October 9, 2003, Introduced by Reps. Law, Gleason, Meisner, Hopgood, Bieda, Farrah, Tobocman, Phillips, Jamnick, Gieleghem, O'Neil and Hunter and referred to the Committee on Government Operations.
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).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 3105. (1) The department shall conduct an on-site
2 inspection of each facility that has received a permit under this
3 part to discharge into the waters of the state. The inspection
4 shall determine whether the discharge is in compliance with the
5 permit.
6 (2) The In
addition to the inspection under subsection
7 (1), the department may enter at all reasonable times in or upon
8 any private or public property for the purpose of inspecting and
9 investigating conditions relating to the pollution of any waters
10 of the state and the obstruction of the floodways of the rivers
1 and streams of this state. The department may call upon any
2 officer, board, department, school, university, or other state
3 institution and the officers or employees thereof for any
4 assistance considered necessary to implement this part.
5 Sec. 3111. (1) A person doing business within this state
6 who discharges wastewater to the waters of the state or to any
7 sewer system wastewater
that contains wastes in addition to
8 sanitary sewage shall file an annual report monthly
reports on
9 a form forms provided by the department. The report
reports
10 described in this section shall set forth the nature of the
11 enterprise, indicating the quantities of materials used in and
12 incidental to its manufacturing processes and including
13 by-products and waste products that appear on a register of
14 critical materials compiled by the department and the estimated
15 annual total number of gallons of wastewater, including, but not
16 limited to, process and cooling water to be discharged to the
17 waters of the state or to any sewer system.
18 (2) In addition to the reports filed under subsection (1), a
19 person shall report any discharge to the waters of the state or
20 to any sewer system of a substance not authorized in his or her
21 permit or a substance authorized in his or her permit but in an
22 amount or concentration higher than authorized in the permit,
23 that may pose a threat to public health, safety, welfare, or to
24 the environment. The person shall report the discharge to the
25 department within 2 hours of the beginning of the discharge.
26 (3) The information collected under subsections (1) and (2)
27 shall be used by the department only for purposes of water
1 pollution control. The department shall provide proper and
2 adequate facilities and procedures to safeguard the
3 confidentiality of manufacturing proprietary processes, except
4 that confidentiality shall not extend to waste products
5 discharged to the waters
of the state. Operations
6 (4) Subject to subsection (3), the department shall make
7 information collected under subsections (1) and (2) available to
8 the public.
9 (5) Subject to section 3115, a person who fails to file a
10 monthly report containing the information required by this
11 section is subject to a state civil infraction and shall be
12 ordered to pay a civil fine of $100.00 for each day that a report
13 containing the information required by this section has not been
14 submitted. In addition, operations of a business or industry
15 that violate this section may be enjoined by an action commenced
16 by the attorney general in a court of competent jurisdiction.
17 (6) The department shall promulgate rules as it considers
18 necessary to effectuate
the administration of implement this
19 section. ,
including, where necessary to meet special
20 circumstances,
reporting more frequently than annually.
21 Sec. 3115. (1) The department may request the attorney
22 general to commence a civil action for appropriate relief,
23 including a permanent or temporary injunction, for a violation of
24 this part or a provision of a permit, order, rule, or stipulation
25 of the department. An action under this subsection may be
26 brought in the circuit court for the county of Ingham or for the
27 county in which the defendant is located, resides, or is doing
1 business. The court has jurisdiction to restrain the violation
2 and to require compliance. In addition to any other relief
3 granted under this subsection, the court shall impose a civil
4 fine of not less than $2,500.00 and may award reasonable attorney
5 fees and costs to the
prevailing party. However, the for a
6 serious violation, the fine shall be not less than $5,000.00 and
7 for a significant noncomplier violation, the fine shall be not
8 less than $10,000.00. The maximum fine imposed by the court
9 under this subsection
shall be not more than $25,000.00
10 $50,000.00 per day of violation.
11 (2) A person who at the time of the violation knew or should
12 have known that he or she discharged a substance contrary to this
13 part, or contrary to a permit, order, rule, or stipulation of the
14 department, or who intentionally makes a false statement,
15 representation, or certification in an application for or on a
16 form pertaining to a permit or in a notice or report required by
17 the terms and conditions of an issued permit, or who
18 intentionally renders inaccurate a monitoring device or record
19 required to be maintained by the department, is guilty of a
20 felony and shall be fined not less than $2,500.00 or more than
21 $25,000.00 $50,000.00 for each violation. However,
for a
22 serious violation, the fine shall be not less than $5,000.00 and
23 for a significant noncomplier violation, the fine shall be not
24 less than $10,000.00. The court may impose an additional fine of
25 not more than $25,000.00
$50,000.00 for each day during which
26 the unlawful discharge occurred. If the conviction is for a
27 violation committed after a first conviction of the person under
1 this subsection, the court shall impose a fine of not less than
2 $25,000.00 $50,000.00 per day and not more than $50,000.00
3 $100,000.00 per day of violation. Upon conviction, in addition
4 to a fine, the court in its discretion may sentence the defendant
5 to imprisonment for not
more than 2 4 years or impose probation
6 upon a person for a violation of this part. With the exception
7 of the issuance of criminal complaints, issuance of warrants, and
8 the holding of an arraignment, the circuit court for the county
9 in which the violation occurred has exclusive jurisdiction.
10 However, the a
person shall is not be subject to the
11 penalties of this subsection if the discharge of the effluent is
12 in conformance with and obedient to a rule, order, or permit of
13 the department. In addition to a fine, the attorney general may
14 file a civil suit in a court of competent jurisdiction to recover
15 the full value of the injuries done to the natural resources of
16 the state and the costs of surveillance and enforcement by the
17 state resulting from the violation.
18 (3) Upon a finding by the court that the actions of a civil
19 defendant pose or posed a substantial endangerment to the public
20 health, safety, or welfare, the court shall impose, in addition
21 to the penalties sanctions
set forth in subsection (1), a civil
22 fine of not less than $500,000.00
$1,000,000.00 and not more
23 than $5,000,000.00 $10,000,000.00.
24 (4) Upon a finding by the court that the actions of a
25 criminal defendant pose or posed a substantial endangerment to
26 the public health, safety, or welfare, the court shall impose, in
27 addition to the penalties set forth in subsection (2), a fine of
1 not less than $1,000,000.00
$2,000,000.00 and, in addition to a
2 fine, a sentence of 5
10 years' imprisonment.
3 (5) To find a defendant civilly or criminally liable for
4 substantial endangerment under subsections (3) and (4), the court
5 shall determine that the defendant knowingly or recklessly acted
6 in such a manner as to cause a danger of death or serious bodily
7 injury and that either of the following occurred:
8 (a) The defendant had an actual awareness, belief, or
9 understanding that his or her conduct would cause a substantial
10 danger of death or serious bodily injury.
11 (b) The defendant acted in gross disregard of the standard of
12 care that any reasonable person should observe in similar
13 circumstances.
14 (6) Knowledge possessed by a person other than the defendant
15 under subsection (5) may be attributable to the defendant if the
16 defendant took affirmative steps to shield himself or herself
17 from the relevant information.
18 (7) Any A
fine or other award ordered paid pursuant to this
19 section shall do both
all of the following:
20 (a) Be payable to the
state of Michigan and if the fine or
21 award was recovered in a civil action.
22 (b) Be credited to the general fund if the fine or award was
23 recovered in a civil action.
24 (c) (b) Constitute
a lien on any property, of any nature or
25 kind, owned by the defendant.
26 (8) A lien under
subsection (7)(b) (7)(c) shall take effect
27 and have priority over all other liens and encumbrances except
1 those filed or recorded prior to the date of judgment only if
2 notice of the lien is filed or recorded as required by state or
3 federal law.
4 (9) A lien filed or recorded pursuant to subsection (8) shall
5 be terminated according to the procedures required by state or
6 federal law within 14 days after the fine or other award ordered
7 to be paid is paid.
8 (10) In addition to any other method of collection, any fine
9 or other award ordered paid may be recovered by right of setoff
10 to any debt owed to the defendant by the state of Michigan,
11 including the right to a refund of income taxes paid.
12 (11) As used in this section:
13 (a) "Conventional pollutant" means a substance that is not a
14 toxic or hazardous pollutant.
15 (b) "Serious violation" means a violation in which either of
16 the following conditions exists:
17 (i) The violation involves the exceedance of a permit
18 limitation for a conventional pollutant of 20% or more.
19 (ii) The violation involves the exceedance of a permit
20 limitation for a toxic or hazardous pollutant by 40% or more.
21 (c) "Significant noncomplier violation" means a violation in
22 which any of the following conditions exist:
23 (i) The violator has failed to obtain a permit for the
24 discharge.
25 (ii) The violation is a serious violation involving the same
26 pollutant at the same discharge point occurring during any 2
27 months of any 6-month period.
1 (iii) The violation involves the exceedance of a permit
2 limitation for the same pollutant at the same discharge point
3 occurring during any 4 months of any 6-month period.
4 (iv) The violation is for the failure to submit a report
5 under section 8111 during any 2 months of any 6-month period.
6 (d) "Toxic or hazardous pollutant" means either or both of
7 the following:
8 (i) A pollutant on the list of toxic pollutants established
9 in 40 C.F.R. 401.15.
10 (ii) A substance on the list of hazardous substances
11 established in 40 C.F.R. 116.4.