Chapter 299

299.83(4m)(e) (e) The department shall assign an employee of the department, who is acceptable to the participant, to serve as the contact with the department for a participant in tier I of the program for communications concerning participation in the program, for any approvals that the participant is required to obtain, and for technical assistance.

299.83(4m)(f) (f) After a participant in tier I of the program implements an environmental management system that complies with sub. (3) (d) 1., the department shall conduct any inspections of the participant’s covered facilities or activities that are required under chs. 29 to 31, 160, or 280 to 299 at the lowest frequency permitted under those chapters, except that the department may conduct an inspection whenever it has reason to believe that a participant is out of compliance with a requirement in an approval or with an environmental requirement.

299.83(5) (5) Eligibility for tier ii.

299.83(5)(a) (a) General. An applicant is eligible for tier II of the program if the applicant satisfies the requirements in pars. (b) to (d), subject to par. (e). 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 II of the program shall identify the facilities or activities that it intends to include in the program.

299.83(5)(b) (b) Enforcement record. To be eligible to participate in tier II of the program, an applicant shall demonstrate all of the following, subject to par. (e):

299.83(5)(b)1. 1. That, within 120 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 percent 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.

299.83(5)(b)2. 2. That, within 60 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 percent 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.

299.83(5)(b)3. 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.

299.83(5)(c) (c) Environmental management system. To be eligible to participate in tier II of the program, an applicant shall do all of the following:

299.83(5)(c)1. 1. Demonstrate that it has implemented an environmental management system, for each covered facility or activity, that is 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.

299.83(5)(c)2. 2. Commit itself to having an outside environmental auditor approved by the department conduct an annual environmental management system audit and to submitting to the department an annual report on the environmental management system audit that is in compliance with sub. (6m) (a).

299.83(5)(c)3. 3. Commit itself to annually conducting, or having another person conduct, an audit of compliance with environmental requirements that are applicable to the covered facilities and activities and to reporting the results of the audit to the department in compliance with sub. (6m) (a).

299.83(5)(d) (d) Superior environmental performance. To be eligible to participate in tier II of the program, an applicant shall demonstrate a record of superior environmental performance and shall describe the measures that it proposes to take to maintain and improve its superior environmental performance.

299.83(5)(e) (e) Waiver of enforcement record requirements. The secretary of natural resources may waive requirements in par. (b) 2. or 3. based on the request of an applicant. The department shall provide public notice of the request and shall provide at least 30 days for public comment on the request. This public comment period may be concurrent with the notice period under sub. (6) (c) to (f). The secretary may not grant a waiver under this paragraph unless he or she finds that the waiver is consistent with sub. (1m) and will not erode public confidence in the integrity of the program.

299.83(6) (6) Process for tier ii.

299.83(6)(a) (a) Letter of intent. To apply for participation in tier II of the program, an entity shall submit a letter of intent to the department. In addition to providing information necessary to show that the applicant satisfies the requirements in sub. (5), the applicant shall do all of the following in the letter of intent:

299.83(6)(a)1. 1. Describe the involvement of interested persons in developing and implementing the proposal for maintaining and improving the applicant’s superior environmental performance, identify the interested persons, and describe the interests that those persons have in the applicant’s participation in the program.

299.83(6)(a)2. 2. Outline the provisions that it proposes to include in the participation contract.

299.83(6)(a)3. 3. Explain how the measures that the applicant proposes to take to maintain and improve its superior environmental performance are proportional to the incentives that it proposes to receive under the participation contract.

299.83(6)(b) (b) Limitation. The department may limit the number of letters of intent that it processes based on the staff resources available.

299.83(6)(c) (c) Notice. If the department decides to process a letter of intent, within 90 days of receiving the letter of intent the department shall provide public notice about the letter of intent in the area in which each covered facility or activity is located or performed.

299.83(6)(d) (d) Public meeting. After providing public notice under par. (c) about a letter of intent, the department may hold a public informational meeting on the letter of intent.

299.83(6)(e) (e) Request to participate. Within 30 days after the public notice under par. (c), interested persons may request the department to grant them authorization to participate in the negotiations under par. (f). A person who makes a request under this paragraph shall describe the person’s interests in the issues raised by the letter of intent. The department shall determine whether a person who makes a request under this paragraph may participate in the negotiations under par. (f) based on whether the person has demonstrated sufficient interest in the issues raised by the letter of intent to warrant that participation.

299.83(6)(f) (f) Negotiations. If the department determines that an applicant satisfies the requirements in sub. (5), the department may begin negotiations concerning a participation contract with the applicant and with any persons to whom the department granted permission under par. (e). The department may begin the negotiations no sooner than 30 days after providing public notice under par. (c) about the applicant’s letter of intent.

299.83(6)(g) (g) Termination of negotiations. The department may terminate negotiations with an applicant concerning a participation contract. Notwithstanding s. 227.42 (1), a decision to terminate negotiations is not subject to review under ch. 227. The department shall conclude negotiations within 12 months of beginning negotiations unless the applicant and the department agree to an extension.

299.83(6)(h) (h) Notice of proposed contract. If negotiations under par. (f) result in a proposed participation contract, the department shall provide public notice about the proposed participation contract in the area in which each covered facility or activity is located or performed.

299.83(6)(i) (i) Meeting on proposed contract. After providing public notice under par. (h) about a proposed participation contract, the department may hold a public informational meeting on the proposed participation contract.

299.83(6)(j) (j) Participation decision. Within 30 days after providing notice under par. (h) or, if the department holds a public informational meeting under par. (i), within 30 days after that meeting, the department shall decide whether to enter into a participation contract with an applicant, unless the applicant and the department agree to an extension beyond 30 days.

299.83(6)(jm) (jm) Participation contract.

299.83(6)(jm)1. 1. In a participation contract, the department shall require that the participant maintain the environmental management system described in sub. (5) (c) 1. and abide by the commitments in sub. (5) (c) 2. and 3. The department shall include in a participation contract a provision that describes how the participant will maintain the involvement of interested parties during the term of the participation contract. The department may not reduce the frequency of required inspections or monitoring as an incentive in a participation contract if the audit under sub. (5) (c) 3. is conducted by a person other than an outside environmental auditor. The department shall ensure that the incentives provided under a participation contract are proportional to the environmental benefits that will be provided by the participant under the participation contract. The department shall include in a participation contract remedies that apply if a party fails to comply with the participation contract.

299.83(6)(jm)2. 2. The term of a participation contract may not be less than 3 years or more than 10 years, with opportunity for renewal for additional terms of the same length as the original term upon agreement of the parties. The term of a participation contract may not exceed 5 years if the participation contract incorporates, modifies, or otherwise affects the terms or conditions of a permit issued under s. 283.31, 283.33, or 285.62, unless federal and state law authorize a longer term for the permit.

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) (L) Alternate process.

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)1. 1. A description of all of the violations.

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) (b) Compliance schedules.

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) (d) Deferred civil enforcement.

299.83(6m)(d)1. 1.

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 percent 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 percent 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) (7e) Charters.

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) (7s) Access to records.

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.