hb2304 intr

H. B. 2304

(By Delegates Staton, Amores, Pino and Givens)

[Introduced February 19, 2001; referred to the

Committee on the Judiciary then Finance.]

A BILL to amend chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-five, relating to establishing an environmental leadership program creating incentives for businesses to exceed state and federal environmental laws and permit requirements; establishing legislative findings; defining terms; directing the director of the division of environmental protection to establish the environmental leadership program; providing the director of the division of environmental protection to propose legislative rules; providing that participation in the program by businesses is voluntary; establishing eligibility requirements for businesses to participate in the program; authorizing the director to establish program elements beyond what is contained in this article; providing certain program elements; directing the director to provide application forms; establishing application review and business agreement requirements; providing certain documents available to the public; allowing withdrawal and termination under certain circumstances; providing for incentives to be established for participating in the program; providing for annual appropriations fund funding certain incentives; establishing the environmental leadership pollution prevention revolving fund; allowing for gifts and donations to be received by the fund; providing for a performance review of the program; and providing for expiration of the program in two thousand six.

Be it enacted by the Legislature of West Virginia:

That chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twenty-five, to read as follows:
ARTICLE 25. ENVIRONMENTAL LEADERSHIP PROGRAM
§22-25-1. Legislative findings.

(1) The Legislature finds that business leaders who demonstrate their commitment to the environment by going beyond compliance with environmental laws and rules positively impact the quality of life for all of the citizens of the state by improving the economy and the environment by increasing consumer and shareholder confidence, boosting management and employee morale, and operating in a safe and sensible manner that lessens their impacts on the environment. The Legislature further finds that increased use of pollution prevention strategies, more cost-effective options for compliance with environmental standards, and reduction in occurrences of noncompliance with environmental compliance standards can be achieved through the establishment and implementation of a voluntary "environmental leadership program" pursuant to this article.

(2) The Legislature further finds that such voluntary program should provide businesses with the opportunity to enter into an agreement with the division of environmental protection through which the division shall administer financial and other benefits to the participating businesses that comply with a prescribed number of program elements established by the director of the division of environmental protection designed to reduce the adverse environmental impacts of the business beyond that which would be achieved by compliance with environmental laws and permits alone.

(3) The Legislature further finds businesses should be granted financial incentives for pollution prevention, toxic use reduction, source reduction, resource recovery, energy efficiency, and innovative environmental technology investments that take the business beyond compliance with state and federal environmental laws and permits.
§22-25-2. Definitions.

As used in this article, unless the context otherwise requires:

(1) "Division" means the division of environmental protection.

(2) "Director" means the director of the division of environmental protection.

(3) "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.

(4) "Pollution prevention" means any practice which reduces the use of any hazardous substance or amount of a pollutant or contaminant prior to 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.

(5) "Program" means the Environmental Leadership Program created pursuant to this article.

(6) "Qualified applicant" means any facility of a corporation, partnership, sole proprietorship, municipality, county, city and county, or special district located and doing business in this state; except that no facility that applies for the program and is part of a corporation, partnership, sole proprietorship, municipality, county, city and county, or special district that has other facilities in this state is eligible for the program unless all of the facilities are in compliance with this state's applicable environmental laws and rules and applicable federal environmental laws and regulations.

(7) "Serious violation" means:

(A) Violations that are prone to cause significant impact to human health or to the environment;

(B) A pattern of violations that demonstrate management systems are not adequate to address environmental issues; or

(C) Convictions for violations of environmental laws or out-of-court settlements of formal charges of such criminal violations.

(8) "Source reduction" means any practice which reduces the amount of any hazardous substances, pollutant or contaminant entering any waste stream or otherwise being released into the environment, which includes fugitive emissions, prior to recycling, treatment, or disposal and reduces the hazards to public health and the environment associated with the release of these substances, pollutants or contaminants. Waste 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. Waste 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.

(9) "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 by-products 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.
§22-25-3. Powers and duties of the division.

(a) The director, after consultation with representatives from the regulated community, local governments, environmental advocacy groups and other interested citizens, shall develop and implement a voluntary environmental leadership program in accordance with this article. The director shall propose legislative rules for promulgation in accordance with article three, chapter twenty- nine-a of this code necessary to establish and implement the all necessary program elements for the pollution prevention program as established in this article.

(b) Participation in the division by any participant is voluntary and is subject to review every three years.
§22-25-4. Eligibility and application requirements.

(a) Mandatory elements of the environmental leadership program shall include:

(1) Evidence of no serious violations of all applicable state and federal environmental laws and permits for a minimum of three years immediately prior to the date of submission of the application for participation in the program;

(2) Evidence that no settlement agreement has been entered into and that no compliance or consent order has been issued for serious violations of environmental laws and permits for the three years immediately prior to the date of submission of the application for participation in the program;

(3) The existence and maintenance of an environmental management system to include, as appropriate, management-approved environmental policies, relevant procedures to achieve environmental compliance and employee training programs, compliance audit programs and communication programs related to environmental compliance;

(4) The existence and maintenance of an environmental compliance audit program to assess compliance with environmental laws, correct noncompliance within a reasonable period of time and report audit findings as required by law;

(5) The existence and maintenance of a pollution prevention program or plan with specific goals and committed actions to significantly reduce releases of pollutants or the use of resources beyond the reductions required by law or permit. The amount of the reduction will aid the director in prioritizing the environmental leaders for the purpose of receipt of any available financial incentives;

(6) The existence and maintenance of verifiable, quantitative and qualitative measures or methods that document compliance with environmental requirements, resource conservation goals and pollution prevention performance goals.

(b) The director shall establish alternative elective program elements in addition to the mandatory program elements and application requirements. Program 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 based on the size of the participant as determined by the director. 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;

(6) Development of implementation of programs that reduce adverse environmental impact of development, manufacture, distribution and marketing of the participant's products or services;

(7) Evaluation and revision of environmental management systems to update and strengthen environmental policies, procedures, goals and employee training programs;

(8) Acquisition and maintenance of national or international environmental certification or self-registration in the same.

The director 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 director shall have a reasonable nexus to the industry or business to which it applies.

(c) The director shall determine application requirements and establish application forms for entities to submit proposals to participate in the program. The division 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 division shall describe what additional information is required to complete the application. The eligible applicant may correct the application and resubmit it at any time.
§22-25-5. Application review and authority to enter into agreement.

(a) The director shall review all completed applications within a reasonable period of time. If the director determines that the application meets the requirements for the program, the director shall notify the applicant in writing, and the application shall be incorporated into a written agreement. If the director determines that the application does not meet the requirements of the program, the director shall notify the applicant in writing and shall provide an adequate opportunity for the applicant to address the outstanding items.

(b) The director may enter into one or more agreements with a participant as necessary to implement the provisions of this article. The agreement shall describe the incentives to be provided to the participant.

(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.
§22-25-6. Withdrawal 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 director.

(b) The director 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 director.

(c) The director 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 director.

(d) A participant's participation in the program shall be suspended from the time the serious violation is discovered or occurs until the time that it is corrected or remedied to the satisfaction of the director.

(e) The director shall establish written policy and criteria that set forth circumstances under which a participant's participation shall be terminated.

(f) If the director determines at any time that a participant is failing to perform or accomplish any of the agreed upon requirements of the program, and if, after written notice to the participant, the participant does not come into conformance within a reasonable period of time, the director may terminate the participant's participation in the program.

(g) All incentives provided by the state pursuant to section seven 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.
§22-25-7. Incentives.

(a) The director shall establish and provide 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 director. Participants may select some or all of the incentives established pursuant to this subsection. The director shall administer the "environmental leadership pollution prevention revolving fund" as established in section eight of this article, to provide low-cost loans for pollution prevention, toxic use reduction, source reduction, resource recovery, energy efficiency and innovative environmental technology activities. Incentives may also include, but are not limited to:

(1) Formal public recognition by the governor and the division at least annually to include, but not be limited to:

(A) This state's preferred vendor status;

(B) Awards;

(D) News releases.

(2) Greater reliance by the division on the participant's self-monitoring, self-reporting, self-certification or third-party certification to demonstrate compliance with environmental laws and permits, which may result in fewer inspections;

(3) Acceleration of review and processing of permit applications;

(4) Ability to consolidate permit applications for each facility of the participant with one representative from the division responsible for all permitting communications with the participant;

(5) Consolidation and simplification of reporting and monitoring requirements;

(6) Extension of terms of environmental permits up to the maximum authorized under the relevant environmental laws;

(7) Ability to obtain additional credits for reductions in emissions or discharges that exceed minimum legal requirements under any operating emissions or discharge trading or credit program that has been or may be established.

(b) The director shall also establish and provide financial incentives available through the program. Financial incentives shall be graduated in amount in order to provide greater proportional monetary grants or rebates to smaller businesses as determined by the director by the size of the environmental benefit provided by the business's actions.

(c) No financial incentives may be awarded unless the director has first determined that the applicant applying for the financial incentive has performed all of the mandatory program elements and the prescribed number of elective program elements.

(d) The director may establish the following financial incentives:

(1) Dollar credits to be applied against future obligations of the participant under state environmental laws, excluding fines or penalties assessed for violations of environmental laws. The amount of the credits shall be based on the size of the participant and the amount of the total verifiable costs invested by the environmental leader to implement the elective elements of the program and may not exceed a total amount of ten thousand dollars in any three-year period; and

(2) Dollar rebates or credits based on a percentage of permit and emission fees assessed under state environmental laws. Percentage amounts are to be determined based on the size of the participant.

(e) The division shall request appropriations annually for environmental programs that require additional funding due to the award of dollar credits or rebates. If annual appropriations are not sufficient to provide funding for these programs, the director may limit the availability of financial incentives.
§22-25-8. Environmental leadership pollution prevention revolving fund; program; creation.

There is hereby created in the state treasury an "environmental leadership pollution prevention revolving fund." The funds shall be dedicated and appropriated to the division to administer the program. The director may also accept gifts, donations and grants for any purpose connected with this program but may not solicit gifts, donations or grants. 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 of 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 one, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. Any moneys not utilized by the division for the purposes set forth herein by the thirtieth day of June, two thousand six, shall revert to the state general revenue fund and the environmental leadership fund shall be dissolved.
§22-25-9. Review and repeal of environmental leadership program.

(a) The joint committee on government operations shall, pursuant to authority granted in article ten of chapter four of this code, conduct a preliminary performance review of the division 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 six, at which time this article and any rules promulgated thereunder shall be repealed.

NOTE: This bill creates a new article which establishes an "Environmental Leadership Program," which creates incentives for businesses to exceed minimum environmental requirements. The voluntary program administered by the Department of Environmental Protection, allows businesses which exceed minimum environmental standards to become eligible for benefits awarded to program participants. These include more self monitoring, financial incentives and recognition as being a business in West Virginia that is providing environmental leadership and participating in the program. The Department of Environmental Protection is to propose legislative rules establishing the program. A special revenue account is established to fund the program from general revenue appropriations and gifts and donations.

This article is new; therefore, strike-throughs and underscoring have been omitted.