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Legal Standards For Emergency Response To Terrorism Incidents

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Legal Standards forEmergency Response toTerrorism IncidentsWilliam C. Nicholson, Esq.Adjunct ProfessorTerrorism and Emergency LawWidener University School of Law

William C. Nicholson Instruct “Terrorism and Emergency Law” Former General Counsel– Indiana State Emergency Management Agency– Indiana Department of Fire and BuildingServices– Public Safety Training Institute– Indiana Emergency Response Commission– Indiana EMS Commission

Information Only. The following is notlegal advice. Consult your attorneyfor legal advice foryour situation.

Terrorism and HazardousMaterials Events: 9-11 Called the worstenvironmentaldisaster ever insidea major city. The scene had "thesame scope as aSuperfund site.”- Max Costa, NewYork University Hospitalenvironmental-medicinespecialist

Terrorism: HAZMAT with anAttitude Attack will almostalways result inHAZMAT release Attitude in thesense of criminalintent Terrorism is afederal CRIME

Terrorist Intent “If it is true that I haveacquired [chemical ornuclear] weapons, Ithank God who hasmade it possible. And if Iseek to procure suchweapons, it is a duty.”Osama Bin Laden

Bush Administration PredictsFuture Attacks in America WMD attacks andsuicide bombings likethose in Israel are “onlya matter of time”- Secretaryof Defense Rumsfeld “Inevitable”- FBI DirectorRobert S. Mueller III

Legal (& Practical) Standards forTerrorism Response Federal Guideline: “The principles forsite safety and control are the same asfor a HAZMAT incident.”- Center for Domestic Preparedness, Chemical,Ordinance, Biological and Radiological (“COBRA”)Incident Command Course Responder Guide (2002) Approaching any terrorism event as apossible HAZMAT incident is commonsense safety consciousness.

Legal Standards for HAZMATResponse Hazardous WasteOperations andEmergency Response(HAZWOPER), 29C.F.R. 1910.120 For non-OSHA states,EPA incorporatesOSHA’s HAZWOPERstandard 40 C.F.R. §311.1

HAZWOPER General Duties Applies to employers Individual responderscharged with knowledgeof their duties Applies to volunteers aswell as to paidresponders Federal employees arealso bound

HAZWOPER PlanningRequirements Emergency response plan “developedand implemented to handle anticipatedemergencies” prior to commencementof emergency response operations HAZWOPER plan may be merged withother necessary emergency plansfollowing National Response TeamIntegrated Contingency Plan Guidance

Other Key Legal Guidance NFPA 472 “Professional Competencefor Responders to Hazardous MaterialsIncidents” 2002 Editon NFPA 1600 “Standard onDisaster/Emergency Management andBusiness Continuity Programs”

NFPA 472 Requires at alloccurrences needingresponse, includingsuspected terrorismincidents Evaluated by firstresponders as potentialHAZMAT events Part of generalsituational awareness

HAZWOPER PlanningRequirements Emergency response plan “developedand implemented to handle anticipatedemergencies” prior to commencementof emergency response operations HAZWOPER plan may be merged withother necessary emergency plansfollowing National Response TeamIntegrated Contingency Plan Guidance

HAZWOPER TrainingRequirements Employees in “close proximity to hazardouswastes”– 40 hours off-site training– three days on-site field experience Employees occasionally on-site 24 hours offsite training one day on-site field experience Supervisors– additional eight hours of training in subjectslike employee safety, spill containment.

Federal Support for TerrorismHAZMAT Responders National Oil and Hazardous SubstancesPollution Contingency Plan (NCP)provides structure for federal support Regulates cleanup of hazardous wastesites under CERCLA Provides for a National Response Teamand Regional Response Teams

Federal Support for TerrorismHAZMAT Responders NCP requires telling National ResponseCenter (NRC) of discharges/ releases NRC is national clearinghouse for allpollution incident reporting NRP works in conjunction with FEMA’sFederal Response Plan (FRP) FRP’s Terrorism Annex (TA) coversterrorism responses

Federal Support for TerrorismHAZMAT Responders: PDD 39 TA established pursuant to PresidentialDecision Directive (PDD) 39 PDD 39 requires FBI to be lead agencyduring crisis management immediateaftermath FEMA leads during consequencemanagement as response and recoveryeffort proceeds

Homeland Security Act of 2002 Unifies domesticpreparedness forterrorism - lawenforcement 22 agencies, 170,000employees Department willadminister grantprograms forfirefighters, police, andemergency personnel

Homeland Security Act of 2002 Goal “a comprehensive national incidentmanagement system for response toterrorist incidents and natural disasters” “Eliminat[e] the artificial distinctionbetween ‘crisis management’ and‘consequence management.’” Effect: Does away with PDD 39

Homeland Security Act of 2002 FRP, NCP and all otherfederal plans will beeventually consolidatedby the proposedDepartment into an allhazard plan Consistent with existingFEMA guidance andlocal emergencyplanning practice

Homeland Security PresidentialDirective 5 (HPSD 5) Issued February 28, 2003 Crisis management and consequencemanagement to be a “single integratedfunction” Secretary of DHS to coordinate Federalresources for response Initial responsibility to state, local gov’ts.

HPSD 5: National IncidentManagement System (NIMS) Nationwide approach: applies to Federal,state, local governments NOT the same as NIIMS Goal: Interoperability, compatibility

HPSD 5: National IncidentManagement System (NIMS) For incident command, provide ologies

HPSD 5: National IncidentManagement System (NIMS) Multi-agency coordinationUnified commandTrainingResource identification and managementQualifications and certificationInformation management: events andresources

HPSD 5: National Response Plan(NRP) All discipline, all hazards plan NRP using NIMS provides national levelpolicy and operational direction Protocols for different threat levels Incorporate existing Federal plans Additional plans as appropriate, such aspublic affairs, intergovt’l. communications

HPSD 5: National Response Plan NRP to include standard approach to:– Incident reporting– Assessments– Recommendations to higher levels

HPSD 5: National Response Plan Requirements for improvements from:–––––TestingExercisingIncident experienceNew informationNew technologies

Homeland Security PresidentialDirective 5: Deadlines National Incident Management Systemcreated by June 1, 2003, adopted byFederal agencies Preliminary National Response Plan,implementation strategy due on April 1,2003 Recommendations for full implementationof NRP due September 1, 2003

Homeland Security PresidentialDirective 5: Deadlines Beginning in Federal Fiscal Year 2005,NIMS will be a REQUIREMENT for anyFederal funding through– Grants– Contracts– Other activities Secretary of DHS to develop standards,guidelines for NIMS adoption

Feb 28, 2003 · (HAZWOPER), 29 C.F.R. 1910.120 For non-OSHA states, EPA incorporates OSHA’s HAZWOPER . HAZWOPER Training Requirements Employees in “close proximity to hazardous wastes” – 40 hours off-site training