March 1, 2006, Introduced by Reps. Alma Smith, Miller, Condino, Gleason, Accavitti, Anderson, Leland, Kolb, Brandenburg, Farrah, Stewart, Wojno, David Law, Zelenko, Donigan, Polidori, Hopgood, Lemmons, Jr., Vagnozzi, Kathleen Law, Virgil Smith, Gonzales, Lipsey, Plakas, Clack, Tobocman and Lemmons, III and referred to the Committee on Agriculture.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 3115 and 3120 (MCL 324.3115 and 324.3120),
section 3115 as amended by 2004 PA 143 and section 3120 as added by
2004 PA 91.
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 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 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 a 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 or more than $25,000.00 for each
violation. The court may impose an additional fine of not more than
$25,000.00 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 per day and not
more than $50,000.00 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 authorized
by 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 and not more than $5,000,000.00.
(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 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
must 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) 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 a
violation of this part or a permit or order issued or rule
promulgated under this part.
(8) (7)
A All of the following apply
to a civil fine or
other
award ordered paid pursuant to this section: shall do both
of
the following:
(a) Be
It is payable to the state of Michigan
and shall be
credited as follows:
(i) If the violation was related to a discharge from a CAFO, to
the CAFO cleanup and enforcement fund created under section 8637.
As used in this subparagraph, "CAFO" means that term as defined in
section 8601.
(ii) For violations other than those described in subparagraph
(i), to the general fund.
(b) Constitute
It constitutes a lien on any property , of
any
nature or kind, owned by the defendant.
(8)
A lien under subsection (7)(b) shall take The lien takes
effect
and have has
priority over all other liens and
encumbrances except those filed or recorded prior to the date of
judgment, but only if notice of the lien is filed or recorded as
required by state or federal law.
(9)
A lien If notice of the lien
is filed or recorded,
pursuant
to subsection (8) the lien 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
(c) It may be recovered by right of setoff to any debt owed to
the
defendant by the this state, of Michigan, including the
right to a refund of income taxes paid.
Sec.
3120. (1) Until October 1, 2009, an An application
for
a new permit, a reissuance of a permit, or a modification of an
existing permit under this part authorizing a discharge into
surface water, other than a storm water discharge, shall be
accompanied by an application fee as follows:
(a) For an EPA major facility permit, $750.00.
(b) For an EPA minor facility individual permit, a CSO permit,
or a wastewater stabilization lagoon individual permit, $400.00.
(c) For an EPA minor facility general permit, $75.00.
(2) Within 180 days after receipt of a complete application
for a new or increased use permit, the department shall either
grant or deny the permit, unless the applicant and the department
agree to extend this time period.
(3) By September 30 of the year following the submittal of a
complete application for reissuance of a permit, the department
shall either grant or deny the permit, unless the applicant and the
department agree to extend this time period.
(4) If the department fails to make a decision on an
application within the applicable time period under subsection (2)
or (3), the department shall return to the applicant the
application fee submitted under subsection (1) and the applicant
shall not be subject to an application fee and shall receive a 15%
annual discount on an annual permit fee required for a permit
issued based upon that application.
(5) Until
October 1, 2009, a A person who receives a permit
under this part authorizing a discharge into surface water, other
than a stormwater discharge, is subject to an annual permit fee as
follows:
(a) For an industrial or commercial facility that is an EPA
major facility, $8,700.00.
(b) For an industrial or commercial facility that is an EPA
minor facility, the following amounts:
(i) For a general permit for a low-flow facility, $150.00.
(ii) For a general permit for a high-flow facility, $400.00.
(iii) For an individual permit for a low-flow facility,
$1,650.00.
(iv) For an individual permit for a high-flow facility,
$3,650.00.
(c) For a municipal facility that is an EPA major facility,
the following amounts:
(i) For an individual permit for a facility discharging 500 MGD
or more, $213,000.00.
(ii) For an individual permit for a facility discharging 50 MGD
or more but less than 500 MGD, $20,000.00.
(iii) For an individual permit for a facility discharging 10 MGD
or more but less than 50 MGD, $13,000.00.
(iv) For an individual permit for a facility discharging less
than 10 MGD, $5,500.00.
(d) For a municipal facility that is an EPA minor facility,
the following amounts:
(i) For an individual permit for a facility discharging 10 MGD
or more, $3,775.00.
(ii) For an individual permit for a facility discharging 1 MGD
or more but less than 10 MGD, $3,000.00.
(iii) For an individual permit for a facility discharging less
than 1 MGD, $1,950.00.
(iv) For a general permit for a high-flow facility, $600.00.
(v) For a general permit for a low-flow facility, $400.00.
(e) For a municipal facility that is a CSO facility,
$6,000.00.
(f) For an individual permit for a wastewater stabilization
lagoon, $1,525.00.
(g) For an individual or general permit for an agricultural
purpose, $600.00, unless either of the following applies:
(i) The facility is an EPA minor facility and would qualify for
a general permit for a low-flow facility, in which case the fee
would
be is $150.00.
(ii) The facility is an EPA major facility that is not a
farmers'
cooperative corporation, in which case the fee would be
is $8,700.00.
(h) Notwithstanding any other provision of this subsection,
for an individual permit for a CAFO, the following fee, as
applicable:
(i) For a large CAFO, $5,500.00.
(ii) For a medium CAFO, $1,600.00.
(iii) For a small CAFO, $600.00.
(i) (h)
For a facility that holds a permit issued under this
part
but has no discharge to waters of
the state and the
facility
is
connected to and is authorized to discharge only to a
municipal wastewater treatment system, an annual permit maintenance
fee of $100.00. However, if a facility does have a discharge or at
some point is no longer connected to a municipal wastewater
treatment system, the annual permit fee shall be the appropriate
fee as otherwise provided in this subsection.
(6) If the person required to pay an application fee under
subsection (1) or an annual permit fee under subsection (5) is a
municipality, the municipality may pass on the application fee or
the annual permit fee, or both, to each user of the municipal
facility.
(7) The department shall send invoices for annual permit fees
under subsection (5) to all permit holders by December 1 of each
year. The fee shall be based on the status of the facility as of
October 1 of that year. A person subject to an annual permit fee
shall pay the fee not later than January 15 of each year. Failure
by the department to send an invoice by the deadline, or failure of
a person to receive an invoice that was sent by the deadline, does
not relieve that person of his or her obligation to pay the annual
permit fee. If the department does not meet the December 1 deadline
for sending invoices, the annual permit fee is due not later than
45 days after receiving an invoice. The department shall forward
annual permit fees received under this section to the state
treasurer for deposit as follows:
(a) All fees other than fees for CAFOs shall be deposited into
the national pollutant discharge elimination system fund created in
section 3121.
(b) Fees for CAFOs shall be deposited into the CAFO cleanup
and enforcement fund created under section 8637.
(8) The department shall assess a penalty on all annual permit
fee payments submitted under this section after the due date. The
penalty shall be an amount equal to 0.75% of the payment due for
each month or portion of a month the payment remains past due.
(9) Following payment of an annual permit fee, if a permittee
wishes to challenge its annual permit fee under this section, the
owner or operator shall submit the challenge in writing to the
department. The department shall not process the challenge unless
it is received by the department by March 1 of the year the payment
is due. A challenge shall identify the facility and state the
grounds upon which the challenge is based. Within 30 calendar days
after receipt of the challenge, the department shall determine the
validity of the challenge and provide the permittee with
notification of a revised annual permit fee and a refund, if
appropriate, or a statement setting forth the reason or reasons why
the annual permit fee was not revised. If the owner or operator of
a facility desires to further challenge its annual permit fee, the
owner or operator of the facility has an opportunity for a
contested case hearing as provided for under the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
(10) The attorney general may bring an action for the
collection of the annual permit fee imposed under this section.
(11)
Within 30 days after the effective date of the amendatory
act
that added this section, the director of the department shall
notify
each person holding a permit under this part authorizing a
discharge
into surface water, other than a storm water permit, of
the
requirements of this section.
(11) (12)
As used in this section:
(a) "Agricultural purpose" means the agricultural production
or processing of those plants and animals useful to human beings
produced by agriculture and includes, but is not limited to,
forages and sod crops, grains and feed crops, field crops, dairy
animals and dairy products, poultry and poultry products, cervidae,
livestock, including breeding and grazing, equine, fish and other
aquacultural products, bees and bee products, berries, herbs,
fruits, vegetables, flowers, seeds, grasses, nursery stock, trees
and tree products, mushrooms, and other similar products, or any
other product, as determined by the commission of agriculture, that
incorporates the use of food, feed, fiber, or fur. Agricultural
purpose includes an operation or facility that produces wine.
(b) "CAFO" means that term as defined in section 8601.
(c) (b)
"Combined sewer overflow" or "CSO" means a discharge
from a combined sewer system that occurs when the flow capacity of
the combined sewer system is exceeded at a point prior to the
headworks of a publicly owned treatment works during wet weather
conditions.
(d) (c)
"Combined sewer system" means a sewer
designed and
used to convey both storm water runoff and sanitary sewage, and
which contains lawfully installed regulators and control devices
that allow for delivery of sanitary flow to treatment during dry
weather periods and divert storm water and sanitary sewage to
surface waters during storm flow periods.
(e) (d)
"CSO facility" means a facility whose
discharge is
solely a combined sewer overflow.
(f) (e)
"EPA major facility" means a facility that
is
designated by the United States environmental protection agency as
being
a major facility under 40 C.F.R. CFR 122.2.
(g) (f)
"EPA minor facility" means a facility that
is not an
EPA major facility.
(h) (g)
"Farmers' cooperative corporation" means a
farmers'
cooperative corporation organized within the limitations of section
98 of the Michigan general corporation act, 1931 PA 327, MCL
450.98.
(i) (h)
"General permit" means a permit suitable
for use at
facilities meeting eligibility criteria as specified in the permit.
With a general permit, the discharge from a specific facility is
acknowledged through a certificate of coverage issued to the
facility.
(j) (i)
"High-flow facility" means a facility that
discharges 1 MGD or more.
(k) (j)
"Individual permit" means a permit
developed for a
particular facility, taking into account that facility's specific
characteristics.
(l) (k)
"Industrial or commercial facility" means
a facility
that is not a municipal facility.
(m) "Large CAFO" means that term as defined in section 8603.
(n) (l) "Low-flow facility" means a facility that
discharges
less than 1 MGD.
(o) "Medium CAFO" means that term as defined in section 8603.
(p) (m)
"MGD" means 1,000,000 gallons per day.
(q) (n)
"Municipal facility" means a facility that
is
designed to collect or treat sanitary wastewater, and is either
publicly or privately owned, and serves a residential area or a
group of municipalities.
(r) "Small CAFO" means that term as defined in section 8605.
(s) (o)
"Wastewater stabilization lagoon" means a
type of
treatment system constructed of ponds or basins designed to
receive, hold, and treat sanitary wastewater for a predetermined
amount of time. Wastewater is treated through a combination of
physical, biological, and chemical processes.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 93rd Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 5801(request no.
01066'05).
(b) Senate Bill No.____ or House Bill No. 5803(request no.
01074'05).
(c) Senate Bill No.____ or House Bill No. 5809(request no.
01081'05).
(d) Senate Bill No.____ or House Bill No. 5807(request no.
02008'05).
(e) Senate Bill No.____ or House Bill No. 5808(request no.
02009'05).
(f) Senate Bill No.____ or House Bill No. 5806(request no.
02010'05).
(g) Senate Bill No.____ or House Bill No. 5804(request no.
02011'05).
(h) Senate Bill No.____ or House Bill No. 5805(request no.
02032'05).