SENATE BILL No. 1306

May 9, 2002, Introduced by Senators MC COTTER, MILLER, HART, GOSCHKA, NORTH,

BENNETT, DE BEAUSSAERT, BULLARD, SANBORN, PETERS and BYRUM and

referred to the Committee on Natural Resources and Environmental Affairs.

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 3115 (MCL 324.3115).

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

2 eral to commence a civil action for appropriate relief, including

3 a permanent or temporary injunction, for a violation of this part

4 or a provision of a permit, order, rule, or stipulation of the

5 department. An action under this subsection may be brought in

6 the circuit court for the county of Ingham or for the county in

7 which the defendant is located, resides, or is doing business.

8 The court has jurisdiction to restrain the violation and to

9 require compliance. In addition to any other relief granted

10 under this subsection, the court shall impose a civil fine of not

11 less than $2,500.00 $5,000.00 and may award reasonable attorney

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1 fees and costs to the prevailing party. However, the maximum

2 fine imposed by the court shall be not more than $25,000.00

3 $50,000.00 per day of violation.

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

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

6 part, or contrary to a permit, order, rule, or stipulation of the

7 department, or who intentionally makes a false statement, repre-

8 sentation, or certification in an application for or ON A form

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

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

11 renders inaccurate a monitoring device or record required to be

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

13 fined not less than $2,500.00 $5,000.00 or more than

14 $25,000.00 $50,000.00 for each violation. The court may impose

15 an additional fine of not more than $25,000.00 $50,000.00 for

16 each day during which the unlawful discharge occurred. If the

17 conviction is for a violation committed after a first conviction

18 of the person under this subsection, the court shall impose a

19 fine of not less than $25,000.00 $50,000.00 per day and not

20 more than $50,000.00 $100,000.00 per day of violation. Upon

21 conviction, in addition to a fine, the court in its discretion

22 may sentence the defendant to imprisonment for not more than 2

23 4 years or impose probation upon a person for a violation of this

24 part. With the exception of the issuance of criminal complaints,

25 issuance of warrants, and the holding of an arraignment, the cir-

26 cuit court for the county in which the violation occurred has

27 exclusive jurisdiction. However, the A person shall IS not

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1 be subject to the penalties of this subsection if the discharge

2 of the effluent is in conformance with and obedient to a rule,

3 order, or permit of the department. In addition to a fine, the

4 attorney general may file a civil suit in a court of competent

5 jurisdiction to recover the full value of the injuries done to

6 the natural resources of the state and the costs of surveillance

7 and enforcement by the state resulting from the violation.

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

9 defendant pose or posed a substantial endangerment to the public

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

11 to the penalties SANCTIONS set forth in subsection (1), a CIVIL

12 fine of not less than $500,000.00 $1,000,000.00 and not more

13 than $5,000,000.00 $10,000,000.00.

14 (4) Upon a finding by the court that the actions of a crimi-

15 nal defendant pose or posed a substantial endangerment to the

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

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

18 not less than $1,000,000.00 $2,000,000.00 and, in addition to a

19 fine, a sentence of 5 10 years' imprisonment.

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

21 substantial endangerment under subsections (3) and (4), the court

22 shall determine that the defendant knowingly or recklessly acted

23 in such a manner as to cause a danger of death or serious bodily

24 injury and that either of the following occurred:

25 (a) The defendant had an actual awareness, belief, or under-

26 standing that his or her conduct would cause a substantial danger

27 of death or serious bodily injury.

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

2 of care that any reasonable person should observe in similar

3 circumstances.

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

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

6 defendant took affirmative steps to shield himself or herself

7 from the relevant information.

8 (7) Any fine or other award ordered paid pursuant to this

9 section shall do both ALL of the following:

10 (a) Be payable to the state of Michigan. and

11 (B) BE credited to the general fund IF THE FINE OR AWARD WAS

12 RECOVERED IN A CIVIL ACTION.

13 (C) (b) Constitute a lien on any property, of any nature

14 or kind, owned by the defendant.

15 (8) A lien under subsection (7)(b) (7)(C) shall take

16 effect and have priority over all other liens and encumbrances

17 except those filed or recorded prior to the date of judgment only

18 if notice of the lien is filed or recorded as required by state

19 or federal law.

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

21 shall be terminated according to the procedures required by state

22 or federal law within 14 days after the fine or other award

23 ordered to be paid is paid.

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

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

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

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

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