Virginia Emergency Management Symposium
Hampton, Virginia
March 19, 2015
Legal Trends
Cathie F. Hutchins
Senior Assistant Attorney General
Office of the Attorney General of VA
VEMS 2015
Overview of Legal Issues
• 2015 General AssemblyPublic 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 lifethreatening 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 Program
a. 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