[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3180 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 3180

      To provide for innovative strategies for achieving superior 
           environmental performance, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 11, 1998

 Mr. Dooley of California (for himself, Mrs. Tauscher, Mr. Saxton, Mr. 
   Boyd, Mrs. Thurman, Ms. Stabenow, Mr. Gilchrest, Mrs. Johnson of 
 Connecticut, and Mr. Davis of Florida) introduced the following bill; 
which was referred to the Committee on Commerce, and in addition to the 
  Committee on Transportation and Infrastructure, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
      To provide for innovative strategies for achieving superior 
           environmental performance, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Innovative Environmental Strategies 
Act of 1997''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) superior environmental performance can be achieved in 
        some cases by granting regulated entities the flexibility to 
        develop innovative environmental strategies for achieving 
        environmental results in partnership with affected 
        stakeholders;
            (2) innovative environmental strategies also have the 
        potential to--
                    (A) substantially reduce compliance costs;
                    (B) foster cooperative partnerships among industry, 
                government, public interest groups, and local 
                communities;
                    (C) encourage regulated entities to meet and exceed 
                environmental obligations through greater innovation 
                and greater pollution prevention; and
                    (D) increase the involvement of members of the 
                local community and other citizens in decisions 
                relating to the environmental performance goals and 
                priorities of a facility; and
            (3) the lessons learned from successful innovative 
        environmental strategies should be incorporated into the 
        broader system of environmental regulation.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Agency.--The term ``agency'' means the Environmental 
        Protection Agency.
            (3) Agency rule.--
                    (A) In general.--The term ``agency rule'' means a 
                rule (as defined in section 551 of title 5, United 
                States Code) promulgated by the agency.
                    (B) Exclusions.--The term ``agency rule'' does not 
                include--
                            (i) an emissions reduction requirement 
                        under title IV of the Clean Air Act (42 U.S.C. 
                        7651 et seq.); or
                            (ii) a requirement under subtitle B of the 
                        Emergency Planning and Community Right to Know 
                        Act of 1986 (42 U.S.C. 11021 et seq.).
            (4) Person.--The term ``person'' means an individual, 
        trust, firm, joint stock company, corporation (including a 
        government corporation), partnership, association, State, 
        Indian tribe, municipality, commission, political subdivision 
        of a State, interstate body, or department, agency, or 
        instrumentality of the United States.

SEC. 4. INNOVATIVE ENVIRONMENTAL STRATEGY AGREEMENTS.

    (a) In General.--
            (1) Proposal.--A person that owns or operates a facility 
        that is subject to an agency rule, requirement, policy, or 
        practice may submit to the Administrator a proposal for an 
        innovative environmental strategy for achieving better 
        environmental results.
            (2) Agreement.--If the Administrator finds that the 
        requirements of section 7 are met and approves the proposed 
        strategy, the Administrator may enter into an innovative 
        environmental strategy agreement with respect to the facility.
            (3) Contents.--An agreement under paragraph (1)--
                    (A) may--
                            (i) modify or waive otherwise applicable 
                        agency rules, requirements, policies, or 
                        practices;
                            (ii) establish new environmental standards 
                        for a facility; or
                            (iii) establish new requirements not 
                        contained in existing agency rules or existing 
                        environmental statutes;
                    (B) may not contravene the specific terms of a 
                statute; and
                    (C) should further the purposes of applicable 
                environmental statutes.
    (b) Cosponsor.--
            (1) In general.--The Administrator shall establish 
        procedures under which a person other than the owner or 
        operator of a facility may cosponsor a proposal.
            (2) Priority.--The Administrator shall give priority to 
        proposals co-sponsored by a stakeholder group.

SEC. 5. SUBMISSION OF PROPOSAL.

    (a) Contents of Proposal.--A proposal for an innovative 
environmental strategy shall be clearly and concisely written and 
shall--
            (1) identify any agency rule, requirement, policy, or 
        practice for which a modification or waiver is sought and any 
        alternative requirement that is proposed;
            (2) describe the proposed innovative environmental strategy 
        and the facility to which the strategy would pertain; and
            (3) demonstrate the manner in which the innovative 
        environmental strategy is expected to meet the requirements of 
        section 7.
    (b) Preliminary Review.--The Administrator shall review the 
proposal and determine whether, in the Administrator's sole discretion, 
the proposed strategy is sufficiently promising that the Administrator 
is prepared to enter into negotiations toward execution of an 
innovative environmental strategy agreement.
    (c) Notification.--The Administrator shall notify the proponent of 
a determination under subsection (b) not later than 90 days after 
submission, unless the proponent agrees to a longer review.

SEC. 6. STAKEHOLDER PARTICIPATION PROCESS.

    (a) In General.--The proponent of a proposal under section 5 
shall--
            (1) upon approval of the proposal for negotiation toward an 
        agreement, undertake a stakeholder participation process in 
        accordance with this section; and
            (2) work to ensure that there is adequate independent 
        technical support for an effective stakeholder process.
    (b) Development of Process.--
            (1) In general.--The stakeholder participation process 
        shall be developed by the stakeholders and the proponent, in 
        consultation with the Administrator.
            (2) Requirements.--The stakeholder participation process 
        shall--
                    (A) be balanced and representative of interests 
                that may be affected by the proposed strategy;
                    (B) ensure opportunities for public access to the 
                process and make publicly available in a timely manner 
                the proceedings of the stakeholder participation 
                process, except with respect to confidential business 
                information;
                    (C) establish procedures for conducting the 
                stakeholder participation process, including open 
                meetings as appropriate;
                    (D) if necessary, provide for appropriate 
                agreements to protect confidential business 
                information; and
                    (E) establish guidelines for the role of 
                stakeholders, individually and as a group or subgroup, 
                in the development of the strategy, including whether 
                the stakeholders have an advisory, consultative, 
                decisionmaking or veto role with respect to the 
                strategy.
    (c) FACA.--A stakeholder process satisfying the requirements of 
this section shall not be subject to the requirements of the Federal 
Advisory Committee Act (5 U.S.C. App.).
    (d) Public Notice of Application.--After a proposal is approved for 
negotiation toward an agreement, the proponent shall provide public 
notice of the proposal in a manner, approved by the Administrator, that 
is reasonably calculated to reach potentially interested parties 
including--
            (1) community groups;
            (2) environmental groups;
            (3) potentially affected employees;
            (4) persons living near or working in or near the affected 
        facility; and
            (5) relevant Federal, State, tribal, and local agencies.
    (e) Participation.--
            (1) In general.--A person that, not later than 60 days 
        after the date on which public notice is first given under 
        subsection (c), notifies the proponent of the person's 
        intention to participate in the stakeholder participation 
        process may participate in the process, except that a person 
that has a business interest in competition with that of the proponent 
may be excluded.
            (2) Additional stakeholders.--Additional stakeholders may 
        be added by the proponent, the Administrator or the stakeholder 
        group after the stakeholder group is initially constituted in 
        order to ensure full representation of all potentially affected 
        interests throughout the process, including representation with 
        respect to any new issues that may be raised during the 
        process, and to ensure that appropriate expert assistance is 
        available for the stakeholders.
    (f) Limitation on Number of Participants.--
            (1) In general.--In order to provide for a manageable 
        stakeholder process, the Administrator may limit the number of 
        stakeholder participants if the Administrator determines that 
        the stakeholder participants adequately represent, in a 
        balanced manner, the full range of interests (excluding 
        competitive business interests) that may be affected by the 
        innovative environmental strategy.
            (2) Notice.--Before approving a limit on the number of 
        stakeholder participants, the Administrator shall ensure that 
        appropriate notice was provided to each of the groups 
        identified in subsection (d).
            (3) Additional stakeholders.--Notwithstanding any limit on 
        the number of stakeholders that may be approved, additional 
        stakeholders may be added to meet the requirements of 
        subsection (e).
    (g) Negotiation.--After the stakeholder group has been identified, 
and procedures for the stakeholder process have been agreed on under 
subsection (b)(2)(E), the proponent, the stakeholders, and the 
Administrator shall initiate the process of negotiating toward an 
innovative environmental strategy agreement.

SEC. 7. REQUIREMENTS FOR APPROVAL.

    (a) In General.--The Administrator may enter into an innovative 
environmental strategy agreement if the Administrator determines that--
            (1) the strategy is expected to achieve better 
        environmental results (as determined under subsection (c));
            (2) the strategy has potential value as a model for future 
        changes in the broader regulatory structure or as a 
        demonstration of new technologies or measures with potential 
        for reducing pollution on a broader scale;
            (3) the strategy provides for access to information 
        adequate to enable verification of environmental performance by 
        any interested person;
            (4) the strategy provides a means and level of 
        accountability, transparency, monitoring, reporting, and public 
        and agency access to information relating to activities being 
        carried out under an innovative environmental strategy that is 
        at least equivalent to that provided under the agency rule, 
        requirement, policy, or practice that the agreement seeks to 
        modify or waive, including reporting of the benchmarks in the 
        agreement;
            (5) no person or populations would be subjected to unjust 
        or disproportionate adverse environmental impacts as a result 
        of implementation of the strategy;
            (6) the strategy will ensure worker health and safety 
        protections that are the same or superior to those provided 
        under existing law;
            (7) the strategy is not expected to result in adverse 
        transport of a pollutant;
            (8) any Federal, State, tribal, or local environmental 
        agencies required to be signatories under section 8(c) are 
        prepared to sign the agreement and the consultation required 
        under section 8(c)(3) has occurred;
            (9) the stakeholder participation process met the 
        requirements of section 6, and the stakeholders have obtained 
        adequate independent technical support for an effective 
        process;
            (10) there is broad community support for the strategy, as 
        shown by stakeholder support and other relevant factors; and
            (11) the strategy is expected to reduce regulatory burdens 
        or provide other social or economic benefits.
    (b) Other Considerations.--In determining whether to enter into an 
agreement, or to negotiate toward an agreement, the Administrator shall 
consider--
            (1) whether the facility has a strong record of compliance 
        with environmental and public health regulations and whether 
        the proponent has demonstrated a strong commitment to achieve 
        pollution prevention with respect to the facility;
            (2) the extent to which the strategy involves new 
        approaches to environmental protection and multimedia pollution 
        prevention;
            (3) the extent to which there is a link between the 
        modification or waiver sought, the better environmental results 
        expected, and other benefits; and
            (4) the feasibility of the strategy and the ability of the 
        proponent to carry out the strategy.
    (c) Better Environmental Results.--
            (1) Evaluation.--The Administrator shall determine whether 
        a strategy is expected to achieve better environmental results 
        based on the magnitude of reduction in the level of releases or 
        improvement in pollution prevention relative to each benchmark 
        established under paragraphs (4) through (7);
            (2) Other considerations.--In addition to making the 
        determination under paragraph (1), the Administrator shall 
        evaluate the extent to which the strategy--
                    (A) results in environmental performance more 
                protective than the best performance practice of 
                comparable facilities;
                    (B) relies on pollution prevention;
                    (C) incorporates continuous improvement toward 
                ambitious quantitative environmental goals;
                    (D) produces clear reduction of risk, based on a 
                well-accepted analytical method acceptable to the 
                Administrator and the stakeholders;
                    (E) improves environmental conditions that are 
                priorities to stakeholders, including conditions not 
                regulated under statutes administered by the agency;
                    (F) reflects historic demonstration of leadership 
                in environmental performance of the facility;
                    (G) substantially addresses community and public 
                health priorities of concern to stakeholders, including 
                concerns not addressed under statutes administered by 
                the agency;
                    (H) addresses other factors that the Administrator 
                determines clearly improve environmental performance in 
                the context of a specific strategy; and
                    (I) includes reductions in releases or improvement 
                in pollution prevention in addition to those considered 
                by the Administrator for purposes of paragraph (1).
            (3) Findings.--The Administrator shall provide findings 
        setting forth the basis for the determination that the 
        innovative environmental strategy is expected to achieve better 
        environmental results. If the Administrator determines that the 
        magnitude of reduction in the level of releases or improvement 
        in pollution prevention would be a reduction or improvement, 
        but not a significant reduction or improvement, the 
        Administrator may approve a proposal only if the Administrator 
        determines that the strategy is expected to result in a clear 
        and substantial improvement in environmental protection, 
        considering the other factors in this subsection.
            (4) Benchmark.--The benchmark for releases of each 
        pollutant into the air, water, or land shall be as follows:
                    (A) Existing facilities.--For existing facilities, 
                the benchmark shall be the lesser of--
                            (i) the level of releases of each pollutant 
                        into the air, water, or and being achieved 
                        before the date of submission of the proposal; 
                        or
                            (ii) the level of releases of each 
                        pollutant into the air, water, or land allowed 
                        under applicable regulatory requirements and 
                        any reasonably anticipated future regulatory 
                        requirements;
                except that the Administrator may, based on 
                extraordinary site-specific circumstances, modify the 
                level under subparagraph (A)(i) on a case by case basis 
                for a facility that has reduced releases significantly 
                below applicable regulatory requirements before the 
                date of submission of the proposal.
                    (B) New or modified facilities.--For new or 
                significantly expanded facilities, the benchmark shall 
                be based on the lesser of--
                            (i) the level of releases of each pollutant 
                        into the air, water, or land allowed under 
                        applicable regulatory requirements and any 
                        reasonably anticipated future regulatory 
                        requirements; or
                            (ii) the level of releases of each 
                        pollutant into the air, water, or land based on 
                        best industry practices.
            (5) Pollution prevention.--
                    (A) No release of a pollutant.--In appropriate 
                circumstances not involving release of a pollutant, the 
                Administrator may establish a pollution prevention 
                benchmark to evaluate changes in inputs to production 
                of materials or substances of potential environmental 
                or public health concern.
                    (B) Release of a pollutant.--In circumstances 
                involving a release of a pollutant, the Administrator 
                may establish a pollution prevention benchmark in 
                addition to the benchmark under paragraph (4).
            (6) Basis of measurement.--A benchmark may be established 
        on the basis of total emissions, on a per-unit of production 
        basis, or on a comparable basis of measurement, as determined 
        by the Administrator.
            (7) Other considerations.--The Administrator may determine 
        that the requirements of this section are met if a benchmark is 
        not met, if--
                    (A) with respect to other benchmarks, the strategy 
                achieves a significant increment of reduced level of 
                releases below that permitted by the benchmark;
                    (B) the strategy, based on a well-established 
                analytic methodology acceptable to the Administrator 
                and the stakeholders--
                            (i) is expected to achieve overall better 
                        environmental results with an adequate margin 
                        of safety;
                            (ii) is not expected to result in an 
                        increase in the risk of adverse effects, or 
                        shift the risk of adverse effects, to the 
                        health of an individual, population, or natural 
                        resource affected by the strategy; and
                            (iii) is expected to achieve clear risk 
                        reduction; and
                    (C) the strategy is not expected to result in an 
                exceedance of an ecological, health, or risk-based 
                environmental standard.
    (d) Views of Stakeholders.--
            (1) In general.--The Administrator shall give great weight 
        to the views of individual stakeholders and to the stakeholders 
        as a group in determining whether to approve or disapprove a 
        strategy.
            (2) Stakeholders with decisionmaking role.--The 
        Administrator shall deny a proposal if--
                    (A) the stakeholder group and the proponent have 
                determined under section 6 that the group, any 
                subgroup, or 1 or more individual stakeholders in the 
                group will have the ability to veto a decision by the 
                proponent to go forward with the strategy;
                    (B) the group or 1 or more stakeholders objects to 
                the strategy; and
                    (C) the Administrator determines that the objection 
                relates to the criteria stated in section 7 and that 
                the objection has a clear and reasonable foundation.

SEC. 8. FINAL DETERMINATION ON AGREEMENT.

    (a) Proposal.--
            (1) In general.--Not later than 180 days after the date on 
        which negotiations are initiated under section 6(g) or such 
        later date as may be agreed to by the proponent and the 
        stakeholders, the Administrator shall--
                    (A) provide public notice and opportunity to 
                comment on a proposed innovative environmental strategy 
                agreement; or
                    (B) notify the proponent and the stakeholder group 
                that the Administrator does not intend to enter into an 
                agreement.
            (2) Form of notice.--Public notice under paragraph (1) 
        shall be provided by--
                    (A) publishing a notice in the Federal Register; 
                and
                    (B) providing public notice to persons potentially 
                interested in the strategy in the manner described in 
                section 6(d).
            (3) Comment period.--The public comment period shall be not 
        less than 30 days, and shall be extended by an additional 30 
        days if an extension is requested by any person not later than 
        15 days after the beginning of the public comment period.
    (b) Final Decision.--
            (1) In general.--Not later than 60 days after the end of 
        the public comment period, the Administrator shall determine 
        whether to enter into an agreement, and shall give notice of 
        the determination in the same manner as notice was given of the 
        proposed agreement.
            (2) Response.--The Administrator--
                    (A) shall respond to comments received; and
                    (B) may modify the agreement in response to the 
                comments.
    (c) Signatories.--
            (1) In general.--The parties to an innovative environmental 
        strategy agreement--
                    (A) shall include the Administrator, the proponent, 
                and any Federal, State, or local agency or Indian tribe 
                with jurisdiction over the subject matter of the 
                agreement under this Act; and
                    (B) may include a stakeholder.
            (2) Joint rules requirements and policies.--If an agreement 
        waives or modifies a rule, requirement, or policy issued by the 
        agency jointly with another Federal agency, the other Federal 
        agency shall be a signatory to the agreement.
            (3) Consultation.--The Administrator shall consult with and 
        consider the views of any Federal agency with management 
        responsibility or regulatory or enforcement authority over land 
        or natural resources that may be affected by the strategy.

SEC. 9. STATE ROLE.

    (a) In General.--If a proposed strategy involves waiving or 
modifying requirements imposed under State, tribal, or local law, the 
Administrator shall not approve an agreement unless procedures required 
under those laws for such waiver or modification are followed in 
addition to the execution of the innovative environmental strategy 
agreement.
    (b) Part of Federal Program.--If a proposed strategy involves 
waiving or modifying requirements of State, tribal, or local law that 
are part of an authorized or delegated Federal program, execution of an 
innovative environmental strategy agreement by the Administrator and by 
the State, Indian tribe, or local government shall be deemed to provide 
authorization or approval of the program as modified by the agreement.

SEC. 10. ENFORCEABILITY.

    (a) Specification of Enforceable Provisions.--
            (1) Definition of voluntary commitment.--In this section, 
        the term ``voluntary commitment'' means a commitment that the 
        parties to the agreement consider to be a necessary part of the 
        strategy but is not enforceable under this section.
            (2) Inclusion in agreement.--An innovative environmental 
        strategy agreement shall include enforceable requirements and 
        may include voluntary commitments.
            (3) Enforceable requirements.--
                    (A) Identification.--Enforceable requirements shall 
                be clearly identified and distinguished in the 
                agreement from voluntary commitments.
                    (B) Inclusion of all necessary actions.--In all 
                cases, enforceable requirements shall include, at a 
                minimum, all actions necessary to achieve better 
                environmental results relied upon by the Administrator 
                for purposes of section 7(c)(1), and all 
                accountability, monitoring, reporting, and public and 
                agency access requirements mandated by paragraphs (3) 
                and (4) of section 7(a).
            (4) Voluntary commitments.--Failure to implement a 
        voluntary commitment may constitute a ground for termination of 
        the agreement.
    (b) Treatment of Agreement as Permit, Condition, or Requirement.--
            (1) Definition of otherwise applicable requirement.--In 
        this subsection, the term ``otherwise-applicable requirement'' 
        means a rule, permit, condition, policy, practice, or other 
        requirement that an innovative environmental strategy agreement 
        modifies, waives, or replaces.
            (2) Identification of enforceable requirements.--An 
        innovative environmental strategy agreement shall state in a 
        separate section designated ``Enforceable Requirements'' all of 
        the enforceable requirements of the agreement.
            (3) Identification of modified, otherwise waived or 
        relocated requirements.--An innovative environmental strategy 
        agreement shall identify (including citation to the specific 
        provision of a statute or rule), with respect to each 
        enforceable requirement, each otherwise-applicable requirement 
        that the agreement waives, modifies, or replaces.
            (4) Treatment.--Each enforceable requirement shall be 
        deemed, for purposes of enforcement, to be a permit issued 
        under, a condition imposed by, or a requirement of the statute 
        or rule under which the otherwise-applicable requirement that 
        the agreement modifies, waives, or replaces was imposed.
            (5) Enforceability.--Each enforceable requirement shall be 
        enforceable in the same manner and to the same extent (by the 
        United States, by a State or Indian tribe, or by any other 
        person) as the otherwise-applicable requirement would have been 
        enforceable but for the agreement.
            (6) New enforceable requirement derived from or imposed 
        under current law.--An enforceable requirement that does not 
        modify, waive, or replace a requirement shall be enforceable in 
        the same manner and to the same extent as a permit, condition, 
        or requirement under the statute or rule from or under which 
        the enforceable requirement derives or is imposed.
            (7) Enforceable requirement that does not modify, waive, or 
        replace another requirement.--If an enforceable requirement 
        does not derive from or is not imposed under any statutory or 
        regulatory provision, the agreement shall specify the statute 
        under which the enforceable requirement shall be deemed to be 
        imposed for purposes of enforcement and shall be enforceable 
        (by the United States, a State, Indian tribe, and by other 
        persons) in the same manner and to the same extent as a permit, 
        condition, or requirement under that statute or regulation.
            (8) Emergency or imminent hazard authority.--Nothing in 
        this Act limits or affects the Administrator's emergency or 
        imminent hazard authorities.
    (c) Specification of Affected Requirements.--
            (1) In general.--When the Administrator approves an 
        innovative environmental strategy agreement under subsection 
        (a), the Administrator shall specify in the agreement each 
        rule, requirement, policy, or practice that is modified or 
        waived by the innovative agreement.
            (2) No modification or waiver.--Each rule, requirement, 
        policy, or practice not specified pursuant to the preceding 
        sentence is not modified and waived.
    (d) Termination or Modification of Agreement.--
            (1) In general.--The Administrator may terminate or modify 
        an innovative environmental strategy agreement if the 
        Administrator determines that--
                    (A) the strategy fails or will fail to achieve the 
                better environmental results identified pursuant to 
                section 7;
                    (B) better environmental results are no longer 
                being achieved by the strategy by reason of the 
                enactment of a new provision of law or promulgation of 
                a new regulation;
                    (C) there has been noncompliance with the terms of 
                the agreement (including a voluntary commitment);
                    (D) there has been a change or transfer in 
                ownership or operational control of the facility to 
                which the agreement relates, or a material change, 
                alteration, or addition to the facility; or
                    (E) any other event specified in the agreement as a 
                ground for termination or modification has occurred.
            (2) Effect.--On termination of an innovative environmental 
        strategy agreement, the owner or operator of the facility to 
        which the agreement related shall immediately become subject to 
        each otherwise-applicable requirement (as defined in subsection 
        (b)).
    (e) Term of Agreement.--
            (1) In general.--The term of an innovative environmental 
        strategy agreement shall not exceed 5 years, unless the 
        Administrator determines, after considering the views of the 
        stakeholders, that--
                    (A) a longer period of time is required--
                            (i) to achieve the better environmental 
                        results identified under section 7; or
                            (ii) in a case in which a proponent is 
                        making a substantial investment in reliance on 
                        the agreement, to ensure a reasonable degree of 
                        confidence that the investment will be 
                        recovered; and
                    (B) the requirements of section 7 continue to be 
                met.
            (2) Extension or renewal.--In consultation with the 
        stakeholders and with the concurrence of the signatories to the 
        agreement and after public notice and opportunity for comment 
        consistent with section 8, the Administrator may extend or 
        renew an agreement for an additional term or terms, but the 
        Administrator may not extend or renew an agreement if the 
        extension or renewal would not further the purposes of this Act 
        or the strategy would no longer meet the requirements of 
        section 7.

SEC. 11. JUDICIAL REVIEW.

    (a) Failure To Perform Nondiscretionary Act or Duty.--
            (1) In general.--Any person may commence a civil action in 
        the United States District Court for the District of Columbia 
        against the Administrator for failure to perform an act or duty 
        under this Act that is not discretionary with the 
        Administrator.
            (2) Timing.--No action may be commenced under subsection 
        (a) before the date that is 60 days after the date on which the 
        plaintiff gives notice to the Administrator of the act or duty 
        that the Administrator has failed to perform and of the intent 
        of the plaintiff to commence the action.
    (b) Decision To Enter Into Agreement.--
            (1) In general.--A person other than a signatory to an 
        innovative environmental strategy agreement may seek judicial 
        review of a decision by the Administrator to enter into such an 
        agreement in accordance with chapter 7 of title 5, United 
        States Code.
            (2) Appeal.--A petition on appeal of a judgment in a civil 
        action under this subsection shall be filed in the United 
        States Court of Appeals for the District of Columbia Circuit 
        not later than 90 days after the date on which public notice of 
        the decision to enter into the agreement is published under 
        section 8(b).
    (c) No Judicial Review of or Record Justification for Decision Not 
To Enter Into Agreement.--A decision not to enter into, modify, renew, 
or enter into negotiations toward an innovative environmental strategy 
agreement and decisions under section 6 regarding the stakeholder 
process shall not be subject to judicial review and shall not require 
record justification by the Administrator.

SEC. 12. LIMITATION ON NUMBER OF AGREEMENTS.

    (a) In General.--The Administrator shall not enter into more than 
50 innovative environmental strategy agreements unless, in the 
Administrator's sole discretion, and taking into account the full range 
of the agency's obligations, the Administrator determines that adequate 
resources exist to enter into a greater number of agreements.
    (b) Limit.--The Administrator, in the Administrator's sole 
discretion, may limit the number of agreements to less than 50.
    (c) Priority Consideration Diversity.--The Administrator shall--
            (1) give priority consideration to proposals from small 
        businesses; and
            (2) seek to ensure that the agreements entered into reflect 
        proposals from a diversity of industrial sectors, particularly 
        from sectors where there is significant potential for 
        environmental improvement.

SEC. 13. SMALL BUSINESS PROPOSALS.

    The Administrator shall establish a program to facilitate 
development of proposals for innovative environmental strategies from 
small businesses and groups of small businesses and to provide for 
expedited and tailored review of such proposals.

SEC. 14. SAVINGS CLAUSE.

    (a) Effect of Decisions by the Administrator.--A decision by the 
Administrator to enter into an agreement under this Act shall not 
affect the validity or applicability of any rule, requirement, policy, 
or practice, that is modified or waived in the agreement with respect 
to any facility other than the facility that is subject to the 
agreement.
    (b) Other Agreements.--Nothing in this Act affects the authority of 
the Administrator in existence on the date of enactment of this Act to 
enter into or carry out agreements providing for innovative 
environmental strategies or affects any other existing authority under 
which the Administrator may undertake innovative initiatives.
    (c) Other Federal Agencies.--Nothing in this Act affects the 
regulatory or enforcement authority of any other Federal agency under 
the laws implemented by the Federal agency except to the extent 
provided in an agreement to which the other Federal agency is a party.
    (d) Limits on Purposes and Uses of Agreements.--An agreement under 
this Act--
            (1) may not be adopted for the purpose of curing or 
        addressing past or ongoing violations or noncompliance at a 
        participating facility;
            (2) may not be used as a legal or equitable defense by any 
        party or facility not party to the agreement, or by a party to 
        the agreement as a defense in an action unrelated to any 
        requirement imposed under the agreement;
            (3) shall not limit or affect the Administrator's authority 
        to issue new generally applicable regulations or to apply 
        regulations to the facility that is the subject of the 
        agreement;
            (4) shall not give rise to any claim for damages or 
        compensation in the event of a change in statutes or 
        regulations applicable to such facility; and
            (5) shall not be admissible for any purpose in any judicial 
        proceeding other than a proceeding to challenge, defend, or 
        enforce the agreement.
    (e) Applicable Law.--
            (1) Contract law.--An innovative environmental strategy 
        agreement--
                    (A) shall not be interpreted or applied according 
                to contract law principles; and
                    (B) shall not be subject to contract or other 
                common law defenses.
            (2) OSHA.--For purposes of section 4(b)(1) of the 
        Occupational Safety and Health Act of 1970 (29 U.S.C. 
        653(b)(1)), the exercise by the Administrator of any authority 
        under this Act shall not be deemed to constitute or exercise of 
        authority to prescribe or enforce a standard or regulation 
affecting occupational safety or health.

SEC. 15. EVALUATION AND REPORT.

    (a) Evaluation.--The Administrator shall establish an ongoing 
process with public participation to--
            (1) evaluate lessons learned from innovative environmental 
        strategies; and
            (2) determine whether the approaches embodied in an 
        innovative environmental strategy should be proposed for 
        incorporation in an agency rule.
    (b) Reports.--
            (1) Individual strategies.--Not later than 18 months after 
        entering into an innovative environmental strategy agreement, 
        the Administrator shall submit to Congress a report evaluating 
        whether the approaches embodied in an innovative environmental 
        strategy should be proposed for incorporation in a statute or a 
        regulation.
            (2) Aggregate effect.--Not later than 3 years after the 
        date of enactment of this Act, the Administrator shall submit 
        to Congress a report on the aggregate effect of the innovative 
        environmental strategy agreements entered into under this Act, 
        including--
                    (A) the number and characteristics of the 
                agreements;
                    (B) estimates of the environmental and public 
                health benefits, including any reductions in quantities 
                or types of emissions and wastes generated;
                    (C) estimates of the effect on compliance costs;
                    (D) the degree and nature of public participation 
                and accountability;
                    (E) estimates of nonenvironmental benefits 
                obtained;
                    (F) conclusions on the functioning of the 
                stakeholder participation process; and
                    (G) a comparison of effectiveness of the program 
                relative to comparable State programs, using comparable 
                performance measures.

SEC. 16. IMPLEMENTATION AUTHORITY.

    The Administrator may issue such regulations as are necessary to 
carry out the agency's functions under this Act.

SEC. 17. TECHNICAL ASSISTANCE GRANTS.

    The Administrator may establish a program to provide grants for 
technical assistance to stakeholder groups.

SEC. 18. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to the agency to carry out 
this Act $4,000,000 for each of fiscal years 1999 through 2003 
(including such sums as are necessary to provide technical assistance 
to stakeholder groups).
                                 <all>