Bill Text: MI HB5365 | 2009-2010 | 95th Legislature | Introduced

---

Bill Title: Environmental protection; toxic substances or products; certain responsibilities of department of environmental quality for hazardous materials and storage tanks; transfer to state fire marshal. Amends secs. 21101, 21102, 21103, 21104, 21105, 21106, 21108, 21109 & 21111 of 1994 PA 451 (MCL 324.21101 et seq.).

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2010-07-01 - Referred To Second Reading [HB5365 Detail]

Download: Michigan-2009-HB5365-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5365

 

September 15, 2009, Introduced by Reps. Mayes, Polidori, LeBlanc, Sheltrown, Horn, Hansen, Neumann, Crawford, Kowall, Genetski, Schuitmaker, Moore, Daley, Opsommer, Rick Jones, Gonzales, Slezak, Roy Schmidt, Liss, Huckleberry, Wayne Schmidt, Haase and Cushingberry and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 21101, 21102, 21103, 21104, 21105, 21106,

 

21108, 21109, and 21111 (MCL 324.21101, 324.21102, 324.21103,

 

324.21104, 324.21105, 324.21106, 324.21108, 324.21109, and

 

324.21111).

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 21101. As used in this part:

 

     (a) "Department" means the department of natural resources,

 

underground storage tank division.

 

     (a) (b) "Fund" means the underground storage tank regulatory

 

enforcement fund created in section 21104.

 

     (b) (c) "Local unit of government" means a municipality,

 

county, or governmental authority or any combination of

 

municipalities, counties, or governmental authorities.

 

     (c) (d) "Natural gas" means natural gas, synthetic gas, and or

 

manufactured gas.

 

     (d) (e) "Operator" means a person who is presently, or was at

 

the time of a release, in control of or responsible for the

 

operation of an underground storage tank system.

 

     (e) (f) "Owner" means a person who holds, or at the time of a

 

release who 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.

 

However, owner does not include a person or a regulated financial

 

institution who, without participating in the management of an

 

underground storage tank system and who is not 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.

 

     (f) (g) "Regulated substance" means any of the following:

 

     (i) A hazardous substance as that term is defined in section

 

101(14) of title I of the comprehensive environmental response,

 

compensation, and liability act of 1980, Public Law 96-510, 42

 

U.S.C. 42 USC 9601, but not including a substance regulated as a

 

hazardous waste under subtitle C of the solid waste disposal act,

 

title II of Public Law 89-272, 42 U.S.C. 6921 to 6931 and 6933 to

 

6939b 42 USC 6921 to 6939e.

 

     (ii) Petroleum, including crude oil or any fraction of crude

 

oil that is liquid at standard conditions of temperature and

 

pressure (60 degrees Fahrenheit and 14.7 pounds per square inch

 

absolute). Petroleum includes but is not limited to mixtures of

 

petroleum with de minimis quantities of other regulated substances,

 

and petroleum-based substances composed of a complex blend of

 

hydrocarbons derived from crude oil through processes of

 

separation, conversion, upgrading, or finishing such as motor

 

fuels, jet fuels, distillate fuel oils, residual fuel oils,

 

lubricants, and petroleum solvents.

 

     (iii) A substance listed in section 112 of part A of title I of

 

the clean air act, chapter 360, 84 Stat. 1685, 42 U.S.C. 42 USC

 

7412.

 

     (g) (h) "Release" means any spilling, leaking, emitting,

 

discharging, escaping, leaching, or disposing from an underground

 

storage tank system into groundwater, surface water, or subsurface

 

soils.

 

     (h) "State fire marshal" means that term as defined in section

 

1 of the fire prevention code, 1941 PA 207, MCL 29.1.

 

     (i) "Underground storage tank system" means a tank or

 

combination of tanks, including underground pipes connected to the

 

tank or tanks, which is, was, or may have been used to contain an

 

accumulation of regulated substances, 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 does not include any of the

 

following:

 

     (i) A farm or residential tank of 1,100 gallons or less

 

capacity used for storing motor fuel for noncommercial purposes.

 

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

 

the premises where the tank is located.

 

     (iii) A septic tank.

 

     (iv) A pipeline facility, including gathering lines regulated

 

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

 

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

 

90-481, 49 U.S.C. Appx 1671 to 1677, 1679a to 1682, and 1683 to

 

1687.

 

     (B) Sections 201 to 215 and 217 of the hazardous liquid

 

pipeline safety act of 1979, title II of Public Law 96-129, 49

 

U.S.C. Appx 2001 to 2015.

 

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

 

     (vi) A storm water or wastewater collection system.

 

     (vii) A flow-through process tank.

 

     (viii) A liquid trap or associated gathering lines directly

 

related to oil or gas production and gathering operations.

 

     (ix) A storage tank situated in an underground area, such as a

 

basement, cellar, mineworking, drift, shaft, or tunnel if the

 

storage tank is situated upon or above the surface of the floor.

 

     (x) Any pipes connected to a tank that is described in

 

subparagraphs (i) to (xvi).

 

     (x) (xi) An underground storage tank system holding hazardous

 

wastes listed or identified under subtitle C of the solid waste

 

disposal act, title II of Public Law 89-272, 42 U.S.C. 6921 to 6931

 

and 6933 to 6939b 42 USC 6921 to 6939e, or a mixture of such

 

hazardous waste and other regulated substances.

 

     (xi) (xii) A wastewater treatment tank system that is part of a

 

wastewater treatment facility regulated under section 307(b) of

 

title III or section 402 of title IV of the federal water pollution

 

control act, 33 U.S.C. 33 USC 1317 and or 1342.

 

     (xii) (xiii) Equipment or machinery that contains regulated

 

substances for operational purposes such as hydraulic lift tanks

 

and electrical equipment tanks.

 

     (xiii) (xiv) An underground storage tank system with a capacity

 

of 110 gallons or less.

 

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

 

minimis concentration of regulated substances.

 

     (xv) (xvi) An emergency spill or overflow containment

 

underground storage tank system that is expeditiously emptied after

 

use.

 

     (xvi) Any pipes connected to a tank that is described in

 

subparagraphs (i) to (xv).

 

     Sec. 21102. (1) A person who is the owner of an underground

 

storage tank system shall register and annually renew the

 

registration on of the underground storage tank system with the

 

department state fire marshal. However, the owner or operator of an

 

underground storage tank closed prior to January 1, 1974 in

 

compliance with the fire prevention code, Act No. 207 of the Public

 

Acts of 1941, being sections 29.1 to 29.33 of the Michigan Compiled

 

Laws 1941 PA 207, MCL 29.1 to 29.33, and the rules promulgated

 

under that act, is exempt from the registration requirements of

 

this section.

 

     (2) A person who is the owner of an underground storage tank

 

system shall register the underground storage tank system with the

 

department state fire marshal prior to bringing the underground

 

storage tank system into use. Additionally, an installation

 

registration form containing the information required by the

 

department state fire marshal shall be submitted to the department

 

at least 45 days prior to the installation of the underground

 

storage tank system.

 

     (3) The department state fire marshal shall accept the

 

registration or renewal of registration of an underground storage

 

tank system under this section only if the owner of the underground

 

storage tank system pays the registration fee specified in

 

subsection (8).

 

     (4) Except as otherwise provided in subsections (5) and (6), a

 

person who is the owner of an underground storage tank system

 

registered under subsection (1) or (2) shall notify the department

 

state fire marshal of any change in the information required on the

 

registration form under section 3 21103 or of the removal of an

 

underground storage tank system from service.

 

     (5) A person who is the owner of an underground storage tank

 

system, the contents of which are changed routinely, may indicate

 

all the materials that are stored in the underground storage tank

 

system on the registration form described in section 21103. A

 

person providing the information described in this subsection is

 

not required to notify the department state fire marshal of changes

 

in the contents of the underground storage tank system unless the

 

material to be stored in the system differs from the information

 

provided on the registration form.

 

     (6) Except as otherwise provided in section 21103(2), a person

 

who is the owner of an underground storage tank system registered

 

under subsection (1) or (2) is not required to notify the

 

department state fire marshal of a test conducted on the tank

 

system but shall furnish this information upon the request of the

 

department state fire marshal.

 

     (7) Upon the request of a local unit of government in which

 

where an underground storage tank system is located, the department

 

state fire marshal shall forward a copy of registration or

 

notification of change to the local unit of government where the

 

underground storage tank system is located.

 

     (8) Except as provided in section 21104(3), the owner of an

 

underground storage tank system shall, upon registration or renewal

 

of registration, pay a registration fee of $100.00 for each

 

underground storage tank included in that underground storage tank

 

system. The department state fire marshal shall deposit all

 

registration fees it collects under this subsection into the fund.

 

     (9) The department state fire marshal may promulgate rules

 

that require proof of registration under this part to be attached

 

to the underground storage tank system or to the property where the

 

underground storage tank system is located.

 

     (10) Except as otherwise provided in this subsection, an

 

underground storage tank system or an underground storage tank that

 

is part of the system that has been closed or removed pursuant to

 

rules promulgated under this part is exempt from the requirements

 

of this section. However, the owner of an underground storage tank

 

system or an underground storage tank that is part of the system

 

that has been closed or removed shall notify the department state

 

fire marshal of the closure or removal pursuant to rules

 

promulgated by the department state fire marshal. The owner of an

 

underground storage tank system shall continue to pay registration

 

fees on underground storage tanks that have been closed or removed

 

until notification of the closure or removal is provided on the

 

required form pursuant to these rules.

 

     Sec. 21103. (1) The registration required by section 21102(1)

 

and (2) shall be provided either:

 

     (a) On a form provided by the department state fire marshal

 

and in compliance with section 9002 of the solid waste disposal

 

act, 42 U.S.C. USC 6991a.

 

     (b) On a form approved by the department state fire marshal

 

and in compliance with section 9002 of the solid waste disposal

 

act, 42 USC 6991a.

 

     (2) If there is a suspected or confirmed release from an

 

underground storage tank system, the owner or operator of the

 

underground storage tank system shall notify the department state

 

fire marshal within 24 hours and if requested by the department

 

state fire marshal shall file the following supplementary

 

information if known:

 

     (a) The owner of the property where the underground storage

 

tank system is located.

 

     (b) A history of the current and previous contents of the

 

underground storage tank system, including the generic chemical

 

name, chemical abstract service number, or trade name, whichever is

 

most descriptive of the contents, and including the date or dates

 

on which the contents were changed or removed.

 

     (c) A history of the monitoring procedures and leak detection

 

tests and methods employed with respect to the underground storage

 

tank system and the resulting findings.

 

     Sec. 21104. (1) The underground storage tank regulatory

 

enforcement fund is created in the state treasury. The fund may

 

receive money as provided in this part and as otherwise provided by

 

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

 

Interest and earnings of the fund shall be credited to the fund.

 

Money in the fund at the close of the fiscal year shall remain in

 

the fund and shall not revert to the general fund.

 

     (2) Money in the fund shall be used only by the department

 

state fire marshal to enforce this part and the rules promulgated

 

under this part and the rules promulgated under the fire prevention

 

code, Act No. 207 of the Public Acts of 1941, being sections 29.1

 

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

 

29.33, pertaining to the delivery and dispensing operations of

 

regulated substances.

 

     (3) Notwithstanding section 21102(8), if at the close of any

 

fiscal year the amount of money in the fund exceeds $8,000,000.00,

 

the department state fire marshal shall not collect a registration

 

fee for the following year from existing underground storage tank

 

systems. After the registration fee has been suspended under this

 

subsection, it shall only be reinstated if, at the close of any

 

succeeding fiscal year, the amount of money in the fund is less

 

than $4,000,000.00.

 

     (4) The department of treasury shall, before November 1 of

 

each year, notify the department state fire marshal of the balance

 

in the fund at the close of the preceding fiscal year.

 

     Sec. 21105. The department state fire marshal shall collect

 

and evaluate the information obtained through the registration of

 

underground storage tanks required by section 21102. Not later than

 

September 30, 1987, the department shall provide to the legislature

 

a report containing a compilation of the underground storage tank

 

registration data and an assessment of the actual and potential

 

environmental hazard posed by the tanks.

 

     Sec. 21106. The department state fire marshal shall promulgate

 

rules relating to underground storage tank systems that are at

 

least as stringent as the rules promulgated by the United States

 

environmental protection agency under subtitle I of title II of

 

Public Law 89-272 the solid waste disposal act, 42 U.S.C. USC 6991

 

to 6991i 6991m. These rules shall include a requirement that the

 

owner or operator of an underground storage tank system provide

 

financial responsibility in the event of a release from the

 

underground storage tank system.

 

     Sec. 21108. (1) The department state fire marshal shall

 

enforce this part and the rules promulgated under this part.

 

     (2) The department state fire marshal may delegate the

 

authority to enforce this part and the rules promulgated under this

 

part to a local unit of government that has sufficient employees

 

who are certified by the department state fire marshal under

 

subsection (3) as underground storage tank system inspectors. A

 

local unit of government may apply for delegation under this

 

section by submitting a resolution of the governing body of the

 

local unit of government and an application containing the

 

information required by the department state fire marshal. The

 

department state fire marshal may revoke a delegation under this

 

section for a violation of this part, the rules promulgated under

 

this part, or a contract entered between the department state fire

 

marshal and the local unit of government.

 

     (3) The department state fire marshal may certify individuals

 

who are qualified to enforce this part and the rules promulgated

 

under this part as underground storage tank system inspectors. The

 

department state fire marshal may revoke an individual's

 

certification under this section for violating this part or rules

 

promulgated under this part.

 

     (4) If the department state fire marshal elects to delegate

 

enforcement authority under subsection (2), the department state

 

fire marshal shall promulgate rules that do both of the following:

 

     (a) Establish criteria for delegation under subsection (2).

 

     (b) Establish qualifications for certification of individuals

 

as underground storage tank system inspectors under subsection (3).

 

     (5) The department state fire marshal may contract with a

 

local unit of government for the purpose of enforcing this part and

 

the rules promulgated under this part.

 

     (6) The department state fire marshal or a certified

 

underground storage tank system inspector within his or her

 

jurisdiction, at the discretion of the department state fire

 

marshal or inspector and without a complaint and without restraint

 

or liability for trespass, may, at an hour reasonable under the

 

circumstances involved, enter into and upon real property including

 

a building or premises where regulated substances may be stored for

 

the purpose of inspecting and examining the property, buildings, or

 

premises, and their occupancies and contents to determine

 

compliance with this part and the rules promulgated under this

 

part.

 

     (7) The department state fire marshal shall enhance its audit

 

and inspection program to monitor the installation and operation of

 

new underground storage tank systems or components to ensure that

 

equipment meets minimum quality standards, that the installation is

 

done properly, and that the monitoring systems are properly

 

utilized.

 

     (8) The department shall conduct a study regarding the causes

 

of underground storage tank leaks and prepare a report making

 

recommendations regarding upgrading underground storage tank system

 

standards, establishing timetables for the replacement of

 

equipment, and instituting any other practices or procedures which

 

will minimize releases of regulated substances into the

 

environment. The report shall be submitted by July 1, 1995 to the

 

members of the legislature who are members of committees dealing

 

with natural resource issues.

 

     Sec. 21109. (1) The department state fire marshal may, upon

 

resolution of the governing body of a local unit of government in

 

whose jurisdiction an underground storage tank system is being

 

installed, require additional safeguards, other than those

 

specified in rules, when the public health, safety, or welfare, or

 

the environment is endangered by the underground storage tank

 

system.

 

     (2) A local unit of government shall not enact or enforce a

 

provision of an ordinance that is inconsistent with this part or

 

rules promulgated under this part.

 

     (3) A local unit of government shall not enact or enforce a

 

provision of an ordinance that requires a permit, license,

 

approval, inspection, or the payment of a fee or tax for the

 

installation, use, closure, or removal of an underground storage

 

tank system.

 

     Sec. 21111. The following are deferred from regulation under

 

this part until such time as the department state fire marshal

 

determines that they should be regulated:

 

     (a) Wastewater treatment tank systems.

 

     (b) An underground storage tank system containing radioactive

 

material that is regulated under the atomic energy act of 1954,

 

chapter 1073, 68 Stat . 919.

 

     (c) An underground storage tank system that is part of an

 

emergency generator system at nuclear power generation facilities

 

regulated by the nuclear regulatory commission under 10 C.F.R. CFR

 

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

 

regulations.

 

     (d) Airport hydrant fuel distribution systems.

 

     (e) Underground storage tank systems with field-constructed

 

tanks.

 

     Enacting section 1. (1) The transfer of powers and duties from

 

the department of environmental quality or the director of the

 

department of environmental quality to the state fire marshal under

 

this amendatory act does not abate an action or other proceeding

 

commenced by or against the department of environmental quality or

 

the director of the department of environmental quality in his or

 

her official capacity under part 211 of the natural resources and

 

environmental protection act, 1994 PA 451, MCL 324.21101 to

 

324.21113. However, the court may allow the action or other

 

proceeding to be maintained by or against the state fire marshal.

 

     (2) This amendatory act does not abate a criminal action

 

commenced by this state.

 

     (3) Any order, registration, delegation of enforcement

 

authority, certification, or contract issued or entered by the

 

department of environmental quality or the director of the

 

department of environmental quality before the effective date of

 

this amendatory act under part 211 of the natural resources and

 

environmental protection act, 1994 PA 451, MCL 324.21101 to

 

324.21113, shall continue in effect until it expires or is amended,

 

suspended, or revoked by the state fire marshal pursuant to law.

 

     (4) Subject to subsection (1), all records, personnel, and

 

unexpended balances of appropriations or other funds associated

 

with a power or duty transferred by this amendatory act are

 

transferred with that power or duty.