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New Programs Provide Businesses Additional Resources to Improve Environmental Performance and Avoid Civil Penalties

Environmental Update
May 2004

Wisconsin has introduced two new environmental programs that may protect and benefit those companies subject to environmental regulation.

Environmental Results Program

The Environmental Results Program provides certain incentives to regulated entities for improving their environmental performance beyond compliance with existing requirements. There are two “tiers” of participation.

Tier I
Incentives. Under Tier I, the DNR is required to provide public recognition to eligible participants and to allow the use of an Environmental Results Program logo on any of the participants’ written materials. The DNR is also required to assign one of its staff to serve as a single point of contact for all matters involving the participant and the DNR. Finally, the DNR must agree to conduct inspections of the participant’s facility at the lowest frequency allowed under DNR’s regulatory programs.

Eligibility. To be eligible for Tier I, an applicant must describe its past and current environmental performance as well as its plans to enhance the environment and improve environmental performance. The applicant must also commit to implementing an Environmental Management System (EMS) modeled after the ISO 14001 standards. The EMS must include defined objectives for improving environmental performance and must be audited on an annual basis. The results of the annual EMS audits must be submitted to the DNR. Finally, the applicant must have a “clean” environmental record. That is, the applicant must not have been convicted of a criminal violation, had a civil judgment entered against it, or been issued a citation for any violation of an environmental law within specified timeframes of its application. However, upon public notice and comment, the DNR may waive the eligibility requirements for civil judgments and department citations.

Tier II
Incentives. Under Tier II, eligible participants may enter into a “participation contract” with the DNR that specifies the incentives to be provided to the participant under the program. These incentives are not defined in the bill, but rather are to be tailored to the specific needs and concerns of the participant. However, one of the main incentives under Tier II is likely to be added flexibility under certain regulatory requirements (e.g., streamlined permitting and decision making, broader regulatory exemptions, more efficient monitoring, recordkeeping and reporting, etc.). The bill also provides that “interested parties” may participate in the negotiation of the participation contract.

Eligibility. To be eligible for Tier II, an applicant must demonstrate that it has implemented an ISO equivalent EMS. The applicant must also commit to having a DNR-approved outside environmental auditor (i.e., someone who is functionally or administratively independent of the facility being audited) conduct an annual EMS audit. The applicant also must conduct annual compliance audits and must submit the result of both the EMS audit and the compliance audit to the DNR. The applicant must also demonstrate a record of “superior environmental performance” and must describe the measures it will take to maintain and improve its performance. Finally, as with the Tier I program, the applicant must not have been convicted of a criminal violation, had a civil judgment entered against it, or been issued a citation for any violation of an environmental law within specified timeframes of its application.

Deferred Civil Enforcement
If a participant discovers a violation of an environmental requirement as a result of an EMS or compliance audit under either Tier I or Tier II and timely notifies the state and corrects the violation, the state is generally precluded from bringing an action to collect penalties for the violation.

Environmental Improvement Program

The Environmental Improvement Program (EIP), also referred to as “Wisconsin’s Audit Policy,” provides protection against certain enforcement actions for violations of environmental laws if the violation is discovered and reported to the DNR as a result of a voluntary environmental audit. Participating entities are afforded the opportunity to avoid civil monetary penalties for violations of environmental laws provided the entity satisfies a number of threshold requirements. Basic elements of the
EIP include:
 

  • Performance of an environmental compliance audit evaluating the facility’s compliance with one or more environmental laws;
  • Submission of a report to the DNR setting forth in detail the results of the audit; and
  • Correction of all violations and/or non-compliance identified as a result of the audit.


A number of requirements are associated with each of these elements.

Deferred Civil Enforcement
Provided the participant complies with the requirements of the EIP and corrects the violation(s) within 90 days or within the period specified in a compliance schedule, the maximum penalty for each violation is $500. If the participant fails to correct the violation(s) in accordance with the time period set forth in the compliance schedule or otherwise fails to comply with the compliance schedule, the State may collect stipulated penalties (if applicable) or the full statutory penalty. The State also reserves the right to seek the full statutory penalty if any of the following apply:

 

 

  • The violation presents an imminent threat, or may cause serious harm, to public health or the environment.
  • The department discovers the violation before the submission of the report.
  • The violation results in substantial economic benefit that gives the participant a clear advantage over its competitors.
  • The violation is identified through monitoring or sampling required by permit, statute regulation, etc.
  • It is a “repeat” violation.


The EIP does not afford the participant with any protection against criminal penalties, although the legislation does direct the DNR and the Department of Justice to take into account the diligent actions of the participant in attempting to correct the violation(s) in determining whether to pursue a criminal enforcement action.

For further information regarding either the Environmental Results Program or the Environmental Improvement Program, please contact any member of Godfrey & Kahn’s Environmental Team.

 

 

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