299.83(6)(k)
(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.
299.83(6)(L)1.1. 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).
299.83(6)(L)2.
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.
299.83(6)(L)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.
299.83(6)(L)4.
4. After providing public notice under
subd. 3., the department may hold a public informational meeting about a proposed participation contract.
299.83(6)(L)5.
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.
299.83(6m)
(6m) Compliance reports and deferred civil enforcement. 299.83(6m)(a)(a)
Compliance reports. If an audit under
sub. (3) (d) 4. or
(5) (c) 2. or
3. reveals any violations, the participant shall include all of the following in the report of the results of the audit:
299.83(6m)(a)2.
2. A description of the actions taken or proposed to be taken to correct the violations identified in
subd. 1.
299.83(6m)(a)3.
3. A commitment to correct the violations identified in
subd. 1. within 90 days of submitting the report or according to a compliance schedule approved by the department.
299.83(6m)(a)4.
4. If the participant proposes to take more than 90 days after submitting the report to correct the violations identified in
subd. 1., a proposed compliance schedule that contains the shortest reasonable periods for correcting the violations, a statement that justifies the proposed compliance schedule, a description of measures that the participant will take to minimize the effects of the violations 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.
299.83(6m)(a)5.
5. A description of the measures that the participant has taken or will take to prevent future violations.
299.83(6m)(am)
(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:
299.83(6m)(am)1.
1. A description of the violation and the date on which the participant discovered the violation.
299.83(6m)(am)2.
2. A description of the actions taken or proposed to be taken to correct the violation.
299.83(6m)(am)3.
3. A commitment to correct the violation within 90 days of submitting the report or according to a compliance schedule approved by the department.
299.83(6m)(am)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.
299.83(6m)(am)5.
5. A description of the measures that the participant has taken or will take to prevent future violations.
299.83(6m)(b)1.1. 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.
299.83(6m)(b)2.
2. 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:
299.83(6m)(b)2.a.
a. The environmental and public health consequences of the violations.
299.83(6m)(b)2.b.
b. The time needed to implement a change in raw materials or method of production if that change is an available alternative to other methods of correcting the violations.
299.83(6m)(b)2.c.
c. The time needed to purchase any equipment or supplies that are needed to correct the violations.
299.83(6m)(c)
(c)
Stipulated penalties. If the department receives a report under
par. (a) or
(am) that contains proposed stipulated penalties under
par. (a) 4. or
(am) 4., the department shall review the proposed stipulated penalties. The department may approve the stipulated penalties as submitted or propose different stipulated penalties. If the participant does not agree to stipulated penalties proposed by the department, the department shall schedule a meeting with the participant to attempt to reach an agreement on stipulated penalties. If no agreement is reached, there are no stipulated penalties for failure to comply with the compliance schedule.
299.83(6m)(d)1.a.a. If a participant in the program corrects violations that are disclosed in a report that meets the requirements of
par. (a) or
(am) within 90 days after the department receives the report, this state may not bring a civil action to collect forfeitures for the violations.
299.83(6m)(d)1.b.
b. This state may not begin a civil action to collect forfeitures for violations covered by a compliance schedule that is approved under
par. (b) during the period of the compliance schedule if the participant is in compliance with the compliance schedule. If the participant fails to comply with the compliance schedule and there are stipulated penalties, the department may collect any stipulated penalties or may terminate participation in the program. If the participant fails to comply with the compliance schedule and there are no stipulated penalties, the department may terminate participation in the program. After the department terminates participation in the program, this state may begin a civil action to collect forfeitures for the violations.
299.83(6m)(d)1.c.
c. If the department approves a compliance schedule under
par. (b) and the participant corrects the violations according to the compliance schedule, this state may not bring a civil action to collect forfeitures for the violations.
299.83(6m)(d)2.
2. Notwithstanding
subd. 1., this state may at any time begin a civil action to collect a forfeiture for a violation if any of the following applies:
299.83(6m)(d)2.a.
a. The violation presents an imminent threat to public health or the environment or may cause serious harm to public health or the environment.
299.83(6m)(d)2.b.
b. The department discovers the violation before submission of a report that meets the requirement of
par. (a) or
(am).
299.83(7)
(7) Suspension or termination of participation. 299.83(7)(a)(a) The department may suspend or terminate the participation of a participant in the program at the request of the participant.
299.83(7)(b)
(b) The department may terminate the participation of a participant in the program if a judgment is entered against the participant, any managing operator of the participant, or any person with a 25% or more ownership interest in the participant for a criminal or civil violation involving a covered facility or activity that resulted in substantial harm to public health or the environment or that presented an imminent threat to public health or the environment.
299.83(7)(c)
(c) The department may suspend the participation of a participant in the program if the department determines that the participant, any managing operator of the participant, or any person with a 25% or more ownership interest in the participant committed a criminal or civil violation involving a covered facility or activity that resulted in substantial harm to public health or the environment or that presented an imminent threat to public health or the environment and the department refers the matter to the department of justice for prosecution.
299.83(7)(d)
(d) The department may suspend or terminate the participation of a participant in tier I of the program if the participant does not implement, or fails to maintain, the environmental management system described in
sub. (3) (d) 1., fails to conduct annual audits described in
sub. (3) (d) 4., or fails to submit annual reports described in
sub. (3) (d) 5.
299.83(7)(e)
(e) The department may, after an opportunity for a hearing, terminate a participation contract if the department determines that the participant is in substantial noncompliance with the participation contract.
299.83(7)(f)
(f) A person who is not a party to a participation contract, but who believes that a participant is in substantial noncompliance with a participation contract, may ask the department to terminate a participation contract under
par. (e).
299.83(7e)(a)(a) The department may issue an environmental results charter to an association of entities to assist the entities to participate in tier I or tier II of the program or to take actions that may lead to superior environmental performance. An association to which a charter is issued may consist of private entities, public entities, or a combination of private and public entities. An association to which a charter is issued may be organized on any basis that helps the entities to participate in tier I or tier II of the program or to take actions that may lead to superior environmental performance.
299.83(7e)(b)
(b) In a charter, the entities in the association shall describe the goals of the association, the responsibilities of the entities, and the activities that the entities will engage in to accomplish their goals. The term of a charter may not be less than 3 years or more than 10 years, with the opportunity for renewal for additional terms of the same length upon the agreement of the entities and the department.
299.83(7e)(c)
(c) The department may not issue a charter unless the department determines that the entities in the association have the resources to carry out the charter. Before issuing a proposed charter, the department shall provide public notice of the proposed charter in the areas in which the activities under the charter will be engaged in. After providing public notice and before issuing a proposed charter, the department shall hold a public informational hearing on the proposed charter. A decision by the department to issue a charter is not subject to review under
ch. 227.
299.83(7e)(d)
(d) An association to which a charter has been issued shall report annually to the department on the activities that have been engaged in under the charter.
299.83(7e)(e)
(e) The department may, after an opportunity for a hearing, terminate a charter if the department determines that the entities in the chartered association are in substantial noncompliance with the charter. Any person who has evidence that the entities in a chartered association are not in compliance with a charter may ask the department to terminate the charter.
299.83(7m)
(7m) Environmental auditors. The department may not approve an outside environmental auditor for the purposes of
sub. (3) (d) 4. or
(5) (c) 2. unless the outside environmental auditor is accredited by an accreditation body that complies with standards of the International Organization for Standardization for accreditation bodies or meets criteria concerning education, training, experience, and performance that the department determines are equivalent to the criteria in the standards and guidance of the International Organization for Standardization for entities providing audit and certification of environmental management systems.
299.83(7s)(a)(a) Except as provided in
par. (c), the department shall make any record, report, or other information obtained in the administration of this section available to the public.
299.83(7s)(c)
(c) The department shall keep confidential any part of a record, report, or other information obtained in the administration of this section, other than emission data or discharge data, upon receiving an application for confidential status by any person containing a showing satisfactory to the department that the part of a record, report, or other information would, if made public, divulge a method or process that is entitled to protection as a trade secret, as defined in
s. 134.90 (1) (c), of that person.
299.83(7s)(d)
(d) If the department refuses to release information on the grounds that it is confidential under
par. (c) and a person challenges that refusal, the department shall inform the affected participant of that challenge. Unless the participant authorizes the department to release the information, the participant shall pay the reasonable costs incurred by this state to defend the refusal to release the information.
299.83(7s)(e)
(e) Paragraph (c) does not prevent the disclosure of any information to a representative of the department for the purpose of administering this section or to an officer, employee, or authorized representative of the federal government for the purpose of administering federal law. When the department provides information that is confidential under
par. (c) to the federal government, the department shall also provide a copy of the application for confidential status.
299.83(8)
(8) Powers and duties of the department. 299.83(8)(a)(a) To facilitate the process under
sub. (6), the department shall develop model terms that may be used in participation contracts.
299.83(8)(b)
(b) After consultations with interested persons, the department shall annually establish a list identifying aspects of superior environmental performance that the department will use to identify which letters of intent it will process under
sub. (6) in the following year and the order in which it will process the letters of intent.
299.83(8)(c)
(c) The department may promulgate rules for the administration of the program. In the rules, the department may specify incentives, that are consistent with federal laws and other state laws, that the department may provide to participants in tier II of the program.
299.83(8)(d)
(d) The department shall encourage small businesses, agricultural organizations, entities that are not subject to environmental requirements, local governments, and other entities to form groups to work cooperatively on projects to achieve superior environmental performance.
299.83(8)(e)
(e) The department shall select a logo for the program.
299.83(8)(f)
(f) The department and the department of safety and professional services shall jointly provide information about participation contracts and environmental management systems to potential participants in the program and to other interested persons. The department shall consult with the department of safety and professional services about the administration of the program.
299.83(8)(g)
(g) The department shall collect, process, evaluate, and disseminate data and information about environmentally beneficial and innovative practices submitted by participants in the program. The department may conduct or direct studies, experiments, or research related to the program in cooperation with participants and other interested persons. The department may enter into agreements with the Robert M. La Follette institute of public affairs at the University of Wisconsin-Madison to assist in the promotion, administration, or evaluation of the program.
299.83(8)(h)
(h) Every even-numbered year, no later than December 15, the department shall submit a progress report on the program to the governor and, under
s. 13.172 (2), to the standing committees of the legislature with jurisdiction over environmental matters.
299.83(8)(i)
(i) The department shall implement a process to obtain advice from a balanced public group about all of the following:
299.83(8)(i)1.
1. The implementation and operation of the program, including the setting of goals and priorities for the program.
299.83(8)(i)2.
2. Evaluating the costs of applying for the program and of entering into a participation contract or a charter and the administrative costs of participating in the program.
299.83(8)(i)3.
3. Assessing whether incentives provided under a participation contract are proportional to the environmental benefits committed to under a participation contract.
299.83(8)(i)4.
4. Procedures for evaluating the program and the results of the program.
299.83(10)
(10) Penalty. Any person who intentionally makes a false statement in material submitted under this section shall be fined not less than $10 nor more than $10,000 or imprisoned for not more than 6 months or both.
299.83 Annotation
Achieving Environmental Excellence: Green Tier Legislation. Bochert & Schlaefer. Wis. Law. Sept. 2005.
299.85
299.85
Environmental Compliance Audit Program. 299.85(1)(a)
(a) "Environmental compliance audit" means a systematic, documented, and objective review, conducted by or on behalf of the owner or operator of a facility, of the environmental performance of the facility, including an evaluation of compliance with one or more environmental requirements.
299.85(1)(am)
(am) "Environmental performance" means the effects of a facility on air, water, land, natural resources, and human health.
299.85(1)(c)
(c) "Environmental requirement" means a requirement in any of the following:
299.85(1)(c)1.
1. Chapters 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.
299.85(1)(c)2.
2. An ordinance or other legally binding requirement of a local governmental unit enacted under authority granted by a state law relating to environmental protection.
299.85(1)(d)
(d) "Facility" means all buildings, equipment, and structures located on a single parcel or on adjacent parcels that are owned or operated by the same person.
299.85(1)(e)
(e) "Local governmental unit" means a city, village, town, county, town sanitary district, or metropolitan sewerage district.
299.85(1)(f)
(f) "Regulated entity" means a public or private entity that is subject to environmental requirements.
299.85(1)(g)
(g) "Violation" means a violation of an environmental requirement.
299.85(2)
(2) Requirements for participation. Subject to
sub. (2m), a regulated entity qualifies for participation in the Environmental Compliance Audit Program with respect to a facility owned or operated by the regulated entity if all of the following apply:
299.85(2)(a)
(a) The regulated entity conducts an environmental compliance audit of the facility.
299.85(2)(b)
(b) The regulated entity notifies the department in writing, no fewer than 30 days before beginning the environmental compliance audit, of the date on which the environmental compliance audit will begin, the site or facility or the operations or practices at a site or facility to be reviewed, and the general scope of the environmental compliance audit.
299.85(2)(bm)
(bm) The notice under
par. (b) includes a statement, signed by an official of the regulated entity who is responsible for environmental compliance, that acknowledges that
sub. (7) (a) does not apply to violations discovered by the regulated entity before the beginning of the environmental compliance audit.
299.85(2)(c)
(c) The environmental compliance audit complies with
sub. (4).
299.85(2)(e)
(e) The regulated entity submits a report as required under
sub. (3).
