ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4027
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Passed March 11, 2004; in effect ninety days from passage.]
AN ACT to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-25-1, §22-25-2,
§22-25-3, §22-25-4, §22-25-5, §22-25-6, §22-25-7, §22-25-8,
§22-25-9, §22-25-10, §22-25-11, §22-25-12 and §22-25-13, all
relating to establishing a voluntary environmental excellence
program; creating certain incentives for businesses that
exceed the requirements of certain state and federal
environmental laws and regulations and increase the quantity
and quality of public participation; establishing legislative
findings and purpose; defining certain terms; directing the
secretary of the department of environmental protection to
develop and implement the environmental excellence program;
authorizing the secretary of the department of environmental
protection to propose certain legislative rules regarding the
environmental excellence program; establishing eligibility and
application requirements for participation; authorizing the
department of environmental protection to enter into environmental performance agreements with qualified entities
and timely review applications; providing for certain program
elements; providing for appeal of certain adverse application
decisions; providing for the withdrawal, enforcement and
termination of participation under certain circumstances;
providing for certain incentives to be established for
participating in the program; providing certain guidelines for
the content of environmental performance agreements;
establishing the environmental excellence administrative fund;
allowing for gifts and donations to be received by the fund;
providing for public participation in the environmental
excellence program; providing for a performance review of the
program; and providing for expiration of the program in two
thousand nine.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-25-1, §22-25-2,
§22-25-3, §22-25-4, §22-25-5, §22-25-6, §22-25-7, §22-25-8,
§22-25-9, §22-25-10, §22-25-11, §22-25-12 and §22-25-13, all to
read as follows:
ARTICLE 25. ENVIRONMENTAL EXCELLENCE PROGRAM.
§22-25-1. Legislative findings.
The Legislature finds that:
(1) Regulated and nonregulated entities that demonstrate a
commitment to the environment by going beyond compliance with
environmental laws and rules positively impact the quality of life for all citizens of the state by improving the economy and the
environment by increasing consumer and public confidence, boosting
management and employee morale, and operating in a safe and
sensible manner that lessens impacts on the environment.
(2) While West Virginia's existing environmental laws play an
important role in protecting the environment, environmental
protection could be further enhanced by authorizing innovative
advances in environmental regulatory methods and approaches.
(3) Enhanced public involvement allows the public and
community to meaningfully participate in finding solutions for
environmental issues in their community while maintaining the
vitality of the local and state economy and strengthening ties
between businesses, nonbusiness entities and community.
(4) Increased use of pollution prevention strategies, more
cost-effective options for compliance with environmental standards,
improvement of environmental performance, and reduction in
occurrences of noncompliance with environmental standards can be
achieved through the establishment and implementation of a
voluntary environmental excellence program pursuant to this
article. This voluntary program will provide entities with the
opportunity to enter into an agreement with the department of
environmental protection through which the department shall grant
recognition and other benefits to participating entities that
comply with a prescribed number of program elements established by
the secretary of the department of environmental protection
designed to reduce environmental impacts beyond those achieved by compliance with environmental laws and permits alone.
§22-25-2. Purpose.
The purpose of this article is to authorize the department of
environmental protection to establish and administer an
environmental excellence program to promote, reward, and encourage
superior environmental performance in this state. The
environmental excellence program will establish a system to
encourage voluntary environmental performance that will exceed
existing regulatory standards for health and the environment and
result in continual improvement in the state's environment,
economy, and quality of life. The program should, if practical, be
compatible with other federal programs which create incentives for
achieving environmental performance beyond the regulatory
requirements, such as the United States environmental protection
agency's national performance track program. The environmental
excellence program will be established and implemented to
accomplish the following:
(1) Encourage facility owners and operators to assess the
environmental impact of their operations;
(2) Encourage innovation by and measure success through
facility owners and operators setting measurable and verifiable
goals;
(3) Increase public participation and encourage stakeholder
consensus in the development of innovative environmental regulatory
approaches and methods and in monitoring the environmental
performance of projects under this article;
(4) Focus resources toward achieving positive environmental
goals that are important to the community and the state;
(5) Report environmental performance information and ambient
environmental data to the public in a manner that is accurate,
timely, credible, relevant and usable to interested parties;
(6) Provide for the measurement of environmental performance
in terms of accomplishing goals and objectives, and require the
reporting of those results;
(7) Provide facility owners and operators with flexibility to
implement the most effective pollution prevention, source
reduction, or other pollution reduction strategies for their
particular facilities, while complying with verifiable and
enforceable pollution limits;
(8) Encourage superior environmental performance and
continuous improvement toward sustainable levels of resource usage
and minimization of pollution discharges, emissions and releases;
(9) Promote the transfer of technological and practical
environmental innovations that improve environmental performance in
a more efficient, effective, and safe manner; and
(10) Strive to lower transaction costs associated with
environmental performance.
§22-25-3. Definitions.
As used in this article, unless the context otherwise
requires:
(a) "Cross-media transfer" means a pollutant transfer from one
environmental media to another, such as air to water.
(b) "Department" means the department of environmental
protection.
(c) "Environmental goals" means the environmental performance
objectives proposed by a qualified applicant that demonstrates
superior environmental performance and which may support variances
from environmental laws.
(d) "Environmental laws" means the following articles of
chapter twenty-two of the code of West Virginia, two thousand two,
as amended: Four, five, eleven, twelve, fifteen, sixteen, seventeen
and eighteen and legislative rules adopted under one of those
articles, or a policy, rule, permit, license, other approval or
order issued by the department under one of those articles.
"Environmental laws" do not include any provision of the code of
West Virginia or of any municipal ordinance or enactment that
regulates the selection of a location for a new facility.
(e) "Environmental management system" means a formal set of
voluntary procedures and policies used to evaluate environmental
performance and to achieve measurable or noticeable improvements in
that environmental performance through planning and changes in
operations, based on a commitment to superior environmental
performance. An environmental management system is the part of the
overall management system that includes organizational structure,
planning activities, responsibilities, practices, procedures,
processes and resources for developing, implementing, achieving,
reviewing and maintaining an environmental policy. An environmental
management system includes the following elements:
(1) Adoption of an environmental policy that includes a
commitment to maintain or exceed compliance with environmental and
other requirements, pollution prevention, and continual
improvement;
(2) An analysis of the environmental aspects and impacts of
the organization's activities;
(3) Significance ranking of environmental aspects and
procedures;
(4) Plans and procedures to achieve, maintain and exceed
requirements set forth by environmental laws;
(5) Identification of all legal requirements applicable to the
organization's environmental performance;
(6) Setting environmental objectives and developing
appropriate environmental management programs to meet the
objectives;
(7) Establishment of a structure for operational control and
responsibility for environmental performance;
(8) An employee training program to develop awareness of and
competence to manage environmental issues;
(9) A plan for taking preventive, corrective and emergency
action to address environmental problems;
(10) A communication plan to collaborate with employees, the
public and department on the design of the projects and activities
to achieve superior environmental performance;
(11) Document control and record keeping of environmental
performance;
(12) Third party audits of the environmental management
system;
(13) Third party audits of environmental compliance;
(14) Senior management review;
(15) Monitoring and measurement of environmental performance;
and
(16) Other criteria as established by the secretary.
(f) "Environmental management system audit" means a systematic
and documented third party verification process of evaluating
whether an organization's environmental management system conforms
to the criteria set forth by the department.
(g) "Environmental performance agreement" means an agreement
entered into between the department and a participant of the
program that specifies the participant's commitment to superior
environmental performance, enhanced public involvement, and the
incentives to be provided to the participant.
(h) "Environmental performance baseline" means the actual
emissions, discharges, and impact to the environment by a facility
at the time the application to participate in the environmental
excellence program is filed with the department.
(i) "Hazardous substance" or "toxic substance" means those
chemicals defined as hazardous substances under section 313 of the
federal Superfund Amendments and Reauthorization Act of 1986 (SARA
Title III), including any subsequent amendments, and sections
101(14) and 102 of the federal Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), as amended.
(j) "Participant" means a qualified applicant that has been
admitted into the environmental excellence program through the
execution of an environmental performance agreement with the
department. Participant is limited to the site or facility where
the environmental goals will be achieved and does not include the
entire company where the company operates multiple sites or
facilities.
(k) "Pollution prevention" means any practice that reduces the
use of any hazardous substance or amount of a pollutant or
contaminant prior to reuse, recycling, treatment, or disposal, and
reduces the hazards to public health and the environment associated
with the use and release of hazardous substances, pollutants or
contaminants. Pollution prevention does not include cross-media
pollution transfers that do not result in a net decrease of
discharge, emission or impact to the environment.
(l) "Program" means the environmental excellence program
created pursuant to this article.
(m) "Qualified applicant" means any regulated or nonregulated
facility of a government entity, corporation, partnership, sole
proprietorship, municipality, county, city and county, or special
district located and doing business in this state that meets the
requirements for participation in the program set forth by this
article.
(n)"Regulated entity" means an entity that requires a permit
issued under one of the environmental laws to legally operate in
this state or is otherwise subject to enforcement of environmental laws.
(o) "Nonregulated entity" means an entity that does not
require a permit issued pursuant to environmental laws to legally
operate in this state.
(p) "Secretary" means the secretary of the department of
environmental protection.
(q) "Significant impact to the environment" means a release of
a substance into the environment which has caused or may cause an
adverse affect to natural resources, organisms, flora, fauna or the
ecosystem.
(r) "Significant impact to human health" means a release of a
substance into the environment which has caused or may cause an
acute or chronic affect to human health.
(s) "Source reduction" means any practice which reduces the
amount of any pollutant, contaminant, or hazardous substance
entering any waste stream or otherwise being released into the
environment, including fugitive emissions, prior to recycling,
treatment, or disposal and reduces the hazards to public health and
the environment associated with the release of these pollutants,
contaminants, or hazardous substances. "Source reduction" includes
equipment or technology modifications, process or procedure
modifications, reformulation or redesign of products, substitution
of raw materials, and improvements in housekeeping, maintenance,
training or inventory control. "Source reduction" does not include
any practice which alters the physical, chemical, or biological
characteristics or the volume of a hazardous substance, pollutant or contaminant through a process or activity which itself is not
integral to and necessary for the production of a product or the
providing of a service.
(t) "Superior environmental performance" means environmental
performance that results in measurable or discernable improvement
in the quality of the air, water, land or natural resources or in
the protection of the ecosystem beyond that which is actually being
achieved by the qualified applicant under compliance with current
environmental laws. "Superior environmental performance" does not
include pollutant reductions resulting from cross-media pollutant
transfers unless it can be demonstrated that such transfer results
in an overall improvement to the quality of the air, water, land
and natural resources. "Superior environmental performance" may
include, but is not limited to, any of the following:
(1) An entity limits the discharges or emissions of pollutants
from, or in some other way minimizes the negative effects on air,
water, land, natural resources, or human health of, a facility that
is owned or operated by the entity or an activity that is performed
by the entity to an extent that is greater than is required by
applicable environmental laws.
(2) An entity minimizes the negative impact on air, water,
land, natural resources, or human health of the raw materials used
by the entity or the products or services produced or provided by
the entity to an extent that is greater than is required by
applicable environmental laws.
(3) An entity voluntary engages in restoring, reclaiming, enhancing, or preserving natural resources.
(4) An entity organizes segmented or uncoordinated entities
that are producing environmental harm into a program that achieves
positive environmental results.
(5) An entity reduces waste, hazardous substances, or toxic
substances in the design, production, delivery, use or reuse of
goods and services.
(6) An entity reduces or conserves energy, nonrenewable or
renewable natural resources through more efficient and sustainable
methods.
(u) "Toxic use reduction" means changes in production
processes, products, or raw materials that reduce, avoid or
eliminate the use of toxic or hazardous substances and the
generation of hazardous byproducts per unit of production, so as to
reduce the overall risks to the health of workers, consumers or the
environment without creating new risks of concern.
§22-25-4. Powers and duties of the department.
(a) Within one year after the effective date of this section,
the secretary, after consultation with representatives from the
regulated community, local governments, environmental advocacy
groups and other interested citizens, shall develop and implement
a voluntary environmental excellence program in accordance with
this article. The secretary shall propose legislative rules for
promulgation in accordance with article three, chapter twenty-
nine-a of this code necessary to establish and implement all
necessary program elements for the environmental excellence program as established in this article. Such program elements shall
include, but are not limited to, the following criteria:
(1)
Participation and entry into the program;
(2) Public involvement;
(3)
Environmental management system;
(4)
Commitment to superior environmental performance;
(5) Communication of program results to the public; and
(6) Incentives.
(b) In establishing the environmental excellence business
program, the secretary may establish classes, categories, or tiers
of environmental performance agreements as the secretary considers
appropriate, taking into consideration the diversity of businesses
and industries in the state, the impact these entities may have on
the environment, and the incentives sought by the qualified
applicant.
(c) The secretary may negotiate with federal regulatory
agencies to obtain authority to grant incentives under federal
regulatory programs.
(d) Participation in the program by any participant is
voluntary and is subject to review every three years.
§22-25-5. Eligibility and application requirements.
(a) The secretary shall establish by rule the minimum criteria
for participation in the environmental excellence program. The
minimum criteria shall include, but not be limited to, the
following:
(1) An identified number of years with no serious civil noncompliance;
(2) An identified number of years without any criminal
noncompliance;
(3) An identified number of years with no activities that
resulted in a significant negative impact to human health or the
environment;
(4) The existence and maintenance of an environmental
management system;
(5) The existence and maintenance of an environmental
management system audit program;
(6) The establishment of quantifiable environmental goals
which are designed to achieve superior environmental performance;
(7) The existence and maintenance of verifiable, quantitative
and qualitative measures or methods to document attainment of
environmental goals; and
(8) The existence or establishment of a public participation
plan as approved by the secretary that demonstrates that the
proposal has broad support, its environmental implications are
fully understood by all interested parties, and assures ongoing
engagement of the public.
(b) The secretary shall establish alternative elective program
elements in addition to the mandatory program elements set forth in
subsection (a) of this section. Qualified applicants shall select
from among the alternative elective program elements and complete
those selected within a specified time period. The number of
elective program elements shall be determined by the secretary and based on the activity of the participant and the nature of the
proposal. All elective program elements shall be designed to
result in measurable improvement and enhancement of the
environmental quality of the state or shall be activities that are
beneficial to the environment. Elective program elements may
include, but are not limited to:
(1) Development and maintenance of programs that provide
technical assistance or mentoring to one or more specified
organizations to encourage technology transfers;
(2) Active participation in industry or business environmental
improvement programs;
(3) Publication and public distribution of annual
environmental performance summary reports;
(4) Promotion, sponsorship and participation in community
environmental and advisory programs;
(5) Development and maintenance of management programs that
encourage and reward employees for meeting or exceeding
requirements of environmental laws or permits and for participation
in voluntary environmental activities; and
(6) Development and implementation of programs that reduce
adverse environmental impact of development, manufacturing,
distribution and marketing of the participant's products or
services.
The secretary may establish additional alternative elective
program elements so long as the elements are designed to result in
the measurable improvement and enhancement of the environmental quality of this state. Any additional alternative elective program
elements established by the secretary shall have a reasonable nexus
to the industry or business to which it applies.
(c) The secretary shall establish application requirements
and application forms for entities to submit proposals to
participate in the program. The department shall review all
applications submitted for the program and shall notify the
eligible applicant that the application is complete or that the
application is incomplete. If the application is incomplete, the
department shall describe what additional information is required
to complete the application. The applicant may correct the
application and resubmit it at any time.
(d) Applicants accepted into an equivalent federal program
at the time of submitting an application to the department may
satisfy some or all of the eligibility and application requirements
pursuant to this article at the secretary's discretion.
§22-25-6. Application review and authority to enter into
environmental performance agreement.
(a) The secretary shall review all completed applications
within a reasonable period of time. If the secretary determines
that the application meets the requirements for the program, the
secretary shall notify the applicant in writing, and the
application shall be incorporated into a written agreement. If the
secretary determines the application does not meet the requirements
of the program, the secretary shall notify the applicant in writing
and shall provide an adequate opportunity for the applicant to address the outstanding items.
(b) The secretary may enter into one or more agreements with
a participant as necessary to implement the provisions of this
article. The agreement shall describe the requirements for
continued participation and incentives to be provided to the
participant.
(c) The secretary shall not enter into any environmental
performance agreement that would:
(1) Violate or waive any specific statutory provision;
(2) Waive any federal regulation, unless specifically
authorized by the federal government;
(3) Result in an increase in emissions, discharges, or other
releases above those allowable under the otherwise applicable
regulatory requirements; or
(4) Address past or ongoing violations or noncompliance by a
qualified applicant.
(d) The following documents shall be made available for public
review:
(1) The application, including documentation of compliance
with environmental laws and permits applicable to the facility over
the last three years, information regarding an appropriate
environmental management system, a description of the current
status of proposed performance indicators, and an outline of the
measures by which the program will be evaluated;
(2) The executive's determination regarding their application;
and
(3) The agreement described in subsections (a) and (b) of this
section.
§22-25-7. Judicial review of department decision on acceptance of
application to participate in the environmental
excellence program.
The decision of the department to refuse to accept an
application for participation in the environmental excellence
program is not subject to judicial review. The decision of the
department to enter into an environmental performance agreement may
be appealed to the environmental quality board by any person
aggrieved or adversely affected by the action being appealed,
pursuant to the provisions of article one, chapter twenty-two-b of
this code.
§22-25-8. Withdrawal, enforcement and termination from the
program.
(a) Any participant may elect to withdraw from participation
in the program at any time upon written notice to the secretary.
(b) The secretary shall terminate the participation of any
participant in the program if a serious violation is discovered or
occurs and the violation is not properly disclosed in accordance
with the law or is not corrected or remedied in a timely manner to
the satisfaction of the secretary.
(c) The secretary may continue the participation of a
participant in the program if a serious violation is discovered or
occurs and the violation is properly disclosed in accordance with law and is corrected or remedied in a timely manner to the
satisfaction of the secretary.
(d) A participant's participation in the program shall be
suspended from the time the serious violation is discovered or
occurs until the time it is corrected or remedied to the
satisfaction of the secretary.
(e) If the secretary determines at any time a participant is
failing to perform in accordance with the environmental performance
agreement, and if, after written notice to the participant, the
participant does not come into conformance within a reasonable
period of time, as established by the secretary, the secretary may
terminate the participant's participation in the program.
(f) All incentives provided by the state pursuant to section
nine of this article shall be withdrawn, effective upon termination
or withdrawal of the participant's participation in the program.
If a participant withdraws or is terminated from the program, any
unused incentives will be forfeited.
(g) The secretary shall establish, by rule, procedures and
criteria that set forth circumstances under which a participant's
participation shall be suspended or terminated and criteria for a
transition plan for returning to otherwise applicable environmental
laws if the environmental performance agreement is terminated by
the participant for any reason or by the secretary for failure to
meet the agreement's stated environmental goals, despite good faith
efforts.
§22-25-9. Incentives.
The secretary shall propose rules for legislative approval,
pursuant to the provisions of chapter twenty-nine-a of this code,
establishing
incentives to be granted to any participant that
complies with all of the mandatory program elements and the
prescribed number of elective program elements, as determined by
the secretary. Participants may seek some or all of the incentives
established pursuant to this subsection.
§22-25-10. Environmental performance agreements; contents, and
specifications.
(a) The environmental performance agreement shall clearly
establish the environmental goals of the participant; public
involvement requirements; incentives; reporting requirements; and
all other terms to ensure that the proposal is properly implemented
and enforceable.
(b) In entering into environmental performance agreements, the
secretary shall require stricter monitoring, or take other
appropriate steps to ensure accountability, for proposals with
greater uncertainty of meeting their stated environmental goals.
(c) A final environmental performance agreement shall specify:
(1) Any otherwise applicable rules, requirements, policies, or
practices, modified, waived or replaced;
(2) The specific environmental goals of the agreement and the
criteria for determining whether the agreement is meeting those
goals;
(3) A description of how compliance with the agreement will be
monitored and enforced, including any penalties that may be imposed for failure to carry out the terms of the agreement;
(4) The duration of the agreement and terms for renewal or
extension;
(5) A transition plan for returning to otherwise applicable
environmental laws in the event the agreement is terminated by
either the participant or the department;
(6) A plan for integrating into the agreement any relevant
regulations that are promulgated during the duration of the
agreement; and
(7) Criteria for determining whether agreement may be
transferred in the event of a transfer of ownership of the facility
subject to the terms and conditions of the agreement and when
applicable, the procedures for transferring the agreement.
§22-25-11. Recovery of costs to department in developing,
negotiating and publicizing environmental
performance agreement; deposition of moneys
collected; creation of environmental excellence
program administrative fund.
To recover the costs to the department in developing,
negotiating and publicizing an environmental performance agreement,
the secretary may establish by legislative rule reasonable
application, renewal, and administration fees. An "Environmental
Excellence Program Administrative Fund" is hereby created in the
state treasury. The funds shall be dedicated and appropriated to
the department to administer the program. Expenditures are not authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions of article two, chapter five-a of
this code: Provided, That for the fiscal year ending the thirtieth
day of June, two thousand five, expenditures are authorized from
collections rather than pursuant to appropriation by the
Legislature. Any moneys not utilized by the department for the
purposes set forth herein by the thirtieth day of June, two
thousand nine, shall revert to the state general revenue fund and
the environmental excellence program administration fund shall be
dissolved.
§22-25-12. Public participation.
To promote a participatory process that will conform to the
legislative rules adopted pursuant to section four of this article,
to the extent that resources are available in the environmental
excellence program administration fund and appropriated by the
Legislature, the secretary is authorized to provide logistical and
technical support to assure balanced and timely participation in
any public process associated with this program.
§22-25-13. Review and repeal of the environmental excellence
program.
(a) The joint committee on government operations shall,
pursuant to authority granted in article ten, chapter four of this
code, conduct a preliminary performance review of the department of environmental protection's compliance with the provisions of this
article, and whether it is appropriate to continue this program.
In conducting a preliminary performance review, the committee shall
follow the guidelines established in section ten, article ten,
chapter four of this code. The committee may direct that the focus
of the preliminary performance review be on a specific area of
operation and may direct further inquiry, when necessary and
desirable.
(b) This article and any rules promulgated thereunder shall
remain in effect until the thirtieth day of June, two thousand
nine, at which time this article and any rules promulgated
thereunder shall be repealed.
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