Pollution Prevention Act

Pollution Prevention Act

Summary

ALEC’s model Pollution Prevention Act is designed to ensure public health and safety through the reduction in the use and release of toxic chemicals and reduce the generation of hazardous waste. Key components of the bill include: technical assistance for waste reduction programs, toxic use and release reduction and hazardous waste reduction plans for generators, annual progress reports from generators; an advisory committee and confidentiality of programs.

Model Policy

{Title, enacting clause, etc.}

Section 1. {Short title.} This act may be cited as the Pollution Prevention Act.

Section 2. {Legislative findings and declarations.} The legislature finds and declares that:

(A)  In the interest of protecting the public health, safety and the environment, {insert state} should encourage reduction in the use and release of toxic chemicals and to reduce the generation of hazardous waste whenever technically and economically practicable without shifting risks from one part of a process or environmental media to another. Priority shall be given to a method that reduce the amount of toxics used and, where that is not technically and economically practicable, methods that reduce the release of toxics or the generation of hazardous waste.

(B)   Management hierarchy.  It is policy of {insert state}to adhere to the following hierarchy of release and waste prevention and management strategies:

  1.  Reduce waste production at the source;
  2. Recover and reuse waste resources;
  3. Recycle wastes on site or off site;
  4. Treat wastes to reduce volume and toxicity (including incineration, bioremediation, etc.) in accordance with existing state requirements and any limited permits for development of alternative technologies;
  5. Store wastes; and
  6. As a last resort, dispose of any remaining wastes in a manner which serves to protect the quality of air, water, and land resources.

(C)   State role. The {insert legislative body} finds that the best means to achieve the policy set forth in paragraphs (1) and (2) of subsection (B) is by:

  1. Providing toxics users and generators with technical assistance;
  2. Requiring toxics users to engage in comprehensive planning and develop measurable performance goals; and
  3. Monitoring the release of toxic substances and the generation of hazardous waste.

(D)  Implementation guidelines. In implementing this act, it shall be the policy of the State of {insert state} to utilize its resources in the most efficient manner, relying to the greatest extent possible, consistent with the intent of the act, upon existing information and enforcement resources and minimizing wherever possible the burden imposed upon the citizens of the State.

Section 3. {Definitions.} The following words and phrases when used in this Act shall have the meaning given to them in this section unless the context clearly indicates otherwise:

(A)  “Department.” The {insert environmental agency}.

(B)   “Director.” The Director of {insert environmental agency}.

(C)   “Facility.” All buildings, equipment, structures, and other stationary items located on a single site or on contiguous or adjacent sites and owned or operated by the same person or by any person who controls, is controlled by, or under common control with any person.

(D)  “Fully regulated generator.” A generator who generates 2.2 pounds or more of acute hazardous waste as defined by 40C.F.R.261, or 2,200 pounds or more of hazardous waste in one calendar year.

(E)   “Generator.” A person who, by virtue of ownership, management, or control, is responsible for causing or allowing to be caused the creation of hazardous waste.

(F)    “Hazardous Waste.” Hazardous wastes will be those wastes listed by the U.S. EPA or meeting characteristics specified by the U.S. EPA in their criteria pursuant to the Resource Conservation Recovery Act (RCRA).

(G)  “Large user.” A facility required to report under section 313 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499).

(H)  “Person.” Any individual, the United States, the State, or a public or private corporation, firm, trust, estate, or any other legal entity.

(I)     “Release.” Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles of any toxic chemical or hazardous waste).

(J)     “Release reduction.” Any activity or process undertaken by a toxic chemical user which reduces the quantity or toxicity of hazardous waste or toxic chemicals released into the environment.

(K)  “Small quantity generator.” A generator who generates between 229 and 2,200 pounds of hazardous waste in one calendar month.

(L)   “Toxic chemical.” Any substance in a gaseous, liquid, or solid state listed pursuant to Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986, or any changes to said list as codified in 40 C.F.R. 372. “Toxic chemical” does not include a substance used as a pesticide or herbicide in routine commercial agricultural applications.

(M) “Toxic use reduction.” In-plant changes in production or other processes or operations, products, or raw materials that reduce, avoid, or eliminate the use or production of toxic substances without creating substantial new risks to public health, safety, and the environment through the application of any of the following techniques:

  1. Input substitution, which refers to substituting for an existing end product, an end product which is nontoxic or less toxic upon use, release, or disposal;
  2. Product reformulation, which refers to substituting for an existing end product, an end product which is nontoxic or less toxic upon use, release, or disposal;
  3. Production or other process or operation redesign or modifications;
  4. Production or other process or operation modernization, which refers to upgrading or replacing existing equipment and methods with other equipment methods;
  5. Improved operation and maintenance controls of production or other process or operation equipment methods, which refers to modifying or adding to existing equipment or methods, including but not limited to, techniques such as improved housekeeping practices, system adjustments, product and process inspections, or production or other process or operation control equipment or methods; or
  6. Recycling, reuse, or extended use of toxics by using equipment or methods that become an integral part of the production or other process or operation of concern.

“Toxic use reduction” includes proportionate change in the usage of a particular substance by any of the methods set forth in this subsection as the usage of that toxic substance changes as a result of production changes or other business changes.

(N)  “Toxic use.” Use or production of a toxic substance.

(O)  “Toxic user.” A large user, fully regulated generator, or a small-quantity generator.

(P)    “Trade secret.” Any formula, plan, pattern, process, production data, device, information or compilation of information which is used in a toxics user business and which gives said toxics user an opportunity to obtain an advantage over competitors who do not know or use it.

(Q)  “Waste reduction.” Any recycling or any other activity applied after hazardous waste is generated that is consistent with the general goal of reducing present and future threats to public health, safety, and the environment that results in:

  1.  The reduction of total volume or quantity of hazardous waste generated that would otherwise be treated, stored, or disposed of;
  2. The reduction of toxicity of hazardous waste that would otherwise be treated , stored, or disposed of; or
  3. Both reduction of total volume or quantity and the reduction of toxicity of hazardous waste.

“Waste reduction” may include either on site or off site treatment where such treatment can be shown to confer a higher degree of protection of the public health, safety, and the environment than other technically and economically practicable waste reduction alternatives.

“Waste reduction” includes proportionate changes in the total volume, quantity, or toxicity of a particular hazardous waste in accordance with this subsection as the generation of that waste changes as a result of production changes or other business changes.

Section 3. {Construction of act.}

Para mareria. This act shall be constructed in para materia with (other appropriates statutes if applicable.)

Section 4. {Technical assistance.}

(A)  Assistance priorities. The department may provide technical assistance when requested by toxics users or generators. In identifying the users and generators to which the department shall give priority in providing technical assistance, the department shall consider at least the following:

  1. The toxics and hazardous waste related exposures and risks posed to public health, safety, and the environment;
  2. Amounts and toxicity of toxics used or released reduction and hazardous waste reduction.

(B)   Assistance parameters. In providing technical assistance the department shall give priority to assisting toxics users and generators in achieving toxics use and release reduction and hazardous waste reduction. The assistance may include but need not be limited to:

  1. Information clearinghouse activities;
  2. Telephone hotline assistance;
  3. Toxics use and release reduction and hazardous waste reduction training workshops;
  4. Establishing a technical publications library;
  5. The development of a recognition program to publicly acknowledge toxics users and generators who develop and implement successful toxics use and release reduction and hazardous waste reduction plans; and
  6. Providing assistance to toxics users and generators in developing plans.

(C)   Department directives. The department shall:

  1. Coordinate its technical assistance efforts with industry trade associations and local colleges and universities as appropriate.
  2. Follow up with toxics users who receive technical assistance to determine whether the user or generator implemented a toxics use and release reduction and hazardous waste reduction plan.

(D)  Inspection guidelines. Technical assistance services provided under this section shall not result in inspections or other enforcement actions unless there is reasonable cause to believe there exists a clear and immediate danger to the public health and safety or the environment. The department may develop rules to carry out the intent of this section.

(E)   Effective date. The department shall begin providing technical assistance under this section on or before {insert date}.

Section 6. {Toxic use and release reduction and hazardous waste reduction plan guidelines.}

(A)  Content of plans. The plans required under this section shall include:

  1. A written policy articulating upper management and corporate support for the toxics use and release reduction and hazardous waste reduction plan and a commitment to implement plan goals.
  2. Internal analysis of toxic chemical uses, releases, and hazardous waste reduction assessments to review processes and other activities where toxic chemicals are used or released and waste generated, and potential toxics use and release reduction and hazardous reduction and recycling techniques applicable to those chemicals and wastes.
  3. Employee awareness and/or training programs to ensure effective implementation of toxics use and release reduction and hazardous waste reduction plans.
  4. Institutionalization of the plan to insure an ongoing effort is demonstrated by incorporation of the plan into management practices and procedures.
  5. Identification of technically and economically practicable toxics use and release reduction and hazardous waste reduction options including a plan for implementation of some or all of these options. This shall include a description of options considered and an explanation of why options considered were not selected for implementation, and discussion of the goals as established in Section 3. The plan shall distinguish between toxics use reduction and waste reduction options. Analysis of options considered shall demonstrate that toxics use reduction options were given priority wherever technically and economically practicable.
  6. An Executive Summary providing a facility level review of the plan, its scope, and objectives, including the evaluation of technologies, procedures, and personnel training programs to assure that toxic chemicals are used only when necessary and that releases and wastes are minimized.

(B)  Performance goals. As part of each plan developed under Section 7 of this act, a toxics user shall establish specific performance goals for the reduction in releases of those chemicals covered under this act. Such goals shall address no less than 80% of the particular facility’s covered releases and no less than 80% of the particular facility’s covered waste. Wherever technically and economically practicable, the specific performance goals established under this subsection shall be expressed in numeric terms. If the establishment of numeric performance goals is not practicable, the performance goals shall be a clearly stated list of objectives designed to lead to the establishment of numeric goals as soon as practicable.

(C)  Goal rationale. Each toxics user shall explain the rationale for each performance goal. The rationale for a particular goal shall address any impediments to toxics use and release reduction and hazardous waste reduction, including but not limited to the following:

  1. The availability of technically practicable toxics use and release reduction and hazardous waste reduction methods, including any anticipated changes in the future.
  2. The economic practicability of available toxics use and release reduction and hazardous waste reduction methods, including any anticipated changes in the future. Examples of situations where toxic use and release reduction or hazardous waste reduction may not be economically practicable include but are not limited to:
    1. For valid reasons of prioritization, a particular company has chosen to address other more serious toxic use and release reduction or hazardous waste reduction concerns;
    2. Necessary steps to reduce toxics use and hazardous waste are likely to have significant adverse impacts on product quality; or
    3. Legal or contractual obligations interfere with necessary steps that would lead to toxics use and release reduction or hazardous waste reduction.

(D)  Progress reports. All toxics users and generators shall complete annually a toxic use and release reduction and hazardous waste reduction progress report, as described in Section 7.

Section 7. {Schedule of completion of plans.}

(A)  Planning deadlines. All large users and fully regulated generators shall complete a toxics use and release reduction and hazardous waste reduction plan for each facility on or before {insert date} and all small-quantity generators shall complete a toxics use and reduction and hazardous waste reduction plan on or before {insert date}. Upon completion of a plan, the user shall notify the department in writing on a form supplied by the department.

(B)  Explanations and documentation. A facility required to complete a toxics use and release reduction and hazardous waste reduction plan under subsection (A) of this section may include as a preface to its initial plan:

  1. An explanation and documentation regarding toxics use and release reduction and hazardous waste reduction efforts completed or in progress before the first reporting date; and
  2. An explanation and documentation regarding impediments to toxics use and release reduction and hazardous waste reduction specific to the individual facility.

(C)  Department review. The department shall consider information provided under subsection (B) of this section in any review of a facility plan under Section 8 of this act.

(D)  Confidentiality. Except as provided in subsection (A) of Section 8 or subsection (C) of Section 11, of this act, a toxics use and release reduction and hazardous waste reduction plan developed under this section shall be retained at the facility and it is not a public record.

(E)   Effective date. A facility shall determine whether it is required to complete a plan under subsection (A) of this section based on whether its toxics use or waste generation results in the facility meeting the definitions of toxics user as defined in Section 3 of this act for the calendar year ending {insert date}.

Section 8. {Department review.}

(A)  Criteria for review. The department may review a plan or an annual progress report to determine whether the plan or progress report is adequate according to the guidelines established under Section 6 of this act. In determining whether to enter a facility for the purpose of reviewing that facility’s toxic use and release reduction and hazardous waste reduction plan and said plan’s compliance with mandatory elements set forth in Section 6 of this act, the department shall allocate its resources in accordance with the following criteria:

  1. The relative risk to the public health and environment posed by human exposure to particular hazardous waste and toxic chemical releases generated by a facility.
  2. The volume of hazardous waste generated and toxic chemicals which are released into the waste stream or environment from a facility.
  3. The potential for substantial improvement in hazardous waste or toxic chemical release reduction techniques at a facility.
  4. The history of noncompliance by a toxic chemical user with the provisions of this act, or the reporting requirements of EPCRA, or other laws pertaining to the management, processing, reporting, or reduction of hazardous wastes or releases of toxic chemicals.

(B)  Findings of inadequacy. If a toxics user or generator fails to complete an adequate plan or annual progress report as required under Section 7 of the act, the department may notify the user of the inadequacy, identifying the specific deficiencies. The department may also specify a reasonable time frame of not less than ninety (90) days within which the user shall prepare a modified plan or progress report addressing the specified deficiencies. The department may also make technical assistance available to aid the user or generator in modifying its plan or progress report. The user shall notify the department when the modification is complete.

(C)  Further modification required. If the department determines that a modified plan or progress report prepared pursuant to subsection (B) of this section is inadequate, the department may, within its discretion, either require a further modification or issue an administrative order pursuant to subsection (D) of this section.

(D)  Administrative orders. If after having received a list of specified deficiencies from the department a toxics user or generator fails to develop an adequate plan or progress report within a time frame specified pursuant to subsection (B) of (C) of this section, the department may order such toxics user to submit an adequate plan or progress report within a reasonable time frame of not less than ninety (90) days. If the toxics user fails to develop an adequate plan or progress report within the time frame specified, the department shall take appropriate enforcement action pursuant to Section 9.

(E)   Parameters of review. In reviewing the adequacy of any plan or progress report, the department shall base its determination solely on whether the plan or progress report is complete and prepared in accordance with Section 6 of this act.

(F)   Departmental log. The department shall maintain a log of each plan or progress reports it reviews, a list of all plans or progress reports that have been found inadequate under subsection (D) of this section, and descriptions of corrective actions taken. This information shall be available to the public at the department’s office.

Section 9. {Enforcement.}

(A)  Civil action. If any person violates any of the provisions of this act or any rule, regulation, or order promulgated or issued pursuant hereto, the department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent said violation and the court may proceed in the action in a summary manner.

(B)  Civil penalties.

  1. Any person who violates any provisions of this act, or any regulation or approval issued or adopted here under, shall be subject to a civil penalty not to exceed twenty-five thousand dollars ($25,000) per day of such violation, which may be assessed in an action brought on behalf of the State in any court of competent jurisdiction.
  2. Any person who violates provisions of subsection (D) of Section 8 shall be subject to a fine of not less than two thousand five hundred dollars ($2,500) or more than twenty five thousand dollars ($25,000) for each violation, or by imprisonment for not ore than one year, or by both.

Section 10. {Departmental advisory committee.}

(A)  Establishment of committee. In order to assist in establishing rules related to toxics use and release reduction and hazardous waste reduction, the department shall establish an advisory committee. The advisory committee shall consist of representatives of the public and affected industries.

(B)   Purview of committee.

  1. The advisory committee shall act in an advisory capacity to the department in any manner related to toxics use and release reduction and hazardous waste reduction. The advisory committee shall identify any additional data necessary to improve the technical assistance process, to develop plans, and to aid in enforcement of plans.
  2. The committee shall make recommendations to the department to increase the coordination of requirements of all state and federal toxics use and hazardous waste programs, including but not limited to the federal Clean Air Act, the Water Pollution Control Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, and any amendments thereto, Title III of the Superfund Amendments and Reauthorization Act of 1986 and amendments thereto, and the Emergency Planning and Community Right to Know Act.

(C)   Report deadline. The committee shall make recommendations under this section before {insert date}.

Section 11. {Confidentiality of reports.}

(A)  Findings of confidentiality. Upon a showing satisfactory to the Director by any person that a plan or annual progress report developed under Section 6 or 7 of this act, or any portion thereof, if made public, would divulge method, processes, or other information entitled to protection as trade secrets of such person, the Director shall classify as confidential such plan or annual progress report or portion thereof.

(B)  Departmental actions. To the extent that any plan or annual progress report under subsection (A) of this section, or any portion thereof, would otherwise qualify as a trade secret, no action taken by the Director or any authorized employee of the department in inspecting or reviewing such information shall affect its status as a trade secret.

(C)  Public disclosure. Any information classified by the Director as confidential under subsection (A) of this section shall not be made a part of any public record, or disclosed to any party outside of the department unless a court of competent jurisdiction determines that the confidential information is not entitled to protection as a trade secret under the terms of this act.

(D)  Civil Penalties. Anyone who is not authorized to have access to, or who is not authorized to disclose information submitted to the department under the authority of this act, but who knowingly and willfully uses, divulges, or discloses to anyone else such information in a manner not authorized by this act, shall be in violation of this act and shall be subject to the penalties set forth in subsection (B) (2) of Section 9.

 Section 12 {Report to the legislative body.}

On or before {insert date}, and annually thereafter, the department shall report to the legislature on the progress being made toward reducing the quantities of toxic chemicals being released and hazardous wastes generated within the state.

Section 13. {Remedial Activities.}

Notwithstanding any other provisions of this act, nothing in this act shall be considered to apply to any hazardous wastes generated within the State.

Section 14. {Appropriations.}

The sum of {insert dollar amount}, or as much thereof as may be necessary is hereby appropriated to the department for administrative costs associated with implementing this act.

 Section 15. {Severability clause.}

 Section 16. {Repealer clause.}

 Section 17. {Effective date.}

Approved by ALEC Board of Directors in 1995.

Keyword Tags: Energy Environment and Agriculture Task Force, Pollution