Virginia Emergency Management and Homeland Security Statutory Authorities Summarized

Order Code RL32406

CRS Report for Congress

Received through the CRS Web

Virginia Emergency Management

and Homeland Security

Statutory Authorities Summarized

May 27, 2004

Keith Bea

Specialist in American National Government

Government and Finance Division

L. Cheryl Runyon and Kae M. Warnock

Consultants

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Virginia Emergency Management and Homeland

Security Statutory Authorities Summarized

Summary

The Commonwealth of Virginia Emergency Services and Disaster Law of 2000

(Va. Code §44-146.13) consolidated the state’s emergency management statutes.

The law delegates emergency powers to the governor, the Department of Emergency

Management, and political subdivisions. It also provides for mutual aid agreements.

Assistance and funding primarily emanate from federal aid and the Virginia Disaster

Response Fund, which is administered by the Department of Emergency

Management. The state constitution establishes the authority for continuity of

government operations.

This report is one of a series that profiles emergency management and homeland

security statutory authorities of the 50 states, the District of Columbia, the

Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico,

American Samoa, Guam, and the U.S. Virgin Islands. Each profile identifies the

more significant elements of state statutes, generally as codified. Congressional

readers may wish to conduct further searches for related provisions using the Internet

link presented in the last section of this report. The National Conference of State

Legislatures provided primary research assistance in the development of these

profiles under contract to the Congressional Research Service (CRS). Summary

information on all of the profiles is presented in CRS Report RL32287. This report

will be updated as developments warrant.

Contents

Entities with Key Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Preparedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Declaration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Types of Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Mutual Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hazard Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Continuity of Government Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

For Further Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

List of Tables

Table 1. Key Emergency Management and Homeland

Security Terms Defined in Virginia Statutes, with Citations . . . . . . . . . . . . . 8

Virginia Emergency Management and

Homeland Security Statutory Authorities

Summarized

Entities with Key Responsibilities

Governor: The governor serves as the state director of emergency management

and is authorized to proclaim and publish rules and regulations, and to issue orders

to control, restrict, allocate, and regulate the use, sale, production and distribution of

food, fuel, commodities, materials and resources under state and federal emergency

services programs. The governor is authorized to adopt and implement the state

emergency operations plan to respond to any type of disaster affecting Virginia and

provide the support necessary to produce more detailed plans and procedures to be

developed and maintained by state agencies, local governments and other

organizations. The governor may direct or compel the evacuation of the civilian

population from stricken or threatened areas to preserve life; implement emergency

mitigation, preparedness, response and recovery actions; prescribe routes and modes

of transportation and destination; and control ingress and egress to an emergency

area. The governor appoints the state coordinator of emergency management, who

is to procure supplies and equipment, begin training and public information

programs, take steps for the mobilization of emergency management organizations

in advance of an actual disaster, and ensure the availability of trained and equipped

forces. In addition, the governor directs studies of industries, resources, and facilities

within the commonwealth to determine capabilities to plan the most efficient

emergency use (Va. Code §44.146.17).

Secretary of Public Safety: The secretary is responsible to the governor for

administration of the Department of Emergency Management and other specified

agencies (Va. Code §2.2-221).

Department of Emergency Management (DEM): DEM officials must

promulgate plans and programs to provide mitigation, preparedness, response and

recovery programs; prepare and maintain the state emergency operations plan for

response and recovery operations; and assign primary and support responsibilities for

basic emergency services to state agencies, organizations, and personnel. DEM also

coordinates and administers mitigation, preparedness, response and recovery plans

and programs with federal, state and local government agencies and related groups,

and provides guidance and assistance to state agencies and local governments to

develop and maintain emergency management programs, plans and systems. DEM

officials make recommendations to federal, state, and local agencies about preventive

and preparedness measures to eliminate or reduce disasters and their impact and

identifies necessities that may not be readily available. The department institutes

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training and public information programs and consults with the state Board of

Education and State Council of Higher Education about model school crisis and

emergency management plans. DEM must develop standards and provide guidance

to maintain state and local agency emergency operations plans; coordinates with

federal, state and local governments and other organizations on emergency response

management plans; and surveys public and private industries and facilities within the

commonwealth to identify needed resources. During a state of emergency, DEM is

responsible for receiving, evaluating, and disseminating information about impending

or actual disasters and providing emergency operations facilities (Va. Code

§44.146.18). DEM officials also coordinate the development of hazardous materials

training and emergency response programs (Va. Code §44-146.35).

Coordinator of Emergency Management: The coordinator is appointed by the

governor, and serves as the state emergency planning director (Va. Code §44.146.18),

maintains a registry of shippers of hazardous radioactive material, and monitors

transportation of the same within the commonwealth (Va. Code §44-146.30).

Political subdivisions: All political subdivisions are responsible for local

disaster mitigation, preparedness, response and recovery activities and are authorized

both to maintain an emergency management agency and hire a director of emergency

management. When the governor declares an emergency, each political subdivision

within the disaster area (with governor’s supervision) may control, restrict, allocate,

or regulate the use, sale, production, and distribution of food, fuel, materials,

commodities, and services. Such decisions cannot affect systems in adjoining

political subdivisions. Political subdivisions may enter into contracts to combat

threatened or actual disasters to protect the public health and safety of people and

property and to provide emergency assistance (Va. Code §44-146.19). Units of local

government must appoint hazardous materials coordinators (Va. Code §44-146.38).

Department of Conservation and Recreation: Department officials are required

to develop a flood protection plan for the commonwealth, inventory flood prone

areas, record flood damages, develop a strategy to prevent or mitigate flood damage,

and collect and distribute information. They also coordinate flood protection

programs with federal flood protection programs, make information available to

localities for planning, assist with floodplain management activities, inspect and

establish guidelines for the National Flood Insurance Program, and coordinate with

FEMA (Va. Code §10.1-602).

Soil and Water Conservation Board: The board organizes safety inspections of

dams. If a dam is considered to be unsafe and poses imminent danger to life and

property, the director of the Department of Conservation and Recreation is required

to notify the Department of Emergency Services (Va. Code §10.1-605 et seq.).

State Hazardous Materials Emergency Response Advisory Council: The

governor appoints council members from state agency representatives and other

representatives from local government, industry, general public and environmental

and emergency response interests. Council members provide advice to the

emergency management coordinator about Hazardous Materials Emergency

Response Program and to the Virginia Emergency Response Council. (Va. Code §44146.39).

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Virginia Emergency Response Council: The council consists of state agency

heads or representatives, appointed by the governor, with expertise in the emergency

response field (Va. Code §44-146.40).

Preparedness

The governor is authorized to provide incident command system guidelines to

state agencies and local emergency response organizations (Va. Code §44.146.17

(9)).

The governor, state agency heads, local directors and governing bodies may use

services, equipment, supplies, and facilities of commonwealth departments and

political subdivisions, consistent with emergency operations plans (Va. Code §44146.24).

When a state of war exists between the United States and a foreign country, or

when the commonwealth is at peril as determined by the governor, air raid

precautions such as blackouts and prohibition on movement of highway traffic may

be instituted (Va. Code §44-147 et seq).

When a state of war exists, the governor may assign firefighters and equipment

(Va. Code §44-152 et seq).

When a state of war exists, the governor is authorized to plan for troop

movements on public highways (Va. Code §44-205).

Each nuclear electrical utility must notify customers annually about evacuation

routes and other actions through newspaper advertisements (Va. Code §56-245.1:1).

See also “Entities with Key Responsibilities” Department of Emergency

Management, above.

Declaration Procedures

The governor may declare that a state of emergency exists upon determining that

the safety and welfare of the commonwealth requires the implementation of

emergency measures due to a threatened or actual disaster (Va. Code §44.146.17 (7)).

Except for emergency plans issued to prescribe actions to be taken, no rule,

regulation, or order issued under the statute remains in effect beyond June 30

following the next adjournment of the regular session of the General Assembly. A

similar rule, regulation, or order, however, may be reissued. The governor’s

executive orders have the force and effect of the law (Va. Code §44.146-17 (1)).

A local emergency may be declared by a local emergency management director

with the consent of the governing body. If the governing body cannot convene

because of the disaster, the director, deputy director or any member of the governing

body may declare the local emergency, which must be confirmed at the next regularly

scheduled meeting or at a special meeting called within 14 days of issuance of the

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declaration. A declaration activates the local emergency operations plan, and the

governing body must take appropriate action to end the declared emergency (Va.

Code §44-146.21).

Types of Assistance

If an emergency does not require a governor’s declaration, the coordinator of

emergency management, after consulting with the Secretary of Public Safety, may

enter into contracts to prevent or alleviate damage, loss, or hardship caused by an

emergency and protect persons and property. The coordinator is not required to

follow procedures for renting equipment, purchasing supplies, or expending public

funds (Va. Code §44-146.18:2).

The Commission of Agriculture and Consumer Services develops and initiates

programs for farmers affected by major disasters, and is authorized to make

expenditures from the Farmers Major Disaster Fund to assist with meeting animal

feed needs and providing supplemental staff for state and federal relief efforts.

Localities also may initiate a grant program for emergency financial assistance to

offset losses resulting from major disaster declared by governor (Va. Code §3.122.19). All loans are to be paid from the Farmers Major Disaster Fund. The

governor is authorized to allocate money from appropriations for disaster planning

and operations after declaration of a disaster (Va. Code §3.1-22.20).

Mutual Aid

The Emergency Management Assistance Compact is codified (Va. Code §44146.28:1).

It is the policy of the commonwealth that emergency services are to be

coordinated with comparable services of the federal government, other states, and

private agencies (Va. Code §44-146.14 (b)).

The governor is authorized to enter into mutual aid agreements with other states

and to coordinate mutual aid plans between political subdivisions (Va. Code

§44.146.17 (5)).

The director of each local emergency management organization is authorized

to develop mutual aid arrangements (Va. Code §44-146.19 D).

Two or more political subdivisions are authorized to establish interjurisdictional

mutual aid agreements and conduct other activities. Any political subdivision may

provide or receive disaster assistance if agreed to by its governing body. Options

include local or statewide mutual aid programs. Political subdivisions may withdraw

from agreements by ordinance or resolution and must notify the coordinator of

emergency management (Va. Code §44-146.20).

The coordinator of emergency management may enter into agreements with

political subdivisions to provide hazardous materials emergency response (Va. Code

§44-146.36).

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Contiguous local governments may enter into mutual aid agreements with

federal authorities to allow police cooperation and assistance on federal land (Va.

Code §15.2-1728).

Funding

The Virginia Disaster Response Fund is a non-lapsing revolving fund

administered by the coordinator of emergency management. All expenses, costs,

judgements, and reimbursements are to be paid into the fund, along with annual

appropriations. Disbursements are to be made for costs and expenses to prevent or

alleviate damage, loss, hardship, and suffering caused by emergencies, resource

shortages, or natural or man-made disasters. The fund may also be used to procure,

maintain, or replenish materials, equipment, and supplies, and to pay costs for

recovery from disasters, including the restoration of public property and facilities.

The coordinator of emergency management may seek reimbursement from persons

causing or contributing to an emergency or disaster for sums disbursed from the fund

for losses or damage caused by the said persons. If not paid within 60 days, the

attorney general may institute legal proceedings and may recover legal, court costs

and other expenses related to the collection of money. Also, the attorney general may

recover costs incurred by any other state agency or political subdivision that acted at

the direction of the coordinator (Va. Code §44-146.18:1).

After the governor declares a disaster, all state funds not constitutionally

restricted may be spent. The governor is to allot funds to state agencies or political

subdivisions to carry out disaster services. The governor is authorized to provide

assistance to eligible applicants in areas included in a state of emergency, not a major

disaster. DEM must establish guidelines and procedures for determining whether

financial assistance should be provided to local governments, subject to statutory

guidance. The governor must report to the chairs of specified legislative committees

within 30 days of approving sums. DEM must report annually to the General

Assembly about local jurisdictions that received financial assistance, and the amount

each jurisdiction received (Va. Code §44-146.28).

The Flood Prevention and Protection Assistance Fund consists of money

appropriated by the General Assembly. The director of the Department of

Conservation and Recreation may make grants and loans to city, county, or town,

water authorities to assist with the development and implementation of flood

prevention or protection projects or studies. State money is to serve as a match to

local funds, with up to $50,000 per year eligible to be spent as a cost-share for federal

flood protection studies (Va. Code §10.1-603.17 et seq.).

The Radiological Emergency Preparedness Fund can only support activities to

maintain or operate emergency plans to address nuclear accidents (Va. Code §44146.33).

The Virginia Disaster Response Fund supports responses to hazardous materials

accidents. Expenditures may be recovered from the fund (Va. Code §44-146.37).

The governor is authorized to request a major disaster declaration from the

President, and must certify the need for federal disaster assistance and ensure the

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expenditure of a reasonable amount of funds from the commonwealth and local

governments and other agencies to alleviate damage, loss, hardship and suffering

(Va. Code §44-146.17 (8)).

If the federal government provides partial payment for disaster programs, the

remaining portion is to be paid through a combination of state and local funds.

Federal offers of services and equipment as a gift, grant, or loan to the

commonwealth or political subdivisions may be accepted, and representatives may

agree to terms of offers including indemnification of federal government (Va. Code

§44-146.27).

The commissioner of social services may receive grants and funds to provide

assistance for child welfare services, including day care, disaster relief, and

emergency assistance awards, from the federal government (Va. Code §63.2-207).

The governing bodies of counties, cities, or towns may appropriate funds for

emergency management (Va. Code §44-146.27 D.).

Hazard Mitigation

The governor is directed to consider hazard mitigation and other measures to

prevent or reduce the consequences of disasters. State agencies responsible for

floodplain management, stream encroachment, flow regulation, weather

modification, fire prevention and control, air quality, public works, land use and

planning and construction standards must study disaster prevention. The governor

is authorized to make recommendations to the General Assembly, local governments

and public and private entities for preventing and reducing disaster effects (Va. Code

§44/146.22).

The Library of Virginia is required to develop a plan to preserve public records

in the event of a disaster or emergency. The plan must be coordinated with DEM and

copies distributed to agency heads (Va. Code§42.1-91).

Continuity of Government Operations

A quorum is a majority of members elected to each chamber of the General

Assembly, but a smaller number may adjourn a session. Also, a smaller number (not

less than 2/5 of the elected membership of each chamber) may meet and enact

legislation if the governor declares by proclamation that a quorum cannot be

convened because of an enemy attack on the Commonwealth (Va. Constitution Art

IV §8).

Any locality, by ordinance, may assure the continuity of government in the event

of an enemy attack or other disaster. Such an ordinance is limited in effect to six

months after the attack or disaster, and must provide for the resumption of normal

governmental authority at end of a six-month period (Va. Code §15.2-1413).

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Other

Banks and other financial institutions may suspend business during an actual or

threatened enemy attack, civil insurrection, fire, flood, hurricane, or riot that affects

a community where the institution conducts business (Va. Code §6.1-12). In the

event an enemy attack or disaster occurs where a savings institution conducts

business, the institution may be temporarily closed with the approval of officers

without prior approval of directors or the commonwealth commissioner (Va. Code

§6.1-194.31).

A person rendering emergency care without compensation at the scene of an

accident, fire, or life-threatening emergency is not liable for civil damages for acts

or omissions resulting from care or assistance provided. Immunity also applies if aid

is rendered at the request of police, fire, rescue or emergency squad personnel (Va.

Code §8.01-225).

Commonwealth agencies, political subdivisions, federal agencies, and public or

private agencies and their representatives are not liable for death or injury to persons

or damage to property resulting from emergency services, except for willful

misconduct. Persons owning or controlling real estate who provide shelter are not

liable for death, injury, or property loss. A professional person licensed by another

state who gratuitously renders aid during disaster is not liable for death, injury or

property damage. No liability is incurred for injuries sustained while rendering care

or assistance during actual or threatened discharge of hazardous substances, or

cleaning up, treating and disposing of hazardous waste (Va. Code §44-146.23).

With respect to the activities of law enforcement, fire fighters, DEM officers,

or hazardous materials teams, an owner of real property that is open to the public

owes a duty to maintain the premises in reasonably safe condition or warn of dangers.

The owner also must care for premises not normally open to the public if he or she

has reason to know that first responders may come on the premises. Firefighters and

police are owed a duty of ordinary care (Va. Code §8.01-226).

DEM employees must take a loyalty oath, and emergency management staff

cannot advocate the use of force or violence against the United States or the

commonwealth (Va. Code §44-146.25).

It is the duty of every emergency management organization to execute and

enforce orders, rules, regulations made by the governor (Va. Code §44-146.26).

All officers and employees of the commonwealth who are members of the state

defense force or the National Defense Executive Reserve are entitled to leaves of

absence without pay or seniority loss (Va. Code §44-204).

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Key Terms

Table 1. Key Emergency Management and Homeland Security

Terms Defined in Virginia Statutes, with Citations

Terms

Citations

Discharge

Va. Code §44-146.16 (11)

Emergency

Va. Code §44-146.16 (2a)

Emergency flood insurance program

Va. Code §10.1-600

Emergency services

Va. Code §44.146.16 (3)

Flood hazard area

Va. Code §10.1-600

Flood plain

Va. Code §10.1-600

Flood prevention or protection

Va. Code §10.1-603.16

Flood prevention or protection studies

Va. Code §10.1-603.16

Hazardous materials

Va. Code §44-146.34 B

Hazard mitigation

Va. Code §44-146.16 (13)

Hazardous substances

Va. Code §44.146-16 (12)

Hundred year flood

Va. Code §10.1-600

Interjurisdictional agency for

emergency management

Va. Code §44-146.16(9)

Local emergency

Va. Code §44-146.16(6)

Local emergency management

organization

Va. Code §444.146.16(7)

Major disaster

Va. Code §44-146.16(4)

Man-made disaster

Va. Code §44-146.16(2)

National flood insurance program

Va. Code §10.1-600

Natural disaster

Va. Code § 44-146.16(1)

Regular flood insurance program

Va. Code §10.1-600

State of emergency

Va. Code §44-146.16

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For Further Research

The citations noted above and other elements of the state code for Virginia may

be searched at: [http://leg1.state.va.us/000/src.htm].