure that the incentives provided under a participation contract are proportional to the environmental benefits that will be provided by the participant under the participation contract. The department shall include in a participation contract remedies that apply if a party fails to comply with the participation contract.

SB126,9,4 2. The term of a participation contract may not be less than 3 years or more than 10 years, with opportunity for renewal for additional terms of the same length as the original term upon agreement of the parties. The term of a participation contract may not exceed 5 years if the participation contract incorporates, modifies, or otherwise affects the terms or conditions of a permit issued under s. 283.31, 283.33, or 285.62, unless federal and state law authorize a longer term for the permit.

SB126, s. 22 Section 22. 299.83 (6) (k) of the statutes is amended to read:

SB126,9,9 299.83 (6) (k) Review of decision. Notwithstanding s. 227.42, there is no right to an administrative hearing on the department's decision to enter into a participation contract under par. (j) or (L), but the decision is subject to judicial review.

SB126, s. 23 Section 23. 299.83 (6) (L) of the statutes is created to read:

SB126,9,16 299.83 (6) (L) Alternate process. 1. A person participating in the program under s. 299.80 may choose to apply for participation in tier II using the process under this paragraph, rather than under pars. (a) to (j), by submitting a letter notifying the department of its choice, before the expiration of the cooperative agreement under s. 299.80, along with a copy of its most recent performance evaluation under s. 299.80 (3) (j).

SB126,9,25 2. The department shall enter into discussions with a person submitting a letter under subd. 1. to develop a proposed participation contract that is based on the cooperative agreement under s. 299.80, making the changes necessary to ensure that the participation contract complies with par. (jm). For the purposes of par. (jm) 1., if the person agrees to include in the participation contract the measures to maintain and improve its environmental performance that were included in the cooperative agreement, the operational flexibility and variances granted to the person in the cooperative agreement are presumed to be proportional to the environmental benefits that will be provided by the participant.

SB126,10,3 3. The department shall provide public notice about a proposed participation contract developed under subd. 2. in the area in which each covered facility or activity is located or performed.

SB126,10,5 4. After providing public notice under subd. 3., the department may hold a public informational meeting about a proposed participation contract.

SB126,10,11 5. The department may enter into a participation contract under this paragraph with a person with whom the department has developed a proposed participation contract unless significant concerns are raised in comments arising from public notice under subd. 3. or from an informational meeting under subd. 4. and the person is unable or unwilling to respond to the concerns to the department's satisfaction.

SB126, s. 24 Section 24. 299.83 (6m) (am) of the statutes is created to read:

SB126,10,16 299.83 (6m) (am) Optional reports of violations. If a participant discovers a violation, other than through an audit under sub. (3) (d) 4. or (5) (c) 2. or 3., the participant may, no more than 30 days after discovering the violation, submit a report to the department that includes all of the following:

SB126,10,18 1. A description of the violation and the date on which the participant discovered the violation.

SB126,10,20 2. A description of the actions taken or proposed to be taken to correct the violation.

SB126,10,22 3. A commitment to correct the violation within 90 days of submitting the report or according to a compliance schedule approved by the department.

SB126,11,4 4. If the participant proposes to take more than 90 days after submitting the report to correct the violation, a proposed compliance schedule that contains the shortest reasonable periods for correcting the violation, a statement that justifies the proposed compliance schedule, a description of measures that the participant will take to minimize the effects of the violation during the period of the compliance schedule, and proposed stipulated penalties to be imposed if the participant fails to comply with the proposed compliance schedule.

SB126,11,6 5. A description of the measures that the participant has taken or will take to prevent future violations.

SB126, s. 25 Section 25. 299.83 (6m) (b) 1. of the statutes is amended to read:

SB126,11,18 299.83 (6m) (b) 1. If the department receives a report under par. (a) or (am) that contains a proposed compliance schedule under par. (a) 4. or (am) 4., the department shall review the proposed compliance schedule. The department may approve the compliance schedule as submitted or propose a different compliance schedule. If the participant does not agree to implement a compliance schedule proposed by the department, the department shall schedule a meeting with the participant to attempt to reach an agreement on a compliance schedule. If the department and the participant do not reach an agreement on a compliance schedule, the department shall terminate the participation of the participant in the program. If the parties agree to a compliance schedule, the participant shall incorporate the compliance schedule into its environmental management system.

SB126, s. 26 Section 26. 299.83 (6m) (b) 2. (intro.) of the statutes is amended to read:

SB126,11,24 299.83 (6m) (b) 2. (intro.) The department may not approve a compliance schedule that extends longer than 12 months beyond the date of approval of the compliance schedule, unless the secretary determines that a longer schedule is necessary. The department shall consider the following factors in determining whether to approve a compliance schedule:

SB126, s. 27 Section 27. 299.83 (6m) (c) of the statutes is amended to read: