voluntary environmental
performance
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Committee on Environment |
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Caucus and COW |
This bill as engrossed contains a conditional enactment based on an Appropriation clause. |
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As Passed the House |
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The bill establishes a mechanism (through 12/31/04) in DEQ to provide an organization (public or private company, corporation, political subdivision or institution) an opportunity to voluntarily enter into an agreement with the agency through which it may receive certain benefits. The benefits are conditioned on the organization complying with certain program elements established by the agency that are designed to reduce adverse environmental impacts. There are also elements to encourage activities related to pollution prevention and reduction. The new program is conditioned on a $250,000 appropriation to DEQ by the 44th legislature.
General
DEQ shall consult with a variety of interested groups in the development and implementation of the program and the agency shall adopt rules to implement the program. The licensing timeframes provisions of the Administrative Procedures Act are not applicable to the program. Participation by an organization shall be reviewed annually by DEQ. Nothing is an appealable agency action or contested case as defined in the Administrative Procedures Act. A party to a cooperative agreement who is adversely affected by a decision of the director under a termination or the incentive program may seek judicial review in superior court and in order to prevail, must demonstrate the director’s decision was arbitrary, capricious or an abuse of discretion.
Mandatory
elements
1. An environmental management system which is a program to prevent and detect violations of law (includes policies, procedures, training and annual compliance evaluations).
2. The existence and maintenance of measures that document compliance with environmental statues and rules.
3. Additional elements as established by the director.
Elective
elements (based on size of organization
and incentives requested)
1. Technology transfer and technology assistance.
2. Active participation in environmental improvement programs
3. Promotion and participation in community environmental advisory programs.
4. Management programs and incentives for environmental activities.
5. Programs to reduce adverse environmental impacts of the organization’s products or services.
6. Evaluation and revision of environmental management systems.
Cooperative
agreements
Each written agreement between the agency and the organization shall describe the incentive being offered and the required performance. The agency’s decision to enter into an agreement is final and is not subject to administrative or judicial review. There is a minimum 30 day public review and comment period prior to the agreement. The following documents are available for public review: the application, the mandatory program elements, evaluation measures, proposed cooperative agreements and penalty waiver requests.
The incentives are contained in the agreement and are awarded only if the organization has sufficiently complied with the agreement.
Incentives
The following incentives may be offered:
1. Formal public recognition including state preferred vendor status.
2. Greater reliance on self monitoring and reporting to demonstrate compliance. (DEQ shall not reduce the number of inspections required by law.)
3. Accelerated permit review and processing.
4. Consolidated permit applications with one agency person responsible for all permitting communications.
5. Consolidation and simplification of reporting and monitoring requirements.
6. Extension of permit terms up to the maximum authorized by law.
7. Total or partial waiver of civil penalties. All penalty waivers shall be in writing in the form of a mutual agreement, administrative consent order or a judicial consent judgement.
Civil penalty waivers are precluded for:
1. Failure to disclose noncompliance within 72 hours; corrections or remediations have not been done in a timely manner.
2. The non compliance was or could have been discovered and was not disclosed before: (1) a governmental inspection or investigation that would have discovered the non compliance; (2) the issuance of an information request by a government entity related to the non compliance; (3) the report of a whistle blower; (4) the discovery by a governmental entity; (5) issuance of an administrative order or the filing of a judicial complaint related to the non compliance.
3. Serious actual harm to human health or the environment or imminent and substantial hazard to human health or the environment.
4. The non compliance violates any terms of any judicial or administrative order or consent agreement
5. The noncompliance results in a significant cost saving to the organization.
6. The organization fails to provide information, access or assistance in investigating non compliance problems.
Public records
The following is not a public record: disclosures made for the purpose of receiving a civil penalty waiver and the waiver is not granted by DEQ or unless the information is otherwise protected pursuant to title 49.
Withdrawal
and termination
Written notice to the agency is required for withdrawal.
DEQ shall terminate participation (and all incentives are withdrawn) if:
1. The organization has made material misrepresentations of omissions.
2. The organization or senior management has been convicted of any felony relating to environmental laws
3. The organization has repeatedly failed to comply with environmental laws unless the noncompliance is corrected or remediated in a timely manner to the satisfaction of DEQ and the organization has agreed in writing to implement procedures approved by the agency.
4. The organization has failed to perform or accomplish any of the requirements of the agreement.
5. The organization has failed to cooperate.
Pollution
prevention
DEQ shall establish and administer a fund to provide low cost loans for pollution prevention and reduction programs. The fund shall consist of legislative appropriations, and grants and donations. Monies are continuously appropriated except for administrative costs. DEQ may enter into agreements with other public entities to implement this program.