AB228: Bill Text

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.

AB228,7,2 7. An employee training program to develop awareness of and competence to manage environmental issues.

AB228,7,4 8. A plan for taking actions to prevent environmental problems and for taking emergency response and corrective actions when environmental problems occur.

AB228,7,7 9. A communication plan for collaboration with employees, the public, and the department on the design of projects and activities to achieve continuous improvement in environmental performance.

AB228,7,9 10. Procedures for control of documents and for keeping records related to environmental performance.

AB228,7,10 11. Environmental management system audits.

AB228,7,12 12. A plan for continually improving environmental performance and provision for senior management review of the plan.

AB228,7,16 (dr) "Outside environmental auditor" means an auditor who is functionally or administratively independent of the facility or activity being audited, but who may be employed by the entity that owns the facility being audited or that owns the unit that conducts the activity being audited.

AB228,7,21 (e) "Participation contract" means a contract entered into by the department and a participant in tier II of the program, and that may, with the approval of the department, be signed by other interested parties, that specifies the participant's commitment to superior environmental performance and the incentives to be provided to the participant.

AB228,7,22 (f) "Program" means the Environmental Results Program under this section.

AB228,8,2 (g) "Superior environmental performance" means environmental performance that 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 which is achieved under environmental requirements and that may be achieved in ways that include all of the following:

AB228,8,7 1. Limiting the discharges or emissions of pollutants from, or in some other way minimizing the negative effects on air, water, land, natural resources, or human health of, a facility that is owned or operated by an entity or an activity that is performed by the entity to an extent that is greater than is required by applicable environmental requirements.

AB228,8,11 2. Minimizing the negative effects on air, water, land, natural resources, or human health of the raw materials used by an entity or of the products or services produced or provided by the entity to an extent that is greater than is required by applicable environmental requirements.

AB228,8,12 3. Voluntarily engaging in restoring or preserving natural resources.

AB228,8,14 4. Helping other entities to comply with environmental requirements or to accomplish the results described in subd. 1. or 2.

AB228,8,16 5. Organizing uncoordinated entities that produce environmental harm into a program that reduces that harm.

AB228,8,18 6. Reducing waste or the use or production of hazardous substances in the design, production, delivery, use, or reuse of goods or services.

AB228,8,19 7. Conserving energy or nonrenewable natural resources.

AB228,8,21 8. Reducing the use of renewable natural resources through increased efficiency.

AB228,8,23 9. Adopting methods that reduce the depletion of, or long-term damage to, renewable natural resources.

AB228,8,24 (h) "Violation" means a violation of an environmental requirement.

AB228,9,2 (1m) Administration of program. In administering the program, the department shall attempt to do all of the following:

AB228,9,4 (a) Promote, reward, and sustain superior environmental performance by participants.

AB228,9,7 (b) Promote environmental performance that voluntarily exceeds legal requirements related to health, safety, and the environment and that results in continuous improvement in this state's environment, economy, and quality of life.

AB228,9,9 (c) Provide clear incentives for participation that will result in real benefits to participants.

AB228,9,13 (d) Promote attention to unregulated environmental problems and provide opportunities for conservation of resources and environmental restoration by entities that are subject to environmental requirements and entities that are not subject to environmental requirements.

AB228,9,15 (e) Make the program compatible with federal programs that create incentives for achieving environmental performance that exceeds legal requirements.

AB228,9,18 (f) Increase levels of trust, communication, and accountability among regulatory agencies, entities that are subject to environmental requirements, and the public.

AB228,9,22 (g) Reduce the time and money spent by regulatory agencies and entities that are subject to environmental requirements on tasks that do not benefit the environment by focusing on more efficient performance of necessary tasks and eliminating unnecessary tasks.

AB228,9,25 (h) Report information concerning environmental performance and data concerning ambient environmental quality to the public in a manner that is accurate, timely, credible, relevant, and useable to interested persons.

AB228,10,2 (i) Provide for the measurement of environmental performance in terms of accomplishing goals and require the reporting of the results.

AB228,10,5 (j) Implement an evaluation system that provides flexibility and affords some protection for experimentation by participants that use innovative techniques to try to achieve superior environmental performance.

AB228,10,6 (k) Remove disincentives to achieving superior environmental performance.

AB228,10,8 (L) Provide for sustained business success as well as a reduction in environmental pollution.

AB228,10,10 (m) Promote the transfer of technological and practical innovations that improve environmental performance in an efficient, effective, or safe manner.

AB228,10,12 (n) Lower the administrative costs associated with environmental requirements and with achieving superior environmental performance.

AB228,10,17 (3) Eligibility for tier i. (a) General. An applicant is eligible for tier I of the program if the applicant satisfies the requirements in pars. (b) to (d). If an applicant consists of a group of entities, each requirement in pars. (b) to (d) applies to each entity in the group. An applicant for tier I of the program shall identify the facilities or activities that it intends to include in the program.

AB228,10,19 (b) Enforcement record. To be eligible to participate in tier I of the program, an applicant shall demonstrate all of the following:

AB228,10,25 1. That, within 60 months before the date of application, no judgment of conviction was entered against the applicant, any managing operator of the applicant, or any person with a 25% or more ownership interest in the applicant for a criminal 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.

AB228,11,5 2. That, within 36 months before the date of application, no civil judgment was entered against the applicant, any managing operator of the applicant, or any person with a 25% or more ownership interest in the applicant for a violation involving a covered facility or activity that resulted in substantial harm to public health or the environment.

AB228,11,10 3. That, within 24 months before the date of application, the department of justice has not filed a suit to enforce an environmental requirement, and the department of natural resources has not issued a citation to enforce an environmental requirement, because of a violation involving a covered facility or activity.

AB228,11,12 (c) Environmental performance. To be eligible to participate in tier I of the program, an applicant shall submit an application that describes all of the following:

AB228,11,14 1. The applicant's past environmental performance with respect to each covered facility or activity.

AB228,11,16 2. The applicant's current environmental performance with respect to each covered facility or activity.

AB228,11,19 3. The applicant's plans for activities that enhance the environment, such as improving the applicant's environmental performance with respect to each covered facility or activity.

AB228,11,21 (d) Environmental management system. To be eligible to participate in tier I of the program, an applicant shall do all of the following:

AB228,11,24 1. Demonstrate that it has implemented, or commit itself to implementing within one year of application, an environmental management system, for each covered facility or activity, that is all of the following:

AB228,12,3 a. 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.

AB228,12,6 b. Determined by the department to be appropriate to the nature, scale, and environmental impacts of the applicant's operations related to each covered facility or activity.

AB228,12,8 2. Include, in the environmental management system under subd. 1., objectives in at least 2 of the following areas: