Bill Text: MI HB4453 | 2019-2020 | 100th Legislature | Introduced

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Bill Title: Environmental protection: landfills; civil, administrative, and criminal fines; increase. Amends secs. 5529, 5530, 5531, 11546 & 11549 of 1994 PA 451 (MCL 324.5529 et seq.).

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2019-04-17 - Bill Electronically Reproduced 04/17/2019 [HB4453 Detail]

Download: Michigan-2019-HB4453-Introduced.html

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HOUSE BILL No. 4453

 

 

April 11, 2019, Introduced by Reps. Koleszar, Pagan, Sowerby, Camilleri and Gay-Dagnogo and referred to the Committee on Judiciary.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 5529, 5530, 5531, 11546, and 11549 (MCL

 

324.5529, 324.5530, 324.5531, 324.11546, and 324.11549), section

 

11546 as amended by 2006 PA 56 and section 11549 as amended by 2006

 

PA 58.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5529. (1) The department may assess an administrative

 

fine of up to not more than $10,000.00, or, if the violator is the

 

owner or operator of a sanitary landfill, not more than

 

$100,000.00, for each instance of violation and, if the violation

 

continues, for each day of continued noncompliance, if the

 

department, on the basis of available information, finds that the

person has violated or is in violation of this part or a rule

 

promulgated or permit or order issued under this part. , has failed

 

to obtain a permit required under this part, violates an order

 

under this part, or has failed to comply with the terms of a permit

 

issued under this part. If a single event constitutes an instance

 

of violation of any combination of this part, or a rule promulgated

 

or permit or order issued under this part, or a permit issued or

 

order entered under this part, the amount of the administrative

 

fine for that single event shall not exceed $10,000.00, or, if the

 

violator is the owner or operator of a sanitary landfill, not more

 

than $100,000.00, for that violation. The assessment of an

 

administrative fine may be either a part of a compliance order or a

 

separate order issued by the department.

 

     (2) The authority of the department under this section is

 

limited to matters where the total administrative fine sought does

 

not exceed $100,000.00, or, if the violator is the owner or

 

operator of a sanitary landfill, $1,000,000.00, and the

 

administrative action is initiated within 12 months after the first

 

alleged date of violation. occurred within 12 months prior to

 

initiation of the administrative action. Except as may otherwise be

 

provided by applicable law, the department shall not condition the

 

issuance of a permit on the payment of an administrative fine

 

assessed pursuant to this section.

 

     (3) Within 28 days of after being assessed an administrative

 

fine from by the department, a person may file a petition with the

 

department for review of this the fine. Review of the fine shall be

 

conducted pursuant to the contested case procedures of chapter 4 of

the administrative procedures act of 1969, Act No. 306 of the

 

Public Acts of 1969, being sections 24.271 to 24.287 of the

 

Michigan Compiled Laws. 1969 PA 306, MCL 24.271 to 24.288. If

 

issued as part of a consent order issued pursuant to section 5528,

 

only the amount of the administrative fine and the alleged

 

violation on which the fine is based are subject to the contested

 

case procedures. of Act No. 306 of the Public Acts of 1969.

 

     Sec. 5530. (1) The attorney general may commence a civil

 

action against a person for appropriate relief, including

 

injunctive relief, and a civil fine as provided in subsection (2)

 

for any of the following:

 

     (a) Violating this part or a rule promulgated under this part.

 

     (b) Failure to obtain a permit under this part.

 

     (c) Failure to comply with the terms of a permit or an order

 

issued under this part.

 

     (d) Failure to pay an air quality fee or comply with a filing

 

requirement under this part.

 

     (e) Failure to comply with the inspection, entry, and

 

monitoring requirements of this part.

 

     (f) A violation described in section 5518(2).

 

     (2) In addition to any other relief authorized under this

 

section, the court may impose a civil fine of not more than

 

$10,000.00, for each instance of violation and, if the violation

 

continues, for each day of continued violation.or, if the defendant

 

is the owner or operator of a sanitary landfill, not more than

 

$100,000.00.

 

     (3) In addition to other relief authorized under this section,

the attorney general may, at the request of the department, file an

 

action in a court of competent jurisdiction to recover the full

 

value of the injuries done to the natural resources of the this

 

state.

 

     (4) In issuing a final order in an action brought pursuant to

 

this section, the court may award costs of litigation, including,

 

but not limited to, reasonable attorney and expert witness fees, to

 

the prevailing or substantially prevailing party if the court

 

determines that such an award is appropriate.

 

     (5) A civil action brought under this section may be brought

 

in the county in which the defendant is located, resides, or is

 

doing business , or in the circuit court for the county of Ingham,

 

or in the county in which the registered office of a defendant

 

corporation is located, or in the county where the violation

 

occurred.

 

     (6) General defenses and affirmative defenses , that may

 

otherwise apply under state law may apply in an action brought

 

under this section as determined to be appropriate by a court of

 

competent jurisdiction.

 

     (7) Fines imposed under this section shall be assessed for

 

each instance of violation and, if the violation is continuous,

 

shall be assessable up to the maximum amount for each day of

 

violation.

 

     Sec. 5531. (1) A person who knowingly violates any requirement

 

or prohibition of an applicable requirement of this part or a rule

 

promulgated under this part or who fails to obtain or comply with

 

of a permit, or comply with a final order, or order of

determination issued under this part is guilty of a misdemeanor

 

punishable by a fine of not more than $10,000.00, or, if the person

 

is the owner or operator of a sanitary landfill, not more than

 

$100,000.00, per day, for each violation.

 

     (2) A person who knowingly makes a false material statement,

 

representation, or certification in, or omits material information

 

from, or knowingly alters, conceals, or fails to file any notice,

 

application, record, report, plan, or other document required to be

 

submitted pursuant to this part or a rule promulgated under this

 

part, or who knowingly fails to notify or report information

 

required to be submitted under this part or a rule promulgated

 

under this part, or who knowingly falsifies, tampers with, renders

 

inaccurate, or knowingly fails to install any monitoring device or

 

method required under this part or a rule promulgated under this

 

part, is guilty of a misdemeanor punishable by imprisonment for not

 

more than 1 year and a fine of not more than $10,000.00, or, if the

 

person is the owner or operator of a sanitary landfill, not more

 

than $100,000.00, per day, for each violation.

 

     (3) A person who knowingly fails to pay any air quality fee

 

owed under this part is guilty of a misdemeanor punishable by a

 

fine of not more than $10,000.00, or, if the person is the owner or

 

operator of a sanitary landfill, not more than $100,000.00.

 

     (4) A person who knowingly releases into the ambient air any

 

specific chemical or any hazardous air pollutant listed in 40

 

C.F.R. part 68, section 68.130 (January 19, 1993) pursuant to the

 

authority of section 112(r) of part A of title I of the clean air

 

act, 84 Stat. 1685, 42 U.S.C. 7412, or both, contrary to applicable

federal, state, or local requirements, or contrary to a permit

 

issued under this part, and because of the quantities or

 

concentrations of the substance released knows or should have known

 

at the time that the release places another person in imminent

 

danger of death or serious bodily injury is guilty of a felony

 

punishable by imprisonment for not more than 2 years or a fine of

 

not more than $10,000.00, or, if the person is the owner or

 

operator of a sanitary landfill, not more than $100,000.00, or

 

both.

 

     (5) A person who knowingly releases or causes the release into

 

the ambient air of any specific chemical or any hazardous air

 

pollutant listed in 40 C.F.R. part 68, section 68.130 (January 19,

 

1993) CFR 68.130 (March 13, 2000) pursuant to the authority of

 

section 112(r) of part A of title I of the clean air act, 84 Stat.

 

1685, 42 U.S.C. 42 USC 7412, or both, contrary to applicable

 

federal, state, or local requirements, or contrary to a permit

 

issued under this part, and who knows or should have known at the

 

time that the release places another person in imminent danger of

 

death or serious bodily injury, and the release results whose

 

actions do result in death or serious bodily injury to any person,

 

is guilty of a felony punishable by imprisonment for not more than

 

6 years or a fine of not more than $25,000.00, or, if the person is

 

the owner or operator of a sanitary landfill, not more than

 

$250,000.00, or both.

 

     (6) A person who knowingly releases into the ambient air any

 

specific chemical or any hazardous air pollutant listed in 40

 

C.F.R. part 68, section 68.130 (January 19, 1993) CFR 68.130 (March

13, 2000) pursuant to the authority of section 112(r) of part A of

 

title I of the clean air act, 84 Stat. 1685, 42 U.S.C. 42 USC 7412,

 

or both, contrary to applicable federal, state, or local

 

requirements, or contrary to a permit issued under this part, and

 

who intended at that time to place another person in imminent

 

danger of death or serious bodily injury, and whose actions do

 

result in death or cause serious bodily injury to any person is

 

guilty of a felony punishable by imprisonment for not more than 15

 

years or a fine of not more than $250,000.00, or, if the person is

 

the owner or operator of a sanitary landfill, not more than

 

$2,500,000.00, or both.

 

     (7) In determining whether a defendant who is an individual

 

knew that the violation placed another person in imminent danger of

 

death or serious bodily injury as required under subsections (4),

 

(5), and (6), the defendant is responsible only for actual

 

awareness or actual belief possessed, and knowledge possessed by a

 

person other than the defendant, but not by the defendant, may not

 

be attributed to the defendant. However, in proving a defendant's

 

possession of actual knowledge, circumstantial evidence may be

 

used, including evidence that the defendant took affirmative steps

 

to be shielded from relevant information.

 

     (8) Fines imposed under this section shall be assessed for

 

each instance of violation and, if the violation is continuous,

 

shall be assessable up to the maximum amount for each day of

 

violation.

 

     (9) A defendant may establish an affirmative defense to a

 

prosecution under this section by showing by a preponderance of the

evidence that the conduct charged was freely consented to by the

 

person endangered and that the danger and conduct charged were

 

reasonably foreseeable hazards of any of the following:

 

     (a) An occupation, a business, or a profession.

 

     (b) Medical treatment or medical or scientific experimentation

 

conducted by professionally approved methods if the person had been

 

made aware of the risks involved prior to giving consent.

 

     (10) All general defenses, affirmative defenses, and bars to

 

prosecution that may otherwise apply with respect to state criminal

 

offenses may apply under this section and shall be determined by

 

the courts of this state having jurisdiction according to the

 

principles of common law as they may be interpreted in the light of

 

reason and experience. Concepts of justification and excuse

 

applicable under this section may be developed by the courts in the

 

light of reason and experience.

 

     (11) Fines shall not be imposed pursuant to this section for a

 

violation that was caused by an act of God, war, strike, riot,

 

catastrophe, or other condition to which negligence or willful

 

misconduct on the part of the person was not the proximate cause.

 

     (12) As used in this section:

 

     (a) "Serious bodily injury" means bodily injury that involves

 

a substantial risk of death, unconsciousness, extreme physical

 

pain, protracted and obvious disfigurement or protracted loss or

 

impairment of the function of a bodily member, organ, or mental

 

faculty.

 

     (b) "Specific chemical" means a hazardous air pollutant listed

 

in section 112(b)(1) of Part A of title I of the clean air act, 84

Stat. 1685, 42 U.S.C. 42 USC 7412, except for the following

 

compounds:

 

     (i) Antimony compounds.

 

     (ii) Arsenic compounds (inorganic including arsine).

 

     (iii) Beryllium compounds.

 

     (iv) Cadmium compounds.

 

     (v) Chromium compounds.

 

     (vi) Cobalt compounds.

 

     (vii) Coke oven emissions.

 

     (viii) Cyanide compounds.

 

     (ix) Glycol ethers.

 

     (x) Lead compounds.

 

     (xi) Manganese compounds.

 

     (xii) Mercury compounds.

 

     (xiii) Fine mineral fibers.

 

     (xiv) Nickel compounds.

 

     (xv) Polycyclic organic matter.

 

     (xvi) Radionuclides (including radon).

 

     (xvii) Selenium compounds.

 

     Sec. 11546. (1) The department or a health officer may request

 

that the attorney general bring an action in the name of the people

 

of the state, or a municipality or county may bring an action based

 

on facts arising within its boundaries, for any appropriate relief,

 

including injunctive relief, for a violation of this part or rules

 

promulgated under this part.

 

     (2) In addition to any other relief provided by this section,

 

the court may impose on any person who violates any provision of

this part or rules promulgated under this part or who fails to

 

comply with any permit, license, or final order issued pursuant to

 

this part a civil fine as follows:

 

     (a) Except as provided in subdivision (b), a civil fine of not

 

more than $10,000.00, or, if the person is the owner or operator of

 

a landfill, not more than $100,000.00, for each day of violation.

 

     (b) For a second or subsequent violation, a civil fine of not

 

more than $25,000.00, or, if the person is the owner or operator of

 

a landfill, not more than $250,000.00, for each day of violation.

 

     (3) In addition to any other relief provided by this section,

 

the court may order a person who violates this part or the rules

 

promulgated under this part to restore, or to pay to the state an

 

amount equal to the cost of restoring, the natural resources of

 

this state affected by the violation to their original condition

 

before the violation, and to pay to the state the costs of

 

surveillance and enforcement incurred by the state as a result of

 

the violation.

 

     (4) In addition to any other relief provided by this section,

 

the court shall order a person who violates section 11526e to

 

return, or to pay to the state an amount equal to the cost of

 

returning, the solid waste that is the subject of the violation to

 

the country in which that waste was generated.

 

     (5) This part does not preclude any person from commencing a

 

civil action based on facts that may also constitute a violation of

 

this part or the rules promulgated under this part.

 

     Sec. 11549. (1) A person who violates this part, a rule

 

promulgated under this part, or a condition of a permit, license,

or final order issued pursuant to this part is guilty of a

 

misdemeanor punishable by a fine of not more than $1,000.00, or, if

 

the person is the owner or operator of a landfill, not more than

 

$10,000.00, for each violation and costs of prosecution and, if in

 

default of payment of fine and costs, imprisonment for not more

 

than 6 months.

 

     (2) A person who knowingly violates section 11526e is guilty

 

of a felony punishable by imprisonment for not more than 2 years or

 

a fine of not more than $5,000.00, or, if the person is the owner

 

or operator of a landfill, not more than $50,000.00, or both.

 

     (3) Each day upon which a violation described in this section

 

occurs is a separate offense.