[Congressional Record Volume 143, Number 149 (Thursday, October 30, 1997)]
[Senate]
[Pages S11457-S11462]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

   By Mr. LIEBERMAN (for himself, Mr. Daschle, Mr. Moynihan, and Mr. 
                                Kerrey):

  S. 1348. A bill to provide for innovative strategies for achieving 
superior environmental performance, and for other purposes; to the 
Committee on Environment and Public Works.


          the innovative environmental strategies act of 1997

  Mr. LIEBERMAN. Mr. President, I am pleased to introduce today The 
Innovative Environmental Strategies Act of l997. I'm honored that 
Senators Daschle, Moynihan, and Kerrey have joined me as cosponsors, 
and that the legislation is being introduced in the House by 
Congressman Dooley and Congresswoman Tauscher. I'm also very pleased 
that the legislation has been endorsed by the Clinton administration 
and has received positive responses from representatives of industry 
and environmental groups. I look forward to a process of building 
further consensus on this bill from all affected interests.
  The legislation allows companies to propose alternatives to 
environmental requirements if those alternative proposals will achieve 
better environmental performance. The legislation provides EPA with the 
authority to waive or modify regulatory requirements for this purpose. 
It is designed to encourage more pollution prevention and to promote 
better, more cost-effective solutions for environmental protection.
  This legislation seeks to build on both the work of President 
Clinton's Project XL--standing for excellence and leadership--and the 
Aspen Institute which undertook a 3-year effort to reach consensus 
among a wide group of divergent interests on an alternative path to 
achieving a cleaner, cheaper way to protect and enhance the 
environment. The Aspen Institute's work resulted in an excellent 
report, ``The Alternative Path, A Cleaner, Cheaper Way to Protect and 
Enhance the Environment.''
  This bill modifies legislation introduced at the end of last 
Congress. At that time, I indicated that I welcomed all proposals and 
suggestions on how to alter and improve the bill. I have received a 
significant number of comments from industry, governmental and 
environmental group representatives. The new bill attempts to reflect 
many of those comments, in addition to a new GAO report examining EPA's 
reinvention efforts, ``Challenges Facing EPA's Efforts to Reinvent 
Environmental Regulation,'' and a recently released report by the 
National Academy of Public Administration, ``Resolving the Paradox of 
Environmental Protection.'' The National Academy report recommends 
statutory authorization for EPA's XL program.
  There is clearly a wide consensus in this country that our 
environmental laws have performed remarkably well. As the writer Gregg 
Easterbrook has pointed out, environmental protection is probably the 
single greatest success story of American government in the period 
since World War II.
  In many cases, however, we need to do more to provide the level of 
protection most Americans expect from government. For example, over one 
third of our rivers and lakes still do not fully meet water quality 
standards. Health advisories for eating fish have increased. The number 
of people suffering from asthma has reached epidemic proportions in 
some communities, particularly among children.
  Pollution prevention--preventing pollution before it occurs--is one 
approach that can help us do both better both in terms of protecting 
the environment and actually saving companies money. The greater 
efficiency resulting from less waste disposal and reduced use of toxic 
chemicals can significantly bolster the competitiveness of companies.
  Recently, I listened to a presentation indicating that perhaps the 
Nation is not doing as well in pollution prevention as we should be. A 
l995 report by the research group INFORM, ``Toxics Watch l995,'' 
reviewed thousands of documents submitted by industry to EPA to show 
whether progress was made to further pollution prevention. While 25 
percent of the forms indicated some effort in pollution prevention had 
been made, the remaining 75 percent gave no such indication. And, 
according to INFORM, while some leading companies have taken major 
pollution prevention steps, the broader picture is troublesome: total 
waste generation is increasing.
  While these facts show there is clearly a need to improve protection 
of our environment and pollution prevention, there is just as clearly a 
need to review our methods of environmental protection in order to find 
better, more efficient, more innovative ways to achieve greater 
progress toward meeting our environmental goals. In some cases, the 
traditional approaches to regulation have hindered companies from doing 
a better job at pollution prevention.
  There is a growing consensus that innovative environmental strategies 
can form the basis for a new approach to environmental protection that 
will

[[Page S11458]]

achieve superior environmental results, including greater pollution 
prevention, at less cost for regulated industry. This consensus can be 
seen, for example, in the work of the President's Council on 
Sustainable Development which brought together leaders from government, 
environmental, civil rights, labor and native American organizations in 
an effort to achieve consensus on national environmental, economic and 
social goals, as well as in the work of the Aspen Institute.
  This bill establishes an innovative environmental strategies program 
at EPA. The Administrator of EPA is authorized to enter into 
approximately 50 agreements with regulated entities seeking 
modifications or waivers from environmental requirements if certain 
criteria are met. The basic premise of the bill is that better 
environmental performance can be achieved by allowing environmental 
managers at companies, in partnership with an active group of community 
stakeholders, to develop their own means of reaching environmental 
goals. This approach recognizes that the regulated industry is now in 
an excellent position to experiment and decide what approaches will 
yield better environmental results than the company is achieving under 
existing regulations. Allowing flexibility can substantially reduce 
compliance costs and make industries more competitive, provide for much 
greater community involvement in the decisions of their neighboring 
industrial plants, foster more cooperative partnerships, and encourage 
greater innovation and pollution prevention.
  Another key element of this program is incorporating the lessons 
learned from the innovative environmental strategies into the overall 
regulatory structure of the Agency, where appropriate.
  While the bill authorizes approximately 50 innovative strategy 
agreements, these individual strategies should have widespread benefits 
for other companies as the Agency incorporates the lessons learned into 
its overall approach to environmental protection.
  Let me discuss a few specific provisions of the bill.
  First, the bill establishes benchmarks from which to determine 
whether better environmental results will be achieved under the 
innovative environmental strategy. For existing facilities, the 
benchmark generally will be either the level of releases of a pollutant 
into the air, land or water actually being achieved by the facility or 
the level of releases allowed under the applicable regulatory 
requirements and reasonably foreseeable future requirements, whichever 
is lower. The Administrator is given some flexibility in determining 
the appropriate measurement for the benchmark. For example, measuring 
releases per unit of production encourages pollution prevention but may 
result in releases of concern to the community; the Administrator 
should take both these factors into account in determining whether a 
per unit measurement is appropriate. The Administrator shall determine 
whether an innovative environmental strategy achieves better 
environmental results based on the magnitude of reduction in the level 
of releases or improvement in pollution prevention relative to each 
benchmark. In addition, the Administrator shall evaluate other benefits 
that would result from the strategy. These include whether the strategy 
results in environmental performance more protective than the best 
performance practice of comparable facilities or improvement in 
environmental conditions that are priorities to stakeholders, even if 
those conditions are not regulated under EPA statutes.
  Different types of innovative environmental strategies are possible 
under this legislation. For example, in some cases, a facility may 
demonstrate better environmental results by showing a reduction in 
releases of pollutants and, in exchange, seek a modification of 
reporting or other paperwork requirements. In other cases, a facility 
may demonstrate better environmental results by showing a reduction in 
releases of pollutants, but seek modification of a rule to allow for 
flexibility with respect to emission levels at different sources within 
the facility. There may be some cases where the innovative 
environmental strategy would result in large decreases in some 
pollutants while resulting in a small increase in another pollutant. 
But there are a number of specific requirements that must be met under 
those circumstances. Among other requirements, the Administrator must 
determine, based on a well-established analytic methodology acceptable 
both to the Administrator and the stakeholders, that the strategy will 
achieve better overall environmental results with an adequate margin of 
safety and will not 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. I 
recognize that it is difficult to make such determinations because we 
have inadequate information about many chemicals and we often do not 
know how properly to evaluate cumulative or synergistic effects. The 
Administrator should pay close attention to these factors in evaluating 
projects. These examples are only illustrative of a range of potential 
projects.

  The bill also provides that in appropriate cases, the Administrator 
may establish a benchmark for measuring better environmental 
performance based on pollution prevention.
  The bill requires that the innovative environmental strategy provide 
a means and level of accountability, monitoring, enforceability and 
public access to information for all enforceable provisions at least 
equivalent to that provided by the rule that is being modified or 
waived. A related requirement is that adequate information must be made 
accessible so that any member of the public can verify environmental 
performance. Other requirements that must be met by the petitioner are 
set forth in section 7.
  Effective stakeholder participation is the second key element of the 
legislation. Any company submitting a proposal must undertake a 
stakeholder participation process. One of the criteria for approval of 
a project by EPA is that the stakeholders have obtained adequate 
independent technical support for an effective stakeholder process. 
Under the bill, the stakeholder process is open to anyone, except a 
business competitor, subject to manageability factors. The stakeholder 
group should genuinely represent the full range of interests affected 
by projects and the policies to be shaped by projects. Involving 
citizens, including workers and members of the local community, in the 
development of an innovative environmental strategy is absolutely 
critical. Companies that have formulated successful innovative 
environmental strategies have told me that without the support of the 
local community these strategies simply will not work. Empowerment of 
the local community through stakeholder processes will help build trust 
and make implementation of the agreement easier. In other words, the 
innovative environmental strategy should be a partnership between the 
proponent and the stakeholders.
  The bill requires the Administrator to give great weight to the views 
of the stakeholders. Obtaining broad community support for the 
strategy, as shown through stakeholder support, is very important. 
Additionally, the stakeholders and the proponent of the strategy may 
decide as part of the guidelines setting up the stakeholder process, 
that the stakeholders as a group or individual stakeholder participants 
should have a veto right with respect to whether the strategy goes 
forward. If the proponent still presents a proposal for the strategy 
even with such objections, the Administrator is required to reject the 
strategy if the objection has a clear and reasonable foundation and 
relates to the criteria for approval. The principle here is simple: 
stakeholders and the facility owner need to come to agreement on the 
guidelines that will govern the project. This agreement on the 
guidelines should be reached at the start of the process. It must be 
followed; if not, the Administrator will not be able to make the 
finding that the requirements of section 6 of the statute have been 
met.
  The bill also attempts to address the recommendations made in the GAO 
report of July 1997, ``Challenges Facing EPA's Efforts to Reinvent 
Environmental Regulation'', which examined EPA's XL program. First, the 
GAO concludes that EPA will be limited in its ability to truly reinvent 
environmental regulation without legislative changes. Second, the GAO 
recommends

[[Page S11459]]

that the Agency's reinvention initiatives include an evaluation 
component measuring the extent to which the initiative has achieved its 
intended effect. Therefore, the bill requires that, within 18 months 
after entering into an agreement, the Administrator provide a report 
evaluating whether the lessons learned from a particular strategy can 
be incorporated into the overall regulatory or statutory structure of 
the Agency. The legislation also requires a broader report to Congress 
within 3 years.
  Finally, the GAO proposes that EPA develop a systematic process that 
would help address problems that come up during reinvention projects in 
a timely fashion. This process should be set up to identify the kinds 
of problems that can be resolved at lower levels within the Agency and 
which should be elevated for management's attention. While the bill 
does not specifically address this recommendation, I hope that EPA will 
seriously examine how it can implement this constructive 
recommendation.
  As the GAO report notes, the EPA has undertaken a broad range of 
reinvention efforts. This legislation in no way affects the ability of 
EPA to proceed under its appropriate authorities with those efforts, 
including agreements under XL.
  I ask unanimous consent that the full text of the legislation be 
included in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1348

       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.

[[Page S11460]]

       (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

[[Page S11461]]

       (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

[[Page S11462]]

     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).
                                 ______