SENATE BILL NO. 950

June 02, 2020, Introduced by Senators GEISS, CHANG, BRINKS, MCMORROW, BAYER, ANANICH, WOJNO and IRWIN and referred to the Committee on Environmental Quality.

"Natural resources and environmental protection act,"

by amending sections 3111b and 3115 (MCL 324.3111b and 324.3115), section 3111b as added by 2004 PA 142 and section 3115 as amended by 2004 PA 143.

the people of the state of michigan enact:

Sec. 3111b. (1) If a person is required to report a release to the department under part 5 of the water resources protection rules, R 324.2001 to R 324.2009 of the Michigan administrative code, Administrative Code, or subsection (4), the person at the same time shall, via a 9-1-1 call, shall at the same time report the release to the primary public safety answering point serving the jurisdiction where the release occurred.

(2) If a person described in subsection (1) is required to subsequently submit to the department a written report on the release under part 5 of the water resources protection rules, R 324.2001 to R 324.2009 of the Michigan administrative code, Administrative Code, or subsection (5), the person shall at the same time submit a copy of the report to the local health department serving the jurisdiction where the release occurred.

(3) If the department of state police or other state agency receives notification, pursuant to an agreement with or the laws of another state, Canada, or the province of Ontario, of the release in that other jurisdiction of a polluting material in excess of the threshold reporting quantity and if the polluting material has entered or may enter surface waters or groundwaters of this waters of the state, the department of state police or other state agency shall contact the primary public safety answering point serving each county that may be affected by the release.

(4) As soon as practicable, but no later than 24 hours, after detecting the total or partial collapse or other failure of a dock or wharf located in or adjacent to waters of the state, or detecting the release of any substance that may cause pollution of the waters of the state from or as a result of the failure of a dock or wharf located in or adjacent to waters of the state, the owner or operator of the dock or wharf, the owner of the substance, or any person loading or unloading the substance at the time of the release shall notify the department by telephone. The notification shall be given through the department's pollution emergency alerting service, if such a service exists.

(5) Within 10 days after detecting failure of a dock or wharf or detecting a release described in subsection (4), a person required to notify the department under subsection (4) shall file a written report with the department. The report shall describe the cause and discovery of the failure or release and set forth the measures taken or a schedule for completion of measures to be taken, or both, to prevent recurrence of similar failures or releases. The person shall at the same time submit a copy of the report to the local health department serving the jurisdiction where the failure or release occurred.

(6) (4) The emergency management coordinator of each county shall develop and oversee the implementation of a plan to provide timely notification of a release required to be reported under subsection (1) or (3) to appropriate local, state, and federal agencies. In developing and overseeing the implementation of the plan, the emergency management coordinator shall consult with both of the following:

(a) The directors of the primary public safety answering points with jurisdiction within the county.

(b) Any emergency management coordinator appointed for a city, village, or township located in that county.

(7) (5) If rules promulgated under this part require a person to maintain a pollution incident prevention plan, the person shall update the plan to include the requirements of subsections (1), and (2), and, if applicable, (4) and (5) when conducting any evaluation of the plan required by rule.

(8) (6) If a person reports to the department a release pursuant to subsection (1), the department shall do both of the following:

(a) Notify the person of the requirements imposed under subsections (1) and (2) and, if applicable, (4) and (5).

(b) Request that the person, even if not responsible for the release, report the release, via a 9-1-1 call, to the primary public safety answering point serving 1 of the following, as applicable:

(i) The jurisdiction where the release occurred, if known.

(ii) The jurisdiction where the release was discovered, if the jurisdiction where the release occurred is not known.

(9) (7) The department shall notify the public and interested parties, by posting on its website within 30 days after the effective date of the amendatory act that added this section and by other appropriate means, of all of the following:

(a) The requirements of subsections (1), and (2), (4), and (5).

(b) The relevant voice, and, if applicable, facsimile telephone numbers of the department and the national response center.

(c) The criminal and civil sanctions under section 3115 applicable to violations of subsections (1), and (2), (4), and (5).

(10) (8) Failure of the department to provide a person with the notification required under subsection (6) or (7) (8) or (9) does not relieve the person of any obligation to report a release or other legal obligation.

(11) (9) The department shall biennially do both of the following:

(a) Evaluate the state and local reporting system established under this section.

(b) Submit to the standing committees of the senate and house of representatives with primary responsibility for environmental protection issues a written report on any changes recommended to the reporting system.

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 less than $2,500.00 or more than $2,500.00.$5,000.00.

(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 in violation of this part, or contrary to in violation of 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 a 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 an 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 is not subject to the penalties of this subsection for a discharge otherwise in violation of this part 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 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 attributed 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 is payable to the state of Michigan and shall be credited to the general Great Lakes and rivers protection fund created in subsection (11).

(b) Constitute The civil fine or other award constitutes a lien on any property, of any nature or kind, owned by the defendant.

(8) A lien under subsection (7)(b) shall take (7) takes effect and have has priority over all other liens and encumbrances except those filed or recorded prior to before 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 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 under this section 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.

(11) The Great Lakes and rivers protection fund is created within the state treasury. Civil fines collected under this section shall be deposited in the fund. The state treasurer may receive money or other assets from any source for deposit into the fund. The state treasurer shall direct the investment of the fund. The state treasurer shall credit to the fund interest and earning from fund investments. Money in the fund at the close of the fiscal year shall remain in the fund and shall not lapse to the general fund. The department shall be the administrator of the fund for auditing purposes. The department shall expend money from the fund, upon appropriation, only for risk assessment and remediation activities for waters of the state affected by violations of this part.