Legal Issues in Public Transit Emergency Planning and Operation (2013)

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3 LEGAL ISSUES IN PUBLIC TRANSIT EMERGENCY PLANNING AND OPERATION By Nicholas Tomizawa, Esq., CEM, URS Corporation, Homeland Security and Emergency Management Group I. INTRODUCTION The goal of this study is to provide an as- sessment of laws, regulations, and guidance from both the transit and homeland security industries. It seeks to help transit agencies understand their legal responsibilities with respect to emergency planning by: • Providing transit managers with advice on how to navigate laws, regulations and guidance from both the transit and homeland secu- rity/emergency management fields. • Summarizing, comparing, and contrasting transit and homeland security laws, regula- tions, and guidance. • Providing practical approaches and in- sight to address emergency planning mandates and guidance. • Providing an overview of legal issues per- tinent to transit emergency planning. With such knowledge, transit managers may make informed planning and response decisions to reduce their exposure to claims, protect their property, enhance the safety and security of their employees and the general public, and expand the range of services and capabilities of transit. “Transit” for the purposes of this study in- cludes: • Rail transit, transit bus, and demand- response operators (paratransit) funded by the Federal Transit Administration (FTA). • The 26 commuter railroads funded by FTA, with safety and security oversight by the Federal Railroad Administration (FRA).1 • The 18 public passenger ferry systems funded by the Federal Highway Administra- tion (FHWA) and the FTA, with safety and security regulated by the United States Coast Guard (USCG).2 1 AMERICAN PUBLIC TRANSPORTATION ASSOCIATION, PUBLIC TRANSPORTATION FACT BOOK 39 (2012), available at http://www.apta.com/ resources/statistics/Pages/transitstats.aspx. Accessed July 1, 2013. 2 Id. at 41. Regulatory and legal distinctions between rail transit, commuter rail, transit bus, para- transit, and passenger ferries will be discussed in Section 3.b. As a result of the creation of the Depart- ment of Homeland Security (DHS) and federal directives to develop emergency preparedness capabilities, the majority of foundational mate- rials to be reviewed in this study were devel- oped within the last 10–12 years. While na- tional homeland security priorities and objectives were being developed during that time, transit industry professionals went on a crash course to digest and assimilate this vast and quickly evolving world of homeland secu- rity vernacular, principles, and operations. Section II of this digest seeks to present, clarify, and summarize the essential planning elements from both the transit and homeland security industries. It provides an overarching view of the programs that inform and guide emergency management planning among the U.S. Department of Transportation (USDOT) regulated systems, and lists and describes key transit and homeland security laws and regu- lations. The section also itemizes DHS guid- ance and events, and lists and explains key transit policies that impact the development of transit emergency management programs. Section III describes how homeland security and transit terms have complicated planning issues since September 11, 2001. It provides insight into the multi-layered issue of regula- tory compliance for transit and discusses how each mode is impacted by the safety, security, and emergency management programs of vari- ous government agencies. Section III clarifies and summarizes the minimum emergency planning requirements for transit. This is pur- posed to assist transit managers in under- standing how homeland security guidance should be viewed in relation to transit re- quirements, and how transit safety, security, and emergency management programs can be developed that are compliant with homeland security policy. Finally, Section III discusses roles for the attorney in emergency planning. This study does not focus on planning issues for day-to-day eventualities such as accidents