Tuesday, June 29, 2010

Robert T. Stafford Act

Well the Ranking Minority member on the House Homeland Security Committee, Peter King has introduced a bill that would limit the coverage of the Stafford Act to certain types of events, but also includes "Catastrophes"! The bill number is HR5590! I have gone back and provided to a number of hill staff, GAO, the CRS staff, and others some background linkages on application and history of the Stafford Act to catastrophic events. This also includes FEMA history. This bill will go nowhere for now, perhaps some hearings if the majority consent, but basically the Congress is out of time and energy given their efforts so far. It does however reflect the fact that Republicans remain confident they will be in the majority for the 112th Congress, beginning January 3, 2011! If so this bill could well be reintroduced. Desperately needed is an academic style paper or research paper on the struggle to form effective and efficient mobilization in large-scale events. Long ago the Stafford Act was reported as not being implemented by FEMA to deal with catastrophic events. I would be happy to furnish in virtual form some of this history to whomever wants it. It should be made clear however that the struggle to define and deal with "catastrophe" is IMO the wrong paradigm.

First, the Stafford Act is not a comprehensive civil crisis management statute and does not mandate development of a civil crisis management system or chain of command. It does come close to doing that in Title VI which incorporates former language from the Federal Civil Defense Act of 1950, Public Law 920 of the 81st Congress.

The basic problem as I see is that the House Homeland Security Committee lacks jurisdiction over the Stafford Act and is what is referred to in Congress as a committee with only secondary jurisdiction. This dooms most Stafford Act changes coming out of that Committee to the interests of the Committee with actual oversight of the STAFFORD ACT, the House Committee on Transportation and Infrastructure. They have a bill voted out of committee last November that would amend the STAFFORD ACT but for which no committee print has yet been filed.

The Republicans in Congress, and the Democracts can be expected to conduct substantial committee reorganization in the 112th Congress. Both now seem to recognize the problems but such reorganization is always problmatic.

What does appear to be making its way towards enactment this Congress is new WMD legislation focusing on Bioterrorism. We now have an entirely new stovepipe as HHS and CDC and other HHS components finally understand how willing Congress is to fund Public Health preparedness and response outside of the STAFFORD ACT and outside FEMA and DHS. Well hoping these different cultures can understand each other and pull together but this is shaping up as a classic in bureacracy and likely to leave actual operational and policy resolution capability on the short-end of the stick. That WMD bill is S3249 and the Senate has already passed it and sent it to the HOUSE!

Sunday, June 27, 2010

The Domestic Civil Emergency Preparedness Capability of the US

Do you ever wonder what the actual state of Emergency Preparedness is today in the civil sector of the US? We do get periodic reports from DHS/OIG and GAO on slices and dices of that capability. And of course we also get periodic audits by actual events! I would include Tropical Storm Agnes (1972)Hurricane Andrew (1992), Hurricane Katrina (2005), and the current BP OIL CATASTROPHE in the Gulf of Mexico.
In 1976, the Senate Special Committee headed by Frank Church not only reviewed INTEL ops and Constitutional issues, national emergency powers, but at least set out an architecture for examing the state of Emergency Preparedness in the US. In Senate Report 94-922 they outlined that architecture but declined to give an overall or specific grade on Emergency Preparedness in the US. An extract of that report is available from this blogger. Its discussion of the merits of planning as an element of preparedness is worth the read.
As to the status of the federal efforts at Emergency Preparedness, the Joint Committee on Defense Production which had operated since the Korean War sent out a comprehensive survey instrument to all federal components in part to react to what was becoming the pressing issue of federal coordination and collaboration that led in part to the formation of FEMA under Reorganization Plan No. 3 in June 1978, implemented in 1979 by President Carter. My documentation of that effort was carefully left behind in FEMA in several places but I understand that the destruction of the FEMA library means most of that effort to "preserve the dead sea scrolls" has failed. Perhaps the CRS of Library of Congress can still find those items.
A very interesting effort was launched in 1988 by Director Julius Becton to determine FEMA's actual capability in a range of emergency situations. Led by Dr. John Powers, PhD, this produced a classified and unclassified report that IMO was the best staff effort in the 20 years I worked in FEMA. I am grateful to that effort for pulling together much of what I know about a number of the components in the first decade of FEMA's existence, a period in which my time was largely devoted to defending FEMA in litigation and administrative hearings over nuclear power issues before NRC tribunals. I am just now attempting to make some of that documentation available to researchers now.

Where is this post going? Well it is long since time when perhaps with a joint effort of GAO and DHS/OIG the actual civil capability of the federal government in emergencies be reviewed and analyzed. This is not a one-year effort and would be both expensive and time intensive. But the starting point should be a literature search of their excellent reports over the last several decades and documentation of what is and what isn't. That step should be staff intensive but gathering of the key reports and their analysis at least has the benefit of being largely a paper process and does not require field audits. Those could follow later.

What we do know is that the big four issues of 1) response to catstrophic environmental events; 2) response to catastrophic radiological events; 3) response to catastrophic WMD events; and finally response to 4) catastrophic natural (including disease and pandemics) events all indicate currently major deficiencies even when the full assets of DOD are included. Clearly some of these items are interrelated and the permutations and combinations of events, concurrent and otherwise must be also examined.

Also what we do know from the very very limited analysis FEMA has conducted of STATE and LOCAL capability is that there are major deficiences.

I would argue that the failure to have documented in a coherent and consistent fashion the NATIONAL capability is a serious defect in the governance process for our democracy (Republic) and in particular for the world's oldest and richest democracy.

Hoping this will occur.

Saturday, June 26, 2010


I have decided to post a short blurb I wrote and published elswhere several years ago. Reason is simple as it still seems valid comment on current capability. I will be writing more about federal, state, and local capability in the future. SO SEE BELOW!


Recent reports in major newspapers and elsewhere have detailed the debate going on in Washington, D.C. over whether Congress or the Department of Homeland Security (DHS) has adequately funded the states and first responders to combat terrorism since September 11, 2001. [Now estimated that $35B sent to states since 9/11/01 for preparedness not including another $35B for public health preparedness]!Recently [2004], the U.S. Conference of Mayors released a report base on a survey conducted by City Policy Associates, a Washington, D.C. consulting firm indicating 76 percent of 215 cities surveyed had been left out of the December funding round for Department of Homeland Security grant monies. It is somewhat unclear whether these monies were doles out under the first ever Department of Homeland Security Appropriations Act, Public Law 108-90, October 1, 2003, or prior legislation. In a quote picked up by Congressional Quarterly, John Thomasian, Director of the National Governors Association’s Center for Best Practices stated “It’s a specious argument.” It should also be noted that while the federal system guaranteed by the Constitution includes a federal government of limited powers and the existence of the States, local government is established and governed by State constitutions and statutes. So-called Home-rule jurisdictions, and sue and be sued jurisdictions, stand at the top of the local government pyramid in power and influence, many of the 70,000 plus local jurisdictions have extremely limited powers of taxation or even operational capability with respect to emergency response. Remember the Nunn-Lugar-Domenici Act, Title XIV of Public Law 104-201, the so-called “Defense Against Weapons of Mass Destruction Act” its training premise was to adopt a training program for the largest cities by population, approximately 125. This direct training of local government personnel was argued against by the states as a defective concept from the beginning. Why? This brief article will perhaps, in part, explain why!

Like the Japanese movie RASHOMON there are probably at least that movie’s seven versions of the truth. It is, however, even more important that the always present effort by bureaucracy whether at federal, state, or local level to attempt to evade accountability even while maintaining authority over financial resources is documented. This brief essay is a first step in documenting the past as represented by the federal civil defense program that lasted from 1951-1995. Ultimately, federal civil defense grants to the states for emergency preparedness and first response were made ineffective by a combination of federal and state actions. The past can be studied to help develop the accountability that in the future is necessary to combat terrorism as well as well as enhancing efficiency and effectiveness.

When the Federal Emergency Management Agency (FEMA) opened its doors on April 1, 1979 (a date picked by a disgruntled OMB [Office of Management and Budget] official who had hoped to be a high-level bureaucrat in the new agency) under E.O. 12127 [March 31, 1979] and further implemented by E.O. 12148 [July 20, 1979] it was faced with administration of the civil defense programs, functions, and activities conducted most recently by the Defense Civil Preparedness Agency (1972-1979) pursuant to the Federal Civil Defense Act of 1950, as amended, originally enacted as Public Law 920 in the 81st Congress. That statute had been modified in 1958 to make the civil defense of the nation a joint responsibility of the federal government and the states. It is of some interest that while the fire service had been the basis of civil defense in Great Britain during WWII, the United States chose to create new cadres for civil defense essentially independent of the fire service in the United States. Whatever the reasons for this decision they appear lost to history but the enactment of the Fire Prevention and Control Act of 1974, now amended [codified at 15 U.S.C. Sections 2201 and following] gave the fire service a second chance to be involved in national level preparedness and response issues. The United States Fire Prevention and Control Administration renamed the United States Fire Administration became part of the Federal Emergency Management Agency in 1979. Like FEMA, the United States Fire Administration was lost in the scuffle when the Department of Homeland Security was formed largely based on the absence of input from either the fire service community or the emergency management community, but rather the law enforcement and defense establishments. It is interesting to note that although there was reluctance to become a part of FEMA, the fire service was hopeful that it would be a prominent part of the new agency, but instead it was rewarded by being zero-budgeted twice by OMB on the basis of fire being largely a local issue. Although restored by Congress momentum was lost throughout the 80’s and the States did not participate in attempts to restore the budget, also seeing fire as a local issue. Importantly, most State Fire Marshals even today, as with other state agencies, are seldom involved with actual emergency preparedness and response but serve as a drain on federal resources that would otherwise be available for local response organizations.

In 1979, FEMA had been under enormous pressure to achieve savings in overhead staff and administrative costs since the President’s Reorganization Project (PRP) had in negotiations with the Congress promised extensive financial savings and efficiencies in administration as the primary benefit of the reorganization. This included an immediate savings of 400 Full-time Equivalent (FTE’s) positions from the FTE authorization of the predecessor agencies. A saving that OMB only too willing immediately enforced.

A review of grant programs indicated that those authorized under the civil defense legislation might be eligible for consolidation and subsequent administrative savings by the federal government and the states.

The programs, functions, and activities included the following:

• Nuclear civil protection
• National shelter surveys
• Radiological defense officers
• Maintenance and calibration [dosimetery]
• Emergency Management Assistance
• Maintenance and services
• Supporting materials
• Training and education
• Emergency Operating Centers [EOCs]e

Toadying to an OMB whose high ranking appointees loved cost-saving proposals, the FEMA management struggled with a way to achieve change with the law as constructed. Finally, amendments in 1981 to the Federal Civil Defense Act, even though arguably not relevant to the issue of grant consolidation, were used to design a new approach called Comprehensive Cooperative Agreements. Additionally, the General Accounting Office issued a comprehensive report on August 30, 1983, “CONSOLIDATION OF FEDERAL ASSISTANCE RESOURCES WILL ENHANCE THE FEDERAL-STATE EMERGENCY MANAGEMENT EFFORT” GAO/GGD-83-92 supporting consolidation. It is interesting to note that the States were strong advocates of this consolidation and the report could be issued today based on current Fiscal Year 2004 funding by substitution of DHS’s grant programs administered by the United States Fire Administration, Emergency Preparedness and Response Directorate [FEMA] and the Office for Domestic Preparedness, all scheduled to be primarily administered in Fiscal Year 2005 and after by the Office of State and Local Coordination to be renamed the Office of State and Local Preparedness and Coordination. [Secretary Tom Ridge notified Congress that he was intending to conduct such a consolidation in a letter dated January 21, 2004.]

The Comprehensive Cooperative Agreement was premised on legislation enacted in the 1970’s that tried to authorize a administrative compromise between the strict accounting, audit, and monitoring requirements of federal contracting, i.e. where the federal government was contracting for goods or services, and the federal grant requirements that were basically a “Fire and Forget” approach with very little in the way of effective strings except for audits sometimes years later. OMB had generic grant guidance out for several decades, but one Circular of particular interest to this discussion is OMB Circular A-87 allowing the States to receive their indirect overhead costs for administration of federal grants, analogous to G&A in federal contracts. By the mid-80’s some states were taking upwards of 80% of total grant amounts issued pursuant to the Federal Civil Defense Act in these overhead costs. In fact the Secretary of Health for New York State testified in proceedings before the Nuclear Regulatory Commission in the Shoreham Nuclear Power Station proceedings that New York State treated civil defense monies as unrestricted revenue sharing. Existing FEMA regulations had mandated certain plans and products even as this testimony was being given. No enforcement action was taken by FEMA. OMB never developed guidance on cooperative agreements leaving implementation to each department and agency.

With GAO’s backing, FEMA adopted the Comprehensive Cooperative Agreement strategy even though GAO recognized it might be in violation of federal appropriation law but relied on FEMA to submit legislation through the authorizing committees, in this case the Senate and House Armed Services Committee. This was not done until 1992 informally in a report submitted in March 1992 entitled “Disaster Preparedness.” Then the Federal Civil Defense Act was repealed by Public Law 103-337 in November 1994.

The concept of the cooperative agreement was one of a cooperative effort, with both parties operating as partners in achieving mutually agreed goals with a continuing dialogue throughout the term of the agreement. Shortly after adopting the Comprehensive Cooperative Agreement two administrative events eliminated the staffing that might have made this an effective arrangement. First, a major Reduction in Force (RIF) occurred in FEMA’s primary field element the Regions. Second, the United States Fire Administration was zero-budgeted by the Executive Branch in two separate fiscal years. Although restored by Congress, the USFA staff was eliminated and dispersed throughout FEMA, or terminated. This disrupted relations with both the states and first responders at the same time.

The safety program around private nuclear power plants had been part of the State Agreement Program of the Nuclear Regulatory Commission, with assistance from the former Federal Preparedness Agency [part of GSA] that became part of FEMA in 1979, and a research effort by the Defense Civil Preparedness Agency that continued until about 1985 in FEMA. Three-Mile Island accelerated these efforts when President Jimmy Carter in a news conference indicated that off-site safety, as recommended by the Kemeny Commission and the Rogovin Report would be assigned to FEMA. A very brief Executive Order was issued {E.O. 12241] that defectively implanted this decision. Also, the Radiological Emergency Preparedness Program [REP] conducted pursuant to 10 CFR Part 50, Appendix E, and 44 CFR Parts 350-354, designed to improve off-site safety at privately owned nuclear power stations and had been administered by FEMA in conjunction with NRC since 1980 became a more significant program in the public perception because of the Chernobyl nuclear accident in 1985. Suddenly, public perception of FEMA changed to reflect more of a regulator role in health and safety. E.O. 12657 which made FEMA the last resort responder if the states failed to adequately plan or respond for nuclear power plants also damaged delicate federal-state relationships. The perception of FEMA as regulator had ended by 1990, because of NRC administrative litigation that determined NRC was the sole determinate of risk in the nuclear power plant arena [even though FEMA had continued responsibility to deal with the off-site consequences of an accident] and in part because of two large disasters, Hurricane Hugo and the Loma Prieta earthquake. The agency had been so distracted by the onslaught of public attention and Congressional oversight that civil defense issues and staffing were virtually ignored. A third factor was that FEMA’s national security policy role had been severely curtailed by the issuance of National Security Decision Directive 188 in summer of 1985 eliminating civil defense as a policy driver for national security policy.

The end result was the states were left for a period of 5-8 years with almost no involvement by FEMA staff in how the civil defense monies were administered. Certainly the states were not interested in calling attention to this non-feasance. Additionally, since state and local plans were lightly reviewed but seldom rejected by FEMA regional staff, including REP plans, the States were able to focus on other issues and the tough issues of monitoring, detection, decontamination, and skills in the issuance of Protective Action Recommendations were allowed to wither.

In a second theme, FEMA and its civil defense predecessor civil defense agencies, like the Defense Civil Preparedness Agency, had been under mandates to prepare and report on civil defense activities at the federal, state, and local level in various Executive Orders and statutes. By 1985 these annual reports had been administratively ended and the termination was encouraged by OMB because it viewed annual report mandates as a vehicle for agencies to free-lance and escape from their system of financial, budget, appropriations, and other reports controls. Even today Section 624 of Title VI requires that “The Director [FEMA] shall annually submit a written report to the President and Congress covering expenditures, contributions, work, and accomplishments of the Federal Emergency Management Agency pursuant to this title, accompanied by such recommendations as the Director considers appropriate.” Additionally, E.O. 12656, as amended requires periodic assessments of federal, state, and local capabilities to respond to national security emergencies. Part 17, Section 1701(5) of E.O.12656. The Director FEMA was also required to submit assessments on federal, state, and local civil defense plans and preparedness to the President under E.O. 12148. Perhaps it is instructive that no oversight hearings have ever been held on administration of Title VI by the authorizing committees in the Congress. Only the Appropriations Committees and their staff have conducted reviews. This is interesting since arguably the broadest planning authority and authorization for grants in all of the Department of Homeland Security resides in Title VI.

FEMA had also tried to develop reporting systems in the early 80’s allowing state and local governments to assess their own emergency management and preparedness capabilities. In 1984 a comprehensive assessment tool was developed and sent to the states and local governments to self-assess their capability for response to unexpected events, including nuclear attack. Again, at the end of the administration of President Clinton a further effort was made to assess state and local capability. See FEMA’s State Capability Assessment for Readiness December 10, 1997. Again it was a paper audit system but it did have the imprimatur of the National Emergency Management Association (State level emergency managers) and International Emergency Management Association (principally local emergency management officials). It suffices to state that even today; the federal government has only a paper audit system for determining state and local capability. The struggle to develop and maintain an effective capability assessment system is appropriate for another day. There are several legal reasons for state reluctance to document their lack of preparedness. One is that by doing so they can continue to blame the federal government for their failure to develop efficient and effective administrative processes in the emergency management arena. They can also continue to insist that even relatively minor natural disasters are beyond state and local capability and thus receive federal disaster assistance. Finally, they can continue to allow vendors to state and local government emergency management, fire, and law enforcement to continue to market inefficient and ineffective products that limit effectiveness of mutual assistance agreements and interoperability.

State and local governments under day-today pressures to deal with on-going budget deficits for other programs have yet to become serious partners in the sense of wisely expending their monies on still unarticulated federal priorities. Improvements have been made, but the pressure for development of a Homeland Security Block Grant is just around the corner and if the history of the Comprehensive Cooperative Agreement program in FEMA is an example, flexibility granted to the states may well result in un-preparedness.

It is important to note that even after 2 and 1/2 years from 9/11 there is no complete inventory of State and local WMD assets, nor does DHS have any real interest in developing such an inventor. More importantly, there is no complete inventory of federal assets that has been made available to the states. The result in a “By Guess and by Golly” system that prevents correction of deficiencies. The important reforms that might have been driven by 9/11 have now failed, since no systematic review of administrative deficiencies that would block a successful WMD response has occurred and TOPOFF II again revealed many of the same problems identified in earlier exercises.

It is also true that due to fiscal pressures on the federal executive branch, whichever party takes over in Calendar Year 2005 administration of the federal executive branch will be sorely pressed to not label natural disasters a principal function of State and local government, and only WMD and terrorist threats and actions the federal responsibility. The effect of this transfer, if it occurs, will deprive the system of preparedness and response the real world activity that might assist in a WMD response. All-hazards may soon become “No-hazards” and this will be a direct result of State inactivity and lack of vision. That combined with federal inefficiencies and ineffectiveness will leave the actual WMD responders in a lurch. Even now no one can identify actually State personnel or resources that are dedicated to WMD response.

The Governors should not sleep lightly. They have managed to slow-down the ability of the federal government to respond in the sense that the federal government is primarily responsible for money and accurate information sometimes classified in the WMD context. And by insisting on an antiquated grant management role they have deprived local emergency responders critical funds. Additionally, because they are grant managers, seldom if ever emergency responders, they have failed to support real preparedness and response at the local level. The Kabuki dance by the States continues.

Thursday, June 24, 2010

Authority for EPA programs, functions, and activities

Many of the readers of this blog know that EPA is co-chair of the National Response Team of the NCP together with the US Coast Guard.
Many EPA legal authorities are vested directly in the Presdient who then delegates them to cabinet department agencies and independent Executive Branch agencies like EPA. Still in light of the current BP catastrophe it is appropriate to produce a summary of EPA legal authorities.

So here goes:

1. Clean Air Act (CAA)--42 USC Sections 7401-7671;
2. Clean Water Act (CWA)--33 USC Sections 1251-1387;
3. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)--42 USC Sections 9601-9675;
4. Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA)--42 USC Sections 11001-11050;
5. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)--7 USC Sections 136;
6. Pollution Prevention Act (PPA)--42 USC Sections 13101-13109;
7. National Environmental Policy Act (NEPA)--42 USC Sections 4321-4307;
8. Resource Conservation and Recovery Act (RCRA)--42 USC Sections 6901-6992;
9. Safe Drinking Water Act (SDWA)--42 USC sections 300;
10. Toxic Substances Control Act (TSCA)--15 USC Sections 2601-2692.

I am not sure but believe none of these statutes have been condified into positive law meaning that the US Code Commission has never validated the version appearing in the USC annotated in an official version. Still they are law. Just that the current codification might well contain substantial errors since large compiled from GPO slip law prints.

Defining "catastrophic" events-The BP Catastrophe

I plan to start referring to the BP spill as the BP catastrophe. It still does meet my short hand definition of what is a catastrophic event which is any unplanned incident or event in which the governmental organizations charged with disaster response and recovery are knocked out of commission for an indefinite period. Clearly the federal government is currently in operation no matter how ineffectively and now it appears the Congress and its oversight committees are going to hold hearings as early as next week on the "Chain of Command" for this catastrophic event.

I earlier posted on this blog on this subject and cited the language from Reorganization Plan No. 3 of 1978 as set forth again below:

"Reorganization Plan No. 3 of 1978 Extract

House Document No. 95-356
June 19, 1978
From first full paragraph on page 3:

Third, whenever possible, emergency responsibilities should be extensions of the regular missions of Federal agencies. The primary task of the Federal Emergency Management Agency will be to coordinate and plan for the emergency deployment of resources that have other routine uses. There is no need to develop a separate set of Federal skills and capabilities for those rare occasions when catastrophe occurs.
[emphasis supplied]"

It was not quite accurate however to state that this definition limited FEMA from conducting some research and analysis on the problems and definitions of catastrophic events when an independent agency. As all readers of this blog know I don't believe the language above still has any force or effect in limiting discussion or analysis by DHS or FEMA on this subject.

An organization was created even before the final issuance of the FRP (Federal Response Plan) in May 1992 [two months before Hurricane Andrew] called the CDRG (Catastrophic Disaster Response Group) which was designed to be a policy and issue analysis group focusing on those items deriving from disaster operations that might be of concern to the White House [WH] or would definitely be of concern to the WH and require WH intervention to resolve. This organization was designed to be staffed at the Assistant Secretary level from each responding agency. Its notes and issues have long been destroyed and were never properly archived so that is full impact is now hard to measure. IMO it operated well and dealt with many issues of major concern in disasters some of which are repetitive.
Two FEMA staffers, both experienced and very intelligent civil servants, Veronica Moreland and Karen Sagett [both long retired from civil service] drafted a discussion document to facilitate the discussion of catastrophic disaster issues at the April 11, 1997 of the CDRG. Some indication exists that the CDRG adopted some of the recommendations in the paper at least to the extent they identified tough issues to be further analyzed.

The next effort to conduct analysis that was formalized was the circulation of a draft paper on July 20, 2001, entitled "Catstrophic Disaster Definition and Criteria." That document referenced the earlier paper. Again there was no specific decision or decisions made except to recognize the problem. It is true however that this whole policy subject was in fact raised and attempted to be addressed by Joseph Allbaugh, Director of FEMA, under George W. Bush but then of course September 11, 2001 intervened.
I frequently comment on HLSWATCH.com and the subject of catastrophe has been explored several times on that blog. It is also true that once again DHS has started tiny steps to address this topic and resolve issues. I hope that tough analytical work produces results.

In the meantime here's to the BP Catastrophe!

Wednesday, June 23, 2010

FEMA Unfinished Business

In February (the 5th I believe) FEMA published a National Disaster Recovery Strategy draft document. Strangely this document and effort goes back to mandates as earlier as 2007 from the Congress. At the end of February a six page letter from the Chair and Ranking Minority Member of the Senate Homeland Security and Governmental Affairs Committee was sent to the Secretary DHS with critical comments.

As of this point in time, it appears that the document is indefinitely delayed. Just as the Department failed to accomplish what was statutorily mandated for the Quadrennial Homeland Security Review also issued in February and with promises of supplemental reporting that has not been accomplished.

My guess is that negotiations between DHS and HUD over the Recovery Strategy are holding up issuance of the final final recovery strategy.

The real crux of recovery has come down to housing issues. So here is my quick and dirty history of that problem. Before FEMA there was the Federal Disaster Assistance Administration in HUD put there by Presidential Reorganization Plan No. 1 of 1973. In a famous and seminal transmittal transmission to Congress, the Nixon Administration issued what has become known to history as the Carlucci Report [the first really effective FCO in disaster history--appointed by Nixon when he was an Associate Director of OMB-and of course later Secretary of Defense under Ronald Reagan] that report largely ducked dealing with housing issues letting to HUD to straighten out its policies. Just as FEMA is now housed as a subordinate component of DHS, FDAA was housed as a subordinate component of HUD. The tensions and rivalries of HUD and FDAA clearly were just as vicious and tense if not more so than those between FEMA and DHS. Because FDAA has been part of the Executive Offices of the President [WH] the close relationships of the FDAA senior staff was still very close to and capable of using their contacts to keep that organization relatively intact and powerful even while in HUD. But what is interesting is that the so-called Emergency Housing program not housing issues or expertise generally were in fact the province of FDAA. Part of the placement in HUD had occurred because of the housing issues arising out of Tropical Storm Agnes in the Lycoming Valley of Pennsylvania and in fact resulted in Carlucci with President Nixon's approval firing a Cabinet Secretary George Romney over the failure of HUD to deal with emergency housing issues.
What is clear is that Secretary of HUD Patricia Roberts Harris found completely distasteful the whole emergency housing portfolio and made her support for the Reorganization Plan No. 3 of 1978 that created FEMA conditional on FEMA taking the emergency housing function from HUD. A HUD official and also an FDAA offical who was very very capable and intelligent although somewhat authoritarian in his management style led the Emergency Housing Program throughout FDAA existence in HUD from July 1, 1973 to July 15, 1979.

Well times move on. Basically as is now well known and well documented elsewhere HUD has largely failed in its mission to provide decent, safe, and sanitary housing to the nation. Captured by middlemen/women HUD is largely managed for those who profit off of HUD's programs and lack of staffing and funding. One major success, opposed bitterly originally by the industry, was the federal regulation of manufactured housing which occurred in 1974. The Katrina formaldehyde trailers were in fact RV's not truly subject to the manufactured housing regulatory scheme which dealt with formaldehyde issues early on and almost continuously.

So with a national shortage of low cost housing and much of the real housing financing done by virtue of the mortgage deduction [which is not capped but clearly should be in the Internal Revenue Code] the basic mission of housing the people of the US is in a mess. Abandoned homes, foreclosed homes, homes that meet no decent, safe, sanitary standard aboud. I myself am restoring at great personal effort and cost a house abandoned for almost 20 years. Houses IMO constantly need TLC and without it soon decline.

The bottom line in all this is that just with Public Health being assigned to HHS, energy issue lead to DOE, use of the Armed Forces to DOD, emergency housing should be formally assigned to HUD and the Housing Acts appropriately amended. What should also be noted is that HUD is overseen by the Banking Committees and they also control the National Flood Insurance Program. HUD should get housing and NOAA should get the NFIP. The Banking Committee has long ignored its responsibilities in the housing sector given the huge issues of refugees and migration raised by disasters. Evacuation as a premise and protective action recommendation is based on the "return" of those evacuated. We now know with a vengence that housing often precludes that "retrun" and perhaps like the Dust Bowl in the 30's another large internal migration is about to be sparked by the continuing BP Oil Spill. And by the way the Science Committees in House and Senate should be giving oversight to the NFIP because it is largely a science and engineering driven program and not a housing or banking program because it is in fact a land use program not an insurance program.

Any how perhaps this explains some of the current failure to adopt a National Disaster Recovery Strategy in final form.

And did I mention that the Robert T. Stafford Disaster Relief and Emergency Assistance Act does NOT define "recovery"!

Tuesday, June 22, 2010

National Emergencies Act [1976]

AS part of the Senator Frank Church reforms after the Nixon Constitutional violations, the Congress passed and President Gerald Ford signed into law a statute known as the National Emergencies Act (50 U.S.C. 1601 and following). The Special Committee under Frank Church's leadership had discovered that over 400 statutes in the US Code rested on the declaration of a National Emergency. What was not clear at all is whether the Declaration of National Emergency at the inception of the Korean War by President Truman meant all those statutes had full force and effect. Thus the statute was drafted in part to curtail the sloppiness if not the direct assertion of power in National Emergencies by the President. Today fewer than 150 statutes even contain the term "National Emergency" and I would argue most don't convey much in the way of new authority when there standby status is ended. Still over 25 declarations of National Emergency are outstanding and almost all are renewals.

What the National Emergencies Act did provide was a procedural restriction on the use of National Emergency although the statute did not in anyway restrict otherwise in a substantive fashion Presidential authority. The President is to publish any declaration in the Federal Register under the statutory scheme and indicate what specific statutory authority he/she is triggering and what use he/she intends to make of it. And of course a copy of that declaration and Executive Order must be transmitted to the Congress.

Perhaps of some significance is that the Executive Branch no longer sends proposed legislation to Congress that incorporates a "national emergency" trigger thus rendering it standby authority. The result is that gradually the term is disappearing from use by both Congressional members and the Executive Branch. Still the statutory procedure does at least allow the interested public to be notified of Presidential action.

In the drafting of Executive Order 12656 which was issued on November 18, 1988 by President Ronald Reagan and superseded among other Executive Orders a 1969 Executive Order 11490, the drafting team deliberatly utilized the term "National Security Emergency" which appears nowhere in the US Code and was first utilized in E.O. 12472.

In general limitations from the era of FRANK CHURCH have NOT withstood the test of time, including the so called WAR POWERS ACT. But at least at that point in time Congress was at least trying to preserve the Constitutional separation of powers by its actions. Were that today's effort by Congress.

FEMA/EPA Relationships-The BP OIL SPILL

Just as an independent FEMA's relationships with the Department of Justice and the Department of Defense are worthy of lengthy analysis by this blogger so to the FEMA/EPA relationships from inception of FEMA to today. This post refers however to a very very important policy decision executed by FEMA and EPA in July 1998 and concerning the funding of ESF-10 activities under the FEDERAL RESPONSE PLAN then in effect.


This post is designed to just help fill out the historical record.

Through late spring and early July 1998, representatives of FEMA and EPA negotiated the use of the DRF [Disaster Relief Fund] to fund EPA HAZMATS ops and also the NCP ops in declared Presidential disasters and emergencies. I can find no public reference to this agreement and the two principals, Lacey Suiter (FEMA) and James Makris (EPA) are both deceased. Nonetheless this agreement was made and did in fact operate for mission assignments to both EPA and the US Coast Guard for operations under the NCP[40 CFR Part 300) and then ESF-10 of the Federal Response Plan until my retirement in October 1999.

Here is the language of that agreement in its full text:

"In those emergencies and disasters which result in a Presidential Declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act P.L. 93-288, as amended, it is FEMA's intent to fully reimburse EPA for direct costs associated with carrying out its responsibilities as described in ESF-10. When appropriate, EPA will respond to an environmental disaster under its own legal authority (e.g. CERCLA, OPA, among other EPA laws and regulations) and fund sources (e.g. Superfund, among other appropriate EPA fund sources.) Examples of such ESF-10 activities which would be paid for with Stafford Act funds include costs associated with staffing of pre-deployment teams (i.e. ROC, EST), retrieving and disposing of orphan tanks and drums, household hazardous waste program expenditures, as well as all other hazardous material resonse activities caused by a natural disaster in areas declared a disaster by the President. An exception to this may be a pre-existing CERCLA or OPA sites or ongoing response."

This language appears to be limited to "natural disasters" but the final sentence compromises that limitation with its reference to "ongoing response". Certainly the oil spill is an ongoing response but NO declaration has yet issued pursuant to the STAFFORD ACT.

It was also contemplated that this agreement would eventually appear in a to-be-completed "Financial Annex" to the FRP! Well of course this whole concept needs complete examination assuming as I do that eventually the BP failure to cover claims and reimburse the federal government falls short.

I believe ESF-10 is now ESF-11.

Monday, June 21, 2010

Integration of Federal Response Plans

A running commentary about the relative merits of response planning has been going on for several weeks on a blog that I frequently post comments on their posts. This dialectic has concerned federal response planning and plans and their merits for catastrophic events.

At the moment of course, at least superficially, the federal government's response to the BP oil spill has been under the NCP [National Contingency Plan} published by the EPA at 40 CFR Part 300.

A partially complete chart on civil response planning back to the Cold War and 1964 is available from this blogger. It has never been finalized because no buyer could ever be found but many have used it and like it.

The history of the current National Response Framework is available elsewhere but perhaps this post will help illuminate that history.

First, the statutory scheme that first mandated creation of a federal response plan was the Earthquake Hazards Reduction Act of 1977 which was enacted in anticipation that earthquakes could be predicted and of course that is still in the future if ever. As the physicists take over from the seismologist (largely statisticians) because deep earth sensing of magma flows gets more and more accurate each year and computers improve perhaps some day the hope of accurate prediction of earthquakes will occur. The world of science and engineering however is not there yet. It took until 1987 for that federal castrophic earthquake response plan to be finalized and unusually for a plan it was actually published in the Federal Register.
Upon the arrival of James Lee Witt as Director of FEMA, confirmed in April 1993 by the Senate, he immediately faced the prospect of major flooding in the upper mid-west. He also was witness to the first WTC attack in February 1993.
After the floods of that summer and the slowdown of activity he was sent various decision papers by program officials.

One of those decision papers was dated September 3, 1993, and concerned Integration of the Federal Radiological Emergency Response Plan (FRERP) and the FEDERAL RESPONSE PLAN first issued in May 1992. The program officials in the STATE and LOCAL PROGRAMS and SUPPORT Directorate unanimously supported this merger. Because different signatories and purposes existed at this point in time there was no other INTRA-AGENCY or INTER-AGENCY consent to this merger. None-the-less it was to be approved by Director Witt [Sepetember 5, 1993] and the merger concept had a life of its own.

In fact as of today the two concepts of the NFR and the FRERP have not yet been melded into a single concept. ESF-11 HAZMATS is the briding document between the two but their are niceities that EMERGENCY MANAGERS at all levels of government and private entities must in fact be aware of to do their jobs when the event involves contamination from radioactive materials.

What is important to note is that the HOMELAND SECURITY STRATEGY OF 2002 [JULY 6th], the Homeland Security Act of 2002 [November 25, 2002] and HSPD-5 [February 28, 2003] all also called for the merger of those two documents and other documents including the NCP currently being used in the BP OIL SPILL event.

Typically, the National Response Framework is utilized during a declaration of Disaster or Emergency pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act. There has been no such declaration yet in the BP oil spill but interestingly the current NCP does contemplate a declaration at some point. I have advocated at least an EMERGENCY declaration but it appears that the WH dialectic is that BP will and can pay all damages and all victims "legitimately" impacted by that event. According to Reuters BP has now passed the $2B mark in its response efforts so far [Does that include lobbyist and publicists for BP?] and has self-identified a need to raise $50B fast. Partially by sales of assets, partially by bond issues, and by other means.

Those reading the disaster law might intially believe that an EMERGENCY declaration is statutorily capped at the amount of $5M but in fact that statute is just a reporting to Congress requirement and not a report and wait statutory scheme. Perhaps trickery is whether the approximately $1B in hazard mitigation funding obligated but not expended in the Gulf states from past hurricanes could be utilized to prevent and protect from further damages. The DRF [Disaster Relief Fund} is currently out of money but a $5.1 Billion supplemental is pending [opposed oddly by the Republicans] and of uncertain status. The bottom line is that the Republican Governors of the Gulf states have been convinced by their own party leaders to NOT repeat NOT request a disaster or emergency declaration. So at this point while the Administration pretends that BP will cover all cost [just as it pretends their is a functioning government in Haiti] legitimate claims are being processed but very very slowly. So my guess is that rather than smoothing the process for citizens and those residing in the Gulf states this travesty will continue even perhaps to Labor Day.

Time will tell.

Friday, June 18, 2010

Why President Obama will declare an emergency or disaster for the BP spill

Okay now almost two months in and no Stafford Act declaration. IMO there will eventually be one even thought such a declaration will not be made now for erroneous legal reasoning again by DHS and DOJ attorneys and even though it will document the incompetence of the Obama Administration in the time it took to reach the conclusion that such a decision was necessary.
There are major gaps in the NCP plan published at 40 CFR Part 300. To be detailed later on this blog. In an absolutely fascinating report mandated by statute and orchestrated on behalf of President Clinton by the Administrator EPA a truly astonishing review of gaps in HAZMATS planning, preparedness, and response was completed and transmitted to Congress. Probably one of the truely important reports ever issued by the Executive Branch post Bophal by the US government it had or has two major defects. First it was issued long before such reports were made available virtually and even now is no longer available. I distributed almost 200 hard copies in FEMA when I learned that it had been completed and transmitted to Congress. Second it failed to distinguish between what could be fixed adminstratively and what required legislation. Even today it remains the bible for picking holes in HAZMAT response capabilities and should be required reading for all involved in the oil spill response.

See " A REVIEW OF FEDERAL AUTHORITIES FOR HAZARDOUS MATERIALS ACCIDENT SAFETY", December 1993, EPA-R-93-002. FEMA was a signatory to this report although by lower level officials and not the Director FEMA. Unfortunately, not many issues or policies identified were addressed in the publication of 40 CFR Part 300 in September 1994.

Why this background? Because this is all post the EXXON VALDEZ event discussed previously on this blog and elsewere. Also post the Oil Spill Pollution Control Act of 1990!

So why the prediction that President Obama will eventually make a declaration for the BP Spill? Simple! Language presently contained in Section 217(a) of the Stafford Act which became law November 23, 1988, and even though no declaration was made for EXXON VALEDZ.

The language of that section follows and is set forth below:

(a) party Liable--Any person who intentionally causes a condition for which Federal assistance is provided under this Act or under any other Federal law as a result of a declaration of a major disaster or emergency under this Act shall be liable to the United States for the reasonable costs incurred by the United States in responding to such disaster or emergency to the extent that such costs are attributable to the intentional act or omission which caused such condition. Such action for reasonable costs shall be brought in a United States district court."

While some might argue whether this event was caused by intentional act, the theory of statutory construction as expounded by Sutherland among others indicates that additional words do in fact and in law have additional meaning. Thus my emphasis on the words "costs attributable to the intentional act or omission which caused such condition"! It would be interesting to know whether DOJ/OLC or anyother trial division in DOJ has opined on this language. While other may differ, the delay in declaration will in fact eventually occur and the sooner the better if the best interests of the citizens of the Gulf are the litmus test. After all we trust the cop on the beat not to shoot at a fleeing perp melding into a crowd because we make the cost benefit analysis of the many over the liklihood that catching the perp and adminstration of justice might be delayed or even allowed to let the perp go free. Is this a standard too high for our President who is charged under Article I Section 8 once Congress has acted to promote the General Welfare as the Chief Executive under aRticle II Section 1 of the Constitution.

Time will tell if this prediction is accurate!


Okay you thought Loyalty Oaths went out with the McCarthy era. Surprise-- Section 623(d) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act contains a non-waivable Loyalty Oath provision not just for federal employees but also STATE and LOCAL employees participating in disaster operations. Where did this requirement come from? Amazingly it was contained in the old Federal Civil Defense Act of 1950, Public Law 920 of the 81st Congress. As early as 1955 the Department of Justice issued a formal letter based on court tests of this requirement in other contexts to the Defense Civil Preparedness Agency created in 1972 as the successor organization to all predecessor civil defense agencies. And it was located in the DOD but at that time changed reporting from the Department of the Army and Secretary of the Army to the Secretary of Defense. This of course was in part an expression of lack of interest in the Department of the Army from being involved in various civil defense controversies although oddly the NIXON/KISSINGER duo had some interest in civil defense even conducting and developing a PRM of that effort.

Okay so how did it [the Loyalty Oath] end up in the Robert T. Stafford Act? As liason to the hill for technical support on repeal of the CDA and incorporation in part of the Stafford Act, I gave the Chief Counsel of the House Armed Services Committee the Chief Counsel of the Senate Armed Services Committee a package containing the DOJ non-enforcement memo and several court cases asking that in any transfer this obsolete provision be repealed. After the fact the Chief Counsel in the House said that leaving it out was too controversial. Note this is in 1994 when Public Law 103-337 repealed Public Law 920 of the 81st Congress as then amended incorporating some portions into the Stafford Act.

Note that the history of the Loyalty Oath and its application in full fury to the STATE and LOCAL governments was largely through the CDA!

So I just thought I would mention this in my blog since all GENERAL Counsels of FEMA, Chief Counsel of FEMA, and their legislative and program attorneys have been notified by me of this history, and if not before because of personnel turnover again by this blog post.

What is interesting of course is that DOJ should have recommended veto of Public Law 103-337 based on this UnConstitutional provision. I wish I could write a book on how the American people have been more than occassionally mistreated by their DOJ but don't have the time.

Again hoping someone is listening.

Civil Defense

I realize in recent posts I had left uncovered an important piece of FEMA history. The federal civil defense program which operated from 1951-1994 under the Federal Civil Defense Act of 1950 (Public Law 920 of the 81st Congress) has recently been covered in some depth and very erroneously by several major efforts by academics and the Department of Homeland Security itself. First, a disclosure--I never was actually the assigned lawyer in FEMA directly responsible for the interpretation of the Federal Civil Defense Act of 1950[ hereinafter CDA] and in fact only became directly involved as it ended when then General Counsel John Carey walked into my office and said I want you to work with the Congress on the repeal of the Civil Defense program and its statutory incorporation of any thing necessary still into the Robert T. Stafford Act. Well in short the term "Emergency Preparedness" was substituted for the word "Civil Defense" as portions of the CDA were in fact incorporated into the Stafford Act as a new preparedness title. One overlooked reference to Civil Defense still remains in the otherwise retained language in Title VI of the Stafford Act--in reality a title with its own definitions, broader and more definitive than those controlling disaster relief in the Stafford Act. These should be adopted for the entirety of that statute IMO.

Ronald Reagan and FEMA were burned in the press when REAGAN tried to implement PD-41 issued by President Carter and its creation of the so-called "Crisis Relocation Program"! That document is available from this blogger. In fact however by the time of the Reagan Administration federal civil defense had long been abandoned as a strategic factor in the nation's nuclear war planning. The theory of crisis relocation planning was that the US should not be subject to blackmail by the Soviet Union if during periods of increased tension the Soviet Union started to evacuate its major cities. Oddly, the Soviet Union was more centralized and urban than the US as far as population density but whatever. In fact the crisis relocation program was somewhat incongrous in that various studies of the Soviet Strategic Plan indicated that US strategic forces not cities were its prime target. See for example, NAPB 90 available at the following URL and formerly classified: http://www.fas.org/nuke/guide/usa/napb-90/index.html

What is of interest and should have been long studied and analyzed is the fact that the so-called Continuity of Government Program was never considered to be part of the federal civil defense program and expenditures, funding and authority for it at the federal level were always separate. In fact that program was housed prior to FEMA in the GSA's Federal Preparedness Agency, not DOD's Civil Defense Preparedness Administration [DCPA]. It is true that the concept of COG came primarily out of the brain of a brilliant lawyer named William Harding who was acting General Counsel of DCPA several times. He devised the program to support the continued existence of state government during a nuclear attack. That concept was rapidly adopted by the Eisenhower Administration which realized its importance to the federal level of government. In calculating the expenditures of the Soviet Union on Civil Defense, the US policy makers always included Soviet COG as part of their civil defense effort but never included that component as part of the various charts produced on the federal civil defense program, functions, and activities in the US. Perhaps to some extent that was misleading and untoward but still the fact.

What is important to know however is that recent books by Professior Emeritus Dee Garrison of Rutgers University and Stanley Perrow formerly of Yale University continue to blame the COG program on the civil defense program. They also charge that essentially the federal civil defense program was initiated, developed, and operated in bad faith in an attempt to deceive the American people as to the consequences of execution of a SIOP by the Soviets on the American heartland. I find no evidence of this and am disappointed in their scholarly efforts. Unfortunately, that is at least implied also by a contractor produced document prepared for DHS and available from this blogger entitled " A History of Preparedness" which of course it is not and its not complete in any event. Note that "preparedness" as a term got a push when the JKF created "Office of Emergecny Planning" became the "Office of Emergency Preparedness" both organizations being in the Executive Offices of the White House. And as anyone in DC knows even the slightest association with the WH results in all phone messages by even the lowest of the low--such as GS-7 OMB officals stating at the start of each PHONCON "this is the White House calling" thereby creating the deception that the person calling probably is on a first name basis with any given President. This should be precluded by statute again IMO.

At any rate, Louis O. Guiffrida, Ronald Reagan's first FEMA Director approved in September 1981 a major FEMA reorganization transferring in its entirety except for certain technical communications activities the federal civil defense program to a new Directorate, the STATE AND LOCAL PROGRAMS directorate which was designed to organize and operate all federal grant programs in FEMA to state and local governments including the federal disaster relief effort. Thus federal civil defense was reduced almost totally to a federal grant program by the Republicans who were charged by both Garrison and Perrow in their latest books with decieveing the American people through the federal civil defense efforts. Hey the federal government is compliicated and these so called reorganizations and realignments have big implications for the people of the US.
It is true of course that NO specific announcement of federal civil defense as being just a STATE and LOCAL preparedness grant program was made public and even as late as 1992 in NSDD 66 the National Security Council staff tried to keep civil defense alive (it failed) in issuing a document that was weaker even than the language of the CDA itself. Hey this was all done by the Republicans for those who want to hold someone accountable.

Perhaps the major point should not be lost that funding of STATE and LOCAL emergency prepardness positions at least partially comes from the former Civil Defense program. And of course as readers of this blog know I now advocate funding up to 25% of all Public Saftey efforts at the local level of the 500 largest metropolitan areas on the basis that that is a core national asset in large scale emergencies and needs to be able to be standardized and trained and provided resources and logistics not just for the benefit of each individual jurisdiction but also for the use in mutual aid and EMAC situations and in national level catastrophes (which do seem to be happening more frequently don't they?)!

Well more to follow but just note for the record much research, analysis and effort did go into the federal civil defense effort now almost totatlly lost as FEMA shot itself in the foot by breaking up and dispersing its library. Hey book burning still lives in the US at least at the federal level. One reason of course for this blog, as inarticulate and poorly researched as it is, at least it gives my shot at history which eventually will be important again to US survival.

Thursday, June 17, 2010

Why the Department of Justice Dislikes FEMA, even a FEMA in DHS

Between the years 1981 and 1989, the Department of Justice engaged FEMA in full scale bureacratic warfare to prevent FEMA from becoming any kind of funding organization for STATE and Local law enforcement entities. While some may think this is an argument of no consequence let me assure you that it has had huge implications for civil crisis response and recovery in the United States.
The issue began even before the 1984 Los Angeles Olympics where the fallout from the 1972 Munich Olympics terrified the Reagan Administration that a terrorist attack during the games might destroy the Reagan Presidency. Unknow to many President Reagan had created as California Governor something called the California Specialized Training Institue which still exists and is part of the STATE of California educational establishment. Originally designed to provide training to law enforcement personnel for response to riot and civil disorder as evidenced by the San Francisco State riots the organization today provides a variety of services and training to California's large academic and law enforcement institutions and organizatons. William French Smith was Reagan's first AG and because of the efforts of Louis O. Guiffrida, the FEMA Director and his Civil Security unit during the LA Olympic Games, William French SMith wrote a letter which ultimately led to Guiffrida's downfall in the Reagan Administration. He did not go quietly or easily however but was challenged throughout his tenure as Director of FEMA [the longest tenure until Director James Lee Witt survived the entirety of the Clinton Administration.] A letter by AG Smith made public, which has been erroneously labeled as part of an anti-civil defense element in the Reagan Administration had absolutely nothing to do with Civil Defense which had even before the Reagan Administration lost its policy heft in the strategic arena and turned into a generic preparedness grant program by both the Reagan Adminstration [September 1981] and the State and Local governments. The letter indicated that FEMA, a non-cabinet independent Executive Branch agency should never be placed between the President and his cabinet officials in any civil domestic crisis management system. Strangely, no President, even President Obama today, has ever devised a domestic civil crisis management system and chain of command.

My point is simple, however, evidence exists that the Department of Justice has been Janus faced when analyzing the disaster relief legislation of the United States. FEMA actually tried to limit the scope of the Disaster Relief Act of 1974 (Public Law 93-288) when it asked for a statutory state share of disaster outlays in the 1980's. DOJ specically opposed inclusion of the following language in what became the Robert T. Stafford Disaster Relief and Emergency Assistance Act: "and based upon the Prsident's determination that Federal assistance under other Federal authorities is not available and adequate to meet all of the emergency needs" which was also supported by the Department of Energy. That language of course never appeared in the final enacted version of the Stafford Act but the DOJ continues to pretend it does exist although it opposed that limitation in passage and enactment of the Stafford Act. Why is this important? Because such a largely legal analysis would creat a major delay in any declaration of a disaster by the President just as in the current BP oil spill and formerly in the EXXON VALDEZ spill.
So DOJ created a new concept of a "Law Enforcement Emergency" see 28 CFR Part 65 in the Omnibus Crime Control Act of 1984. The history of that label has yet to be written but would be of great interest. The term was first used believe or not by DOJ when it declared Mt. St. Helens a "Law Enforcement Emergency" even though it had no statutory basis at that time.

And still FEMA has continued to fund from time to time DOJ and law enforcement activities because DOJ continues to underfund and understaff this function. Note the recent DOJ/OIG report on DOJ's lack of interest and preparedness for WMD events.

I noted earlier on this blog that I actually sent a long letter to President George W. Bush's first AG once DHS had been established requesting that an analysis should be made, and made public, as to the role of DOJ and DHS in a WMD incident, and in particular a Bioterrorism incident/event wherein there might in fact be riots or civil disorders. Thanks DHS/OIG and hoping you read this blog.

More on the DOJ war on FEMA later. I have formally requested that the GAO study these issues in an e-mail sent on July 12, 2010!

Is FEMA the Nation's Safety Net?

In the January 2009 Natural Hazards Observer I wrote a letter to the editor about the non-declaration of an emergency or disaster under the then current disaster legislation known by some as the Robert T. Stafford Disaster Relief and Emergency Assistance Act. That statute (Public Law 100-707) amended in part, supplemented in part, and repealed in part the Disaster Relief Act of 1974 (Public Law 93-288. The letter explained some history of that non-declaration. What it did not contain was the document that was given to the Senate Appropriations Committee explaining the non-declaration.
That piece of the puzzle is avail now from this blogger.

We now after almost 2 months again have a non-declaration situation in the BP oil spill situation. It appears that the rationale for the non-declaration in Exxon Valdez is now being used by this administration to argue that the plan published in the CFR at 40 CFR Part 300 is adequate. Whether or not the escrow fund is ever created now appears 24 hours after its announcement to be in some doubt. BP wants a firm cap at $20 B and the administration argues that is only a starting point. So stay tuned.
What is important is the exercise of discretion by the President not to declare a Stafford Act disaster or emergency. Could he yes? Will he? Not sure! But the non-declaration so far has in fact yielded an important policy issue that has not yet been discussed until this blog post!

First, if the rationale of the non-declaration in Exxon Valdez is used several consequences follow: First, legal enforcement of civil and criminal penalties against those who caused the incident/event must be pursued not just diligently but first before any relief to citizens of the US by its government. This is ridiculous for the following reasons: First that process is slow and cumbersome. Second, a declaration of disaster or emergency exonerates no one from their other legal responsiblity for damages or wrongdoing.
Second: If the rationale provided to the Senate Committee informally by the Office of Congressional Relations in FEMA after the appropriations hearing which covered Exxon Valdez then FEMA should always include a detailed analysis in its declaration recommendations to the President a complete analysis of all other applicable law with respect to any given incident/event. Well with an Office of Chief Counsel of 70 people including paraglegals, FEMA is not up to the this questionable practice. But hey the Department of Justice should be more than up to it.

So before they pain and suffering and losses of the American people are ignored like they were at EXXON VALDEZ and now in the BP Oil Spill then let's have the Office of Legal Counsel at DOJ prepare a comprehensive list of all statutory schemes that are so pervasive and comprehensive that should they fail in their protection of public health and saftety they should still result in the PRESIDENT not declaring a disaster or emergency.

We need to know that now not later as the interested public. Need an example? What is the interplay of the Stafford Act and the Price-Anderson Act concerning nuclear power? This question has never received a ruling from the Department of Justice despite in formal testimony before Congress the Commission On Federal Response to a Catastrophic Nuclear Accident declared that the Stafford Act had NO applicability to such an event. Then in an effort to avert the logical consequences of this testimony the NRC Commisssion staff, later approved by the full Commission, issued a document NUREG 1437 [sic] arguing that the Stafford Act fully applied to such a castrophic event. This was published with the signature of a low-level FEMA civil servant and NO legal review was sought.

So before the next Core-Melt Accident (the last was TMI) let's pin this down. Good luck OLC but time you earned you pay when not trying to avoid due process for US citizens that are rightfully labeled terrorists.

Thursday, June 3, 2010

State Capability Assessments

In April 2000 FEMA and NEMA [National Emergency Management Association] jointly issued a new STATE CAPABILITY ASSESSMENT document. That document, available from this blogger, contained the following language in the forward:

"In the year 2000, we again strongly support and encourage each State, Territory, and Insular Area’s active participation in the Capability Assessment for Readiness (CAR) survey. This survey will be the second CAR survey, the first having been conducted in 1997 with the full support of the State emergency management community. The CAR you now have has incorporated lessons learned from the first survey, as well as input from a series of Federal and State Customer Feedback Workshops designed to enhance the entire CAR process, instrument, and supporting materials.

Prior to 1997, emergency management officials lacked a nationally accepted assessment process whereby States, Territories, or Insular Areas could judge their emergency management readiness and capabilities. As a result, the Federal Emergency Management Agency (FEMA) and the National Emergency Management Association (NEMA) joined together in partnership to develop a prototype readiness and capability assessment instrument and process. The result of this effort was the CAR.

The CAR provides a common format for a self-assessment of emergency management capabilities and areas needing improvement by a State, Territory, or Insular Area, usually working with representatives from a FEMA Regional Office. The resulting assessment provides information crucial for strategic planning of emergency management programs and budgeting of resources.

The CAR process has the full support of both NEMA and FEMA. We look forward to all States, Territories, and Insular Areas working with us in completing CAR 2000."

The Constitution of the US does recognize a federal system in its language and history. Unfortunately, the almost total reliance on the STATES prior to the NEW DEAL to provide the necessities of life in a complex world was limited for many reasons, not the least the will of the politicians. It was this failure and the recognition that nation-states in Europe were developing social policies, often to support their militarism [as in Bismarck's Germany with its adoption of a system of social security so that men at the front would have the knowledge their survivors would be cared for by their government] almost forced the US to do the same. Social Security is not an insurance program but an intergenerational income transfer program and in the early years those who had worked but did not qualify were blanketed into the system with small payments.

What does this have to do with STATE CAPABILITY ASSESSMENTS. First, FEMA even in its days of independence was under statutory, regulatory, and Executive Order mandates to give an eye out for the current capability of all levels of government and emergency management. It seldom did this as revealed by the language of the foreward above. What it did do was essentially treat its grant programs as fire and forget funding of the STATES without really understanding how the STATES and the local governments used that money. A friend once told me that a $7M check showed up and the Mayor of Malibu called him to find out what it was for? The check of course came from the DRF and FEMA. Hey, no problem Malibu has lived off disaster monies as much as any other community its size in the country over the last 50 years. Fires, floods, landslides etc. is the real history of Malibu.

Okay partially out of frustration and partially to reduce pressure from Congress and OMB to the HOMELAND SECURITY ADVISOR, FEMA several years ago actually hired a contractor to study STATE levels of capability. Of course at least theoretically, the Robert T. Stafford Disaster Relief and Emergency Assistance Act requires statutorily that disaster relief be supplemental to STATE efforts and the funds are to granted only when beyond state capability. This standard has existed for a long time even before the Disaster Relief Act of 1974 (Public Law 93-288). One of my favorite disaster declarations was one by the President for 26 houses in Santa Barbara sliding into the ocean, one owned by Olivia Newton John. Hey I am sure it was NOT beyond CA capability to handle that event but that again was just federal money covering state negligence in allowing unwise development.

So the study conducted by Titan Corporation under the leadership of Grant Peterson several years ago used the baseline document SLG 101 [the version used issued 1996] as the measuring stick. That document was a successor to the old CPG-101 that through a number of versions was the measuring stick for the former federal civil defense program under Public Law 920 of the 81st Congress. The survey did NOT use Attachment G Terrorism to SLG 101 that had been formally issued and distributed by FEMA in 2000. That attachment dealt with "terrorism" preparedness and response.
What is of interest is that using SLG-101 which had been actively lobbied by the STATES to reduce its coverage and depth of analysis resulted in failure of over 50% of the states by that measure. With attachment G it is my belief that almost 75% would have failed.
And remember this is after over almost half of century of the federal government providing grants to the STATES and locals for preparedness and response.
So now under CPG 101 which has superseded SLG 101[my memory is that guidance was issued in 2008] I know of no new analysis of level of effort by the states under that new guidance.
Why is any of this important. The STATES by their noncompliance and misuse of federal funds to build preparedness are now left with the situation that they "MUST" get disaster funding for smaller and smaller disasters or risks political reaction from their voters. The effort over the last several years by politicians at the federal level elected from Louisiana has become almost desperate as they realize their states inability to do even minor levels of preparedness, response and recovery without federal assistance. In a way Lousiana and states that have cowtowed to their extractive industries have allowed their natural resources to be drained away for private profits while they are stuck holding the bag. Now the game is can those same states leave the federal fisc holding the bag. My guess is that system is about to catastrophically fail--meaning the federal largess to bail out the states from their self created problems and lack of will. Why will this happen?
The national interests in Louisana have been the same for many years, as an example. No it was not tourism and gambling. It was Mississippi outflow and inflow shipping and trade and the oil and gas to produce for national consumption. These issues are the only issues that really concern the feds no matter how hard Louisiana's elected politicians push. For example, we know, perhaps partially driven by racial political issues, that the federal government does not care that Louisiana lost large populations in the last decade largely due to migration of refugees from Katrina. This Decennial Census is a make or break one for Louisiana even befor the impacts of the current oil spill.
Well I am picking on Louisiana because my guess for the first time ever the federal government is about to abandon an entire state to live or die on its own resources because except for political pressures the national polity and rest of the members of Congress and even the current Administration has now despite its expressed regrets largely written off or discounted the impact of Louisiana in national life and national politics. I am just guessing of course but it does seem that "washing of hands" is now the official and unoffician federal policy towards that state.

What does this mean as many other states face equally likely massive events that may disrupt their politics and economies?

The feds now are facing the survival of their form of national government, really corporate socialism,and their fear is for their own interests and lobbying gratuties to maintain their lifestyle. With superior lobbying, a stronger federal tax system, and reallocation of national priorities I see Louisiana as the litmus test of this evolution, perhaps revolution. FEW politicians in the Executive Branch or Congress care a hoot about Louisiana. What is fascinating of course is that in forming the United States and "reforming" government that existed before the Constitution existed it was clear that the individual states would be able to veto federal or federalist type approaches to the nation's well being. Perhaps this is all a leap from FEMA's failure all along to do its job in measuring state and local capability. But I make that leap. And now of course is the basic fact that if FEMA grants are viewed ans not really being necessary for national purposes, FEMA which is closely tied to the STATES and Local governments, is not a necessary factor in the scheme of national government either. Thus, the exclusion from a major oil spill role may indicate the decline of FEMA as an indicator of national interests in the success of the STATE and LOCAL governments that again is not just a tell-tale in the wind but a sign that the federal system is now dying despite its Constitutional protections.

Wednesday, June 2, 2010

Was NAPA Correct in its 1993 Analysis

One of the predicates of the February 1993 NAPA report was not FEMA's actual performance in August 1992 during Hurricane Andrew. In fact it was a draft OIG/FEMA report that suggested that bureacratic infighting between the State and Local Programs Directorate, headed by Grant Peterson, and the National Preparedness Directorate, headed by Anthony Lopez were unable to cooperate.
I have always disagreed with this analysis and have now had scanned a document never transmitted due to the actual occurrence of Hurricane Andrew wherein a joint reply to the OIG/FEMA report was cleared for signature at the Associate Director level but again never issued final. I have that document if anyone is interested. It is sort of an "eye of the beholder document" but I did furnish the draft to the NAPA study group for their perusal. They took the document to mean their argument that FEMA was not managed correctly and unable to use or utilize all FEMA's resources in a large scale event like Hurrican Andrew. They also concluded that the President got the FEMA he/she wanted. I suggest readers of this blog obtain a copy of the document and draw their own conclusions.

What is of interest is that by August 1992 major efforts were being made to ensure that the Federal Response Plan [FRP] issued in May 1992 would or could be implemented. In fact, no one studying the FEMA efforts in Hurricane Andrew could reach agreement on whether all or any portion of the FRP had in fact been activated. [Ironically again in 2005 the National Response Plan, finalized in April 2005 had not been fully implemented by August 2005 and Hurricane Katrina making landfall]!
What we now do know is that FEMA's Director Wallace Stickney requested that he NOT be made the "Master of Disaster" in Hurricane Andrew and that went to a reluctant Andrew Card. This had several implications for FEMA's future when George Bush named Andrew Card as his chief of staff and even his VP Richard Cheney had strong opinions about FEMA's continued existence in his role as SECDEF during George H.W. Bush's Administration.
Whatever the bottom line of any President's understanding of FEMA and its role, the very fact that the Obama Adminstration has failed to clearly articulate why FEMA is not involved in the OIL SPILL not only shows the Adminstrations lack of understanding of the significance of that decision or non-decision but well may lead to the underfunded and understaffed FEMA being wrongly regarded as an unnecessary part of the crisis management and emergency management function of the Executive Branch. This will finally mean that FEMA has been the baby thrown out with the bath water or in this case sunk by the oleaginous mess the Adminstration finds itself.

Please read the thoughtful and careful CRS report available here and elsewhere on the Stafford Act and OIL SPILL carefully because it demonstrates the already the technical response to this catastrophic event in US history is far more than the technical response or non-response by the federal government and BP and instead literally a biopsy of the Executive Branch and its willingness to treat the abnormal for the Gulf States as an everyday event. By Labor Day the Gulf states will be so frustrated by the federal failures that IMO they will be permanently dissuaded from voting for any involved in this misfeasance, malfeasance, and nonfeasance for the next 3 decades. A tragic disruption of the American polity that may well be matched or exceed only by the Civil War itself.
Two things to remember: First the Adminstration never published or announced any reason for leaving FEMA in DHS.
Second, the Adminstration has failed to publish or announce any reason for FEMA's non-participation in the OIL SPILL!

This is no longer FEMA's failure but the decisive failure of the President and his Secretary of DHS who now wanders the sands of the middle east while her subordinates try and manage this catastrophic event. Her official passport should be taken away.