AB228: Bill Text

LRB-1900/2

RCT:cjs:jf

2003 - 2004 LEGISLATURE

2003 Assembly BILL 228

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 An Act to create 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

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 Section 1. 299.83 of the statutes is created to read:

AB228,5,2 299.83 Environmental Results Program. (1) Definitions. In this section:

AB228,5,4 (a) "Covered facility or activity" means a facility or activity that is included, or intended to be included, in the program.

AB228,5,8 (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.

AB228,6,2 (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 are communicated to employees of the entity whose environmental management system is reviewed.

AB228,6,5 (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.

AB228,6,8 (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.

AB228,6,12 (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:

AB228,6,15 1. Adoption of an environmental policy that includes a commitment to compliance with environmental requirements, pollution prevention, and continual improvement in environmental performance.

AB228,6,17 2. An analysis of the environmental aspects and impacts of an entity's activities.

AB228,6,19 3. Plans and procedures to achieve compliance with environmental requirements and to maintain that compliance.

AB228,6,20 4. Identification of all environmental requirements applicable to the entity.

AB228,6,22 5. A process for setting environmental objectives and developing appropriate action plans to meet the objectives.

AB228,6,24 6. Establishment of a structure for operational control and responsibility for environmental performance.