Virginia Emergency Management SymposiumHampton, Virginia

March 19, 2015

Legal Trends

Cathie F. Hutchins

Senior Assistant Attorney General

Office of the Attorney General of VA

VEMS 2015Overview of Legal Issues

• 2015 General Assembly-

Public Safety Legislation

• Section 705(c), Stafford Act

• Sandy Flood Insurance Claims

• Inclusive Planning

Public Safety Legislation

HB 1343 (Campus Assault) (FAIL)• Public and private IHE currently required to establish

mutual aid agreements with law enforcement agencies. • Proposed legislation required mutual aid agreements

to include a provision that campus police or local LEO shall report felony criminal sexual assault investigations to local CW’s attorneys within 48 hours of beginning such investigation.

• PS impact: assaults could occur during time of emergencies

Public Safety Legislation

HB 1386 (Disaster Relief by Out of State Business)

• Out of state businesses providing disaster relief in the Commonwealth are not subject to state or local taxes or registration/licensure.

• Does not affect requirement to pay home state taxes.• OSB would still pay taxes and fees, such as motor

fuels taxes, sales and use taxes, hotel taxes, and car rental taxes.

• Activated by a declared emergency.

Public Safety Legislation

HB 1386• "Critical infrastructure" means property and

equipment providing public utility or communications services…

• "Disaster-related or emergency-related work" means repairing, renovating, installing, building, etc., to mitigate damage to critical infrastructure .

Public Safety Legislation

HB 1386

“Out-of-state business" means a business entity– (i) whose services are requested by a registered business, the

Commonwealth, or a local government to perform disaster-related work;

– (ii) that, aside from emergency work, has no presence in the Commonwealth; and

– iii) that has not obtained from the SCC a certificate or registration to transact business in the Commonwealth and had no other business in the Commonwealth during tax year preceding the declared disaster.

• Does not apply outside of the emergency period.• Effective upon the Governor’s signature.

Public Safety Legislation

HB 1522 (Natural Resource Shortage Emergency)

• DOT, DMME, DEM, DMV, VSP directed to establish a protocol for declaring an emergency due to resource shortages that negatively impact delivery of motor fuel, gas, diesel, kerosene, heating oil, liquid propane gas.

• Report to General Assembly in January 2016.

Public Safety Legislation

HB 2125 (Warrant for Use of Drones; Exception)

• Prohibits law enforcement/regulatory enforcement use of drones by state or local governments including LEO without a search warrant or inspection warrant.

• Warrant exception for Amber Alert, Senior Alert, Blue Alert, necessary to alleviate immediate danger, training, or consent search.

• Can utilize drones for damage assessment, traffic assessment, flood or wildfire assessment.

Public Safety Legislation

HB 2125• No impact on private or commercial use or

research use.• Prohibition on weaponized use of drones

except at Wallops Island.• No impact on U.S. Armed Forces or VANG

during training.

Public Safety Legislation

HB 2235 (HOT Lanes)

 • LEO use of HOT lanes without paying a toll.• For free HOT Lanes passage, law enforcement vehicles

cannot be used for any purpose other than– (i) responding to an emergency incident, – (ii) patrolling HOT lanes pursuant to an agreement by a state

agency with the HOT lanes operator, – (iii) time-sensitive investigation, – (iv) active surveillance, and (v) actual pursuit of persons known

or suspected to be engaged in criminal activity.

Public Safety Legislation

SB 811 (Chemical Storage)

• DEQ, Health Commissioner, State Coordinator shall evaluate existing laws and regs regarding storage of chemicals.

• Superfund Amendments and Reauthorization Act (SARA) and the Emergency Planning and Community Right-To-Know Act (EPCRA) when stored in excess of 10,000 gallons.

• Are laws protective of human health, environment, public safety, drinking water resources?

• Report to General Assembly December 2016.

Public Safety Legislation

SB 845 (First Responder Immunity)

• Volunteer firefighter/emergency medical services not liable for injury to persons or property while operating an emergency vehicle when:

-volunteer is responding to fire or to render emergency care at scene of accident, fire, or life-threatening emergency and

-emergency vehicle displays lights, sirens• No immunity for gross negligence or willful/wanton

misconduct.

Public Safety Legislation

SB 1129 (FOIA; Cybersecurity)

 • Plans to prevent or respond to cyber attacks, and

information not lawfully available to the public

regarding cyber threats and vulnerabilities or

security plans may be withheld from release.• Records submitted to a public body may be

withheld if submitter invokes protections of FOIA.• Effective upon Governor’s signature.

Public Safety Legislation

SB 1238 (Electromagnetic Pulse Planning)

 • Requires VDEM’s disaster preparedness

planning to plan specifically for disasters caused by electromagnetic pulses and geomagnetic disturbances.

Public Safety Legislation

SB 1239 (Statewide Drill; Electromagnetic Pulse Disaster) (FAIL)

 • Required the Governor to designate the 2015 annual

statewide drill as an electromagnetic pulse attack on the Commonwealth.

• Evaluate preparedness for attack on electrical grid.• Report to document damages to infrastructure and

make recommendations for state, local, private mitigation actions.

Public Safety Legislation

• SB 1378 (Cooperative Procurement; adds MWCOG)

•  Public body may participate in cooperative procurement with Metropolitan Washington Council of Governments, in addition to other public bodies, public agencies of the several states, DC, GSA.

• Public bodies may purchase from the contract of MWCOG or other public body even if body did not participate in the RFP.

Public Safety Legislation

SB 1443 (Sea-Level Rise)

 • Beginning July, 1, 2015, HR Planning District

Commission localities shall incorporate strategies to combat projected sea-level rise in all future comprehensive plan reviews.

• Technical assistance provided by DCR, DEM, MRC, ODU, VIMS

Stafford Act 42 USC §5205, 705 (c)

• South Florida Water Management District v. FEMA, Case No. 13-80533-ClV (S.D.Fla. September 18, 2014).

• Federal Court held FEMA’s deobligation of $20M was improper

• Also held that even if initial obligation was improper, if 705 (c) met, then no deobligation

Stafford Act 42 USC §5205, 705 (c)

• Section 705(c) provides:

A State or local government shall not be liable for reimbursement or any other penalty of any payment made under this Act if –

• the payment was made pursuant to an approved agreement specifying the costs;

• the costs were reasonable; and• the purpose of the grant was accomplished.

Stafford Act 42 USC §5205, 705 (c)

• Impact of Ruling

1. Not binding in Virginia.

2. Uncertain if deobligation cases will be reopened.

Sandy Flood Insurance Claims

60 Minutes TV News Programa. Were homeowners defrauded?

b. Were reports falsified?

National Flood Insurance Program

a. FEMA runs

b. Public funds

c. Claims processed by private companies

Sandy Flood Insurance Claims

• Over 1,500 claims filed in NY, NJ– Sandy victims challenged underpayments, denials– Claim insurers changed or falsified engineering

reports documenting structural damages– Example: initial engineering report found

structural damage; later report claimed damages were due to age of home.

Sandy Flood Insurance Claims

• Insurance payouts much lower when damage is not structural

• Claims that insurers undervalue amount of damage to avoid FEMA penalty for overestimating damage

• Insurance VP invoked 5th Amendment at hearing

Sandy Flood Insurance Claims

• Impact on FEMA:

• Will review all claims of Sandy victims, even if not part of lawsuit.

• Over 140,000 claims• Massive impact on FEMA resources.• Where will money come from?

Inclusive Planning

• NYC settlement proceeding– City has 3 years to develop plans for accessible

transportation; canvassing; communications; power outages; and sheltering

• Monitoring other litigation– District of Columbia– Phoenix, AZ

• Keep up inclusive planning efforts

Cathie F. Hutchins

703-359-1120

Chutchins@oag.state.va.us