Bill Text: MI HB5366 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Environmental protection; toxic substances or products; certain responsibilities of department of environmental quality under fire prevention code for hazardous materials and storage tanks; transfer to bureau of fire services. Amends secs. 3b, 3c, 5c, 5d, 5e, 5i, 5j, 5n, 5o & 5p of 1941 PA 207 (MCL 29.3b et seq.).

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2010-07-01 - Referred To Second Reading [HB5366 Detail]

Download: Michigan-2009-HB5366-Introduced.html

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HOUSE BILL No. 5366

 

September 15, 2009, Introduced by Reps. Neumann, LeBlanc, Polidori, Sheltrown, Hansen, Horn, Crawford, Genetski, Kowall, 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 1941 PA 207, entitled

 

"Fire prevention code,"

 

by amending sections 3b, 3c, 5c, 5d, 5e, 5i, 5j, 5n, 5o, and 5p

 

(MCL 29.3b, 29.3c, 29.5c, 29.5d, 29.5e, 29.5i, 29.5j, 29.5n, 29.5o,

 

and 29.5p), as amended by 2006 PA 189.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3b. (1) The state fire safety board is created in the

 

bureau and shall consist of 17 members who are residents of this

 

state. Of the members:

 

     (a) Three shall be representatives of organized fire

 

departments in the Lower Peninsula.

 

     (b) One shall be a representative of organized fire

 

departments in the Upper Peninsula.

 

     (c) One shall be a representative of hospital administration.

 

     (d) One shall be a registered professional engineer.

 

     (e) One shall be a registered architect.

 

     (f) One shall be a representative of the nursing home

 

industry.

 

     (g) One shall be an individual who meets any of the following

 

criteria:

 

     (i) The individual is a member of the governing board of a

 

school district, public school academy, or intermediate school

 

district.

 

     (ii) The individual is employed by a school district, a public

 

school academy, or an intermediate school district in an

 

administrative capacity.

 

     (iii) The individual is a member of, or is employed by, a

 

statewide association representing school board members or school

 

administrators.

 

     (h) One shall be a representative of the building trades.

 

     (i) One shall be a representative of persons who own a place

 

of public assemblage.

 

     (j) One shall be a representative of the flammable liquids

 

industry.

 

     (k) One shall be a representative of the liquefied petroleum

 

gas industry or the flammable compressed gases industry.

 

     (l) One shall be a representative of the chemical manufacturing

 

industry.

 

     (m) One shall be a licensed electrical contractor or master

 

electrician.

 

     (n) One shall be a representative of persons who own adult

 

foster care facilities.

 

     (o) One shall be the state fire marshal or an employee of the

 

bureau designated by the state fire marshal.

 

     (2) Board members, other than the state fire marshal or the

 

state fire marshal's designee, shall be appointed by the governor

 

with the advice and consent of the senate. The members appointed by

 

the governor shall have the qualifications the governor considers

 

essential to enable them to competently decide matters of fire

 

prevention and fire safety for the establishments, or facilities,

 

and activities specified in section 3c(1) and (2).

 

     (3) Each member appointed by the governor before January 1,

 

2007 shall be appointed for a term of 3 years. Each member

 

appointed by the governor after December 31, 2006 shall be

 

appointed for a term of 4 years. Continued absence of a member

 

appointed by the governor from regular or special meetings of the

 

board makes the member subject to immediate removal by the

 

governor.

 

     (4) A majority of the members appointed to and serving on the

 

board constitutes a quorum. Affirmative votes of at least a

 

majority of the members appointed to and serving on the board is

 

required to decide any question, action, or business of the board,

 

except that a hearing of a contested case may be conducted before 3

 

board members who, after hearing the facts and considering the

 

evidence and testimony, shall recommend the action the board should

 

take.

 

     (5) The governor shall designate 1 of the members of the board

 

to serve as chairperson of the board at the pleasure of the

 

governor. Annually, the board may elect from its members a vice-

 

chairperson of the board. Each year, the board shall hold not fewer

 

than 4 regular meetings. Special meetings may be called by the

 

chairperson or upon written request of 5 board members. Meetings

 

shall be held at a location in this state designated by the

 

chairperson.

 

     (6) The business of the board shall be conducted at a public

 

meeting that complies with the open meetings act, 1976 PA 267, MCL

 

15.261 to 15.275.

 

     (7) Each appointed member of the board is entitled to actual

 

and necessary expenses incurred in the performance of his or her

 

duties as a member of the board, subject to available

 

appropriations.

 

     (8) The board shall keep minutes of its proceedings, showing

 

the vote of each member on each proposition or question, or

 

indicating if a member is absent or fails to vote. A record of

 

board action and business shall be made and maintained.

 

     (9) Except as provided in subsections (10) and (11), a writing

 

prepared, owned, used, in the possession of, or retained by the

 

board, the department, their agents, or others in the performance

 

of an official function under this act is subject to the freedom of

 

information act, 1976 PA 442, MCL 15.231 to 15.246.

 

     (10) A person regulated under this act may designate a report

 

or other information furnished to or obtained by the department,

 

its agents, or others under this act as being only for confidential

 

use by the department, its agents, or others in the performance of

 

an official function. If the department, its agents, or others

 

receive a request under section 5 of the freedom of information

 

act, 1976 PA 442, MCL 15.235, for a public record that includes

 

information designated as confidential or information obtained

 

under section 4, the department, its agents, or others shall notify

 

the person regulated under this act. The person regulated under

 

this act has 30 days after receipt of the notice to demonstrate to

 

the department, its agents, or others, that the information

 

designated as confidential or information obtained under section 4

 

constitutes a trade secret or confidential business information

 

that, if disclosed, may cause a competitive disadvantage. The

 

department, its agents, or others shall grant the request for the

 

information unless the person regulated under this act makes a

 

satisfactory demonstration to the department, its agents, or others

 

that disclosure of the information may cause a competitive

 

disadvantage. If a dispute occurs between the person regulated

 

under this act and the person requesting the information, the board

 

shall make a final decision to grant or deny the request.

 

     (11) This act does not prevent the use of a record or

 

information by the department to compile or publish reports,

 

analyses, or summaries of general conditions for the prevention of

 

fire, or the use of a record or information to administer or

 

enforce federal, state, or local fire prevention laws. However, a

 

report, analysis, summary, or use shall not directly or indirectly

 

publicly reveal information otherwise confidential under this

 

section.

 

     Sec. 3c. (1) The bureau shall promulgate rules as provided

 

under section 2a and administer rules pertaining to fire safety

 

requirements for the construction, operation, or maintenance of all

 

of the following:

 

     (a) Schools and dormitories, including state supported

 

schools, colleges, and universities and school, college, and

 

university dormitories.

 

     (b) Buildings owned or leased by this state.

 

     (c) A health facility or agency as defined in section 20106 of

 

the public health code, 1978 PA 368, MCL 333.20106.

 

     (d) Places of public assemblage.

 

     (e) Penal facilities as described in section 62 of the

 

corrections code of 1953, 1953 PA 232, MCL 791.262.

 

     (f) Mental health facilities as described in section 135 of

 

the mental health code, 1974 PA 258, MCL 330.1135.

 

     (2) The bureau shall promulgate other rules as provided in

 

section 2a as necessary to implement this act.

 

     (3) Consistent with Executive Reorganization Order Nos. 1997-2

 

and 1998-2, MCL 29.451 and 29.461, the department of environmental

 

quality shall promulgate rules pertaining to all of the following:

 

     (g) (a) Fire safety requirements for the construction,

 

operation, and maintenance of dry Dry cleaning establishments that

 

use flammable liquids.

 

     (2) (b) The bureau shall promulgate as provided under section

 

2a and administer rules pertaining to the storage, transportation,

 

and handling of liquefied petroleum gas and for the storage,

 

noncommercial transportation, and handling of other hazardous

 

materials to the extent authorized by federal law.

 

     (3) (4) Rules promulgated under this act shall be consistent

 

with recognized good practice as evidenced by standards adopted by

 

nationally recognized authorities in the field of fire protection.

 

Experiences identified in the fire incident reports received by

 

this state may be considered by the board and the bureau when

 

reviewing rules promulgated or considering promulgation of new

 

rules under this act.

 

     (4) (5) The bureau shall promulgate rules as provided under

 

section 2a and administer rules for the certification of a firm

 

that does any of the following:

 

     (a) Installs, modifies, or documents the installation or

 

modification of a fire suppression system.

 

     (b) Documents the installation or modification of a fire alarm

 

system.

 

     (c) Performs testing, servicing, inspections, or maintenance

 

that has not been exempted by the rules promulgated by the bureau

 

on fire alarm systems or fire suppression systems.

 

     (d) Submits a drawing, plan, or specification of a fire alarm

 

system or fire suppression system to the bureau for approval under

 

section 29, except an architect or professional engineer licensed

 

under article 20 of the occupational code, 1980 PA 299, MCL

 

339.2001 to 339.2014.

 

     (5) The bureau shall promulgate as provided under section 2a

 

and administer other rules as necessary to implement this act.

 

     (6) A person may request a variation of the application of a

 

rule promulgated under this act by applying to the state fire

 

marshal. The state fire marshal may make a variation upon a finding

 

that the variation does not result in a hazard to life or property.

 

The finding shall be transmitted to the person requesting the

 

variation and entered into the records of the bureau. If the

 

variation requested concerns a building, the finding shall also be

 

transmitted to the governing body of the city, village, or township

 

in which the building is located.

 

     (7) The entire board, except as provided in section 3b(4),

 

shall act as a hearing body in accordance with the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to

 

review and decide a contested case or a ruling of the state fire

 

marshal interpreting or applying the rules. After a hearing, the

 

board may vary the application of a rule or may modify the ruling

 

or interpretation of the state fire marshal if the enforcement of

 

the rule or ruling or interpretation would do manifest injustice

 

and would be contrary to the spirit and purpose of the rules or the

 

public interest.

 

     (8) A decision of the board to vary the application of a rule,

 

or to modify or change a ruling of the state fire marshal, shall

 

specify the variation , or modification , or change made, the

 

conditions upon which it is made, and the reasons for the variation

 

, or modification. , or change.

 

     (9) If a local school board passed a resolution calling for an

 

election on the question of the issuance of bonds for the

 

construction or remodeling of or an addition to a school, if the

 

election was held not later than September 28, 1989 and approved

 

issuance of the bonds, and if construction was reasonably

 

anticipated to begin not later than June 30, 1990, the

 

construction, remodeling, or addition to that school was exempt

 

from the rules promulgated by the fire safety board entitled

 

"schools, colleges, and universities", former R 29.301 to R 29.321

 

of the Michigan administrative code, filed with the secretary of

 

state on July 14, 1989 and effective on July 29, 1989. The

 

construction, remodeling, or addition to that school was, however,

 

subject to the standards contained in rules promulgated by the

 

board entitled "school fire safety", former R 29.1 to R 29.298 of

 

the Michigan administrative code.

 

     Sec. 5c. (1) A person shall not establish or maintain 1 or

 

more of the following without obtaining a certificate from the

 

department of environmental quality bureau:

 

     (a) A flammable compressed gas or liquefied petroleum gas

 

container filling location.

 

     (b) An aboveground flammable compressed gas or liquefied

 

petroleum gas storage location that has a tank with a water

 

capacity of more than 2,000 gallons or has 2 or more tanks with an

 

aggregate water capacity of more than 4,000 gallons.

 

     (c) An aboveground storage location for a flammable liquid or

 

combustible liquid that has an individual tank storage capacity of

 

more than 1,100 gallons. Crude petroleum collection tanks that

 

receive crude petroleum directly from a wellhead and are certified

 

by the department of environmental quality bureau may be maintained

 

without further inspection by the department of environmental

 

quality bureau, except as the department of environmental quality

 

bureau considers necessary to assure ensure compliance with this

 

act.

 

     (2) The department of environmental quality bureau may require

 

that a person obtain approval from the department of environmental

 

quality bureau before the installation of an aboveground storage

 

tank for flammable or combustible liquids that has an individual

 

tank storage capacity of 1,100 gallons or less. However, this

 

requirement does not apply to farm location storage tanks of 1,100

 

gallons or less capacity used for storing motor fuel for

 

noncommercial purposes or heating oil for consumptive use on the

 

premises where stored.

 

     Sec. 5d. (1) The certificates specified in section 5c shall be

 

issued every 3 years by the department of environmental quality

 

after the department of environmental quality bureau determines by

 

an inspection that the firm location is in satisfactory compliance

 

with this act. The department of environmental quality bureau may

 

authorize a firm specified in section 5c to conduct inspections

 

required in this section after application to the department of

 

environmental quality bureau and payment of an annual fee of

 

$1,000.00. Upon annual determination by the department of

 

environmental quality bureau that the firm is in satisfactory

 

compliance with this act, the department of environmental quality

 

bureau may grant the authorization. This authorization may be

 

revoked by the department of environmental quality bureau for

 

cause. Firms authorized to conduct inspections required in this

 

section are exempt from the fees provided in subsection (2). The

 

department of environmental quality bureau may review procedures

 

utilized by the firm to assure ensure compliance with this act.

 

     (2) Each firm required to be certified under section 5c shall

 

submit an installation application to the department of

 

environmental quality bureau according to rules promulgated under

 

this act. Each firm shall pay a fee of $203.00 per tank. This fee

 

shall be submitted with the installation application to the

 

department of environmental quality bureau. The department of

 

environmental quality bureau shall not approve an installation

 

application unless this fee has been paid as required in this

 

subsection. Payment of this fee shall waive waives the first annual

 

storage tank fee required in this subsection. The owner of a firm

 

specified in section 5c shall pay an annual fee of $61.50 for each

 

tank located at each storage or filling location specified in

 

section 5c. Fees required by this subsection shall be paid before

 

the issuance of a certificate when storage tanks operated by firms

 

described in section 5c are used and until such tanks are closed or

 

removed, and notification of the closure or removal is received by

 

the department of environmental quality bureau. Owners of firms

 

described in section 5c shall notify the department of

 

environmental quality bureau of the closure or removal of storage

 

tanks within 30 days after closure or removal on a form provided by

 

the department of environmental quality bureau. Storage tanks that

 

receive crude petroleum directly from a wellhead are exempt from

 

fees under this section.

 

     (3) Beginning October 1, 1990, a 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

 

aboveground storage tank system.

 

     (4) The fees specified in subsection (2) shall be collected

 

and deposited into the hazardous materials storage tank regulatory

 

enforcement fund created in subsection (5).

 

     (5) The hazardous materials storage tank regulatory

 

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

 

receive money as provided in this act 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. The department

 

shall be the administrator of the fund for auditing purposes. Money

 

in the fund shall be used only by the department of environmental

 

quality bureau to enforce this act and the rules promulgated under

 

this act pertaining to the delivery, dispensing, noncommercial

 

transportation, or storage of hazardous materials. If at the close

 

of any fiscal year the amount of money in the fund exceeds

 

$1,000,000.00, the department of environmental quality bureau shall

 

not collect a fee for the following year for the fund from existing

 

storage tank systems. After the 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 $250,000.00. The department of treasury shall, before November

 

1 of each year, notify the department of environmental quality

 

bureau of the balance in the fund at the close of the preceding

 

fiscal year.

 

     Sec. 5e. Upon a finding of noncompliance with this act, or

 

rules promulgated pursuant to this act, the state fire marshal or

 

the director of the department of environmental quality may revoke

 

or deny the renewal of a certificate obtained under section 5c and

 

order the person or firm required to be certified to cease all or

 

part of its operation until the firm is in compliance.

 

     Sec. 5i. (1) A firm that is engaged in a dry cleaning

 

operation that uses a flammable liquid shall not establish or

 

maintain such an operation at a location unless the firm obtains a

 

certificate for that location from the department of environmental

 

quality for that location bureau.

 

     (2) A certificate shall not be issued until payment is made of

 

a fee of is paid. The fee is $15.00 for the first dry cleaning

 

machine in the firm's location and $6.00 for each additional dry

 

cleaning machine in the firm's location. Beginning October 1, 1981,

 

the fees imposed by this section shall be adjusted each year by the

 

annual average percentage increase or decrease in the Detroit

 

consumer price index—all items. The adjustment shall be made by

 

multiplying the annual average percentage increase or decrease in

 

the Detroit consumer price index for the prior calendar year by the

 

current fee as adjusted by this subsection. The resultant product

 

shall be added to the current fee as adjusted by this subsection

 

and then rounded off to the nearest half dollar which shall be the

 

new fee.

 

     (3) This section applies when a class IV installation is

 

operated in the same building or establishment as other classes of

 

dry cleaning installations.

 

     (4) As used in this section, "class IV installation" means

 

that term as defined in section 13301 of the public health code,

 

1978 PA 368, MCL 333.13301.

 

     Sec. 5j. (1) Each terminal at which a tank filled by pipeline

 

is located shall comply with all of the following requirements:

 

     (a) Each The terminal shall be equipped with a high level

 

alarm system.

 

     (b) The high level alarm system shall be set to activate at a

 

predetermined level in each tank filled by pipeline at the terminal

 

to allow sufficient time for the flow of the flammable liquid to be

 

shut down before the tank overfills. The level shall be determined

 

by the maximum filling rate expected and the time required for

 

personnel to take appropriate action to stop the flow of the

 

flammable liquid.

 

     (c) The high level alarm system shall be maintained in

 

accordance with its manufacturer's recommendations.

 

     (d) The high level alarm system shall be tested every 3 months

 

by the owner of the terminal and a record of the test shall be

 

maintained.

 

     (2) A device shall not be used in a high level alarm system

 

described in subsection (1) unless the device has been tested for

 

its intended use by a nationally recognized testing laboratory as

 

determined by the director of the department of environmental

 

quality state fire marshal.

 

     (3) Plans and specifications for a high level alarm system

 

described in subsection (1) shall be submitted to the director of

 

the department of environmental quality state fire marshal for

 

approval before the installation of the system.

 

     (4) Upon the completion of the installation of a high level

 

alarm system described in subsection (1), the director of the

 

department of environmental quality state fire marshal shall be

 

notified and a final inspection shall be made to determine if the

 

installation is in compliance with this section.

 

     (5) The owner of a terminal described in subsection (1) shall

 

develop a fire and emergency plan in conjunction with the organized

 

fire department having jurisdiction over the terminal.

 

     Sec. 5n. A firm shall not deliver a flammable liquid that has

 

a flash point below 100 degrees Fahrenheit directly into an above

 

ground liquid storage tank by pipeline at a remote control terminal

 

unless the firm does each of the following:

 

     (a) Furnishes to the director of the department of

 

environmental quality, and receives the Receives approval from the

 

director of the department of environmental quality state fire

 

marshal of , a detailed description of the firm's capabilities and

 

procedures to deliver a flammable liquid by remote control to an

 

above ground liquid storage tank.

 

     (b) Furnishes to the director of the department of

 

environmental quality, and receives the Receives approval from the

 

director of the department of environmental quality state fire

 

marshal of , a description of the firm's procedures to be followed

 

if an above ground storage tank is overfilled.

 

     Sec. 5o. (1) The director of the department of environmental

 

quality state fire marshal may, at the request of the organized

 

fire department having jurisdiction over a terminal, require

 

additional safety equipment and procedures when the public safety

 

is endangered.

 

     (2) A person may request a variation of the requirements of

 

section 5j, 5k, 5l, 5m, or 5n, or subsection (1), under the

 

procedures provided in section 3c.

 

     (3) A local unit of government shall not enact an ordinance or

 

ordinances more restrictive than the requirements included in

 

sections 5j to 5n.

 

     Sec. 5p. (1) A person who is an employer under the Michigan

 

occupational safety and health act, 1974 PA 154, MCL 408.1001 to

 

408.1094, shall provide, the information described in this section

 

upon written request by the fire chief for the jurisdiction where

 

the person is located, .

 

     (2) A person subject to this section shall, subject to

 

subsection (1), provide a copy of a list required to be developed

 

by the standard incorporated by reference in section 14a of the

 

Michigan occupational safety and health act, 1974 PA 154, MCL

 

408.1014a, and a material safety data sheet for each hazardous

 

chemical identified on the list. The person shall provide the

 

information within 10 working days after receipt of the request.

 

     (2) (3) Except as provided in subsection (4) (3), a person

 

subject to this section shall provide a description of the quantity

 

and location of any hazardous chemical specified by the fire chief

 

for the jurisdiction where the person is located within 10 working

 

days after receipt of a written request made by the fire chief

 

after review of a list provided under subsection (2) (1). Upon

 

request, the fire chief may extend the time to provide the

 

information described in this subsection by 5 working business

 

days. The information obtained by a fire chief under this

 

subsection may be made available to a public official, agency, or

 

employee, but is exempt from disclosure under the freedom of

 

information act, 1976 PA 442, MCL 15.231 to 15.246.

 

     (3) (4) The department of environmental quality bureau may

 

promulgate rules to exempt from the application of subsection (3)

 

(2) de minimis and portable quantities of hazardous chemicals.

 

     (4) (5) A person subject to this section shall provide to the

 

fire chief for the jurisdiction where the person is located a

 

written update of information required by this section when there

 

is a significant change relating to fire hazards in the quantity,

 

location, or presence of hazardous chemicals in the person's

 

workplace.

 

     (5) (6) An ordinance, law, rule, regulation, policy, or

 

practice of a city, township, village, county, governmental

 

authority created by statute, or other political subdivision of the

 

state shall not require that a person who is an employer under the

 

Michigan occupational safety and health act, 1974 PA 154, MCL

 

408.1001 to 408.1094, provide to a fire chief information regarding

 

hazardous chemicals in the workplace in any other manner or to any

 

greater extent than is required by this section or rules authorized

 

by this section.

 

     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 bureau of fire services

 

or 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 the

 

fire prevention code, 1941 PA 207, MCL 29.1 to 29.33. However, the

 

court may allow the action or other proceeding to be maintained by

 

or against the bureau of fire services or state fire marshal,

 

respectively.

 

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

 

commenced by this state.

 

     (3) Any order, certificate, approval, or authorization issued

 

by the department of environmental quality or the director of the

 

department of environmental quality under the fire prevention code,

 

1941 PA 207, MCL 29.1 to 29.33, before the effective date of this

 

amendatory act shall continue in effect until it expires or is

 

amended, suspended, or revoked by the bureau of fire services or

 

state fire marshal, respectively.

 

     (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. The director of the department

 

of environmental quality and the state fire marshal may enter a

 

memorandum of understanding to implement this subsection.