SB-1260, As Passed Senate, June 15, 2006
SUBSTITUTE FOR
SENATE BILL NO. 1260
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 21502, 21503, 21506a, and 21552 (MCL
324.21502, 324.21503, 324.21506a, and 324.21552), section 21502 as
amended and sections 21506a and 21552 as added by 2004 PA 390 and
section 21503 as amended by 1996 PA 181.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 21502. As used in this part:
(a) "Administrator" means the fund administrator provided for
in section 21513.
(b) "Advisory board" means the temporary reimbursement program
advisory board established under section 21562.
(c) (b)
"Approved claim" means a claim that is approved
pursuant to section 21515.
(d) (c)
"Authority" means the Michigan
underground storage
tank financial assurance authority created in section 21523.
(e) (d)
"Board" means the Michigan
underground storage tank
financial assurance policy board created in section 21541.
(f) (e)
"Board of directors" means the board of
directors of
the authority.
(g) (f)
"Bond proceeds account" means the account
or fund to
which proceeds of bonds or notes issued under this part have been
credited.
(h) (g)
"Bonds or notes" means the bonds, notes,
commercial
paper, other obligations of indebtedness, or any combination of
these, issued by the authority pursuant to this part.
(i) (h)
"Claim" means the submission by the owner
or
operator or his or her representative of documentation on an
application requesting payment from the fund. A claim shall
include, at a minimum, a completed and signed claim form and the
name, address, telephone number, and federal tax identification
number of the consultant retained by the owner or operator to carry
out responsibilities pursuant to part 213.
(j) "Class 1 site" means a site posing the highest degree of
threat to the public and environment as determined by the
department, based on the classification system developed by the
department pursuant to section 21314a.
(k) "Class 2 site" means a site posing the second highest
degree of threat to the public and environment as determined by the
department, based on the classification system developed by the
department pursuant to section 21314a.
(l) (i)
"Consultant" means a person on the list of
qualified
underground storage tank consultants prepared pursuant to section
21542.
(m) (j)
"Co-pay amount" means the co-pay amount provided
for
in section 21514.
(n) (k)
"Corrective action" means the
investigation,
assessment, cleanup, removal, containment, isolation, treatment, or
monitoring of regulated substances released into the environment or
the taking of such other actions as may be necessary to prevent,
minimize, or mitigate injury to the public health, safety, or
welfare, the environment, or natural resources.
(o) (l) "Department" means the department of
environmental
quality.
(p) "Eligible person" means an owner or operator who meets the
eligibility requirements in section 21556 or 21557 and received
approval of his or her precertification application by the
department.
(q) (m)
"Financial responsibility requirements"
means the
financial responsibility for taking corrective action and for
compensating third parties for bodily injury and property damage
caused by a release from an underground storage tank system that
the owner or operator of an underground storage tank system must
demonstrate under part 211 and the rules promulgated under that
part.
(r) (n)
"Fund" means the Michigan
underground storage tank
financial assurance fund created in section 21506.
(s) (o)
"Heating oil" means petroleum that is No.
1, No. 2,
No. 4--light, No. 4--heavy, No. 5--light, No. 5--heavy, and No. 6
technical grades of fuel oil; other residual fuel oils including
navy special fuel oil and bunker C; and other fuels when used as
substitutes for 1 of these fuel oils.
(t) (p)
"Indemnification" means indemnification of
an owner
or operator for a legally enforceable judgment entered against the
owner or operator by a third party, or a legally enforceable
settlement entered between the owner or operator and a third party,
compensating that third party for bodily injury or property damage,
or both, caused by an accidental release as those terms are defined
in R 29.2163 of the Michigan administrative code.
(u) (q)
"Location" means a facility or parcel of
property
where petroleum underground storage tank systems are registered
pursuant to part 211.
(v) (r)
"Operator" means a person who was, at the
time of
discovery of a release, in control of or responsible for the
operation of a petroleum underground storage tank system or a
person to whom an approved claim has been assigned or transferred.
(w) (s)
"Owner" means a person, other than a
regulated
financial institution, who, at the time of discovery of a release,
held a legal, equitable, or possessory interest of any kind in an
underground storage tank system or in the property on which an
underground storage tank system is located, including, but not
limited to, a trust, vendor, vendee, lessor, or lessee. Owner
includes a person to whom an approved claim is assigned or
transferred. Owner does not include a person or a regulated
financial institution who, without participating in the management
of an underground storage tank system and without being otherwise
engaged in petroleum production, refining, or marketing relating to
the underground storage tank system, is acting in a fiduciary
capacity or who holds indicia of ownership primarily to protect the
person's or the regulated financial institution's security interest
in the underground storage tank system or the property on which it
is located. This exclusion does not apply to a grantor,
beneficiary, remainderman, or other person who could directly or
indirectly benefit financially from the exclusion other than by the
receipt of payment for fees and expenses related to the
administration of a trust.
(x) (t)
"Oxygenate" means an organic compound
containing
oxygen and having properties as a fuel that are compatible with
petroleum, including, but not limited to, ethanol, methanol, or
methyl tertiary butyl ether (MTBE).
Sec. 21503. As used in this part:
(a)
(1) "Payment
voucher" means a form prepared by the
department that specifies payment authorization by the department
to the department of treasury.
(b) (2)
"Petroleum" means crude oil, crude oil
fractions,
and refined petroleum fractions including gasoline, kerosene,
heating oils, and diesel fuels.
(c) (3)
"Petroleum underground storage tank
system" means an
underground storage tank system used for the storage of petroleum.
(d) "Precertification application" means the application
submitted by an owner or operator seeking the department's
eligibility determination for reimbursement for the costs of
corrective action from the temporary reimbursement program.
(e) (4)
"Refined petroleum" means aviation
gasoline, middle
distillates, jet fuel, kerosene, gasoline, residual oils, and any
oxygenates that have been blended with any of these.
(f) "Refined petroleum fund" means the refined petroleum fund
established under section 21506a.
(g) "Refined petroleum product cleanup initial program" means
the program established in section 21553.
(h) "Refined petroleum product cleanup program" means the
refined petroleum product cleanup initial program and the program
based upon the recommendations of the petroleum cleanup advisory
council under section 21552(10).
(i) (5)
"Regulated financial institution" means a
state or
nationally chartered bank, savings and loan association or savings
bank, credit union, or other state or federally chartered lending
institution or a regulated affiliate or regulated subsidiary of any
of these entities.
(j) (6)
"Regulatory fee" means the environmental
protection
regulatory fee imposed under section 21508.
(k) (7)
"Release" means any spilling, leaking,
emitting,
discharging, escaping, or leaching from a petroleum underground
storage tank system into groundwater, surface water, or subsurface
soils.
(l) "Site" means a location where a release has occurred or a
threat of a release exists from an underground storage tank system,
excluding any location where corrective action was completed which
satisfies the cleanup criteria for unrestricted residential use
under part 213.
(m) "Temporary reimbursement program" means the program
established in section 21554.
(n) (8)
"Underground storage tank system" means an
existing
tank or combination of tanks, including underground pipes connected
to the tank or tanks, which is or was used to contain an
accumulation of regulated substances, and is not currently being
used for any other purpose, and the volume of which, including the
volume of the underground pipes connected to the tank or tanks, is
10% or more beneath the surface of the ground. An underground
storage tank system includes an underground storage tank that is
properly closed in place pursuant to part 211 and rules promulgated
under that part. An underground storage tank system does not
include any of the following:
(i) (a)
A farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for noncommercial purposes.
(ii) (b)
A tank used for storing heating oil for consumptive
use on the premises where the tank is located.
(iii) (c)
A septic tank.
(iv) (d)
A pipeline facility, including gathering lines
regulated under either of the following:
(A) (i) The natural gas pipeline safety act of 1968, Public
Law
90-481, 49 U.S.C. USC
Appx 1671 to 1677, 1679a to 1682, and
1683 to 1687.
(B) (ii) Sections 201 to 215, 217, and 219 of the hazardous
liquid pipeline safety act of 1979, title II of the pipeline safety
act
of 1979, Public Law 96-129, 49 U.S.C. USC
Appx 2001 to 2015.
(v) (e)
A surface impoundment, pit, pond, or lagoon.
(vi) (f)
A storm water or wastewater collection system.
(vii) (g)
A flow-through process tank.
(viii) (h)
A liquid trap or associated gathering lines
directly related to oil or gas production and gathering operations.
(ix) (i)
A storage tank situated in an underground area such
as a basement, cellar, mineworking, drift, shaft, or tunnel if the
storage tank is situated upon or above the surface of the floor.
(x) (j)
Any pipes connected to a tank described in
subdivisions
(a) to (i) subparagraphs (i) to (ix).
(xi) (k)
An underground storage tank system holding hazardous
wastes listed or identified under subtitle C of the solid waste
disposal
act, title II of Public Law 89-272, 42
U.S.C. USC 6921
to 6939e, or a mixture of such hazardous waste and other regulated
substances.
(xii) (l) A wastewater treatment tank system that is part of a
wastewater treatment facility regulated under section 307(b) of
title III or section 402 of title IV of the federal water pollution
control
act, 33 U.S.C. USC
1317 and 1342.
(xiii) (m)
Equipment or machinery that contains regulated
substances for operational purposes such as hydraulic lift tanks
and electrical equipment tanks.
(xiv) (n)
An underground storage tank system with a capacity
of 110 gallons or less.
(xv) (o)
An underground storage tank system that contains a
de minimis concentration of regulated substances.
(xvi) (p)
An emergency spill or overflow containment
underground storage tank system that is expeditiously emptied after
use.
(xvii) (q)
A wastewater treatment tank system.
(xviii) (r)
An underground storage tank system containing
radioactive material that is regulated under the atomic energy act
of 1954, chapter 1073, 68 Stat. 919.
(xix) (s)
An underground storage tank system that is part of
an emergency generator system at nuclear power generation
facilities
regulated by the nuclear regulatory commission under 10
C.F.R.
CFR part 50, appendix A to part 50 of title 10 of the
code
of federal regulations.
(xx) (t)
Airport hydrant fuel distribution systems.
(xxi) (u)
Underground storage tank systems with field-
constructed tanks.
(o) (9)
"Work invoice" means an original billing
acceptable
to the administrator and signed by the owner or operator and a
consultant that includes all of the following:
(i) (a)
The name, address, and federal tax identification
number of each contractor who performed work.
(ii) (b)
The name and social security number of each employee
who performed work.
(iii) (c)
A specific itemized list of the
work performed by
each contractor and an itemized list of the cost of each of these
items.
(iv) (d)
A statement that the consultant employed a
documented sealed competitive bidding process for any contract
award exceeding $5,000.00.
(v) (e)
If the consultant did not accept the lowest
responsive bid received, a specific reason why the lowest
responsive bid was not accepted.
(vi) (f)
Upon request of the administrator, a list of all
bids received.
(vii) (g)
Proof of payment of the co-pay amount as required
under section 21514.
Sec. 21506a. (1) The refined petroleum fund is created within
the state treasury.
(2) The state treasurer may receive money or other assets from
any source for deposit into the refined petroleum fund. The state
treasurer shall direct the investment of the refined petroleum
fund. The state treasurer shall credit to the refined petroleum
fund interest and earnings from refined petroleum fund investments.
(3) Money in the refined petroleum fund at the close of the
fiscal year shall remain in the refined petroleum fund and shall
not lapse to the general fund.
(4) Money from the refined petroleum fund shall be expended,
upon appropriation, only for 1 or more of the following purposes:
(a) For gasoline inspection programs under both of the
following:
(i) The weights and measures act, 1964 PA 283, MCL 290.601 to
290.634.
(ii) The motor fuels quality act, 1984 PA 44, MCL 290.641 to
290.650d.
(b) Not more than $15,000,000.00 of the money transferred to
the refined petroleum fund pursuant to section 21506(6), for the
refined petroleum product cleanup initial program and for the
department's administrative costs associated with the temporary
reimbursement program.
(c) Not more than $45,000,000.00 of the money transferred to
the refined petroleum fund pursuant to section 21506(6), for
implementation of the temporary reimbursement program.
(d) (b)
For corrective actions necessary to address releases
of refined petroleum products under a refined petroleum product
cleanup program established by law following the issuance of
recommendations from the refined petroleum cleanup advisory council
created in section 21552.
(e) (c)
For the reasonable administrative costs of the
department, the department of agriculture, the department of
attorney general, and the department of treasury in administering
the refined petroleum fund and in implementing the programs
receiving revenue from the refined petroleum fund.
Sec. 21552. (1) The refined petroleum cleanup advisory council
is created.
(2) The council shall consist of all of the following:
(a) Two members appointed by the senate majority leader, 1 of
whom shall be a representative of the petroleum industry.
(b) Two members appointed by the speaker of the house of
representatives, 1 of whom shall be a representative of the
petroleum industry.
(c) Three members appointed by the governor, 1 of whom shall
be a representative of the petroleum industry.
(3) The members first appointed to the council shall be
appointed not later than 60 days after the effective date of the
amendatory act that added this section.
(4) Members of the council shall serve until a successor is
appointed.
(5) If a vacancy occurs on the council, the unexpired term
shall be filled in the same manner as the original appointment was
made.
(6) The first meeting of the council shall be called by the
director. At the first meeting, the council shall elect from among
its members a chairperson and other officers as it considers
necessary or appropriate. After the first meeting, the council
shall meet at least quarterly, or more frequently at the call of
the chairperson or if requested by 2 or more members.
(7) Five of the members of the council constitute a quorum for
the transaction of business at a meeting of the council. An
affirmative vote of a majority of the members of the council is
required for official action of the council.
(8) Members of the council shall serve without compensation.
However, members of the council may be reimbursed for their actual
and necessary expenses incurred in the performance of their
official duties as members of the council.
(9) As soon as practical, but not later than 60 days after all
members of the council have been appointed under subsection (2),
the council shall make a recommendation to the governor and the
legislature on how the money transferred under section 21506(6),
less any amounts appropriated for the fiscal year ending September
30, 2004, should be expended.
(10) By April 1, 2005, the council shall submit to the
governor and the legislature a report that does all of the
following:
(a) Evaluates and makes recommendations for a refined
petroleum cleanup program that provides for corrective actions
necessary to address releases of refined petroleum products. The
recommended refined petroleum cleanup program shall be designed to
benefit owners and operators and to provide for corrective actions
at locations for which an owner or operator who is liable for
corrective actions has not been identified or is insolvent.
(b) Makes recommendations on an appropriate limitation on
administrative
costs under section 21506a(4)(c) 21506a(4)(e).
(c) Makes recommendations to update obsolete provisions of
this part.
(11) Effective 180 days after the council submits its report
under subsection (10), the council is dissolved.
(12)
This section is repealed August 1 December 31, 2006.
Enacting section 1. This amendatory act does not take effect
unless House Bill No. 6047 of the 93rd Legislature is enacted into
law.