II

105TH CONGRESS

1ST SESSION S. 1348

To provide for innovative strategies for achieving superior environmental

performance, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 30, 1997

Mr. LIEBERMAN (for himself, Mr. DASCHLE, Mr. MOYNIHAN, and Mr.

KERREY) introduced the following bill; which was read twice and referred

to the Committee on Environment and Public Works

A BILL

To provide for innovative strategies for achieving superior

environmental performance, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Innovative Environ5 mental Strategies Act of 1997’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) superior environmental performance can be

9 achieved in some cases by granting regulated entities

10 the flexibility to develop innovative environmental
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1 strategies for achieving environmental results in

2 partnership with affected stakeholders;

3 (2) innovative environmental strategies also

4 have the potential to—

5 (A) substantially reduce compliance costs;

6 (B) foster cooperative partnerships among

7 industry, government, public interest groups,

8 and local communities;

9 (C) encourage regulated entities to meet

10 and exceed environmental obligations through

11 greater innovation and greater pollution preven12 tion; and

13 (D) increase the involvement of members

14 of the local community and other citizens in de15 cisions relating to the environmental perform16 ance goals and priorities of a facility; and

17 (3) the lessons learned from successful innova18 tive environmental strategies should be incorporated

19 into the broader system of environmental regulation.

20 SEC. 3. DEFINITIONS.

21 In this Act:

22 (1) ADMINISTRATOR.—The term ‘‘Adminis23 trator’’ means the Administrator of the Environ24 mental Protection Agency.
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1 (2) AGENCY.—The term ‘‘agency’’ means the

2 Environmental Protection Agency.

3 (3) AGENCY RULE.—

4 (A) IN GENERAL.—The term ‘‘agency

5 rule’’ means a rule (as defined in section 551

6 of title 5, United States Code) promulgated by

7 the agency.

8 (B) EXCLUSIONS.—The term ‘‘agency

9 rule’’ does not include—

10 (i) an emissions reduction requirement

11 under title IV of the Clean Air Act (42

12 U.S.C. 7651 et seq.); or

13 (ii) a requirement under subtitle B of

14 the Emergency Planning and Community

15 Right to Know Act of 1986 (42 U.S.C.

16 11021 et seq.).

17 (4) PERSON.—The term ‘‘person’’ means an in18 dividual, trust, firm, joint stock company, corpora19 tion (including a government corporation), partner20 ship, association, State, Indian tribe, municipality,

21 commission, political subdivision of a State, inter22 state body, or department, agency, or instrumental23 ity of the United States.
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1 SEC. 4. INNOVATIVE ENVIRONMENTAL STRATEGY AGREE2 MENTS.

3 (a) IN GENERAL.—

4 (1) PROPOSAL.—A person that owns or oper5 ates a facility that is subject to an agency rule, re6 quirement, policy, or practice may submit to the Ad7 ministrator a proposal for an innovative environ8 mental strategy for achieving better environmental

9 results.

10 (2) AGREEMENT.—If the Administrator finds

11 that the requirements of section 7 are met and ap12 proves the proposed strategy, the Administrator may

13 enter into an innovative environmental strategy

14 agreement with respect to the facility.

15 (3) CONTENTS.—An agreement under para16 graph (1)—

17 (A) may—

18 (i) modify or waive otherwise applica19 ble agency rules, requirements, policies, or

20 practices;

21 (ii) establish new environmental

22 standards for a facility; or

23 (iii) establish new requirements not

24 contained in existing agency rules or exist25 ing environmental statutes;
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1 (B) may not contravene the specific terms

2 of a statute; and

3 (C) should further the purposes of applica4 ble environmental statutes.

5 (b) COSPONSOR.—

6 (1) IN GENERAL.—The Administrator shall es7 tablish procedures under which a person other than

8 the owner or operator of a facility may cosponsor a

9 proposal.

10 (2) PRIORITY.—The Administrator shall give

11 priority to proposals co-sponsored by a stakeholder

12 group.

13 SEC. 5. SUBMISSION OF PROPOSAL.

14 (a) CONTENTS OF PROPOSAL.—A proposal for an in15 novative environmental strategy shall be clearly and con16 cisely written and shall—

17 (1) identify any agency rule, requirement, pol18 icy, or practice for which a modification or waiver is

19 sought and any alternative requirement that is pro20 posed;

21 (2) describe the proposed innovative environ22 mental strategy and the facility to which the strat23 egy would pertain; and
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1 (3) demonstrate the manner in which the inno2 vative environmental strategy is expected to meet the

3 requirements of section 7.

4 (b) PRELIMINARY REVIEW.—The Administrator shall

5 review the proposal and determine whether, in the Admin6 istrator’s sole discretion, the proposed strategy is suffi7 ciently promising that the Administrator is prepared to

8 enter into negotiations toward execution of an innovative

9 environmental strategy agreement.

10 (c) NOTIFICATION.—The Administrator shall notify

11 the proponent of a determination under subsection (b) not

12 later than 90 days after submission, unless the proponent

13 agrees to a longer review.

14 SEC. 6. STAKEHOLDER PARTICIPATION PROCESS.

15 (a) IN GENERAL.—The proponent of a proposal

16 under section 5 shall—

17 (1) upon approval of the proposal for negotia18 tion toward an agreement, undertake a stakeholder

19 participation process in accordance with this section;

20 and

21 (2) work to ensure that there is adequate inde22 pendent technical support for an effective stake23 holder process.

24 (b) DEVELOPMENT OF PROCESS.—
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1 (1) IN GENERAL.—The stakeholder participa2 tion process shall be developed by the stakeholders

3 and the proponent, in consultation with the Adminis4 trator.

5 (2) REQUIREMENTS.—The stakeholder partici6 pation process shall—

7 (A) be balanced and representative of in8 terests that may be affected by the proposed

9 strategy;

10 (B) ensure opportunities for public access

11 to the process and make publicly available in a

12 timely manner the proceedings of the stake13 holder participation process, except with respect

14 to confidential business information;

15 (C) establish procedures for conducting the

16 stakeholder participation process, including

17 open meetings as appropriate;

18 (D) if necessary, provide for appropriate

19 agreements to protect confidential business in20 formation; and

21 (E) establish guidelines for the role of

22 stakeholders, individually and as a group or

23 subgroup, in the development of the strategy,

24 including whether the stakeholders have an ad-
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1 visory, consultative, decisionmaking or veto role

2 with respect to the strategy.

3 (c) FACA.—A stakeholder process satisfying the re4 quirements of this section shall not be subject to the re5 quirements of the Federal Advisory Committee Act (5

6 U.S.C. App.).

7 (d) PUBLIC NOTICE OF APPLICATION.—After a pro8 posal is approved for negotiation toward an agreement, the

9 proponent shall provide public notice of the proposal in

10 a manner, approved by the Administrator, that is reason11 ably calculated to reach potentially interested parties in12 cluding—

13 (1) community groups;

14 (2) environmental groups;

15 (3) potentially affected employees;

16 (4) persons living near or working in or near

17 the affected facility; and

18 (5) relevant Federal, State, tribal, and local

19 agencies.

20 (e) PARTICIPATION.—

21 (1) IN GENERAL.—A person that, not later

22 than 60 days after the date on which public notice

23 is first given under subsection (c), notifies the pro24 ponent of the person’s intention to participate in the

25 stakeholder participation process may participate in
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1 the process, except that a person that has a business

2 interest in competition with that of the proponent

3 may be excluded.

4 (2) ADDITIONAL STAKEHOLDERS.—Additional

5 stakeholders may be added by the proponent, the

6 Administrator or the stakeholder group after the

7 stakeholder group is initially constituted in order to

8 ensure full representation of all potentially affected

9 interests throughout the process, including represen10 tation with respect to any new issues that may be

11 raised during the process, and to ensure that appro12 priate expert assistance is available for the stake13 holders.

14 (f) LIMITATION ON NUMBER OF PARTICIPANTS.—

15 (1) IN GENERAL.—In order to provide for a

16 manageable stakeholder process, the Administrator

17 may limit the number of stakeholder participants if

18 the Administrator determines that the stakeholder

19 participants adequately represent, in a balanced

20 manner, the full range of interests (excluding com21 petitive business interests) that may be affected by

22 the innovative environmental strategy.

23 (2) NOTICE.—Before approving a limit on the

24 number of stakeholder participants, the Adminis25 trator shall ensure that appropriate notice was pro-
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1 vided to each of the groups identified in

2 subsection (d).

3 (3) ADDITIONAL STAKEHOLDERS.—Notwith4 standing any limit on the number of stakeholders

5 that may be approved, additional stakeholders may

6 be added to meet the requirements of subsection (e).

7 (g) NEGOTIATION.—After the stakeholder group has

8 been identified, and procedures for the stakeholder process

9 have been agreed on under subsection (b)(2)(E), the pro10 ponent, the stakeholders, and the Administrator shall ini11 tiate the process of negotiating toward an innovative envi12 ronmental strategy agreement.

13 SEC. 7. REQUIREMENTS FOR APPROVAL.

14 (a) IN GENERAL.—The Administrator may enter into

15 an innovative environmental strategy agreement if the Ad16 ministrator determines that—

17 (1) the strategy is expected to achieve better

18 environmental results (as determined under sub19 section (c));

20 (2) the strategy has potential value as a model

21 for future changes in the broader regulatory struc22 ture or as a demonstration of new technologies or

23 measures with potential for reducing pollution on a

24 broader scale;
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1 (3) the strategy provides for access to informa2 tion adequate to enable verification of environmental

3 performance by any interested person;

4 (4) the strategy provides a means and level of

5 accountability, transparency, monitoring, reporting,

6 and public and agency access to information relating

7 to activities being carried out under an innovative

8 environmental strategy that is at least equivalent to

9 that provided under the agency rule, requirement,

10 policy, or practice that the agreement seeks to mod11 ify or waive, including reporting of the benchmarks

12 in the agreement;

13 (5) no person or populations would be subjected

14 to unjust or disproportionate adverse environmental

15 impacts as a result of implementation of the strat16 egy;

17 (6) the strategy will ensure worker health and

18 safety protections that are the same or superior to

19 those provided under existing law;

20 (7) the strategy is not expected to result in ad21 verse transport of a pollutant;

22 (8) any Federal, State, tribal, or local environ23 mental agencies required to be signatories under sec24 tion 8(c) are prepared to sign the agreement and the
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1 consultation required under section 8(c)(3) has oc2 curred;

3 (9) the stakeholder participation process met

4 the requirements of section 6, and the stakeholders

5 have obtained adequate independent technical sup6 port for an effective process;

7 (10) there is broad community support for the

8 strategy, as shown by stakeholder support and other

9 relevant factors; and

10 (11) the strategy is expected to reduce regu11 latory burdens or provide other social or economic

12 benefits.

13 (b) OTHER CONSIDERATIONS.—In determining

14 whether to enter into an agreement, or to negotiate toward

15 an agreement, the Administrator shall consider—

16 (1) whether the facility has a strong record of

17 compliance with environmental and public health

18 regulations and whether the proponent has dem19 onstrated a strong commitment to achieve pollution

20 prevention with respect to the facility;

21 (2) the extent to which the strategy involves

22 new approaches to environmental protection and

23 multimedia pollution prevention;
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1 (3) the extent to which there is a link between

2 the modification or waiver sought, the better envi3 ronmental results expected, and other benefits; and

4 (4) the feasibility of the strategy and the ability

5 of the proponent to carry out the strategy.

6 (c) BETTER ENVIRONMENTAL RESULTS.—

7 (1) EVALUATION.—The Administrator shall de8 termine whether a strategy is expected to achieve

9 better environmental results based on the magnitude

10 of reduction in the level of releases or improvement

11 in pollution prevention relative to each benchmark

12 established under paragraphs (4) through (7);

13 (2) OTHER CONSIDERATIONS.—In addition to

14 making the determination under paragraph (1), the

15 Administrator shall evaluate the extent to which the

16 strategy—

17 (A) results in environmental performance

18 more protective than the best performance prac19 tice of comparable facilities;

20 (B) relies on pollution prevention;

21 (C) incorporates continuous improvement

22 toward ambitious quantitative environmental

23 goals;
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1 (D) produces clear reduction of risk, based

2 on a well-accepted analytical method acceptable

3 to the Administrator and the stakeholders;

4 (E) improves environmental conditions

5 that are priorities to stakeholders, including

6 conditions not regulated under statutes admin7 istered by the agency;

8 (F) reflects historic demonstration of lead9 ership in environmental performance of the fa10 cility;

11 (G) substantially addresses community and

12 public health priorities of concern to stakehold13 ers, including concerns not addressed under

14 statutes administered by the agency;

15 (H) addresses other factors that the Ad16 ministrator determines clearly improve environ17 mental performance in the context of a specific

18 strategy; and

19 (I) includes reductions in releases or im20 provement in pollution prevention in addition to

21 those considered by the Administrator for pur22 poses of paragraph (1).

23 (3) FINDINGS.—The Administrator shall pro24 vide findings setting forth the basis for the deter25 mination that the innovative environmental strategy
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1 is expected to achieve better environmental results.

2 If the Administrator determines that the magnitude

3 of reduction in the level of releases or improvement

4 in pollution prevention would be a reduction or im5 provement, but not a significant reduction or im6 provement, the Administrator may approve a pro7 posal only if the Administrator determines that the

8 strategy is expected to result in a clear and substan9 tial improvement in environmental protection, con10 sidering the other factors in this subsection.

11 (4) BENCHMARK.—The benchmark for releases

12 of each pollutant into the air, water, or land shall

13 be as follows:

14 (A) EXISTING FACILITIES.—For existing

15 facilities, the benchmark shall be the lesser of—

16 (i) the level of releases of each pollut17 ant into the air, water, or land being

18 achieved before the date of submission of

19 the proposal; or

20 (ii) the level of releases of each pollut21 ant into the air, water, or land allowed

22 under applicable regulatory requirements

23 and any reasonably anticipated future reg24 ulatory requirements;
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1 except that the Administrator may, based on

2 extraordinary site-specific circumstances, mod3 ify the level under subparagraph (A)(i) on a

4 case by case basis for a facility that has re5 duced releases significantly below applicable

6 regulatory requirements before the date of sub7 mission of the proposal.

8 (B) NEW OR MODIFIED FACILITIES.—For

9 new or significantly expanded facilities, the

10 benchmark shall be based on the lesser of—

11 (i) the level of releases of each pollut12 ant into the air, water, or land allowed

13 under applicable regulatory requirements

14 and any reasonably anticipated future reg15 ulatory requirements; or

16 (ii) the level of releases of each pollut17 ant into the air, water, or land based on

18 best industry practices.

19 (5) POLLUTION PREVENTION.—

20 (A) NO RELEASE OF A POLLUTANT.—In

21 appropriate circumstances not involving release

22 of a pollutant, the Administrator may establish

23 a pollution prevention benchmark to evaluate

24 changes in inputs to production of materials or
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1 substances of potential environmental or public

2 health concern.

3 (B) RELEASE OF A POLLUTANT.—In cir4 cumstances involving a release of a pollutant,

5 the Administrator may establish a pollution

6 prevention benchmark in addition to the bench7 mark under paragraph (4).

8 (6) BASIS OF MEASUREMENT.—A benchmark

9 may be established on the basis of total emissions,

10 on a per-unit of production basis, or on a com11 parable basis of measurement, as determined by the

12 Administrator.

13 (7) OTHER CONSIDERATIONS.—The Adminis14 trator may determine that the requirements of this

15 section are met if a benchmark is not met, if—

16 (A) with respect to other benchmarks, the

17 strategy achieves a significant increment of re18 duced level of releases below that permitted by

19 the benchmark;

20 (B) the strategy, based on a well-estab21 lished analytic methodology acceptable to the

22 Administrator and the stakeholders—

23 (i) is expected to achieve overall better

24 environmental results with an adequate

25 margin of safety;
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1 (ii) is not expected to result in an in2 crease in the risk of adverse effects, or

3 shift the risk of adverse effects, to the

4 health of an individual, population, or nat5 ural resource affected by the strategy; and

6 (iii) is expected to achieve clear risk

7 reduction; and

8 (C) the strategy is not expected to result

9 in an exceedance of an ecological, health, or

10 risk-based environmental standard.

11 (d) VIEWS OF STAKEHOLDERS.—

12 (1) IN GENERAL.—The Administrator shall give

13 great weight to the views of individual stakeholders

14 and to the stakeholders as a group in determining

15 whether to approve or disapprove a strategy.

16 (2) STAKEHOLDERS WITH DECISIONMAKING

17 ROLE.—The Administrator shall deny a proposal

18 if—

19 (A) the stakeholder group and the pro20 ponent have determined under section 6 that

21 the group, any subgroup, or 1 or more individ22 ual stakeholders in the group will have the abil23 ity to veto a decision by the proponent to go

24 forward with the strategy;
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1 (B) the group or 1 or more stakeholders

2 objects to the strategy; and

3 (C) the Administrator determines that the

4 objection relates to the criteria stated in section

5 7 and that the objection has a clear and reason6 able foundation.

7 SEC. 8. FINAL DETERMINATION ON AGREEMENT.

8 (a) PROPOSAL.—

9 (1) IN GENERAL.—Not later than 180 days

10 after the date on which negotiations are initiated

11 under section 6(g) or such later date as may be

12 agreed to by the proponent and the stakeholders, the

13 Administrator shall—

14 (A) provide public notice and opportunity

15 to comment on a proposed innovative environ16 mental strategy agreement; or

17 (B) notify the proponent and the stake18 holder group that the Administrator does not

19 intend to enter into an agreement.

20 (2) FORM OF NOTICE.—Public notice under

21 paragraph (1) shall be provided by—

22 (A) publishing a notice in the Federal Reg23 ister; and
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1 (B) providing public notice to persons po2 tentially interested in the strategy in the man3 ner described in section 6(d).

4 (3) COMMENT PERIOD.—The public comment

5 period shall be not less than 30 days, and shall be

6 extended by an additional 30 days if an extension is

7 requested by any person not later than 15 days after

8 the beginning of the public comment period.

9 (b) FINAL DECISION.—

10 (1) IN GENERAL.—Not later than 60 days after

11 the end of the public comment period, the Adminis12 trator shall determine whether to enter into an

13 agreement, and shall give notice of the determina14 tion in the same manner as notice was given of the

15 proposed agreement.

16 (2) RESPONSE.—The Administrator—

17 (A) shall respond to comments received;

18 and

19 (B) may modify the agreement in response

20 to the comments.

21 (c) SIGNATORIES.—

22 (1) IN GENERAL.—The parties to an innovative

23 environmental strategy agreement—

24 (A) shall include the Administrator, the

25 proponent, and any Federal, State, or local
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1 agency or Indian tribe with jurisdiction over the

2 subject matter of the agreement under this Act;

3 and

4 (B) may include a stakeholder.

5 (2) JOINT RULES REQUIREMENTS AND POLI6 CIES.—If an agreement waives or modifies a rule,

7 requirement, or policy issued by the agency jointly

8 with another Federal agency, the other Federal

9 agency shall be a signatory to the agreement.

10 (3) CONSULTATION.—The Administrator shall

11 consult with and consider the views of any Federal

12 agency with management responsibility or regulatory

13 or enforcement authority over land or natural re14 sources that may be affected by the strategy.

15 SEC. 9. STATE ROLE.

16 (a) IN GENERAL.—If a proposed strategy involves

17 waiving or modifying requirements imposed under State,

18 tribal, or local law, the Administrator shall not approve

19 an agreement unless procedures required under those laws

20 for such waiver or modification are followed in addition

21 to the execution of the innovative environmental strategy

22 agreement.

23 (b) PART OF FEDERAL PROGRAM.—If a proposed

24 strategy involves waiving or modifying requirements of

25 State, tribal, or local law that are part of an authorized
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1 or delegated Federal program, execution of an innovative

2 environmental strategy agreement by the Administrator

3 and by the State, Indian tribe, or local government shall

4 be deemed to provide authorization or approval of the pro5 gram as modified by the agreement.

6 SEC. 10. ENFORCEABILITY.

7 (a) SPECIFICATION OF ENFORCEABLE PROVI8 SIONS.—

9 (1) DEFINITION OF VOLUNTARY COMMIT10 MENT.—In this section, the term ‘‘voluntary com11 mitment’’ means a commitment that the parties to

12 the agreement consider to be a necessary part of the

13 strategy but is not enforceable under this section.

14 (2) INCLUSION IN AGREEMENT.—An innovative

15 environmental strategy agreement shall include en16 forceable requirements and may include voluntary

17 commitments.

18 (3) ENFORCEABLE REQUIREMENTS.—

19 (A) IDENTIFICATION.—Enforceable re20 quirements shall be clearly identified and distin21 guished in the agreement from voluntary com22 mitments.

23 (B) INCLUSION OF ALL NECESSARY AC24 TIONS.—In all cases, enforceable requirements

25 shall include, at a minimum, all actions nec-
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1 essary to achieve better environmental results

2 relied upon by the Administrator for purposes

3 of section 7(c)(1), and all accountability, mon4 itoring, reporting, and public and agency access

5 requirements mandated by paragraphs (3) and

6 (4) of section 7(a).

7 (4) VOLUNTARY COMMITMENTS.—Failure to

8 implement a voluntary commitment may constitute a

9 ground for termination of the agreement.

10 (b) TREATMENT OF AGREEMENT AS PERMIT, CONDI11 TION, OR REQUIREMENT.—

12 (1) DEFINITION OF OTHERWISE APPLICABLE

13 REQUIREMENT.—In this subsection, the term ‘‘oth14 erwise-applicable requirement’’ means a rule, permit,

15 condition, policy, practice, or other requirement that

16 an innovative environmental strategy agreement

17 modifies, waives, or replaces.

18 (2) IDENTIFICATION OF ENFORCEABLE RE19 QUIREMENTS.—An innovative environmental strat20 egy agreement shall state in a separate section des21 ignated ‘‘Enforceable Requirements’’ all of the en22 forceable requirements of the agreement.

23 (3) IDENTIFICATION OF MODIFIED, OTHERWISE

24 WAIVED OR RELOCATED REQUIREMENTS.—An inno25 vative environmental strategy agreement shall iden-
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1 tify (including citation to the specific provision of a

2 statute or rule), with respect to each enforceable re3 quirement, each otherwise-applicable requirement

4 that the agreement waives, modifies, or replaces.

5 (4) TREATMENT.—Each enforceable require6 ment shall be deemed, for purposes of enforcement,

7 to be a permit issued under, a condition imposed by,

8 or a requirement of the statute or rule under which

9 the otherwise-applicable requirement that the agree10 ment modifies, waives, or replaces was imposed.

11 (5) ENFORCEABILITY.—Each enforceable re12 quirement shall be enforceable in the same manner

13 and to the same extent (by the United States, by a

14 State or Indian tribe, or by any other person) as the

15 otherwise-applicable requirement would have been

16 enforceable but for the agreement.

17 (6) NEW ENFORCEABLE REQUIREMENT DE18 RIVED FROM OR IMPOSED UNDER CURRENT LAW.—

19 An enforceable requirement that does not modify,

20 waive, or replace a requirement shall be enforceable

21 in the same manner and to the same extent as a

22 permit, condition, or requirement under the statute

23 or rule from or under which the enforceable require24 ment derives or is imposed.
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1 (7) ENFORCEABLE REQUIREMENT THAT DOES

2 NOT MODIFY, WAIVE, OR REPLACE ANOTHER RE3 QUIREMENT.—If an enforceable requirement does

4 not derive from or is not imposed under any statu5 tory or regulatory provision, the agreement shall

6 specify the statute under which the enforceable re7 quirement shall be deemed to be imposed for pur8 poses of enforcement and shall be enforceable (by

9 the United States, a State, Indian tribe, and by

10 other persons) in the same manner and to the same

11 extent as a permit, condition, or requirement under

12 that statute or regulation.

13 (8) EMERGENCY OR IMMINENT HAZARD AU14 THORITY.—Nothing in this Act limits or affects the

15 Administrator’s emergency or imminent hazard au16 thorities.

17 (c) SPECIFICATION OF AFFECTED REQUIRE18 MENTS.—

19 (1) IN GENERAL.—When the Administrator ap20 proves an innovative environmental strategy agree21 ment under subsection (a), the Administrator shall

22 specify in the agreement each rule, requirement, pol23 icy, or practice that is modified or waived by the in24 novative agreement.
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1 (2) NO MODIFICATION OR WAIVER.—Each rule,

2 requirement, policy, or practice not specified pursu3 ant to the preceding sentence is not modified and

4 waived.

5 (d) TERMINATION OR MODIFICATION OF AGREE6 MENT.—

7 (1) IN GENERAL.—The Administrator may ter8 minate or modify an innovative environmental strat9 egy agreement if the Administrator determines

10 that—

11 (A) the strategy fails or will fail to achieve

12 the better environmental results identified pur13 suant to section 7;

14 (B) better environmental results are no

15 longer being achieved by the strategy by reason

16 of the enactment of a new provision of law or

17 promulgation of a new regulation;

18 (C) there has been noncompliance with the

19 terms of the agreement (including a voluntary

20 commitment);

21 (D) there has been a change or transfer in

22 ownership or operational control of the facility

23 to which the agreement relates, or a material

24 change, alteration, or addition to the facility; or
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1 (E) any other event specified in the agree2 ment as a ground for termination or modifica3 tion has occurred.

4 (2) EFFECT.—On termination of an innovative

5 environmental strategy agreement, the owner or op6 erator of the facility to which the agreement related

7 shall immediately become subject to each otherwise8 applicable requirement (as defined in subsection

9 (b)).

10 (e) TERM OF AGREEMENT.—

11 (1) IN GENERAL.—The term of an innovative

12 environmental strategy agreement shall not exceed 5

13 years, unless the Administrator determines, after

14 considering the views of the stakeholders, that—

15 (A) a longer period of time is required—

16 (i) to achieve the better environmental

17 results identified under section 7; or

18 (ii) in a case in which a proponent is

19 making a substantial investment in reli20 ance on the agreement, to ensure a reason21 able degree of confidence that the invest22 ment will be recovered; and

23 (B) the requirements of section 7 continue

24 to be met.
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1 (2) EXTENSION OR RENEWAL.—In consultation

2 with the stakeholders and with the concurrence of

3 the signatories to the agreement and after public no4 tice and opportunity for comment consistent with

5 section 8, the Administrator may extend or renew an

6 agreement for an additional term or terms, but the

7 Administrator may not extend or renew an agree8 ment if the extension or renewal would not further

9 the purposes of this Act or the strategy would no

10 longer meet the requirements of section 7.

11 SEC. 11. JUDICIAL REVIEW.

12 (a) FAILURE TO PERFORM NONDISCRETIONARY ACT

13 OR DUTY.—

14 (1) IN GENERAL.—Any person may commence

15 a civil action in the United States District Court for

16 the District of Columbia against the Administrator

17 for failure to perform an act or duty under this Act

18 that is not discretionary with the Administrator.

19 (2) TIMING.—No action may be commenced

20 under subsection (a) before the date that is 60 days

21 after the date on which the plaintiff gives notice to

22 the Administrator of the act or duty that the Ad23 ministrator has failed to perform and of the intent

24 of the plaintiff to commence the action.

25 (b) DECISION TO ENTER INTO AGREEMENT.—
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1 (1) IN GENERAL.—A person other than a signa2 tory to an innovative environmental strategy agree3 ment may seek judicial review of a decision by the

4 Administrator to enter into such an agreement in

5 accordance with chapter 7 of title 5, United States

6 Code.

7 (2) APPEAL.—A petition on appeal of a judg8 ment in a civil action under this subsection shall be

9 filed in the United States Court of Appeals for the

10 District of Columbia Circuit not later than 90 days

11 after the date on which public notice of the decision

12 to enter into the agreement is published under sec13 tion 8(b).

14 (c) NO JUDICIAL REVIEW OF OR RECORD JUSTIFICA15 TION FOR DECISION NOT TO ENTER INTO AGREE16 MENT.—A decision not to enter into, modify, renew, or

17 enter into negotiations toward an innovative environ18 mental strategy agreement and decisions under section 6

19 regarding the stakeholder process shall not be subject to

20 judicial review and shall not require record justification

21 by the Administrator.

22 SEC. 12. LIMITATION ON NUMBER OF AGREEMENTS.

23 (a) IN GENERAL.—The Administrator shall not enter

24 into more than 50 innovative environmental strategy

25 agreements unless, in the Administrator’s sole discretion,
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1 and taking into account the full range of the agency’s obli2 gations, the Administrator determines that adequate re3 sources exist to enter into a greater number of agree4 ments.

5 (b) LIMIT.—The Administrator, in the Administra6 tor’s sole discretion, may limit the number of agreements

7 to less than 50.

8 (c) PRIORITY CONSIDERATION DIVERSITY.—The Ad9 ministrator shall—

10 (1) give priority consideration to proposals from

11 small businesses; and

12 (2) seek to ensure that the agreements entered

13 into reflect proposals from a diversity of industrial

14 sectors, particularly from sectors where there is sig15 nificant potential for environmental improvement.

16 SEC. 13. SMALL BUSINESS PROPOSALS.

17 The Administrator shall establish a program to facili18 tate development of proposals for innovative environ19 mental strategies from small businesses and groups of

20 small businesses and to provide for expedited and tailored

21 review of such proposals.

22 SEC. 14. SAVINGS CLAUSE.

23 (a) EFFECT OF DECISIONS BY THE ADMINIS24 TRATOR.—A decision by the Administrator to enter into

25 an agreement under this Act shall not affect the validity
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1 or applicability of any rule, requirement, policy, or prac2 tice, that is modified or waived in the agreement with re3 spect to any facility other than the facility that is subject

4 to the agreement.

5 (b) OTHER AGREEMENTS.—Nothing in this Act af6 fects the authority of the Administrator in existence on

7 the date of enactment of this Act to enter into or carry

8 out agreements providing for innovative environmental

9 strategies or affects any other existing authority under

10 which the Administrator may undertake innovative initia11 tives.

12 (c) OTHER FEDERAL AGENCIES.—Nothing in this

13 Act affects the regulatory or enforcement authority of any

14 other Federal agency under the laws implemented by the

15 Federal agency except to the extent provided in an agree16 ment to which the other Federal agency is a party.

17 (d) LIMITS ON PURPOSES AND USES OF AGREE18 MENTS.—An agreement under this Act—

19 (1) may not be adopted for the purpose of cur20 ing or addressing past or ongoing violations or non21 compliance at a participating facility;

22 (2) may not be used as a legal or equitable de23 fense by any party or facility not party to the agree24 ment, or by a party to the agreement as a defense
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1 in an action unrelated to any requirement imposed

2 under the agreement;

3 (3) shall not limit or affect the Administrator’s

4 authority to issue new generally applicable regula5 tions or to apply regulations to the facility that is

6 the subject of the agreement;

7 (4) shall not give rise to any claim for damages

8 or compensation in the event of a change in statutes

9 or regulations applicable to such facility; and

10 (5) shall not be admissible for any purpose in

11 any judicial proceeding other than a proceeding to

12 challenge, defend, or enforce the agreement.

13 (e) APPLICABLE LAW.—

14 (1) CONTRACT LAW.—An innovative environ15 mental strategy agreement—

16 (A) shall not be interpreted or applied ac17 cording to contract law principles; and

18 (B) shall not be subject to contract or

19 other common law defenses.

20 (2) OSHA.—For purposes of section 4(b)(1) of

21 the Occupational Safety and Health Act of 1970 (29

22 U.S.C. 653(b)(1)), the exercise by the Administrator

23 of any authority under this Act shall not be deemed

24 to constitute or exercise of authority to prescribe or
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1 enforce a standard or regulation affecting occupa2 tional safety or health.

3 SEC. 15. EVALUATION AND REPORT.

4 (a) EVALUATION.—The Administrator shall establish

5 an ongoing process with public participation to—

6 (1) evaluate lessons learned from innovative en7 vironmental strategies; and

8 (2) determine whether the approaches embodied

9 in an innovative environmental strategy should be

10 proposed for incorporation in an agency rule.

11 (b) REPORTS.—

12 (1) INDIVIDUAL STRATEGIES.—Not later than

13 18 months after entering into an innovative environ14 mental strategy agreement, the Administrator shall

15 submit to Congress a report evaluating whether the

16 approaches embodied in an innovative environmental

17 strategy should be proposed for incorporation in a

18 statute or a regulation.

19 (2) AGGREGATE EFFECT.—Not later than 3

20 years after the date of enactment of this Act, the

21 Administrator shall submit to Congress a report on

22 the aggregate effect of the innovative environmental

23 strategy agreements entered into under this Act, in24 cluding—
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1 (A) the number and characteristics of the

2 agreements;

3 (B) estimates of the environmental and

4 public health benefits, including any reductions

5 in quantities or types of emissions and wastes

6 generated;

7 (C) estimates of the effect on compliance

8 costs;

9 (D) the degree and nature of public par10 ticipation and accountability;

11 (E) estimates of nonenvironmental benefits

12 obtained;

13 (F) conclusions on the functioning of the

14 stakeholder participation process; and

15 (G) a comparison of effectiveness of the

16 program relative to comparable State programs,

17 using comparable performance measures.

18 SEC. 16. IMPLEMENTATION AUTHORITY.

19 The Administrator may issue such regulations as are

20 necessary to carry out the agency’s functions under this

21 Act.

22 SEC. 17. TECHNICAL ASSISTANCE GRANTS.

23 The Administrator may establish a program to pro24 vide grants for technical assistance to stakeholder groups.
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1 SEC. 18. AUTHORIZATION OF APPROPRIATIONS.

2 There are authorized to be appropriated to the agen3 cy to carry out this Act $4,000,000 for each of fiscal years

4 1999 through 2003 (including such sums as are necessary

5 to provide technical assistance to stakeholder groups).

Æ