SB-0791, As Passed Senate, May 21, 2014

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 791

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending the part heading to part 215 and sections 21502, 21503,

 

21504, 21505, 21506a, 21508, 21509, 21510, 21515, 21516, 21518,

 

21519, 21521, 21523, 21524, 21525, 21526, 21527, 21528, 21531,

 

21546, and 21548 (MCL 324.21502, 324.21503, 324.21504, 324.21505,

 

324.21506a, 324.21508, 324.21509, 324.21510, 324.21515, 324.21516,

 

324.21518, 324.21519, 324.21521, 324.21523, 324.21524, 324.21525,

 

324.21526, 324.21527, 324.21528, 324.21531, 324.21546, and

 

324.21548), sections 21502, 21503, 21506a, 21510, and 21515 as

 

amended by 2012 PA 113, sections 21504, 21505, 21508, 21546, and

 

21548 as amended by 2004 PA 390, and section 21528 as amended by

 

2009 PA 98, and by adding sections 21506b, 21510a, 21510b, and

 

21510c; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

PART 215

 

REFINED PETROLEUM FUND UNDERGROUND STORAGE TANK

 

CORRECTIVE ACTION FUNDING

 

     Sec. 21502. As used in this part:

 

     (a) "Administrator" means the fund administrator of the

 

authority as provided for in section 21513.21525.

 

     (b) "Affiliate" means a person that directly, or indirectly

 

through 1 or more intermediaries, controls the person specified.

 

     (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 of directors" or "board" means the board of

 

directors of the authority.

 

     (f) (e) "Bond proceeds account" means the account or within

 

the fund to which proceeds of bonds or notes issued under this part

 

have been credited.

 

     (g) (f) "Bonds or notes" means the bonds, notes, commercial

 

paper, other obligations of indebtedness, or any combination of

 

these, issued by the finance authority pursuant to this part.

 

     (h) (g) "Claim" means the submission by the owner or operator

 

or his or her representative of documentation on an application

 

requesting payment from the fund. by the authority. 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 owner or operator.

 

     (h) "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) "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.

 

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

 

section 21514.

 

     (i) "Claim limit" means $1,000,000.00 for all claims of owners

 

or operators and their affiliates during a claim period for owners

 

and operators of 1 to 100 refined petroleum underground storage

 

tanks or $2,000,000.00 for all claims of owners or operators and

 

their affiliates during a claim period for owners or operators of

 

more than 100 refined petroleum underground storage tanks.

 

     (j) "Claim period" means a 1-year period commencing on October

 

1 of each year and ending on September 30 the following year.

 

     (k) "Controls" means the possession or the contingent or

 

noncontingent right to acquire possession, direct or indirect, of

 

the power to direct or cause the direction of the management and

 

policies of a person, whether through the ownership of voting

 

securities or interests, by contract, other than a commercial

 

contract for goods or nonmanagement services, by pledge of

 

securities, or otherwise, unless the power is the result of an

 

official position with or corporate office held by the person.

 

     (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.that term as it is

 

defined in section 21302.

 

     (m) "Deductible amount" means the amount of corrective action

 

costs or indemnification costs that are required to be paid by an

 

owner or operator as provided in section 21510a before the owner or

 

operator is eligible to submit a claim under this part.

 

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

 

quality.

 

     (o) (m) "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.under this part to submit a claim.

 

     (p) "Finance authority" means the Michigan finance authority

 

created by Executive Reorganization Order No. 2010-2, MCL 12.194.

 

     (q) (n) "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 a refined petroleum underground storage

 

tank system that the owner or operator of an a refined petroleum

 

underground storage tank system must demonstrate under part 211 and

 

the rules promulgated under that part.

 

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

 

financial assurance fund created in section 21506.underground

 

storage tank cleanup fund created in section 21506b and includes

 

the bond proceeds account established within the fund.

 

     (p) "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.

 

     (s) (q) "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.

 

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

 

where refined petroleum underground storage tank systems are

 

registered pursuant to part 211.

 

     (u) (s) "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 that term

 

as it is defined in section 21303 or a person to whom an approved

 

claim has been assigned or transferred.

 

     (v) (t) "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.that term as it is defined in section

 

21303.

 

     (w) (u) "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.

 

     (a) "Person" means an individual, partnership, corporation,

 

association, governmental entity, or other legal entity.

 

     (b) "Qualifying expenditures" means an expenditure for a

 

specific activity that does not exceed the allowable payment for

 

that activity as detailed on the schedule of costs.

 

     (c) (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.

 

     (d) (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 program established by law.

 

     (e) "Refined petroleum underground storage tank" means an

 

underground storage tank system used for the storage of refined

 

petroleum.

 

     (f) (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.

 

     (g) (j) "Regulatory fee" means the environmental protection

 

regulatory fee imposed under section 21508.

 

     (h) (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.that term as it is defined in section 21303.

 

     (i) "Schedule of costs" means the list of allowable

 

reimbursement amounts that may be paid on a claim, as established

 

in section 21510b.

 

     (j) (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.that term as it is defined in

 

section 21303.

 

     (m) "Temporary reimbursement program" means the program

 

established in section 21554.

 

     (k) (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:that term as it is defined in section

 

21303.

 

     (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 49 USC 60101 to 60137.

 

     (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 42 USC 6921 to 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 33 USC 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, 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.

 

     (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 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 owner or operator employed a

 

documented sealed competitive bidding process for any contract

 

award exceeding $5,000.00.

 

     (v) If the 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. 21504. The objectives of this part are to fund corrective

 

actions to address certain problems associated with releases from

 

refined petroleum underground storage tank systems, to promote

 

compliance with parts 211 and 213, and to fund environmental and

 

consumer protection programs necessary to protect public health,

 

safety, or welfare or the environment due to the sale, use, or

 

release of refined petroleum products.to assist owners and

 

operators of refined petroleum underground storage tank systems in

 

meeting their financial responsibility requirements pursuant to

 

part 211, and to achieve compliance with part 213.

 

     Sec. 21505. The legislature finds that releases from

 

underground storage tanks are a significant cause of contamination

 

of the natural resources, water resources, and groundwater in this

 

state. It is hereby declared to be the The purpose of this part and

 

of the authority created by this part is to preserve and protect

 

the water resources of the state and to prevent, abate, or control

 

the pollution of water resources and groundwater, to protect and

 

preserve the public health, safety, and welfare, and to assist in

 

the financing of repair and replacement of petroleum underground

 

storage tanks and to improve property damaged by any petroleum

 

corrective actions due to releases from those tanks, to preserve

 

jobs and employment opportunities or improve the economic welfare

 

of the people of the state, and to fund environmental and consumer

 

protection programs necessary to protect public health, safety, or

 

welfare or the environment due to the sale, use, or release of

 

refined petroleum products.refined petroleum underground storage

 

tank systems.

 

     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) For the refined petroleum product cleanup initial program

 

and for the department's administrative costs associated with the

 

temporary reimbursement program.

 

     (c) 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) 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.

 

     (a) Corrective actions performed by the department pursuant to

 

section 21320.

 

     (b) The reasonable costs of the department in administering

 

the refined petroleum fund and implementing part 213.

 

     (c) Other purposes as determined by the legislature.

 

     Sec. 21506b. (1) The underground storage tank cleanup fund is

 

created within the state treasury. The state treasurer shall

 

establish a bond proceeds account within the fund and may establish

 

procedures for accounting for deposits and expenditures from the

 

bond proceeds account.

 

     (2) The state treasurer may receive money or other assets from

 

any source for deposit into the fund. The state treasurer shall

 

direct the investment of the fund. The state treasurer shall credit

 

to the fund interest and earnings from fund investments.

 

     (3) Money in the fund at the close of the fiscal year shall

 

remain in the fund and shall not lapse to the general fund.

 

     (4) The authority shall be the administrator of the fund for

 

auditing purposes.

 

     (5) The authority and the finance authority shall expend money

 

from the fund, upon appropriation, only for the following purposes:

 

     (a) As a first priority, to pay principal and interest due on

 

bonds or notes issued by the finance authority pursuant to this

 

part, plus any amount necessary to maintain a fully funded debt

 

reserve or other reserve intended to secure the principal and

 

interest on the bonds or notes as may be required by resolution,

 

indenture, or other agreement of the finance authority.

 

     (b) For the reasonable administrative cost of implementing

 

this part incurred by the department, the department of treasury,

 

the department of attorney general, and the finance authority.

 

Administrative costs include the actual and necessary expenses

 

incurred by the finance authority and its members in carrying out

 

the duties imposed by this part. Total administrative costs

 

expended under this subdivision shall not exceed 7% of the fund's

 

projected revenues in any year. Costs incurred by the finance

 

authority for the issuance of bonds or notes which may also be

 

payable from the proceeds of the bonds or notes shall not be

 

considered administrative costs.

 

     (c) To pay approved claims as provided for in this part.

 

     Sec. 21508. (1) An environmental protection regulatory fee is

 

imposed on all refined petroleum products sold for resale in this

 

state or consumption in this state. The regulatory fee shall be

 

charged for capacity utilization of refined petroleum underground

 

storage tanks measured on a per gallon basis. The regulatory fee

 

shall be charged against all refined petroleum products sold for

 

resale in this state or consumption in this state so as to not

 

exclude any products that may be stored in an a refined petroleum

 

underground tank at any point after the petroleum is refined. The

 

regulatory fee shall be 7/8 cent per gallon for each gallon of

 

refined petroleum sold for resale in this state or consumption in

 

this state, with the per gallon charge being a direct measure of

 

capacity utilization of an a refined underground storage tank

 

system.

 

     (2) The department of treasury shall precollect regulatory

 

fees from persons who refine petroleum in this state for resale in

 

this state or consumption in this state and persons who import

 

refined petroleum into this state for resale in this state or

 

consumption in this state. The department of treasury shall collect

 

regulatory fees that can be collected at the same time as the sales

 

tax under section 6a of the general sales tax act, 1933 PA 167, MCL

 

205.56a, at that time. The remainder of the regulatory fees shall

 

be collected in the manner determined by the state treasurer.

 

     (3) A public utility with more than 500,000 customers in this

 

state is exempt from any fee or assessment imposed under this part

 

if that fee or assessment is imposed on petroleum used by that

 

public utility for the generation of steam or electricity.

 

     (4) Beginning on the effective date of the 2004 2014

 

amendatory act that amended this section, all regulatory fees

 

collected pursuant to this part during each state fiscal year shall

 

be deposited as follows:

 

     (a) The first $20,000,000.00 that is collected shall be

 

deposited into the fund.

 

     (b) Following the deposit under subdivision (a), all money

 

collected shall be deposited into the refined petroleum fund.

 

 created in section 21506a.

 

     (5) Consistent with the March 31, 1995 determination by the

 

state treasurer that revenue will not be sufficient to pay expected

 

expenditures, and consistent with the April 3, 1995 notice of the

 

fund administrator pursuant to subsection (6), funding is no longer

 

available under this part for new claims, work invoices, and

 

requests for indemnification received after 5 p.m. on June 29,

 

1995. Claims, work invoices, and requests for indemnification

 

received after 5 p.m. on June 29, 1995 are not eligible for funding

 

under this part. Work invoices and requests for indemnification

 

received prior to 5 p.m. on June 29, 1995 may be paid to the extent

 

money is available in the fund as provided in this part.

 

     (6) If the state treasurer determines that fund revenues will

 

not be sufficient to pay expected expenditures from the fund, the

 

state treasurer shall notify the administrator, and 90 days after

 

this notification has been given the administrator shall not accept

 

any new work invoices or requests for indemnification. Upon

 

receiving this notification from the state treasurer, the

 

administrator shall notify by certified mail the owners and

 

operators of petroleum underground storage tank systems registered

 

under part 211 that funding under this part will no longer be

 

available for new claims after the 90-day period has expired.

 

However, work invoices and requests for indemnification that were

 

submitted to the administrator prior to or during this 90-day

 

period may be paid to the extent money is available in the fund as

 

provided in this part.

 

     (5) (7) The department of treasury may audit, enforce,

 

collect, and assess the fee imposed by this part in the same manner

 

and subject to the same requirements as revenues collected pursuant

 

to 1941 PA 122, MCL 205.1 to 205.31.

 

     Sec. 21509. (1) Notwithstanding any other provision in this

 

part, regulatory fees shall be calculated and paid upon gross or

 

metered gallons with respect to all "light" petroleum products.

 

With respect only to "heavy" petroleum products (No. 4, No. 5, No.

 

6 residual oils), regulatory fees shall be calculated and paid upon

 

net or temperature-corrected gallons.

 

     (2) Notwithstanding any other provision in this part, if a

 

person receives refined petroleum products in this state for resale

 

in this state or consumption in this state pursuant to a product

 

exchange agreement, the department of treasury shall collect the

 

regulatory fees from that person. As used in this subsection,

 

"product exchange agreement" means an agreement between buyers and

 

sellers of refined petroleum products in which refined petroleum

 

products in bulk quantity are made available to a person solely in

 

consideration of that person making available a like volume of

 

refined petroleum products to the other party at some other

 

location.

 

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

 

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

 

bond proceeds account authority for corrective action or

 

indemnification due to a release from a refined petroleum

 

underground storage tank system 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.the effective date of the 2014 amendatory act that amended

 

this section.

 

     (b) The refined 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 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.

 

     (e) (f) The claim is not for a release from an a refined

 

petroleum underground storage tank closed prior to January 1, 1974,

 

in compliance with the fire prevention code, 1941 PA 207, MCL 29.1

 

to 29.33, and the rules promulgated under that act.

 

     (f) The owner or operator has maintained financial

 

responsibility requirements for the deductible amount.

 

     (g) The owner or operator has paid the deductible amount.

 

     (h) The owner or operator is otherwise eligible to receive

 

money from the authority under this part.

 

     (i) The total amount of expenditures, including the deductible

 

amount, does not exceed the claim limit.

 

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

 

bond proceeds account authority for corrective action or

 

indemnification due to a release that originates from an

 

aboveground piping and dispensing portion of a refined 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 owner or operator reported the release is reported to

 

the department of natural resources, underground storage tank

 

division to the department within 24 hours of after its discovery.

 

of the release.

 

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

 

the fund or bond proceeds account authority under this part for an

 

occurrence, but not both.

 

     (4) An owner or operator who that 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 authority for

 

corrective action or indemnification associated with a release from

 

a refined petroleum underground storage tank system used to supply

 

refined petroleum for the generation of steam electricity.

 

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

 

or bond proceeds account authority 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 authority 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 refined petroleum 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

 

authority 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.subsection (1)(i).

 

     (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 authority 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.subsection (1)(i).

 

     (8) An owner or operator may submit to the authority a request

 

for a determination that the owner or operator would be eligible

 

for funding under this part in the event of a release from a

 

refined petroleum underground storage tank system. Upon receipt of

 

a request under this subsection, the authority shall make a

 

determination and provide notice of that determination, in writing,

 

to the owner or operator. The notice may contain conditions for

 

maintenance of that eligibility.

 

     Sec. 21510a. (1) Prior to submitting a claim under this part,

 

an owner or operator is responsible for a deductible amount as

 

follows:

 

     (a) Subject to subdivision (b), $50,000.00 per claim.

 

     (b) If the owner or operator or its affiliate owns or operates

 

fewer than 8 refined petroleum underground storage tanks and pays

 

the authority an annual fee of $500.00 per refined petroleum

 

underground storage tank, $15,000.00 per claim. For purposes of

 

this subdivision, each compartment of a multiple compartment

 

refined petroleum underground storage tank is considered a refined

 

petroleum underground storage tank for purposes of calculating the

 

annual fee.

 

     (2) The due date for the annual fee paid pursuant to

 

subsection (1)(b) shall be set by the authority.

 

     (3) The deductible amount applies to each claim. However, 2 or

 

more claims arising out of the same, interrelated, associated,

 

repeated, or continuous releases or a series of related releases

 

shall be considered a single claim and be subject to 1 claim limit

 

and 1 deductible amount. Any claim which takes place over 2 or more

 

claim periods shall be subject to 1 claim limit and 1 deductible

 

amount.

 

     (4) An owner or operator that submits a claim under section

 

21515 shall include work invoices or other evidence that the

 

deductible amount described in subsection (1) has been met. The

 

expenses toward meeting the deductible amount shall be documented

 

and shall comply with the following:

 

     (a) Expenses for items listed in the schedule of costs shall

 

be at or below the allowable reimbursement amount listed in the

 

schedule of costs.

 

     (b) Expenses for items that are not listed in the schedule of

 

costs shall be reasonable and necessary considering conditions at

 

the site based upon a competitive bidding process established by

 

the authority.

 

     Sec. 21510b. (1) The authority shall establish a schedule of

 

costs that itemizes corrective actions that are generally conducted

 

at a site and lists an allowable reimbursement amount that may be

 

paid for each corrective action as part of a claim under this part.

 

If the authority determines that costs for particular corrective

 

actions vary in different regions of the state, the authority may

 

establish allowable reimbursement amounts that reflect regional

 

differences.

 

     (2) The authority shall annually review and update the

 

schedule of costs as necessary or appropriate.

 

     (3) The department shall post the schedule of costs and any

 

updates to the schedule of costs on the department's website.

 

     Sec. 21510c. A claim shall not be approved by the authority

 

for any of the following:

 

     (a) A release that was expected or intended by an owner or

 

operator, or an employee of an owner or operator.

 

     (b) Punitive, exemplary, or multiplied damages, fines, taxes,

 

penalties, assessments, punitive or statutory assessments, or any

 

civil, administrative, or criminal fines, sanctions, or penalties.

 

     (c) A claim made by an owner or operator against any other

 

person that is also an owner or operator of the refined petroleum

 

underground storage tank system.

 

     (d) A release caused by, based upon, resulting from, or

 

attributable to the owner's or operator's intentional, knowing,

 

willful, or deliberate noncompliance with any statute, regulation,

 

ordinance, administrative complaint, notice of violation, notice

 

letter, executive order, or instruction of any governmental agency

 

or body.

 

     (e) A release arising from the ownership, maintenance, use, or

 

entrustment to others of any aircraft, auto, rolling stock, or

 

watercraft, including loading and unloading.

 

     (f) Costs, charges, or expenses incurred by the owner or

 

operator for goods supplied by the owner or operator or services

 

performed by the staff or employees of the owner or operator, or

 

its parent, subsidiary, or affiliate, unless the costs, charges, or

 

expenses are incurred with the prior written approval of the

 

authority.

 

     (g) A release arising from any consequence, whether direct or

 

indirect, of war, invasion, act of a foreign enemy, act of

 

terrorists, hostilities, whether war has been declared or not,

 

civil war, rebellion, revolution, insurrection or military or

 

usurped power, strike, riot, or civil commotion.

 

     (h) Costs arising out of the reconstruction, repair,

 

replacement, upgrading of a refined petroleum underground storage

 

tank system, or any other improvements and any site enhancements or

 

routine maintenance on, within, or under a location.

 

     (i) Costs arising out of the removing, replacing, or recycling

 

of the contents of a refined petroleum underground storage tank

 

system.

 

     (j) Costs, charges, or expenses incurred to investigate or

 

verify that a confirmed release has taken place.

 

     (k) Costs related to the injury of an employee of the owner or

 

operator or its parent, subsidiary, or affiliate arising out of and

 

in the course of employment by the owner or operator or its parent,

 

subsidiary, or affiliate or performing duties related to the

 

conduct of the business of the owner or operator or its parent,

 

subsidiary, or affiliate by a spouse, child, parent, brother, or

 

sister of that employee. This subdivision applies whether the owner

 

or operator may be liable as an employer or in any other capacity

 

and to any obligation to share damages with or repay someone else

 

who must pay damages because of the injury.

 

     (l) Any obligation of the owner or operator under worker's

 

compensation, unemployment compensation, or disability benefits law

 

or similar law.

 

     (m) Any liability or claim for liability of others assumed by

 

the owner or operator under any contract or agreement, unless the

 

owner or operator would have been liable in the absence of the

 

contract or agreement.

 

     (n) A release on, within, under, or emanating from a location

 

if the release commenced subsequent to the time such location was

 

sold, given away, or abandoned.

 

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

 

proceeds account authority for corrective action, 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 a claim to the administrator containing

 

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 under subsection (1)

 

until work invoices in excess of $5,000.00 of the costs of

 

corrective action the deductible amount have been incurred.

 

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

 

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

 

determinations:

 

     (a) Whether the department 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.

 

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

 

funding under this part.

 

     (e) Whether 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 that the owner or operator has

 

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

 

considered to be approved.

 

     (b) Whether the work performed or proposed to be performed is

 

consistent with the requirements of part 213, and whether those

 

activities are consistent with achieving site closure.

 

     (c) Whether the owner or operator has paid the deductible

 

amount.

 

     (d) Whether the corrective action performed is reasonable and

 

necessary considering conditions at the site of the release.

 

     (e) Whether the cost of performing the corrective action work

 

is at or below the allowable reimbursement amount in the schedule

 

of costs or, if the corrective action work is not a listed item,

 

whether the cost is reasonable and necessary.

 

     (4) The administrator may consult with the department and the

 

department of licensing and regulatory affairs to make the

 

determination required in subsection (3).

 

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

 

the work invoices included with the claim are reasonable and

 

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 reasonable

 

and 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 refined petroleum

 

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 the

 

administrator 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, 21510(1)(i), the

 

administrator shall forward payment vouchers to the state treasurer

 

pay the claim 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 and section 21519, the authority shall make a

 

payment jointly to the owner or operator within 30 days if

 

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

 

Once payment has been made under this section, the fund authority

 

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

 

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

 

or the The authority may withhold partial payment of money on

 

payment vouchers if there is reasonable cause to believe suspect

 

that there are suspected violations of section 21548 or if

 

necessary to assure acceptable completion of the proposed work.

 

     (12) The department authority shall prepare and make available

 

to owners and operators standardized claim and work invoice forms.

 

     Sec. 21516. (1) An owner or operator with a claim approved

 

pursuant to section 21515 for which corrective action is in

 

progress who sells or transfers the property that is the subject of

 

the approved claim to another person may assign or transfer the

 

approved claim to that other person. The person to whom the

 

assignment or transfer is made is eligible to receive money from

 

the fund authority as an owner or operator for the release which is

 

the subject of the approved claim. Allowable, outstanding approved

 

or paid work invoices of the owner or operator making the

 

assignment or transfer may be counted toward the co-pay deductible

 

amount of the person to whom the assignment or transfer is made.

 

     (2) An owner or operator assigning or transferring an approved

 

claim pursuant to this section shall notify the administrator of

 

the proposed assignment or transfer at least 10 days before the

 

effective date of the assignment or transfer.

 

     Sec. 21518. (1) To receive money from the fund authority for

 

indemnification, the owner or operator shall submit to the

 

administrator a request for indemnification containing the

 

information required by the administrator, including a copy of the

 

judgment obtained by a third party from a court of law against the

 

owner or operator or the settlement entered into between the owner

 

or operator and the third party, all documentation supporting the

 

reasonableness of and justification for the judgment or settlement,

 

and work invoices which conform to the requirements of section

 

21503(9)(a) to (e). this part. If the administrator determines that

 

the owner or operator is eligible for funding under this part, is

 

eligible for the amount requested, has paid the co-pay deductible

 

amount, and has not exceeded the allowable amount of expenditure

 

provided in section 21512, 21510(1)(i), and that the work invoices

 

are reasonable in terms of cost, payable under this part, the

 

administrator shall forward a copy of the request for

 

indemnification along with all supporting documentation to the

 

attorney general. The attorney general shall approve the request

 

for indemnification if there is a legally enforceable judgment

 

against, or settlement with, the owner or operator that was caused

 

by an accidental release and that is reasonable and consistent with

 

the purposes of this part. The attorney general may raise as a

 

defense to the request any rights or defenses that were or are

 

available to the owner or operator and, in the case of a judgment,

 

that were not heard and ruled upon by the court. If a request for

 

indemnification is approved by the attorney general, the

 

administrator authority shall forward the approved request for pay

 

the indemnification to the department of treasury.amount.

 

     (2) The administrator shall keep records of all approved

 

requests for indemnification.

 

     (3) The state treasurer authority shall make a payment to an

 

owner or operator for an approved indemnification request within 30

 

days if sufficient money exists in the fund.is available to make

 

the payment.

 

     Sec. 21519. (1) The state treasurer authority shall pay

 

payment vouchers make payments on claims in the order in which they

 

are received. If However, if there is insufficient money in the

 

fund available to make a payment, then a payment shall not be made.

 

However, payment vouchers payments on all approved claims, the

 

authority shall give notice to each owner that is eligible to

 

submit a claim under this part advising the owners of the financial

 

situation and the authority shall prioritize payments based upon

 

the risks at the site to the public health, safety, or welfare or

 

the environment. Payments on claims that are not funded may shall

 

be paid if revenues of the fund subsequently become available.

 

     (2) The fund authority and the state are not liable for work

 

invoices or requests for indemnification if money in the fund is

 

revenues of the authority are insufficient to meet these claims.

 

     Sec. 21521. (1) If the administrator denies a claim or work

 

invoice, or a request for indemnification, the owner or operator

 

who submitted the claim, work invoice, or request for

 

indemnification 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 board for a preliminary review. board. However, if the

 

administrator believes the dispute may be able to be resolved

 

without the board's review, the administrator may contact the owner

 

or operator regarding the issues in dispute and may negotiate a

 

resolution of the dispute prior to the boards's review. The board

 

shall conduct a review of the denial and shall submit a

 

recommendation to the department as to determine whether the claim,

 

work invoice, or request for indemnification substantially complies

 

with is payable under this part. Following review by the board, the

 

department shall approve the claim, work invoice, or request for

 

indemnification if the department determines that the claim, work

 

invoice, or request for indemnification substantially complies with

 

the requirements of this part. In making its determination, the

 

department shall give substantial consideration to the

 

recommendations of the board. However, the department shall not

 

approve a claim, work invoice, or request for indemnification for a

 

release that was discovered prior to July 18, 1989.

 

     (2) If the department approves a claim based upon substantial

 

compliance pursuant to subsection (1), the department may refuse to

 

pay for costs incurred during the time the owner or operator was

 

not in strict compliance with this part.

 

     (2) (3) A person who is denied approval by the department

 

board after review under subsection (1) may appeal the decision

 

directly to the circuit court. for the county of Ingham.

 

     Sec. 21523. The Michigan underground storage tank financial

 

assurance authority is created as a body corporate within the

 

department of management and budget and shall exercise its

 

prescribed statutory power, financial duties, and financial

 

functions independently of the director of the department of

 

management and budget or any other department. Funds of the

 

authority shall be handled in the same manner and subject to the

 

same provisions of law applicable to state funds or in a manner

 

specified in a resolution of the authority authorizing the issuance

 

of bonds or notes.

 

     Sec. 21524. (1) The authority shall be governed by a board of

 

directors consisting of the director of the department of

 

management and budget, the director of the department of state

 

police, and 3 6 residents of the state appointed by the governor

 

with the advice and consent of the senate . as follows:

 

     (a) An individual representing petroleum refiners.

 

     (b) An individual representing independent petroleum

 

marketers.

 

     (c) An individual from a statewide motor fuel retail

 

association.

 

     (d) An individual from a statewide business association that

 

includes owners or operators of refined petroleum underground

 

storage tanks.

 

     (e) An individual from a statewide environmental organization.

 

     (f) A member of the general public.

 

     (2) The 3 6 appointed members of the board shall serve terms

 

of 3 years. However, in making the initial appointments, the

 

governor shall designate 1 2 appointed member members to serve for

 

3 years, 1 2 appointed member members to serve for 2 years, and 1 2

 

appointed member members to serve for 1 year.

 

     (3) (2) Upon appointment to the board of directors under

 

subsection (1), and upon the taking and filing of the

 

constitutional oath of office, a member of the board of directors

 

shall enter office and exercise the duties of the office to which

 

he or she is appointed.

 

     (4) (3) A vacancy on the board of directors shall be filled in

 

the same manner as the original appointment. A vacancy shall be

 

filled for the balance of the unexpired term. A member of the board

 

of directors shall hold office until a successor is appointed and

 

qualified.

 

     (5) (4) Members of the board of directors and officers and

 

employees of the authority are subject to Act No. 317 of the Public

 

Acts of 1968, being sections 15.321 to 15.330 of the Michigan

 

Compiled Laws, and Act No. 318 of the Public Acts of 1968, being

 

sections 15.301 to 15.310 of the Michigan Compiled Laws, 1968 PA

 

317, MCL 15.321 to 15.330, and 1968 PA 318, MCL 15.301 to 15.310,

 

as applicable. A member of the board of directors or an officer,

 

employee, or agent of the authority shall discharge the duties of

 

his or her position in a nonpartisan manner, with good faith, and

 

with the degree of diligence, care, and skill that an ordinarily

 

prudent person would exercise under similar circumstances in a like

 

position. In discharging his or her duties, a member of the board

 

of directors or an officer, employee, or agent of the authority,

 

when acting in good faith, may rely upon any of the following:

 

     (a) The opinion of counsel for the authority.

 

     (b) The report of an independent appraiser selected with

 

reasonable care by the board of directors.

 

     (c) Financial statements of the authority represented to the

 

member of the board of directors, officer, employee, or agent to be

 

correct by the officer of authority having charge of its books or

 

account, or stated in a written report by the auditor general or a

 

certified public accountant or the firm of the accountants

 

accountant to fairly reflect the financial condition of the

 

authority.

 

     (6) (5) The board of directors shall organize and make its own

 

policies and procedures. The board of directors shall conduct all

 

business at public meetings held in compliance with the open

 

meetings act, Act No. 267 of the Public Acts of 1976, being

 

sections 15.261 to 15.275 of the Michigan Compiled Laws. 1976 PA

 

267, MCL 15.261 to 15.275. Public notice of the time, date, and

 

place of each meeting shall be given in the manner required by Act

 

No. 267 of the Public Acts of 1976. Three 1976 PA 267, MCL 15.261

 

to 15.275. Four members of the board of directors constitute a

 

quorum for the transaction of business. An action of the board of

 

directors shall be by a majority of the votes cast. A state officer

 

who is a member of the board of directors The director of the

 

department may designate a representative from his or her

 

department to serve instead of that state officer as a voting

 

member of the board of directors for 1 or more meetings.

 

     (7) (6) The board of directors shall elect a chairperson from

 

among its members and may elect any other officers the board of

 

directors considers appropriate.

 

     Sec. 21525. (1) The governor board shall designate the

 

executive director appoint an administrator of the authority and

 

may delegate to the administrator responsibilities for acting on

 

behalf of the authority. The authority may employ on a permanent or

 

temporary basis legal and technical experts, and other officers,

 

agents, or employees, to be paid from the funds of the authority.

 

The authority shall determine the qualifications, duties, and

 

compensation of those it employs, but an employee shall not be paid

 

a higher salary than the director of the department. of management

 

and budget. The authority may delegate to 1 or more members,

 

officers, agents, or employees any of the powers or duties of the

 

authority as the authority considers proper.

 

     (2) The budgeting, procurement, and related functions of the

 

authority shall be performed under the direction and supervision of

 

the director of the department of management and budget.

 

     (2) (3) The authority may contract with the department of

 

management and budget for the purpose of maintaining and improving

 

the rights and interests of the authority.

 

     (3) (4) The authority shall annually file with the legislature

 

a written report on its activities of the last year. This report

 

shall be submitted not later than 270 days following the end of the

 

fiscal year. This report shall specify the amount and source of

 

revenues received, the status of investments made, and money

 

expended with proceeds of bonds or notes sold issued by the finance

 

authority under this part.

 

     (4) (5) The accounts of the authority are subject to annual

 

audits by the state auditor general or a certified public

 

accountant appointed by the auditor general. Records shall be

 

maintained according to generally accepted accounting principles.

 

     Sec. 21526. Except as otherwise provided in this part, the

 

board of directors may do all things necessary or convenient to

 

implement this part and the purposes, objectives, and powers

 

delegated to the board of directors by other laws or executive

 

orders, including, but not limited to, all of the following:

 

     (a) Adopt an official seal and bylaws for the regulation of

 

its affairs and alter the seal or bylaws.

 

     (b) Sue and be sued in its own name and plead and be

 

impleaded.

 

     (c) Borrow money and issue negotiable revenue bonds and notes

 

pursuant to this part.

 

     (c) (d) Enter into contracts and other instruments necessary,

 

incidental, or convenient to the performance of its duties and the

 

exercise of its powers.

 

     (d) (e) With the prior consent of the director of the

 

department, of management and budget, solicit and accept gifts,

 

grants, loans, and other aid from any person or the federal, state,

 

or local government or any agency of the federal, state, or local

 

government, or participate in any other way in a federal, state, or

 

local government program.

 

     (e) (f) Procure insurance against loss in connection with the

 

property, assets, or activities of the authority.

 

     (f) (g) Invest money of the authority, at the board of

 

directors' discretion, in instruments, obligations, securities, or

 

property determined proper by the board of directors, and name and

 

use depositories for its money.

 

     (g) (h) Contract for goods and services and engage personnel

 

as necessary and engage the services of private consultants,

 

managers, legal counsel, and auditors for rendering professional

 

financial assistance and advice, payable out of any money of the

 

authority.

 

     (h) (i) Indemnify and procure insurance indemnifying members

 

of the board of directors from personal loss or accountability from

 

liability asserted by a person on bonds or notes of the authority,

 

or from any personal liability or accountability by reason of the

 

issuance of the bonds or notes, or by reason of any other action

 

taken or the failure to act by the authority.

 

     (i) (j) Do all other things necessary or convenient to achieve

 

the objectives and purposes of the authority, this part, rules

 

promulgated under this part, or other laws that relate to the

 

purposes and responsibilities of the authority.

 

     Sec. 21527. (1) The authority shall assess the potential

 

demand for payment of claims under this part and shall provide the

 

results of the assessment to the finance authority. Upon review of

 

the results of the assessment, if the finance authority determines

 

that it is prudent to do so, the finance authority may issue bonds

 

or notes.

 

     (2) (1) The finance authority may authorize and issue its

 

bonds or notes payable solely from the revenues or funds available

 

to the fund under section 21508. Bonds or notes of the finance

 

authority are not a debt or liability of the state, and do not

 

create or constitute any indebtedness, liability, or obligation of

 

the state, or be or and do not constitute a pledge of the faith and

 

credit of the state. All finance authority bonds and notes are

 

payable solely from revenues or funds pledged or available for

 

their payment as authorized in this part. Each bond and note shall

 

contain on its face a statement to the effect that the authority is

 

obligated to pay the principal of and the interest on the bond or

 

note only from revenues or from funds of the finance authority

 

pledged for such payment and that the state is not obligated to pay

 

that principal or interest and that neither the faith and credit

 

nor the taxing power of the state is pledged to the payment of the

 

principal of or the interest on the bond or note.

 

     (3) (2) All expenses incurred in implementing this part are

 

payable solely from revenues or funds provided or to be provided

 

under this part. This part does not authorize the finance authority

 

to incur any indebtedness or liability on behalf of or payable by

 

the state.

 

     Sec. 21528. (1) The finance authority may issue from time to

 

time bonds or notes in principal amounts the finance authority

 

considers necessary to provide funds for any purpose, including,

 

but not limited to, all of the following:

 

     (a) The purposes described in section 21506(4)(a) and

 

(e).payment of approved claims under this part.

 

     (b) The payment, funding, or refunding of the principal of,

 

interest on, or redemption premiums on bonds or notes issued by the

 

finance authority whether the bonds or notes or interest to be

 

funded or refunded have or have not become due.

 

     (c) The establishment or increase of reserves to secure or to

 

pay finance authority bonds or notes or interest on those bonds or

 

notes.

 

     (d) The payment of interest on the bonds or notes for a period

 

determined by the finance authority.

 

     (e) The payment of all other costs or expenses of the finance

 

authority incident to and necessary or convenient to implement its

 

purposes and powers.

 

     (2) The bonds or notes of the finance authority are not a

 

general obligation of the finance authority but are payable solely

 

from the revenues or funds, or both, pledged to the payment of the

 

principal of and interest on the bonds or notes as provided in the

 

resolution authorizing the bond or note.

 

     (3) The bonds or notes of the finance authority:

 

     (a) Shall be authorized by resolution of the finance

 

authority.

 

     (b) Shall bear the date or dates of issuance.

 

     (c) May be issued as either tax-exempt bonds or notes or

 

taxable bonds or notes for federal income tax purposes.

 

     (d) Shall be serial bonds, term bonds, or term and serial

 

bonds.

 

     (e) Shall mature at such time or times not exceeding 20 years

 

from the date of issuance.

 

     (f) May provide for sinking fund payments.

 

     (g) May provide for redemption at the option of the finance

 

authority for any reason or reasons.

 

     (h) May provide for redemption at the option of the bondholder

 

for any reason or reasons.

 

     (i) Shall bear interest at a fixed or variable rate or rates

 

of interest per annum or at no interest.

 

     (j) Shall be registered bonds, coupon bonds, or both.

 

     (k) May contain a conversion feature.

 

     (l) May be transferable.

 

     (m) Shall be in the form, denomination or denominations, and

 

with such other provisions and terms as is determined necessary or

 

beneficial by the finance authority.

 

     (4) If a member of the board of directors or any officer of

 

the finance authority whose signature or facsimile of his or her

 

signature appears on the note, bond, or coupon ceases to be a

 

member or officer before the delivery of that bond or note, the

 

signature continues to be valid and sufficient for all purposes, as

 

if the member or officer had remained in office until the delivery.

 

     (5) Bonds or notes of the finance authority may be sold at a

 

public or private sale at the time or times, at the price or

 

prices, and at a discount as the finance authority determines. An A

 

finance authority bond or note is not subject to the revised

 

municipal finance act, 2001 PA 34, MCL 141.2101 to 141.2821. The

 

bond or note of the finance authority is not required to be filed

 

under the uniform securities act, 1964 PA 265, MCL 451.501 to

 

451.818, or the uniform securities act (2002), 2008 PA 551, MCL

 

451.2101 to 451.2703.

 

     Sec. 21531. Within limitations that are contained in the

 

issuance or authorization resolution of the finance authority, the

 

finance authority may authorize a member of the board of directors,

 

the executive director, or any other officer of the finance

 

authority to do 1 or more of the following:

 

     (a) Sell and deliver and receive payment for bonds or notes.

 

     (b) Refund bonds or notes by the delivery of new bonds or

 

notes whether or not the bonds or notes to be refunded are mature

 

or subject to redemption.

 

     (c) Deliver bonds or notes, partly to refund bonds or notes

 

and partly for any other authorized purpose.

 

     (d) Buy issued bonds or notes and resell those bonds or notes.

 

     (e) Approve interest rates or methods for fixing interest

 

rates, prices, discounts, maturities, principal amounts,

 

denominations, dates of issuance, interest payment dates,

 

redemption rights at the option of the authority or the holder, the

 

place of delivery and payment, and other matters and procedures

 

necessary to complete the transactions authorized.

 

     (f) Direct the investment of any and all funds of the finance

 

authority.

 

     (g) Approve the terms of an insurance contract, an agreement

 

for a line of credit, a letter of credit, a commitment to purchase

 

notes or bonds, an agreement to remarket bonds or notes, or any

 

other transaction to provide security to assure timely payment of a

 

bond or note or an agreement to manage payment, revenue, or

 

interest rate exposure.

 

     (h) Execute any power, duty, function, or responsibility of

 

the finance authority.

 

     Sec. 21546. (1) This part does not create any liability on

 

behalf of the state. This part shall not be construed as making the

 

state the guarantor of the fund.

 

     (2) This part does not relieve any person who may be eligible

 

to receive money from the fund or the former emergency response

 

fund to submit a claim to the authority from any liability that he

 

or she may incur as the owner or operator of an a refined petroleum

 

underground storage tank system. The state is not assuming the

 

liability of an owner or operator eligible for funding under this

 

part; it is only providing assistance to such owners or operators

 

in meeting the financial responsibility requirements.

 

     (3) If all bonds or notes of the finance authority payable

 

from the fund have been fully paid or provided for and if any

 

provision of this part is found to be unconstitutional by a court

 

of competent jurisdiction and the allowable time for filing an

 

appeal has expired or the appellant has exhausted all of his or her

 

avenues of appeal, this whole part shall be considered

 

unconstitutional and invalid.

 

     Sec. 21548. (1) A person who makes or submits or causes to be

 

made or submitted either directly or indirectly any statement,

 

report, affidavit, application, claim, bid, work invoice, or other

 

request for payment or indemnification under this part knowing that

 

the statement, report, application, claim, bid, work invoice, or

 

other request for payment or indemnification is false or misleading

 

is guilty of a felony punishable by imprisonment for not more than

 

5 years or a fine of not more than $50,000.00, or both. In addition

 

to any penalty imposed under this subsection, a person convicted

 

under this subsection shall pay restitution to the fund authority

 

for the amount received in violation of this subsection.

 

     (2) A person who makes or submits or causes to be made or

 

submitted either directly or indirectly any statement, report,

 

application, claim, bid, work invoice, or other request for payment

 

or indemnification under this part knowing that the statement,

 

report, affidavit, application, claim, bid, work invoice, or other

 

request for payment or indemnification is false, misleading, or

 

fraudulent, or who commits a fraudulent practice, is subject to a

 

civil fine of not more than $50,000.00 or twice the amount

 

submitted, whichever is greater. In addition to any civil fine

 

imposed under this subsection, a person found responsible under

 

this subsection shall pay restitution to the fund authority for the

 

amount received in violation of this subsection. The legislature

 

intends that this subsection be given retroactive application.

 

     (3) As used in subsection (2), "fraudulent" or "fraudulent

 

practice" includes, but is not limited to, the following:

 

     (a) Submitting a work invoice for the excavation, hauling,

 

disposal, or provision of soil, sand, or backfill for an amount

 

greater than the legal capacity of the carrying vehicle or greater

 

than was actually carried, excavated, disposed, or provided.

 

     (b) Submitting paperwork for services done or work provided

 

that was not in fact provided or that was not directly provided by

 

the individual indicated on the paperwork.

 

     (c) Contaminating an otherwise clean resource or site with

 

contaminated soil or product from a contaminated resource or site.

 

     (d) Returning any load of contaminated soil to its original

 

site for reasons other than remediation of the soil.

 

     (e) Causing damage intentionally or as the result of gross

 

negligence to an a refined petroleum underground storage tank

 

system, which damage results in a release at a site.

 

     (f) Placing an a refined petroleum underground storage tank

 

system at a contaminated site where no refined petroleum

 

underground storage tank system previously existed for purposes of

 

disguising the source of contamination or to obtain funding under

 

this part.

 

     (g) Submitting a work invoice for the excavation of soil from

 

a site that was removed for reasons other than removal of the

 

refined petroleum underground storage tank system or remediation.

 

     (h) Any intentional act or act of gross negligence that causes

 

or allows contamination to spread at a site.

 

     (i) Registration of a nonexistent refined petroleum

 

underground storage tank system with the department.

 

     (j) Loaning to an owner or operator the co-pay deductible

 

amount required under section 21514 and then submitting or causing

 

to be submitted inflated claims or invoices designed to recoup the

 

co-pay deductible amount.

 

     (k) Confirming a release without simultaneously providing

 

notice to the owner or operator.

 

     (l) Inflating bills or work invoices, or both, by adding

 

charges for work that was not performed.

 

     (m) Submitting a false or misleading laboratory report.

 

     (n) Submitting bills or work invoices, or both, for sampling,

 

testing, monitoring, or excavation that are not justified by the

 

site condition.

 

     (o) Falsely characterizing the contents of an a refined

 

petroleum underground storage tank system for purposes of obtaining

 

funding under this part.

 

     (p) Submitting or causing to be submitted bills or work

 

invoices by or from a person who did not directly provide the

 

service.

 

     (q) Characterizing legal services as consulting services for

 

purposes of obtaining funding under this part.

 

     (r) Misrepresenting or concealing the identity, credentials,

 

affiliation, or qualifications of principals or persons seeking,

 

either directly or indirectly, funding or approval for

 

participation under this part.

 

     (s) Falsifying a signature on a claim application or a work

 

invoice.

 

     (t) Failing to accurately disclose the actual amount and

 

carrier of unencumbered insurance coverage available for new

 

environmental impairment or professional liability claims.

 

     (u) Any other act or omission of a false, fraudulent, or

 

misleading nature undertaken in order to obtain funding under this

 

part.

 

     (4) The attorney general or county prosecutor may conduct an

 

investigation of an alleged violation of this section and bring an

 

action for a violation of this section.

 

     (5) If the attorney general or county prosecutor has

 

reasonable cause to believe that a person has information or is in

 

possession, custody, or control of any document or records, however

 

stored or embodied, or tangible object which is relevant to an

 

investigation of a violation or attempted violation of this part or

 

a crime or attempted crime against the fund, the attorney general

 

or county prosecutor may, before bringing any action, make an ex

 

parte request to a magistrate for issuance of a subpoena requiring

 

that person to appear and be examined under oath or to produce the

 

document, records, or object for inspection and copying, or both.

 

Service may be accomplished by any means described in the Michigan

 

court rules. Requests made by the attorney general may be brought

 

in Ingham county.

 

     (6) If a person objects to or otherwise fails to comply with a

 

subpoena served under subsection (5), an action may be brought in

 

district court to enforce the demand. Actions filed by the attorney

 

general may be brought in Ingham county.

 

     (7) The attorney general or county prosecutor may apply to the

 

district court for an order granting immunity to any person who

 

refuses to provide or objects to providing information, documents,

 

records, or objects sought pursuant to this section. If the judge

 

is satisfied that it is in the interest of justice that immunity be

 

granted, he or she shall enter an order granting immunity to the

 

person and requiring the person to appear and be examined under

 

oath or to produce the document, records, or object for inspection

 

and copying, or both.

 

     (8) A person who fails to comply with a subpoena issued

 

pursuant to subsection (5) or a requirement to appear and be

 

examined pursuant to subsection (7) is subject to a civil fine of

 

not more than $25,000.00 for each day of continued noncompliance.

 

     (9) In addition to any civil fines or criminal penalties

 

imposed under this part or the criminal laws of this state, the

 

person found responsible shall repay any money obtained directly or

 

indirectly under this part. Money owed pursuant to this section

 

constitutes a claim and lien by the fund authority upon any real or

 

personal property owned either directly or indirectly by the

 

person. This lien shall attach regardless of whether the person is

 

insolvent and may not be extinguished or avoided by bankruptcy. The

 

lien imposed by this section has the force and effect of a first in

 

time and right judgment lien.

 

     (10) Subsection (1) does not preclude prosecutions under other

 

laws of the state including, but not limited to, section 157a, 218,

 

248, 249, 280, or 422 of the Michigan penal code, 1931 PA 328, MCL

 

750.157a, 750.218, 750.248, 750.249, 750.280, and 750.422.

 

     (11) All civil fines collected pursuant to this section shall

 

be apportioned in the following manner:

 

     (a) Fifty percent shall be deposited in the general fund and

 

shall be used by the department to fund fraud investigations under

 

this part.

 

     (b) Twenty-five percent shall be paid to the office of the

 

county prosecutor or attorney general, whichever office brought the

 

action.

 

     (c) Twenty-five percent shall be paid to a local police

 

department or sheriff's office, or a city or county health

 

department, if investigation by that office or department led to

 

the bringing of the action. If more than 1 office or department is

 

eligible for payment under this subsection, division of payment

 

shall be on an equal basis. If there is not a local office or

 

department that is entitled to payment under this subdivision, the

 

money shall be forwarded to the state treasurer for deposit into

 

the refined petroleum fund.

 

     Enacting section 1. Sections 21506, 21511, 21512, 21513,

 

21514, 21517, 21520, 21522, 21545, 21547, 21549, 21550, 21551,

 

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

 

21563 of the natural resources and environmental protection act,

 

1994 PA 451, MCL 324.21506, 324.21511, 324.21512, 324.21513,

 

324.21514, 324.21517, 324.21520, 324.21522, 324.21545, 324.21547,

 

324.21549, 324.21550, 324.21551, 334.21553, 324.21554, 324.21555,

 

324.21556, 324.21557, 324.21558, 324.21559, 324.21560, 324.21561,

 

and 324.21563, are repealed.