May 25, 2010, Introduced by Senator GLEASON 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 sections 20129, 20137, and 20139 (MCL 324.20129,
324.20137, and 324.20139), as amended by 1995 PA 71.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20129. (1) If 2 or more persons acting independently are
liable under section 20126 and there is a reasonable basis for
division of harm according to the contribution of each person, each
person is subject to liability under this part only for the portion
of the total harm attributable to that person. However, a person
seeking to limit his or her liability on the grounds that the
entire harm is capable of division has the burden of proof as to
the divisibility of the harm and as to the apportionment of
liability.
(2) If 2 or more persons are liable under section 20126 for an
indivisible harm, each person is subject to liability for the
entire harm.
(3) A person may seek contribution from any other person who
is liable under section 20126 during or following a civil action
brought under this part. This subsection does not diminish the
right of a person to bring an action for contribution in the
absence of a civil action by the state under this part. In a
contribution action brought under this part, the court shall
consider all of the following factors in allocating response
activity costs and damages among liable persons:
(a) Each person's relative degree of responsibility in causing
the release or threat of release.
(b) The principles of equity pertaining to contribution.
(c) The degree of involvement of and care exercised by the
person with regard to the hazardous substance.
(d) The degree of cooperation by the person with federal,
state, or local officials to prevent, minimize, respond to, or
remedy the release or threat of release.
(e) Whether equity requires that the liability of some of the
persons should constitute a single share.
(4) If, in an action for contribution under subsection (3),
the court determines that all or part of a person's share of
liability is uncollectible from that person, then the court may
reallocate any uncollectible amount among the other liable persons
according to the factors listed in subsection (3). A person whose
share is determined to be uncollectible continues to be subject to
contribution and to any continuing liability to the state.
(5) A person who has resolved his or her liability to the
state in an administrative or judicially approved consent order is
not liable for claims for contribution regarding matters addressed
in the consent order. The consent order does not discharge any of
the other persons liable under section 20126 unless the terms of
the consent order provide for this discharge, but the potential
liability of the other persons is reduced by the amount of the
consent order.
(6) A person who is not liable under this part, including a
person who is issued a written determination under former section
20129a affirming that the person meets the criteria for an
exemption from liability, and who is otherwise in compliance with
section 20107a, shall be considered to have resolved his or her
liability to the state in an administratively approved settlement
under the comprehensive environmental response, compensation, and
liability
act, of 1980, Public Law 96-510, 94 Stat. 2767 42 USC
9601 to 9675, and shall by operation of law be granted contribution
protection
under section 113(f)(2) of title I of the comprehensive
environmental
response, compensation, and liability act of 1980,
Public
Law 96-510, 42 U.S.C. 9613 USC 9613(f)(2) and under this
part in the same manner that contribution protection is provided
pursuant to subsection (5).
(7) If the state obtains less than complete relief from a
person who has resolved his or her liability to the state in an
administrative or judicially approved consent order under this
part, the state may bring an action against any other person liable
under section 20126 who has not resolved his or her liability.
(8) A person who has resolved his or her liability to the
state for some or all of a response activity in an administrative
or judicially approved consent order may seek contribution from any
person who is not a party to the consent order described in
subsection (5).
(9) In an action for contribution under this section, the
rights of any person who has resolved his or her liability to the
state is subordinate to the rights of the state, if the state files
an action under this part.
Sec.
20137. (1) In Subject to
subsections (2) and (3), in
addition to other relief authorized by law, the attorney general
may, on behalf of the state, commence a civil action seeking 1 or
more of the following:
(a) Temporary or permanent injunctive relief necessary to
protect the public health, safety, or welfare, or the environment
from the release or threat of release.
(b) Recovery of state response activity costs pursuant to
section 20126a.
(c) Damages for the full value of injury to, destruction of,
or loss of natural resources resulting from the release or threat
of release, including the reasonable costs of assessing the injury,
destruction, or loss resulting from the release or threat of
release.
(d) A declaratory judgment on liability for future response
activity costs and damages.
(e) A civil fine of not more than $1,000.00 for each day of
noncompliance without sufficient cause with a written request of
the department pursuant to section 20114(1)(h). A fine imposed
under this subdivision shall be based on the seriousness of the
violation and any good faith efforts of the person to comply with
the request of the department.
(f) A civil fine of not more than $10,000.00 for each day of
violation
of this part. or a rule promulgated under this part. A
fine imposed under this subdivision shall be based upon the
seriousness of the violation and any good faith efforts of the
person
to comply with this part. or a rule promulgated under this
part.
(g) A civil fine of not more than $25,000.00 for each day of
violation of a judicial order or an administrative order issued
pursuant to section 20119, including exemplary damages pursuant to
section 20119.
(h) Enforcement of an administrative order issued pursuant to
section 20119.
(i) Enforcement of information gathering and entry authority
pursuant to section 20117.
(j) Enforcement of the reporting requirements under section
20114(1),
(3), and (6) 20114.
(k) Any other relief necessary for the enforcement of this
part.
(2) An owner or operator of a facility from which a hazardous
substance is released that is determined to be reportable under
section 20114(1)(b)(i), other than a permitted release, who fails to
notify the department within 24 hours after obtaining knowledge of
the release or who submits in such notification any information
that the person knows to be false or misleading, is subject to a
civil fine of not more than $25,000.00 for each day in which the
violation occurs or the failure to comply continues. A fine imposed
under this subsection shall be based upon the seriousness of the
violation and any good-faith efforts by the violator to comply with
this subsection.
(3) A person who is responsible for an activity causing a
release in excess of the concentrations that satisfy the criteria
established pursuant to section 20120a(1)(a) or (b), as appropriate
for the use of the property, is subject to a civil fine as provided
in this part unless a fine or penalty has already been imposed for
the release under another part of this act. However, a civil fine
shall not be imposed under this subsection against a person who
made a good-faith effort to prevent the release and to comply with
the provisions of this part. This subsection does not apply to a
release from an underground storage tank system as defined in part
213.
(4) (2)
If an action is brought under this
part by a plaintiff
other than the attorney general, the plaintiff shall, at the time
of filing, provide a copy of the complaint to the attorney general.
(5) (3)
Except as otherwise provided in
this part, an action
brought under this part may be brought in the circuit court for the
county of Ingham, in the county in which the defendant resides, has
a place of business, or in which the registered office of a
defendant corporation is located, or in the county where the
release occurred.
(6) (4)
A state court does not have
jurisdiction to review
challenges to a response activity selected or approved by the
department under this part or to review an administrative order
issued under this part in any action except an action that is 1 of
the following:
(a) An action to recover response costs, damages, or for
contribution.
(b) An action by the state to enforce an administrative order
under this part or by any other person under section 20135(1)(b) to
enforce an administrative order or to recover a fine for violation
of an order.
(c)
An action pursuant to section 20119(5) for review of a
decision
by the department denying or limiting reimbursement an
administrative order.
(d) An action pursuant to section 20135 challenging a response
activity selected or approved by the department, if the action is
filed after the completion of the response activity.
(e) An action by the state pursuant to section 20126a(6) to
compel response activity.
(7) (5)
In any judicial action under this
part, judicial
review of any issues concerning the selection or adequacy of a
response activity taken, ordered, or agreed to by the state are
limited to the administrative record. If the court finds that the
record is incomplete or inadequate, the court may consider
supplemental material in the action. In considering objections
raised in a judicial action under this part, the court shall uphold
the state's decision in selecting a response activity unless the
objecting party can demonstrate based on the administrative record
that the decision was arbitrary and capricious or otherwise not in
accordance with law. In reviewing alleged procedural errors, the
court may disallow costs or damages only to the extent the errors
were so serious and related to matters of such central importance
that the activity would have been significantly changed had the
errors not been made.
(8) (6)
In an action commenced under this
part, any person may
intervene as a matter of right if that person claims an interest
relating to the subject matter of the action and is situated so
that the disposition of the action may, as a practical matter,
impair or impede the person's ability to protect that interest,
unless the court finds the person's interest is adequately
represented by an existing party.
Sec. 20139. (1) The penalties provided in this section only
apply to a release that occurs after July 1, 1991.
(2) A person who does any of the following is guilty of a
felony and shall be fined not less than $2,500.00 or more than
$25,000.00 for each violation:
(a) Knowingly releases or causes a release contrary to
applicable federal, state, or local requirements or contrary to any
permit or license held by that person, if that person knew or
should have known that the release could cause personal injury or
property damage.
(b) Intentionally makes a false statement, representation, or
certification in any application, record, report, plan, or other
document
filed or required to be maintained under this part. and
rules
promulgated under this part.
(c) Intentionally renders inaccurate any monitoring device or
record
required to be maintained under this part. or a rule
promulgated
under this part.
(d)
Misrepresents his or her qualifications in a document
prepared
pursuant to section 20129a under
section 20114d or 20114e.
(3) In addition to a fine imposed under subsection (2), the
court may impose an additional fine of not more than $25,000.00 for
each day during which the release 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 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.
(4) Upon a finding by the court that the action of a criminal
defendant prosecuted under this section poses or posed a
substantial endangerment to public health, safety, or welfare, the
court shall impose, in addition to the penalties set forth in
subsections (2) and (3), 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 criminally liable for substantial
endangerment under subsection (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 has 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 would 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 department may pay an award of up to $10,000.00 to an
individual that provides information leading to the arrest and
conviction of a person for a violation of this section. The
department shall promulgate rules that prescribe criteria for
granting awards under this section. An award shall not be made
under this section until rules are promulgated prescribing the
criteria for making awards. Awards under this subsection may be
paid from the Michigan environmental assurance fund, if enabling
legislation creating the fund is enacted into law.
(8) As used in this section, "serious bodily injury" means
bodily injury that involves a substantial risk of death,
unconsciousness, extreme physical pain, protracted and obvious
disfigurement, or protracted loss or impairment of the function of
a bodily member, organ, or mental faculty.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 437 or House Bill No. 4903.
(b) Senate Bill No. 1345.
(c) Senate Bill No. 1346.
(d) Senate Bill No. 1349.
(e) Senate Bill No. 1347.