HOUSE BILL No. 6202

 

June 14, 2006, Introduced by Reps. Palsrok and Pavlov 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,"

 

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, and by adding sections

 

21553, 21554, 21555, 21556, 21557, 21558, 21559, 21560, 21561,

 

21562, and 21563.

 

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)  (i)  "Consultant" means a person on the list of qualified

 

underground storage tank consultants prepared pursuant to section

 

21542.

 

     (k)  (j)  "Co-pay amount" means the co-pay amount provided for

 

in section 21514.

 


     (l)  (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.

 

     (m)  (l)  "Department" means the department of environmental

 

quality.

 

     (n) "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.

 

     (o)  (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.

 

     (p)  (n)  "Fund" means the Michigan underground storage tank

 

financial assurance fund created in section 21506.

 

     (q)  (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.

 

     (r)  (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.

 

     (s)  (q)  "Location" means a facility or parcel of property

 

where petroleum underground storage tank systems are registered

 

pursuant to part 211.

 

     (t)  (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.

 

     (u)  (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.

 

     (v)  (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

 

to be established after the refined petroleum cleanup advisory

 

council makes recommendations pursuant to 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(b), 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(b) 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).

 

     (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.

 

     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 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 be responsible for processing

 

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 no 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 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) The completed first round precertification application

 


shall be submitted within 180 days of the department's initiation

 

date of the application period. First round precertification

 

applications received by the department after 5 p.m. on the one

 

hundred eightieth day following the department's initiation date of

 

the application period will not be considered for approval.

 

     (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 the department's authority as set forth in 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) Regarding 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 must

 

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) The completed second round precertification application

 

shall be submitted within 30 days of the initiation date of the

 

second round application period. Second round precertification

 

applications received by the department after 5 p.m. on the

 

thirtieth day following the initiation date of the second round

 

application period will not be considered for approval.

 

     (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 the department's authority as set forth in section

 

21314a, based on the most recently submitted data or reports, or as

 

otherwise determined by the department.

 

     (d) Regarding 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 section 21557(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 section 21557(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 (3) and (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 the provisions of 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) 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,

 

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) 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 suspected violations of

 

section 21548 or if necessary to assure acceptable completion of

 

the corrective actions.

 

     (8) The temporary reimbursement program is subject to the

 

terms of section 21548.

 


     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 to conduct reviews of denied work invoices upon

 

the request of eligible persons to the department, and to 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).