SB61: Bill Text

SB61,21,6 (c) Stipulated penalties. If the department receives a report under par. (a) that contains proposed stipulated penalties under par. (a) 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.

SB61,21,10 (d) Deferred civil enforcement. 1. a. If a participant in the program corrects violations that are disclosed in a report that meets the requirements of par. (a) within 90 days after the department receives the report, this state may not bring a civil action to collect forfeitures for the violations.

SB61,21,20 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.

SB61,21,23 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.

SB61,21,25 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 apply:

SB61,22,2 a. The violation presents an imminent threat to public health or the environment or may cause serious harm to public health or the environment.

SB61,22,4 b. The department discovers the violation before submission of a report that meets the requirement of par. (a).

SB61,22,7 (7) Suspension or termination of participation. (a) The department may suspend or terminate the participation of a participant in the program at the request of the participant.

SB61,22,13 (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.

SB61,22,20 (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.

SB61,22,25 (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.

SB61,23,3 (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.

SB61,23,6 (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).

SB61,23,13 (7e) Charters. (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 and to achieve 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 to achieve superior environmental performance.

SB61,23,18 (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.

SB61,23,25 (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.

SB61,24,2 (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.

SB61,24,7 (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.

SB61,24,13 (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 certified by the Registrar Accreditation Board of the American National Standards Institute or meets criteria concerning education, training, experience, and performance that are equal to the criteria in International Organization for Standardization standard 14012.

SB61,24,16 (7s) Access to records. (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.

SB61,24,22 (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.

SB61,25,2 (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.

SB61,25,8 (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.

SB61,25,11 (8) Powers and duties of the department. (a) To facilitate the process under sub. (6), the department shall develop model terms that may be used in participation contracts.

SB61,25,15 (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.

SB61,25,19 (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.

SB61,25,23 (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.

SB61,25,24 (e) The department shall select a logo for the program.

SB61,26,5 (f) The department and the department of commerce 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 commerce about the administration of the program.

SB61,26,13 (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.

SB61,26,17 (h) The department shall submit a progress report on the program to the legislature, in the manner provided in s. 13.172 (2), no later than the first day of the 36th month beginning after the effective date of this paragraph .... [revisor inserts date], and every 2 years after it submits the first report.

SB61,26,19 (i) The department shall implement a process to obtain advice from a balanced public group about all of the following:

SB61,26,21 1. The implementation and operation of the program, including the setting of goals and priorities for the program.

SB61,26,24 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.

SB61,27,3 3. Assessing whether incentives provided under a participation contract are proportional to the environmental benefits committed to under a participation contract.

SB61,27,4 4. Procedures for evaluating the program and the results of the program.

SB61,27,5 5. Changes that should be made in the program.

SB61,27,8 (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.

SB61,27,10 (11) Sunset. The department may not process or approve any application for participation in the program that it receives after July 1, 2009.

SB61, s. 2 Section 2. 299.85 of the statutes is created to read:

SB61,27,13 299.85 Environmental Improvement Program. (1) Definitions. In this section:

SB61,27,17 (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.

SB61,27,19 (am) "Environmental performance" means the effects of a facility on air, water, land, natural resources, and human health.

SB61,27,20 (c) "Environmental requirement" means a requirement in any of the following:

SB61,27,23 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.

SB61,28,3 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.

SB61,28,5 (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.

SB61,28,7 (e) "Local governmental unit" means a city, village, town, county, town sanitary district, or metropolitan sewerage district.

SB61,28,9 (f) "Regulated entity" means a public or private entity that is subject to environmental requirements.

SB61,28,10 (g) "Violation" means a violation of an environmental requirement.

SB61,28,13 (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:

SB61,28,15 (a) The regulated entity conducts an environmental compliance audit of the facility.

SB61,28,20 (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.

SB61,28,21 (c) The environmental compliance audit complies with sub. (4).

SB61,28,22 (e) The regulated entity submits a report as required under sub. (3).

SB61,29,2 (f) At the time of submitting a report under sub. (3), the department of justice has not, within 2 years, filed a suit to enforce an environmental requirement, and the department or a local governmental unit has not, within 2 years, issued a citation to enforce an environmental requirement, because of a violation involving the facility.

SB61,29,9 (3) Audit report. To participate in the Environmental Improvement Program with respect to a facility, the 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 the environmental compliance audit of the facility. The regulated entity shall complete the environmental compliance audit, including the final written report of findings, within 365 days after providing the notice under sub. (2) (b). The report submitted to the department shall include all of the following:

SB61,29,14 (a) A description of the environmental compliance audit, including who conducted the environmental compliance audit, when it was completed, what activities and operations were examined, what was revealed by the environmental compliance audit, and any other information needed by the department to make the report under sub. (9m).

SB61,29,16 (b) A description of all violations revealed by the environmental compliance audit and of the length of time that the violations may have continued.

SB61,29,18 (c) A description of actions taken or proposed to be taken to correct the violations.

SB61,29,20 (d) A commitment to correct the violations within 90 days of submitting the report or according to a compliance schedule approved by the department.

SB61,30,2 (e) If the regulated entity proposes to take more than 90 days to correct the violations, a proposed compliance schedule that contains the shortest reasonable periods for correcting the violations, 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 during the period of the compliance schedule.

SB61,30,5 (em) If the regulated entity proposes to take more than 90 days to correct the violations, the proposed stipulated penalties to be imposed if the regulated entity fails to comply with the compliance schedule under par. (e).

SB61,30,8 (f) A description of the measures that the regulated entity has taken or will take to prevent future violations and a timetable for taking the measures that it has not yet taken.

SB61,30,13 (3m) Public notice; comment period. (a) The department shall provide at least 30 days for public comment on a compliance schedule and stipulated penalties proposed in a report under sub. (3). The department may not approve or issue a compliance schedule under sub. (6) or approve stipulated penalties under sub. (6m) until after the end of the comment period.

SB61,30,16 (b) Before the start of the public comment period under par. (a), the department shall provide public notice of the proposed compliance schedule and stipulated penalties that does all of the following:

SB61,30,22 1. Identifies the regulated entity that submitted the report under sub. (3) and the facility at which the violation occurred, describes the environmental requirement that was violated, and indicates whether the violation related to reporting or another administrative requirement and whether the violation related to air, water, solid waste, hazardous waste, or another, specified, aspect of environmental regulation.

SB61,30,24 2. Describes the proposed compliance schedule and the proposed stipulated penalties.

SB61,31,3 3. Identifies an employee of the department and an employee of the regulated entity who may be contacted for additional information about the proposed compliance schedule and the proposed stipulated penalties.

SB61,31,6 4. States that comments concerning the proposed compliance schedule and the proposed stipulated penalties may be submitted to the department during the comment period and states the last date of the comment period.

SB61,31,13 (4) Environmental compliance audit. A regulated entity does not qualify for participation in the Environmental Improvement Program unless the final written report of findings of the environmental compliance audit is labeled "environmental compliance audit report," is dated, and, if the environmental compliance audit identifies violations, 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 compliance audit.

SB61,31,23 (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.

SB61,32,2 (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:

SB61,32,3 1. The environmental and public health consequences of the violations.

SB61,32,6 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.

SB61,32,8 3. The time needed to purchase any equipment or supplies that are needed to correct the violations.

SB61,32,16 (6m) Stipulated penalties. (a) If the department receives a report under sub. (3) that contains 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 failure to comply with the compliance schedule.

SB61,32,19 (b) Stipulated penalties approved under par. (a) shall specify a period, not longer than 6 months beyond the end of the compliance schedule, during which the stipulated penalties will apply.

SB61,32,24 (7) Deferred civil enforcement. (a) 1. For at least 90 days after the department receives a report that meets the requirements in sub. (3), this state may not begin a civil action to collect forfeitures for violations that are disclosed in the report by a regulated entity that qualifies under sub. (2) for participation in the Environmental Improvement Program.

SB61,33,5 2. If a regulated entity that qualifies under sub. (2) for participation in the Environmental Improvement Program corrects violations that it discloses in a report that meets the requirements of sub. (3) within 90 days after the department receives the report that meets the requirements of sub. (3), this state may not bring a civil action to collect forfeitures for the violations.

SB61,33,15 3. This state may not begin 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 in compliance with the compliance schedule. If the regulated entity fails to comply with the compliance schedule, the department may collect any stipulated penalties during the period in which the stipulated penalties apply. This state may begin a civil action to collect forfeitures for violations that are not corrected by the end of the period in which the stipulated penalties apply. If the regulated entity fails to comply with the compliance schedule and there are no stipulated penalties, this state may begin a civil action to collect forfeitures for the violations.

SB61,33,18 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 bring a civil action to collect forfeitures for the violations.

SB61,33,20 (b) Notwithstanding par. (a), this state may at any time begin a civil action to collect a forfeiture for a violation if any of the following apply:

SB61,33,22 1. The violation presents an imminent threat to public health or the environment or may cause serious harm to public health or the environment.

SB61,33,24 2. The department discovers the violation before submission of a report under sub. (3).

SB61,34,2 3. The violation results in a substantial economic benefit that gives the regulated entity a clear advantage over its business competitors.

SB61,34,5 4. The violation is identified through monitoring or sampling required by permit, statute, rule, regulation, judicial or administrative order, or consent agreement.

SB61,34,9 5. The violation is a violation of the same environmental requirement at the same facility and committed in the same manner as a violation previously reported by the regulated entity under sub. (3), unless the violation is caused by a change in business processes or activities.

SB61,34,19 (8) Consideration of actions by regulated entity. If the department receives a report that complies with sub. (3) from a regulated entity that qualifies under sub. (2) for participation in the Environmental Improvement Program, and the report discloses a potential criminal violation, the department and the department of justice shall take into account the diligent actions of, and reasonable care taken by, the regulated entity to comply with environmental requirements in deciding whether to pursue a criminal enforcement action and what penalty should be sought. In determining whether a regulated entity acted with due diligence and reasonable care, the department and the department of justice shall consider whether the regulated entity has demonstrated any of the following: