Bill Text: MI HB6362 | 2009-2010 | 95th Legislature | Engrossed

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Bill Title: Environmental protection; cleanups; part 201 modifications; provide for. Amends secs. 20129, 20137 & 20139 of 1994 PA 451 (MCL 324.20129 et seq.). TIE BAR WITH: HB 6359'10, HB 6360'10, HB 6363'10, SB 1345'10, SB 1346'10

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-11-30 - Referred To Committee On Natural Resources And Environmental Affairs [HB6362 Detail]

Download: Michigan-2009-HB6362-Engrossed.html

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HB-6362, As Passed House, November 10, 2010

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 6362

 

July 28, 2010, Introduced by Rep. Segal and referred to the Committee on New Economy and Quality of Life.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 20129, 20137, and 20139 (MCL 324.20129,

 

324.20137, and 324.20139), as amended by 1995 PA 71.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20129. (1) If 2 or more persons acting independently are

 

liable under section 20126 and there is a reasonable basis for

 

division of harm according to the contribution of each person, each

 

person is subject to liability under this part only for the portion

 

of the total harm attributable to that person. However, a person

 

seeking to limit his or her liability on the grounds that the

 

entire harm is capable of division has the burden of proof as to

 

the divisibility of the harm and as to the apportionment of

 

liability.

 

     (2) If 2 or more persons are liable under section 20126 for an

 

indivisible harm, each person is subject to liability for the

 

entire harm.

 

     (3) A person may seek contribution from any other person who

 

is liable under section 20126 during or following a civil action

 

brought under this part. This subsection does not diminish the

 

right of a person to bring an action for contribution in the

 

absence of a civil action by the state under this part. In a

 

contribution action brought under this part, the court shall

 

consider all of the following factors in allocating response

 

activity costs and damages among liable persons:

 

     (a) Each person's relative degree of responsibility in causing

 

the release or threat of release.

 

     (b) The principles of equity pertaining to contribution.

 

     (c) The degree of involvement of and care exercised by the

 

person with regard to the hazardous substance.

 

     (d) The degree of cooperation by the person with federal,

 

state, or local officials to prevent, minimize, respond to, or

 

remedy the release or threat of release.

 

     (e) Whether equity requires that the liability of some of the

 

persons should constitute a single share.

 

     (4) If, in an action for contribution under subsection (3),

 

the court determines that all or part of a person's share of

 

liability is uncollectible from that person, then the court may

 

reallocate any uncollectible amount among the other liable persons

 

according to the factors listed in subsection (3). A person whose

 

share is determined to be uncollectible continues to be subject to

 

contribution and to any continuing liability to the state.

 

     (5) A person who has resolved his or her liability to the

 

state in an administrative or judicially approved consent order is

 

not liable for claims for contribution regarding matters addressed

 

in the consent order. The consent order does not discharge any of

 

the other persons liable under section 20126 unless the terms of

 

the consent order provide for this discharge, but the potential

 

liability of the other persons is reduced by the amount of the

 

consent order.

 

     (6) A person who is not liable under this part, including a

 

person who is was issued a written determination under former

 

section 20129a affirming that the person meets the criteria for an

 

exemption from liability, and who is otherwise in compliance with

 

section 20107a, shall be considered to have resolved his or her

 

liability to the state in an administratively approved settlement

 

under the comprehensive environmental response, compensation, and

 

liability act, of 1980, Public Law 96-510, 94 Stat. 2767 42 USC

 

9601 to 9675, and shall by operation of law be granted contribution

 

protection under section 113(f)(2) of title I of the comprehensive

 

environmental response, compensation, and liability act of 1980,

 

Public Law 96-510, 42 U.S.C. 9613 USC 9613(f)(2) and under this

 

part in the same manner that contribution protection is provided

 

pursuant to subsection (5).

 

     (7) If the state obtains less than complete relief from a

 

person who has resolved his or her liability to the state in an

 

administrative or judicially approved consent order under this

 

part, the state may bring an action against any other person liable

 

under section 20126 who has not resolved his or her liability.

 

     (8) A person who has resolved his or her liability to the

 

state for some or all of a response activity in an administrative

 

or judicially approved consent order may seek contribution from any

 

person who is not a party to the consent order described in

 

subsection (5).

 

     (9) In an action for contribution under this section, the

 

rights of any person who has resolved his or her liability to the

 

state is subordinate to the rights of the state, if the state files

 

an action under this part.

 

     Sec. 20137. (1) In Subject to subsections (2) and (3), in

 

addition to other relief authorized by law, the attorney general

 

may, on behalf of the state, commence a civil action seeking 1 or

 

more of the following:

 

     (a) Temporary or permanent injunctive relief necessary to

 

protect the public health, safety, or welfare, or the environment

 

from the release or threat of release.

 

     (b) Recovery of state response activity costs pursuant to

 

section 20126a.

 

     (c) Damages for the full value of injury to, destruction of,

 

or loss of natural resources resulting from the release or threat

 

of release, including the reasonable costs of assessing the injury,

 

destruction, or loss resulting from the release or threat of

 

release.

 

     (d) A declaratory judgment on liability for future response

 

activity costs and damages.

 

     (e) A civil fine of not more than $1,000.00 for each day of

 

noncompliance without sufficient cause with a written request of

 

the department pursuant to section 20114(1)(h). A fine imposed

 

under this subdivision shall be based on the seriousness of the

 

violation and any good faith efforts of the person to comply with

 

the request of the department.

 

     (f) A civil fine of not more than $10,000.00 for each day of

 

violation of this part. or a rule promulgated under this part. A

 

fine imposed under this subdivision shall be based upon the

 

seriousness of the violation and any good faith efforts of the

 

person to comply with this part. or a rule promulgated under this

 

part.

 

     (g) A civil fine of not more than $25,000.00 for each day of

 

violation of a judicial order or an administrative order issued

 

pursuant to section 20119, including exemplary damages pursuant to

 

section 20119.

 

     (h) Enforcement of an administrative order issued pursuant to

 

section 20119.

 

     (i) Enforcement of information gathering and entry authority

 

pursuant to section 20117.

 

     (j) Enforcement of the reporting requirements under section

 

20114(1), (3), and (6) 20114.

 

     (k) Any other relief necessary for the enforcement of this

 

part.

 

     (2) An owner or operator of a facility from which a hazardous

 

substance is released that is determined to be reportable under

 

section 20114(1)(b)(i), other than a permitted release, who fails to

 

notify the department within 24 hours after obtaining knowledge of

 

the release or who submits in such notification any information

 

that the person knows to be false or misleading, is subject to a

 

civil fine of not more than $25,000.00 for each day in which the

 

violation occurs or the failure to comply continues. A fine imposed

 

under this subsection shall be based upon the seriousness of the

 

violation and any good-faith efforts by the violator to comply with

 

this subsection.

 

     (3) A person who is responsible for an activity causing a

 

release in excess of the concentrations that satisfy the criteria

 

established pursuant to section 20120a(1)(a) or (b), as appropriate

 

for the use of the property, is subject to a civil fine as provided

 

in this part unless a fine or penalty has already been imposed for

 

the release under another part of this act. However, a civil fine

 

shall not be imposed under this subsection against a person who

 

made a good-faith effort to prevent the release and to comply with

 

the provisions of this part. This subsection does not apply to a

 

release from an underground storage tank system as defined in part

 

213.

 

     (4) (2) If an action is brought under this part by a plaintiff

 

other than the attorney general, the plaintiff shall, at the time

 

of filing, provide a copy of the complaint to the attorney general.

 

     (5) (3) Except as otherwise provided in this part, an action

 

brought under this part may be brought in the circuit court for the

 

county of Ingham, in the county in which the defendant resides, has

 

a place of business, or in which the registered office of a

 

defendant corporation is located, or in the county where the

 

release occurred.

 

     (6) (4) A state court does not have jurisdiction to review

 

challenges to a response activity selected or approved by the

 

department under this part or to review an administrative order

 

issued under this part in any action except an action that is 1 of

 

the following:

 

     (a) An action to recover response costs, damages, or for

 

contribution.

 

     (b) An action by the state to enforce an administrative order

 

under this part or by any other person under section 20135(1)(b) to

 

enforce an administrative order or to recover a fine for violation

 

of an order.

 

     (c) An action pursuant to section 20119(5) for review of a

 

decision by the department denying or limiting reimbursement.

 

     (d) An action pursuant to section 20135 challenging a response

 

activity selected or approved by the department, if the action is

 

filed after the completion of the response activity.

 

     (e) An action by the state pursuant to section 20126a(6) to

 

compel response activity.

 

     (7) (5) In any judicial action under this part, judicial

 

review of any issues concerning the selection or adequacy of a

 

response activity taken, ordered, or agreed to by the state are

 

limited to the administrative record. If the court finds that the

 

record is incomplete or inadequate, the court may consider

 

supplemental material in the action. In considering objections

 

raised in a judicial action under this part, the court shall uphold

 

the state's decision in selecting a response activity unless the

 

objecting party can demonstrate based on the administrative record

 

that the decision was arbitrary and capricious or otherwise not in

 

accordance with law. In reviewing alleged procedural errors, the

 

court may disallow costs or damages only to the extent the errors

 

were so serious and related to matters of such central importance

 

that the activity would have been significantly changed had the

 

errors not been made.

 

     (8) (6) In an action commenced under this part, any person may

 

intervene as a matter of right if that person claims an interest

 

relating to the subject matter of the action and is situated so

 

that the disposition of the action may, as a practical matter,

 

impair or impede the person's ability to protect that interest,

 

unless the court finds the person's interest is adequately

 

represented by an existing party.

 

     Sec. 20139. (1) The penalties provided in this section only

 

apply to a release that occurs after July 1, 1991.

 

     (2) A person who does any of the following is guilty of a

 

felony and shall be fined not less than $2,500.00 or more than

 

$25,000.00 for each violation:

 

     (a) Knowingly releases or causes a release contrary to

 

applicable federal, state, or local requirements or contrary to any

 

permit or license held by that person, if that person knew or

 

should have known that the release could cause personal injury or

 

property damage.

 

     (b) Intentionally makes a false statement, representation, or

 

certification in any application, record, report, plan, or other

 

document filed or required to be maintained under this part. and

 

rules promulgated under this part.

 

     (c) Intentionally renders inaccurate any monitoring device or

 

record required to be maintained under this part. or a rule

 

promulgated under this part.

 

     (d) Misrepresents his or her qualifications in a document

 

prepared pursuant to section 20129a under section 20114d or 20114e.

 

     (3) In addition to a fine imposed under subsection (2), the

 

court may impose an additional fine of not more than $25,000.00 for

 

each day during which the release 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 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.

 

     (4) Upon a finding by the court that the action of a criminal

 

defendant prosecuted under this section poses or posed a

 

substantial endangerment to public health, safety, or welfare, the

 

court shall impose, in addition to the penalties set forth in

 

subsections (2) and (3), 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 criminally liable for substantial

 

endangerment under subsection (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 has 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 would 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) The department may pay an award of up to $10,000.00 to an

 

individual that provides information leading to the arrest and

 

conviction of a person for a violation of this section. The

 

department shall promulgate rules that prescribe criteria for

 

granting awards under this section. An award shall not be made

 

under this section until rules are promulgated prescribing the

 

criteria for making awards. Awards under this subsection may be

 

paid from the Michigan environmental assurance fund, if enabling

 

legislation creating the fund is enacted into law.

 

     (8) As used in this section, "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.

 

     Enacting section 1. This amendatory act does not take effect

 

unless all of the following bills of the 95th Legislature are

 

enacted into law:

 

     (a) Senate Bill No. 1345.

 

     (b) Senate Bill No. 1346.

 

     (c) House Bill No. 6360(request no. H06270'10 *).

 

     (d) House Bill No. 6363(request no. H06271'10 *).

 

     (e) Senate Bill No.____ or House Bill No. 6359(request no.

 

07378'10).