by M. Katherine Crockett, as seen in the March 2010 issue of IOGA Newsletter

Prior editions of this newsletter have discussed the bill passed during the 2009 Regular Session of the West Virginia Legislature that created a requirement for “industrial facilities” to notify the Mine and Industrial Accident Emergency Operations Center within 15 minutes of ascertaining the occurrence of an “emergency event.” This legislation defined covered “industrial facilities” as (a) facilities required to submit a Risk Management Plan under Section 112(r) of the federal Clean Air Act and (b) any factory, mill, plant or refinery, other than a coal facility, that the West Virginia Department of Homeland Security and Emergency Management (“WVDHSEM”) determines has a reasonable potential to have an emergency event, after such a facility has been placed on actual written notice of its coverage under the statute. An “emergency event” is an unplanned event including, but not limited to, an explosion, a fire that cannot be contained within 15 minutes of discovery, the release of a reportable quantity or extremely hazardous substance, loss of life or serious personal injury. In addition to the 15-minute reporting requirement, industrial facilities must implement an event communications system—at a minimum, the facility must designate a person to serve as a contact for state and local emergency responders. As soon as practicable after the emergency event, covered facilities also must provide state and local officials with timely authorized access to the person(s) charged with managing the emergency on behalf of the facility, as well as to the areas affected by the emergency event, provided that the facility has determined those areas to be reasonably safe for such access. Any failure to comply with these requirements exposes a covered industrial facility to potential liability for civil penalties.

On August 4, 2009, WVDHSEM filed with the West Virginia Secretary of State notice of an emergency rule, entitled the “Industrial Accident Rapid Response Rule” (the “Rule”), to implement the requirements of the new statute. Among other things, the Rule clarified the meaning of a covered “emergency event” by defining “unplanned event” as “an event that is not otherwise authorized or permitted pursuant to state and/or federal law or a planned event that results in unplanned consequences . . . that cannot be controlled within the parameters set forth for the planned event.”; The Rule also gave facilities the option to provide a written report to follow-up on the initial notification of an emergency event. Finally, the Rule outlined specific procedures for classifying and calculating appropriate civil penalties for violations of the statute’s reporting, communications or access requirements, as well as how any penalty may be adjusted by WVDSHEM or even waived.

On February 3, 2010, however, the Secretary of State announced that the Rule had expired, noting that WVDHSEM failed to file the agency-approved rule with the Legislative Rulemaking Review Committee within the timeframe required by the State Administrative Procedures Act.; Accordingly, the Rule was no longer effective as of December 3, 2009. The Secretary of State’s notice stated further that the Rule may not be refiled as an emergency rule if WVDHSEM wishes to pursue the rulemaking process for 170 CSR 2; rather, the agency must resubmit the entire Rule to the Secretary of State for another hearing and public comment period. WVDSHEM is attempting to address the expiration of the Rule through House Bill 4081, which would authorize the Rule as filed in the State Register on August 4, 2009, subject to a minor amendment.

Importantly, the requirements of the statute remain in force despite the expiration of the Rule. Oil and gas operations covered by the statute—i.e., those facilities required to submit an RMP under Section 112(r) of the Clean Air Act and those facilities that have received written notice from WVDHSEM of their coverage under the statute—remain subject to the 15-minute notification requirement and the event communications systems and access requirements, as well as the applicable civil penalties for failure to comply.

The Environmental and Safety Committee will continue to monitor this issue and will apprise IOGA members of future developments. 

 Please contact us if you have any questions.

The Spilman Environmental Practice Group
Katherine Crockett
304.340.3832
kcrockett@spilmanlaw.com