Chapter 299

299.80(1)(h)2. 2. Any dust, fumes, mist, liquid, smoke, other particulate matter, vapor, gas, odorous substances or any combination of those things emitted into the air, but not uncombined water vapor.

299.80(1)(i) (i) “Violation” means a violation of a cooperative agreement, of an approval that is not replaced by the cooperative agreement or of a provision of chs. 280 to 295 and rules promulgated under those chapters for which a participant has not received a variance under sub. (4).

299.80(2) (2) Pilot program. The department shall administer a pilot program under which it enters into not more than 10 cooperative agreements to evaluate innovative environmental regulatory methods. In administering the program, the department shall do all of the following:

299.80(2)(a) (a) Provide at least the same level of protection of public health and the environment as provided by the environmental regulatory methods under chs. 280 to 295.

299.80(2)(b) (b) Encourage facility owners and operators to systematically assess the pollution that they cause, directly and indirectly, to the air, water and land.

299.80(2)(c) (c) Encourage facility owners and operators to implement efficient and cost-effective pollution reduction strategies for their facilities, while complying with verifiable and enforceable pollution limits.

299.80(2)(d) (d) Encourage facility owners and operators to achieve superior environmental performance, both with respect to the effects of a facility that are regulated under chs. 280 to 295 and those effects that are unregulated, to reduce usage of natural resources, to minimize transfers of waste discharges among air, water and land and to reduce waste generation, while achieving a balance among the economic, social and environmental impacts of these efforts that is acceptable to the community in which the facility is located.

299.80(2)(e) (e) Recognize and reward facility owners and operators who have demonstrated excellence and leadership in environmental stewardship or pollution prevention and who can achieve reductions in emissions and waste generation through implementation of innovative measures.

299.80(2)(f) (f) Encourage the transfer of information about methods for improving environmental performance and the adoption of these methods by others.

299.80(2)(g) (g) Consolidate into a cooperative agreement environmental requirements relating to a facility owned or operated by a participant that are otherwise included in separate approvals to the extent that consolidation is practical and efficient.

299.80(2)(h) (h) Grant the owners and operators of facilities greater flexibility than would otherwise be allowed under chs. 280 to 295 and rules promulgated under those chapters.

299.80(2)(i) (i) Seek to reduce the time and money spent by government and owners and operators of facilities on paperwork and other administrative tasks that do not result in benefits to the environment.

299.80(2)(j) (j) Encourage public participation, and consensus among interested persons, in the development of innovative environmental regulatory methods and in monitoring the environmental performance of projects under this section.

299.80(2)(k) (k) Seek to improve the provision of useful information to the public about the environmental and human health impacts of facilities on communities.

299.80(2)(L) (L) Provide public access to information about performance evaluations conducted by participants in the program under this section.

299.80(2)(m) (m) Encourage facility owners and operators and communities to work together to reduce pollution to levels below the levels required under chs. 280 to 295.

299.80(2)(n) (n) Seek to increase trust among government, facility owners and operators and the public through open communication and support of early and credible resolution of conflicts over issues concerning the environment and environmental regulation.

299.80(3) (3) Content of cooperative agreements. A cooperative agreement shall do all of the following:

299.80(3)(a) (a) Identify the facility or facilities, the activities and the pollutants that are covered by the cooperative agreement.

299.80(3)(b) (b) Specify any approvals and provisions of approvals that are replaced by the cooperative agreement.

299.80(3)(c) (c) Commit the participant to implement an environmental management system that is based on the standards for environmental management systems issued by the International Organization for Standardization, or an alternative environmental management system that is acceptable to the department, at the covered facilities and commit the participant to documenting the environmental management system.

299.80(3)(d) (d) Commit the participant to superior environmental performance, to achieving measurable or noticeable improvements in environmental performance, to reducing natural resource usage and to reducing waste generation, while achieving a balance among the economic, social and environmental impacts of these efforts that is acceptable to the community in which the facility is located.

299.80(3)(e) (e) Specify waste reduction goals in measurable and verifiable terms.

299.80(3)(f) (f) Identify changes in raw materials, in the design, methods of production, distribution or uses of products or in the reuse, recycling or disposal of materials that the participant will implement to achieve process efficiencies, to reduce the pollution of the air, water and land and to reduce water use, energy use or indoor chemical exposure.

299.80(3)(g) (g) Contain pollution limits that are verifiable, enforceable and at least as stringent as the pollution limits under chs. 280 to 295 and rules promulgated under those chapters.

299.80(3)(h) (h) Describe the operational flexibility granted to the participant and any variances granted under sub. (4).

299.80(3)(i) (i) Contain the requirements that would be included in any approvals that are replaced by the cooperative agreement, as modified under pars. (g) and (h).

299.80(3)(j) (j) Require the participant to submit a baseline performance evaluation within 180 days of the date that the cooperative agreement is entered into and to update the performance evaluation periodically.

299.80(3)(k) (k) Require the participant to report any violations discovered during a performance evaluation as required in sub. (12).

299.80(3)(L) (L) Ensure that members of the interested persons group, established as required under sub. (5) (b), have the opportunity to comment on the participant’s environmental management system and are involved in reviewing the participant’s performance under the cooperative agreement and require a process that seeks consensus between the participant and interested persons over issues concerning that performance.

299.80(3)(m) (m) Require the participant to assist interested persons to understand the implementation of the cooperative agreement.

299.80(3)(n) (n) Require the participant to provide information to the public about the participant’s environmental performance and the results of the project, including environmental, social and economic impacts, and to meet with interested persons at least once every 6 months to discuss the implementation of the participant’s environmental management system and to receive comments on the progress of the project.

299.80(3)(o) (o) Describe how the participant will measure the opinions of its employees and the public concerning its participation in the program under this section.

299.80(3)(p) (p) Require the participant to assess the success of the project in reducing the time and money spent by the participant on paperwork and other administrative activities that do not directly benefit the environment.

299.80(3)(q) (q) Specify that the term of the agreement is 5 years with the possibility of a renewal for up to 5 years as provided in sub. (6e).

299.80(4) (4) Variances.

299.80(4)(a) (a) If chs. 280 to 295 or rules promulgated under those chapters authorize the department to grant a variance from a requirement that would otherwise apply to a facility covered by a cooperative agreement and the participant qualifies under the standards provided in the statutes or rules for granting the variance, the department may grant a variance from that requirement.

299.80(4)(b) (b) If a variance is not authorized under par. (a), the department may grant a participant a variance from a requirement in chs. 280 to 295 that would otherwise apply to a facility covered by a cooperative agreement if the variance results in a measurable reduction in overall levels of pollution caused by the participant and is consistent with subs. (2) and (3) (g) and does one of the following:

299.80(4)(b)1. 1. Promotes the reduction in overall levels of pollution to below the levels required under chs. 280 to 295.

299.80(4)(b)2. 2. Provides for alternative monitoring, testing, record keeping, notification or reporting requirements that reduce the administrative burden on state agencies or the participant and that provide the information needed to ensure compliance with the cooperative agreement and the provisions of chs. 280 to 295 and rules promulgated under those chapters for which the cooperative agreement does not grant a variance.

299.80(5) (5) Application. The department shall solicit applications for participation in the program under this section. The owner or operator of a facility that is required to be covered by at least one approval under chs. 280 to 295 may apply to participate in the pilot program by submitting all of the following:

299.80(5)(a) (a) A proposed cooperative agreement that satisfies sub. (3).

299.80(5)(b) (b) A description of the process used by the applicant to establish an interested persons group that includes residents of the area in which the facility proposed to be covered by the agreement is located, a list of members of the interested persons group and a description of the involvement of the interested persons group in the development of the proposed cooperative agreement.

299.80(6) (6) Entering into cooperative agreements.

299.80(6)(a) (a) The department shall review each application submitted under sub. (5). Upon completion of that review, the department shall decide whether to enter into negotiations with the applicant. In determining whether to enter into negotiations and in selecting participants, the department shall seek to ensure participation by a variety of types, sizes and locations of facilities and shall consult with the federal environmental protection agency. A decision by the department not to enter into negotiations is not subject to review under ch. 227. If the department decides to enter into negotiations, it shall prepare a draft cooperative agreement and provide public notice of its decision in the manner provided in sub. (8) (d).

299.80(6)(b) (b) During negotiations concerning a proposed cooperative agreement, the department may not modify or revoke any approval for a facility that would be replaced by the cooperative agreement if the applicant is not violating the approval.

299.80(6)(c) (c) The department may terminate negotiations with an applicant concerning a proposed cooperative agreement and the decision to terminate negotiations is not subject to review under ch. 227.

299.80(6)(d) (d) Except as provided in par. (e), the department may enter into a cooperative agreement with an applicant if the department determines that the applicant’s efforts described under sub. (5) (b) were adequate, that the cooperative agreement complies with sub. (3) and that entering into the agreement will assist the department to comply with sub. (2). The decision by the department to enter into a cooperative agreement is not subject to review under ch. 227. A cooperative agreement is subject to review under ch. 227.

299.80(6)(e) (e) The department may not enter into an initial cooperative agreement after October 1, 2002.

299.80(6e) (6e) Extension of cooperative agreement. If the department determines that renewal of a cooperative agreement is consistent with sub. (2) and if the participant agrees to renewal, the department may notify the joint committee on finance that the department proposes to renew the cooperative agreement. If, within 14 working days after the date that the department submits the proposal, the cochairpersons of the committee notify the secretary that the committee has scheduled a meeting for the purpose of reviewing the proposal, the department may not renew the cooperative agreement until the committee approves the proposal. If the cochairpersons of the committee do not so notify the secretary, the department may renew the cooperative agreement. A cooperative agreement may be renewed for one 5-year term.

299.80(6m) (6m) Expiration of cooperative agreement. If a participant timely submits an application for an approval that is replaced by a cooperative agreement and submits any information requested by the department to enable the department to act on the application, but the department does not issue the approval before the cooperative agreement expires, sub. (9) (a) continues to apply and the provisions of the cooperative agreement continue to apply until the approval is issued.

299.80(7) (7) Amendment, revocation of cooperative agreement.

299.80(7)(a) (a) This subsection applies to the amendment or revocation of a cooperative agreement, notwithstanding any provisions of chs. 280 to 295 concerning the amendment or revocation of approvals.

299.80(7)(b) (b)

299.80(7)(b)1. 1. The department may amend a cooperative agreement with the consent of the participant.

299.80(7)(b)2. 2. The department may, after an opportunity for a hearing, amend a cooperative agreement for cause, including any of the following:

299.80(7)(b)2.a. a. A change in federal or state environmental laws.

299.80(7)(b)2.b. b. A violation of the cooperative agreement.

299.80(7)(b)2.c. c. Obtaining a cooperative agreement by misrepresentation or failure to fully disclose all relevant information.

299.80(7)(c) (c)

299.80(7)(c)1. 1. The department may revoke a cooperative agreement at the request of the participant.

299.80(7)(c)2. 2. The department may, after an opportunity for a hearing, revoke a cooperative agreement if it finds any of the following:

299.80(7)(c)2.a. a. That the participant is in substantial noncompliance with the cooperative agreement, with an approval that is not replaced by the cooperative agreement or with a provision of chs. 280 to 295 or rules promulgated under those chapters for which the cooperative agreement does not grant a variance.

299.80(7)(c)2.b. b. That the participant has refused the department’s request to amend the cooperative agreement.

299.80(7)(c)2.c. c. That the participant is unable, or has shown an unwillingness, to comply with pollution reduction goals that apply to the participant under the cooperative agreement.

299.80(7)(c)2.d. d. That the participant has not satisfactorily addressed a substantive issue raised by a majority of the members of the interested persons group, established under sub. (5) (b), within a reasonable time after receiving notice of the issue.

299.80(7)(c)3. 3. If the department revokes a cooperative agreement, it shall do all of the following in a written revocation decision:

299.80(7)(c)3.a. a. Delay any compliance deadlines established in the cooperative agreement if a delay is necessary to provide the participant with a reasonable amount of time to obtain approvals required under chs. 280 to 295 that were replaced by the cooperative agreement.

299.80(7)(c)3.b. b. Establish practical interim requirements, that do not allow pollution in excess of that allowed under chs. 280 to 295 at the time that the cooperative agreement was entered into, to replace specified requirements of the cooperative agreement until the department issues the approvals required under chs. 280 to 295 that were replaced by the cooperative agreement.

299.80(7)(c)4. 4. A participant shall comply with the department’s revocation decision and with all requirements of the cooperative agreement for which the department does not establish interim requirements until the department issues the approvals required under chs. 280 to 295 that were replaced by the cooperative agreement.

299.80(7)(d) (d) A final decision under par. (b) or (c) is subject to review under ch. 227.

299.80(8) (8) Public notice; meetings.

299.80(8)(a) (a) The department shall provide at least 30 days for public comment on the proposed issuance, amendment or revocation of a cooperative agreement.

299.80(8)(b) (b) Before the start of the public comment period under par. (a), the department shall prepare a draft of the cooperative agreement, cooperative agreement amendment or notice of cooperative agreement revocation and a fact sheet that does all of the following:

299.80(8)(b)1. 1. Briefly describes the principal facts and the significant factual, legal, methodological and policy questions considered by the department.

299.80(8)(b)2. 2. Briefly describes how the proposed action is consistent with subs. (2) and (3).

299.80(8)(b)3. 3. Identifies any variances that would be granted under sub. (4) by the proposed action.

299.80(8)(c) (c) The department shall prepare a public notice of a proposed action under par. (a) that does all of the following:

299.80(8)(c)1. 1. Briefly describes the facility that is the subject of the proposed action.

299.80(8)(c)2. 2. Identifies the proposed action and states whether any variances would be granted under sub. (4) by the proposed action.

299.80(8)(c)3. 3. Identifies an employee of the department and an employee of the applicant or participant who may be contacted for additional information about the proposed action.

299.80(8)(c)4. 4. States that the draft of the proposed action and the fact sheet under par. (b) are available upon request.

299.80(8)(c)5. 5. States that comments concerning the proposed action may be submitted to the department during the comment period and states the last date of the comment period.

299.80(8)(c)6. 6. Describes the procedures that the department will use to make a final decision on the proposed action, describes how persons may request public informational meetings, contested case hearings or public hearings and how persons may make requests to appear at those meetings and hearings.

299.80(8)(d) (d) Before the start of the public comment period, the department shall mail the public notice under par. (c) to the applicant or participant, the federal environmental protection agency, the members of the interested persons group established under sub. (5) (b) and all persons who have asked to receive notice of proposed actions under par. (a). The department shall mail the public notice to any other person upon request. The department shall make a copy of the public notice available at the department’s main office, at any other department office in the area of the facility subject to the proposed action and at public libraries in that area. The department shall circulate the public notice in the area of the facility subject to the proposed action by posting the notice in public buildings, publishing the notice in local newspapers and by any other methods that the department determines are effective.

299.80(8)(e) (e) The department shall hold a public informational meeting on a proposed action under par. (a) if the comments received during the public comment period demonstrate considerable public interest in the proposed action.

299.80(9) (9) Effect of cooperative agreement.

299.80(9)(a) (a) For the purposes of chs. 280 to 295, a cooperative agreement entered into under this section is considered to be an approval that is identified under sub. (3) (b) as being replaced by the cooperative agreement.

299.80(9)(b) (b) A provision of an approval that is identified under sub. (3) (b) as being replaced by a cooperative agreement is superseded by the cooperative agreement.