February 18, 2014, Introduced by Senator GREEN and referred to the Committee on Natural Resources, Environment and Great Lakes.
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 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 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) (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.
(q) (o)
"Fund" means the Michigan
underground storage tank
financial
assurance fund created in section 21506.underground
storage tank cleanup fund created in section 21506b.
(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.
(r) (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.
(s) (r)
"Location" means a facility
or parcel of property
where refined petroleum underground storage tank systems are
registered pursuant to part 211.
(t) (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.
(u) (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.
(v) (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.
(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 shall expend money from the fund, upon
appropriation, only for 1 or more of the following purposes:
(a) To pay approved claims as provided for in this part.
(b) To pay interest and other costs associated with the
issuance of bonds or notes under this part.
(c) To pay for the costs of the authority.
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 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 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.
(d) Enter into contracts and other instruments necessary,
incidental, or convenient to the performance of its duties and the
exercise of its powers.
(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.
(f) Procure insurance against loss in connection with the
property, assets, or activities of the authority.
(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.
(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.
(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.
(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 if the authority
determines that it is prudent to do so, shall issue bonds or notes.
(2)
The authority may shall 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 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 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 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 authority to
incur any indebtedness or liability on behalf of or payable by the
state.
Sec. 21528. (1) The authority may issue from time to time
bonds or notes in principal amounts the 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
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 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 authority.
(e) The payment of all other costs or expenses of the
authority incident to and necessary or convenient to implement its
purposes and powers.
(2) The bonds or notes of the authority are not a general
obligation of the 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 authority:
(a) Shall be authorized by resolution of the 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 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 authority.
(4) If a member of the board of directors or any officer of
the 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 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 authority determines. An 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 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 authority, the
authority
may authorize a member of the board of directors , the
executive
director, or any other officer of
the 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
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 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 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.