environmental results only if the Administrator determines
the innovative strategy agreement is likely to—
(1) in the case of a facility, reduce the actual
emissions per unit of output of any pollutants cov-
ered by the agreement;
(2) in the case of an applicant for which the
condition in paragraph (1) is inapplicable, reduce
the actual level of emissions of a pollutant or set of
pollutants; or
(3) in the case of any applicant, demonstrate
effective new—
(A) methods of pollution prevention, con-
trol of nonpoint source pollution, or resource
conservation; or
(B) monitoring and reporting measures
that would provide greater certainty and public
information about the actual levels of emissions
in a more timely manner.
SEC. 204. CONTENT.
(a) AUTHORITIES.—(1) Under innovative strategy
agreements, the Administrator may—
(A) modify, waive, or replace otherwise applica-
ble agency rules, requirements, policies, or practices;
(B) allow a tiered approach under which moni-
toring and reporting requirements are loosened ini-
tially when emissions are significantly below those
allowable under the agreement and then those re-
quirements increase as actual environmental per-
formance gets closer to the emission, discharge, and
other limitations stipulated in the agreement;
(C) extend permit terms, expedite permit re-
views, or provide multi-media permits;
(D) establish facility-wide limitations on overall
allowable emissions and discharges;
(E) allow third-party or self-certification in lieu
of frequent inspection, provided the sponsor has a
credible environmental management program in
place; and
(F) employ market-based strategies, including
pollution trading credits.
(2) In entering into innovative strategy agreements,
the Administrator shall require stricter monitoring, or
take other appropriate steps, for proposals with greater
uncertainty of meeting their stated environmental goals.
(b) PROHIBITIONS.—The Administrator shall not
enter into any innovative strategy agreement that would—
(1) violate or waive any specific statutory provi-
sion;
(2) waive any rule or regulation under title IV
of the Clean Air Act or under subtitle B of the
Emergency Planning and Community Right to Know
Act of 1986;
(3) result in an increase in emissions, dis-
charges, or other releases above those allowable
under the otherwise applicable regulatory require-
ments; or
(4) address past or ongoing violations or non-
compliance by a participating entity.
(c) SPECIFICATIONS.—A final innovative strategy
agreement approved under section 202(d) shall specify—
(1) any otherwise applicable rules, require-
ments, policies, or practices modified, waived or re-
placed;
(2) the specific environmental goals of the
agreement and the criteria for determining whether
the agreement is meeting those goals;
(3) a description of how compliance with the
agreement will be monitored and enforced, including
any penalties that may be imposed for failure to
carry out the terms of the agreement;
(4) the duration of the agreement and terms for
renewal or extension;
(5) a transition plan for returning to otherwise
applicable rules, policies, requirements, or practices
if the agreement is terminated by the applicant for
any reason or by the Administrator for failure to
meet the agreement’s stated environmental goals,
despite good faith efforts;
(6) a plan for integrating into the agreement
any relevant regulations that are promulgated dur-
ing the duration of the agreement; and
(7) a plan for integrating the innovations in the
agreement into the Agency’s standard practices to
the extent practicable, if the agreement accomplishes
its environmental goals.
SEC. 205. ENFORCEMENT.
(a) ENFORCEMENT.—
(1) ENFORCEABILITY
OF
TERMS
OF
AGREE-
MENT.—Compliance with the terms of an innovative
environmental strategy agreement shall be enforce-
able as provided in the agreement in provisions in-
cluded pursuant to section 204(c)(3).
(2) TRANSITION.—If the Administrator deter-
mines that, despite compliance with the terms of the
agreement, the environmental goals of the agreement
cannot be met, the Administrator shall allow for an
orderly transition back to the otherwise applicable
rules, policies, requirements, or practices, in accord-
ance with section 204(c)(5).
(3) FAILURE TO COMPLY.—The Administrator
may terminate an innovative environmental strategy
agreement, after 30 days’ notice to all parties to the
agreement, if the Administrator determines that
there has been noncompliance with the terms of the
agreement. Upon termination, the parties to the
agreement shall be subject immediately to all Agency
statutes and regulations, including their enforcement
provisions.
(b) CIVIL ACTION.—
(1) IN GENERAL.—Any person may commence
a civil action in the United States District Court for
the District of Columbia against any party who is in
violation of an innovative strategy agreement to re-
quire compliance with such agreement.
(2) TIMING.—No action may be commenced
under paragraph (1) before the date that is 60 days
after the date on which the plaintiff gives notice to
the Administrator of the intent of the plaintiff to
commence the action.
SEC. 206. JUDICIAL REVIEW.
A person other than a signatory to an innovative envi-
ronmental strategy agreement may bring an action in the
appropriate United States Court of Appeals for judicial
review of a decision by the Administrator to enter into
an innovative strategy agreement in any case in which the
agreement was entered into in violation of any provision
of this Act. Such an action must be brought no later than
90 days after the publication of the agreement pursuant
to section 202(d). A decision by the Administrator not to
enter into an agreement shall not be subject to judicial
review.
SEC. 207. GENERAL PROVISIONS.
(a) EFFECT
OF
DECISIONS
BY
THE
ADMINIS-
TRATOR.—A decision by the Administrator to enter into
an agreement under this Act shall not—
(1) affect the validity or applicability of any
rule, requirement, policy, or practice, that is modi-
fied or waived in the agreement with respect to any
entity other than the entity which is subject to the
agreement;
(2) be used as a legal or equitable defense by
any entity not party to the agreement, or by a party
to the agreement as a defense in an action unrelated
to any requirement imposed under the agreement;
(3) limit or affect the Administrator’s authority
to issue new generally applicable regulations or to
apply regulations to the entity that is the subject of
the agreement;
(4) give rise to any claim for damages or com-
pensation in the event of a change in statutes or ap-
plicable regulations; or
(5) be admissible for any purpose in any judi-
cial proceeding other than a proceeding to challenge,
defend, or enforce the agreement.
(b) OTHER AUTHORITY.—Nothing in this Act shall
be construed to affect any authority the Administrator has
through other statutes to experiment with innovative ap-
proaches to regulation. Nothing in this Act shall be con-
strued to affect any innovative approaches in place prior
to the enactment of this Act, including those approved
pursuant to the agreement between the Agency and the
Environmental Council of the States and any rules pro-
mulgated under Project XL.
(c) OTHER FEDERAL AGENCIES.—Nothing in this
Act affects the regulatory or enforcement authority of any
other Federal agency under the laws implemented by the
Federal agency except to the extent provided in an agree-
ment to which the other Federal agency is a party.
(d) GPRA.—The Agency’s plans under the Govern-
ment Performance and Results Act of 1993 (Public Law
103–62; 107 Stat. 285) shall include agency activities
under this title.
(e) CONSULTATION.—
(1) IN GENERAL.—The Administrator shall con-
sult with States, and other interests, in carrying out
each provision of this Act.
(2) SHARING OF INFORMATION.—For purposes
of this Act, Federal documents that are otherwise
privileged may be shared with State co-regulators
without losing their privilege under the Freedom of
Information Act (5 U.S.C. 552).
(3) REGIONAL
OFFICES.—Provisions for the
handling of innovative strategy agreements shall be
incorporated into memoranda of agreement between
Agency regional offices and headquarters.
(f) CONFIDENTIALITY.—Information may be shared
in stakeholder discussions, including those with non-
governmental members, subject to an enforceable con-
fidentiality agreement providing that such information can
still be claimed as confidential business information in
other contexts.
SEC. 208. ANNUAL REPORT.
(a) TIMING.—No later than the first January 31 oc-
curring after the issuance of guidance under Section
202(a), and no later than January 31 in every year there-
after, the Administrator shall submit to the Congress a
report evaluating innovative strategy agreements entered
into under this Act.
(b) CONTENT.—At a minimum the report shall—
(1) briefly describe and evaluate the success of
all innovative strategy agreements in effect at the
time of the report’s submission;
(2) list any innovative strategy agreements ter-
minated during the year prior to the report and the
reasons for those terminations;
(3) describe how the regulatory and monitoring
strategies being used in the innovative strategy
agreements are being incorporated into the Agency’s
other programs;
(4) recommend any statutory changes that
would be needed to allow promising innovative strat-
egy agreements to be completed or would be needed
to incorporate or expand regulatory and monitoring
strategies being proved successful in existing agree-
ments; and
(5) assess the degree to which innovative strat-
egy agreements are improving the nation’s environ-
mental performance and ability to monitor that per-
formance as measured by the environmental indica-
tors developed pursuant to section 102.
SEC. 209. INCENTIVES.
(a) EMPLOYEE
INCENTIVE
AWARDS
FOR
SUP-
PORTING INNOVATION.—Within 120 days after the enact-
ment of this Act, the Administrator shall implement an
employee incentive awards program that rewards employ-
ees and organizational units that demonstrate leadership
in the planning, design, implementation, and evaluation of
innovative environmental strategies and other activities
that result in better environmental performance, greater
economic efficiency in the public and private sectors, and
expedited delivery and improved quality of public services.
(b) FUND FOR INNOVATIVE STRATEGIES.—(1) The
Administrator shall retain any permitting or other fees the
Agency collects from entities that have entered into inno-
vative strategy agreements and such retained amounts
shall be available to the Agency without further appropria-
tion for compliance assistance and enforcement.
(2) Fees received by the agency under this subsection
shall be deposited in a special fund in the United States
Treasury. Amounts in such fund shall remain available
until expended. The Administrator shall submit an annual
report to the Congress regarding the sums deposited in
the fund, the sources thereof, and the actual and proposed
uses thereof.
SEC. 210. STAKEHOLDER PARTICIPATION.
To promote a participatory process that will conform
to the guidelines issued pursuant to section 202(a)(3), the
Administrator is authorized to—
(1) provide travel stipends for nongovernmental
participants in stakeholder processes occurring out-
side their communities;
(2) provide technical support to nongovern-
mental participants in stakeholder processes; and
(3) provide grants to nongovernmental partici-
pants in stakeholder processes to enable them to
consult with technical experts.
SEC. 211. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums
as may be necessary in each fiscal year through fiscal year
2005 to carry out the activities in this title.
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