Sunday, November 21, 2010


The first Reagan FEMA Director announced publically in an address to an agency wide audience that he had attended a cocktail party before being sworn in as Director when he was asked "Did he know that FEMA was a rebuttable presumption"? Naturally he had no idea at first what the questioner was asking but then the explanation followed. It turned out that NRC in its regulations at 10 CFR Part 50 Appendix E had adopted the legal stance than any FEMA finding on offsite safety [a role assigned by press release under the Carter Administration] had labeled those findings as "rebuttable presumptions" allowing the FEMA findings to be rebutted in adversarial trial type administrative proceedings by intervenors. By the way that procedure has now been long ago revised so that no such administrative hearings can take place but NRC and its staff still have the legal authority to rebut FEMA findings. Of course the two FEMA findings most famous was the finding that LILCO's first offsite exercise at SHOREHAM was fundamentally flawed, a finding supported in the evidence in the hearing with the result that FEMA was ordered by NRC to conduct a new exercise. The second administrative hearing rebuttal was by the liscense application at the SEABROOK Nuclear Power Plant liscensing proceeding. Have all such "glitches" been resolved? NO! Which is one reason WALL STREET will not fund the nuclear power option in the US. So the source of the question to Louis O. Guiffrida, should now be clear. The fact that Guiffrida was an anti-nuclear power advocate and had testified against the liscensing of the Diablo Canyon Nuclear Reactor by NRC somehow escaped the notice of the Reagan Administration and came as a great shock to LILCO's lobbyist and the law firm of HUNTON & WILLIAMS, the largest law firm in Virginia. Guriffrida would never have been confirmed if his testimony had been known to the powers that be and probably would not even have been nominated.

So where does this post go? It turns out that FEMA's history as the "Expert Agency" as the Administrative Law types would normally study is checkered. In reality no judicial or administrative court has ever granted the FEMA position on much of anything deferrrence. Most recently of course the poorly lawyered and argued Gulf Coast Arbitration Panel gave no adminstrative or legal deference to FEMA and did not even grant it the status of being a "rebuttable presumption" but created a trial de novo requirement totally ignoring the existing adminsitrative record, despite its length and evidence of some expertise. Perhaps the powers that be intended FEMA to lose the Arbitration all along. Who knows? Only the taxpayer probably would or should care and they are without standing in the matter.

Edwin Meese III was Attorney General in the second Reagan Administration and he had been both mentor and de factor boss of Guiffrida during his years as FEMA Director, first through Meese's position as Counselor to the President in the WH and then as AG. But by December 1985 Guiffrida had been sent packing by the Reagan Administration and even Meese could not protect him.

But on December 13th, 1985 in an important letter to James C. Miller, III, the Director of OMB, Meese opposed the submission of diaster legislation to the Congress. The letter argued in the last sentence of the second full paragraph [the full letter availabe on home page of this blog thans to FAS] the following:

"Accordingly, FEMQ should be authorized to perform those special emergency preparedness and recovery functions not assigned to other federal agencies and to support the 'several agencies' implementation of policies establish through existing Executive Branch decision-0making mechanisms."

There is a logic to the statement in the letter. Is FEMA "the safety net" or is it just a coordinating agency? Unfortunately as we know departments and agencies often fail in their existing preparedness and recovery functions, as evidenced by many events since 1985. The STATES and their local governments also often fail in their existing preparedness and recovery functions.

But what has happened since 1985? Did studies or analysis occur of exactly what were the existing preparedness and recovery functions of the other agencies? The short answer is "NO"! Did FEMA try to study the other agencies preparedness and recovery functions? The short answer is "Yes'! One evidence of the latter conclusion was the FEMA efforts to promote what became known as "national security emergency preparedness" in Executive Order 12656 an order which watered down the previous version, E.O. 11490, because guess what? The other departments and agencies really did not want to have the "night" job of emergency preparedness and recovery but instead largely wanted to do their "day" jobs of catering to the lobbyists and special interests and Congressional interests that largely saw the federal government as an ATM for their interests. Even OMB was no help nor NSC because the first cared not for preparedness and recovery since always regarded as a contingency, and the latter as a largely domestic concern that could only end up stealing money from the military/industrial complex.

So again FEMA is not a "rebuttable presumption" except with NRC and who would have guessed that that organization with its odd charter with no mention of off-site public health and saftey would be the high point of another entity giving FEMA some benefit of the doubt.

And of course it should always be pointed out that funding the separate preparedness and recovery functions of the other departments and agencies is largely a joke and usually relegated to pile of nice but not needed budget category.

Well more to follow! And of course I would also point out that trying to discern the existing Executive Branch decision making processes in the Obama Adminsitration is a very difficult task. Like his predecessor Obama likes to appear decisive but is perfectly happy to have almost no transparency in his decision process. Example-look to the clearance of Executive Orders and those who are impacted by them and study how input was given! Hey Mr. President you can do better than BUSH!