Amendment ASA1-AB356

LRBs0456/1

RCT:wlj:kjf

1999 - 2000 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1999 ASSEMBLY BILL 356

March 21, 2000 - Offered by Committee on Environment.

AB356-ASA1,1,5 An Act to create 299.85 of the statutes; relating to: an environmental improvement program, environmental performance evaluations, environmental management programs, providing immunity for certain violations of environmental requirements, access to certain information and providing a penalty.

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

AB356-ASA1, s. 1 Section 1. 299.85 of the statutes is created to read:

AB356-ASA1,1,8 299.85 Environmental improvement program. (1) Definitions. In this section:

AB356-ASA1,2,2 (a) "Environmental management system" means an organized set of procedures implemented by the owner or operator of a facility to evaluate the environmental performance of the facility and to achieve measurable or noticeable improvements in that environmental performance through planning and changes in the facility's operations.

AB356-ASA1,2,4 (am) "Environmental performance" means the effects of a facility on air, water, land, natural resources and human health.

AB356-ASA1,2,8 (b) "Environmental performance evaluation" 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.

AB356-ASA1,2,9 (c) "Environmental requirement" means a requirement in any of the following:

AB356-ASA1,2,12 1. Chapters 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.

AB356-ASA1,2,15 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.

AB356-ASA1,2,17 (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.

AB356-ASA1,2,19 (e) "Local governmental unit" means a city, village, town, county, town sanitary district or metropolitan sewerage district.

AB356-ASA1,2,21 (f) "Regulated entity" means a public or private entity that is subject to environmental requirements.

AB356-ASA1,2,24 (2) Requirements for participation. A regulated entity qualifies for participation in the environmental improvement program with respect to a facility owned or operated by the regulated entity if all of the following apply:

AB356-ASA1,3,6 (a) If the regulated entity conducts an environmental performance evaluation, the regulated entity notified the department in writing, no less than 30 days before beginning an environmental performance evaluation, of the date on which the environmental performance evaluation would 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 performance evaluation.

AB356-ASA1,3,11 (b) At the time of submitting a report under sub. (3), more than 2 years have elapsed since the department of justice has filed a suit to enforce an environmental requirement, or the department or a local governmental unit has issued a citation to enforce an environmental requirement, because of a violation of an environmental requirement involving the facility.

AB356-ASA1,3,14 (c) The regulated entity conducts an environmental performance evaluation of the facility or submits findings from the facility's environmental management system.

AB356-ASA1,3,15 (d) The regulated entity submits a report as required under sub. (3).

AB356-ASA1,3,17 (e) If the regulated entity conducts an environmental performance evaluation, the environmental performance evaluation complies with sub. (4).

AB356-ASA1,3,19 (f) If the regulated entity submits findings from the facility's environmental management system, the environmental management system complies with sub. (5).

AB356-ASA1,4,2 (3) Report. In order to participate in the environmental improvement program with respect to a facility, a regulated entity that owns or operates the facility shall submit a report to the department within 45 days after the date of the final written report of findings of an environmental performance evaluation of the facility or within 45 days after the date of findings from the facility's environmental management system if the findings identify a violation of an environmental requirement. The report shall include all of the following:

AB356-ASA1,4,7 (a) 1. If the regulated entity conducted an environmental performance evaluation, a description of the environmental performance evaluation, including who conducted the environmental performance evaluation, when it was completed, what activities and operations were examined and what was revealed by the environmental performance evaluation.

AB356-ASA1,4,11 2. If the regulated entity submits findings from an environmental management system, a description of the environmental management system, of the activities and operations covered by the environmental management system and of who made the findings and when the findings were made.

AB356-ASA1,4,14 (b) A description of all violations of environmental requirements revealed by the environmental performance evaluation or the environmental management system and of the length of time that the violations may have continued.

AB356-ASA1,4,16 (c) A description of actions taken or proposed to be taken to correct the violations of environmental requirements.

AB356-ASA1,4,19 (d) A commitment to correct the violations of environmental requirements within 90 days of submitting the report or within a compliance schedule approved by the department.

AB356-ASA1,5,2 (e) If the regulated entity proposes to take more than 90 days to correct the violations of environmental requirements, a proposed compliance schedule that contains the shortest reasonable periods for correcting the violations of environmental requirements, a statement that justifies the proposed compliance schedule and a description of measures that the regulated entity will take to minimize the effects of the violations of environmental requirements during the period of the compliance schedule.

AB356-ASA1,5,5 (em) If the regulated entity proposes to take more than 90 days to correct the violations of environmental requirements, proposed stipulated penalties to be imposed if the regulated entity violates the compliance schedule under par. (e).

AB356-ASA1,5,8 (f) A description of the measures that the regulated entity has taken or will take to prevent future violations of environmental requirements and a timetable for taking the measures that it has not yet taken.

AB356-ASA1,5,17 (4) Environmental performance evaluation. If a regulated entity conducts an environmental performance evaluation under sub. (2) (c), the regulated entity does not qualify for participation in the environmental improvement program unless the final written report of findings of the environmental performance evaluation is labeled "environmental performance evaluation report", is dated and, if the environmental performance evaluation identifies violations of environmental requirements, includes a plan for corrective action. A regulated entity may use a form developed by the regulated entity, by a consultant or by the department for the final written report of findings of the environmental performance evaluation.

AB356-ASA1,5,25 (5) Environmental management system. If a regulated entity submits findings from the facility's environmental management system under sub. (2) (c), the regulated entity does not qualify for participation in the environmental improvement program unless the regulated entity's efforts to prevent, detect and correct violations of environmental requirements are appropriate to the size of the regulated entity and to the nature of its business and are consistent with any criteria used by the federal environmental protection agency to define due diligence in federal audit policies or regulations.

AB356-ASA1,6,10 (6) Compliance schedules. (a) If the department receives a report under sub. (3) that contains a proposed compliance schedule under sub. (3) (e), 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 regulated entity does not agree to implement a compliance schedule proposed by the department, the department shall schedule a meeting with the regulated entity to attempt to reach an agreement on a compliance schedule. If the department and the regulated entity do not reach an agreement on a compliance schedule, the department may issue a compliance schedule. A compliance schedule under this subsection is subject to review under ch. 227.

AB356-ASA1,6,14 (b) The department may not approve or issue a compliance schedule that extends longer than 12 months beyond the date of approval of the compliance schedule. The department shall consider the following factors in determining whether to approve a compliance schedule:

AB356-ASA1,6,15 1. The environmental and public health consequences of the violations.

AB356-ASA1,6,18 2. 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.

AB356-ASA1,6,20 3. The time needed to purchase any equipment or supplies that are needed to correct the violations.

AB356-ASA1,7,3 (6m) Stipulated penalties. If the department receives proposed stipulated penalties under sub. (3) (em), the department shall review the proposed stipulated penalties. The department may approve the stipulated penalties as submitted or propose different stipulated penalties. If the regulated entity does not agree to stipulated penalties proposed by the department, the department shall schedule a meeting with the regulated entity to attempt to reach an agreement on stipulated penalties. If no agreement is reached, there are no stipulated penalties for violations of the compliance schedule.

AB356-ASA1,7,8 (7) Deferred civil enforcement. (a) 1. This state may not commence a civil action to collect forfeitures for violations of environmental requirements at a facility that are disclosed by a regulated entity that qualifies under sub. (2) for participation in the environmental improvement program in a report that meets the requirements of sub. (3) for at least 90 days after the department receives the report.

AB356-ASA1,7,13 2. If the regulated entity corrects violations that are disclosed by a regulated entity that qualifies under sub. (2) for participation in the environmental improvement program in a report that meets the requirements of sub. (3) within 90 days after the department receives a report that meets the requirements of sub. (3), this state may not commence a civil action to collect forfeitures for the violations.

AB356-ASA1,7,19 3. This state may not commence a civil action to collect forfeitures for violations covered by a compliance schedule that is approved under sub. (6) during the period of the compliance schedule if the regulated entity is not violating the compliance schedule. If the regulated entity violates the compliance schedule, the department may collect the stipulated penalties or, if there are no stipulated penalties, this state may commence civil action to collect forfeitures for the violations.

AB356-ASA1,7,22 4. If the department approves a compliance schedule under sub. (6) and the regulated entity corrects the violations according to the compliance schedule, this state may not commence a civil action to collect forfeitures for the violations.

AB356-ASA1,7,25 (b) Notwithstanding par. (a), this state may at any time commence a civil action to collect forfeitures for violations of environmental requirements if any of the following apply:

AB356-ASA1,8,2 1. The violations present an imminent threat to public health or the environment or may cause serious harm to public health or the environment.

AB356-ASA1,8,4 2. The department discovers the violations before submission of a report under sub. (3).

AB356-ASA1,8,6 3. The violations resulted in a substantial economic benefit that gives the regulated entity a clear advantage over its business competitors.

AB356-ASA1,8,9 4. The violations are identified through monitoring or sampling required by permit, statute, rule, regulation, judicial or administrative order or consent agreement.