West Virginia’s Draft Sustainability and Environmental Excellence (SEE) Bill

On November 6, 2009, the West Virginia Department of Environmental Protection (WVDEP) released a draft bill titled “Sustainability and Environmental Excellence Program,” that the agency intends to brand as “SEE Change”. It is anticipated that the legislation, or a version of the legislation, will be introduced during the 2010 Legislative Session. The SEE Program is intended to replace the state Environmental Excellence Program, W. Va. Code §§ 22-25-1 et seq. (2009 Repl. Vol.), that was automatically repealed on June 30, 2009. To read the full text of the draft SEE bill, click here.  

With the repeal of the state Environmental Excellence Program, the WVDEP convened a task force to consider the future of the program in West Virginia in light of the U.S. Environmental Protection Agency’s termination of its National Performance Track Program which the state Environmental Excellence Program was intended to mirror. The task force consisted of representatives from industry, manufacturing, electric power generation, tourism, government, academic circles, and environmental and community groups.  

The SEE Program is broader in scope than the Environmental Excellence Program. The purpose of the SEE Program, as stated in the draft bill, is to “promote, inspire, and reward leadership and excellence in developing and implementing sustainable strategies that include an emphasis on integrating societal, environmental, and economic benefits.” Goals of the program would include setting “measurable and identifiable goals for reducing [participants’] environmental footprint,” “promoting strategies, technologies and programs that incentivize sustainability and environmental stewardship,” and “lowering the barriers to and the costs associated with sustainable operational processes and procedures”.  

The draft bill contemplates that the WVDEP Secretary would establish an executive committee to assist in the administration of the program. The committee would consist of the WVDEP Secretary, the Secretary of the Department of Commerce, the Secretary of the Department of Revenue, the Secretary of the Department of Administration, the Secretary of the Department of Education, the Chair of the Public Service Commission, at least one person who represents local governments, at least one person who represents industries regulated by the WVDEP or their trade associations, at least one person who represents organized labor, at least one person who represents organizations advocating environmental protection, and at least two persons who represent the public at large.  

The executive committee would be tasked with studying the issues, developing a long-term strategy, and issuing a report to the Legislature by July 1, 2011. The report to the Legislature would contain recommendations concerning appropriate methods to encourage the development of the SEE Program, any legislation to incentivize participation in the program, methods of facilitating the wide-spread implementation of companion sustainability and environmental excellence programs throughout West Virginia, methods of financing program operations, and the executive committee’s long-term strategy for the promotion of sustainability and environmental excellence in West Virginia. The executive committee would also assist the WVDEP in developing and promulgating legislative rules implementing the program.  

While the state Environmental Excellence Program was limited to incentives granted by the WVDEP, the draft SEE bill seeks to expand the scope of incentives by authorizing the WVDEP Secretary to negotiate with federal regulatory agencies and state and local agencies within West Virginia to obtain authority to grant incentives under federal and other state or local programs. Examples of incentive categories that the executive committee would be tasked with considering include: marketing support and recognition; capacity building; single points of contact, streamlined communication, and technical assistance at the WVDEP and any other interested agency; tax benefits; reduced energy or water rates based upon implemented facility-wide conservation measures; access to low cost capital in the form of state and private loans or state and federal grants or priority assistance for local economic development funds; “consideration” regarding monitoring, inspections, reporting, and permitting; membership discounts to trade associations and green business networks; and expedited consideration for zoning variations by local government entities. 

The draft bill would set minimum criteria for registration and for participation in the program and authorize the WVDEP Secretary to establish additional program elements. The minimum criteria are set forth in section 6 of the draft bill and extend well beyond traditional environmental matters. The minimum criteria for registration would include: “compliance with environmental laws,” “commitment[s] to develop a sustainability policy[,]…an environmental management system[, and] …a pollution prevention and conservation plan,” and “commitment[s] to transparency,… community involvement,…economic development,…and leadership development”. Minimum criteria for participation would include: “sustained compliance with environmental laws,” “well developed sustainability policy[,]…environmental management system,…[and] pollution prevention and conservation plan,” “transparency, openness, communication, and accountability in operations,” “active community involvement,” and “active participation in economic development…and…leadership development”.  

To implement the SEE Program, the WVDEP Secretary and participants would enter into a SEE performance agreement. Similarly, under the Environmental Excellence Program, the WVDEP Secretary and program participants entered into performance agreements. The contents of the performance agreements under the Environmental Excellence Program and the draft bill are very similar with one exception. The one exception is that the Environmental Excellence Program included a plan for integrating into the agreement any relevant regulations that are promulgated during the duration of the agreement. The draft SEE bill does not list a similar provision for the contents of the SEE performance agreement. 

Under both the former Environmental Excellence Program and the proposed SEE Program, any participant may elect to withdraw from membership in the program at any time upon written notice. Under the Environmental Excellence Program, the notice was given to the WVDEP Secretary, whereas under the SEE Program, the notice would be given to the executive committee. The executive committee would also have authority to continue, suspend, or terminate the membership of any participant in the program.  

Unlike the Environmental Excellence Program, the draft SEE bill does not include provisions for judicial review of the WVDEP’s decision on acceptance of applications to participate in the program. Nor does the draft SEE bill require the WVDEP Secretary to propose legislative rules establishing incentives to be granted to any participant that complies with all of the mandatory program elements.  

The draft bill attempts to address funding. The WVDEP Secretary would be authorized to receive on behalf of the state for deposit into the state treasury any monies that state institutions of higher learning or state or federal agencies may be authorized to transfer to the Secretary, and all gifts, donations, or contributions that private entities or others may provide to defray the expense of administering program. Any amounts so received would be expended by the WVDEP solely for the purposes of the SEE Program. The bill tasks the Executive Committee with developing funding mechanisms for financing program operations, including the creation of a trust fund in the state treasury with the funds dedicated and appropriated to the WVDEP to administer the program. The Environmental Excellence Program included a similar funding concept. See W. Va. Code 22-25-11. However, the Environmental Excellence Program also authorized the WVDEP Secretary to establish by legislative rule reasonable application, renewal and administration fees to recover the cost to the agency in developing, negotiating and publicizing an environmental performance agreement. The draft SEE bill does not contain a similar cost recovery provision. 

The draft bill provides that the SEE Program would sunset June 30, 2015. Comments on the draft bill have been requested by November 20, 2009. Comments are to be submitted directly to the WVDEP’s contractor and addressed to adam.saslow@plexusli.com. The draft bill will be presented as a point of information to the Advisory Council on December 9, 2009.  

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.