Thursday, February 12, 2009

Emergency Response Access

Emergency Response Access There is an interesting report on about a piece of legislation introduced recently in the West Virginia Legislature. The new rules being proposed by Governor Manchin would require chemical facilities in the state to allow first responders access to the facility in event of an emergency at the facility. It would also require the facility to establish communications with emergency response personnel. This bill was ‘inspired’ by last summer’s explosion at the Bayer CropScience Plant in Institute, WV where the community was kept in the dark about what was going on at the facility. CFATS Pre-Emption Issue If this bill becomes law I can foresee the extensive chemical industry in West Virginia arguing that the security regulations embodied in CFATS would prohibit automatic entry of emergency response personnel to high-risk facilities. They would argue that the pre-emption provisions in 6 CFR 27.405 would prevent the State and local governments from enforcing such a law. Since emergency response functions have normally been under the purview of the States, not the Federal Government, I doubt that even the Bush Administration would have sided with industry in this (potential) case. I would be very surprised if Secretary Napolitano did not support the State’s side of this question if an appeal were made to the Department under § 27.405(d). Necessary Coordination It would seem to me that the close cooperation between a high-risk facility and the local emergency responders should be a given. Even if a facility has its own fire brigade, common at refineries and large chemical plants, the backup of the on-site emergency response personnel by community responders should be appreciated. In that sense this legislation should, in a sane world, be unnecessary. Unfortunately, we do not live in a sane world. As countless incidents across the country show, many chemical facilities would rather try to keep the local community in the dark about on-site problems. This is probably due, in part, to an attempt to avoid litigation for real and imagined problems associated with on-site releases. This attitude may prevent nuisance law suits for accidents with no off-site affect, but it destroys the potential cooperation needed to deal with catastrophic accidents or terrorist attacks. I do think that Congress should pre-empt this potential action by the West Virginia legislature, by requiring in the legislation re-authorizing CFATS that as part of any site security plan (SSP) for a high-risk chemical facility there would be detailed coordination and training with local first responders in support of that SSP. It would not be a bad idea if that coordination would have to require frequent on-site exercises with those responders and allow for counting response to actual incidents as a required exercise.

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