Senate Bill No. 279
(By Senators Tomblin (Mr. President) and Caruth, By Request of
the Executive)
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[Introduced February 17, 2009; referred to the Committee on
Energy, Industry and Mining; then to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §15-5B-3a, relating
generally to industrial accidents and emergencies; requiring
the reporting of certain industrial emergencies to the Mine
and Industrial Accident Emergency Operations Center or local
emergency telephone system operators; requiring industrial
facilities to provide certain information to state and local
emergency responders; granting state and local officials
access to the person or persons charged with managing an
industrial emergency and certain areas affected by the
emergency; authorizing the Director of the Division of
Homeland Security and Emergency Management to promulgate
legislative rules establishing a list of facilities subject to
the requirements of this section; providing for civil penalties; and authorizing the promulgation of legislative
rules.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §15-5B-3a, to read as
follows:
ARTICLE 5B. MINE AND INDUSTRIAL ACCIDENT RAPID RESPONSE SYSTEM.
§15-5B-3a
.
Industrial facility emergency event notification and
access.
(a) (1) The Legislature finds that it is in the public
interest to ensure that appropriate state and local officials are
provided with timely notice of significant industrial accidents,
including, but not limited to, unplanned fires, explosions and
releases. To that end, there is a need to require the reporting of
preliminary information concerning industrial accidents to state
and local emergency responders. During the 2006 regular session,
the Legislature created the Mine and Industrial Accident Rapid
Response System to efficiently coordinate timely emergency response
efforts to mine and industrial accidents and created the Mine and
Industrial Accident Emergency Operations Center to serve as the
official and primary twenty-four-hours-a-day communications center
for dealing with mine and industrial accidents. The Legislature
also mandated, during the 2006 regular session, that a study be
conducted into the feasability of expanding the emergency coverage provided by the Mine and Industrial Accident Rapid Response System
to other emergencies. The study concluded, in part, that there are
incidents of significance when state resources are needed and an
immediate notification to a central state emergency response agency
is required.
(2) The Legislature therefore finds that it is in the public
interest to require industrial facilities to provide timely notice
of significant industrial accidents to the Mine and Industrial
Accident Emergency Operations Center.
(3) The Legislature further finds that, in addition to
preliminary notice of significant industrial accidents, an ongoing
exchange of information between industrial facilities and state and
local emergency responders is needed to provide appropriate public
assistance where necessary and to inform the public of dangers or
hazards caused by industrial accidents. In order to facilitate the
flow of timely information, state and local emergency responders
require authorized access to the person or persons charged with
managing industrial emergencies, to the place or places where such
persons are located and to certain areas within industrial
facilities.
(b)
Definitions. -- Unless the context in which used clearly
requires a different meaning, the following words and phrases as
used in this section have the following meanings:
(1) "Industrial facility" means:
(A) Any factory, mill, plant or refinery, other than a coal
facility, including the property upon which a factory, mill, plant
or refinery is located and any buildings appurtenant thereto or
associated therewith, including storage facilities, that has a
reasonable potential to have an emergency event; or
(B) Any facility that is required to submit a risk management
plan to the United States Environmental Protection Agency pursuant
to regulations promulgated under Section 112(r) of the Clean Air
Act of 1990, 42 U.S.C. §7412(r), including the property upon which
the facility is located and any buildings appurtenant thereto or
associated therewith, including storage facilities.
(2) "Appropriate state and local officials" means the Governor
or his or her representative, the Director of the Division of
Homeland Security and Emergency Management, a representative
designated by the Director of the Division of Homeland Security and
Emergency Management who has been trained and qualified by the
Federal Emergency Management Agency's ("FEMA") National Incident
Management System ("NIMS") program, and/or a representative of a
local emergency management agency who has been trained and
qualified by FEMA's NIMS program.
(3) "Director" means the Director of the Division of Homeland
Security and Emergency Management.
(4) "Emergency event" means an unplanned event including, but
not limited to, an unplanned explosion, fire or release at an industrial facility that has the reasonable potential to harm the
public health or cause public concern.
(c)
Reporting requirement. --
(1) Within fifteen minutes of ascertaining the occurrence of
an emergency event at an industrial facility, the industrial
facility shall contact the Mine and Industrial Accident Emergency
Operations Center by telephone at the statewide telephone number
established by the director or shall contact a local emergency
telephone system, as defined in article six, chapter twenty-four of
this code, by telephone at the number established by the system to
communicate the occurrence of the emergency event. The industrial
facility shall provide the following information:
(A) The name and title of the individual making the report;
(B) The name and address of the facility; and
(C) Confirmation that an emergency event has occurred.
(2) If the caller has ready access to the following
information he or she may also provide:
(A) Preliminary information concerning the nature and extent
of the emergency event, including any information that concerns the
existence or nonexistence of potential threats to the public
health;
(B) In the event of an unplanned release, preliminary
information regarding the type of substance and the estimated
amount released, if known; and
(C) The name, title and contact information of the individual
designated to serve as a contact person on behalf of the industrial
facility.
(3) Any call made pursuant to this subsection may be recorded
by the agency receiving the call. In the event that an industrial
facility contacts a local emergency telephone system to report an
emergency event, the local emergency telephone system shall
immediately forward all information received to the Mine and
Industrial Accident Emergency Operations Center.
(d)
Event communications. -- As soon as practicable after
providing the notice required under subsection (c) above, the
industrial facility shall implement a communications system
designed to provide timely information to appropriate state and
local officials. At a minimum, the industrial facility shall
designate a person to serve as a contact for state and local
emergency responders. Any person so designated shall, upon the
request of an appropriate state or local official, provide such
additional information as may be known that may be necessary to
assess the extent of the emergency or to provide appropriate public
assistance.
(e)
Authorized access to public officials. -- As soon as
practicable after the occurrence of an emergency event, the
industrial facility shall, upon request, provide appropriate state
and local officials with timely authorized access to the person or persons charged with managing the event on behalf of the facility
and the area(s) where the emergency event is being managed or the
industrial facility's response to the emergency event is being
coordinated. The industrial facility shall also provide
appropriate state and local officials with timely authorized access
to any areas affected by the emergency event:
Provided, That the
industrial facility has determined those areas to be reasonably
safe.
(f)
Civil penalties. --
(1) The director shall impose a civil penalty of $100,000 on
the operator or operators of an industrial facility if he or she
determines that the industrial facility failed to comply with the
reporting requirement of subsection (c) of this section. No
penalty shall be imposed upon an industrial facility giving notice
pursuant to this section for unintentionally providing inaccurate
or incomplete preliminary information to the Mine and Industrial
Accident Emergency Operations Center or local emergency telephone
system:
Provided, That the industrial facility implemented
reasonable efforts to provide the most accurate and complete
preliminary information possible:
Provided however, That the
industrial facility implemented reasonable efforts to correct
inaccurate or incomplete preliminary information reported to the
Mine and Industrial Accident Emergency Operations Center or local
emergency telephone system once such information was determined by the industrial facility to be inaccurate or incomplete.
(2) The director shall impose a civil penalty on the operator
or operators of an industrial facility if he or she determines that
the industrial facility failed to comply with the communication or
access requirements of subsections (d) and (e) of this section.
Application of this subdivision and amounts levied as civil
penalties by the director shall be determined in accordance with
legislative rules promulgated pursuant to article three, chapter
twenty-nine-a of this code.
(3) The director may waive
the imposition of a civil penalty
imposed under this section:
Provided, That he or she finds that
the failure to comply with the requirements of this section was
caused by circumstances wholly outside the control of the
industrial facility.
(g) Nothing in this section may be construed to:
(1) Relieve an industrial facility from any other reporting or
notification requirement imposed under state or federal law;
(2) Limit in any way the jurisdiction of state and local
emergency responders;
(3) Limit the police power authority of the Governor; or
(4) Limit the authority of the State Fire Marshal.
(h) The director, working in cooperation with the Department
of Environmental Protection, the State Fire Marshal and the State
Emergency Response Commission, shall promulgate rules identifying a list of industrial facilities that are subject to the
requirements of this section. The director shall provide notice of
the requirements of this section to each industrial facility so
listed.
(i) The Division of Homeland Security and Emergency Management
is authorized to promulgate rules, including emergency rules,
pursuant to the provisions of article three, chapter twenty-nine-a
of this code to implement the provisions of this section.
NOTE: The purpose of this bill is to provide state and local
emergency responders with notice of significant industrial
accidents, to require the reporting of such accidents, to provide
state and local officials with important information necessary to
facilitate a public response and to provide state and local
officials with access to certain areas within an industrial
facility affected by an emergency event.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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