Member Article

Industrial facility owners and operators in West Virginia should be aware of new reporting requirements that will soon go into effect. In addition to currently mandated notifications to federal, state, and local agencies after certain events occur, some facilities will soon be required to notify the state within 15 minutes of discovering specific types of emergency events or be subject to a fine of up to $100,000. These facilities must also communicate with and provide access to state and local officials during the emergency event or be subject to up to another $100,000 in penalties.

Important Provisions of the Emergency and Proposed Rules
On August 4, 2009, the West Virginia Division of Homeland Security and Emergency Management ("WVDHSEM") filed an emergency rule and a proposed rule with the Secretary of State. Both rules, which are identical, should be available on the Secretary of State's website (www.wvsos.com) in coming days. The rules, issues by WVDHSEM pursuant Senate Bill 279 passed by the Legislature during the 2009 regular session, address the obligations of certain industrial facilities to report emergency events.

Highlights of the rules are as follows:

1. Some, but not all, industrial facilities are covered by this rule.

• Covered facilities include any facilities that are required to submit a Risk Management Plan ("RMP") pursuant to the federal Clean Air Act and other mills, plants, or refineries that WVDHSEM determines have the potential to have an emergency event.

• All facilities that do not have a RMP must be put on notice by certified mail before they are subject to the reporting requirements.

• The rule does not apply to coal mining facilities, as these facilities are subject to a separate emergency event reporting rule.

2. An emergency event is a defined term in the rules, and includes events such as explosions, releases of reportable quantities of hazardous substances pursuant to federal law, and serious injuries.

3. Emergency events must be reported within 15 minutes of their discovery to the toll-free line in the rule or the local emergency center ("911").

4. The rule imposes certain access and communications obligations on facilities with regard to state and local governmental authorities.

5. Failure to comply with the rule may subject the facility to a penalty of up to a $100,000 for failure to promptly report an emergency event.

6. Failure to provide access or communicate with state and local government officials during an emergency event may subject a facility to a separate penalty of up to $100,000.

The emergency rule will go into effect upon approval by the Secretary of State or after 42 days if the Secretary of State does not act to approve or disapprove it. The emergency rule will remain in effect until the earlier of the approval of a final legislative rule or the expiration date of the emergency rule.

Although the emergency rule can be approved by the Secretary of State without public comment, the public will have the opportunity to voice its opinion on the contents of the proposed rule before it is presented to the Legislative Rule-Making Review Committee for review and subsequently presented to the full Legislature for consideration and approval during the 2010 Legislative Session. The comment period on the proposed rule runs through September 4, 2009.

Please contact us if you would like a copy of the rules or if have any questions.

The Spilman Environmental Practice Group
Andrew B. McCallister
304.340.3858
[email protected]