Senate Bill No. 331
(By Senator Humphreys)
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[Introduced February 11, 1994; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections one, two, three and five,
article five-a, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to the West Virginia emergency response and
community right-to-know act generally; requiring disclosure
of investigations of major industrial accidents; defining
the term "major industrial accident"; requiring access to
personnel, reports and sites involved in industrial
accidents; and providing that the commission may investigate
major industrial accidents.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three and five, article five-a,
chapter fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 5A. WEST VIRGINIA EMERGENCY RESPONSE AND COMMUNITY
RIGHT-TO-KNOW ACT.
§15-5A-1. Declaration of purpose.
The Legislature recognizes that Title III of the Superfund
Amendments and Reauthorization Act of 1986: The Emergency
Planning and Community Right-to-Know Act of 1986, P.L. 99-499,
enacted by the United States congress and signed into law on the
seventeenth day of October, one thousand nine hundred eighty-six,
has two primary objectives, i.e., to require states and local
communities to develop comprehensive emergency response plans,
and to establish a program for the collection and dissemination
to the public of information on certain hazardous chemicals and
toxic chemicals in their communities, with full and complete
disclosure of the findings of any investigation into any major
industrial accident including investigations by the owners or
managers of any private industry involved in an industrial
accident.
The purpose of this article is to enable and authorize this
state to fulfill its obligations under the federal statute.
§15-5A-2. Jurisdiction of West Virginia emergency response
commission.
The state emergency response commission shall have within
its jurisdiction and supervision the preparation and
implementation of comprehensive emergency response plans for each
designated emergency planning district within the state so as to
comply with the requirements of 42 U.S.C. §11001, et seq. The
commission, through the office of emergency services, shall also
be responsible for providing the citizens of this state withinformation in accordance with the requirements of 42 U.S.C.
§11001, et seq., and this article. The commission shall ensure
that, when any person is either killed or injured to the extent
of requiring hospitalization as a consequence of an industrial
accident, the results of any investigation into the cause of the
accident are made public within a reasonable period of time after
completion of the investigation. For the purposes of this
section, disclosure is required for an investigation of any major
accident, whether conducted in-house by the affected industry in
which it occurred, by an independent entity or by a state agency,
and when required by federal law, disclosure by the investigating
federal agency. All state agencies shall cooperate with and
assist the commission in all commission duties and
responsibilities.
If the state emergency response commission conducts a study
of an industrial accident, the commission shall be allowed access
to all areas of the facility, plant personnel relevant to the
accident including environmental and safety personnel,
environmental and safety audits and studies, toxic use reduction
plans, economic sustainability studies, plant safety manuals,
hazard communication program, risk analysis with plum maps,
federal required inventories, process flow charts and process
hazard reviews.
Disclosure is not required for routine investigations of
minor industrial accidents which do not threaten the public or
which cause only minor injury to employees or other persons.
§15-5A-3. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Best management practices" means any practices made
applicable to a facility pursuant to section 304(e) of the Clean
Water Act and the federal regulations promulgated thereunder.
(b) "Clean Water Act" means the Federal Water Pollution
Control Act, P.L. 92-500, enacted on the eighteenth day of
October, one thousand nine hundred seventy-two, and all
subsequent amendments to that act.
(c) "Code" means the code of West Virginia, one thousand
nine hundred thirty-one, as amended.
(d) "Commission" means the state emergency response
commission.
(e) "Committee" means a local emergency planning committee.
(f) "Emergency planning district" means a geographic area
designated by the commission as requiring its own comprehensive
emergency response plan. The commission may designate existing
political subdivisions or multijurisdictional planning
organizations as such districts.
(g) "Facility" means a facility subject to the provisions of
42 U.S.C. §11001, et seq., and this article, pursuant to the
provisions of 42 U.S.C. §11002.
(h) "Local emergency planning committee" means that group of
persons, for each emergency planning district, who are appointed
by the state emergency response commission in accordance with theprovisions of section seven of this article.
(i) "Major Accident" or "major industrial accident" means an
accident in which a person is killed or injured sufficiently to
require hospitalization for three or more days as a consequence
of the industrial accident. It also includes a significant
accidental release of a regulated substance that has caused or
has potential to cause off-site consequences such as death,
injury or adverse health effects to humans or injure the
environment or cause the public to shelter in place or the public
be evacuated to avoid these consequences.
(i) (j) "Resource Conservation and Recovery Act" means P.L.
94-580, enacted on the twenty-first day of October, one thousand
nine hundred seventy-six, and all subsequent amendments to that
act.
(j) (k) "Spill prevention control and countermeasure plan"
means any plan developed pursuant to section 112.3 of title 40 of
the code of federal regulations.
(k) (l) "Title III" means the Emergency Planning and
Community Right-to-Know Act of 1986, P.L. 99-499.
§15-5A-5. Powers and duties of the commission.
The commission shall have and may exercise the following
powers and authority and shall perform the following duties:
(a) Designate emergency planning districts;
(b) Appoint local emergency planning committees for each
emergency planning district and supervise and coordinate the
activities of such committees;
(c) Revise any designations and appointments made under
subsections (a) and (b) of this section as it deems appropriate:
Provided, That any interested person may petition the state
emergency response commission to modify the membership of a local
emergency planning commission;
(d) Designate, if necessary, additional facilities which
shall be subject to the requirements of this article, provided
such designation is made after public notice and opportunity for
comment as provided under article three, chapter twenty-nine-a of
the code;
(e) Review the emergency response plans submitted by the
local emergency planning committees and make recommendations to
the local committees on revisions of the plan that may be
necessary to ensure coordination of such plan with the plans of
other emergency planning districts and other existing state and
local emergency response plans;
(f) Enter into cooperative agreements with other state
agencies designating specific responsibilities to be performed by
such state agencies to implement the provisions of this article;
(g) Promulgate procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
establishing rules of practice before the commission;
(h) Promulgate procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
establishing procedures for receiving and processing requests
from the public for information in accordance with the provisionsof 42 U.S.C. §11001, et seq., and this article, and prescribing
forms and instructions for requesting such information;
(i) Promulgate procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
prescribing forms and instructions for the submission and receipt
of confidential information;
(j) Promulgate rules establishing the following fees which
shall be deposited in a special account for the administration of
this act and which shall be reasonably calculated to recover the
necessary expenses incurred by the office of emergency services
in the administration of this article:
(1) An emergency planning notification fee not to exceed one
hundred dollars to be paid by a facility when it makes the
emergency planning notification required under SARA, Title III,
sections 301 through 303;
(2) An inventory form fee not to exceed one hundred dollars
to be paid annually by a facility when it submits the emergency
and hazardous chemical inventory forms or material safety data
sheet required under SARA, Title III, sections 311 and 312; and
(3) A surcharge fee not to exceed twenty percent of the fee
otherwise payable to be paid by facilities which fail to pay the
fees in paragraphs (1) and (2) in a timely manner;
(k) Establish an emergency planning grant program to be
administered by the commission. The grant programs will be
funded by fees collected to administer this act pursuant to
subdivision (j) of this section. The commission shall promulgaterules which establish the method of awarding such grants to local
emergency planning committees to assist them in performing their
responsibilities under this article; and
(l) Promulgate legislative rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code
necessary to implement the provisions of this article;
(m) The chairman of the commission may order a facility
owner or operator to comply with the requirements of applicable
federal law, this article and any rules or regulations
promulgated thereunder. When the chairman has reasonable cause
to believe that there exists a failure to comply with the
provisions of applicable federal law, this article or any rule or
regulation promulgated thereunder or any order entered by the
chairman, he may request the attorney general to commence an
action for civil penalties, injunctive relief or other
appropriate relief to enforce such provisions, rules and
regulations or order. Such action may be brought in any federal
district court having jurisdiction, or in the circuit court of
Kanawha County or the county where the facility or a major
portion thereof is located; and
(n) Undertake or cause to be undertaken investigations of
major industrial accidents and disclose the findings of these
investigations to the public.
NOTE: The purpose of this bill is to amend the West
Virginia Emergency Response and Community Right-To-Know Act to
require disclosure of investigations of major industrialaccidents. The bill requires that the state emergency response
commission be given access to personnel, reports and sites
involved in industrial accidents when undertaking industrial
accident investigations and it provides that the commission may
investigate major industrial accidents.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.