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Legal Standards for Legal Standards for Emergency Response to Emergency Response to
Terrorism IncidentsTerrorism Incidents
William C. Nicholson, Esq.Adjunct Professor
Terrorism and Emergency LawWidener University School of Law
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William C. Nicholson
• Instruct “Terrorism and Emergency Law” • Former General Counsel
– Indiana State Emergency Management Agency – Indiana Department of Fire and Building
Services – Public Safety Training Institute – Indiana Emergency Response Commission – Indiana EMS Commission
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Information Only...
• The following is not legal advice.
• Consult your attorney for legal advice for your situation.
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Terrorism and Hazardous Materials Events: 9-11
• Called the worst environmental disaster ever inside a major city.
• The scene had "the same scope as a Superfund site.”
- Max Costa, New York University Hospital environmental-medicine specialist
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Terrorism: HAZMAT with an Attitude
• Attack will almost always result in HAZMAT release
• Attitude in the sense of criminal intent
• Terrorism is a federal CRIME
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Terrorist Intent
• “If it is true that I have acquired [chemical or nuclear] weapons, I thank God who has made it possible. And if I seek to procure such weapons, it is a duty.”
-Osama Bin Laden
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Bush Administration Predicts Future Attacks in America
• WMD attacks and suicide bombings like those in Israel are “only a matter of time”
- Secretary of Defense Rumsfeld
• “Inevitable”- FBI Director
Robert S. Mueller III
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Legal (& Practical) Standards for Terrorism Response
• Federal Guideline: “The principles for site safety and control are the same as for a HAZMAT incident.”
- Center for Domestic Preparedness, Chemical, Ordinance, Biological and Radiological (“COBRA”) Incident Command Course Responder Guide (2002)
• Approaching any terrorism event as a possible HAZMAT incident is common sense safety consciousness.
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Legal Standards for HAZMAT Response
• Hazardous Waste Operations and Emergency Response (HAZWOPER), 29 C.F.R. 1910.120
• For non-OSHA states, EPA incorporates OSHA’s HAZWOPER standard 40 C.F.R. § 311.1
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HAZWOPER General Duties
• Applies to employers• Individual responders
charged with knowledge of their duties
• Applies to volunteers as well as to paid responders
• Federal employees are also bound
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HAZWOPER Planning Requirements
• Emergency response plan “developed and implemented to handle anticipated emergencies” prior to commencement of emergency response operations
• HAZWOPER plan may be merged with other necessary emergency plans following National Response Team Integrated Contingency Plan Guidance
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Other Key Legal Guidance
• NFPA 472 “Professional Competence for Responders to Hazardous Materials Incidents” 2002 Editon
• NFPA 1600 “Standard on Disaster/Emergency Management and Business Continuity Programs”
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NFPA 472
• Requires at all occurrences needing response, including suspected terrorism incidents
• Evaluated by first responders as potential HAZMAT events
• Part of general situational awareness
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HAZWOPER Planning Requirements
• Emergency response plan “developed and implemented to handle anticipated emergencies” prior to commencement of emergency response operations
• HAZWOPER plan may be merged with other necessary emergency plans following National Response Team Integrated Contingency Plan Guidance
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HAZWOPER Training Requirements
• Employees in “close proximity to hazardous wastes” – 40 hours off-site training – three days on-site field experience
• Employees occasionally on-site 24 hours off-site training one day on-site field experience
• Supervisors– additional eight hours of training in subjects
like employee safety, spill containment.
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Federal Support for Terrorism HAZMAT Responders
• National Oil and Hazardous Substances Pollution Contingency Plan (NCP) provides structure for federal support
• Regulates cleanup of hazardous waste sites under CERCLA
• Provides for a National Response Team and Regional Response Teams
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Federal Support for Terrorism HAZMAT Responders
• NCP requires telling National Response Center (NRC) of discharges/ releases
• NRC is national clearinghouse for all pollution incident reporting
• NRP works in conjunction with FEMA’s Federal Response Plan (FRP)
• FRP’s Terrorism Annex (TA) covers terrorism responses
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Federal Support for Terrorism HAZMAT Responders: PDD 39
• TA established pursuant to Presidential Decision Directive (PDD) 39
• PDD 39 requires FBI to be lead agency during crisis management = immediate aftermath
• FEMA leads during consequence management as response and recovery effort proceeds
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Homeland Security Act of 2002• Unifies domestic
preparedness for terrorism - law enforcement
• 22 agencies, 170,000 employees
• Department will administer grant programs for firefighters, police, and emergency personnel
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Homeland Security Act of 2002
• Goal “a comprehensive national incident management system for response to terrorist incidents and natural disasters”
• “Eliminat[e] the artificial distinction between ‘crisis management’ and ‘consequence management.’”
• Effect: Does away with PDD 39
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Homeland Security Act of 2002
• FRP, NCP and all other federal plans will be eventually consolidated by the proposed Department into an all-hazard plan
• Consistent with existing FEMA guidance and local emergency planning practice
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Homeland Security Presidential Directive 5 (HPSD 5)
• Issued February 28, 2003• Crisis management and consequence
management to be a “single integrated function”
• Secretary of DHS to coordinate Federal resources for response
• Initial responsibility to state, local gov’ts.
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HPSD 5: National Incident Management System (NIMS)
• Nationwide approach: applies to Federal, state, local governments
• NOT the same as NIIMS• Goal: Interoperability, compatibility
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HPSD 5: National Incident Management System (NIMS)
• For incident command, provide core– Concepts– Principles– Terminology– Technologies
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HPSD 5: National Incident Management System (NIMS)
• Multi-agency coordination• Unified command• Training• Resource identification and management• Qualifications and certification• Information management: events and
resources
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HPSD 5: National Response Plan (NRP)
• All discipline, all hazards plan• NRP using NIMS provides national level
policy and operational direction• Protocols for different threat levels• Incorporate existing Federal plans • Additional plans as appropriate, such as
public affairs, intergovt’l. communications
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HPSD 5: National Response Plan
• NRP to include standard approach to:– Incident reporting– Assessments– Recommendations to higher levels
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HPSD 5: National Response Plan
• Requirements for improvements from:– Testing– Exercising– Incident experience– New information– New technologies
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Homeland Security Presidential Directive 5: Deadlines
• National Incident Management System created by June 1, 2003, adopted by Federal agencies
• Preliminary National Response Plan, implementation strategy due on April 1, 2003
• Recommendations for full implementation of NRP due September 1, 2003
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Homeland Security Presidential Directive 5: Deadlines
• Beginning in Federal Fiscal Year 2005, NIMS will be a REQUIREMENT for any Federal funding through– Grants– Contracts– Other activities
• Secretary of DHS to develop standards, guidelines for NIMS adoption