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.