ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 279
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Passed April 11, 2009; in effect ninety days from passage.]
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AN ACT
to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §15-5B-3a, relating
generally to industrial and railroad accidents and
emergencies; providing definitions; 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; requiring operators of railroad facilities in this
state to provide certain information to state and local
emergency responders in the event of a railroad accident or
emergency; granting state and local officials access to the
person or persons charged with managing an industrial or railroad emergency and certain areas affected by the
emergency; requiring state and local officials to timely
provide information related to public health, safety and
welfare regarding hazardous waste releases and other emergency
events; authorizing the Director of the Division of Homeland
Security and Emergency Management to promulgate emergency
legislative rules establishing a list of facilities subject to
the requirements of this section and establishing procedures;
providing for civil penalties;
requiring the collected moneys
to be deposited into the Hazardous Waste Emergency Response
Fund
; 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) 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 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; or
(B) A facility which is a 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, found by the director to be of a type to have a
reasonable potential to have an emergency event: Provided, That
before any facility may be subject to the provisions of this
section, the owner or operator of each facility must be placed on
actual written notice via certified mail, return receipt requested,
of the facility's inclusion thereon, as well as the requirements
imposed by the provisions of this section and any rules promulgated
thereunder: Provided, however, That the list required by the
provisions of this section shall be filed with the President of the
Senate and the Speaker of the House of Delegates by the first day
of the 2010 legislative session.
(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 explosion, a fire that cannot be contained
within fifteen minutes of discovery, the release of a reportable
quantity, as specified in 40 C. F. R. §302 (2009) or its
successor, of an extremely hazardous substance listed in the
appendices to 40 C. F. R. §355 (2009) or its successor, loss of
life or serious personal injury at an industrial facility:
Provided, That the director may, by promulgation of a legislative
rule, establish a higher threshold report level for a particular
extremely hazardous substance than is set in the aforementioned
Code of Federal Regulations citation.
(b) Reporting requirement. --
(1) Within fifteen minutes of the industrial facility
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: Provided, That if telephone communications fail
for any reason, the industrial facility shall contact local
emergency services in the most expeditious manner possible. 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) Notification that an emergency event has occurred.
(2) If the caller has ready access to the following
information, he or she shall also provide:
(A) Then-available 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 fire that cannot be contained
within fifteen minutes, explosion or release as defined in this
section, preliminary information regarding the type of substance
involved and, if a release, 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.
(c) Event communications. -- As soon as practicable after
providing the notice required under subsection (b) of this section,
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 known or subsequently known that may be
necessary to assess the extent of the emergency or to provide
appropriate public assistance.
(d) 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:
Provided, however, That within thirty minutes of obtaining
information that affects the public health, safety and welfare,
state and local officials shall notify the public of any hazardous
materials or events which may affect the area
.
(e) Civil penalties. --
(1) The director shall impose a civil penalty of up to
$100,000 on the industrial facility if he or she determines that the industrial facility failed to comply with the reporting
requirement of subsection (b) 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 (c) and (d) 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 outside the control of the industrial facility.
(4) All moneys collected pursuant to this section shall be
deposited in the Hazardous Waste Emergency Response Fund, as
established pursuant to section three, article nineteen, chapter
twenty-two of this code.
(f) 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.
(g) The director, working in cooperation with the Department
of Environmental Protection, the State Fire Marshal and the State
Emergency Response Commission, shall promulgate legislative rules
identifying a list of industrial facilities that are subject to the
requirements of this section.
(h) 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.