February 8, 2005, Introduced by Reps. Kathleen Law, Plakas, Anderson, Hopgood, Zelenko, Accavitti, Alma Smith and Farrah 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 sections 3105, 3111, and 3115 (MCL 324.3105, 324.3111,
and 324.3115), section 3115 as amended by 2004 PA 143.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3105. (1) The department shall conduct an on-site
inspection of each facility that has received a permit under this
part to discharge into the waters of the state. The inspection
shall determine whether the discharge is in compliance with the
permit.
(2) The
In addition to the inspection under subsection (1),
the department may enter at all reasonable times in or upon any
private or public property for the purpose of inspecting and
investigating conditions relating to the pollution of any waters of
the state and the obstruction of the floodways of the rivers and
streams of this state. The department may call upon any officer,
board, department, school, university, or other state institution
and the officers or employees thereof for any assistance considered
necessary to implement this part.
Sec. 3111. (1) A person doing business within this state who
discharges wastewater to the waters of the state or to any sewer
system
wastewater that contains wastes in addition to sanitary
sewage
shall file an annual report monthly reports on a form
forms provided by the department. The report reports
described in
this section shall set forth the nature of the enterprise,
indicating the quantities of materials used in and incidental to
its manufacturing processes and including by-products and waste
products that appear on a register of critical materials compiled
by the department and the estimated annual total number of gallons
of wastewater, including, but not limited to, process and cooling
water to be discharged to the waters of the state or to any sewer
system.
(2) In addition to the reports filed under subsection (1), a
person shall report any discharge to the waters of the state or to
any sewer system of a substance not authorized in his or her permit
or a substance authorized in his or her permit but in an amount or
concentration higher than authorized in the permit, that may pose a
threat to public health, safety, welfare, or to the environment.
The person shall report the discharge to the department within 2
hours of the beginning of the discharge.
(3) The information collected under subsections (1) and (2)
shall be used by the department only for purposes of water
pollution control. The department shall provide proper and adequate
facilities and procedures to safeguard the confidentiality of
manufacturing proprietary processes, except that confidentiality
shall not extend to waste products discharged to the waters of the
state.
Operations
(4) Subject to subsection (3), the department shall make
information collected under subsections (1) and (2) available to
the public.
(5) Subject to section 3115, a person who fails to file a
monthly report containing the information required by this section
is subject to a state civil infraction and shall be ordered to pay
a civil fine of $100.00 for each day that a report containing the
information required by this section has not been submitted. In
addition, operations of a business or industry that violate this
section may be enjoined by an action commenced by the attorney
general in a court of competent jurisdiction.
(6) The department shall promulgate rules as it considers
necessary
to effectuate the administration of implement this
section. ,
including, where necessary to meet special
circumstances,
reporting more frequently than annually.
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, for a serious
violation, the fine shall be not less than $5,000.00 and for a
significant noncomplier violation, the fine shall be not less than
$10,000.00. In addition, all of the following apply:
(a) The maximum fine imposed by the court under this
subsection 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 or more than $25,000.00 $50,000.00
for each violation. However, for a serious violation, the fine
shall be not less than $5,000.00 and for a significant noncomplier
violation, the fine shall be not less than $10,000.00. 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 4 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 a
person
shall is 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 civil 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 10 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 conform
with 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 effect and have
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) As used in this section:
(a) "Conventional pollutant" means a substance that is not a
toxic or hazardous pollutant.
(b) "Serious violation" means a violation in which either of
the following conditions exists:
(i) The violation involves the exceedance of a permit
limitation for a conventional pollutant of 20% or more.
(ii) The violation involves the exceedance of a permit
limitation for a toxic or hazardous pollutant by 40% or more.
(c) "Significant noncomplier violation" means a violation in
which any of the following conditions exist:
(i) The violator has failed to obtain a permit for the
discharge.
(ii) The violation is a serious violation involving the same
pollutant at the same discharge point occurring during any 2 months
of any 6-month period.
(iii) The violation involves the exceedance of a permit
limitation for the same pollutant at the same discharge point
occurring during any 4 months of any 6-month period.
(iv) The violation is for the failure to submit a report under
section 3111 during any 2 months of any 6-month period.
(d) "Toxic or hazardous pollutant" means either or both of the
following:
(i) A pollutant on the list of toxic pollutants established in
40 CFR 401.15.
(ii) A substance on the list of hazardous substances
established in 40 CFR 116.4.