May 10, 2006, Introduced by Reps. Kolb, Lipsey, Vagnozzi and Kathleen Law and referred to the Committee on Natural Resources, Great Lakes, Land Use, and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
(MCL 324.101 to 324.90106) by adding sections 21553, 21554, 21555,
21556, 21557, 21558, 21559, 21560, 21561, 21562, and 21563.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 21553. The department shall establish a refined petroleum
product cleanup initial program to conduct corrective actions
associated with releases from petroleum underground storage tank
systems.
Sec. 21554. The department shall establish a temporary
reimbursement program to promote progress toward site closure of
releases from petroleum underground storage tank systems by
providing financial incentives for eligible persons to conduct
corrective actions for those releases.
Sec. 21555. The department shall administer the temporary
reimbursement program and process precertification applications and
subsequent work invoices submitted by eligible persons in
accordance with this part. Beginning on the effective date of the
amendatory act that added this section, the department shall
commence implementation of the temporary reimbursement program as
provided in sections 21556 and 21557. The initiation date of the
first round precertification application period shall occur not
later than 120 days after the effective date of the amendatory act
that added this section. The department shall provide notice of the
initiation date to applicable trade associations and shall provide
notice through an electronic distribution list to interested
persons and the department's website. Not later than 210 days after
the initiation date of the first round, the department shall
determine whether sufficient funding is available to implement a
second round temporary reimbursement program pursuant to section
21557. If the department determines that sufficient funds are
available, the department shall provide notice of the initiation
date of the second round precertification application period in the
same manner as the first round notification process. The initiation
date of the second round precertification application period shall
occur not later than 60 days after the department determines
funding is available for the second round of the temporary
reimbursement program.
Sec. 21556. (1) To be considered for eligibility for
reimbursement under the first round of the temporary reimbursement
program, a person shall submit to the department a completed first
round precertification application on a form provided by the
department. A person may submit more than 1 first round
precertification application if he or she possesses more than 1
approved claim for releases that meet the eligibility requirements
in subsection (3)(a) to (d).
(2) To be considered for approval, first round
precertification applications shall be received by the department
at or before 5 p.m. on the one hundred eightieth day following the
department's initiation date of the application period.
(3) In order for a person to be eligible for reimbursement
under the first round of the temporary reimbursement program, the
completed first round precertification application shall
demonstrate all of the following:
(a) That the person was the owner or operator who submitted
and had an approved claim or that the person received a valid
assignment of an approved claim in accordance with section 21516.
(b) That the release for which the approved claim was obtained
has not been closed pursuant to part 213.
(c) That the release for which the approved claim was obtained
caused the site to be classified as a class 1 or class 2 site
pursuant to section 21314a, based on the most recently submitted
data or reports prior to May 9, 2005, or as otherwise determined by
the department prior to May 9, 2005.
(d) For underground storage tank systems that are operating at
the location from which the release occurred, that the owner or
operator, if he or she is the applicant, is currently in compliance
with the registration and fee requirements of part 211.
(4) All applications for the temporary reimbursement program
shall be considered on a first-come, first-served basis. If the
first round precertification application received by the department
successfully demonstrates eligibility in accordance with
subsections (2) and (3), the department shall approve the first
round precertification application. Not more than 900
precertification applications shall be approved by the department.
(5) An eligible person shall have 540 days after the date of
approval of the precertification application to perform corrective
actions pursuant to part 213 at the site of release in accordance
with section 21558.
(6) Only corrective action costs incurred after the date of
approval of the precertification application and up to the five
hundred fortieth day following precertification application
approval shall be considered for reimbursement by the department.
Corrective action costs incurred after the five hundred fortieth
day are not eligible for reimbursement.
(7) An eligible person may receive up to $50,000.00 or such
additional amount as may be made available pursuant to section
21557(8), for approved corrective action costs for each approved
precertification application.
(8) An eligible person shall submit all work invoices for
which reimbursement is being sought to the department within 600
days following the precertification application approval date. An
eligible person shall not submit a request for reimbursement that
totals less than $5,000.00 for the costs of corrective action,
except for the last reimbursement request.
(9) Eligible persons shall receive reimbursement of 80% of the
amount of each approved work invoice until the maximum
reimbursement amount is reached. The remaining 20% shall be
considered the co-pay amount. Proof of payment of the co-pay amount
is required with each work invoice submittal.
(10) Corrective actions for which reimbursement is sought
shall conform to the requirements of part 213 and section 21558.
Requests for reimbursement are subject to sections 21559 to 21561.
(11) Any allocated amount for reimbursement in the first round
that is not expended, but subject to appeal pursuant to section
21561, shall be held in reserve until the appeal is exhausted and a
final reimbursement determination is made.
Sec. 21557. (1) If the department determines pursuant to
section 21555 that sufficient funds are available for a second
round of the temporary reimbursement program, the second round
shall be implemented in accordance with this section.
(2) To be considered for eligibility for reimbursement under
the second round of the temporary reimbursement program, a person
shall submit to the department a completed second round
precertification application on a form provided by the department.
A person may submit more than 1 second round precertification
application if he or she possesses more than 1 approved claim for
releases that meet the eligibility requirements in this section.
(3) To be considered for approval, second round
precertification applications shall be received by the department
at or before 5 p.m. on the thirtieth day following the initiation
date of the second round application period.
(4) In order for a person to be eligible for reimbursement
under the second round of the temporary reimbursement program, the
completed second round precertification application shall
demonstrate all of the following:
(a) That the person was the owner or operator who submitted
and had an approved claim or that the person received a valid
assignment of the approved claim in accordance with section 21516.
(b) That the release for which the approved claim was obtained
has not been closed pursuant to part 213.
(c) That the release for which the approved claim was obtained
caused the site to be classified as a class 1 or class 2 site
pursuant to section 21314a, based on the most recently submitted
data or reports, or as otherwise determined by the department.
(d) For underground storage tank systems that are operating at
the location from which the release occurred, that the owner or
operator, if he or she is the applicant, is currently in compliance
with the registration and fee requirements of part 211.
(5) An eligible person may receive up to $50,000.00 for
approved corrective action costs for each approved second round
precertification application or such additional amount as may be
made available pursuant to subsection (8). If the number of
precertification applications exceeds available temporary
reimbursement program funding for the second round, the remaining
temporary reimbursement program funds shall be allocated at
$50,000.00 per location on a first-come, first-served basis except
as follows:
(a) First priority shall be given to persons that received no
precertification application approvals in the first round and that
meet the requirements of subsections (2) to (4).
(b) If temporary reimbursement program funds remain after
allocating funds under subdivision (a), second priority shall be
given to persons that received precertification application
approval in the first round and that submit a second round
precertification application to the department for a different
location that meets the requirements of subsections (2) to (4).
(6) If the second round precertification application
successfully demonstrates eligibility in accordance with this
section, the department shall approve the second round
precertification application in accordance with subsection (5), to
the extent that funding is available.
(7) The second round of the temporary reimbursement program is
subject to the requirements of section 21556(5) to (10), including
the co-pay requirements.
(8) If temporary reimbursement program funds remain after all
allocations are made, then, upon appropriation, the remaining money
shall be allocated on a prorated basis among approved first round
and second round precertification applicants for reimbursement,
subject to section 21556(5) to (10). The department shall notify
all approved first round and second round applicants of the amount
of additional reimbursement available within 14 days of the
effective date of the appropriation.
(9) Any allocated amount for reimbursement that is not
expended but subject to appeal, pursuant to section 21561, shall be
held in reserve until the appeal is exhausted and a final
reimbursement determination is made.
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.
(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, only a consultant may hire the
selected contractors for the work that was the subject of the
bidding process.
(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 work invoice
submitted under the temporary reimbursement program, 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 work
invoice complies with this part. No later than 21 days following
review by the advisory board, the department shall approve the work
invoice if the department determines that 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 who is denied approval by the
department after review under subsection (1) may appeal the
decision 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) The members who were appointed to the refined petroleum
cleanup advisory council pursuant to section 21552.
(b) Two representatives of the department appointed by the
director.
(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 no 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 Senate Bill No. 1260 or House Bill No.____ (request no.
05305'05) of the 93rd Legislature is enacted into law.