A N A C T
RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENVIRONMENTAL INCENTIVE ACT
It is enacted by the General Assembly as follows:
SECTION 1. Sections 42-17.8-1, 42-17.8-2, 42-17.8-3, 42-17.8-4 and 42-17.8-5 of the General Laws in Chapter 42-17.8 entitled "The Rhode Island Environmental Compliance Incentive Act" are hereby amended to read as follows:
42-17.8-1. Purpose -- (a) The Rhode Island general assembly hereby finds that voluntary, public compliance with environmental laws, rules and regulations is a principal component in effectively protecting the environment of the state; and that such voluntary compliance is most effectively achieved through the implementation of regular, systematic and objective self-evaluative activities such as compliance environmental audits and/or the implementation of an environmental management system of standard management policies and practices designed to monitor and assure continuing compliance with all applicable laws, rules and regulations.
(b) In order to encourage persons who conduct such regulated activities to perform such voluntary self-evaluations of their compliance programs and management systems, and to thereby improve compliance with such statutes and/or regulations, the Rhode Island general assembly finds that it is in the public interest to encourage such activities by promoting confidentiality of communications relating to such voluntary self-evaluations to those who properly and timely report the findings of such self-evaluations to the regulatory authority(ies) responsible for protecting the environment of the state.
42-17.8-2. Definitions -- As used in this chapter:
(a) "Administrative penalty" shall mean a monetary penalty that does not exceed the civil penalty specified by statute.
(b) "Department" shall mean the department of environmental management.
(c) "Director" shall mean the director of the department of environmental management or his or her duly authorized agent.
(d) "Due diligence" shall mean a regulated entity's regular, customary and systematic efforts to prevent, detect and correct violations by consistently employing practices in its operation that ensures protection of the natural environment through the use of an environmental management system. throughout all of the following:
(1) The development and implementation of compliance policies, standards, procedures and management practices that specify how employees and agents shall comply with applicable environmental laws;
(2) The assignment of oversight responsibilities to personnel to monitor compliance with applicable environmental laws and compliance with the policies, standards, and procedures established by the regulated entity and the necessary authority to enforce such environmental laws and policies within the regulated entity by stopping unlawful conduct and/or implementing activities necessary to comply with such laws or policies or to mitigate violations that have occurred;
(3) The creation of systematic, objective mechanisms for assuring that compliance policies, standards and procedures are being carried out, including monitoring and auditing systems reasonably designed to detect and correct violations, periodic evaluation of the overall performance of the compliance management system, and a means for employees or agents to report violations of environmental requirements without fear of retaliation;
(4) The effective communication of the regulated entity's compliance policies standards and procedures to all employees and other agents;
(5) The creation of effective and efficient procedures for the prompt and appropriate correction of any violations, and any necessary modifications to the regulated entity's program to prevent future violations.
(e) "Environmental audit" shall mean a systematic, documented, and objective review of a regulated entity's facility operations and occupational practices which affect the regulated entity's compliance with environmental laws.
(f) "Environmental audit report" shall mean the analysis, conclusions, and recommendations made based upon information or data obtained in or testimonial evidence concerning the environmental audit.
(g) "Environmental law" shall mean all federal, state or municipal statutes, rules, regulations, permits, licenses or other legal requirements that are administered or enforced by the department. ,and shall also include any judicial or administrative order or consent agreement.
(h) "Environmental management system" shall mean a systemic and objective mechanism for assuring the compliance policies, standards and procedures are being carried out, including monitoring and auditing systems reasonably designed to detect and correct violations and periodic evaluation of the overall performance of the environmental management system. The environmental management system of any business shall include provisions for commitment of the management of the business to the environmental management system, to pollution prevention, and to the principle of sustainability. An environmental management system shall lead to an exemplary record of compliance with environmental laws which shall include, but shall not be limited to: (1) evidence that such business has not been found in violation of any such law, other than a secondary violation as defined in this statute, within the preceding three (3) years; and (2) has complied with the provisions of applicable general statutes, and any orders of the director under said statutes, with regard to any secondary violation, as defined in said statutes. An environmental management system must also meet the following criteria:
(i) The system must implement specific policies and procedures for employees and agents that explain how to comply with environmental laws;
(ii) The system must identify those persons or positions within the business that are: (A) responsible for monitoring/overseeing compliance, (B) authorized to act, to stop violations, achieve compliance, mitigate violations, and (C) responsible to report violations to the business and/or regulators;
(iii) The system must lay out a procedure for employees to report violations to the business and/or regulators;
(iv) The system must explain how employees are educated about the system and the policies/procedures therein;
(v) The system must layout a procedure for modifying the system itself to prevent reoccurrence of violations.
(h) (i) "Gravity-based penalties" shall mean that portion of an administrative penalty over and above a regulated entity's direct economic gain from noncompliance with any environmental laws, and costs or expenses incurred by the state relating to a regulated entity's violation of any environmental law.
(i) (j) "Person" shall mean any agency or political subdivision of the state, any state public or private corporation or authority, individual, trust, firm, joint stock company, partnership, association or other entity or any group thereof or any officer, employee or agent thereof.
(j) (k) "Regulated entity" shall mean any person including a federal, state or municipal agency or facility, regulated under federal or state environmental laws.
(l) "Secondary violation" shall mean a violation that poses no actual threat or a low potential for threat to human health and the environment.
(k) (m) "Violation" shall mean infraction of or noncompliance with any environmental law enforced or administered by the department.
(i) The system must implement specific policies and procedures for employees and agents that explain how to comply with environmental laws;
(ii) The system must identify those persons or positions within the business that are (A) responsible for monitoring/overseeing compliance, (B) authorized to act to stop violations, achieve compliance, mitigate violations, and (C) responsible to report violations to regulators;
(iii) The system must lay out a procedure for employees to report violations to the business and/or regulators;
(iv) The system must explain how employees are educated about the system and the policies/procedures therein;
(v) The system must layout a procedure for modifying the system itself to prevent reoccurrence of violations.
42-17.8-3. Compliance incentives -- Subject to the exceptions set forth in section 42-17.8-4, when a regulated entity establishes that it has satisfied all of the conditions set forth in sections 42-17.8-5, 42-17.8-6 and 42-17.8-7 and has thoroughly and timely complied with any agreement or consent order entered into with the department to resolve the violations disclosed by the regulated entity, the department shall not:
(1) Assess gravity-based penalties for any violation of environmental laws reported by the regulated entity;
(2) Refer the regulated entity to the attorney general or other governmental authority for civil or criminal prosecution relating to the violation(s) disclosed by the regulated entity; provided, however, that nothing herein shall be construed to limit any attorney-client privilege or deliberative process privilege otherwise provided or established by law; or
(3) Request or use a regulated entity's environmental audit report(s) as a regular means of investigation or as basis for initiating administrative, civil or criminal actions.
42-17.8-4. Exceptions -- No regulated entity shall be entitled to avail itself of the compliance incentives set forth in section 42-17.8-3 where:
(1) The regulated entity fails to comply with the conditions set forth in sections 42-17.8-5, 42-17.8-6 and 42-17.8-7;
(2) The regulated entity's conduct and/or violations demonstrate a willful or knowing or reckless disregard for complying with environmental laws or a management pattern or practice that has the effect of condoning or concealing violations of environmental laws; entity has violated or failed to timely comply with the terms of any judicial or administrative order or consent agreement;
(3) The regulated entity's conduct and/or violations demonstrate:
(a) A willful or intentional disregard for complying with environmental laws;
(b) Gross negligence on the part of the regulated entity; or
(c) A management pattern or practice that has the effect of condoning or concealing violations of environmental laws.
(3) Gross negligence on the part of the regulated entity;
(4) The violation resulted in serious, actual harm or created an imminent and substantial endangerment to human health, public safety or the environment;
(5) The violation(s) in question is a "repeat violation" that has occurred within the past three (3) years at the same facility, or is part of a pattern of federal, state or local violations by the regulated entity. For the purposes of this section, a violation is:
(a) Any violation of federal, state or local environmental law identified in a judicial or administrative order, consent agreement or order, notice of violation or otherwise documented by the department, EPA or other governmental agency, a conviction or plea agreement; or
(b) Any act or omission for which the regulated entity has previously received penalty mitigation from EPA or the department or local agency.
(6) The regulated entity fails to cooperate fully with the department by providing such information as is necessary for the department to determine applicability of this chapter. Cooperation includes, at a minimum, providing the department with all relevant documents, access to the regulated entity's facility(ies) and assistance in investigating the violation and any environmental consequences resulting from the violation.
42-17.8-5. Discovery of environmental noncompliance -- In order to qualify for the compliance incentives set forth in section 42-17.8-3, a regulated entity's discovery of violations must be: (1) Be followed by submission to the department of an accurate and complete documentation regarding how it exercises due diligence to prevent, detect and correct violations according to the criteria for due diligence outlined in section 42-17.8-2; and the result of:
A prearranged environmental audit or regular due diligence activities. With regard to environmental audits, the regulated entity shall provide the department with not less than three (3) business days advance written notice of the anticipated start date of a proposed audit. With regard to due diligence activities, the regulated entity shall provide the department with accurate and complete documentation regarding how it exercises due diligence to prevent, detect and correct violations according to the criteria for due diligence outlined in section 42-17.8-2;
(2) Be the result of voluntary activities and not the result of legally mandated monitoring, sampling or reporting requirement prescribed by environmental law, a judicial or administrative order, or a consent agreement. For example, this chapter shall not apply to: Voluntary activities, not the result of legally mandated monitoring, sampling or reporting requirement prescribed by environmental law, judicial or administrative order, or consent agreement. For example, this chapter shall not apply to:
(a) Emissions violations detected through a continuous emissions monitor (or alternative monitor established in a permit where any such monitoring is required);
(b) Violations of national pollutant discharge elimination system (NPDES) discharge limits detected through required sampling or monitoring;
(c) Violations discovered through a compliance an environmental audit required to be performed by the terms of an administrative or court order or settlement agreement.
SECTION 2. This act shall take effect on July 1, 2001.