HB-6202, As Passed Senate, June 29, 2006

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 6202

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

(MCL 324.101 to 324.90106) by adding sections 21558, 21559, 21560,

 

21561, 21562, and 21563.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 21558. (1) In order to receive money under the temporary

 

reimbursement program, an eligible person shall retain a consultant

 

to perform the corrective actions required under part 213.

 

     (2) The consultant shall comply with all of the following

 

requirements:

 

     (a) The consultant shall submit the following items for

 

competitive bidding in accordance with procedures established in

 

this section:

 

     (i) Well drilling, including monitoring wells.


House Bill No. 6202 (H-3) as amended June 22, 2006

     (ii) Laboratory analysis.

 

     (iii) Construction of treatment systems.

 

     (iv) Removal of contaminated soil.

 

     (v) Operation of treatment systems.

 

     (b) All bids received by the consultant shall be submitted on

 

a standardized bid form prepared by the department.

 

     (c) A consultant may perform work activities specified in

 

subsection (2)(a) only if the consultant bids for the work activity

 

and the consultant's bid is the lowest responsive bid. A consultant

 

who intends to submit a bid must submit the bid to the department

 

prior to receiving bids from contractors.

 

     (d) Upon receipt of bids, the consultant shall submit to the

 

department a copy of all bid forms received and the bid accepted.

 

     (e) The consultant shall notify the department in writing of

 

the bid accepted. If the lowest responsive bid was not accepted,

 

the consultant shall provide sufficient justification to the

 

department and receive concurrence from the department before

 

commencing work. Failure of the department to provide a response

 

within 21 days shall be considered as concurrence.

 

     (3) An eligible person may request that the consultant

 

retained by the eligible person add qualified bidders to the list

 

for requests for bids.

 

     (4) Upon hiring a contractor, a consultant may include a

 

markup to the contractor's work invoices only if the consultant

 

pays the contractor and does the billing.

 

     [(5) After the consultant employs the competitive bidding process

 

described in this section, the owner or operator may hire contractors


House Bill No. 6202 (H-3) as amended June 22, 2006

directly.

 

                ]

 

     (6) Removal of underground storage tank systems or

 

installation of new or upgraded equipment for the purpose of

 

attaining compliance with part 211, or work performed for any other

 

reason not related to the performance of part 213 corrective

 

actions, is not eligible for temporary reimbursement program

 

funding under this part.

 

     Sec. 21559. (1) For an eligible person to receive money under

 

the temporary reimbursement program for corrective action, all of

 

the following conditions shall be met:

 

     (a) The eligible person, and the consultant retained by the

 

eligible person, shall follow the procedures outlined in this

 

section and shall submit reports, work plans, feasibility analyses,

 

hydrogeological studies, and corrective action plans prepared under

 

part 213 to the department, and shall provide other information

 

required by the department relevant to determining compliance with

 

this part and part 213.

 

     (b) The eligible person shall submit a work invoice to the

 

department, with an attached summary report of the work performed

 

under the invoice and results of the work performed, including, but

 

not limited to, laboratory results, soil boring logs, construction

 

logs, site investigation results, and other information that may be

 

requested by the department.

 

     (c) Work invoices shall comply with all of the following:

 

     (i) Be submitted on a standardized work invoice form provided

 

by the department.


 

     (ii) Contain complete information in accordance with the form

 

and the requirements of this section and as requested by the

 

department.

 

     (iii) Be in an amount not less than $5,000.00, except for the

 

last work invoice submitted for reimbursement under the approved

 

precertification application.

 

     (2) Upon receipt of a work invoice pursuant to subsection (1),

 

the department shall make all of the following determinations:

 

     (a) Whether the work performed is necessary and appropriate

 

considering conditions at the site of the release.

 

     (b) Whether the cost of performing the work is reasonable.

 

     (c) Whether the eligible person is eligible to receive funding

 

under this part.

 

     (d) Whether the consultant retained by the eligible person has

 

complied with section 21558.

 

     (3) The department shall deny payment of a work invoice if the

 

department determines that the corrective action work performed is

 

not consistent with the requirements of part 213 or does not comply

 

with the requirements of this part.

 

     (4) Within 45 days after receipt of a work invoice, the

 

department shall determine whether the work invoice complies with

 

subsections (1) to (3). The department shall notify the eligible

 

person in writing of such a determination.

 

     (5) The department shall keep records of approved

 

precertification applications and work invoices. If the eligible

 

person has not exceeded the allowable amount of expenditure

 

provided in sections 21556 and 21557, the department shall forward


 

an approved payment voucher to the state treasurer within 45 days

 

after approval of the work invoice.

 

     (6) Except as provided in subsection (7) or as otherwise

 

provided in this subsection, upon receipt of an approved payment

 

voucher, the state treasurer shall make a payment jointly to the

 

eligible person and the consultant within 30 days. However, the

 

eligible person may submit to the department a signed affidavit

 

stating that the consultant listed on a work invoice has been paid

 

in full. The affidavit shall list the work invoice number and

 

precertification application to which the affidavit applies, a

 

statement that the eligible person has mailed a copy of the

 

affidavit by first-class mail to the consultant listed on the work

 

invoice, and the date that the affidavit was mailed to the

 

consultant. The department is not required to verify affidavits

 

submitted under this subsection. If, within 14 days after the

 

affidavit was mailed to the consultant under this subsection, the

 

department has not received an objection in writing from the

 

consultant listed on the work invoice, the state treasurer shall

 

make the payment directly to the eligible person. If a check has

 

already been issued to the eligible person and the consultant, the

 

eligible person shall return the original check to the department

 

along with the affidavit. If, within 14 days after the affidavit

 

was mailed to the consultant, the department has not received an

 

objection from the consultant listed on the check, the state

 

treasurer shall reissue a check to the eligible person. If a

 

consultant objects to an affidavit received under this subsection

 

and notifies the department in writing within 14 days after the


 

affidavit was mailed to the consultant, the department shall notify

 

the state treasurer, and the state treasurer shall issue or reissue

 

the check to the eligible person and the consultant. The grounds

 

for an objection by a consultant under this subsection shall be

 

that the consultant has not been paid in full and the objection

 

shall be made by affidavit. The state treasurer shall issue checks

 

under this subsection within 60 days after an affidavit has been

 

received by the department. Once payment has been made under this

 

section, the refined petroleum fund is not liable for any claim on

 

the basis of that payment.

 

     (7) The temporary reimbursement program is subject to section

 

21548.

 

     (8) Upon direction of the department, the state treasurer may

 

withhold partial payment of money on payment vouchers if there is

 

reasonable cause to believe that there are violations of section

 

21548 or if necessary to assure acceptable completion of the

 

corrective actions.

 

     Sec. 21560. (1) An eligible person with a precertification

 

application approved pursuant to section 21556 or 21557 for which

 

corrective action is in progress that sells, or has sold, or

 

transfers the property that is the subject of the approved

 

precertification application to another person may assign or

 

transfer the approved precertification application to that other

 

person. The person to whom the assignment or transfer is made is

 

eligible to receive money from the refined petroleum fund temporary

 

reimbursement program as an eligible person for the release which

 

is the subject of the approved precertification application.


 

Previous reimbursements and co-payments of the eligible person

 

making the assignment or transfer shall be counted toward the

 

reimbursement and co-pay amount of the person to whom the

 

assignment or transfer is made.

 

     (2) An eligible person assigning or transferring an approved

 

precertification application pursuant to this section shall notify

 

the department of the proposed assignment or transfer at least 10

 

days prior to the assignee's or transferee's submittal of work

 

invoices for reimbursement.

 

     Sec. 21561. (1) If the department denies a precertification

 

application or a work invoice submitted under the temporary

 

reimbursement program, the applicant who submitted the

 

precertification application or the eligible person who submitted

 

the work invoice may, within 14 days following the denial, request

 

review by the department. Upon receipt of a request for review

 

under this subsection, the department shall forward the request to

 

the advisory board for a preliminary review. The advisory board

 

shall conduct a review of the denial and shall submit a

 

recommendation to the department as to whether the precertification

 

application or the work invoice complies with this part. Not later

 

than 21 days following review by the advisory board, the department

 

shall approve the precertification application or the work invoice

 

if the department determines that the precertification application

 

or the work invoice substantially complies with the requirements of

 

this part. In making its determination, the department shall give

 

substantial consideration to the recommendations of the advisory

 

board.


 

     (2) An eligible person or applicant who submitted a

 

precertification application who is denied approval by the

 

department after review under subsection (1) may appeal the

 

decision pursuant to section 631 of the revised judicature act of

 

1961, 1961 PA 236, MCL 600.631, directly to the circuit court for

 

the county of Ingham.

 

     Sec. 21562. (1) The temporary reimbursement program advisory

 

board is created. The advisory board shall conduct reviews of

 

denied work invoices upon the request of eligible persons and

 

provide recommendations to the department upon completion of such

 

reviews. The advisory board shall also advise the department on all

 

matters related to the implementation of the temporary

 

reimbursement program.

 

     (2) The advisory board shall consist of the following:

 

     (a) Three individuals appointed by the governor, not more than

 

2 of whom are employed by state departments.

 

     (b) Two individuals appointed by the speaker of the house of

 

representatives.

 

     (c) Two individuals appointed by the senate majority leader.

 

     (3) An individual appointed to the advisory board shall serve

 

for a term of 3 years, commencing on the initiation date of the

 

temporary reimbursement program.

 

     (4) A vacancy on the advisory board shall be filled in the

 

same manner as the original appointment was made.

 

     (5) The first meeting of the advisory board shall be called by

 

the department. At its first meeting, the advisory board shall

 

elect from among its members a chairperson and other officers as it


 

considers necessary. After the first meeting, a meeting of the

 

advisory board shall be called by the chairperson on his or her own

 

initiative or by the chairperson on petition of 3 or more members.

 

Upon receipt of a petition of 3 or more members, a meeting shall be

 

called for a date not later than 21 days after the date of receipt

 

of the petition.

 

     (6) The business that the advisory board may perform shall be

 

conducted at a public meeting of the advisory board held in

 

compliance with the open meetings act, 1976 PA 267, MCL 15.261 to

 

15.275.

 

     (7) A majority of the members of the advisory board constitute

 

a quorum for the transaction of business at a meeting of the

 

advisory board. Action by the advisory board shall be by a majority

 

of the votes cast.

 

     (8) The department may submit to the advisory board, for its

 

review and evaluation, the competitive bidding process employed by

 

a consultant pursuant to section 21558. In conducting this review

 

and evaluation, the advisory board may convene a peer review panel.

 

Following completion of its review and evaluation, the advisory

 

board shall forward a copy of its findings to the department and

 

the consultant. If the advisory board finds the practices employed

 

by a consultant to be inappropriate, the advisory board may

 

recommend that the department revoke the consultant's

 

certification.

 

     (9) A member of the advisory board shall abstain from voting

 

on any matter in which that member has a conflict of interest.

 

     Sec. 21563. (1) The temporary reimbursement program shall


 

cease upon payment of all approved work invoices and resolution of

 

work invoice appeals.

 

     (2) Any temporary reimbursement program funds remaining after

 

approved work invoices are paid, less any dollar amounts held in

 

reserve pending resolution of work invoice appeals, shall be

 

available for future appropriations pursuant to section 21506a(4).

 

     (3) Any temporary reimbursement program funds remaining after

 

resolution of all work invoice appeals shall be available for

 

future appropriations pursuant to section 21506a(4).

 

     Enacting section 1. This amendatory act does not take effect

 

unless all of the following bills of the 93rd Legislature are

 

enacted into law:

 

     (a) House Bill No. 6047.

 

     (b) Senate Bill No. 1260.