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SB279 SUB1 Senate Bill 279 History

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SB279 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 279

(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)

____________

[Originating in the Committee on Energy, Industry and Mining;

reported March 5, 2009.]

____________



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.
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