SB-0533, As Passed House, April 18, 2012

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 533

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 21326, 21327, 21502, 21503, 21506a, 21510,

21515, 21517, 21520, 21550, 21558, and 21559 (MCL 324.21326,

324.21327, 324.21502, 324.21503, 324.21506a, 324.21510, 324.21515,

324.21517, 324.21520, 324.21550, 324.21558, and 324.21559),

sections 21502 and 21503 as amended by 2006 PA 318, section 21506a

as amended by 2007 PA 67, section 21510 as amended by 1995 PA 252,

section 21515 as amended by 1996 PA 181, section 21550 as amended

by 2010 PA 263, section 21558 as added by 2006 PA 322, and section

21559 as amended by 2008 PA 417; and to repeal acts and parts of

acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 21326. (1) Upon request of the department for the purpose

of developing or assisting in the development of a rule, conducting

an investigation, taking corrective action, or enforcing this part,

the owner or operator shall furnish the department with all

available information about all of the following:

     (a) The underground storage tank system and its associated

equipment.

     (b) The past or present contents of the underground storage

tank system.

     (c) Any releases and investigations of releases.

     (2) The department has the right to enter at all reasonable

times in or upon any private or public property for any of the

following purposes:

     (a) Inspecting an underground storage tank system.

     (b) Obtaining samples of any substance from an underground

storage tank system.

     (c) Requiring and supervising the conduct of monitoring or

testing of an underground storage tank system, its associated

equipment, or contents.

     (d) Conducting monitoring or testing of an underground storage

tank system in cases where there is no identified responsible

party.

     (e) Conducting monitoring or testing, or taking samples of

soils, air, surface water, or groundwater.

     (f) Taking corrective action.

     (g) Inspecting and copying any records related to an

underground storage tank system.

     (3) All inspections and investigations undertaken by the

department under this section shall be commenced and completed with

reasonable promptness.

     (4) The attorney general, on behalf of the department, may do

either of the following:

     (a) Petition a court of appropriate jurisdiction for a warrant

to authorize access to any private or public property to implement

this part.

     (b) Commence a civil action pursuant to section 21323 for an

order authorizing the department to enter any private or public

property as necessary to implement this part.

     Sec. 21327. The department may promulgate rules as necessary

to implement this part.

     (1) Beginning on the effective date of the 2012 amendatory act

that amended this section, the department shall not promulgate

rules to implement this part.

     (2) A guideline, bulletin, interpretive statement, operational

memorandum, or form with instructions published under this part

shall not be given the force and effect of law by the department

and is considered merely advisory. The department shall not rely

upon a guideline, bulletin, interpretive statement, operational

memorandum, or form with instructions to support the department's

decision to act or refuse to act. A court shall not rely upon a

guideline, bulletin, interpretive statement, operational

memorandum, or form with instructions to uphold the department's

decision to act or refusal to act.

     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.

(b) (c) "Approved claim" means a claim that is approved

pursuant to section 21515.

(c) (d) "Authority" means the Michigan underground storage

tank financial assurance authority created in section 21523.

     (e) "Board" means the Michigan underground storage tank

financial assurance policy board created in section 21541.

(d) (f) "Board of directors" means the board of directors of

the authority.

(e) (g) "Bond proceeds account" means the account or fund to

which proceeds of bonds or notes issued under this part have been

credited.

(f) (h) "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.

(g) (i) "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.

(h) (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.

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

underground storage tank consultants prepared pursuant to section

21542.

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

in section 21514.

(k) (n) "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.

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

quality.

(m) (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.

(n) (q) "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.

(o) (r) "Fund" means the Michigan underground storage tank

financial assurance fund created in section 21506.

(p) (s) "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.

(q) (t) "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.

(r) (u) "Location" means a facility or parcel of property

where petroleum underground storage tank systems are registered

pursuant to part 211.

(s) (v) "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.

(t) (w) "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.

(u) (x) "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) "Payment voucher" means a form prepared by the department

that specifies payment authorization by the department to the

department of treasury.

     (b) "Petroleum" means crude oil, crude oil fractions, and

refined petroleum fractions including gasoline, kerosene, heating

oils, and diesel fuels.

     (c) "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) "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).established by law.

     (i) "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) "Regulatory fee" means the environmental protection

regulatory fee imposed under section 21508.

     (k) "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) "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 farm or residential tank of 1,100 gallons or less

capacity used for storing motor fuel for noncommercial purposes.

     (ii) A tank used for storing heating oil for consumptive use on

the premises where the tank is located.

     (iii) A septic tank.

     (iv) A pipeline facility, including gathering lines regulated

under either of the following:49 USC 60101 to 60137.

     (A) The natural gas pipeline safety act of 1968, Public Law

90-481, 49 USC Appx 1671 to 1677, 1679a to 1682, and 1683 to 1687.

     (B) 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 USC Appx 2001 to 2015.

     (v) A surface impoundment, pit, pond, or lagoon.

     (vi) A storm water or wastewater collection system.

     (vii) A flow-through process tank.

     (viii) A liquid trap or associated gathering lines directly

related to oil or gas production and gathering operations.

     (ix) 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) Any pipes connected to a tank described in subparagraphs

(i) to (ix).

     (xi) 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 USC 6921 to 6939e,

6939f, or a mixture of such hazardous waste and other regulated

substances.

     (xii) 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 USC 1317 and 1317(b) or 33 USC 1342.

     (xiii) Equipment or machinery that contains regulated substances

for operational purposes such as hydraulic lift tanks and

electrical equipment tanks.

     (xiv) An underground storage tank system with a capacity of 110

gallons or less.

     (xv) An underground storage tank system that contains a de

minimis concentration of regulated substances.

     (xvi) An emergency spill or overflow containment underground

storage tank system that is expeditiously emptied after use.

     (xvii) A wastewater treatment tank system.

     (xviii) An underground storage tank system containing

radioactive material that is regulated under the atomic energy act

of 1954, chapter 1073, 68 Stat. 919.42 USC 2011 to 2297h-13.

     (xix) 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 CFR part

50. , appendix A to part 50 of title 10 of the code of federal

regulations.

     (xx) Airport hydrant fuel distribution systems.

     (xxi) Underground storage tank systems with field-constructed

tanks.

     (o) "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) The name, address, and federal tax identification number of

each contractor who performed work.

     (ii) The name and social security number of each employee who

performed work.

     (iii) A specific itemized list of the work performed by each

contractor and an itemized list of the cost of each of these items.

     (iv) A statement that the consultant owner or operator employed

a documented sealed competitive bidding process for any contract

award exceeding $5,000.00.

     (v) If the consultant owner or operator did not accept the

lowest responsive bid received, a specific reason why the lowest

responsive bid was not accepted.

     (vi) Upon request of the administrator, a list of all bids

received.

     (vii) 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) Subject to subsection (5), money 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 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 For

implementation of the temporary reimbursement program.

     (d) For corrective actions necessary to address releases of

refined petroleum products under a refined petroleum product

cleanup program established by law.

     (e) 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.

     (5) For the state fiscal year ending September 30, 2007 only,

surplus funds of $70,000,000.00 in the refined petroleum fund are

hereby appropriated to the environmental protection fund created in

section 503a.

     (5) The department shall establish an underground storage tank

system cleanup advisory board consisting of owners and operators of

underground storage tank systems and other persons with knowledge

and expertise in corrective actions associated with releases from

underground storage tank systems and the financing of those

corrective actions. Not later than March 1, 2013, the underground

storage tank system cleanup advisory board shall submit a report to

the department and the legislature that recommends a cleanup

program, funded with money from the fund, that would assist owners

and operators in financing corrective actions required under part

213.

     (6) Not later than March 1, 2013, the auditor general shall

conduct a financial audit of expenditures from the refined

petroleum fund during the time period beginning October 12, 2004

through the effective date of the amendatory act that added this

subsection.

     Sec. 21510. (1) Except as provided in section 21521, an owner

or operator is eligible to receive money from the fund or bond

proceeds account for corrective action or indemnification only if

all of the following requirements are satisfied and the owner or

operator otherwise complies with this part:

     (a) The release from which the corrective action or

indemnification arose was discovered and reported on or after July

18, 1989.

     (b) The petroleum underground storage tank from which the

release occurred was, at the time of discovery of the release, and

is presently, in compliance with the registration and fee

requirements of part 211 and the rules promulgated under that part.

     (c) The owner or operator or a consultant retained by the

owner or operator reported the release within 24 hours after its

discovery as required by part 211 and the rules promulgated under

that part.

     (d) The owner or operator is not the United States government.

     (e) The work invoice or request for indemnification is

submitted to the administrator pursuant to this part and the rules

promulgated under this part on or before 5 p.m., June 29, 1995.

     (f) The claim is not for a release from an underground storage

tank closed prior to January 1, 1974, in compliance with the fire

prevention code, Act No. 207 of the Public Acts of 1941, being

sections 29.1 to 29.33 of the Michigan Compiled Laws, 1941 PA 207,

MCL 29.1 to 29.33, and the rules promulgated under that act.

     (2) The owner or operator may receive money from the fund or

bond proceeds account for corrective action or indemnification due

to a release that originates from an aboveground piping and

dispensing portion of a petroleum underground storage tank system

if all of the following requirements are satisfied:

     (a) The owner or operator is otherwise in compliance with this

part and the rules promulgated under this part.

     (b) The release is sudden and immediate.

     (c) The release is of a quantity exceeding 25 gallons and is

released into groundwater, surface water, or soils.

     (d) The release is reported to the department of natural

resources, underground storage tank division within 24 hours of

discovery of the release.

     (3) Either the owner or the operator may receive money from

the fund or bond proceeds account under this part for an

occurrence, but not both.

     (4) An owner or operator who is a public utility with more

than 500,000 customers in this state is ineligible to receive money

from the fund or bond proceeds account for corrective action or

indemnification associated with a release from a petroleum

underground storage tank system used to supply petroleum for the

generation of steam electricity.

     (5) If an owner or operator has received money from the fund

or bond proceeds account under this part for a release at a

location, the owner and operator are not eligible to receive money

from the fund or bond proceeds account for a subsequent release at

the same location unless the owner or operator has done either or

both of the following:

     (a) Discovered the subsequent release pursuant to corrective

action being taken on a confirmed release and included this

subsequent release as part of the corrective action for the

confirmed release.

     (b) Upgraded, replaced, removed, or properly closed in place

all underground storage tank systems at the location of the release

so as to meet the requirements of part 211 and the rules

promulgated under that part.

     (6) An owner or operator who discovers a subsequent release at

the same location as an initial release pursuant to subsection

(5)(a) may receive money from the fund or bond proceeds account to

perform corrective action on the subsequent release, if the owner

or operator otherwise complies with the requirements of this part

and the rules promulgated under this part. However, the subsequent

release shall be considered as part of the claim for the initial

release for purposes of determining the total amount of

expenditures for corrective action and indemnification under

section 21512.

     (7) An owner or operator who discovers a subsequent release at

the same location as an initial release following compliance with

subsection (5)(b) may receive money from the fund or bond proceeds

account to perform corrective action on the subsequent release, if

there have been not more than 2 releases at the location, if the

owner or operator pays the subsequent release co-pay amount

pursuant to section 21514, and if the owner or operator otherwise

complies with the requirements of this part and the rules

promulgated under this part. The subsequent release shall be

considered a separate claim for purposes of determining the total

amount of expenditures for corrective action and indemnification

under section 21512.

     Sec. 21515. (1) To receive money from the fund or bond

proceeds account for corrective action, the owner or operator , or

a consultant retained by the owner or operator, 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 and rules

promulgated under that part to the department, and shall provide

other information required by the administrator relevant to

determining compliance with this part.

     (2) To receive money from the fund for corrective action, an

owner or operator shall submit a claim to the administrator. An

owner or operator shall not submit a claim until work invoices in

excess of $5,000.00 of the costs of corrective action have been

incurred.

     (3) Upon receipt of a completed claim pursuant to subsection

(2), the administrator shall make all of the following

determinations:

     (a) Whether the department of environmental quality,

underground storage tank division has objected to payment on the

claim because the work performed or proposed to be performed is not

consistent with the requirements of part 213 and rules promulgated

under that part.

     (b) Whether the work performed is necessary and appropriate

considering conditions at the site of the release.

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

     (d) Whether the owner or operator is eligible to receive

funding under this part.

     (e) Whether the consultant retained by the owner or operator

has complied with section 21517.

     (4) If the administrator fails to make the determinations

required under this section within 30 days after receipt of

certification from the department of environmental quality,

underground storage tank division that the owner or operator has

met the requirements of section 21510(1)(b) and (c), the claim is

considered to be approved.

     (5) If the administrator determines under subsection (3) that

the work invoices included with the claim are necessary and

appropriate considering conditions at the site of the release and

reasonable in terms of cost and the owner or operator is eligible

for funding under this part, the administrator shall approve the

claim and notify the owner or operator who submitted the claim of

the approval. If the administrator determines that the work

described on the work invoices submitted was not necessary or

appropriate or the cost of the work is not reasonable, or that the

owner or operator is not eligible for funding under this part, the

administrator shall deny the claim or any portion of the work

invoices submitted and give notice of the denial to the owner or

operator who submitted the claim.

     (6) The owner or operator may submit additional work invoices

to the administrator after approval of a claim under subsection

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

administrator shall make the following determinations:

     (a) Whether the work invoice complies with subsection (3).

     (b) Whether the owner or operator is currently in compliance

with the registration and fee requirements of part 211 and the

rules promulgated under that part for the underground storage tank

system from which the release occurred.

     (7) If the administrator determines that the work invoice does

not meet the requirements of subsection (6), he or she shall deny

the work invoice and give written notice of the denial to the owner

or operator who submitted the work invoice.

     (8) The administrator shall keep records of approved work

invoices. If the owner or operator has not exceeded the allowable

amount of expenditure provided in section 21512, the administrator

shall forward payment vouchers to the state treasurer within 45

days of making the determinations under subsection (6).

     (9) The administrator may approve a reimbursement for a work

invoice that was submitted by an owner or operator for corrective

action taken if the work invoice meets the requirements of this

part for an approved claim and an approved work invoice.

     (10) Except as provided in subsection (11) or as otherwise

provided in this subsection, upon receipt of a payment voucher, the

state treasurer or the authority shall make a payment jointly to

the owner or operator and the consultant within 30 days if

sufficient money exists in the fund or a bond proceeds account.

However, the owner or operator may submit to the fund administrator

a signed affidavit stating that the consultant listed on a work

invoice has been paid in full. The affidavit shall list the work

invoice and claim to which the affidavit applies, a statement that

the owner or operator 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 fund administrator has

not received an objection in writing from the consultant listed on

the work invoice, the state treasurer or the authority shall make

the payment directly to the owner or operator. If a check has

already been issued to the owner or operator and the consultant,

the owner or operator may return the original check to the fund

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

affidavit was mailed to the consultant the fund administrator has

not received an objection from the consultant listed on the check,

the state treasurer or the authority shall reissue a check to the

owner or operator. If a consultant objects to an affidavit received

under this subsection, and notifies the fund administrator in

writing within 14 days after the affidavit was mailed to the

consultant, the fund administrator shall notify the state treasurer

and the authority, and the state treasurer or the authority shall

issue or reissue the check to the owner or operator and the

consultant. The grounds for an objection by a consultant under this

subsection must be that the consultant has not been paid in full

and the objection must be made by affidavit. The state treasurer or

the authority shall issue checks under this subsection within 60

days after an affidavit has been received by the fund

administrator. Once payment has been made under this section, the

fund is not liable for any claim on the basis of that payment.

     (11) Upon direction of the administrator, the state treasurer

or the authority 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 proposed work.

     (12) The department of environmental quality shall prepare and

make available to owners and operators and consultants standardized

claim and work invoice forms.

     Sec. 21517. (1) In order to receive money from the fund, an

owner or operator shall retain a consultant to perform the

responsibilities required under part 213 , and the consultant shall

comply with all of the following requirements:

     (a) The consultant owner or operator shall submit the

following items for competitive bidding in accordance with

procedures established by the department:

     (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 owner or operator

shall be submitted on a standardized bid form prepared by the

department.

     (c) A consultant may perform work activities 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 administrator prior to receiving bids

from contractors.

(c) (d) Upon receipt of bids, the consultant owner or operator

shall submit to the administrator a copy of all bid forms received

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

accepted, the consultant owner or operator shall provide a specific

reason why the lowest responsive bid was not accepted.

     (2) Bids are not required for initial response actions under

section 21307.

     (3) An owner or operator may request that the consultant

retained by the owner or operator add qualified bidders to the list

for requests for bids.

(3) (4) After the consultant owner or operator employs the

competitive bidding process described in this section, the owner or

operator may hire contractors directly.

     (5) Upon hiring a contractor, a consultant may mark up the

contractor's work invoice only if the consultant pays the

contractor and does the billing.

(4) (6) Removal of underground storage tank systems is not

eligible for funding under this part. If a release is discovered

during the removal, the consultant owner or operator shall allow

the contractor removing the underground storage tank system to

complete the underground storage tank system removal.

(5) (7) An owner or operator may receive funding under this

part to implement a corrective action alternative that is not the

preferred corrective action alternative only if the owner or

operator pays the difference between the selected corrective action

alternative and the preferred corrective action alternative.

     Sec. 21520. The department shall establish an audit program to

monitor compliance with this part. As part of the audit program,

the department shall employ or contract with qualified individuals

to provide on-site inspections of locations where there has been a

release. The on-site inspectors shall assure that the preferred

corrective action alternative selected by the consultant owner or

operator and the work performed on sites eligible for funding under

this part are necessary and appropriate considering conditions at

the location, and that work is performed in a cost-effective

manner. The department shall annually evaluate the need for on-site

inspectors, and if the department determines that they are

unnecessary due to other cost containment procedures implemented by

the department, the department may discontinue the on-site

inspections.

     Sec. 21550. (1) Section 21508 is repealed effective December

31, 2012.2015.

     (2) The authority's obligation to pay off any bonds or notes

issued pursuant to this part shall survive the repeal of section

21508.

     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 eligible person shall comply with all of

the following requirements:

     (a) The consultant eligible person 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 eligible person 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.

(c) (d) Upon receipt of bids, the consultant eligible person

shall submit to the department a copy of all bid forms received and

the bid accepted.

(d) (e) The consultant eligible person shall notify the

department in writing of the bid accepted. If the lowest responsive

bid was not accepted, the consultant eligible person 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.

(3) (5) After the consultant eligible person employs the

competitive bidding process described in this section, the owner or

operator eligible person may hire contractors directly.

(4) (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 consistent with the requirements of

section 21556.

     (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.

     Enacting section 1. Sections 21541, 21542, 21543, and 21562 of

the natural resources and environmental protection act, 1994 PA

451, 324.21541, 324.21542, 324,21543, and 324.21562, are repealed.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 96th Legislature are

enacted into law:

     (a) Senate Bill No. 528.

     (b) Senate Bill No. 529.

     (c) Senate Bill No. 530.

     (d) Senate Bill No. 531.

     (e) Senate Bill No. 532.