SB-0977, As Passed House, May 6, 2004

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 977

                                                                             A bill to amend 1994 PA 451, entitled                                             

"Natural resources and environmental protection act,"                       

by amending section 3115 (MCL 324.3115), as amended by 2004 PA              

91.                                                                         

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1       Sec. 3115.  (1) The department may request the attorney                     

2   general to commence a civil action for appropriate relief,                  

3   including a permanent or temporary injunction, for a violation of           

4   this part or a provision of a permit  , order, rule, or                     

5   stipulation of the department or order issued or rule                      

6   promulgated under this part.  An action under this subsection may           

7   be brought in the circuit court for the county of Ingham or for             

8   the county in which the defendant is located, resides, or is                

9   doing business.  If requested by the defendant within 21 days               

10  after service of process, the court shall grant a change of venue           

1   to the circuit court for the county of Ingham or for the county             

2   in which the alleged violation occurred, is occurring, or, in the           

3   event of a threat of violation, will occur.  The court has                  

4   jurisdiction to restrain the violation and to require                       

5   compliance.  In addition to any other relief granted under this             

6   subsection, the court, except as otherwise provided in this                 

7   subsection, shall impose a civil fine of not less than $2,500.00            

8   and the court may award reasonable attorney fees and costs to the           

9   prevailing party.  However,  the all of the following apply:               

10      (a) The maximum fine imposed by the court shall be not more                 

11  than $25,000.00 per day of violation.                                       

12  (b) For a failure to report a release to the department or                  

13  to the primary public safety answering point under section                  

14  3111b(1), the court shall impose a civil fine of not more than              

15  $2,500.00.

16  (c) For a failure to report a release to the local health                   

17  department under section 3111b(2), the court shall impose a civil           

18  fine of not more than $500.00.

19      (2) A person who at the time of the violation knew or should                

20  have known that he or she discharged a substance contrary to this           

21  part, or contrary to a permit  , order, rule, or stipulation of             

22  the department or order issued or rule promulgated under this              

23  part, or who intentionally makes a false statement,                         

24  representation, or certification in an application for or form              

25  pertaining to a permit or in a notice or report required by the             

26  terms and conditions of an issued permit, or who intentionally              

27  renders inaccurate a monitoring device or record required to be             

1   maintained by the department, is guilty of a felony and shall be            

2   fined not less than $2,500.00 or more than $25,000.00 for each              

3   violation.  The court may impose an additional fine of not more             

4   than $25,000.00 for each day during which the unlawful discharge            

5   occurred.  If the conviction is for a violation committed after a           

6   first conviction of the person under this subsection, the court             

7   shall impose a fine of not less than $25,000.00 per day and not             

8   more than $50,000.00 per day of violation.  Upon conviction, in             

9   addition to a fine, the court in its discretion may sentence the            

10  defendant to imprisonment for not more than 2 years or impose               

11  probation upon a person for a violation of this part.  With the             

12  exception of the issuance of criminal complaints, issuance of               

13  warrants, and the holding of an arraignment, the circuit court              

14  for the county in which the violation occurred has exclusive                

15  jurisdiction.  However, the person shall not be subject to the              

16  penalties of this subsection if the discharge of the effluent is            

17  in conformance with and obedient to a rule, order, or permit of             

18  the department.  In addition to a fine, the attorney general may            

19  file a civil suit in a court of competent jurisdiction to recover           

20  the full value of the injuries done to the natural resources of             

21  the state and the costs of surveillance and enforcement by the              

22  state resulting from the violation.                                         

23      (3) Upon a finding by the court that the actions of a civil                 

24  defendant pose or posed a substantial endangerment to the public            

25  health, safety, or welfare, the court shall impose, in addition             

26  to the  penalties sanctions set forth in subsection (1), a fine            

27  of not less than $500,000.00 and not more than $5,000,000.00.               

1       (4) Upon a finding by the court that the actions of a                       

2   criminal defendant pose or posed a substantial endangerment to              

3   the public health, safety, or welfare, the court shall impose, in           

4   addition to the penalties set forth in subsection (2), a fine of            

5   not less than $1,000,000.00 and, in addition to a fine, a                   

6   sentence of 5 years' imprisonment.                                          

7       (5) To find a defendant civilly or criminally liable for                    

8   substantial endangerment under  subsections (3) and subsection             

9   (3) or (4), the court shall determine that the defendant                    

10  knowingly or recklessly acted in such a manner as to cause a                

11  danger of death or serious bodily injury and that either of the             

12  following occurred:                                                         

13      (a) The defendant had an actual awareness, belief, or                       

14  understanding that his or her conduct would cause a substantial             

15  danger of death or serious bodily injury.                                   

16      (b) The defendant acted in gross disregard of the standard of               

17  care that any reasonable person should observe in similar                   

18  circumstances.                                                              

19      (6) Knowledge possessed by a person other than the defendant                

20  under subsection (5) may be attributable to the defendant if the            

21  defendant took affirmative steps to shield himself or herself               

22  from the relevant information.                                              

23      (7) A civil fine or other award ordered paid pursuant to this               

24  section shall do both of the following:                                     

25      (a) Be payable to the state of Michigan and credited to the                 

26  general fund.                                                               

27      (b) Constitute a lien on any property, of any nature or kind,               

1   owned by the defendant.                                                     

2       (8) A lien under subsection (7)(b) shall take effect and have               

3   priority over all other liens and encumbrances except those filed           

4   or recorded prior to the date of judgment only if notice of the             

5   lien is filed or recorded as required by state or federal law.              

6       (9) A lien filed or recorded pursuant to subsection (8) shall               

7   be terminated according to the procedures required by state or              

8   federal law within 14 days after the fine or other award ordered            

9   to be paid is paid.                                                         

10      (10) In addition to any other method of collection, any fine                

11  or other award ordered paid may be recovered by right of setoff             

12  to any debt owed to the defendant by the state of Michigan,                 

13  including the right to a refund of income taxes paid.                       

14      Enacting section 1.  This amendatory act does not take                      

15  effect unless House Bill No. 5586 of the 92nd Legislature is                

16  enacted into law.