HB-5819, As Passed House, August 19, 2010

SUBSTITUTE FOR

HOUSE BILL NO. 5819

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 20135 (MCL 324.20135), as amended by 1995 PA

71.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 20135. (1) Except as otherwise provided in this part, a

person, including a local unit of government on behalf of its

citizens, whose health or enjoyment of the environment is or may be

adversely affected by a release from a facility or threat of

release from a facility, other than a permitted release or a

release in compliance with applicable federal, state, and local air

pollution control laws, by a violation of this part or a rule

promulgated or order issued under this part, or by the failure of

the directors to perform a nondiscretionary act or duty under this

part, may commence a civil action against any of the following:

(a) An owner or operator who is liable under section 20126 for

injunctive relief necessary to prevent irreparable harm to the

public health, safety, or welfare, or the environment from a

release or threatened release in relation to that facility.

(b) A person who is liable under section 20126 for a violation

of this part or a rule promulgated under this part or an order

issued under this part in relation to that facility.

more of the directors failed to perform a nondiscretionary act or

duty under this part.

(2) The circuit court has jurisdiction in actions brought

under subsection (1)(a) to grant injunctive relief necessary to

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

from a release or threatened release. The circuit court has

jurisdiction in actions brought under subsection (1)(b) to enforce

this part or a rule promulgated or order issued under this part by

ordering such action as may be necessary to correct the violation

and to impose any civil fine provided for in this part for the

violation. A civil fine recovered under this section shall be

deposited in the fund. The circuit court has jurisdiction in

actions brought under subsection (1)(c) to order 1 or more of the

directors to perform the nondiscretionary act or duty concerned.

(3) An action shall not be filed under subsection (1)(a) or

(b) unless all of the following conditions exist:

(a) The plaintiff has given at least 60 days' notice in

writing of the plaintiff's intent to sue, the basis for the suit,

and the relief to be requested to each of the following:

(i) The department.

(ii) The attorney general.

(iii) The proposed defendants.

(b) Both of the following apply:

(i) The state has not commenced ~~and~~ or is not diligently

prosecuting an a judicial action under this part or under other

appropriate legal authority to obtain injunctive relief concerning

the facility or to require compliance with this part or a rule or

an order under this part.

(ii) The state has not entered into or is not diligently

enforcing an administrative order or other legally enforceable

agreement under this part concerning the facility.

(4) An action shall not be filed under subsection (1)(c) until

the plaintiff has given in writing at least 60 days' notice to the

directors of the plaintiff's intent to sue, the basis for the suit,

and the relief to be requested.

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

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

reasonable attorney and expert witness fees to the prevailing or

substantially prevailing party if the court determines that an

award is appropriate.

(6) This section does not affect or otherwise impair the

rights of any person under federal, state, or common law.

(7) An action under subsection (1)(a) or (b) shall be brought