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Introduced Version House Bill 4530 History

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Key: Green = existing Code. Red = new code to be enacted
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H. B. 4530

 

         (By Delegates Lane, Raines and McCuskey)

         [Introduced February 14, 2014; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

 

A BILL to amend and reenact §15-5B-3a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto eleven new sections, designated §22-26-10, §22-26-11, §22-26-12, §22-26-13, §22-26-14, §22-26-15, §22-26-16, §22-26-17, §22-26-18, §22-26-19 and §22-26-20, all relating to creating an aboveground storage tank registry; creating the Industrial Accident Citizen's Protection Fund; creating a bond requirement, increased bonding requirements and a voucher for persons residing in the counties affected by the recent water emergency; providing health screening; requiring agency review, revision, and reporting concerning rules made by each state agency; requiring the implementation of recommendations from United States Chemical Safety Board; allowing citizen suits to enforce provisions; setting a baseline of severance tax revenue for purposes of future tax severance allocation; creating West Virginia Safe Water Fund; providing legislative intent and permissible uses of distributed revenues; specifying duties of State Treasurer and State Tax Commissioner; allowing audits and rulemaking; setting a baseline of oil and natural gas severance tax revenue collections; providing for the distribution of funds collected in excess of that baseline; providing initial funding of the West Virginia Safe Water Fund to consist of twenty-five percent of excess proceeds from oil and natural gas severance taxes; expressing legislative intent not to encumber, spend, promise or otherwise use any interest from the West Virginia Safe Water Fund for a term of six years following the creation of the West Virginia Safe Water Fund; expressing legislative intent that the principal of the West Virginia Future Fund be inviolable and not be encumbered, spent, promised or otherwise disturbed; requiring moneys to be expended solely for improving and protecting safe water infrastructure; providing for secondary intake and raw water storage requirements; and requiring the Public Service Commission to study interconnectivity of water systems.

Be it enacted by the Legislature of West Virginia:

    That §15-5B-3a of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto eleven new sections, designated §22-26-10, §22-26-11, §22-26-12, §22-26-13, §22-26-14, §22-26-15, §22-26-16, §22-26-17, §22-26-18, §22-26-19 and §22-26-20, all to read as follows:

CHAPTER 15. PUBLIC SAFETY.

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, chemical storage facility or refinery, other than a coal facility or a site in which a gas well is undergoing hydraulic fracturing, including the property upon which a factory, mill, plant, chemical storage facility 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, discharge of a substance into the waters of the state which renders those waters nonpotable, 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; and shall specifically notify the chief health official in the affected county 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.

CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 26. WATER RESOURCES PROTECTION ACT.

§22-26-10. Aboveground storage tank registry.

    (a) "Aboveground storage tank" means any tank or container within one mile of a river, stream, lake or pond where ninety percent or more of the tank volume is located above the ground surface, but does not include farm or residential tanks or containers with a capacity of eleven hundred gallons or less and used for noncommercial purposes or tanks not reasonably mounted so as to be in place for one year.

    (b) "Operator" means any person in control of, or having responsibility for, the daily operation of an aboveground storage tank.

    (c) "Owner" means a person who owns an aboveground storage tank used for the storage of any fluid.

    (d) To assure protection of the water resources of the state, the secretary shall compile an inventory of aboveground storage tanks and their contents in existence on the effective date of this section. The secretary shall complete the inventory and report the inventory findings to the Speaker of the House, the Minority Leader of the House, the President of the Senate and the Minority Leader of the Senate within thirty days of the effective date of this section.

    (e) Within fifteen days of the effective date of this section owners or operators shall register each aboveground storage tank and provide an inventory of its contents to the secretary. The Material Safety Data Sheet of each substance stored shall be provided.

    (f) Any owner or operator who fails to register as required in this section, is subject to a civil penalty of $1,000 per day for each above ground storage tank not timely registered and administrative injunction against continuing operations until the owner or operator registers.

    (g) All costs associated with compliance with the provisions of this section are tax deductible.

    (h) All water providers in each public service district shall provide risk assessments for water contamination in each public service districts. The assessments shall be completed and submitted to the secretary within sixty days of the effective date of this section.

    (i) The purposes of this section are that any data derived be used purely for information gathering and future water protection policy development. Any and all proprietary information provided by any subject company shall remain proprietary to that entity.

§22-26-11. Industrial Accident Citizen's Protection Fund; bond requirement.

    (a) Each entity which has a license or construction permit issued for the public purposes of chemical storage, water treatment or other industrial purposes as are determined by the Secretary of the Department of Environmental Protection to pose a significant risk of water or air contamination, shall have as a condition of the license a requirement that the licensee have and maintain financial protection of such type as to fully cover the amounts of response, remediation and basic compensation to the state and to all affected citizens.

    (b) Amount and type of financial protection for licensees -     (1) The amount of primary financial protection required shall be in the amount of $10 million. The protection shall be in the form of a bond available from private sources, made payable to the State of West Virginia.

    (2) There shall be a two percent premium surcharge on each bond, the proceeds from which shall be used to establish a fund within the budget to be known as the Industrial Accident Citizen's Protection Fund, which shall be overseen by the Department of Environmental Protection. The proceeds from this surcharge shall also be used to pay all administrative expenses for the fund.

    (3) In the event of an industrial accident involving the discharge of a chemical, and the payment of the bond, all proceeds from the bond shall be deposited into the Industrial Accident Citizen's Protection Fund and used to cover the expenses of the state's response, any needed environmental remediation and to provide basic compensation to the state and to all affected citizens.

    (4) Any licensee who subscribes to the bonding required and pays into the Industrial Accident Citizen's Protection Fund the surcharges provided by this section is not liable to respond in damages at common law or by statute for the injury or death of any employee or other person, however occurring, after so subscribing or electing, and during any period in which the licensee is not in default in the payment of the premiums and has complied fully with all other provisions of this chapter. The licensee shall obtain from the state, a certificate that the licensee is in good standing with the Industrial Accident Citizen's Protection Fund.

    (5) The Department of Environmental Protection on behalf of the Industrial Accident Citizen's Protection Fund shall report to the Legislature and may recommend a greater amount of required bonding on the basis of criteria set forth in writing, which it may revise from time to time, taking into consideration such factors as the following:

    (A) The cost and terms of private bonding;

    (B) The type, size, and location of the licensed activity and other factors pertaining to the hazard;

    (C) The nature and purpose of the licensed activity; and

    (D) Prior claims experience with the affected licensee.

§22-26-12. Increased bonding requirement.

    Any person who has an ownership interest of ten percent or greater in any corporation, company or entity doing business in the State of West Virginia not already participating in the Industrial Accident Citizen's Protection Fund, and, which causes, either by negligence or intentional act, a state of emergency affecting fifty thousand or more persons in West Virginia, in more than one county, shall post a bond with the Industrial Accident Citizen's Protection Fund protection in an amount which the Industrial Accident Citizen's Protection Fund determines, but which, in no case, may be less than $50 million. Additionally, all permits for the corporation, company or entity and, any licenses necessary for it to engage in business in West Virginia, shall be revoked until the bond required by this section is posted. The Secretary of the Department of Environmental Protection is authorized to propose for legislative approval rules for the better realization of the goals of this section.

§22-26-13. Water emergency voucher.

    Each household in the counties of Boone, Cabell, Clay, Jackson, Kanawha, Lincoln, Logan, Putnam and Roane, affected by the January 2014 water emergency shall be allowed a one-time voucher payable on the State Treasury equal to $250, due to the effects of the chemical spill in the Elk River. Persons obtaining the vouchers must obtain them at their local health department and shall provide proof that they were a customer of West Virginia American Water Company. Vouchers shall be redeemable at any retail business location or at any licensed water or sewage provider. All the vouchers must be redeemed by June 30, 2014.

§22-26-14. Health department screening.

    Each person in a household in the counties of Boone, Cabell, Clay, Jackson, Kanawha, Lincoln, Logan, Putnam and Roane, affected by the January 2014 water emergency shall be allowed health department screening for adverse effects from the event. The screening shall include the following tests: Serum dioxin, fasting glucose, hemoglobin a1c, fasting lipid profile, erythrocyte sedimentation rate, and cbc with differential. The participants shall also receive a history and physical examination. Reports summarizing the results of the tests shall be sent to participants and/or the participant's primary care physician at the participants' election. Persons obtaining the monitoring must present themselves for screening at their local health department and shall provide proof that they were a customer of West Virginia American Water Company. All such monitoring must be obtained by January 30, 2016.

§22-26-15. Agency review, revision, and report.

    (a) The Department of Environmental Protection shall undertake a review of its rules as often as necessary to ensure that its rules are correct and comply with statutory requirements: Provided, That it shall perform a formal review of its rules prior to January 1, 2015, and every four years after that.

    (b) Prior to January 1, 2015, and every four years after that, the Department of Environmental Protection shall complete a formal review of its rules and file the report with the President of the Senate, the Speaker of the House of Delegates, the Governor and the Legislative Rule-making Review Committee. The report must specify any recommended changes including changes that will promote public safety, efficiency, reduce paperwork or decrease costs to government and the private sector.

§22-26-16. Implementation of recommendations from the United States Chemical Safety Board.

    All state, county, and local agencies and entities shall by January 1, 2015, report to the Joint Committee on Government and Finance on the progress of implementing all recommendations made to them by the United States Chemical Safety Board following the Bayer CropScience Pesticide Waste Tank Explosion and the DuPont Corporation Toxic Chemical Releases. All recommendations made in the wake of those twin disasters shall be implemented by January 1, 2016 or state, county, and local agencies and entities must furnish good cause as to why such finding have not been implemented. State, county, and local agencies and entities not fully implementing the recommendations may be fined up to $100,000 for each recommendation not fully implemented; and officials responsible for failing to implement the recommendations may be subject to impeachment for non-feasance of office.

§22-26-17. Citizen suits to enforce provisions of this article.

    Any citizen of the State of West Virginia who seeks enforcement of any provision of this article or rules of the Department of Environmental Protection may file an action with the West Virginia Supreme Court of Appeals in the form of a writ of mandamus against the public entity charged with enforcement to enforce the specified provision or provisions. Citizens bringing these actions are not entitled to attorneys fees and costs.

§22-26-18. Setting a baseline of severance tax revenue for purposes of future tax severance allocation; creation of West Virginia Safe Water Fund; legislative intent; permissible uses of distributed revenues; duties of State Treasurer and State Tax Commissioner; audits; rulemaking.

    (a) For fiscal years beginning July 1, 2014, a baseline for collections of severance tax on the privilege of producing oil and natural gas levied by section three-a, article thirteen-a, chapter eleven of this code that are deposited in the General Revenue Fund as provided in section five-a of this article, is established at $175 million.

    (b) There is created in the State Treasury a special revenue account, designated the "West Virginia Safe Water Fund," which is an interest-bearing account and may be invested by the West Virginia Investment Management Board in the manner permitted by the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Notwithstanding any provision of this code to the contrary, twenty-five percent of the excess proceeds, above the baseline set by subsection (a) of this section, received on and after the effective date of this section as state revenue pursuant to the provisions of section three-a, article thirteen-a, chapter eleven of this code shall be deposited in this fund, up to a total of $1 billion. Amounts in excess of $1 billion may be withdrawn from this fund and deposited in the General Revenue Fund. The Legislature may, by general appropriation or by designation of other funding sources, deposit into the fund additional moneys as it considers appropriate.

    (c) The Legislature declares its intention to use the fund as a means of conserving a portion of the state's revenue derived from the increased revenue proceeds received by the state as a result of any new oil and natural gas production as well as other funding sources as the Legislature may designate in order to meet future needs. The Legislature further declares its intention that the fund shall maintain inviolability of principal while maximizing total return and that only interest income be used for the purposes enumerated in this section. No interest income of the West Virginia Safe Water Fund may be used for a term of six years following the effective date of this section except for the purposes enumerated in this section.

    (d) Moneys from the interest income of the West Virginia Safe Water Fund are to be expended solely for improving and protecting water safety and water infrastructure projects.

    (e) A report of expenditures of the interest income of the West Virginia Safe Water Fund is to be required to be submitted annually to Joint Committee on Government and Finance. Audits of the distributed funds may be authorized by the Joint Committee on Government and Finance.

§22-26-19. Water providers required to have secondary intakes or stored water.

    Each water provider in the state shall be equipped with a sufficient secondary intake source of water and at least three to five days of sufficient raw water storage.

§22-26-20. Public Service Commission to study interconnectivity of water systems.

    The Public Service Commission shall study the need for interconnectivity and other improvements in West Virginia's water distribution systems; and, to evaluate the existing water transmission infrastructure in West Virginia and how the infrastructure can be optimized so that water diversions and transfers can be accomplished to:

    (1) Avert and mitigate drought related water supply emergencies;

    (2) Mitigate the water supply problems during water supply emergencies due to catastrophic loss; and

    (3) Optimize current water distribution under normal operations.



    NOTE: The purpose of this bill is to add additional requirements for notification relating to industrial facilities emergency event notification and access. The bill would add new sections to create an aboveground storage tank registry, an Industrial Accident Citizen's Protection Fund and a bond requirement. It would provide increased bonding requirements for certain persons, a voucher for persons residing in the counties affected by the recent water emergency, and provide for health screenings. It requires agency review, revision, and reporting concerning rules made by each state agency. It requires the implementation of recommendations from US Chemical Safety Board. It allows citizen suits to enforce its provisions and sets a baseline of severance tax revenue for purposes of future tax severance allocation. It creates the West Virginia Safe Water Fund and specifies permissible uses of its revenues. It requires moneys to be expended solely for improving and protecting safe water infrastructure and providing for secondary intake and raw water storage requirements. It also requires the Public Service Commission to study interconnectivity of water systems.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

    §22-26-10; §22-26-11, §22-26-12, §22-26-13, §22-26-14, §22-26-15, §22-26-16, §22-26-17, §22-26-18, §22-26-19 and §22-26-20 are new; therefore, they have been completely underscored.

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