February 1, 2005, Introduced by Reps. Gaffney, Hune, Ward, Gillard, Palsrok, Elsenheimer, Kathleen Law, Tobocman, Bieda, Plakas, Condino, Hood, Vagnozzi, Wojno, Accavitti and Acciavatti and referred to the Committee on Natural Resources, Great Lakes, Land Use, and Environment.
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 143.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3115. (1) The department may request the attorney general
to commence a civil action for appropriate relief, including a
permanent or temporary injunction, for a violation of this part or
a provision of a permit or order issued or rule promulgated under
this part. An action under this subsection may be brought in the
circuit court for the county of Ingham or for the county in which
the defendant is located, resides, or is doing business. If
requested by the defendant within 21 days after service of process,
the court shall grant a change of venue to the circuit court for
the county of Ingham or for the county in which the alleged
violation occurred, is occurring, or, in the event of a threat of
violation, will occur. The court has jurisdiction to restrain the
violation and to require compliance. In addition to any other
relief granted under this subsection, the court, except as
otherwise provided in this subsection, shall impose a civil fine of
not
less than $2,500.00 $5,000.00 and the court may award
reasonable attorney fees and costs to the prevailing party.
However, all of the following apply:
(a) The maximum fine imposed by the court shall be not more
than
$25,000.00 $50,000.00 per day of violation.
(b) For a failure to report a release to the department or to
the primary public safety answering point under section 3111b(1),
the court shall impose a civil fine of not more than $2,500.00.
(c) For a failure to report a release to the local health
department under section 3111b(2), the court shall impose a civil
fine of not more than $500.00.
(2) A person who at the time of the violation knew or should
have known that he or she discharged a substance contrary to this
part, or contrary to a permit or order issued or rule promulgated
under this part, or who intentionally makes a false statement,
representation, or certification in an application for or form
pertaining to a permit or in a notice or report required by the
terms and conditions of an issued permit, or who intentionally
renders inaccurate a monitoring device or record required to be
maintained by the department, is guilty of a felony and shall be
fined
not less than $2,500.00 $5,000.00 or more than $25,000.00
$50,000.00 for each violation. The court may impose an additional
fine
of not more than $25,000.00 $50,000.00 for each day during
which the unlawful discharge occurred. If the conviction is for a
violation committed after a first conviction of the person under
this
subsection, the court shall impose a fine of not less than
$25,000.00
$50,000.00 per day and not
more than $50,000.00
$100,000.00 per day of violation. Upon conviction, in addition to a
fine, the court in its discretion may sentence the defendant to
imprisonment for not more than 2 years or impose probation upon a
person for a violation of this part. With the exception of the
issuance of criminal complaints, issuance of warrants, and the
holding of an arraignment, the circuit court for the county in
which the violation occurred has exclusive jurisdiction. However,
the person shall not be subject to the penalties of this subsection
if the discharge of the effluent is in conformance with and
obedient to a rule, order, or permit of the department. In addition
to a fine, the attorney general may file a civil suit in a court of
competent jurisdiction to recover the full value of the injuries
done to the natural resources of the state and the costs of
surveillance and enforcement by the state resulting from the
violation.
(3) Upon a finding by the court that the actions of a civil
defendant pose or posed a substantial endangerment to the public
health, safety, or welfare, the court shall impose, in addition to
the
sanctions set forth in subsection (1), a fine of not less than
$500,000.00
$1,000,000.00 and not more
than $5,000,000.00
$10,000,000.00.
(4) Upon a finding by the court that the actions of a criminal
defendant pose or posed a substantial endangerment to the public
health, safety, or welfare, the court shall impose, in addition to
the
penalties set forth in subsection (2), a fine of not less than
$1,000,000.00
$2,000,000.00 and, in
addition to a fine, a sentence
of 5 years' imprisonment.
(5) To find a defendant civilly or criminally liable for
substantial endangerment under subsection (3) or (4), the court
shall determine that the defendant knowingly or recklessly acted in
such a manner as to cause a danger of death or serious bodily
injury and that either of the following occurred:
(a) The defendant had an actual awareness, belief, or
understanding that his or her conduct would cause a substantial
danger of death or serious bodily injury.
(b) The defendant acted in gross disregard of the standard of
care that any reasonable person should observe in similar
circumstances.
(6) Knowledge possessed by a person other than the defendant
under subsection (5) may be attributable to the defendant if the
defendant took affirmative steps to shield himself or herself from
the relevant information.
(7) A civil fine or other award ordered paid pursuant to this
section shall do both of the following:
(a) Be payable to the state of Michigan and credited to the
general fund.
(b) Constitute a lien on any property, of any nature or kind,
owned by the defendant.
(8)
A lien under subsection (7)(b) shall take takes
effect
and
have has priority over all other liens and encumbrances
except those filed or recorded prior to the date of judgment only
if notice of the lien is filed or recorded as required by state or
federal law.
(9) A lien filed or recorded pursuant to subsection (8) shall
be terminated according to the procedures required by state or
federal law within 14 days after the fine or other award ordered to
be paid is paid.
(10) In addition to any other method of collection, any fine
or other award ordered paid may be recovered by right of setoff to
any debt owed to the defendant by the state of Michigan, including
the right to a refund of income taxes paid.