February 16, 2010, Introduced by Rep. Meadows and referred to the Committee on Judiciary.
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.
(c) One or more of the directors if it is alleged that 1 or
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)
The state has not commenced and or
is not diligently
prosecuting
an a judicial or
administrative 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.
(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
in the circuit court for the circuit in which the alleged release,
threatened release, or other violation occurred. An action under
subsection (1)(c) shall be brought in the circuit court for Ingham
county.