April 25, 2007, Introduced by Senators BROWN, BIRKHOLZ, GARCIA, JANSEN, BARCIA and KAHN and referred to the Committee on Agriculture.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 3101 and 3115 (MCL 324.3101 and 324.3115),
section 3101 as amended by 2006 PA 97 and section 3115 as amended
by 2004 PA 143.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3101. As used in this part:
(a) "Aquatic nuisance species" means a nonindigenous species
that threatens the diversity or abundance of native species or the
ecological stability of infested waters, or commercial,
agricultural, aquacultural, or recreational activities dependent on
such waters.
(b) "Ballast water" means water and associated solids taken on
board a vessel to control or maintain trim, draft, stability, or
stresses on the vessel, without regard to the manner in which it is
carried.
(c) "Ballast water treatment method" means a method of
treating ballast water and sediments to remove or destroy living
biological organisms through 1 or more of the following:
(i) Filtration.
(ii) The application of biocides or ultraviolet light.
(iii) Thermal methods.
(iv) Other treatment techniques approved by the department.
(d) "Department" means the department of environmental
quality.
(e) "Detroit consumer price index" means the most
comprehensive index of consumer prices available for the Detroit
area from the United States department of labor, bureau of labor
statistics.
(f) "Emergency management coordinator" means that term as
defined in section 2 of the emergency management act, 1976 PA 390,
MCL 30.402.
(g) "Great Lakes" means the Great Lakes and their connecting
waters, including Lake St. Clair.
(h) "Group 1 facility" means a facility whose discharge is
described by R 323.2218 of the Michigan administrative code.
(i) "Group 2 facility" means a facility whose discharge is
described by R 323.2210(y), R 323.2215, or R 323.2216 of the
Michigan administrative code.
(j) "Group 3 facility" means a facility whose discharge is
described by R 323.2211 or R 323.2213 of the Michigan
administrative code.
(k) "Large CAFO" means that term as defined in R 323.2103 of
the Michigan administrative code.
(l) (k)
"Local health department"
means that term as defined in
section 1105 of the public health code, 1978 PA 368, MCL 333.1105.
(m) (l) "Local
unit" means a county, city, village, or township
or an agency or instrumentality of any of these entities.
(n) (m)
"Municipality" means this
state, a county, city,
village, or township, or an agency or instrumentality of any of
these entities.
(o) (n)
"National response
center" means the national
communications center established under the clean water act, 33 USC
1251 to 1387, located in Washington, DC, that receives and relays
notice of oil discharge or releases of hazardous substances to
appropriate federal officials.
(p) (o)
"Nonoceangoing vessel"
means a vessel that is not an
oceangoing vessel.
(q) (p)
"Oceangoing vessel" means
a vessel that operates on
the Great Lakes or the St. Lawrence waterway after operating in
waters outside of the Great Lakes or the St. Lawrence waterway.
(r) (q)
"Open water disposal of
contaminated dredge materials"
means the placement of dredge materials contaminated with toxic
substances as defined in R 323.1205 of the Michigan administrative
code into the open waters of the waters of the state but does not
include the siting or use of a confined disposal facility
designated by the United States army corps of engineers or beach
nourishment activities utilizing uncontaminated materials.
(s) (r)
"Primary public safety
answering point" means that
term as defined in section 102 of the emergency telephone service
enabling act, 1986 PA 32, MCL 484.1102.
(t) (s)
"Sediments" means any
matter settled out of ballast
water within a vessel.
(u) (t)
"Sewage sludge" means
sewage sludge generated in the
treatment of domestic sewage, other than only septage or industrial
waste.
(v) (u)
"Sewage sludge
derivative" means a product for land
application derived from sewage sludge that does not include solid
waste or other waste regulated under this act.
(w) (v)
"Sewage sludge generator"
means a person who generates
sewage sludge that is applied to land.
(x) (w)
"Sewage sludge
distributor" means a person who
applies, markets, or distributes, except at retail, a sewage sludge
derivative.
(y) (x)
"St. Lawrence
waterway" means the St. Lawrence
river,
the St. Lawrence seaway, and the gulf of St. Lawrence.
(z) (y)
"Threshold reporting
quantity" means that term as
defined in R 324.2002 of the Michigan administrative code.
(aa) (z)
"Waters of the state"
means groundwaters, lakes,
rivers, and streams and all other watercourses and waters,
including the Great Lakes, within the jurisdiction of this state.
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 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 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 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.
(11) In addition to any other penalty or remedy provided under
this part, if the owner or operator of a large CAFO is convicted of
a criminal violation under this section or found responsible for a
civil violation under this section, the court may revoke a permit
held by the owner or operator or may order the owner or operator to
comply with the terms of the permit. A permit that is revoked or
subject to an order under this subsection shall not be reissued or
modified except in compliance with section 3112.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 447
of the 94th Legislature is enacted into law.