1
ECOS/
EPA
Incentives
Workgroup
Subgroup
3
Evaluation
of
Regulatory
and
Statutory
Options
for
Improving
and
Streamlining
the
Implementation
Process
for
Incentives
I.
Background
The
purpose
of
Subgroup
#
3
is
to
evaluate
potential
regulatory
and
statutory
options
for
improving
and
streamlining
the
implementation
process
for
incentives.
A
continuing
challenge
for
both
the
U.
S.
Environmental
Protection
Agency
(
EPA)
and
states
in
promoting
performancebased
programs
is
whether
to
employ
existing
statutory
and
regulatory
authority,
or
to
advocate
adoption
of
new
authorizing
legislation
or
regulations
to
remove
barriers
to
innovation
and
create
incentives.
Two
areas
of
focus
were
identified
for
this
group:

1.
Identifying
existing
and
proposed
statutory
and
regulatory
paths
to
authorize
and
facilitate
the
development
of
incentives
for
performance­
based
programs.
2.
Analyzing
barriers
to
incentives
implementation
to
improve
the
delivery
of
incentives
to
interested
members.

II.
Research
Conducted
To
support
the
work
of
improving
the
incentives
process,
the
group
conducted
three
research
tasks
including
a
review
of
state
and
federal
authorizing
legislation
for
performance­
based
environmental
leadership
programs;
and
a
survey
of
state
experience
in
implementing
Performance
Track
(
PT)
incentives.

State
Authorizing
Legislation
for
Performance­
Based
Programs
We
first
reviewed
the
authorizing
statutes
for
performance­
based
environmental
leadership
programs
in
16
states
(
see
Attachment
1
for
a
summary).
Based
on
this
review,
state
legislative
activity
regarding
performance­
based
programs
begins
in
1996
and
continues
to
the
present.
Incentives
specified
in
state
statutes
include:
recognition
and
awards;
self­
monitoring,
reporting,
and
certification;
consolidated
and
simplified
reporting
and
monitoring;
deferred
enforcement
and
waiver
of
certain
civil
penalties
provided
that
violations
discovered
in
a
self­
audit
are
corrected
promptly
and
are
not
serious;
preferred
vendor
status;
priority
for
funding;
financial
credits
or
rebates
applied
against
permit
fees;
emission
credits
in
exchange
for
beyondcompliance
performance;
low
priority
inspections;
and
alternative
compliance
approaches.

Alternative
compliance
approaches
require
a
demonstration
of
equivalent
or
better
environmental
performance
to
qualify
for
this
incentive.
States
have
experimented
with
environmental
management
systems
as
an
alternative
to
ensuring
compliance
with
existing
requirements,
provided
alternative
air
permitting
limits
on
a
sector
basis,
and
offered
members
of
leadership
programs
the
opportunity
to
advance
an
alternative
compliance
approach
that
meets
the
requirements
and
approval
of
the
regulatory
agency.
Subgroup
#
2'
s
report
on
"
Better
Incentives"
provides
additional
state
and
federal
examples
of
alternative
compliance
approaches.
2
Federal
Proposed
Legislation
to
Advance
Performance­
Based
Programs
At
the
federal
level,
so
called
"
Second
Generation"
legislation
was
introduced
in
1997
and
1999
in
the
U.
S.
Senate
and
U.
S.
House,
respectively.
Both
the
Senate
and
House
bills
proposed
to
authorize
EPA
to
enter
into
innovative
environmental
agreements
to
encourage
better
or
superior
environmental
performance
and
results.
These
bills
are
still
in
committee.

State
Experience
in
Implementing
Performance
Track
Incentives
We
contacted
states
to
understand
the
drivers
and
challenges
associated
with
state
adoption
of
the
PT
regulatory
incentives
and
their
implementation
(
see
Attachment
2
for
a
summary).
Of
the
13
states
identified
on
our
list
as
having
implemented
one
or
both
of
the
PT
incentives,
we
conducted
interviews
with
Colorado,
North
Carolina,
Oklahoma,
Pennsylvania,
Tennessee,
Virginia,
and
Washington.
Our
findings
from
this
outreach
include:
(
1)
adoption
of
the
incentive
rule
changes
does
not
appear
to
be
an
obstacle
to
implementation;
(
2)
the
need
for
a
working
relationship
and
good
communication
between
the
performance­
based
programs
and
the
media
staff
is
key
to
promoting
and
implementing
incentives
at
the
facility
level;
(
3)
a
limited
number
of
PT
members
are
eligible
and
interested
in
the
incentives;
(
4)
there
is
state
interest
in
a
mechanism
for
providing
PT
incentives
to
members
of
state
leadership
programs;
and
(
5)
the
level
of
engagement
by
EPA
Regional
staff
in
incentives
implementation
varies
considerably.

III.
Recommendations
Our
recommendations
are
separated
into
short­
term
and
long­
term
projects.
The
short
 
term
recommendations
tend
to
focus
more
on
making
incentives
easier
to
implement
once
they've
been
created.
These
recommendations
have
been
incorporated
in
Subgroup
1'
s
Draft
Report:
A
System
for
Identifying,
Developing,
and
Implementing
Incentives
for
Performance
Track
and
State
Programs.

The
long­
term
recommendations
are
just
that
and
will
require
a
commitment
well
beyond
2005.
Including
these
recommendations
here
is
intended
more
to
keep
the
ideas
on
the
radar
screen
than
to
take
immediate
action.

A.
Short
­
Term
Program
Awareness
Packages
for
Media
Offices:

Based
on
research
concerning
implementation
issues
encountered
with
the
recent
PT
RCRA
and
MACT
incentives
in
various
states,
there
is
a
general
lack
of
awareness
of
PT
and/
or
state
performance­
based
leadership
programs
within
the
various
media
programs
(
air,
water,
waste,
etc).
It
is
our
recommendation
that
a
communications
package
be
prepared
for
distribution
to
regional
PT
and
state
performance
program
representatives.
This
package
would
be
designed
to
assist
PT
and
state
performance
program
representatives
to
enhance
awareness
among
media
program
staff
and
increase
communications
between
key
stakeholders.
It
could
include
information
on
key
contact
personnel,
resources
for
additional
assistance,
templates
for
educational
materials
and/
or
3
a
presentation
on
PT
and
state
programs
that
could
be
customized
to
explain
the
benefits
of
the
program
to
different
audiences.

Incentives
Communications
Packages
for
EPA
Regional
and
State
Staff:

Based
on
research
concerning
implementation
issues
encountered
with
the
recent
PT
RCRA
and
MACT
incentives
in
various
states,
it
is
also
recommended
that
communications
packages
should
be
prepared
for
regional
PT
and
state
performance
program
representatives
in
connection
with
the
launching
of
a
new
incentive.
Packages
could
include
a
summary
of
the
incentive,
recommended
process(
es)
for
implementation,
a
key
contact
within
EPA
if
problems
should
arise,
list
of
members
eligible
for
the
incentive
and
a
fact
sheet
for
eligible
members.
Communication
packages
will
need
to
be
tailored
to
the
type
of
incentive
and
may
not
always
require
the
same
materials.

In
addition
to
providing
communications
packages
to
EPA
Regional
and
State
staff,
it
would
help
states'
PT
outreach
efforts
if
EPA
were
to
send
incentives
information
directly
to
eligible
PT
facilities
as
well,
particularly
in
states
where
ongoing
contact
with
facilities
is
infrequent
either
because
no
state
performance­
based
programs
exists
or
because
there
is
limited
state
support
for
PT.

Model
Legislation
for
States:

A
review
of
state
performance­
based
leadership
programs
revealed
that
state
legislatures
have
often
included
specific
authorizing
authority
for
developing
incentives,
including
alternative
compliance
methods,
as
part
of
performance­
based
programs.
State
environmental
agencies,
therefore,
are
granted
the
requisite
authority
to
reward
members
of
their
leadership
programs.
Ideally,
similar
legislation
at
the
federal
level
would
establish
a
foundation
upon
which
to
build
and
further
the
cause
of
more
PT
incentives
faster.
However,
this
may
be
more
of
a
long­
term
solution.

To
encourage
other
states
to
adopt
legislation
that
authorizes
performance­
based
programs
and
incentives,
we
recommend
preparation
of
a
model
state
statute.
This
model
legislation
could
take
the
best
from
existing
state
performance­
based
program
legislation
such
as
authority
for
developing
incentives,
alternative
compliance
methods,
and
eligibility
for,
and
termination
of,
incentives.
In
addition,
the
model
legislation
could
create
a
path
for
state
performance­
based
programs
to
satisfy
PT
program
requirements,
thereby
creating
the
potential
for
members
in
state
programs
to
be
eligible
for
PT
incentives.
4
B.
Long­
Term
Enabling
Act
Advocates
of
legislative
solutions,
as
opposed
to
regulatory
solutions,
argue
that
uncertain
statutory
foundations
constrain
innovation,
increase
transaction
costs,
1
and
leave
industry
vulnerable
to
potential
EPA
enforcement
action
and
citizen
lawsuits.
Authorization
of
the
PT
program
at
the
federal
level,
including
setting
the
stage
for
incentive
development
and
alternative
compliance
methods
with
such
authorization
being
extended
to
any
equivalent
state
performance­
based
program
could
remove
barriers
to
innovation
and
further
creation
of
incentives
allowing
for
improved
environmental
outcomes
that
cannot
be
achieved
through
the
traditional
means.

At
the
federal
level,
so­
called
"
Second
Generation"
legislation
was
introduced
in
1997
and
1999
in
the
U.
S.
Senate
and
U.
S.
House,
respectively.
Both
the
Senate
and
House
bills
would
authorize
EPA
to
enter
into
innovative
environmental
agreements
to
encourage
better
or
superior
environmental
performance
and
results,
thereby:

(
1)
eliminating
any
legal
uncertainty
regarding
EPA's
authority
to
implement
innovative
programs,
such
as
the
Performance
Track
program;
and
(
2)
protecting
participating
companies
from
lawsuits.

Both
bills
make
clear
that
the
authority
granted
to
EPA
to
modify
or
waive
requirements
would
not
include
contravention
of
the
"
specific
terms"
of
an
existing
statute.
Thus,
such
an
'
innovations'
statute
is
intended
to
supplement,
not
replace,
existing
environmental
statutes.
Both
of
these
bills
are
currently
still
in
Congressional
committees.
It
will
require
renewed
political
interest
to
garner
support
to
move
these
legislative
initiatives,
or
similar
proposals,
forward.

Equivalency
of
PT
with
State
Programs:

It
is
our
recommendation
that
states
are
granted
authority
to
extend
PT
incentives
to
state
leadership
program
members.
This
would
require
EPA
to
review
state
performancebased
programs
to
determine
whether
a
program
is
equivalent
to
the
acceptance
and
retention
standards
for
PT,
or
allow
states
to
demonstrate
equivalency
based
on
specified
criteria.
This
may
become
a
short­
term
goal
on
its
own
(
pilot
project)
and/
or
it
may
be
combined
with
the
legislation
recommendation
above
for
a
longer­
term
solution.

1
Blackman
and
Mazurek
provide
evidence
that
the
cost
to
firms,
regulators,
and
other
stakeholders
of
developing
site­
specific
environmental
regulations
to
support
innovation
can
be
substantial.
See
Blackman,
Allen
and
Mazurek,
Janice,
"
The
Cost
of
Developing
Site­
Specific
Environmental
Regulations:
Evidence
from
EPA's
Project
XL,"
Resources
for
the
Future,
Discussion
Paper
99­
35­
REV,
March
2000.
5
Draft
Action
Steps
for
Improving
and
Streamlining
the
Incentives
Implementation
Process
Step
in
Process
Who
is
Responsible
Timeframe/
comments
Short­
Term
Recommendations
1.
Develop
program
awareness
packages
for
media
offices.
Performance
Track
team;
State
programs
By
end
of
calendar
year.

2.
Prepare
incentives
communications
packages
for
EPA
Regional
and
State
staff.
Performance
Track
team;
State
programs
Within
2
months
of
finalizing
an
incentive.

3.
Model
legislation
for
States.
Performance
Track
team
with
State
input
and
review.
By
end
of
calendar
year.

Long­
Term
Recommendations
1.
Consider
seeking
support
to
re­
introduce
federal
legislation
for
performance­
based
programs.
Performance
Track
team
and
EPA
management
As
appropriate;
coordinated
2.
Develop
process
for
establishing
equivalency
of
state
performance­
based
programs
to
extend
PT
incentives
to
state
leadership
program
members.
Performance
Track
team;
OGC
and
OECA;
State
programs
As
appropriate;
coordinated
6
Attachment
1
State
Performance­
Based
Environmental
Leadership
Programs:
Summary
of
Incentives
Authorized
by
State
Legislation
To
support
the
EPA/
State
Incentives
workgroup,
we
reviewed
the
authorizing
statutes
for
performance­
based
environmental
leadership
programs
in
16
states.
In
addition,
we
include
three
states
in
which
the
leadership
programs
were
created
pursuant
to
a
gubernatorial
executive
order
(
Delaware),
a
Commissioner's
policy
(
New
York),
or
legislation
that
is
in
process
(
Michigan).
Based
on
this
review,
state
legislative
activity
regarding
performance­
based
programs
begins
in
1996
and
continues
to
the
present
(
see
Table
1).

Table
1:
Date
of
State
Legislation
Authorizing
Performance­
Based
Program
State
Date
of
Passage
of
Legislation
Name
of
Performance­
Based
Program
Arizona
2000
Voluntary
Environmental
Performance
Program
California
1999
Voluntary
Pilot
Program
1998
Environmental
Leadership
Program
Colorado
2004
Environmental
Management
System
Permit
Program
Connecticut
1999
Exemplary
Environmental
Management
Systems
Delaware
2003
Executive
Order
Principles
for
Responsible
Industry
(
PRIDE)

2000
Alternative
Methods
of
Regulatory
Permitting
2002
Citrus
Juice
Processing
Facilities
Florida
2004
Environmental
Award
Program
Illinois
1996
Environmental
Management
System
Agreement
Kentucky
2005
Program
under
development
Maine
2000
Environmental
Leadership
Program
Michigan
2005
Senate
bill
passed
Clean
Corporate
Citizen
Program
Minnesota
XL
Permit
Project
Minnesota
1996
Environmental
Improvement
Program
New
Hampshire
1998
Enhanced
Environmental
Performance
Agreements
New
York
2004
Commissioner's
Policy
New
York
Environmental
Leaders
Oregon
1997
Green
Permits
Program
South
Carolina
2002
Environmental
Excellence
Program
1998
Regulatory
Flexibility
Order
Environmental
Management
Systems
September
2001
Performance­
Based
Regulation
December
2001
Texas
Environmental
Management
System
Program
Texas
2003
Strategically
Directed
Regulatory
Structure
Virginia
2005
Virginia
Environmental
Excellence
Program
West
Virginia
2004
Environmental
Excellence
Program
Wisconsin
2004
Environmental
Results
Program
7
In
particular,
we
reviewed
the
incentives
that
are
specifically
authorized
in
these
states'
legislation.
We
focus
on
statutorily­
authorized
incentives,
rather
than
incentives
created
administratively,
to
understand
the
types
of
incentives
supported
by
state
legislatures
and
to
evaluate
creative
prototypes
that
might
be
more
widely
used
at
the
state
or
federal
levels.
Below
we
provide
some
highlights
of
our
evaluation
of
these
statutes
and
also
attach
a
table
that
provides
the
specifics
for
each
state
including
whether
the
authorizing
legislation
is
permanent
(
or
sunsets
after
a
certain
period
of
time),
a
brief
description
of
the
performance­
based
program
and
a
list
of
specific
incentives,
funding
sources
if
available,
and
a
web
link
to
the
legislation
and/
or
the
program
(
see
Table
2).

Types
of
Incentives
Included
in
State
Statutes
Incentives
specified
in
state
statutes
include:
recognition
and
awards;
self­
monitoring,
reporting,
and
certification;
expedited
review
and
processing
of
permit
applications;
single
point
of
contact
support;
consolidated
and
simplified
reporting
and
monitoring;
deferred
enforcement
and
waiver
of
certain
civil
penalties
provided
that
violations
discovered
in
a
self­
audit
are
corrected
promptly
and
are
not
serious;
preferred
vendor
status;
priority
for
funding;
financial
credits
or
rebates
applied
against
permit
fees;
emission
credits
in
exchange
for
beyondcompliance
performance;
low
priority
inspections;
and
alternative
compliance
approaches.
This
review
demonstrates
a
keen
interest
by
state
legislatures
in
promoting
performance­
based
environmental
programs
with
incentives
for
participants.
We
have
not
evaluated,
however,
how
many
of
these
incentives
are
being
implemented
in
active
programs,
the
specifics
of
each
incentive,
nor
to
what
degree
members
are
benefiting
from
them.

Alternative
Compliance
Approaches
Many
states
offer
alternative
compliance
approaches
to
environmental
leaders
in
lieu
of
conventional
regulatory
and
permitting
systems.
In
all
cases,
equivalent
or
better
environmental
performance
must
be
demonstrated;
whereas
the
mechanisms
to
bind
the
parties
differ
by
state.
In
some
states,
variances
or
waivers
are
available,
and
in
others,
a
consolidated
permitting
agreement
or
participation
contract
is
agreed
upon
and
executed
by
the
participant
and
the
environmental
agency.
Incentives
that
offer
alternative
compliance
approaches
include
the
three
categories
below,
together
with
the
state(
s)
that
offer
each
category:

1.
Environmental
Management
System
Agreements/
Permits:
these
agreements
or
permits
allow
participants
to
use
an
environmental
management
system
as
an
alternative
approach
to
ensure
compliance
with
existing
requirements.
 
Colorado's
EMS
Permit
Program
 
Illinois'
EMS
Agreement
2.
Sector­
Based
Alternative
Air
Permitting:
this
approach
provides
alternative
air
permitting
limits
in
lieu
of
air
operating
and
construction
permits.
 
Florida's
Citrus
Juice
Processors
8
3.
Alternative
Compliance
Approaches
to
Meeting
Existing
Requirements:
this
incentive
offers
members
of
performance­
based
programs
the
opportunity
to
advance
an
alternative
compliance
approach
that
meets
the
requirements
and
approval
of
the
regulatory
agency.
 
Florida's
Alternative
Methods
of
Regulatory
Permitting;
 
Minnesota's
XL
Permit
Project;
 
Minnesota's
Flexible
EMS
Air
Permit;
 
New
Hampshire's
Enhanced
Environmental
Performance
Agreements;
 
Oregon's
Green
Permits
Program;
 
South
Carolina's
Environmental
Excellence
Program;
 
Texas'
Regulatory
Flexibility
Order;
 
Texas'
EMS
Program;
 
Texas'
Strategically
Directed
Regulatory
Structure;
 
Virginia's
Environmental
Excellence
Program;
and
 
Wisconsin's
Environmental
Results
Program.

Conclusion
and
Next
Steps
This
review
demonstrates
that
state
legislatures
have
often
included
specific
authorizing
authority
for
developing
incentives
as
part
of
performance­
based
programs.
State
environmental
agencies,
therefore,
are
granted
the
requisite
authority
to
reward
members
of
their
leadership
programs.
Alternative
compliance
approaches,
for
example,
appear
to
hold
promise
for
innovation
and
may
provide
models
for
performance­
based
programs
at
the
federal
level.
However,
such
approaches
may
prove
to
have
significant
transaction
costs.
To
better
understand
how
these
incentives
have
been
applied
in
practice
and
the
benefits
and
costs
associated
with
each
incentive,
additional
investigations
of
state
programs
and
interviews
of
state
staff
and
program
members
would
be
necessary.
9
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Voluntary
Environmental
Performance
Program:

 
Authorizes
ADEQ
to
enter
into
cooperative
agreements
with
eligible
participants
with
EMS,
procedures
to
achieve
and
maintain
compliance,

mandatory
training
for
employees,
annual
evaluations,
and
system
of
verifiable
measures
to
demonstrate
compliance.

Arizona
Department
of
Environmental
Quality
(
ADEQ)
August
17,
2000
signed
by
the
Governor,
Senate
Bill
1321,
Chapter
263,

amending
Title
49,

Chapter
1
and
adding
Article
5,
§
§
49­
171
to
49­
178.
Program
terminates
on
December
31,
2004.
Incentives:

 
Formal
public
recognition
by
the
Governor,
including
preferred
vendor
status,
awards,
public
announcements,
and
press
releases.

 
Self­
monitoring,
reporting,
and
certification,
or
third­
party
certification
 
Accelerated
review
and
processing
of
permit
applications
 
single
point­
of­
contact
for
permitting
 
Consolidation
and
simplification
of
reporting
and
monitoring
requirements
 
Extension
of
permit
terms
up
to
maximum
allowed
by
law
 
Total
or
partial
waiver
of
civil
penalties
after
cooperative
agreement
signed,
provided
certain
exceptions
are
not
triggered.
§
49­
177
of
the
legislation
states
that
donations
made
for
the
purpose
of
funding
this
program
shall
be
made
directly
to
the
State
Treasurer.
http://
www.
azleg.
state.
az.
us/
legtext/
44
leg/
2r/
laws/
0263.
htm
Voluntary
Pilot
Program:

 
Establish
no
more
than
8
pilots
to
evaluate
whether
use
of
EMS
increases
public
health
and
environmental
protection
beyond
conventional
permitting
and
provides
better
public
information.

 
Voluntary
program
 
No
waiver
of
existing
requirements.

 
Explore
regulatory
track
for
high
performing
organizations
with
the
following
criteria:

(
1)
compliance
with
all
applicable
regulatory
standards
must
be
assured,

with
preference
to
be
given
to
systems
that
achieve
performance
significantly
beyond
that
required
by
existing
law;

(
2)
information
accessible
to
the
public
should
be
enhanced;
and
(
3)
system
should
be
simpler
and
more
efficient
means
of
producing
better
environmental
results
and
information;
thereby
providing
significant
value
to
agencies,
public,
and
the
regulated
community.

California
Environmental
Protection
Agency
July
6,
1999
Assembly
Bill
1102
(
Stats.
1999,
Ch.
65)

codified
in
Public
Resources
Code
(
PRC),
§
71045
et
seq.
(
AM
1102).

Sunset
January
1,

2002
Incentives:

 
Potential
cost
savings
associated
with
EMS
adoption,
but
no
specific
incentives
provided
in
legislation.
annual
appropriation
http://
www.
calepa.
ca.
gov/
EMS/
Public
ations/
2003/
LegReport/
10
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
May
26,
1998
House
Bill
98­
1058,

codified
in
§
§
25­
6.7­

101
to
25­
6.7­
110
of
the
Colorado
Revised
Statutes.
Sunset
on
December
31,
2003,

but
program
continues
to
be
supported
by
CDPHE.
Environmental
Leadership
Program:

 
Establish
voluntary
program
for
environmental
leaders
after
consultation
with
stakeholders.

 
Participation
is
subject
to
review
every
3
years.

 
Establish
mandatory
and
alternative
elective
program
elements
that
include
verifiable
methods
to
measure
progress.

Incentives:

 
Formal
recognition
 
Referred
vendor
status
 
Awards
&
news
releases
 
Potential
for
fewer
inspections
 
Expedited
permitting
 
Consolidated
reporting
and
monitoring
 
Extended
permit
terms
 
Emission
credits
in
exchange
for
beyond­
compliance
performance
 
Priority
for
funding
 
Financial
credits
or
rebates
based
on
percentage
of
permit
fees
 
Eligible
for
P2
revolving
fund
annual
appropriation
($
493,980
for
first
year)
http://
www.
state.
co.
us/
gov_
dir/
leg_
dir/

olls?
s11998/
sl.
235.
htm
A
complete
list
of
CDPHE
incentives
may
be
found
at:

http://
www.
cdphe.
state.
co.
us/
el/
elp/
inc
entivestable.
pdf
Environmental
Management
System
Permit
Program:

 
Authorizes
CDPHE
to
implement
a
voluntary
EMS
program
that
allows
limited
number
of
participants
to
be
determined
by
CDPHE.

 
EMS
Permit
will
allow
participants
to
use
alternative
approaches
to
ensure
compliance
with
existing
requirements.

Colorado
Department
of
Public
Health
and
the
Environment
(
CHDPHE)
April
19,
2004
Colo.
Rev.
Stat.

§
25­
6.6
House
Bill
04­
1147
Incentives:

 
Ability
to
develop
alternative
compliance
approaches.

 
Potential
for
reducing
administrative
burdens
of
participants
and
permitting
authorities.
Same
fee
provisions
as
otherwise
applicable.
http://
www.
cdphe.
state.
co.
us/
el/
EMS/
e
mspermit/

Exemplary
Environmental
Management
Systems:

 
Establish
pilot
program
to
support
businesses
with
EMS
that
are
seeking
permit
or
other
approval.

Connecticut
Department
of
Environmental
Protection
June
29,
1999
Public
Act
No.
99­
226
Incentives:

 
Expedited
permitting
 
Public
recognition
which
may
include
leadership
seal
or
symbol
 
Potential
for
reduced
reporting
 
Facility­
wide
permit
 
Plant
wide
emissions
limits
or
emissions
caps
 
Reduced
permitting
fees.

 
Certificate
issued
by
Commissioner.
Not
addressed
in
legislation.
http://
cga.
ct.
gov/
ps99/
Act/
pa/
1999PA­

00226­
R00HB­
06830­
PA.
htm
11
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Principles
for
Responsible
Industry
(
PRIDE)

 
Voluntary
program
for
facilities
to
commit
to
specific
actions
to
implement
Principles
for
Responsible
Industry
Delaware
Department
of
Natural
Resources
and
Environmental
Control
May
20,
2003
Executive
Order
44
Incentives:

 
Expedited
or
flexible
permitting
 
Reduced
inspections
 
Awards
Not
addressed
in
Executive
Order.
http://
www.
state.
de.
us/
governor/
orders
/
webexecorder44.
shtml
See
program
website
for
members,
but
no
specific
information
on
incentives.

http://
www.
state.
de.
us/
governor/
pride/
i
ndex.
shtml
Alternative
Methods
of
Regulatory
Permitting:

 
Explore
alternatives
to
traditional
methods
of
regulatory
permitting,

provided
there
is
no
material
increase
in
pollution
emissions
or
discharges.

 
Work
with
stakeholders
to
develop
specific
limited
pilot
projects
to
test
new
compliance
measures.

2000
Title
XXIX
Public
Health
Chapter
403.0611
Incentives:

 
Reduce
transaction
costs.

 
Provide
economic
incentives
for
emissions
reductions.
Not
addressed
in
legislation.

Citrus
Juice
Processing
Facilities:

 
Establishes
experimental
alternative
air
permitting
limits
on
a
sector­
wide
basis
in
lieu
of
NSR
permitting.

 
Requires
evaluation
of
program
to
determine
if
overall
emissions
benefits
equal
or
exceed
conventional
permitting.

Effective
July
1,

2002
F.
S.
03.08725
Regulations
at
F.
A.
C.

Rule
62­
210.340,

December
17,
2002,

amended
November
1,
2004
See
also
70
FR
5928­

5930
(
February
4,

2005)
for
EPA's
conditional
approval
of
SIP
revision.
Incentives:

 
Alternative
compliance
standards
in
lieu
of
obtaining
air
pollution
construction
and
operation
permits.
Same
fee
structure
as
for
title
V
operating
permit
program.

Environmental
Award
Program:

 
FDEP
authorized
to
administer
an
environmental
award
program
to
recognize
efforts
in
the
protection
,
conservation,
or
restoration
of
air,

water,
or
other
natural
resources.

 
FDEP
authorized
to
adopt
rules
to
govern
administration
of
program.

Florida
Department
of
Environmental
Protection
(
FDEP)
2004
Title
XXIX
Fla.
stat.

§
403.414
Incentive:

 
Environmental
award.
Not
addressed
in
legislation.
12
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Environmental
Management
System
Agreement:

 
Authorizes
IEPA
to
execute
Environmental
Management
System
Agreement
(
EMSA)
with
voluntary
pilot
companies
that
demonstrate
innovative
environmental
measures.

 
Pilot
candidate
must
achieve
beyond
compliance
results
or
a
risk
reduction
of
compliance
that
is
clearly
superior
to
the
existing
regulatory
system.

 
Agency
authorized
to
enter
into
an
EMSA
with
any
Performance
Track
member
that
meets
the
program's
criteria.

Illinois
Environmental
Protection
Agency
(
IEPA)
June
13,
1996,
Public
Act
No.
89­
465,

codified
in
415
ILCS
5/
52.3­
3;
January
1,

2002,
Public
Act
No.
92­
397,
codified
in
415
ILCS
5/
52.3­
1
and
52.3­
2;
July
10,

2003,
Public
Act
No.
93­
171,
codified
in
5/
52.3­
1,
52.3­
2,

and
52.3­
4.
Regulations
for
Regulatory
Innovation
Projects
at
35
Ill.
Adm.
Code
187.
Incentives:

 
EMSA
operates
as
alternative
compliance
approach
(
or
facility­
wide
"
permit")
in
lieu
of
applicable
requirements.

 
Authority
to
give
preference
and
allow
greater
incentives
for
pilots
that
include
provisions
for
operating
sustainably
through
continuous
improvements
in
products
and
processes.
Not
addressed
in
legislation.
Illinois
state
statutes
and
regulations
can
be
located
at:
http://

www.
ilga.
gov.

See
also:

http://
www.
epa.
state.
il.
us/

newsreleases
2000­
2000­
106­

regulatoryinnovation
html.

IEPA
issued
its
first
EMSA
in
March
of
2000
to
a
3M
facility
located
in
Bedford
Park.
Based
on
communication
with
IEPA
personnel,

there
may
have
been
one
or
two
other
EMSAs
signed,
but
the
staff
person
who
managed
the
program
retired
in
2002
and
there
has
not
been
much
activity.
The
3M
facility
in
Bedford
Park
is
closed.

Kentucky
Department
of
Environmental
Protection
Anticipates
rolling
out
new
program
in
Fall
2005.
Unclear
if
legislation
is
needed.

Environmental
Leadership
Program:

 
Voluntary
environmental
leadership
program
available
to
eligible
participants
with
EMS,
compliance
audit
program,
P2
program,
system
of
verifiable
measures
to
demonstrate
compliance.

 
Member
must
also
implement
and
maintain
one
or
more
environmental
leadership
actions
specified
in
the
statute.

Maine
Department
of
Environmental
Protection
(
MDEP)
Effective
July
1,

2000
38
MRSA
c.
32
Unable
to
locate
regulations
that
were
to
have
been
adopted
by
July
1,
2002.
Incentives:

 
Dollar
rebates
or
credits
applied
against
permit
fees.

 
Formal
public
recognition
by
Governor
and
MDEP
 
Accelerate
review
and
processing
of
permit
applications.

 
Increased
self­
monitoring,
reporting,
certification,
or
third­
party
certification
to
demonstrate
compliance
 
Extension
of
terms
of
licenses
or
permits
 
Issuance
of
additional
credits
for
emissions
reductions
beyond
minimum
requirements
under
established
trading
or
credit
program.
Environmental
Leadership
Revolving
Loan
Fund
http://
www.
state.
me.
us/
dep/
oc/
steup/
st
ep­
up.
pdf
13
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Clean
Corporate
Citizen
Program:

 
Regulations
establish
voluntary
Clean
Corporate
Citizen
Program
(
C3)

under
MDEQ's
general
authorizing
legislation.

 
Facilities
that
have
demonstrated
environmental
stewardship
and
a
strong
environmental
ethic
are
eligible
to
be
recognized
as
Clean
Corporate
Citizens.

Michigan
Department
of
Environmental
Quality
(
MDEQ)
No
authorizing
statute.
Senate
Bill
0354
(
2005)
has
been
passed
by
the
Senate
on
May
5,
2005
and
was
referred
to
the
House
Committee.

Bill
proposes
to
provide
legislative
authorization
for
the
program.
Regulations
for
Clean
Corporate
Citizen
Program
at
Mich.
Admin.
Code
R324.1501­
1511.

Effective
March
24,

2000
Incentives:

 
Reduced
reporting
and
monitoring
 
Expedited
permits
 
Public
recognition
Senate
Bill
0354
proposes
establishing
a
one­
time,
first
year
$
500
reduction
in
permit
fees
for
each
C3
facility.
For
the
status
of
the
legislation,
see
http://
www.
legislature.
mi.
gov/
mileg.
as
p?
page=
getObject&
objName=
2005­

SB­
0354.

For
the
regulations,
see
http://
www.
michig
an.
gov/
deq/
0,1607,7­
135­

3307_
3666_
4134­
9922­­,
00.
html
Over
100
facilities
have
received
C3
designation
to
date.

Minnesota
Pollution
Control
Agency
March
1996
Environmental
Regulatory
Innovations
Act,

Minn..
Stat.
114C.
01
­

114C.
28,
1995,

amended
1996,
1999,

and
2000.
Act
authorizes
Minnesota
XL
Permit
Project
and
the
Environmental
Improvement
Program.
Minnesota
XL
Permit
Project:

 
Voluntary
pilot
program
authorizing
innovative
and
flexible
regulatory
approaches
that
encourage
facilities
to
implement
effective
P2
strategies
while
complying
with
verifiable
and
enforceable
pollution
limits.

 
Intent
to
consolidate
existing
permit
requirements
into
one
facility­
wide
permit.
Environmental
Improvement
Program
(
also
known
as
Environmental
Audit
Program):

 
Voluntary
program
to
promote
compliance
by
facilities
with
an
EMS.

 
Major
facilities
must
prepare
an
environmental
audit
program
P2
plan
that
analyzes
options
for
technically
and
economically
reducing
pollution.

 
This
individually
issued
state
permit
option
allows
small
and
mediumsized
air
emission
facilities
that
employ
a
qualifying
(
ISO
14001)
EMS
to
operate
under
emission
caps
set
below
federal
thresholds
(
under
100
tons
per
year
for
most
pollutants).
Not
addressed
in
legislation.
http://
www.
revisor.
leg.
state.
mn.
us/
stat
s/
114C/
01.
html
http://
www.
pca.
state.
mn.
us/
programs/
p
rojectxl/
xl­
leg.
pdf
http://
www.
pca.
state.
mn.
us/
programs/
p
rojectxl/
xl_
rpt98.
pdf
http://
www.
pca.
state.
mn.
us/
programs/
e
ms.
html
14
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Incentives:

Minnesota
XL
Permit
Project:

 
Regulatory
flexibility
and
alternative
compliance
methods
 
Less
administrative
burden
for
permitting
authorities
and
facilities.

Environmental
Improvement
Program:

 
Green
Star
recognition
 
Deferred
enforcement
of
90
days
if
facility
is
meeting
performance
schedule
and
is
not
subject
to
exceptions
(
including
criminal
activity
or
causing
serious
harm,
or
imminent
threat,
to
human
health
or
the
environment.

Flexible
EMS
Air
Permit:

 
This
individually
issued
state
permit
option
allows
small
and
mediumsized
air
emission
facilities
that
employ
a
qualifying
(
ISO
14001)
EMS
to
operate
under
emission
caps
set
below
federal
thresholds
(
under
100
tons
per
year
for
most
pollutants).

December
6,
2004.

Flexible
EMS
Air
Permit,
State
Register
Minnesota
Rules
Chapter
7007.
Incentives:

 
Relief
from
minor
and
moderate
permit
amendment
application
requirements
 
Fewer
record
keeping
and
reporting
requirements.
Not
addressed
in
regulation.
http://
www.
revisor.
leg.
state.
mn.
us/
arul
e/
7007/
0100.
html
http://
www.
pca.
state.
mn.
us/
publication
s/
aq2­
30.
pdf
Enhanced
Environmental
Performance
Agreements
(
EEPAs)
:

 
Voluntary
pilot
program
authorizing
innovative,
alternative
compliance
approaches
that
achieve
equal
or
better
environmental
results
than
those
required
under
applicable
requirements.

 
Approved
EEPA
operates
in
lieu
of
existing
permits
identified
in
the
agreement.

New
Hampshire
Department
of
Environmental
Services
Effective
August
23,

1998
N.
H.
Rev.
Stat.
Ann.
§
125­
C:
6­
a
This
program
has
not
been
implemented.
Incentives:

 
Regulatory
flexibility.
Not
addressed
in
legislation.
http://
www.
gencourt.
state.
nh.
us/
rsa/
ht
ml/
X/
125­
C/
125­
C­
6­
a.
htm
New
York
Environmental
Leaders:

 
NYDEC
to
establish
a
voluntary
program
to
reward
organizations
with
high
performing
EMSs
and
a
commitment
to
superior
environmental
performance
that
is
sustained
and
systemic.

 
NYDEC
to
develop
and
use
environmental
performance
improvement
tools
in
the
Department's
enforcement
program.

New
York
Department
of
Environmental
Conservation
(
NYDEC)

Program
under
development.
April
5,
2004
Commissioner's
Policy
(
CP­
34)

Note:
This
program
is
not
authorized
by
a
State
statute
or
regulations.
Incentives:

 
Recognition
NA
http://
www.
dec.
state.
ny.
us/
website/
ppu
/
ems/
index.
html
15
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Green
Permits
Program:

 
Program
to
achieve
significantly
better
environmental
results
than
required
by
law
through
adoption
of
EMS
or
use
of
innovative
approaches
or
strategies.

 
Voluntary
program
with
3
tiers
of
performance
eligibility.

 
Program
also
provides
opportunity
to
obtain
a
custom
waiver
permit.

Oregon
Department
of
Environmental
Quality
(
ODEQ)
1997
ORS
468.501
to
468.521;
and
ORS
553.11.

April
23,
2003
House
Bill
3175
amends
Green
Permits
legislation
to
extend
sunset
of
issuance
of
permits
to
January
2,
2008.

1999
ODEQ
promulgates
regulations
340
OAR
14
Incentives:

 
Regulatory
flexibility
in
the
form
of
exemptions
or
waivers
to
promote
innovative
environmental
approaches.
Applicant
reimburses
ODEQ
for
the
agency's
full
direct
and
indirect
costs
of
developing
and
implementing
the
permit,
not
to
exceed
$
25,000.
http://
www.
leg.
state.
or.
us/
ors/
468.
html
http://
www.
arcweb.
sos.
state.
or.
us/
rules
/
OARs_
300/
OAR_
340/
340_
014.
html
Innovation
in
Environmental
Approaches
(
Environmental
Excellence
Program:

 
Authorizes
SCDHEC
to
enter
into
cooperative
agreements
on
a
pilot
basis
with
up
to
10
eligible
participants
for
up
to
5
years
with
a
possible
5
year
renewal.

 
Eligibility
criteria
include
achieving
emissions/
discharge
reductions
that
exceed
otherwise
applicable
requirements,
providing
for
alternative
compliance
approaches
that
reduce
administrative
burden,
or
achieving
natural
resource
conservation.

 
SCDHEC
authorized
to
grant
variances
from
existing
requirements
if
the
participant
achieves
emission
reductions
which
exceed
applicable
statutory
requirements.

South
Carolina
Department
of
Health
&
Environmental
Control
(
SCDHEC)
May
29,
2002
S.
C.
Code
Ann.
§
§
48­
56­
10
to
48­
56­

160.
Review
of
regulations
did
not
result
in
any
information.
Incentives:

 
Alternative
testing
or
reporting
to
reduce
the
administrative
burden
while
ensuring
compliance.

 
Deferred
enforcement
if
participant
is
diligently
pursuing
compliance
and
correcting
violations
discovered
in
self­
audit,
provided
certain
exceptions
are
not
triggered.
Same
fee
structure
as
would
otherwise
apply
to
facility.
http://
www.
scstatehouse.
net/
code/
t48c
056.
htm
16
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
RFO:
September
20,
1998
30
Tex.
Stat.
Ann.

§
§
90.10
­
90.20
Regulatory
Flexibility
Order
(
RFO):

 
Application
for
RFO
must
include
detailed
description
and
documentation
of
why
the
proposed
alternative
compliance
approach
is
more
protective,
not
inconsistent
with
federal
law,
implementation
schedule,
and
any
proposed
cross­
pollutant
transfers.

 
Public
notice
and
participation
required.
RFO:
Application
fee
of
$
250,
unless
it
is
determined
to
be
significant
and
complex,
in
which
case
the
applicant
must
execute
a
cost
recovery
agreement
with
TCEQ.

Act
relating
to
the
Texas
NRCC
(
predecessor
of
TCEQ):
September
1,
2001
77th
Reg.
Legis.
Sess.

HB
2912
EMS:
§
5.131
Performance­
Based
Reg.
for
Health
and
Safety
Code:
§
§
5.751
­
5.758
Performance­
Based
Reg.
for
Water
Code:

§
§
18.05
­
18.07
Environmental
Management
Systems:

 
Adopt
comprehensive
program
that
provides
incentives
to
encourage
the
use
of
EMSes;
and
integrates
the
use
of
an
EMS
into
TCEQ's
regulatory
programs,
including
permitting,
compliance
assistance,
and
compliance
summaries.
Performance­
Based
Regulation:

 
Authorized
to
adopt
performance­
based
programs
with
reference
to
the
SDRS
and
the
RFO.
Not
directly
addressed
in
legislation.
http://
www.
tnrcc.
state.
tx.
us/
exec/
sbea/

ems/
index.
html
Texas
EMS:

December
16,
2001
30
Tex.
Stat.
Ann.
§
§
90.30
­
90.44
Texas
Environmental
Management
System
Program:

 
Provides
incentives
for
regulated
entities
that
adopt
and
implement
a
results­
based
EMS.
Texas
EMS:

Not
addressed
in
legislation.

Texas
Commission
on
Environmental
Quality
(
TCEQ)
SDRS:

August
14,
2003
30
Tex.
Stat.
Ann.

§
§
90.50
­
90.72
Strategically
Directed
Regulatory
Structure
(
SDRS):

 
Authorizes
TCEQ
to
reward
environmental
performance
with
regulatory
incentives
if
applicant
demonstrates
beyond
compliance
under
the
Texas
Water
Code
or
the
Texas
Health
and
Safety
Code,
is
eligible
for
an
RFO,

the
Texas
EMS
Program,
the
flexible
air
permit
program,
a
voluntary
program
administered
by
the
Small
Business
and
Environmental
Assistance
Division,
or
programs
authorized
as
innovative
by
the
executive
director.
Texas
SDRS:
Not
addressed
in
legislation.
17
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Incentives:

Regulatory
Flexibility
Order:

 
Approved
alternative
compliance
approaches
Texas
EMS
Program
and
Strategically
Directed
Regulatory
Structure:

 
Public
recognition
 
Eligible
for
regulatory
flexibility
 
On­
site
technical
assistance
 
Accelerated
access
to
program
information
 
Modification
of
state
or
federal
regulatory
requirements
that
do
not
change
emission
or
discharge
limits
 
Low
priority
inspection
frequency
Strategically
Directed
Regulatory
Structure:

 
In
addition
to
those
cited
above,
single
point
of
contact
for
coordinating
innovative
programs
Virginia
Environmental
Excellence
Program:

 
Authority
to
establish
programs
to
recognize
facilities
and
persons
that
have
demonstrated
a
commitment
to
enhanced
environmental
performance
and
to
encourage
innovations
in
environmental
protection.

 
Extent
of
recognition/
incentives
depends
on
whether
the
facility
is
(
1)
an
environmental
enterprise,
(
2)
an
exemplary
enterprise,
or
(
3)
an
extraordinary
enterprise.

 
A
person
or
facility
may
participate
in
the
program
for
up
to
3
years
and
may
reapply
to
the
program.

Virginia
Department
of
Environmental
Quality
(
VDEQ)
March
24,
2005
Code
of
Virginia,

Chapter
11.1
of
Title
10.1,
§
§
10.1­
1187.1
­
10.1­
1187.7
Tiered
Incentives
(
cumulative):

Environmental
Enterprise
(
E2):

 
Public
recognition
 
Reduced
fees
 
Governor's
Environmental
Excellence
Awards
Exemplary
Environmental
Enterprise
(
E3)
and
Extraordinary
Environmental
Enterprise
(
E4):

 
Reduced
inspection
priority
 
Single
point
of
contact
between
facility
and
VDEQ
 
Streamlined
environmental
reporting
 
Reduced
monitoring
requirements
 
Prioritized
permit
and
permit
amendment
review
 
Ability
to
implement
alternative
compliance
measures
approved
by
the
appropriate
air,
waste,
or
water
board.
Not
addressed
in
legislation.
http://
www.
deq.
state.
va.
us/
veep/
pdf/
ve
eplaw.
pdf
18
Table
2:
SUMMARY
OF
STATE
STATUTES
AUTHORIZING
PERFORMANCE­
BASED
ENVIRONMENTAL
LEADERSHIP
PROGRAM
State
Environmental
Agency
Type
of
Authority
(
Perm/
Temp)
Authorized
Activity
(
including
Incentives)
Funding
(
Dedicated
or
Annual
Appropriation)
Reference
Environmental
Excellence
Program:

 
Authorizes
WVDEP
to
enter
into
environmental
performance
agreements
with
eligible
participants
that
specify
applicable
requirements
and
any
requirements
that
are
modified,
waived,
or
replaced,
as
well
as
the
monitoring
measures
necessary
to
ensure
accountability
and
compliance.

 
Program
requires
commitment
by
participants
to
superior
environmental
performance.

 
The
secretary
may
establish
classes,
categories
or
tiers
of
environmental
performance
agreements.

West
Virginia
Department
of
Environmental
Protection
(
WVDEP)
Passed
March
11,

2004;
Effective
date
90
days
from
passage.
Sections
22­
25­
1
to
22­
25­
13,
Code
of
West
Virginia.

Law
sunsets
on
June
30,
2009.
P
Public
comment
period
closed
July
19,

2005
for
proposed
rules.
Incentives:

 
The
secretary
shall
propose
rules
for
legislative
approval
establishing
incentives
to
be
granted
to
any
participant
that
complies
with
the
mandatory
and
elective
program
elements.
The
secretary
may
establish
fees
to
recover
application,

renewal,
and
administrative
costs
incurred
by
WVDEP.

Establishes
an
Environmental
Excellence
Program
Administrative
Fund
allowing
for
gifts
and
donations.
http://
www.
wvdep.
org/
oi
http://
www.
epa.
gov/
performancetrack/

states/
programs/
wv_
env_
excel_
prog.
p
df
Environmental
Results
Program:

 
Authorizes
WDNR
to
create
two
tiers
of
voluntary
programs
that
require
having
an
EMS
(
Tier
II),
or
committing
to
implement
an
EMS
within
a
year's
time
(
Tier
I).

 
Tier
I
applicants
shall
describe
their
plans
for
activities
that
enhance
the
environment;
Tier
II
applicants
must
demonstrate
a
record
of
superior
environmental
performance
and
commit
to
maintaining
and
improving
that
performance.

 
Encourages
the
WDNR
to
make
the
program
compatible
with
federal
performance­
based
programs.

Wisconsin
Department
of
Natural
Resources
(
WDNR)
April
16,
2004
Chapter
299
Wisconsin
Statutes
§
83
(
299.83).

2003
Wisconsin
Act
276
(
Senate
Bill
61)

Program
sunsets
after
July
1,
2009.
Tiered
Incentives
(
cumulative):

Tier
I:

 
Public
recognition
through
a
numbered
certificate,
inclusion
on
the
WDNR's
website,
and
annually
publish
notice
of
recognition
in
local
newspaper.

 
Participant
eligible
to
use
program
logo
 
Direct
point
of
contact
between
the
WDNR
and
the
facility
 
Fewer
inspections
 
Deferred
civil
enforcement
if
correcting
violations
identified
in
selfaudits
Tier
2:

 
Applicants
propose
incentives
that
are
proportional
to
their
commitment
to
maintain
and
improve
their
superior
environmental
performance.
If
approved,
such
incentives
and
commitments
are
included
in
a
participation
contract
between
the
WDNR
and
the
participant.
Not
addressed
in
the
legislation.
http://
www.
dnr.
state.
wi.
us/
org/
caer/
cea
/
environmental/
index.
htm
http://
www.
epa.
gov/
performancetrack/

states/
programs/
03Act276_
Green_
Tier
_
4_
04.
pdf
19
Attachment
2
Lessons
Learned
from
the
PTrack
Incentives
Implementation
Process
To
support
the
Incentives
Workgroup
in
identifying
options
for
expediting
the
incentives
implementation
process,
we
contacted
states
to
understand
the
drivers
and
challenges
associated
with
state
adoption
of
the
PTrack
regulatory
incentives
and
their
implementation.

Of
the
13
states
identified
on
our
list
as
having
implemented
one
or
both
of
the
PTrack
incentives,
we
conducted
interviews
with
CO,
NC,
OK,
PA,
TN,
VA,
and
WA,
representing
Regions
3,
4,
6,
8
and
10,
respectively.
Of
the
four
states
identified
on
our
list
as
actively
pursuing
implementation
of
PTrack
incentives,
we
conducted
an
interview
with
SC
in
Region
4.2
We
initiated
contact
with
the
states
on
August
9,
2005;
we
completed
interviews
and
follow­
up
communications
by
August
25,
2005.

We
compiled
basic
information
from
our
interviews
into
Exhibit
1
below.
Although
the
sample
size
for
our
interviews
is
relatively
small,
the
overlap
in
responses
appears
to
offer
a
representative
sample
of
states
involved
in
incentive
implementation
activities.
We
also
provide
a
summary
of
the
main
points
gleaned
from
the
interviews
conducted
and
our
recommendations
for
how
EPA
can
facilitate
the
implementation
of
PTrack
incentives.

Main
Points
from
Interviews
 
Adoption
of
the
incentive
rule
changes
does
not
appear
to
be
an
obstacle
to
implementation.
The
process
for
most
states
is
very
straightforward,
except
in
the
case
of
CO
and
TN
where
attempts
were
made
to
broaden
the
scope
of
the
incentives
to
cover
state
leadership
program
members
in
addition
to
PTrack
members.
Even
in
these
states,
the
rules
were
eventually
adopted,
minus
the
proposed
language
changes.

 
The
state
PTrack
coordinator
or
P2
staff
usually
initiates
the
regulatory
adoption
process
by
contacting
the
state's
media
program
staff
to
update
them
on
the
incentives.
Media
program
staff
receptivity
is
greater
in
states
where
the
two
programs
have
a
working
relationship
and
strong
communication.
Media
program
staff
are
responsible
for
bringing
the
proposed
rule
changes
before
the
state's
regulatory
body.
Some
states
report
an
internal
lack
of
support
for
PTrack
and
innovative
programs
in
general
among
state
environmental
officials
and
media
program
managers,
which
impedes
efforts
to
promote
PTrack
and
implement
incentives
at
the
facility
level.

2
We
initially
contacted
nine
of
the
13
states
identified
on
our
list
as
having
implemented
the
PTrack
incentives.
Of
the
nine,
we
were
unable
to
conduct
interviews
with
two
states:
GA,
FL.
FL
declined
an
interview
citing
limited
resources
available
to
prioritize
PTrack
and
too
little
information
to
report.
We
selected
another
two
states
from
the
list,
IL
and
NJ,
as
replacements
but
were
unable
to
conduct
interviews
with
them.
Among
the
four
states
identified
as
actively
implementing
PTrack
incentives,
we
contacted
but
were
unable
to
schedule
interviews
with
AL,
the
District
of
Columbia,
and
DE.
AL
declined
an
interview
because,
according
to
our
contact,
it
has
not
yet
begun
the
implementation
process
and
had
nothing
to
report.
20
 
More
significant
to
the
incentive
implementation
process
is
the
limited
number
of
PTrack
members
who
are
eligible
for
the
incentives
and
interested
in
them.
Exhibit
1
shows
that,
particularly
among
states
that
have
their
own
leadership
programs
in
addition
to
PTrack,
few,
if
any
facilities
are
eligible
or
interested
in
pursuing
these
incentives.
3
Although
eligibility
numbers
are
higher
in
the
two
states
without
leadership
programs,
respondents
are
not
optimistic
about
participation.
For
example,
WA
indicated
that
most
of
the
larger
facilities,
which
could
ultimately
benefit
from
the
incentives,
are
not
eligible
for
them
because
of
ongoing
compliance
problems
preventing
them
from
joining
PTrack.
And
smaller
facilities
that
are
eligible
for
PTrack
membership
would
not
qualify
for
the
incentives
because
of
the
size
of
their
waste
streams.
SC,
a
state
not
authorized
to
offer
incentives
through
its
own
leadership
program,
also
identified
constraints
on
facility
eligibility
and
implementation
of
PTrack
incentives.
One
of
its
eligible
PTrack
members
will
not
pursue
the
RCRA
incentive
because
the
costs
associated
with
changing
the
company's
corporate
policy
to
allow
implementation
in
the
one
facility
participating
in
PTrack
are
prohibitive.

 
A
number
of
states,
including
CO
and
NC,
want
to
provide
incentives
and
greater
regulatory
flexibility
to
their
leadership
program
members
who
are
not
PTrack
members.
They
suggested
that
EPA
regional
media
and
compliance
program
staff
do
not
feel
authorized
to
expand
eligibility
for
these
incentives
without
formal
guidance.

 
The
role
of
EPA
in
PTrack
incentive
implementation
varies
considerably
by
region.
The
level
of
support
for
and
promotion
of
PTrack
by
EPA
regional
staff
to
states
and
PTrack
facilities
appears
to
depend
on:

1)
the
PTrack
staff
presence
at
the
region
(
e.
g.,
NC
reported
that
Region
4
has
experienced
significant
turnover
among
P2
and
PTrack
staff);
2)
the
familiarity
of
regional
staff
(
particularly
the
media
and
compliance
programs)
with
PTrack;
3)
the
kind
of
working
relationship
that
exists
between
the
region
and
the
state;
and
4)
the
level
of
routine
contact
between
the
regional
staff
(
particularly
the
media
and
compliance
programs)
and
state
facilities.

For
example,
states
with
leadership
programs
reported
that
PTrack
was
less
appealing
to
their
facilities
because
they
do
not
have
the
same
level
of
familiarity
or
contact
with
EPA
regional
staff
as
they
do
with
state
media
program
staff.

 
States
suggested
a
few
ways
for
EPA
to
facilitate
PTrack
incentives
implementation
at
the
state
level:

1)
develop
incentives
that
would
be
of
greater
interest
to
facilities
and
apply
to
specific
industrial
sectors
(
e.
g.,
WA
reported
that
it
is
trying
to
develop
MOAs
with
trade
associations
to
achieve
compliance
through
P2;);

3
It
is
difficult
to
know
for
certain
how
many
PTrack
member
facilities
are
eligible
for
incentives
based
on
state
interviews
alone.
When
asked
about
eligibility,
few
respondents
had
information
on
exactly
how
many
of
their
PTrack
members
are
eligible
for
or
have
sought
to
implement
the
incentives.
In
an
attempt
to
verify
numbers
provided
by
respondents,
we
reviewed
our
PTrack
member
database
to
determine
the
number
of
facilities
in
each
state
potentially
eligible
for
the
RCRA
and/
or
MACT
incentives.
21
2)
grant
equivalency
status
to
state
leadership
programs
that
meet
PTrack
criteria;
3)
support
the
development
of
state
incentives
that
are
more
responsive
to
local
facilities'
concerns
(
e.
g.,
SC
has
initiated
pilot
projects
that
allow
participating
facilities
to
propose
their
own
approaches
to
regulatory
flexibility);
and
4)
engender
greater
awareness
of
PTrack
and
incentives
among
regional
staff,
state
environmental
officials,
state
media
program
staff,
industrial
sectors,
and
PTrack
members
themselves.

The
need
for
direct
communication
about
PTrack
incentives
among
EPA
Regions,
state
media
program
staff,
and
eligible
facilities
was
noted
more
frequently
by
states
that
experience
a
lack
of
internal
agency
support
for
PTrack,
including
OK
and
TN.

Recommendations
Drawing
from
the
insights
and
experiences
offered
by
the
states,
we
propose
the
following
recommendations
to
EPA
for
improving
its
facilitation
of
incentives
implementation
under
PTrack:

I.
Collaborate
with
states
and
specific
industry
sectors
to
identify
innovative
incentives
that
have
broader
applicability
and
are
attractive
to
more
facilities.
Consider
ways
to
either
grant
states
authority
to
extend
PTrack
incentives
to
state
leadership
program
members
or
create
parity
between
PTrack
and
state
leadership
programs
to
make
it
easier
for
facilities
to
obtain
dual
membership.
For
example,
EPA
and
states
may
wish
to
consider
drafting
federal
regulatory
language
to
authorize
eligibility
to
any
state
performance­
based
program
that
meets
the
approval
of
EPA.
This
would
require
EPA
to
review
state
performance­
based
programs
to
determine
whether
a
program
is
equivalent
to
the
acceptance
and
retention
standards
of
the
PTrack
program.

II.
Collaborate
with
states
to
work
through
the
practical
issues
related
to
implementation
"
in
the
field."
In
particular,
state
inspectors/
permitters
and
EPA
regulatory
staff
may
be
concerned
about
how
compliance
determinations
are
affected
by
certain
incentives.

III.
Work
to
develop
consistent
approaches
to
building
awareness
of
PTrack
in
Regions,
including
orientation
of
regional
staff,
outreach
to
state
PTrack
coordinators
and
media
program
staff,
and
coordination
of
outreach
to
existing
and
potential
PTrack
facilities
to
promote
new
and
existing
incentives.
A
standard
communications
package
should
be
prepared
in
connection
with
the
launch
of
new
incentives
that
includes
an
EPA
point­
of­
contact,
a
list
of
eligible
PTrack
members
in
each
state,
and
a
fact
sheet
describing
the
incentive.
22
Exhibit
1.
Ptrack
Incentives
Implementation
Summary
Ptrack
Facilities
EPA
Regional
Program
Support
Needed(
f)

States
Interviewed(
a)
RCRA
Adopted(
b)
MACT
Adopted
Easy
Implementation
of
Regulatory
Change(
c
)
State
Leadership
Program
Potentially
Eligible
for
RCRA
Incentive
(
d)
Implemented
RCRA
Incentive
Potentially
Eligible
for
MACT
Incentive
(
d)
Greater
Knowledge
&

Support
of
Ptrack
Greater
Outreach
to
States
Greater
Outreach
to
Facilities
Implemented
Incentives
CO
Yes
(
E)
Yes
No
Yes
2
(
2)
?
0
(
3)
Yes
Yes
Yes
NC
Yes
(
IBR)
Yes
Yes
Yes
1
(
1)
0
0
(
3)
Yes
Yes
Yes
OK
Yes
(
IBR)
No
Yes
Yes
?
(
1)
?
?
(
2)
No
Yes
Yes
PA
Yes
(
IBR)
Yes
Yes
No
?
(
11)
?
?
(
5)
No
No
No
TN
Yes
(
V)
No
No
Yes
3
(
4)
?
0
(
0)
Yes
Yes
Yes
VA
Yes
(
V)
No
Yes
Yes
?
(
5)
1
1
(
3)
No
No
No
WA
Yes
(
E)
In
process
Yes
No
5
(
4)
5
?
(
2)
No
No
No
Actively
Implementing
Incentives
SC
In
process
(
V)
No
Yes
Yes(
e)
2
(
2)
?
?
(
1)
Yes
Yes
Yes
Notes:
A
"?"
means
that
the
state
did
not
provide
the
information
(
or
the
information
provided
was
not
clear).
We
attempted
to
independently
verify
this
information
in
cases
where
we
could
not
obtain
clarification
from
the
interview
respondents.

(
a)
We
were
unable
to
conduct
interviews
with
five
states
from
the
initial
list
(
GA,
FL,
AL,
DC,
and
DE)
and
two
states
selected
as
replacements
(
IL
and
NJ)
.

(
b)
For
RCRA
Delegation:
IBR
=
Incorporation
by
Reference;
V
=
Verbatim
Adoption
of
Federal
RCRA
Regulations;
E
=
Adoption
of
Equivalent
and
No­
Less
Stringent
State
Rule.

(
c)
States
that
did
not
experience
easy
implementation
had
proposed
contentious
language
modifications
to
the
rule
changes
that
delayed
their
adoption.

(
d)
Numbers
on
the
left
were
supplied
by
interview
respondents.
Numbers
in
parenthesis
on
the
right
were
obtained
through
independent
review
of
our
Ptrack
member
database
(
updated
8/
2005).
In
the
case
of
RCRA,
we
counted
as
potentially
eligible
all
members
with
RCRA
LQG
permits;
in
the
case
of
MACT,
we
counted
as
potentially
eligible
all
members
with
only
CAA
minor
permits.
Since
the
data
do
not
identify
whether
CAA
permits
cover
hazardous
air
pollutants,
it
is
not
possible
to
discern
which
facilities
are
subject
to
MACT
requirements.
Additional
follow­
up
with
states
coupled
with
review
of
PTrack
members'
application
materials
may
provide
the
level
of
detail
required
to
reconcile
the
two
sets
of
numbers.

(
e)
SC
indicated
that
its
leadership
program
is
not
legally
authorized
by
the
state
legislature
to
offer
incentives
to
member
facilities;
presently
SC
can
only
offer
incentives
through
PTrack.

(
f)
The
responses
by
states
reflect
the
variation
in
EPA
support
of
PTrack
across
regions
and
among
programs
within
regions.
