To amend chapter 640, RSMo, by adding thereto one new section relating to environmental management system agreements.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

     Section A. Chapter 640, RSMo, is amended by adding thereto one new section, to be known as section 640.050, to read as follows:

     640.050. 1. There is hereby created a voluntary pilot program by which the department of natural resources may enter into environmental management system agreements with persons regulated by the division of environmental quality to implement innovative environmental measures not otherwise recognized or allowed under existing laws and regulations of this state if those measures:

     (1) Achieve emissions reductions or reductions in discharges or wastes beyond the otherwise applicable statutory and regulatory requirements through pollution prevention or other suitable means; or

     (2) Achieve real environmental risk reduction or foster environmental compliance by other persons regulated by the division of environmental quality in a manner that is clearly superior to the existing regulatory system.

Such agreements may include proposals accepted under the federal XL Program, provided the proposals achieve one or more purposes of this subsection and are acceptable to the department.

     2. This program is a voluntary pilot program. Participation is at the discretion of the department, and any decision by the department to reject an initial proposal under this section is not appealable. The department's authority to execute initial agreements under this section shall terminate on December 31, 2001. An initial agreement may be renewed for five year periods after December 31, 2001, if the department finds the agreement continues to meet applicable requirements and the purposes of this section.

     3. The department shall develop and make publicly available a program guidance document regarding participation in the pilot program. A draft document shall be distributed for review and comment by interested parties, and a final document shall be completed by July 1, 1998. At a minimum, this document shall include the following:

     (1) The approximate number of projects that the department envisions being part of the pilot program;

     (2) The types of projects and facilities that the department believes would be most useful to be a part of the pilot program;

     (3) A description of potentially useful environmental management systems, such as ISO 14000;

     (4) A description of suitable environmental performance plans, including appropriate provisions or opportunities for promoting pollution prevention and sustainable development;

     (5) A description of practices and procedures to ensure that performance is measurable and verifiable;

     (6) A characterization of less-preferred practices that can generate adverse consequences such as multi-media pollutant transfers; and

     (7) A description of suitable practices for productive stakeholder involvement in project development and implementation that may include, but need not be limited to, consensus-based decision making and appropriate technical assistance.

     4. The department may develop and distribute written guidance, fact sheets, or other documents that explain, summarize, or describe programs operated under this section. The written guidance, fact sheets or other documents shall not be considered rules and shall not be subject to the provisions of chapter 536, RSMo.

     5. On or before December 31, 2001, the department may enter into initial environmental management system agreements with any person regulated by the division of environmental quality to implement innovative environmental measures that relate to or involve provisions of this section, even if one or more of the terms of such an agreement would be inconsistent with an otherwise applicable statute or regulation of this state. Participation in this program is limited to those persons who have submitted an environmental management system agreement that is acceptable to the department and who are not currently subject to enforcement action initiated by the department or the attorney general.

     6. At a minimum, a proposed environmental management system agreement shall include the following:

     (1) Identification of all state and federal statutes, rules, and regulations applicable to the facility;

     (2) Identification of all statutes, rules, and regulations that are inconsistent with one or more terms of the proposed environmental management system agreement;

     (3) A statement of how the proposed environmental management system agreement will achieve one or more of the purposes of this section;

     (4) Identification of those members of the general public, representatives of local communities and environmental groups who may have an interest in the environmental management system agreement;

     (5) Identification of how a participant will demonstrate ongoing compliance with the terms of its environmental management system agreement, which may include an evaluation of a participant's performance under the environmental management system agreement by a third party acceptable to the department. Compliance with the agreement shall be determined not less than annually;

     (6) Procedures for review by the department of environmental management system agreements;

     (7) Procedures for voluntary termination of an environmental management system agreement;

     (8) A performance guarantee to be provided by an applicant for participation in this program. The nature of the performance guarantee shall be directly related to the complexity of and environmental risk associated with the proposed environmental management system agreement;

     (9) Procedures for involuntary termination of environmental management system agreements.

     7. The department shall provide for public participation in environmental management system agreements which shall include public notices, opportunity for public comment and stakeholder involvement in design and implementation of specific projects that are undertaken.

     8. On or before December 31, 2001, the department may enter into initial environmental management system agreements, if the proposals for the agreements have been accepted under the federal XL Program, in accordance with the following:

     (1) An applicant shall submit, in writing, a proposed environmental management system agreement to the director of the department;

     (2) The department shall have one hundred twenty days to review a proposed environmental management system agreement;

     (3) The department's failure to notify an applicant in writing that it has accepted a proposal shall be deemed a rejection;

     (4) A rejection of a proposed environmental management system agreement by the department shall not be appealable;

     (5) The department shall provide notice to the public, including an opportunity for public comment and hearing on each proposal accepted by the department under this subsection, and the department shall provide such notice, including an opportunity for public comment and hearing, prior to executing an environmental management system agreement;

     (6) Each agreement shall specify the terms and conditions under which the department may terminate the agreement; and

     (7) Each agreement shall provide for appropriate stakeholder involvement in a manner that is conducive to productive participation, equitable decision making and open exchange of information in developing and implementing the agreement.

     9. An environmental management system agreement shall operate in lieu of all applicable requirements under Missouri and federal environmental statutes, regulations, and existing permits that are identified in the agreement. Any environmental statute, regulation, or condition in an existing permit that differs from a term or condition in an agreement shall cease to apply from the effective date of an initial or renewed agreement until it is terminated or expires.

     10. Notwithstanding the other provisions of this section, no agreement entered into by the department may allow a participant to cause air or water pollution or an unauthorized release of any regulated pollutant in violation of any law of this state.

     11. Nothing in this section shall reduce, eliminate, or in any way affect any fees that a participant in this program may be subject to under any federal environmental statute or regulation or under any state law or any rule promulgated thereunder.

     12. Applicants for participation in the environmental management system agreement program shall pay all costs associated with public notice and hearings.

     13. (1) The department shall ensure that each environmental management system agreement contains appropriate provisions for performance assurance. Those provisions may specify types of performance guarantees to be provided by the participant to assure performance of the terms and conditions of the agreement.

     (2) In the case of deficient performance of any term or condition in an environmental management system agreement that prevents achievement of the stated purposes of this section, the department may terminate the agreement and the participant may be subject to enforcement in accordance with the provisions of applicable state laws.

     (3) If the agreement is terminated, the facility shall have sufficient time to apply for and receive any necessary permits to continue the operations in effect during the course of the environmental management systems agreement. Any such application shall also be deemed a timely and complete application for renewal of an existing permit under applicable law.

     (4) Nothing in this section shall limit the authority or ability of the attorney general to enforce any law of this state, except that, for the purposes of enforcement, an agreement under this section shall be deemed to be a permit issued under applicable state law to engage in activities authorized under the agreement.