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Environmental August 2009 (Green Tier & Audit Prog) (A3420525-2)

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August 2009 Environmental Alert Wisconsin Legislature Reauthorizes and Improves Green Tier and Environmental Compliance Audit Programs On July 8, 2009, Governor Jim Doyle signed into law legislation reauthorizing two programs designed to encourage and reward environmental performance: 1. The Green Tier Program (“Green Tier”) promotes “superior environmental performance” by regulated businesses, industries and municipalities, and 2. The Environmental Compliance Audit Program (“Audit Program”) encourages the conduct of environmental audits and provides protection against potential penalties for identified violations. 2009 Wisconsin Act 30 became effective on July 10, 2009, and amended various provisions of Wis. Stat. §§ 299.83 and 299.85. In effect since March 2004, both programs are administered by the Wisconsin Department of Natural Resources (WDNR) and both were scheduled to sunset on July 1, 2009. With overwhelming support from the business, environmental, academic and governmental communities, the Wisconsin legislature determined these two programs serve important environmental policy objectives, eliminated the sunset provisions, and made other program improvements. Are you in compliance and want to do more? Not sure if you in compliance and not sure how to find out? If you have good reason to believe that your facility is meeting its environmental compliance requirements and you want to do more, the Green Tier Program ...
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August 2009
Environmental Alert
Wisconsin Legislature Reauthorizes and Improves Green Tier and Environmental
Compliance Audit Programs
On July 8, 2009, Governor Jim Doyle signed into law legislation reauthorizing two programs
designed to encourage and reward environmental performance:
1. The Green Tier Program (“Green Tier”) promotes “superior environmental performance” by
regulated businesses, industries and municipalities, and
2. The Environmental Compliance Audit Program (“Audit Program”) encourages the conduct of
environmental audits and provides protection against potential penalties for identified
violations.
2009 Wisconsin Act 30 became effective on July 10, 2009, and amended various provisions of Wis.
Stat. §§ 299.83 and 299.85.
In effect since March 2004, both programs are administered by the Wisconsin Department of Natural
Resources (WDNR) and both were scheduled to sunset on July 1, 2009. With overwhelming support
from the business, environmental, academic and governmental communities, the Wisconsin
legislature determined these two programs serve important environmental policy objectives,
eliminated the sunset provisions, and made other program improvements.
Are you in compliance and want to do more? Not sure if you in compliance and not sure how
to find out?
If you have good reason to believe that your facility is meeting its environmental compliance
requirements and you want to do more, the Green Tier Program may be for you. If you are uncertain
about your environmental compliance status and want to start out by getting a good handle on it, the
Environmental Compliance Audit Program may provide you the opportunity to do so with relatively
low-risk of enforcement or penalties.
How these programs work:
Green Tier
Green Tier encourages regulated businesses, industries and municipalities to go beyond basic
compliance and achieve a higher level of environmental performance. The program is entirely
voluntary. Participants select the environmental areas in which they will strive to achieve superior
environmental performance, set their own targets and develop and implement an environmental
management system.
Designed to recognize “good actors”, Green Tier eligibility criteria include the proposed participants’
prior environmental compliance record.
The program emphasizes “transparency” so that WDNR and
the public can track the commitments and achievements. Participants can enter the program at Tier I
or Tier II, individually or as part of a group under a Charter. Tier I is for participants that do not have
an environmental management system and commit to develop and implement one; Tier II is for
participants that already have an environmental management system. Tier I participants audit their
environmental management system; Tier II participants audit their facilities’ environmental
compliance. Any violations identified are not subject to enforcement so long as the participant
corrects them within a specified time period.
For more information, please see:
“2003 Wisconsin Act 276 - The Environmental Results Program and The Environmental
Improvement Program (a.k.a. ‘Green Tier’)” (December 2004), available at:
http://www.michaelbest.com/2003-wisconsin-act-276-green-tier/
“Green Tier: What is it anyway?” (April 8, 2005), available at http://www.michaelbest.com/green-tier-
what-is-it-anyway/
Or visit the WDNR website on Green Tier, available at http://dnr.wi.gov/org/caer/cea/environmental/
Environmental Compliance Audit Program
The Environmental Compliance Audit Program encourages regulated businesses, industries and
municipalities to conduct environmental compliance audits and to promptly discover, disclose and
correct violations in return for forgiveness of enforcement and potential civil penalties. The law
provides that the state cannot file a civil suit to seek penalties unless the violations are not corrected
within a set period of time, and in those limited circumstances sets a maximum penalty of $500 per
violation, regardless of the number of days of violation.
While it has some elements in common with the Green Tier program, the Audit Program is a
separate program. Entities wishing to utilize the Audit Program do not need to be Green Tier
participants. Modeled on the United States Environmental Protection Agency (“EPA”) Audit Policy,
the WDNR Program has its procedural differences. Chief among them is the requirement to provide
WDNR at least 30 days’ notice before conducting the audit.
For more information, please see:
“EPA Targets Incentives to Conduct Environmental Compliance Audits in 2008” (January 24, 2008),
available at: http://www.michaelbest.com/epa-targets-incentives-to-conduct-environmental-
compliance-audits-in-2008/
Or visit the EPA website page on EPA Audit Policy, available at:
http://www.epa.gov/Compliance/incentives/auditing/index.html
2009 Legislative Improvements:
In addition to permanently reauthorizing these programs, Act 30 made the following program
improvements:
Green Tier Program
1.
Renamed the program Green Tier, to reflect the commonly-recognized name, in lieu of the
Environmental Results Program.
2.
Provided additional flexibility:
a.
Made the definition of a “functionally equivalent environmental management system”
more flexible by recognizing that it should be “appropriate to the nature, scale and
environmental impacts” of the entity’s “activities, products and services.”
b.
Continued the ability of the WDNR Secretary to waive enforcement record eligibility
criteria for participation in Tier I and Tier II, if doing so will not erode public
confidence in the integrity of the program.
c.
Authorized the WDNR Secretary to extend a compliance schedule for corrective
action beyond 12 months when deemed necessary.
d.
Added protection for violations discovered and reported by a participant while
operating under the program, but not as a result of conducting an audit.
3.
Confirmed transparency:
a.
Clarified that the environmental policy adopted as part of an environmental
management system is available to the public.
b.
Specified that a Tier II contract contain a provision describing how the participant will
maintain the involvement of interested parties during the term of the contract.
Environmental Compliance Audit Program
1.
Renamed the program the Environmental Compliance Audit Program, to reflect the
commonly-recognized name, in lieu of the Environmental Improvement Program.
2.
Provided additional flexibility:
a.
Removed an impediment to participation: Previously, an entity was not able to utilize
this program if it had been subject to a civil suit by the Wisconsin Department of
Justice (WDOJ), or a citation from WDNR or a local governmental unit in the prior
two years. This language has been changed to eliminate any consideration of
previously issued citations. WDNR is directed to consider whether the entity had
been subject to civil suit by the WDOJ and if so, the nature of that civil suit; if on that
information WDNR determines the entity’s participation would “damage the integrity”
of the Audit Program, WDNR is to notify the entity it is not eligible.
b.
Authorized the WDNR Secretary to extend a compliance schedule for corrective
action beyond 12 months when deemed necessary.
This Alert is a publication of Michael Best & Friedrich LLP and is intended to provide clients and friends with information on recent legal developments. This
Alert should not be construed as legal advice or an opinion on specific situations. For further information, feel free to contact article authors or other
members of the firm. We welcome your comments and suggestions regarding this publication. © 2009 Michael Best & Friedrich LLP. All rights reserved.