SB-0448, As Passed Senate, June 20, 2007

SUBSTITUTE FOR

SENATE BILL NO. 448

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 3115 (MCL 324.3115), as amended by 2004 PA 143,

and by adding section 3113a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 3113a. (1) Except as otherwise provided in this section,

beginning 30 days after the effective date of the amendatory act

that added this section, a person shall not construct facilities or

structures for the operation of a large CAFO or expand an existing

large CAFO without first obtaining a certification of construction

from the department of agriculture under this section for the

construction or expansion.

     (2) A person may apply for a certification of construction

Senate Bill No. 448 as amended June 20, 2007

under this section by submitting to the department of agriculture

an application containing all of the following information:

     (a) The name and address of the applicant, of all partners if

the applicant is a partnership or of all officers and directors if

the applicant is a corporation, and of any other person who has a

right to control or in fact controls management of the applicant or

the selection of officers, directors, or managers of the applicant.

     (b) The type and number of livestock that the large CAFO would

be designed to raise or maintain.

     (c) Design and construction plans for the proposed

construction of the large CAFO that include the proposed location

of the construction, anticipated beginning and ending dates for

work performed, and any other relevant information the department

of agriculture requires.

     (d) Whether the applicant has ever been found by a court to be

in violation of this part, the type of any violation, and the date

of any violation.

     (3) Upon receipt of an application under this section, the

department of agriculture shall <<NOTIFY EACH CITY, VILLAGE, OR TOWNSHIP,

AND THE COUNTY IN WHICH THE LARGE CAFO IS LOCATED AND SHALL>> conduct an inspection of the

construction site at the large CAFO or proposed large CAFO.

     (4) Within 90 days after receipt of an administratively

complete application under this section, the department of

agriculture shall make a decision on whether to approve or deny a

certification of construction. Subject to subsection (5), the

department of agriculture shall approve a certification of

construction under this section if it determines that the

applicant's proposed construction or expansion conforms to both of

the following:

     (a) Generally accepted agricultural and management practices

for site selection and odor control under the Michigan right to

farm act, 1981 PA 93, MCL 286.471 to 286.474.

     (b) Conservation practice standard code 313 (waste storage

facility), United States department of agriculture–natural resource

conservation service, NRCS Michigan field office technical guide,

November 2005.

     (5) The department of agriculture shall deny a certification

of construction under this section if it determines that the permit

application contains misleading or false information or if the

design and plans fail to conform to the requirements of subsection

(4). If the department of agriculture fails to make a decision

within 90 days of receipt of an administratively complete

application, the certification of construction is considered

approved.

     (6) The application fee for a certification of construction

under this section is $150.00.

     (7) If a person who receives a certification of construction

under this section subsequently modifies the design or construction

plans for the proposal, the person shall submit the modified design

or construction plans to the department of agriculture for its

approval prior to beginning construction. A fee shall not be

charged for the review of these modifications.

     (8) This section does not apply to the construction of

facilities or structures for the operation of a large CAFO or the

expansion of an existing large CAFO that has received from the

Senate Bill No. 448 as amended June 20, 2007

department of agriculture on or before the effective date of the

amendatory act that added this section a determination of

conformance with both of the following:

     (a) Generally accepted agricultural and management practices

for site selection and odor control under the Michigan right to

farm act, 1981 PA 93, MCL 286.471 to 286.474.

     (b) The United States department of agriculture-natural

resource conservation service, standard for waste storage

facilities that was applicable at the time of the construction or

expansion.

     <<(9) THE DEPARTMENT OF AGRICULTURE SHALL POST ON ITS WEBSITE A LIST OF THE CERTIFICATES OF CONSTRUCTION THAT ARE APPROVED UNDER THIS SECTION, INCLUDING THE FARM NAME AND ADDRESS.

(10)>> As used in this section, "expand an existing large CAFO"

means increasing the number of animals at a large CAFO or expanding

manure storage capacity at a large CAFO, or both.

     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

Senate Bill No. 448 as amended June 20, 2007

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. <<If a court revokes a permit under

this subsection, the court shall order all of the following:

     (a) That all animals be removed from the facility.

     (b) That the facility be closed in an environmentally acceptable manner, in compliance with this act and in compliance with conservation practice standard code 360 (Closure of Waste Impoundments), United States Department of Agriculture-Natural Resource Conservation Service, NRCS Michigan Field Office Technical Guide, April 2005.

     (c) That all byproducts or waste materials at the facility be utilized or disposed of in an environmentally acceptable manner, in compliance with this act.

     (d) That the requirements of subdivisions (a) to (c) be performed in accordance with a schedule established by the court.

     (12) The revocation of a permit under subsection (11) does not prevent a new owner or operator who is not affiliated with the owner or operator who is subject to the revocation under subsection (11) from reopening the facility in compliance with law.

     (13)>> A permit that is revoked or

subject to an order under <<subsection (11)>> shall not be reissued or

modified except in compliance with section 3112.

     Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 94th Legislature are

enacted into law:

     (a) Senate Bill No. 447.

     (b) Senate Bill No. 504.