COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 279
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Originating in the Committee on Energy, Industry and Mining;
reported March 5, 2009.]
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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) A facility which is listed in the rules promulgated by the
director pursuant to subsection (h) of this section, 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, 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 a significant unplanned event
including, but not limited to, an explosion, fire or release at an
industrial facility that has the reasonable potential to harm the
public health or cause reasonable public concern.
(c)
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. 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 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 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 (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 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 legislative rules
identifying a list of industrial facilities that are subject to the
requirements of this section. In making legislative rules for an
industrial facility as defined in subsection (b), subdivision (1),
paragraph (A) of this section, the director may not promulgate
emergency legislative rules, but may authorize emergency
legislative rules for a facility as defined in paragraph (B). 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.