15 Minute Industrial Emergency Rule – Status of WV Legislative Actions

    On February 3, 2010 time ran out on “The 15-Minute Rule” officially titled the  “Industrial Accident Rapid Response Rule,” when the Secretary of State announced the expiration of filing of the legislative rule and expiration of filing of the emergency rule, 170 CSR 2, which was in place. The Department of Homeland Security & Emergency Management failed to file with the Legislative Rulemaking Review Committee (“LRRC”) within 90 days after the conclusion of the hearing/public comment period as required by W.Va. Code §29A-3-9. The normal procedure for an expired rule, is that the entire rule must be resubmitted to the Secretary of State for another hearing/public comment period.     

    This left the only authority for implementation of the industrial accident law the existing statutory law W.Va. Code, §15-5B- 3a et seq. which still require the basics of reporting , but leaves out important implementing elements which the legislative rule provided such as further defining when a release must be reported, providing the methods for reporting , clarifications on facility access and penalty categories and penalty adjustment factors and procedures for penalty appeal and waiver.     

    However, the West Virginia Legislature with urging from the Division of Homeland Security and Emergency Management and the regulated community is effecting a last minute rescue to enact the previously existing rule, 170 CSR 2, via H.B. 4081. H.B. 4081 is the bundled rules bill for the Department of Military Affairs and Public Safety.   On March 9, 2010, H.B. 4081 passed the Senate Judiciary Committee containing the basic rule 170 CSR 2 conforming it to the statutory fine structure. The rule that passed in the House still contained the language that would allow fines for up to $200,000 for each event.  With the help of Senators Evan Jenkins (Cabell) and Joe Minard (Harrison), industry lobbyists were able to amend the rule so that if passed it would reflect the original intent of the Legislature when it passed SB 279 last year.  The rule, as amended, now will only allow fines up to $100,000. The bundled bill has moved to the floor for passage.  Once the bill is passed by the Senate, it will have to return to the House for their approval.  We will keep you apprised of the final developments for this process. The 2010 WV Legislative Session ends on Saturday, March 13, 2010.    

    The following industrial accident obligations never expired: (1) the reporting requirements for CAA §112(r) facilities and those facilities that received written notice from Homeland Security that they will be included in the definition of a regulated facility, (3) the event communications system requirements, (4) the authorized access to public officials, and (5) the applicable civil penalties never expired since they were statutory. Therefore covered facilities should maintain their existing procedures to comply with the “15 Minute Rule”. 

    For more information contact either Barbara D. Little (304) 340-1355 or Kathy G. Beckett (304) 340-1019. This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.